ML20129A025
| ML20129A025 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 02/13/1985 |
| From: | Davis P NRC COMMISSION (OCM) |
| To: | Bates A NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20128R135 | List: |
| References | |
| FOIA-85-122 NUDOCS 8507270150 | |
| Download: ML20129A025 (13) | |
Text
k / %, UNITED STATES 4 y g NUCLEAR REGULATORY COMMISSION WASHIN GTON, D.C. 2%56 cf g g.....,f OFFEE OF THE COMMISSIONER February 13, 1985 MEMORANDUM T0: Andy Bates, Secy FROM: Pat Davis, OCM )D
SUBJECT:
DISSENTING VIEWS ON TMI HEARINGS ORDER Attached are Comissioner Asselstine's dissenting views on the order ruling on what further hearings will be held in the TMI-1 Restart proceeding. Please see that they are attached to the Comission order when it goes out.
cc: Chainnan Palladino Comissioner Roberts Comissioner Bernthal Comissioner Zech -
OGC OPE 8507270150 850606 PDR FOIA DERNABE85-122 PDR i]b
h DISSENTING VIEUS OF COPPISSIONER ASSELSTINE In its August 9, 1979 order establishing this proceeding, the Comission concluded that it lacked the requisite reasonable assurance that Three itile Island Unit I can be operated withcut endangering the health and safety of the public. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141, 142 (1979). The Comission's order enunerated a series of specific concerns supporting that conclusion,
~ including: the special safety vulnerabilities in the Babcock and Wilcox design end the consequent greater burden that these reactors impose on the plant operators; the potential interaction between Unit I and the dameged Unit 2; the potential effect of cleanup activities at Unit 2 on the safe operation of Unit 1; the deficiencies in emergency planning and statfor crerating procedures which were so apparent during the Three !!ile Island eccident; and last, but not least, the serious questions about the N.- teragement capabilities and technical resources of the licensee which came to light e.s a result of the accident. Although the NRC staff had developed a detaileo set of required corrective actions to address many of these concerns, which the Comission expressly endorsed, the Commission found that these actions alone were not enough to restore the Comission's cer.fidence in the licensee's ability to operate this plant in a safe manner. Therefore, the Commission determined that a hearing was required on the issues specified in its order. The Comission further determined that this hearing must be completed, and the resulting decisfor of the licensirg tor.rd must be reviewed by the Comission, prior to restart of the facility. Id.
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In the ensuing years, a runber of hearings have been held on the issues identified in the Connission's August 9,1979 order. In addition, subsequent events have broadened the scope of the issues which are relevant to a decision on whether the licensee can operrte TPI-1 without endangering the health and safety of the public. Perhaps more than anything else, these events have served to focus attention in this proceeding on whether the licensee has demonstrated the requisite competence and integrity to operate the plant in a safe manner. These events, and the concerns they raise, are not insignificant. Irdeed, several events were so significant that they caused the NRC staff to conclude that it could not support its previous testimony in favor of the licensee's competence and integrity.
These events include among others: the deliberate falsification of leak rate tests at TMI Unit 2 prior to the accident and the resulting criminal conviction of the licensee for failure to even have a valid leak rate test; the widespread cheating by TMI-1 operators on company-administered tests
'N . and NRC licensing examinetions as part of the requalification process for licensed operators; the false certification and maragenent involvement in the coverup of cheating by a licensed operator during the requalification process; failures in the licensee's pre-accident and post-accident training programs; evidence of contractor discrimination against an employee for seeking to raise safety concerns; evidence of widespread failures to follcw safety procedures in the Tit!-2 cleanup, and inaccuracies in the licensee's response to the October 25, 1979 Notice of Violation which resulted from the TMI accident. Some of these events -- most notably, the training and cheating incidents -- are or have been the subject of hearings, but most
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heve not. Some have also been covered, in varying degrees, by investigations by our Office of kvestigations.
j The question now before the Comission is whether additional hearings are needed in order to fulfill the requirements in the Comission's 1979 order prior to deciding to allow the restart of TMI-1. I conclude that further hearings ere reouired in four areas to fulfill the Comission's comitments in the 1979 order. These areas are: (1) the Parks allegations regarding discrimination and widespread violations of safety procedures in the TMI-?
cleanup; (2) the staff's change in position on the question of the licensee's maragerial competence and integrity; and, (3) TMI-2 leak rate falsification and TMI-1 leak rate falsification.
Parks A11egatiers ii . As Ol's May 18, 1984 report on the Parks allegations notes, the Department of Labor has substantiated Mr. Parks' allegation that he was discrininated against by the licensee's contractor for re.isino safety concerns regarding l the TMI-2 cleanup. In addition, 01's September 1, 1983 report on I
allegations regarding TMI-2 safety procedures found widespread violations by the licensee's contractor. The report went on to identify the failure i
of senior licensee management to nonitor responsibly the contractor's work and to hold the contractor accountable as the underlying cause of the violations of THI-2 safety protec'ures.
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l The Parks allegations, and the ensuing 01 reports, raise several issues '
which may be relevant to the licensee's managerial competence and integrity to operate TMI-1. These issues include: the extent of discrimination against employees for raising safety concerns; any involvement of licensee personnel; the irplications of the discriminatory actions for the competence and safety attitudes of the licensee's management, and the significance of the procedural violations and their relationship to a determination on the competence and integrity of the licensee's operation of THI-1. An opportunity for a hearing should be afforded on these issues.
Staff's Change in Position The staff's change in position presents perhaps the nost correlling case for further hearirgs to fulfill the Comission's comitments in the August 9, 1979 order. In its July 1984 re-evaluation of the licensee's management N.-
integrity, the staff fourd a pattern of activity by the licensee which, had it been known by the staff at the time the staff forrulated its position on management in the restart proceeding, "would likely have resulted in a conclusion by the staff that [the licensee] hed not tret the standard of reasonable assurance of no undue risk to the public health and safety."
fiUREG-0680, Supp. No. 5, p. 2-2. The staff went on to conclude, however, that the licensee's present organization was acceptable. Id. That judgment was based upon a variety of factors: the steff's finding on the significance and extent of licensee participation in the pattern of events which the staff identified as the basis for its change in position; the staff's findino that the pattern of events which it identified as
significant was all-inclusive; the staff's finding that the present licensee organization was a new organization in all significant respects, and the staff's findings regardino subsequent performance of the licensee's new organization.
It is clear that the staff's change in position would have substantially affected the licensing board's earlier positive conclusion on the licensee's conpetence and integrity. I cannot believe that the board or the Commission would have found acceptable a licensee organization which the imC staff found to lack the requisite conpetence and integrity. This fact, together with the staff's refusal to identify the specific portions of its previous testimony which are no longer valid, provides a compelling reason for further hearings on the broad question of the licensee's nanegerial competence and integrity. That reason is further bolstered by the fact that there has been no opportunity for hearing on the meny judgner.ts rade by the staff, and the extensive new information relied upon by the staff, in support of its current conclusion that the present
!icensee organization possesses the requisite managerial competence and integrity to operate the plant in a safe manner. Further, the Licensing Board has never been given an opportunity to address the issue of whether all necessary remedial actions have been taken in response to these prcblems. Given these factors, it is beyond question that the present bearing record on the licensee's management competence and integrity is stale and hardly serves as an adeouate record upon which to make a decisien.
6-Under these circumstances, the need to provide an opportunity for further hearings on the competence and integrity of the licensee's current orgenization is clear. Such hearings should include: a review of the present TMI-1 organization; consideration of the staff's reasons for its change in position and other factors affecting the validity of the licensing board's previous conclusions on the question; the significance and implications of a pattern of misconduct by the licensee; the information and analysis which the staff points to in support of its new conclusien regarding the competence and integrity of the licensee's current organization; and the need for additional corrective actions.
TMI-2 and TMI-1 leak rate falsifications I also disagree with the Commission's treatment of the TMI-1 and TMI-2 leak rate issues (Hartman allegations). I believe that hearings are required or.
'i, ; . these issues and that those hearings must be a part of the TMI-1 restart proceeding. The reasons given by the Commission order for not reopening the record on the TMI-2 leak rate issues are very interesting and may have some relevance to whether the Cennission can allow restart while the hearings proceed; however, on the issue of whether the TMI-1 record should be recpened, they are largely irrelevant.
k'e need not make predictions as to whether our hearing boards would find these issues relevant to restart because the Appeal Board has already decided that the restart record should be reopened to hear these ist.ues.
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7-Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No.1),
ALAB-738, 18 NRC 177 (1983) and ALAE-77?, 19 NRC 1193 (1984).
The Board found that the Partman allegations raised significant safety issues, stating:
Whether the Hartman allegations raise significant safety issues need not detain us long. fileged violation of technical specifications, noncompliance with proper operating procedures, and destructier ard falsification of records at Unit 2 before the accident -- all assertedly under the auspices of at lease first level management -- obviously have serious inplications for the proposed restart of Unit 1. The facts that the NRC staff referred this matter to the Justice Department for criminal investication and that the Department has presented it to two Grand Juries underscore its significance. 18 NRC at 188.
e The Board said that this was clearly within an issue the Commission directed the Licensing Board to examine:
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whether the actions of Metropolitan Edison's corporate or plant management (or any part or individual merber thereof) in connection with the accident at Unit 2 reveal deficiencies in the corporate or plant management that must be corrected before Unit I can be operated safely [.] Id.
The Board also concluded that the Hartman allegations might have affected the outcome of the Licensing Board proceeding. In fact, the Licensing Board note.d its lack of information about the Department of Justice matter and made its conclusion that there were no deficiencies in corporate or plant nanecement subject to the Hartman matter. The Appeal Board said that, in effect, the record never clo3ed on this matter. Without an on-the- record examination of the Hartnan matter, the Appeal Board said P
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that the record contained a material gap and that it could not make a final judgment as to the licensee's management competence and integrity without an adequete record. The Appeal Board concluded that: "'The Comission's primary commitment...to a fair and thorough hearing and decision' in this case requires no less than an exploration of Hartman's charges at [a]
hearing. CLI-79-8, 10 NRC 141, 147 (1979)." Id. at 190 In choosing to take review of the Appeal Board's decision, the Comission did not apply its usual standards for review. Nonnally the Comission only reverses er Appeal Board decision for a clear abuse of discretion or a clearly erroneous application of the law. 10 CFR 2.786. The Comission has not applied that standard here. Instead the Comission chose to reconsider the issue virtually without reference to the fact that the Appeal Board had already decided the issue. See, Metropolitan Edison Co.
(Three Mile Islerd Nuclear Station, Unit No. 1), CLI-84-18, 20 NRC 808(1984).
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The Comission has decided that the Appeal Board was wrong and that it need not reopen the TPI-1 hearing to take evidence on the Hartman issues. The basis for the Comission's conclusion is the mass of information available to the Comissier about changes to TMI management, personnel and organization which has never been made a part of the hearino record and which has never been tested in an adjudicatory setting. In 1979, the Comission said that its decision on the management conpetence and integrity irtues was going to be made on the record developed at a hearing before a licensing board. Petropolitan Edison Co. (Three Mile Island
9-Nuclear Station, Unit No. 1), CLI-79-8, 10 NRC 141 (1979). In its haste to restart TMI-1, the Commission has decided to ignore that fact.
The information upon which the Commission relies to conclude that the record need not be reopened has never been the subject of a hearing. The parties have never had an opportunity to subject this information to cross-examination. The opportur.ity to file written comments on written reports is hardly an adequate substitute. Further, the Licensing Board has never had an opportunity to consider that information. The Board could very well decide that further canagement, personnel or organizational changes are necessary after reviewing a complete hearing record on the Hartman issues. In fact, the Licensing Board made it conclusion's subject to the Hartman issues, and in effect, left the record open on these issues.
The Commission concludes, hewever, that it knows enough about what happened
'is to find that there is no longer any safety significance to this issue.
This conclusion is based en the changes to licensee's organization, quarantine of some personnel from operational positions, and the statement of the U.S. Attorney relating to the plea agreement between the government and licensee on the criminal indictment. I cannot agree that the record is sufficiently cceplete that I can conclude with certainty that there is no remaining safety significance to these issues.
There has never been a complete, public investigation of this matter. 01 did not complete its investigation of this issue, and the grand jury information is not available to us for evaluation. We have some
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information which clearly indicates thet at least at TMI-2 the leak rate falsification was widespread and condoned, if not encouraged by, first level management. However, we do not know precisely who was involved. We also do not know whether anyone above the first level management should be held responsible. Therefore, we do not know whether all necessary remedial actions have been taken.
The Cormission relies on the stater.ent of the U.S. Attorney for its conclusion that upper level management should not be held responsible, and that there is, therefore, no further remedial action which must be taken. Unfortunately, the U.S. Attorney's statement while helpful as a starting place to begin an investigation of the issue can hardly be termed dispositive. We have no idea upon what information the U.S. Attorney's statement was based because we do not have access to grand jury naterials.
Also, the interests of the U.S. Attorney's office are not coextensive with
'i; ; . those of the NRC. The U.S. Attorney is interested only in prosecution for viciations of criminal statues. The standards for proving criminal violations are much higher than those we apply to determine violations of our regulations. Further, our interests go beyond mere personal involvement in a particular act. l!e must also determine whether corporate nanagement should be held responsible for such actions, regardless of direct involvement, because they allowed an attitude to develop such that falsifications occurred and because they had not developed procedures to assure that upper management was aware that the facility was' r:ct crerating in conformity with its technical specifications. The Licensing Board has never been given an opportunity to consider these issues, or whether
- 11 sufficient remedial actions have been taken to prevent the recurrance of such episodes and to ensure that the plant will be operated safely.
In fact, the issue of corporate responsibility will never be the subject of a hearing. The Commission has decided to throw a bone to the intervenors in the TMI-1 restart case by offering a limited hearing, outside the TMI-1 proceeding, which the Conmission calls a " full airing" of the issue. That
" full airing" will not address the involvement of aryone named by the U.S.
Attorney in his statement. Thus, most of the GPU Nuclear management, and specifically Messrs. Kuhns and Dieckamp, are to be outside the scope of ,
the proceeding. It will not address the issue of corporate responsibility.
This hardly amounts to a " full airing" of the issue. Obviously, the U.S.
Attorney was right when he said that the Conmission does not really care to know the true extent of what occurred and who were responsible. All the Conmission seems to care ebcut is what control room operators were
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.- involved. Once again the Commission denonstretes its talent for going for the capillary in resolving an issue.
While cur information on TMI-1 leak rates is substantially more complete than that of the TMI-2 leak rate issues, that infornation is not a part of the TMI-1 restart record and has ncker been tested in an adjudicatory proceeding. I would also reopen the record on this issue so that there can be a full airing of the issue and so that the Licensing Board has a complete record before it when making a final judgment on the renagement competence end integrity of the utility. This would ensure that all needed t..
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remedial measures are required to further ensure that TMI-1 will bc opereted safely.
Conclusion For the foregoing reasons, I conclude that further hearings are required on the subjects of TMI-2 and TMI-l leak rate falsifications, the Parks allegations, and the staff's charge in position on the question of the licensee's management competence and integrity. Absent a commitment to hold such hearings, I cannot find a basis for concluding that this licensee possesses the requisite competence and integrity to operate TMI-1 in a manner that will not endanger the health and safety of the public. In deciding to deny further hearings on all but the question of TMI-2 leak rate falsifications, and to narrew the scope of that issue to the point where the hearing will be little more than a sham, the Commission has both
's;,. abandoned the requirements it set forth in its August 9, 1979 order and broken its connitments to the public regarding the acceptable basis for a decision to restart TMI Unit 1. By its decision today, the Commission has violated the trust of the people of central Pennsylvania.
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