ML20204G521
| ML20204G521 | |
| Person / Time | |
|---|---|
| Site: | Three Mile Island  |
| Issue date: | 06/29/1983 |
| From: | Manning W NRC COMMISSION (OCM) |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| Shared Package | |
| ML20204G507 | List: |
| References | |
| NUDOCS 8307290269 | |
| Download: ML20204G521 (1) | |
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<f 39 7tCoq tz, UNITED STATES dO NUCLEAR REGULATORY COMMISSION y *, y, g WASHIN GTON, D.C. 20555
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MEMORANDUM FOR SAMUEL J. CHILK, SECRETARY William J. Manning, Legal Assistant N
FROM:
to Commissioner Gilinsky Please serve the attached memorandum from Commissioner Gilinsky to the Executive Director for Operations, dated June 29, 1983, on the parties to the Three Mile Island Unit 1 proceeding. .
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....- JUL 19 E83 l MEMORANDUM FOR: Comissioner Gilinsky FROM: William J. Dircks Executive Director for Operations
SUBJECT:
HARTMAN ALLEGATIONS In a memorandum dated June 29, 1983 you asked the following question:
Since senior NRC staff members apparently believed by March or April of 1980, that leak rate test results had likely been falsified prior to the March 28, 1979 accident at TMI-2, and that this was a potentially serious matter, why was this belief not comunicated to the Licensing Board or the Comission?
Maybe I am missing something. I would have thought that our recent exchange of memos on this subject made it clear that the agency would not have referred the matter to Justice if it had not considered the matter serious. I also would have thought that the extent of Commission
, involvement in this matter would h' ave indicated that the Comissioners shared this sense of the seriousness of the matter. But maybe the history should be reviewed again.
The fact that the Hartman allegations concerning falsification of leak rate data had been referred to the Department of Justice (D0J) was not withheld from the public or the Comissioners. In April of 1980, contemporaneous 1y with the referral, the Comission publicly announced that the allegations had been brought to the attention of the D0J.1/
Moreover, as set forth in the enclosures to my memorandum to you oT June 10, 1983, the Comission (including yourself) was aware, no later than May 28, 1980,2/ that the Hartman allegations had been referred to 00J and that D0J had convened a grand jury to investigate the allegations. It is reasonable and logical to infer, from the fact that the Comission referred the matter to D0J for possible criminal prosecution, that senior NRC staff aware of the Hartman allegations believed that " leak rate results had likely been falsified" and that this was "a potentially
-1/
See NRC press release No. 80-78, April 17, 1980, a copy of which is attached.
2/ See the Comission's Memorandum and Order of May 28, 1980 (unpublished) in Metropolitan Edison Company (Three Mile Nuclear .
Station, Unit No. 2), at 5-6. Presumably, the Comission already had been informed of the D0J referral at or before the time that referral was made in April 1980.
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Commissioner Gilinsky ,2 -
serious matter." Indeed, had the staff members believed that it was unlikely that leak rate data had been falsified, they would not have referred the matter to D0J.
In addition, the existence of the Hartman allegations concerning falsification of leak rate data and the fact that those allegations had been referred to DOJ for possible criminal prosecution specifically were discussed in Supplement 1 of NUREG 0680, issued November 1980, and Supplement 2 of NUREG.0680, issued March 1981. Both these documents were made part of the record in the TMI.1 Restart Proceeding, and were widely distributed throughout the agency.
(Signe:DWilliam J.DircM William J. Dircks Executive Director for Operations
Enclosure:
As stated c: Chairman Palladino Commissioner Roberts Commissioner Asselstine SECY PE GC TMI.1 service list Distribution:
Central File WJDircks JRoe TRehm HDenton RDeYoung GCunningham EChristenbury JGray MWagner EDO 13289 EDO R/F VStello
+ SEE ATTACHED PAGE FOR CONCURRENCE ,
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t UNITED STATES ;
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Washington, d.C. 20555 !
FOR IMMEDIATE RELEASE No. 80-78 (Mailed - April 17, 1980)
Contact:
Frank Ingram Tel. 301/492-7715 NRC STAFF CONTINUES THREE MILE ISLAND INQUIRIES the Nuclear Regulatory Commission's Victor Stello, confirmed today that Director of Inspection and Enforcement,his office has been actively p made by Harold Hartman, a former Three Mile Island control room operator.
The allegations relate to calculations of primary coolant leak rate measurements thatMr. were made during Hartman's the year prior'to the TMI Unit 2 accident.
allegations have been Mr.brought.to the attention Stello also of theinquiry said that'the Justice Department by the NRC. 1979 enforcement '
into the issues raised inMr.theStello October,noted action that, regarding in view of reporting of c accident is continuing. it would be inappropriate n the ongoing nature of thesethis inquiries, time.
to discuss them further at
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JUN 2 9 $83 MEMORANDUM FOR: Chairman Palladino Commissioner Gilinsky Comissioner Ahearne Comissioner Roberts Comissioner Asselstine FROM: William J. Dircks, Executive Director for Operations
SUBJECT:
REPORTABILITY OF GPU INVESTIGATION REPORT AND DEPOSITIONS RE HARTMAN ALLEGATIONS This is in response to the Comission's request of April 8,1983, to determine whether the 1980 Faegre and Benson Report (Report) concerning the Hartman allegations and the 1982 depositions of Mr. Hartman should have been submitted in a more timely fashion to the Comission. ,
Backaround Harold W. Hartman, Jr. was a control room operator at TMI Unit 2 t.ntil the March 28, 1979 accident. In an interview conducted on May 22, 1979 by the Office of Inspection and Enforcement (IE), Mr. Hartman made allegations including that leak rate tests used to show compliance with TMI-2 Technical Specifications were manipulated in late 1978 and up until-the accident with i the knowledge of at least some supervisory personnel to avoid plant shutdown.
These allegations were further discussed in the Rogovin Special Inquiry deposition of Hartman dated October 29, 1979 and in a WOR-TV (Channel 9) interview of Hartman on March 24, 1980. The NRC initiated an investigation into this matter in March of 1980, discussed the limited results of that investigation with the Department of Justice (D0J) and in April of 1980 halted its investigation at D0J's request. Since that time, D0J has been invastigating the matter via a Federal grand jury proceeding in Harrisburg, Pennsylvania.
At a Parch 21, 1983 meeting between Mr. R. Arnold of GPU and trembers of the NRC team reviewing the B&W-GPU trial court record, Mr. Arnold referred to a GPU investigation into the Hartman allegations and noted that GPU was considering giving that investigation report to D0J. If The Report was subsequently forwarded by GPU to D0J and through D0J to the NRC with the l recuest from D0J that NRC maintain.the Report in confidence. In early April {
of 1983, the NRC received a copy of the Report directly from GPU with no 1
-1/ The report is entitled "Results of Faegre & Benson Investigation of l Allegations by Harold W. Hartman, Jr., Concerning Three Mile Island Unit 2," dated September 17, 1980, hereinafter "the Report."
CONTACT: James Lieberman, OELD a l 492-7496 .- r s
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The Comissioners limits placed upon its use. The Report was discussed at the Comission meeting of March 30, 1983 and the Staff was requested to examine whether or not any reporting requirements were violated by the submittal by GPU of its Repcrt in 1983, nearly three years after the Report had been finalized.
The Staff was also requested to determine whether the depositions of Hartman taken in the B&W-GPU lawsuit on July 16 and August 18, 1982 should have been submitted to the NRC. The depositions ware received by the Staff on March 21, 1983 following a specific request to GPU.
The Nature of the Report and Depositions The Report sets forth the results of an investigation into the allegations made by Hartman based primarily upon plant records and technical data.
The Report limits its inquiry as follows:
The reader should understand clearly the limitations of this Report. We have not had access to those Metropolitan Edison employees with first-hand knowledge of the substance of Hartman's allegations. Virtually all TMI Unit 2 control room operators, foremen and supervisory personnel accepted the company's offer of legal counsel. In light of the pending federal grand jury proceeding, their counsel understandably declined t-to allow us to interview those employees during this investigation. They may be able to answer questions which this Report necessarily leaves unresolved.
Because of our inability to interview key employees, this investigation has been based primarily upon our review and analysis of plant records and other technical data. We also have relied upon limited interviewing of other plant employees. We have not been able to pursue every possible line of inquiry or lead. We have tried to indicate throughout the Report those areas which we have not pursued and those questions which remain open. (Report, Vol. 1, pp. 12-13.)
The Report is primarily an investigation and analysis of plant records and other technical data related to ways the leak rate data could have been manipulated. While the Hartman allegations are analyzed technically, and a further extensive voluntary statement from Hartman was taken to aid the 1 investigation, 2/ the Report does not evaluate the role or knowledge of any other individuaTs in the acts alleged.
-2/ Voluntary Statements of Harold W. Hartman dated April 27 and 29,1980.
These statements were in addition to the May 22, 1979 interview of Hartman conducted by I&E, the October 29, 1979 deposition of Hartman taken by the Regovin Special Inquiry,- and the transcript of the March 24, 1980 WOR-TV interview, all of which were available to the authors of the Report.
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The Commissioners Indeed, the Report concludes:
Apart from Hartman's own statements, we have no basis for evaluating his allegation that control room oper-
.ators, foremen and supervisors were subject to undue pressure to obtain " good" leak rate test results. The answer to that charge rests with control room personnel whom we did not interview for various reasons stated earlier. (Report, Vol. 1, p. 36.)
The Report does not resolve the question of management integrity. 3/
And while the Report does contain extensive technical analyses, the Staff had available to it the underlying data from which those analyses were made. The Staff did some analysis in developing the civil penalty assessed against Metropolitan Edison Company for violations of TMI-2 Technical Specifications associated with leak rates. See NUREG-0600. Further extensive analysis had been performed by the NRC Hartman investigation team in March-April 1980. The Hartman depositions explored a number of areas in addition to the Hartman allegations set out abcve. The Report and depositions do not add substantially to the information of which the NRC was aware at the time those documents were prepared.
Analysis of Reportability ,
The substance of the Hartman allegations were known to the NRC shortly after the TMI-2 accident, nearly 1-1/2 years prior to the completion of the Report.
No new allegations are raised in either the Report or the Hartman depositions.
The Report focuses primarily upon a technical analysis of the allegations.
The substance of the Hartman allegations remain virtually unchanged as a consequence of th3 Report. The Report does not resolve the Hartman al-legations.
With respect to reportability, three separate approaches which could call for reportability have been identified.
-3/ As part of the Staff's revalidation effort in this area, the Staff concluded:
Based on the inspection team review and resulting Report, the staff concludes that the issues raised by the Hartman allegations should not by themselves be a bar to restart.
However, because of all the open issues identified above which were not considered in the revalidation program and Report, the staff can draw no conclusion regarding management integrity at this time.
See Memorandum for the Commissioners from the ED0 dated May 19, 1983. !
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The Comissioners 1. Specific License Conditions or Comission Regulations The TMI-2 facility license and its associated Technical Specifications and the Comission's regulations impose specific notification requirements upon the licensee for certain categories of events. It may well be that the licensee did violate such reporting requirements if the incidents alleged by Hartman did in fact occur. However, the reporting violation would have been the failure to report the incidents which were the subject of the Report and the depositions at issue within the time allowed for reporting the incidents and not the failure to provide the Report and the depositions. The creation of the documents themselves do not appear to give rise to any new reporting obligation under the plant technical specifications or a specific Comission regulation.
- 2. Reporting Obligations Under Section 186 Section 186 of the Atomic Energy Act of 1954, as amended, imposes a reporting requirement in a sense as it authorizes revocation of a license for any material false statement in the application or any statement of fact required under Section 182. In its VEPC0 decision, the Comission held that an omission (i.e., a failure to submit information) could constitute a material false statement. 4/
, Materiality of an omission or statement depends on "the context in which infor-mation appears and the stage of the licensing process involved" and "whether information has a natural tendency or capability to influence a reasonable agency expert." VEPC0, 4 NRC at 491. Put another way, " materiality should be judged by whether a reasonable staff member should consider the information in question in doing his job." Id. at 486. If the Staff had
-4/ Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480 (1976), aff'd, 571 F.2d 1289 (4th Cir.1978). In VEPCO, the Commission held that some omissions were reachable under section 186. It reserved judgment as to whether all omissions could be reached:
Whether or not enforcement consequences for less obvious or central omissions should await clarifying regulations, silence regarding issues of major importance to licensing decisions is readily reached under the statutory phrase " material false state-ment"....By reading material false statements to encompass omissions of material data, we do not suggest that unless all information, however trivial, is forwarded to the agency, the applicant will be subject to civil penalties. An omission must be material to the licensing process to bring section 186 )
into play. 1 Id. at 489, 491.
The Commissioners .
not been aware of the Hartman allegations and had not possessed the information it had concerning the allegations, the information contained in the. Report and depositions would clearly have been of interest to the -
Staff and have had a natural tendency and capability to influence the Staff in formulating its positions in the restart matter. However, as indicated above, the Staff had substantial information concerning the Hartman al-legations. The Report and depositions do not expand the scope of the al-legations, resolve any of the allegations, or add substantially to the information of which the NRC was aware. The Staff was also aware in 1980 that GPU initiated an investigation of the Hartman allegations, but did not seek a copy of the investigation report.
We conclude that the material omitted here does not meet the threshhold standard of having the ability to influence the " reasonable agency expert."
Therefore, there is insufficient materiality to support a material false statement. 5/
- 3. Duty to Report to Licensing Boards Although the Staff possessed substantial information concerning the Hartman matter, the Licensing Board's knowledge was limited to the SER's. 6/ The issue remains whether the licensee violated its board notification obli-gations.7] ,
-5/ The present case where the Staff has the substance of the infor-mation at issue is unlike VEPC0 where neither the Staff nor the Licensing Board possessed the material. Nevertheless, an argument might be made that materiality should be judged on the basis of the material omitted in isolation of any other material the Staff might possess. This would prevent a licensee from benefiting when it failed to provide information it would otherwise be obligated to provide, on the basis that by chance the Staff already had the information. However, this latter circumstance does not appear to be the case here. The investigators preparing the Report had copies of the IE Hartman interview and the Rogovin deposition (Report at 1) and had notes of IE interviews prepared by licensee representatives (Report at 8-12). In addition Supplements 1 and 2 of NUREG-0680, the Staff's SER, briefly addressed the Hartman allegations. The licensee clearly had indications of the material the Staff possessed. However, the reasons for the licensee's actions are not clear.
6_/ On May 4, 1983, GPU provided the Report to the Appeal Board.
-7/ Board notifications are required even if the Staff has received the material. The Appeal Board has said that "[t]he obligation to provide information to adjudicatory bodies requires that information be submitted to them directly." Tennessee Valley Authority (Brown Ferr NuclearPlant, Units 1,2and3),ALAB-677,15NRC1387,1394(1982)y .
The Commissioners Parties to Comission proceedings have an " absolute obligation to alert adjudicatory bodies directly regarding...new information that is relevant and material to the matters being adjudicated...." 8/ Consequently, if the subject matter of the Report or the Hartman depositions were considered to be new information that is relevant and material to matters being adjudicated in the TMI-1 Restart Proceeding, the licensee may have violated its notification obligations to the Licensing Board presiding over that proceeding.
Supplement 1 to the Staff SER 9/ discussed the leak rate allegations in regard to issue 10. 10f WitholIt mentioning Hartman by name, the SER stated:
During interviews with the NRC, the SIG, and the media, allegations were made by a former TMI operator concerning the implementation of the RCS leakage procedure and improper data collection. The allegations raised concerns regarding the principles of compliance with operating procedures and management philosophy and actions.
Supplement 2 to the SER stated that the leak rate infonnation was included in the first supplement because the investigation of the matter could turn up information which is relevant to past management practices.11/ The Supplement further stated that the leak rate matter was only of Iiistorical significance in light of the licensee's clear management policies and based upon the Staff's current knowledge. H/ The Board made a brief reference 8_/ Id.
9/ NUREG-0680, TMI-1 Restart, 37 (Nov. 1980).
I 10_/ Issue 10 involved: l Whether the actions of Metropolitan Edison's corporate or plant management (or any part or individual member thereof) in connection i with the accident at Unit 2 reveal deficiencies in the corporate or plant management that must be corrected before Unit 1 can be operated safely.
CLI-80-5, 11 NRC 408, 409 (1980).
11/ NUREG-0680, Supplement 2, at 9 (March 1981).
-12/ Id. at 10. The Staff has stated to the Comission in the "NRC Staff's Miments on the Analysis of GPU v. B&W Transcript" (April 18,1983),
that the wording of this conclusion in Supplement 2 "should have been more precisely stated to be that the actions taken by the Licensee in light of the Hartman allegations were adequate to address the concerns identified."
The Commissioners .
to this subject in its August 1981 decision.13/ Given the reference to the leak rate matter in the Staff's SERs and the caveat in the Licensing Board's August 1981 decision, the Hartman allegations are relevant to the management issue.
A number of factors might militate against making a board notification. As indicated above, the Staff discussed the leak rate allegations in Supplements 1 and 2 of the SER (NUREG-0680). In Supplement 2, at 9-10, the Staff concluded that there appeared to be no direct connection between the leak rate matter and the Unit 2 accident. None of the parties challenged the Staff's con-clusion. The essential thrust of the Hartman allegations, i.e., the possible falsification of leak rate data, was known by the Board and the parties.
They were also aware that the allegations had been referred to D0J and DCJ had requested the NRC to suspend its investigative effort of the allegations pending conclusion of the D0J investigation. Another consideration is the evolving nature of the management integrity issue with the attendant uncertainty as to when the issue encompassed the Hartman allegations.
Nonetheless, any uncertainty regarding board notification should have been resolved in favor of notification.14/ Thus, we conclude that the licensee should have made a board notification. The Staff recognizes that in reaching
---13/ fietropolitan Edison Company (Three Mile Island Nuclear Station, Unit 1), LBP-81-32,14 NRC 381, 557-58 (1981). Specifically, the Board quoted from NUREG-0680, Supplement 2, and concluded:
Due to our limited information and given the posture of an ongoing D0J investigation, we have no basis to conclude that restart should not be permitted until the D0J investigation is complete.
Id. at 557. The Licensing Board further concluded that "[s]ubject 1Ri this [ leak rate] matter," and except as identified in the detailed findings, there were not deficiencies in GPU management arising from the Board's inquiry into GPU's response to the Unit 2 accident which have not been corrected and which must be corrected before there is reasonable assurance that Unit 1 can be operated safely.
--'14/ The Appeal Board has stated that "[a]ny uncertainty regarding the relevancy and materiality of new information should be decided by the presiding board." Duke Power Co. (McGuire Nuclear Station, Units 1 and 2), ALAB-143, 6 AEC 623, 625 n.15 (1973).
The Commissioners this conclusion it might also be subject to criticism for not providing additional information on the Hartman matter. The Staff did not do so in order to avoid any possible interference with the D0J investigation. In this connection it should be recognized that there is an inherent conflict between the board notification obligation and the protection of information developed during an ongoing investigation. M /
(SipesWilliam 1.Dircks ililliam J. Dircks Executive Director for Operations cc: SECY OGC Distribution OPE WDircks, ED0 EDO Rdg VStello, ED0 RDeYoung, IE Region I HDenton, NRR OI GCunningham, ELD EChristenbury, OELD JLieberman, OELD R0ED Rdg R0ED Sub Central File ELD Rdg 15/ Another example of this inherent conflict fcilows. The Comission has
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before it the results of an investigation of the VV and Miller cheating incident together with the views of the Staff on the appropriateness of l any enforcement action. Given these circumstances, these documents have not been provided to the Appeal Board which is reviewing the cheat-ing issue.
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