ML20072K590
| ML20072K590 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 07/01/1983 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| Shared Package | |
| ML20072K580 | List: |
| References | |
| NUDOCS 8307060344 | |
| Download: ML20072K590 (72) | |
Text
- e t July 1, 1983
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'4 NUCLEAR REGULATORY COMMISSION f6 w h sysc {$-
Before the Atomic Safety and Licensing Board t4M CIT
.s In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, ET AL. ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
APPLICANTS' PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW IN THE FORM OF A PARTIAL INITIAL DECISION SHAW, PITTMAN, POTTS & TROWBRIDGE Jay E. Silberg, P.C.
Harry H. Glasspiegel Counsel for Applicants l
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APPLICANTS' PROPOSED FINDINGS .
OF FACT AND CONCLUSIONS OF LAW IN THE FORM OF A PARTIAL INITIAL DECISION Pursuant to 10 C.F.R. 5 2.754(a)(1), The Cleveland Electric Illuminating Company (CEI), acting for itself and as agent for Duquesne Light Company, Ohio Edison Company, Pennsylvania Power Company, and The Toledo Edison Company (col-lectively referred to herein as Applicants), submits in the f
form of a partial initial decision Applicants' proposed find-ings of fact and conclusions of law relating to Issue #3 in this proceeding. The proposed findings of fact and conclusions 1
l of law follow the form prescribed by the Atomic Safety and Li-censing Board (the Board).1/
I. Summary This partial initial decision deals with the first phase of a hearing on the application for operating licenses for the Perry Nuclear Power Plant, Units 1 and 2. The decision concerns the adequacy of CEI's quality assurance (QA) program for the control of safety-related contractors at Perry (Issue
- 3).
1/ Memorandum and Order (Concerning Scheduling), September 16, 1982, at 3; Tr. 1868-72.
- s The primary focus of the decision is on CEI's control of its electrical contractor, L.K. Comstock. We admitted issues of material fact on CEI's quality assurance program after re-viewing a September 24, 1982 NRC Staff investigation report (Report No. 81-19) concerning electrical work at Perry. Our purpose in admitting these issues was to determine whether CEI has maintained a quality assurance program that adequately overviews and controls Comstock's activities, and to ascertain whether CEI's QA program provides the necessary assurance that construction deficiencies are properly identified and corrected at Perry. In particular, we were interested in whether CEI's performance in the electrical area suggests programmatic deficiencies in CEI's QA p'rogram, which might cause us to question CEI's control over other safety-related contractors or the safety of the plant's construction either in the electrical area or in other contractor areas.
We have concluded that CEI's QA program has adequately controlled Comstock's activities, and that the program has proven itself to be fundamentally sound. We have identified no programmatic deficiencies in CEI's management of the QA program causing us to question the adequacy of CEI's control over its contractors or safety of plant construction.
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i Our conclusions are based on a review of the history of .
CEI's QA program in the electrical area, beginning with CEI's selection of Comstock as the electrical contractor. We have examined the Staff's 1982 investigation and findings in the light of this history. The evidence shows that as the electri-cal work increased in scope and complexity, CEI increased com-mensurately its QA overview and surveillance of Comstock's activities. After considering CEI's QA organization and staffing, the extent of CEI's auditing and surveillance reviews, the quantity and type of QA findings by CEI and the NRC, the implementation of corrective action, and the extent of senior management involvement in the QA program, we have found no evidence of a breakdown or loss of control in CEI's QA overview of Comstock.
Although the Staff's 1982 investigation report identified a number of noncompliances, all were of a relatively low sever-ity level and were of a type that had been previously identi-fled by CEI's QA program. Moreover, the evidence demonstrates that CEI has been unusually responsive to Staff findings in the QA area.
Because we are satisfied that CEI's QA program has ade-quately controlled Comstock's activities, we have found it un-necessary to explore in detail the application of CEI's QA program in other contractor areas.
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l o , i Accordingly, we have concluded that CEI has satisfactorily .
answered the issues of material fact admitted under Issue #3, and that there remain no outstanding quality assurance issues in this proceeding.
II. Overview of Issue #3 A. Sequence Leading to Issues of Material Fact Applicants filed their operating license application for Perry with the NRC on June 26, 1980. In February 1981, the NRC published a Federal Register Notice of " Receipt of Application for Facility Operating Licenses, Consideration of Issuance of Facility Operating Licenses, and Opportunity for Hearing."2/
This notice provided an opportunity for any person whose inter-est might be affected by the proceeding to request a hearing and file a petition for leave to intervene. Several intervenor groups and individuals filed petitions in response to the Federal Register notice.
By order dated April 9, 1981,3/ the Board made initial de-terminations concerning party status and scheduled a special 2/ 46 Fed. Reg. 12372 (February 13, 1981).
3/ Memorandum and Order (Scheduling Prehearing Conference Regarding Petitions for Intervention), LBP-81-24, 14 N.R.C. 235 (1981).
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l l prehearing conference pursuant to 10 C.F.R. 5 2.751a. The -
l Board convened a special prehearing confe'rence in Painesville, i Ohio on June 2-3, 1981, and thereafter issued a special prehearing conference order on party status, contentions and discovery.4/
Intervenors Sunflower Alliance Inc. et al. (Sunflower) and
, Ohio' Citizens for Responsible Energy (OCRE) have participated I with respect to Issue #3. Although Sunflower is the designated i
lead intervenor for Issue #3,5/ OCRE has also been actively in-volved in the litigation of this issue.
As originally admitted by the Board, Issue #3 stated:
Applicant has an inadequate quality assurance l
program that has caused or is continuing to cause unsafe construction.
We defined this issue as being limited to a CEI stop work order and related NRC immediate action letter, both of which were is-sued in February 1978, and to corrective action and any remedi-al deficiencies related thereto.s/ Despite the limited scope 4/ Special Prehearing Conference Memorandum and Order Con-cerning Party Status, Motions to Dismiss and to Stay, the Ad-missibility of Contentions, and the Adoption of Special Discov-ery Procedures, LBP-81-24, 14 N.R.C. 175 (1981).
5/ Id., 14 N.R.C. at 231; see Memorandum and Order (Concern-ing Procedulal Motions), dated September 17, 1982. ,
s/ LBP-81-24, 14 N.R.C. at 209-212; Memorandum and Order Con-cerning the Status of Ashtabula County and Objections to the Special Prehearing Conference Order, LBP-81-35, 14 N.R.C. 682, 687 (1981).
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o e of the issue, in the interest of full disclosure the Board -
accorded the intervenors broad discovery concerning CEI's qual-ity assurance program.7/
On October 29, 1982, the NRC Staff filed a Motion For Sum-mary Disposition of Issue No. 3. The affidavit supporting the Staff's motion stated that CEI had adequately addressed deficiencies relating to the February 1978 stop work order, and that there were no residual QA deficiencies of a serious nature.8/ After considering the filings of the parties, we granted in part the Staff's summary disposition motion.
In our summary disposition decision, we indicated that we were concerned with apparent deficiencies in CEI's control of the electrical contractor subsequent to the 1978 stop work order. This concern stemmed from our review of an NRC investi-gation report and notice of violation arising from an investi-gation of the electrical area initiated by NRC in October 1981,9/ and related findings in an NRC Systematic Assessment of 7/ See Memorandum and Order (Concerning Late-Filed Conten-tions: Quality Assurance, Hydrogen Explosion, and Need for In-creased Safety of Control System Equipment), LBP-82-15, 15 N.R.C. 555, 556, 564 (1982).
8/ Affidavit of James E. Konklin and Cordell C. Williams in Support of Summary Disposition of Issue No. 3, dated October 22, 1982.
9/ See letter dated September 27, 1982, James Keppler (NRC) to Dalwyn Davidson (CEI), enclosing Notice of Violation (Continued Next Page) t
Licensee Performance (SALP) report dated July 13, 1982.10/ In .
order to resolve questions we had concerning the significance of the findings in Report No. 81-19 and the SALP report, we ad-mitted for trial the following genuine issues of material fact:
The existence, cause, severity, duration and extent of an alleged instance in which appli-cant's quality assurance program failed by not properly controlling its electrical con-tractors.
Whether the alleged deficiencies in properly controlling electrical contractors extend to the proper control of other contractors.
Whether deficiencies in the control of con-tractor acti.vities have resulted in unsafe conditions at Perry.
Whether applicant has an adequate system for periodically reviewing its program for assur-i ing the quality of contractor performance and ascertaining and correcting deficiencies that have arisen, particularly in systems essential to safe plant operation.11/
Our intent in admitting these four issues was to explore fully the implications of the Staff's electrical investigation i
l (Continued) 1 (September 24, 1982) and Investigation Report 50-440/
81-19(EIS); 50-441/81-19(EIS) (Report No. 81-19) (Licensing Board Ex. 3).
(
10/ Memorandum and Order (Concerning Summary Disposition:
- Quality Assurance, Corbicula and Scram Discharge Volume Conten-tions), dated December 22, 1982, at 7-9.
M/ Id. at 9-10.
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l and findings, and to independently determine whether any significant management deficiencies in CEI's QA program were indicated by CEI's performance in the electrical area.
In our Memorandum and Order (Reconsideration: Quality As-surance), dated January 28, 1983, in which we declined to re-consider our December 22, 1982 Memorandum and Order admitting the four issues of fact, we reemphasized that our primary concern was with CEI's QA overview program as applied to Comstock. We noted that we would only consider other specific nonconformances if we found that management's role in QA has been sufficiently suspect -to require that we descend to that further level of detail.12/
B. Prefiled Testimony and Evidentiary Hearing Pursuant to our Memorandum and Order (Procedural Matters Affecting the Hearing), dated April 18, 1983, direct testimony was filed on May 2, 1983, by Applicants 11/ and the NRC Staff.14/ Neither Sunflower nor OCRE filed testimony or 12/ Memorandum and Order (Reconsideration: Quality Assur-ance), dated January 28, 1983, at 9; see also Tr. 1465.
13/ " Applicants' Testimony of Murray R. Edelman and Gary R.
Leidich on The Cleveland Electric Illuminating Company's Quali-ty Assurance Program for Control of Safety-Related Contractors At Perry Nuclear Power Plant'(Issue #3)," dated May 2, 1983, following Tr. 1031 (hereinafter Edelman/Leidich Testimony).
14/ " Testimony of NRC Region III on the Quality Assurance Issues of Fact Contained in the Licensing Board's Order of (Continued Next Page)
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presented witnesses on Issue #3.
As indicated in Applicants' prefiled testimony, Mr.
Edelman is CEI's Vice President, Nuclear Group. As such, he has the overall management responsibility for the Perry Project. The various Perry Project department managers, including the QA manager, report to Mr. Edelman. He has worked at Perry since 1972 in various management capacities. Mr.
Edelman was the Perry QA Manager from 1978 to 1981, and in that capacity was responsible for CEI's QA management response to the February 1978 stop work order.15/ Mr. Leidich, who is an electrical engineer by degree and training, has worked at Perry since 1975 in various quality assurance and engineering super-visory positions. Mr. Leidich also is currently serving as
, Secretary of the Nuclear Power Engineering Committee (NPEC) of the Institute of Electrical and Electronic Engineers (IEEE),
and has participated in developing nuclear electrical standards for IEEE.16/
(Continued)
December 22, 1982," dated May 2, 1983, following Tr. 1568 (tes-timony of James E. Konklin, Cordell C. Williams, George F.
Maxwell, and Max L. Gildner, hereinafter Konklin et al. Testi-mony).
15/ Edelman/Leidich Testimony at 2-3, 7-8.
16/ Edelman/Leidich Testimony at 3-5.
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In their prefiled testimony, Messrs. Edelman and Leidich provided a general description of the staffing and organization of CEI's QA program, an explanation of the procedures followed in CEI's QA overview of contractors, and a discussion of the application and findings of CEI's QA program in the electrical area. In response to a request by the Board,17/ Applicants' direct testimony concerning the electrical area was supple-mented at the hearing by Mr. Leidich, who presented a detailed month-by-month historical description of CEI's QA overview of Comstock.18/
The NRC Staff witness panel included four NRC regional inspectors, each of whom has had NRC inspection experience at Perry.19/ Mr. James E. Konklin, the lead panel member, is Chief of a Reactor Projects Section in NRC's Region III office, and is responsible for coordinating and controlling the NRC's inspection and enforcement activities at Perry. Mr. Cordell C.
Williams, Chief of the Region III Plant Systems Section, super-vises electrical NRC inspections at Perry. We note that Mr.
Williams was directly involved in the electrical investigation, conducted between October 27, 1981 and March 19, 1982 20/, and s
17/ Tr. 1006 (Board).
18/ Tr. 1491-1543 (Leidich); see Section III B. infra.
19/ Konklin et al. Testimony at 2-3. i 20/ Tr. 1572 (Williams). l 1
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that his name appears on Report No. 81-19 as one of the principal reviewers of that document.21/ Mr. George F.
Maxwell, currently an NRC Senior Resident Inspector at the Shearon Harris site, was a Region III Quality Assurance Spe-cialist for Construction from 1977 to 1980 and performed ten inspections at Perry during that period. Mr. Max L. Gildner has been the NRC's Resident Inspector at Perry since 1981.
The NRC St'aff's prefiled testimony summarized the results of NRC inspections performed at Perry since 1978. The testi-mony provided details of the Staff's 1981-82 investigation and findings, and discussed the Applicants' corrective action in response to Report No. 81-19.
The Board received limited appearances on May 23, 1983,
, and May 31, 1983,22/ and conducted an evidentiary hearing on May 24-27, 1983, in Painesville, Ohio. We received a site tour of electrical and other areas on June 1, 1983, to view first-hand various plant areas which were discussed at the hearing.
The matters examined which are not discussed in this Partial Initial Decision were considered by the Board and found 21/ Board Ex. 3, Report No. 81-19, at 1; see Tr. 1626 (Williams).
22/ We also granted an unscheduled limited appearance on May 24, 1983. Tr. 1134-36.
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either to be without merit or not to affect our decision herein. In preparing our decision, we reviewed and considered the entire record and the proposed findings of fact and conclu-sions of law submitted by the parties. Those proposed findings and conclusions that are not incorporated directly or by infer-ence in this Partial Initial Decision are rejected as being unsupported by the record of the case or as being unnecessary to the rendering of this decision.
C. Governing Standards CEI's QA program for safety-related work is governed by the criteria in 10 C.F.R. Part 50, Appendix B, of the Nuclear Regulatory Commission's regulations, and by various industry codes and standards.23/ In deciding the issues of material fact we have particularly considered 10 C.F.R. Part 50,
~
Appendix B, Criterion II (Quality Assurance Program),24/ and 23/ Edelman/Leidich Testimony at 12, Attachment 3.
24/ See Memorandum and Order, dated December 22, 1982, supra I n.10, at 5. In that decision, we referenced what we view to be the relevant portions of Criterion II, namely:
The quality assurance program shall provide control over activities affecting the quality of the identified structures, systems, and compo-nents, to an extent consistent with their impor-tance to safety. . . . The applicant shall regu-larly review the status and adequacy of the quali-ty assurance program. Management of other organi-zations participating in the quality assurance program shall regularly review the status and ade-(Continued Next Page)
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Criterion XVI (Corrective Action).2}/ We are not aware of any Commission regulatory guidance elaborating upon Criterion XVI's requirement that adverse conditions and nonconformances be "promptly identified and corrected," and the parties have iden-tified none.2p/ In the absence of such guidance, we have used a reasonableness test, taking into account such case-specific factors as the type and significance of the deficiency, and whether the deficient conditions remain accessible to inspec-tion.
(Continued) quacy of that part of the quality assurance pro-gram which they are executing.
25/ Criterion XVI states:
Measures shall be established to assure that conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances are promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure.that the cause of the condition is determined and corrective action taken to preclude repetition. The identification of the significant condition adverse to quality, l the cause of the condition, and the corrective l action taken shall be documented and reported to appropriate levels of management. (Emphasis added).
2p/ See Tr. 1399-1400, 1594-99.
A final governing principle of the case is that interve-nors are required to do more than simply rehearse deficiency reports (Applicants' or Staff's) in support of their quality assurance contention. "Otherwise, we would create an adverse incentive for reporting deficiencies; and this incentive could seriously impact plant safety."27/ In deciding Issue #3, we have kept this principle firmly in mind and have considered factors such as CEI's QA organization and staffing, the extent of CEI's auditing and surveillance reviews, the quantity 28/ and type of QA findings by CEI and the NRC, the implementation of corrective action, and the extent of senior management in-volvement in the QA program. Other Licensing Board and Appeal Board decisions have followed a similar approach.29/
27/ LBP-81-24, 14 N.R.C. at 211.
28/ Quantity is a difficult factor to apply and must be con-sidered in context. A low number of findings might indicate an inactive QA program, or just the opposite (i.e., a vigilant QA program which is preventing recurrent deficiencies). Likewise, a high number of findings could mean that the QA program is active, or to the contrary, that the QA program has failed to prevent recurrence of deficiencies.
29/ See, e.g., Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-408, 5 N.R.C. 1383, 1387 (1977) (holding that neither the nature nor the frequency of quality assurance infractions and deficiencies noted in NRC I&E Reports over a 16 month period undercut the conclusion that applicants' QA pro-gram was adequate or that good workmanship was employed in the construction of the plant); Consolidated Edison Co. of New York (Indian Point Station, Unit No. 2), ALAB-188, 7 A.E.C. 323, 332-36 (1974) (affirming that "no quality assurance program, (Continued Next Page) 9
III. Relationshio Between CEI and Comstock Applicants presented extensive testimony relevant to their QA overview of Comstock. Some of the testimony was generic, in that it described the programmatic characteristics of CEI's QA overview program for controlling safety-related contractors, -
including Comstock and others. Applicants also gave specific (Continued) however thorough, can guarantee that there will be no errors in design and construction, or failures of equipment, or misoperation in a nuclear plant," and concluding from a review of staff inspection reports and follow-up actions taken by the applicant in regard to discrepancies that the applicant "tried to learn the causes of defects and errors," and that "appli-cant's management reacted with reasonable promptness to make continuing improvements in its quality assurance program and management"); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), Initial Decision LBP , 16 N.R.C. ,
slip op. at 14-15 (October 29, 1982) (holding that applicants' inspection program was adequate, and stating "that there would be more reason for concern about the Applicants' program had no construction deficiencies been found. Deficiencies are, as a practical fact of life, to be expected. The purpose of inspec-tion, and of quality control and assurance programs, is to as-sure that deficiencies are corrected before the facility oper-ates."); and Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), LBP-81-48, 14 N.R.C. 877, 880, 882-83 (1981) (granting applicant's motion for summary disposi-tion of a contention alleging that " Applicant has failed to discover, acknowledge, report or remedy defects in safety re-lated concrete construction," after applicant and Staff affida-vits established, among other things, that deficiencies identi-fied by NRC inspections were "relatively minor, mostly involving problems with QA/QC procedures and documentation,"
and that "[i]n each case, the problem discovered has been corrected by Applicant, and the matter has been closed follow-ing a reinspection by the NRC.").
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testimony on how their overview program was implemented in the i
electrical area. This included a detailed recitation of the major QA findings against Comstock and the corrective actions taken by the contractor.
A. Applicants' General Program CEI manages the Perry Project through an entity referred to as the Project Organization. The Project Organization consists of all CEI and consultant 30/ personnel at the Perry i site. There are now approximately 650 CEI and 700 consultant personnel. Contractors are not part of the Project Organiza-tion.31/
CEI consolidated its entire project organization at the Perry site in 1978. This was done as-part of a major correc-tive action program put into effect following the 1978 stop work order.32/ The Board finds that the post-1978 management changes described in Applicants' testimony reflect significant organizational improvements in Applicants' QA program at an early point in construction.
30/ The consultants provide specific expertise or short-term support to CEI. They are " integrated" into the Project Organi-
- zation. Edelman/Leidich Testimony at 11.
31/ Edelman/Leidich Testimony at 7.
32/ Edelman/Leidich Testimony at 8-9, 15-16.
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r Mr. Edelman presides over the Project Organization.33/ In this role, he has ultimate project responsibility for the qual-ity assurance program. Mr. Edelman testified as to the close organizational and working relationship between his office and those of other senior CEI executives, including the President.
Executive communications were formalized as part of CEI's cor-rective action following the February 1978 stop work order.
CEI instituted formal monthly vice-president meetings and quar-terly management meetings with CEI's Chief Executive Officer j i
and President. In addition, CEI established a special QA ad- l visory group which assists Mr. Edelman on key program l j issues.34/ Also since.1978 the Perry Quality Assurance Manual has contained a policy statement signed by CEI's President,
, which describes and commits CEI to a strong, independent QA program for Perry.35/
The Board concludes from this uncontradicted evidence that CEI's most senior management has been thoroughly involved in the management of the Perry Project, and in particular the 33/ A number of CEI's project management officials (including Mr. Edelman) have significant prior project QA experience. s Edelman/Liedrich Testimony at 10-11.
34/ Edelman/Leidich Testimony at 7-8, 15-16, 23-24.
35/ Edelman/Leidich Testimony at 14, Attachment 3.
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- quality assurance program. We believe that this type of senior i
management involvement is a prerequisite to the successful im-plementation of a nuclear quality assurance program.
Applicants' direct testimony described the organization and staffing of the Perry Quality Assurance Department, the QA systems used by CEI for controlling contractors, and the CEI management tools used for periodically reviewing the effec-tiveness of the QA program.3p/
CEI's Nuclear Quality Assurance Department is headed by the QA Department Manager. He reports to the Vice President, Nuclear Group (Mr. Edelman) and has organizational status and authority equal to the managers of the construction, engineer-ing, and operations departments. Under the QA Manager are various QA sections headed by CEI general supervisors. One of these is the Construction Quality Section (CQS), which has the direct responsibility for QA control of construction contrac-tors such as Comstock. CQS is divided by discipline into four units, one of which is the CQS electrical unit. Separate from CQS is the Quality Auditing Unit, which is responsible for in-ternal audits of the Project Organization as well as contractor audits.37/
3s/ Edelman/Leidich Testimony at 8-15, Attachment 2.
37/ Edelman/Leidich Testimony at 8, 16, 18-19, Attachment 2.
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Since 1978 CEI's QA Department has grown from fewer than 50 to approximately 200 personnel. The CQS electrical unit has grown from two in 1977 to 12 currently. CEI's personnel per-form "second-line" surveillance and inspection. "First-line" inspection is performed by the contractors' QA/QC personnel, who currently number in excess of 300. CEI's QA force has been increased at a rate to match the construction activities. Ap-plicants presented uncontradicted evidence that Perry has one of the largest nuclear plant QA departments in the country, and that as of June 1982 it had the best (lowest) ratio of craft to quality assurance / quality control (QC) personnel of any plant under construction.33/ The QA staff has a large number of cer-tified inspectors and auditors. Turnover has been extremely low. Mr. Edelman attributed this to CEI's salary structure, to training and promotion of inspectors, and to CEI's success in attracting experienced personnel with local ties.39/
The Board was favorably impressed with the evidence Appli-cants presented regarding CEI's overall QA staffing and organi-zation. Since 1978 CEI has assembled a significant on-site QA/QC force to oversee contractors at Perry.
33/ Edelman/Leidich Testimony at 9, 17; Tr. 1045-54, 1215-17 (Edelman) 39/ Edelman/Leidich Testimony at 9-10, 19.
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CEI's QA oversight of individual safety-related contrac-tors begins with detailed reviews of the contractor's written QA program and procedures, which must conform to CEI's QA pro-gram. The contractor's program must be approved by CEI before safety-related construction can commence. During construction, CEI continues to review and approve all changes to the contrac-tor's program and procedures.40/
CEI's daily oversight of the contractor's QA/QC program implementation is the responsibility of inspectors and quality engineers (QEs) in the Construction Quality Section. The inspectors and QEs are organized by contractor areas, with a responsible QE and supporting inspection staff assigned to each contractor. The inspectors spend the majority of their time in the field (on the order of 85 to 90 percent) performing sur-veillance and inspection of the contractor's QA/QC work. The frequency and extent of field surveillance and inspection at a particular time is based on factors such as the safety signifi-cance of the activity, the level of construction activity, previous contractor performance, and the extent to which a new type of work or procedure is involved. The inspection results are reviewed by the responsible QE, who also performs " process 40/ Edelman/Leidich Testimony at 13, 19-20.
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l audits" in specified areas, as well as other ongoing QA program l and procedure reviews. The responsible QE participates with a design engineer and contract administrator on a " contract team," which meets regularly to review the status of the con-tractor's program.41/
CEI's QA program-uses formal documentation /close-out mech-anisms, including nonconformance reports (NRs),
observation / surveillance or audit action requests (ARs),42/
corrective action requests (CARS),43/ and stop work notifica-tions (SWNs). Each is recorded by the initiating inspector or auditor, and tracked through the system until close-out. CEI and contractor NRs are tied into a central, computerized CEI NR 41/ Edelman/Leidich Testimony at 9, 16-19, 22; Tr. 1077-83, 1118 (Leidich and Edelman).
42/ When CEI QA personnel identify programmatic or procedural deficiencies not involving plant " hardware," these are docu-mented by CQS personnel as observation or surveillance ARs, or by the Quality Auditing Unit as audit ARs. The Quality Auditing Unit is responsible for the tracking and follow-up of all ARs. A computerized tracking system is used for this purpose. Each unit is responsible for closing out ARs which it generates. Edelman/Leidich Testimony at 21.
43/ If in reviewing an AR the unit that generated it deter-mines that a serious programmatic problem is involved, that !
unit changes the AR to a CAR. The purpose of the CAR is to as-sure that the problem receives increased management attention
-until close-out. All open CARS are identified to'CEI's ;
-managers and the Vice President, Nuclear Group, on a monthly '
basis. Edelman/Leidich Testimony at 21.
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tracking system and monitored by an NR coordinator in CEI's QA Department. Applicants' testimony documented the number of NRs, ARs, CARS, and SWNs issued to date in the electrical area, and the total number of such documents issued to all safety-related contractors.44/
CEI uses a number of different periodic review mechanisms to overview its formal daily inspection and corrective action program. CQS prepares monthly performance analysis reports (PARS) discussing individual contractor peformance. These are based on quantitative and qualitative information collected by the responsible QEs. Significant PAR information is passed up the CEI management chain.45/
Of central importance to CEI's QA overview program are quarterly reports 46/ prepared by the QA Department manager.
Th'ese reports, which were a response to CEI's 1978 QA difficulties, provide detailed summaries of contractor QA per-formance for the quarter. The reports are reviewed at quarterly CEI Chief Executive meetings.47/
44/ Edelman/Leidich Testimony at 20-21; Tr. 1076-77, 1116-22 (Leidich and Edelman).
45/ Edelman/Leidich Testimony at 23; Konklin et al. Testimony at 20-21.
46/ Assessment of Quality Assurance Program Effectiveness for the Perry Nuclear Power Plant, First Quarter 1979 - First l l Quarter 1983 (Licensing Board Ex. 2), identified at Tr. 1256,
! received at Tr. 1259. )
l 47/ Edelman/Leidich Testimony at 16, 24; Tr. 1074-75; Konklin et al. Testimony at 21.
o .
The Quality Assurance Advisory Committee (QAAC), composed of senior CEI managers, the corporate QA managers for CEI's !
consultants, and an outside QA consultant, separately reviews site QA reports and conducts first-hand reviews as part of CEI's overview program. The QAAC then consults with and advises CEI's Vice President, Nuclear Group, regarding its findings.43/ Mr. Maxwell of the Staff indicated that the QAAC was not established in response to an NRC requirement; however, he believes that the committee has been beneficial to the Project.49/
Another aspect of CEI's QA overview is its formal auditing program. CEI created the Quality Auditing Unit in 1980 as an independent QA Department unit reporting directly to the QA Department Manager. This replaced the former auditing arrange-ment, under which audits were performed by the CQS QEs, along with their other responsibilities. The auditing unit conducts annual audits of safety-related contractors, as well as periodic internal audits of the Project Organization's QA pro-gram implementation.50/
43/ Edelman/Leidich Testimony at 16, 24; Konklin et al. Testi-mony at 22.
49/ Tr. 1781-83 (Maxwell).
50/ Edelman/Leidich Testimony at 18-19, 25.
e
,.w . , _ .mr--
These reviews collectively constitute Applicants' periodic review system. Applicants emphasized that their overview mech-anisms are not intended to substitute for the formal inspection and corrective action system (i.e. the NR/AR/ CAR /SWN system).
Further,. Applicants stressed that periodic QA reports are prin-cipally for highlighting problem areas, rather than for de-tailing program areas that are working well.
In response to a Board inquiry, Mr. Leidich illustrated how Applicants' QA process is applied, using the example of
( electrical cable pulling. The first step described was the pre-pull walkdown inspection of the cable tray or duct bank.
Its purpose is to examine for any obstructions that might damage the cable during the pull. In addition to the contrac-
, tor's pre-pull inspection, CEI may formally identify to '.he j contractor a mandatory hold or witness point to enable CEI's QA/QC personnel to perform a second line inspection prior to cable pulling.51/ The contractor must perform 100% coverage of all cable pulling activities. If the pull is complex, CEI would also perform surveillance over all pulling activity.
This decision would be made by the QE, and would be reviewed by his QA management, including in some cases the QA Department 51/ See e.g., Tr. 1509 (Leidich).
l Manager. Both the contractor's and CEI's inspectors prepare ;
inspection reports of their activities, and formally document any deficiencies that are found. That documentation is then reviewed by CEI's QE, and ultimately becomes part of the project's permanent quality records. The QE then prepares reports, generally on a weekly basis, of the status of cable installation activities, including performance evaluations of the contractor. These reports go to the CQS supervisor and then to the QA Department Manager. Information in these reports then is conveyed to senior management through the pre-viously described reporting system.52/
For each of the inspection steps, there are detailed work and inspection procedures. These procedures receive thorough reviews by CEI design and quality engineers prior to being ac-cepted for use. The individual inspectors are responsible for documenting compliance with applicable work and inspection pro-cedures.53/
During the actual cable pull, dynamometers are attached to the c'able. These register. cable tension during the pull and are read by inspection personnel to assure that the tension is 52/ Tr. 1085-89, 1096-97 (Leidich).
53/ Tr. 1094-96, 1099 (Leidich).
r
' within pre-specified limits. Although the manufacturers' engineering values for cable tensions are conservativep4/ any overtensioning is documented on an NR, which then receives en- 1 gineering review. If over-tensioning occurs, the design engineer may direct that the cables be scrapped or may perform additional calculations and may consult with the manufacturer concerning the need for additional tests that might be required to justify the use of the cable as is.EE/
Mr. Leidich also described post-pulling inspections.
These include meggering tests performed by the contractor's inspectors. Their purpose is to measure for possible cable in-sulation deficiencies that may have been caused by faulty pull-ing procedures. After the completion of these tests, the cable is turned over to CEI's inspectors, who perform a review of all documentation. This assures that any deficiencies are properly identified and corrected prior to turnover. At the completion of this second level of review, CEI's nuclear test section per-forms another review of the cable system, which may include an-other meggering test. This would be followed by pre-operational testing.}s/
!4/ 'Tr . 1097-1104 (Leidich).
EE/ Tr. 1107-08 (Leidich).
Es/ Tr. 1104-07 (Leidich).
a 1
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i i
In addition, cable pulling is covered by CEI's formal audit program. Audits are performed at least annually and may be performed more often in specified areas, particularly when there is a concern over contractor performance. There may also be increased auditing when a new work activity begins. Audit checklists are used by the auditors, with input from the quali-ty and design engineers.E7/
The NRC Staff's direct testimony described the Staff's construction inspection program for Perry, and provided a sum-mary of the Staff's inspection findings since the beginning of the project. The NEC reviews Applicants' written QA program and procedures, as well as those of the contractors. The Staff observes, on a sampling basis, the construction and QA activities at the site. This is followed by a review of QA records. The Staff's inpections are intended to assure that the Perry f!A program is identifying and requiring correction of significan: deficiencies.!8/ In addition to the Staff's rou-tine inspection program, the Staff evaluates and investigates allegations and performs special team inspections by regional or headquarter groups such as the Regional Construction E7/ Tr. 1089-93 (Leidich).
18/ Konklin et al. Testimony at 4-5.
)
a 4
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Assessment Team (CAT) review performed at Perry in July and August 1982.59/
From July 1978 to April 1983, the NRC Staff spent over 6000 inspector hours on inspections at Perry. The Staff conducted 95 inspections and identified 64 noncompliances.
There were 13 noncompliances issued in the electrical area.
The total number of noncompliances at Perry was average for construction sites in Region III. The noncompliances identi-fled were not of a serious severity level as defined under NRC enforcement policy guidelines. During this period, the NRC Staff issued no enfcrcement orders and imposed no fines.g0/
The NRC's 1982 CAT investigation occupied 464 inspector-hours and included, among other things, a review of CEI's QA overview program, corrective action systems, in-process inspections, and inspector effectiveness. The CAT review concluded that Appli-cants' QA program appeared to be satisfactory.pl/ Similar findings were made with respect to CEI's overall regulatory performance, in three NRC Systematic Assessment of Licensee Performance (SALP) reports covering July 1979 through September 1982.g2/ The Staff has viewed CEI's corrective actions to be Sy/ Konklin et al. Testimony at 5-6.
s0/ Konklin et al. Testimony at 6-7, 9.
s1/ Konklin et al. Testimony at 10.
g2/. Konklin et al. Testimony at 10. However, the Staff did ,
rate the Perry electrical area "below average" in the 1982 l (Continued Next Page) !
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effective.p3/ Staff witnesses further testified that in their view, all deficiencies identified by the NRC at Perry either have been or will be corrected, so that no unsafe conditions will exist at the time of fuel load or operation.f4/
The Staff's prefiled testimony also discussed Applicants' QA overview system and stated that the system is adequate to assure the quality of contractor performance, including the identification and correction of any construction deficiencies.p}/ The Staff testified that it does not believe (Continued)
Perry SALP report (SALP 2). The rating was based on the find-ings of the Staff's 1981-82 investigation. Id. To avoid a double penalty for findings of Report No. 81-19, and because of the corrective action underway, the Staff did not rate the electrical area in the SALP 3 Report. Tr. 1588-89, 1780 (Konklin), 1834-35 (Williams). Staff witnesses testified that during the SALP 2 period seven construction plants were rated in the electrical area and four of the seven received below av-erage ratings. Tr. 1794 (Konklin). See S V, infra.
93/ Konklin et al. Testimony at 23-24. Mr. Williams testified that based on his experiences CEI "tends to go further" than required. He has found CEI "to be extraordinarily responsible across the board." Tr. 1672 (Williams). See Section V, infra.
p4/ Konklin et al. Testimony at 27.
p5/ Konklin et al. Testimony at 20-24. The Staff's testimony discussed the Applicants' "self-initiated" Institute of Nuclear Power Operations (INPO) evaluation, which found CEI's QA overview program to be satisfactory. Konklin et al. Testimony at 24, 26. At the hearing Mr. Edelman explained the INPO review, which evaluated CEI's QA program as well as other areas of the project. CEI entered INPO QA findings on CEI's AR tracking system to assure proper close-out of the programmatic ,
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(Continued Next Page) l
there has been a loss-of-control of Comstock or other site con-tractors by CEI.ps/
The Board has considered the evidence presentedp7/ con-cerning the effectiveness of CEI's general QA overview program.
Based on this evidence, we find CEI's general program to be an acceptable one. We conclude that CEI's program is comprehen-i sive, and that it provides the appropriate level of assurance that significant construction deficiencies have been and will be adequately identified and corrected, thus eliminating any likelihood of unsafe conditions at the plant.
B. Chronology of CEI's Electrical QA Program Applicants' prefiled testimony summarized CEI's initial selection and QA review of Comstock in 1977, and then discussed CEI's principal QA findings against Comstock, and corrective action taken, since the time Comstock began its work at Perry.fg/ At the commencement of the hearing, the Board (Continued) and procedural findings in the Report. Tr. 1260-65, 1400-06, 1485-86 (Edelman).
ss/ Konklin et al. Testimony at 10-14, 25-26.
p7/ Sections III B., IV and V infra focus on the specific ap-plication of the program with respect to Comstock.
sg/ Edelman/Leidich Testimony at 26-32.
requested a more detailed " play-by-play" discussion of Appli-l cants' overview program in the electrical area.s9/
Applicants answered the Board's request with a detailed presentation by Mr. Leidich.20/ In response to our recommenda-l tion,21/ Applicants' proposed fir. dings of fact and conclusions of law provided a matrix listing some of the major areas covered by Mr. Leidich's presentation, with accompanying record
] citations. The matrix (which we incorporate as Attachment A to this Partial Initial Decision) summarizes by quarter the number of CEI audits, CEI and Comstock stop work orders, and NRC in-spections'in the electrical area, and records Comstock QA and craft levels, and selected electrical construction completion levels discussed by Mr. Leidich. Although Mr. Leidich's pre-sentation was prepared on short notice, it did serve to fill out the record with relevant information substantiating Appli-cants' and Staff's inspection presence in the electrical area.
As the matrix reflects, Mr. Leidich documented frequent CEI audits and NRC inspections of the electrical area before and after the Staff's 1981-82 investigation. As of September 1981 99/ Tr. 1006-08 (Board).
20/ Tr. 1489-1551 (Leidich).
21/ Tr. 1490 (Board).
9 m -
(i.e., just prior to the commencement of the NRC's 1981-82 investigation), CEI had already conducted 46 audits of Comstock.22/
After the initial preparation, in 1974 and 1975, of the specification for the electrical work at Perry, including an
" attachment specification" describing electrical QA require-
- ments, CEI in 1976 prepared a prospective bidders list with input from CEI's QA Department. CEI held meetings with pro-spective bidders in 1976 and early 1977, and established a qualified bidders list in March 1977. Later in 1977 CEI 4
conducted contractor interviews and site visits and reviewed contractor proposals. In October 1977 CEI conducted a pre-award QA survey of Comstock at Comstock's corporate headquarters, and at the Fermi 2 nuclear site in Michigan where Comstock was performing electrical work, including quality as-surance.73/ CEI awarded Comstock the electrical contract in November 1977.74/
72/ Tr. 1539 (Leidich).
23/ Tr. 1286, 1491-93.(Leidich).
74/ Originally, Comstock was to perform the electrical and QA work, and the major part of the construction as part of a joint venture. The joint venture was dissolved in mid-1980. See Edelman/Leidich Testimony'at 25-26.
6
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CEI's post-award QA review of Comstock procedures began in December 1977. Between December 1977 and October 1978, CEI and Comstock developed Comstock's program and procedures. No safety-related installation work was performed during this period.75/ CEI's February 1978 stop work had no direct effect on Comstock since Comstock was not performing work in the field; however CEI did upgrade the electrical QA attachment specification as part of CEI's overall corrective action pro-gram following the stop work order.75/
In October 1978, Comstock commenced its first safety-related activity with the installation of duct banks and man-holes.27/ As summarized in Applicants' prefiled testimony, safety-related work performed until mid-1980 in the electrical
, area was primarily underground civil ductwork, cable tray hang-er installation, and field placement of equipment. Little complex electrical installation was performed during this period. For example, less than 1% of the safety-related con-duit had been installed as of mid-1980.78/
25/ Tr. 1493-98 (Leidich).
2p/ Tr. 1495 (Edelman).
77/ Tr. 1497-98 (Leidich).
23/ Attachment A.
g .. . s .
Mr. Leidich's presentation provided details which demon-strated to the Board that CEI was providing close QA overview of Comstock's activities during this 1978-1980 period.79/ In 1979 alone, CEI conducted 13 audits of Comstock covering numerous aspects of Comstock's program.g0/ This suggests to the Board an exceptionally close involvement in Comstock's 1
activities by CEI. In 1978, 1979, and the first half of 1980, CEI was identifying and achieving corrective action with regard to Comstock's QC staffing, electrical cable separation criteria, timeliness of audit close-outs, the need for proce-dure clarifications, and other areas.g1/ The evidence clearly indicates that CEI adequately controlled Comstock's activities during this period.
Applicants testified that as the more complex electrical installation work increased in the last half of 1980, CEI shifted the emphasis of its QA overview from program and proce-dure development and review, to surveillance of procedure im-plementation and field installation activities. During this time, CEI documented Comstock conduit installation problems and 79/ Tr. 1497-1510 .(Leidich).
go/ Tr. 1500-06 (Leidich).
81/ Tr. 1497-1512 (Leidich).
4
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took corrective action. Comstock increased and better defined its in-process inspections, and CEI stepped up its installation surveillance.g2/ With the benefit of this intensified QA/QC effort, CEI identified a trend of Comstock misinterpretations of drawings and specifications and directed corrective action, including increased craft training.g3/ In September 1980, as a result of an internal CAR, Comstock began an extensive program for upgraded craft training, which has continued to the present. Also in the last half'of 1980, CEI continued to press Comstock to increase its QA/QC staffing for upcoming work.g4/
In October 1980, CEI met with the President of Comstock and discussed the importance of hiring additional QA/QC staff.g5/
Mr. Leidich testified that there was a substantial industry shortage of qualified electrical inspectors in 1980 and 1981, and that Comstock was actively recruiting for inspectors during this period.gs/ In November 1980, CEI participated in Comstock i
g2/ Edelman/Leidich Testimony at 27.
g3/ Edelman/Leidich Testimony at 27-28.
g4/ Mr. Leidich testified that although the inspector / craft ratios were satisfactory in late 1980 and early 1981, CEI was "trying to get the contractor out in front of the installation" in anticipation of 1981 installation activities. Tr. 1512-13, 1519 (Leidich). See Tr. 1620 (Williams).
g5/ Tr. 1511-13 (Leidich).
gp/ Tr. 1513-14, 1521-22 (Leidich); Edelman/Leidich Testimony at 28. See Tr. 1645-46, 1855-56 (Williams).
l
craft training sessions. In December CEI' audited Comstock's craft training program and identified areas for improvement.g2/
Comstock did increase its QA/QC staff throughout 1981 in response to CEI's. requests, as is reflected in Attachment A; in addition, CEI increased its field surveillance and conducted additional audits of Comstock's surveillance activities and nonconformance system. Mr. Leidich discussed ten CEI audits of Comstock that were conducted in 1981 prior to the commencement of the NRC's 1981-82 investigation. In addition to addressing Comstock's surveillance and NR system, CEI's audits of Comstock reviewed such areas as inspector qualifications, certifications and training; Comstock internal auditing; corrective action documentation; craft training; and the overall implementation of Comstock's QA program. CEI was identifying procedural deficiencies, and corrective action was being implemented.gg/
Based on the foregoing, the Board concludes that Appli-cants' QA program was actively overviewing Comstock's QA pro-gram for the period prior to the commencement of the NRC E2/ Tr. 1514-15 (Leidich).
pg/ Tr. 1518-27.(Leidich); Edelman/Leidich Testimony at 29.
In August 1981, at the beginning of its cable termination activities, Comstock itself issued several internal stop work orders as a result of procedural difficulties with the termina-tions. Tr. 1525 (Leidich).
9 7 -v
=
Staff's 1981-82 investigation. CEI was identifying deficiencies and requiring appropriate corrective action. The majority of deficiencies were procedural in nature; significant construction errors were not involved. In those limited in-stances where items of potential safety significance were de-tected, CEI reported these to the NRC.89/ There is no sugges-tion that unsafe conditions might have existed and gone undetected.
In November 1981, CEI ordered that Comstock stop safety-related cable pulling. Applicants' witnesses testified that the stop work notification was issued because of the accumula-tion of Comstock procedural deficiencies, and because of concerns raised by a joint NRC/CEI observation at the beginning of safety-related power duct bank cable pulling.90/ CEI required Comstock to review thoroughly its safety-related cable pulling program and procedures before lifting of the stop work order in January 1982.91/ CEI subsequently issued stop work 89/ CEI filed 10 C.F.R. $5.0.55(e) reports in January 1980 (cable tray and conduit hanger gusset plates), Tr. 1506-07; September 1981 (cable tray splice bolt torquing requirements),
Tr. 1525-26; October 1981 (cable tray mounting devices), Tr.
1527; and December 1981 (attachment welds on safety-related switch gear), Tr. 1528-29 (Leidich); see Tr. 1543-48 (Leidich).
90/ Edelman/Leidich Testimony at 29; Tr. 1527-28 (Leidich).
91/ Edelman/Leidich Testimony at 29; Tr. 1532 (Leidich).
notifications against Comstock in December 1981, regarding electrical terminations; in February 1982, regarding welding and nondestructive examination techniques; and in March 1982, regarding potential flammability of motor control center materials.92/
Mr. Leidich discussed 20 CEI audits of Comstock in 1982.
These covered a variety of areas, such as cable tray and con-duit installation; raceway separation criteria; corrective actions on cable pulling; document control; storage and mainte-nance; CEI's annual 18 criteria audit under 10 C.F.R. Part 50, Appendix B criteria; and a follow-up audit to the 18 criteria audit.93/ In addition, CEI issued five corrective action re-quests to Comstock during 1982.94/ Also in 1982 CEI established a hold point for closecuts of all Comstock NRs,95/
requiring Comstock, prior to closing out any NR, to formally notify CEI QA/QC personnel, who would then review and approve the proposed close-out.95/ In June 1982, as part of Comstock's 92/ Tr. 1529, 1532, 1534-35 (Leidich).
93/ Tr. 1534-41 (Leidich).
94/ Tr. 1532-33, 1535, 1538-39 (Leidich).
95/ Tr. 1540 (Leidich).
95/ See Tr. 1085 (Leidich).
i -
significant steps to upgrade training, Comstock held craft training workshops in conjunction with the National Electrical Contractors Association and the International Brotherhood of Electrical Workers. The workshops emphasized conduit installa-tion and cable pulling requirements and reviewed applicable QA requirements.97/ Between January 1981 and July 1982 Comstock devoted approximately 15,000 hours0 days <br />0 hours <br />0 weeks <br />0 months <br /> to training its craft and QA/QC personnel.93/ CEI's QA overview continued on an inten-sive basis in early 1983.99/
The Board concludes'that CEI conducted a rigorous QA overview of Comstock from late 1981 through early 1983, and that CEI closely controlled Comstock's work. CEI conducted a steady stream of reviews, including at least 25 audits; and took significant corrective action steps during this period, including issuing four stop work notifications against Comstock. There is evidence demonstrating that Comstock under- I took major corrective action in response to CEI's involvement, particularly in the area of QA/QC staffing, and QA/QC and craft training. We note that Comstock's QA/QC staff almost doubled 97/ Edelman/Leidich Testimony at 32; Tr. 1537 (Leidich).
98/ Edelman/Leidich Testimony at 28; Tr. 1538-(Leidich).
99/ Tr. 1541-42 (Leidich).
39-I
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in this period, and that the current ratio of craft to QA/QC is approximately 3 to 1, which indicates extraordinarily close Comstock QA/QC coverage of the work in progress.100/
IV. Timeliness of Corrective Action The Board received evidence concerning the close-outs of NRs, ARs and CARS. This was an item of initial concern to us in light of statements in Report No. 81-19 and the July 13, 1982 NRC SALP Report which suggested that electrical problems at Perry were not being promptly identified and corrected. Re-ferring to preliminary findings from the Staff's 1981-82 inves-tigation, the Staff in its 1982 SALP Report stated:
Taken individually these findings may not represent major problems, but collectively they reveal deficiencies in the imple-mentation of the quality assurance program in that problems are not identified and corrected in a timely manner.101/
Thereafter, the Staff's September 27, 1982 letter transmitting Report No. 81-19 to CEI stated:
We are concerned .that even though your con-tinuing assessment of the electrical contrac-tor's performance showed degradation of the quality assurance program, you failed to 100/ Attachment A.
101/ SALP 2 Report at 7 (emphasis added). See Memorandum and Order dated December 22, 1982, supra n.10, at 8.
p -
+ . ,
investigate in a prompt manner the elements contributing to the poor performance and require adequate corrective action to upgrade the program.102/
Specifically with respect to Applicants' corrective action system, Report No. 81-19 at pages 92-93 discussed a Staff review of Comstock responsiveness to CEI audit findings issued between November 1978 and December 1981. That review disclosed "what appeared to be L.K. Comstock's poor performance in closing out CEI audit findings."103/
Applicants and Staff presented extensive testimony con-cerning the timeliness of Comstock's corrective action in re-sponse to NRs, ARs, and CARS issued in the electrical area.
With respect to nonconformances, Applicants' prefiled tes-timony indicated that CEI and Comstock have issued approxi-mately 2000 NRs in the electrical area.104/ Mr. Edelman testified that 240 of the NRs are still open.105/ NRs must be resolved before the plant can go into operation; however, CEI's practice has been to attempt to obtain disposition of NRs 102/ Licensing Board Ex. 3, NRC letter to CEI dated September 27, 1982, at 1 (emphasis added) 103/ Licensing Board Ex. 3, Report No. 81-19, at 93.
104/ Edelman/Leidich Testimony at 20.
105/ Tr. 1356-57 (Edelman).
s
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within 30 days, and to track the status of all nonconformance conditions open longer than 30 days.106/ Mr. Edelman testified that the timeliness of corrective action implementation depends, in part, on factors such as the type and phase of con-struction in the area, and the projected time for turnover of the item involved.107/ Mr. Edelman stated that the most impor-tant QA consideration with respect to open NRs is to have an adequate system to track and identify the status of every NR, and that CEI's NR tracking system accomplishes that purpose.108/ Mr. Edelman also presented uncontradicted testi-mony that CEI's reviews and audits have not identified a time lag problem in connection with the close-out of NRs.109/
No timeliness problems in connection with the close-outs of NRs were cited by Staff witnesses. Mr. Konklin testified that in order to apply the timeliness requirement of 10 C.F.R. Part 50, Appendix B, Criteria XVI, a judgment must be made 106/ Tr. 1162-63 (Edelman). The 30 day time for " disposition" refers to review by the design engineer and a decision as to the appropriate type of corrective action to be implemented, rather than to the contractor's final implementation of the specified corrective action. Tr. 1167-69 (Edelman).
107/ Tr. 1163-64 (Edelman). See p. 21, supra.
108/ Tr. 1162-64 (Edelman).
109/ Tr. 1164-66, 1168-69 (Edelman).
l
based on a number of considerations, such as the type of item, the significance of the deficiency, the stage of construction, whether the item would become inaccessible due to construction in the near future, and the hold points that might be involved in the work.110/ Mr. Maxwell testified that IEEE-336 requires Applicants to resolve unsatisfactory conditions before operating a system.111/
Based on the evidence, it is clear to the Board that the close-out of NRs has not constituted a procedural or safety problem. The Board is entirely satisfied that CEI's system is closely tracking the status of NRs at Perry, and that l
l nonconformances are being properly closed out in a manner con-l sistent with their safety signficance.
The Board and intervenors also inquired extensively into whether Comstock has corrected CEI ARs and CARS on a timely basis.112/ At the hearing, Sunflower's represe.ntative and the Board asked Applicants' witnesses to address the statements in Report No. 81-19 regarding Comstock's apparent lack of timeliness in responding to.CEI audit findings.113/ Messrs.
110/ Tr. 1596 (Konklin).
111/ Tr. 1597 (Maxwell).
112/ ARs and CARS involve procedural or programmatic deficiencies not involving plant " hardware." A CAR is essen-tially an escalated AR. See n.43, supra; Tr. 1279 (Leidich);
1312-14 (Board); and 1371 (Edelman).
113/ Tr. 1274 (Licensing Board); Tr. 1363 (Hubbard).
c l
Edelm'an and Leidich agreed with the Staff's finding at page 93 of Report No. 81-19 that there were excessive open ARs against Comstock as of the time the Staff's review was conducted.114/
However, CEI has issued a number of CARS and an SWN to Comsteck for lack of responsiveness to CEI audit findings.115/ Mr.
Edelman and Mr. Leidich also testified that CEI had recognized underlying problems such as Comstock's QA/QC staffing and training, and that CEI tdok significant steps to address these areas.116/ We have previously concluded that a significant im-provement in Comstock QA/QC staffing and training has indeed been accomplished.117/ Mr. Leidich testified that CEI saw im-provements in some areas covered by its audit findings, and that in other areas there were lingering problems.118/ Mr.
Edelman testified that CEI continues to escalate any action it believes is required to get responsiveness from the contrac-tor.119/
114/ Tr. 1278-79, 1363-64 (Leidich); Tr. 1371 (Edelman).
115/ Tr. 1371 (Edelman). See Tr. 1308-11, 1507 (March 1980 CAR); Tr. 1527 (November 1981 SWN); Tr. 1535 (April 1982 CAR);
Tr. 1374-75, 1538 (August 1982 CAR) (Leidich).
116/ Tr. 1272-79 (Edelman/Leidich); pp. 35-36, supra.
117/ pp. 39-40, supra; see Tr. 1369-70 (Leidich).
118/ Tr. 1279 (Leidich).
119/ Tr. 1371 (Edelman). See, e.g. Edelman/Leidich Testimony at 33 (discussing CEI's responses to Comstock's final inspec-tion backlog).
9 4
The uncontradicted evidence is that open ARs and CARS are not a current problem with respect to Comstock.120/ Appli-cants' prefiled testimony stated that CEI has issued 267 ARs against Comstock.121/ Although there was no evidence as to the precise number of current open ARs, Mr. Leidich testified that the long-standing " problem" ARs against Comstock have now been closed out. As to CARS, as of the time of the hearing, CEI had issued 18 CARS against Comstock. Only two of these (both of which were issued in 1983) remained open as of the hearing.122/
Since the time of the NRC's 1981-82 investigation, CEI has re-quested Comstock to respond to all ARs and CARS within five days with an appropriate plan and response schedule, which Comstock has done.123/
There was testimony by Applicants that the acceptable time for closing out ARs depends again on the circumstances.124/
The Board agrees. The fact that an AR is still open does not necessarily mean the contractor has taken no action. CEI may 120/ Tr. 1366-68 (Loidlich)..
121/ Edelman/Leidich Testimony at 21.
122/ Tr. 1867-68 (Silberg).
123/ Tr. 1375-76 (Leidich).
124/ Tr. 1290-91 (Leidich).
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l still be reviewing the contractor's response, or CEI may have a concern over a particular aspect of the response.125/ Further, the mere existence of an open AR cannot be equated to a safety problem. These matters must be examined in context. We would be concerned if it appeared that CEI was not adequately moni-toring the safety significance 126/ and status of ARs; however, the record clearly indicates otherwise. CEI's procedural system,127/ and its use of this system to correct problems, in our view reflect a proper degree of involvement and control.
Two overall conclusions follow from the evidence. First, CEI's NR system has functioned so as to achieve timely identi-fication and correction of nonconforming conditions in the electrical area. Physical conditions of potential safety consequence are being identified and corrected under the formal NR system. Second, CEI's AR/ CAR system has also achieved the proper degree of corrective action. ARs have been identifying procedural and programmatic deficiencies as they have arisen.
Although Comstock has not always fully addressed CEI's ARs on a timely basis, when this has occurred CEI has escalated ARs to 125/ Tr. 1391, 1394 (Edelman).
126/ Tr. 1313 (Board).
127/ (see n.42 supra).
D
e ..
CARS to resolve the issue at hand. CEI created the CAR system for just such a purpise. It does not appear to the Board that AR/ CAR escalation has been necessary in the electrical area in a disproportionate number of cases.128/ Nonetheless, CEI has not hesitated to use CARS, or SWNs, when such escalated correc-tive action has been appropriate. Moreover, the Board has heard no evidence suggesting to it that failures by Comstock to address CEI ARs on a timely basis have resulted in unsafe conditions at the plant.
V. Significance of Report No. 81-19 Findings Report No. 81-19 indicates that on October 27, 1981, Individual A made six allegations to Region III concerning specific aspects of Comstock's activities at Perry. The individual asserted that inspectors had been " intimidated" dur-ing a meeting, and also alleged that certain procedural viola-tions had occurred in the areas of conduit installation, cable pulling, electrical penetrations, and motor control center storage.129/ The Staff conducted a thorough investigation and found no noncompliances with respect to Individual A's allegations.
128/ Tr. 1314 (Board).
129/ Board Ex. 3, Report No. 81-19, at 6-29.
3
l l The Staff's investigation of Comstock was expanded into a detailed inspection of electrical hardware procurement, drawing control, electrical cable tray installation, electrical and in-strumentation hanger installation, and installed switchgear.
Between October 27, 1981 and March 19, 1982', six NRC Staff rep-resentatives spent a total of 711 hours0.00823 days <br />0.198 hours <br />0.00118 weeks <br />2.705355e-4 months <br /> 130/ on the Staff's in-vestigation and inspection of the electrical area.131/ In the course of its inspections the Staff identified nine items of noncompliance,132/ and a number of unresolved or open issues.
The noncompliances, most of which were procedural,133/ were assigned comparatively low (Level IV or V) severity levels.134/
The inspections identified no significant " hardware" 130/ Based on our familiarity with other NRC Staff investiga-tions and inspections, and on the Staff's figures concerning the total inspector hours expended to date at Perry, we conclude that the Comstock investigation represented a signifi-cant commitment of the Staff's time and resources. This is relevant in measuring the significance of the Staff's findings, since we would normally expect an investigation of this magni-tude to identify at least some areas of deficiencies.
131/ Board Ex. 3, Report No. 81-19. at 2. See Konklin et al.
Testimony at 12.
132/ Board Ex. 3, Notice of Violation.
133/ Id.; See Konklin et al. Testimony at 12-13; Edelman/Leidich Testimony at 30.
134/ Board Ex. 3, Notice of Violation; Konklin et al. Testimony at 13; Tr. 1812-13 (Williams).
i e ir . _ . . ..
deficiencies. The Staff concluded that the noncompliances did not merit a monetary penalty.135/
The Staff's testimony at the hearing was that the electri-cal construction difficulties identified at Perry "are not very unusual" based on;the experience in Region III.136/ Mr.
Williams noted in response to a Board inquiry that nuclear electrical work is "particularly complex," that there are "many attributes that require inspection," and that "there are many opportunities for error to occur."137/ His overall assessment was that, considering the extent of the areas examined, the items of noncompliance reflected in Report No. 81-19 involved
" perturbations within what was essentially a sound system."138/
While in the earlier stage of the investigation the Staff
, raised questions concerning Comstock, and urged CEI to stop Comstock's cable pulling activities, the Staff ultimately found that "the great majority of the documentation and the effort was acceptable."139/
135/ Tr. 1774 (Williams); see Tr. 1817-18 (Williams).
136/ Tr. 1794 (Konklin and Williams); see n. 62.
137/ Tr. 1795 (Williams).
138/ Tr. 1699 (Williams).
139/ Id.
l l
l _ _
-- .- _ - _ ~ _ _
l ,
We do not believe, based on our review of Report No. 81-19 ,
and the uncontradicted evidence presented at the hearing, that the noncompliances in the Notice of Violation raise serious safety concerns. We inquired about cable separation criteria violations (there were eight found by the Staff) and learned 4 l
!. that such violations are not uncommon. Mr. Leidich, who is l
l quite. familiar with the IEEE standards and industry practice in this regard,140/ testified that "[ijt is clearly not unusual to see that kind of situation, not only at the Perr*; project but j at any project in the United States."141/ Mr. Williams confirmed Mr. Leidich's explanation and conclusions. He stated that "[t]he experiences at Perry in the area of electrical sep-aration have not been unlike those that we have had at every
', other site in the region over the last 13 years that I have been in Region III." Mr. Williams testified that he was "certain that most of the work was done correctly."142/
1 Similar testimony was given regarding the cable pulling program. The Board asked whether there was any reason to believe that cable pulls were completed by Comstock without 140/ Tr. 1544-51 (Leidich); p. 9 supra.
141/ Tr. 1549 (Leidich).
142/ Tr. 1647-56 (Williams).
i e
4
1 adequate testing. Mr. Williams replied that the chance was j "very, very small, if in fact it existed at all."143/ Mr.
Leidich testified, without contradiction, that cable over-tensioning is not uncommon, particularly where cable is being pulled around a bend.144/ The Board discussed with Staff 1
witnesses the various procedures used for testing safety-related cable, and inquired into the engineering reviews and dispositions that have been used at Perry when cable over-tensioning has occurred. We were particularly interested in use-as-is and scrap dispositions. The Staff testified that it closely reviews use-as-is dispositions.145/ Mr. Gildner de-scribed an instance in which a large safety-related cable had been over-tensioned. Although it passed subsequent engineering tests, it was nevertheless scrapped. Mr. Gildner's conclusion from this and similar episodes was that "this Licensee does tend to take the conservative approach."
We reviewed with witnesses the sequence leading to CEI's November 1981 SWN against Comstock's cable pulling program, discussed at pages 13-15 of. Report No. 81-19. CEI's lead 143/ Tr. 1632 (Board, Williams).
144/ Tr. 1354 (Leidich).
145/ Tr. 1633-44 (Board, Williams, Maxwell).
i
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_ . , - , . y . ,--,. , . . . _ ,_.,n .
electrical QE, and Region III personnel, were jointly observing a duct bank cable pull. They noted deficiencies in the proce-dures being followed and CEI issued an SWN which required Comstock to completely review its cable procedure.146/ Al-though we do not take lightly the mistakes Comstock made,147/
at the same time we recognize that the incident occurred at the beginning of a new phase of Comstock's work -- power cable pulling through safety-related duct banks.148/ These were not recurring problems. The Board concludes that CEI's QA/QC per-sonnel identified Comstock's difficulties, including both in-spection and craft training deficiencies, at the beginning of .
the work activity. This clearly indicates to us that CEI was vigilant in its control of the contractor. The mere fact that
, the NRC was also present does not cause us to draw contrary in-ferences regarding CEI's overview of Comstock.149/
Inquiry by the Board into other technical areas discussed in Report No. 81-19 also failed to disclose serious problems.
Mr. Williams testified that noncompliance 5(a)(2) of the Notice 146/ See p. 37, supra.
147/ Tr. 1661 (Board, Williams) 148/ Tr. 1276, 1283.
149/ Tr. 1659-60 (Williams).
- -- -g-,-.,,. m .,. ,y -
of Violation, involving ntotor control centers, wr.s a procedural problem, " easily corrected," and not surprising. The NRC Staff finds " problems like this one at all of our plants when they are at this stage of construction."150/ One of the NRC noncompliance findings, 2(a)151/ relating to an alleged viola-tion of the 270 conduit bend criteria, apparently involved an error of interpretation on the part of the NRC Staff.152/
In our review of Report No. 81-19 prior to the hearing, we were particularly concerned over statements at pages 94-95, to .
the effect that CEI had failed to exercise overview and control of Comstock in 1981, and that "CEI had failed to identify the findings of this investigation independent of the NRC."153/
The Staff's conclusion in Report No. 81-19 was based on its review of various CEI overview documents showing repeated months of below standard performance by Comstock in 1981.154/
150/ Tr. 1695-1701 (Williams).
151/ Board Ex. 3, Notice of' Violation at 2.
152/ Tr. 1668, 1778 (Williams). 7 153/ Board Ex. 3, Report No. 81-19 at 94-95; Tr. 1626-27 (Board); see Memorandum and Order (Reconsideration: Quality As-surance), dated January 28, 1983, at 7.
154/ Board Ex. 3, Report No. 81-19, at 95.
l l
We concluded at the summary disposition stage that we could draw no meaningful inferences from CEI's below standard ratings of Comstock, without a better understanding of CEI's overview program and its implementation. This is the principal reason we admitted the four issues of material fact under Issue
- 3. In light of our findings and conclusions regarding CEI's and Comstock's programs, set forth in previous sections of this opinion, we no longer have a concern in this area. As we have stated, we believe that CEI's overview and control of Comstock prior to the Staff's 1981-82 invectigation was entirely adequate. Although the Staff has indicated in Report No. 81-19 and SALP 2, as well as in testimony,155/ that Comstock's problems seemed unduly persistent, CEI in its performance rat-ings of Comstock and its stepped-up audits and surveillance of the contractor, clearly recognized the problems and took action. Mr. Williams, who authored the paragraph at page 95 of Report No. 81-19, testified that he could not identify anything that should have been done faster.156/
Applicants' and Staff's prefiled testimony set forth per-suasive evidence concerning CEI's positive attitude and actions 155/ See, e.g., Tr. 1623-24, 1656, 1817 (Williams).
156/ Tr. 1624, 1626 (Williams).
l
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?
L
in responding to the findings of the Staff's 1981-82 investigation.157/ Mr. Williams testified that "in nearly every instance, in fact all instances that I can recall, an appropriate corrective action was initiated upon notification by me and/or my inspectors on site."158/ He also testified, in response to a question from OCRE's representative regarding the February 10, 1982 meeting between CEI and Region III on prelim-inary findings from the Staff's investigation, that The Licensee's -- I suppose we are talking about his attitude, if you will, was one of cooperation. He demonstrated professional competence. He demonstrated general willingness to get on with correcting the issues that we mutually agreed needed correcting. He demonstrated a willingness to assist the regulator, to the extent that it was possible, in establishing the status of his activities and by that I simply mean, they were willing to provide all records and as many bodies as we need to track through their system to get things in order.
As I have indicated before, and perhaps others of this panel have suggested, the Licensee, in that regard, is unusually cooperative. You, yourself, have ,
been a benefactor,of that to the exteret they allowed you to come onto the site and plow through all of the records. It is an open book. By my experience, and I i
l 157/ See e.g., Edelman/Leidich Testimony at 30-32; Konklin et al. Testimony at 15-20.
l l 158/ Tr. 1587 (Williams).
+
i .
1
, participated in a number of these, that rarely happens.159/
The Board concludes from the foregoing that the Staff's 1981-82 investigation and inspections disclosed no serious inadequacies in CEI's QA/QC overview and control of Comstock.
The noncompliances which resulted from the Staff's review were largely procedural. None revealed unsafe conditions in the electrical area. Many of the difficulties were associated with the first phase of a major new work activity, where we would normally expect to find " start-up" deficiencies. Further, most of the findings represented problems that are seen at other nu-clear plants at similar stages of construction. Moreover, the Staff's investigation and inspections were unusually broad in scope and did not, considering their extent, find a dispropor-tionate number of noncompliances. Of the noncompliances found, all were of a relatively low severity level. With respect to CEI's and Comstock's corrective actions, they were not only re-sponsive to the Staff's findings, they exceeded the strict bounds of the Staff's findings in many cases. In short, CEI has withstood not only the' Staff's thoroughgoing scrutiny, but our own.
159/ Tr. 1769-71 (Williams). See 1861-62 (Gildner).
VI. Withdrawal of Sunflower's Counsel Just prior to the start of the May 23, 1983 limited ap-pearance session, the Board learned that Daniel Wilt, one of Sunflower's counsel, had resigned "due to irreconcilable dif-ferences" with his client. Following the limited appearances, the Chairman spoke with Sunflower and OCRE's representatives concerning this development. Ms. Hiatt, on behalf of OCRE, in-dicated that she would be able to begin her cross-examination of Applicants' witnesses on May 24, 1983, thus allowing Sun- .
flower's representatives further time to prepare.160/ All parties stated that this procedure was acceptable.161/
The evidentiary hearings began on May 24, 1983, with pre-sentation of Applicants' direct testimony and OCRE's cross-examination of Applicants' witnesses. On May 25, 1983, Sunflower's representatives began cross-examination of Appli-cants' witnesses, stating that "we are as ready as we will ever be."162/ Prior to Sunflower's cross-examination, the Board stated that it would assist Sunflower in questioning the
~
witnesses.163/ The Board not only aided Sunflowe:'s 160/ Since Sunflower had been designated lead intervenor on Issue No. 3, in the normal course of events it would have been
~
the first to cross-exanine.
161/ Tr. 1025-26.
162/ Tr. 1230 (Hubbard).
163/ Tr. 1231 (Board).
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I representatives in framing their cross-examination,164/ it also helped Sunflower to identify those areas which were of concern.165/
Although Sunflower stated at the end of the May 25 hearing session that it had finished cross-examining Applicants' witnesses, the Board offered Sunflower the opportunity on the following day to identify any important matters that had not been covered during the two days of cross-examination of Appli-cants' witnesses.166/ In response to this invitation, Sunflow-er identified only ma-ters unrelated to Comstock, and therefore outside the scope of the genuine issues of material fact.167/
At the conclusion of the May 25 session, Sunflower announced that its other counsel of record in this proceeding, Mr. Terry Lodge, vould be present on May 27 and requested that he be given the opportunity to cross-examine Applicants' witnesses at that time.168/ The Board, notwithstanding the 164/ See, e.g., Tr. 1349-54 (Board).
165/ See, e.g., Tr. 1346-48., 1393-94 (Board).
166/ Tr. 1430-31 (Board).
167/ Tr. 1441-44 (Hubbard); Tr. 1464-66 (Board). Sunflower also referred to "some additional questions about Comstock which we feel are very important to get on-the record," Tr.
1445 (Hubbard), but never explained what these were.
168/ Tr. 1432 (Abramson).
fact that cross-examination of Applicants' witnesses was con-cluded, ruled that it would' consider reopening cross-examination if Mr. Lodge could show, based on documents identified by Intervenors, that there had been a loss of control by CEI of Comstock.169/ The Board made clear that ad-ditional cross-examination would be permitted if Mr. Lodge could show "something worth pursuing."170/
On May 26, Sunflower's representatives conducted an entire day of cross-examination of the Staff's witnesses. ,
On May 27, Mr. Lodge appeared at the hearing. His opening statement addressed in general terms Report No. 81-19 and three other NRC Staff documents which had already been discussed at length during prior cross-examination.171/ Finally Mr. Lodge cited a May 9, 1983 notice of violation.172/ However, this document (involving in any event a low severity level viola-tion) was, from Mr. Lodge's own d9scription, unrelated to Comstock and therefore beyond the scope of the hearing. The Board ruled that the appropriate action with respect to this t
169/ Tr. 1466 (Board).
170/ Tr. 1464 (Board).
171/ Tr. 1711-1718 (Lodge, Board).
172/ Tr. 1718 (Lodge).
i
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L
- a last document would be for Sunflower to submit a late-filed contention.173/
Mr. Lodge also requested permission to conduct additional cross-examination of the Staff witnesses, even though Sunflower 2
had completed its cross-examination on the previous day.174/
Mr. Lodge identified two areas that he wished to pursue and the Board allowed cross-examination on both those areas.175/
It is in this factual context that we consider the signif-icance of Mr. Wilt's withdrawing from the proceeding the day before evidentiary hearings began. Several general legal con-siderations apply. First, an atomic safety and licensing board j has broad powers to regulate the course of a hearing.176/
I Second, the licensing board is charged with balancing the public interest in the need for an expeditious proceeding with the need for fairness to the parties. Thus, the Board is directed to use its powers to assure that the hearing process for the resolution of centroverted matters is conducted as expe-ditiously as possible, consistent with the development of an adequate decisional record.177/
173/ Tr. 1719 (Bloch).
174/ Tr. 1723 (Lodge).
175/ Tr. 1723, 1726-27 (Lodge, Board).
176/ 10 C.F.R. 55 2.718, 2.757.
177/ 10 C.F.R. Part 2, App. A, 9 V.
I
As the Commission stated in its Statement of Policy on Conduct of Licensing Proceedings, CLI, 8, 13 N.R.C. 452, 453 (1981)
In the final analysis, the actions, consis-tent with applicable rules, which may be taken to conduct an efficient hearing are limited primarily by the good sense, judg-ment, and managerial skills of a presiding board which is dedicated to seeing that the process moves along at an expeditious pace, consistent with the demands of fairness.
(emphasis added).
Sunflower's basic concern is that the withdrawal of Mr.
Wilt deprived it of its right to cross-axamination.178/ It is, clear that cross-examination in administrative proceedings is not an absolute right.'179/ NRC's regulations provide that a party is only entitled to "such cross-examination as may be required for full and true disclosure of the facts."180/ A board is authorized to "take necessary and proper measures to prevent argumentative, repetitious, or cumulative cross-examination."181/ It is the board's function to determine when no further cross-examination is warranted.182/ Neither 178/ Its decision not to pr.esent a direct case was made long before Mr. Wilt's withdrawal.
179/ See, e.g., Central Freight Lines, Inc. v. I.C.C., 669 F.2d 1063 (5th Cir. 1982); Seacoast Anti-Pollution League v. Costle, 572 F.2d 872 (1st Cir. 1978); American Public Gas Assoc. v.
F.P.C., 498 F.2d 718 (1974). ~
180/ 10 C.F.R. 5 2.743(a).
181/ 10 C.F.R. $ 2.757(c).
182/ Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-123,.6 A.E.C. 331, 337 (1973); Northern States Power Co.
(Continued Next Page)
Sunflower's representatives nor Mr. Lodge ever showed that there was further relevant cross-examination that would not have been repetitious or cumulative, or was necessary to a
" full and true disclosure of the facts," even though the Board afforded them several opportunities to make that showing.
The Board took unusual steps to assist Sunflower in pursuing its areas of interest on cross-examination. We gave "special solicitude" to Sunflower's cross-examination in view of Mr. Wilt's resignation.183/ Indeed, the Board conducted its own, rather extensive, cross-examination of the witness "trying to track down any colorable doubts that the Board has as a result of 81-19."184/ Sunflower, though offerred the opportu-nity, failed to show any real prejudice. We therefore conclude that the Board appropriately dealt with the circumstances caused by Mr. Wilt's resignation.
(Continued)
(Prairie Island Nuclear Generating Plant, Units 1 and 2),
ALAB-244, 8 A.E.C. 857, 868-69, 871 (1974).
183/ Tr. 1354.
184/ Tr. 1720.
1 l
f . .
VII. Miscellaneous -- Issuance of Partial Initial Decision The Board has determined that this Partial Initial Deci-sion should be issued prior to the completion of evidentiary .
hearings on other issues and that the Partial Initial Decision should be made immediately effective for purposes of appellate review.
The Board's authority in this regard is based on the NRC's Rules of Practice. Appendix A to 10 C.F.R. Part 2 authorizes the Board to hear issues separately and issue separate deci-sions in those separate hearings.
The Commission or the Atomic Safety and Li-censing Board may consider on their own ini-tiative, or a party may request the Commission or the board to consider, a particular issue or issues separately from, and prior to,.other issues relating to the effect of the construction and/or operation ,
of the facility upon the public health and safety, the common defense and security, and the environment or in regard to anti-trust considerations. If the Commission or the board determines that a separate hearing should be held, the notice of hearing or other appropriate notice will state the time and place of the separate hearing on such issue or issues. The board designated to conduct the hearing will issue an initial decision, if deemed appropriate, which will be dispositive of the issue (s) considered at the hearing, in the absence of an appeal or Commission or Appeal Board review pursuant to SS 2.760 and 2.762, before the hearing on, and consideration of, the remaining issues in the proceeding.185/ i 185/ 10 C.F.R. Part 2, App. A, SI(c)(1)(emphasis added).
1 l
1
, - - _ _ _ - - - - ~ ,. ,7- ,
O The Appeal Board has held that a licensing board action is appealable if it " disposes of at least a major segment of the case."186/ There can be no dispute that Issue #3 is a major l segment of the case.
Licensing boards in other proceedings have routinely made partial initial decisions immediately effective,187/ and Appeal Boards have routinely taken jurisdiction over exceptions filed from partial initial decisions.188/ While the Appeal Board might defer briefing of an appeal "so as to avoid piecemeal or concurrent review,"189/ that is a choice which rests with the 186/ Toledo Edison Co. (Davis-Besse Nuclear Power Station),
ALAB-300, 2 N.R.C. 752, 758 (1975). See also, Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 1),
ALAB-696, 16 N.R.C. , slip op. at 16 (October 1, 1982);
Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-690, 16 N.R.C. , slip op. at 3 (September 7, 1982); Nuclear Engineering Co., (Sheffield, Ill., Low-Level Ra-dioactive Waste Disposal Site), ALAB-606, 12 N.R.C. 156, 160 (1980).
187/ See, e.g., Union Electric Co. (Callaway Plant, Unit 1),
Partial Initial Decision, LBP , 16 N.R.C. '
(December.13, 1982); Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), Partial Initial Decision, LBP , 16 N.R.C. (November 3, 1982); South Carolina Electric & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), LBP-82-55, 16 N.R.C. 225 (1982); Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), LBP-82-3, 15 N.R.C. 61 (1982).
188/ See, e.g., Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-726,.17 N.R.C. (May 2, 1983); Consumers-Power Co. (Big Rock Point Nuclear Plant),
t ALAB-725, 17 N.R.C.. (April 27, 1983).
189/ Limerick, slip op. at 7, n.9.
l 9
g Appeal Board based on its control of its docket and need not affect this Board's actions.
The Board is, of course, aware of an unpublished Appeal Board order in Consumers Power Co. (Big Rock Point Nuclear Plant), dated October 4, 1982, in which the Appeal Board stated that the Big Rock proceeding, involving a spent fuel pool license application, did not appear to warrant more than one initial decision. Three partial initial decisions had already issued and the Appeal Board anticipated more. The Appeal Board also deferred briefs on exceptions to one of the decisions and tolled the time for filing exceptions on others. The Big Rock order is not applicable here. Apart from the legal principle that unpublished decisions are not generally to be relied upon,190/ the Appeal Board in Big Rock was simply observing that in the particular facts involved, numerous partial initial decisions were not warranted. The Appeal Board recognized that
" sound management of some proceedings requires the issuance of more than one initial decision" and that NRC regulations "do not preclude the issuance of partial initial decisions."191/
190/ Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-592, 11 N.R.C. 744, 745 (1980).
See also, Cincinnati Gas and Electric Co. (Wm. H. Zimmer Nucle-ar Power Station, Unit 1), LBP-82-47, 15 N.R.C. 1538, 1547 (1982) (unpublished order given no weight). i 191/ Order at 2.
4
. .aw,=-w
r . ,.
The only criterion stated by the Appeal Board was that partial initial decisions "should dispose of a major segment of the l case."192/ Since the quality assurance issue is "a major seg-ment of [this] case," we believe that a partial initial deci-sion is appropriate here.
VIII. Conclusion The uncontradicted evidence is that CEI's quality assur-ance program has provided effective overview and control of Comstock's activities at Perry, and that CEI's program has prevented, and will continue to prevent, unsafe conditions at the plant. We therefore conclude that there is no serious safety issue of which we are aware that requires us to undertake further inquiry into CEI's QA control of Comstock or other safety-related contractors at Perry.
192/ Id.
-es-l I
o . .=
l IX. ORDER Based on consideration of the entire record in this mat-ter, and the foregoing findings which are supported by reli-l able, probative, and substantial evidence in this proceeding, it is this day of 1983 l
l ORDERED
- 1. The sole remaining issues of material fact admitted under Issue #3 in this proceeding, concerning the adequacy of CEI's quality assurance program for the control of I -
safety-related contractors at Perry, is dismissed.
- 2. Pursuant to 10 CFR S2.760(a) this is a partial ini-tial decision that will constitute final action of the Commission forty-five (45) days from the date of issuance unless exceptions are taken pursuant to $2.762 or the Commission directs that the record be certified to it.
- 3. Exceptions to this decision or designated portions thereof may be filed with the Commission, in the form required by $2.762(a), within ten (10) days after service of this deci-sion.
- 4. To pursue an appeal, briefs in support of a party's objection also must be filed, within thirty (30) days after i I
filing the exceptions (or forty days in the case of the staff 1
F ..
of the Nuclear Regulatory Commission). The brief must comply with the requirements of f 2.762.
i
- 5. Within thirty (30) days of the service of the brief of the appellant (40 days for the staff), parties may file opposing or supporting briefs or supporting briefs that comply l with the requirements of f 2.762. i
- 6. Filings that do not comply with the rules governing appeals may be stricken.
I l
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
% (, F-Jay . ilberg, P.C. i Har y H. Glasspiegel '
Counsel for Applicants e
1800 M Street, N.W.
Washington, D.C. 20036 Telephone: (202) 822-1000 Dated: July 1, 1983 i
)
)
i 1
f
m a
SUMMARY
OF MR. LEIDICH'S TESTIMONY OP 5/26/83 CONCERNING Tile PERRY ELECTRICAL PROGRAM -
1978 1979 1980 1981 1982 1983 let 2nd 3rd 4th let 2nd 3rd 4th let 2nd 3rd 4th 1st 2nd 3rd 4th let 2nd 3rd 4th 1st CEI AUDIT 3 4 5 4 1 3 2 2 2 3 3 2 4 4 4 8 4 1 CEI STOP WORK 2 2 I'
LKC STOP WORK X
NRC INSPECTION 1 1 1 2 1 1 2 2 1 1 2_/ 2 2
% COMPL.: ELECTRICAL 4 21 38 49 50 61
^
40 45 47 30 90 31 1/
1 INSTALL.
i CABLE PULLING <1 4 4_/
TI <1 25 40 40 40 40 88 CONDUIT IN-STALLATION <1 <1 <1 60
~
. w STAFFING: LKC CRAFT 11 37, 71 121 128 121 133 136 114 113 113 132 127 96 125 165 165 STAFFING: LKC QA/QC 15 15 15 15 13 15 14 15 17 19 27 28 32 41 50 51 53 @
l i [
BEGINS AT TR. PACE 1493 1495 1496 1497 1499 1502 L503 L504 L506 1508 1510 1512 1517 1518 1523 1527 1532 L535 L537 L540 1542 Footnotes on following page. ,
r_ _ _ ___
CHRONOLOGY OF PERRY ELECTRICAL PROGRAM FOOTNOTES 1/ The witness did not indicate the precise number of SWNs.
Tr. 1525 (Leidich).
2/ The Staff's 1981-82 investigation, which. commenced in this quarter and extended beyond this quarter, is only counted once for purposes of this matrix.
3/ The percentage of cable tray installation decreased due to additional' design requiremento. Tr.1507-08 (Leidich) .
4/ In September 1981, the first safety-related duct bank pulling of control cable began. Tr. 1527 (Leidich).
9 i
f ,s s July 1, 1983 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY, et al. ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE This is to certify that copies of the foregoing " Applicants' Proposed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision" were served by deposit in the United States Mail, first" class, postage prepaid, this 1st day of July, 1983, to all those on the attached Service List.
Ja A1Silberg A >
DATED: July 1, 1983
( - . . , ,
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 ILLUMINATING COMPANY ) 50-441
)
(Perry Nuclear Power Plant, )
Units 1 and 2) )
SERVICE LIST Peter B. Bloch, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry R. Kline Docketing and Service Section Atomic Safety and Licensing Board Office of the Secretary U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Glenn O. Bright James M. Cutchin, IV, Esquire Atomic Safety and Licensing Board Office of the Executive U.S. Nuclear Regulatory Commission Legal Director Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Christine N. Kohl, Chairman Atomic Safety and Licensing Ms. Sue Hiatt Appeal Board OCRE Interim Representative U.S. Nuclear Regulatory Commission 8275 Munson Avenue Washington, D.C. 20555 Mentor, Ohio 44060 Dr. John H. Buck Terry J. Lodge, Esquire Atomic Safety and Licensing 824 National Bank Building 4
Appeal Board Toledo, Ohio 43604 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Donald T. Ezzone, Esquire .
Assistant Prosecuting Attorney Gary J. Edles, Esquire Lake County Administration Center Atomic Safety and Licensing 105 Center Street Appeal Board Painesville, Ohio 44077 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John G. Cardinal, Esquire l Prosecuting Attorney Atomic Safety and Licensing- Ashtabula County Courthouse j . Board Panel Jefferson, Ohio 44047 U.S.. Nuclear Regulatory Commission Washington, D.C. 20555
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