OPINION OF THE COURT
STAPLETON, Circuit Judge.
Three Mile Island Nuclear Station has two units, TMI-1 and TMI-2
The petitioners in this review proceeding are the Commonwealth of Pennsylvania (the "Commonwealth"), Three Mile Island Alert, Inc. ("TMIA"), the Union of Concerned Scientists ("UCS"), and Norman and Marjorie Aamodt (the "Aamodts"). These petitioners intervened before the Commission and participated actively and effectively in the extensive hearings conducted pursuant to the August 9, 1979 order. While the issues addressed in these hearings remained under advisement at various levels of the administrative process, several motions were filed asking that the hearing record be reopened. While the record was reopened to receive some additional evidence, the Commission denied motions of these petitioners.
On May 29, 1985, the Commission decided that TMI-1 could be safely restarted under certain stipulated conditions and ordered that the 1979 immediately effective suspension of the TMI-1 operating license be lifted. Petitioners insist that the Commission could not legally take this action without holding an adjudicatory hearing on the issues raised in their motions to reopen the administrative record. Some of the petitioners also contend that the decision reflected in the Commission's May 29th Order is arbitrary and capricious. We conclude that the May 29th Order is not arbitrary, capricious, or contrary to law and that, accordingly, the petitions for review should be denied.
I. SUMMARY OF THE PROCEEDING
The proceeding that gives rise to these petitions for review is one of the most comprehensive adjudicatory proceedings ever conducted by the NRC. The procedural history of this matter is described in detail by the Commission in its May 29, 1985 order, CLI-85-9, 21 NRC ___, and will not be repeated here in full. Nevertheless, a summary of that complex history is a prerequisite to an understanding of the issues raised by petitioners.
The Commission's August 9, 1979 "Order and Notice of Hearing" ("Order") called for an adjudicatory hearing to commence within 180 days of publication of the Order and established a Licensing Board, consisting of one lawyer and two scientists,
10 NRC at 148.
The Order required the licensee, Metropolitan Edison Company ("Met Ed"), to
The Commission intended the capability and integrity of the licensee's operating and managerial personnel (the "management competence" issues) to be important issues in the restart proceedings. Among the "short-term" actions proposed by the Director and subject to adjudication before the Licensing Board were that the licensee, with respect to TMI-1:
10 NRC at 144-45.
Before the hearing commenced, the Commission entered a supplementary order, CLI-80-5, 11 NRC 408 (March 6, 1980), which gave the Licensing Board further guidance regarding the management competence issues:
CLI-80-5, 11 NRC 408, 409 (1980).
The August 9, 1979 Order required the Licensing Board to render decisions on these issues and to certify the record to the Commission for final decision.
The Licensing Board thereafter conducted formal hearings that in their detail and complexity far exceeded the Commission's original expectations. Whereas the Commission anticipated that the hearings would take 60 days and that the Licensing Board would render its decision eleven months after the August, 1979 Order, the Licensing Board ultimately held 155 days of hearings and, six years after the TMI-1 shutdown orders, has yet to issue the final installment of its decision.
The comprehensiveness of the NRC proceeding can be measured in part by the enormity of its record. The administrative record currently consists of more than 100,000 pages, including approximately 33,000 transcribed pages of testimony and argument and thousands of additional pages of exhibits and written testimony. The Licensing and Appeal Boards and the Commission have published opinions filling 1,500 pages in the NRC's official reports. The Commission itself has heard oral presentations from the parties on five different occasions, has held a meeting in Harrisburg, Pennsylvania, to hear from members of the public, and has issued more than 26 substantive orders.
At the hearings themselves, all parties had the opportunity to cross-examine witnesses and offer rebuttal evidence. The Licensing Board conducted an extensive inquiry regarding the management competence issues. The licensee produced its management and technical personnel at the hearing, and petitioners and other intervenors, as well as the Board, examined them at length. LBP-81-32, 14 NRC 381, 401 (August 27, 1981). Moreover, at a
The Licensing Board has issued four partial initial decisions, each of which — after imposing certain conditions on restart — concludes that TMI-1 may be restarted. In its first decision, issued August 27, 1981, the Board addressed several management-related issues, including licensee's management structure, the adequacy of licensee's training program, licensee's response to the accident at TMI-2, and licensee's capability and resources. LBP-81-32, 14 NRC 381 (1981). The Board concluded that the Director's recommendations governing management competence were necessary and sufficient to ensure public safety, but retained jurisdiction to consider the effect on its decision of an ongoing investigation of allegations of operator cheating on licensing exams.
The Licensing Board issued its second initial decision on December 14, 1981, covering hardware and design issues, the separation of Units 1 and 2,
Before the Licensing Board issued its next partial initial decision, licensee undertook a reorganization that resulted in Met Ed being replaced by GPU Nuclear Corporation ("GPUN") as the operator of TMI-1. GPUN was a newly-created subsidiary of General Public Utilities Corporation ("GPU") whose sole responsibility is management of GPU's three nuclear power plants.
The Board's third partial initial decision, issued on July 27, 1982, addressed the allegations of cheating in response to which it had reopened the record the previous October. LBP-82-56, 16 NRC 281 (1982). This decision reviewed the Special Master's report, which had been submitted on April 28, 1982, LBP-82-34B, 15 NRC 918 (1982), imposed five new conditions on the restart of TMI-1, and concluded that the favorable determinations of the first and second partial initial decisions remained in effect. 16 NRC at 385.
After the Licensing Board rendered its third partial initial decision, litigation between GPU and Babcock & Wilcox Co., the manufacturer of the TMI-2 reactor, produced information that petitioners believe highly relevant to the management competency issues. That information, according to petitioners, indicates that the licensee made false statements to the NRC in its response to a Commission Notice of Violation for misconduct related to the TMI-2 accident. On April 18, 1983, the NRC staff
Soon thereafter, GPUN committed to make three significant organizational changes. On June 10, 1983, it announced it would realign personnel to minimize involvement at TMI-1 of employees who had preaccident involvement at TMI-2, add full-time, on-shift operational quality assurance coverage by degreed engineers, and realign functions within the office of the president of GPUN.
On August 31, 1983, the Appeal Board decided to reopen the record for further hearings on the impact of the leak rate falsification charges on management competence. ALAB-738, 18 NRC 177 (1983). The Commission, in an October 7, 1983 unpublished order, took review of the Appeal Board's determination and stayed any hearings into the matter.
The Commission heard oral presentations from all parties on November 28 and December 5 regarding the reorganization of the licensee. At the November hearing, GPU announced further changes in its organization. Besides verifying that the June 10th plan had been implemented, the company announced that three outside directors had been added to the GPUN Board of Directors, and that they would comprise a separately staffed and funded Nuclear Safety and Compliance Committee. GPU also announced that the President of GPUN, Robert Arnold, had resigned. On February 6, 1984, GPU announced further personnel changes, including one affecting Herman Dieckamp, who, while continuing to serve as GPU's President, would no longer serve as Chairman and Chief Executive Officer of GPUN.
The cumulative effect of personnel changes at TMI-1 since the TMI-2 accident was to significantly alter the GPUN workforce. Of the twelve senior GPUN officers, eight joined the GPU system after the TMI-2 accident, and three of the remaining four had no connection with Met Ed. Of 435 key personnel at GPUN, 235 joined GPUN after the accident, and 100 preaccident employees had never worked with Met Ed. The number of full-time employees who are to work at TMI-1 is almost triple the number employed when Met Ed operated it (915 to 315). Finally, GPUN employs nearly eight times as many employees responsible for training as did Met Ed (55 to 7). CLI-85-09, 21 NRC ___, ___ n. 39 (1985).
On February 28, 1984, Met Ed pled guilty to criminal falsification of leak rate data. A Statement of Facts submitted to the Court by the United States Attorney in connection with the sentencing specified that although "the evidence would establish that a number of employees of the Metropolitan Edison Company engaged in the criminal activities charged in the indictment," "the evidence presented to the grand jury and developed by the United States Attorney does not indicate that any" of the directors or officers of GPUN from its inception in 1982 "participated in, directed, condoned, or was aware of the acts or omissions that are the subject of the indictment."
On May 24, 1984, the Appeal Board reversed the Licensing Board's third partial initial decision and reopened the record on three issues. ALAB-772, 19 NRC 1193 (1984). These were the effect of the cheating incidents on training, the truthfulness of a mailgram sent by GPU President Herman Dieckamp to Congressman Morris Udall shortly after the accident, and the possibility of improper leak rate practices at TMI-1. 19 NRC at 1279-80.
The Commission on February 25, 1985, reversed the Appeal Board's decision to reopen the record: CLI-85-2, 21 NRC 282 (1985). After considering the numerous contentions raised by the parties, the Commission found that none of those contentions warranted further hearings in the
21 NRC at 341-2.
The Commission's February 25th order also initiated a new proceeding to consider disciplining employees, other than those explicitly cleared by the United States Attorney in his Statement of Facts, possibly involved in leak rate falsification at TMI-2.
The Licensing Board issued its fourth partial initial decision on May 3, 1985. LBP-85-15, 21 NRC ___ (1985). This decision reviewed the adequacy of licensee's training programs in light of the cheating incidents. The Board, after requiring the licensee to implement a plan for on-the-job performance evaluation, once again found in favor of restart.
On May 9, 1985, the Director of the NRC certified that the licensee had satisfied all of the 155 conditions that had been imposed during the Restart Proceedings, and on May 29, 1985, the Commission, after first reiterating its conclusion that personnel and procedural changes at TMI-1 had rendered the allegations raised by petitioners moot for the purposes of determining when and under what conditions restart could safely occur, lifted the immediate effectiveness of the orders requiring the shutdown of TMI-1. CLI-85-09, 21 NRC ___ (1985).
II. THE SCOPE OF REVIEW
Pursuant to 5 U.S.C. § 706(2)(A), the standard of review of the Commission's order of May 29, 1985, is deferential; that order may not be overturned unless it is found to be "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law."
With respect to petitioners' procedural arguments, this Court has noted that the NRC regulatory scheme is "virtually unique in the degree to which broad responsibility is reposed in the administering agency, free of close prescription in its charter as to how it shall proceed in achieving the statutory objectives." Westinghouse Electric Corp. v. Nuclear Regulatory Commission, 598 F.2d 759, 771 (3d
With regard to the claim raised by petitioners Aamodts that the TMI-2 accident caused greater amounts of radiation to be released than the NRC believes, deference must be accorded to the Commission's expertise. "When examining this kind of scientific determination, as opposed to simple findings of fact, a reviewing court must generally be at its most deferential." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 103, 103 S.Ct. 2246, 2256, 76 L.Ed.2d 437 (1983).
Our "limited, albeit important, task" is to review "agency action to determine whether the agency conformed with controlling statutes." Id. at 97, 103 S.Ct. at 2252. In undertaking this task, we must be mindful both of the Congressional policy choice favoring the development of nuclear power and of the Congressional mandate that the Commission be charged with the responsibility of protecting the public health and safety while overseeing the activities of the nuclear power industry. Our words in Westinghouse Electric Corp. v. Nuclear Regulatory Commission are equally appropriate here:
Westinghouse Electric Corp., supra, 598 F.2d at 779.
III. CONSISTENCY OF THE PROCEEDINGS WITH § 189(a) OF THE ATOMIC ENERGY ACT
The Restart Proceedings resulted in 155 conditions being imposed on the licensee to ensure that TMI-1 could be operated consistent with public health and safety. Petitioners argue that the procedures followed by the NRC in this case, which led to imposition of these conditions, violate Section 189(a) of the Atomic Energy Act, 42 U.S.C. § 2239(a) (1976) (amended by Pub.L. No. 97-415, § 12, 96 Stat. 2067, 2073 (1983)). Section 189(a) provides:
The petitioners insist that the Restart Proceeding is a proceeding for the amending of a license within the meaning of Section
Under 10 CFR § 2.200-.206 (1985), the Commission is authorized to institute enforcement proceedings "to impose requirements by order, or to modify, suspend, or revoke a license, or to take other action as may be proper." 10 CFR § 2.200 (1985).
As noted above, the August 9, 1979 Order spelled out a dual review procedure. It designated the appellate review for resolution of the ultimate issues in the enforcement proceeding and the immediate effectiveness review for resolution of the issues of whether, when and under what conditions the "immediate effectiveness" of the July 2, 1979 shutdown order would be lifted. Although the Commission's May 29, 1985 resolution of the "immediate effectiveness" issues came later in the proceedings than originally contemplated, it did not terminate those proceedings. The Commission's May 29, 1985 Order is thus a determination relating solely to whether the licensee will be able to utilize its existing authority during the pendency of an ongoing Commission proceeding.
This procedural context is important. While amendments to the TMI-1 operating license may, and probably will, be imposed before the end of the current proceeding, the May 29, 1985 Order does not purport to impose such amendments. The sole effect of that Order is to lift the 1979 shutdown orders; the licensee has no greater operating authority by virtue of the May 29, 1985 Order than it had on July 1, 1979. It is true that the Commission, as a condition of lifting its shutdown order, has imposed numerous restrictions on the way in which the licensee may exercise its existing authority, but petitioners have pointed us to nothing in this record which indicates that the Commission has purported to effect amendments to the license or that license amendments are necessary to permit the licensee to operate in accordance with the restrictions which have been imposed.
IV. CONSISTENCY OF THE PROCEEDINGS WITH THE ORDER OF AUGUST 9, 1979.
Petitioners contend that the May 29, 1985 decision lifting the immediate effectiveness of the shutdown orders is inconsistent with the procedural rules established by the Commission in its August 9, 1979 Order. They argue that the 1979 Order precluded the Commission from basing the restart decision on evidence other than that contained in the adjudicatory record developed by the Licensing Board, and that the Commission violated this stipulation by relying on extra-record material to support its May 29th decision. UCS also contends that the 1979 Order precluded the Commission from authorizing restart in the absence of prior favorable determinations by the Licensing and Appeal Boards, and that the Appeal Board's remand on the three management integrity issues indicates that such favorable determinations are lacking. We discuss each of these arguments in turn.
We agree with the petitioners that the August 9, 1979 order contemplated immediate effectiveness review by the Commission based on the adjudicatory record developed by the Licensing Board. We assume, without deciding, that this irrevocably committed the Commission to make its effectiveness decision on the basis of that record. Moreover, while the May 29th decision is based upon that adjudicatory record, we agree with petitioners that it rests in part on extra-record facts. However, given that these extra-record facts are undisputed and that petitioners were afforded a fair opportunity to offer both argument and evidence on all of the relevant issues in the Restart Proceeding, we conclude that the Commission's reliance on extra-record materials in its May 29th decision does not require further Commission proceedings.
While the Commission declares in its decision that it is relying solely on the "formal adjudication record," CLI-85-09, 21 NRC at ___, this is not the case. In addition to evidence developed before the Licensing Board, the Commission gave significant weight to facts concerning the reorganization of the licensee which were not developed before that Board. Petitioners do not assert that these extra-record facts are untrue. They argue, however, that
We find this suggestion unpersuasive in light of the fact that the effect of the undisputed facts relied on by the Commission, and the complementary condition insulating TMI-1 operations from virtually all personnel connected with TMI-2 prior to the accident, was to narrow the relevant issues remaining before the Commission and not to raise new ones. Put another way, during the 155 days of hearings, petitioners were well aware that they faced the prospect of having Ross, Kuhns, and Dieckamp associated with the licensee upon restart. They had ample opportunity to cross-examine these men and offer evidence concerning their past. Mr. Ross, for example, appeared before the Licensing Board five times over several days and testified on a broad variety of issues. LBP-81-32, 14 N.R.C. 381, 439 (1981).
While petitioners now feel they have more cross-examination and rebuttal material than they had at the time of the hearing, that is not an uncommon occurrence in adjudicative proceedings, and whether that ammunition may be used is a question to be decided, as it was, in a proceeding on a motion to reopen the record. We conclude that the Commission, having afforded petitioners the opportunity to offer evidence regarding Kuhns, Ross and Dieckamp, could rely upon the undisputed personnel changes without reopening the record on the integrity of these men.
The Need for Prior Favorable Board Determinations
UCS argues that the Commission could not authorize restart of TMI-1 until the Licensing Board and the Appeal Board had first reached favorable determinations on the adequacy of the proposed short-term actions, including those related to management integrity. The Licensing Board's positive assessment of management competence, UCS points out, was rendered without hearings on the leak rate falsifications at TMI-2 and was made specifically "subject to this matter." LBP-81-32, 14 NRC 381, 557 (1981). Moreover, UCS stresses that the Appeal Board, when deciding to reopen the record to pursue the leak rate test issue, determined that it should not assess management competence without that evidence. ALAB-738, 18 NRC 177, 190 (1983).
We may assume for present purposes that the August 9, 1979 Order conditioned restart on a prior favorable determination by the Licensing Board, for UCS's argument fails on its own terms. The record indicates that the Licensing Board has in fact issued a favorable determination on management integrity. Although the Appeal Board believed that further hearings were desirable, the Appeal Board's decision to reopen the record was reversed by the Commission. We find nothing in the August 9 Order to indicate that the Commission surrendered its right to make the ultimate determination on whether and when to reopen the record. Because the Commission's reversal of the Appeal Board leaves standing the initial favorable Licensing Board determination, even under the UCS analysis the Commission could lawfully authorize restart.
V. REFUSAL TO REOPEN THE RECORD
As we have noted, the parties extensively litigated the management competence issues before the Licensing Board closed the hearing record and issued its August 27, 1981 decision favorable to the licensee. LBP-81-32, 14 NRC 381 (1981). After the record closed, however, there were several potentially significant developments. The most important of these was Met Ed's guilty plea to federal criminal charges of leak rate falsification at TMI-2. Petitioners moved to reopen the record on management competence, and the Appeal Board granted their motions on four issues. ALAB-738, 18 NRC 177 (1983); ALAB-772, 19 NRC 1193 (1984). After receiving briefs from the parties, the Commission decided, on February 25, 1985, that the hearing record need not be reopened prior to restart: CLI-85-2, 21 NRC 282 (1985). Petitioners insist that the Commission's refusal to hold hearings on post-record developments renders the May 29, 1985 decision arbitrary and capricious.
In refusing to reopen the record, the Commission engaged in its traditional tripartite inquiry for determining if new evidence is of sufficient importance to outweigh the general policy against permitting reopenings. The Commission asked:
21 NRC at 285, n. 3. This test has been judicially sanctioned, San Luis Obispo Mothers for Peace v. N.R.C., 751 F.2d 1287, 1316-18 (D.C.Cir.1984).
At the outset, we reject petitioners' contention that the Commission cannot rely on extra-record material in assessing the significance of evidence submitted in support of a motion to reopen the record. "Newly proffered material" is by definition extra-record. Because it is also "new" by definition, in the vast majority of cases, limiting the Commission's consideration of a motion to reopen to data already in the record would require that the moving party's allegations be accepted at face value. We think such a rule arbitrary and unworkable. If the Commission has, or can obtain through investigation, information bearing on the subject matter of a motion to reopen, we conclude that it should be free to use that information in deciding that motion. Here, for example, the Commission, confronted with a motion that heavily stresses Met Ed's guilty plea, should not be required, as petitioners would suggest, to ignore the fact that the same investigation that led to that plea also produced information indicating GPUN's management personnel had been unaware of the criminal activity.
Our resolution of this issue is of considerable importance in this case, for although the several issues raised by petitioners are extra-record in the sense that they do not appear in the Licensing Board's formal adjudicatory record, they have been carefully examined by NRC staff investigators. In particular, the Commission heavily relied on NUREG-0680, Supp. No. 5, a staff report that reviews the investigations conducted by the NRC Office of Investigation ("OI") and reaches results favorable to current management on the issues raised by petitioners, including leak rate falsification at TMI-1 and TMI-2.
We now proceed to consider whether the Commission abused its discretion in refusing to reopen the record for each issue raised by petitioners. Although we discuss each issue individually, we have considered the cumulative effect of all of the information available to the Commission, as did it, and our conclusion that the Commission did not abuse its discretion has been reached in that context.
TMI-2 Leak Rate Falsification
By far the most important of the reopening issues is whether the record on
Although we recognize the importance of the issue, we are unable to say that the Commission acted arbitrarily or capriciously in refusing to reopen the record on the leak rate tests. It is undisputable that leak rate falsification had been a serious problem at TMI-2 prior to the accident and further investigation of that problem was clearly called for. The issue was whether to pursue that potentially lengthy process in a new proceeding or whether to reopen the proceeding that had already resulted in TMI-1 being closed down for five and a half years. If the leak rate issue was safety significant to the current operation of TMI-1, the additional delay and attendant expense would, of course, be justified. If that issue was not safety significant to the current operation of TMI-1, further delay and expense would be difficult to justify. In this context, the Commission framed the issues for decision as follows:
21 NRC at 297.
The Commission concluded that no one assigned to a responsible management or operational position at TMI-1 was responsible in any way for leak rate falsification at TMI-2 and that new personnel, organizational structure and procedures provided reasonable assurance that similar violations would not recur.
The Commission, as a result of the lengthy proceedings before it and the investigation of its staff, was intimately familiar with the events leading up to the accident at TMI-2, with the operating and managerial personnel of the licensee prior to the accident and with the operating and managerial personnel of the licensee prepared to restart TMI-1. The Commission was also intimately familiar with the extensive changes in everything from hardware to training which had been effected at TMI-1 after the accident and with the 153 conditions that had already been imposed. In addition, the Commission was aware
Petitioners' argument that the Commission acted arbitrarily or capriciously necessarily focuses on the three individuals who will have some responsibility with respect to TMI-1 who also had some pre-accident involvement with TMI-2: Michael Ross, William Kuhns, and Herman Dieckamp.
Michael Ross, as current Manager of Operations at TMI-1, is the only one of the three to hold a safety significant "operational position" at the plant. 21 NRC at 298. Because of the position he would hold, as earlier noted, Ross was one of the focal points of the hearings and extensive findings were made about his competence, including his integrity in the context of alleged operator cheating on tests. Nevertheless, in response to petitioners' motion to reopen, the OI, at the Commission's direction, conducted an investigation to determine whether Ross had in any way participated in or condoned leak rate manipulation. As the Commission noted, the "evidence developed by OI showed that Ross' role at TMI-2 was minimal, that during the period falsifications took place he was present at TMI-2 only the minimum time necessary to maintain his Unit 2 license, and that he was not involved in the falsifications." 21 NRC at 298-9. The Commission, accordingly, determined that Ross posed no risk to the safe operation of TMI-1. The only additional information which petitioners advance in support of their position is that Ross has a reputation for being a "stickler for details." Petitioners infer from this that, despite his minimal contact with TMI-2, Ross must have known that leak rate manipulation was going on there. While this is perhaps a permissible inference, it is not a necessary one, particularly in light of the other information about Ross available to the Commission. Accordingly, we are unable to find that the Commission acted arbitrarily in concluding that the continued presence of Ross at TMI-1 did not require the Commission to reopen the record on TMI-2 leak rate falsifications.
The Commission considered as well the safety significance of the continued presence of Messrs. Kuhns and Dieckamp at GPU. Kuhns has been Chairman of GPU during all relevant periods. Dieckamp remains a member of the Board of GPUN, as well as President, Chief Operating Officer, and a Director of GPU. The Commission found it highly unlikely that corporate officers of their rank would have been aware of the details of normal plant operation such as leak rate testing, and also concluded that Kuhns and Dieckamp were not responsible for the attitude at TMI-2 that permitted the falsifications to occur. 21 NRC at 301. The Commission also relied on the exculpatory statement offered by the United States Attorney in connection with the sentencing hearing of Met Ed:
Transcript of Proceedings, Change of Plea and Sentencing, United States v. Metropolitan Edison Co., Crim. No. 83-00188, at 16 (M.D.Pa. Feb. 28-29, 1984). We believe the Commission could reasonably rely on this statement in determining that the presence of Kuhns and Dieckamp at TMI-2 did not make the leak rate falsifications at TMI-2 safety significant to TMI-1 operations.
In summary, the Commission made a policy decision between holding hearings on the TMI-2 pre-accident, leak rate manipulation problem in the TMI-1 restart proceeding or in a separate proceeding. It chose the latter course because it concluded that changed personnel and altered procedures at TMI-1 rendered the pre-accident experience at TMI-2 irrelevant to an assessment of the safety of TMI-1 operations. In making this choice, the Commission analyzed the relevant issues relying on information from reliable sources, reasoned to a logical conclusion, and articulated the reasons for its decision. As a reviewing court, we can ask nothing more of the Commission.
TMI-1 Leak Rate Test Practices
Petitioners allege that leak rate falsifications also occurred at TMI-1, and that the Commission erred in refusing to reopen the record for hearings on this issue. These allegations arise from the results of an NRC staff review of TMI-1 leak rate tests for the period April 1, 1978 to March 31, 1979. This review, which found 38 of 645 tests had been improperly conducted, led to an investigation by the OI. After the OI reported, the Appeal Board decided to reopen the record for hearings on TMI-1 leak rate data. ALAB-772, 19 NRC 1193 (1984).
The Commission, in reversing the Appeal Board, again relied on the OI investigation. This investigation included sworn interviews of all pre-accident and current TMI-1 employees who conducted the leak rate tests during the period in question. 21 NRC at 311. The Commission distinguished the leak rate falsifications at TMI-2 from the leak rate "irregularities" at TMI-1 because only three of the 38 questionable tests, if properly conducted, would have indicated excessive leakage. There was therefore no need to falsify test results. Id. Based upon the OI investigation, the Commission concluded that the intervenors had an unrealistic perspective on the significance of the available data:
Id. at 312 (footnotes omitted).
The Commission also specifically addressed and rejected the possibility that Michael Ross knew of the leak rate irregularities. Id. at 313. The Commission concluded that, given the thoroughness of the OI investigation, there was no reason to believe that further hearings would produce significant new information on leak rate test irregularities at TMI-1. Id. at 311.
We agree with UCS that the fact that TMI-1 operators did not need to falsify test results does not exculpate them if they in fact did so on occasion. But we understand the Commission to mean that the lack of motivation to falsify is some evidence that the leak rate irregularities uncovered
While the decision on whether to reopen the record for a hearing on TMI-1 leak rate testing was one about which reasonable minds could differ, as did the Commission and the Appeal Board, this does not make the Commission's decision arbitrary or capricious. Once again, it responsibly addressed the relevant issues and drew permissible conclusions from all of the data available to it.
Response to the 1979 Notice of Violation (NOV) and Changes in the Keaten Report
The Commission also refused to reopen the record for rehearings on the accuracy of GPU's response to the NRC's October, 1979 NOV, which proposed fining the licensee for procedural violations related to the TMI-2 accident. After the accident, GPU created an internal task force, headed by R.W. Keaten, to investigate the accident. Upper management personnel read and revised drafts of the Keaten Report at the same time that licensee submitted its NOV response. After the Keaten Report was completed, the OI interviewed more than 25 people to determine whether GPU management improperly revised the report. In addition, review of the Keaten Report raised the question of whether licensee knowingly made inaccurate statements in its NOV response. The NRC staff reviewed the OI investigation and concluded that the NOV response contained statements "neither accurate nor complete and ... contrary to other information in the possession of the licensee." NUREG-0680, Supp. No. 5 at 8-19. Finally, the staff placed responsibility for the inaccuracies on two officers, one E. Wallace, and the then President of licensee, R.C. Arnold, both of whom no longer are associated with TMI-1, and on Dieckamp, "who reviewed the response before it was submitted and chose `not to intervene.'" 21 NRC at 330, quoting NUREG-0680, Supp. No. 5 at 8-21.
The Commission, conceding that some changes to the Keaten Report seemed clearly designed to improve licensee's image, nevertheless did not believe that the changes raised "integrity concerns" that warranted further hearings in the absence of "a showing that false information was used negligently or intentionally." 21 NRC at 333. Here, the only false factual information the Commission found was that which was also included in the NOV response. It concerned the role played by a relief valve in the TMI-2 accident. The source of the false information was Wallace. Since it was not unreasonable for other officers to rely on Wallace under the circumstances, the Commission found the issue no longer safety significant. Furthermore, the Commission decided that because the Licensing Board had not relied on GPU testimony in any event, further information on GPU's view of the accident would not be likely to change the Board's initial favorable determination.
The Commission also decided that questions concerning GPU's response to the NOV did not justify reopening the record. The Commission reiterated the fact that the two persons most culpable for the inaccuracies in the response — Wallace and Arnold — were no longer associated with TMI-1. Dieckamp thus formed the only link between the falsehood in the NOV response and the issue of current management integrity. Dieckamp had found the argument in the NOV response "kind of thin" but had chosen not to intervene. Id. at 334. The Commission characterized his behavior as "unwise," but did not believe it raised a significant safety concern. Id. We cannot say that the Commission acted arbitrarily or capriciously in reaching these determinations.
Aamodts' Radiation Release Study
Petitioners Norman and Marjorie Aamodt contend that the restart order was arbitrary and capricious because the Commission failed to reopen the record to consider further evidence concerning the health effects of the TMI-2 accident. The Aamodts first petitioned the Commission on June 21, 1984 for an investigation into the possibility
The Commission requested and received a study of the Aamodts' methodology by the Center for Disease Control ("CDC"), upon which it then relied, in a December 13, 1984 decision, to reject the request for further investigation. CLI-84-22, 20 NRC 1573 (1984). The Commission noted several problems with the Aamodts' evidence. First, their conclusion flew in the face of the conclusions of numerous past radiation analyses. In addition, CDC's analysis of the empirical evidence found that the Aamodts' method of interview was unsystematic and subject to interviewer bias, that the Aamodts had failed to compare their findings to a control group, that the number of cancer deaths cited by the Aamodts was unverified, that in any event those cancer deaths had not been causally linked to the TMI-2 accident, and that the medically-accepted latency period from radiation exposure to cancer diagnosis was too long for cancer cases attributable to the TMI-2 accident to have surfaced. The Commission therefore held that the Aamodts had failed to present sufficient reliable information to discredit earlier, comprehensive, and scientific surveys of radiation releases from TMI-2. Finally, the Commission noted the existence of ongoing research into the health effects of the accident being conducted by the Pennsylvania Department of Health and promised to respond appropriately if this research produced any indication of high cancer risks to the surrounding population.
The Aamodts next moved for reconsideration and for reopening of the formal hearing record to receive the health information that they had compiled. They claimed to have verified the number, geographical placement, and medical cause of the cancer-related deaths described in their original motion. The Aamodts argued that the studies relied upon by the Commission in its December 13 decision fail to account for the fact that much of the data compiled in the first fifteen hours of the accident at TMI-2 are missing or for the possibility that radiation escaped, unmeasured by TMI-2 instruments, through "unmonitored release pathways." The Aamodts also submitted their response to the CDC critique.
The Commission denied both motions on May 16, 1985. CLI-85-08, 21 NRC ___, (1985). Applying the three factor test for reopening the record, the Commission found the motion untimely, not significant to safety, and unlikely to change previous results. In holding that the new evidence was not safety significant, the Commission continued to credit earlier studies over the Aamodts', primarily because of problems in the time of diagnosis, assumed latency period, and population size in the Aamodts' study. The Commission described the Aamodts' evidence as "fragmentary and anecdotal" and insufficient "to support a reasonable doubt as to the adequacy and correctness of the several detailed scientifically conducted studies on which the Commission relied." 21 NRC at ___.
We do not find that the Commission's refusal to reopen the record was arbitrary or capricious. The Commission found serious methodological flaws in the Aamodts' study and it was not required to adopt their views regarding the statistical significance of the cancer cases they discovered or of the latency period between exposure to radiation and the occurrence of cancer. As for the propriety of the Commission relying on earlier studies of the health effects of the TMI-2 accident, we believe this is the kind of scientific determination over which "a reviewing Court must generally be at its most deferential." Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983).
Other Refusals to Reopen
Finally, the Commission refused to reopen the record on various other issues including changes in the so-called Lucien Report, a change in operator testimony at the Babcock and Wilcox trial, the allegedly untimely reporting of two consultant reports, and the alleged harassment of cleanup workers at TMI-2. In its fifty-seven page opinion of February 25, 1985, the Commission addresses these issues in turn, setting forth the information available with respect to each, explaining the positions of the intervenors, and analyzing each in light of the three-prong test for determining when a record will be reopened. 21 NRC 282, 325-9, 335-42. No purpose would be served by our repeating that which is there published. Suffice it to say that the Commission's decisions to pursue these matters only through staff investigation and not in a reopened adjudicatory hearing were permissible products of reasoned analysis.
VI. EMERGENCY PLANS
The Aamodts further contend that the NRC has failed adequately to respond to two other issues raised by them, to wit, that volunteer workers may not be relied upon to fulfill their evacuation-related responsibilities in the event of another accident at TMI, and that the Commonwealth's emergency plan for farmers and their livestock is inadequate.
The Licensing Board held extensive hearings on emergency planning and, in particular, heard evidence concerning the reliability of volunteers. It directly addressed the issue in its second partial initial decision. LBP-81-59, 14 NRC 1211, 1486-89 (1981). The Board found "no evidence which contravenes the finding that there is reasonable assurance that in the event of a nuclear emergency at TMI there will be an adequate number of emergency workers who will stay and perform their jobs." 14 NRC at 1489. We do not understand the Aamodts to contend that the Licensing Board's decision finds no support in the record; rather their contention is that the Board was mistaken. As we have stressed earlier, however, our function is not to "second guess" the Commission's resolution of the relevant issues.
With regard to the Commonwealth's emergency plan for farmers and their livestock, the parties also extensively litigated this issue before the Licensing Board. 14 NRC 1211, 1671-80. The Board explicitly approved of the plan in its second partial initial decision. 14 NRC at 1677. The Appeal Board reached the same conclusion. ALAB-697, 16 NRC 1265, 1280 (October 22, 1982). Contrary to the Aamodts' assertions, the Appeal Board did not order revisions of the plan that the Commonwealth has failed to effect. Rather, the Board found that the Commonwealth's emergency plan goes "beyond the regulatory requirements and devotes considerable attention to the special needs of farmers," id at 1275. The Appeal Board did, in fact, "strongly recommend" that "protective information specific to farmers be developed and distributed," id at 1279, but it also clearly specified that its suggestions were not "a condition for restart." Id. at 1280. We find no abuse of discretion in either of these decisions.
VII. DISQUALIFICATION OF THE LICENSING BOARD CHAIRMAN
Finally, TMIA contends that the Licensing Board Chairman, Judge Ivan Smith, prejudged the issues before him and demonstrated pervasive bias in favor of licensee, thereby depriving TMIA of its right to a fair hearing. The Commission refused to disqualify Judge Smith upon the motions of TMIA, the Commonwealth, and UCS. CLI-85-05, 21 NRC 566, April 5, 1985). Only TMIA presses this argument before us.
The standards governing recusal of NRC Licensing Board members are the same as those for the federal judiciary. Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), CLI-82-9, 15 NRC 1363, 1365 (1982). A judge must disqualify himself if he "... has a personal bias or prejudice either against [a party] or in favor of any adverse party," 28 U.S.C.
TMIA points to several examples of allegedly biased courtroom behavior on the part of Judge Smith. We have reviewed each of the designated episodes. In context, they simply do not support the petitioners' claim of personal bias in favor of GPU.
Of more substance is TMIA's contention that a letter, written by Judge Smith to District Court Judge Sylvia Rambo, both represented prejudgment of the issues before the Licensing Board and stemmed from extrajudicial sources. This letter urged Judge Rambo to be lenient in her sentencing of a TMI-2 operator convicted of cheating on licensing tests. Although we believe Judge Smith exercised poor judgment in writing this letter, we do not find that, taken alone or in conjunction with the other TMIA examples of bias, the letter requires disqualification of Judge Smith. Judge Smith's letter provided three reasons for leniency, only one of which arguably raises a question of prejudgment of the merits in the Restart Proceedings. The letter stated:
Although this argument may be said to express confidence in the NRC rather than bias in favor of GPU, it appears to express confidence that the NRC will develop procedures that the Licensing Board will find "necessary and sufficient" to protect the public health and safety. This is, of course, closely related to what the Commission, in its August 9, 1979 Order, directed the Board to determine, with one important difference. Judge Smith did not indicate whether specific training-related actions would be sufficient to support restart. Rather, he stated that the NRC, with public participation, would eventually develop a "mechanism" for preventing future deception. Thus, Judge Smith did not prejudge the necessity or sufficiency of any of the short- or long-term actions that the Commission charged the Licensing Board to evaluate. He simply indicated his belief that any future deception would not go undetected.
We find no fault with the Commission's refusal to disqualify Judge Smith.
The 1979 accident at Three Mile Island presented the NRC with a substantial and difficult problem concerning the continued operation of the undamaged reactor, TMI-1. The Commission ordered that the reactor remain in a shutdown condition pending investigation and an adjudicatory hearing in which interested representatives of the public could participate. As the investigation and the hearing progressed, it became increasingly apparent that there had been serious deficiencies in the licensee's performance at TMI-2. This
Petitioners are not satisfied with the Commission's process or with the results of its deliberations primarily because, after the hearing, they learned, or first focused upon, certain information that they deem relevant to the management competence issues. While they were permitted to bring this information before the Commission and secured a staff investigation concerning it, they were unsuccessful in their efforts to reopen the adjudicatory hearing. They feel strongly about the issues raised in their motions to reopen and their desire for further hearings is understandable. At some point, however, proceedings must terminate in outcomes. The Commission determined that this point has been reached with respect to the issue of lifting the 1979 shutdown orders, and we conclude that this determination is neither arbitrary nor capricious.
When Congress enacted the Atomic Energy Act, it was aware that risk assessment and policy choices would be an inherent part of the development of atomic energy. It assigned the responsibility for making such assessments and choices to the NRC. Insofar as the issues presented by these petitions for review are concerned, the NRC has exercised its authority reasonably and in accordance with law. Accordingly, we will deny the petitions for review.
ADAMS, Circuit Judge, dissenting.
The extent of public concern surrounding the Three Mile Island nuclear plant is matched only by the gravity of the accident that occurred there on March 28, 1979, an accident widely acknowledged as the worst in the history of commercial nuclear power in the United States. Deep anxiety has been expressed by the Pennsylvania residents who live in the reactor's shadow, as well as by citizens throughout the nation. It is in this setting that we are asked to determine whether the Nuclear Regulatory Commission ("Commission" or "NRC") properly refused to hold further hearings on issues of management integrity arising out of actions taken by the licensee prior to, during, and after the accident. Because I believe that in a case of this consequence full public disclosure of serious charges of management misconduct is required, I respectfully dissent.
The primary ground for my disagreement with the majority is that the Commission has failed to provide a statutorily mandated hearing on charges that operators at TMI-2, with full knowledge and authorization of supervisory personnel, systematically falsified leak rate data in order to avoid shutting down the facility. All parties to the original NRC hearings were aware of the leak rate falsification allegations, and recognized their materiality to the issue of management integrity, a central subject of the hearings. The NRC Staff, however, discouraged the parties from pursuing the matter because of a pending criminal investigation. In effect, hearings on this issue were postponed by the Licensing Board, which issued a favorable determination on management integrity, but reserved judgment on the leak rate falsification issue. The criminal investigation eventually led to an indictment and conviction of Metropolitan Edison, the licensee,
It should be noted preliminarily that I am not the first to suggest that public hearings are necessary to develop significant issues left unresolved by the 1981 hearings. Many Pennsylvania public officials have consistently urged further public hearings.
Public controversy may very well surround nuclear power issues for years to come, but this is precisely why public hearings are so important, and have been mandated by Congress. Where the elected representatives of the people most immediately affected ask that matters as serious as a criminal conviction of the licensee be investigated in an open, public hearing, considerable caution should be employed before the issue is allowed to be adjudicated behind closed doors.
The majority concludes that because in its view restart of TMI-1 does not constitute a license amendment, there is no statutorily prescribed right to a hearing on management integrity issues. It further holds that the Commission did not abuse its discretion in refusing to reopen the record for further hearings on new evidence of management misconduct. I respectfully disagree with both determinations. First,
It is important to make clear that two different standards govern this case. Where the Commission defines an issue as material to a license amendment proceeding, § 189(a) applies, and "parties need only show that their `interests may be affected'" in order to receive a hearing on that issue. San Luis Obispo Mothers for Peace v. Nuclear Regulatory Comm'n, 751 F.2d 1287, 1316 (D.C.Cir.1984); Union of Concerned Scientists v. United States Nuclear Regulatory Comm'n, 735 F.2d 1437 (D.C.Cir.1984). The duty to provide a § 189(a) hearing on issues material to a license amendment decision is mandatory; on review, therefore, we are not overseeing an exercise of discretion, but enforcing a ministerial duty. If the Commission resolves such an issue without a public hearing, its action is reversible as "not in accordance with" the statutory dictates of § 189(a).
A different standard applies where a hearing has been completed, the record has been closed, and parties seek to have it reopened for consideration of new evidence. Because there is an interest in finality, and because new evidence will almost inevitably arise where, as here, there is a considerable time lapse between the close of hearings and issuance of a Commission order, the standard for reopening "imposes a substantially more onerous burden on parties." San Luis Obispo Mothers for Peace, 751 F.2d at 1316. In order to obtain reopening for consideration of new evidence, petitioners must show that their new evidence is (1) timely; (2) material, in the sense that it would have resulted in a different outcome had it been known earlier; and (3) safety-significant. Id. Where the Commission exercises its discretion and refuses to reopen a closed record to consider new evidence, it is appropriate to reverse only where we conclude that the Commission has abused its discretion. San Luis Obispo Mothers for Peace, 751 F.2d at 1317-18.
Petitioners contend that because the Commission defined management integrity as a material issue to a license amendment determination, all matters pertaining to integrity require resolution by a § 189(a) hearing. The majority concludes that the restart order is not a license amendment, despite admissions to the contrary from the Commission itself as well as the licensee.
With the exception of the leak rate issue, however, the hearings on management integrity have been conducted and closed. Thus, petitioners must meet the more stringent reopening standard in order to obtain hearings on the new evidence that they raise, because they have already received
As the majority notes, the Commission's treatment of allegations of pre-accident leak rate falsification at TMI-2 constitutes "by far the most important" of the issues to be addressed on appeal. Leak rate tests measure leakage from the reactor coolant system. They are to be conducted every 72 hours, and where they indicate leakage in excess of one gallon per minute (gpm), the reactor must be placed on "Hot Standby" for six hours and "Cold Shutdown" for the next thirty hours. Harold Hartman, a control room operator at TMI-2, alleged that for several months prior to the March 1979 TMI-2 accident it was difficult to obtain leak rate data under the one gpm threshold, yet the facility was never put on standby or shutdown. Hartman explained that instead he and other control room operators, with the knowledge of supervising management, customarily repeated the leakage tests until they obtained a good rate (by covertly adding water or hydrogen to the testing system) and threw out bad test results.
The widespread nature of leak rate falsification was brought to light by Hartman in a May 1979 interview with the NRC Staff and in a deposition several months later. It was not until Hartman made his allegations publicly, however, in a television program in March 1980, that the NRC and the licensee began to investigate his charges. The NRC Staff halted its investigation after just one month, when the Department of Justice (DOJ) undertook its own investigation.
When the hearings on management integrity were conducted in 1981, the parties and the Licensing Board knew of the Hartman allegations. The issue was not developed in those hearings however, because,
In my view, both the Commission and the majority have applied the incorrect standard. The restart order promulgated by the Commission constitutes a license amendment, and the Commission's own initial actions and orders defined leak rate falsification as a material issue. As such, § 189(a) mandates that affected parties receive a hearing before the matter is decided.
The purpose of § 189(a) is to provide a public hearing upon request whenever the scope of a nuclear reactor's authority is altered by "the granting, suspending, revoking, or amending of any license...." 42 U.S.C. § 2239(a) (1982); see also Union of Concerned Scientists, 735 F.2d at 1446-47. Congress has insisted upon retaining the statutory public hearing requirement in the face of NRC requests to eliminate it. Id. The case law furthers this congressional intent by requiring that all issues material to a license amendment determination be subject to a § 189(a) hearing upon a showing that petitioner's "interest may be affected." San Luis Obispo Mothers for Peace, 751 F.2d at 1307, 1316; Union of Concerned Scientists, 735 F.2d at 1443; Sholly v. United States Nuclear Regulatory Comm'n, 651 F.2d 780, 790 (D.C.Cir.1980), vacated on other grounds, 459 U.S. 1194, 103 S.Ct. 1170, 75 L.Ed.2d 423 (1983).
Two questions are raised by petitioner's § 189(a) claim: (1) is this a license amendment proceeding; and if so, (2) is the leak rate falsification issue "material" to the proceeding.
The majority disposes of the § 189(a) claim on the first ground, concluding, despite agreement to the contrary by all parties, that the restart order does not amount to a license amendment. It contends that restart involves only the lifting of a license suspension, and not a license amendment. Although it cites no authority for this proposition, the majority apparently relies on San Luis Obispo Mothers for Peace. The court in that case held that the lifting of a license suspension, without more, does not trigger the § 189(a) hearing requirement, at least where such action simply reimposes the original license requirements and "does nothing to alter the original terms of a license." 751 F.2d at 1314.
The Commission's action here, however, is not a simple lifting of a license suspension. To suggest that the restart order "does nothing to alter the original terms of [the] license" is disingenuous. The restart order imposes 155 new conditions on a nominally different licensee. While there may be some situations in which the imposition of a few minor conditions would not amount to an amendment requiring a
The purpose of a license is to set the legal terms under which a utility may operate a nuclear reactor. Title 42 U.S.C. § 2131 (1982) makes it unlawful to operate a nuclear reactor "except under and in accordance with a license issued by the Commission." It would appear to be beyond dispute that TMI-1 can no longer be operated "in accordance with" the terms of its original license.
If the licensee now sought to operate TMI-1 according to its original license terms, it would violate the 155 new conditions imposed. It is only under these conditions that "reasonable assurance" of safety exists, and it is only under these conditions that the licensee is authorized to operate. Since the original license is invalid, and the legal terms governing the operation of TMI-1 have been significantly altered, the license has been amended, and the hearing requirements of § 189(a) attach.
Once it is determined that the license has been amended, all issues "material" to that decision must be subject to a public hearing with a decision rendered on the record. Union of Concerned Scientists, 735 F.2d at 1444 n. 12. The Commission's original orders defined management integrity and competence as an issue material to its restart determination. CLI-79-8, 10 NRC 141, 143 (1979), CLI-80-5, 11 NRC 408 (1980); CLI-81-9, 14 NRC 304 (1981). When the Appeal Board ordered hearings on leak rate falsification because the Staff and Licensing Board had postponed the hearings, it stated:
ALAB-738, 18 NRC at 189-90 (footnotes, citations, and cross-references omitted).
The Commission rejected petitioner's § 189(a) argument on the ground that the requisite hearings had been completed, but did not address the fact that inquiry into leak rate falsification had been foreclosed.
Even if it were concluded that the reopening standard, rather than § 189(a), should be applied to the TMI-2 leak rate falsification issue, I would hold that the Commission abused its discretion in refusing to reopen the record on that issue. The extra-record evidence upon which the Commission relied in deciding that a hearing was not required is insufficient in light of the importance of the matter at hand. As the majority observes, Maj. Opinion at 735-736, the Commission reached its decision in reliance on a statement by the United States Attorney at the sentencing hearing, which purportedly exculpated William G. Kuhns, Chairman of the Board of GPU and Herman M. Dieckamp, GPU President. This statement, however, is negative rather than affirmative. The U.S. Attorney stated only that the evidence "does not indicate" that certain persons were involved; he did not declare that the evidence indicated that the listed persons were in fact not involved. In addition, neither the Court nor the Commission is privy to the basis for the statement, because the grand jury investigation is secret. Perhaps most importantly, the statement was made as part of a guilty plea hearing, and as such may be the compromised result of a plea bargain agreement. It is curious that at the same time that the corporation pleaded guilty, presumably through a decision of its Board of Directors, the United States Attorney issued a statement purportedly exculpating all directors and officers of the defendant's successor, GPU Nuclear Corporation, as well as all directors of the defendant corporation itself, Metropolitan Edison. Given these inconsistencies, and the lack of any evidentiary explanation to support the United States Attorney's conclusory statement, I believe the Commission abused its discretion in relying upon that statement.
The Commission similarly abused its discretion in rejecting without a hearing all charges that Michael Ross, Manager of Operations at TMI-1, may have been implicated in the TMI-2 leak rate falsification. The Commission presumed that all TMI-2 operators and supervisors were aware of the falsification, CLI-85-2, 21 NRC at 299 n. 23, but at the same time dismissed as mere speculation the claim that Ross, who attended monthly TMI-2 supervisor's meetings, may also have known. Id. at 299, 313. Ross was cross-licensed at TMI-2, exchanged duties with the TMI-2 Manager of Operations, and apparently was in daily contact with the TMI-2 Manager. Id. at 295. Leak rate falsification occurred on a daily basis from January 1979 to March 1979, and for a significant period prior to 1979. Several operators testified that Ross, who was a stickler for detail, must have known about the falsification. Investigative Interview of Robert William Flannagan, Jr., TMIA App. p. 843; Investigative Interview of Tex Howard Acker, TMIA App. p. 847, 850; Investigative Interview of
With respect to the remaining issues, the Commission applied the proper reopening standard, but I believe that it abused its discretion in refusing to reopen the record to consider allegations concerning the inaccurate Keaten Report and the Notice of Violation (NOV) response. In my view, this issue raises sufficient questions concerning the integrity of current management personnel to warrant reopening the record for a further hearing.
The Keaten Report was the result of an internal investigation conducted by the licensee into certain aspects of the accident. The Report was prepared by a task force headed by Robert Keaten, currently Director of GPU Nuclear Engineering Projects, and Robert Long, now GPU Nuclear Vice President for Nuclear Assurance. The Report went through several drafts, and petitioners allege that a particular change was made in order to conform the Report to licensee's inaccurate response to a Notice of Violation issued by the NRC. The licensee's response stated inaccurately that the licensee's failure to follow certain procedures regarding a power operated relief valve did not delay recognition of the accident. The Keaten Report had originally contained accurate information that contradicted this disclaimer. Drafts of the Keaten Report and the NOV response were circulated among high-level GPU management, including R.C. Arnold, then licensee's Chief Nuclear Officer, and Herman Dieckamp, GPU President.
The inconsistencies between the Keaten Report and the NOV response on an issue directly relevant to the accident itself raise serious questions about the integrity of management, particularly Dieckamp and Arnold. The NRC Staff itself concluded, after reviewing the investigation into this matter, that "statements were made by the licensee in its response to the NOV that were neither accurate nor complete and that were contrary to other information in the possession of the licensee." NUREG-06809, Supp. No. 5 at 8-19. It concluded further that responsibility must be borne by, among others, Dieckamp, "who reviewed the response before it was submitted and chose `not to intervene.'"
This information did not warrant reopening, according to the Commission, on the ground that it was reasonable for management to rely upon Ed Wallace, a licensing manager who originated the false statements. It does not appear appropriate for the Commission to overlook so casually the actions of management as high as the President of the parent company.
In holding that no further hearings are necessary, the majority emphasizes that extensive hearings have already taken place, and that our scope of review of NRC agency action is narrow. I would not dispute that extensive hearings have been conducted, covering and resolving many areas of concern. Nor do I dispute that the scope of our review is circumscribed. So long as significant issues of integrity remain unexamined, however, I cannot conclude that the hearings were sufficient in all respects. The majority concedes that "the NRC did not actively pursue the matter [of leak rate falsification at TMI-2] and may have at least implicitly discouraged petitioner from doing so." Maj. Opinion at 733 n. 16. It is no response to state that 155 days of hearing were held, when it is admitted that none of those hearing days concerned the issue that ultimately led to the licensee's criminal conviction for safety violations.
Although considerable deference must be accorded to Commission decisions, that deference must not be absolute. The decision by the Commission to forego hearings on management integrity is not the type of scientific judgment involving technical expertise that the Supreme Court has said requires special deference. See Baltimore Gas & Electric Co. v. Natural Resources Defense Council, 462 U.S. 87, 97, 103 S.Ct. 2246, 2252, 76 L.Ed.2d 437 (1983). On the matter of management integrity and character, courts would seem to have no less expertise than administrative agencies.
In addition, we are not asked to review the agency's decision on the merits of the licensee's integrity, but only its procedural decision not to afford a public hearing before reaching judgment on this issue. Thus, I do not recommend that the reactor not be restarted at all, but only that it not be restarted without further hearings on management integrity. While it is true that Congress assigned to the NRC responsibility for making "risk assessment and policy choices", Maj. Opinion at 740, it is also true that Congress established legal procedures assuring public hearings that are capable of, and require, judicial enforcement. See, e.g., Union of Concerned Scientists, 735 F.2d 1437. Where Congress demands a mandatory public hearing, it is the court's duty to ensure that such a hearing takes place. I respectfully suggest that the refusal to hold such a hearing is at odds with § 189(a), and is also an abuse of discretion under the reopening standard. I would therefore remand for limited hearings on leak rate falsification and on the Keaten Report allegations.
In adopting a public policy in favor of nuclear power development, Congress created a regulatory process designed to allay the public's concern about accidents with potentially devastating consequences. The case of Three Mile Island is a fundamental test of that process. The accident at TMI-2 was the most serious in the nuclear power industry's history. Evidence of leak rate falsification by the licensee was strong enough to support a conviction in federal court. While many of the individual targets of the misconduct allegations are now barred from TMI-1, the evidence petitioners seek to present bears directly on the integrity and competence of current TMI-1 management, including an official with central responsibility for public health and safety. Yet, because the grand jury's investigation was secret, and because of the Commission's decision, none of this evidence has ever been the subject of a public hearing.
It is true that regulatory proceedings can not go on interminably. It is also true that to some extent, the Commission must rely on its licensees in the daily operation of reactors. For just this reason, however,
Even were Bellotti persuasive, this case is distinguishable. In this proceeding, unlike in Bellotti, the Commission broadly defined the material issues to include the necessity for and sufficiency of conditions suggested by NRC Staff in the hearings to deal with management integrity problems. CLI-79-8, 10 NRC 141, 148 (1979). Thus, interested parties include those who oppose any conditions and those who oppose restart subject to the conditions imposed.
Whether the Commission would have abused its discretion had it chosen to restrict the scope of the proceedings as it did in Bellotti or San Luis Obispo Mothers for Peace, 751 F.2d at 1307, is not before us, because the Commission did not do so. This case is therefore more closely analogous to Union of Concerned Scientists, where the Commission sought to deny a hearing on an issue which the Commission itself had effectively defined as material to the licensing proceeding. 735 F.2d at 1443 (distinguishing Bellotti). The court there held that § 189(a) requires hearings on such material issues. The Commission in this proceeding has never suggested that leak rate falsification is not material to the management integrity question.