ML20197F800
| ML20197F800 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 05/09/1983 |
| From: | Lieberman J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Rehm T NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| Shared Package | |
| ML19301A041 | List:
|
| References | |
| FOIA-86-234 NUDOCS 8605150669 | |
| Download: ML20197F800 (10) | |
Text
{{#Wiki_filter:--- S J.._ flh B3 - > ] May 4,1983 b E Note to Tom Rehm HARTMANMATTER(SECYM8303308) In accordance with our prior discussion, we have reviewed the reportability of the 1980 GPU report and the 1982 depositions of Hartman. It is our recommendation, as explained in the attached draft memorandum, that GPU should not be found at fault for r.ot submitting the documents to the NRC. This is of course based on our review of the information contained in the documents and our view of what the staff's prior knowledge of the information contained in the documents. Therefore, prior to the submittal of the enclosed memorandum, it should be reviewed by the appropriate staff offices to verify the factual statements. A copy of the GPU report and the hartman depositions are available in my office (MNBB 8203) if any member of the staff wishes to look at them in conjunction with review of the mer.io. A V l James Lieberman CC: Jane Axelrad, IE 8605150669 860428 PDR FOIA VOIOT86-234 PDR
MEMORANDUM FOR: Chairman Palladino Conmissioner Gilinsky Comissioner Ahearne Commissioner Roberts Comissioner Asselstine FROM: William J. Dircks, Executive Director for Operations
SUBJECT:
REPORTABILITY OF GPU INVESTIGATION REPORT AND DEPOSITIONS RE HARTMAN ALLEGATIONS This is in response to the Comission's request to determine whether the 1980 GPU Report concerning the Hartman allegations and the 1982 depositions of fir. Hartman should have been submitted to the Comission.
===. Background=== ? Harold W. Hartman, Jr. was a control room operator at TMI Unit 2 until the March 28, 1979 accident. In an interview conducted on May 22, 1979 by the Office of Inspection and Enforcement (IE), Mr. Hartman made allegations thtt 1) leak rate tests used to show compliance with TMI-2 Technical Specifications were manipulated in late 1978 and up until the accident with the knowledge of at least some supervisory personnel to avoid plant shutdown, and 2) in April of 1978, TMI-2 supervisory personnel deliberately violated plant procedures by recalculating an estimated critical position (ECP) after the fact to validate a reactor startup which had been perfonaed in a manner inconsistent with plant procedures. These allegations were further discussed in the Rogovin Special Inquiry deposition of Hartman dated October 29, 1979 and in a WOR-TV (Channel 9) interview of Hartman on March 24, 1980. The n J
The Commissioners 2-l NRC initiated an investigation into this matter in March of 1980, discussed the limited results of that investigation with the Department of Justice (D0J) and in May of 1980 halted its investigation at D0J's request. Since that time, D0J has been investigating the matter via a Federal grand jury' proceeding in Harrisburg, Pennsylvania. At a March 21, 1983 meeting between Mr. R. Arnold of GPU and members of the NRC team reviewing the B&W - GPU trial court record, Mr. Arnold referred to a GPU investigation into the Hartman allegations and noted that GPU was considering giving that investigation report to 00J.II The Report was ~ subsequently forwarded by GPU to 00J and through 00J to the NRC with the request from 00J that NRC maintain the Report in confidence. In early April of 1983, the NRC received a copy of the Report directly from GPU with no a limits placed upon its use. The Report was discussed at the Commission meeting of March 30, 1983 and the staff was requested to examine whether or not any teporting requirements were violated by the submittal by CPU nf its Report in 1983, nearly three years af ter the Report had been finalized. The Staff was also required to determine whether the depositions of Hartman taken in the B&W-GPU lawsuit on July 16 and August 18, 1982 should have been submitted to the NRC. The depositions were received by the staff on March 21, 1983 following a specific request to GPU. -1/ The report is entitled "Results of Faegre & Benson Investigation of Allegations by Harold W. Hartman, Jr. Concerning Three Mile Island Unit 2," dated September 17, 1980, hereinaf ter "the Report." 9 I l
. ~. f l, i The Commissioners ' i l The Nature of the Report and Depositions The Report sets forth the results of an investigation into the allegations made by Hartman based primarily upon plant records and technical data. ~ The Report itself recognizes the limits of its inquiry: The reader should understand clearly the limitations of this Report. We have not had access to those Metropolitan Edison employees with first-hand kn7wledge 4 of the substance of Hartman's allegations. Virtually all TMI Unit 2 control room operators, foremen and supervisory personnel accepted the company's offer of j legal counsel. In light of the pending federal grand J jury proceeding, their counsel understandably declined 1 to allow us to interview those employees during this investigation. They may be able to answer questi'ons j which this Report necessarily leaves unresolved. Because of our inability to interview key employees, i this investigation has been based primarily upon our review and analysis of plant records and other technical j data. We also have relied upon limited interviewing i of other plant employees. We have not be able to i pursue every possible line of inquiry or lead. We j have tried to indicated throughout the Report those areas which we have not pursued and those questions l which remain open. Report, pp. 12-13. The Report is then primarily an investigation and aralysis of plea.t records and other technical data. While the Hartman allegations are analyzed technically, and a further extensive voluntary statement from Hartman was takentoaidtheinvestigation,U the report does not develop the role or l l knowledge of any other individuals in the acts alleged. i I Indeed, the Report concludes: I i i Apart from Hartman's own statements, we have no bases j for evaluating his allegation that control room oper-l ators, foremen and supervisors were' subject to undue y Voluntary Statement of Harold W. Hartman dated April 27 and 29,1980.
l l The Commissioners pressure to obtain " good" leak rate test results. The answer to that charge rests _with control room personnel whom we did not interview for various reasons stated earlier. Report, p. 36. The value of the Report with respect to questions of management integrity, is thus minimal.3/ And while the Report does contain extensive technical ana. lyses, similar analyses had been performed by the NRC Staff in developing the civil penalty assessed against Metropolitan Edison Company for viola-tions of THI-2 Technical Specifications associated with leak rates. See NUREG-0600. With respect to the Hartman depositions, the depositions explored a number of areas in addition to the Hartman allegations set out above. The depositions do not add substantially to the information of which the NRC is aware. 5 Analysis o' Reportability The substance of the Hartman allegations were known to the NRC shortly after the TMI-2 accident, nearly 1-1/2 years prior to the completion of the GPU Report. No new allegations are raised in either the GPU Report or the Hartman depositions. The Report focuses primarily upon a technical analysis of the allegations. The substance of the Hartman allegations remain virtually unchanged as a consequence of the Report. The Report does not expand upon 1 the Hartman allegations nor resolve them. Nonetheless, the Report can be 3/ The Staff is currently completing its revalidation effort in this ~' area. See Memorandum for Chairman Palladino from the E00 dated April 26,1983. /
- The Comissioners -
characterized as informative and likely helpful in any NRC investigation of the Hartman allegations. With respect to reportability, three separate approaches which could call for reportability have been identified. l. Specific License Conditions or Comission Regulations Both the TMI-2 facility license and its associated Technical Specifications and the Comission's regulations impose specific notification requirements upon the licensee for certain categories of events. 10 C.F.R. Part 21 is one such example. Technical Specifications calling for the reporting of abnormal events is another example. It may well be that the licensee did violate such reporting requirements if the, incidents alleged by Hartman did in fact occur. P The violation would have been the failure to report the incidents which were' the subject of the GPU Report and the depositions at issue and not the failure to provide the ".eport and the depositior.s ::hich were prepared years i later. Whether or not the underlying incidents should have been reported in 1978 and 1979 when they occurred, NRC had actual knowledge of them by virtue a of the interviews with Hartman in April 1979. Therefore, in our view, failure to submit the GPU Report and Hartman depositions when first available to GPU is not a violation of any license condition or specific Comission regulation. 2. Duty to Report to Licensing Boards Parties to Comission proceedings have " absolute obligation to alert adjudicatory bodies directly regarding...new infomation that is relevant
_.~. __ j + The Commissioners. and material to the matters being a adjudicated...."AI Consequently, if th-subject manner of the GPU Report or the Hartman depositions were considered 'i to be new information that is relevant and material to matters being adjudi-cated in the TMI-1 Restart Proceeding, the licensee may have violated its' reporting obligations to the Licensing Board presiding over that proceeding. 5 The' Staff SER_/ discussed the leak rate allegations. The staff presented a discussion of this area in Supplement No.1 (Nov.1980) of NUREG-0680 at pp. 36-37. The staff further discussed this matter in Supplement No. 2 (March 1981) of NUREG-0680 at pp. 9-10. 6_/ In the latter statement, the staff concluded that there appeared to be no direct connection between the leak rate matter and the Unit 2 accident.1/ None of the parties L -4/ Tennessee Valley Authority (Browns Ferry Nuclear Plant, Units 1, 2 and 3) ALAB-677, 15 NRC 1387, 1394 (1982). 5/ NUREG-0680, TMI-1 Restart, an original SER and three supplements. l ~~6/ It should be noted that the staff discussion of the Hartman allegations 4 in NUREG-0680 focuses on the leak rate allegations made my Hartman. The Hartman allegations with respect to ECP are not mentioned in NUREG-0680, and the staff did not otherwise make them known to the Board. -7/ The same conclusion would appear to be true for the allegations involving the ECP calculations. However, the staff is reviewing its position. See note 3, supra.
l ~
- The Commissioners.
challenged the staff's conclusion. The essential thrust of the Hartman ~ allegations, i.e., the possible falsification of leak rate data, was known by the Board and th'e parties. 8/ They were also aware that D0J had re-quested the NRC suspend its investigative effort pending conclusion of the 00J investigation. Therefore, under the circumstances, it is difficult to find fault with the licensee for not making a Board notification. 3. Reporting Obligations Under Section 186 Section 186 of the Atomic Energy Act of 1954, as amended, imposes a reporting requirement in a sense as it authorizes revocation of a license for any material false statement in the application or any statement of fact required under Section 182. In its VEPC0 decision, the Commission held that an omission (i.e., a failure to. submit information) could constitute a material s -8/ The Board made a brief reference to the subject in its cacision. Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-81-32, 14 NRC 381, 557-58 (1981). e i .m.
The Comissioners false statement. 9] Ir, tl.is case, there is li re annH""r ;r in nu g there arguably eny 1equest iacc requirea pursuant to ivr a 36atemenu vi ()ssa Mr-2 y secMon--lS2 vi Lhe Atomic Euersy lu t. Evenimi:f the TM1 restart proceeding' IS were considered to be connected with a license application or a request for information under section 182, there does not appear to be an obvious or central omission of major importance to the issues before the Licensing Board and being considered by the staff in connection with restart.10/ The Report neither expands on nor resolves any of the allegations raised by Hartman, and the depositions do not add substantially to be information of which the NRC was aware. Moreover, the staff was aware in 1980 that GPU had initiated an investigation into the Hartman allegations. In view of the D0J request to suspend NRC investigative actions during the pendency of the ~ grand jury investigation, the staff had ceased its actions regarding the Hartman allegations and did not request further information regarding the 9/ Virginia Electric and Power Company (North Anna Power Station, Units 1 ~ and 2), CLI-76-22, 4 NRC 480 (1976), aff'd, 571 F.2d 1289 (4th Cir. 1978). / Id. In VEPCO, the Comission held that some omissions were reachable 10 under section 186. It reserved judgment as to whether all omissions 1 could be reached-Whether er not enforcement consequences for less obvious j or central omissions should await clarifying regulations, silence regarding issues of major importance to licensing decisions is readily reached under the statutory phrase " material false statement". Id. at 489. /
f
- The Connissioners 9-GPU investigation. Given the lack of new information in the Report and the depositions and the NRC's knowledge of the underlying events and the existence of a GPU investigation of Hartman, there Aes not appear to be sufficient materiality to conclude that either the GPU R or the Hartman depositions constituted an omission pursuant to section 186. Th efore, a material false statement does not appear to have been made by the f lure to proside the NRC with a copy of these documents.
.YW Conclusion Considering the materiality of the GPU Report and the Hartman depositions, the lack of new substantive information in the documents, and the NRC's know-ledge at the time the Report and depositions were prepared, and recognizing the NRC had suspenced its investigative efforts while D0J's investigation was ~ pending, it is the staff's view that the licensee should not be faulted for not reporting this matter. William J. Dircks Executive Director for Operations cc: SECY OGC OPE IE NRR 01 OIA I e
e,mehy i UNITED STATES f ) #,( [k NUCLEAR REGULATORY COMMISSION g WASHINGTON. D. C. 20555 / m j EN 2 9 S83 MEMORANDUM FOR: Chairman Palladino Comissioner Gilinsky Comissioner Ahearne Comissioner Roberts Comissioner Asselstine FROM: William J. Dircks, Executive Director for Operations
SUBJECT:
REPORTABILITY OF GPU INVESTIGATION REPORT AND DEPOSITIONS RE HARTilAN ALLEGATIONS This is in response to the Comission's request of April 8,1983, to determine whether the 1980 Faegre and Benson Report (Report) concerning the Hartman allegations and the 1982 depositions of Mr. Hartman should have been submitted in a more timely fashion to the Comission.
Background
Harold W. Hartman.1r. was a control room operator at TMI Unit 2 until i the March 28, 1979 at. 4 dent. In an interview conducted on May 22, 1979 by the Office of Inspection and Enforcement (IE), Mr. Hartman made allegations including that leak rate tests used to show compliance with THI-2 Technical l Specifications were manipulated in late 1978 and up until the accident with the knowledge of at least some supervisory personnel to avoid plant shutdown. These allegations were further discussed in the Rogovin Special Inquiry) deposition of Hartman dated October 29, 1979 and in a KOR-TV (Channel 9 interview of Hartman on March 24, 1980. The NRC initiated an investigation 1 into this matter in March of 1980, discussed the limited results of that investigation with the Department of Justice (D0J) and in April of 1980 halted its investigation at D0J's request. Since that time, DOJ has been investigating the matter via a Federal grand jury proceeding in Harrisburg, Pennsylvania.
- t a !' arch 21,19E3 meeting between Mr. R. Arnold of GPU and members of the G.C team reviewing the ELW-GFU trial court reccrd, Mr. Arnold referred to a GPU investigation into the Hartman allegations and noted that GPU was considering giving that investigation report to 00J. _1f The Report was subsequently forwarded by GPU to D0J and through 00J to the NRC with the request from D0J that NRC maintain the Report in confidence.
In early April of 1983, the NRC received a copy of the Report directly from GPU with no 1/ The report is entitled "Results of Faegre & Benson Investigation of Allegations by Harold W. Hartman, Jr., Concerning Three Mile Island Unit 2," dated September 17, 1980, hereinafter "the Report." CONTACT: James Lieberman, OELD 492-7496 Rl{llT 4
The Comissioners, t limits placed upon its use. The Report was discussed at the Comission meeting of March 30, 1983 and the Staff was requested to examine whether or not any reporting requirements were violated by the submittal by GPU of its Report in 1983, nearly three years after the Report had been finalized. The Staff was also requested to determine whether the depositions of Hartman taken in the B&W-GPU lawsuit on July 16 and August 18, 1982 should have I been submitted to the NRC. The depositions were received by the Staff on March 21, 1983 following a specific request to GPU. The Nature of the Report and Depositions 1 The Report sets forth the results of an investigation into the allegations made by Hartman based primarily upon plant records and technical data. The Report limits its inquiry as follows: The reader should understand clearly the limitations of this Report. We have not had access to those Metropolitan Edison employees with first-hand knowledge of the substance of Hartman's allegations. Virtually all TMI Unit 2 control room operators, foremen and supervisory personnel accepted the company's offer of legal counsel. In light of the pending federal grand jury proceeding, their counsel understandably declined to allow us to interview those employees during this investigation. They may be able to answer questions which this Report necessarily leaves unresolved. Because of our inability to interview key employees, this investigation has been based primarily upon our review and analysis of plant records and other technical 4 data. We also have relied upon limited interviewing of other plant employees. We have not been able to pursue every possible line of inquiry or lead. We have tried to indicate throughout the Report those areas which we have not pursued and those questions which remain open. (Report, Vol. 1, pp. 12-13.) The Report is primarily an investigation and analysis of plant records and other technical data related to ways the leak rate data could have been manipulated. While the Hartman allegations are analyzed technically, and a further extensive voluntary statement from Hartman was taken to aid the investigation, 2/ the Report does not evaluate the role or knowledge of any other individuaTs in the acts alleged. l! i 2/ Voluntary Statements of Harold W. Hartman dated April 27 and 29,1980. l These statements were in addition to the May 22, 1979 interview of Hartman conducted by I&E, the October 29,1979 deposition of Hartman taken by the l Regovin Special Inquiry, and the transcript of the March 24, 1980 WOR-TV j interview, all of which were available to the authors of the Report. I i
e n 3-The Comissioners s 1 i Indeed, the Report concludes: Apart from Hartman's own statements, we have no basis for evaluating his allegation that control room oper-ators, foremen and supervisors were subject to undue pressure to obtain " good" leak rate test results. The answer to that charge rests with control room personnel whom we did not interview for various reasons stated earlier. (Report, Vol. 1, p. 36.) The Report does not resolve the question of management integrity. 3/ And while the Report does contain extensive technical analyses, the 5thff had available to it the underlying data from which those analyses were made. The Staff did some analysis in developing the civil penalty assessed against Metropolitan Edison Company for violations of TMI-2 Technical Specifications associated with leak rates. See NUREG-0600. Further extensive analysis had been performed by the NRC Hartman investigation team in March-i April 1980. The Hartman depositions explored a number of areas in addition to the Hartman allegations set out above. The Report and depositions do not add substantially to the information of which the NRC was aware at the time those documents were prepared. Analysis of Reportability The substance of the Hartman allegations were known to the NRC shortly after the TMI-2 accident, nearly 1-1/2 years prior to the completion of the Report. No new allegations are raised in either the Report or the Hartman depositions. The Report fccuses primarily upon a technical analysis of the allegations. The substance of the Hartman allegations remain virtually unchanged as a consequence of the Report. The Report does not resolve the Hartman al-i legations. With ritspect to reportability, three separate approaches which could call for reportability have been identified. 3/ As part of the Staff's revalidation effort in this area, the Staff l concluded: Based on the inspection team review and resulting Report, the staff concludes that the issues raised by the Hartman allegations should not by themselves be a bar to restart. However, because of all the open issues identified above which were not considered in the revalidation program and Report, the staff can draw no conclusion regarding management integrity at this time. See Memorandum for the Comissioners from the EDO dated May 19, 1983. + ~ ..,-,e. ,.e. y-y ,~,--,emw. -y--, ..,...,,,,sm=. y,
~ The Comissioners 4-1 1. Specific License Conditions or Comission Regulations The TMI-2 facility license and its associated Technical Specifications and the Comission's regulations impose specific notification requirements upon the licensee for certain categories of events. It may well be that the licensee did violate such reporting requirements if the incidents alleged by Hartman did in fact occur. However, the reporting violation would have been the failure to report the incidents which were the subject of the Report and the depositions at issue within the time allowed for reporting the incidents and not the failure to provide the Report and the depositions. The creation of the documents themselves do not appear to give rise to any new reporting obligation under the plant technical specifications or a specific Comission regulation. 2. Reporting Obligations Under Section 186 Section 186 of the Atomic Energy Act of 1954, as amended, imposes a reporting requirement in a sense as it authorizes revocation of a license for any material false statement in the application or any statement of fact required under Section 182. In its VEPCO decision, the Comission held that 1 an omission (i.e., a failure to submit information) could constitute a material false statement. 4j Materiality of an omission or statement depends on "the context in which infor-mation appears and the stage of the licensing process involved" and "whether information has a natural tendency or capability to influence a reasonable agency expert." VEPCO, 4 NRC at 491. Put another way, " materiality should be judged by whether a reasonable staff member should consider the information in question in doing his job." Id. at 486. If the Staff had -4/ Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480 (1976), aff'd, 571 F.2d 1289 (4th Cir.1978). In VEPCO, the Commission held that some omissions were reachable under section 186. It reserved judgment as to whether all omissions could be reached: Whether or not enforcement consequences for less obvious or central omissions should await clarifying regulations, silence regarding issues of major importance to licensing decisions is readily reached under the statutory phrase " material false state-ment"....By reading material false statements to encompass omissiens of material data, we do not suggest that unless all information, however trivial, is forwarded to the agency, the applicant will be subject to civil penalties. An omission must be material to the licensing process to bring section 186 into play. Id. at 489, 491. ,y m ,y .,_.,_.,...,__-,,,-,_.m._., __.._.,--.,_m w, n._,,...,-.,-m,r.r,
The Comissioners. not been aware of the Hartman allegations and had not possessed the information it had concerning the allegations, the information contained in the Report and depositions would clearly have been of interest to the Staff and have had a natural tendency and capability to influence the Staff in formulating its positions in the restart matter. However, as indicated above, the Staff had substantial information concerning the Hartman al-legations. The Report and depositions do not expand the scope of the al-legations, resolve any of the allegations, or add substantially to the infomation of which the NRC was aware. The Staff was also aware in 1980 that GPU initiated an investigation of the Hartman allegations, but did not seek a copy of the investigation report. We conclude that the material omitted here does not meet the threshhold standard of having the ability to influence the " reasonable agency expert." Therefore, there is insufficient materiality to support a material false statement. 5/ 3. Duty to Report to Licensing Boards Although the Staff possessed substantial infomation concerning the Hartman matter, the Licensing Board's knowledge was limited to the SER's. 6/ The issue remains whether the licensee violated its board notification obli-gations. 7/ -5/ The present case where the Staff has the substance of the infor-mation at issue is unlike VEpCO where neither the Staff nor the Licensing Coard possessed the material. Nevertheless, an argument might be made that materiality should be judged on the basis of the material omitted in isolation of any other material the Staff might possess. This would prevent a licensee from benefiting when it failed to provide information it would otherwise be obligated to provide, on the basis that by chance the Staff already had the information. However, this latter circumstance does not appear to be the case here. The investigators preparing the Report had copies of the IE Hartman interview and the Rogovin depositicn (Report a. 1) and had notes of IE interviews prepared by licensee representatives (Report at 8-12). In addition Supplements 1 and 2 of NUREG-0680, the Staff's SER, briefly addressed the Hartman allegations. The licensee clearly had indications of the material the Staff possessed. However, the reasons for the licensee's actions l are not clear. 6/ On May 4, 1983, GPU provided the Report to the Appeal Board. -7/ Board notifications are required even if the Staff has received the material. The Appeal Board has said that "[t]he obligation to provide infomation to adjudicatory bodies requires that infomation be submitted to them directly." Tennessee Valley Authority (Brown Ferry Nuclear Plant, Units 1, 2 and 3), ALAB-677, 15 NRC 1387, 1394 (1982).
The Comissioners. Parties to Comission proceedings have an " absolute obligation to alert adjudicatory bodies directly regarding...new information that is relevant and material to the matters being adjudicated...." 8/ Consequently, if the subject matter of the Report or the Hartman depositions were considered to be new information that is relevant and material to matters being adjudicated in the TMI-l Restart Proceeding, the licensee may have violated its notification obligations to the Licensing Board presiding over that proceeding. Supplement 1 to the Staff SER 9/ discussed the leak rate allegations in regard to issue 10.10f Witholit mentioning Hartman by name, the SER stated: 0 During interviews with the NRC, the SIG, and the media, allegations were made by a former TMI operator concerning the implementation of the RCS leakage procedure and improper data collection. The allegations raised concerns regarding the principles of compliance with operating procedures and management philosophy and actions. Supplement 2 to the SER stated that the leak rate information was included in the first supplement because the investigation of the matter could turn up information which is relevant to past management practices. 11/ The Supplement further stated that the leak rate matter was only of historical significance in light of the licensee's clear management policies and based upon the Staff's current knowledge. H/ The Board made a brief reference 8_/ Id. 9/ NijREG-0680, TMI-l Restart, 37 (Nov. 1980). 10/ Issue 10 involved: Whether the actions of Metropolitan Edison's corporate or plant management (or any part or individual member thereof) in connection with the accident at Unit 2 reveal deficiencies in the corporate or plant management that must be corrected before Unit 1 can be operated safely. CLI-80-5, 11 NRC 408, 409 (1980). H/ NUREG-0680, Supplement 2, at 9 (March 1981). 12/ Id. at 10. The Staff has stated to the Comission in the "NRC Staff's Comments on the Analysis of GPU v. B&W Transcript" (April 18,1983), that the wording of this conclusion in Supplement 2 "should have been more precisely stated to be that the actions taken by the Licensee in light of the Hartman allegations were adequate to address the concerns identified."
s The Commissioners to this subject in its August 1981 decision.13/ Given the reference to the leak rate matter in the Staff's SERs and the caveat in the Licensing Board's August 1981 decision, the Hartman allegations are relevant to the management issue. A number of factors might militate against making a board notification. As indicated above, the Staff discussed the leak rate allegations in Supplements 1 and 2 of the SER (NUREG-0680). In Supplement'2, at 9-10, the Staff concluded that there appeared to be no direct connection between the leak rate matter and the Unit 2 accident. None of the parties challenged the Staff's con-clusion. The essential thrust of the Hartman allegations, i.e., the possible falsification of leak rate data, was known by the Board and the parties. They were also aware that the allegations had been referred to D0J and 00J had requested the NRC to suspend its investigative effort of the allegations pending conclusion of the D0J investigation. Another consideration is the evolving nature of the management integrity issue with the attendant uncertainty as to when the issue encompassed the Hartman allegations. Nonetheless, any uncertainty regarding board notification should have been resolved in favor of notification.14/ Thus, we conclude that the licensee should have made a board notificatioii. The Staff recognizes that in reaching -13/ Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-81-32,14 NRC 381, 557-58 (1981). Specifically, the Board quoted from NUREG-0680, Supplement 2, and concluded: Due to our limited information and given the posture of an ongoing D0J investigation, we have no basis to conclude that restart should not be permitted until the D0J investigation is complete. Id. at 557. The Licensing Board further concluded that "[s]ubject t6 this [ leak rate] matter," and except as identified in the cetailed findings, there were not ceficiencies in GPU management arising from the Board's inquiry into GPU's response to the Unit 2 accident which have not been corrected and which must be corrected before there is reasonable assurance that Unit 1 can be operated safely. 14/ The Appeal Board has stated that "[a]ny uncertainty regarding the relevancy and materiality of new information should be decided by the presiding board." Duke Power Co. (McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 n.15 (1973).
The Commissioners. this conclusion it might also be subject to criticism for not providing additional information on the Hartman matter. The Staff did not do so in order to avoid any possible interference with the D0J investigation. In this connection it should be recognized that there is an inherent conflict between the board notification obligation and the protection of information developed during an ongoing investigation. 15/ (signesWilham1.Dircks William J. Dircks Executive Director for Operations cc: SECY Distribution OGC OPE WDircks, ED0 EDO Rdg VStello, EDO RDeYoung, IE Region I HDenton, NRR 01 GCunningham, ELD EChristenbury, OELD JLieberman, OELD ROED Rdg R0ED Sub Central File ELD Rdg -15/ Another example of this inherent conflict fcilows. The Comission has before it the results of an investigation of the VV and Miller cheating incident together with the views of the Staff on the appropriateness of any enforcement action. Given these circumstances, these documents have not been provided to the Appeal Board which is reviewing the cheat-ing issue. b w w 9." u3 b of s\\. rs M w s sa em '4: ELD W
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