ML20081H159

Response to Gpu & NRC Responses to Commission 831007 Order. Reopened Hearing Should Be Structured to Avoid Wasteful Expenditure of Resources & to Include Outstanding Competence & Integrity Questions.Certificate of Svc Encl

ML20081H159
Person / Time
Site:	Three Mile Island
Issue date:	11/04/1983
From:	Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8311070335
Download: ML20081H159 (12)

Text

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n UNITED STATES OF AMERICA DOCKETED ^

NUCLEAR REGULATORY COMMISSION USMC

) '83 NOV -4 P2:i2 In the Matter of )

) UFicE 7 3Er.u c,a METROPOLITAN EDISON COMPANY ) UCC^ "'A RIN *4Fi 59"/ : ,

) Docket No. 50-289 i (Three Mile Island Nuclear ) (Restart)

Station, Unit No.1) )

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UNION OF CONCERNED SCIENTISTS' REPLY TO GPU AND NRC STAFF RESPONSES TO COMMISSION ORDER OF OCTOBER 7, 1983 j The " Licensee's Response to Commission Order of October 7, 1983," October 27, 1983 repeatedly sounds the same theme reiterated by GPU in many contexts since virtually the outset of this proceeding: that it is being treated unfairly and that the many serious unresolved questions concerning GPU competence and integrity should not impede restart. This theme has taken i on a new level of stridency, however, in the most recent filing as GPU now asserts that it is the Commission's obligation, out of a " decent respect" for GPU management and others, to

" extricate itself [the Commission] from the morass into which it [the Commission] has wandered." Licensee's Response at 9.

This remarkable statement captures GPU's continuing misunderstanding of its position and of NRC's obligations. If NRC has " wandered into the morass," it is a morass which GPU l created and which NRC has no choice but to resolve, because NRC's overriding obligation under the law is to the public health and safety.

8311070335 831104 PDR ADOCK 05000289 G PDR

9 Both GPU and the NRC Staff generally overlook in their arguments the fact that the Appeal Board has already reopened the record in this case based upon the inescapable conclusion f

that the record is incomplete; and, we would add, misleading, since neither the Licensing nor Appeal Boards have considered the evidence of systematic intentional leak rate falsification at TMI-2. The ASLB decision was rendered subject to resolution of these questions. LBP-81-30, 14 NRC 381, 551. Nor, of course, did either Board consider the possibility that the same activity took place on a smaller scale at Unit 1, as the NRC Staff now seems to have concluded. See Board Notifications BN-83-138A and BN-83-138B. Putting aside for the moment all of the other open issues concerning GPU competence and integrity, we do not believe that the Commission has the legal option to allow restart until the leak rate falsification issues have been resolved on the record, contrary to the assumption f inherent in GPU and the NRC Staff's arguments. There simply is not a decision at any level within NRC which has considered this unquestionably relevant evidence and therefore no decision which could be relied upon as a basis for lifting the license suspension. Conversely, there is no decision which can be made immediately effective to authorize restart. The Commission should bear this fact carefully in mind as it weighs possible courses of action.

The Commission should also bear in mind the full scope of the management competence and integrity questions now before the Appeal Board in addition to leak rate falsification. Prime among these are the issues on which there were great differences between the Special Master who presided over the cheating hearings and the ASLB, including:

1) Who cheated on company-administered and NRC examinations?

2) Did Michael Ross, current TMI-l manager of operations, facilitate the cheating? The Special Master believed that he did.

3) Was the training and testing program an exercise in rote memorization marginally related to the skills necessary to operate a plant?

Then there are the issues before the Appeal Board on which there is no serious factual disagreement between the Special Master and the ASLB, but a grave question as to the weight which should be given them in assessing competence and integrity. These include the gross inadequacy of GPU's response to the cheating incidents (the so-called Wilson "inves tiga tion" ) and the f act that GPU permitted an environment to grow in which widespread disdain was shown for NRC testing and qualification requirements. There is also the relevant matter of GPU's f alse certification of VV, Supervisor of Operations, TMI-2, and the other purportedly " independent" investigation (the " Speaker Repor t") conducted at GPU 's behes t which tortuously exonerated the company. See UCS Comments on

" Investigation of VV and O incident", July 21, 1983.

This brief and incomplete enumeration of the very serious issues now before the Appeal Board should make it absolutely clear that the leak rate falsification and the other more recent issues are not the only matters standing between GPU and a clean bill of health. To authorize restart would necessarily involve disregarding not only the leak rate f alsification question but also all of the other outstanding issues at the appellate level. The Commission has no reasonable basis on which to do this; the Special Master is a highly qualified, experienced fact finder who presided over weeks of testimony and produced an impressive and well-reasoned decision. The only responsible course is to allow the Appeal Board to do its job - to review and weigh all of the pertinent evidence and argument on management competence and integrity.

In this connection, we also wish to draw the Commission's attention to the f act that the Appeal Board, in resolving the design issues on which UCS was most involved, quite intentionally and specifically did not reach the ultimate conclusion that TMI-1 is safe enough to restart. That was left to the Commission to determine:

In light of the bifurcation of issues between the adjudicatory boards and the Co'mmission, only the Commission can determine - after examining all systems and considering information within and outside this record - whether there is reasonable assurance that Three Mile Island Unit No.1 can be operated without endangering the health and safety of the public.

ALAB-729, 17 NRC 814, 895 (1983).

To date, the Commission has not considered the evidence referred to above by the Appeal Board, nor reached any decision

on the safety of TMI-1. These issues include, but are not limited to, the lack of seismic qualification of the TMI-l emergency feedwater system, the lack of environmental qualification of much equipment and the need for the non-safety grade PORV to perform safety functions, including depressurization of the primary system for steam generator tube breaks. Id. The Commission has repeatedly over a four month period extended its deadline for deciding UCS's petition for review of ALAB-729. In light of the Appeal Board's specific reservation for the Commission of the ultimate safety determination, UCS submits that the Commission must consider and decide the pertinent design issues prior to authorizing TMI-l restart. In any case, the Commission should be considering these issues while the Appeal Board is reviewing the record on management competence and integrity.

GPU claims throughout its filing that it is being treated unfairly because it cannot conceive of any plant being shut down on the basis of the charges surrounding GPU, Licensee's Response at 3. They ask to be judged "like other licensees."

Id. This argument amounts to asserting that the Commission would tolerate or has tolerated grave improprieties, including potentially criminal acts, on the part of other licensees. It is an insult to the Commission as well as an unsubstantiated one. No case is cited to support the suggestion that other licensee's have been permitted to operate nuclear plants in the f ace of s?ch serious breaches of management competence and

integrity. The making of false material statements, for example, is a specific ground for suspending or revoking a license. 10 CFR 50.100. Moreover, it is impossible to conceive of the Commission granting a license to operate in the face of the evidence of lack of competence and integrity which is present here.* / The f act that GPU is the possessor of a suspended license surely does not justify it's being judged by a more lax standard.

GPU claims further that the leak rate falsification and other competence and integrity issues are not r. elated to the concerns identified by the Commission in its 1979 orders and therefore, presumably, do not justify shutdown. Licensee's Response at 3, 10. This is patently untrue. In fact, concerns about the licensee's competence were one of the four (4) specifically enumerated distinctions between TMI-1 and the other B&W reactors which led the Commission to determine that a hearing would be required for that plant " prior to restart":

1 In addition to the items identified for the other B&W reactors, the unique circumstances at TMI require that additional safety concerns identified by the NRC Staff be resolved prior to restart. These concerns result from. . . (2) questions about the management capabilities and technical resources of Metropolitan I

Edison, including the impact of the Unit 2 accident on these. . . . CLI-79-8, 10 NRC 141, 143 (1979)

(emphasis added).

• / See, e.g. , Houston Lighting and Power Co . (South Texas Project, Units 1 and 2), CLI-80-32, 12 NRC 281, 291-292 and n.4 (1980), holding that false statements and other evidence of poor character could be " disqualifying" factors in licensing.

See also, Consumers Power Co. (Midland Plant, Units 1 and 2),

! AL A B-lO 6 , RAl-73-3, 182, 184 (1973).

If some of the specific facts known now were not known to the Commission in August, 1979, that is because they had not yet come to light. *-/ This is not surprising since the purpose of the hearing process was precisely to bring such matters to light and to evaluate them.

GPU also argues that the leak rate falsification should not bar restart because it is 1) unproven, 2) relates to a different unit, and 3) relates to a different management.

Licensee's Response at 5. The charges are unproven only to the extent that no adjudicatory board has yet considered them--a rather circular argument. In any case, the charges were considered substantiated both by the contemporaneous NRC investigators, and by the Licensee's own consultants, Faegre and Benson, and were considered sufficiently serious by the Justice Department to justify presentment to a grand jury.

Further, while the Hartman allegations relate only to Unit 2, there is now evidence of the same practice on a more limited scale at Unit 1. Board Notifications BN-83-138A and BN-8 3-13 8B . In any case, the same organization holds the license to both units, so the distinction is without significant meaning. Finally, as to GPU's claim that these

• / Other matters calling Licensee's competence and integrity into question were known, such as those concerning the Licensee imparting misleading and incomplete information to the Commonwealth of Pennsylvania during the accident. That is another issue the significance of which will be determined by the Appeal Board.

issues concern "different management," several points must be emphasized. First, the leak rate falsification issue is one of a large number of questions bearing on competence and integrity which must be viewed in the aggregate as establishing a pattern of behavior. The pervasive mismanagement of the TMI-2 cleanup which 01 has confirmed, the allegations of harrassment of the clean-up workers, the changes in the so-called "Keaten" report, and the RHR and BETA findings, all involve current GPU management.

One aspect of the matter which UCS believes to be among the most troubling persists even today. That is the question of GPU 's response to the Hartman allegations. GPU's consultant, Faegre and Benson, who substantiated the charges in pertinent part, were never permitted by GPU to interview anyone other than Hartman. GPU withheld their report and has never to this day attempted to discover who was involved in the falsification, who condoned it or looked the other way or how it could have taken place without the knowledge of high-level i management. On the contrary, GPU's response has been to deny the force of the evidence. This failure to act is attributable to today's management of GPU, not yesterday's.

In addition, it is not accurate to claim that all the persons who might have been directly involved in the leak rate f alsification are no longer connected with TMI . For one thing, no one knows who was involved, either directly or indirectly, or how high up the responsibility goes. Second, thirteen of 38 licensed TMI-l operators were licensed at the time of the

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accident. Licensee's Response, Attachment 1, p.3. Even if personnel are re-assigned so that no other TMI-2 operator operates TMI-1, GPU proposes to make an exception for the Manager of Operations, Michael Ross, (Id.) who was found by the

. Special Master in the cheating proceeding to have intentionally kept the proctor out of the exam room and to have improperly caused the answer keep to be changed.' Report of the Special Master LBP-8 2-34B, 15 NRC 918, 976, 998 (1982). The Appeal Board is currently considering this question along with many i others.

Finally, some of the highest management from the time of the accident are still at GPU as well as an unknown number of middle management. The extent of the overlap is unknown to us since GPU has not attempted to determine the scope of individual responsibility and NRC is only now doing that part of the investigation.

In conclusion, UCS emphasizes that the newest issues bearing on management competence and integrity including the evidence of leak rate falsification, cannot be viewed in isolation. There are many pieces of evidence, some concerning events before the accident and some af terward, including some continuing today, which in our opinion established a pattern of conduct unacceptable on the part of a holder of a license to operate a nuclear power plant. A decado ago, the Appeal Board aptly observed:

[ A]s important as qualifications may be, of no less significance is the matter of managerial attitude.

Unless there is a willingness - indeed, desire - on

the part of the responsible officials to carry it out to the letter, no program is likely to be successful. ,

Consumers Power Co. (Midland Plant, Units 1 and 2).

ALAB-10 6, RAI-7 3-3, 18 2, 184 (1973).

The scope and number of the pertinent issues and the amount of evidence which must be weighed in the aggregate can only be properly treated by allowing the Appeal Board to reach a decision in combination with the reopened evidentiary hearing ordered by that Board. The reopened hearing should not be stayed, although it should be structured to avoid wasteful expenditure of resources, as suggested by UCS in our original comments on the Commission's October 7,1983, order.

We also believe that the scope of the reopened proceeding might well be broadened at this point to include all of the outstanding competence and integrity questions (e.g. the Parts / King allegations, the withholding of consultants' reports) so that discovery on these questions could go forward in the interest of expediting their resolution on the record.

Respectfully submitted,

] . MN A, Ellyn R. Weiss <Q p General Counsel Union of Concerned Scientists HARMON & WEISS 1725 I Street, N.W.

Suite 506 Washington, D.C. 20006 (202) 833-9070 Date: November 4, 1983

O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

METROPOLITAN EDISION COMPANY )

) Docket No. 50-289-SP (Three Mile Island Nuclear ) ASLBP 79-429-U9-SP

) (Restart Remand on)

Station, Unit No. 1) ) Management)

)

CERTIFICATE OF SERVICE I hereby certify that copies of the UNION OF CONCERNED SCIENTISTS' REPLY TO GPU AND NRC STAFF RESPONSES TO COMMISSION ORDER OF OCTOBER 7, 1983 have been served on the following by first class mail, postage prepaid this 4th day of November, 1983, or as otherwise indicated.

• Nunzio Palladino, Chairman Sheldon J. Wolfe U .S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Panel Washington, D.C. 20555 881 West Outer Drive Oak Ridge, TN 37830

• Victor Gilinsky, Commissioner Gustave A. Linenberger U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Panel Washington,, D.C. 20555 5000 Hermitage Drive Raleigh, NC. 27612

• Frederick M. Bernthal, Commissioner Judge Gary L. Milhollin U.S. Nuclear Regulatory 1815 Je f f erson St.

Commission Madison, Wisconsin 53711 Washington, D.C. 20555

• Thomas Roberts, Commissioner * *J u dg e Ga r y J . Edles, U.S. Nuclear Regulatory Chairman Commission Atomic Safety and i Washington, D.C. 20555 Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• James Asselstine, Comnissioner ** Judge John H. Buck U.S. Nuclear Regulatory, Atomic Safety and Commission Licensing Appeal Board Washington, D.C. 20555 Panel U.S. Nuclear Regulatory Ivan W. Smith, Chairman Commission Atomic Safety and Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Commission l

Washington, D.C. 20555

4

• Judge Chr is tine N . Kon1 * ** Counsel for NRC Staf f Atomic Safety and Licensing Office of Executive Legal Appeal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Judge Reginald L. Gotchy

• Docketing and Service Atomic Safety and Licensing Section Appeal Board Panel Office of the Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Mrs. Marjorie Aamodt * * * *Georg e F . Trowbridge, Esq.

R.D. #5 Shaw, Pittman, Potts &

Coatsville, PA 19320 Tr owbr idge 1800 M Street N.W.

Washington, D.C. 20036 Douglas R. Blazey, Esquire Public Information and Chief Counsel Resource Center Dept. of Enyt'l. Res. 1037 Maclay Street 514 Executive House Harrisburg, PA, 17103 Harrisburg, PA 17120 Louise Bradford Michael McBride, Esq.

Three Mile Island Alert LeBeouf, Lamb, Leiby &

325 Peffer Street MacCr ae Harrisburg, PA 17102 1333 New Hampshire Ave.

Suite 1100 Washington, D.C. 20036 Jordan D. Cunningham, Esq.

Fox, Farr & Cunningham M Jds, 2320 North Second Street N.

Harrisburg, PA 17110 Ellyn R. Weigs p l

• Hand delivered to 1717 H l Street, N.W., Washington, D.C.

Dr. Judith H. Johnsrud ** Hand delivered to 4350 Dr. Chauncey Kepford East West Highway, Environmental Coalition on Bethesda, MD.

Nuclear Power 433 Orlando Avenue * *

• Hand delivered to

, State College, PA. 16801 Maryland National Bank Building, Bethesda, MD.

John A. Levin, Esq. **** Hand delivered to Assistant Counsel indicated address.

l Pennsylvania Public Utility 1 Commission Post Office Box 3265 Harrisburg, PA 17120 l Ms. Gail B. Phelps l 245 West Philadelphia Street York, PA 17404

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