View source for CLI-85-18, Notifies That Encl Kelley,Kline & Bright & Order CLI-85-18 Re Leak Rate Data Falsification Forwarded to Encl List of Individuals for Second Time During 860127-0213

{{Adams
| number = ML20137U758
| issue date = 02/13/1986
| title = Notifies That Encl Kelley,Kline & Bright & Order CLI-85-18 Re Leak Rate Data Falsification Forwarded to Encl List of Individuals for Second Time During 860127-0213
| author name = Kelley J
| author affiliation = NRC ATOMIC SAFETY &amp; LICENSING BOARD PANEL (ASLBP)
| addressee name = Clements W
| addressee affiliation = NRC OFFICE OF THE SECRETARY (SECY)
| docket = 05000320
| license number = 
| contact person = 
| case reference number = CON-#186-080, CON-#186-80
| document report number = CLI-85-18, LRP, NUDOCS 8602190319
| title reference date = 12-31-1985
| document type = ASLP TO NRC, CORRESPONDENCE-LETTERS, INTERNAL OR EXTERNAL MEMORANDUM, MEMORANDUMS-CORRESPONDENCE
| page count = 2
}}

=Text=
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liEM0RANDUM FOR: William L. Clements, Chief Docketing and Services Branch               '
i, FROM:              James L. Kelley        -      "'
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Administrative Judge              ''    F Atomic Safety and Licensing Board Panel

==SUBJECT:==
INQUIRY INTO THREE MILE ISLAND UNIT 2 LEAK RATE DATA FALSIFICATION l                This memorandum is to inform you that the {{letter dated|date=December 31, 1985|text=letter dated December 31, 1985}} l
from Judges Kelley, Kline and Bright together with CLI-85-18was mailed during the time period of January 27, 1986 through February 13, 1986 to the l         .ittached list of persons for the second time.
l 0602190319 860213 i
PDR    ADOCK 05000320 PDR Q
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Updated (2/86)AddressesOfPersonnel Notified a Second Time of Connission Proceeding Regarding TMI-2 Leak Rate Testing Irregularities All letters were mailed by Certified Mail, Return Receipt Requested, except the letter to Mr. J. M. Boyd which was sent c/o Ernest L. Blake, Esq.
Shaw, Pittman, Potts & Trowbridge, 1800 M Street, NW, Washington, DC.
Don Berry Box 472 R.D. #1 Elizabethtown, PA 17022 T.S. Daugherty 118 Charles Boulevard Sinking Spring, PA     19608 J. M. Boyd R. D. #2, Box #183 Hunnelstown, PA    17036 David A. Neumann 278 Pine Street Middletown, PA    17057 Craig C. Faust 2971 Schoolhouse Road Middletown, PA 17057 Dennis I. Olson 6 Wayridge Court Gaithersburg, MD     20760 David M. Smith 10002 West Campbell Avenue Phoenix, AZ    85039 Charles D. Adams R.D. #3 Box 509 Annville, PA    17003

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               %*                             UNITED sVATEs f
j               NUCLE AR REGULATORY COMMISSION
[g(p{'         f ATOMIC SAF E TY AND LICENSING BOARD.G ANE L AAWINGTON OC N M g                                                             December 31, 1985 David A. Neumann 278 Pine Street Middletown, PA 17057

==Dear Ms. or Sir:==

This letter is being sent to about one hundred and twenty present and former employees of GPU Nuclear and Metropolitan Edison Company who worked at Unit 2 of the Three Mile Island Nuclear Station ("TMI-2") between February 2,1978, when commercial operation comenced, and March 28, 1979, the date of the accident.
Review of available records indicates that that group of people, including yourself, represent all those who were involved in, or were likely to have had knowledge of, reactor coolant system leak rate data, testing or reports at TMI-2.
As you may know, several years ago Harold Hartman, a control room operator at TMI-2 prior to the accident, alleged that leak rate tests were purposely manipulated and records of such tests falsified or destroyed prior to the accident to cover up the fact that over an extended period of time the results of the tests exceeded technical specification limits. Subsequent investigations have tended to substantiate Hartman's allegations. The Nuclear Pegulatory Commissicn has now decided to conduct a hearing to develop the facts concerning any falsifications of leak rate data at TMI-2. This hearing is designed solely to gather information, particularly the involvement o' particular individuals in leak rate data falsification who may now or in the future work at a licensed nuclear facility.
A copy of a Commission " Order and *otice of Hearing" dated December 18, 1985 is attached to this letter. The Order spells out in more detail the background of this matter and the ground rules for the hearing. By w3y of brief sumary, a three-member Presiding Board will conduct the hearing which will focus on a series of issues specified by the Ccmmission, including, for example, whether operators ranipulated data during leak rate surveillance testing in order to improperly influence test results. Following the hearing, the Presiding Board will issue a recommended decision based on the hearing record which will identify persons who participated in, knew of and condoned, or allowed data falsificaticrs by culpable neglect.
On the basis of the Presiding Board's recom ended decision and ary other relevant information, the NRC Staf f will make recomendations to the Commission.
The Commission will then determine what further steps, if any, should be teken with regard to those involved in falsification.          If, as a result of its review, the Commission institutes formal enforcement proceedings or takes any licensing action, the facts found by the Presiding Board and Commission in the hearing will not be binding in the subsequent enforcement or licensing proceeding.
Participation as a party in the hearing is voluntary. The Board would like to emphasize, however, that we seek the fullest possible development of the record ard therefore the participation of all persons having knowledge of relevant facts. You
                                                                                     .   -   . l.

              .        _ . . -    _ _ . . _ .      . _        _    m          _   . _ _ .
 !                                                    2
 !      should be aware that should you decide not to participate as a party, you may i      nevertheless be subpoenaed as a witness.
l             Participation as a party in the hearing is governed by paragraph C.2 of the d
Commission's Order, which states that:
                               ~
i Any person who has an interest which may be affected by this hearing may j                  petition to intervene. Petitions to intervene shall include the name of i                  the party, how the party's interest may be affected by the proceeding, j                  and how the party expects to contribute to the development of an adequate j                  record. Petitions are to be filed within 45 days of the date of this 1                  Order and Notice of Hearing. Petitions shall be granted if the Presiding Board determines that the petitioner has an interest that may be affected  !
;                  and petitioner will likely contribute to development of an adequate 4
record.
A petition to intervene need not be lengthy or detailed. For example, it would suffice to state that you were involved with leak rate data in the relevant period,   !
that you have some knowledge concerning manipulation of leak rate data, or that       i
,       your future professional status may ultimately be affected by the proceeding. It is not necessary for you to state everything you know at this initial stage.          l Please note the 45-day deadline in the Corrmission's Order. This means that YOUR PETITION TO INTERVENE fiUST BE POSTMARKED NO LATER THAN JANUARY 30, 1986.
 ,      Petitions should be addressed to:                                                     i
;                                                          COPY TO:
l       Presiding Board                                    Jack R. Goldberg, Esq.             '
l       TMI Leak Rate Data Proceeding                      Office of Executive Legal Director
!       U.S. Nuclear Regulatory Commission                 U.S. Nuclear Regulatory Commission Washington, D.C. 20555                             Washington, D.C. 20555 1
THE PRESIDING BOARO 1
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                                               /5Mes L. Felley, Chairr/In 4                                              A6MINISTRATIVE JUDGE l
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                                                -  m $Wat
                                               .]erry R. L1ir'e' i
j                                              fCMINISTRATIVE JUDGE                           l i
ha r21enn O. Bright      L% ,,/
                                                                     '                        2 ADMINISTPATIVE JUDGE           '~7   -
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l As Stated                                                                             ;
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!                                                                                             i l                                                                                             l

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
 ,        COMMISSIONERS:                                             ,                g I'              Nunzio J. Palladino, Chairman Thomas M. Roberts                                      .
James K. Asselstine                                  5;  ,
Frederick M. Bernthal                                      2-
;               Lando W. Zech, Jr.
SEVED DEC101985
                                                )
l        In the Matter of                      )
INQUIRY INTO THREE MILE ISLAND                  Docket No. LRP UNIT 2 LEAK RATE DATA                 )
FALSIFICATION ORDER AND NOTICE OF HEARING CLI 18 In an Order issued February 25, 1985, CLI-85-2, 21 NRC 282, the Comission stated that it would institute a separate hearing apart from the i        Three Mile Island, Unit 1 restart proceeding to develop the facts surrounding the reactor coolant system ("RCS") leak rate data i         falsifications at Three Mile Island, Unit 2 (TMI-2) prior to the March 28, i
1979 accident, in sufficient detail to determine the ultimate status of those likely involved, which includes those segregated from TMI-1 and those now working at other facilities. The Comission herein specifies the J
procedures to govern the separate hearing, which will be a legislative format hearing designed solely to gather information.      This order also i         identifies the steps to be taken, af ter the Presiding Board issues a           j recomended decision setting forth the facts, in order for the Comission       *
)         determine what action, if any, will be taken.                                   *
 }                                                            l S p.           t

3 On February 29, 1984, Metropolitan Edison Company entered into a plea agreement with the United States which ended the criminal prosecution.
Metropolitan Edison pleaded guilty to one count of the indictment charging it with failure to establish, implement, and maintain an accurate and meaningful reactor coolant system water inventory balance procedure to demonstrate that unidentified leakage was within the allowable limits.       The Company also pleaded no contest to six other counts of the indictment, including those which charged the Company with improper manipulation of TMI-2 leak rate tests to generate results that would fulfill the Company's license requirements.      In urging the Court to accept the plea agreement, U.S. Attorney David Queen strted the evidence developed in the Grand Jury inquiry did not indicate that any of the directors and officers of GPU Nuclear from its inception in 1982 (as successor to Metropolitan Edison) to the date of the indictment, or any of the directors of Metropolitan Edison
  " participated in, directed, condoned, or was aware of the acts or admis-sions that are the subject of the indictment."1 After the Court accepted the plea agreement, the Department of Justice on behalf of the Ccamission asked the Court to provide the NRC access to I The individuals thereby cleared by the U.S. Attorney are William G.
Kuhns, Herman M. Dieckamp, Robert C. Arnold, James S. Bartman, Shepard Bartnoff, Frederick D. Hafer, Richard Heward, Henry D. Hukill, Edwin E.
Kintner, James R. Leva, Bernard H. Cherry, Philip R. Clark Verner H.
Condon, Walter M. Crietz, Robert Fasulo, Ivan R. Finfrock,jWilliam L.
Gifford, Rcbert L. Long, Frank Manganaro, Ernest M. Schleicher, Floyd J.
Smith, William A. Verrochi, Raymond Werts, and Richard F. Wilson.                .

  ,                                        5 by control room operators (CR0s), shift foremen, shift supervisors and on-site and 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 management personnel? Was the corrective action taken sufficient to insure compliance with the Technical Specification 3.4.6.2 by the personnel' perforndng 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? What corrective actions were taken? 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? Were unacceptable leak rate surveillance test results discarded in an attempt to hide them from the NRC?
(d) Did operators manipulate data or take other actions during leak rate surveillance testing in an attempt to improperly influence test resul ts? Who performed, condoned, directed or was knowledgeable of data manipulation or other improper actions during leak rete surveillance testing? This would include, but is not limited to the following:
(1)  inputting the wrong dsta into the plant computer;       -

-                                        7 falsifications that occurred at the TMI-2 reactor from February 2, 1978 until March 28, 1979.
(f) The Presiding Board is not to entertain issues other than those set forth in (a)-(d) above without the prior authorization of the Commission.
C. Procedures 1.'  The Chief Administrative Judge, Atomic Safety and Licensing Board Panel, is to appoint a three-person Presiding Board to rule on petitions to intervene, to conduct any prehearing procedures and the hearing, and to render a recommended decision setting forth the facts surrounding the falsifications and identifying those individuals who participated in, or knew of and condoned, or by their dereliction or culpable neglect allowed the leak rate falsifications at THI-2.
: 2. Any persoi  ho has an interest which may be affected by this hearing may petition to intervene. Petitions to intervene shall include the name of the party, how the party's interest may be affected by the proceeding, and how the party expects to contribute to the development of an adequate record. Petitions are to be filed within 45 days of the date of this Order and Notice of Hearing. Petitions shall be granted if the Presiding Board determines that the petitioner has an interest that may be affected and petitioner will likely contribute to development of an ade-quate record.

9 (b) No discovery will be conducted.             Instead, it is the Com-mission's intent that the hearing itself serve as the fact-finding mecha-nism.
(c) The Presiding Board may issue subpoenas if necessary to compel attendance of witnesses. The Presiding Board will make available to the parties lists of the individuals that it intends to call as witnesses.
Parties will be invited by the Presiding Board to submit recomendations regarding whether additional individuals should be called to testify.                      l l
(d) Before each witness testifies, the Presiding Board will                    l invite the parties to submit questions in writing to the Presiding Board which they believe should be posed to the witness.              The Presiding Board has the discretion to use the questions suggested by the parties.
(e) After the hearing has been ccmpleted, the Presiding Board is I   to invite the parties to file proposed findings of fact and conclusions of law.
l l               (f) The Presiding Board is to issue a recommended decision which l
sets forth its findings on who participated in, had knowledge of and condoned, or by their dereliction or culpable neglect allcwed the leak rate 1
falsifications, and the facts surrounding any such involvement in suffi-cient detail to determine the involvement of any individual who may now work, or in the future work, at a nuclear facility.              The Board's decision shall. address each of the issues set out in Part B of this Order. The Presid'i ng Board is not to make recomendations regarding whether any
                                                                                          ~
actions-should be taken.                                                                '-

11 consideration of whether to remove TMI-1 employment constraints and whether to initiate formal enforcement action or take any licensing action with regard to involved individuals.       If as a result of its review the Comis-sion institutes a formal enforcement proceeding3 or takes any licensing action, the facts found by the Presiding Board and Comission in the hearing ordered here will not be binding in the subsequent enforcement or licensing proceeding.
It is so ORDERED.
Comissioners Asselstine and Bernthal disapproved this Order and provided separate views.
4 For the Comission a
NL
                                               &~   SAMUEL Up4.HILK Secretary of the Comission Dated at Washington, D.C.
this / ?         y of December, 1985.
3 Because the leak rate falsification events to be addressed in this Board hearing are more than five years old, the five-year statute of limitations set forth in 28 U.S.C. Q 2462 may bar the NRC from subsequently      i instituting an enforcement proceeding for involvement in the events that are the subject of this hearing. However, the infomation developed in the hearing may be used for other purposes, for example, in evaluating whether an individual's operator license should be renewed.
4 Comissioner Bernthal was absent when this order was affirmed. He had previously disapproved the Order and had he been present he would have affimed his prior vote.                                                      .
I

SEPARATE VIEWS OF COMMISSIONER ASSELSTINE I cannot agree with the hearing procedures established by the Commission in this order.
First, the Commission should simply hold an adjudicatory hearing on this issue rather than setting up some sort of ersatz legislative proceeding.
Since the Commission will not do that, however, they should at least have modified some of the more unreasonable provisions. At a minimum any party to the TMI-1 Restart proceeding who wishes to participate in this proceeding shculd be automatically admitted as a party without having to establish standing. Further, holding the " hearing" in the Washington, D.C. area seems to needlessly make participation in this proceeding more difficult than it should be.
Second, the Commission should not exclude consideration of the involvement of all upper-level GPUN management. I explained in more detail.my reasons for believing that the scope of this hearing should not be limited in my dissenting views on CLI 85-2 so I will not repeat them here. Suffice it to say that in my view relying solely on the statement of the U.S. Attorney at a court hearing on a bargained plea agreement is not a valid justification for ignoring management responsibility for the leak rate falsifications.

O SEPARATE VIEWS OF COMMISSIONER BERNTHAL I dissented from the path the majority chose in respect to the number and scope of additional hearings in relation to the Commission's restart of TMI-1. I continue to believe that the overriding consideration in the denouement of the TMI-1 restart proceeding is public confidence--the need for the public to be provided, to the extent reasonably possible, with all the facts relevant to the TMI accident' and its aftermath.
I consider this hearing as ordered by the Commission unlikely to prove adequate for that important purpose.
                                                    --w--P-}}