ML20215M267
| ML20215M267 | |
| Person / Time | |
|---|---|
| Site: | Crane  |
| Issue date: | 10/27/1986 |
| From: | Au T PENNSYLVANIA, COMMONWEALTH OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#486-1298 ALAB-850, CLI-85-19, CLI-86-09, CLI-86-19, CLI-86-9, RA-EW, NUDOCS 8610300135 | |
| Download: ML20215M267 (10) | |
Text
ifh .] U. S. NUCLEAR REGULATORY COIDilSSION DOCKETED USNRC In Re: 86 0CT 29 P1 :56 Edward Wallace (GPU Nuclear Corporation, Docket No. 50-289-EW Three Mile Island, Unit 1) CFFIE O: DOCi _ : CORDdONWEALTH OF PENNSYLVANIA'S PETITION FOR REVIEW Pursuant to 10 C.F.R. S2.286(b) the Commonwealth of Pennsylvania (" Commonwealth") hereby petitions for review of the Order of the Commission of December 19, 1985, CLI-85-19, 22 NRC 886 (1985), which established proceedings concerning Edward Wallace of the Advisory Opinion and Notice of Hearing of the Commission of May 15, 1986, CLI-86-9, 23 NRC 465 (1986) which established the procedures governing the Board in the above-captioned matter, and of the Atomic Safety and Licensing Appeal-Board's Decision of October 9, 1986, ALAB-850, NRC (1986), which terminated the proceedings. 1. On February 25, 1985, as part of the Restart Proceedings of General Public Utility Corporation's Three Mile Island Unit 1, the Nuclear Regulatory Commission ("the Commission") ordered that Edward Wallace could not be employed at Three Mile Island, Unit 1 (TMI-1) without specific Commission approval. CLI-85-2, at 94, 21 NRC 282, (1985) (hereinafter "the authorization / notification requirement"). The authorization / notification requirement was imposed because Wallace had "made material false statements to the NRC [which reflected] some lack of integrity in licensee's management Since the Commission has decided that this issue is no longer significant because of the removal 8610300135 861027 PDR ADOCK 05000289 [khl)
of... Wallace, licensee is to notify the Commission before
- 11. at returning [him] to responsible positions at TMI-1."
3 64, 21 NRC at The material false statements made by Wallace were in a Response to the Commission's Notice of Violation concerning the March 28, 1979 accident at Three Mile Island, Unit 2. 2. On March 27, 1985, Wallace requested a separate hearing "to determine whether the adverse implications about the undersigned's management integrity are factually substantiated." 3. On December 19, 1985, the Commission established proceedings to determine whether Wallace "willingfully, knowingly, or with a reckless disregard for the truth made a material false statement to the NRC." CLI-85-19, 22 NRC 886 (1985). It held that if there was no reasonable basis for concluding that Wallace had made. false statements willfully,. knowingly, or with-a reckless _ disregard for the truth, then it would lift the authorization / notification requirement imposed in CLI-85-2. 4. On January 24, 1986 the Commonwealth objected to the proceedings initiated by CLI-85-19, arguing that the procedures were not authorized by the Commission rules. See Commonwealth of Pennsylvania's Comment on Commission Order CLI-85-19. 5. On May 15, 1986, the Commission issued an Advisory Opinion and Notice of Hearing, CLI-86-9, 23 NRC 465 (1986), which granted Wallace's request for a hearing. The Commission held that it could not clear Mr. Wallace without additional evidence. However, the Commission placed the burden of production and persuasion upon "any party who advocates that Wallace made a knowing, willful, or reckless material false statement.... 2
If no person intervenes against Wallace and NRC Staff does not advocate a position against Wallace, then the proceeding shall be terminated and the TMI-1 notification requirement as to Wallace shall be removed." 33 NRC at 472. 6. On June 30, 1986 the Commonwealth petitioned to intervene as an Interested State because it has and had a continuing interest in the safe operation of the Three Mile Island Nuclear Station in Pennsylvania and in the integrity of those who hold management positions affecting the safety of the Three Mile Island units. Although GPU Nuclear Corporation is not presently proposing to assign Mr. Wallace to any management responsibility for the Three Mile Island Unit 1, one of the results of this proceeding may be the lifting of any conditions on his employment relating to the Three Mile Island units. Commonwealth's Petition for Leave-to Participate As an-Interested State, at 2. 7. On July 17, 1986 the Commission Staff in its answer to the Commonwealth's Petition, opposed the Commonwealth's Intervention because that intervention did not in itself trigger a hearing. 8. On August 1, the Commonwealth replied, noting that a hearing on the matter was required in light of the Commission's prior statements and findings on the subject. Commonwealth's Reply to NRC Staff Answer. 9. No party sought intervention in the proceeding to advocate a position against Wallace because the Commission had changed its evidentiary requirements in this proceeding. In the NRC Staff's Comments in Response to CLI-85-19, the Staff noted that Wallace's statements in the Response to the Commission's Notice of Violation were contrary to conclusions made by a GPU 3
l internal task force which prepared the "Keaton" Report, of which Wallace was fully aware. The Staff also stated that Wallace was aware that these statements were contrary to a NRC Staff report, NUREG-0680, Supplement No. 5 concerning leaking power-operated release valves. Specifically, the Staff wrote in its Comments: I With respect to the post-accident violation, Wallace was aware, at the time he prepared i j the Response, of evidence including operators' statements and the conclusions of the [ internal] i task force and TDR-054 that pre-accident high tail pipe temperatures may have played a rule in the operators' not recognizing the stuck open PORV during the early state.' l of the accident, but he discounted those findings. i Staff Comments, at 10-11. Hence, the Staff supported its original l finding that material false statements were made. But when i the additional element of scienter was added, the Staff wrote that it "is unable to conclude on the basis of available information that the false statements in the response were willfully submitted." 2 Jd. at 11. I 10. On August 19, 1986, Administrative Law Judge Ivan Smith terminated the proceedings and removed the notification l requirement because no party advocated a position against Wallace. ALJ-86-3, 24 NRC (1986). 11. The Commonwealth appealed to the Atomic Safety and Licensing Appeal Board on September 4, 1986. 12. The Atomic Safety and Licensing Appeal Board affirmed l the Judge's order on October 9, 1986. ALAB-850, 24 NRC f (1986). i 13. The Commonwealth has challenged the improper procedures established by CLI-85-19 and CLI-86-9 in its appeal to the Atomic t 4 -- -.... A
Safety and Licensing Appeal Board. The issues are now ripe for adjudication. Any appeal of this proceeding prior to this time would have been interlocutory, in violation of 10 C.F.R. S2.720(f). 14. The Commission has made two fundamental errors in CLI-85-19 and CLI-86-9. In CLI-85-19, the Commission altered the standard necessary to support its previously imposed order. The Commission imposed the notification / authorization requirement in CLI-85-2 based on the Commission's finding that Wallace made material misstatements of fact. This original order is proper, and is a fitting condemnation of all misstatements to the Commission, regardless of intent. CLI-85-2 requires a strict standard of care reflecting the heightened scrutiny that a dangerous industry ' ~ such as the nuclear industry requires. Imposing sanctions for material false statements without regard to motive or intent is consistent with a high degree of diligence expected of the nuclear industry, and is necessary for the protection of the public. Therefore, the notification / authorization requirement required was properly adopted in light of the seriousness of the misstatements. However, in CLI-85-19, the Commission reopened the matter and without any justification, required an additional element of scienter in order to retain the notification / authorization requirement. The Commission in essence is stating to the public that not only may findings of fact be changed arbitrarily, it is also suggesting that only in cases where the evidence is conclusive that the author has intended to deceive the Commission 5
or the public will the Commission impose sanctions. The Commonwealth objects to this arbitrary alteration of evidentiary requirements and the resulting lower degree of scrutiny of the regulated nuclear industry, and the implications for TMI-1 in particular. 15. In CLI-86-9, the Commission improperly shifted the burden of proof to parties supporting retention of the notification / authorization requirement. The Order that GPU Nuclear Corp. notify and seek authorization from the Commission before it place Wallace in a responsible managerial position at TMI-1 was established in CLI-85-2 and was supported by abundant evidence. See 1) January 23, 1980 letter from NRC Office of Inspection and Enforcement to Metropolitan Edison Company; 2) Report of NRC Office of Nuclear Reactor Regulation on GpU v. B & W Lawsuit and its Effect on TMI-1, NUREG-1020 LD; '3) June 15, 1984 Report by NRC Office of Investigations on the Keaton Report Investigation; and 4) NRC Office of Nuclear Regulation Report entitled "An Evaluation of the Licensee's Management Integrity as it Affects Restart of Three Mile Island Nuclear Station Unit 1" NUREG-0680, Supplement No. 5. pursuant to Wallace's letter of March 27, 1985, the Commission established these proceedings to remove the Commission's requirement. Since Wallace is the proponent f of an order partially rescinding a Commission requirement, he l 1s the proper party to bear the burden of proof under 10 C.F.R. i l S2.732. Thus, in order to remove the notification / authorization i requirement, Wallace had to meet his burden of proving that I he did not make material false statements to the Commission. In the Commission's Advisory Opinion and Notice of Hearings l 6
of May 15, 1986 (CLI-86-9), the Commission stated that it could not clear Wallace without additional evidence. The Commission i committed a fundamental error of law when it relieved him of that burden and arbitrarily lifted the notification / authorization requirement. 16. The procedures established for this proceeding lead to an anomalous result. On the one hand, the Commission had determined that there is a reasonable basis for concluding that Mr. Wallace did willfully or recklessly make a material false statement, that Mr. Wallace cannot be cleared without a hearing, and therefore a hearing is warranted. On the other hand, the Commission will lift the notification requirement without further hearing because the Commission has required that an outside party, rather than Mr. Wallace, carry the burden the burden of proof in this proceeding. The Commission's reasoning is flawed and has led to the anomalous result in the Presiding Officer's Memorandum and Order of August 19, 1986. i 17. The alteration of evidentiary requirements and improper shifting of the burdens of proof are arbitrary and capricious. 1 These issues in this proceeding affect the integrity of TMI-l's management. Thus, this issue could significantly affect the environment and public health and safety. See 10 C.F.R. S2.786 (b)(4)(1). The Commission should therefore review the termination i 7 ~.
of this proceeding and the lifting of the notification / authorization requirement. Respectfully submitted, \\ 7% [I THOMAS Y. AU/ JOHN R. McKINSTRY Assistant Counsel i BARRY M. HARTMAN Deputy General Counsel Commonwealth of Pennsylvania Room 505 Executive House P.'. Box 2357 Harrisburg, Pennsylvania 17120 Dated: October 27, 1986 ~ 4 l .i 8
U.S. NUCLEAR REGULATORY COMMISSION In the Matter of: 00m n um Edward Wallace (GPU Nuclear, Three Mile Island, Docket No. 50-289-EW ~86 0CT 29 P1 :56 Unit 1) CERTIFICATE OF SERVICE [0CN[ik /,,y BRANco I hereby certify that copies of the foregoing Petition for Review have been served upon the following persons by first class mail in accordance with the requirements of 10 C.F.R. 2.712: U.S. Nuclear Regulatory Commission (5) Washington, D.C. 20555 Docketing & Service Section (3) U.S. Nuclear Regulatory Comm. Washington, D.C. 20555 Ivan W. Smith Administrative Law Judge Atomic Safety & Licensing Board U.S. Nuclear Regulatory Comm. Washington, D.C. 20555 Michael B. Himmel Greenbaum, Rowe, Smith, Ravin, Davis & Bergstein Engelhard Building P. O. Box 5600 Woodbridge, NJ 07095 Three Mile Island Alert, Inc. 315 Peffer Street Harrisburg, PA 17102 Joanne Doroshow The Christic Institute 1324 North Capitol St., N.W. Washington, D.C. 20002 Marjorie M. Aamodt Committee on Health Aspects & Management of Nuclear Power Box 652 Lake Placid, NY 12946 Susquehanna Valley Alliance Box 1012 Lancaster, PA 17604 s s
Michael W. Maupin Hunton and Williams P. O. Box 1535 Richmond, VA 23212 Ernest L. Blake Shaw, Pittman, Potts and Trowbridge 1800 M Street, NW Washington, D.C. 20036 Louise.Bradford Three Mile Island Alert, Inc. 1011 Green Street Harrisburg, PA 17102 Nicholas S. Reyncids Bishop, Liberman,, Cook, Purcell, Reynold Suite 700 1200 17th Street, N.W. Washington, D.C. 20036 Mary Wagner Office of Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ellyn R. Weiss Harmon & Weiss 2001 S Street, N.W. Washington, D.C. 20009 Henry D. Hukill Vice President and Director TMI-1 GPU Nuclear Corporation P. O. Box 480 Middletown, PA 17057 Michael F. McBride LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire Ave., N.W. Washington, D.C. 20036 J. R. Thorpe Director of Licensing 100 Interpace Parkway Parsippany, NJ 07054 Dated at Harrisburg, Pennsylvani thisih day of October, 1986. d0% kN'R. McKI ' Y sistant Cc n'el .__}}