ML20207M059
| ML20207M059 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 01/08/1987 |
| From: | Herbein J AFFILIATION NOT ASSIGNED, ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| CON-#187-2152 86-519-02-SP, 86-519-2-SP, LRP, NUDOCS 8701130074 | |
| Download: ML20207M059 (20) | |
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00CKETED U3flRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
- 87 JE -9 P3 :02 BEFORE THE PRESIDING BOARD i.u.
)
In the Matter of
-)
)
Docket No. LRP INQUIRY INTO THREE MILE
)
ASLBP No. 86-519-02'SP ISLAND UNIT 2 LEAK RATE
)
DATA FALSIFICATION
)
)
)
PROPOSED FINDINGS OF FACT OF JOHN G. HERBEIN 1.
In December, 1985, the Commission entered an Order and Notice of Hearing initiating a legislative hearing in which this Board was to develop the facts surrounding leak rate testing falsifications that allegedly occurred at Three Mile Island Unit 2 ("TMI-2") between February 2, 1978, and March 28, 1979, in sufficient detail to determine the involvement of any individual who may now, or in the future, work at a licensed nuclear facility.
The Commission directed us to submit a recommended order at the conclusion of the hearing setting forth the facts and identifying those indivi-duals who participated in, or knew of and condoned, or, by their dereliction or culpable neglect, allowed leak rate testing falsifications at TMI-2.-1/
1/
Order, 22 NRC 877 (1985).
h[OOO [O h
O PDR
. l, The Issues 2.
Specifically, the Commission directed us to address a limited number of issues, including:
(a). How were the Technical Specification 3.4.6.2.
requirements for reactor coolant systems unidentified leakage interpreted and implemented by.
. off-site management?
Following the discovery by an NRC inspec-tor in October, 1978, that Technical Specification 3.4.6.2.. requirements were not properly interpreted or implemented, what corrective action was taken by manage-ment personnel?
Was the corrective action taken sufficient to insure compliance with the Technical Specification 3.4.6.2. by the personnel performing and reviewing the leak rate surveillance tests?
(b)
What difficulties, if any, were operators experiencing when conducting leak rate surveillance tests required by Technical Specification 4.4.6.2.d?
Who knew about these difficulties?
. Did operators feel pressure to obtain leak rate surveillance test results which did not exceed technical specification limits?
If so, what type of pressure was perceived or exerted and who was responsible?
(c)
Were unacceptable leak rate surveillance test results required by Technical Specification 4.4.6.2.d discarded?
If so, who knew of, condoned or directed this practice?
(d)
Did operators manipulate data or take other actions during leak rate surveillance testing in an attempt to improperly influence test results?
Who performed, condoned, directed or was knowledgeable of data manipulation or other improper actions during leak rate surveillance testing?2/
3.
In answering the Commission's questions, our task is to determine whose action, or knowing inaction, led to leak rate testing improprieties at TMI-2.
We will not find an individual responsible simply because he held a certain position within the Company.
We reject the notion 2/
Id. at 880-81.
~
u of " captain of the ship" or ultimate, corporate responsibility.
We turn now to our findings regarding John G. Herbein.
John G.
Herbein 4.
Herbein is a Naval Academy graduate, with extensive experience in nuclear power and management.
He spent seven years in the Navy and attended the Naval Nuclear Power School.
After his release from the Navy, Herbein worked at the Yankee, Saxton and TMI nuclear plants in 3/
operational and managerial positions.-
5.
Between February, 1978, and March, 1979, Herbein was Metropolitan Edison Company (" Met-Ed") Vice President of Generation.
In that position, Herbein was responsible for the overall operation, maintenance, admini-stration, quality assurance, and related technical engineering support activities associated with Med-Ed's generating stations.
At that time, Met-Ed operated one two-unit nuclear station, two multi-unit coal-fired stations, one hydro-electric station, and fourteen combustion turbines.
Addition-ally, Met-Ed was partial owner of a coal-fired station owned by Pennsylvania Electric Company.~4/
In carrying out his duties and responsibilities, Herbein was engaged in a wide-range of activities, including:
interactions with his subordinate managers; plant inspections and visits; budget and rate case development; state and federal licensing 3/
Herbein, ff. Tr. 5268, at 1-3.
4/
Id. at 4.
J. -
proceedings; corporate and industry meetings; personnel 5/
related issues; and, community relations.~
TMI Management Structure 6.
To discharge his broad duties and responsi-bilities for the operation of TMI, it was necessary for 6/
Herbein to rely on a chain of command.~
At TMI, control room operators ("CROs") were assigned to five operating shifts.
Each shift had a Shift Foreman in charge.
The Shift Foremen reported to the Shift Supervisors, who reported in turn to the Supervisor of Operations.
The Supervisor of Operations, the Superintendent-Technical Support and the Supervisor of Maintenance reported to the Unit 2 Superin-tendent.~7/ The Unit 2 Superintendent reported to the TMI station Superintendent, Miller, the hirhest level of manage-ment stationed on the Island itself.~8/
The Station Super-intendent reported to the Manager of Generation Operations, 9/
Lawrence Lawyer, in Reading, Pennsylvania.~
He in turn reported to Herbein, the Vice President-Generation, also in Med-Ed's corporate offices in Reading.
Additionally, the 5/
Id. at 4-5.
6/
Exhibit I-A, Stier Vol. VI(F), 4/23/84 Interview. of
~
Herbein at 6-7.
7/
Id. at 6-7 8/
Id. at 7.
Exhibit I-A, Stier Vol. II(B)), Gary Miller at 1.
-9/
Herbein, ff. Tr. 5268 at 7.
After March 5, 1979, the Station Superintendent became Station Manager and began reporting directly to Herbein.
Herbein, ff. Tr. 5268 at 7.
I.
Manager of Generation Administration, the Manager of Gener-ation Engineering, the Msnager of Quality Assurance and Training and the Maned r of Maintenance, all located in 10/
Reading, also reported to Herbein.
- 7. / Herbein was kept apprised by the chain of command of significant events at TMI.
For example, if the reactor would trip, or if there was a problem that would limit the achievable power level, Herbein would be in-11/
formed.--
Additionally, problems requiring his input or 12/
resolution were brought to his attention.--
8.
Herbein also relied on four formal review 13/
committees for information about the operation of TMI-2.
~-
The most important to our inquiry here is the Plant Opera-tions Review Committee ("PORC").
The PORC was an advisory group, chaired by the Superintendent of Technical Support, that reported to the Unit Superintendent.
The PORC was required by TMI-2 technical specifications to review proce-dure changes and plant modifications, as well as activities directly affecting the nuclear safety of the operating units.--14/
9.
Herbein testified that the leak rate testing 10/
Herbein, ff. Tr. 5268 at 7.
11/
Id.
12/
Id. at 8.
13/
Id. at 5-6, 8.
14/
Id. at 8.
situation, as he now understands it, was a problem that should have been brought to his attention.--15/
The people reporting directly to Herbein, however, did not know of leak rate testing problems or manipulations, and could not bring them to his attention.
Specifically, Miller did not know and there is no evidence that Lawyer was aware.
There is no evidence that anyone in Reading had any knowledge of the 16/
actual leak rate testing situation.--
In fact, Stier concluded that knowledge of test manipulation remained at a low level within the operations department, and that there was no direct evidence that management above the Operations 17/
Department was aware of leak rate testing difficulties.--
Moreover, Stier's investigation and this inquiry did not reveal any evidence that any of the review committees ever 18/
informed Herbein of leak rate testing problems.--
Interpretation of Leak Rate Technical Specifications 10.
The record in this proceeding does not show that Herbein had any specific involvement with the interpre-tation of Technical Specification 3.4.6.2 or any related surveillance or administrative procedures.
What the record does show is that Herbein regarded technical specifications, 15/
Id. at 14; Tr. 5307-08 (Herbein); See Tr. 1996 (Stier).
--16/
tiiller, ff. Tr. 5039 at 5, 20; Exhibit I-A, Stier Vol.
VI(G), 11/10/83 Interview of Lawrence Lawyer at 38-42, 65-66; Id.,
Stier Vol. II-B, John Herbein at 5-6.
17/
Exhibit I-A, Stier Vol. I at 134, 136.
18/
Id. at 138.
and the surveillance procedures'in particular, as invio-lable.. Seelinger' stated that upper management held techni-
-19/
cal-specifications "in.the highest regard." -
Stier testified that early in the operation of TMI-1,-a leak rate test was not filed within the' required time interval and an LER issued.
Herbein became aware of the situation'and responded by creating a system and a new job position, the GMS coordinator, to more closely monitor performance of surveillance tests.
Herbein wanted to assure that tests 20/
were performed' properly and in a timely manner.--
The October, 1978, LER Incident 11.
On October 18, 1978,' NRC Region'I Inspector Donald Haverkamp became aware that leak rate test results in excess of the allowable limits had been obtained, but that TMI-2 operations personnel had not entered the action 21/
statement as required'by the technical. specifications.--
Haverkamp. testified that he brought this situation to the attention of James Floyd, Supervisor of Operations, and James Seelinger, Unit 2 Superintendent for Technical Support.--22/
Seelinger sent a Prompt Report to the NRC of the incident on 19/
Exhibit I-A, Stier Vol. VI(J), 4/4/84 NRC-OI Interview of James Seelinger, at 31.
20/
Tr. 1992-93 (Stier).
21/
Exhibit 20 (Haverkamp) at 2-3.
22/
Id. at 4-5.
Floyd does not recall discussing this with Haverkamp.
Floyd, ff. Tr. 4894 at 7.
'L..
-s-23/
October-19, 1978.
.On NovemberL1, 1978, under~a transmittal Lletter-to the NRC signed by Herbein', Met-Ed filed LER 78-62/lT
}
which contained the follow-up report.--24/
1 12.
As noted above, the Commission has asked us i
to determine what corrective action was taken by management after Haverkamp's October, 1978, inspection and whether_that action was sufficient.
Without discussing the specifics here,J t' appears, in hindsight, that the_ corrective action was i
not sufficient..It is clear that the October, 1978, incident and the related LER had no effect on CRO's interpretation of
.the applicable technical specifications or on their leak 25/
l rate test practices.--
13.
We cannot, however, fault Herbein.
Herbein was not given information at the time that would have caused him to realize the scope of the problem and, therefore, the 26/
scope of. corrective action necessary.--
Rather, the weight of the evidence leads us to conclude that Herbein would have t
reasonably believed that the corrective action recommended f
in LER 78-62/lT would be taken and would be sufficient to correct the problem as he would have understood it.
[
14.
Herbein has no specific recollection of the 23/
Exhibit I-A, Stier Vol. V(c) at Tab 31.
24/
Id. at Tab 29.
25/
See Exhibit I-A, Stier Vol. I at 144.
26/
See Id. Stier Vol II(B), John Herbein, at 8... _ _ -,. - - _ _. - - _.
~/
27 This is not unreasonable given the breadth of LER.
Herbein's job responsibilities, the volume of information he forwarded to the NRC, and the length of time that has passed 28/
since the LER was filed.
Even if Herbein recalled the LER,'his knowledge would be limited because he relied on his staff to prepare LERs.
Herbein testified that drafts were typically prepared by corporate licensing personnel with assistance from TMI personnel.
Licensing personnel would then interact with various generation department heads in Reading, the PORC, and the appropriate personnel at TMI to further develop the drafts.
Only after these reviews were LERs brought to Herbein for signature.
Herbein reviewed all LERs to ascertain that they were responsive to the reporting requirements and that they had been recommended for approval by the appropriate, qualified personnel.
If he had a problem with an LER, he would send it back to the licensing group for resolution.-29/
15.
LER 78-62/lT would not have given Herbein any reason to believe that the problem was anything other than a routine, isolated incident that had been corrected.
Herbein 30/
reads the LER this way today, as do Haverkamp and Stier. ~
27/ Herbein, ff. Tr. 5268 at 10-11.
~"28/
We also note that ti.e LER in question was TMI-2's 62nd LER of 1978.
Tr. 1993 (Stier).
_29/
Herbein, ff. Tr. 5268 at 11-12.
30/
Id. at 12; Tr. 5274 herbein); Tr. 2162 (Haverkamp);
Stier Vol. II(B), John Herbein at 8.
-~
{eExhibitI-A, 1
The language of the LER implies that a limited number of operators misinterpreted the technical specifications.
First, the LER refers to "this event,", implying an isolated 31/
incident.
Second, the LER states, "[I] t was not clear to the personnel involved as to.
. when the time requirements 32/
of the action statment were applicable."--
The LER also states that, "The appropriate personnel will be instructed on the applicable sections of the (technical specifica-33/
tions)."--
There is no indication in this language, or anywhere else in the LER, that " personnel involved" or
" appropriate personnel" meant virtually all control room personnel, and that the problem was anything other than an isolated incident that had been corrected.
16.
Herbein's reading of-the LER is reasonable.
Significantly, Haverkamp reads the LER the same way.
Haverkamp was the one who discovered the misinterpretation of the 34/
technical specifications.
He visited the plant often.
He knew the personnel involved and was in an excellent position to evaluate the significance of his discovery and 35/
~~
the description in the LER of the incident he witnessed.
31/
Exhibit I-A, Stier Vol. V(C) at Tab 29
(_ emphasis added).
32/
Id.
(emphasis added).
33/
Id.
(emphasis added).
34/
Exhibit 20 (Haverkamp) at 2-3.
35/
Tr. 2159 (Haverkamp).
i-Yet, even Haverkamp testified that he believed that the LER accurately reflected a routine, isolated incident that had been corrected. --36/
17.
Stier arrived at essentially the same conclu-sion.
Stier concluded that:
[T]he extent of Herbein's knowledge of [ improper leak rate test] practices was severely limited by misleading statements included in the-LER.
Such statements did not truly describe the events which gave rise to the LER and did not accurately-describe the action taken in response to indica-tions of excessive unidentified leakage.3]/
As Stier testified, there was nothing from which Herbein could even infer that there were difficulties with leak rate testing. --38/
Thus, Herbein could not have known from the'LER that the problem of misinterpretation of the leak rate test technical specifications was widespread.
Corrective Action 18.
Herbein also relied on his managers to implement the corrective action outlined in the LER.--39/As we indicated above, that corrective action proved insufficient.
We saw no evidence that Herbein was ever made aware of this in-sufficiency.
The only information about the corrective action that reached Herbein came from the NRC.
Haverkamp followed up 36/
Tr. 2162 (Haverkamp).
37/
Exhibit I-A, Vol. II(B), John G.
Herbein at 8.
38/
Tr. 1995 (Stier).
39/
See Tr. 5284 (Herbein).
on the LER with an on-site review.
Haverkamp testified that 40/
the focus of his follow-up was the corrective acticn.--
After Haverkamp's follow-up, the NRC advised the Company, in a letter addressed to Herbein, that:
[Haverkamp] verified that-the reporting require-ments of Technical Specifications
. had been met, that appropriate corrective action [had] been taken, that the event was reviewed by the licensee as required by the Technical Specifications, and that continued operation of the facility was conducted in conformance with Technical Specifi-cation limits.41/
Thus, the NRC concluded that the LER had been satisfactorily resolved and advised Herbein accordingly.
Knowledge of Operator Difficultien 19.
The evidence shows that Herbein had no knowledge of the difficulties operators were experiencing when conducting leak rate surveillance tests.
Herbein denied any such knowledge.--43/ There is no reliable evidence that anyone ever informed Herbein of such difficulties.
No one testified that he discussed leak rate test problems with Herbein.
As discussed above, the LER only informed Herbein of a single, isolated instance of technical specification misinterpretation.
Moreover, Herbein, in his role as a corporate officer, could 40/
Tr. 2060-66 (Haverkamp).
41/
Exhibit 20, Exhibit E at 12.
42/
Id.
43/
Herbein, ff. Tr. 5268 at 13.,
4
(
6 not reasonably been expc-ted to have uncovered these dif-44/
ficulties on his own.
Herbein had little direct contact with TMI control room operations personnel.
He visited TMI every four to six weeks to meet with TMI management and take 45/
a plant tour to show concern and boost morale.
20.
The only " evidence" in the record that might indicate that'Herbein knew of the leak rate test difficul-ties is a telephone call described in the U.S. Attorney's Statement of Facts in U.S. v. Metropolitan Edison:
A shift supervisor would testify that as a result of the October 18, 1978, NRC inspec-tion a conference telephone call was made from the shift supervisor's office in the Unit 2 control room.
Present in the shift i
supervisor's office and parties to the con-versation were the Superintendent of Techni-cal Support, the Supervisor of Operations, and two shift supervisors.
The call was made to either TMI's Station Superintendent or Metropolitan Edison's Vice President for Generation, or both.
The Station Superin-tendent and/or the Vice President for Generation were briefed on the situation at TMI Unit 2 concerning the leak rate test.
During the Conversation the operations personnel alerted the Station Superintendent and/or Vice President for Generation that because of the numerous " bad" leak rate tests obtained at Unit 2, the NRC's inter-pretation of the leak rate technical speci-fications would result in repeated shutdown of the facility.46/
21.
The record does not support the U.S. Attorney's 44/ 'See Exhibit 3.
4,5/
Herbein, ff. Tr. 5268 at 6.
46/
Exhibit I-A, Stier Bol. V(A) at Tab 2.
1 E.
bare allegation.
Herbein and Miller testified that they do 47/
not recall.any such telephone call.
Herbein emphatically stated that if he had been involved in such a telephone conversation, he would remember it.--48/
Moreover, the shift supervisor,. Joseph Chwastyk, who informed the U.S. Attorney that he overheard the call, testified that he does not know who the call was with, and that he told the U.S. Attorney 49/
that "it could have been anybody."--
The U.S. Attorney, or his assistant, asked Chwastyk if it could have been Miller 50/
or'Herbein.
The U.S. Attorney suggested no other natues.
Chwastyk " agreed that it could have been Mr. Miller, Mr.
51/
Herbein or both, but [he] had no way of knowing."--
The admitted speculation of Chwastyk in response to coaxing by the U.S. Attorney does not suffice to support a conclusion that Herbein was told about leak rate difficulties in a conversation denied by both Herbein and Miller.
Pressure On Operators to Obtain Results Within Technical Specification Limits 22.
There is no evidence in the record which indicates that Herbein placed pressure on operators to obtain results within technical specification limits.
Since Herbein had virtually no direct contact with CROs, he would
--47/
Herbein, ff. Tr. 5268 at 10; Miller, ff. Tr. 5039 at 19.
48/
Herbein, ff. Tr. 5268 at 10.
49/
Tr. 3512 (Chwastyk).
50/
Id.
51/
Chwastyk, ff. Tr. 3407 at 5.
4 have had to have exerted pressure through his managers.
These managers deny exerting pressure on anyone to obtain 52/
acceptable leak rate test results.--
We can only conclude, therefore, that Herbein exerted no pressure on operations personnel to obtain " good" leak rate test results.
Discarding of Test Results 23.
There is no evidence in the record that Herbein knew of, condoned or directed.the practice of dis-carding tests with unacceptable results.
Herbein denied 53/
that he knew of, condoned or directed that practice.--
No witness testified, and no documents revealed, that Herbein was ever aware that operators were discarding test results.
Manipulation of Test Results 24.
There is no evidence in the record that Herbein performed, condoned, directed or was knowledgeable I
of data manipulation or other improper actions during leak rate surveillance testing.
Herbein denied any such aware-54/
ness or involvement.
No witness or documentary evidence l
l contradicted him.
--52/
Floyd, ff. Tr. 4894 at 5; Exhibit I-A, Stier Vol. VI( f),
4/4/84 NRC-OI Interview of Seelinger at 31; See Tr.
1969-70 (Stier) (Miller never exerted pressure).
53/
Herbein, ff. Tr. 5268 at 13.
54/
Id. ____ _ ___.
9
- 4' CONCLUSIONS 25.
At.all times during his testimony, Herbein was. forthright, candid and credible in his responses to our questions.
Herbein-testified that, as Vice President for
' Generation, he must accept ultimate responsiblity for any improprieties committed'within the TMI-2 operations depart-ment.-~55/
As we stated above, however, we are not concerned with " captain of the ship" or ultimate corporate responsibility.'
26.
We conclude that Herbein had no knowledge of leak rate testing problems or improprieties.
This was not due to any neglect or dereliction of duty on his part.
Herbein had to rely.on TMI personnel and the formal review
~
committees to operate TMI in compliance with all regula-tions.
Those managers and committees never informed Herbein of leak rate testing problems and practices.
The only information that rose to Herbein's level about leak rate testing was in the LER, which inaccurately-portrayed the situation.
The NRC itself informed Herbein that the LER had been satisfactorily resolved.
Thus, Herbein had no infor-mation available to him from which he could have discovered that something was amiss with leak rate testing.
27.
This find?.ng is consistent with the results of GPU's own investigation.
Prior to the initiation of this I
proceeding, GPU retained Stier to investigate allegations of leak rate testing improprieties at TMI-l and TMI-2.
Stier 55/
Id. at 14; Tr. 5283-84 (Herbein). <
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investigated numerous people associated with TMI leak rate testing, and thoroughly reviewed available documentary evidence.
After reviewing Stier's findings, that panel concluded that Herbein "did not know, and could not reasonably be expected to have known, of the improper leak rate practices at TMI-56/
2."--
Stier testified that he knew of no factual information 57/
in conflict with the panel's conclusions.~-
28.
Based on our careful review of the extensive record in this proceeding, we can only conclude that there is no justification for maintaining any restrictions cir-rently imposed on Herbein relating to employment at a licensed nuclear facility.
a 56,/
Exhibit 3.
57/
Tr. 1994-95 (Stier).
The above Proposed Findings of Fact are respect-fully submitted on behalf of John-G. Herbein.
1 -
John G.,Herbein l/ *
./-
j By A.
e of Kjd. Attorneys Isham, Lincoln & Beale Three First National Plaza Suite 5200 Chicago, IL 60602 Telephone:
(312) 558-7500 k
1
..=,.,-m,--v
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DX KE li f' UNITED STATES OF AMERICA U3 NIT NUCLEAR REGULATORY COMMISSION
'87 JM -9 P3 :02 I
In the Matter of
)
00CFLTIK s 9 *MI.
)
Docket No. LRP BU NC" INQUIRY INTO THREE MILE ISLAND
)
ASLBP No. 86-519-02 SP UNIT 2 LEAK RATE DATA
)
FALSIFICATION
)
)
CERTIFICATE OF SERVICE I hereby certify that I have served copies of the attached " Proposed Findings of Fact of John G.
Herbein" by Federal Express, Overnight Delivery, or United States mail, first class, postage prepaid, to the following persons this 8th day of January, 1987:
Docketing and Service Branch U.S.
Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge James L. Kelly, Chairman Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge Glenn O. Bright Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 Administrative Judge James H. Carpenter Atomic Safety and Licensing Board Panel U.S.
Nuclear Regulatory Commission Washington, DC 20555 Jack R.
Goldberg, Esq.
Office of the Executive Legal Director U.S.
Nuclear Regulatory Commission Washington, DC 20555
e'.
J Ernest L. Blake, Jr., Esq.
Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.
~
Washington, DC 20036 Michael W. Maupin, Esq.
Hunton & Williams P.O. Box 1535 Richmond, VA 23212 Ms. Marjorie M. Aamodt 200 North Church Street Parkesburg, PA 19365 Ms. Marjorie M. Aamodt P.O. Box 652 Lake Placid, NY 12946 Harry H. Voigt LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Ave., N.W.
Washington, DC 20036 Smith B.
Gephart, Esq.
Killiam & Gephart 216-218 Pine Street Box 886 Harrisburg, PA 17108 Christopher W.
Flynn January 8, 1987 4