ML20137X526
| ML20137X526 | |
| Person / Time | |
|---|---|
| Site: | South Texas, 05000000 |
| Issue date: | 04/28/1981 |
| From: | Sinkin L AFFILIATION NOT ASSIGNED |
| To: | Lieberman J NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| Shared Package | |
| ML20137X502 | List: |
| References | |
| FOIA-85-519 NUDOCS 8603100125 | |
| Download: ML20137X526 (10) | |
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- be'ieve the tiev General Statesint of Felicy.and Frececure fer Enf ereer.ent Actier. 47 T.T.
99f *, is a s ter ferward ir clarif ying i
1.o. t r.e N't.: vili enforce its regulations. En:losed is at analysis a: :. yir.; the new ptlicy and procedures te a curren: invert:patien fer whic? the 16I report is supposed te be available i t. a'r eu: a veek. I thought the analysis might be of interest te you.
Sincere 1v.
tanny 5:nkir.
E36 Last MaFnclia Avenut l
Sari Antonic, Texas 7f 010
($12) 734-3970 i
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h ar ::ve s ::r a t :::. :: ceter=:ne whether E:ust::
ce li're;&:t ly withheld the Quadrex Corp:ratiet r:udy cf the feu:t texas ha:ltar Preje:: f r en the NE;.
The investiga:ict is con:1uded vitt the repert expected te be released tne first week it. May. (Conta::: John Cc11 ins, herienal A::inis trat:r.- NT.~, Arlingt en, itxa r - E17-af 5-E10C er NEC Wa shingtet,
cery cf investi ative results. )
C.C. te recues:
F Cittaens Concerned About hu: lear Power, Inc. (CCANT: cf San Ant:nic. ~exas has prepared the ic11oving ruide te evalus: int the re ruits cf this investigatier.. The NE: has jur: revised their metnot cf :lasrifying inves:igative results. (47 7ederal hegister 99E",
March 9, 19E;) The analysis herein is CCANT's application of the new classification syster to the probably investigative findings in the Quadrer Report inquiry.
The first persibility is that the NRC vill find ne vio*ation of NE regulations it hourton Lighting and Power's handlint cf the Ouadrer kepert. 7t s con:1usiot would contradict,bQus son of Mr. Villier Dircks, Executive Pire:ter f er Operations, NRC, Washihrtor., that the pctentia; significance ef the Cuadrex findings was not communicated to the NI: it a t ietly f ashier. Snould a ne viclatiet findir.g result fro-the inver:igatsot, this analysis cirnt be use f ul t e determine the credibili:v ef the investigatien itself.
Sheule a viciatiot be found, there are now five possible levels cf severity int: whict the viciation would f:. Severity Levtis 1 and
- 1 ar t cf very significant regulatory concern." 4*
7.E. 99CC. Severi:3 Level 111 violations are "caust for significant concerr.," id. CCANT is certait that if a violation is f ound in the Quadre> invest 5fation, the einieur level vill be III, se the lesser levels cf IV and V are not discurred hereit, befere examining the specific levels, it is werth notint that one perpcse cf enforcement activity is defined by the NEC at " Encouraging improvement of licensee performance, and by enseple, that of industry.
including the prompt identification and reporting of potential saf ety problems," 41 T.K. 99E9. The centr,a1 question of the Ouaorex investigation is the allered failure of HL&P te provide the findings of the Quadrex heport te the NEC prior te being requested to de so by the NRC.
Tne specific level of vielation can be adjusted upward or downward depending on various considerations. One major consideration :s whether the vielation is "villful!". The regulations addrest this consideration as follovt:"the severity level cf the viels:iot c.sy be increased if the cireur. stances surrounding the catter invclve careless disregard cf reculrerents, deception or other indications cf vi11 fulness.
Tr.e terr 'villfulness' as used here embraces a spectrur of viciations ranging free deliberate intent te vielate or fairify, tc and including careless disregard for recuirenents.
In ceterrining the specific severits levt1 ef a viciatset invclvint vi11 fulness conviceration vill te riven te suct factort as the pesition of the perset involvec it the viciation (e.F. fits:
d g3 1:ne sunerv:ser er renier ennarer' t ht r:rnif;cance c. ant unceriylnr v:elaiset. Int inten: cf tre v:eister (..a.
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.e;:rttr.g cf tLt Oga t r e). findingt-
~iven a rep:rt :f c:re t r.at 50' pages and 2C' findings cf deficiency, heus ten Lighting and lover reported enly three cf the f ancings te the N7.0. The decisier :: report only these three findings was cade by Mr.
Geldeerg and tv: senier engineers it a meettng'et May E, 19E1. Einct the repert is ' filled with findinis vr.ich could adver sely af f s:t the safety cf the plant anc which are significant deficien:ies requiring extensive evaluatier.. the failure te report is at a citimur a careless cirregard f:: the twenty-f our hour reperting re;;trement cf IC C.7.7.. St.55 e: and at worst a saliberate act.
Mr. Goldberg is Vice President f or Nuclear Engineering and Construe-t i er., the third highest EL&P officer vitt eesponsibility for the South Texas Nuclear Preject. Mr. Goldberg is more deeply involved in the project than either Mr. Oprea, Senior Vice President, or Mr. Jordan, President. Mr. Goldberg has extensive experience with both design and engineering of nu: lear plants as well as NRC regulations. Er lack cf training, experience, or expertise could explait the f ailure to perceive the seriousness of the Quadrer findings. The evicence of celiberateness is thereby strenthened.
The underlying violation was a complete breavcov; it the design and engineering process at the South Texas buclear Proje:t. There c ould hardly' be a more serious violation in a plant under construction.
The intent cf Mr. Goldberg and/or KL&T upper management appears te CCANi te have been concealment. The project was already in troubit with the NRC, an Order te Show cause as te vny the constru: tion permit should not be suspended having been issued by the N7.0 it April 19E0. The NEC recuired ML&T te subeit all plans f or construction to the NRC f or approval prior te proceeding as a result of the Order te Shov Cause investigation.
With the NEC sure te react (as indeed they did react) stronF y te the l
findings in the Ouadrew Report, KL&T appears te have made the decisior.
Le report only three findings, leaving the NRC te believe the remainder of the report was not serious.
The economic adeantage gained by NL&P is demonstrated by subsequent events. Either the week of Sept ember 14, 1981 (NRC chronology) or the week of September 21, 1981, NRC attorneys in the operating licenst pro:eeding told ML&T that the report must be provided te the South Texas licensing board by HL&P or the NRC would send the board the report.
KL&T responded that they would send the report to the board. On September 24, 19E1 ML&P fired Erovr. and koot froc design and engineering at STNT.
This firing ultirately led te a shut dovn of all construction with saf ety relat ed construction not scheduled te resume until Septeebe 19E at the earliest. CCAN7 concluded in the original chronology that the cortielled disclosure of the report to the licensing boart triggered the firing of Erovt and koot. That f r own and koot was kept as architect-engineer fro: May ", the day the Quadrer. Keport arrived at ML&T, until a f ew days af ter the NKC compelled disclosure ir September supports this conclusior.. If KL&7 could have ke;t t he report hidder. Eroer and koot might still bt on the jot anc the ytar lost in constru: tier eigtt never have happened, huelear plants es alate it trice b3 a g t r e v ina t t i:.
231 for each additional year constructior is recutret orfers c entl e t t er
/kSI Ooviously, HL&T could have savec nuncreet of ni'.ltent ef cellsrs if t'
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7.T.
9991 CCAN: is n:: in agreezer.: vi:h early UK; deterb.: stiens
-:ha the revertin; ef the findings and/or the s ignifican:e wa s "un:ir.t 1;
- 1::t the CCAN7 anc NK chronclogies reveal tha: :ne NE: s pe : if i c a '.1) asked fer the,reper: EL&T did n,c: vcluntarily tur i over. Dn=e the Ni.' ha: t e a n'r fer the repert, the cuestion cf timeliness was cect Tners was n reper: fre: May E. 19El until the Ni.C recuest, ex:e:
fer the tnree findings reverted et May E. CCANT vill be watching tc set if
- te NK; ::t::nues te spese, cf an untimely" reper: c: wnether the NE' now re:egn :es the cistine: ion be: ween a reper:. turned ever voluntaril:
and one turned over in the f ace of an NRC ultimatus. Te speak cf untimeliness would be to minimize the violation.
The timeliness issue is also addressed in another regulatory section wherein it states: "In weighing this f actor, consideration vill be F vet te, among other things, the lenger cf time the viciatiet i
existed prior te discovery, the opportunity available te discover the vielaticn. and the pro =p: ness and completeness cf any required repert,"
47 T.T..'999;. It. the case cf the Quadret Report, the violation is failure t: report ane,er deliberate withholding. The violatien existed free hay E unti; the NE: requested the report, at least three months. There notning te "ciscever" since the repor: was delivered te EL&T en May 1.
wat The repor:s ef three i t ees et hay E meets the promptness requirement but hardly tne coerleteness recuirement. Free May E through August at least, tnere was ne report, se aFain issues of promptness anc coepicteness are soot. Thus, it weighing the factor of promp: identificatict and te porting, the scales balance heavily against EL&T.
Another meas ure of NRC performance in the Quadret investigation vill be the levying or f ailure te levy a civil penalty (fine ). The regulations
- ate: "In this regard, the failure te make a required report of at event requiring suet reperting is considered a separate probles and will normally be assessed a separate civil penalty." 4" T.T.
9991. Assur.ing tne NKC finds a: least a failure to report, CCAN7 vill be watching fer tne assessment of a civil penalty and the amount assessed.
Finally, there vill be the question of how serious the NRC views the acts of ML&T. In the Supplements to the regulations at 47 T.E.
999*-9995, there are examples of violatior. f alling inte the various classifications cf severity. Supplement 11.C. at 999-titled Severity 111 includes: "3.
Tailure to make a required 10 C.T.I..
$0.55(e) report."
The NKC could conclude there was a failure to report and, therefore, a Level 111 violatier.. CCANT would consider a simple Level III finding as inacecuate it light cf the "wi11f ulness" discussion above. Furthernett.
Serplement v!1.A.I. at 999i states: "A Material Talse Statement (MTE) it which ts e stateren: zade was deliberat ely f alse" is a Levei 1. violatiet.
Tne footnote te this section (footnote 16) says: "In essence, a Material false Stat ement as a statenent that is false by omissiot er c om=is s iot and is relevant te the regulatory process." k'nen HL&T reported the three findings on May I, there was ne centier, of the Quadre> heport per st er the other 29t findinFt. The f ailure to sention the existence of the report is probably not a serious umission in that the other 296 find:ng s. f j-NEC knew the study was bein; concucted. The f ailure te mention the however, is a serious omis a t or, vtict CCANT as sert r f alls vithit the Ma:er:L.
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de: ens :f reperta' le findings tas C /.Ni insists there are),
tnen Mr Geldvert 's represen:atient Taist 5:stenen:
M. St1*s clearly fai! vithin the Ma:eria*
tt if :ne NK categery COANi vi!*. be watching te see re:qrt. es tne za:eria', false a
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1*; vic*.a:ict hasti This inves tirst;en is a test net cf th< N7.: enf er:entn:
en!. cf :ne new repuls:: ens but pre:ts s itse *.f. Tr.:s ; recess is heavil; c(ptn=er.:
-en se'.f p:1:cing by tne licenst n:'.cer. Tr,e !?i.: has neither the staff ner the resources te concu :
t e exercise continuous oversightin depth reviews of design and engineering, investigations to determine compliance. Inover the activ c; te conduct constant CCANT's view, the withholding of the Quadrax Report hear:
behavior shovr. by the NRef the regulatory process. The level cf tclerance strikes at the for such Chairmar. Nun::e Pallsdine talks about translates inte enfvil; be a meas orcement.
isted A:ril OI. 29f:
Est Antonie, Texa s 1
Ter further it.for=a: ion:
Lanny finkin
.C. I hueces Austin, Texas 78705 (512.' 476-329c c;
E3E tast harnelis Avenue Sat Antenie, Texe, 7g;3 (510) 73.-3979 l
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!, 19H Mr..* a.e Lieberr.an Er f er c er.er.
Staff-Of fice cf Inspection and Enf ercement
- r. S. Euclear ReFulatory Come.ission k'ashington, D.C. 20555
Dear Jim:
I believe the new General Statement of Policy and Procedure for Enforcement Action, 47 T.R. 9967, is a step forward in clarifying how the NRC will enforce its regulations. Enclosed is an analysis applying the new policy and procedures to a current investigation for which the I&E report is supposed to be available in about a week. I thought the analysis might-be of interest to you.
Sincerely, g.g
~
Lanny Sankin 636 East Marnolia Avenue San Antonio, Texas 78 12 (512) 734-3970
!i7 A51
5 CCA57 Guide te Evaluating tne NEC Invertigat er en Whether hourten Lighting and Power Deliberatels Vithheld the Quadrex hepert f r er t ne Nuclear Eegulatery Ce==ission en February
,19E;, the Eu: lear Regulatory Cecnission initiated an investigation to determine whether Hous ton Lighting and Power deliberately withheld the Quadrex Corperation study of the South Texas Nuclear Project f r o= th e NRC.
The investigation is concluied with the report expected to be released the first week in May. (Contact: John Collins, Regional Adminis trat or, NRC, Arlington, Texa s - 217-465-6100 or NRC Washington, D.C. te request copy of investigative results.)
Citizens Concerned About Nuclear Power, Inc. (CCANP) of San Antonio, Texas has prepared the following guide to evaluating the results of this investigation. The NRC has just revised their method of :lassifying investigative results. (47 Tederal Register 9967, Mar ch 9,1982) The analysis herein is CCANP's application of the ne e classification system to the probably investigative findings in the Quadrex Report inquiry.
The first possibility is that the NRC will find no violation of NRC regulations in Houston Lighting and Fower's handling of the Quadrex Report. This conclusion would contradict (CEi~ionq1usion of Mr. Williae Dircks, Executive Director for Operations, NRC, Washi6 ron, that the F
potential significance of the Quadrex findings was not communicated to the NRC in a timely f ashion. Should a no violation finding result f r oe the investigation, this analysis eight be usef ul te determine the credibility of the investigatien itself.
Should a violation be f ound, there are now five possible levels of severity into which the violation would fit. Severity Levels I and 11 "are of very significant regulatory concern," 47 T.R. 9990. Severity Level 111 violations are "cause for significant concern," id. CCANP is certain that if a violation is found in the Quadrez investigation, the minimum level vill be Ill, so the lesser levels of IV and V are not discussed herein.
Before examining the specific levels, it is worth noting that one purpose of enforcement activity is defined by the NRC at " Encouraging improvement of licensee performance, and by exaeple, that of indnrtry, including the prompt identification and reporting of potential safety problems," 47 T.R. 9989. The central question of the Quadrex investigation is the alleged failure of HL&p to provide the findings of the Quadrex Report to the NRC prior to being requested to do so by the NRC.
The specific level of violation can be adjusted upward or downward depending on various considerations. One major consideration is whether the violation is "willfull". The regulations address this consideration as follows:
"the severity level of the violation may be increased if the circumstances surrounding the matter involve careless disregard of requirements, deception or other indications of willfulness.
The tere 'willf ulness' as used here embraces a spect rum of violations ranging fror deliberate intent to violate or falsify, to and including careless disregard for recuirements.
In determining the specific severity level cf a violation involving villfulness confideratiot will be riven te such f actort at the posit ion of the persor. involved it. the violation. (e.g. first line superviser er senier e.anager). the significance of any d 5*7 underlyinF violatier the intent of the vielater (i.e. neg li g en c e-
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O not as:unting te careless disregstd, careless disregard, or deliberstene s s i and the economic advantage, if ary, gained c
by the vielatien," 47 P.R. 9990.
Taking the elements of vi11 fulness one at a tire, CCANT finds each c f th e: to be present in such a way as to mandate escalated enforcement action. There obviously was not proept reperting of the Quadrex findings.
Given a report of mere than 500 pages and 299 findings of deficiency, Houston Lighting and Power reported only three of the findings to the NRC. The decision to report only these three findings was made by Mr.
Goldberg and two senior engineers in a meeting on May E,1961. Since the report is filled with findings which could adversely af fect the safety of the plant and which are significant deficiencies requiring extersive evaluation, the failure to report is at a minimuc a careless disregard for the twenty-four hour reporting requirement of 10 C.T.R. 50.55(e) and at worst a deliberate act.
Mr. Goldberg is Vice President for Nuclear Engineering and Construc-tion, the third highest ML&P officer with responsibility for the South Texas Nuclear Project. Mr. Goldberg is more deeply involved in the proj ect than either Mr. Oprea, Senior Vice President, or Mr. Jordan, President. Mr. Goldberg has extensive experience with both design and engincering of nuclear plants as well as NRC regulations. Ne lack of training, experience, or expertise could explain the failure to perceive the seriousness of the Quadrez findings. The evidence of deliberateness is thereby strenthened.
The underlying violation was a complete breakdown in the design and engineering process at the South Texas Nuclear Project. There could i
hardly be a more serious violation in a plant under construction.
The intent of Mr. Goldberg and/or HL&P upper manageeent appears to CCANP to have been concealment. The project was already in trouble with the NRC, an Order to Show Cause as to why the construction pereit should
. not be suspended having been issued by the NRC in April 1980. The NRC required ML&P to submit all plans for construction to the NRC for approval prior to proceeding as a result of the Order to Show Cause investigation.
With the NRC sure to react (as indeed they did react) strongly to the findings in the Quadrez Report, ML&P appears to have made the decision to report only three findings, leaving the NRC to believe the remainder of the report was not serious.
The economic advantage gained by HL&P is demonstrated by subsequent events. Either the week of September 14,1981 (NRC chronology) or the week of September 21, 1981, NRC attorneys in the operating license proceeding told ML&P that the report must be provided to the South Texas licensing board by ML&P or the NRC would send the board the report.
ML&P responded that they would send the report to the board. On September 24, 1981, HL&P fired Brown and Root from design and engineering at STNP.
This firing ultirately led to a shut down of all construction with safety rtisted construction not scheduled to resume until September 1962 at the earliest. CCANP concluded in the original chronology that the compelled disclosure of the report to the licensing board triggered the
^
firing of Brovt and Root. That Brown and Root was kept as architect-enFineer f roc. May 7, the day the Quadrex Report arrived at HL&P, until a few days af ter the NRC compelled disclosure in September supporte 4
this conclusion. If HL&P could have kept the report hidden, Brown and Root might still be on the job and the year lost in construction might never have happened. Nuclear plants escalate in price by approximately 23* for each additional year construction is recuired before completion.
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Obviously, HL&P could have saved hundreds cf eillions of dollars if the g
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g Quadrex Repert did not hava to be revealed and Brown and Roet fired.
Tor the abevs reasons, CCANF considers any finding in the Quadrex investigation of less than a Level I violation as being subje:t te escalatien for wi11 fulness.
Another consideration is timel ness. The regulations highlight "the severity level of an untimely report, in contrast to no report...,"
47 T.R. 9990. CCANP is not in agreement with early NF.C determinations that the reporting of the findings and/or the significance was " untimely."
both the CCANP and NRC chronologies reveal that the NRC specifically asked for.the report. EL&P did not voluntarily turn it over. Once the NRC had to ask for the report, the question of timeliness was moot. There was no report from May E,19El until the NRC request, except for the three findings reported on May 8. CCANP will be watching to see if the NRC continues to speak of an " untimely" report or whether the NRC now recognizes the distinction between a report turned over volun,carily and one turned over in the face of an NRC ultimatum. To speak of untimeliness would be to minimize the violation.
The timeliness issue is also addressed in another regulatory section wherein it states: "In weighing this factor, consideration will be given to, among other things, the length of time the violation existed prior to discovery, the opportunity available to discover the violation, and the promptness and completeness of any required report,"
47 F.R. 9991. In the case of the Qumdrex Report, the violation is failure to report and/or deliberate withholding. The violation existed free May 6 until the NRC requested the report, at least three months. There was nothing to " discover" since the report was delivered to HL&P on May 7.
The reports of three items on May 6 meets the promptness requirement but hardly the completeness requirement. From May E through August at least, there was no report, so again issues of promptness and completeness are moot. Thus, in weighing the factor of prompt identification and reporting, the scales balance heavily against KL&P.
Another measure of NRC performance in the Quadrex investigation will be the levying or failure to levy a civil penalty (fine). The regulations state: "In this regard, the failure to make a required report of an event requirinE such reporting is considered a separate problem and will normally be assessed a separate civil penalty " 47 F.R. 9992. Assuming
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the NRC finds at least a failure to report, CCANP will be watching for the assessment of a civil penalty and the amount assessed.
Finally, there will be the question of how serious the NRC views the acts of ML&P. In the Supplements to the regulations at 47 F.R.
9993-9995, there are examples of violation f allint into the various classifications of severity. Supplement II.C. at 9994 titled Severity III includes: "3. Failure to make a required 10 C.T.R. 50.55(e) report."
The NRC could conclude there was a failure to report and, therefore, a Level III violation. CCANP would consider a simple Level III finding as inadequate in light of the " willfulness" disc.ussion above. Furthermore, Supplement VII.A.I. at 9995 states: "A Material False Statement (MFS) in which the statement made was deliberately false" is a Level I violation.
The footnote to this section (footnote 16) says: "In essence, a Material False Stat ement is a statement that is false by omission or commission and is relevant to the regulatory process." k' hen HL&P reported the three findings on May E, there wcs no mention of the Quadrex Report per se or the other 296 findings. The f ailure to mention the existence of the report is probably not a serious omission in that the NRC knew the study was being conducted. The f ailure to mention the other 296 findings,
A 577 however, is a serious omission which CCANP asserts falls within the Material l
s False State =ent clas sification ar.t. theref ore, a Level I violation.
Tnere is an even more serious 555. both the CCANF and hTC chronologies reflect that there was a eeeting between Mr. Goldberg and Mr. Sells cf the NRC the week of May 12,19E1. Ecth chronologies reflect Mr.
Goldberg told Mr. Sells there were three reportable 50.55(e) findings in the Quadrex Report. If the NRC investigation finds that there were in fact dozens of reportable findings (as CCANP insists there are),
then Mr. Goldberg's representations to Mr. Sells clearly fall within the Material Talse Statement category. CCAh7 will be watching to see if the NRC recognizes the material false statements and finds, therefore, a Level I violation or whether the NRC merely finds a Level 111 violation based
/
on a failure to repert.
This investigation is a test not only of the new regulations but of the NRC enforcement process itself. This process is heavily dependent on self policing by the license holder. The NRC has neither the staff nor the resources to conduct in depth reviews of design and engineering, to exercise continuous oversight over the activities of the licensee, or to conduct constant investigations to determine compliance. In CCANP's view, the withholding of the Quadrex Report strikes at the heart of the regulatory process. The level of tolerance for such behavior shown by the NRC will be a measure of how the new toughness Chairman Nuncio Palladine talks about translates into enforcement.
Dated: April 2E, 1982 San Antonio, Texas For further information:
Lanny Sinkin 2207 D Nueces Austin, Texas 76705 (512) 476-3290 or 83E East Magnolia Avenue San Antonio, Texas 78212 (512) 734-3979 A57
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