As a starting point in the analysis, the evidence in the exhibits was summarized. The summary which is attached was prepared because in my view the report did not necessarily reflect the evidence in the exhibits. I purposely did not attempt to agree or disagree with each statement in the OI Report. The summary and the exhibits, rather than the Ol Report served as the basis for the analysis. Before beginning the analysis of the exhibits it should be noted that a failure to provide the Commission information concerning the rod pull error or its criticality determination is not a violation of any specific reporting requirement found in the Commission's regulations or the license for Fermi 2. Thus, the basic question at issue is whether the licensee's failure to provide information to the NRC and to correct Mr. Davis at the July 10 Commission meeting is a violation of the full disclosure requirement established in the Commission's Vepco decision. Virginia Electric and Power Co., (North Anna Power Station, Units 1 and 2), CLI-76-22, 4 NRC 480 (1976). The Vepco decision addressed an applicant's obligation to provide information to the Commission in the absence of a specific reporting requirement. The Commission in that decision recognized that no set of specific regulations can be expected to cover all possible circumstances. Vepco, at 489. The Commission stated, "If the information is material to the licensing decision, it must be passed on to the Commission." Id. Omissions as well as affirmative statements are reachable. Id. "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 under the statutory phrase "material false statement" Id. (emphasis added). An omission must be material. "Determination of materiality requires careful, common sense judgement of the context in which information appears and the stage of the licensing process involved." Vepco, at 491. "Materiality depends upon whether information has a natural tendency or capability to influence a reasonable agency expert." Id. The proper standard for judging the materiality of a technical issue is the impact on the technical expert. "A statement that seems immaterial to a layman may be of considerable safety significance to an expert and the converse may also be true." Vepco at 487. The Commission has also stated "There is no obvious boundary between material information and trivia a careful attention to context along with a healthy dose of common sense will resolve most problems." Id. MAR 19 1986 3 III. Concealment in the Control Room The first issue considered was whether there was an attempt by Aniol, the Shift Supervisor, to conceal the control rod incident. The factual basis of the analysis of this issue is found in section I of the enclosed summary. The event was not recorded in the control room operator's log. The operator responsible for logging the matter in the operator's log was not aware of the incident until the next shift. Aniol did not make an entry in the shift supervisor's log. The managers interviewed stated they would have logged the event. After Aniol noted that the reactor engineer's log indicated the facility had gone critical, he stated the log was in error. Later he expressed a concern to Preston, the Operations Supervisor, regarding the initial entry made by the reactor engineer in his log. Aniol did not tell Preston on the night of the incident that there was a controversy over criticality as reflected in the reactor engineer's log. Thus, an argument could be made that Aniol attempted to conceal the incident. The failure to log the incident was not the first logging error at Fermi. There appears to be a history of logging problems in the control room. Aniol had been criticized for the adequacy of his logs. He may have been afraid to log. As stated above, the person responsible for keeping the control room log stated that he was unaware of the event. While the event was not recorded on either of the control room logs, the event was recorded on three quality records. These are the rod pull sheet, reactor engineer's log, and the Deviation Evaluation Report. The Kline, the Reactor Operator recorded the event on the rod pull sheet. rod pull sheet, though not an exhibit to the Ol report, has been reviewed by the staff and clearly muïcates that an error had been made. I understand from Region III that the rod pull sheets are a quality record that must be saved for a prescribed period. A DER was prepared which is a document that is given widespread distribution within the company. There is testimony by three individuals that even in the absence of Preston's direction a DER would have been completed. Once the DER was issued there was no evidence to suggest that it would not be appropriately processed. The reactor engineer's log described the event. Although it was changed, the original information was not destroyed. It was clearly readable. The weight of the evidence indicates that the reactor engineer's log was changed to be consistent with the information from the Shift Technical Advisor in Training, and not just because of the influence of Aniol. However, there is one statement that suggests it was done solely because of Aniol. I understand from Region III that the reactor engineer's log is a quality record that must be retained for a prescribed period. · Aniol did raise a concern to Preston about the accuracy of the reactor engineer's log. This point was not fully developed in the testimony; however, the disclosure to Preston of this concern raised the criticality issue rather than concealed it. After weighing the absence of the operator logs in the control room and the other actions which could suggest a cover-up against the existence of the reactor engineer's log, the pull sheet, and the DER, knowledge of the incident by at least the reactor operator, Shift Technical Advisor in Training; Assistant Shift Supervisor, and the reactor engineer without any indication whatsoever that they were silenced or efforts made directly or indirectly to silence them I conclude that the preponderance of the evidence is against an attempt to cover up the incident in the control room. Withholding Information Concerning Potential Criticality The second issue is whether information concerning the rod pull error was withheld on July 3, 1985. The argument would be that the licensee should have told a senior person in the agency that a criticality incident had likely occurred. The factual basis for the analysis of this issue is described in section II A through D and section III of the enclosed summary. The evaluation of the DER appeared to be professional. Different views were expressed. Thorpe, a reactor engineer, may have started off by losing his credibility after analyzing the wrong portion of the chart. The two persons who believed that the reactor went critical recognized that the comparison of the rod pulls with the Source Range Monitor charts was needed to be done to be sure of criticality. Thorpe in hindsight said the others were right. He understood their position. He had not done his "homework." Lessor, the nuclear consultant, said that it was not misleading_to tell the resident that the position was that the plant was not critical, that reactor engineering thought it may have been critical, and that they were still evaluating the matter. Moreover, it seems inconsistent with a cover-up to assign the evaluation to the engineer who questioned the majority view. There was no indication that the evaluation process was designed to do other than properly resolve the matter of criticality. At the meeting Lessor stated that the NRC must be told about the incident. The record is silent as to whether there was any argument during the meeting over informing the NRC or whether NRC would not have been informed of the matter in the absence of Lessor's statement. There was a discussion as to what the NRC should be told. After the meeting, Parker, the NRC junior resident, was called and a meeting with him was immediately arranged. 1/ 1/ An inference could be drawn that Overbeck, Assistant Plant Superintendent, waited until Byron, the senior resident, left the site on July 3rd before providing the information to Parker, the junior resident. However, evidence was not developed to support this inference. Parker received substantial information in his meeting of July 3rd with Preston and Overbeck. Specifically, Parker was informed that (1) there was a significant rod pull error (11 rods in group 3 were withdrawn to position 48 rather than position 4), (2) the company's preliminary view was that the plant did not go critical but its reactor engineering group thought that it had based on computer models, (3) the company was continuing to review whether the plant went critical and as stated in the Deviation Event Report provided to Parker that the review was expected to be completed by July 9, 1986 (the Commission Meeting was on July 10th), (4) the resident was invited to contact the plant staff if there were any questions and knew that there was going to be a meeting on July 5th regarding the rod pull matter, and (5) the licensee recognized that the matter could be sensitive to licensing. There did not appear to be any attempt to downplay the incident or its potential impact. He was not told everything, such as the reactor engineer's log was corrected or Lessor's view, but he was told who he could contact for further information and was invited to do so. In fact, he was told about the July 5th meeting and no attempt was made to discourage his attendance. While the licensee could have told the resident that the plant went critical on the basis of Lessor's and Thorpe's views, and Lenart's (Assistant Manager) "gut feeling." What was said was not misleading according to Lessor, the person who suggested that the NRC be informed of the matter. Parker thought the matter significant enough to raise it with the senior resident and his section chief. Parker made an inquiry to the reactor engineering group on the day he received the information. The information provided Parker was significant. It is my understanding that from a technical perspective it was sufficient information to influence a reasonable agency expert. It is my understanding that the staff's position is that the agency did not act as it should have. It should have proceeded to investigate the matter. Thus, if the licensee had given to Parker Thorpe's and Lessor's view, then stated that they were still reviewing the matter and that their view could change rather then what Parker has stated he heard, it should not have made a difference to the technical significance of the matter or the need for an NRC evaluation. 2/ Having informed the resident of mate 2/ The licensee's obligation to provide information to the Commission is an objective standard under Vepco. Materiality is judged by the "reasonable agency expert." Some of the regional staff involved in this matter had a threshhold of concern which apparently was focused on criticality. However, my analysis is based on my understanding that the staff's view is that criticality is not the significant issue. Rather, it is the rod pull error itself which is significant. The exact point when criticality may occur is difficult to predict. What is of interest is not that the facility went critical prematurely, i.e., earlier than planned (in (FOOTNOTE CONTINUED ON NEXT PAGE) rial information, the question remains as to whether the licensee's obligation under Vepco to provide such information to the Commission was discharged by its notification of the junior resident rather than the Regional Administrator or other Commission official. This is important because if a requirement requires notification to a particular person or organization, then notification to someone else is not sufficient. The staff has taken this view in finding a violation of 10 CFR 50.72 where a resident inspector had been notified instead of the NRC Incident Response Center, as required by the regulation. 3/ The specific requirement and issue here is the Commission's full disclosure provision derived from the Vepco decision. That decision is silent as to where a licensee must report material information. I am not aware of any regulation, policy statement, or other notice that requires information submitted under the Vepco full disclosure provision to be submitted to a particular person. In the absence of a direction to the contrary, the basic rule of law that notice to an agent is notice to the principal, if it is given to an agent apparently authorized to receive it, is applicable here. Restatement (2nd) of Agency, Section 268 (1958). Thus, in my view, notice to the resident constitutes notice to the Commission. 4/ This is especially true since it has been (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) 3/ 4/ contrast to an inadvertent criticality where the facility goes critical where there is no intent to go critical), but the procedural errors, training, the lack of oversight in the control room, and impact of the misplaced rods on core physics such that there may have been an unanalyzed condition that could compromise plant safety. If there was a requirement to notify a Regional Administrator and the licensee notified a resident who in turn, without authorization, told the licensee that its obligation to inform the Regional Administrator was discharged, the licensee would still be in violation of the law. This flows from the general rule that a person is responsible to know the law and may not rely on the conduct of government agent's contrary to the law. Heckler vs. Community Health Services, 81 L. Ed. 2d, 42, 54 (1984). The Supreme Court has consistently held that "anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. ...even though...the agent himself may have been unaware of his limitation upon his authortiy." Id. at 54n.17. The Commission in its enforcement actions regularly holds licensees re- |
