ML20079P622

Requests Commission Take Action in OL Hearings to Enforce Articulated Policies Re Conduct of OL Hearing.Commission Should Review Views of Chairman of ASLB & Direct IE to Apprise ASLB of Findings & Matl Evidence

ML20079P622
Person / Time
Site:	Catawba
Issue date:	01/26/1984
From:	GOVERNMENT ACCOUNTABILITY PROJECT
To:	Asselstine J, Gilinsky V, Palladino N NRC COMMISSION (OCM)
References
NUDOCS 8401310287
Download: ML20079P622 (11)

Text

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GOVE 'NMENT ACCOUNTABILITY PROJECT Institute for Pohty Stuches 00cKETED

~N USHRC 1901 Que Street N.W. Washington D.C. 20009 (202)234 0362 J

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January 25, 1984 ^

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Honorable Chairman Nunzio Palladino Honorable Victor Gilinsky Honorable James Asseltine Honorable Thomas Roberts Honorable Frederick Bernthal United States Regulatory Commission "

Washington, D.C. 20555 h

Dear Commissioners:

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The Government Accountability Project (GAP), the Palmetto Alliance (Palmetto), and the  ;

Carolina Environmental Study Group (CESG), joined by Mr. Harry Langley, Mr. Howard i Samuel, Nunn, Jr., Mr. Ron McAfee, Mr. Nolan Hoopengarner, and other confidential h

witnesses, request that you take immediate action in the Catawba Nuclear Station 5 (Catawba) operating licensing hearings to enforce the articulated policies of the Commission concerning the conduct of operating licensing hearines. U E.

It is our belief that both the Nuclear Regulatory Commission Staff (Staff) and the Chairman of the Licensing Board have seriously misinterpreted, to the detriment of k the public health and safety, several Statements of Policy issued by the Commission ,

to give guidance on both the conduct and the objective of the operating licensing hearings. We have appealed directly to the Commission on this matter because of the 3

apparently irreversible position of the Licensing Board to close the record on  :

nunerous serious safety issues, on January 31, 1983,b without considering some of the most directly relevant information available to it. In particular, neither the

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Office of Investigations (01), the Staff counsel, nor the Licensing Board itself, if 1

.a nave taken steps to insure that the Licensing Board will receive the highly relevant

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information being developed in two parallel inquiries being conducted by the Office j of Inspector and Auditor (OIA) into misconduct by the Region II personnel who $

violated Commission policies regarding protection of witnesses and failure to enforce

-1/ tomic Safety and Licensing Board (ASLS: No . 81 -463- 01 OL), Memorandum and Order Confirmir.; Closing of the Record and Schedule for Filing Proposed Findings, December 30,19E3.

8401310287 840126 PDR ADOCK 05000413 g PDR g60h

To T.he Comission2rs January 26, 1984 1974 Comnission instructions to Duke Power Company (Duke) to establish an independent quality control (QC)/ quality assurance (QA) structure for both the Catawba and McGuire nuclear projects, and by O! into harassment and intimindation of welding QC inspectors by Duke Catawba management, and the deliberate actions by Duke to circumvent the requirements of 10 C.F.R. Part 50, for the establishment of an independent t QA/QC department.

We request that you take the following actions:

1. Review the stated views of the Chairman of the Licensing Board of the Catawba proceedings that it is the primary instruction of the Commission to the '

Catawba Board to finish the proceeding by the fuel load date for Catawba, regardless of important safety issues for consistency with the Commission's Statement of Policy on conduct of Licensing Proceedings, 46 Fed. Reg. 28533; and

2. Direct 01 to promptly apprise the Licensing Board of the findings and material evidence at the conclusion of the ongoinc OI investigation pursuant to the

" general duty of the NRC Staff to inform the Boa:'i of matters what are material to the issues in controversy so that informed decisions can be t

made." Statement of Policy on Investigations and Adjudicatory Proceedings, 48 Fed. Reg. 3635E, August 10,19S3.

I. BACKGROUND Catawba is a two unit nuclear reactor being constructed near Rock Hill, South Carolina by Duke. Both petitioners Palmetto and CESG are legal bitervenors in the operating licensing proceedings. Fetitioner G'D is an independent public in-terest organi::ation conducting an investigation into allegations of worker harassment and intimidation, a pervasive QA breakdown, construction and hardware defects, and inadequate regulatory oversight at the Catawba facility. Petitioners Mr. Nunn and Mr. Langley are former workers at the Catawba facility, who have testified in the ASLB hearings about concerns of shoddy workmanship, poor manage-ment, and safety-related technical issues. Each petitioner has taken individual steps to insure that the construction and potential operation of the Catawba  ;

facility are done with care, quality, and with primary concern for the public  !

i' health and safety.

For examle, Mr. Langley raised concerns in 1978 about the continuing practice j of craftsran te ignore the instructicrs of OC inspectors. Also in 1978, he 4

To Thg Commissioners January 26, 1984 protested the abuse of authority by the Catawba QA manager to override or ignore nonconforming conditions reported by inspectors such as himself. More recently, Mr. Langley told NRC investigators about the fraudulent training seminars con-ducted at Catawba, which raise questions about the adequacy of those workers. His Affidavit describes:

9 Each week of school we were given a test. In order to become a certified welding inspector, we were required to pass each test.... In the second week of the class, the day before we were to be given the test, the answers and a copy of the test appeared in our notebooks after our normal break.

From then on, every week, the day before the test in later afternoon, a copy of the test anc the answers would appear in our notebooks. Everyone of the 12 of us received the same test and answers.

1 Mr. holan Hoopengarner, a former Catawba worker, has raisec multiple questions since 1975 about worker safety issues, excessive waste, disregard by Duke of its own corstruction procedures and NRC requirements, l

Mr. Ron McAfee, a former electrical QC inspector at Catawba, left the job site in 1979 because of tne demoralizinc, dangerous, and disorganized state of the construc- f tion project. Situations like the following " yellow ribbon" incident convinced him f I

that Duke had no intention of following proper procedures.

...had called us to inspect, meaning that the work should have been completed prope rl y. Mr. Land told us to mark whatever we found that was wrong (we tied yellow ribbons to tnose items). We found literally dozens of problems; the J

cable tray roor was filled with yellow ribbons and when Land and one of his bosses care in and saw it, they both got very upset. They promptly fixed the errors and removed the ribbons. No documentation of these mi, takes or the correcticns was made.

Mr. Howard knn, removed from service a few months ago, raised technical issues in an i_n carera proceeding before the Board. His most serious allegations--regardi'nc laminations in the steel containment plate, the use of bad welding rods and wire, were hearc by the Board. However, discovery into Duke and the NRC Staff's explanatir s been refused to intervenors.

CESG opposed the original Catawba construction permit on environmental issues, design of the thin ice wall reactor, adequacy of the cooling towers, and lack of independence of CA/0C from construction. They continue to raise serious scientific issues regardinc tne synergistic effect of four nuclear power plants on one metro-politan area, and the inadequacy of emergency planning for Charlotte and surrounding areas in tne event of a nuclear incident.

V To The Cdmmissioners January 26, 1984 Finally, Palmetto joined the Catawba proceeding in 1981, and has participated in the 01. case through active discovery and litigation issues of a QA breakdown, in-adequacy of the design of the spent fuel pool at Catawba to absorb spent fuel from all Duke's nuclear plants. Palmetto is also actively engaged in opposition to Duke rate hikes based on ill-planned and abandoned nuclear projects.

3 GAP's investigation, which began in March,1983, with background information from CESG and Palmetto, led to the filing of a separate citizens petition filed September 14, 1983, pursuant to 10 C.F.R. 2.206. Our request can.be summarized as follows:

1. A " vertical s' ice" of the safety systems at the Catawba facility to determine if the failure of the design control system and the failure of the quality assurance / quality control procedures in con-struction indicated that the "as built" condition of the plant was in ccmpliance with the requirements of the Atomic Energy Act of 1954, as amended.

2. < managerent audit of the Catawba site management to determine the cause of the project's problems with inspection of the QA/QC program.

3. An 01 inquiry into the deliberate violation of the Commission's requirerents for Duke to develop and maintain an independent QA/QC prograr separate from construction.

4 Com-ission monitoring of the investigation by the OIA announced in April,19E3, into improprieties by Region II personnel in the handling of complaints of hart:: cent, intimidation, and a QA breakdown brought -

to the NR: Staff by numerous welding QC inspectors.

On October E,1953, we filed a second letter requesting that you take irrediate action to resolve the conflict of interest situation in Region 11 regarding the witnesses fror whom GAP had compiled information.

In subsequent correspondence between GAP and the Commission Staff, we continued to raise our concerns over the apparent conflict of interest by the Region II officials sn attorney: representing the NoC Staf f in the ongoing licensing hearings and the allegedly " independent" inspection effort launched by Region II into the safety concerr.s raised b;. GA nitnesses. ,

To The Commissioners January 26, 1984 H. VIOLATION BY THE ATOMIC SAFETY AND LICENSING BOARD OF THE NRC STATEMENT OF POLICY ON CONDUCT OF LICENSING PROCEEDINGS, 46 Fed. Reg. 28533, May 27,1981

1. The Chairman of the Catawba Licenting Board has mistakenly concluded that the intent of the Commission policy regarding expedited OL proceeding Q issued in May,1981, is to create a standard which places the completion of the operating licensing hearings, prior to fuel load, ahead of the fulfillment of the greater responsibility and legal requirement to resolve safety issues which have become litigated matters in an adequate manner.

2. The Statement of Policy states:

The Commission wishes to emphasize though that, in expediting the hearings, the board should ensure that the hearings are fair, and produce a record which leads to high quality decisions that adequately protect the public health and safety and the environment.

(Emphasis added.)

The etlicy was developed following the "re-examination of the entire regulatory structure" after the Three Mile Island accident by the Commission. A situation whicr. is described in the policy as "... for the first time the hearings on a number of operating license applications may not be concluded before construction is completed. " Essentially, the " backlog" of nuclear plants facing the need for operating licensing hearings was an impending problem. The Commission issued a policy statement then (1951), "on the need for the balanced and efficient conduct of all phases of the hearing process."

Unfortur,ately for the public, the 1981 expedited hearing policy is seriously mis-understood by the Catawba Board. On numerous occasions throughout the Catawba hearings, as well as throughout the pre-hearing scheduling discussions, the ,

Licensing Board Chairman, Judge James L. Kelley, expressed his opinion regarding the Commission policy on completion of all operating licensing issues, except emergency planning, prior to Duke fuel load dates. For example, on October 11, 1953, during a hearing discussion on the Commission policy above-referenced, Judge Kelley stated:

Try to finish this proceeding, except for offsite emergency planning, by the time they load fuel . That's a very simple concept, and that's really as far as these proceedings go, all we need to worry about.

(Pg. 2392, lines 1-9)

On another occasion in the issuance of a ruling, he stated:

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To The Co'mmissioners Janua ry 26, 1984 l The parties have talked this over. We all recognize that this is a big record, and some additional time is warranted. We'd like to give more than we can afford to, but our problem is we got a problem on the other end. We have anticipated fuel load date about mid-May, and it's the Commission's stated policy that we are bound to attempt to decide this case by that time.

(Pg.11, 910, and confirmed in LBP 81-463-01 OL, December 30, 1983) another, It would...it might very well, however, prejudice the Board's ability to decide the safety issue prior to the fuel lead, anticipated fuel load date, and/or contrary to the Commission's policy on the conduct of licensing proceedings.

(Pg.11, 218, lines 15-20)

It is the unanimous mquest of petitioners that the Commission enforce its obligation to the public established under the inherent authority vested in it in the Atomic Energy Organization Act of 195A, as amended.

To be blunt, a Board attitude such as thac held by the Catawba Board, insures that the agency embarrassment of Zinmer--97 percent completed and yet cancelled because of a ,qA breakdown discovered af ter the ooeratino license record was closed, and Diablo Canyon, where massive and continuing OA problems were only discovered after the NRC licensed the plant--will continue to be the scandals of the future.

III. RE00EST FOR C09'ISSION TO DIRECT 01 TO INFORM THE BOARD OF ALL MATERI AL EEING DEVEL0DED IN ITS ONGOING INVESTIGATION Pursuant to 10 C.F.R. Part 2, the Staff has a duty to disclose of material informa-tion related to matters in controversy so that the Board can make informed decisions.

The Commission recognized, as coes GAP, that "There are potential conflicts be-i tween a presiding officer's need to be informed of material developments and an investigating office's need to avoid premature disclosures that could compromise the inspection or investigation." However, the failure of 01 to reouest that the Board consider its findings when the issues before both 01 and the Board are .

I parallel, is inexplainable. (Compare ALBP No. 81-463-01 OL, Motions Re: Contention

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Six, Prehearing Conference Orders, and letter from William J. Dircks to Billie Firner Garde, Attachment =1) which states:

The first imestigation pertains to allegations regarding a possible lack of CA/QC independence and related issues. The second investigation pertains to allegations regarding welding OC inspectors. This represents one of the normal courses of action taken by the agency when allegations  ;

are received.

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To The Commissioners January 26, 1984 i

Clearly, nothing could be more relevant to an informed decision of the company's attitude and trustworthiness than the evidence being compiled by the OI investiga- .

tion. To ignore such evidence would confirm the public's worst fears about the t;RC operating license process--it's a charade. l However, in light of recent developments, petitioners believe that the Staff in this case has simply misread its duty to disclose. For example, an order issued January 19, 1984, in the Waterford Steam Electric Station, Unit 3, Ja n . 19, 1984 , the Board granted a five week extension time to respond to allegations that formed the basis of a joint intervenors motion. These allegations led to an ongoing O! and Region IV investigation / inspection effort, which the Staff suggested and the Board agreed would be a " benefit" to the Board prior to its ruling on the motion. Interestingly enough, Waterford's anticipated fuel load date is March 31,1984 Yet even that panel recognizes the importance of a complete record--

and chose to delay the hearing in order to receive 01's visws.

The Catawba Board's obsession with meeting the fuel load date is inexplicable to petitioners--but it brings to mind the "can of worms" analogy where the only way to deal with a can of worms when the lid is off is to put it in a bigger can!

The lid is off tha worm can at Catawba. The Commission must take immediate action to insure that the Ecard understands that the special burden it carries in to public safety--not private profits, and that in order to fairly determine that

uestion of safety--all information available to the parties on items of controversy rust be competently and aggressively litigated.

Respectfully submitted, Wili1am Ronalc Mc Afee Billie Pirner Garde Fermer Catawba Worker Government Accountability Project ,

E an E. Hoopengarner RoDert Guild Fcener Catawba Worker Attorney, Palmetto Alliance H:.sa rc Samuel fiunn, Jr. Jesse Riley Fcrmer Catawba Worker Carolina Environmental Study Group

-arry Langley Former Catawba Worker

ATTACHMENT I f[p uc, 'o UNITED STATES g e.

,' gg NUCLEAR REGULATORY COMMISSION

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E WASHINGTON. D. C. 20555

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..... NOV 2 31983 i

9 Es. Sillie Pirner Garde Director, Citizens Clinic Government Accountability Froject

rstitute for Policy Stucies 1501 Que Street, N. W.

Washington, D. C. 20009

Dear Ms. Garce:

I nave reac .1:n interest your letter of Octcber 28, 1983, responcing to ny letter of October 24, 19E*.  : I was pleased to note that the Government Accountatiilty Project (GAP) has urgec workers having safety-related concerns

bring : er to ne NkC.

I v.c 1: reiterate my confiaence in ite ability of Region Il to conduct a the,re ;n anc otfective evaluation of allegations they have receivec in tne pas; oc ri receive in tne future. I assure you, my expressed confidence it iegi;r :: anc :na NRC staff is not ar. expression cf loyalty or personal o:iiga:1:ns to anj incivicual r.ar.ager. Tris confidence nas, insteac, ceveloped f r: ciese interactions over a long peric:' of time.

Tne Off1:e :f :nv:stigations nas recent'y opened two investigations at Catawba ceclin; a lees: in part with infornation containec in your September 14, 1983

nitier. Tre first investigation pertains to allegations regarding a pessible la

L re C RC indecenden:e anc related issues. Tne sc-cond investigation pertains tc allega:icts regarding welding QC inspectors. This represents one of the no m :w eses of action taken by the agency wnen allegations are received.

Fieate De associ :nn it is r, intent to continue to pursue issues tnat have p::et:ial fu i :ctir.;. :n :ne protection of tne public health and safety. -

Sincerely,

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A 4* / M Willun'2. Dircks Executive Direc:cr for Operations

GOVERNMENT ACCOUNTABILIT( PROJECT Instrtute for Pokey Studies 1901 Que Street. N.W.. Washington. D.C. 20000 (202)234 03S2 Ottober 26, 1983 Mr. Willia: J. Dircks Executive Director for Operations United Stat es Nuclear Regulatory Co=ission Washington, D.C. 20555

Dear Mr. Dircks:

On October 24 you responded to an October 6 letter which the Govern =ent Accountability Project (GAP) wrote to the Chair an of the Comission on behalf of current and former workers at the Catawba nuclear facility in South Carolina. Your response indicates a nu=ber of =isperceptions which hopefully will be clarified by this letter.

My request to Chair =an Pall dino was for an Office of Investigations investigator to conduct or supervise the investigation of allegations about and evidence of violations of the Ato=tc Energy Reorganization Act, including but not li=ited to deliberate subversion of 10 CFR Appendix B by Duke Manage =ent, harassment and inti=idation of quality control inspectors, an institutionalized practice of construction and Quality Control supervision verbally overriding reported non-confor=ing conditions (NCI's),

a breakdown in the design control syste=, and worker infor=ation about falsification of records, destruction of docu=ents, cheating on qualification tests, direct inter-f erence eith workers' contacts to the Co==ission, substitution of unauthorized proce-dures for correct conctruction corrective actions in order tt meet cost and construction deadlines, and nu=erous specific hardware concerns which i=pugn the overall integrity of the construction of the Catawba faci.11ty.

These concerns are not mine, as you indicated throughout your letter, but rather the concerns of dozens of nuclear workers fro = the Catawba facility. Some of these workers have agreed to previde infor ation to the NRC for an investigation and/or inspection at the urging of GA?; however, the greate.st =ajority of workers we have talked to are not interested in providing in. formation to the NRC. Their perception, as ini.icated in =y letters, is that 'hll roads lead back to Duke" Your letter indicates, so=ewhat argumentatively, that you have "no co= parable hesi-tancy in vouching for the integrity of Region II with regard to their pursuit of safety-related issues or in taking proper and appropriate steps to provide confiden-tiality." That position was fortified recently by the = erit bonus given to the Region II director.

Mr. Dircks, I understand that ny request to the Co==1ssion for a special investigator placed you in a difficult position. As the responsible supervisor for Mr. O'Reilly and his staf f I e=pathize with your need to be loyal to your e=ployees when their integrity and credibility is under attack, as Region II clearly is in this =atter.

That is precisely one of the reasons that I initially pursued an informal series of

=eetings with the NRC since the spring of last yea r .

Unfortunately the rapidly deteriorating state of af fairs at Catawba and the failure of the NRC to take any action until completion of an Of fice of Inspector and Auditor

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(OlA) investigation lef t na no cptions but to formally request cpacific relief.

How2 var, clearly understand that there is nothing in the 2.206 request which was not either explained to or historically available to members of your staff, OI manage-ment, or OIA investigators. Your staff chose to put the burden of proof of construc-tion flaws, a QA breakdown, and deliberate Duke violations on SAP - an organization ,

with technical and investigative resources ince= parable to the NRC's. Your staff chose to ignore or postpone dealing with company information which became available through discovery in the Atomic Safety and Licensing Board hearings. Your staff chose to ignore the informal com=unications about the worsening situation at Catawba, in f avor of the " ostrich syndro=e" wh!ch caused these problems in the first place.

I hope that the briefing you requested on the background of the 2.206 request and the October 6 letter included the fact that the first meeting I requested with the Ce: mission was with you - personally, and that that request was made at the urging of a Congressional aide who believed that your office would recognize the need for i==ediat e appropriate act ion.

Your let ter i=ples that GAP has become a bottleneck to information about Catawba getting to the NRC from Duke, and I a= deeply distressed by that perception.

GAP has always and will always urge workers who have concerns they wish to be investigated to go to the NRC. Two weeks ago, in f act, GAP mailed a letter to over 300 QC/QA inspectors to insure that they knew (1) their rights for protection fro:

prisals and harass:ent, (2) their avenues of redress, and (3) the i=portance ofre-givin; information to the NRC. I have included a copy of that letter for you. As '

you can see I encourage workers to go to the NRC first - as I do in all of my investi-gations.

Ironically, the focus of your letter see=s to be cy responsibility to pass on infor:stion to workers in contact with me about the Atomic Energy Act and the D3L provisions and to urge the: to come forward so their information "can be #

promptly evaluated and . . . corrective action icitiated."

l These statements hopeless reveal either a total cisunderstanding of the Catawba situation, or naivete about the agency inspection / investigation process. )

To su=marize, the workers at the Catauba site have been trying since at least December 19E0 to get the NRC to investigate substantive charges of harassment and in t imida t ion, violations of company construction and quality assurance procedures, and f aulty wor ktanship. The NRC has consistently turned those charges back to Duke and left the workers to f are the best they could. To expect or even imply that I can or should sc:ehow convince them to now trust the same inspectors or investigators t ha t have let ther down consistently is ludicrous. That is why I requested the i Chair =an to take unusual and exceptional action to provide an investigation tea:

which I can honestly represent to these workers as credible and sincerely interested in the pur suit of the real Catawba problems.  ;

Your language to def end your staf f is understandcbic, but the issues of concern to se are (1) the as-built condition of the Catawba plant, and (2)the re= oval of an atmosphere of fear and hara ssment from the site. I at interested in moving as i

quickly as possible through our own investigation and then on to cooperate with yours. -

however, let there be no =isunderstanding that (1) the bottleneck for the information you wish =e to previde has been Regien II, (2) that this infor=ation could have and

) should ha7e been invest igated by the NRC years ago, and (3) as a result of the agency's continuous foot-dragging the workers have lost total confidence in the agency as either capable or willing to investigate Duke Power Co=pany. 4 l

1 suggest that you personally review the docu=entation available to the NRC in detail >

before you are se quick to defend your staff and ignore the substantial proble: l fa:ing your agency.

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Catcwba is 85% complete end Duka la rushing toward a licens2 in a few nonths.

The plant has a prima facie quality assurance br2akdown, and the as-built condition is indetert:inste.

3 Respectfully,

/-

Billie Pirner Garde Director, Citizens Clinic Encl.

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