ML19331B042
| ML19331B042 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 10/05/1973 |
| From: | Duflo M NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| ALAB-147, ALAB-152, NUDOCS 8007250740 | |
| Download: ML19331B042 (15) | |
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THIS DOCUMENT CONTAINS P00R QUAUTY PAGES UNITED STATES OF AMERILn ATCMIC ENERGY CCIO1ISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Dr. John H. Buck, Member William C. Parler, Member
)
In the Matter of
)
)
CONSUMERS POWER COMPANY
) Dockat Nos. 50-329
)50-33C (Midland Plant, Units 1 and 2)
)
)
Messrs. Judd L. Bacon, Jackson, Michigan and Harold F.
Reis, Washingten, D.C.,
fc.
the applicant, Consumers Power Co.
Mr. David E. Kartalia for the AEC Regulator /
Staff.
MEMORANCUM AND OPIER october 5, 1973 (ALAB-152)
Poth the applicant and the regulatory staff have accepted the invitation extended in ALAB-147, RAI-73-9 _
(September 18, 1973) to seek reconsideration of our holding in Part IV thereof. That holding was to the effect that, at least as it had been represented to us, the quality assurance (OA) organization of the architect-engineer for the Midland f acility (Bechtol) failed in i
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. one specific respect to comply with the requirements of Appendix B to 10 CFR Part 50.
The defect which we found pertained to the work relationship between Bechte*'s quality control engineers and its Project Superintendent.
It appeared from Bechtel organization charts which had been submitted to us by the applicant that those engineers report to the Project Field Quality Control Engineer who, in turn, reports to the Project Superintendent. In view of the cost and scheduling responsibilities of the Project Superintendent, we concluded that this arrangement could not be squared with Section I of Appendix B -- which in relevant part provides:
The authority and duties of persons and organi-zations performing quality assurance functions shall be clearly established and delineated in writing. Such persons and organizations shall have sufficient authority and organizational freedom to identify quality problems; to initiate, recommend, or provide solutions; and to verify implementation of solutions. In general, assurance of quality recuires managerent measures which provide that the individual or group assigned the responsibility for checking, audit-ing, inspecting, or otherwise verifying that an activity has been correctly performed is inde-pendent of the individual or croue directly responsible for performing the specific activitv.
[ Emphasis supplied)
Neither of the petitions for reconsideration persuades us to change our opinion that, if in fact the quality control engineers report to the Project Superintendent (albeit through the Project Field Quality Control Engineer),
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t there is a lack of full compliance with the requirems :cs of Appendix B.
Thus, to the extent that they seek an alteration of our interpretation of Appendix B, the petitions are being denied. We are told by the appli-cant, however, that, contrary to what we had previously been led to believe, the Project Superintendent does nou exercise any meaningful degree of supervision over the quality control engineers.1/ The relief which we are now ordering takes into account the new assertions in this regard.
I As we noted in Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAD-128, RAI-73-6 399, 409 (June 13,1973), and as its terms clearly reflect,Section I of Appendix B embodies the fundamental principle that those charged with the function of assur-ing the quality of particular work must be independent of the individual or group who have direct responsibility for performing that work. Neither the applicant nor the staff contends otherwise or minimizes the importance of
~1/ While not going into the matter in as much detail, the staff also suggests that the cuality control angineers are independent of the Project Superintendent "to a significant extent".
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4 such independence to the proper execution of a CA program. What they do insist, however, is that the phrase "directly responsible", as used in Section I, should not be taken as et racing an official such as the Bechtel Project Superintendent here involved, even though he may be accountable for the cost and schedulin-aspects of the various phases of construction.
1.
We can readily agree that the Commission could not have intended "directly responsible" to encompass every company official who might have some measure of responsibility for the cost and scheduling of censtruction of the particular project at issue. As the applicant and the staff correctly observe, such an expansive reading of that phrase would render compliance with Section I a practical impossibility. For inevitably there will be one or more officials at the pinnacle of the company organization -- if no one else, its President -- who in an ultimate sense will be responsible for both the per-formance of the construction activities and the assurance that those activities are being properly carried out.
The conclusion that, as the staff puts it, "it is not possible to achieve within a single organization absolute separation of those who perform activities and l
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those who pass upon the acceptability of such perforn-ance" does not, however, dispose of the question whic.
is presented here. What we need decide is not the feas;-
bility or necessity of drawing an impregnable wall between QA personnel 2/ and those top-level management officials who have broad, general responsibility for the proper conduct of all facets of the company's operations. Rather, the issue before us is whether, giving due regard to its underlying objective,Section I permits a situation in (i.e., are which employees having a QA function report to under the direction and control oO a middle-management field of ficial who (1) is concerned at any particular time with only the single project to which he is then assigned; and (2) is held accountable for the on-schedule progress of the construction work on that project.
We think the mere statement of the question provides its answer. An interpretation of Section I which would countenance such a situation would severely undercut the Section's plainly stated purpose to ensure that the
" persons and organizations performing quality assurance functions * *
- shall have sufficient authority and organizational freedom" to perform their crucial functions
,2/ As indicated in ALAB-147 (R.sI-73-9 at
, fn. 11) we are employing the term "QA" to embrace both quality assurance and quality centrol.
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It well might b-that, despite his overriding interest in the completior of each phase of construction without untoward delay, a project superintendent would not undertake affirmatively to influence the manner in which QA personnel subordinate to him discharged their functions.
But, at the very least, his position in the chain of command vis a vis that of any QA personnel placed under his direction could be expected to produce a chilling effect upon the institution or recommendation by the latter of any QA action which might put the project behind schedule.
This is one of the very evils to which Section I appears to be addressed.
2.
Our continuing conviction that, for the purposes of Section I, the Bechtel Project Superintendent must therefore be regarded as a person "directly responsible for performing the specific [ construction] activity" is not affected by the consideration that there are several supervisory levels in the construction group which come between that Superintendent and the craf tsmen who (e.g., various types of fura-are actually doing the work j
men and lower-ranking superintendents). In stressing this fact, the applicant and the staff seem to be suggesting i'
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- that, by reason of these intermediate supervisory per-sonnel, the Project Superintendent must be deemed to possess, at most, indirect responsibility for the performance of any soecific construction activity at the site.
By giving the narrowest possible scope to " direct" and " specific", one could, of course, conclude that, in the case of welding activities for example,Section I of Appendix B requires only that the quality control engin-eers detailed to inspect the welds be independent of the welders themselves -- i.e.,
the persons actually perfor=-
ing the work.2/ In the interpretation and application of an AEC regulation, however, we perceive no mandate to accord the language employed by the Commission the most restrictive reach which a lexicologist would find accept-able. Rather, where several alternative interpretations are possible, we'should make that choice which ccmes closest to fulfilling the regulation's objectives. This is particularly so if the regulation is concerned, as is Appendix B, with activities having manifest safety implications.
In this instance, no matter by how manylayers of
_3/ As will be seen, the applicant does urge this general result on the basis of another Section of Appendix 3.
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8-supervision he may be separated from the craf tsmen, the inescapable fact remains that the Project Superintendent has a significant area of responsibility insofar as the perf.. r.ance of the construction work on his project is concerned; and has a most immediate interest in avoiding scheduling delays and the resultant incurring of additional expense. Certainly the fact that work is actually performed by others does not mean that the direct responsibility for the work resides exclusively with the performer. But even if, in some contexts, the Project Superintendent's responsibility could be thought of as " indirect", within the framework of Appendix B it does no violence to the English language to treat it as being " direct".
Indeed, treating his responsibility as indirect for the purpose urged by the applicant and staff would clearly do violence to the fundamental principle of " organizational freedom to identify quality problems" enunciated in Section I.
3.
The applicant's reliance upon Section X of Appendix B (a reliance in which the staff seemingly does not join) is likewise unavailing. In relevant part, that Section stipulates that the inspection of activities affecting quality shall be performed by individuals other than those who perform the activity being inspected. But this sensible requirement hardly can be converted, as the applicant would do, into a limitation on the ambit of the entirely discrete Section I.
It just does not follow from the fact that it is g permissible for the craftsmen who perform the work also to inspect it, that it is perfectly acceptable for the inspectors to be i
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- subject to the direction of persons on higher levels in the construction group who have cost and scheduling responsibilities.$/
4.
No claim has been made to us of any administra-tive imperative that the Project Superintendent be able to exercise direction over the activities of the quality control engineers.EI Moreover, it appears that at least some other major architect-engineer firms have enceuntered no serious dif ficulty in establishing QA organizatior.s which are wholly independent of the construction group.
- See, e.g., charts following p. 17.1.5-$2 of the Prelim-inary Safety Analysis Report in Virgi'nia Electric and Power Co. (Surry Power Station, Units 3 and 4), Docket Nos. 50-434 and 50-435; and p. 17.1-81 of the Preliminary e
safety Analysis Report in Texas Utilities Generating Co.
(Comanche Peak Steam Electric Station), Docket Nos.
50-445 and 50-446.
It thus cannot be said that our read-ing of Appendix B calls upon Bechtel to do the impossible, or even something at odds with settled industry practices.
4/ A similar non secultur underlies applicant's reliance upon AEC regulatory guide 1.28, and the.
material referred to therein. In addition, it might be noted that this regulatory guide does not have the force of a Ccmmission regulation and, therefore, cannot alter the terms of Section I'to Appendix B.
~5/ Indeed, as is discussed later in this opinion (infra,pp.12-13), the applicant disavows the i
existence of such authority in the Project Superintendent.
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For the foregoing reasons, we adhere to our ALAB-147 interpretation of the requirements of Section ;
of Appendix B -- namely, that that Section "makes unac-ceptable an arrangement under which euality control engineers are responsible to an official possessing such duties as those assigned to the Project Superintendent here-involved".
RAI-73-9 at ___. Anticipating that we might not accept its position as to the meaning of Section I, the staff has included in its petition for reconsideration an alternative request that we certify the matter to the Commission as a major and novel question of law.
While 10 CFR 2.785 (d) (1) gives us the authority to take this step, we decline to do to.
In order to certify, we would first have to withdraw our resolution of the Appendix B question.5[ Such a withdrawal would carry with 6/ Under the Rules of Practice, a certification involves the submission of a legal issue to a higher tribunal for its consideration, without a ruling having been made on that issue by the certf-fying body. In contrast, a referral involves the submission to the higher tribunil of a ruling which the inferior body has mades the F arpose of the referral being to obtain a dete;mination of the correctness of that ruling. Tht Rules of Practice do not appear to contemplate the referral of rulings of this Board. This is doubtless because the Com-mission has the power to review sua sponte deter-
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minations which we make, whether contained in a final or in an interlocutory order. In this con-noction, Section 2.786(a) of the Rules expressly provides for the exercise of that power where, in the Commission's judgment, we may have misconstrued a regulation having significance to t,hc public health and safety.
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.. it an implication that we entertain substantial doubt as to what Section I means as applied to the present came
-- an im'lication which would be entirely unwarranted.
p Further, we are far from clear that, in fact, a major issue of law is involved. In the totality of circum-stances, we perceive no good reason why it cannot be lait to the Commission to decide for itself, upon its toutine examination of our ruling, whether it should exercise its review power.
III In ALAB-147, we left it open to the' applicant and the staff to challenge not merely the correctness of our apprehension of the requirements of Appendix B but, as well, our understanding of the present Bechtel CA organi-zation. As previously noted, that understanding was derived from Bechtel organization charts which were fur-nished to us by the applicant itself. It appeared cle srly from one of those charts that the organizational scheme contemplated that the Project Superintendent would have
" functional supervision" of the Project Field Quality Control Engineer -- who, in turn, supervises the quality control engineers performing the actual inspections.
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The applicant now asserts, however, that, in reality, the quality control engineers are wholly inde-pendent of the Project Superintendent insofar as hiring, dismissal, trairing, assignment and pay are concerned.
All of these matters are, according to the applicant, determined by the Chief Field Quality Control Engineer (who is ircated in San Francisco) upon the recommendation of the Project Field Quality Control Engineer. In this connection, we are informed that the Project Superintendent's advice is solicited only respecting the total number of quality control engineers necessary for the work planned.
As for performance evaluations and salary increases, the applicant is most emphatic in its insistence that the requisite determinations are made within th.e QA organi-zation -- and that the project construction organization does no more than to assure that any salary increases recommended by the Project Field Quality Control Engineer are "within the limits established by Bechtel's personnel policy,for the various pay grades, and within governmental wage guidelines". Any conclusion that a particular increase would not fall within such policy limits and guid211nes requires the concurrence of the Chief Field Quality Control Engineer.
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2.
Additionally, the applicant goes into the question of the power of tie Project Superintendent to direct the activities of 'he quality control engineers.
We are referred to the fs~ct that Bechtel's " current" Field Inspection Manual authorizes (in Section 3.8) the Project Field Quality Control Engineer to issue stop-work orders; and we are informed that such orders cannot be counter-
[ The Bechtel Manual manded by the Project Superintendent.
is also cited for the proposition that the Project Superin-tendent cannot either (1) direct that a quality control inspection be by-passed, or (2) proceed with construction beyond a particular control point unless the inspections J
called for at that point have been properly completed.
3.
If all of there representations are well-founded, the actual relationship between the Project Superintendent and the quality control engineers is, of course, quite different from that suggested by the Bechtel organization o
charts in our possession. The picture which the applicant
]/ The portion of the Manual quoted to us states that the authority to issue a step-work order is to be
" exercised through the Project Superintendent".
We assume that this merns simply that the Project i
Superintendent is the company official who is to communicate the order t'o the concerned employees of the construction grc2p, and that this is a minis-terial act on his part.
If " exercised through the Project Superintendent'l had any broader import, the applicant could not hate asserted his lack of authority to counterma:td stop-work orders.
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paints is scarcely one which the term " functional supe -
vision" would readily bring to mind'.E/
We see no necessity to attempt ourselves to resolve the apparent conflict between what the Bechtel organi-zation charts reflect and what the applicant avers are the real facts.E/ In all events, the Bechtel quality assurance program not only must comply substantively with Appendix B (as we have construed it), but also must include a written and, of course, accurate delineation of the authority and duties of the persons and organizations per-forming CA functions. At best, there is a present failure to have fulfilled this second require =ent.
At worst, the Bechtel organization will require substantial revisions to cbviate any meaningful possibility that the quality control engineers will be subject to improper ccmmand influences in the discharge of their vital functions.
Accordingly, no matter where the truth lies, some form of corrective action must be taken.
8/ According to the applicant, there is a
" functional independence" between the quality control engineers and the Project Superintendent.
-9/ The applicant does not itself offer any explanation for the conflict.
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_ III on the basis of the foregoing, the petitions for reconsideration are denied. The relief which we ordered in ALAB-147 is, however, modified as follows:
Within 45 days of the entry of this order, the regulatory staff is to determine the extent to which, as presently a.
constituted, the Bechtel QA organization is in conformity with the requirements of Sec*lon I of Appendix B to 10 CFR Part 50, as construed in ALAB-147 and herein; require such revision of that organizatlen, if b.
any, as may be necessary to ef fect promptly such conformity; and require such revision of the relevant Bechtel c.
organizacional charts and manuals as may be neces-sary to ensure that they fully and accurately delineate the authority and duties of all Bechtel personnel and organizations performing CA functions.
It is so ORDERED.
For the Atomic Safety and Licensing Appeal Boerd barr.4u k r '@
Margaret E. Du Flo Secretary to the Appeal Board t'
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