2 At the request of the Subcommittee, I will provide my observations concerning NRC staff actions in relation to OI's investigation of the Fermi Nuclear Facility (Fermi). Within OI in Washington, I was responsible for review of the report as submitted by NRC's Region III. There was an operator error committed at Fermi that resulted in a premature criticality (an unplanned or premature nuclear reaction). The utility withheld from the NRC the severity of the operator error. Despite the utility's willful material false statements regarding its premature criticality and the OI report documenting the utility's course of action, the NRC has never taken any civil enforcement measures against Fermi for failing to report the premature criticality. Rather than using this information as a basis for regulatory action, the NRC staff took steps that had significant potential to, and in fact did, undermine OI's investigation. NRC staff (those people who work for the Executive Director for Operations) did not even wait for the OI investigation to be completed and the report to be made final before mounting a challenge. This culminated in a staff memorandum, the mere existence of which made any enforcement action based on the material false statement virtually impossible. In essence, the staff, either inadvertently or intentionally, undermined the OI investigative findings. Once the draft OI report was sent to Washington, we at OI spent much of the fall of 1985 carefully reviewing it. We had extensive discussions with those responsible for the 3 investigation and reviewed the documents and testimony that were the basis of the Region III report. During the fall and winter of 1985-86, we briefed the NRC staff, including the former Executive Director for Operations. It is the policy for OI to provide a briefing to the staff to ensure that any potential immediate health and safety issues arising out of the investigation can be identified and corrected. If OI's preliminary findings identify problems with the utility's operation of the plant, that could indicate that there is an immediate danger to health or safety. In such a case, the staff should be informed quickly to enable them to correct the problem. Normally, however, OI investigations are completed and the report issued before the NRC staff becomes involved in evaluating the information for possible enforcement. In this case, the NRC staff asked to review OI's investigative materials before the investigation was even completed. This was odd because Fermi was not in operation at that time. It is therefore difficult, if not impossible, to imagine how there could be immediate health and safety concerns. In the fall of 1985, the very first day after OI briefed the NRC staff concerning the investigation and our initial conclusions, the staff sent an attorney from NRC Headquarters to the OI Field Office in Chicago to review the investigative material. Shortly afterwards, I began to receive reports from OI staff members that the NRC staff attorneys did not agree with OI's initial findings. On February 10, 1986, about a month prior to 01 issuing the report, Victor Stello (EDO), Ben Hayes (Director, OI), other senior NRC personnel and I met to discuss the Fermi investigation. As a result of the meeting, Mr. Stello requested a copy of the OI draft report stating there was an immediate health and safety issue. What was apparent was that the Fermi facility was approaching a restart decision and the status of certain Fermí managers was in question. Mr. Stello expressed concern over the scheduled restart and the fact that enforcement actions which removed certain managers could result in delaying Fermi's restart for six months. Near the end of this meeting a The question was raised by Mr. Stello, as to what was going to be OI's conclusion concerning the conduct of certain managers. Region III Administrator, Mr. Keppler, responded that he believed OI Region III was concluding there was wrongdoing on the part of management. I told Mr. Keppler and the EDO that OI headquarters supported that conclusion. The next major involvement with the staff came rather unexpectedly. About two weeks later, Mr. Hayes provided me with a copy of a document produced by the staff office of the Executive Legal Director. I will refer to this as the ELD Memorandum. This ELD Memorandum, dated March 19, 1986, could well have been written by the utility. It uses the facts selectively and mischaracterizes the law (as interpreted by the NRC's Office of General Counsel). It strains to put the utility in the most favorable light possible and tries to shift the blame to NRC 5 employees for failing to discover information being withheld by the utility. In essence, the memorandum reflects the views of an advocate, not of an objective observer, let alone a regulatory agency. ELD stated that there was no evidence to support a view that there was an intent not to tell the NRC of the premature criticality. ELD failed to address the following facts from the OI report: 1. Despite ample opportunity, the NRC's Resident Inspector was never informed that the utility had gone prematurely critical. The plant's Assistant Superintendent had promised to inform the NRC's Resident Inspector of the utility's final determination regarding the premature The NRC's Resident Inspector was at the utility site The utility sat silently at the Commission's licensing hearing, knowing that the Commission was unaware of the premature criticality. As EDO Victor Stello said, "The utility should not have just sat in the Commission licensing meeting listening to a glowing description of 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 |