ML20128G746

Answer to TMI Alert 850522 Motion to Reopen Record for Purpose of Receiving Addl Info Re Facility Restart Proceeding.New Facts Are Neither Newly Acquired Nor Significant.Certificate of Svc Encl

ML20128G746
Person / Time
Site:	Three Mile Island
Issue date:	05/29/1985
From:	Bauser D GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#285-176 SP, NUDOCS 8505300295
Download: ML20128G746 (12)

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4 May 29, 1985 l

l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DOCKETED BEFORE THE COMMISSION USNRC In the Matter of ) '85 MY 29 P12:i6

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METROPOLITAN EDISON COMPANY ) Docketryo.c50 5239Ep

) (Rut.arh,);,g SEpy;;

(Three Mile Island Nuclear ) EFETH Station, Unit No. 1)- )

LICENSEE'S ANSWER TO TMIA'S MOTION TO REOPEN THE RECORD FOR THE PURPOSE OF RECEIVING ADDITIONAL INFORMATION On May 22, 1985, TMIA filed TMIA's Motion to Reopen the Record for the Purpose of Receiving Additional Information

("TMIA Motion") and accompanying TMIA's Brief in Support of Its Motion to Reopen the Record for the Purpose of Receiving Addi-tional Information ("TMIA Brief"). TMIA maintains that " newly acquired evidence" constitutes a sufficient basis for reopening the record of the TMI-l restart proceeding. As Licensee shows below, TMIA's new facts are neither newly acquired nor signifi-cant. Accordingly, the TMIA Motion should be denied.

The standard for reopening a record is well-established 4

within this agency. "Under Commission practice, reopening is required when new evidence is shown to be timely, safety significant, and sufficiently material to have changed the re-sult initially taken." San Luis Obispo Mothers for Peace v.__

Nuclear Regulatory Commission, 751 F.2d 1287 (D.C. Cir. 1984) f i

8505300295 850529

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t (emphasis in original), citing Kansas Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-462, 7 N.R.C. 320, 338 (1978). TMIA's evidence utterly fails to meet this stan-dard.

The TMIA Motion is based on two allegedly new pieces of information. The first is the emergency procedures review test taken in 1979 by two individuals, known as Messrs. O and VV, neither of whom have worked at TMI-l or for GPU Nuclear Corpo-ration for some time. The test in question was a senior reac-tor operator ("SRO") weekly requalification training test on emergency procedures. Mr. O, one of the two individuals who cheated on the NRC license examination in April of 1981, re-ceived a grade of 91.3% on the test. Mr. VV, the individual who was found to have cheated in July, 1979 by improperly receiving assistance from Mr. O in an effort to satisfy his license requalification requirements, received a 68.6% on the test.1/ By comparing the last page of Mr. VV's test with the seventh page of Mr. O's test, it appears that the answer on both tests to question five was written by Mr. O. In June, 1984, these tests, along with a reference to the evidence of cheating, were provided to the parties by Licensee. See Notice to the Con. mission, Appeal Bcard, Licensing Board and Parties

.from counsel for Licensee, dated June 1, 1984. TMIA argues that this information raises questions about Licensee 1/ Mr. VV's failing grade was reflected in an exhibit, TMIA Exhibit 66, which was part of the hearing on cheating.

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- management's credibility and integrity. TMIA Motion at (unnumbered) page 3..

As a' preliminary matter,:the TMIA Motion.is virtually one year late and, for that reason alone, should be rejected

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out-of-hand.E! TMIA's assertion that this information.was

" heretofore unavailable" flies in the face of TMIA's own mo-tion, which_ acknowledges its availability since June, 1984.

Compare TMIA Brief1at 1 (unnumbered) page with TMIA Motion at

.(unnumbered) page 3 and TMIA Brief at (unnumbered) page 4. !

Furthermore, even if this information were new, it has no safety significance to operation'of TMI-l nor would it have af-fected, much less materially changed, the outcome of the restart proceeding.- Neither Mr. O nor Mr. VV works for GPU Nu-

' clear Corporation today. Mr. O has not worked-at TMI since the 1/. See San Luis Obispo Motions for Peace, supra, 751 F.2d at 1318-1319.

3/ Without any supporting evidence, TMIA maintains that Licensee " withheld this information until May of 1984" when it produced the information for the. grand jury investigation of Mr._VV. TMIA Brief at 4-5; TMIA Motion at (unnumbered page) 3.

Extremely serious charges of this kind, involving acts of moral -

turpitude,-certainly ought not be made without a substantial factual basis. See, e.g., Fed. R. Civ. P. 11 (sanctions "shall" be imposed by court for a party's wholly unsubstantiated statements). As indicated in Licensee's Notice

. transmitting the tests in question, these tests simply were not

- discovered by. Licensee until the document review-precipitated by the VV grand jury investigation. During the cheating hear-ings, numerous exams were produced. However, in accordance with an agreement reached by Licensee and TMIA, no exams prior to 1980 were provided or reviewed unless the exams involved a known incident of misconduct. See October 3, 1981 TMIA Inter-rogatorie.s to Licensee (As Modified by Agreement). The tests l on which TMIA's motion'is based do not fit either of these categories. TMIA's assertions are outrageous and wrong.

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discovery of his cheating in August, 1981.1! Mr. VV left Licensee's employ in April, 1983. See Board notification from counsel for Licensee, dated May 6, 1983. Moreover, at most, additional evidence of improper conduct by Mr. O or Mr. VV 1 would simply have added to the substantial evidence of this fact accumulated in the TMI-l restart proceeding. It would not have materially altered the existent findings in any way.

As well, the indirect causes of cheating that occurred at TMI were thoroughly litigated in both the proceeding before the Special Master and the reopened proceeding before the Licensing Board on training. See, e.g., Metropolitan Edison Co. (Three Mile Island Nuclear Generating Station, Unit 1), LBP , 21 N.R.C. (May 2, 1985) (" Training PID"), III.B, slip op. at 37-72. As the Appeal Board observed in ALAB-772, and as Licensee has repeatedly acknowledged, it is now well understood that prior to the discovery of cheating at TMI, procedures were not in place to prevent and check for such misconduct. See, e . g . ', Metropolitan Edison Co. (Three Mile Island Nuclear Generating Station, Unit 1), ALAB-772, 19 N.R.C. 1193, 1212 n.15 (1984). Evidence as to why this was so, and what was done about it, has been the subject of extensive litigation in which TMIA participated. In its May 2, 1985 Partial Initial Decision

("PID"), referring to Licensee's current stringent exam 4/ TMIA also refers to Mr. Gary Miller, Superintendent of TMI during the accident, and his appreciation of Mr. O's miscon-duct. As TMIA knows, Mr. Miller also no longer works for GPU Nuclear. See TMIA Motion, Exhibit C at page 3-4.

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,o security practices, the Licensing Board concluded, "We cannot envision a way to improve them." Training PID, slip op. at 64.

In short, no current problem exists on this score, nor does TMIA point to one.

TMIA argues that its "new" evidence undercuts the Licens-ing Board's recent finding that, " Employees of Licensee who failed to prevent the cheating acknowledged their failures and their responsibility to prevent cheating." TMIA Motion at (unnumbered) page 3, citing Training PID at 214. TMIA offers no explanation for its conclusion, and there is no apparent basis for it. The tests in question involve individuals who are not current Licensee employees. The tests appear to estab-lish misconduct involving two individuals in 1979, a time dur-ing which procedures were admittedly lax. As the Board ob-served, Licensee has fully acknowledged its failures and

- . responsibility for this situation. TMIA's "new evidence" would not alter in any way any of these facts or adjudicatory find-ings.

In short, the first piece of information on which the TMIA L Motion is based is neither new nor safety significant to resumed operation of TMI-1, and it would not have changed the result reached by the Licensing Board. Thus, it fails each of the three prongs of the legal standard for reopening a record in an_NRC adjudicatory proceeding.

TMIA's second ground for reopening the record also falls short. TMIA's claim is not timely,E! and it fails to identify

_5/ -The Office of Investigation ("OI") investigation report, H-82-002, on.which TMIA's argument is based was publicly (Continued next page)

-4 significant new information, or information that would materi-ally affect the outcome of the restart proceeding.

i TMIA argues that the OI Report of Investigation, H-82-002, issued in February, 1985, contains information that also would have resulted in the Licensing Board not concluding that

-Licensee _ employees who failed to prevent cheating have acknowl-edged their failures and their responsibility. TMIA Motion at (unnumbered) page 5; TMIA Brief at 2-4. In particular, TMIA points to alleged evidence of (i) Licensee's attempt to keep from the NRC that fact that Mr. VV cheated on a 1979 requalification examination;6/ and (ii) Licensee's failure to

~ declare a clear policy against Mr. VV's conduct. TMIA Motion at 4; TMIA Brief at 2-4. Again, TMIA fails to address the fact that none of the principal players involved in the 1979 certi-

~fication of Mr. VV to the NRC continue to work at TMI-l or for GPU Nuclear Corporation. This includes Messrs. VV, 0, Miller, Herbein and Arnold. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-85-2, slip op. at (Continued) f' released on February 1, 1985 and served on the parties, including TMIA, in March, 1985. Whether or not TMIA should l have earlier filed a motion based on the OI Report, what is I significant here, as Licensee discusses above, is that the l- information contained in that Report on which TMIA now relies has been available to TMIA for some time.

. 6/ It was Robert Arnold, then President of GPU Nuclear, who brought this matter to the NRC's attention. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

LBP-82-56, 16 N.R.C. 281, 355 (1982).

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60-61. It is therefore difficult to imagine how TMIA's claims, even if new, could affect operation of TMI-1.

Moreover, assuming arguendo that the information relied on by TMIA supports TMIA's assertions, neither of these proposi-tions are new, nor are ti.c materially different from findings already made on this very issue by the Licensing Board. As to Licensee's alleged attempt to keep from the NRC, in its August 3, 1979 certification letter and in a subsequent VV license re-newal application, 1I Mr. VV's misconduct, this action was de-scribed in detail by the Licensing Board in its July, 1982 PID.

See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-82-56, 16 N.R.C. 281, 348-355 (1982). Indeed, it was the Licensing Board's finding that Mr. VV had been falsely certified to the NRC as having achieved a grade of 89.1% on one section of his requalification exam which led it to specifical-ly recommend an NRC investigation -- ultimately, H-82-002 --

into the August 3, 1979 certification. Id. at 353-354.

7/ The cwo documents referred to by TMIA are attachments 4 and 27 of the OI Report of Investigation. See TMIA Motion at (unnumbered) page 4. The VV certification was discussed in de-tail in the so-called Speaker Report, Licensee's independent investigation of this natter. The complete Speaker Report was provided to the parties in March, 1983. Included as exhibits to the Speaker Report and discussed therein are attachments 4 and 27 of the OI Report. TMIA also refers to a memo from G. P.

Miller to E. Blake and an August 20, 1979 memo to TMI-2 depart-rent heads. TMIA Motion at (unnumbered) page 4; TMIA Brief at (unnumbered) page 2. The handwritten version of the former document and the latter document also are exhibits in the Speaker Report. See Speaker Report, Vol. 1, Exhs. 1, lA, 24; Vol. 3, pp. 15-16; Vol. 4, Exh. A.

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Similarly, the Licensing Board specifically found that Licensee did not declare a clear policy against Mr. VV's con-duct. Id. at 3461. However in its view, this decision was not improper:

We infer that Judge Milhollin and interve-nor TMIA believe that VV's reassignment should have been called a demotion, and that the demotion should have been specifi-cally kno~n w to VV and to the entire opera-tions staff. These actions, of course, would have humiliated VV. We have rarely seen competent managers attempt to solve their personnel problems in this manner, either in government, industry, commerce or academia. Moreover, a humiliation would have been very destructive, we believe, to VV's effectiveness, particularly in his ability to work with others. It would not have made a contribution to safety. In sum, we view Mr. Arnold's reassignment of VV to be an appropriate reallocation of company personnel resources.

Id. at 347-348. TMIA's argument that Mr. VV's temporary as-signment to the TMI-2 accident assessment group establishes the absence of a demotion was an argument previously made by TMIA.

See TMIA Brief at (unnumbered) page 2; TMIA Proposed Findings of Fact and Conclusions of Law on Issues Raised in Reopened TMI-l Restart Proceeding, January 15, 1982, at 18-20. The fact that the memorandum reflecting Mr. VV's job transfer indicated that the change would allow Licensee to make the best use of Mr. VV's talent and knowledge of the plant squares with the Board's finding that Licensee did not publicly demote Mr. VV but " prudently matched VV's abilities to the right job for him." LBP-82-56, supra, 16 N.R.C. at 347-348. Furthermore, the memorandum has been available to TMIA since March, 1983.

l See, n.7, supra. In short, there is nothing new about TMIA's facts or arguments.

Thus, TMIA's "new" assertions concerning the 1979 VV cer-

~tification, which was the subject of an OI Report of Investiga-tion released in February, 1985, are based on no new evidence and are no more than restatements of specific findings made or arguments considered by the Licensing Board in the July, 1982 PID. As such, they fail to meet the requisite standard for re-opening the adjudicatory record of the TMI-1 restart proceed-ing.

Because TMIA has failed to establish any basis for reopen-ing the record in the TMI-1 restart proceeding, the TMIA Motion should be denied.

Respectfully submitted, Deborah B. Bauser SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1215 Counsel for Licensee Dated: May 29, 1985

e-May 29, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 00CXETED USHRC BEFORE THE ATOMIC' SAFETY AND LICENSING BOARD

'85 NAY 29 P12:46

-In the Matter of )

METROPOLITAN EDISON COMPANY

)

DocketNo[0 Tk%bhS (Restart-ManagementSfBeaban f' (Three Mile Island Nuclear )

Station, Unit No. 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Answer to TMIA's Motion to Reopen the Record for the Purpose of Receiving Additional Information" were served this 29th day of May, 1985, by hand delivery upon the parties identified by one asterisk, by Federal Express upon the parties identified by two asterisks and by deposit in the U.S. mail, first class, postage prepaid, to the other parties on the attached Service List.

h.)2 Htcubu LW Deborah B. Bauser

o, t

UNITED. STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

METROPOLITAN EDISON COMPANY ) Docket No. 50-289

) (Restart Romand (Three Mile Island Nuclear ) on Management)

-Station, Unit No. 1) )

s=

ew SERVICE LIST r

• Nunzio J. ' Palladino, Chairman

• Administrative Judge

-U.S. Nuclear Regulatory Commission Gustave A. Linenberger, Jr.

Washington, D.C. 20555 Atomic Safety and Licensing Board

U.S. Nuclear Regulatory Commission

• Thomas M. Roberts, Commissioner Washington, D.C. 20555 U.S. Nuclear Regulatory Commission

Washington, D.C. 20555 Administrative Judge Gary J. Edles

• James K. " Asselstine, Commissioner Chairman, Atomic Safety and

. U.S. Nuclear Regulatory Commission Licensing' Appeal Board-Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington,ED.C. 20555

• Frederick Bernthal, commissioner U.S. Nuclear Regulatory Commission Administrative Judge l Washington, D.C. 20555 Dr. W. Reed Johnson l

Atomic Safety and Licensing

• Lando W. Tech, Jr., Commissioner Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission-Washington, D.C. 20555 Washington, D.C. 20555

• Administrative - Judge Administrative Judge I- 'Ivan-W. Smith . Christine N. Kohl l

Chairman, Atomic Safety and Atomic Safety and Licensing

! Licensing Board Appeal Board l U.S. Nuclear Regulatory Commission U.S. Nuclear-Regulatory Commission L washington, D.C. 20555 Washington, D.C. 20555 l

• Administrative Judge Docketing and Service Section (3)

'. Sheldon J. Wolfe Office of the Secretary 6

-Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission

, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

i.

SERVICE LIST PAGE 2 i

Atomic Safety and Licensing Mr. Henry D. Hukill Board Panel Vice President U.S. Nuclear Regulatory Commission GPU. Nuclear Corporation Washington, D.C. 20555 P. O. Box 480 Middletown, PA. 17057

' Atomic Safety and Licensing

. Appeal Board Panel Mr. and Mrs. Norman Aamodt U.S. Nuclear Regulatory Commission 200 North Church Street liashington, D.C. 20555 Parkesburg, PA. 19365

• Lois R. Finkelstein, Esquire ** Mrs. Louise Bradford -

' Jack R. Goldberg, Esquire TMI ALERT Office of Executive Legal Director 1011 Green Street U.S. Nuclear Regulatory Commission Harrisburg, PA. 17102 Washington, D.C. . 20555

• Joanne Doroshow, Esquire

• • Thomas Y. Au, Esquire The Christic Institute 1324 North Capitol Street office of Chief Counsel Washington, D.C. 20002 Department of Environmental Resources

• Lynne Bernabei, Esquire 505 Executive House Government Accountability P. O. Box 2357 Project Harrisburg, PA. 17120 1555 Connecticut Avenue Michael F. McBride, Esquire Washington, D.C. 20036 LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Avenue, N.W.

• Ellyn R. Weiss, Esquire Harmon, Weiss & Jordan

. Washington, D.C. 20036 2001 S Street, N.W., #430 Michael W. Maupin, Esquire Washington, D.C. 20009 Hunton & Williams 707 East Main Street j P. O. Box 1535 .

j Richmond, VA. 23212 l

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