ML20133E640
| ML20133E640 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 08/05/1985 |
| From: | Bauser D GENERAL PUBLIC UTILITIES CORP., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#385-129 LBP-85-15, SP, NUDOCS 8508070770 | |
| Download: ML20133E640 (79) | |
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/dk 00LMETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION
'85 AUG -7 A10:44 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD GFFICE GF SECRtltu -
00CKETif4G & SERVlu In the Matter of ) BRANCH
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP
) (Restart Remand on
) Management - Training)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
LICENSEE'S BRIEF IN OPPOSITION TO'THE APPEALS OF THE UNION OF CONCERNED SCIENTISTS AND THREE MILE ISLAND ALERT r
Ernest L. Blake, Jr., P.C.
Deborah B. Bauser Wilbert Washington II l John N. Nassikas III SHAW, PITTMAN, POTTS & TROWBRIDGE l
Counsel for Licensee l
August 5, 1985 8508070770 851805 PDR ADOCK 0"JOO289 G PD7 Db
DOCXETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '85 AUG -7 A10 :44 BEFORETHEATOMICSAFETYANDLICENSINGAPPEALBOAk;f[7hgff[hjg-BRANCH In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP
) (Restart Remand on
) Management - Training)
- (Three Mile Island Nuclear )
Station, Unit No. 1) )
i LICENSEE'S BRIEF IN OPPOSITION TO THE APPEALS OF THE UNION OF CONCERNED SCIENTISTS AND THREE MILE ISLAND A'LERT l
l Ernest L. Blake, Jr., P.C.
Deborah B. Bauser Wilbert Washington II John N. Nassikas III SHAW, PITTMAN, POTTS & TROWBRIDGE Counsel for Licensee August 5, 1 15
TABLE OF CONTENTS Page TABLE OF AUTHORITIES.......................................... iii STATEMENT OF CASE............................................... 1 ARGUMENT I '. Preliminary Observation About the Unreliability of the TMIA Brief............................................ 6 II. Intervenors' Procedural Objections Are Without Merit..................................... 9 A. The Licensing Board Condition................... 9 B. TMIA Subissue (4)............................... 17 C. The Licensing Board's Evidentiary Rulings............................. 22 D. The Reconstituted OARP Review Committee................................ 32 III. Intervenors' Limited Objections to the Adequacy of the Training Program at TMI Are Unfounded................................. 36 A. The Oral Examination Process.................... 36 B. Licensee's Written Exam Process..................,....................... 40 IV. Management's Attitude Is .
Satisfactory......................................... 42 A. Responsibility for Cheating..................... 42 B. TMIA's Historical Argument...................... 43 V. Today, Operator Attitudes at TMI-l Are Satisfactory.................................... 53 A. The RHR Report.................................. 55 B. Current Attitudes............................... 60
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Page CONCLUSION..................................................... 68 Appendix A, Cross-Reference to UCS Arguments in Brief............................................ A-1 Appendix B, Cross-Reference to TMIA Arguments in Brief............................................ B-1 9
l l
l l TABLE OF AUTHORITIES I Cases: Page(s)
Long Island Lighting Company (Shoreham l Nuclear Power Station, Unit 1),
l ALAB-788, 20 N.R.C. 1102 (1984)........................ 17,21 l Louisiana Power & Light Company (Waterford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C. (July 11, 1985)............................ 57 Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1),
CLI-79-8, 10 N.R.C. 141 (1979)............. 2,10,11,12,14,15 l CLI-80-5, 11 N.R.C. 408 (1980)............................. 2 l LBP-81-32, 14 N.R.C. 381 (1981).............. 2,3,44,45,46,47 1
LBP-82-34B, 15 N.R.C. 918 (1982)........................ 3,49 LBP-82-56, 16 N.R.C. 281 (1982).......................... 3,28,42,43,48,49,50,56,62,67 ALAB-738, 18 N.R.C. 177 (1983)................... 56,57,58,59 ALAB-772, 19 N.R.C. 1193 (1984)....................... passim l ALAB-774, 19 N.R.C. 1350 (1984)................... 8,18,44,53 CLI-85-02, 21 N.R.C. 282 (1985)........................ 50,62 LBP-85-10, 21 N.R.C. 603 (1985)................ 2,9,10,11,13 CLI-85-05, 21 N;RTC. 566 (1985)........................... 63 LBP-85-15, 21 N.R.C. (May 3, 1985)..........'.... passim l
l CLI-85-09, 21 N.R.C.
(May 29, 1985).......................... 12,13,14,33,35,45,48 j LBP-85-21, 21 N.R.C. (June 24, 1985)... 1,9,10,13,14,16 i
l Appeal Board Memorandum (Dec. 22, 1983)....................,...................... 50 i
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Cases: Page(s)
Licensing Board Memorandum and Order Following Prehearing Conference (July 9, 1984)............................................ 54 Licensing Board Memorandum and Order on Lead Intervenors (July 13, 1984)............. 7,8,19,20,23,24 Licensing Board Memorandum and Order on Licensee's July 31, 1984 Comments
'on Lead Intervenors and Motion to Partially Exclude UCS from Management Phase (Aug. 30, 1984)................................ 7,8,20 Licensing Board Memorandum and Order (Requiring Identification of Proposed Exhibits), (Oct. 24, 1984)................................ 22 Licensing Board Memorandum and Order Ruling on TMIA's Response to Licensee's Proposed Evaluation Plan (July 8, 1985)............................ 11 Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2),
ALAB-693, 16 N.R.C. 952 (1982)........................... 24 Public Service Electric and Gas Company (Salem Nuclear Generating Station, Unit 1),
ALAB-650, 14 N.R.C. 43 (1981)............................ 24 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B), ALAB-463, 7 N.R.C. 341 (1978)........................................ 7 Regulations:
10 C.F.R. $2.713................................................ 6 10 C.F.R. $2.715a.............................................. 24 10 C.F.R. 52.760(c)............................................ 14 10 C.F.R. $2.762............................................. 7,15 Miscellaneous:
44 Fed. Reg. 40,451 (July 10, 1979)............................. 2
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August 5, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l
In the Matter of )
)
l METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP
- ) (Restart Romand on
) Management - Training)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
LICENSEE'S BRIEF IN OPPOSITION l TO THE APPEALS OF THE UNION OF i CONCERNED SCIENTISTS AND THREE MILE ISLAND ALERT STATEMENT OF THE CASE In ALAB-772, the Appeal Board remanded the Three Mile Island, Unit 1 ("TMI-1") restart proceeding to the Licensing Board for further hearings on three discrete management-related issues. 19 N.R.CT 1193 (1984). In a May 3, 1985 partial initial decision, c
the Licensing Board issued its decision on one of these issues --
l licensed operator training at TMI-1. LBP-85-15, 21 N.R.C.
(May 3, 1985). In its decision, the Licensing Board concluded that, subject to a condition which Licensee has now met, see LBP-85-21, 21 N.R.C. (June 24, 1985), " Licensee has prevailed l
l in the proceeding mandated by ALAB-772." LBP-85-15, slip op. at 8
i l
I L --
i 215-16; see also LBP-85-10, 21 N.R.C. 603 (1985) (Licensing Board response to CLI-85-2). Two intervenors in the remanded proceed-ing, Three Mile Island Alert, Inc. ("TMIA") and the Union of Con-cerned Scientists ("UCS"), have appealed the Licensing Board's de-cision on training.1/ As discussed below, intervenors' complaints about the Licensing Board's decision on training are without 1 merit.
This proceeding originated with the Commission's issuance in 1979 of two orders providing for a hearing on specified issues re-lated to the restart of TMI-1 after the accident which occurred at TMI-2, 44 Fed. Reg. 40,451 (July 10, 1979); CLI-79-8, 10 N.R.C.
141 (1979).
Among the issues identified for hearing were the man-agement capability and technical resources of Licensee and the retraining of licensed reactor operators ("ROs") and senior reac-tor operators ("SRos").2/ Id. at 144-45. Subsequent guidance from the Commission further specified the management competence issues. See CLI-80-5, 11 N.R.C. 408 (1980).
In 1981, after an extensive contested proceeding, the Licens-ing Board issued a partial initial decision which very positively endorsed Licensee's management competence. LBP-81-32, 14 N.R.C.
381 (1981). The Board reviewed in great detail the adequacy of 1/ The Commonwealth of Pennsylvania also actively participated in the proceeding as a 10 C.F.R. $ 2.715 part4.cipant; it did not appeal LBP-85-15.
2/ The operating licensee of TMI-1 originally was Metropolitan Edison Company. In 1982, a new entity, GPU Nuclear Corporation, became the licensee. ALAB-772, 19 N.R.C. at 1203 n.3.
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r Licensee's program for training the TMI-1 licensed operators. See id. at 441-55, 459-79. Because of the discovery of cheating by two operators on the April, 1981 NRC license examinations, how-ever, the Licensing Board retained jurisdiction to consider the implications of this discovery. Id. at 403. On September 14, 1981, the Licensing Board formally reopened the r'ecord and ap-pointed a Special Master to hear evidence and issue recommenda-tions on cheating and its implications. Licensing Board Memoran-dum and Order of September 14, 1981 (unpublished); see ALAB-772, 19 N.R.C. at 1203-04.
In April, 1982, the Special Master issued a report to the Li-censing Board which in turn, issued a decision in July, 1982.
LBP-82-34B, 15 N.R.C. 918 (1982); LBP-82-56, 16 N.R.C. 281 (1982).
The Special Master's report and the Licensing Board's decision were the subject of review in ALAB-772. " Foremost among the mat-l ters warranting [the Appeal Board's] consideration" in ALAB-772 was the adequacy of training at TMI-1. ALAB-772, 19 N.R.C. at 1208. The Appeal Board thoroughly reviewed the record on training at TMI-1, focusing particularly on the " exceptionally well quali-fied" members of the so-called CARP Review Committee, a group of professionals from various pertinent disciplines who reviewed and evaluated the TMI training program in'"Yhe 1979 to 1980 timeframe.
Id. at 1210-11. While it had found areas in need of improvement, the OARP Review Committee's overall conclusion had been "strongly favorabic." Id. at 1211. The Appeal Board was not willing to l speculate, however, how the Committee and other consultants would l
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h assess training today. Id. at 1233. The Appeal Board therefore i i
remanded the proceeding to the Licensing Board "for further hear-l ing on the views of licensee's outside consultants (including the i
' l OARP Review Committee) in light of both the weaknesses demon-strated in licensee's training and testing program and the subse-quent changes therein." Id. at 1239. It is that remand that is (
t the subject of LBP-85-15 and this appeal. f The vast majority of the Licensing Board's findings and con-clusions on the licensed operator training program in place today at TMI-1 are not the subject of appeal. For example, no challenge !
has been made to the qualifications of the training management, i see LBP-85-15, 6 III.A.1.a, slip op, at 17-27,3/ or to the i state-of-the-art training facilities and equipment in place at TMI. See.id., 5 III.A.2, slip op. at 30-36. Moreover, even where the intervenors challenge particular elements of the training pro-gram or other related issues litigated before the Licensing Board, t most of the Board's findings on these matters are not at issue i i '
among the parties. Thus, for example, while UCS questions the l qualifications of shift personnel to conduct oral examinations,4/
l no one disputes the extensive qualifications of and qualification l
L 3/ TMIA does question whether certain managers accept responsi-bility for cheating. Three Mile Island Alert's Appeal of the Li- [
censing Board's Partial Initial Decision on the Romanded Issue of Licensed Operator Training at TMI, July 1, 1985 ("TMIA Brief"), l Section VI. I i 4/ See Union of Concerned Scientists Brief on Appeal of the Par- '
I tial Initial Decision on Licensed Operator Training, July 1, 1985 t l ("UCS Brief") at 2, 26-33.
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process for the Training Department staff. See id.,
$$ III.A.l.b., III.C.3.b, slip op. at 27-30, 90-93. Similarly, with respect to the essence of the remand -- the adequacy of licensed operator training at TMI-1 today -- although UCS chal-1,enges the efficacy of the OARP Review Committee's assessment, the intervenors voice no objections to the substance 'of the program itself -- the curriculum, the schedule, the depth of analysis of subject matter. See id. at 72-119. They also have very limited objections to the training process: UCS is dissatisfied only with the subjectivity of the oral exam process; TMIA's dissatisfaction is limited to the degree of attention given one subject in certain written exams and the implications to the exam security process of one incident, identified by Licensee, which involved a misplaced, completed auxiliary operator exam. In short, the intervenors' ar-l l guments on their face are quite limited in significance with re-spect to the overall quality of licensed operator training at TMI.
The TMIA and UCS objections to LBP-85-15 can be divided into four categories. The intervenors object to some of the Licensing Board's (i) procedural rulings and evidentiary judgments (UCS and TMIA); (ii) findings on the exam process (UCS and TMIA); (iii) findings on management's acknowledgement of responsibility for cheating and other events associated with management (TMIA); and (iv) findings on current operator attitudes at TMI-1 (UCS and TMIA). Licensee's brief addressas,each of these subjects in turn.
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ARGUMENT I. PRELIMINARY OBSERVATION ABOUT THE UNRELIABILITY OF THE TMIA BRIEF Many of TMIA's arguments merit no consideration by the Appeal Board because they are laced with statements that fail to reflect accurately matters of fact and law applicable to this case.
Licensee therefore cautions the Appeal Board, at a minimum, to make no assumptions about the validity of TMIA's statements. In this brief, Licensee has not endeavored to identify every inaccu-racy, mischaracterization, improper use of evidence, and objec-tionable argument made by TMIA. However, one particular aspect of TMIA's approach deserves discrete attention; that is, TMIA's will-ingness to flout adjudicatory board rulings,5/ which often results in significant distortions of the record.9/ The following three examples are illustrative; they are not exhaustive. Licensee of course recognizes that zealous advocacy is not only appropriate --
5/ Unfortunately, this is not a new phenomenon. See Tr. 29,798 (Licensing Board statement concerning TMIA's failure to abide by Board rulings); Tr. 31,985-86, 31,991-92 (same); see also ALAB-772, 19 N.R.C. at 1245-46 (Appeal Board's discussion of TMIA's failure to comply with the Licensing Board's orders in 1980, during the initial management proceeding).
p/ Although the TMIA Brief is signed by Ms. Louise Bradford, a representative of TMIA who is not an attorney, but who has active-ly participated in this proceeding eince 1980, TMIA has at least three Washington, D.C. attorneys -- Ms. Lynn Bernabei, Ms. Joanne Doroshow and Mr. George Shohet -- assisting in this case. NRC's rules of practice specify that partiec and their representatives must conduct themselves properly and, for example, shall not re-4 fuse to comply with an adjudicatory board's directions. 10 C.F.R.
$ 2.713.
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it is required. However, we do not believe that these' TMIA argu-ments fairly can be characterized as appropriate exercises of such advocacy. <
- l. In several places in its brief, TMIA makes a statement and cites as its foundation one of its proposed exhibits, TMIA Training Exhibit 6. See, e.g., TMIA Brief at 29, 30, 31. As TMIA well knows, it is improper to rely on non-record evidence express-ly found by the Licensing Board to be inadmissible, as is the case with Exhibit 6. Tr. 32,402 (Chairman Smith) (rejection of TMIA Training Exhibit 6); see, e.g., 10 C.F.R. 5 2.762(d)(1); Tsnnessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-463, 7 N.R.C. 341, 351-52 (1978); see also $ IV.B, infra. TMIA defies this ruling by utilizing the substance of the rejected exhibit in its brief.
l
- 2.Section V of the TMIA Brief is an analysis by TMIA of I
alleged " management actions" related to training, beginning in the pre-accident time frame. See TMIA Brief at 26-42. In this analy-sis, TMIA does precisely what it sought to do in proposed TMIA subissue (4); that is, litigate how "the history of GPU's problems with training and f.ts current training program reflect on the com-petence and integrity of GFU management." See Licensing Board Memorandum and Order on Lead Intervenors, July 13, 1984, at 2.
However, the Licensing Board ruled that TMIA subissue (4) is out-side the scope of the remanded proceeding.7/ Section V simply 7/ See Licensing Board Memorandum and Order on Licensee's July
( 31, 1984 Comments on Lead Intervenors and Motion to Partially Ex-l (Continued Next Page) l I
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r ignores this ruling -- it does not even acknowledge it, much less i
4 endeavor to fit within the limited window available for revisiting what are now historical events. See ALAB-774, 19 N.R.C. at 1356 i
(past events are within the scope of the remanded proceeding only l
insofar as they shed new light on the adequacy of the existinq program).
- 3. Furtber compounding the inappropriateness of TMIA's his-torical argument is its almost exclusive reliance in Section V on selected transcript citations from the earlier TMI-1 management proceedings. TMIA does not address the Licensing Board and Appeal Board findings on the issues on which TMIA focuses; it simply re-argues them according to its own view of the appropriate out-l come. See, e.g., TMIA discussion of 1979 Floyd incident, which I relies on (i) selected 1982 hearing transcripts; (ii) an Office of Investigation ("OI") report that was never part of the record of I
the TMI-1 restart proceeding; and (iii) an unsupported assertion that is inconsistent with ALAB-772 findings. Compare TMIA Brief
- at 28 ("No action was taken against Floyd") with ALAB-772, 19 N.R.C. at 1230-31 (reference to TMIA challenge of adequacy of sanction that was imposed on Mr. Floyd).
In summary, TMIA's arguments cannot be taken at face value.
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- (Continued) clude UCS from Management Phase, August 30, 1984, at 2; LBP-85-15, slip op, at 8; see also ALAB-774, 19 N.R.C. 1350, 1356 (1984); Li-censing Board Memorandum and Order on Lead Intervenors, July 13, 1984, at 3.
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II. INTERVENORS' PROCEDURAL OBJECTIONS ARE WITHOUT MERIT A. The Licensing Board Condition UCS has three procedural objections which relate to Licen-see's implementaticn of its post-training on-the-job evaluation plan. See letter from Licensee's counsel to the Licensing Board dated June 17, 1985 (with enclosures); LBP-85-21 (June 24, 1985).
UCS alleges that the Licensing Board erred when it (i) designated its license condition as a long-term rath,er than a short-term ac-tion pursuant to CLI-79-8, (ii) found that the submission of a proposed plan constitutes reasonable progress'toward satisfactory implementation of a post-training evaluation prcgram, and (iii) concluded that Licensee's proposed evaluation plan was adequate without conducting further hearings. UCS Brief at 9-14.
In LBP-85-15, the Board approved Licensee's training program, subject to the imposition of one long-term condition. The Board concluded that Licensee has prevailed in the remanded proceeding.
LBP-85-15, slip op, at 214-16; see also LBP-85-10, 21 N.R.C. at 608 (Licensee "has a fundamentally sound licensed operator training program"). The Board found, however, that a performance-based training program logically should include as a final element a formal method of assuring that the training in fact satisfies the operational performance demands on the operators. See id, at 143-56. The Board therefore required Licensee "to evaluate the 9
l performance of trained reactor operators and senior reactor opera- i I
tors in the job setting for revision of its TMI-1 licensed-operator training program." id. at 216. This validation process t
would " provide assurance in the long term" that the training pro-gram, found to be satisfactory by the Licensing Board, was fully l
responsive to the needs it served.g/ Id. at 145 '46, 214. The
, Board also observed that "[f]ormal evaluation of operator perfor-
) mance in the job setting is almost by its very nature a function best performed after restart . . . ." LBP-85-10, 21 N.R C. at l
J 607. In addition, the Licensing Board precisely specified what, in its view, would constitute the necessary " reasonable progress" t
{ towards completion of this long-term requirement. See CLI-79-8, j 10 N.R.C. at 146. It was the Board's determination that such rea-1 l sonable progress would be demonstrated if Licensee began immedi-i
] ately to satisfy the Board condition. LBP-85-15, slip op, at 216.
- t l Licensee also was required to present its evaluation plan to and ;
c l seek the approval of the parties to the remanded proceeding, par-i r l ticularly the NRC Staff and UCS. Id. at 216-17.
. Licensee promptly submitted a proposed plan (Rev. O) to the 1
interested parties on May 28, 1985. LBP-85-21, slip op, at 2.
{
- Licensee subsequently submitted its final proposed plan (Rev. 1) l to the Board. Id. Contemporaneously, the NRC Staff and UCS filed r
',r l
} g/ The Licensing Board considered the existent informal subjec-tive and judgmental evaluations of on-the-job operator performance to be "very useful." LBP-85-15, slip op. at 151. Because it did not have to choose between these judgmental evaluations and
.l formal, periodic on-the-job performance evaluations, it concluded that "both should be employed." id, i 1 I
approving and disapproving comments, respectively. Id. at 2, 3 2/ -
The Licensing Board concluded that Licensee had made the requisite reasonable progress toward satisfying the Board's order by timely preparing and submitting its plan for Board approval. Id. at 3.
It also approved the plan, with one minor modification which it asked the NRC Staff to enforce.
UCS' arguments are founded in part on a mistaken application of one of the Commission's original TMI-1 shutdown orders, CLI-79-8. In that order, the Commission contemplated that Licens-ee would have to take cortain so-called "short-term" actions prior to restart, and other additional actions over the "long-term." 10 N.R.C. at 142. The Commission delegated to the Licensing Board the authority to determine in the first instance those actions that were necessary and sufficient in the short and long-term. '
id. at 146, 148. The Licensing Board expressly considered whether the on-the-job training evaluations needed to be done in the -
short-term. LBP-85-15, slip op. at 155-56; LDP-85-10, 21 N.R.C.
at 607-08. It concluded they did not. LBP-85-15, slip op, at 156. Contrary to UCS' suggestion, nothing in CLI-79-8 required on-the-job training evaluations to be a short-term action. See UCS Brief at 9-11. Even if the language in CLI-79-8 on which UCS relies had included such evaluations -- which, by its express terms, it did not -- the CLI-79-8 proposed action items were no 9/ After the Licensing Board had issued its order approving the plan, TMIA filed its comments. See Licensing Board Memorandum and Order Ruling on TMIA's Response to Licensee's Proposed Evaluation Plan, July 8, 1985.
more than NRC Staff proposals for Board (and subsequently Commis-sion) consideration.10/ See id. at 9, citing 10 N.R.C. at 144.11/
UCS also is misguided in its assertion that the Licensing Board erred in ruling that " submission" of a proposed on-the-job evaluation plan may constitute reasonable progress of that long-term action. UCS Brief at 14. CLI-79-8 unequivocally contem-plated that where the Licensing Board cannot find that reasonable I i
progress toward completion of a long-term action has been demon-j strated, "it shall recommend that operation be resumed at a date i
that it believes appropriately reflects the importance of the ac- t i
tion involved." 10 N.R.C. at 146. In this case, having first de- ;
lineated in LBP-85-15 its long-term condition for an on-the-job l evaluation plan, the Board was not in a position at that time to 1
l find Licensee had made reasonable progress toward completion of I
that action. Accordingly, the Licensing Board specified the ac-tions necessary to constitute such reasonable progress, consid- ;
t ering "the importance of the action involved." Subsequently, in l LBP-85-21, the Licensing Board concluded that Licensee had made i the requisite reasonable progress toward satisfying the long-term action by its timely action in preparing and submitting the plan l
10/ Applying CLI-79-8, the Commission has noted with approval the
' Licensing Board's categorization of the evaluations as a long-term action, stating that it " agrees that job performance evaluations are best performed after a plant goes into operation, and that this condition need not be met prior to restart." CLI-85-09, 21 N.R.C. , slip op, at 41 n. 58 (May 29, 1985).
11/ CLI-79-8 specified that the Commission itself, "after review i of the Licensing Board's decision," would epecify the required i
short and long-term actions. 10 N.R.C. at 146.
for Board approval. Slip op. at 3.12/
UCS asserts, without justification, that the Board was will-ing to accept the submission of a plan, " regard 1.ess of what was in the plan", as reasonable progress toward satisfaction of its order. UCS Brief at 14. UCS' position is untenable. It implies that the Board (and Licensee) would make a sham of the process.
The Board was interested in ensuring that the process of imple-menting this post-restart requirement was underway. It simply (and correctly) judged that "[p}reparing a formal operator perfor-mance evaluation plan would probably be a very short-term endeav-or. Licensee is appropriately staffed and organized to accomplish it." LBP-85-10, 21 N.R.C. at 607. The Board clearly did not intend by its " reasonable progress" standard to belittle the requirement, or to relinquish jurisdiction over the issue until Licensee submitted an acceptable plan. See LBP-85-15, slip op. at 216-17. This is apparent not only in LBP-85-15,"but also in LBP-85-21, in which the Licensing Board reviewed in detail the merits of the plan.
In any event, UCS' argument is mooted by the Licensing Board's evaluation and approval of Licensee's on-the-job evalua-tion plan. The Board reviewed the plan itself and, as a result, determined that " reasonable progress" had been made and that the plan was "well thought out" and "a good response." LBP-85-21,
_12/ The Commission also determined that under the terms of the Licensing Board's decision, Licensee had demonstrated reasonable progress toward satisfactory completion of the Board's order.
CLI-85-09, slip op, at 41 n. 58.
slip op, at 5.13/
Finally, contrary to UCS' suggestion, CLI-79-8 did not create a right for interested parties to request further adjudicatory hearings on all actions which are imposed as a result of the hear-ing process; nor did it create such a right on the issue of the satisfactory demonstration of reasonable progress'toward comple-tion of long-term actions. See UCS Brief at 11-13. In CLI-79-8, the commission expressly empowered the Licensing Board with the authority to identify those short and long-term actions it deemed necessary, 10 N.R.C. at 148-49. The opportunity for hearing af-forded in CLI-79-8 was the opportunity to litigate proposed ac-tions that might be required of Licenree. Based on those propos-als, the Licensing Board would recommend whether and, if so, under what conditions, restart should be allowed. Id. at 146. The requirement for on-the-job training evaluations is a condition that resulted from the hearing to which UCS was entitled and which has occurred. It was based on the record. See 10 C.F.R.
$ 2.760(c). The outcome of that hearing -- particularly, that 13/ Pursuant to CLI-79-8, the NRC Staff ordinarily would have the delegated responsibility to ensure that Licensee was in good faith satisfying the " reasonable progress" standard established by the Licensing Board. See 10 N.R.C. at 148 (" Satisfactory completion of the required actions will be determined by the Director of Nuclear Reactor Regulation.") In this case, however, that deter-mination was unnecessary because Licensee had made so much pro-gress that, before Commission consideration of the status of the issue, Licensee's proposed plan for satisfying the long-term requirement had been issued and was under consideration by the parties. The Commission therefore was able to conclude itself that "[u]nder the terms of the Board's decision, this is suffi-cient to demonstrate reasonable progress." CLI-85-09, slip op. at 41 n.58.
part on which UCS " prevailed" -- is not subject to further adjudi-cation. See LBP-85-15, slip op. at 144. A contrary result would make the process interminable.14/
Similarly, having characterized the on-the-job evaluation process as long-term, the Licensing Board was required to and did specify those actions that would constitute reasonable progress towards the condition's satisfaction. Id. at 216; CLI-79-8, 10 N.R.C. at 148-49. The adequacy of that milestone, per se, is not subject to further adjudicatory hearings -- it was the consequence of that process. Rather, as part of the outcome of the proceed-ing, its consistency with the adjudicatory record is subject to appeal. See 10 C.F.R. 5 2.762.
Finally, notwithstanding UCS' argument, the parties have not been denied an opportunity to fully challenge the substance of the .
Board's license condition. Ironically, UCS now seeks further evi-dentiary hearings on the adequacy of the evaluation plan when it had objected to the Licensing Board's offer to reopen the record on the issue of on-the-job evaluations so that the respective 14/ In the analogous context of an operating license proceeding, or even a civil or criminal trial, the parties participate in an evidentiary trial at which they present facts designed to convince the tribunal that a particular outcome is the most meritorious.
In briefs (or orally), the parties then present their arguments.
In the final analysis, however, the tribunal resolves the material issues in dispute, perhaps imposing certain requirements as a re-sult. In this instance, this process was followed completely.
Moreover, in addition, the Licensing Board sought and obtained the views of the parties on the best method for implementing the Board-ordered requirement. This opportunity is consistent with the recognized court practice of entertaining the parties' sugges-tions for the wording of an order to implement a decision.
______m. _ - - _
l views of the parties could be better understood. See UCS' Reply to Licensee's Supplemental Proposed Findings of Fact in Response to the Proposed Findings of UCS ( 283-287), March 22, 1985, at 1 n.1. Furthermore, UCS had every opportunity during the evidenti-ary proceeding to present evidence in support of the need for and the details of on-the-job evaluations. It took full advantage of that opportunity. See LBP-85-15, slip op. at 143-56. UCS is not entitled to an additional opportunity. Moreover, UCS inappropri-ately belittles the further opportunity it was afforded to meet with Licensee about its plan before its submission to the Board, and to file comments on the plan with the Board in conjunction with Licensee's submission of its plan. See UCS Brief at 12-13.
UCS took full advantage of both of these further opportunities without complaint.15/ LBP-85-21, slip op. at 3. Moreover, after carefully reviewing UCS' comments, the Licensing Board ordered Licensee to modify its plan to ensure that the meritorious con-cerns of UCS were addressed. Id. at 10-12. In its brief, UCS does not define any substantive deficiencies in the evaluation plan. UCS also ignores the bases for the Licensing Board's rejec-tion of a number of UCS comments. In short, UCS has utterly 15/ Nowhere in its comments on the evaluation plans did UCS iden-tify the need for further hearings. See UCS' Comments on Licens-ee's Plan for Post-Training Fvaluation, June 17, 1985. Their complaint about hearing rights therefore appears to stem from the Licensing Board's disinclination to adopt some of UCS' comments on the proposed plan. See UCS Brief at 13 (Licensing Board should have convened a hearing because UCS could then explain "why the Board should accept its criticisms" of the proposed plan and UCS' preferred plan);
failed to establish that it has been prejudiced in any way by the process employed by the Licensing Board. See Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), ALAB-788, 20 N.R.C. 1102, 1151 (1984).
In summary, UCS argued before the Licensing Board that there were many deficiencies in the licensed operator training program at TMI-1. Among these myriad issues was the lack of formal on-the-job evaluations. UCS prevailed on this one point. UCS would have preferred another remedy for this deficiency than the remedy the Licensing Board chose. Rather than focusing on why this reme-dy is substantively inadequate, UCS instead takes issue with the Licensing Board's procedures in resolving the matter. UCS' proce-dural complaints lack foundation. The Licensing Board carefully considered the Commission's guidance in this case and properly ap-plied it.
B. TMIA Subissue (4)
TMIA alleges that the Licensing Board erred when it rejected TMIA subissue (4), which sought to inject as an issue in the re-manded proceeding the question of how the history of problems with the training program reflected on Licensee's management competence and integrity. TMIA Brief at 2-5. TMIA is mistaken. A review of the record indicates that proposed subissue (4) was beyond the scope of the remanded proceeding.
After the issuance of ALAB-772, a prehearing conference was held, at which the scope of the remanded proceeding on training was discussed. See Tr. 27,250-63 (discussion among parties and Licensing Board). During the conference, TMIA suggested that in ALAB-774, the Appeal Board invited an inquiry into past training deficiencies. Tr. 27,252-53 (Doroshow). However, it was in ALAB-774 that the Appeal Board unequivocally stated that, "This pro-ceeding was not instituted to provide a forum in'which to litigate directly all possible errors of the past." ALAB-774, 19 N.R.C.
1350, 1356 (1984), citing ALAB-772, 19 N.R.C. at 1209 n.11 and 1216 n.15. The Appeal Board recognized that insofar as evidence l revealed by the recent investigations into past training deficien-l cies shed "new light on the adequacy of licensee's existing training program," it had already reopened the record on the ade-quacy of the existing program. ALAB-774, 19 N.R.C. at 1356 (em-phasis in original); see also ALAB-772, 19 N.R.C. at 1235. The Licensing Board was reluctant to deny parties the right to pursue a particular past problem insofar as that problem could shed some light on the adequacy of the current program. However, the Board was also cognizant that the remanded proceeding was not a forum available to TMIA to use as an open-ended inquiry into possible deficiencies in a licensed operator crain.ng program that no longer exists. See Tr. 27,254-56 (discussion among Chairman Smith, Judge Linenberger and Ms. Doroshow of TMIA's responsibility to demonstrate the relevance of the evidence it seeks to place in issue).
The Licensing Board afforded the parties an opportunity to identify the issues on which they would like to take " lead" e .. _ _ _ _ _ _ _ _ _ _ _ _
responsibility. Tr. 27,293-94 (Chairman Smith). TMIA proposed four issues, including TMIA subissue (4), which states: "How does l
the history of GPU's problems and its current training program re-l flect on the competence and integrity of GPU management?"1p/
TMIA's proposed subissue (4) effectively ignored the Board's in-structions during the prehearing conference. No attempt was made by TMIA to establish the relevance of TMIA subissue (4) to the i
current training program. In its Memorandum and Order on Lead In-tervenors, dated July 13, 1984, the Licensing Board reserved judg-ment on whether any of the TMIA proposed areas of litigation were lp/ TMIA's other subissues were:
(1) Has GPU properly responded to the problems in its training program identified internally and/or by the Special Master, the Licensing. Board and the Appeal Board?
(2) Are the people responsible for the management and imple-mentation of the training program properly equipped by their own experience and attitude to impart the informa-tion and values necessary for safe operation of TMI-1?
(3) Do the operators have the appropriate attitude toward the training program; do they believe it is effective?
No objections were voiced to these subissues. In addition, UCS' subissues, as modified, were:
(1) Are the operators trained to safely operate the plant in accordance with approved procedures, particularly in emergencies?
(2) Do the Company examinations reliably measure the opera-tors' ability to safely operate the plant?
Memorandum and Order on Lead Intervenors, July 13, 1984, at 2; Li-consing Board Memorandum and Order on Licensee's July 31, 1984 Comments on Lead Intervenors and Motion to Partially Exclude UCS From Management Phase, August 30, 1984, at 2-4.
I
appropriately within the scope of the remanded proceeding. The Board suggested that the issues presented might lead to attempts to litigate matters that were res judicata. Memorandum and Order on Lead Intervenors, July 13, 1984, at 3. It therefore " simply approve [d] TMIA's lead on the training issue to the extent that l ALAB-772 and our July 9 order authorizes an inqui~ry into cheating and integrity as it relates to training." Id.
Licensee subsequently objected to the inclusion in the pro-ceeding of TMIA subissue (4) because it sought to relitigate mat-ters that were outside the scope of the proceeding. Licensee's Comments on July 13, 1984 Memorandum and Order on Lead Intervenors and Motion to Partially Exclude UCS From Participation in the Man-agement Remand, July 31, 1984, at 3-6. TMIA did not respond to Licensee's request that subissue (4) be omitted from the remanded proceeding. See Memorandum and Order on Licensee's July 31, 1984 Comments on Lead Intervenors and Motion to Partially Exclude UCS From Management Phase, August 30, 1984, at 2. TMIA did not even attempt to make a threshold showing that its foray into the histo-ry of Licensee's conduct would shed some light on the current training program.17/ The Board, therefore, correctly rejected subissue (4).
17/ Indeed, TMIA now litigates alleged past problems of Licensee, see TMIA Brief, S V, without ever establishing the relevance of these past problems to the current training program, in direct contravention of the Board's order dismissing proposed TMIA sub-issue (4). See $ I, supra.
TMIA now faults the Board for its exclusion of TMIA's histor-ical argument from the proceeding. TMIA states, without founda-tion, that the Appeal Board clearly felt it was important in the remanded proceeding to litigate "past actions" in order to deter-mine whether Licensee had taken adequate measures to cure the problem. TMIA Brief at 3-4. This notion is nowhere to be found in ALAB-772. While the Appeal Board did express an interest in ensuring that there no longer existed at TMI-1 today the motivations or capability to cheat, see ALAB-772, 19 N.R.C. at 1233, 1236, the prior events and their causes had been the subject of the earlier proceeding on training -- the so-called cheating hearing.13/ TMIA suggests that the training remand should have been a relitigation of past events so that TMIA could have shown
" Licensee's unwillingness or inability to correct the conditions which led to wrongdoing . . . ." TMIA Brief at 4. The short answer is, this already has been done. "Relitigation" is unneces-sary.
Finally, TMIA did not demonstrate any actual prejudice from the exclusion of subissue (4). Long Island Lighting Co., supra, ALAB-788, 20 N.R.C. at 1151; see TMIA Brief at 2-4. TMIA argues only that Licensee did not take appropriate corrective action in 13/ Evidence was presented in this remand on the enigmatic nature of the causes of cheating. See LBP-85-15, slip op. at 204-07.
However, this evidence was not offered as a piece of history, i.e., as TMIA subissue (4). Rather, it confirmed the utility of Licensee's present approach to the past (litigated) events, viz.,
the appropriateness of Licensee's current efforts to prevent cheating through improved communications, improved training and
- effective security practices. Id.
I the past and therefore, cannot be relied on in the future. Id. at
- 4. This view is in reality not a challenge to the exclusion of TMIA subissue (4), but a challenge to the purpose of the remand in ALAB-772. TMIA does not agree with the Appeal Board that, in light of past events, the issue requiring remand is whether the training program today is satisfactory. See ALAB'-772, 19 N.R.C.
at 1239. Instead, TMIA believes that no remand was necessary be-cause, the past events -- which have been litigated -- in its view establish that no training program could be adequate.
C. The Licensing Board's Evidentiary Rulings TMIA maintains that the Licensing Board made four evidentiary errors which prejudiced TMIA. See TMIA Brief, 6 II. An examina-tion of the evidence to which TMIA refers establishes the Licens-ing Board's accommodations to TMIA's failures rather than its pre-vention of opportunities rightfully available to TMIA.19/
19/ It should be noted at the outset that TMIA moved seven exhibits into evidence during the remanded proceeding. Five of the seven were admitted into evidence by the Licensing Board, not-withstanding the Board's repeated reminder and TMIA's repeated failure to have complied with the Board's order that all affirma-tive evidence, including " contradicting and rebuttal documents,"
be identified prior to the commencement of the hearing. Only cross-examination documents, to be used for impeachment purposes such that advance disclosure would frustrate their purpose, could remain undisclosed. Licensing Board Memorandum and Order (Requiring Identification of Proposed Exhibits), October 24, 1984; see e.g., Tr. 31, 985-86, 32,234-36, 32,248-51, 32,305-06, 32,311-13 (Chairman Smith and Judge Wolfe). TMIA did not even raise its noncompliance as a preliminary matter at the beginning of the hearing and identify proposed exhibits at that time, there-by giving to the parties at least some notice of TMIA's case-in-chief documents.
TMIA first maintains that the Board used the lead intervenor concept to prevent TMIA's cross-examination of Licensee's witness-es. TMIA Brief at 5-7; compare LBP-85-15, slip op. at 6 n.2 ("Be-cause of TMIA's failure to cooperate," the lead intervenor process "was not successful."). TMIA cites transcript pages 32,410-11 (Bradford) as an example of the Licensing Board's alleged miscon-duct. The cited discussion, however, in fact establishes the uncooperative approach of TMIA toward the lead intervenor concept which the Licensing Board had adopted and, until the evidentiary proceeding, TMIA had endorsed. Memorandum and Order on Lead In-tervenors, July 13, 1984; see TMIA Brief at 5 ("TMIA agreed to use the lead intervenor concept"). Pursuant to that approach, TMIA denominated itself the lead intervenor on Licensee's response to past training deficiencies and on management and operator atti-tudes. Id. at 2. It was permitted to serve as lead intervenor "to the extent that ALAB-772 and [the Licensing Beard's] July 9 order authorizes an inquiry into cheating and integrity as it re-lates to training." Memorandum and Order on Lead Intervencrs, July 13, 1984, at 3. In contrast, UCS proposed to challenge the technical quality of the training and examination process. Id. at 2-3. At the re*ferenced transcript pages, Judge Smith appropri-ately inquired about intervenor consolidation, in accordance with the lead intervenor concept, at the beginning of cross-examination of a new panel of witnesses. The cited material does not in any way indicate that TMIA was prevented from pursuing a line of ques-tioning.
In fact, when it became TMIA's turn to cross-examine this panel, TMIA immediately began with a line of questions directed at the heart of UCS' issues -- the administration of on-the-job training checkouts at TMI-1. See Tr. 32,644-54 (discussion among parties and Board). TMIA admits that "TMIA and UCS were focusing on the same aspect of Licensees' training program'at about the same time . . . ." TMIA Brief at 6. However, because of the nu-ance that TMIA preferred, it had declined to consolidate with UCS, See id. But this is precisely the purpose of designating lead in-tervenors in different subject areas. See 10 C.F.R. $ 2.715a; Memorandum and Order on Lead Intervenors, July 13, 1984 at 1-2.
TMIA's inquiry fell squarely within UCS' case; yet TMIA did not make a good-faith effort to consolidate. See id. at 2. Moreover, TMI.A did not argue before the Board as it does now that it was pursuing this line of inquiry in order to impeach Mr. Newton.
Compare TMIA Brief at 6 with Tr.'32,648 (Bradford). It is well settled that absent a serious substantive issue, new arguments raised for the first time on appeal ordinarily will not be enter-tained. See Pennsylvania Power and Light Company (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-693, 16 N.R.C. 952, 956 n.6 (1982), and cases cited therein.20/ TMIA does not even 20/ It is also well settled that a party may not raise an argu-ment on appeal that does not relate to matters raised in the party's proposed findings of fact and conclusions of law. Public Service Electric and Gas Company (Salem Nuclear Generating Sta-tion, Unit 1), ALAB-650, 14 N.R.C. 43, 49 (1981). It is notewor-thy, therefore, that TMIA did not raise any procedural or eviden-tiary arguments in its proposed findings. See TMIA's Proposed (Continued Next Page)
attempt to make this formidable showing. Assuming this were the i case, however, no basis for failing to rely on UCS' lead was pro-vided. In fact, at the hearing, TMIA acknowledged that it had not made any real effort to consolidate its presentation with that of UCS. See Tr. 32,410-11 (Bradford); see also Tr. 31,996 (Bradford).
TMIA's second evidentiary complaint is that there is "no evi-dence" on the record to support the Board's conclusion that commu-nications channels "have appreciably improved morale at TMI " ;
TMIA Brief at 7. TMIA misunderstands the crux of the testimony of Licensee and the OARP Review Committee, as well as the findings of
- the Board, to which it refers. Dr. Long described in great detail the communication avenues which have restored and which Licensee believen will maintain the credibility of the training program and of management. See id., citing Long, ff. Tr. 32,303, at 6-12.
The OARP Review Committee's testimony recognized and endorsed Licensee's efforts to strengthen communications among management, operators, and training staff. See id., citing OARP Review Com-mittee, ff. Tr. 31,749, attached Special Report ("Special Report")
at 75-81. These measures were directed at improving communica-tions and, as a result, the training program and the operators' (Continued)
Findings of Fact on the Issue of Licensed operator Training, ,
February 26, 1985. As a result, TMIA effectively denied the Li-censing Board an opportunity to address these issuon. In short, in addition to their other infirmition, all of TMIA's procedural complaints are untimely.
P-
\
- confidence in it. Improved morale was a beneficial by-product of
4 l that process. See LBP-85-15, slip op. at 42-49. l I !
In this context, TMIA argues that it was prevented from
! probing the adequacy of the OARP Review Committee's approach to
)
{ the communication issue by rejection of its proposed Exhibit 1. l l
l TMIA Brief at 8. TMIA Training Exhibit 1 was a surprise exhibit i i
] made up of a compilation of memoranda about a maintenance worker's ,
i concerns brought to the attention of the Vice President, TMI-1 i
! during a routine plant management / staff interface meeting. The i
j document properly was rejected by the Board because of its multi-1 >
! pie infirmities. See Tr. 31,985-86 (Chairman Smith). TMIA com- l 1
plains that it was " forced" to compromise the value of Exhibit 1 [
by revealing its purpose. TMIA believes this made the witnesses
" evasive." TMIA Brief at 8-9. TMIA is mistaken. When Exhibit i l i l was first produced, purportedly as a cross-examination docu- l l !
ment,21/ TMIA was allowed to use the document to test the OARP !
1 i
1 l 21/ Contrary to TMIA's representations, TMIA did not intend to use its Exhibit 1 as an impeachment document. Rather, it was im-
{ properly attempting to surprise Licensee's counsel and witnesses j by introducing a document into evidence to use as part of its ,
i case-in-chief. This intent became evident when TMIA moved to in- !
j troduce Exhibit 1 into evidence before asking the witnesses a sin- :
.; gle question based on it. Tr. 32,985 (Bradford). TMIA went on to l
! question witnesses about the substance of the document. See Tr. !
31,987-93 (Bradford). As with all of its proposed exhibits, TMIA l J
improperly did not produce Exhibit i until it began questioning !
j witnesses on it at the hearing, contrary to the Board's order !
j requiring identification of proposed exhibits. Tr. 31,985-86; see )
i n.19, supra. TMIA's substantive use of Exhibit 1 also is evident i j from its reliance on the document in paragraph 50 of its proposed !
findings to the Licensing Board, in defiance of the Board's direc- 1 1 tive, and again in Section V of TMIA's appellate brief. See t j i IV.B, infra. Judge Smith specifically notified TMIA when the "
- exhibit was rejected that it was not to uso Exhibit 1 as the basis
j for any of its findings of fact. Tr. 31,995 (Smith). l l l i :
! t i :
_ . . _ _ _ . _ _ _ _ . _ _ ._ _ _ _.- - _ - -- .-_ - m_ _ _ _ . _
i Review Committee's views on the value of the interface meeting as a communication avenue at TMI-1. Tr. 31,987 (Chairman Smith, l
Bradford); see TMIA Brief at 8. Subsequently, TMIA argued that it
! sought the Committee's views on the implications of the substance l
of the document. See Tr. 31,992 (Bradford). The exhibit was to-(
tally unrelated to training. Consequently, its r'elevance sas not apparent. See Tr. 31,978-85 (discussion among parties). With'out i objection, TMIA endeavored to explain the document's relevance. ;
1
( Subsequently, members of the OARP Review Committee were reluctant i to answer an extremely broad question by TMIA that was premised on l
l Exhibit 1. See Tr. 31,989 (Bradford). None of the Committee mem- ;
bers had seen Exhibit 1 before. Tr. 31,987 (Kimel, Uhrig, Chris-tensen, Kelly, Gardner). TMIA's question applied to employees i generally at TMI, not the licensed operators, many of whom the Committee had interviewed. The document itself related to a main-tenance worker. Furthermore, if anything made the witnesses re-Luctant, it was the objection to the scope of the question made by the NRC Staff -- a perfectly legitimate action wholly unrelated to ,
TMIA's " reveal [ing] the purpose it intended for the document."
TMIA Brief at 8; see Tr. 31,989-90 (Wagner).22/ Finally, if TMI A r
truly had valued the sanctity of its line of questioning, it could
! have asked that the witnesses be excused before it explained the l
f 22/ Only Dr. Uhrig, who is a utility management executive gener-ally familiar with NRC procedural compliance issues, was willing ,
tb offer an informed opinion in response to TMIA's general ques- r tion. The other panelists could not answer of their own knowledge r and therefore prudently declined to do so. Tr. 31,989-90 (Uhrig, !
, Gardner, Kelly, Christensen, Kimel).
- t E
I 3
i
significance of the document. It did not do so. See, e.g., Tr.
32,667 (TMIA request that witnesses be excused during discussion of significance of another surprise document). It cannot now argue for the first time that the Board erred in failing to excuse the witnesses on its own.
Finally, even if the Licensing Board should have admitted TMIA Training Exhibit 1 into evidence, which plainly was not i
appropriate or fair to the other parties to do, its exclusion was harmless error. The document establishes the existence of a forum at TMI-1 whereby grievances and concerns are raised. See Tr.
31,992-93 (Kimel); see also Tr. 31,981 (Wagner); see 5 IV.B, infra. TMIA produced no evidence that the response of maintenance managers and the TMI-l Vice President to the maintenance worker's concerns identified in Exhibit I resulted in any decline in the use of this forum. TMIA may have "the perception" that manage-ment's recognition of the chain of command impedes the free flow of information. TMIA Brief at 9. However, the evidence clearly establishes management accessibility to the operators. LBP-85-15, slip op. at 42-49. Furthermore, there is every reason to believe operators are frank in these exchanges. See LBP-82-56, 16 N.R.C.
at 336 (operator interviewed by Hukill after cheating identified to him various rumors).
TMIA's third evidentiary complaint -- about the Licensing Board's curtailment of a line of questioning emanating from anoth-er surprise exhibit, TMIA Training Exhibit 10 -- is particularly inappropriate.23/ Exhibit 10 is a weekly plant status report, 23/ TMIA did not attempt to move Exhibit 10 into evidence, nor does it complain now about the non-evidentiary status of the docu-ment.
dated November 1, 1983, from Mr. Hukill to the President and Exec-utive Vice President of GPU Nuclear. In that report, Mr. Hukill summarized the week's events at TMI-1, including the licensing status of an SRO, Mr. Herman, who had failed several requalifica-tion tests. The exhibit stated that Mr. Herman subsequently had passed the required examination but was continuing to receive spe-cial attention from the Training Department. Based on this refer-ence, TMIA began questioning the witnesses -- the panel of Messrs.
Newton, Leonard and Ross -- about the hypothetical that (i) this individual might have difficulty maintaining his SRO license; (ii) in that event, he would have to stay as an RO-licensed individual and not seek advancement or "take the risk of not having anywhere else to go"; (iii) as a result, the individual would be in a posi-tion where, in TMIA's view, he "might try to defeat the exam pro-cess." Tr. 32,668 (Bradford). Licensee objected to further in-quiry about Mr. Hukill's plant status report and Mr. Herman. Tr.
32,669 (Bauser). TMIA had not identified this case-in-chief docu-ment prior to its use of Exhibit 10 or its interest in pursuing Mr. Herman's career or the career path options of operators. Tr.
32,666-71 (Bradford, Bauser, Chairman Smith); see n.19, supra. To the extent TMIA was interested in circumstances which arguably could motivate individuals to cheat, as the Board made clear, "the entire concept of security for examinations, proctoring, checking for suspicious similarities in answers, all of the safeguards in place with respect to the examination process makes the assumption that . . . some people will cheat if given an opportunity." Tr.
32,669 (Chairman Smith).
Finally, TMIA alleges that the Board erred when it rejected proposed TMIA Training Exhibit 6. The Board was justified in re-jecting Exhibit 6 on numerous grounds. Exhibit 6 is a June 1982 memorandum with attachments from Dr. Robert Long to Mr. Robert Arnold, then President of GPU Nuclear. Attached to the cover mem-orandum are materials related to Licensee's effor'ts to encourage employee cooperation with management and to foster positive atti-tudes in the wake of the cheating hearings. See Tr. 32,298-304, 32,314-17 (Long). Proposed TMIA Training Exhibit 6 was a double hearsay document. Tr. 32,393 (Chairman Smith). It was a memoran-dum from individual A to individual B attaching another memorandum from individual C to individual A which reported " brainstorming" activities -- i.e., clear speculation -- by anonymous other indi-viduals (D, E, F, G, etc.). It also reflected activities-that took place in 1982. Tr. 32,402 (Chairman Smith). No foundation was laid by TMIA for the admission of the document. Even assuming the document was being offered for impeachment purposes, but see Tr. 32,393 (Bradford) (document offered "in response to Licensee's testimony"), its multiple infirmities were fatal. Thus, the Board observed that "it is a very, very difficult document for us to give weight to . . . ." Tr. 32,394 (Chairman Smith).
In plain fact, however, TMIA proferred Exhibit 6 as a case-in-chief document. See, e.g., Tr. 32,305-06 (Chairman Smith).
TMIA's own articulation of its use focused on " methods the licens-ee set in place after the cheating to discovery (sic] just exactly what the attitudes were and how they then went about resolving the problem." Tr. 32,304 (Bradford); see also Tr. 32,386-87, l
1 32,390-93, 32,395 (Bradford). TMIA failed to identify Exhibit 6 before the hearing notwithstanding the Board's order to do so.
Even in its cross-examination, TMIA unabashedly referred to the brainstorming session reflected in the exhibit as substantive evi-
' dence of what " employees feel." Tr. 32,324 (Bradford); but see Tr. 32,324-25 (Long explanation of what brainstorming actually is). In its brief on appeal, TMIA repeats this misuse of the l document (in addition to improperly relying on it after the ;
! L exhibit was rejected). See TMIA Brief at 29, 32. In summary, there were many problems with TMIA Training Exhibit 6, virtually l
! l any one of which was sufficient grounds for the Licensing Board's i t
ruling.
~
In any event, the rejection of Exhibit 6 was harmless error.
I TMIA claims that it was not able to cross-examine Dr. Long as to i the weight he attached to the comments contained in this exhibit. l TMIA Brief at 12. TMIA was allowed to pursue the exhibit with Dr.
Long; yet TMIA instead focused on operator attitudes unrelated to training. Tr. 32,324-29 (Bradford, Long). TMIA failed to address the issue it now raises. Although the Board later rejected TMIA's attempt to introduce Exhibit 6 into evidence, Tr. 32,402 (Chairman j Smith), it did not foreclose genuine surprise cross-examination (i.e., impeachment) using the document. Moreover, whatever weight l Dr. Long attached to the brainstorming that took place, the docu-3 ment reflects management concern about reactions to the cheating events and the Special Master's Report. See Tr. 32,290-304 i
4
(Long). As such, it simply provides another data point estab-lishing Licensee's responsiveness to the cheating, along with the subsequent activities on which Licensee embarked, including the commissioning of the RHR Report. Tr. 32,314-15 (Long); see LBP-85-15, slip op. at 50.
D. The Reconstituted CARP Review Committee UCS objects to the Board's reliance on the testimony of the reconstituted CARP Review Committee. UCS Brief at 21-26. The trailty of UCS' position is readily apparent from UC3' failure to identify, much less establish, any substantive errors in the con-clusions of the Committee.23/ UCS argues, instead, that the Com-mittee's testimony is unreliable because it prejudged the adequacy r
of the training program when it drafted the special Report. Id. '
i at 22-24. UCS is wrong.
The Special Report was drafted in a short period of time and the information initially relied upon by the Committee in its preparation of the report was furnished primarily by CPU Nuclear l management. LBP-85-15, slip op, at 169-70. UCS infers from these facts that the OARP Review Committee was irresponsible for concluding in the Special Report that the training program was adequate, and that the subsequent findings of the Committee, after gathering extensive first-hand information about the program, aro l 1d/ There was one substantivo error in the CARP Review Commit-tee's Special Report, first identified during a UCS deposition, which the Committeo pointed out at the time it took the witness stand. See LDP-05-15, slip op. at 172-73 n.42.
l ,
l l
l l
l
" fatally taint [ed]." UCS Brief at 25. UCS dismisses the Commit-tee's express recognition of the limitations inherent in its Spe- ,
[
cial Report. Id. at 24; see LBP-85-15, slip op.,at 173; see also j Special Report at 3. The Board expressly considered and rejected UCS' argument, reargued on appeal, "that the Committee blinded itself to the inadequacies of the Special Report'and/or that it l
l attempted to hood-wink the Nuclear Regulatory Commission into be-lieving that the Special Report was a thorough, exhaustive study of the issues raised in ALAB-772." LBP-85-15, slip op, at 173.25/
1 It was the Licensing Board's considered judgment that the " Review Committee and its members responded appropriately to the questions put to them in ALAB-772." Id. at 213; see also CLI-85-9, slip op. [
at 38 (While the Special Report "had been limited by time con- f straints," the Committee's subsequent detailed review enabled the !
Committee "to provide assurance that the conclusions reached in the Special Report were correct.")
15/ UCS also asserts that the Board contradicted itself when it ruled that the Committee members had responded appropriately to the questiona put to them in ALAB-772, because it could not find -
that the Committee's findings standing alone would have adequately addressed the remanded issues. UCS Brief at 22. UCS is incor-rect; the Board did not find the Committee's findings inadequate.
Instead, as the Comminston observed, .
f (rlather than attempting to separato the com- 1 mittee's findings and testimony from the other evidence, [the Licensing Board) simply used i those findings in conjunction with other evi-donco in analyzing each issun regarding ,
licensee's training program. The Board in t this regard noted the very high value it placed on the Committoo members' opinions.
- CL1-05-09, slip op, at 39; ano LDP-05-15, slip op, at 212 ("any attempt at separating the Committoo's findings and testimony from other evidence would be a waste of time.")
i
In order to adopt UCS' viewpoint, one must make two assump-tions, the basis for neither of which was established by UCS.
First, one must assume that the conclusions reached in the Special Report (and, thus necessarily, the information supplied by Licens-ee) were faulty. Second, one must then assume that either the Committee lacked the expertise to recognize this' alleged error and was further misled by Licensee, or the Committee lacked the integ-rity to report its findings honestly. In the absence of these as-sumptions, one is left only with the fact that both the Commit-tee's initial and their subsequent assessment of training were ,
based on truthful information, and that the conclusions based thereon, and sworn to under oath, were accurate and reliable. The Licensing Board carefully evaluated the qualifications, testimony and demeanor of the OARP Review Committee. Based on this review, the Licensing Board " valued the members' opinions very highly."
Id. at 212. In particular, "the Board believe[d] that there is scant chance the experts of the Review Committee would permit the training program to incorrectly influence their evaluation given the extraordinary breadth and depth of their experience and training." Id. at 196. UCS proffers no contrary evidence beyond the existence of the " quick response" Special Report.26/ As the 26/ UCS does allege that the committee's testimony before the Li-censing Board was colored by perceptions of obvious self-interest.
See UCS Brief at 19. UCS relies here on the fact that the Commit-tee's preparation of the Special Report was based on information supplied by CPU Huclear management, and that this review did not include operator interviews or a review of the RHR Report.
(Continued Next Page)
E Licensing Board stated, "UCS cannot be heard to barrenly challenge the credibility of" Committee members. Id. at 184.
UCS would have had the Committee perform an accreditation-type review of the training program in preparation of the Special Report. See UCS Brief at 21-26; see also UCS' PF at 11 30-57.
However, the Committee's impression of its task was that the Ap-peal Board had sought the collective judgment of the Committee's expert members, not an accreditation of the licensed operator training program. LBP-85-15, slip op. at 169. The Board agreed.
Id. In any event, the OARP Review Committee's review of the cur-rent TMI operator training program was very extensive. See CLI-85-09, slip op. at 38-39 n.53; see also LBP-85-15, slip op. at 168-90 (detailed descriptions of work of the OARP Review Commit-tee). Furthermore, although UCS relies on the views of its ex-pert, Dr. Regan, to challenge the methodology employed by the Com-mittee, after a careful review of the record, it is apparent that there were not "many important functional differences between the (Continued)
UCS fails to identify the fact that the only discussion of operator attitude (in this case, morale) in the Special Report re-lated to the low attrition rate -- an area UCS does not dispute.
Special Report at 46. In fact, in the Special Report, the Commit-tee freely admitted that, "(b]ecause of the limited time avail-able, there was little opportunity to visit with operators or to monitor classes being taught as some Committee members were able to do in 1980." Id. at 73. In short, in the time frame of the Special Report, the Committee did not purport to interview opera-tors. With respect to the Committee's subsequent testimony, UCS fails to identify the fact that it was based, in significant part, on the Committee's interviews of numerous licensed operators and its review of the RHR Report and other related documents.
LBP-85-15, slip op. at 176, 186-87.
i informal approach employed by the Review Committee and the highly structured approach favored by Dr. Regan" or the Staff.
I
! LBP-85-15, slip op, at 194; see generally id. at 168-203. As the i
- Licensing Board observed, "Dr. Regan has described a good method-i j ology for an ideal world . . . . However, given the training pro-l gram at issue here, the Board places a very high'value on the ex-l pert judgments of the Review Committee." Id. at 196.
In summary, the Board very appropriately considered and relied on the views of the exceptionally well-qualified members of
- the OARP Review Committee, in whose views the Appeal Board ex-pressed a keen interest in ALAB-772. See 19 N.R.C. at 1210-11, 1233-36.
t III. INTERVENORS' LIMITED OBJECTIONS TO THE ADEQUACY OF THE TRAINING PROGRAM AT TMI ARE UNFOUNDED i
A. The Oral Examination Process UCS disfavors Licensee's' oral exam process, which is used in conjunction with Licensee's written and simulator exams. UCS l Brief at 26-31. UCS' claims oversimplify the process and, more importantly, fail to overcome the fact that there are fundamental advantages to the subjective oral examination process which cannot be otherwise obtained. See LBP-85-15, slip op. at 131-34.
i UCS maintains that without specific training in the adminis-tration of oral exams, the examiner "may have an interesting con-versation with an operator" or "will tend to do too much talking."
UCS Brief at 27, 31. Thus, there is no assurance that an examiner
.-~ < .__._-.-.. _ _ - _ .--.. _ _ --... - _ _L...-_.._. . . _._____-.__.---,_,_
r I
i is "actually testing an operator's knowledge, rather than reading his own knowledge reflected in the conversation." Id. at 27. UCS claims that the Board ignored this point in relying on Mr. Ross' confidence in the oral exam process.22/
- The Licensing Board recognized the validity of UCS' criti-cisms of oral exams. LBP-85-15, slip op, at 128-30. However, it found that "[e]ach weakness ... has its trade-off in benefit."
Id. at 129. It determined that, "on balance, Licensee's approach was " sound". Id. UCS did not put on any evidence that oral exam-inations are not useful, beyond Dr. Regan's methodological objec-tion to the subjectivity inherent in the process. But as the Li-censing Board explained, Dr. Regan's views are unnecessarily j rigid. Id. at 130-34.
Similarly, UCS maintains that the oral exam process is unreliable because of the potential for the intrusion of extrane-ous personal relationships between the examiner and the examinee.
UCS Brief at 31. UCS provides no evidence of any actual deficiencies within the oral exam process; rather, it again relies i 22/ UCS selectively cites Mr. Ross' testimony on the grading of oral examinations. UCS Brief at 29-30. As UCS asserts, Mr. Ross i
did state that a 60% or even a slight majority over 50% on an oral exam could be a pass; however, he stated that this result would be
" highly unlikely." Tr. 32,611-12 (Ross). However, when first asked if 70% would be a pass, Mr. Ross answered that the answer depended upon the safety significance of the questions answered.
Tr. 32,610 (Ross). He also noted that it would be unlikely that a trainee showing a clear 30% lack of knowledge would pass the exam.
Id. In short, raw numerical score does not correlate with exam i passage. The critical judgment is the significance of the ques-tions answered correctly (and incorrectly). See Tr. 32,608-11 (Ross, Leonard).
I i
on Dr. Regan's methodological stance. Id. at 31.28/ In contrast, the OARP Review Committee valued the oral exam process. Commit-tee, ff. Tr. 31,749, at 19-20, 28-29. The Board recognized that "an articulate test-taker with a congenial personality might fare better than others with equal knowledge." Id. at 131. The Board also acknowledges that there may be problems of subjectivity arising from face-to-face contact between examiners and examineos.
Id. at 131-32. However, the Board concluded that " subjectivity has strengths." Id. at 132. Oral exams provido the opportunity to have a subject-matter expert exploro an operator's knowledge in an open-ended and subtle mannor that cannot be duplicated through written exams or highly structured interrogations. Id. at 129-34.29/ As Licensee explained in the context of on-tho-job training ("OJT") evaluations, the SRon giving the oral exams have three major qualifications: (1) they have gono threugh the licensed operator training program themselves; (2) they are licensed; and (3) they have many years both of exposure to the oral exams and of hands-on operating experience in the plant.
Lic. PF 1 126 citing Tr. 32,474, 32,477 (Ross, Leonard). Further-more, Licensoe's exam process was specifically designed to avoid having a senior shift member conduct oral exams for his own shift.
LBP-85-15, slip op. at 128. Lacking any foundation for believing 28/ Dr. Regan had essentially no knowledge about the TM! training program. See LBP-85-15, slip op. at 130, 29/ In this regard, the Board considered UCS' position to be in-ternally inconsistent: it opposed subjectivo orals but demanded "open-ended testing." id. at 131.
I (
l I t
l that the oral examiners are performing poorly, the Board l justifiably had confidence in the subject-matter expertise of Mr. !
Ross and Licensee's other oral examiners, who are monitored by l :
M. at 178.
Training. Oral examinations provide another useful check on the validity of the whole training process. M. at 132, f
I 134. '
l t UCS also complains about the lack of review of oral examina-l tions, gaining no assurance from the review Training conducts of the oral exam checklist. UCS Brief at 30. Licensee has developed a method to provide useful control over oral examinations. The j operations and Training Departments jointly establish a list of topics to be addressed during an examination. LBP-85-15, slip op. ,
t at 128.3_0/ UCS Training Exhibit 30 is an example of the lengthy l list of oral exam topics. After the exam, the topic list is for-l warded to the Supervisor, Licensed Operator Training for reviews !
the list providos for comments by the examining SRO. See UCS'Tr.
Exh. 30. In addition, Mr. Ross testified that although he does i
not always review the topic list results, he does review certain marginal cases by discussing the exam with the examinee and his ,
supervisor. Tr. 32,604-05 (Ross). If an operator fails his oral l
i l exam, Mr. Ross holds very detailed discussions with the operator l about his knowledge in the arons of weakness. Tr. 32,603 (Ross), t L
I 30/ In the case of oral exams conducted at the completion of soc = l Hons of OJT for new or " replacement" operators, the OJT program I outlines the knowledge levoi required for each of the tasks and the examinor, a licenned SRO, uses the outlinen to estabitsh the t content of the exam, the adequacy of the candidate's response, and [
the overall grade. Newton g al., ff. Tr. 32,409, at 45. t l
f t
In summary, the Licensing Board'found the TMI oral examina-tion process to be "woll structured and logically executed." j LBP-05-15, slip op, at 133. This conclusion rests on a detailed
\
l analysis by the Board which thoughtfully addressed all of the ob-joctions to the process of which UCS now complains.
. B. I,1connee's Written Exam Process I
UCS takes no exception to the written exam process. TMIA al-logos that Licensee's written examination procons is flawed be-l cause the 1904 roqualification exam did not includo questions about a procedural chango lowering the tube-to-shell temperaturo differential in the steam generators. TMIA Brief at 14.31/ While l
it is true that the procedural chango in question was not includod i on this one writter, exam, the operators were drilled and testod on l
j this very procedural change at the simulator. Tr. 33,525-26 j 1 (Loonard) Lic. Pr 9 141; flowton e3 al. , f f. Tr. 32,400 at 33-34.
Licensoo han in placo rpacial AToo training specifically designed ;
to train and test op'entors on proceduros such as this one.
! LUP-05-15, slip op.'n' 115-17. Ilonco, although the specific 1904 roqualification written exam did not include a question on this particular procedural changa,g2/ the change has boon incorporated
),11 In support of this assertion, TM!A again grossly mischaractorinen tho witness' testimony. Compara TM1A Briot at 14 (Mr. tiewton's alleged testimony) with Tr. 337524"(!!owton) (cita- ,
tion on which TMIA relies). Furthermore, this allegation is im- !
- proporly before the Appeal Board as it was not made by TMIA in its !
proposed findings. Ron n.20, ppprA. ;
- 12/ Mr. Hoss dirt think quantion 3 of Uct! Traininy Exhibit 31 re- l j flucted the special traJTing on the steam generators. Tr. 33,527 (Hons). l
- [
i j (
l i
into the training program, and the operators have been tested on
! it.
'TMIA also faults the Board for finding Licensee's exam secu-rity measures to be adequate. TMIA Brief at 14-15. TMIA relies l on NRC Inspection 50-289/85-12, portions of which are attached to i
l its brief. This report is not part of the records accordingly, the Board should give no consideration to TMIA's argument. In any i
j event, the document on which TMIA relies utterly fails to estab-I lish that Licensee's examination security procedures have been j compromised in any way. 85-12 states that a microfiche of records of graded auxiliary operator requalification exams and answer l
l sheets was found in a TM! parking lot. As the Board noted, I
"lsjecurity of Category 1 examinations applies from the time the l questions are assembled yntil final administration and grading."
i
! LBP-85-15, slip op at 61 (emphasis added). The exams are not re-quired to be afforded security after they have been administered 1
i and graded, such as those purportedly found in the parking lot and reported in 85-12.33/ Consequently, TM!A in incorrect in as-i sorting that the exam security procedures had been compromised.
i i
l 33/ In practice, completed exams generally are retained as
- Training Department records. See tiewton g. 31. , f f. Tr. 32,409, 1 at 27, 44, 47; Tr. 32,505 (Leonard); Cpocial koport at 26; ges
! alps 05-12 at 12 (attached to TMIA brief). Moreover, Licensee em-l ploys a procedure designed to avoid significant duplication of
, exam Content from exam to exam. Long & Coe, ff. Tr. 32,209,
] at 20.
j !
f IV. MANAGEMENT'S ATTITUDE IS SATISFACTORY ,
A. Responsibility for Cheating TMIA alleges that the Board erred when it accepted Dr. Long's testimony that he and training management accepted responsibility I for the cheating at TMI-1. TMIA's allegation is based on an al- !
leged inconsistency between Dr. Long's oral and written testimony. !
TMIA Brief at 42-47. As a procedural matter, TM!A did not make this argument in its proposed findings before the Licensing Board.
TMIA, therefore, may not properly present this argument for the first time here. ge3 n.20, gupn .
In any event, TM!A's argument oversimplifies Dr. Long's testimony. The evidence establishes that one individual, Mr. !
l Floyd, is known to have cheated in 1979 Q4/ however, this individ- !
i ual also had a lack of proper respect for training which, in 1979 -
E contributed to his removal as the Supervisor of Operations, TM4-2.
f gu LDP-02-56, 16 N.R.C. at 346. Whether Licensee should have i i
been aware, prior to the cheating episodes in 1981, of a general [
l attitude problem among its operators was an issue litigated in the i i
cheating proconding. Licensee acknowledged at that time that although it know that operators were not happy about being rel- !
iconsed, it had not porconved a general disrespect for the training and testing process. Tr. 32,202, 32,205, 32,209 (Long); !
l 34/ Licensco's management at the timo did not consider Mr. !
Y1oyd's conduct to be choating, although it unquestionably was highly improper. Een LDP-02-56, 16 N.R.C. at 346, 350. ,
l l
l l
r
Tr. 32,167 (Gardner) (in 1980, attitude satisfactory, notwith-standing some resentment at having to be relicensed). It should be noted, as well, that the extent of disrespect that existed in the 1981 time-frame is unclear. As the Licensing Board stated, the vast majority of licensed operators did not cheat. LBP-82-56, 16 N.R.C. at 291, 301. Nevertheless, during the'1982 proceeding, Licensee acknowledged that it had been naive in not thinking more about how the existing pressures on operators could affect their conduct and in error in not properly securing the exam process.
?
Because of questions raised about Dr. Long's accep-Id. at 296.
tance of responsibility, see ALAB-772, 19 N.R.C. at 1233 n.48, in the reopened proceeding on training, Dr. Long personally reaf-firmed these views. Thus, Dr. Long did testify that prior to the discovery of cheating, management was aware of Mr. Floyd's miscon-duct. However, awareness of this particular individual's per-ceived attitudo problem wan'not sufficient to lead management to believe that operators generally would go so far as to cheat.
Thus, there is no inherent contradiction betwoon Dr. Long's oral and written testimony.
B. TMIA's Hintorient Argument Although it is entitled " Management-Employoo Communications,"
Section V of the TM!A Brief is in actuality TMIA's historical analysis of how management actions related to the training of its operators reflect adversely on Licensee's charactor. Licensoo here addressos the merits of TM!A's historical argument.35/
15/ Licensoo proviously has discunned the fact that the issue in tlin romanded proccoding on training was the adoquacy of the (Continued Next Pago)
m Because TMIA's argument strings together totally unrelated events and circumstances which cover a significant period of time, it is extremely disjointed; nevertheless, TMIA's purpose is to show that Licensee's conduct over time, particularly towards its licensed operators, reflects poor judgment and character. A review of the particular events on which TMIA relies, as well a's related evi-dente of record, utterly refutes TMIA's historical argument.
TMIA first focuses on " pre-accident neglect" of the training program. TMIA Brief at 27. Licensee long ago recognized the weaknesses in the TMI training program as it existed in the 1979 timeframe. See, e.g., Long, ff. Tr. 12,140, at 39 ("The OARP was instituted by Licensee on its own initiative to emphasize the les-sons learned from the TMI-2 accident and the recognized need for an extensive and thorough program for licensed reactor opera-tors."); see generally LBP-81-32, 14 N.R.C. at 451-54. It is not significant to "show what, by this time, should not be news to anyone -- that there were significant shortcomings, to say the least, in licensee's training program before the 1979 TMI-2 acci-dent." ALAB-774, 19 N.R.C. at 1356.36/ As the Commission (Continued) )
current training program to support restart of TMI-1. See $ II.B, supra. Consequently, the Licensing Board properly rejected pro-posed TMIA subissue (4), which focused on past events at TMI.
Nevertheless, because Section V of TMIA's brief ignores this ruling, Licensee here addresses the merits of TMIA's historical argument.
36/ Contrary to TMIA's statement, however, the OARP Review Com-mittee, in their 1980 report, did not find "' pre-accident neglect' (Continued Next Page) l l- -- .. -
_a ._ _ _ , _ _ _
recently observed, " Licensee's current training program . . .
bears little resemblance to that pre-accident program."
CLI-85-09, slip op. at 39. TMIA also refers to problems "[i]n the summer of 1979." TMIA Brief at 27. However, TMIA here relies on representations that occurred in April, 1979, see Tr. 32,221
{
(Long, Bradford discussion of statements made in' April, 1979 timeframe), prior to the initiation of the OARP.37/ LBP-81-32, 14 (Continued) of the training program by management to be the probable cause of l the operators' inappropriate actions." TMIA Brief at 27. The l Committee's 1980 report was devoted to a review of the Operator Accelerated Retraining Program, or OARP, not the causes of the TMI-2 accident. TMIA provides no citation in support of its statement. The only reference Licensee has found in the 1980 OARP Review Committee Report to " pre-accident neglect" does not support TMIA. In its discussion of recommendations for the future, the Committee stated, "The Metropolitan Edison Training Department is operating under difficult circumstances; some directly attribut-able to the TMI-2 accident and some due to pre-accident neglect."
Lic. Exh. 27 (in initial TMI-1 management proceeding) (1980 OARP Review Committee Report), at 145-46. This statement is not ad-dressing the causes of inappropriate operator action during the accident. Furthermore, in 1984, the Committee found the very rec-ommendations it earlier had proposed to remedy the problems to which TMIA refers had been fully implemented. See Committee, ff.
Tr. 31,749, at 12-15 and attached Special Report at 32-41. In short, the " pre-accident neglect" identified by the Committee to which TMIA presumably cites has no adverse, and indeed has posi-tive, implications today.
37/ The testimony about " bullshit training" on which TMIA relies was a statement made in a 1979 company investigative interview of Gary Miller, former TMI Station Superintendent. See Tr. 32,224 (Bradford). At the time TMIA began cross-examining Licensee's witness on this subject, Licensee's counsel objected to the line of questioning because it appeared to be eliciting testimony on rejected TMIA subissue (4). Tr. 32,220-21 (Bauser). The objec-tion was overruled when TMIA represented, "That is not the pur-pose." Tr. 32,221 (Bradford). TMIA now imprope'rly uses this sur-prise exhibit as substantive evidence of the very point for which it denied it was putting it to use.
N.R.C. at 452. As such, this reference also precedes the initiation of Licensee's major reorganization and restructuring of licensed operator training at TMI.
TMIA castigates Licensee for its commitment to relicense the TMI-1 licensed operators "[i]n an effort to quell public concern and in hopes that TMI-1 would be allowed to restart . . ." TMIA Brief at 27. TMIA provides no record support for this ulterior motive of GPU Nuclear, although Licensee does not find these attributed motives to be nefarious, as TMIA appears to suggest.
In any event, the record shows a strong commitment by Licensee after the TMI-2 accident to improve operator competence by retraining and retesting -- the OARP and the use of the OARP Re-view Committee are evidence of this commitment. See LBP-81-32, 14 N.R.C. at 451-54; ALAB-772, 19 N.R.C. at 1208-11. Although cheating on the NRC and company exams raised questions about the quality of the training program -- which, indeed, resulted in this remand -- TMIA offers no facts in its brief which support its claim that "the OARP program was incapable of curing the ills of the long-neglected training program." TMIA Brief at 27.
TMIA attempts to indict the OAPP and, coincidentally, the views of Mr. Frank Kelly, an independent consultant who observed OARP classes on heat transfer and fluid dynamics in 1980. See TMIA Brief at 27-28. Mr. Kelly administered mock NRC examinations to the TMI-1 operators at the conclusion of the OARP and subse-quently became a member of the 1984 . constituted OARP Review Com-l mittee. See LPB-85-15, slip op. at 167-68. The documents on 1
which TMIA relies are 13 attendance forms filled out by TMI in-structors in the 1980 time-frame on which a space was provided to comment on a particular session of training. TMIA Tr. Exhs. 3A-M; see Lic. PF V 63 n.21. What the evidence in fact establishes is that seven of the forms on which TMIA relies relate to one crew during one week of training, in October, 1980. Tr. 32,950 (Newton). This training was not part of the OARP -- it occurred after OARP's completion. See LBP-81-32, 14 N.R.C. at 452; Tr.
32,268 (Newton). In fact, none of the instructors reflected in TMIA Training Exhibit 3 taught during the OARP. Compare Tr.
32,268 (Long) with Lic. Exh. 27 (in initial TMI-1 management pro-ceeding) (1980 OARP Review Committee Report), Table 6-3. More-over, Exhibit 3 reflects dissatisfaction with classes taught by two contractors (11 of the forms), and two Operations personnel (2 of the forms). Tr. 32,268 (Long). All but three of the forms re-flected sessions that included TMI-1 and TMI-2 licensed and auxil-iary operators, the latter of which may have found the subject matter beyond the scope of their job. Tr. 32,956 (Newton). This combined classroom format no longer exists at TMI. Id. Further-more, Licensee's review of one hundred thirty of these forms, dated August to December, 1980, established only five additional forms which reflect operator dissatisfaction. Tr. 32,957-58 (Leonard). In short, the evidence on which TMIA relies utterly fails to indict either the adequacy of the OARP -- TMIA's ostensi-ble purpose -- or the adequacy of subsequent training at TMI.
Furthermore, to the extent TMIA is questioning whether Licensee in
the past fostered communication among management, operators and training staff, these forms constitute tangible evidence of such communication. Tr. 32,269 (Long); Tr. 32,271 (Chairman Smith).
TMIA next turns to the 1979 Floyd incident, in which the TMI-2 Supervisor of Operations utilized in his own take-home make-up requalification test several answers prepared by Mr. O, an SRO who subsequently assisted Mr. W in cheating on the 1981 NRC exami-nation. TMIA Brief at 28-30; see LBP-82-56, 16 N.R.C. at 344-45.
TMIA argues that in contrast to Mr. O and Mr. W, Mr. Floyd was not penalized; instead, TMIA maintains, he was protected by the com-pany to the point that " management went to considerable length to cover up the incident." TMIA Brief at 29. TMIA's argument is not supported by the record and is inaccurate.
At the time of the Floyd incident, Licensee recognized that Mr. Floyd's conduct reflected very poorly on his judgment and sanctioned him accordingly. LBP-82-56, 16 N.R.C. at 345-48; ALAB-772, 19 N.R.C. at 1230-1231; see 5 I, supra. TMIA relies on an OI investigative report that is not in evidence to support its
" cover-up" charge.3g/ The Licensing Board previously concluded that the certification of Mr. Floyd to the NRC improperly failed to identify Mr. Floyd's misconduct. LBP-82-56, 16 N.R.C. at 3g/ The OI report is one of two bases on which TMIA relied in a May 29, 1985 motion to reopen the record which currently is pend-ing before the Appeal Board. CLI-85-09, slip op. at 42 n.59; see OI investigation report H-82-002 (released February 1, 1985).
Licensee's response to TMIA's motion addresses this allegation.
See Licensee's Answer to TMIA's Motion to Reopen the Record for the Purpose of Receiving Additional Information, May 29, 1985.
348-55. The OI report does not establish any deliberate attempt to cover-up Mr. Floyd's actions. Moreover, the record shows that l
the incident was first brought to the NRC's attention in 1981 by l Mr. Robert Arnold, then President of GPU Nuclear. Id. at 355.
As to any " disparate treatment" among TMI employees, Licensee i'
immediately recognized that Mr. O and Mr. W's conduct was intoler-able. See, e.g., LBP-82-34B, 15 N.R.C. at 994. Surely if Licens-ee had not so recognized, seemingly contrary to their present view, TMIA would have found extraordinary fault with Licensee, ir-respective of whatever sympathies fellow operators might have ex-pressed towards O and W. See TMIA Brief at 29-30. In the case of Mr. Floyd, Licensee had been persuaded by the principals involved that because of the conspicuousness of Mr. Floyd's actions, there had been no attempt to mislead, which seemed to be a necessary el-ement of cheating. LBP-82-56, 16 N.R.C. at 345-46. The Licensing Board did not agree with this analysis. Id. at 346. However, it found no bad faith on Licensee's part, as TMIA suggests, in Licensee's maintenance of that view. It is ironic, indeed, that TMIA castigates Licensee for not firing Mr. Floyd immediately, and then goes on to fault Licensee for "sacrific[ing] its employees for the sake of public relations." TMIA Brief at 30. TMIA's two-sided approach makes plain TMIA's strategy of indicting Licensee's judgment, whichever way it is exercised.
Thus, TMIA next infers selfish conduct -- presumably, evi-dence of poor character -- from the stipulation between the Com-monwealth of Pennsylvania and Licensee concerning Mr. Charles
Husted, a former TMI-1 licensed operator and member of the Training organization. TMIA Brief at 30-32; see ALAB-772, 19 N.R.C. at 1221-24; Appeal Board Memorandum of December 22, 1983 (unpublished). The motivation of Licensee in entering into a stipulation, after the Commonwealth filed an appeal strenuously opposing Mr. Husted's serving in a licensed cap acity at TMI-1, has never been an issue in this proceeding. TMIA's sheer speculation on this subject is improper, irrelevant and, incidentally, in Licensee's view, wrong.39/ Moreover, TMIA relies on the results of a 1982 company brainstorming session by non-operators about possible reactions by the licensed operators to the Special Mas-ter's Report reflected in a proposed but rejected TMIA exhibit.
See Tr. 32,402 (Smith) (TMIA Tr. Exh. 6 rejected); see $ II.C, supra.40/ This bootstrap of TMIA's rank speculation to anonymous (but deliberate) speculation constitutes a particularly gross ex-ample of unsupported argument. As to the stipulation about Mr.
Husted, there is no evidence that it adversely affected other licensed operators or was not a reasonable action taken by 39/ Mr. Husted has responded affirmatively to an opportunity for a hearing afforded to him by the Commission and that proceeding is pending. See CLI-85-02, 21 N.R.C. 282, 317 (1985); letter from counsel for Mr. Husted to the Commission, March 25, 1985.
40/ It also is disingenous for TMIA now to castigate Licensee for its decision to remove Mr. Husted from licensed duties when, in its appeal of LBP-82-56, TMIA argued that the Licensing Board had
" grossly abused its discretion" by failing to do that very thing (as well as failing to remove Mr. Husted from the training staff).
TMIA Brief in Support of Exceptions to Partial Initial Decision of August 2, 1981 and July 27, 1982 - Management Issues and Reopened Proceedings, September 30, 1982, at 53.
Licensee. As to the brainstorming session to which TMIA refers, this evidence does not establish " low morale of operators" at TMI today or arguably even at the identified low point after issuance of the Special Master's Report. See generally, 9 V, infra.
TMIA's final Section V argument, concerning TMIA Training Exhibit 1, is equally if not more infirm than TMIA's other argu-ments. TMIA challenges the effectiveness of the numerous communi-cation mechanisms in place at TMI-1 today by reference to a 1983 memorandum which appears to reflect management's handling of one communication from a maintenance worker to management. See TMIA Brief at 32-42. TMIA Training Exhibit 1 is a rejected exhibit; TMIA's reliance on it to establish facts on which this Appeal Board should rely is improper. Tr. 31,995-96 (Chairman Smith);
see $ II.C, suora.41/ However, even as an impeachment document, Exhibit 1 confirms rather than refutes the availability of a forum at which individuals, in this case, a maintenance worker, can and do bring up subjects troubling them. TMIA suggests that 41/ TMIA was reminded during its cross-examination on this very exhibit that "The way you are going about it is not a cross-examination way but it's [to] try to get the substance of the letter into evidence, which we decided that you are not al-lowed to do for this purpose." Tr. 31,992 (Chairman Smith); see also Tr. 31,995-96 (Chairman Smith). Once again, TMIA substan-tively relies on a document for the purpose of establishing the truth of the matters contained therein, e.g., "[m]anagement's han-dling of the interv.ew," what the maintenance worker, Mr. Witman, was asked with respect to procedural violations, whether "proce-dures were not follo ed," etc. TMIA Brief at 38. Obviously, be-cause the exhibit was not admitted, Licensee did not, nor would it have been appropriate for it to have introduced evidence to rebut factual inferences TMIA drew from it.
TMIA's arguments on appeal are no more legitimate than its initial effort on this subject be-fore the Licensing Board.
management's response to the incident was intimidating and there-fore employees now would not use the available communication chan-nels. TMIA Brief at 38-41. But TMIA offers no evidence to sup-port this suggestion and witnesses testified to the contrary.
See, e.g., LBP-85-15, slip op. at 42-43 (reference to testimony about meetings at which instructors and trainees ' expressed con-cerns about new examination security procedures). The importance of effective communication avenues among management, training staff and the operators was focused upon by Licensee, addressed in the proceeding, and endorsed by the Licensing Board as one of the critical elements of the correct response to cheating. LBP-85-15, slip op. at 37. After reviewing the actions Licensee has taken since 1982, the Board reached the following conclusion:
The OARP Review Committee found extensive evi-dence of effective communications between man-agement and persons involved in the licensed-operator training program. The Board is encouraged by the many avenues of apparently open communication between management and operating and training personnel which did not exist at the time of cheating. We agree with the OARP Review Committee that this enhanced communication is well conceived and find it to be an appropriate response to the cheating in-cidents. --
Id. at 48-49 (citation omitted); see generally id. at 37-49.
TMIA argues that " actions speak louder than words," and that
"[d]espite Licensee's claim that it now has in place methods of communication whereby management understands and responds to the concerns of its employees, Licensee is, in fact, continuing its policy of saying one thing while doing anotner." TMIA Brief at 26, 32. TMIA is wrong. TMIA's rambling thesis about past and present events at TMI either is irrelevant to, or fails effec-tively to address the efficacy of the numerous communication chan-nels established today among management, training personnel and operators at TMI. See LBP-85-15, slip op. at 42-49. These chan-nels are not "words"; they are specific concrete mechanisms which foster better understanding among the participants of each other's ideas, perspectives and problems. They include such things as meetings, the use of outside reviewers, senior management visibil-ity in and oversight of training, bi-weekly reports, and Opera-tions management involvement in training. Id. TMIA offers no alternative communication methods it believes Licensee should uti-lize; it prefers to summarily indict Licensee's major commitment to effective communications at TMI.
In summary, TMIA's historical argument fails to establish acts of bad character by Licensee. TMIA only demonstrates that there existed a weak pre-accident training program at TMI and past incidents of cheating. Even if the historical events on which TMIA relies were relevant, which they are not, they do not estab-lish any adverse evidence beyond those facts which "should not be news to anyone." ALAB-774, 19 N.R.C. at 1356.
V. TODAY, OPERATOR ATTITUDES AT TMI-l ARE SATISFACTORY Both UCS and TMIA challenge as baseless the finding by the Licensing Board that the attitudes of licensed operators toward the training program are today satisfactory. UCS Brief at 15-21; TMIA Brief at 16-26; see LBP-85-15, slip op. at 49-60. UCS and TMIA generally contend that the Board erred in its reliance on testimony by Michael Ross, Manager of Plant Operations, and by the reconstituted OARP Review Committee concerning operator attitudes, as well as in its use of the 1982 RHR Report. I_d . A review of intervenors' arguments, however, unquestionably establishes that the findings and conclusions of the Licensing Boa'rd are well-founded.
l As a preliminary matter, notwithstanding the intervenors' broad brush approach to the significance of operator attitudes today at TMI-1, see, e.g., UCS Brief at 18, 20 and TMIA Brief at 18, 23, operator attitudes are relevant to this proceeding, if at all, only as they relate to training. The remand was precipitated by "the Licensing Board's failure to reconsider, as promised and in a meaningful way, its earlier finding that licensee's training program was ' comprehensive and acceptable'." ALAB-772, 19 N.R.C.
at 1233. The broad issue on remand thus was the adequacy of the training program to prepare the TMI-l licensed operators to oper-ate the plant safely. See, e.g., Licensing Board Memorandum and Order Following Prehearing Conferenc LJ uly 9, 1984, at 2-3; see generally 6 I.A, supra. Consequently, operator attitudes as they affect training -- and the subset of attitudes, operator morale --
are the only attitudes possibly relevant to the remand.42/
4_2/ It remains unclear whether operator attitudes towards training constitute reliable evidence of the quality of the pro-gram. The Board looked to operator attitudes only "as one indica-tor of the effectiveness of communications." LBP-85-15, slip op.
at 50. As UCS' expert witness, Dr. Regan, observed, students' (Continued Next Page)
TMIA cites the RHR equation - " Safe Performance = Operator Motivation (Attitude) + Operator Capability" -- in support of its conclusion that "[n]o matter what the quality of the training, without appropriate employee attitude, there can be no assurance of safety." TMIA Brief at 23, citing UCS Tr. Exh. 6 at 6. See also TMIA Brief at 26. TMIA cannot find from this equation the conclusion it seeks -- i.e., poor attitudes exist and will hamper safe operation of TMI-1. Neither TMIA nor UCS have presented any evidence that shows that current operator attitudes towards training (or anything else!) are unsatisfactory.43/ Significant contrary evidence does exist. See V.B., infra.
A. The RHR Report Both UCS and TMIA focus on the RHR Report to challenge the Licensing Board finding that " operator attitudes are today satis-factory." USC Brief at 15-21; TMIA Brief at 16-26; see LBP-85-15, slip op. at 59. Intervenors' arguments are unpersuasive.
(Continued) views of their instructors may indicate the students' enjoyment of the class, but not necessarily their retention of necessary knowl-edge. Tr. 32,773 (Regan). In short, there may be no correspon-dence between attitude towards training and training effective-ness. Nevertheless, the Appeal Board expressed a concern about operators' views of and, particularly, respect for the training program, see ALAB-772, 19 N.R.C. at 1234; the parties focused on the issue at the hearing and in their findings, see Lic. PF 11 212-22, UCS PF 288-296, TMIA PF t 40-47, Pa. PF 15 11-14, NRC Staff PF 5; and the Licensing Board addressed the issue in its decision, LBP-85-15, slip op. at 49-60.
i 43/ UCS deposed a number of operators but decided not to call them as witnesses. TMIA did not endeavo; to do so.
The RHR Report summarizes the findings of psychologists hired by Licensee to survey operator attitudes at TMI-1 and Oyster Creek in 1982, after the issuance of the Special Master's Report and the 1982 Licensing Board decision on cheating. Id. at 50; see Tr.
32,038-40 (Gardner, Kelly). After the events which led to these decisions, Licensee legitimately was concerned about the morale and attitudes of its operators. See LBP-82-56, 16 N.R.C. at 301, 337, 383. The limited purpose of the RHR Report was to elicit op-erators' feelings about subjects of interest to them. Tr.
32,038-39, 33,293 (Gardner).44/
Both UCS and TMIA cite with approval the statement by the Board that "[t]he RHR Report contained many references critical of management and indications of serious problems of employee atti-tude." TMIA Brief at 22; UCS Brief at 16. As the Licensing Board observed, the RHR Report identified a number of troubling atti-tudes and views by operators. What is not acknowledged by the in-tervenors, however, is that Licensee took the initiative both to discover those views and to respond to them fully. See Lic. Tr.
Exh. 1 (step-by-sten _ analysis of Licensee response to RHR Report);
LBP-85-15, slip op. at 58. This demonstrates not only management initiative and desire to improve communications with its opera-tors, but a likely improvement in operator attitude and morale because of Licensee's expression of concern and responsiveness to 44/ The RHR Report was not designed to eliminate " invalid," or incorrectly founded, feelings. See ALAB-738, 18 N.R.C. 177, 198 (1983) (RHR report is "one-sided"); see generally Lic. PF 220.
identified problems. See LBP-85-15, slip op. at 58-59; see also UCS Tr. Exh. 6 (RHR Report) at 15 (management should take action in response to this effort in order "co hold down operator turn-over," i.e., to improve morale). As the Board stated, "these self-improvement efforts should not be discouraged by over-reaction to them." LBP-85-15, slip op. at 59, referencing ALAB-738, 18 N.R.C. at 199. Intervenors' arguments represent pre-cisely such an over-reaction.45/
Both UCS and TMIA fail to acknowledge 46/ the positive atti-tudes reflected in the RHR Report. See LBP-85-15, slip op. at 52-53.47/ Furthermore, although the RHR Report served a useful 45 In a recent decision, the Appeal Board observed that it was "e/ntirely appropriate" to consider an applicant's successft.1 reme-dial actions in connection with allegations about management's character and integrity. Louisiana Power & Light Comoany (Wa-terford Steam Electric Station, Unit 3), ALAB-812, 22 N.R.C. ,
slip op. at 84 n. 64 (July 11, 1985). "Not to do so would have the undesirable effect of discouraging rpplicants and licensees from promptly undertaking such corrective measures." Id.
46/ In'its criticisms of Mr. Ross' rasponse to RHR, UCS does admit that "a large majority of operators at TMI believed that procedures were being followed." UCS Brief at n.2.
47/ For example, 100% of the TMI-1 operators surveyed felt the licensing process is necessary; 95% felt that they learned useful material while preparing for their requalification exam; 79% felt that the content of the last requalification exam was job rele-vant; 78% felt that the training and testing programs have helped them be a more effective operator; 90% thought Licensee has a major commitment to training; 86% felt training has been improving; 96% were or would be proud to be licensed operators; 86% felt it was worth the effort and demands on them to be a licensed operator; 86% thought that the present morale was good; 100% of the surveyed operators stated that they were committed to quality performance; 93% had confidence in the plant management; 93% disagreed that safety got too high a priority at TMI-1; 97%
felt that they understood their job responsibilities and that (Continued Next Page)
purpose to Licensee, it suffered from a number of infirmities.4R/
The Report was not presented in a skilled survey format. Id. at
- 53. The Appeal Board also had misgivings about the RHR Report, noting that a co-author had referred to it as "one-sided," and as reflecting a survey with possibly " confusing" questions and re-sponses. ALAB-738, 18 N.R.C. at 198-99.49/ It is ironic that UCS, which throughout the remanded hearing has been insistent that surveys, interviews, examinations, and other methods of ascer-taining information be formal, structured, and scientific, in its brief on appeal is relying so heavily on this methodologically in-firm " initial stage of a much larger consulting activity," which (Continued) these responsibilities had been made clear to them; and 86% felt that they had management support in helping to do their job. UCS Tr. Exh. 7 (RHR Report survey data for TMI-1), questions 1, 14, 17, 18, 19, 29, 50, 51, 55, 66, 115, 134, 135 and 138.
43/ The NRC Staff psychologist testified that there were serious infirmities in the Report, e.g., the questionnaire used and the Report itself contain many ambiguities. LBP-85-15, slip op. at 53, citing Tr. 33,206 (Morisseau); see also Lic. PF 221. For example, RHR may not have appreciated that operators were com-plaining about an administrative rather than an operating proce-du'r's? Tr. 33,216 (Buzy). The RHR Report also combined operator attitudes and consultant impressions.when generally describing what was found. Tr. 33,217 (Morisseau). The NRC Staff would not use the RHR interview process to solicit information. Tr.
33,215-16 (Morisseau). Mr. Ross, as well, had " trouble reading the RHR Report because of the slightlies and greater than's and less than's." Tr. 32,588-89 (Ross).
49/ The Licensing Board observed that neither intervenor men-tioned a passage from the RHR Report which cautioned that, "There is always griping about management among the rank and file and a good deal of this cannot be taken at face value. Management is a convenient target . . . ." LBP-85-15, slip op. at 53; UCS Tr.
Exh. 6 at 34.
was not a fully scientific study from which supportable conclu-sions could be reached. See ALAB-738, 18 N.R.C. at 198; see generally Tr. 33,192-246 (Morisseau, Buzy).50/
UCS recognizes that the RHR Report is not determinative of current operator attitudes. UCS Brief at 16. However, the above evidence also indicates that the Report may not be determinative of operator attitudes in the 1982 timeframe, either. UCS, never-theless, asserts that the RHR Report represents "the only signifi-cant data point" from which to determine trends in attitudes and adds that "[e]ven the Staff agrees with UCS on that point." UCS Brief at 16, citing UCS PF 1 291. There is no mention of the NRC Staff in UCS PF 1 291. Indeed nowhere in the record does the NRC Staff agree with UCS that the RHR Report is "the only significant data point." Rather, the Staff testified that the RHR Report, like the NRC Staff's subsequent assessment of operator attitudes, represents a " benchmark" in the sense that it measures attitude at one point over time. Tr. 33,235 (Persensky); see LBP-85 15, slip op. at 54. As Dr. Gardner testified, there were four attitude-related data points (or, in Dr. Persensky's phraseology, 50/ The intervenors also omit reference to the fact that, after the completion of their survey, the RHR authors concluded that among the operators there was "a largely positive picture on motivation." with one " area of concern," which appears to be oper-ator morale at Oyster Creek. See UCS Tr. Exh. 6 (RHR Report) at 6. " Operators have pride in their position, they want to do a good job and have a strong sense of responsibility. They agree with the high priority given to safety . . . . Over 90% of the operators at TMI agree that their morale is good." _I d . In short, it is not " incredible" that Mr. Ross felt that the RHR Report was "very good and very positive about TMI." See UCS Brief at 18, citing Tr. 32,573 (Ross).
w
" benchmarks"): 1) data collected by the reconstituted OARP Review Committee (1984); 2) data collected by the NRC Staff and reported to the OARP Committee, including material presented by Ms.
Morisseau (1983); 3) the RHR Report (1982); and 4) data collected by the original OARP Committee (1979-1980). Tr. 33,294 (Gardner);
see also Tr. 33,234-45 (Persensky). The RHR Repo'rt thus is simply one datum in a continuum. See LBP-85-15, slip op. at 54. UCS' expert, Dr. Regan. himself explained that "the importance of these measures is not so much the answers at any one time but the trends in the answers." Regan, ff. Tr. 33,532, at 14; UCS PF V 142. In sum, whatever reliability one accords RHR's findings, "[t]he im-portant point . . . is that all agree that attitudes change."
LBP-85-15, slip op, at 59.51/ The most recent data point indi-cates a positive trend.
B. Current Attitudes UCS and TMIA challenge the Board's partial relis tce on Michael Ross in support of its findings on current operator atti-tudes. UCS Brief at 15-19; TMIA Brief at 16. UCS' analysis is faulty; indeed, it reduces to a classic non sequitur: 1) Ross did 51/ TMIA, however, berates the Board for their "speculat[ ion) that employee attitudes are " changeable" and that " swings probably occur in much shorter cycles -- weeks, months -- depending upon perceived good and bad news." TMIA Brief at 24. According to TMIA, "[t]here is absolutely no evidence to support such a find-ing; in fact, the evidence supports an opposite view." Id. This statement is incorrect. All of the testimony on this subject sup-ports the conclusion, summarized by Dr. Gardner, that "[alttitudes tend to be rather transient, in that they change rapidly." Tr.
32,039 (Gardner); see generally UCS PF 11 142, 288, 291.
not consider the RHR Report findings to be particularly comprehen-sible er insightful; 2) Ross states that attitudes in 1985 are good; therefore, in UCS' view, 3) Ross is unreliable.
UCS argues that "Mr. Ross seems incapable of believing that anything can reflect badly on TMI." UCS Brief at 18 n.2.52/ This simply is not true. The Licensing Board did criticize what it be-lieved was " unrealistically defensive" testimony by Mr. Ross about the RHR Report. LBP-85-15, slip op. at 54. However, after care-fully reviewing Mr. Ross' testimony, the Board concluded that Rosa' views on operator attitude were reliable. Id. at 56-57, 59.
The Board's conclusion is well-founded. Mr. Ross stated that he has close and regular contact with the licensed operators every day, both in training and in the control room. Id. at 55. He pointed to the steady improvement on weekly quizzes and requalification exams as an indication of a more positive approach to trainee participation and noted that other managers in Opera-tions and Training share his view. Id.53/ Mr. Ross observed that 52/ UCS also faults Mr. Ross for not following up personally on the RHR Report. UCS Brief at 17. Mr. Ross was not concerned about the RHR Report findings because he had a first-hand appreci-ation of the operator attitudes reflected in the the RHR Report, and he knew what the problems were. Tr. 32,566-72 (Ross). Given the extensive company effort responsive to RHR, Ross was not ignoring the problem of operator attitudes; he knew management was working to address it. LBP-85-15, slip op. at 56; Tr. 32,589, 32,566 (Ross); see Lic. Tr. Exh. 1.
53/ Similarly, Committee member Frank Kelly testified that the failure rate for the 1982 and 1983 requalification exams was con-siderably lower at TMI than at some other facilities not only be-cause the TMI training program is very well established and well implemented by qualified Training and Education management and staff, but also because operators were motivated to do well on exams. LBP-85-15, slip op, at 183 n.43.
the low attrition rate (no operator lost through resignation in years) indicated good employee morale. Id. While acknowledging that operators inevitably and appropriately always will have some negative comments about training, Mr. Ross concluded that the TMI-1 operators shared with him the view that the licensed opera-tor training program is of high quality and is accepted by the licensed operators. Id.
UCS maintains that Ross' views are unreliable because he has made no " systematic effort" through "particular interviews" and a
" structured survey" to ascertain operator attitudes. UCS Brief at
- 19. UCS' " mechanical" position suggests that the testimony of any witness with first-hand knowledge of a situation is unreliable un-less he had gained this knowledge through a highly structured in-terview process. Cf. LBP-85-15, slip op. at 131. Such a require-ment is at odds with basic evidentiary principles of competency and reliability. As for Nr. Ross' " blind optimism", during the cheating hearing he forthrightly admitted that his operators were
" bitter" about the repeated need to take NRC examinations.
LBP-85-15, slip op. at 56; see also LBP-82-56, 16 N.R.C. at 383 (Ross acknowledgement that attitude problems existed in 1982 but were being addressed).54/
54/ In the context of the issue of TMI-1 leak-rate falsification, UCS has argued strenuously that Mr. Ross is "a stickler for de-tail." UCS Brief in Response to CLI-84-18 at 37, quoting NUREG-0680, Supp. 5, at 5-6; see also CLI-85-2, 21 N.R.C. 282, 309 (1985). It is oxymoronic for UCS to characterize its " stickler for detail" as " blindly optimistic."
Both the intervenors also dismiss the Board's reliance on the views of the OARP Review Committee about operator attitudes.55/
TMIA argues that "the Committee made an equally optimistic ap-praisal of operator attitude" in its original 1980 Report, and that employees are not willing "to express their true feelings regarding management and training to such enthusiastic advocates" of GPU Nuclear management. TMIA Brief at 19. TMIA offered no ev-7 idence and suggests none now to support its thesis that operators were not honest during their interviews with Committee members.
55/ TMIA also claims that the Licensing Board " failed to recog-nize the importance of probing the cause for poor employee atti-tude and morale." TMIA Brief at 24. The precise portion of the record that TMIA cites in support of this factual assertion is "Tr. 32,238 (Smith)." At the referenced transcript citation, the Chairman was assisting TMIA in its cross-examination effort. Spe-cifically, Judge Smith clarified for TMIA that Licensee previously had conceded that there had been an attitude problem toward the training program which, along with lack of security procedures, contributec to the cheating. TMIA therefore did not have to es-tablish this point from scratch. See Tr. 32,237 (Bradford, Chair-man Smith). This colloquy in no way reflects a failure by the Chairman to recognize the importance of probing the cause for poor employee attitude and morale.
TMIA also assails Judge Smith's concern about how the hearing process might be adversely affecting operator attitude and morale.
It is not true that "(a]ny party who raised a question, which in the Chairman's view, might impact adversely the interests of an individual in Licensee'e employ, was subjected to similar intimidating treatment by the Chairman." TMIA Brief at 25; see, e.g., UCS' case-in-chief on Messrs. Walsh, Moore, and Olive, re-flected in LBP-85-15, slip op. at 135-40. Moreover, confronted with similar arguments in the context of a motion to disqualify Judge Smith, the Commission was " convinced that Judge Smith is im-partial." CLI-85-5, 21 N.R.C. 566, 568 (1985). As the Commission observed, " Judge Smith's convictions on . . . the importance of the manner it. which individuals are treated generally, both in NRC proceedings and in criminal trials, do not deserve any Commission criticism." Id. at 568-69. These observations are fully applica-ble here.
In fact, when directly asked about this, Dr. Gardner, who is a psychologist, stated that while it was theoretically possible that operators were not candid during the interviews, he felt that he or his fellow experienced intervie ir would have detected such an approach and did not; he believed the operators were candid. Tr.
33,279 (Gardner); see LBP-85-15, slip op. at 57; 'see also Tr.
33,290 (Jordan, Gardner). Moreover, contrary to TMIA's character-ization, in 1980 the Committee identified numerous, specific areas in which they recommended improvement, including " communication between management and staff."5s/ ALAB-772, 19 N.R.C. at'1211.
As Dr. Uhrig stated, "If you go back and read [the 1980 Report),
you will note that there are extensive comments about the inadequacies in different areas, and recommendations as to what should be done to correct those inadequacies. So, I would point out that we are already on record as being critical of the licens-ee in a-variety of areas." Tr. 32,128 (Uhrig).
TMIA further states, "The Board admits that the OARP Review Committee did not thoroughly analyze the concerns raised by ALAB-772," relying on "PID at V 296" to support this assertion.
TMIA Brief at 20. The Licensing Board made no such statement.
Instead, TMIA pejoratively characterizes the Licensing Board's discussion of the Committee's initial Special Report and then im-properly applies that characterization to the entire effort of the Sp/ In 1984, the Committee determined that Licensee had been fully responsive to all of the Committee's 1980 recommendations.
See LBP-85-15, slip op. at 207; Special Report, Chapter III.
Committee, including its extensive subsequent work at TMI. This is squarely at odds with the Licensing Board's findings. See, e.g., LBP-85-15, slip op, at 211 ("It is easy enough to find that the Committee satisfied the remand order in ALAB-772. It provided its very carefully constructed and well-founded opinions on the basic issue and various subsidiary evidentiary questions just as the Appeal Board requested.")
UCS parallels TMIA in questioning the integrity and compe-tence of the OARP Review Committee. UCS uses a shotgun approach.
All of its criticisms were fully considered by the Licensing Board; none were found to have merit.
UCS argues that "[t]here was a virtual imperative for the Committee to support its previous conclusions . . . ." UCS Brief at 20. UCS' argument is based largely on its unsupported belief, with which the Licensing Board strenuously took issue, that
"[h]aving taken a stand favorable to the training program, the Committee could hardly back down." Id; but see $ II.D, supra.
Furthermore, in UCS's view, the Committee " initially reach [ed] its conclusions as to attitudes without interviewing a single opera-tor." UCS Brief at 15; see also id. at 19, citing Tr. 31,818, 31,836-38 (Kelly). TMIA makes a similar assertion. See TMIA Brief at 19. These statements reflect significant confusion about the Committee's work. The Committee did not reach its favorable conclusion on employee attitudes until after the Special Report had been issued and it had conducted extensive interviews with op-erators. See ns.26, 57. Thus, the relevant time period in judging the propriety of the Boards reliance on the Committee testimony concerning operator attitude of course includes all the information gathered by the Committee prior to testifying. As the Board observed in its decision, attitude-related interviews by Committee members were " extensive." LBP-85-15, slip op. at 57.
Indeed, the Committee conducted numerous interviews of GPU Nuclear management and Training and Operations personnel not only to gain first-hand impressions of the quality of the personnel involved in the licensed operator training program, but also to hear their views about and attitude towards training. LBP-85-15, slip op. at 57, 176-78, 180, 185; see Lic. PF 1 245, citing Tr. 32,062-63 (Uhrig); Tr. 32,063 (Kimel); Tr. 32,067 (Christensen); Committee, ff. Tr. 31,749, at 26, 30-31.57/
UCS next maintains that the Committee members inalterably bi-ased the interviews by informing the operators that they were preparing testimony for the restart proceeding. UCS Brief at 20.
UCS is correct that Dr. Gardner readily recognized that it "is en-tirely possible" that in a situation where you are interviewing 57/ In particular, the Committee interviewed 5 licensed operator or simulator instructors, 4 replacement operators, and approxi-mately 27 licensed RO's and SRO's, including all 6 shift su-pervisors, about numerous subjects but, particularly, their atti-tudes about training. LBP-85-15, slip op. at 57; see Tr. Tr.
32,062-63 (Uhrig); Tr. 32,064-65 (Kimel); Tr. 32,067, 32,155, 33,279 (Gardner); Tr. 31,843-4, 31,848, 31,855, 32,068-71 (Kelly, Gardner). Given the extensive nature af these interviews, the Board was fully justified in giving considerable weight to the Committee's conclusion that "the operators recognize the value and have respect for the licensed operator training program, recognize and accept their responsibility as licensed operators to partici-pate in the program, and believe that it is an effective program."
LBP-85-15, slip op, at 57.
l people to determine attitudes, you may have an effect on the in-terviewee's attitude. Tr. 33,290 (Gardner). However, UCS totally ignores Dr. Gardner's follow-up ctatement that while this was pos-sible, "I do not believe it happened." Id. UCS alao argues that
"[ijt is hardly surprising that these operators who strongly sup-port the restart of TMI-l exhibited positive attitudes when they knew that to do so would enhance the likelihood of restart." UCS Brief at 20. There simply ir no record support -- and UCS offers none -- for this finding. In the past, when operators have been dissatisfied, they hardly have been reluctant to say so, notwith-standing any potential " restart" implications of their views.
See, e.g., LBP-82-56, 16 N.R.C. at 295, 361. Now, when there is no evidence of operator dissatisfaction with training, the credi-bility of the operators, and those who have had contact with them, is conveniently disclaimed.
UCS finally ccmplains about the Board's observation that any lingering negative attitudes can be expected to improve once TMI-l restarts. UCS' Brief at 21. The Board, however, did not rely on "the proposition that attitudes will improve once the reactor is restarted." Id. Neither UCS nor TMIA have presented any evidence or made any compelling arguments that current attitudes of licensed operators toward training need to improve. Licensee, on the other hand, offered the extensive and reliable testimony of the OARP Review Committee and Mr. Ross that the attitudes not only have improved since 1982 but "are today satisfactory." LEP-05-15, slip op, at 59. Recognition by the Board that any lingering
negative attitudes ~that might exist in all likelihood will improve after restart does not contradict its finding that operator atti-tudes today are satisfactory.
CONCLUSICN For the reasons stated above, the Licensing Board's decision in LBP-85-15 should be resoundingly affirmed by the Appeal Board.
LBP-85-15 reflects the licensing Board's thorough evaluation e r the licensed operator training program in place today at TMI-1.
Respectfully submitted, O M s./b /b<<<CV Ernest L. Blake, Jr., P.C.
Deborah B. Bauser Wilbert Washington II -
John N. Nassikas III Shaw, Pittman, Potts & Trowbridge 1800 M Street, M.W. -
Washington, D.C. 20036 (202) 822-1000 Counsel for Licensee August 5, 1985
APPENDTX A Cross-Reference to UCS Brief Addressed in Licensee's UCS Brief Section(Pages) Brief at Section(s)
I.A. (9-11) II.A I.B. (11-13) II.A I.C. (14) II.A II. (15-21) V.A; V.B III. (21-26) II.D IV. (26-33) III.A A-1
APPENDIX B Cross Reference to TMIA Brief Addressed in Licenseo's TMIA Brief Section(Pages) Brief at S_ection(s)
I. (2-5) II.B II. (5-13) II.C III.A. (13-14) III.B III.B. (14-16) III.B IV.A. (16-18)
V.A IV.B. (18-22) I; V.A; V.B IV.C. (22-26) V.A; V.B V.A. (26-29) I; IV.B V.B. (29-30) I; IV.B V.C. (30-32) I; IV.B V.D. (32-33) IV.B V.E. (33-42) IV.B VI. (42-47) IV.A B-1
l l
00'. t' E T E F l UC,NPc l August 5, 1985 l
'85 AUG -7 A10 :44 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ((gh[dhkh ,
BRAhCH BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l In the Matter of )
l
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289 SP
) (Restart Remand on
) Management - Training)
(Three Mile Island Nuclear )
Station, Unit No. 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Brief in Oppo-sition to the Appeals of the Union of Concerned Scientists and Three Mile Island Alert" were served this 5th day of August, 1985, by deposit in the U.S. mail, first class, postage pre-paid, upon the parties on the attached Service List.
M h.
Deborah B. Bauser i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )
)
METROPOLITAN EDISON COMPANY ) Docket No. 50-289
) (Restart Remand (Three Mile Island Nuclear ) on Management)
Station, Unit No. 1) )
SERVICE LIST Nunzio J. Palladino, Chairman Administrative Judge U.S. Nuclear Regu'latory 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 Wnchington, D.C. 20555 Administrative Judge ,
Gary J. Edles Jcmes 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, D.C. 20555 Frederick Bernthal, Commissioner U.S. Nuclear Regulatory Commission Administrative Judge Washington, D.C. 20555 Dr. W. Reed Johnson Atomic Safety and Licensing l
Lando W. Zech, 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 Ivan W. Smith Christine N. Kohl Chairman, Atomic Safety and Atomic Safety and Licensing j Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission 4 Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Docketing and Service Section (3)
Shsidon J. Wolfe Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555
SERVICE LIST PAGE 2 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 Washington, D.C. 20555 Parkesburg, PA. 19365 Jack R. Goldberg, Esquire Mrs. Louise Bradford Office of Executive Legal Director TMI ALERT U.S. Nuclear Regulatory Commission 1011 Green Street Washington, D.C. 20555 Harrisburg, PA. 17102 Thomas Y. Au, Esquire Joanne Doroshow, Esquire Office of Chief Counsel The Christic Institute Department of Environmental 1324 North Capitol Street Resources Washington, D.C. 20002 505 Executive House P. O. Box 2357 Lynne Bernabei, Esquire Harrisburg, PA. 17120 Government Accountability Project Michael F. McBride, Esquire 1555 Connecticut Avenue LeBoeuf, Lamb, Leiby & MacRae Washington, D.C. 20036 1333 New Hampshire Avenue, N.W.
Washington, D.C. 20036 Ellyn R. Weiss, Esquire Harmon, Weiss & Jordan Michael W. Maupin, Esquire 2001 S Street, N.W., #430 Hunton & Williams Washington, D.C. 20009 707 East Main Street P. O. Box 1535 --
Richmond, VA. 23212
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