ML20138M931

Order & Notice Instituting Separate Hearing Apart from TMI-1 Restart Proceeding to Develop Facts Re RCS Leak Rate Data Falsifications Prior to 790328 Accident.Dissenting Views of Asselstine & Bernthal Encl.Served on 851218

ML20138M931
Person / Time
Site:	Three Mile Island
Issue date:	12/18/1985
From:	Chilk S NRC OFFICE OF THE SECRETARY (SECY)
To:
References
CON-#485-545, RULE-PR-MISC CLI-85-18, LRP, ORDER-851218, NUDOCS 8512230226
Download: ML20138M931 (13)

Text

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NUCLEAR REGULATORY COMMISSION COMMISSI'0NERS:

'85 DEC 18 P1 :18 Nunzio J. Palladino, Chairman Thomas M. Roberts James K. Asselstine YdC dih3 4 54 Frederick M. Bernthal BRMCH Lando W. Zech, Jr.

SERVED DEC101985

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In the Matter of )

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INQUIRY INTO THREE MILE ISLAND ) Docket No. LRP UNIT 2 LEAK RATE DATA )

FALSIFICATION )

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ORDER AND NOTICE OF HEARING CLI 18 In an Order issued February 25, 1985, CLI-85-2, 21 NRC 282, the Consnission stated that it would institute a separate hearing apart from the Three Mile Island, Unit I restart proceeding to develop the facts surrounding the reactor coolant system ("RCS") leak rate data falsifications at Three Mile Island, Unit 2 (TMI-2) prior to the March 28, 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 Commission herein specifies the procedures to govern the separate hearing, which will be a legislative format hearing designed solely to gather information. This order also identifies the steps to be taken, after the Presiding Board issues a recommended decision setting forth the facts, in order for the Commission determine what action, if any, will be taken.

8512230226 851218 PDR PR g MISC PDR

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2 A. Background Harold Hartman, a control room operator at TMI-2 prior to the acci-dent, alleged that RCS leak rate surveillance tests, which were used to assess whether primary system leakage surpassed limits contained in the facility's technical specifications, were at times purposely manipulated and records of unacceptable results were discarded at TMI-2 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 for uniden-tified leakage. Hartman alleged that the computer program for calculating leak rates was unreliable, frequently yielding unrealistic results. This made it more difficult to get " good" leak rates. Hartman further alleged that the operators at TMI-2 sometimes manipulated the RCS leak rate test results by inputting wrong data into the computer, adding hydrogen gas to the make-up tank during leak rate tests, adding water to the make-up tank during a leak rate test and not inputting the addition into a computer, and leaking water into the make-up tank while performing water transfer op-erations involving other tanks. Hartman specifically alleged that shift supervision was aware of such improper conduct. After a preliminary investigation into Hartman's allegations, the NRC in April of 1980 referred the matter to the Department of Justice for criminal investigation.

After a Grand Jury investigation and indictment of Metropolitan Edison Company, the TMI-2 licensee at the time of the accident, the Department of Justice began prosecution of the criminal charges against Metropolitan Edison Company.

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l On February 29,.1984, Metropolitan Edison Company entered into a plea agreement with ti- 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, includingthosewhichchargedtheComhanywithimpropermanipulationof 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 stated the evidence developed in the Grand Jury i

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 Ediscn

" 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 Comission 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, William L.

Gifford, Robert L. Long, Frank Manganaro, Ernest M. Schleicher, Floyd J.

Snjth, William A..Verrochi, Raymond Werts, and Richard F. Wilson.

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4 the record of the Grand Jury proceeding. The Court denied the request.

United States v. Metropolitan Edison Company, 594 F.Supp. 117 (M.D. Pa)

(1984).

The Commission also asked its Office of Investigations ("0I") to examine whether Michael Ross, Manager of Operations at TMI-1, had partic-ipated in, directed or condoned leak rate falsifications at TMI-2. Prior to the accident Ross was licensed at both TMI-1 and THI-2. 01 interviewed Ross and many others under oath regarding Ross' involvement at Unit-2, reviewed pertinent records and concluded that Ross' role at TMI-2 was minimal, that during the period falsifications took place he was present at TMI-2 only the minimum time necessary to maintain his TMI-2 license, and that he was not involved in the falsifications.

B. Purpose and Scope of Hearing

1. The purpose of this hearing is to develop the facts surrounding the leak rate falsifications that occurred at TMI-2 from February 2, 1978 (the date TMI-2 received its operating license) until March 28, 1979, in sufficient detail to determine the involvement of any individual who may now work, or in the future work, at a nuclear facility licensed by the Com.15sion.

2. The specific issues which the Presiding Board is to address are limited to the following:

(a) How were the Technical Specification 3.4.6.2 requirements for reactor coolant system unidentified leakage interpreted and implemented

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 ths Technical Specification 3.4.6.2 by the personnel performing 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 l 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 results? Who performed, condoned, directed or was knowledgeable of data manipulation or other improper actions during leak rate surveillance testing? This would include, out is not limited to the following:

(1) inputting the wrong data into the plant computer;

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(ii) adding hydrogen gas to the make-up tank during the test

- in an attempt to influence make-up tank level indication; (iii) adding water to the make-up tank during the test and either not including the addition in the computer calculation or underre-I cording.the addition in the computer; (iv) taking advantage of differences or inaccuracies in plant . instrumentation (e.g., make-up tank level indicators) in an attempt 4

' to influence parameters critical to the leak rate surveillance test calcu-I lation;-

(v) taking or failing to take any action in viola' tion of technical. specification requirements?

(e) The Commission has accepted the findings of the U.S. Attor-ney that the 24 individuals mentioned in footnote 1, supra, were not' involved in the leak rate falsifications. It has also accepted the OI finding that Michael Ross similarly was.not involved. Accordingly, the Commission has decided that these individuals are outside of the scope of

- the hearing.2' Therefore, the Presiding Board shall not address any issue regarding any alleged knowledge or involvement of these individuals in the 2

If the Presiding Board believes that any of these individuals have pertinent information to provide on issues falling within the scope of the hearing, it may call them as witnesses at mutually convenient times or, if necessary, issue a subpoena requiring their attendance and testimony. The Board is not to make unreasonable demands on the time of these individuals or upon other persons playing key roles in the operation of any nuclear facility.

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7 falsifications that occurred at the THI-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 TMI-2.

2. Any person who 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.

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3. The hearing will be held in the Washington, D.C. area, although -

the Presiding Board may hold-portions of the hearing in other places

- consistent with the convenience of the parties or their representatives and j the public interest.

4. The NRC staff will not participate as a party. Instead, it will -l make available to the parties and to the Presiding Board, relevant documen-tary material within its possession as soon as practicable after issuance of this Order and Notice of Hearing. Disclosure of material is to be consistent with the Commission's Statement of Policy, " Investigations, Inspections, and Adjudicatory Proceedings," 49 Fed. Reg. 36032 (Septem-ber 13, 1984). The NRC staff will also provide whatever testimony or other -

assistance the Presiding Board requests to ensure that the hearing record is fully developed. All orde'rs, petitions, submissions to the Presiding Board and other pertinent material shall be served on the NRC staff.

5. . This hearing will not be conducted under 10 C.F.R. Part 2,

-Subpart G, except that, in addition to the powers granted by this Order and l Notice of Hearing, the Presiding Board shall have the powers specified in 10C.F.R.662.718(a),(e),(f),(h),(1),(j)and(k). The hearing will be conducted using 'a legislative hearing format, as specified'below.

(a) Only relevant, material, and reliable oral and documentary 1

evidence which is not repetitious should be admitted into evidence. Only the Presiding Board will be able to call witnesses or to question them.

Witnesses will testify under_ oath.

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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 recommendations regarding whether additional individuals should be called to testify.

(d) Before each witness testifies, the Presiding Board will 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 completed, the Presiding Board is to invite the parties to file proposed findings of fact and conclusions of law.

(f) The Presiding Board is to issue a recommended decision which sets forth its findings on who participated in, had knowledge of and condoned, or by their dereliction or culpable neglect allowed the leak rate 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 Presiding Board is not to make recommendations regarding whether any actions should be taken.

10 (g) The Presiding Board's recomended decision will not be subject to review by an Atomic Safety and Licensing Appeal Board.

(h) The Presiding Board is not to deviate from the procedures set forth above without prior authorization from the Commission. If the Presiding Board should determine that these procedures will not lead to the development of an adequate hearing record, and that other procedures, such as discovery or cross-examination, are necessary for the development of an adequate hearing record, the Presiding Board is to request authorization from the Comission to use more formal procedures. The Presiding Board in its request to the Comission is to specify in detail those issues which cannot be fully developed under the procedures in the Order and Notice of Hearing, what procedures it desires to use, and how use of those additional procedures will result in the development of the needed information.

On the basis of the Presiding Board's recomended decision and taking into account any other information which it believes is appropriate for Comission consideration, the NRC staff shall make recomendations to the Comission regarding what action, if any, should be taken. The NRC staff is to provide its recomendations to the Comission within sixty days after issuance of the Presiding Board's decision. Those recomendations are to include whether the Comission should remove the condition imposed in the TMI-1 restart proceeding barring certain individuals from certain positions at TMI-1.

After reviewing the Board's recomended decision and the NRC staff's recomendations, the Comission will decide what further steps, if any, need to be taken with regard to involved individuals. This will include

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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 Commis-sion institutes a formal enforcement proceeding3 or takes any licensing action, the facts found by the Presiding Board and Commission in the hearing ordered here will not be binding in the su'asequent enforcement or licensing proceeding.

It is so ORDERED.

Commissioners Asselstine and Bernthal disapproved this Order and provided separate views.

4 For the Commission t

ht k~ SAMUEL UNHILK Secretary of the Commission 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. % 2462 may bar the NRC from subsequently instituting an enforcement proceeding for involvement in the events that are the subject of this hearing. However, the information developed in the hearing may be used for other purposes, for example, in evaluating whether an individual's operator license should be renewed.

4 Commissioner 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.

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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 should 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.

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SEPkRATEVIEWSOFCOMMISSIONERBERNTHAL I dissented from the path the majority chose in respect to the n' umber 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.

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