ML20235Y860
| ML20235Y860 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 07/20/1987 |
| From: | Voigt H KILLIAN & GEPHART, LEBOEUF, LAMB, LEIBY & MACRAE |
| To: | |
| References | |
| CON-#387-4066 LRP, NUDOCS 8707270081 | |
| Download: ML20235Y860 (49) | |
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NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION '87 JL 20 P4 :27 In_The Matter of
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INQUIRY INTO THREE MILE ) Docket No. LRP ISLAND UNIT 2 LEAK RATE )
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COMMENTS OF THE NUMEROUS EMPLOYEES ON THE RECOMMENDED DECISION Numerous' Employees 1 ' hereby submit their comments on the Atomic Safety-and Licensing Board's May 21, 1987 Recommended Decision.1' 1/ " Numerous Employees" include 25 present or former TMI-2 employees. See Recommended Decision (hereinafter "R.D.")
at 12 n.7.
2/ On June 12, 1987, the Aamodts filed a motion addressed to the Commission asking that the parties be given the opportunity to submit to the Commission comments on the Presiding Board's Recommended Decision.- Numerous Employees and Mr. Herbein filed responses dated June 19 and June 23, respectively, supporting the Aamodts' motion.- The Commission has not ruled on the motion. On June 22, apparently prior to receipt of~any responses to the Aamodts' motion, Mr. Malsch wrote a letter to-Mrs. Aamodt stating that comments should be sent to the staff, not to the Commission. Mr. Malsch did not purport to speak for the Commission, and we are not aware'of any delegation of authority to him to do so. Accordingly, we regard Mr. Malsch's letter simply as an expression of his own opinion of the matter. For the reasons stated in Numerous Employees' response in support of the Aamodts' Motion, Numerous Employees have an absolute right to submit comments.
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Background
It is critical that the Commission review the issues-concerning~ leak rate testing at TMI-2 with a proper perspective of the comprehensive duties of the operators and supervisors involved. Leak rate testing was a very small part of those duties, and the Commission should evaluate the performance of TMI-2 personnel in light of the numerous obligations they had.
The leak rate test was one routine surveillance of many that the TMI-2. operators were required to perform. .Therefore, their actions with' respect to leak rate testing alone should not be the basis for evaluating their overall performance.
Leak rate testing at TMI-2 has been the subject of numerous investigations by the Commission, Metropolitan Edison Company (" Met Ed") and GPU Nuclear Corporation ("GPUN"), and o the r s -. After the matter was made part of the TMI-l (Restart) proceeding by the Appeal Board, the Commission reversed that determination and decided to conduct, instead, this separate proceeding to determine the facts involving such testing and to determine what, if any, enforcement action should be taken against involved individuals. Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-85-2, 21 N.R.C. 282, 305-06 (1985). At the same time, the Commission imposed the following license condition on Met Ed:
"No pre-accident TMI-2 operator, shift supervisor, shift foreman, or any other individual both in the operating crew and on shift for training as a licensed operator at TMI-2 prior to the accident shall be employed at t
TMI-l in,a responsible management or operational position without specific Commission approval."
21 - N . R . C'. at 341. This condition effectively limits the
. professional opportunities of many of the Numerous Employees at TMI and, as a practical matter, other commercial nuclear power plants. In'a subsequent-order, the Commission acknowledged that it would review that condition in this proceeding. See CLI-85-9, 21 N.R.C. 1118, 1128 n.14 (1985).
The Commission ordered this proceeding to be heard initially by an Atomic Safety and Licensing Board, that it would be a " legislative" inquiry, and that the Board should confine itself to determining the necessary facts involved in the leak rate controversy. The Board was not to evaluate the current performance of the involved individuals or make recommendations regarding enforcement action, if any, to be taken against them. See R.D. at 7 n.5. Rather, the Commission reserved those issues for itself, following issuance of the Board's Recommended Decision and recommendations of its Staff with respect to the current' performance of the involved individuals. CLI-85-18, 22 N.R.C. 877 (1985).
Rejecting the Numerous Employees' motion for reconsideration, the Commission refused to allow the parties to engage in discovery or cross-examination, and refused to allow the parties to call witnesses or submit evidence on their own behalf. The Commission reasoned that:
"This proceeding will be used as an information base for decisions on whether enforcement or I
i other licensing action should be initiated. It-will.not-be used to deprive any. individual of any 1 statutory hearing rights he or she may.have if formal. enforcement or licensing action is
- j. initiated."
.CLI-86-3, 23 N.R.C. 51-52 (1986). The Commission determined that: g E T
"The introductory paragraph of tnis Order explains the purpose of.this' proceeding and makes clear that individuals will not be deprived of statutory hearing rights. Accordingly, unless the public health, safety, or interest requires.
otherwise, the Commission will not condition,
. suspend, or revoke an operator's license without prior notice and opportunity for hearing. Denial of an initial or renewal application would'also '
give Petitioners a right to a hearing." -
Id. at 52.1' The Licensing Board conducted this proceeding in accordance with the Commission's orders. Its Recommended Decision fairly describes the manner in'which it conducted the hearings and'the course of the proceeding generally. See R.D.
at 1-29. The Board was required to grapple with numerous novel questions of law and fact, with little precedent to guide it.L' 3/ The Commission previously had noted that the statute of limitations may bar enforcement action at this time for actions taken in 1978-79. CLI-85-18, 22 N.R.C. at 884 n.3.
4/ The Board's task was made considerably more difficult because the hearings.in this proceeding were conducted in 1986, some seven to eight years following the events at issue. R.D. at 23. The Board correctly observed that.this passage of time was not attributable to the involved individuals. Id. In fact, the delay was due to the Commission's determination to refer the matter to the (Footnote continued on next page) 1 Nevertheless, Numerous Employees respectfully disagree
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with the Board's resolution of certain legal issues and with certain.of its findings and conclusions. We are submitting these comments (1) to assist the Commission in its resolution of the legal issues raised in this proceeding and (2) because the Board's findings of fact and conclusions concerning a relatively small number of involved individuals are with'ut o adequate support in the record, .are based on surmise, or are predicated on an incorrect reading of the law.
The principal-legal issue that requires the Commission's independent consideration is: Whether the Licensing Board correctly defined and applied the Commission's standard of " culpable neglect" adopted in CLI-85-18?i '
Numerous Employees.do not take issue, at this stage of the proceedings, with the Board's individual findings of fact, except as to the following individuals: Charles D. Adams, Mark S. Coleman, Martin V. Cooper, James R. Floyd, George A. Kunder, Adam W. Miller, and Dennis I. Olson.1' Adverse conclusions (Footnote continued from previous'page)
Department of Justice for criminal' prosecution and to subsequent Justice Department requests of the Commission to delay further investigation by the Commission. Id.
5/ Subsumed in this question is the issue of whether the Board erred in basing its findings of culpable neglect on less than " clear and convincing" evidence.
6/ Numerous Employees reserve their right to challenge the Board's findings should any of the Numerous Employees become involved in an individual enforcement or licensing (Footnote continued on next page)
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as to the Numerous Employees generally are addressed in the discussion of the legal issues.
Although most of the TMI-2 operators and supervisors conceded that, in hindsight and in light of experience, their actions with. respect to leak rate testing could~have been better, it'is' universally true that they did not. intend to violate any NRC or Met Ed requirement with respect to leak rate testing.- Their actions should be viewed in light of the
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following facts.found-by the Licensing Board:
- 1) Training of TMI personnel on leak rate matters was virtually non-existent and entirely ir2 adequate (R.D. at 60-64);
- 2) Guidance from Met Ed management, whether orally or in writing, was not sufficient to convey the appropriate interpretation of the requirements associated with leak rate
-testing (ig, at 82-85);
- 3) The TMI-2 leak rate test was so riddled with defects (id. at 86-108) that the occasional occurrence of an approximately accurate i
result was a " happy accident" (ig. at 108 43), leading the Board to conclude that (Footnote continued from previous page) proceeding. Cf. CLI-85-18, 22 N.R.C. 877, 884 (1985) ("the facts found by the Presiding Board and Commission in the hearing ordered here will not be binding in the subsequent i enforcement or licensing proceeding"). l 1
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"[hlaving' viewed erratic test'results over time, the' operators skepticism of the test as'a' source of useful information was fully
. justified" (id.);.
- 4) ' The .1 gpm . lirait on unidentified leakage was an "ALARA" limit having essentially no-safety significance (id. at 107-08);.
- 5) The NRC itself did not conclude until 1983 that'the performance of a leak ~ rate test for more than one hour would have improved its accuracy in proportion to the duration of the test (id, at 97); and' (6) The Board refused to find that actual unidentified leakage was, at any time, in excess of 1 gpm, other than during October 16-18, 1978. Id. at 129. The Board also correctly found that the excessive unidentified leakage during October 16-18, 1978 was duly reported to the NRC in LER 78-62/lT. Id. at 72-73.
Numerous Employees believe that the inquiries into these matters have gone on too long already. Numerous Employees long ago learned the lessons of this controversy, and y those still in the industry provide useful instruction to their colleagues on the need for compliance with NRC and
company-imposed requirements. We are confident that the staff's evaluation of their recent.and current performance will justify the conclusions that sanctions are inappropriate, that enforcement proceedings are not warranted, and that this matter should finally be put to rest.
Comments I. THE BOARD INCORRECTLY INTEpRETED THE COMMISSION'S STANDARD OF " DERELICTION OR CULPABLE NEGLECT".
It is apparent that the Board made no distinction between " dereliction" and " culpable neglect", merely treating them as synonymous. See, e.g., R.D. at 139-140, 188, 249.
More often than not, adverse findings about foremen and above were phrased merely as " culpable neglect." We adopt that treatment here for simplicity.
In rejecting the Numerous Employees' suggestion that the words " dereliction or culpable neglect" " connote an element of scienter, or knowledge" the Board attempted to define them by noting what they are not:
"The Board has not applied a standard whereby a managerial position alone carries with it a basis for finding fault in this proceeding. We do not interpret the Commission order as requiring a standard of vicarious or imputed responsibility, but rather one of negligence that considers the particular tasks and duties of a position and what the individual knew or reasonably should have known."
R.D. at 139-40. The Board's standard appears to be one of simple or ordinary negligence, namely, the lack of that degree l
of care and vigilance which a reasonable person would employ under the circumstances. See 57 Am. Jur. 2d Negligence S 68 (1971). -
I In contrast, the Numerous Employees have defined culpable-neglect as willful and wanton or reckless behavior.
1 1 Memorandum of Law of the Numerous Employees at 10-11 (January 23, 1987) (" Memorandum of Law"). The Numerous Employeen I defined " culpable neglect" in accordance with the Third' Circuit's construction of " culpable conduct", which it equated to "wi11 fulness" and " bad faith", or " recklessness" combined with other conduct evincing more than mere negligence. Id.
(quoting Hritz v. Woma Corp., 732 F.2d 1178, 1182-83 [3d Cir.
1984]). The Numerous Employees contend that the Third Circuit's construction of a culpable conduct standard establishes a threshold of "more than mere negligence", id.,
for a finding of culpable neglect and that the Board erred in
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its definition and application of culpable neglect in this proceeding.
Federal and state civil cases abound with references to the term " culpable neglect", and several courts have defined the term in the civil context. The terms culpable neglect and culpable negligence are also referenced and defined in criminal case law and in state penal codes.
In the context of defamation, the Supreme Court has held that culpable negligence is equivalent to actual malice or wanton or reckless indifference. Curtis Publishing Co. v.
Butts, 388 U.S. 130, 138, 156, 161 (1967).
A number of admiralty cases distinguish between simple negligence and culpable neglect. Culpable neglect is equivalent to bad faith or willful misconduct, and is not equivalent to inefficiency. The S. C. Schenk, 158 F. 54, 59-60 (6th Cir. 1907). A merely ineffectual attempt at salvage by a l
salvor does not result in liability if the service has been rendered in good faith "without clear evidence of culpable negligence or willful misconduct." Id. at 60. There is no culpable negligence for a loss incurred where salvage efforts were merely inefficient, were not guided by the best skill, and where management of the effort was not above criticism. Id. at 59-60. An earlier federal decision distinguished lack of ordinary care from culpable negligence by holding that a salvor is liable only for gross negligence or misconduct, and not for simple want of ordinary care, in a salvage attempt. The Henry Steers, Jr., 110 F. 578, 588 (E.D.N.Y. 1901).
The California Court of Appeal has defined culpable negligence in a criminal context. The court held that to establish culpable negligence in a criminal trial, the defendant's conduct must be aggravated or reckless. People v.
Peabody, 46 Cal. App. 3d 43, 47, 119 Cal. Rptr. 780, 782 (1975). The conduct must be such a significant departure from the conduct of an ordinary prudent person under the r
circumstances "as to be incompatible with a proper regard for human life." Id.
Other states have also construed culpable negligence in the criminal context. Culpable negligence means disregard of the consequences of an act and indifference to the rights of others. People v. Biocchio, 259 A.D. 267, 268, 18 N.Y.S.2d 786, 787 (1940). To be convicted of a crime committed by misfortune or accident, a person must be possessed of evil design, intention, or culpable neglect. Dunahoo v. State, 46 Ga. App. 310, 313, 167 S.E. 614, 616 (1933). Culpable neglect is criminal negligence before a crime is committed. Croker v.
State, 57 Ga. App. 895, 900, 197 S.E. 92, 95 (1938).
Slight negligence is the absence of that degree of care and vigilance which would be used by a person of extraordinary prudence and foresight. 41 N.Y. Jur. Negligence S 27 (1965). Ordinary negligence is a failure to use reasonable care, which is the care which a reasonably prudent l
person would use under the circumstances in a particular case.
Id. Gross negligence is an act or omission of aggravated character, is distinguished from the failure to exercise ordinary care, and the " disregard of consequences which may ensue from an act and is indifference to rights of others."
Id.
Gross, culpable, reckless and criminal negligence are equivalent to each other. Id. Culpable negligence is used in
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criminal statutes to mean more negligence than is required to support a civil action,. indifference to the rights of others, and disregard of consegnences of an act. A party charged with culpable negligence must be conscious at the time of the act or omission of the probable consequences of an act and behave in
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" wanton disregard" of the consequences. Id. -
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The Manual for Courts Martial defines culpable negligence as "a degree of carelessness greater than simple negligence. It is a negligent act or omission accompanied by a culpable disregard for the foreseeable consequences to others of that act or omission." Manual for Courts Martial, United States 1984, 4 44(c)(2)(a)(i).
In summary, the Numerous Employees' definition of culpable neglect comports with the meaning developed in federal and state case law and presented in the Manual for Courts Martial. The concept of culpable neglect implies a knowledge of one's responsibilities, conscious and willful failure to fulfill those responsibilities, coupled with a conscious disregard of the consequences of that failure.
The definition of culpable neglect adopted by the l
Board is one of ordinary negligence and is thus inconsistent with the well-accepted meaning of " culpable neglect".
II. THE BOARD ERRED IN ITS CONCLUSION THAT CERTAIN SUPERVISORS AND SHIFT FOREMEN WERE GUILTY OF
" CULPABLE NEGLECT".
As just explained, ordinary negligence is simply the failure to employ reasonable care, which is defined as the care
which the reasonably prudent person would utilize under particular circumstances. 41 N.Y. Jur. Negligence S 27.
- Ordinary or reasonable care is not a fixed legal standard, but is the care dictated by the circumstances of the case. 57 Am.
Jur. 2d Negligence S 67 (1971). Ordinary care is dependent upon the responsibility required of an individual in particular circumstances. Id.
The Board utilized a negligence standard "that considers the particular tasks and duties of a position and what the individual knew or reasonably should have known."
R.D. at 139-40. Ordinary negligence, as characterized by standard legal references, and culpable neglect as characterized by the Board, are thus synonymous. As we now show, the application of this erroneous standard led the Board to conclude, incorrectly, that virtually every shift supervisor and shift foreman was guilty of culpable neglect.
At page 139 of its Recommended Decision, the Presiding Board concluded that:
"In general, the operators are directly responsible for their own violations of I
procedure. The concept of ' dereliction' or
' culpable neglect' -- the terms used by the Commission -- came into play at the foreman level and above. In some respectc, however, the foreman may be personally chargeable with a procedural violation -- e.g., where he was personally involved. In other respects, most notably manipulation, the foreman's responsibility may be based entirely upon culpable neglect. Again speakint generally, the
shift supervisors were one step removed from the leak rate test process and were not usually involved in particular tests. Although - -
circumstances vary, the shift supervisors are responsible only on a ' culpable neglect' basis." (
The Board's conclusion that shift supervisors and shift foremen were guilty of " culpable neglect" rests essentially on its conclusion that supervisory personnel, merely because of their supervisory responsibilities and Senior Reactor Operators' licenses, are " culpable" because they did not instruct their operators to immediately invoke the Action
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Statement when leak rate tests results for unidentified leakage
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exceeded 1 gpm. See, e.g., R.D. at 153-54 (Scheimann). That conclusion, essentially based on a strict liability standard, is without adequate evidentiary basis and, moreover, is unfair.
4 A fundamental flaw in the Board's treatment of the TMI-2 supervisors was its acceptance of less than clear and convincing evidence to support its culpable neglect findings.
In contrast, the Board correctly ruled that the clear and t
convincing evidence standard applied to adverse findings concerning manipulation or falsification of test results by 1
l operators. R.D. at 21-26.
The Board's application of the clear and convincing test to the operators was based on its assessment (1) that adverse findings "could result in severe reputational injury",
id. at 22; and (2) that it would be unfair, given the passage t
of time and the honest fading of memories, to base such ,
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findings on a mere preponderance of the evidence. Id. at 23.
Those reasons apply with equal force to the Board's culpable neglect findings.
There can be no question that supervisors found to have been culpably negligent will suffer " strong reputational impacts." Id. at 25. Indeed, the Commission's condition on the restart of TMI-l that many TMI-2 personnel involved in leak rate testing would not be allowed to work at TMI-1, during the pendency of this proceeding, demonstrates the need to review critically, and resolve now, the rights of those persons to unrestricted employment by GPUN. Additionally, the TMI-2 supervisors were called upon in this proceeding to rely on
" strained and faded memories" to recall the events of 1978-79.
Id. at 23. The same reasons that the " clear and convincing" standard was applicable to findings of falsification or manipulation should have caused the Board to conclude that such a standard was applicable to all factual issues.
The Board's sweeping and unfounded conclusions concerning TMI-2 supervisors and foremen in the absence of an l
l evidentiary showing that they knew or should have known of the 1
" proper" interpretation of the leak rate Technical Specifications was unjust.l' Moreover, an essential 7/ Prior to October 18, 1978, no TMI employee was aware of the NRC's interpretation of the TMI-2 Technical Specifications, i.e., that a leak rate test depicting unidentified leakage over 1 gpm required entry into the Action (Footnote continued on next page)
prerequisite for the Board's finding is lacking, for the Board did not identify any time during which actual unidentified leakage exceeded 1 gpm, and thus never showed that entry into the " Action Statement" was required (other than for the period of October 16-18, 1978, which failure was duly repcrted to the NRC in Licensee Event Report 78-62/1T ("the LER")).1' A perfect example is the Board's conclusion concerning Mr. Zewe, Supervisor of Shift A. The Board found that Mr.
Zewe's shift did not manipulate or falsify leak rate tests, and that Mr. Zewe was unaware of such conduct. R.D. at 157 4 59.
However, the Board finds him " guilty of culpable neglect" for failing "to make sure that all the people on his shift were properly applying the relevant Tech Specs and administrative procedures." Id.1' But how could he have done so, given (Footnote continued from previous page)
Statement. R.D. at 71-72; see id, at 66-67; Floyd prep. St.,
- p. 3, ff. Tr. 4894. Accordingly, no TMI employee should be found guilty of culpable neglect for erroneously interpreting the TMI-2 leak rate Tech Specs prior to October 18, 1978.
8/ Furthermore, Met Ed was never cited by the NRC for its pre-October 18 erronecus interpretation. Tr. 5242-45 (Haverkamp).
9/ The Numerous Employees contended before the Board that Met Ed's Administrative Procedures were not legal requirements which, if not adhered to, could be the basis for adverse findings by the Board. Memorandum of Law at 14-20. In a confusing and contradictory paragraph, the Board tried to avoid this contention. Labeling the issue a " legal question",
the Board said that it need not be resolved because this proceeding was a " factual inquiry." However, the Board's illogic was quickly exposed in its very next sentence; the Board said that violations of Administrative procedures were (Footnote continued on next page) r
that the Board also found that Met Ed did not instruct the operators (including the SRO's) concerning the " proper" interpretation? R.D. at 82-83; see also id. at 130. The Board concluded (id. at 83):
"The record is clear that operators did not receive adequate instruction by any means on the requirements of the Tech Specs and leak rate test surveillance procedures growing out of the October 18 inspection."
Given that finding, and given the Board's finding that the shift supervisors and foremen had received no greater e.,
training or instruction than the CRO's, id. at 60-64, how could the Board fairly find, on clear and convincing evidence, that Mr. Zewe, or the other shift supervisors and foremen, were ,
" culpable" for failing to do what neither Met Ed nor the NRC ever effectively instructed them to do? Obviously, the answer - -
is that they cannot be " culpable" for failing to do what they were not told to do.
The Board's adverse conclusion as to Mr. Zewe and the -
other shift supervisors and foremen cannot be adopted, because (Footnote continued from previous page) appropriate bases for some of its findings because "such violations are relevant to the factual issues put to us" by the Commission. R.D. at 26-27.
The Board's waffling on this issue was significant.
If the contentions of the Numerous Employees were irrelevant to the Board's inquiry, then any purported violations of administrative procedures were also irrelevant; if such violations were relevant, then the contentions raised by the '
Numerous Employees were also relevant. The Board erred'by not addressing this issue and by basing some of its findings on purported violations of TMI-2 Administrative procedures, r
the Board did not find that unidentified leakage ever exceeded 1 gpm. R.D. at 129 n.36.12' That being so, there never was ,
a " valid" leak rate test depicting unidentified leakage in excess of 1 gpm (except for those reported in the LER) and thus there is no evidence that Mr. Zewe's shift, or any other shift, ever failed to do what they were required to do.11' Another example of the unfairness of the Board's _.
approach to foremen and supervisors is its findings concerning Mr. Mehler, Supervisor at Shift C. The Board found that he
" generally had little direct involvement in leak rate testing",
R.D. at 185, and it specifically exonerated Mr. Mehler "of any awareness of, or involvement in, leak rate test falsification or manipulation at TMI-2." Id. at 188. However, the Board found that Mr. Mehler was " culpably negligent" merely because it thought he could have exercised his supervisory responsibilities more adequately, id. at 187 (with the benefit 10/ On the one hand, the Board cc.ncluded that supervisors and foremen were guilty of culpable neglect for failing to instruct their CRO's to invoke the Action Statement whenever a leak rate test depicted unidentified leakage over 1 gpm. R.D. at vi-vii. On the other hand, the Board concluded -
I that the correct interpretation of the leak rate Tech Spec was that the Action Statement was triggered only if a valid test result depicted unidentified leakage in excess of 1 gpm. Id.
at 63-64. These conclusions are irreconcilable. The latter conclusion is the correct interpretation, based on the clear wording of Technical Specifications 3.4.6.2 and 4.4.6.2.
11/ It is important to understand that the Tech Spec requirement was that unidentified leakage, not test results, be below 1 gpm. R.D. at vi. Therefore, unless a leak rate test depicting unidentified leakage over 1 gpm was valid (i.e., was accurate), it was of no legal consequence.
of several years of hindsight). That finding is clearly wrong, because it is based only on his supervisory responsibilities and not on either his actions or on any knowledge of leak rate test manipulation or falsification. Moreover, it is inconsistent with the Board's claimed rejection of a standard of imputed or vicarious liability. R.D. at 139-40.
Accordingly, the Board's findings that shift supervisors and shift foremen were guilty of " culpable neglect" is unsupported by clear and convincing evidence and may not be adopted. The Commission should exonerate all of the TMI-2 shift supervisors and shift foremen Conaway, Guthrie, Hoyt, and Scheimann and should modify the TMI-l (Restart) license condition to permit Messrs. Conaway, Guthrie, Hoyt, Mehler, Smith, and Zewe to be employed at TMI-1.
III. DISCARDING LEAK RATE TESTS WAS NOT A VIOLATION OF TECHNICAL SPECIFICATIONS.
At pages 125-34 of the Recommended Decision, the Board concluded that the discarding of leak rate tests violated TMI-2 Technical Specifications. The Board concluded that results of leak rate tests were " surveillance activities" and that, therefore, Technical Specification 6.10 required leak rate tests to be retained for five years. R.D. at 125 V 2.
The Board's conclusion that discarding leak rate tests was a violation of Technical Specifications is incorrect, for it failed to focus on a key qualification in Technical
Specification 6.10: Only records of surveillance activities
" required by these Specifications" were required to be retained. periodic leak rate tests were required to be ,
performed pursuant to Technical Specification 4.4.6.2.d, which provides that RCS leakage was to be demonstrated by
" performance of a Reactor Coolant System water inventory balance at least once per 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> during steady state operation."11' It is simply illogical to conclude that 12/ At page 53 of its Recommended Decision, the Licensing Board found that Technical Specification 4.4.6.2 required that Reactor Coolant System leakage be demonstrated by four different means. Numerous Employees do not take issue '
i with that finding, as far as it goes, but they note that the I
first two requirements are simply to " monitor" containment atmosphere particulate radioactivity and containment sump inventory and discharge, whereas the latter two requirements are the " measurement" of controlled leakage from the RCS pump seals and " performance" of the RCS " water inventory balance".
The difference in terminology is crucial, for the TMI-2 operators were not required to " measure" " sump inventory and discharge", only " monitor" it. Therefore, the Licensing Board erred in its conclusion (R.D. at 103) that "the sump surveillance was not properly carried out" and that the
" failure to perform this sump inventory surveillance (4.4.6.2.a) was another violation of the Tech Spec requirements." The testimony cited by the Board for its conclusion (Tr. 475-91), to the extent that it is relevant to monitoring the sump inventory and discharge, was merely testimony by the technical experts that the sump inventory and -
discharge were monitored but that a rate of leakage (in gallons per hour) was not quantified to determine the rate of RCS leakage. The testimony thus refutes, not supports, a ,'
conclusion that the TMI-2 operators did not comply with Technical Specification 4.4.6.2. It was never an issue whether the TMI-2 operators had violated Technical Specification 4.4.6.2.a, and the Board evidently overlooked the significance of the contrast between " monitoring" sump inventory and discharge and " performing" an "RCS water inventory balance".
In fact, in its July 10, 1987 order denying the Aamodts' motion for reconsideration, the Board acknowledged that sump (Footnote continued on next page) r
Technical Specification 6.10 was violated by discarding leak rate tests; leak rate tests were (1) " performed" (2) "at least once per 72 h'ou r s " (3) "during steady state operation." See Board Exhibit 1-A, Stier Report, Vol. I, p. 51; id., Vol. III (A), Table 1. Because records were filed that fully complied with Technical Specification 4.4.6.2.d, the Board simply had no basis (and cites none) for its conclusion that Technical Specification 6.10 was violated by discarding superfluous test results.
This interpretation of the Technical Specifications is sensible, because many leak rate test results were so unrealistic as to be obviously invalid (as the Board acknowledged). R.D. at 108; see Floyd Prep. St., ff. Tr. 4894, at 2-3; Adams Prep. St., ff. Tr. 3776, at 2-3. The NRC staff experts acknowledged that, under certain circumstances, leak rate tests could be invalidated. Tr. 1357-61, 2206-09 (Capra).
Plainly, if test results were not accurate (because reactor conditions changed, or operators made mistakes) it would have been misleading and inappropriate to have retained them.11' (Footnote continued from previous page) surveillance issues were "not within the scope of our inquiry."
July 10 Order at 4. Therefore, the Commission must reject the Board's conclusion (R.D. at 103) that the TMI-2 operators violated Technical Specification 4.4.6.2.a as contrary to the plain meaning of that Specification and without record evidence to support it.
13/ The Board also found that the unreliability of the computer-based surveillance test results should have led the (Footnote continued on next page) t
Under AP 1010, mistaken or otherwise invalid leak rate tests could have been labelled an " exception or deficiency" and retained after being so designated, but because Administrative Procedures were not legal requirements, as we have elsewhere demonstrated,11' the TMI-2 Technical Specifications were not violated by the failure to apply AP 1010 to leak rate tests.
Furthermore, the " steady state" limitation of Technical Specification 4.4.6.2.d meant that a leak rate test performed during non " steady state" conditions yielded a meaningless J result and triggered no obligation of any kind. Tr. 1357-61, 2206-09 (Capra).
T (Footnote continued from previous page) operators to use the manual procedure that is part of TMI-2 Surveillance Procedure ("SP") 2301-3D1. R.D. at viii-ix, 89 4 7. The Board implicitly criticized the operators, and their immediate supervisors, for failure to use the manual procedure.
Id. The Board's findings regarding use of manual calculations are clearly erroneous because they are contrary to the record evidence. First, Sp2301-3D1 4 6.1 required the operators to use the computer to perform the leak rate surveillance whenevet the computer was available. See Board Exhibit 1-A, Stier Report, Vol. V(C), Tab 19; Board Exhibit 2, Faegre & Benson Report, Vol. 4, Tab 2. The operators were instructed by the procedure to perform a hand calculation only if the computer was operational but not available for the leak rate surveillance program (using Data Sheet 1) or the computer was not operational (using Data Sheet 2). Id. Second, Mr. William J. Fels, who was responsible for the leak rate test computer program, testified that the computer-performed leak rate test was always more accurate than performing the calculation by hand. Tr. 4531-32. A statistical analyses performed after the accident confirmed Mr. Fels' opinion. Tr. 4533-34. There was no evidence to the contrary.
14/ See footnote 9, supra.
r 1
The TMI-2 operators and supervisors were instructed to disregard observed plant indicators if they had good reason to do so. Board Exhibit 1-A, Stier Report, Vol V(C), Tab 35; Floyd Prep. St., pp. 3-4, ff. Tr. 4894; see, e.g., Tr. 3507.
Plainly, this was a rational instruction, and permitted the operators to discard blatantly wrong or invalid leak rate tests, provided that they otherwise performed a leak rate test during Modes 1-4 "at least once every 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> during steady state operation", as required by Technical Specification 4.4.6.2.d. There is no dispute that they did so.
IV. THE BOARD'S FINDINGS OF FACT WITH RESPECT TO CERTAIN INDIVIDUALS ARE ERRONEOUS AND CONTRARY TO, OR /
UNSUPPORTED BY, THE RECORD.
Numerous Employees demonstrate in this Section of their comments that certain of the Board's findings with respect to Charles D. Adams, Mark S. Coleman, Martin V. Cooper, James R. Floyd, George A. Kunder, Adam W. Miller, and Dennis I. ,
Olson are erroneous and contrary to, or not supported by, clear and convincing evidence in, the record.
A. Charles D. Adams.
The Board concluded that there is a "high probability that [Mr. Adams] knew of the potential effect of adding hydrogen to the MUT during a leak rate test and his allowance of this practice by his CROs constitutes culpable neglect."
R.D. at 184. Mr. Adams flatly denied knowing of the hydrogen r
9
...g 0
effect. Id. at 181. However, although he had no recollection of it, he acknowledged that he may have participated in an experiment that demonstrated the potential effect of adding -
hydrogen. Tr. 3808. That acknowledgment fails altogether to support the conclusion that ipso facto Mr. Adams allowed the operators on his shift to add hydrogen to the MUT during the performance of leak rate tests to manipulate the results of those tests.11' The Board incorrectly relied on the testimony of
/
Mr. Cooper to support its conclusion with respect to Mr. Adams.
Mr. Cooper merely testified that he thought that Mr. Adams was probably aware of the potential effect on leak rate test results of adding hydrogen to the makeup tank during the test.
R.D. at 183. But Mr. Cooper did not state that Mr. Adams was aware of any practice to do so. See Tr. 2905. Mr. Congdon, Mr. Adams' other CRO, also did not testify that Mr. Adams in fact was aware of any such practice. See R.D. at 183-84.
The only testimony in this proceeding that addresses the issue is that of Mr. Adams, who stated that he was not aware of any practice to add hydrogen to manipulate the results of leak rate tests:
15/ The Board concluded only that there is a "high probability" that Mr. Adams knew of the potential effect of l adding hydrogen, not that there is a "high probability" that he l allowed his operators to add hydrogen to manipulate the results l of leak rate tests. See R.D. at 184. Thus its determination a that Mr. Adams was guilty of culpable neglect is, on its face, not supported by clear and convincing evidence, r
i
"Q. Mr. Congdon indicated that there were other occasions when he used hydrogen for the purpose of affecting the leak rate test. Were you aware of his having done that?
A. No."
Tr. 3809. The Board also refers to a previous statement in which Mr. Adams similarly denied an awareness of any practice to manipulate the results of leak rate tests.11' The Board, without explanation, entirely disregards this testimony 11' and relies instead on previous speculation by Mr. Congdon, which was neither confirmed nor reiterated in I
the course of this proceeding, that Mr. Adams "probably" was . .
aware. See R.D. at 183-84. Moreover, the Board cites no other evidence to support its finding.
The Board failed to credit Mr. Adams for his candor in admitting that he may have participated in a hydrogen addition experiment notwithstanding his insistence that he could not l
recall an awareness of the potential effect of adding hydrogen to the MUT during a leak rate test. Tr. 3809. His forthright
~
16/ "When Mr. Adams was advised that there was testimony which implied that he was aware that the CRO3 on his 9p shift were adding hydrogen in order to affect leak rate tests, i Mr. Adams testified that this was possible, but that he had no recollection of being aware of it. However, he testified that, if he had been aware, in 1978-79, that a CR0 was adding hydrogen to the MUT in an effort to affect leak rate test results, he would not have approved the practice." R.D. at 184.
17/ The Board, also without explanation, similarly disregarded the sworn prepared testimony of Mr. Adams, in which he testified that "I did not know of anyone on my shift or any other shift who deliberately falsified leak rates at Three Mile Island." Adams Prep. St., p. 6, ff. Tr. 3776.
9
refusal to deny his possible involvement in the " experiment" cannot rationally be used to discredit his equally forthright denial of any involvement in manipulation of leak rate tests.
Nonetheless, on the basis of insufficient evidence, and with na reason to disregard credible evidence to the contrary, the Board concluded that Mr. Adams allowed his operators to manipulate the results of leak rate tests. The Board's determination that his conduct constitutes culpable neglect is not supported by the record in this proceeding. The Commission should exonerate Mr. Adams and modify the TMI-l restart condition with respect to him.
B. Mark S. Coleman.
The Board's findings regarding Mr. Coleman include superfluous observations about Mr. Coleman's relationship with his shiftmates and the credibility of his testimony concerning other individuals' actions. Those observations are irrelevant to whether Mr. Coleman's actions constituted manipulation or falsification.
The Board stated that:
"The record indicates that normal levels of communication existed between these three CRO's
[on Shift D] . . . . Therefore, there is no reason to believe that information about manipulation would no- have been shared by all three CRO's. While we would not expect the CRO's to recall details of such discussions, we find not credible their professed inability to remember anything about the knowledge of their fellow CRO's, particularly in light of the very striking pattern of their joint involvement in
manipulation that emerges from the records analysis."
R.D. at 193 (emphasis added).
The Board went on to note:
"We would think it perfectly natural for three people, working closely together over time, to share any helpful techniques one of them might discover . . . [W]e find that there was collaboration between the panel CRO and surveillance CRO on most if not all of the tests in which we have found manipulation by Shift D."
Id. at 196 (emphasis added).
Those findings do not bear on Mr. Coleman's accountability for any alleged manipulation or falsification he performed. Whether, or how well, Mr. Coleman communicated (or even " collaborated") with his shiftmates has no bearing on whether Mr. Coleman manipulated or falsified leak rate tests.
What is " perfectly natural" for co-workers to do is not relevant to whether an individual in fact manipulated or falsified leak rate tests.
Not only are those findings of collaboration not germane, but the Board reached such findings of collaboration without clear and convincing support in the record. Its principal " evidence" is its professed skepticism toward Mr.
Coleman's testimony regarding his co-workers. The Board's opinion as to Mr. Coleman's credibility on this issue flies in the face of its finding that Mr. Coleman was candid regarding his own actions:
W
"While Coleman appears to have been candid with prior investigators and the Board about his own manipulations, the Board did not believe that he was candid before us with respect to his knowledge of his shiftmates involvement in manipulations, and their common knowledge and cooperation with one another in test manipulations."
R.D. at 196 (emphasis added). There is no explanation why Mr. Coleman was a credible witness on one issue and not on the other. Numerous Employees submit that the Board has allowed its assumption as to what is " perfectly natural" for co-workers to do to influence its attitude toward Mr. Coleman's testimony.
Beginning with the NRC's aborted investigation in 1980, Mr. Coleman has been questioned on numerous occasions concerning his involvement in leak rate manipulation. He has been consistently candid in admitting, from his very first interview, that he intentionally added hydrogen and water to the MUT to affect the results of leak rate tests (while always recording the water additions in the : g and entering them into the leak rate test calculation). Coleman Prep. St., p. 3, ff.
Tr. 2579; R.D. at 196. With equal consistency, he has denied that he shared his knowledge with his co-workers or l
" collaborated" with others to falsify tests. Tr. 2604-05. See l
Coleman Prep. St., p. 5, ff. Tr. 2579. The Board's findings to the contrary are not supported by the record, are unnecessary, and should be disavowed by the Commission. The Commission should conclude that Mr. Coleman was a credible witness who has freely admitted to his shortcomings in performing leak rate
i I
tests at TMI-2 and who should,'in light of his candor and improved. performance, be permitted to work at TMI-1. ,
C. Martin V. Cooper.
.In its Recommended Decision, the Board correctly found "that Mr. Cooper did not manipulate leak rate test results through water additions." R.D. at 179. In contrast, the Board incorrectly found that Mr. Cooper manipulated and falsified test results by adding hydrogen to the MUT during some tests.
See id. at 179-81. This latter finding is totally bereft of clear and convincing evidence to support it.
The Board's factual predicates for this finding were:
"Mr. Cooper was aware that the addition of _
hydrogen could sometimes cause a reduction in the leak-rate test results. Even through he knew this, when a leak rate test was being run he would add hydrogen if the over pressure indicator was low. If the test turned out to be a ' good
-one, '
i.e. under 1 gpm, he would accept the results."
.Ijl. at 180 (emphasis added).
It is uncontroverted that the TMI-2 Surveillance procedures did not prohibit the addition of hydrogen to the MUT during the performance of leak rate tests. See Stier Report, Vol I, p. 88. In fact, "[t]he procedure made no reference to hydrogen additions." Id. Moreover, as was true of all other TMI personnel, Mr. Cooper "did not receive any significant training in leak rate testing." R.D. at 173; see id. at 63.
Nevertheless, because Mr. Cooper did not " abort" tests being 1
run when hydrogen needed to be added-to the MUT, the Board found "that Mr. Cooper knowingly ~ manipulated and falsified the results of leak rate tests by the addition'of hydrogen to the make-up tank." Id.-at 180-81.
Significantly,,those findings.are based on the Board's heavy reliance on-its apparent misreading of an excerpt from Mr. Cooper's prior testimony. As quoted in the Board's decision, his statements at the end of 4 123 at page 180 are incorrectly punctuated and could convey the impression that Mr. Cooper believed, in 1978-79, that his conduct "wasn't okay". This' confusion is based on transcript errors in Mr.
Cooper's-September 28, 1984 interview transcript -- which he was not allowed to review or correct! See Tr. 2894. The correct quotation, set forth at Tr. 2895, clearly demonstrates that Mr. Cooper did not have the requisite intent.
Earlier in its Recommended Decision, the Board explained that it used the words " manipulate" and " falsify" to
" connote an intent to deceive and to produce a false result."
Id. at 138.11' Yet, in condemning Mr. Cooper, the Board cites not one test in which it found that he added hydrogen, let alone any test in which he did so with an intent to deceive or produce a false result. The Board does not refer to any evidence to contradict Mr. Cooper's unequivocal statement that 18/ See R.D. at 22 ("[a] finding in this proceeding that, for example, a particular individual has falsified leak rate tests implies dishonesty or fraud").
r
the only reason he ever added hydrogen to the MUT was when it was necessary to scavenge free oxygen from the RCS and to maintain net positive suction head in the RCS pumps. See, e.g., Cooper Prep. St., pp. 7-9, ff. Tr. 2835; Tr. 2859, 2872, 2878, 2881-85, 2889, 2896-97, 2899, 2900. Indeed, as quoted above, the Board found that Mr. Cooper added hydrogen only "if the over pressure indicator was low." See, e.._g . , T r . 2896.
j When read correctly, Mr. Cooper's statements unequivocally demonstrate a complete absence of any deceptive or fraudulent intent. In essence, the Board appears to have based its adverse finding about Mr. Cooper on the fact that, because he believed -- with ample justification -- that "the tests were almost meaningless" (R.D. at 108, 179), he was indifferent to the effect hydrogen might have had on test results. The Board's adverse finding is based not on clear and convincing evidence, nor even on a preponderance of evidence; it is based on sheer speculation. The Commission must disregard the Board's finding and exonerate Mr. Cooper, who is currently licensed as a Senior Reactor Operator at San Onofre.
D. James R. Floyd.
The Board's characterization of James R. Ployd as neither " fully forthcoming" nor " candid" (R.D. at 247) is clearly erroneous. First, Mr. Floyd repeatedly acknowledged that he was responsible for failing to detect leak rate problems and for failing to supervise operations personnel r
_-________________a
during their performance of the leak rate surveillance. E.g.,
Tr. 4963, 4973, 4990. His willingness to accept his full responsibility for leak rate difficulties does not comport with a finding that he was not fully forthcoming and candid.
Second, Mr. Floyd voluntarily appeared as a party and willingly submitted to two days of questioning at the Board's convenience. He testified that he became a party in part because he believed that he could assist the Board in its inquiry. Floyd Prep. St., p. 7, ff. Tr. 4894. His willingness to aid the Board's inquiry does not justify the Board's judgment that he was the "least candid witness to appear."
R.D. at 247, i'
The Board's finding that Mr. Floyd was not a credible witness because he denied knowing about the full extent of the difficulties that operators were having with the leak rate test is unfair and is belied by the record. Mr. Floyd's prepared testimony discusses, on almost every page, his knowledge of leak rate test problems. In context, the testimony at Tr. 4976 that the Board labelled " incredible" (R.D. at 247) focused on the period of greatest difficulty with leak rate testing (i.e.,
January-March 1979). See Tr. 4972. During much of that time, Mr. Floyd was not even at work, due to a broken ankle and his attendance at his annual simulator training in Lynchburg, Virginia. Floyd Prep. St., p. 7, ff. Tr. 4894.
1
The Board's conclusion that its finding was
" compelled" because of Mr. Floyd's close relationship with the control room operators is not valid in light of the evidence.
Mr. Floyd explained that as a " crisis fighter" he was preoccupied with problems that required his attention far more than leak rate testing. Tr. 4969, 4982-83. Those problems included, for example, a reactor coolant pump breakdown that required an extended shutdown, changes to 20 code safety valves, and two incidents of injecting sodium hydroxide into the reactor coolant system. Tr. 4982.
Mr. Floyd did not handle routine matters, Tr. 4969, and there is no evidence to the contrary in the record. The Board acknowledged that the plant operators readily admitted treating the test as " simply a routine, fill-in-the-books exercise." Tr. 4970. Moreover, Mr. Floyd explained that because the operators did not spend much time actually running the tests, their difficulties in securing a successful test I might well have escaped his notice. Tr. 4976. The Board ignored this obvious justification for his lack of more detailed awareness of pervasive leak rate test problems. His testimony is corroborated by the operators' memory that leak rate tests were run less frequently on day shift, e.g.,
Frederick Prep. St., p. 9, ff. Tr. 2447; Cooper prep. St.,
- p. 5, ff. Tr. 2835, when Mr. Floyd was likely to be in the control room speaking to them. Tr. 4974.
r If Mr. Floyd were "less than candid" about his
-knowledge of leak' rate problems, why would he have'so'readily'
= corrected the Board when'it presumed he did not normally speak with the operators'themselves? Tr. 4973-74.. Mr. Floyd could easily have. denied this contact; nevertheless be volunteered that he had frequent contact. Tr. 4974.
'The Board's. finding that Mr. Floyd's "most striking lack of candor" arose in his interpretation of the technical specification's.72-hour requirement is also erroneous. Mr.
Floyd stated that his memory of how business was conducted in October 1978 before the LER was not very clear, Tr. 4905, and the Board elsewhere acknowledged the difficulty that the.
passage of time caused.for the memories of all witnesses. R.D.
at 23. He could not remember what the operators' opinions were on when to enter the Action Statement, Tr. 5034,.but his best recollection was that he believed operators should have been entering the Action Statement in accordance with the procedure, if a valid leak rate in excess of 1 gpm were obtained. Tr.
4937, 4939-40. There is no basis, whatsoever, for the Board to conclude that Mr. Floyd tried to " obfuscate the record" on this point, particularly when his Operations Memorandum was formulated to alert the operators to the proper practice.
Tr. 4934.
Contrary to the Board's finding, Mr. Floyd's recollection that, prior to the LER, he thought operators l
l I
1
)
should have entered the Action 5'atement c if they could not l 1
invalidate a leak rate test, Tr. 4937, is supported by Mr.
Seelinger's testimony about a " Plan of the Day" meeting in which Mr. Floyd participated. Tr. 4745 (Seelinger).
Mr. Seelinger remembered a disagreement with Mr. Floyd during that meeting on the subject of the invalidation of leak rate tests. Tr. 4746, 4750, 4765 (Seelinger). That recollection supports Mr. Floyd's repeated statements to the Board that he did not believe he would have approved an accumulation of leak rate tests until one with unidentified leakage under 1 gpm was obtained. Tr. 4930-31. He reasonably assumed that some validation process was being performed. Tr. 4930, 4932.
GPUN's Proposed Findings T 208 and T 210, adopted by the Board at pages 248-49, are not supported by the record.
GPUN's Proposed Finding T 208 contained the illogical conclusion that because Mr. Floyd overlooked the fact that operators were not recording start and stop times of leak rate tests in their Log Book or filing E&Ds, they were "failing to take [ actions) in violation of technical specifications requirements." R.D. at 249, citing CLI-85-18, 22 N.R.C. at 881. The logging of start and stop times of leak rate tests and the use of Exceptions and Deficiencies were not Tech Spec requirements, but rather Administrative Procedure requirements.
GPUN's Proposed Finding T 210 that Mr. Floyd admitted that his analysis of plant status "was invalid because he 1
( _ _ _ _ _ _ _ ___________ _
attempted to determine the ' legality' of continuing to operate the plant without asking for all of the re.'.evant information" was wrongly adopted by the Board. Mr. Floyd did not " admit" l
that the limited analysis requested of him was invalid, Tr. I 4919, but merely agreed with Judge Kelley's statement that, in retrospect, it would have been better to review the last " good" leak rate test to obtain a complete picture of plant status.
Tr. 4917-18. The adoption of the additional conclusion that Mr. Floyd's failure to perform a complete analysis deprived him of an opportunity to observe that the operators were failing to enter the Action Ststement is also incorrect in light of the evidence. Mr. Floyd did take the opportunity to do something after his analysis of three leak rate tests on October 18, 1978; he issued his Operations Memorandum, which correctly instructed operators when to enter the Action Statement. Tr.
4906, 4931, 4935, 4937.
Accordingly, the Commission should reject the Presiding Board's findings that Mr. Floyd was less than forthcoming and lacking in candor.
E. George A. Kunder.
The Board found that there was a defect in the TMI-2 leak rate test that caused it to be inaccurate and that Mr.
Kunder's allege; failure to " pursue this ongoing problem" constituted " culpable neglect." R.D. at 116. Numerous Employees submit that this finding is a non sequitur, c
I 1
1 I
i unsupported by clear and convincing record evidence and '
contradicted by the Board's own description of Mr. Kunder's !
knowledge of events and his responsibilities at TMI-2. 1 The Board made relatively few observations about Mr.
Kunder's awareness of and role regarding leak rate test ,
1 practices. But a careful examination of these observations indicates that the Board's ultimate finding about Mr. Kunder is in error. .
The Board found that Mr. Kunder had "some limited knowledge" of the operators' difficulties with the leak rate tests. R.D. at 116. In so doing, the Board ignored unconverted testimony that during the time that Mr. Kunder was assigned to TMI-2, he never ran, signed, or reviewed a leak rate test. Kunder prep. St., p. 2, ff. Tr. 4800. He had no i
recollection of ever being present in the control room while a leak rate test was being run. Id. Mr. Kunder never knew that control room personnel were discarding unsatisfactory leak rate l
test results. Tr. 4839-40. He was not aware of improper leak rate practices, such as test manipulation by operators, at TMI-2. Board Exhibit 1-A, Stier Report, Vol. VI(G), Tab K, 9/28/83 Kunder Interview, pp. 38-40, 44.
The Board observed that Mr. Kunder "became aware" that there was some question whether leak rate tests results !
accurately reflected plant conditions, and that he knew that "some effort was being undertaken to correct the difficulties."
V l
1
___________._.______o
l i
R.D. at 115. The Board further found that Mr. Kunder believed the problem to be a calculational error that led to erroneously high readings. Id. at 115-16. The Board noted that Mr.
Kunder recalled that his department was asked to look at the leak rate test problem, but that "Kunder had only limited recall of how he became aware of the difficulties and no recollection of what was accomplished to correct them." Id. at 116. The Board then concluded:
"We believe Kunder's inability to recall details with respect to his awareness of difficulties reflects his actual limited knowledge of these difficulties during the period of operation of TMI-2. We find no excuse for his failure to pursue this ongoing problem, and that such
- failure constitutes culpable neglect."
R.D. at 116 (emphasis added).
The Board's finding is simply nonsensical. The Board's reasoning apparently was: (1) Mr. Kunder's memory had dimmed over the past seven or eight years such that he could not recall the specifics of his role in the leak rate test difficulties; (2) his inability to remember these details demonstrated his " actual limited knowledge of these difficulties"; (3) in light of his knowledge of these difficulties, his failure to pursue them constituted culpable neglect. In effect, as to Mr. Kunder, the Board abandoned the need for clear and convincing evidence to support an adverse finding; rather, it equated his honest loss of memory with
" culpable neglect."
r
(
'The Board did not identify the " ongoing problem" that Mr. Kunder. allegedly failed to pursue. The record, however, does so. The.only " problem" that was brought to Mr. Kunder's attention was the incorrect calculation of RCDT density. Tr.
' 4840-41; see R.D.;at 90-92, 122-23. Mr. Morck, who worked for Mr. Kunder, was assigned to correct the problem, and he did so.
See R.D. at 92. Since there is no evidence -- let alone any clear and convincing evidence -- that Mr. Kunder was aware of any other " difficulties" with the leak rate, the Board's finding of culpable neglect on his part has absolutely no adequate record support.
The Board's-treatment of Mr. Kunder is also inconsistent with its proper exoneration-of Mr. Herbein. The Board found that Mr. Herbein was entitled to rely on the NRC inspector's report in January 1979 that the inspector'had reviewed TMI-2 leak rate test records, that the results were acceptable, and that the plant was in compliance with the leak rate Tech Specs. R.D. at 120. Those inspection reports were also sent to Mr. Kunder. See Exhibit 20 (Haverkamp prep. St.),
- Exs. D and E, with enclosures. We submit that Mr. Kunder.was also entitled to rely on the same inspector's reports, unless he had personal knowledge to the contrary. The record shows that he did not have such knowledge.
The Commission must reject the Board's unsupported finding that Mr. Kunder was guilty of culpable neglect, 1
<x-
)
exonerate him, and declare that he is no long r barred from i e working at TMI-l'.
F. Adam N. 14 iller.
The Board concluded that Mr. Miller was not aware of, or involved in, any leak rate te"st manipulation by the ,
operators c:t his shift. R.D. at 21 '. Ya f. the Board s determined that Mr. Miller "was guilty of culnable neglect in his attitude toward the test, in his total failure to supervise his CRO's in performing the test, and in creating a work atmosphere where repeated manipulations could occur." Id. at 211. Such a subjective finding is contrary to the record in this procee6ing. Moreover, the Board erred by failing to apply the " clear and convincing" standard to its adverse conclusion about Mr. Miller.
The Board states that " Miller's actions must have sent a clear message to Coleman, Olson and Wright: Foreman Adam Miller doesn't care how leak rate tests are performed, as long as the paper result from the computer reads less than 1 gpm."
Id. at 209. That statement is merely an assumption, not a finding that is supported by clear and convincing evidence.
There is no reference in the Board's discussion of Shift D to any testimony by the operators on that shift that Mr. Miller sent such a message. Indeed, the board failed to refer to any testimony whatsoever by the Shift D operators regarding Mr.
Miller's " attitude".
t
E It appears that the Board's conclusion regarding Mr.
Miller's " attitude" is merely an unjustifiable and patently
\
unfair inference from the Board's conclusions regarding the operators on Shift D. The Board appears to simply assume that if the Shift D operators manipulated the results of their leak __
rate tests, then Mr. Miller was responsible for their decision '
to do so.
The Board concluded that Mr. Miller adopted and (
displayed "an utterly cynical attitude" with respect to the leak rate test. Id. at 209. There is no basis in the record for that determination. Indeed, there is no reference to the record in the Recommended Decision to support that conclusion.
Mr. Miller acknowledged that there was a " cavalier attitude" among the operators and supervisors regarding the leak rate test. Tr. 3656. The Board itself characterizes his attitude as cavalier. R.D. at 210. It fails to explain, however, how such an " attitude" is at the same time " utterly cynical".
" Cynicism" implies contempt, and there is simply no evidence that Mr. Miller was contemptuous of leak rate testing at TMI-2.
In any event, an " attitude" cannot support a determination of culpable neglect. The Commission's order establishing this proceeding is clear in this regard. It directs the Board to determine who, "by their dereliction or culpable neglect allowed the leak rate falsifications." 22 N.R.C. at 883. Thus the Board was directed to determine
whether there was a causal relationship between the leak rate falsifications and a willful, wanton, and reckless act or omission by a.ny foreman or supervisor. A Board finding of indifference and cynicism is much too abstract and subjective to support a determination that Mr. Miller " allowed" the leak rate falsifications and was thus guilty of " culpable neglect." %
It appears that the Board unfairly assumed that because Shift D operators manipulated leak rate tests, Mr.
Miller " allowed" them to do so--not by virtue of a concrete act '
or omission documented in the record, but by virtue of an
{
undocumented attitude. Such a specious basis for a determination of culpable neglect should be rejected by the Commission. The Commission must conclude that Mr. Miller was
/
not aware of, and did not condone, any improper behavior concerning leak rate testing at TMI-2. The Commission should exonerate Mr. Miller of leak rate test improprieties and revise the 1985 license condition with respect to his employment at TMI-1.
s G. Dennis I. Olson, i
The Board has determined that Mr. Olson " manipulated test results with underrecorded water additions and certified test results knowing them to be false." R.D. at 199. That finding is not supported by clear and convincing evidence in the record.
The Board's finding that Mr. Olson manipulated test results was based upon an analysis of nine leak rate tests
/
6 I.
performed on his shift Setween February 10 and March 13, 1979, in which he was either the panel operator or performed the surveillance.. R.D. at 191-92. During the period of those tests, NRR and MpR concluded that water additions were made shortly before the end of the tests. Since both Mr. Coleman and Mr. Wright, the other CRO's on Mr. Olson's shift, admitted adding water purposely during these tests, the Board concluded that "there is no reason to believe that information about manipulation would not have been shared by all three CRO's."
Id. at 193. That conclusion is not only completely unsupported by the record, but is in total disregard of the " clear and convincing evidence" standard that the Board said should be applied to findings of manipulation and falsification.
Mr. Olson was not a party to the proceedings and testified under subpoena. Nevertheless, he filed a prepared statement, ic which he testified:
"I can no longer recall why water was added, or uplain its addition based on available plant records. I do not recall knowing on my own or through discussions with the other operators that a water addition could produce a " bonus" in the makeup tank level reading. I do know I never falsified leak rate test results by this or by any other method."
Olson Prep. St., p. 5, ff. Tr. 3911.
Mr. Olson was questioned extensively by the Board on the number of tests performed by his shift where water additions had been made. Understandably, after the passage of more than seven years since these routine evolutions were r
9 performed, he was unable to recall specifically why water was i
added on.each of the tests. However, as he pointed out to the Board, he is now aware of the fact that both of his shiftmates ,
admitted adding water during the performance of leak rate tests. Tr. 3971. ,
There is no evidence (and the Board cites none) to show that Mr. Olson was aware that Mr. Coleman and Mr. Wright - -
were purposely making these water additions. Both of those operators appeared and testified before the Board, and each was questioned thoroughly as to Mr. Olson's knowledge of the water .
additions. Mr. Coleman admitted candidly that he added water during leak rate tests in order to influence the test results.
Coleman Prep. St., p. 4, ff. Tr. 2579. When asked if this was a shared enterprise with his shiftmates, he stated that he had no recollection of conversations with them about the subject.
Tr. 2604, 2620. Furthermore, when questioned about hydrogen additions, Mr. Coleman indicated that he attempted to discuss this matter one time with Mr. Olson, but Mr. Olson just walked away, refusing to participate in such a discussion. Tr. 2605. .
This reaction on Mr. Olson's part is hardly consistent with a finding that he was a collaborator with Mr. Coleman in leak w rate test manipulations.
l Mr. Wright was also questioned about water additions I
on the shift during leak rate tests. His testimony was that he l
purposely added water at the end of the tests he performed in l
l l t
order to bring the water level up close to what it was at the beginning of the test, and thus make the results more accurate.
When asked if.he recalled discussing his practices with Mr.
Olson, he stated he did not. Tr. 2703-04.
The Board appears to base its findings with respect to Mr. Olson's involvement on its view that there was no reason to believe that information about manipulation would not have been shared by all three CRO's. R.D. at 193. If this is the entire basis for finding that Mr. Olson was aware of and participated in test falsification, it is directly contrary to the Board's proper determination that merely because it found evidence of manipulation of a test by a particular person, knowledge of or participation in such manipulation would not be automatically imputed to other members of the shift. Id. at 138.
The Board has correctly decided that the " clear and convincing" evidence standard should be applied to findings of manipulation and falsification because these findings are likely to have strong reputational impacts and because they tended to involve the most serious memory difficulties in this proceeding. Id. at 25. But this standard has not been applied in Mr. Olson's case. This is not a case of mere denial by the witness as to knowledge or participation in falsification. The two other operators on "D" shift have been candid in admitting their leak rate practices. They have consistently admitted their involvement and have consistently denied collaboration with Mr. Olson, or any recollection of discussions of the subject with him. Under the circumstances, there is no clear and convincing evidence of manipulation by Mr. Olson, and the Commission should so find and should exonerate Mr. Olson.
Prayer for Relief In the preceding comments we have asked that the Commission specifically find that Messrs. Adams, Coleman, Conaway, Guthrie, Hoyt, Kunder, Adam Miller, Mehler, Smith, and Zewe should be exempted from the license condition for TMI-1.
\
I In addition, we hereby request that the Commission make similar specific findings in favor of Messrs. Faust, Frederick, and McGovern, each of whom was essentially absolved by the l
presiding Board. See R.D. at 141-48, 232-35.
Finally, we ask the Commission to find that Mr. Congdon, notwithstanding the Board's finding that he manipulated and falsified leak rate tests (R.D. at 177), has confessed and repented, and, in view of his subsequent performance, should also be specifically exempted from the TMI-l license condition.
Conclusion For the foregoing reasons, the Commission should conclude that 1) the specific findings just requested are necessary and appropriate, 2) no enforcement action is c
appropriate, 3) no sanctions are justified, and 4) this matter should finally be put to rest.
Respectfully submitted, Of Counsel: LeBOEUF, LAMB, LEIBY & MacRAE MICHAEL F. McBRIDE By ' 4A/fd -
ROBERT ST. JOHN ROPER (' Partner j JAMES W. MOELLER 1333 New F ampshire Avenue, N.W.
MARLENE L. STEIN Suite 1100 Washington, D.C. 20036 (202) 457-7500 SMITH B. GEPHART KILLIAN & GEPHART JANE G. PENNY 216-218 Pine Street TERRENCE J. McGOWAN Harrisburg, PA 17108 (717) 232-1851 Attorneys for the Numerous Employees July 20, 1987 1
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& J UNITED STATES OF AMERICA
, NUCLEAR REGULATORY COMMISSION
'87 JL 20 P4 :28 EEFORE THE COMMISSION
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In the Matter of )
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INQUIRY INTO THREE MILE ) Docket No. LRP ISLAND UNIT 2 LEAK RATE )
DATA FALSIFICATION )
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CERTIFICATE OF SERVICE I hereby certify that I have served this 20th day of July, 1987, the foregoing " Comments of the Numerous Employees on the Recommended Decision", by first-class mail, postage prepaid, or, as indicated by an asterisk, by hand delivery, to the following:
- Honorable Lando W. Zech
- Honorable Thomas M. Roberts Chairman U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
- Honorable Kenneth M. Carr
- Honorable Frederick M. Bernthal U.S.-Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555
-James H. Carpenter Sheldon J. Wolfe, Chair. man Administrative Judge Administrative Judge i Atomic Safety and Licensing Atomic Safety and Licensing Board Panel' Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 s 1
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-* Mary'E. Wagner, Esq. Glenn O. Bright Office of the General Administrative Judge
' Counsel- _
Atomic Safety and Licensing U.S. Nuclear. Regulatory Board Panel Commission. .
U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Ernest L. Bl'ake, Jr., Esq. James B. Burns, Esq.
Shaw, Pittman, Potts & 'Isham, Lincoln & Beale Trowbridge Three First National Plaza 2300 N Street, N.W. Suite 5200 Washi,ngton, D.C. 20037 Chicago, IL 60602 Michael W. Maupin, Esq. Ms. Marjorie M. Aamodt Hunton & Williams 200 North Church Street-P.O. Box 1535 Parkesburg, PA 19365 Richmond, VA 23212 Ms. Marjorie M. Aamodt
- Docketing and Service Branch (3)
Box 652 U.S. Nuclear Regulatory Lake Placid, NY 12946 Commission 1717 H Street, N.W.
Washington, D.C. 20555
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