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I am going to return momentarily, and hopefully this 7-minute break will only last 7 minutes.

AFTER RECESS

Mr. Gejdenson. Mr. Bush, you wanted to make a clarification, I understand? Mr. Bush. Yes, Mr. Chairman.

On the last page of my statement when I was summarizing some of the problem areas with the EEI Guide, I said that it failed to establish or address coverage of offsite activities. The first section of the EEI Guide does cover or recommend policies for off-duty and offsite use in possession of drugs. So I request, if you would, that that particular phrase be deleted.

Mr. Gejdenson. Staff will take note of that change. It has already been done on the record, so it has been corrected.

Given the role of the Office of Investigation, 01, as the investigator of wrongdoing by the licensees, what was its position on the policy statement?

Mr. Bush. 01 favored an explicit rule, and they believe that the absence of such a rule could adversely affect their authority to investigate such matters.

Mr. Gejdenson. So that without a firm rule, it puts some of your actions in question and it puts in question the ability of the NRC to take direct action on some of these problems of drugs and alcohol.

Mr. Bush. Yes. Mr. Chairman, instead of "firm," I would use the word "explicit" because our lawyers tell us we enforce exactly what we have in that language.

Mr. Gejdenson. What is your overall assessment of the industry's guidelines, the EEI Guidelines?

Mr. Bush. In 1983, I reported my concerns about the quality of the industry initiative and referred to the original version of the EEI Guides as Neanderthal at best. Although the 1985 revision was an improvement, it still leaves a lot to be desired.

What I find most disappointing is that since that 1985 version was published—we are now talking close to two years—there have been a lot of lessons learned, and the industry has not really taken the initiative to continually revise that guide and to profit by the experiences.

Mr. Gejdenson. Let me ask you one of the fundamental questions. If a licensee found someone drunk at the control panel, this individual was intoxicated while he was at the control panel, would that licensee have to inform and report to the NRC?

Mr. Bush. As I stated earlier, Mr. Chairman, there is no clear requirement that the licenses report such a matter. However, the Commission would clearly expect it to be reported.

Mr. Gejdenson. By virtue of the policy statement, are utilities required to prohibit someone who is unfit for duty from gaining access to vital areas of the plant? This is, again, according to the policy statement. Are they required to do so?

Mr. Bush. No, sir.

Mr. Gejdenson. Are you aware of a 1983 report entitled Drug and Alcohol Abuse: The Basis for Employee Assistance Programs in the Nuclear Industry?

Mr. Bush. Yes.

Mr. Gejdenson. In the Executive Summary it states that data were not available regarding drug and alcohol abuse in the nuclear utility industry.

Do you know why these data are not available?

Mr. Bush. Yes, sir. There were a couple of points. First of all, our Office of Nuclear Regulatory Research management directed that the researchers not conduct a formal study. The researchers then contacted 20 utilities by telephone, attempting to do a telephone survey, and found that the desired data was not available, or the people contacted were reluctant to provide estimates. However six did, which is mentioned in the new reg document.

Now, the reasons the licensees do not have data varied somewhat. Many did not have an employee assistance program or their programs were in their infancy. Therefore, they didn't have the data to report.

Another reason which I have found in my current inspections is that the data are kept corporate-wide, so they do not focus on the nuclear plant itself.

Another common cause is that the employee assistance program typically provides confidentiality and management seems to think that that means that they shouldn't be privileged to any information as to how the program that they are paying for is performing.

Mr. Gejdenson. Well, let me thank both of you. Again, it cannot help but strike all of us as somewhat odd that here, the NRC in 1982 expresses concern about drug and alcohol abuse, it comes up with a rule that is basically unforceable, leaves us in a situation where nuclear powerplants that have the potential for far greater danger to people in this country and property are left without adequate procedures to keep on top of the statistical analysis and the incidental activities.

I would like to commend both of you. I understand how difficult it is to be back in the bureaucracy, having worked in Government at various levels. I commend both of you and others who have come forward with information for their courage, and we will watch your careers, and we certainly hope that you will get the kind of recognition that you deserve for having the courage of good public servants. That is something those of us in Congress cannot survive without.

The bureaucracy is too large, it is too diffuse, our staff resources are too limited. And without your courage here today to focus on what I think is an important issue, these matters could not be

brought to the attention of the public and hopefully to the policymakers so that we can see some changes. Thank you both very much.

Mr. Gejdenson. Our next two witnesses, Mr. Pawlik and Mr. Sinclair.

You guys were supposed to be up at 1:30 or 2.

Mr. Pawlik. Mr. Chairman, I am going to have to amend my statement. It says "Good morning."

Mr. Gejdenson. Let me apologize for keeping you waiting.

Let me just ask you to rise. Since you have been here all day, you understand no inference is meant for either of you.

[Witnesses sworn.]

PANEL FROM THE U.S. NUCLEAR REGULATORY COMMISSION CONSISTING OF EUGENE T. PAWLIK, DIRECTOR, OFFICE OF INVESTIGATIONS, REGION III; AND JOHN R. SINCLAIR, OPERATIONS OFFICER, OFFICE OF INVESTIGATIONS

Mr. Pawlik. Good afternoon. My name is Eugene T. Pawlik. I am currently the Field Office Director for the Nuclear Regulatory Commission's Office of Investigations Field Office located in a suburb of Chicago, Illinois.

I have been in that position since December 1982. Prior to my joining the NRC's Office of Investigations, I was a Special Agent for approximately 12 years with the Department of Justice's Drug Enforcement Administration. Almost 8 of those 12 years were spent in Detroit, working on narcotic investigations, while the remainder of my time with DEA was spent right here in Washington, D.C., where I was assigned as an instructor to DEA's Office of Training.

I also hold both a bachelor's and a master's degree in police administration from Michigan State University.

The focus of my testimony today will be on my role in supervising the activities of one of my investigators as he investigated an allegation that certain officials from Detroit Edison Company's Fermi II Nuclear Power Station may have provided false and misleading information to the NRC in mid-1985.

As a Field Office Director, I am responsible for performing a variety of tasks and supervising the investigative activities of my staff is one of the most important ones. Inherent in that supervisory role is the need for me to constantly be sensitized to matters that, once identified, could be of immediate importance to public health and safety.

I also need to ensure that both 01 senior management and NRC regional management are kept abreast of matters that, while not necessarily of an immediate public health and safety concern, are still important to the NRC. Perhaps my most important task, however, occurs when an investigation is completed and the investigator's case report hits my desk for review.

In reviewing the report, I must ensure that it is an accurate, unbiased rendition of the facts. In order to be sure that those standards are met, I personally review all physical and testimonial evidence to ensure that no evidence was inappropriately utilized or no statement was taken out of context.

I also have the case investigator personally explain the case to me in order to make sure that I understand what was done, how the investigative conclusions were reached, and whether the investigator's conclusions can stand up to a challenge.

Only when all these review factors are satisfactorily met will I sign a case report certifying that my review has been completed. I take the act of reviewing a report and signing it after that review very seriously, because my signature on that report reflects on both my professional competence and personal integrity.

After reviewing the case report of the investigation I am about to discuss, I signed that case report without any hesitation. On July 22, 1985, the NRC Region III Administrator officially requested the Office of Investigations investigate, as a top priority matter, whether senior Detroit Edison officials from the Fermi II powerplant may have made a series of material false statements to the NRC.

It was reported that on July 2, 1985, a control room reactor operator at the Fermi facility failed to follow procedures in operating the reactor. As a result, the reactor went critical, prematurely. Information about this premature criticality was alleged to have been willfully withheld from the NRC by certain senior Detroit Edison Company officials and was not made known to the NRC until July 15, the day that the utility physically received its signed full power operating license, and 5 days after the 5-member NRC Commission voted unanimously to issue that full power license.

Our investigation began almost immediately, and determined that the following sequence of events transpired. Shortly after midnight on July 2, 1985, a control room operator failed to follow instructions and pulled a series of control rods out of sequence. The result of that out-of-sequence rod pull caused the reactor to experience a premature criticality, which meant that a sustained chain reaction was achieved much earlier than anticipated.

When that occurred, a reactor engineer—one of the other utility employees in that control room—wrote into his official engineering log that the reactor "went critical." A control room shift supervisor was sufficiently concerned about what had happened that he called his supervisor at home, in the middle of the night, in order to advise him about what had occurred.

During that conversation and contrary to feedback he was getting from various people in the control room, the control room shift supervisor said that the reactor did not go critical. Later on, during the shift, the control room shift supervisor prepared a report of the event and indicated that the reactor did not go critical.

He also advised the reactor engineer who had prepared the log entry mentioned earlier that the log entry was in error and, as a result of his suggestion, the original log entry was changed by the reactor engineer to now read that the reactor "may have gone critical."

The following morning, the assistant plant manager was briefed on the previous night's events, and he assigned the matter to the reactor engineering section at the plant to study all available data and determine if the reactor had in fact gone critical.

The following day, July 3, 1985, the reactor engineering section met with the assistant plant manager and a Detroit Edison Company nuclear consultant to advise them that based upon their analysis of computer models, a review of all available data, and their detailed knowledge of how the reactor core was located, it was their conclusion that the reactor went critical prematurely. The nuclear consultant also agreed with this analysis.

Notwithstanding this information, the assistant plant manager reiterated the original position that the plant had not been declared critical and that reactor engineering needed to study the event further and get back to him. This was also done, in spite of advice to the contrary from a nuclear consultant with years of experience in the nuclear power field who, during that meeting, stated—and I quote:

In my opinion you were critical, just from my experience of looking at the charts, but as a minimum you better come right over and talk to the resident inspector and make him aware of what happened.

In fact, however, the assistant plant manager, in his sworn testimony, described this discussion that took place after the July 3 meeting. He stated, and I quote:

Because there was the discussion at the end of our meeting on the 3rd, well, we've got to go tell the NRC resident inspector. What are we going to tell him? Are we going to tell him it's critical or not critical?

The decision was made to tell him that the reactor was not critical, but that we still had controversy between our reactor engineering people and our operators, and that we are going to go back and do some more evaluation. That is exactly what he was told. That's exactly what he was told.

Except he, the NRC resident inspector, was never told all of the information available.

During his initial interview by the 01 investigator, the NRC resident inspector testified that he was only told the plant may have gone critical and that the utility was looking into it and would get back to him. He was never advised of the specific nature of the dissenting opinions on criticality held by both the nuclear consultant and the Reactor Engineering Section.

Also on July 3, 1985, while the Detroit Edison Company managers were trying to determine what to tell the NRC about the July 2 event, and how to carefully craft what information they would discuss with the NRC resident inspector, a decision was made to brief a very senior Detroit Edison Company official, the Vice President

of Nuclear Operations.

The briefing of the Vice President for Nuclear Operations was conducted by the plant manager himself, and in his sworn testimony he characterized the reason that the vice president needed to be briefed as follows:

There were differences of opinion in that meeting, and that I wanted him to be aware of that fact. And I basically told him because, you know, I thought it would be, from a PR standpoint, a sensitive issue, and told him what the game plan was.

On Independence Day, July 4, 1985, a representative of the Reactor Engineering Section contacted the assistant plant manager by phone at home and advised him that Reactor Engineering had done another analysis and again concluded that the reactor had gone critical on the morning of July 2.

The assistant plant manager stated that he tried to contact the NRC resident inspector by phone late in the day on July 5, but was unable to reach him.

On the morning of July 6, the assistant plant manager announced at a staff meeting: "Hey, we went critical and we really look bad on this one. This is a significant violation of procedure not following the pull sheet, and we got to pay attention."

The assistant plant manager initially stated, during the Office of Investigation's interview, that he thought the NRC resident inspector was present at that staff meeting, but he later changed his mind about the NRC inspector's presence.

From July 8-12, both the NRC resident inspector and his assistant were present at the Fermi II facility and participants in a variety of Detroit Edison Company staff meetings. During that time, no attempt was ever made by any DEC officials to notify them of the

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