ML20080D424
| ML20080D424 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak  |
| Issue date: | 08/27/1983 |
| From: | Horin W, Reynolds N DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20080D427 | List: |
| References | |
| NUDOCS 8308300447 | |
| Download: ML20080D424 (163) | |
Text
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a TsEc" 55 5d 29 N9:56 UNITED STATES 07 AMERICA r-NUCLEAR REGULATORY COMMISSION j
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Docket Nos. 50-445 and TEXAS UTILITIES GENERATING
)
50-446 COMPANY, et al.
)
)
(Comanche Peak Steam Electric
)
(Application for Station, Units 1 and 2)
)
Operating Licenses)
APPLICANTS' OBJECTIONS TO PROPOSED INITIAL DECISION I.
INTRODUCTION on July 29, 1983, the Board transmitted to the par-ties its " Proposed Initial Decision" addressing emergency planning, Board Questions, and certain aspects of con-struction quality control.
The Board noted that objections to the proposed decision were to be received within 22 days of issuance of the decision (by August 19, 1983).
Thereafter, over Applicants' objection, the Board granted the intervenor's motion for an extension of this due date, ruling orally on August 10, 1983, that objections are to be received by August 29, 1983.
II.
GENERAL OBSERVATIONS A.
Timely Decisionmaking On June 27, 1979, this Board, as previously l
constituted, issued an Order granting, inter alia, CASE's petition to intervene.
During the ensuing four years, the 8308300447 830827 n
PDR ADOCK 05000445
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intervenor has conducted protracted discovery (over 30,000 pages of material produced by Applicants), hundreds of pleadings have been filed, and nearly six weeks of hearings have been conducted.
Over 1,000 documents have been admitted into evidence and 8600 transcript pages produced.
Yet despite these major efforts over a four-year period and even though scheduled fuel loading for Comanche Peak, Unit 1, is only four months away, the NRC has yet to issue a final decision on any issue in contention.
The fact that the Board has been reconstituted several times, and has been chaired by four different administrative law judges, has been in Applicants' view a major factor leading to the present situation.
Proposed findings of fact on the matters aadressed by the Board in its proposed decision were filed with the Board, as previously constituted, by Applicants and the NRC Staff in late Fehruary 1983, six months ago.
CASE failed to file proposed findings on all matters addressed in the proposed decision, except rock overbreak and a shrinkage crack in a concrete wall, and the Board cor-rectly proposes to find that CASE has abandoned those contentions on which it failed to file.-
E.g.,
Southern
i e
e California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC slip op. at 48-49 (March 4, 1983).
Against that background, we wonder why the Board delayed issuance of a decision on those matters until the and of July.
We mean this not as criticism of the Board members now sitting, two of whom were appointed in February and April of this year.
Rather, we mean it as criticism of the inefficient regulatory process that has brought all parties and the Board to the stage where, after four years of discovery, pleading practice and hearings, there remain only four months to complete the licensing process if reactor operations are not to be delayed by that process.
It is with a deep sense of frustration that Applicants make these comments, because of course it will not be the agency or other parties, but Applicants and their customers, who suffer if the licorsing process delays operations.
And it is disappointing that this situation has come to e7.ist in the i
face of clear directives of the Commissioners that licensing cases are to be models of efficiency.
See 46 l
l Fed. Reg. 28533 (May 27, 1981).
Applicants were encouraged when the Board advised that it would issue a decision (albeit proposed) in late July.
However, that optimism was dashed when, upon re-
s viewing the proposed decision, we found that it proposed to leave "open" more questions than it answers.
The Board stated in the proposed decision that it would require some additional evidence in "a few instances."
Proposed Initial Decision at 2.
However, upon close examination, Applicants count over twenty issues that the Board has proposed to leave "open" for one reason or another.
In addition, Applicants strongly object to the Board's apparent offer, through this unusual " proposed decision" approach, to allow the intervenor to submit additional evidence or statements of position ( tantamount to proposed findings of fact) on matters on which the intervenor is in clear default and regarding which the Board has not found a serious safety concern warranting sua oponte consideration.
Such a scheme is totally unfair to Applicants and is wholly inconsistent with the Commission's Rules of Practice and case law.
As noted above, a party's default for failure to file proposed findings constitutes abandonment of the contentions (or of particular subissues of a contention when pro-posed findings are filed only on portions of the contention).
San Onofre, ALAB-717, supra.
Further participational rights should not be accorded the i
' ntervenor as to these matters.
See Northern States Power i
Co. (Prairie Island Nuclear Generating Plant, Units 1 and
a
- 2), ALAB-244, 8 AEC 857, 864 (1974); Consumers Power Co.
(Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 333 (1973).
The rights forfeited include presentation of further evidence for any purpose in any forum, i.e.,
licensing or appeal boards, on each aspect of the contention which was abandoned.
To provide otherwise would permit the defaulting party, having flaunted the Commission's adjudicatory process, to fully participate again by submitting additional (or the same) evidence or statements of position.
This conclusion is particularly compelling where, as here, the Board has not found that any issue raised in the proceeding warrants sua sponte consideration based on the evidence of record.
l Accordingly, while the Board may and should call for the NRC Staff and the Applicants ( those parties having participated fully at each stage of the proceeding, including the filing of proposed findings on the issues under censideration) to file evidence or statements of position on these issues, the Board should not allow the defaulted intervenor to resurrect its abandoned contention by submitting further evidence or statements of position.
B.-
Sua Sponte Authority Issuance of the Board's proposed decision as a final decision would be wholly unreasonable ~and unfair to Applicants and incorrect as a matter of NRC law and
s
.. 1 i
policy.
Applicants believe that the Board's proposed decision misapplies the Board's authority to retain, sua sponte, issues that have been abandoned by the intervenor and are thus no longer in controversy.
We recognize that had the intervenor not abandoned its allegations, the Board may have requested that the parties address particular questions, as necessary, to assure a complete record on admitted contentions.
However, such a situation does not exist here.
There are no longer any contested issues (by virtue of intervenor's abandonment of its allegations) concerning the matters thich the Board has proposed as "open issues."
The distinction between the Board's exercise of its sua sponte authority and its authority to request information to complete the record on contested issues is clarified in the June 30, 1981, directive from the Commission to the Licensing and Appeal Panels.1 In that directive, the Commission instructed the Boards, before posing a question, "to make the initial determination of whether a Board question is an exercise of sua sponte authority or a question asked to ensure the completeness of the record on an admitted contention."
'l Memorandum For:
Alan S.
Rosenthal, Chairman, ASLAP; B.
Paul Cotter, Jr.,
Chairman, ASLBP; Leonard Bickwit,-
Jr., General Counsel, from Samuel J.
Chilk, Secretary:
" Raising of Issues Sua Sponte in Adjudicatory Proceedings,". June 30, 1981.
1 e
. Reviewing the proposed decision in this light, it is clear that the Board is seeking only to round out the record on abandoned allegations raised by the intervenor.
The Board did not declare any of the allegations to raise serious safety questions and did not issue the separate order called for by the Commission when a Board raises an issue sua sponte.2 Thus, because the allegations were abandoned, they do not require or warrant supplementation of the record.3 We believe that the existing record is adequate for the Board to conclude as to those matters that no " serious safety, environmental, or common defense and security 2
_I d.
3 An examination of the abandoned allegations on which the Board seeks further information confirms that the Board is simply seeking to complete the record on them.
For the most part, the Board identifies only the allegations for which it was unable to glean from the L
record evidence from Applicants and the Staff that l
would have permitted the Board to decide the allegations on their merits.
In addition, the Board does not propose to dispose of any abandoned allegations in its proposed decision unless it finds evidence in the record by either Applicants or the Staff responding directly to the allegations.
I l
matter exists."
10 C.F.R. $2.760(a).4 It is necessary in i
demonstrating this point to review pertinent Commission law and policy on the Board's sua sponte authority.
The proper role for NRC Licensing Boards in operating l
licenses cases is to resolve matters in controversy between the parties.
Matters not in controversy between i
the parties may be examined only when the presiding officer determines that a serious safety, environmental, or common defense and security matter exists.
10 C.F.R.
$2.760a.
We submit that the Board throughout this case has tended to-exercise its sua sponte authority in an overly-broad manner.
Without making the findings necessary to raise a question sua-sponte, the Board previously has raised as " Board questions," and required presentation of evidence by Applicants and the Staff regarding, several matters which were not associated with
?
contested issues (on which the Board properly may have determined that additional evidence was.necessary to l
4 Applicants recognize that the record is complex and that two members of the Board were not presiding when the record on these matters was developed.
- Further, i
Applicants alone are at risk if the Board does not adopt Applicants' legal arguments.and declines to l
dispose of the "open' items in:its proposed decision.
In order to assist the Board, we provide herein, infra, summaries of the evidence of record for each matter or i
an explanation as to why further evidence.is L
unnecessary.
We also provide two affidavits to' clarify L
Applicants'. positions on certain matters.
L
I e
i
_9_
complete the record) or which were unrelated to matters 2
within the scope of other responsibilities of the Board (such as assuring adequate treatment by the Staff of unresolved generic safety issues).
For example, the Board requested that Applicants and Staff present evidence or "information" on the operating quality assurance program for Comanche Peak; the deletion of the boron injection tank at Comanche Peak (solely on the basis of an assertion made by an intervenor in its pleading withdrawing from this proceeding); numerous Board Notifications concerning topics such as the USGS position on the Charleston, South Carolina earthquake, a contractor report (not representing an NRC position) regarding the history of accident sequence precursor events, and the classification of safety equipment at Comanche Peak; and the effect of voltage spikes or pressure surges on control instruments.
Applicants and/or the Staff were able to satisfy the Board as to each question raised in this manner that no health or safety issue exists.
Thus, it is not the end results of this process that Applicants criticize, but rather the fact that the Board has consistently misused its sua sponte authority in this case, and apparently proposes to continue to do.so..
Applicants have not pro-
[
tested this practice earlier because it would have been difficult, if not impossible, to obtain interlocutory I
e e l review of the practice and because such a protest would inevitably have caused delay in the proceeding.
With that perspective, Applicants (and the NRC Staf f) dutifully responded to each such Board inquiry without protest.
f However, the Board now has proposed to leave "open" a j
multitude of questions that were raised by the intervenor and, as the Board correctly concludes, then abandoned by the intervenor.
In view of the lateness of the hour, Applicants can no longer content themselves by responding to each proposed "open" question, as in the past, without protest.
While we feel compelled out of self-protection to provide sammaries of the record and/or affidavits on each "open" question (see note 4, supra), we also feel compelled to protest the Board's retention of the abandoned allegations in this manner.
We perceive this to be a legal question as to the manner in which the Board may raise issues sua sponte.
l The question to be answered is whether it is the role of the Board to actively pursue all allegations raised in the course of a hearing concerning an admitted, but subsequently abandoned, contention to satisfy itself that a serious safety concern does not exist, or whether the l
Board is to raise issues sua sponte only as to those l
L matters that present, prima facie, serious safety issues.
We believe that the latter correctly describes the Board's i
I i sua sponte authority, and that the Board proposes incorrectly to exercise that authority in the manner described in the former.
The Board has incorrectly asserted its sua sponte authority in the past, on both generic and plant-specific issues, in two ways.
First, it has raised matters as Board questions, and required the presentation of evidence, apparently on the basis of intellectual curiosity.
An example is Board Question 2 regarding Applicants' operating QA/QC program.
The Board callt.d for evidence on that program, although there certainly was no apparent or stated substantive reason to believe that it presented a serious safety matter.
Second, the Board has raised matters for " preliminary inquiry" (i.e.,
receipt of affidavits or other evidence from Applicants and/or the Sta f f) in order for the Board to determine whether its sua sponte authority should be asserted.
Examples of such
" inquiries" are the Charleston earthquake and the history of accident sequence precursor events.
Likewise, there was no stated reason to believe that these matters raised serious safety questions.
In.either case, the result is the same, viz.,
Applicants and/or the Staff are required to make i
submittals on matters that are uncontested by the parties and that have not been affirmatively determined by the w-
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. Board to constitute a serious safety issue.
See Texas Utilities Generating Company (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC 1111, 1114 (1981).5 We do not intend to preclude the possibility that a Board may have sufficient reason to pursue a question (regardless of how it may have come to the Board's attention) by requesting information from the parties to determine whether the question warrants full sua sponte consideration.
However, to pursue this course with respect to issues raised but abandoned in a contested proceeding, and on which, as shown below, the record is adequate or the intervenor faile d to meet its burden of going forward, is a misapplication of the Board's sua sponta authority.
Such unfettered Board inquiry renders 10 C.F.R. $2.760a meaningless.
Under such an approach an intervenor would be permitted to gain admission to a proceeding, raise unsubstantiated or insubstantial allegations through the summary testimony of witnesses (or merely by inconclusive 5
of course, when a serious safety issua comes to the attention of the Board, it may be pursueu by the Board in accordance with 10 C.F.R. $2.760a.
In such a case, the Board has an obligation under 10 C.F.R. {2.760a to make an affirmative finding that a serious safety matter exists prior to exercising its sua sponte authority.
Comanche Peak, supra, CLI-HTT36, 14 NRC at 1114.
e
.. cross-examination), and then abandon its contention, leaving the Board to pursue each and every allegation with i
the applicants and Staff to determine whether a serious safety matter may have been raised by the allegations.
Clearly, such a scenario is not contenplated or justified under 10 C.F.R.
$2.760a or any other section of the Commission's Rules of Practice.
Such an approach would subvert the entire adjudicatory process.
Yet as farfetched as that scenario may seem, it is precisely the scenario that is playing out here.
1 Applicants submit that many of the matters that the Board proposes to designate as "open" should be disposed of without further consideration.
As to those matters, tha record consists largely of bare allegations of the intervenor that do not sustain the intervenor's burden of going fo rwa rd.
Even if the intervenor had not abandoned these allegations, the allegations would not have provided the necessary prima facie case for further inquiry by the Board.
Just recently the Appeal Board reaffirmed the duty of intervenors to establish a prima, facie case before an applicant need respond to its claims.
The Appeal Board stated as follows:
The ultimate burden of proof on the question of whether the permit or license should be issued is, of course, upon the applicant.
But where, as here, one of the other par-ties contends that, for a specific.
.. l
. reason * *
- the permit or license should be denied, that party has the burden of going forward with evidence to buttress that contention.
Once he has introduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of proof, must provide a sufficient re-buttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license.
[ Louisiana Power & Light Co.
(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC (June 29, 1983 slip op. at 24), quoting Consumer's Power Co. (Midland Plant, Units 1 and 2), ALAB-123, 6 AEC 331, 345 (1973) (footnote omitted).]
The reaffirmation of these principles by the Appeal Board in Waterford is significant because it again upholds the
" threshold test" established in Midland and its progeny which requires that intervenors satisfy are evidentiary burden when raising an issue before the Board.6 In any event, given the fact that the allegations were abandoned, the Board is faced with a more stringent threshcid to further inquiry, viz., do the allegations 6
- See, e.g., Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), ALAB-161, 6 AEC 1003, 1008, reconsideration denied, ALAB-166, 6 AEC 1148 (1973);
remanded on other grounds, CLI-74-2, 7 AEC 2, reaffirmed 7 ALAB-175, 7 AEC 62 (1974), a f f'd sub nom.
Citizens for Safe Power v. NRC, 524 F.2d 1291 (D.C.
Cir. 1975); Commonwealth Edison Co. ( Zion Station,
Units 1 and 2 ), ALAB-226, 8 AEC 381, 388-89 (1974);
Philadelphia Electric Co. (Limerick Generating Station (Units 1 & 2), ALAB-262, 1 NRC 163, 191 (1975).
l
. raise serious safety iscues?
We submit, and will demonstrate (infra,Section III.C), that they do not.
The Board apparently proposes to treat each allega-tion raised by the intervenor, then abandoned, as matters requiring affirmative findings of the Board that no safety issue exists.
We submit that this approach is backwards.
As noted above, because the intervenor has abandoned each allegation, the Board is left merely with the task of determining under 10 C.F.R.
$2.760a whether any serious safety issue exists.
Unless the Board affirmatively finds that such serious safety issues exist, it should dismiss the allegations.
III.
S_PECIFIC OBJECPIONS A.
Emergency Planning With regard to the Board's proposed disposition of intervenor's Contention 22 (emergency planning),
Applicants (1) request that the Board clarify its l
l disposition of the contention; (2) object to the Board's l
retention of jurisdiction to raise emergency planning issues sua sponte at some future time; and (3) request that the Board either simply decline to rule on emergency 1
_ planning (the contention having been dismissed as abandoned and no sua sponte issue having been properly raised) or, in the alternative, find that there is
. reasonable assurance that emergency planning will be adequate and conclude that resolution of open items is properly left to the Staff.
In brief, the Board correctly stated in its proposed decision that CASE failed to pursue the emergency planning contention vigorously; that CASE had few questions of Staff and Applicant witnesses on emergency planning during the hearing; and that CASE's failure to file proposed findings on its emergency planning contention constitutes abandomment of the contention.7 Proposed Initial Decision at 50-51.
While the Board clearly ruled that Contention 22 was abandoned by the intervenor, the Board did not clearly and unambiguously order intervertor* c Contentien 22 dismissed, It should sa or6er in its initial decision now propuced.
Further, the Board retained jurisdiction to raise issues sua sponte at a later time if the commitmenta made in the emergency plans are not carried out and if 1
l deficiencies in state or county emergency plans are not rectified.
Proposed Initial Decision at 52.
As discussed below, the Board should not retain such jurisdiction, but 1
\\
7 CASE did file proposed findings on certain other matters.
Therefore, abandonment is properly invoked.
San Onofre, supra, ALAB-717, slip op. at 48-49.
. rather should conclude that emergency planning is ripe for decision, and should dispose of emergency planning in its initial decision.
1.
Standard for Decision on Emergency Planning Applicants do not dispute that the need for completion of state and county emergency planning documentation is indicated in the record in this proceeding, that there are commitments to be fulfilled, or o
that there is an exercise to be conducted.
We do dispute that these matters are barriers to adequate emergency planning or need to be completed before the Board may and should issue its final decision.
Even if the intervenor's emergency planning contention had not been abandoned, there would be no basis to withhold decision.
The contention hr.ving been withdrawn, and there being no basis to raise a sua sponte issue because of "open items" in emergency pisnning, there is a fortiori no basis to withhold decision.
Only if there is a proper record basis for a conclusion that there are " barriers to emergency planning i
implementation or to a satisfactory state of emergency l
preparedness that cannot feasibly be removed" (46 Fed.
Reg. at 61135) does the Commission contemplate that a Licensing Board would fail to authorize the issuance of a license.
Manifestly, grounds for withholding decision do
. not include the fact that an exercise has not yet been completed, that a final FEMA determination is yet to come, or that favorable conclusions regarding emergency planning are dependent upon fulfillment of commitments or the remedying of minor deficiencies.
As was very recently pointed out by the Appeal Board in Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC (June 29, 1983), the Commission no longer requires an emergency planning finding by Licensing Boards based on accomplishments already of record.
At one time, NRC regulations required a finding that "the state of onsite or offsite emergency preparedness can provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency."
Waterford, supra, ALAB-732, slip op. at 46 (quoting from superseded regulations) (emphasis addsd by Appeal Board).
Now, howaver, a predictivo approach has been adopted.
In July, 1982, the Commission amended its regulations to eliminate the inquiry into the state of emergency preparedness at the time of a decision.
The commission explained that "the findings on emergency planning required prior to license issuance are predictive in nature".
47 Fed. Reg. 30232, 30235 (June 13, 1982),
Pet. for Rev. pending sub. nom. Union of Concerned 1
i l
e 1
' l l
l Scientists v. Nuclear Regulatory Commission, No. 82-2053 (D.C. Cir. filed September 10, 1983).
The Appeal Board in Waterford explained, as follows:
"The notice of proposed rulemaking that preceded this amendment expressed the Commission's intent that ' full scale emergency 1
preparedness exercises [be] part of the operational inspection process and [be]
required prior to operation above 5% of rated power but not for a Licensing Board, Appeal Board or Commission licensing decision' ".
(citing 46 Fed. Reg. 61134 (Dec. 15, 1981))
(emphasis added by Appeal Board) (slip op. at 46).
The final FEMA findings will, in part, be based on FEMA's review of the final emergency exercise involving both offsite and onsite emergency response personnel.
Tr.
5723.
Indeed, based on its policy (soon to be codified),
FEMA cannot issue its final findings until after review of the cmorgency exercise.
44 C.F.R. $3 50.8( f) (proposed),
47 Fed. Reg. 36386, 36391 (August 19, 1982).
Se e 47 Fed.
Reg. at 36308, where FEMA states that the provisions of c
the proposed rule 44 C.F.R.
Part 350 are intended to be FEMA policy until the final rule is issued.
See also Tr.
5723-24, where a FEMA witness stated that the process of preparing final FEMA findings would follow that set forth in the proposed rule referenced above.
In short, it is clear that FEMA's final findings are, in part, based on and cannot be issued until after the emergency response exercise now scheduled to be conducted in October, 1983.
o e,
As noted above, the Commission has instructed that
" emergency preparedness exercises are not required for a Licensing Board, Appeal Board, or Commission licensing decision."
See 47 Fed. Reg. at 30233.
As also noted I
above, the emergsney exercise must be conducted before (and constitutes an integral part of) the final FEMA findings.
Thus, for this Board to await final FEMA findings before issuing a final decision on the operating license application would be clearly contrary to these Commission regulations.
Predictions as to the future state of emergency planning are sufficient for a Licensing Board decision.
All the details of planning need not be final, the i
exercise need not have been conducted, and the final FEMA findings need not have been entered.8 Where there is an emergency planning issue before a Licensing Board, the t
plan need only be sufficiently developed to permit the Board to make its " reasonable assurance" findings on a predictive basis as indicated by the Commission.
The fact i
'that emergency planning is an ongoing, evolving process is not a barrier to an initial decision by a Licensing Board.
I The Board need only assure itself (assuming that there is a' contested issue cn1 emergency planning or a properly l
l raised sua sponte question) that there is no barrier to i
8 San Onofre, supra, ALAB-717, slip op. at 66.
. emergency plan implementation or to a satisfactory state of emergency preparedness that cannot feasibly be removed.
(46 Fed. Reg. at 61135. )
Other recent Appeal Board decisions are to similar effect regarding the standards to 1
be applied by Licensing Boards in finding reasonable assurance as to emergency planning.
See Cincinnati Gas and Electric Co. (WM. H.
Zimmer Nuclear Station, Unit 1)
ALAB-727, 17 NRC
( May 2, 1983) (slip op, at 15, 22); San Onofre supra, ALAB-717, slip op. at 66 n.
57.
2.
There is No Basis for a Sua Sponte Issue The Board did not raise a sua gponte issue as to emergency planning, or make the requisite determir,ations.
It proposed to retain jurisdiction to raise such an issue later if deficiencies wt;re fact corrected and commitments not fulfilled. (Froposed Initial Decision at 52.)
The Board explcined that Lt "is not satisfied that the plans as presently constituted are adequate.
It remains concerned about these
[ presently unfilled] promises Our order of June 27, 1983 elaborates further about the extent of our concern about this issue" (Proposed Initial Decision at 52).
In fact, in its June 27, 1983 Memorandum and order, (Late-filed Contention on Emergency Planning), the Board indicated that it has not concluded that there.are l
" serious" open safety issues regarding emergency planning.
[
i
i l
f The Board did indicate misgivings about the adequacy and I
depth of the FEMA review of " paper plans."
However, this appears to be a generic concern, not an issue unique to this case.9 The Board's other concerns also are not a
(
basis for exercising its sua sponte authority.
In an operating Jicense proceeding the Board need only:
"make findings of fact and conclusion of law on matters put into controversy i
by the parties to the proceeding Matters not put into controversy by the parties will be examined and
(
decided by the presiding officer only where he or she determine that a serious safety, environmental or common defense and security matter exists
. The Director of Nuclear Reactor Regulation.
. after making the requisite findings [on other matters 3 will issuo, deny er appropriately condition the licease."
(
The implication of S3ction 2.760a is that the Board l
me.y properly leave "open itams" to resolution by the Stz.ff L
if the items are not in controversy among the parties and 1
I if they do not involve such a serious safety, 9
If the Board's concern is that it perceives generic problems with the way FEMA conducts its review (as is suggested.by its Memorandum and Order of June 27, 1983, at page 3), then the proper course is to send the Commission an on-the-record memorandum regarding its generic concerns rather than to delay resolution of an issue which is ripe for decision in a - particular proceeding based on the current. state of the Commission regulations.-
Compare the course followed as to the radon value in Table S-3 by Judge Jordan, 43 Fed. Reg. 15613. ( April 14, 1978).
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. environmental or common defense and security problem as to require Board sua sponte examination.
In particular, a Board is not permitted to exercise its authority to raise an issue sua sponte as a device to monitor the progress of the NRC Staff in evaluating and closing out open items.
This is so whether or not the open items were previously the subject of a contention that was withdrawn.
Comanche Peak, supra, CLI-81-36, 14 NRC at 1113-14.
We believe the same reasoning should limit the use of a Board's sua sponte authority to address an abandoned contention or to monitor the progress of another agency, in this case FEMA (as well as the NRC Staff), in closing out open items, verifying that deficiencies have been corrected, or confirming that commitments have been fult'111ed.
Leaving uncontaated matteru tc the MRC Staff is, of courae, gttite different from leaving to the Staff for post-licensing resolution matters which are within the
= cape of issues in controversy.
In'the latter situation, l
l such an approach is acceptable only for relatively trivial j
matters.. See-Consolidated Edison Co. of New York (Indian Point Station, Unit 2), CLI-74-23, 7 AEC 947, 951-52 (1974).
But even as to contested emergency planning matters, the Commission through adoption'of the predictive l
approach to emergency planning has institutionalized reliance on the NRC Staff to factor in the results of
-1
. exercises and to close open items, as discussed above.
That approach is particularly compelling where, as here, the contention has been abandoned by the intervenor.
In view of the foregoing, there is no basis on the present record for a conclusion that there are insuperable barriers to successful omergency planning or preparedness for the Comanche Peak facility, and therefore, no basis for a sua sponte issue.
It follows that emergency planning is ripe for final decision.
Accordingly, the Board should rule that the contention, having been abandoned, is dismissed and no findings or conclusions by the Board are necessary, and enter an order to that effect.
Alternatively, the Board should find affirn:atively that there are no barriers to adequate emergency planning that cannot feasibly be removed, and leave to the Staff the verification that commitments are fulfilled and significant deficiencias corrected.
B.
"Open Issues" The Goard has identified in its Proposed Initial Decision several instances in which it proposes that further information is required regarding particular allegations abandoned by the intervenor before a determination can be made as to whether to declare a sua sponte issue in accordance with 10 C.F.R. {2.760a.
For the most part, these matters involve allegations as to
_A
which the Board believes the Applicants ' and the Staff did not present direct evidence or as to adtich, the Board believes there is a gap in the evidentiary record that should be closed.
Applicants present below their responso to the Board's proposal that those items be designated as "open issues."
As will be demonstrated, most' of those s
items are addressed by evidence already in the record in this proceeding.
Where appropriate, we have provided an affidavit to support our objections, as instructed by the Board.
Proposed Initial Decision at 2-3, n'.3.
At bottom, none of the Board's proposed "open issues" presents serious safety questions which warrant consideration as s
l
_s_u_a. sponte issues pursuant to 10 C. F. R. $2.760a,10 1.
Documentation of Nonconforming Conditions on Protectivo Coatings f
The first item the Board proposes assan "open issue" is an abandoned allegation by in':erveno'r's witnesses
~
Robert and Cordella Hamilton regarding the writing of nonconformance reports ("NCRs") on work performed by the paint department.
The Board stated that tho allegation is
" closely related to the issue of 'tanagement'.s _ commitment 10 The Board also identified certain issues which it declines to rule on at this time because of their apparent relationship to.thh ongoing investigations into inspector intimidation and management'c'motitment o
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to the QA program.
Where the Board apparently;also,c q
considers there to'be a gap in the factual record concerning those issues, we address those issues as
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to the quality control program," and as such, remains open.
Proposed Initial Decision at 21-22.
As demonstrated below, the evidence of record provides no basis for finding that a serious safets' concern exists s
with respect.to this-abandoned allegation or the adequacy t
~
' olf protective ' coatings at ' Comanche Peak.
Mrs. Hamilton's allegation was that she had heard l
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that paint inspectors had been direc'ded not to write NCRs w
on. protective coatings for a period of approximately one year.
Mrs. Hamilton fi'rst claimed that she personally had heard such a directive, but she subsequently admitted that she did not hear that directivo herself, but understood based on hearsay from paint inspecturn that there had bean such a directive.
(CASE Exhibic. 652 at 19-20. )
Mr.
~
Hamilton, who was a paint inspector,. supervisor, did not allege that the directive was that inspectora not write
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.e NCRs, but rahher stated that his supervisor had requested
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that the paint in'spectors should pick ~ up their production
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and st'op " nit-picking".. He testified, however, that he (and phes'umably 'his-inspectors) did'not conduct himself (themselves) any differently a'fter' 'that request.
In fact, he did not believe hhdt the supervisor was intending to
'D' intimidate the insp'ec' tors.
(CASE Exhibit 653 at 43-44.)
In short, the only testimony before the Board by a witness t
with direct knowledge of the alleged directive reflects
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there was no intimidation or intent to intimidate, that there was no alteration of job ' performance as a result of
-the directive, and that in fact the supervisor who illegedly gave the " directive" had merely been urging a more efficient job perfornance (a perfectly valid request of any employee, including inspectors).ll Thus, the testimony of these witnesses raises no issue that should r
be left "open" or pursued sua sponte.
-L In any event, there is additional evidence of record on' which the Board may rely to find that there is no safety concern regarding the application of paint (protective coatings) at Comanche Peak.
Specifically, the Board should find added assurance that the protective
~
coatings have been properly applied and inspected at Comanche Peak by virtue of an extensive reinspection 1
orogram of protective coatings.
This reinspection effort i
,s utilized testing techniques appropriate to evaluate the s
condition of all applied coatings.
Applicants have l
.u l
11 To the extent the Board may have been concerned with l
- the " nit-picking" comment alleged to have been made, iApplicants note ~ that the evidence demonstrates that
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the witness cited.no instance in which an inspector 1
failed to identify a nonconforming condition as a l
result of this comment.. The witness himself testified that there was no change in the manner the inspectors performed their Jobs.
Indrad, that comment could be viewed as intended to urge more timely and efficient inspections (a valid management function).
- Thus, there is no reason to conclude that the statement was improper or that any serious safety concern is raised by this abandoned allegation.
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. already addressed this reinspection program in, and we invite the Board's attention to, proposed findings 93 and 94 of our February 25, 1983, Proposed Findings, which we incorporate herein by reference.
The evidence discussed there provides a high level of assurance that protective coatings at Comanche Peak satisfy applicable requirement's.
2.
Alleged Harassment of OC Inspectors The next "open item" proposed by the Board concerns an abandoned allegation that craft personnel in the paint department harassed quality control inspectors.
Proposed Initial Decision at 22.
This allegation was made by Mr.
Hamilton who described instances which he believed constituted harassment of inspectors by the paint craft (CASE Exhibit 653 at 36-39).
However, he did not identify any instance in which such alleged " harassment" resulted in a failure to identify deficiencies in the protective coating area.
In fact, he acknowledged that the craft knew that no work would be acceptable without QC inspection.
He did not claim that QC inspections were not performed or were not performed adequately.
(CASE Exhibit 653 at 37-38.)
Thus, there is no basis for the Board to conclude that there is a serious safety concern in this area warranting sua sponte consideration.
l l
o Surely, the Board can fairly and logically distinguish between the isolated pranks described by the witness on the one hand, and a systematic program of harassment endorsed by management on the other.
The evidence in no way supports any hint that the latter situation ever existed at Comanche Peak.
To the extent the Board considers this matter to be a question of management ~ commitment to quality assurance, Applicants have presented extensive testimony by all levels of management responsible for bnplementation of the QA program.
Applicants' Vice President, Nuclear, Mr.
B.
R.
Clements, testified specifically regarding management commitment to QA and demonstrated a firm resolve to assure an effective QA program.12 (Applicants' Exhibits 8 and 118; Tr. 598-608, 2157-59, 2176-77, 2183.)
In addition, Applicants' Manager, Quality Assurance, Mr. Chapman, presented testimony regarding, inter alia, the QA/QC Organization for Comanche Peak.
He also exhibited a firm
[
commitment to an effective QA program.
(Applicants' Exhibits 42 and 123; e.g., Tr. 1945-55.)
Further, the only evidence regarding actual threats being made to an I
12 Although a portion of Mr. Clement's testimony was presented in the context of the operating quality
. assurance program ( Board - Question 2 ), ' the philosophy and management resolve to an effective QA program l
evidenced by Mr. Clement's testimony in that regard is applicable equally to both the construction and operations OA programs.
30 -
inspector by craft personnel indicates that the craft person involved was removed from the project.
In fact, the conclusion of the NRC Construction Appraisal Team regarding intimidation was that " aggressive action was taken by management to prevent inspector intimidation."
(NRC Exhibit 206 at VII-4.)
In short, there is ncg evidence that management at Comanche Peak permits or condones any inspector intimidation and in fact the evidence demonstrates that management takes swift action to prevent the occurrence of such intimidation.
3.
Alleged Unsafe Working Conditions The Board also proposes as an unresolved question an abandoned allegation by Mr. Hamilton that he was fired for refusing to perform an inspection under what he believed j
were unsafe working conditions.
The Board indicates that it considers this allegation to be relevant to Applicants' attitude toward the quality control program and thus will await addressing this matter until a subsequent decision.
Proposed Initial Decision at 22.
However, as demonstrated below, this allegation does not relate to or provide any basis to question Applicants' commitment to an effective Quality Assurance program, and should not be left open for a subsequent decision.
4 O Mr. Hamilton's specific allegation was that he was fired for refusing to conduct an inspection of coatings on the liner plate wall from a crane rail platform (CASE Exhibit 653 at 7-10).
The disagreement which led to Mr.
Hamilton's dismissal was over the occupational safety of p'erforming that inspection.
Mr. Hamilton admitted, however, that the area had been inspected by the Safety Department at Comanche Peak as a result of his complaint and was determined to be safe for inspection.13 (CASE Exhibit 653 at 8, 26.)
He also stated under oath in his deposition that various other inspectors and craft personnel had worked on the crane rail platform without scaffolding.14 The Board's concern regarding this matter apparently stems from Mr. Hamilton's claim that others who also refused to perform the inspection were not dismissed.
The Board somehow connects that claim with Applicants' attitude toward the QA/QC program.. Mr. Hamilton's refusal to perform an inspection in an area deemed safe by the Safety Department at Comanche Peak and readily traversed 13 Mr. Hamilton filed a complaint with the Occupational Safety and Health Administration, which found no merit to his claim (CASE Exhibit 653 at 9; see Oral Deposition of Robert Hamilton, at 28-30 (excerpt attached hereto as Attachment A )).
l'4 Oral Deposition of Robert Hamilton at 18-31 (Attachment A hereto).
e o by other employees at Comanche Peak was good cause for dismissal.
The claim that others were not dismissed for refusing to perform the inspection obviously ignores that two other inspectors were dismissed along with Mr.
Hamilton for that reason.
Further, his suggestion that still other inspectors may have refused to perform the inspection, yet were not fired, fails to indicate the other circumstances that may have been involved in those situations.
The sbuple fact is that many other employees performed various assignments (including inspections) under the same conditions that existed when Mr. hamilton refused to perform his assignment.
The Board has incorrectly implied that there is some merit to Mr. Hamilton's safety claim, and that the claim somehow qmplicates Applicants' attitude toward the OA program.
The logical extension of that line of reasoning, based on the facts here, is that Applicants would devise a complicated scenario involving multiple parties, l
disciplines and organizations simply to justify dismissal
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of Mr. Hamilton.
Certainly this is an unjustified and l
unfair posture for the Board to assume.
A fair analysis of the facts must lead the Board to conclude that Mr.
Hamilton's dismissal was proper and in any event involved an employment dispute beyond the scope of Contention 5 and the jurisdiction of this Board.
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. 4.
Alleged Inadequacy of Protective Coating Procedures The Board identifies what it perceives to be a " gap in the record" regarding Mr. Hamilton's testimony concerning alleged inadequacies in certain procedures for protective coating inspection.
Specifically, the Board apparently seeks additional evidence regarding allegations by Mr. Hamilton concerning (a) alleged lack of standards for determining near white blast for surface preparation; (b) lack of maximum roughness standards for steel substrate surface; and (3) procedural changes which allegedly reduced all painting inspection to adhesion testing.
Although the Board states that it has not concluded that any problem exists in this regard, it also apparently invites.the intervenor to introduce evidence to demonstrate "significant faults" in these procedures.
If such evidence is produced, it could lead the Board "to question the supervisors who approved them as well as the adequacy of the inspections performed following them."
Proposed Initial Decision at 23.
Simply put, the Applicants object most strenuously to the Board's plan to allow the intervenor to resurrect an abandoned contention and submit additional evidence on it.
The Board already has found that the evidence of record to date does not raise a serious safety matter regarding u
these procedures or the qualifications of Mr. Hamilton' s supervisor.
Proposed Initial Decision at 23-24.
No sua.
s sponte issue has been found to exist by the Board.
Thus, the intervenor failed to sustain its burden of going forward to establish a prima facie case (Waterford, supra), and that should be the end of the inquiry.
Mr.
Hamilton did not claim to be an expert on paint and coatings (Tr. 3510) and professed nct expertise on which to base an expert opinion as to the implications of his allegations (Tr. 3512).
These naked allegations of a lay witness fail to sustain the intervenor's burden of proof.
Thus, the Board should dismiss the abandoned allegations as being without merit.
Notwithstanding the foregoing, Applicants' feel compelled out of self-protection to address each of these abandoned allegations.
The Affidavit of C.
Thomas Brandt
( Attachment B hereto) also is provided to support Applicants' objections regarding these matters.
On the basis of this information, the Board should find that no gap exists in the record and promptly close these items.
a.
Near White Blast i
Mr. Hamilton alleged that there were no standards for
' determining whether near white blast had been achieved in surface preparation.(CASE Exhibit 653 at 15, 18).
However, as demonstrated in Mr. ' Brandt's affidavit, the
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- procedures do provide for utilization of a surface comparator (a device used for visual inspection) for this purpose, in accordance with the design specifications.
Brandt Affidavit at 2.
Accordingly, this allegation simply is without merit.
b.
Maximum Roughness Mr. Hamilton alleged that there is no maximum value for surface roughness in the specifications regarding steel substrate surfaces.
Mr. Hamilton further claimed l
l that the rougher the surface, "the earlier the paint will break down."
(CASE Exhibit 653 at 16. )
Mr. Hamilton is correct in part and incorrect in part.
In fact, the I
I inspection procedure for Comanche Peak does indicate that no maximum profile will be specified, but only if the
" correct millage requirements can be obtained after primer j
application."
If there is no compliance with the millage requirements, the coating will be rejected and reworked.
Brandt Affidavit at 3.
Thus, the implication in Mr.
Hamilton's allegation that maximum surface roughness is not procedurally addressed is incorrect.
Further, Mr.
Hamilton has it backwards in claiming that the " rougher the surface is, the earlier the paint will break down."
As Mr. Brandt states in his affidavit, a profile depth greater than the minimum specified would tend to increase adhesion of the coating to the substrate.
The only
- detrimental effect of this condition would be to create a surface on which it.was difficult to obtain uniform coating thickness.
This occurrence is procedurally 5ddressed by inspection utilizing dry film thickness gages.
Brandt Affidavit at 3.
Thus, Mr. Hamilton' s allegation in this regard is also without merit.
c.
Use of Adhesion Testing Mr. Hamilton further alleged that any paint which passed the adhesion test would be acceptable (CASE Exhibit 653 at 19).
Mr. Hamilton does not state the significance of this allegation nor does he indicate what procedures l
should be applied instead of the adhesion testing.
The implication is, however, that additional testing should be, but was not, performed.
In any event, as Mr. Brandt states in his affidavit, Mr. Hamilton's claim that all painting inspection is reduced to adhesion testing is wrong.
Protective coatings inside containment at Comanche Peak are visually inspected, inspected for dry film thickness, and if records for surface preparation and/or primer application are missing or discrepant, destructive testing (i.e., adhesion or scratch tests) will be performed in the area in which the records are deficient.
Brandt Affidavit at 3-4.
In short, Mr. Hamilton's allegation is without merit.
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s 5.
Alleged Unsatisfactory Disposition of NCRs The Board proposes as an "open item" the abandoned allegations by Mr. Hamilton that the dispositions of certain NCRs were inadequate.
The Board states that it needs to evaluate the disposition of the NCRs related to Kelly heaters which smoked and the procedures for repair of minor defects.
Proposed Initial Decision at 24.
Before addressing this matter directly, we must express our amazement that the Board would question the disposition of these NCRs on the basis of abandoned allegations by a lay witness who admitted to having no particular expertise to assess the significance of his allegations.
The Board's interest in the Kelly heater matter is particularly hard to fathom because Mr. Hamilton was not even sure how the NRC had been dispositioned, yet questioned that disposition (CASE Exhibit 653 at 22).
Certainly the intervenor failed to meet its burden of going forward here, and the Board could treat these allegations as patently insignificant, even if the I
allegations had not been abandoned.
In this regard, Applicants note that the Board has disposed of some of the allegations by Mr. and Mrs. Hamilton on the very grounds that the allegations were made by a lay witness in general terms (Proposed Initial Decision at 21), and in other instances allegations have been disposed of because NCRs
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.. were written and there are controls requiring proper disposition-(Proposed Initial Decision at 47).
The i
disposition of NCRs_ and the approval of procedures are matters which the Board should presume, based on the record, to have been performed satisfactorily by persons technically qualified in the particular field.
In any event, Applicants provide the following information, supported by the Affidavit of Mr. Brandt.
a.
Kelly Heaters Mr. Hamilton alleged that an NCR which was prepared regarding the possible contamination of a painted surface by smoke from a heater being used to cure the paint was inadequately dispositioned.
As noted above, Mr. Hamilton testified that he did not " remember exactly what the disposition of [the NCR] was," but he nonetheless believed i
there was not an adequate disposition.
(CASE Exhibit 653 at 22. )
Mr. Hamilton did not identify _ by number the NCR in question.
As Mr. Brandt states in his affidavit, Applicants were unable to find an NCR written by Mr. Hamilton regarding Kelly heaters.
Applicants did find an NCR written by his supervisor on that subject.
A copy of that NCR is attached to Mr. Brandt's affidavit.
The disposition of the NCR was to require detergent washing or solvent wiping of the coating surface to remove any 1
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d surface deposits (soot) left by the smoking heaters.
This is the standard procedure for removing any non-embedded contamination on painted surfaces.
Further, any contaminants that may have become imbedded in the coating would be visually detected (in accordance with inspection instructions for visual inspections), rejected, and removed prior to final acceptance of the painted surface.
Brandt Affidavit at 5-6.
Thus, the disposition of this NCR was technically sound and the allegation is without j
- merit, b.
Repair of Minor Defects Mr. Hamilton alleged that the repair criteria for minor defects were inadequate in that it would be conceivable for a surface to have significant areas with defects and yet be classified as minor defects for repair.
Mr. Hamilton would require a primer coat to be used in such instances.
(CASE Exhibit 653 at 15.)
As Mr. Brandt states in his affidavit, the situation which Mr. Hamilton l
postulates is highly unlikely to occur in that coatings i
l are not subjected to any occurrence which could result in such extensive damage.
Rather, the defects which are addressed by these criteria (procedures) are those in which minor chipping or cuts may have been made in the coating.
In any event, these repair methods have been l
l approved by the coatings manufacturer as being acceptable
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. for repairing coating surfaces.
Further, the procedures applicable for the repair of major defects and damage such as was postulated by Mr. Hamilton would accommodate Mr.
Hamilton's concern regarding application of primer.
Brandt Affidavit at 4-5.
Accordingly, Mr. Hamilton's allegation regarding the repair of minor defects is unfounded and does not warrant further Board consideration.
6.
Westinghouse Paint The Board identified an abandoned allegation by Mr.
Hamilton regarding painting on Westinghouse components as an item which "the Board is currently unable to evaluate."
Proposed Initial Decision at 24.
Mr. Hamilton's allegation is that tests on coatings for Westinghouse components were not run by the on-site QC department, and he claims to have conducted an adhesion test on a coating which he claimed did not pass the test.
(CASE Exhibit 653 at 55. )
Mr. Hamilton did not identify which Westinghouse components he was addressing, and did not identify the component he claims to have tested.
The Board asks two questions with respect to this allegation.
First, the Board questions whether the paint is safety-related and, second, if so, whether the paint will perform satis factorily.
Partial Initial Decision at 25.
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. This is an instance where a review of the overall QA program for Comanche Peak, as described in the record, should satisfy the Board's concern.
Further, Applicants provide the Affidavit of Mr. Brandt in response to this particular allegation.
Mr. Brandt assumes in his affidavit that the items discussed by Mr. Hamilton which were supplied by Westinghouse, the NSSS supplier for Comanche Peak, are safety-related.
All Westinghouse performed activities are subject to the NRC-approved Westinghouse Quality Assurance / Quality Control program, including the inspection of paint on Westinghouse supplied equipment.15 The coating system used on Westinghouse components is identical to that employed on other steel items at Comanche Peak, including both the primer and top coat, and all paint is tested for adequate performance under design basis accident conditions.
Brandt Affidavit at 6.
Accordingly, there is no basis for concluding. that any safety concern is posed by Mr. Hamilton's allegation.
As for the allegation that the paint failed his adhesion test, Mr. Hamilton provides absolutely no specifics regarding the test he claims to have performed.
- Thus, this is sbuply a vague allegation by a lay witness that 15 The Board may also refer to-the testimony of Mr.
Chapman regarding the QA organization for Comanche Peak-and the responsibilities of Westinghouse'to implement its own QA program on its activities (Applicants' Exhibit 42 at 2-3 ).
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. wholly fails to sustain the intervenor's burden of going forward (even if the allegation had not been abandoned).
Thus, the Board should find that this allegation, made by a lay witness in very general terms, is insufficient to indicate a deficiency or to serve as a basis for a sua sponte question by the Board.
7.
Weave Welding The Board proposes as an "open item" an abandoned allegation by Mr. and Mrs. Stiner regarding weave welding.
Proposed Initial Decision at 32.
Applicants object to the Board's proposal.
The Board's questions regarding the Stiners' allegations concerning weave welding were previously communicated to the parties.
In response to those questions, both Applicants and CASE submitted additional information regarding weave welding.
See
" Applicants' Summary of the Record Regarding Weave and Downhill Welding," July 15, 1983.
Applicants see no point in repeating here their response to the Board's questions.
Rather, we incorporate that statement by reference and urge the Board to review it carefully.
Applicants note that this allegation again involves l
witnesses who profess no engineering expertise or i
competence to judge the structural significance of the welding practices which are the subject of their allegations (Tr. 4028-29, 4272, 4274-75).
Therefore, the
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Board should attach no significance to their assertions regarding the structural significance or safety implications of those welding practices.
Instead, the Board has before it in Applicants' Summary of the Record (July 15, 1983) the affidavit of an expert in welding (Mr.
Brandt).
As discussed in Mr. Brandt's affidavit, there is no structural significance to weave welding on the materials that were specifically identified by the Stiners.
The Board's questions are answered in Applicants' Summary of the Record (July 15, 1983), and there is no basis for the Board to find a serious safety concern warranting further examination of this abandoned allegation.
8.
Repair of Plug Welds The Board has proposed two "open items" relating to the abandoned allegation regarding plug welds.
First, the Board questions "whether such welds are being made and not being inspected."
The Board then notes that it is unable to identify the AMSE Code provisions which permit this practice.
On the basis of these two open questions, the Board proposes to withhold its ruling on this allegation.
Proposed Initial Decision at 33.
For the reasons discussed below, we believe the record is complete regarding plug welding and that the abandoned contention should be disposed of by the Board.
'o As-to the Board's first question, the Boar:1 is asking that Applicants do the impossible, i.e.,
to prove that no plug welding was performed at Comanche Peak without QC inspection.
The Board apparently is seeking absolute assurance that such an event never occurred.
To hold Applicants to such a standard is unreasonable and inconsistent with the legal standard by which this Board is to judge the adequacy of construction at Comanche Peak, i.e., whether there is reasonable assurance that the facility is built in accordance with the - construction permit.
$ VIII(b)(1).
Applicants submit that there is already extensive evidence in the record with respect to plug welding upon which the Board can rely to dispose of this abandoned allegation, including testimony regarding the applicable procedures and the results of interviews with craft and inspectors regarding plug welding.
This evidence clearly provides reasonable assurance that where it occurred, plug welding was QC inspected in accordance with established procedures.
The first step in assessing theso. allegations is to determine the precise nature of the claims being made.
Only witnesses Mr. and Mrs. Stiner testified that plug
- welding had occurred at Comanche Peak (CASE Exhibit 666 at 17-20; CASE Exhibit 667 at 30-31).
Mrs. Stiner testified
s that she had been instructed to plug holes with plug welds "without a QC inspector being present."
Apparently, her specific concern was that there were no QC hold points during the welding process, and that a QC inspector would examine only the finished weld product.
(CASE Exhibit 667 at 30.)
Thus, while Mrs. Stiner apparently disagreed with the absence of hold points for inspection, she did not allege that the required QC inspections of the final product were not performed.
Only Mr. Stiner alleged that the final plug weld was not being inspected.
(CASE Exhibit 666 at 20. )
In short, the record reflects the testimony of only one individual, Mr. Stiner, that QC was not inspecting finished plug welds in accordance with applicable procedures.
Applicants submit that such testimony fails to meet intervenor's burden of going forward, and is inadequate to support a finding that a serious safety concern -is involved.
The Board indicated that it will consider Mr.
Stiner's background in determining the weight it affords his testimony and whether his allegations are duplicated by other witnesses.
Proposed Initial Decision at 27.
Presumably this means that the Board would tre:'t with skeptisicm any allegation made by bk. Stiner alone, and 1
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i correctly so.
As shown above, only Mr. Stiner alleged that required QC inspections of final product were not performed.
Mrs. Stiner made no such allegation.
We submit that Mr. Stiner's testimony should be assigned no weight in this instance.16 In any event, it is certainly inconsistent with fair and balanced decision making to find that the sole testimony of such a witness outweighs the testimony of Applicants' witnesses, and the findings of an NRC Staff investigation which directly 4
16 Applicants object to the Board's proposed approach to the treatment of Mr. Stiner's testimony.
The Board proposes to consider Mr. Stiner's criminal record and fraudulent application, for employment as bearing only on the weight of his testimony.
Proposed Initial Decision at 27.
Applicants submit that Mr. Stiner' s background totally destroys his credibility and that his testimony should thus be afforded no weight.
The record reflects that he has had multipTe felony convictions-involving crimes of violence (Tr. 4278-80, 4488-89), a background that clearly supports total impeachment of his testimony.
See Rule 609, Fed.
R.
Evid., and accompanying Notes of Advisory Committee on Proposed Rules.
Further, the Board's observation that Mr. Stiner had no motive to make false allegations l
overlooks two important points.
First, Mr. Stiner had been terminated and refused reemployment by Brown &
Root prior to his involvement in the hearings (CASE Ex. 666A, p. 10).
The hearings provided an excellent opportunity for Mr. Stiner to exact retribution for his termination.
Second, the fact that Mrs. Stiner
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was employed at Comanche Peak at.the time Mr. Stiner L
testified certainly does not lend credibility to his testimony.
He knew that Mrs. Stiner was clearly protected under Section 210(a) (2) of.the Energy Reorganization _Act, 42 U.S.C.
$5851, for testifying in the hearings, and thus her employment does not support the conclusion-on his motive reached by the Board.
I
"o refute his allegation.
Applicants describe below the record on which the Board may rely to conclude that plug welding has been subjected to appropriate QC controls.
Applicants testified that plug welds are permitted at Comanche Peak to repair holes which were drilled in the wrong location, so long as a final visual inspection of such welds is performed by a QC inspector (Applicants' Exhibit 141 at 36; Tr. 4629).
In addition, the NRC Staff conducted an investigation of this allegation to determine whether there was a potential safety concern (NRC Exhibit i
178, Appendix at 5-6).
As part of this investigation, the NRC interviewed both welders and QC inspectors at Comanche Peak to determine the validity of the allegations.
Those interviews disclosed no instance in which either welders or inspectors believed that plug welds had occurred which had not been inspected in accordance with procedures.
of the five welders interviewed, three were aware of the practice of plug welding, but expressed no opinion as to whether it occurred without QC inspection.
The other two welders -believed that. plug welding was not authorized and they had not performed any plug welding.
As to the three i
inspectors interviewed, each stated that plug welding occurred and that such welding is authorized by procedure l
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with QC inspection.-
In sum,-the NRC's independent
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. examination of this allegation disclosed no evidence that plug welding had occurred at Comanche Peak without proper QC inspection.
As to the Board's second question regarding a provision in the ASME Code permitting plug welding, Applicants are unable to identify any instance in the record in which plug welding was stated to have been governed specifically by the ASME Code.
Ra ther, the record reflects that procedures used at Comanche Peak authorized the use of plug welding, subject to QC inspection.
Further, as Applicants testified (Applicants' Exhibit 141 at 36), plug welding is considered a fillet weld and thus would be dealt with under the ASME Code as a fillet weld, and not as a plug weld per se.
In other words, there is no provision in the Code addressing directly " plug" welding.
Thus, it is not surprising that the Board had been unable to identify any provision in the Code governing this practice.
l Accordingly,'there is no credible evidence on which l
L the Board could find that a serious concern for the safe operation of the plant is presented by this abandoned allegation.
Rather, the evidence in the record clearly demonstrates that appropriate procedures and controls are j
implemented in accordance with the QA program.
The Board should dispense with the abandoned allegation accordingly.
' 9.
Downhill Welding The Board has proposed as an "open item" the abandoned allegation by Mr. Stiner that downhill welding occurred at Comanche Peak in violation of site procedures.
Proposed Initial Decision at 33-34.
Applicants object to the Board's proposal.
Mr. Stiner's allegation was that downhill welding was prohibited in all instances at Comanche Peak (CASE Exhibit 666 at 45-46).
- However, Applicants presented testimony that some welding procedures used at Comanche Peak permitted downhill welding and that in any event downhill welding for root and cover passes was permitted by ASME Section IX.
In addition, Applicants testified that downhill welding was permitted by the American Welding Society ("AWS") Code to repair undercut.
See Applicants' Proposed Findings 209 and 210, and Applicants' July 15, 1983 " Statement of the Record."
The Board ibnits its question, therefore, to whether Mr. Stiner's allegation concerned only root and cover pass welds.
Proposed Initial Decision at 33-34.
Applicants first note that this is another allegation by Mr. Stiner that is not supported by any independent l
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. credible testimony.17 Thus, although Applicants address this allegation below, we submit the Board should attach no weight to his testimony in the first instance.
Further, this is another example of the Board seeking the impossible, viz., absolute proof that a practice prohibited by procedure did not occur at Comanche Peak.
As noted above, it is wholly unreasonable and inconsistent with the legal standard by which the Board is to judge the adequacy of construction to have Applicants disprove an allegation made by a patently incredible witness, in only general terms, which would not satisfy the intervenor's burden of going forward even had the allegation not been abandoned.
17 Applicants note that Mrs. Stiner also recently alleged that she performed downhill welding at Comanche Peak (see Stiner Affidavit'at 2-3, attached to CASE's July 28, 1983 Answer to Applicants' Summary of the Record Ragarding Weave and Downhill Welding).
However, she is even less clear than Mr. Stiner as to whether the downhill welding she claims to have performed could have been a cover pass when she states she would "run a downhill weld over my stringer bead weld."
Such an ambiguous assertion (particularly given that CASE is now aware of the situations in which downhill welding is permitted by Code) also fails to satisfy the intervenor's burden of going forward, and the Board should so find.
However, the Board need not even reach. consideration of Mrs. Stiner's new claim, because it should disallow the intervenor's attempt to resurrect its abandoned contention.
See discussion
-supra, at 4-5.
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- i In any event, Applicants attach the affidavit of Mr.
Brandt to address this question.
As noted in Mr. Brandt's a f fidavit, the use of downhill welding is procedurally proscribed at Comanche peak for Brown & Root welding, which Mr. Stiner was performing.
Any violtion of those procedures would have resulted in termination.
In addition, Mr. Brandt is aware of no evidence that such a practice (on Brown & Root welds) occurred at Comanche Peak.
Brandt Af fidavit at 6-7.
Accordingly, there is no basis on which the Board should find that there is any serious safety concern regarding this abandoned allegation.
10.
Weld Rod Control The Board proposes as another "open item" the abandoned allegation by the Stiners that weld rods were not properly controlled.
The Board states that it is concerned that the evidence in the record "does not refute a charge that the control system for these rods, while present, is less than l
perfect.
Neither the Staff nor the Applicant has l
presented evidence that the system is so effective that we may conclude that almost (or all) of the breaches are corrected by the quality control system."
[ Proposed Initial Decision at 35 (emphasis added).]
[
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. _.. ~,,, -
e
. The Board would have a " field investigation" conducted to
" clarify the scope of the problem."
Proposed Initial Decision at 35.
Applicants object to the Board's proposal.
As demonstrated below, this allegation is another example of a vague and unsupported claim.
The Board, nonetheless, seems to seek a detailed, specific rebuttal of the allegation as if there were specific, tangible evidence of noncompliances presented by the intervenor.
Such an approach is inconsistent with the allocation of the burden of going forward in NRC proceedings and with the Board's own conclusions regarding the evidentiary status of vague assertions by the intervenor (see Proposed Initial Decision at 21).
In any event, a careful examination of the evidence of record demonstrates that this abandoned allegation raises no safety question which warrants further examination by the Board.
In order to fully comprehend the nature of this allegation, and the evidentiary showing necessary to rebut each claim, we examine closely below each assertion made by the Stiners.
The Board should note that the question raised by the Stiners actually involves three separate issues, each of which requires a separate evidentiary showing.
No serious safety question exists with respect
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to any of the three issues, and the Board should conclude that there is no serious safety-question warranting Board consideration sua sponte of this abandoned contention.
The general (first) premise of this allegation is that unused weld rods were left unattended or abandoned, rather than returned at the end of the day.
As discussed below, there is only one instance specifically identified by (Mrs. Stiner) where this is alleged to have occurred.
The evidence of record is that those rods'were disposed of following an unsuccessful attempt to identify the welder
~
who had checked out the rods.
(CASE Exhibit 667 at 41)
Tr. 4047.)
Thus, there is no evidence that those rods were improperly used.
A simple claim that weld rods were left unattended or abandoned does not demonstrate the existence of a safety problem.
As at least one ( former) member of this Board recognized (Tr. 4097), it must also be shown tat there were welders using rods they we e not supposed to be using. As to this ( second) issue, the only specific evidence that such a practice occurred ~ is one-instance identified on an NCR by Mrs. Stiner and'a-clabh by Mr. Stiner that he used rods issued to another person (CASE Exhibits 667 at 42; 666 at 19). In this regard, the Board has recognized that identification and disposi[ ion of a potential deficiency on an NRC evidences a properly l a. ,.yi-s.+w
~ ^' 'e .s - -_54 - / functioning QA' program and does not raise any safety concern. Proposed Initial Decision at'13, 47. As for Mr. Stiner's cla im, again, the Board should, afford no l evidentiary weight to Mr. Stiner's vague assertions. (See discussion supra at 46,' n. 16.) Further, he provided no details in his claim to which Applicants can reasonably respond. However, even assunihg Mr. Stiner did weld with another person's rods, ther'e is no evidence demonstrating that the welding performed by Mr. Stiner was inadequate. Nor would that isolated instance suggest a systemic breakdown. or a generic safety problem. As recognized by a ( former) Board member (Tr. 4098), there is a third question which-must be answered, viz., whether welders using weld rods not issued to them performed any welding that would be inadequate. There is nothing in the record but vague, general assertions (see discussion infra) concerning this question. Thus, intervenor did not sustain it,s burden of going forward, and even if the allegation had not been abandoned, there is no evidence on ' which the Board could - conclude that this matter raises any concern regarding the adequacy of the QA program or of ~ construction of the plant. As we have' indicated, intervenor presented no specific evid'enceswith respectEto any of the above .~ questions.1 For the : Board, to premise a conclusion that the __._____._______._____.m__.
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. other parties must now come forward to rebut these general claims would be patently unfair and would turn the legal precept of burden-shifting on its head. An intervenor would be able to satisfy its burden of going forward simply on the basis of vague assertions without any particularization as to Whore a practice occurred, who did it, when it occurred or what the sa fety concern should be. We list below examples of these vague assertions Which we submit are inadequate as a matter of law to establish a claim requiring rebu'ttal evidence. As to the question of whether there were instances of uncontrolled weld rods, Mrs. Stiner claims that the premise for her concern was that because she found some - uncontrolled rods, she "had no way of knowing or anyone else did, from my knowledge, how many other bundles were laying around," (Tr. 4047). She also claims, without specification, that she saw other instances of the same thing. (Tr. 4047-48 (emphasis added).) Mrs. Stiner claims to have seen welders perform welding with rods they were not supposed to be using but ' states "I can't recall hanger numbers and auch as that, but at the time,- maybe we would be welding at the hanger and there would have one come in_that had, say the holes .s were in the wrong place or scmething of that nature (Tr' 4097 (emphasis added)). 1 \\ 4
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' 4
! In response to a Board question as to what the ~ significance of any of those practices might be if they were perforned by qualified welders, Mrs. Stiner L hypothesized that a qualified welder may not have l performed the welding, as follows: Say if a welder had a bucket of rods there for a particular hanger, maybe one of the helpers, they had something to come in that needed to be lengthened or something of that nature, the helper could do such. (Tr. 4098 (emphasis added).) Finally, when asked what the safety significance of this practice (using abandoned weld rods) would be, Mrs. Stiner stated that the technical problem would be that the weld rods could not be shown to have been signed out within the time period for which rods were to be controlled in heated containers. (Tr. 4111-12.) This concern has already been addressed and resolved by this Board. Proposed Initial Decision at 35-36. Interesting stories perhaps, but hardly the type of A concrete and specific evidence that is necessary to establish a prima facie case, such that the burden should be imposed on Applicants to prove otherwise. In sum, the evidence of record alleging a lack of weld rod control is vague, unsubstantiated and presents no basis to question ths-dequacy of the QA program or of construction at l Comanche Peak. i ,e. .c--,
'e . Applicants addressed these allegations in prefiled testimony. Specifically, Applicants testified that there were in fact procedures in place for both ASME and non-ASME welding. These procedures provide for issuance of weld rods by one of two methods to each welder. (Applicants' Exhibit 141 at 33-35.) The record further reflects that welders were trained to procedures that would enable them to identify the type of weld rod which was required for a particular weldment. See Applicants' Exhibits 141N-141V, " Filler Metals" provisions. In addition, the record indicates the only instances of improper weld rod use which were specified were identifed on NCRs. See discussion, supra. Thus, there were no identified instances of improper use of weld rods at g Comanche Peak which were not documented on an NCR. In sum, there is no probative, reliable evidence based upon which the Board can conclude that there is reason even for further examination (let alone a " field investigation") of this matter or that a serious safety concern is presented by the abandoned allegation. To demonstrate that the system is " perfect" or would catch "all" instances of failures to adequately control weld rods, as the Board apparently proposes to require of Applicants, is simply impossible. To require such proof is inconsistent with the findings of reasonable assurance
. that need be made in this proceeding. The Board should I find that the weld rod control system at Comanche Peak in fact performed properly, and that there is no serious safety issue to explore further. 11. Hilti Bolt Inspection The Board proposes as another "open item" we need to determine whether the inspection records of Hilti Bolt installation would be adequate to identify hypothetical instances in which Torque Seal had been applied by persons other than QC inspectors. Specifically, the Board notes that Mrs. Stiner alleged that she was instructed to assume that Torque Seal applied to Hilti Bolts had been applied by an inspector, and thus there was no check as to the possibility that a craft person may have obtained and applied Torque Seal on a bolt in violation of procedures. The Board proposes a " field investigation" as to the depth of the record review of Hilti Bolt installation. Proposed Initial Decision at 38-39. Applicants object to the l Board's proposal. As demonstrated below, the Board has not fully comprehended the scope of the record review conducted with respect to Hilti Bolt installation. In fact, the record review includes other attributes of the Hilti Bolt ' inspections which would reveal whether the Torque Seal may have been. applied by someone other than a QC inspector.
. Accordingly, Applicants perceive no cause for requiring a " field investigation," and urge the Board to dispose of this abandoned allegation. Applicants first note that Mrs. Stiner did not allege that she observed any craft person applying Torque Seal without a QC inspector present. Rather, Mrs. Stiner is concerned that Torque Seal was in the possession of craft personnel and could have been applied to bolts by those individuals. (CASE Exhibit 667 at 34.) Mr. Stiner, however, alleged that he observed craft personnel use Torque Seal without a QC inspector being present (CASE Exhibit 666 at 20-24). We have already discussed the weight the Board should attach to his testimony where there is no supporting credible evidence. Thus, the general statement by Mr. Stiner alone that the craft used Torque Seal without QC presence could not sustain the intervenor's burden of going forward and should not raise a safety concern. (CASE Exhibit 666 at 20-24. ) In any event, Applicants describe below the record verification program for Hilti Bolt installation which provides reasonable assurance that even if Mr. Stiner's allegation is correct, such instances of unauthorized application of Torque Seal would be identified.
. As described in the attached Affidavit of Mr. Tolson ( Attachment C hereto), the procedure applicable to Hilti Bolt inspection provides that QC inspectors can either witness directly the torquing operation or verify the achievement of proper torque following torquing by the craft. In all instances the inspector is to verify and document on the inspection report the following attributes: 1. Verify that the torque wrench is calibrated and the calibration is current. 2. Verify that the torque wrench setting is in accordance with applicable requirements. 3. Verify that the correct sized socket for the bolt being torqued is used. 4. Record both the torque wrench number, and calibration due date on the inspection report. Following torquing, Torque Seal is applied to the bolts. The inspection report for each support or fixture which is secured by Hilti Bolts also will include the unique identifying number of the support or fixture. (Tolson Affidavit at 1-2.) l In sum, whether a QC inspector personally applied or f observed application of the Torque Seal on the bolt is not alone significant. The significant consideration is that there must be a complete inspection report for each support or fixture, or a reinspection and reverification
. of torquing will be required. (Tolson Affidavit at 3.) Thus, in order for a support that had not undergone a complete CC inspection for Hilti Bolt torquing to pass the final records review, a QC inspector (relying on Torque Seal applied without his knowledge) would have to fabricate a torque wrench number and calibration due date, and misrepresent verification of the correct socket size and torque setting. There is not a shred of evidence in this record to suggest that this has ever occurred. The Board should note that the NRC Staff also conducted an investigation into this matter (NRC Exhibit 178). That inspection involved interviews with QC inspectors and craft personnel regarding their knowledge concerning the use of Torque Seal. None of the individuals interviewed had observed craft personnel using Torque Seal other than in the presence of inspectors. The NRC investigation did not disclose any evidence of failure to satisfy applicable requirements regarding Hilti Bolt installation. (NRC Exhibit 178, Appendix at 7-8. ) In sum, there is no credible evidence in this l l proceeding that Torque Seal was ever applied by craft personnel other than in the presence of QC inspectors. In addition, the evidence demonstrates that the record review of Hilti Bolt installation will cover fully the possibility that Torque Seal may have been applied by
. craft. Inspection reports which are incomplete with respect to any attribute of Hilti Bolt inspection will result in retorquing of the bolts. Accordingly, there is no basis for the Board to require further examination of this matter. 12. Mismatched Hanger The Board proposes as an "open question" the abandoned allegation by Mrs. Stiner that a particular J hanger was " severely mismatched". Proposed Initial Decision at 39. Mrs. Stiner alleged that she had observed (although she did not bring to the attention of QC) tube steel members on a pipe support which did not " meet," leaving a 1/2 inch gap between the members Which were welded together. She claimed that "if any (sic) there was any seismic vibration at all, the weld wouldn' t hold together." (CASE Exhibit 667 at 45.) As discussed below, the NRC and Applicants examined this weld in a subsequent NRC inspection. Applicants also conducted a technical evaluation Which demonstrated the weld to be adequate from a structural-standpoint. Thus, no safety concern is raised by this allegation that would warrant further inquiry by the Board. The NRC, in investigating this allegation, determined that the pipe support in question is a safety-related ASME 1 Code Class 3 NF support for the service water piping l l
. system. The weld in question is a "T" fillet joint. As determined in that inspection, and discussed in Mr. Brandt's affidavit, the applicable procedures for the weld permit up to a 5/32 inch fit-up-gap between the members being joined. To evaluate the weld, a portion of the welded material was ground out, enabling a determination that a gap of 1/4 inch was present for at least a portion of the welded area. In response to this finding, Applicants documented the particular nonconformance on an NCR, removed the affected portions of the pipe support (for investigation), and evaluated the safety consequences of the nonconforming fitup. That technical evaluation demonstrated that even had the particular gap not been detected, there would have been no adverse safety consequences. (Brandt Affidavit at 7-8.) Accordingly, this matter has been fully addressed, and there is no basis for the Board to conclude that this abandoned allegation poses any serious safety concern warranting further consideration. 13. Fuel Pool Liner Another "open question" proposed by the Board involves an abandoned allegation that a craft person was performing liquid penetrant testing for QC purposes (as assumed by the Board) - on the fuel pool liner. Proposed Initial Decision at 39. This allegation stemmed from Mrs. i
. Stiner's observation of a craft person performing liquid penetrant testing on the fuel pool liner. Mrs. Stiner alleged this person was unqualified to perform such testing. She did not claim, although the Board assumes, that the individual performing that testing was doing so for QC purposes. While she states that the tests she performed on the fuel pool liner were accepted by QC, she does not make the same claim for the craft person's testing. (CASE Exhibit 667 at 49-52. ) As shown below, an examination of this allegation determined that the person was not conducting the testing for QC purposes. Thus, no concern is posed by this abandoned allegation that warrants further Board examination. As stated in the attached Affidavit of Mr. Tolson, the NRC conducted an investigation into this allegation, during which it was determined that the craft person in question was performing in-process examination of work prior to formal QC inspection and testing. Such inspections are acceptable for that purpose. (Tolson Af fidavit at 3. ) In fact, Mrs. Stiner recognized this l l practice was permitted when she stated that craft personnel may perform tests for their own information, even where they are not certified to conduct testing for QC purposes, but should not be doing it for QC acceptance (CASE Exhibit 667 at 51). Also, the purpose of the
o N . questioned testing is also reflected in the notes of the NRC investigator attached to the testimony of Mr. Stiner (CASE Exhibits 666C-37 and 38; 666C-34). In sum, there is no basis for the Board to conclude that there is any safety concern raised by this abandoned allegation warranting further Bo'ard examination. 14. Alleged Ineffective Corrective Action Regarding Pipe Hanger The Board has identified as an "open question" an abandoned allegation by Mrs. Stiner that inadequate i corrective action was taken when she identified possible deficiencies on a pipe hanger previously approved by QA. Proposed Initial Decision at 39-40. As demonstrated i below, the Board has apparently overlooked a key portion of Mrs. Stiner's testimony on this subject which demonstrates that there is no basis for any further inquiry into this matter. Mrs. Stiner testified that she identified a hanger on which she believed there were " numerous problems". She issued an NCR on this hangar which proceeded through the routine review process for disposition (CASE Exhibit 667Y). With respect to that disposition, Mrs. Stiner stated that she " felt that all the nonconforming items were adequately taken care of except for #4 about the clearances." (CASE Exhibit 667 at 56-57. ) Turning to
+ . CASE Exhibit 667Y, and the particular item (#4) which concerned Mrs. Stiner, the Board will observe that the concern relates to the clearances between the pipe and the support. Mrs. Stiner's concern with respect to this item was that the clearance would not allow adequate room for the pipe to expand when heated (CASE Exhibit 667 at 56, 667Y). There are three reasons the Board should find this abandoned allegation to be meritless. First, the disposition of this item involved a reinspection at which a determination was made that the clearances were, in fact, "per the design drawing and are acceptable as is" (CASE Exhibit 667Y). Thus, Mrs. Stiner had erroneously identified these clearances as nonconforming.
- Second, Mrs. Stiner is not qualified (and did not purport to be qualified) to judge the structural significance of support / piping clearances.
In fact, Mrs. Stiner claimed no expertise to judge the structural significance of her allegations (Tr. 4028-29), and never claimed or demonstrated any expertise in the area of piping and pipe -support design. Accordingly, the Board has no basis on which - to credit her opinion regarding the significance of this matter or to question the adequacy of the NCR disposition by the engineer.
c I ? i . Third, the matter of piping and support clearances has been examined in detail in connection with the pipe support design allegations in this proceeding. As part of that examination, the question of clearances was fully litigated. Accordingly, the Board should find that this abandoned allegation is meritless, poses no safety concern warranting further examination, and in any event has been adequately addressed in another portion of this proceeding. 15. Welding on Chicago Bridge and Iron Restraints The Board proposes as an "open issue" an abandoned allegation by Mr. Atchison regarding " problems with welding on Chicago Bridge and Iron pipe Whip restraints and moment restraints." Proposed Initial Decision at 42. The Board provides no further specification regarding the nature of its concern in this area or the specific items which it proposes need be addressed. We believe (for the reasons discussed below) that the Board should find that the question of CB&I welding already has been adequately addressed in the record. However, we are placed at an acute disadvantage in demonstrating the adequacy of the record because the record on CB&I welding is quite large, and we have no idea where the Board would have us start (and end). In these circumstances, we will summarize the
~I 1.
- record on those allegations that were presented with reasonable specificity and that could be deemed to raise matters of some safety significance.
As noted above, the record developed regarding CB&I welding is extensive. Applicants presented detailed testimony regarding both the specific allegations raised by Mr. Atchison and the broader matters of CB&I welding and' Applicants' response to deficiencies Applicants identified in CB&I's QA program. We will not burden the Board with a lengthy discussion of that evidence. 'It is summarized in " Applicants' Proposed Findings," February 25, 1983 at pp. 95-102, which we incorporate by reference and implore the Board to review carefully. As the Board will see from that discussion, Applicants' QA program had identified deficiencies in the CB&I program and Applicants' own vendor release inspections long before Mr. Atchison made his allegations. This demonstrates that Applicants' QA Program functioned properly in identifying and correcting weaknesses in the CB&I program. With respect to the potential safety significance of the identified weld indications, even assuming arguendo that they were deficiencies, the evidence is clear that there are no safety implications. First, a complete reinspection was conducted of restraints received on-site prior to the detection by Applicants of the program
I.
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. weaknesses. Next, Applicants evaluated and presented undisputed testimony demonstrating that the identified weld indications (even assuming there were deficiencies) were insignificant from a structural standpoint. (Applicants' Exhibits 122 at 1-5; 123-126.) This demonstrated that even if the indications had gone undetected, the safety function of the affected restraints would not have been impaired. The NRC initiated a follow-up investigation to these allegations in which it noted the same deficiencies previously identified by Applicants. As a result of this investigation, the NRC Staff assessed a Severity Level V violation regarding CB&I restraint welding. Severity Level V violations are the lowest level of violation imposed under the Commission's enforcement policy. Such violations "are of minor safety or environmental concern." 10 C.F.R. Part 2, Appendix C, Section III. In view of the extensive evidence in the record on this abandoned allegation, the Board may and should find that the present record is complete regarding the question of CB&I welding and that the CB&I restraints are structurally sound and will fulfill their intended functions. The Board may and should find that Applicants' QA program identified shor'; comings in the CB&I program and the vendor release program and implemented appropriate
. corrective action to assure that all affected materials, parts and components were adequately constructed. The Board may and should find that this is reflective of an ef fective QA program that is able to identify matters that require improvement and to respond adequately to such matters. 16. NPSI Pipe Whip Restraint Welding Another "open issue
- wnich the Board proposes concerns the welding on NPSI pipe whip restraints.
As with the CB&I welding issue, the Board provides no insight into why it proposes this as an "open issue". The Board merely cites statements by Mr. Atchison that there were " basic defects in welding" and " problems with fit-up s" with NPSI pipe whip restraints. Proposed Initial Decision at 42, n. 178. As demonstrated below, the record regarding NPSI welding alsa is clear and further consideration of this matter is not warranted. The Board must recognize that this allegation was vague and general, and consisted of one paragraph of prefiled testimony (CASE Exhibit 650, at 33). This certainly fails to sustain even a minimum burden of going forward, and for that reason alone the Board should dispose of it. The Board also should note that under cross-examination Mr. Atchison admitted that an NCR had
'o e . been written regarding this NPSI welding (although claiming that some defects were not identified on NCRs) (Tr. 3289).18 The only specific allegation by Mr. Atchison regarding NPSI welding concerned a restraint on which a portion had become warped due to welding (Tr. 3458-59.) That allegation was addressed on the record. Applicants presented uncontroverted testimony that Mr. Atchison was referring to a " crushable bumper" which attaches to the pipe whip restraint structures. The warpage Mr. Atchison referred to was indeed caused by the welding process, but such warpage was withinin acceptable limits and has no structural or safety significance. Such warpage is expected in performing a weld on this type of configuration. (Applicants' Exhibit 141 at 29.)
- Thus, the only specific allegation Mr. Atchison made regarding NPSI restraint welding has been addressed by Applicants' uncontroverted testimony.
18 Although Mr. Atchison later retrenched and contradicted his testimony that NCRs had been written on NPSI restraints (Tr. 3458-60), the Board should credit Mr. Atchison's first statement (which, in e f fec t, was a statement against interest) in evaluating the evidence concerning this allegation. In any event, as discussed above, the record is complete-regarding NPSI welding.
'o . 4 In sun, the specific allegations of Mr. Atchison regarding NPSI welding have been fully addressed by i Applicants on the record. Thus, there is no basis for the Board to retain this item as an "open issue." 17. Uncertified Employees "Using" PT Kit The Board proposes as an "open issue" an abandoned allegation by Mr. Atchison that " uncertified employees performed liquid penetrant testing." Proposed Initial Decision at 42. The Board apparently overlooked that Applicants presented unrebutted testimony regarding this allegation. As discussed below, Applicants' testimony demonstrated that the individuals who had borrowed Mr. Atchison's liquid penetrant testing ("PT") kit performed no unauthorized testing. Mr. Atchison simply had not bothered to thoroughly investigate his own allegation before writing an NCR to determine whether there was any validity to that allegation. Thus, there is no reason for the Board to retain this meritless allegation for further consideration. The allegation consisted of a claim that "some of Texas Utilities employees were borrowing my PT Kit and going out and performing PT." Mr. Atchison states, however, that he actually did not know what they were j using the kits for and admitted that he only knew they l [ were borrowing and using his PT kit. (CASE Exhibit 650 at
. 51.) In response to this allegation, Mr. Brandt testified that the individuals who Mr. Atchison was referring to as having used his PT kit (by then identified by Mr. Atchison in the Department of Labor hearings) had not perfor.ned any PT inspection at the plant at the time Mr. Atchison raised this allegation, and that the only purpose for which they may have borrowed the kit would have been to obtain prerequisite training for certification to perform such testing (Applicants' Exhibit 141 at 24-25). Mr. Brandt testified that he personally spoke with the individuals who used the PT kit and that neither had performed any PT tests for inspection purposes. One had used the kit for information only and the other had used the kit to obtain training time. (Tr. 4624-35.) CASE did not challenge or rebut this testimony. Accordingly, there is no evidence on which the Board could base a determination that this abandoned allegation presents a serious safety question or should be an "open issue" requiring further examination by the Board. The Board should promptly close this matter and reach its decision on the evidence of record. 18. Unstated Management Directive The Board proposes as an "open issue" an abandoned allegation by Mr. Atchison.that there was an bnplication by management that inspectors were to overlook safety defects. Proposed Initial Decision at 42. The Board l
, notes that this issue is encompassed within the scope of ongoing NRC Staff investigations. For the reasons set forth below, Applicants believe that the Board should close this issue at least with respect to Mr. Atchison on the basis of the record now before it. The allegation by Mr. Atchison was based on his j impression that "if there's a problem report it; you report too many then you come under somebody's thumb" (CASE Exhibit 650 at 58). However, he did not claim that anyone ever instructed him to perform his job in that manner, and identified as a basis for his impression a meeting at which the schedule for completion of the plant i was discussed. He admitted that the discussion could simply have been an appropriate exercise of the QA manager's job. Further, Mr. Atchison pointed to craft meetings where schedule was discussed and increased productivity urged on the workers as a basis for his impression. However, he admitted that if any inadequate construction practices resulted from that craft meeting, they were idantified by QC.and corrected. Further, he stated that the number of NCRs filed by each QC inspector was not tracked at Comanche Peak. (CASE Exhibit 650 at 57-59.) Thus, this abandoned allegation is premised on (1) a meeting at which construction status was discussed with 3;spectors in a manner Mr. Atchison admits
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could have been consistent with the proper management of the OA program, (2) a meeting regarding craft scheduling, and (3) an impression that inspectors were not to report too many deficiencies (an impression Which seems illogical, given that Mr. Atchison admitted that the number of deficiencies identified by individual inspectors was not tracked). Accordingly, as an evidentiary matter, the Board has no reason to conclude that there was any management directive (whether stated or unstated) for inspectors to overlook problems. In addition, this Board should consider Mr. Atchison's credibility in determining the weight to be attached to his testimony. Applicants have previously discribed the numerous instances in Which Mr. Atchison had misrepresented material facts regarding his qualifications. He was found to be (and is) a patently incredible witness, and the Department of Labor's Administrative Law Judge found that his testimony would be afforded weight only if corroborated by independent l evidence. DOL Recommended Decision, CASE No. 82-ERA (December 3, 1982). Further, the Secretary of Labor found these misrepresentations would have warranted Mr. l Atchison's dismissal from Comanche Peak and, were I L l h, -.a c v--- r
O h . 4 sufficient to deny reinstatement of Mr. Atchison to his former job. See Decision and Final Order, Secretary of Labor, Docket No. 82-ERA-9 (June 10, 1983) at 25-27. In short, Mr. Atchison has trouble discerning fact from fiction, and his impressions of management's attitude toward QA are entitled to no evidentiary weight. The Board may and should, consistent with its decision regarding the collateral estoppel effect of the DOL decision, find that Mr. Atchison's testimony on matters for which no independent documentation or credible evidence exists is to be afforded no weight. At a minimum, the Board should look with close scrutiny at the actual testimony of Mr. Atchison, as we have above, rather than draw unwarranted implications from that testimony. Close scrutiny of the testimony on this abandoned allegation reveals that Mr. Atchison's allegations are simply vague and unsupported (and often contradictory) assertions that cannot support a conclusion that a significant safety concern is raised. In addition, Applicants have presented extensive testbnony regarding management's commitment to the QA Program. See Section III.B.2, supra. Applicants presented testimony of all levels of its QA and corporate management with responsibility for' quality assurance. That testimony dcmonstates a firm resolve and commithtent
'o 4 . to an effective QA program. Accordingly, the Board may properly find that based on the evidence before it, Mr. Atchison's allegations related to management's commitment are without merit and raise no serious safety concern warranting further Board consideration. 19. Tennessee W ll, Tube & Metal Audit a The Board proposes as yet another "open issue" an abandoned allegation made by Mr. Atchison that he was pressured into approving an audit of Tennessee Wall, Tube & Metal even though he was dissatisfied with the results of the audit. Proposed Initial Decision at 42. As demonstrated below, this allegation concerns a simple difference of opinion between Mr. Atchison and his supervisor as to the sufficiency of an audit response by Tennessee Wall, Tube & Metal. There is no basis for considering this item to be "open" or concluding that it involves a serious safety issue warranting further Board consideration. In a short paragraph in his prefiled testimony, Mr. Atchison alleged that there were several audit deficiencies and concerns in an audit of Tennessee Wall, Tube & Metal, conducted in early 1981. Mr. Atchison did not specify what those matters were. He simply claimed that upon receiving the response of the audited company, he considered it not to be "really acceptable". He
'o = . testified that his supervisor instructed him "to go ahead and sign it off and close it out". (CASE Exhibit 656 at 2.) Under Board examination Mr. Atchison described the deficiencies involved as the use of a pencil to complete checx lists and only partially completed cover pages and check lists. He admitted, however, that the QA manager for that audited facility produced several records in response to these audit findings. He could not remember the complete response, but was able to remember that he believed the response was unacceptable. The QA manager at Comanche Peak, however, reviewed the response, considered it adequate, and directed Mr. Atchison to close out the audit. (Tr. 3456-58.) i Frankly, Applicants are at a loss to understand how the Board could possible consider this abandoned allegation to be of potential safety significance. In sum, the allegation concerns a simple disagreement between an employee and his Supervisor as to the suf ficiency of the audit response. This type of disagreement occurs tens of thousands of times a day, inside and outside the nuclear industry. To scrutinize it here, where it is i ~ raised by a patently incredible witness and where the intervenor has failed to sustain its burden of going forward, then abandoned its contention, is inappropriate to say the least.
's o o - Mr. Atchison provides no explanation as to the particular information or action he considered missing from the response. Thus, there is no reason to doubt the disposition of this audit was proper. Accordingly, the Board should find that the QA process was properly empicyed in that an audit was performed, deficiencies or concerns identified, responses to those deficiencies and concerns provided, and a decision made as to the adequacy of those responses. There is no credible evidence that the disposition of the audit was inadequate, or any question as to the proper functioning of the QA process. There is therefore no basis for the Board to conclude that this matter should be an open item which requires further investigation. 20. A490 Bolt Torque Values The Board proposes as another "open item" the abandoned allegation by Mr. Atchison that torque values for A490 bolts were not incorporated into procedures. Proposed Initial Decision at 43-44. Mr. Atchison's concern was that no specific torque value had been established by procedure for A490 bolts (CASE Exhibit 650 -at 29-31).- As denonstrated below, the tightening of A490 ~ bolts was previously governed by criteria.not based on b
't .o . test-established torque values. A value for A490 bolt torquing, based on actual test data, was later established in site procedures. As demonstrated in the attached Affidavit of Mr. Brandt, torque values for A490 bolts initially were established by a correlation of bolt tension and the required number of turns to be made af ter a snug-tight condition had been reached. Mr. Atchison's concern, documented on an NCR, arose when a bolt (that he was witnessing being torqued) failed. In dispositioning the NCR, it was determined that tests to establish actual A490 bolt torque values should be conducted. A value based on actual test data subsequently was incorporated into the design specifications and bolts torqued previously have been reverified. Brandt Affidavit at 8. Accordingly, there is no basis for the Board to find a serious safety concern warranting further examination of this allegation. 21. Quenching of Welds The Board seeks to understand the technical justification for prohibiting the quenching of welds. Proposed Initial Decision at 44. As Mr. Brandt states in his affidavit, rapid quenching of carbon steel after being heated to an elevated temperature is a heat treatment method utilized to harden steel. However, such heat L J
e k .J s >l _ 81 - treatment affects the microstructure of the steel, resulting in an increased tensile strength and hardness and decreased ductility, and for these reasons -is prohibited by site procedures. Austenitic stainless steels do not undergo similar microstructural changes. The material that Mr. Atchison observed being " water quenched" was austenitic stainless steel. There is no metallurgical concern with such a cooling method which, in fact, is quite common for austenitic steels, and for this reason the weld in question was found acceptable. Brandt 9, Af fidavit at 9-10. Accordingly, there is nc basis for the Board to consider this an "open issue" or a serious safety concern warranting further Board examination. 22. Cold Sprung Pipe on Component Cooling Water System The Board proposes to identify "an important gap" in the record regarding an abandoned allegation made by Mr. Atchison that he ob' served " cold springing" of two lines in the " reactor coolant pump compartment number 3" (CASE Exhibit 650 at 63). Proposed Initial Decision at 46. Applicants presented direct evidence, which was not contradicted by-intervenor, that the piping to which Mr. Atchison referred was actually on the component cooling water system, that a NCR had documented _the condition, and that~ repair work had been performed ( Applicants' Exhibit 141 at 36-37). The. Board questions how Applicants ~ ,n y p-dv g er m -9 9.E-N T-
- i'"""
"E**
. determined that the lines to which Mr. Atchison referred were not part of the reactor coolant system. Proposed Initial Decision at 46. A close examination of the record on this matter reveals that the item on which Mr. Atchison observed the " cold springing" was identified on a non-destructive examination report ("NDER"), number 4407 (CASE Exhibit 650 at 63). Applicants introduced into evidence the NCR on which this matter was identified and dispositioned (Applicants' Exhibit 141W). On the NCR itself, the specific NDER referenced by Mr. Atchison (NDER 4407) is identified for reference (Mr. Atchison incorrectly identified this matter on zul NDER in the first instance, rather than on an NCR) (Applicants' Exhibit 141 at 36-37). This reference provides a direct chain of documentation ~ from the initial ide tification of the matter to its disposition. ICASE did not dispute that this NCR was the NCR regarding the particular deficiency identified by Mr. Atchison. Thus, the answer to the Board's question as to how Applicants determined that Mr. Atchison had referred to the incorrect piping system requires only an examination of material' already in the record. Accordingly, the Board should close this item as having .n f.11,"ader...ee by ev1denc. 1n t,. r. core.
c-s: n q) \\. IV. BOARD QUESTIONS L Applicants generally agree with the Board's resolution of; Board questions and inquiries. Proposed Initial Decision at 52-60. However, we do object to the Board's proposal to withhold disposition of Board Question 3 regarding-Anticipated Transients Without' Scram ("ATWS") in view of pending Staff evaluations of the implications of a reactor trip breaker failure at the Salem fac ility. Propose'd Initial Decision at 56. The Board's inquiry into s ~ unresolved generic safety issues such as ATWS is limited to d;etermining whether there is an adequate explanation by the' Staff as to why operation should be allowed to go forward even where an-unresolved'. generic sa fety issue exists. Virginia Electric and Power Company (North Anna Nuclear Power Station, Units 1 and 2), ALAB-491, 8 NRC '245, 248-49 (1978). In this case the Board has before it evidence that the Commissic9 haa,already required interim generic correcti'~e tre one to be taken at plants in response to .the Salw e+< qa. See Affidavit of Charles E. Rossi (May 1 5,'1983),_ regarding the generic implications of the Salem ev;$nts on the ATNS issue. Thus, to the extent the Staff 'andl the Commission itself daym further generic corrective 3, s ' -act}cns to be required, those actions will be taken. Thero*is no basis for the Board to conclude that it need
- i -
/ YI e
9- . await further information from the Staff or Commission on this matter. The Salem events are not within the scope of contested issues in this case, and they do not raise a serious safety matter than is not already being addressed by-the Commission and Staff. See SECY-83-248, Generic Actions for Licensees and Staff in Response to the ATWS. Events at Salem, Unit 1 (June 22, 1983). Accordingly, the Board should conclude that the Staff and Commission are addressing - the implications of the Salem events and that there is no basis for further Board inquiry into this issue. V. CONCLUSION For the foregoing reasons, Applicants urge the Board -to modify its Proposed Initial Decision in response to and consistent with Applicants' objections herein. Applicants submit that the information presented herein demonstrates e (
s P . that there is no justification for the Board's proposals to retain as "open questions" or sua sponte questions any [ of the matters addressed herein. Respect ul su mitted, l Nichol fS }ReynoldsW William A. Horin DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W. Washington, D.C. 20036 (202) 857-9817 Counsel for Applicants August 27, 1983
r r v i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) ) TEXAS UTILITIES GENERATING ) Docket Nos. 50-445 and COMPANY, _et _al. ) 50-446 (Comanche Peak Steam Electric ) (Application for Station, Units 1 and 2) ) Operating Licenses) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Objections to Proposed Initial Decision," in the above-captioned matter were served (or will be) upon the following persons by deposit in the United States mail, first-class postage prepaid or express delivery (*) this 27th day of August, 1983, or by hand delivery (**) the 29th day of August, 1983.
- Peter B.
Bloch, Esq. Chairman, Atomic Safety and Chairman, Atomic Safety and Licensing Appeal Panel Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Mr. Scott W. Stucky
- Dr. Walter H. Jordan Docketing & Service Branch 881 W.
Outer Drive U.S. Nuclear Regulatory Oak Ridge, Tennessee 37830 Commission Washington, D.C. 20555
- Dr.
Kenneth A. McCollom Dean, Division of Engineering Architecture and Technology
- Stuart A.
Treby, Esq. Oklahoma State University Office of the Executive Stillwater, Oklahoma 74074 Legal Director U.S. Nuclear Regulatory Mr. John Collins Commission Regional Administrator, Washington, D.C. 20555 Region IV U.S. Nuclear Regulatory Chairman, Atomic Safety and Commission Licensing Board Panel 611 Ryan Plaza Drive U.S. Nuclear Regulatory Suite 1000 Commission Arlington, Texas-76011 Washington, D.C. 20555 i l 1
- t i /4 ,o- !O t. . David J. Preister, Esq.
- Mrs. Juanita Ellis Assistant Attorney General President, CASE Environmental Protection 1426 South Polk Street Division Dallas, Texas 75224 i
P.O. Box 12548 j Capitol Station Austin, Texas 7f / '.1 t William A. Horin cc: Homer C. Schmidt Spencer C. Relyea, Esq.
Mg_.;. ~ Y ' ATTACHMENT A UNITED STATES OF AME RIC A e 00CKETED ~~ ~~ ?, 2 NUCLEAR REGULATORY C O M MI $$'FO N A 8 .N AW 29 A9 :56 4 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD U[dYTN[rf k7.kIA' ' l 5 ERA %Q' '
- 6 IN THE MATTER OF TEXAS i
UTILITIES GENERATING 1 DOCKET NOS. 50-445 7 COMPANY, et al. I and 50-446 i 8 (COMANCHE PEAK STEAM I (Ap pli c a ti o n for ELECTRIC STATION, 1 Op e ra ting License) 3 UNITS I and 2) I 10 11 ORAL DEPOSITION of 12 ROBERT HAMILTON 13 7 14 ANSWERS AND ORAL DEPOSITION OF ROBERT 15 HAMILTON, a witne s s produced on b e half of Texas 16 Utilitie s Gene ra ting Company, taken in the above 17 s tyl e d 'a nd numb e r ed matter, s ta rting at 9: 20 A. M. 18 on the 1st day of July,
- 1982, before KIM J E N KINS, 19 a C e rtified Shorthand Reporter in and for the 20 State of Texas, at the of fi c e of Texas U tilitie s 21 Services.
Inc., Suite 1870, 2001 Bryan Tower, M located in the City of D alla s, County of D alla s, 2 State of Texas, pursuant to 10 CFR 2.740 (a). M h 25 CG!al
18 1 A Brown & R oot QA a c ti vitie s. 2 Q W e ll, I s till d o n' t und e r s ta nd how 3 M r.' T ol s on was your supervisor. 4 A Tha t's who I was told to report to. 5 Q By whom ? 6 A Harry Willia m s. 7 Q Dut he worked for Brown & R oot ? 8 A Right. 9 Q What did you do when you were 10 asked to pe rf o rm the in s p e c tion on the Unit 27 11 A Joe K r olak went up fi r s t, and he 12 tock a look at it, and he came back down and 13 said it's unsafe, I' d like for you to go up and 14 take a inok at it. 15 O He went up where? 16 A Up to the r ota ting pla tf o rm railing. 17 Q And where is that? 18 A It's in R ea cto r 2, a pp r oxim a t ely 19 one hundred and five feet up. 20 Q In the containment 21 A Right. 22 O Then what happened? 23 A So I p h y s i c ally put on a safety 24 belt. I went up and took a look at it, and I 25 said I don't blame you, I' m not going to walk it
19 9 1 eith e r even if I'm requested to, and at that tim e 2 it was not my duty to walk a r a il because I was 3 a supervisor, and I came back down and inf o rm ed 4 my supervision that we w ould not walk it because 5 it was unsafe. They had b uil t a s caf f old before, 6 and if they had any regards for our safety they 7 w ould build another one. The Safety D epa rtm e nt 8 again deemed that area safe. 9 Q Did the Safety D epa rtme nt go up 10 and inspect the area? 11 A
- Yes, they did.
12 They also deemed it safe again. 13 So I was told by Harry Willia m s and N e il B ritton 14 w hi c h was my supervisor three days p rio r to my 15 discharge. They had moved him in over me and 16 bumped me back to a lead inspector. Neil 17 B ritton told me we w ould eit h e r walk it or go 18 out the gate. 19 Q What did he mean "go out the ga t e " 7 20 A He meant he w ould t e rmina te us. 21 Q L e t's talk about the dimensions of 22 this walk you're talking about. A re we talking 23 about a beam that you had to walk across to get l l 24 to the area for ins p e c tion ? 25 A No, it's a c ompl e t e rail on the
20 1 insido diame t o r of the Roactor, and it was 2 aPProximately one hundred and five feet f rom the 3 top'iloor level w hi c h was elevation 905. 4 Q W ha t s e rvic e s were you required 5 to pe rf orm once you were on that beam ? 6 A Inspect what the Paint Department 7 had prepared before they a p pli e d the p r ot e c tiv e 8 c oa ting. 9 Q I see. It had not been painted yet. 10 You were only in the area to be paint ed ? I 11 A Right. l l 12 O And what would your in s p e c tion 13
- antail, just a visual check?
14 A It's a visual check m or e or less. I 15 Q Any t e s ting by you? 16 A The only te s tin g being with a 17 roughness gauge to make sure we had our c o r re ci 18
- peaks, you know, for adhesion of the paint.
l 19 Q Wha t is a roughness gauge? How a do you work a roughness gauge? 21 A It's just a s mall gauge. It tells 22 you how high your peaka and vall e y s are. 23 Q You place it against the wall, or 24 do you rub it against the wall ? 25 A W ell, you place it against the w a ll.
I O 21 1 Q When the s caf f olding was built in 2 U ni t 1, who built it? 3 A As far as I know the B uild i n g 4 D epa rtme nt. 5 Q So they built a s caf f olding, a 6 r a ili n g all th e way around this two and a half 7 foot 8 A
- Right, it took them two days to do g
it. 10 Q And they o b vi o u s ly had to go up 11 there to do it? I think they 12 A 1< i g h t. W e ll, they i 13 p remanuf a ctu red the s caff old there on the ground 14 and then installed it. 15 Q So ca rpe nte r s had to go up on the 16 r a il to in s tall that? 17 A Right. 18 Q Was their job any less hazardous 19 than yours? E A Probably no less hazardous. 21 Q No less hazardous. 22 A But who's g oi n g to i n s t a ll the 23 s caff old to make it safe for everybody? 24 Q W ell, isn't the choice really you l M send up several carpenters who are exposed to l l
22 I
- hazard, or you send up one QC inspector tha t's 2
exposed to that same hazard? 3 A Or tw e nty-fiv e painters. 4 Q Do you disagree with the decision 5 that w ould expose one person to that same hasard 6 as opposed to the decision that w ould expose six 7 or ten people to that hazard? 8 A W ell, like I say, s om e b ody has got 9 to put the s caf f old there. 10 Q W ell, the s caff old is only necessary 11 for the inspector to go up? 12 A .% o m e o n e has got to make it safe. 13 Q That did n' t answer my que s tion. 14 The s ca f f oldin g was placed in U ni t I so the QC 15 inspector could go up and inspect the paint 16 adhe sion ? 17 A And the Paint D epa r tm e nt and the 18 Hanger B uil d i n g Depa rtment and several ocher 19 depa rtment s. We we r e n't the o nl y d epa r tm e nt 20 working off of this s c a f f old. 21 Q Who prepared the area that you M wera :o inspect? 23 A The Paint D epa rtme nt, u O So there had been painters up there 25 bs;.t a you were asked to go up there?
23 1 A Yes. 2 Q How many painte r s ? 3 A I' d say there were f r om three to 4 ten painters at one tim e. S Q Wha t did they have to do to prepare 6 it ? 7 A They were using power tools and 8 so forth to prepare the surface for c oa ti n g. g Q They had power tools up the re ? 10 .A Right. 11 Q They were working without s caff old-12 ing? 13 A Right. 14 O The Safety D e pa r tm e nt had r e vie w e d 15 it and said it was safe? 16 A Yes. 17 Q Did you lodge any c omplaint s with 18 03HA? Do you know w ha t OSHA is ? 19 A
- Yes, I was not awar, that OSHA 20 was on the job site at the tim e.
I was not 21 inf o rmed of that. I did inf o rm OSHA later in 22 the way of a f o rmal c o m pla in t, w ritten complaint. 23 The reply I got f rom OSHA was that they did n ot a go out and check the area. They did not physi-25 c a lly go up and look at the area, and I did not ___ _ ___ d
s 24 I have a c omplai nt. 2 Q Is that a ll they said in their reply 1 3 A Right. 1 4 Q W ha t was their rationale for their 5 answer? 6 A I have no idea. 7 Q Did you pursue the matter fu r the r ? 8 A No, I did not. 9 Q When did you w rite to OSHA? 10 A It was p r ob a bly a month and a half 11 a g o, I im a gin e. 12 C Did you b ring a copy of that le tte r 13 with you? 14 I don't know if I' v e got a copy of 15 that le t te r. 16 Q Did you b rin g a copy of their reply 17 to you? 18 2 No, I d o n' t b eli e v e s o. Joseph 19 K r olak will have that inf o rm a cion, I ima gin e. 20 Q You j oin tly wrote the letter to 21 OSHA 7 M A No, we had to w rite s epa rate 23 le ete e s. 24 Q Did you w rite your own lette r ? M A Yes.
4 25 1 Q Did you talk to K r olak before you 2 wrote your le tte r ? 3 A Yes. 4 Q Did you get the same le tte r back 5 f rom OSHA that he got? 6 A Right. 7 Q W he re was the OSHA of fi c e that 8 you sent your lette r to? 9 A I b ell e v e it was in D alla s. 10 Q In Texas? Right. 11 ^ 12 Q Is there a state safety o r ganisa tion 13 that has jurisdiction at Comanche Peak? 14 A l' m sorry. I think I' v e got the 15 lette r here. Oh, this is just di r e c tin g me where 16 to send it and so forth. No, I don't have a copy 17 of my le tte r or their reply. 18 MR. REYNCLDS: W e ' ll ma rk 19 as Exhibit I a copy of a letter 20 f rom the U.S. D epa rtm ent of Labor 21 to Mr. H a mil t o n dated March 25, M 1982. The reference is Brown & 23 R oot/ K r olak Ha mil t o n and Shelton/ 24 6-2450-82-011, 25 [Whereupon Exhibit N o.
s \\s 26 1 1 was ma rked for id e ntifica tion. ] 2 3 Q [By Mr. R e yn old s ] This lette r 4 hack to you is in response to a lette r f rom you 1 5 to OSHA? I l 6 A Right. 7 Q The lette r is dated Ma r ch 25th so 8 obviously you wrote your letter to them before 9 that time, correct? 10 A
- Yes, I b e ll e..
so. I had contacted 11 them by phone previous to this. In. turn, they i 12 sent me some bla nk f o rm s for a f o rmal complaint. 13 Q With this lette r ? 14 A Right. 15 Q Do you r emembe r the s p e cifi c date 16 on w hi c h you were t e rmina t ed f r om the site ? 17 A March 3rd of this year. 18 Q Do you remembe r when you c a ll e d 19 OSHA 7 21 A 1 d o n' t remember the date, no. 21 Q Was it tw o weeks before you M received this lette r ? n A It was probably a week before 1 24 received all the blanks. 25 Q Do you have the q u e s ti o nair e that l
) 4 27 1 was enclosed with this ? + 2 .A I don 't have it with me. 3 Q Did you fill it out and send it back P 4 A Right. 5 O You did n' t make a copy of it ? 6 A No. 7 [Whereupon an off the record discussion was 8 held.] 9 Q [By M r. R eynold s ] The que s tion I 10 asked you which you didn't respond to because 11 you were reading that OSHA lette r was whethe r 12 thece was a state o rga niza tion, a state counter. 13 part to OSHA that has jurisdiction over occupa-14 tional safety at Comanche Peak? 15 A Not that I know of. 16 Q You did n' t pursue your complaint 17 with any state agency? 18 A No. 19 Q You then in response to this Ma rch 20 25th letter f rom OSHA which is the Deposition 21 Exhibit 1, you filled out the que s tionair e ? u A Yes. M Q And returned it to OSHA? 24 A Right. l 25 Q What type of inf o rma tion did the l l
a 28 1 que s tionai r e seek? 2 A Just more or less why I'was dis-3
- charged, the cir cum s tan c e s evolving around that 4
and so forth. 5 Q A d e s c rip ti on of what you have 6 de s c rib ed to us here about the two and a half 7 A Same d e s c rip tion. 8 Q Did you hear a response f rom OSHA 9 when you sent in the qu e s tionair e ? 10 A It was probably at least a month 11 before r heard f rom them because they said they 12 had to many r ep r e s enta tive s in the area, and I'd 13 just be put on a list. 14 Q And tha t's all you've heard? 15 A
- Right, t ha t's all I heard for about 16 a m on t h, and finally I was I got a phone call 17 f r om the OSHA people saying that they were not 18 going to go out and p hy s i c a lly make an in s p e c tion 19 of the area.
m Q' Did you pursue any appeal avenues 21 withia OSHA f r om that d e te rmi na tio n ? 22 A No, I did n ' t. I could see I was M going to run into a brick wall everywhere I w e nt. M Q Is there an appeal process? 25 A I d on' t know if there is or not.
3 4 29 1 Q How did you know you were going 2 to run into a brick w a ll unless you appealed? 3 A W ell, p r e vi ou s to that I tried to 4 draw unemployment which was refused by Brown 5 k R o o t. I had applied at several busine s s e s 6 trying to find a job. I could not because of 7 what was stated on my discharge papers. 8 Q W ha t does that have to do with 9 OSHA 7 10 A I' m just saying, you know, my luck 11 was ru n nin g bad on those two avenues, and I 12 figu r ed it was more or 1ers a wa s te of tim e for 13 me to pursue it any further. 14 Q So you d ete rmined it was a waste 15 of tim e to pursue it ? 16 A I had to find a job, you know, I 17 was out of a job. 18 Q W ell, you needn't s ta y unemployed i 19 while you appealed through OSHA 20 A I did n' t have the time to fool with 21 it. 22 Q How much tim e did you spend 23 w riting the letter to OSHA and filling in the 24 Inf o rmation ? 25 A Probably an hour at the m o s t.
It 30 1 Q Do you know whethe r s caf f olding 2 was eventually put up? 3 A No, it was not. 4 Q So let me try to s umma ris e, and 5 you correct me if I s umma riz e inc o r r e c tly. 6 Prior to the request for you to go up and inspect I' m returning your le tte r to you. 7 on that rail 8 A Thank you. I 9 Q Prior to the request of you to go 10 up and inspect, perhaps six to ten painters had 11 been up there p r e pa ri n g the su rf a ce for painting ? 12 A Right. 13 Q Subsequent to your refusal to inspe ct 14 and t e rmina ti on, other QC inspectors inspected 15 the area? 16 A No other inspectors had been up on 17 that rail. 18 Q W ell, before it was painted did n' t 19 they have to inspect it ? 2 A Yes. 21 Q-So subsequent to your refusal 22 A P r oba bly most lik e ly the night s hif t 23 inspected it. M Q But it was inspected by QC? 25 A
- Right, but the night s hif t had acces s
i 31 I to the r ota tin g pla tf o rm which what they would ,2. de, t h e gy.w o uld go up the ladder and get up on
- +;%~.
3 th
- P failee m,
and the crane w ould move them 4 right around to the in s p e c ti on area, because it 5 wa s n' t used by any other craf t at night on 6 the night s hif t. 7 Q Did you suggest to your sup e r vi s o r o a that the in s p e c ti on be left for the night s hif t ? 9 A Yes. 10 Q To whom did you say that? 11 A Harry Willia m s. He said we're 12 going to do it on days. 13 Q So it wa s the n t'ns pected by QC 7 14 A Yes. 15 Q And painters went up to fini s h the 16 painting without railing ? 17 A Right. 18 Q S o,
- perhaps, tw en ty,
- thirty, forty 19 people were up there before and af ter you refuse d 2
to go up there? 21 A That's true. 22 Q W ha t was your level of c e rtificatio.s M as a QC inspector? 24 A Level 2. 25 Q W ha t does that mean ? ,}}