6 itself which wasn't justified, without saying, 'We ain't that good yet." " 2. Even the utility readily acknowledged the importance of premature criticality - that would be overlooked. The utility changed logs, made telephone calls after midnight and on holidays, and conducted reviews and rereviews, all on the premature criticality. The Assistant Plant Manager told his staff that the reactor had gone critical and "we really look bad on this one." 3. The NRC was not told of the premature criticality until the day the utility had the license in hand. It is hard to believe that this was mere coincidence. The ELD Memorandum tries to transfer the blame for the utility's action to the NRC employees. The memorandum states that NRC's Resident Inspector was given enough information so that he should have investigated the matter further. From this it is concluded that since the NRC's Resident Inspector was informed of some material information, it removed the legal 7 obligation of the utility to be open and honest with the NRC regarding other information. There are a number of problems with this approach: 1. It is my understanding that there is no legal basis, nothing in the statute or the regulations, for changing the burden of responsibility of full and complete disclosure from the utility to the NRC. The legal theory would apparently be that once you tell the NRC something of importance, it is the NRC's obligation to find out the rest for itself. 2. The NRC's own Office of General Counsel disagreed with 3. Even if there were a legal basis for transferring the blame, it is not supported by the facts: the utility did not fulfill its commitment to inform NRC's Resident Inspector of the utility's "criticality" determination, nor did it inform the NRC of the information in its possession, despite the numerous opportunities I identified earlier. Finally, ELD alleges that there is little testimony to suggest that the existence of the premature criticality was material. This statement bears little relationship to the facts: 1. 8 The subsequent statements of NRC officials all indicate that the premature criticality would have had a significant influence on them in issuing the license. Mr. Darrell G. Eisenhut who signed the license for the NRC stated that had he known about the unexpected criticality and reactor operator error, he would not have signed the license. The two top NRC regional officials stated that they would have recommended that the Commission put off the Fermi hearing had they known of the premature criticality. The utility gave too much effort and attention to the issue of criticality to say that premature spontaneous combustion - criticality - was not material. The ELD memorandum is written as an advocate rather than as an objective observer. It reflects an attitude by NRC staff to support the utilities. With its report on Fermi, OI gave the staff the opportunity to take meaningful enforcement action. staff chose to support the cat and mouse game played by the utility. The 9 If staff's intention was to undermine an enforcement action against the utility in order to get Fermi up and running, it was successful. With the ELD opinion in circulation, it made it difficult, if not impossible, for the NRC to take any enforcement action based on the withholding of information regarding the premature criticality. |