ML20140C659

Statement Opposing Memorandum & Order CLI-85-19 Approving Restart.Commission Finding Based on Exclusion of R Arnold & E Wallace from Activities Re Tmi.W/Certificate of Svc

ML20140C659
Person / Time
Site:	Three Mile Island
Issue date:	01/24/1986
From:	Weiss E HARMON & WEISS, UNION OF CONCERNED SCIENTISTS
To:
References
CON-#186-836 CLI-85-19, EW, RA, RA-EW, NUDOCS 8601280381
Download: ML20140C659 (13)

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BEFORE THE COMMISSION

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In the Matter of ) 50-289 RA , ,i g \P

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GPU NUCLEAR ) (Special Proceeding)

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(Three Mile Island Nuclear )

Station, Unit No. 1) )

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UNION OF CONCERNED 3CIENTISTS' COMMENTS ON CLI-85-19 In February, 1985, the Commission rr'used to hold public adjudicatory hearings on an array of evidence indicating dishonesty and incompetence on the part of the owners and operators of TMI-1. CLI-85-2, 21 NRC 282 (1985). Its primary ground for denying hearings was its determination that current ,

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GPU Nuclear Management - specifically exclud ing the " voluntarily" transferred former GPUN President Robert Arnold and Edward Wallace - was not responsible for past dishonesty and was fundamentally sound. Indeed, all of the Commission's conclusions concerning management integrity were carefully confined to

" current management," excluding Arnold and his second-in-command, Wallace.See e.g., CLI-85-09, S1.Op. at 27-32. This exclusion was an absolute requisite for fiading that GPUN possesses the integrity required of a nuclear licensee, since Arnold and Wallace had been found by the NRC staff to be responsible for making f alse statements to the NRC and, in Arnold's case, bearing 8601280381 860124 i PDR ADOCK 05000289 G PDR SD3 ,

responsibility for the illegal harassment and intimidation of Richard Parks and, as Met-Ed and GPUN top TMI management, for the growth of an environment and attitude that permitted the false certification of Floyd, widespread operator cheating, training inadequacies, and leak rate falsification. NUREG-0680, Supp.5, pp.10-5, 10-17, 13-3, 13-5, 13-6, 13-18.

The Commission justified its refusal to hold hearings on the same grounds as the staf f justified its " revalidation" of management integrity," to wit: that " current" GPUN or TMI-l management did not include those culpable for past bad acts. The Commission's decision was upheld by the U.S. Court of Appeals for the Third Circuit explicitly on the basis of that reasoning.

See, Three Mile Island Alert, Inc. v NRC, 771 F.2d 720, 726, 727, 732-4, 736, (3d. Cir. 1985). For example, as to the false NOV response, the court said:

The Commission reiterated the fact that the two persons most culpable for the inaccuracies in the response - Wallace and Arnold - were no longer associated with TMI-1.

Id. at 736.

On the basis of that, the court held that the Commission's action was not arbitrary and capricious. Id.

In sum, there can be no serious question that the exclusion of Arnold and Wallace from matters related to TMI-l was a necessary basis for the Commission's decision and for the Court's approval of it.,

Now, the deadline for filing certiorari petitions to the Supreme Court having just passed, the Commission proposes in CLI-

85-19 to permit Wallace and Arnold to resume their previous duties. It is difficult to find words appropriate to condemn this charade.

The Commission further directs commentors to confine themselves to "f acts," not " argument" or " speculation." Having refused to permit the hearings necessary to establish the

" facts," the . Commission no doubt will continue to characterize

~all of the public's comments as speculation, no matter how detailed or compelling. Therefore, we will rely for these comments solely on information developed by the NRC staff and contained in NUREG-0680, Supp.5.

Wallace and Arnold Lack the Integrity Recuired of Those Associated With Nuclear Power Operations Kallace wrote and Arnold reviewed and signed the now-famous Met-Ed response to the NRC's Notice of Violation ("NOV") covering the TMI-2 accident. The NOV contains false and misleading statements intended to persuade NRC that Met-Ed had not violated procedures and rules and generally to downplay any culpability.

When confronted with the inaccuracy and incompleteness of the statements, Wallace put forward a series of demonstrably incredible explanations, each of which was investigated and discredited by the NRC staff, NUREG-0680, Supp. 5, pp.8 8-

18. Arnold, on the other hand, termed the response " narrow" and

" legalistic."

The following statement is matelial and false:

...there is no indication that this temperature or the history of PORV discharge line temperatures i

, delayed recognition that the POTV stuck open during the course of the accident.

On the contrary, theid was a great deal of " indication" to this effect, detailed in 01 Keaten. Among these are testimony to the Kemeny Commission that the temperatures had "always been greater than 130 degrees" and Me t-Ed interviews with W. Zewe shortly after the accident that he was not alerted to trouble by the elevated temperatures because they consistently ran at around 190'. NUREG-0680, Supp. 5, p. 8-16.

Wallace not only had these early interviews, he actually claimed to NRC that we had relied "very heavily" on statements made soon after the accident. Id. Thus, he claims to have relied on statements which, in fact, contradict the NOV response.

The NOV response is also material and false in asserting that elevated relief valve discharge line temperatures "do not appear to have been the result of a leaking POBV," but were related to a leaking code safety relief valve. Id. at 8-15.

The evidence is clear that the operators and management believed the PORV was leaking and consciously decided not to close the blocked valve. The transcript of a May 25, 1979 meeting explicitly establishes this. Id. at 8-18. 01 interviews with the TMI station manager, shift supervisor, and 2 controi room operators showed that "all thought the PORV was leaking." ld at 8-16. Indeed, "Wallace was unable to name anyone who had concluded that the PORV was not leaking." ld,. at 8-18. The person he claimed to have received the information from categorically denies giving Wallace, or anyone else, information

from which such a conclusion could be drawn. Id.

Not only did Wallace engineer the material, false statements in the NOV response, he took great care to go to the internal GPU task force draf ting its own accident analysis and made sure that the internal analysis was altered to make it consistent with the NOV response. ld. at 8 8-14. This constitutes proof that Wallace was fully aware of the materiality and importance of these statements and made them knowingly and intentionally.

Arnold reviewed and signed the NOV response and reviewed the Task Force report. He characterizes it as " narrow" and " legalistic" but not, of course, false.

The staff found these statements to be " inaccurate,"

" incomplete," " contrary to other information in the possession of the licensee," and "less than acceptable." ld. at 8-19, 8-21, 13-4. 01 was directed not to state ultimate conclusions, but simply to find facts. The ultimate conclusion compelled by these f acts is unquestionably that Wallace and Arnold are personally responsible for material, false statements, ld. a t 8-21, 13 13-5.

Indeed, the staff reached the following conclusions:

These inaccurate, incomplete, and questionable statements in the licensee's response to the NOV raise serious questions about the staff's ability to rely cn statements made by Met-Ed. ld. at 13-5.

The ability of any agency to regulate licensed activities depends on the accuracy and completeness of a licensee's reports and the licensee's willingness to discover potential public health and safety issues. Id. at 13-9.

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The false certification and the associated coverup and the inaccurate and incomplete response to the .

NOV are graver still, [than leak rate falsification] indicating that Me t-Ed was unable or unwilling to communicate truthfully and candidly with the NOV. Id. at 13-6.

Having found that the false NOV response indicated a grave lack of honesty and that such an attitude goes to the core of NOV's ability to assure safety, how were the NRC staf f and the Commission in turn able to make the positive findings of management integrity necessary to justify restart of TMI-l? It was done by allowing GPU to voluntarily remove Arnold and Wallace from TMI-related activities and then pronouncing the remaining

" current" management to be sound. There can be no debate about this; it was quite explicit. See e.g. Id. at 8-22, 13-7, 13-9, 13-10; CLI-85-09, Sl.Op. at 27-32. Perhaps the clearest statement follows:

The staff reaches no conclusion at this time on the managerial integrity of individuals who no longer hold management positions with GPUN. It is the staff's position, and an essential part of the staff's ability to revalidate its position on licensee's management integrity that GPUN must obtain staff review and approval on a case-by-case basis prior to the assignment of any of these individuals (i.e., R.C. Arnold) to responsible management priorities associated with supervision of operations or maintenance of NRC licensed facilities. The staff will consider these individuals' past Met-Ed, GPUSL and/or GPUN performance, as well as any relevant current performance in reaching a decision on any such request. For two individuals (i.e. E. Wallace and G. Kunder) the staff finds that their current positions are not related to a TMI-l restart decision. Id. at 13-18.

The above, of course, also explains why the Commission now says that it has no evidence on or has taken no action with regard to Arnold's involvement in the Parks harassment, the false certification of Floyd, or leak rate falsification, as if this bespeaks his innocence. Once Arnold was moved away from TMI, the staff asserted that there was no need to make a judgment as to his integrity and the Commission followed the same rationale.

Having deliberately refused to make findings on Arnold's integrity because of his transfer, despite the wealth of evidence ry that he bears responsibility not only for the false NOV response and the Parks harassment, but also for the pervasive attitude which permitted widespread cheating and leak rate falsification, the Commission can hardly no.w allow him back and justify it on the ground that "no finding was made directly implicating Arnold in wrongdoing."

Specific mention should also be made of Arnold's involvement in the illegal harassment and intimidation of Richard Parks.

Arnold presided over the meeting at which the decision was made '

to suspend Parks the day after he filed his whistleblower complaint (later found to be true). The Department of Labor found the suspension to be illegally related to his making his safety concern public. Id. a t 10-5.

The NRC staff further found that Parks was harassed by -

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Bechtel "with the knowledae of GPUN." 1d. at 10-17. This responsibility was both derivative and " direct." Id. at 10-19, 13-6. Once again, however, precisely as in the case of the false

. - - g-NOV response, GPU was exonerated based on Arnold's voluntary removal and, for the same reason, no conclusions were reached regarding Arnold's personal integrity. Id. at 13-6.

With regard to the totality of the issues reviewed by the staff, four received special attention as " relevant and material" to the staff's findings on management integrity:

1. TMI-2 leak rate falsification;

2. pre-accident training deficiency and post-accident cheating;

3. false certification of Floyd;

4. false NOV response; M. at 13 13-2.

Arnold bears some degree of responsibility for all.

As to leak rate falsification, the staff found that:

TMI management was responsible for the operational environment that was permissive of poor performance and had loose standards that led to conditions that motivated some operators to falsify leak rate tests...

The staff findings that falsification of TMI-2 leak rate tests occured and that negligence on the part of management created in part, the circumstances that resulted in leak rate falsification, raise questions concerning Met-Ed character or management integrity.

Id. at 5-7.

As the highest level of TMI management, Arnold is unquestionably included within the scope of those conclusions as well as the finding that " Met-Ed was responsible for improper leak rate testing as well as for the poor attitudes of operations and first-line supervisors toward this test." 16. a t 13 13-3.

a Similar conclusions were reached concerning cheating and training deficiencies. The staff declared itself concerned that these deficiencies and failures indicate a poor attitude and disregard on the part of management at that time for their responsibilities and that this same management held responsible portions vis-a-vis TMI-l operations in the postaccident period... Management is clearly responsible for establishing programs and exemplifying, through leadership, a positive attitude which wil'1 in turn, create a good attitude on the part of operators toward their responsibilities. The staff concludes that Med-Ed, as a result of negligence, failed to fulfill their responsibility. Id. at 13-3, emphasis added.

Once again, as the most senior member of " management" of the THI,. Arnold bears responsibility for this failure.

With regard to the false certification of Floyd, Arnold was informed by letter in August, 1979 that Floyd had submitted an exam written partially by another operator. The writer, Gary Miller, recommended that Floyd be suspended. This was 5 days after the false certification was made to NRC. Arnold did not suspend Floyd, never corrected the certification, nor did he reveal the matter to NRC until 2 years later, during NRC's investigation of other instances of cheating. Id. at 13-4. The staff concluded:

... licensee management covered up Floyd's cheating and made a subsequent false certification to the NRC and that these acts demonstrated a deliberate disregard of management responsibilities. Id.

The fourth issue, the NOV response, has been discussed in detail above.

After laying out this evidence of repeated wrongdoing, the staf f concluded that it indicated a pattern of poor attitude toward training responsibilities and leak rate testing requirements, a failure to admit violations o f NRC requirements and a f ailure to promptly report cheating and its subsequent coverup. Id. at 13-5, emphasis added.

This was the evidence that, had the staff known of it, woud "likely" have caused it to find that GPU did not meet the legal standard of reasonable assurance of safety. Id.

However, the staff was nonetheless able to conclude that safety could be assured because those responsible had been removed:

Finally, and most importantly, the staff finds that the individuals currently responsible for the leadership of GPUN were not implicated in wrongdoing. Id . - at 13-10 In other words, the issue was " mooted," in the language used by the Court. TMIA, NRC, supra, 771 F.2d at 727.

CONCLUSION The Commission's finding, a prerequisite to restart, that GPUN possesses the honesty and integrity required of a nuclear licensee, was based explicitly on the exclusion of Robert Arnold and Edward Wallace f rom activities related to TMI-1. The Court's approval of restart was likewise founded on this basis. The Commission's proposal to permit their return, and its effectively giving intervenors the burden to prove why this should not be so, manifests a breathtaking institutional amnesia.

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UCS has previously used the analogy of a shell game to describe the public's fruitless search for a fair and open forum to hear the evidence on GPU's management integrity. This latest proposal brings the game to its conclusion: all the shells have been turned up and the pea is gone. While we have little realistic hope of affecting the course of this decision, UCS opposes it in the stongest possible fashion.

Repectfully submitted, 7 J y ld)~._ ' '

Ellyn R. Wdiss Harmon & Weiss 2001 S St., NW Washington, DC 20009 General Counsel Union of Concerned Scientists January 24, 1986

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

) 50-289 RA GPU NUCLEAR ) 50-289 EW

) (Special Proceeding)

(Three Mile Island Nuclear )

Station, Unit No. 1) )

)

CERTIFICATE OF S.ERVICE The undersigned certifies that the foregoing Union of Concerned Scientists Comments on CLI-85-19 was served upon the following parties by deposit in the United States mail, first class, January 24, 1986:

Allan Kanner, Esquire 1616 Walnut Street 22nd Floor Philadelphia, PA 19103 Docketing and Service Section (3)

Office of Executive Legal Director U.S. Nuclear Regulatory Commission ,

Washington, D.C. 20555 Jack R. Goldberg, Esquire Of fice of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

Thomas Y. Au, Esquire Of fice of Chief Counsel Department of Environmental Resources 505 Executive House P.O. Box 2357 Harrisburg, PA 17120 Michael F. McBride, Esquire LeBoeuf, Lamb, Leiby & MacRae

, 1333 New Hampshire Avenue, N.W.

Washington, D.C. 20036 >

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t SERVICE LIST PAGE 2 Michael W. Maupin, Esquire Hunton & Williams 707 East Main Street P.O. Box 1535 Richmond, Va 23212 Mr. & Mrs. Norman Aamodt 200 North Church Street Parkesburg, PA 19365 Mrs. Louise Bradford TMI ALERT 1011 Green Street Harrisburg, PA 17102 Joanne Doroshow, Esquire .

The Christic Institute 1324 North Capitol Street Washington, D.C. 20002 Ernest L. Blake, J r.

Shaw, Pittman, Potts & Trowbridge 1800 M Street, N.W.

Washington, D. C . 20036 Nunzio J. Palladino, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Thomas M. Ro be r ts , Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ,

James K. Asselstine, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Frederick Bernthal, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lando W. Zec, Jr. , Commissioner '

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 7

M. I. Lewis #

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,. i 6504 Bradford Terr.

Philadelphia, PA 19149 Ellyn MJJeiss

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