ML20140B559

Response to Commission Order CLI-85-19 Re Return of R Arnold & E Wallace to Nuclear Duties & Motion for Reconsideration. Restart Decision Fatally Undermined If Commission Reinstates Arnold & Wallace.Served on 860124

ML20140B559
Person / Time
Site:	Three Mile Island
Issue date:	01/23/1986
From:	Aamodt M AAMODTS
To:	NRC COMMISSION (OCM)
References
CON-#186-830 CLI-85-19, RA-EW, NUDOCS 8601270043
Download: ML20140B559 (5)

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AAM.- 1/23/86

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' UNITED STATES OF AMERICA NUCL:AR REGULATORY COMMISSION ,.

In the Matter of GPU NUCLEAR 50-289RA:' 3@62Q$EH4 'O :U)  ;

(Special Proceeding)

(Three Mile Island Nuclear Station, Unit No. 1) Q SERV:: JA,9;p3c;g AAMODT RESPONSE TO COMMISSION ORDER CLI-85-19 AND MOTIONS FOR RECONSIDERATION Robert Arnold, formerly president of GPU Nuclear, and Edward Wallace, another former management official, have requested "a separate hearing to determine whether the adverse implications about the(ir) undersigned's management integrity are factually substantiated."

The Commission has decided to provide a hearing if information is put' before it by January 24, 1986which"couldformareasonablebasisfoh concluding that either Wallace or Arnold willfully, knowingly, or with a reckless disregard for the truth made a material false statement to the NRC" in a December 5, 1979 response to the NRC's October 25, 1979 Notice of Violation ("NOV"). Otherwise the Commission " intends to issue an order lifting the notification requirement imposed in 0L1-85-2, a February 25, 1985 decision which denyed a hearing of the NOV issue on the basis that Arnold and Wallace "are no longer associated with TMI-l activities" and provided the requirement that licensee " notify the Commission before returning either of these individuals to responsible positions at TMI-1." The Commission has now asserted that the issue of the return of Arnold and Wallace to nuclear duties, presumably TMI duties, is "outside of the TMI-l restart proceeding".

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t The Aamodts ("we") find that the Commission order is error.

The NOV issue was a relevant issue in the restart c The Commission stated that it considered it to be relev liminary decision of February 25, 1985 (to not hold any mv..

integrity hearings) and in its decision of May 29, 1985 to permit i restart of TMI-1. However, the significance of'the issue to restart was mooted by the removal of Arnold and Wallace, "the two individuals primarily responsible for this (NOV) response", from TMI-l activities.

CLI-2-85, p.64.

The request for a hearing for Arnold and Wallace is too late.

The first and overriding requirement for opening a hearing is that it be timely. Nearly a year has passed since the Commission made its C -

decision. Arnold and Wallace have lost their opportunity, I a

absent new information which bears on the NOV issue.

Evidently, the only new information in the request of Arnold and 1

Wallace is their late recognition that their " good name, reputation,

) and honor and opportunity to work and to obtain professional advancement" have been damaged. This can hardly qualify as new information.

Arnold and Wallace should have recognized the consequences of the

! Commission's February 25th decision at the time it was made.

There is no excuse for Arnold and Wallace to have waited until now to make their complaint, nor does it appear that they have provided any q; explanation.

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The Commission has erred in failing to apply the same standards to the request of Arnold and Wallace that it has so faithfully applied to ours and others. (See Commission decision, May 16, 1985 i

6 denying an Aamodt motion for reopening on the basis of timeliness.)

In fact, it is unresolved in the courts whether economic injury is within the zone of interests protected by the Ato;nic Energy Act.

See Consumers Power Co. (Palisades Nuclear Facility), ALAB-670, 15 NRC 493, 506 (1982), vacated as moot, CLI-82-18, 16 NRC 50 (1982).

Further, merely making a discharged employee less attractive for employment is not a deprivation of liberty. See Johnson v. University of Pittsburgh, 435 F. Supp. 1328 (W.D. Pa. 1977). For instance, no hearing is required where (4 tscharge is for failure to perform adequately.

See Capers v. Long Island R.R., 429 F. Supp. 1359 (S.D.N.Y.), affm'd Harris v. Long Island R.R., 573 F.2d 1291 (1977). '

An even more grevious error, than the Commission's consideratio*n of an untimely hearing, is the Commission's decision to simply absolve Arnold and Walice of responsibility for the false material witness if commentators cannot establish that the actions of Arnold and Wallace were " willful" or " reckless".

The Commission does not need more information than it already possesses to recognize that the knowledge and involvement of Arnold and Wallace in the NOV response indicates' willful or reckless conduct by both of them. The NRC Staff provided the Commission with its Safety Evaluation Report, NUREG-0680, Supp. No. 5 which found that these individuals had provided false information to the NRC in the NOV response.

The Commission wrote in its February 25, 1985 decision, "There are no factual controversies regarding licensee's response to the NOV. It appears that licensee made material falso statements in its response.."

See p. 82.

Response to a NOV concerning the TMI-2 accident was a serious matter the response of high management officials could not have been without investigation and consideration. Clearly the provision of a false response was willful and reckless. In fact, the NRC Staff provided clear evidence in the testimony of an operator during the GPU v. B&W court trial that the officials'NOV response could not have been innocent.

According to William Zewe, 'all of upper management was involved in daily decisions regarding whether or not to close the PORV valve and was considering the effect of leakage on continued operation of thei plant!" See NUREG 1020LD, Vol.1, p.10-9.

t Herman Dieckamp, former chairman of the board of GPU and now a -

member of the board of directors, found the argument involved in the. - ,

response of Arnold and Wallace to be " kind of thin". The Commission knows that. See Commission decision CLI-85-2, February 25, 1985, p.82.

Dieckamp's failure to find justification for the NOV response is compelling evidence. The Commission knows, or should know, that.

The Commission has also erred in narrowing the issues relevant to the return of Arnold and Wallace to nuclear duties to the single issue of the NOV response. 'Our views are adequately expressed in the dissenting opinion of Commissioner Asselstine-Cattachcd-). We adopt Commissioner Asselstine's opinion and motion the Commission to reconsider the need for a comprehensive hearing, if any.

q If the Commission should reinstate Arnold and Wallace, we find that the TMI-1 restart decision has been fatally undermined. Throughout that r

decision (May 29, 1985, CLI-5-85) the Commission has premised its i

assurances of protection of public health and safety on " personnel changes". Two of the most significant of those changes were the removal of i

Arnold and Wallace from TMI-l duties. If Arnold and Wallace are allowed to assume nuclear positions, there will be no bar to their J

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employment at TMI-1. For the Commission to facililtate the return of i

Arnold and Wallace would be a breach of the Commission's promise to the public.

We, therefore, ask the Commission to reconsider its decision CLI-85-19 concerning Arnold and Wallace.

Respectfully submitted, f

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! Marjorie M. Aamodt j January 23, 1986 Served on the Commission by deposit in Express Mail, January 23, 1986, guaranteed overnite delivery. / , . .a l I,A [

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