ML20092J024
| ML20092J024 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 06/22/1984 |
| From: | Lauer R CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), ISHAM, LINCOLN & BEALE |
| To: | |
| References | |
| OL, OM, NUDOCS 8406260332 | |
| Download: ML20092J024 (85) | |
Text
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UNITED STATES OF AMEEICA
'84 JIN 25 P12:21 NUCLEAP RECULATOPY COMMISSICN OFFTE rF b: >
C0CXLilU ' SER BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: ) Docket Nos. 50-329 CM
) 50-330 OM CCNSUMERS POWER COMPANY ) Docket Nos. 50-329 OL (Midland Plant, Units 1 & 2) ) 50-330 OL Applicant's Peply to Intervenor Barbara Stamiris' Second Supplerental Proposed Findings of Fact and Conclusions of Law on Cuality Assurance and Managerent Attitude Issues 111TFODUCTION On page 22 of Intervenor Barbara Stamiris' Second Sup-plemental Proposed Findings of Fact and Conclusions of Law on Quality Assurance and Management Attitude-Issues ("Intervenor's Second Supplemental Findings") Intervenor concedes that:
It is hard to imagine a stricter system of controls and checks than that currently existing for the soils work at Midland.
It is this system of controls and checks, arising in part out of this Licensing Board's April 30, 1982 Order, and in part from URC Staf f requirements and Consumers Power Company initiatives, which provides reasonable assurance that the soils
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work at Midland is being done and will continue to be done properly.1 Intervenor's Second Supplemental Findings do not sug-gest any specific improvements to the current arrangements under which soils work is going forward at Midland. Indeed, Intervenor n.erely recommends that the December 6, 1979 Order Modifying Construction Permits be sustained, without indicating under what circumstances, if any, soils work at !!idland could be allowed to resume. However, the gist of Intervenor's Proposed Findings is that Consumers Power Company's character and competence are such that it can not be trusted to carry out the remedial soils work, no matter how closely regulated.3 1 See Keppler, October 29, 1982 prepared testimony with rerpect to quality assurance at p. 6, following Tr. 15111; Keppler, March 25, 1983 prepared testirony with respect to qua-lity assurance at pp. 5-6, following Tr. 15114; Consumers Power Corpany's Preposed Second Supplemental Findings of Fact and Cenclusions of Law for Partial Initial Decision on Quality
' Assurance Issues at paragraphs 424, 399-423; URC Staff Further Supplemental Findings of Fact and Conclusions of Law Concerning Quality Assurance at paragraphs 231-234, 612e.
2 Intervenor's Second Supplemental Findings at pp. 1-2, 132, call for the " submission of an amendment to the applica-tion for a construction permit seeking approval of remedial actions" and the " issuance of an amendment authorizing soils remedial acticns", without specifying what such application or construction permit amendment should contain.
3 Intervenor does not limit her attacks to Applicant's
' characters she accuses Mr. James Keppler of the NEC of lying under oath. See Intervenor's Second Supplemental Findings at paragraphs 33, 39 n.7, 58.
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( w) v The record in this proceeding does not support Inter-venor's conclusions. As shown below, Intervenor's Second Sup-plemental Findings are frequently inaccurate or misleading, and consistently ignore evidence which contradicts her own theme.
A fair reading of the whole record shcws that Applicant has never deliberately failed to comply with NRC requirements or intentionally misled the NEC in any way.4 There is extensive evidence that consumers Power in willing to take every reason-able measure to overcome the CA implementation problems at the site. The third party reviews and extensive NFC Staf f involve-ment in, and control over, ongoing soils work provide reason-able assurance that such werk can be completed in accordance with regulatory requirements. Accordingly, the Licensing Board's April 30, 1982 Order should be left in place.
LFCAL STANDARDS APPLICAPLE TC CA/ MANAGEMENT ATTITUDE ISSUES In their proposed findings, Consumers Power Company and the NFC Staff have both recommended that this Licensing 4 on May 7, 1984 this Licensing Board determined that there is a basis to litigate in this proceeding certain issues arising out of the Dow lawsuit which may be relevant to Appli-cant's management attitude and character. Any Partial Initial Decision the Licensing Poard rakes at this time will be ex-pressly subject to change in light of the outcone of that liti-gation. Applicant has not yet had any opportunity to explain i or defend its position on the Dow issues, and therefore Inter-l venor's suggestion that the Licensing Poard prejudge the result l
of the Dow litigation should be rejected. Intervenor's Second l Supplemental Findings at pp. 26, 67, 70-71.
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Board continue in effect its April 30, 1982 Order, pursuant to which Applicant is allcwed to proceed with soils work at Mid-land subject to strict supervision by independent reviewers and ;
by the NPC Ftaff. In her discussion of legal standards, Inter-venor suggests several theories why such an arrangement may not be appropriate.
- Interver.or Staniris argues that the Licensing Board may not delegate to the NRC Staff the decision concerning the conditions under which soils work can proceed. Specifi-t cally, Ms. Stamiris objects to Applicant's suggestion that the NEC Staff be given discretion in administering the current Work Authorization Procedure. (Applicant's Proposed Second Supple-mental Findings at paragraph 353). But the non-delegation case upon which she relies was a final decision in an operating license case. In contrast, in this proceeding all that is be-ing contemplated is a Partial Initial Decision resolving issues raised by the NRC Staff's December 9, 1979 Order Modifying Con-struction Permite. If soils werk is allowed to go forward, some degree of ongoing NRC Staff supervision is inevitable, and the Staff should be given sufficient flexibility to do its job efficiently. This does not mean that the Licensing Board would impermissibly delegate the ultimate decision on implementation i of quality assurance to the Staff. The Licensing Board would 5 Intervenor Stamirls' Second Supplenental Proposed Findings at p. 13.
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O retain jurisdiction to rule on any questions concerning the Staff's and Applicant's compliance with its Partial' Initial Pecision, and of course the Licensing Board can withhold oper-ating licenses if the soils work is not carried out properly.6 Intervenor Stamiris also suggests that the Licensing Board cannot take into account the ef forts of the NRC Staf f as well as those of Applicant in assessing whether there will be effective implementation of quality assurance in connection l with the soile work at Midland. While Consumers Power agrees that the major burden of ensuring quality at Midland must be on
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Applicant, the substantial effort which the NRC Staff, Region i III, has devoted and is devoting to this project is an cbjec-tive fact: it cannot be ignored by the Licensing Poard. Nor I is it the Licensing Board's province to determine whether the Staff's inspection and enforcement resources are overcommitted to Midland and might be better spent in sore other fashion. !
I See, e.g. Carolina Power & Light Company (Shearon Harris Nuclear Power Plant, Units 1-4), CLI-80-12, 11 NEC 514, 516 (1980). The Licensing Board's responsibility is to decide, given all the measures and safeguards put in place at Midland i by both Applicant and the NRC Staff, whether soils work can continue with reasonable assurance that it will be done proper-ly.
6 See Consumers Power Company (Midland Plant, Units 1 '
and 2) ALAB-684, 16 NPC 162, 166 and 166 n. 2 (1982).
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U Since the submission of Censumers Power Company's Second Supplemental Findings on January 27, 1984, the Appeal Board has decided two cases of exceptional importance: Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) ALAB-763, NPC (March 20, 1984); Metropolitan Edison Company (Three Mile Island Nuclear Generating Station, Unit 1), ALAB-772, NRC (May 24, 1984). These two deci-sions clarify the standards to be applied by this Licensing Board in considering the quality accurance and management atti-tude issues in this proceeding.
In Diablo Canyon, ALAB-763, supra, the Appeal Board confronted a situation in which there had been a failure of the App 11 cant's design quality assurance program to comply with 10 CFR Part 50, Appendix P. Ac a result, there was substantial uncertainty whether any particular structure system er compo-nent was designed in accordance with stated criteria and com-mitments. In this context, the Appeal Eoard focused on the adequacy of applicant's verification ef forts "to substitute for, or supplement, the applicant's design quality assurance program in order to demonstrate that the Diablo Canyon plant is correctly designed." ALAD-763, (slip opinion at pp. 6-8). The Appeal Board concluded that the scope and execution of the applicant 's verification programs were suf ficieni to establish that Diablo Canyon Unit 1 design adequately meets its licensing criteria. The result in Diablo Canyon, ALAP-763, effectively
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r-rebuts Intervenor Stamiris' suggestien that the " ultimate ques-I tion" in Midland must be whether the Licensing Board has any !
legitimate doubt as to the overall integrity of the construc-tion of the facility caused by a breakdown in OA procedures.
Even where confidence has been eroded due to failures in quali-ty assurance, the NFC will consider an applicant's verification I
programs and other remedial efforts in determining whether i there is reasonable assurance that the facility will not endan-ger the public health and safety.E i
In ALAE-763 the Appeal Board recognized that the root causes of the failures in Diablo Canyon's design quality assur-ance program had to be identified and analyzed as part of ap-i plicant's verification efforts. The Covernor of California (an j intervenor) and the NkC Etaf f suggested that a root cause of the design deficiencies not identified by the applicant was PC&E management's lach of commitment to quality assurance, or [
its lack of awareness of the significance of the revised seis-mic design requirements. The Appeal Board observed: ;
7 Intervenor's Second Supplemental Findings at p. 11.
8 See also Cormonwealth Edison Company (Eyron Nuclear Power Station, Units 1 and 2), ALAE-77C, NRC (!!ay 7, 1984) (slip op. at pp. 22-28, but see n. 62); Houston Lighting
& Power Co. (South Texas Project, Units 1 and 2), LEP-84-13, NFC (March 14, 1984); Texas Utilities Generating Co.
(Comanche Peak Steam Electric Station, Units 1 and 2), <
LBP-83-81, 18 NRC 1410, 1452-1456 (1983). We note that Inter-venor Etamiris' characterization of the Licensing Board's opinion in Byron, LEP-84-2, is inaccurate. (Intervenor's Second Eupplemental Findings at p. 12).
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Whether it was lack of commitment or lack of awareness, PC&E's management cannot escape responsibility for a quality assurance pro-gram that initially allowed for design errors of the type and number identified at Diablo Canyon by the verification program.
The evidence indicates, however, that by the late 1970s significant improvements were being made in the applicant's quality assur-ance program. Since that time, the appli-cant has instigated many more changes in its quality assurance program and carried out an extensive and unparalleled design verifica-tion program. The painful lessons PG&E's management has learned from the huge expen-diture of resources required to verify the adequacy of the Diablo Canyon design have produced a present approach to quality as-surance that is ruch improved and currently satisfactory. As it rust accept responsi-bility for past failings, PG&E management must also be credited for the significant improvements in its quality assurance pro-gr a r. . For this reason, the failure of the applicant's verification program tc include in its list of causative factors the past failings of PG&E management toward quality assurance is not fatal and does not alter our conclusion that the root causes have been sufficiently identified.
Diablo Canyon, ALAP-763, supra, (slip op. at pp. 88-E9, foot-notes omitted).
In Metropolitan Edison Company (Three Mile Island Nuclear Generating Station, Unit 1), ALAB-772, NRC (May 24, 1984) the Appeal Board addressed the ability of the licensee's management to operate TMI-1 in a competent, respon-sible and safe manner. While upholding many of the Licensing Board's findings, the Appeal Board found it necessary to remand the proceeding for further record development on several is-fs
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\-) sues, including a reassessment of the adequacy of licensee's training program and exploration of allegations of improper leak rate testing practices. In describing the " nebulous con-cept of ' management competence'" before it in Three Mile Island, the Appeal Board noted that what began as an inquiry into primarily licensee's technical capability and resources had evolved into a search for answers to questions concerning the integrity of the licensee's management.9 Admitting that it lacked precise standards against which to measure licensee's conduct, the Appeal Board nevertheless emphasized that abdica-tion of responsibility or abdication of knowledge by a licensee or applicant is unacceptable, that a licensee or applicant must be committed to strict adherence to rules and regulations, and that NFC depends on licensees for accurate and timely informa-tion about their facilities.10 The Appeal Board in Three Mile Island stated that
" Evaluation of character always involves consideration of 9 The Licensing Ecard in Houston Lichting &
(South Texas Project, Units 1 and 2), LEP-84-ll, ~ Power NEC Co.
(March 14, 1984) recognized a dichotomy between " character" and
" competence," rather than treating management integrity as one aspect of competence as the Appeal Board did in Three Mile Island, ALAL-772. Possibly the analytical distinction rade in LEP-84-ll was unimportant for purposes of ALAE-772.
10 ALAD-772 (slip op. at pp. 10-14). The Licensing Eoard's decision in Houston Lighting & Power Co. (South Texas ,
Project, Units 1 and 2), LDP-84-11, NPC (March 14, 1984) contain a discussion of " character" and " competence,"
which is generally consistent with, but somewhat more thorough than, the Appeal Board's discussion in ALAB-772.
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r largely subjective factors. In the corporate context, with the ;
interplay of individual and collective actors, that undertaking proves even harder to tackle."11 However, in assessing the guilt or innocence of individuals involved in allegations of cheating during operators' license examinaticns, the Appeal '
Board held that direct observation of witness demeanor should be given special weight, but not conclusive weight when more objective evidence is available.12 The Appeal Board also '
stated that where a fullydeveloped record is inadequate to sup- i port a finding of wrongdoing by an individual, " Clouds of sus-picion, though thick, are not enough."13 Finally, ALAB-772 demonstrates the Appeal Board's convicticn that in such inqui- j ries (unlike situations involving competing expert opinions on '
technical subjects), once !!PC adjudicatory boards are apprised of the facts, the opinions of others are irrelevant. The adju-dicatory boards ate able and obliged to form their cwn.conclu-4 sions.14 #
11 ALAB-772, (slip op. at pp. 12-13).
12 ALAB-772, (slip op. at pp. 34-35).
13 ALAE-772, (slip op at p. 49). -
14 See, ALAE-772, (slip op, at p. 119) (epinions of Udall Conmittee irrelevant). See also ALAE-772, slip opinion at pp.
129-133 (reliance on conclusory NRC Staff investigative report inappropriate): ALAE-772, (slip op, at pp. 125-126) ("The inde-pendence of the adjudicatory boards is essential to preserve the integrity of the hearing process.")
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Applying the standards of Diablo Canyon and Three Pi'le 1 Island, to this case, it is clear that the single overriding (4 consideration in assessing Consumers Power Company's management i
1 attitude is the Company's repeated, extraordinary efforts to' dos ;
whatever is necessary to ensure successful completion of the :
Midland Plant. Beginning with the creation of MPQAD and the
'i, formation of the Midland Project Organization in 1980, continu-ing with the assumption of CC. responsibility for soils and balance of plant areas, and culminating with the CCP, Consumers Power has made a total commitment of Company resources'and ,
- f management attention to that goal. There have been missteps along the way, but the system now in plac,e, including strict.
s oversight by NRC and independent reviewers, provides reasonable s assurance that soils work is being done properly and can con- '
tinue. of Consumers Power Company's repeated, extraordinary i
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efforts to achieve quality in construdtion at Midland is the I most objective, most reliable evidence of Consumers Power Com-pany's positive management attitude toward its regulatoryI :1 1esponsibilities.
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I RESPONSES TO INTERVENOR'S SECOND !
SUPPLEMENTAL FINDINGS ON OUALITY ASSUPANCE Paragraph 1. The SALP 2 Report was for the period of d'
July 1, 1980 to June 30, 1981. Contrary to the assertion in this proposed finding, Dr. Landsman testified that seven of the oj nine inspection reports issued in 1982 cited itens of noncom-k^
pliance in the soils area; the other two cited concerns.i~r Moreover, Mr. Shafer 's testimony concerned inspection reports 6
issued during the SALP 2 period, not during 1982.
Paragraph 2. This finding should be clarified by not-ing that the time period in question was the SALP 2 period.
Paragraph 3. No response.
Paragraph 4. Intervenor fails to give record support for the opinion she attributes to Mr. R. Cook.
Paragraph 5. Consumers Power acknowledged that its first response to the SALP 2 Report was argumentative.I7 '
With regard to the specific comments which appear on Stamiris Exhibit No. 57, Mr. Shafer cautioned that these comments were intended only for Staff use as a working document and were never intended to be conveyed to the Applicant.10 Mr.
R. Cook did make the criticisms outlined in this finding, but 15 Landsman, Tr. 14757-14760.
16 Shafer, Tr. 14764.
17 J. Cook, Tr. 18389-183S0.
() 18 See Shafer, Tr. 14786, 14792, 14796, 14800-14801.
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he also noted that these comments were intended only as notes and were never used and that removal of the license and a purge of management were no longer justified 'in light of Consumere Power's reconsideration of its response. Furthermore, Mr. R.
Cook stated that the attitude realignment to which he referred i in his notes is occurring.19 Paragraph 6. The transcript pages cited do net sup-port this finding.
Paragraphs 7-10. No response.
Paragraph 11. While Mr. Kepeler did indicate the need for a plan, he told Consumers Power that it should take the initiative in develeping a program. 0 Paragraph 12. Consumers Power did not bring a draft :
letter tc the September 2, 1982 meeting with the NRC Staff. At that meeting, Consumers Power presented recommendations to the NRC Staf f in the forr of a handout with single line proposalc.
As a result of the meeting, Consumers Power was then asked to document the program proposed.21 The September 7, 1982 draft letter attached to Stamiris Exhibit No. 64 was presented at a working level meet-ing with Messrs. Novak, Hood, and Shafer on September 8, 1982.
This draf t letter on soils was clearly not intended as a formal
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19 See R. Cook, Tr. 16240-16249.
l 20 Keppler, Tr. 15190.
() 21 Mooney, Tr. 17058-17061.
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(--) submission to the Staff since the purpose of the meeting was i simply to discuss the preliminary draf t.2
Consumers Power's formal submissions in response to Mr. Keppler's September 2, 1982 request took the form of two !
i letters submitted to Messrs. Keppler and Denton on Septem-no ber 17, 1982.'" l' One of these letters (Serial No. 18845) con- ,
cerned CA implementation in the soils area;24 the other con-cerned QA implementation in the balance of plant work (Serial i No. 18850).25 Paragraph 13. The memorandum from Mr. Warnich to Mr.
Keppler details changes which the Office of Special Cases believed should be made to the September 17 proposals. How- '
ever, as Mr. Warnick noted, the Staff members believed that by working with representatives from Censumers Power their com-ments and recommendations could be resolved.26 According to Mr. Keppler, the NBC Staff was reasonably satisfied with the September 17, 1982 letter relating to soils (Serial No.
22 Stamiris Exhibit No. 64; Keppler, Tr. 15204-15205.
Appendix B to Consumers Power Company's Proposed Second Supple-mental Findings should be amended to reflect that Stamiris j Exhibit No. 64 was admitted into evidence at Tr. 14976. :
i 23 Keppler, Tr. 15201-15203, 15207; Mooney, Tr. 17058-17059.
24 Keppler, October 29, 1982 prepared testimony with re-spect to quality assurance, Attachment F, following Tr. 15111.
25 Keppler, October 29, 1982 prepared testimony with re-spect to quality assurance, Attachment E, following Tr. 15111. ;
() 2G Stamiris Exhibit No. 65.
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18845?. A draft letter to Consumers Power indicates that the Staff had reviewed the commitments in both letters and found the concepts proposed to be acceptable. O NPR dis-agreed with this opinion,29 but did not convey these concerns directly to Mr. Keppler. O [
Paragraph 14. The letter which Consumers Power sub-mitted on October 5, 1982 provided details regarding the inde-pendent review program to which Consumerc Power committed in the September 17, 1982 letter on balance of plant CA (Serial No. 18850). The October 5, 1982 letter did not address the cor.mitments made in the soils area.31 Intervenor's finding is alto inaccurate insofar as the criticisrs raised by NFE in Stamiris Exhibit No. 72 related to the two September 17, 1982 letters, not the October 5, 1982 submittal. Moreover, the statement that " Consumers was forced once again to revise the
, letter" is unsupported. Finally, Mr. Keppler's statements con-cerning the Staff not being satisfied was limited to the infor-mation provided concerning the balance of plant GA implementa-tion.3'*
27 Keppler, Tr. 15257.
28 Stamiris Exhibit No. 71.
29 Stamiris Exhibit No. 72.
30 Keppler, Tr. 15249-15250.
31 Stamiris Exhibit No. 74 at p. 2.
32 Keppler, Tr. 15256.
O b Paragraph 15. The earlier draft stated Mr. Keppler's belief that work could continue "without leading to inadequate quality." He then noted that, if the DGE results led to a change in his position, he would do or recommend whatever was necestary to provide reasonable assurance.33 Mr. Keppler acknowledged in oral testimony that this statement indicates his conclusions on reasonatie assurance might be different f depending upon the DGB findings. f e
Paragraph 16. The citation to Stamiris Exhibit No. 90 l
is incorrect. In addition, Mr. Keppler's testimony was that the third party independent reviews were intended to address i
the NPC Staff's concerns more than the concerns of the ACRE, l i
but that he believed the independent reviews set out in the CCP i I
would satisfy the ACPS recorrendations.3~" ;
Paragraph 17. The exit s:ecting held on November 10, 1982 was not attended by Consumers Power representatives. Mr.
Shafer testified that the reeting involved only NRC Staf f mem-bers.36 Paragraph 18. Intervenor cites only sketchy meeting notes, Stamiris Exhibit No. 66, to support her statements con-33 Stamiris Exhibit No. 73.
34 Keppler, Tr. 15268.
35 Keppler, Tr. 15342, 15345.
36 Sha fer , Tr. 15066-15068.
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U cerning the Sta f f's position at this meeting with regard to suspending construction. The oral testimony of numerous wit-nesses who were present at the meeting and who explained the meaning cf the notes and the events of the meeting should not be ignored. At the meeting, the NRC Staff informed Consumers Power that they wanted work stopped, but they did not tell Consumers Power that they had definitely decided to recommend issuance of a stop work order. 8 The Staff appeared to be willing to let Consumers Power develop its own recommendations to address the problems found in the DCB Inspection.
The transcript citations supplied by Intervenor do not support her statements that the NRC Staf f told Consumers Power to develop such a plan within one week. To the contrary, Consumers Power outlined a plan at the meeting which it was already developing to address the DCB findings. O Paragraph 19. On December 2, 1982 Consumers Power stopped balance of plant safety related work at the site except for those types of work listed in this finding and post-sys-37 Shafer and Cardner, Tr. 15079-15080.
38 B. Peck, Tr. 18929A; J. Cook, Tr. 18746-18748. See also Stamiris Exhibit No. 66 at p. 2 ("Warnick says they are l not fixed in their position today.")
l 39 J. Cook, Tr. 18746-18748; E. Peck, Tr. 18929-A.
40 B. Peck, Tr. 18929-E-18929-C. See also Shafer, Tr.
I 15074-15083.
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tem-turnover work under the direction of Censumers Power and 1
hanger and cable reinspections.
Paragraph 20. Stamiris Exhibit No. 81 is a Decem-ber 3, 1982 letter from Consumers Power, but it does not con-cern the independent design review and is not a revision to the Consumers Power submittal of October 5, 1982. Intervenor apparently intended to reference the recember 3, 1982 letter described in Stamiris Exhibit No. 74 at p. 2. T1.is letter (Seria1 No. 19750) is described as having made modifications and additional commitments relative to the independent review.
Paragraph 21. The Staff decided they would request l
Consumers Power to consolidate its various proposals. With ,
regard to the scope of the independent design review proposed l in Consumers Power's December 3, 1982 letter (Serial No.
19750), the NRC Division of Engineering was to have the techni-cal responsibility for choosing which of the three systems pro- ,
posed by Consumers Power would be the seccnd system included in the review.43 The last sentence of the proposed finding must be dis-regarded. Stamiris Exhibit No. 79 is not part of this eviden-41 J.. Cook, April 11, 1983 prepared testimony on quality assurance at pp. 5, 16 and Attachment 1 -- CCP Plan Document Section 9.0 at p. 20, following Tr. 18025.
42 Keppler, Tr. 15278, 15284; Stamiris Exhibit No. 74 at
- p. 3.
43 Stamiris Exhibit No. 74 at p. 3.
tiary record and was used only to attempt to refresh the recol-lection of a witness.44 Paragraph 22. Intervenor provides no support for this finding. The January 7'. 1983 letter describing the Construc-tion Completion Program was intended to document the plan that had been presented orally to the Etaff when Consumers Power stopped work in early December 1982 and to consolidate it with previous proposals for third party reviews.45 Paragraph 23. Intervenor's characterization of the way in which the improvements of the Construction Completion Program and the soils overview were developed must be re-jected. The evidence is not sufficient to suppert the infer-ence that the NEC Staff was responsible for each and every improvement; nor does it support the fir. ding that the Staff "had to exert great pressure over an extended time" with regard to the selection of third party reviewers. Moreover, for those improvements which were stimulated by the Staff, the record does not support the conclusion that Consumers Power adopted ,
them only after being threatened with severe enforcement action. To the contrary, the testimony indicates that improve-ments stimulated by the Staff were generally conveyed in the 44 See Tr. 16006-16023.
45 Keppler, Tr. 15279; J. Cook, April 11, 1903 prepared testimony on quality assurance, 7ttachment 1 at p. 1, following Tr. 18025; Keppler, March 25, 1983 prepared testimony with re- .
spect to quality assurance, Attachment 5, following Tr. 15114. !
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. Power in response to Staff concerns. f Specifically, the Staff never " issued an ultimatum" to {
Consumers Power that they "would shut down construction if the utility did not itself do it."40 In addition, the third r party reviews proposed by Consumers Power in the September 17, 1982 letters were broader in scope than what had been suggested [
by the Staff.47 Pa. Keppler also testi fied that, since the DGE Inspection and the stop work by Consumers Power in December of 1982, he believes that Consumers Power has regained the initiative on the Midland Project. Finally, no applicant, including Consumers Power, should be discouraged from meeting with members of the NRC Staff for the purpose of reviewing drafts of reform plans and resolving NRC Staff concerns.
Paragraph 24. No response.
Paragraph 25. Mr. Keppler further explained that he considered the third party overviews to be an appropriate alternative to augmented inspection by the NRC.
Paragraphs 26-27. No response.
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'4G See Reply to paragraph 18 supra and footnote 38 accom- !
panying.
47 Keppler, October 29, 1982 prepared testimony with re-spect to quality assurance, Attachments E & F , following Tr.
15111, Keppler Tr. 15269-15272. '
48 Keppler, Tr. 15657-15658.
49 Keppler, Tr. 15327.
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Paragraph 28. Mr. J. Cook did confirm that the find- i ing that the APU system may not be functional during station ,
I blackout conditions was of safety significance. He further ,
indicated that, af ter a detailed review, he might decide that {
other of the TERA findings are of significance.50 i
Intervenor's proposed conclusions that Consumers Power i i i i
should be faulted for taking the time and making the effort to ,
more fully investigate the TERA findings in an effort to con- ;
firm their accuracy and significance is contrary to recson. 1 '
Moreover, the fact that TEPA has uncovered concerns which Con- ;
I sumers Power, Bechtel, and the Staff had not found is evidence i i
of TERA's effectiveness. [
t Paragraphs 29-31. No response. I i
i Paragraph 32. The CIO is applicable-for only non-4 soils construction activities. 2 ;
Paragraph 35. Intervenor's proposed finding is unsup-ported by the record in this proceeding. Intervenor attempts I to rely upon a document which this Eoard declined to admit into evidence. The Board has ruled that rtamiris Exhibit No. 66 Will not be given any independent weight. Moreover, Mr.
50 J. Cook, Tr. 18359-18364. ;
51 See J. Cook and Rutgers, Tr. 18361-18365.
52 J. Cook, April 11, 1983 prepared testimony on quality [;
assurance at pp. 24-25, following Tr. 18025.
53 Stamiris Exhibit No. 68; Tr. 15720, 15732.
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.r k Keppler's testimony which is cited is based upon the document, not upon Mr. Keppler's personal knowledge.
The proposed attack upon the credibility of Mr.
Keppler with regard to his testimony concerning the approval of -
S& U is unwarranted. No evidence has been presented which would justify a finding that Mr. Keppler lied to this Board.
Paragraph 34. The scope of the CVP and the reinspec- -
tion.of closed inspection records are described in paragraph ,
484 of Consumers Power's Proposed Findings. !
Paragraph 35. The proposed conclusion that Consumers !
Power management did not understand the seriousness of the CA problems at Midland does not follow fror. the evidence pre- i t
sented. Consumers Power's proposal of a sampling approach can- ;
not be presumed to be deficient. The NRC has approved of sam-pling programs for other plants at an acceptable means of veri-r i fication.'4 s Paragraph 36. No evidence is presented which would justify rejecting the conclusions reached by Mr. Keppler and the Staff regarding this technical matter. Moreover, it should be noted that there has already been a program for 100% rein- ,
spection of rebar in concrete which is one of the major in-accessible items.55 In those cases where documentation is 54 See e.g. Pacific Gas & Electric Co. (Diablo Canyon
- Nuclear Power Plant, Units 1 and 2), ALAB T 7E3, Slip opinion at l 29-44 (March 20, 1984).
(} 55 Gardner, Tr. 16753;~R. Cook, Tr. 16755-16756.
I
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being used to assess the completed work, that documentation will have to be shown to be credible and adequate. Final-ly, Ik . Keppler estimated that a large percentage of the plant would be accessible for reinspection.
Paragraph 37. This finding ignores the fact that evi-dence of improvements in the attitude and competence of Con-sumers Power has been presented. Much of the work which was
- evaluated in the DGB Inspection was performed prior to 1982.58 Since that time, there has been the recertification of OC inspectors and the development of the CCP.50 '
Past failures alone cannot be determinative of the ability and will-ingness of Consumers Power to safely construct the plant under these new programs. The Board must consider the entire record in reaching its conclusions regarding reasonable assurance. O As the record shows, the CCP is effectively designed to identi-fy and remedy construction deficiencies and variances which may presently exist between the design and as-built conditions of i
- the plant.
56 Keppler, Tr. 15387.
57 Keppler, Tr. 15385.
58 Rutgers, Tr. 18117-18119.
59 J. Cook, April 11, 1983 prepared testimony on quality assurance at pp. 4-8, following Tr. 16025; Wells prepared tes-timony on quality assurance at pp. 4-5, following Tr. 18027.
60 See Houston Lighting & Power Co. (South Texas Project, s
Units 1 and 2), LEP-84-13, Slip opinion at pp. 22-24 (March 14, Os . 1984).
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Paragraph 38. Intervenor has no record support for this statement. The nurber of CC personnel performing the CVP will probably be about 300. The number of S & W pecple per- .
forming the CIO, which includes an overview of the CVP, will depend on the recomr.cndations of the S & W project leader. I Paragraph 39. Intervenor's speculation in footnote 7 to this proposed finding that the NRC Staff misrepresented the [
approval process that was undcrtaken with regard to S & U is wholly without evidentiary support. As described in paragraphc 383 and 384 of Consumers Power's Proposed Findings, the NFC Staff made a careful review of the independence and competence
.of S & W which accords with the Palladino criteria. Intervenor again improperly proposes that the Board rely upcn a document (Stamiris Exhibit No. 68) which is not part of the evidentiary record.62 ,
Paragraph 40. The document cited in support of this l
finding indicates only that the NRC Staff identified a concern with the scope of the S & W overview.
Paragraph 41. Paragraph 423 of Consumers Power's Pro-posed Findings does not suggest that any findings regarding the !
substance of S & W's conclusions be made. The conclusion that i
~~
S & W appears to be performing its job as it should and that 61 J. Cook, Tr. 18554-18555, 18716-18717, 18723.
62 Stamiris Exhibit No. G8; Tr. 15732. See also Reply to rx paragraph 33 supra.
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the third party review for soils appears thus far to be ef fec-tive is further supported by more recent S & W reports, includ-ing those cited by Intervenor.
Paragraph 42. Intervenor's statement that these reforns were " mandated" by the NRC Staff is unsupported by the record. Additionally, Mr. P ooney's prepared testimony address-t es reforms in the soils area which are cistinct fron the CCP. L Paragraph 43. Mr. flooney joined the Midland Project Office as Executive Manager in August, 19 81. E "' I:cwever, the soils project organization and the assignment of single-point acccuntability to Mr. Ifocney for soils work did not occur until the September 17, 1982 proposal letter (Serial No. 18845) to '
the NFC Staff.
Mr. E. Cook and Dr. Landsman were critical of Mr.
Mooney because of past misunderstandings which had occurred between ?!r. Mooney and certain NEC Staf f membet s. However, Dr. :
Landsman also testified that communications between 1:r. Mooney and the Sta f f have greatly improved.F~R Other Staff members also commented upon the integrity and improved communications shown by Pk. Mooney.66 In light of these improvements and 63 Mooney, prepared testimony on remedial soils work at
- p. 2, following Tr. 17017. i 64 Id. at pp. 4-5, 15-1G. I 65 Landsman, Tr. 20221-20862. ,
66 F
Kane, Tr. 21875-21876; Hood, Tr. 20777-20779.
l
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Mr. Mooney's own testimony as to his efforts in this area,67 ,
t a finding that Mr. Mooney does not contribute to dedicated managerent or good management attitude is not justified.
i Paragraph 44. Soils CC and HVAC OC had previously been made a part of MPOAD. At the time balance of plant CC
- i was incorporated under !!PCAD, Mr. Wells determined that some !
i Bechtel CC supervisors needed to remain in their positions so that the most qualified persennel were utilized.60 The Staff
~
found Mr. Wells' approach to be acceptable.70 Paragraph 45. Contrary to the conclusion proposed in I this paragraph, Dr. Landsman testified that soils CC is doing a
. satis factory job on the underpinning work which began in Decem-ber, 1982.
Paragraph 46. No response.
Paragraph 47. Mr. Wells explained that there had been a misunderstanding as to this matter. The issue was discussed at a September 1982 meeting prior to Mr. Wells' involvement as the Executive Manager of MPQAD.
67 See Mooney, Tr. 17050.
68 Consumers Power Exhibit No. 48, Appendix 1 at p. 1.
69 R. Cook and Shafer, Tr. 16298-16299.
70 Keppler, Tr. 15616.
71 Landsman, Tr. 16904-16905, 16920, 20582-20683.
72 Kells, Tr. 18173-16176.
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-Paregraph 40. Mr. Gardner was not as critical as f Intervenor suggests. He also testified that Consumers Power 3
took steps to correct these problems.
Paragraph 49. The Staff did not force Consumers Power to suspend recertification. They credited Consumcis Pouer for t acknowledging the problem, suspending the training program and taking steps to improve it.
Paragraph 50. This is not an accurate interpretation ;
of Mr. Gardner's testimony at Tr. 14466. Mr. Gardner stated I
that the use of IPINs was a "significant" problem which was a management problem rather than a training problem. ,
Paragraph 51. Mr. Gilray testified that he was satisfied with Applicant's commitment with respect to certifi-cation and documentation of the education and experience of CC inspectors. 5 The Nr.C Staf f had not at the time of hearings performed inspections indicating a problem new exists with respect to the education and experience of CC inspectors at 6
Midland.
Paragraph 52. The reason for the schedule changes in performance demonstrations is expla'ned in Stamiris Exhibit No.
73 Gardner, Tr. 144Cl-14483. r 74 R. Cook, Gardner, Landsman, and Shafer, March 25, 1983 prepared testimony with respect to quality assurance at pp.
2-3, following Tr. 14374; see also wells, Tr. 18195-18197.
75 Gilray, Tr. 16934-16935. !
() 76 Landsman, Tr. 16961; but see Tr. 16940-16941.
O 82. Trainees perform construction inspections only if they have already been certified to the applicable POCI. Mr. R.
Cook did not testify that Consurers Pcwer was placing construc-tion schedule ahead of CA responsibilities by handling the per-formance demonstrations in this zanner. His testimony was that construction activities were the reason for rescheduling CA performance deronstrations. b Stariris Exhibit 82 also gives r
the reasons for the schedule changes and evidences an intention to minimize performance demonstration changes and to keep the Staff informed of the changes.
Paragraph 53. As the record citations indicate, other procedures have been established for the certification of sub-contractor CC personnel and Eechtel QC personnel outside the soils area. The certification procedure was ongoing at the time of testimony.74 -
Paragraph 54. All PCCIs are being reviewed and revised as necessary under the CCP. The purpose of this review is to put them into a consistent format and to have the specifications clearly set out.O Dr. Landsman testified that the PQCI re-view, being undertaken by CA engineering, was adequate.61 77 R. Cook and Shafer, Tr. 16634.
70 R. Cook, Tr. 16641-1C643.
79 R. Cook and Shafer, Tr. 16658.
80 Wells, Tr. 18658.
81 l (_s) Landsnan, Tr. 16673; see also Gardner, Tr. 16794-16795.
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Paragraph 55. Dr. Landsman and Mr. Gardner testified that they have found no significant problems with any other portion of the retraining and recertification program.82
- Moreover, all QC personnel in the soils area have successfully '
been certified under the upgraded certification program.b Paragraph 56. Intervenor provides no support for these conclusions. Furthermore, these ccnclusions are not sup-ported by the record as a whole.
Paragraph 57.
(a) The pages cited by Intervenor do net indicate that Mr. Mooney testified that this incident was not a serious matter. We also note that Intervenor would have the Board con-clude that every violation of procedure is a serious safety concern. Such a conclusion would be unreasonable and unrealis-tie. As explained in paragraphs 403-405 of censuners Power'c l prcposed findings, the Applicant identified this problem and promptly resolved it.84 (b) A drift did not collapse during the underpinning i work, although Mr. R. Cook (not Dr. Landsman) initially indi-cated that had happened. Dr. Landcran subsequently clarified 82 R. Cook, Gardner, Landsman and Shafer, March 25, 1983 prepared testimony with respect to quality assurance at p. 3,
! following Tr. 14374.
83
' Wells, prepared testimony on quality assurance at pp.
4-5, following Tr. 18027.
84 Mooney, Tr. 17337-17338.
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E that a perched pocket of water had heen encountered during dig- l ging, and as a result some loose sand washed into a pier exca-vation. Dr. Landsman and Mr. F.. Cook agreed that the emergency grouting measures taken by Applicant were technically and pro-cedurally correct.85 ,
Dr. Landsman testified that he receives daily tele-phone calls from the site which keep him informed. He did not testify that he insisted on daily telephone calls but simply that he be called about important matters.O The testimony I i
of Mr. Mooney indicates that Consumers Power has also taken the initiative in attempting to improve communications with the Staff.07 !
(c) The details of the events surrounding the jacking ;
of the FIVP are described more fully in paragraphs 408-412 of
{
f Consumers Power's proposed findings. i (d) While Dr. Landsman stated his opinion that poor i
management was a cause for this incident, he continued in his ;
! r testimony to state that he did not know whether the worker in L this instance had adequate or inadequate instruction and super-vision. Dr. Landsman also acknov.ledged that no time limit has been established within which Consumers Power must inform
, 85 Landsman and R. Cook, Tr. 16704, 16800-16801.
86 Landsman, Tr. 16704-16706.
87 Mooney, Tr. 17044-17049.
() 86 Landsmat., Tr. 14733.
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either the NRC Staff or Dr. Landsman of nonconformances in the soils area.09 Even so, Mr. Wheeler of Consumers Power ad-vised the Board and the parties of this incident during hear-ings held on February 14, 1983,. the same day the nonconformance report was being written.90 With regard to the cause of the incident, Mr. Wheeler testified forthrightly that this drilling had been done carelessly. 1 Intervenor seeks to have the Board adopt "the NFC's description of the incident, Stamiris Exh. 54". Stamiris Exhibit No. 54 is not a Staff document; it is the nonconfor-mance report related to this incident which was prepared by Pechtel and it explains quite clearly that the duct bank was ,
hit in approximately fourteen locations.c2 -
This description of the incident in no way calls into question the credibility of Mr. Wheeler. His testimony and the hechtel nonconformance toport are not in conflict.
(e) Events surrounding the Pier 11 West load test are i
described more fully in paragraphs 413-419 of Consumers Power's proposed findings. One point to be noted here is that Con- l sumers Power did identify the anti-friction system as the prob-89 Landsman, Tr. 14729.
90 Wheeler, Tr. 11410, 18631-18832.
91 Wheeler, Tr. 11411.
92 See Wheeler, Tr. 18831-18837.
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O able cause of the problem with getting the full load down to the hottom of the pier. 3 (f) At the time when the EPA wings were found to be rising, no underpinning work was being done. The readings were being taken for the purpose of obtaining base line data which could be used for comparison purposes after the underpinning work began.
(g) Further details of this nonconformance and the corrective action taken by Consumers Power are described in paragraphs 700-703 of Consumers Power's proposed findings.
(h) The FIVP was originally installed non-Q and later the NP.C Staff wanted the FIVP to be inspected. Consumers Power performed the inspection and the second load test. The >
Staff agreed that Consumers Power could proceed with the exca-vation of the soils near the structure prior to performing the proof load test.
93 See Mooney, Tr. 17162. Because of the conservative way in which Consumers Fower Company proposed to resolve the problem, the NPC Staff did not need to reach a conclusion as to the most likely cause of the problem.
94 Mooney, Tr. 17345-17346. See generally, Consumers Power Company's Proposed Second Supplemental Findings at para-graph 420.
95 See Wheeler, Tr . 18873-18875.
96 See Wheeler, Tr. 18873-18890; Consumers Power'Com-pany's Proposed Second Supplemental Findings of Fact at para-graphs 715-718.
U (i) Dr. Landsman testified that he was not certain ;
i I
when or how the Applicant notified him of the St.'PS cracks; he did not testify that he was not properly informed of the mat-t ter.97 Consumers Power followed its procedures when it be-i came aware of this potential problem and had CTL evaluate the ;
cracks. CTL determined that there was no increase in cracking ;
or crack width and this report was provided to Dr. Lands-man.'O Paragraph 58. Dr. Landsman further testified that, ;
with the current controls that are in place, he has. reasonable assurance that the Midland plant can be completed in accordance with regulatory requirements.9a '
Dr. Landsman has also tes- '
tified that, in his opinion, Consumers Power's performance of the undcrpinning work has been adequate so as to warrant cen-tinuation of the work.100 Given the fact that neither Dr.
Landsman nor anyone else from the NEC Staff was of the opinion that greater controls are needed in order for remedial soils 97 Landsman, Tr. 14662.
98 Mooney, Tr. 17154-17156. See generally Consumers Power Company's Proposed Second Supplemental Findings at para-graph 722.
99 Landsman, Tr. 16491.
100 R. Cook, Gardner, Landsman and Shafer, March 25, 1983 prepcred testimony with respect to quality assurance at p. 5, following Tr. 14374; Landsman, Tr. 20682-20683. See also, Con-sumers Power Company's Proposed Second Supplemental Findings at paragraphs 399-401. ;
work to continue, and given the fact that Consumers Power has shown the comn.itment necessary to do whatever is necessary to meet regulatory requirements, the conclusion which must be reached is that reasonable assurance exists that the soils work can be completed in a manner consistent with regulatory re-quirements.
Paragraph 59. For a discussion of the Applicant's response to the SALP O Report, see paragraph 547 of Consumers Power's proposed findings.
Paragraphe 60-61. No response.
Paragraph 62. Dr. Landsman and Mr. Gardner both indicated that the important aspect was not the arount of the civil penalty, but was the stop work instituted by Consumers Power.
Paragraph 63. The NRC Staff members of the Midland section team who were present at the November 10, 1962 meeting informally agreed that all safety-related construction should 02 be stopped as a result of the DCE Inspection findings.
However, Region III management, including Mr. Warnick, Mr.
Keppler, and the enforcement board, never had to reach a final decision on the question since Censumers Power shut down most safety-related work at the site weeks before the Midland sec-6 101 Landsman and Cardner, Tr. 15089-15090.
102 Shafer, Tr. 15068-15069.
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tion team issued its report.30 This testimony is corrobo-rated by notes of the November 23, 1982 exit meeting which state that "Warnick says they are not fixed in their position today."104 This evidence, coupled with the fact that Mr.
Warnick was awaiting the team's draft report before taking any specific action, demonstrates that there was never any official ,
Staff position that a stop work was required as a result of the ,
DGB Inspection findings.105 Paragraph 64. A statement by Dr. Landsman as to his opinion shculd not be construed as Staff testimony. Both Mr.
J. Cook and Mr. Rutgers testified that the DGB Inspection had '
revealed a breakdown in quality assurance.100 Moreover, the stop work and the developnent of the CCP are tangible evidence of Consumers Power's recognition of the seriousness of the problems.
The issue of the termination of the use of IPINs is discussed more fully in paragraphs 430-433 of Consumers Power's proposed findings. The NRC Staf f communicated its first con-cerns about IPINs to Consumers Power during exit meetings for 103 Sha f er , Tr . 15072-15074.
104 Stamiris Exhibit No. 66 at p. 2.
105 See Shafer, Tr. 15072-15074.
106 J. Cook, Tr. 18501, 16412-18413; Rutgers, Tr. 18129-18130.
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P the DGE Inspection.107 These concerns were promptly address-ed by discontinuing the return option 108 and by terminating the use of IPINs in the soils work. In January of 1983, the Staff identified further concerns with IPINs, O and Consumers Power then terminated their use for all non-soils related work on January 25, 1983.111 Paragraph 65. There is no basis for the proposed con-clusion that Consumers Power admitted violations listed in the DCP Eeport " presumably because of the harsh enforcement action it faced." The proposed conclusion is also illogical since the response to the DGB Report was submitted after the Notice of Violation and Proposed Imposition of Civil Penalties was issued.
107 Wells, Tr. 18182, Welic prepared testimony on quality assurance at pp. 9-10, following Tr. 18027.
108 Consumers Power Exhibit No. 36; Wells, Tr. 18192-18194.
l 109 Consuzers Power Exhibit No. 52; Wells, prepared testi-many on quality assurance at pp. 12-13, following Tr. 18027; see also Heisenheimer, Tr. 1963C-19C40.
l 110 Wells, prepared testimony on quality assurance at pp.
I 9-10, following Tr. 18027; J. Cook, Tr. 18273.
l 111 Consumers Power Exhibit No. 38; Wells, prepared testi-L mony on quality assurance at pp. 12-13, following Tr. 18027; Wells, Tr. 18190-18191.
112 B. Peck, prepared testimony, Attachment I, following Tr. 18921; Consumers Power Exhibits Nos. 45, Sl.
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113 Keppler, March 25, 1983 prepared testimony with re-1 spect to quality assurance, Attachment 3, following Tr. 15114.
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Consumers Power admitted fully all the violations listed in the DGB Report except for two which were admitted in part.114 With regard to the information supplied to the vendor for the muffler saddle supports and plates, Consumers Power was unable to respond to this violation until a careful review of the documentation'was completed.11 The efforts undertaken by both Consumers Power and the NRC Staff to deter-mine the validity and the cause of this deficiency and the cor-rective action proposed are detailed in paragraphs 442-446 of Consumers Fower 's proposed findings. Consumers Power acknow-ledged ultimate responsibility to the NRC for the deficiencies which were identified.116 ;
Paragraph 66. Applicant's response to this issue is !
found in paragraph 447 of Consumers Power's proposed findings.
Paragraph 67. This finding misconstrues the testimony of NEC Staff witnesses. Messrs. R. Cook, Shafer, and Gardner were questioned concerning a notation in meeting notes from November 23, 1982 which stated that " Good turnaround on (Con-suners Power's) efforts to cooperate. Good attitude lately.
Since (Consumers Power) started communicating with KRC better, 114 B. Peck, prepared testimony, Attachment I, following Tr. 18921; Consumers Powcr Exhibits Kos. 49, 51.
115 B. Peck, Tr. 19560-19561.
116 B. Peck, Tr. 19479-19480, 19483, 19559.
O
s things have been good."11 Mr. R. Cook testified that he ,
appreciated Consumers Power's attitude and that he remembered these comments from the meeting. Fe later stated that the Applicant's attitude wau perhaps not as good as the Staff had perceived it to be at the time of the meeting.110 Mr. Shafer also thought that the attitude was not as good as they first perceived, but he further testified that Consumers Pcwer's management personnel, specifically Mr. D. Miller and Mr. Wells, had made considerable efforts in communicating with and re-sponding to the NRC. Mr. Gardner agreed with the stEte- I ment from the meeting notes concerning Consumers Power's atti-tude.120 The conclusion to be drawn from this evidence is that the Staff members believe that Consumers Power's manage-ment attitude has irproved overall, even though incidents have occurred which cause them to believe that the improverent is not as great as they once perceived it. Notice should.also be taken of Mr. Harrison's testimony that Consumers Pcwer has demonstrated a more positive attitude subsequent to the DGE 1
Inspection time period.
117 Stamiris Exhibit No. 66 at p. 2; R. Cook, Shafer and Gardner, Tr. 16252-16254.
110 E. Cook, Tr. 1G254; see also R. Cook, Tr. 16248-16249.
l 119 Shafer, Tr. 16253-16254.
e
, , . 1 120 Cardner, Tr. 16254. '
121 Harrison, Tr. 20646, 20692-20693, 20775.
Ca The incident concerning the prorise to do a 100% rein-spection was explained by Md. Wells as having been the result of a r.isunderstanding.1 2 :
'While the Board is to consider all the evidence of record, both objective and subjective, the Board should place !
\ i greater weight upon objective evidence in reaching its own
. independent conclusion regarding management attitude. The objective evidence' indicates an: improved and satinfactory I management attitude.123 Paragraph 68-69. The record does:not support the con- '
clusions proposed in these paragraphs.124 r Paragraph 70. Intervenor'has the burden of going forward with evidence to support her contentions. Applicant has the ultimate burden of proof.12"
! a Paragraph 71. No response.
Paragraph 72. In his prepared testimony, Mr. Rutgers stated that recume information for geotechnical employees was
, requesped by Dr. Landsman at a site entrance meeting. Resur.e ,
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information was obtained from Ann Arbor and provided to DI .
-r l
122 -
Wells, Tr. 18173-18176.
i 123 See Consumers Power Company's Proposed Second Supple-mental" Findings at paragraphs 548-551.
'124 Id. at paragraphs 669-670.
t 125 Metropolitan 1 Edison company (Three Mile Island Nuclear
!Cenerating' Station, Unit 117 S
ALAB-772, ~
URC , slip '
g- opinion at p.HB9'(May 24, 1984). ;
, (~ ;
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\' Landsman at the exist reeting three days later. In response to Dr. Landsman's further request, more detailed resumes were telecopied to him four days later.126 With regard to the general question of Consumers .
Power's willingness to provide information to the NRC, various witnesses testified ccncerning the efforts which have been and are being undertaken to ensure satisfactory corrunications with the Staff.
Paragraph 73. The citations to the record do not evi-dence any direction from Consumers Power's supervisory per son-nel to its employees that they should refrain from talking to the NRC. To the contrary, direction has been given to both Bechtel and Cor.sumers Power employees for the purpose of en-hancing communications with the NRC.
, Paragraph 74. With regard to point (b) of this pro-posed finding, Intervenor appears to misunderstand the sub-stance of Mr. R. Cook's testimony. The instance involving a year to obtain documents, to which Intervenor refers, has pre-126 Putgers, April 11, 1983 prepared testimony on quality j assurance at pp. 20-21, following Tr. 16035. l l
l 127 See Consumers Power Company's Proposed Second Supple- !
mental Findings at paragraphs 509-513. ,
128 Putgers, April 11, 1983 prepared testimony en quality i
assurance at pp. 21-23 and Attachments A & B, following Tr.
10835; Shafer, Tr. 14709-14717; Stamiris Exhibit No. 53.
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("N' viously been explained.129 N' Mr. F. Cook's more recent point
.i was that there have been comparable instances in the last few months where it has taken weeks to obtain documents.1 0 Paragraph 75. The three instances referenced in this proposed finding do not support the cor.clusion suggested for l
the reasons stated below.
(a) Mr. R. Cook's statement was more qualified than Intervenor's proposed finding suggests. l'r . R. Cook was hesi-tant to use the word misleading to describe the analysis that was done. His testimony was that, i f the percentage figures were accepted on face value, they would tend to be mislead-ing.131 EcwcVer, fron his demonstrated knowledge of the methodology used, it is clear that the NPC had complete infor-n6tior. on the ctatistics involved in reaching those percent-ages. In fact, the NRC Staff had all the underlying data, and ;
Staff members were able to interpret the information for them-se3ves.132 (b) The change which Mr. Wells initiated was for the purpcse of clarification.1 The NPC concluded that there 129 See Col. :umers Power Company's Proposed Findings of Fact, dated October 28, 1981, at paragraphs95-102.
130 P. Cook, Tr. 14589-14592.
131 P. Cook, Tr. 14574-14575.
132 See generally F.. Cook, Tr. 14389-14390.
133 Shafer, Tr. 16255-16256.
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\ was no intent on the part of MPQAD management to deceive the i NRC. The original trend graph and its revisions were part of the record and were made available at the request of the NBC.IO ?
(c) The criticisms of Dr. Landsman referenced in this paragraph related to a problem with the interface between two !
different POCIs. It was not a problem encountered "during the load test."135 Mr. Wheeler explained that he did not tell ,
i Dr. Landsman of the potential problem at the meeting because he did not have adequate information. The problem was resolved at the site that very day, thereby eliminating the need to pursue the matter further.136 '
(d) Consumers Power provided the NRC with information ;
on all of these incidents. His criticism of the first two concerned how promptly he was informed. With regard to the results of the U.S. Testing audit, Dr. Landsman, as well as Mr.
R. Cook and Mr. Gardner, testified that Consumers Power inform-134 Staff Exhibit No. 18 -- Inspection Summary at p. 3; Shafer, Tr. 15961; Wells, Tr. 18184.
135 The problem was discovered on April 20, 1983, the date of the Glen Ellyn meeting. Wheeler, Tr. 18786-18787. The load test was begun on April 25, 1983. Mooney, Tr. 17356.
136 Wheeler, Tr. 18786-18787; see also Consumers Power Company's Proposed Second Supplemental Findings at paragraphs ;
414-415.
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kJ ed them of this matter promptly and adequately.137 Further ,
note should be taken that Dr. Landsman did not insist upon daily telephone calls, but did request calls whenever important l activities were happening.138 .
Paragraph 76. Given the fact that Mr. Howell testi-fied that he did not know if this information had been provided to the NRC, it cannot accurately be said that he " defended Con-sumers' failure" to provide the information. Mr. Howell explained his view of what types of cost and schedule informa- l tion Consumers Power should provide to the Staff. Information in the form of input or recommendations from lower level em-ployees or study teams concerning cost and schedule need not be routinely submitted to the Staff. However, once management makes a judgment on behalf of Consumers Power as to what the >
schedule estimate should be, then, in Mr. Howell's opinion, j this Company position should be communicated to the Staff. To the best of Mr. Howell's knowledge and belief, Consumers Power has always informed the Staff in such cases.140 137 Landsman, R. Cook and Gardner, Tr. 16791-16792.
Applicant notes that a correction to Consumers Power's Proposed Second Supplemental Findings at footnote 1444 (p. 346) is re-quired. Applicant incorrectly described Dr. Landsman's state-ments concerning communication of the U.S. Testing audit re-sults to the NRC and desires at this time to delete the refer-ences to this matter which are found in footnote 1444.
138 R. Cook and Landsman, Tr. 16704-16706.
139 Howell, Tr. 21040-21046. I 140 Howell, Tr. 21046-21048.
'J Paragraph 77. Intervenor incorrectly recounts the testimony of Mr. Howell. Mr. Howell did not testify that prob-less between Mr. J. Cook and the NRC Staff were part of the reason for his reinvolvement. His testimony was that problems between Consumers Power and the NRC formed part of the basis for his reinvolvement in the Midland project and that he assumed his position, in part, in order to create better rola-4 tions with the NRC. Mr. Howell did express the opinion that he believed Mr. J. Cook's arrangement of the meeting with ,
Mr. Dircks contributed to Consumers Power's relationship prob-lem with the NRC.
Mr. J. Cook testified that, while arranging the meet-ing with Mr. Dircks, he had attempted to contact Mr. Keppler but was unable to do so.143 Subsequent to the meeting, upon learning that Mr. Keppler was displeased, Mr. J. Cook set up an additional meeting with NRC, Region III, to discuss any NRC concerns. In addition, it should be noted that the ini-tial meeting was not only with Mr. Dircks but also with other d
NRC management personnel, inclu'ing Mr. Purple of NRR and Mr. 1 Cunningham of OELD. Intervenor Stamiris' implication that 141 Howell, Tr. 21011-21022.
142 Howell, Tr. 21006-21011.
143 J. Cook, Tr. 21008.
144 J. Cook, Tr. 21059. .
145 Id.
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i the sole purpose of the meeting was to discuss matters concern-ing Region III is unfounded.
The reference to Consumers Power appealing Region III's position as to Regulatory Guide 1.29 is inaccurate.
Consumers Power and Region III had a technical disagreement involving Regulatory Guide 1.29. Region III, not Consumers Power, asked NRR to make a ruling on this matter.146 Paragraph 78. The weight of the evidence indicates that Mr. Boos did not mislead the NRC Staff concerning the status of completion of the instrumentation for the underpin-ning work. With regard to the other two instances cited in ,
this proposed finding, the evidence of record is insufficient ,
to support the conclusion that Consumers Power " misled the NRC staff by communicating inaccurate and false information."
These two instances were mentioned by Dr. Landsman as examples where, in his opinion, misleading information was supplied to the NRC.
The testimony cited by Intervenor does not support the statement that Mr. Hood authorized the soils borings "only I
because of such assurances." Dr. Landsman did not indicate what information formed the basis for Mr. Hood's authorization.
The application of QA requirements to the rip-rap and the perimeter dike is addressed in Consumers Power's proposed findings at paragraph 447.
L 146 Stamiris Exhibit No. 49; Landsman, Tr. 14553.
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O Paragraph 79. The evidence of record supports the conclusion that Mr. Boos did not make any misleading comments, either intentional or unintentional.147 Intervenor's suggestion that the NRC policy of not drawing conclusions-in these reports may have inhibited Mr.
Weil from doing a complete and thorough investigation is specu-lation at best. The record does not reflect any such fa' tors which may have prevented or discouraged Mr. Weil from fulfill-ing his job responsibilities.
Paragtsph 80. This proposed finding misconstrues the f
testimony of Mr. Hood. Mr. Hood did not comment on Consumers Power's management; his testimony was that he reacted adversely ,
to Bechtel personnel doing most of the presentation.148 Paragraph 81. No response. ,
Paragraph 82. While the working level Staff conveyed ;
to Consumers Power that their position was not negotiable, there is no indication that they had told Consumers Power that NRC management had reviewed and approved this position. Both Mr. Mooney and Mr. Boos believed that the Applicant had avail-able avenues of appeal to higher level Staff personnel.149 '
In fact, soon after the March 10, 1982 meeting, Mr. J. Cook 147 See generally Consumers Power Company's Proposed Second Supplemental Findings at paragraphs 561-589.
148 Hood, Tr. 17781-17782.
149 See Boos and Mooney, Tr. 20005-20008, 20041-20042.
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. _ . , _,- - , - . . ,, , ._,..y-- ,n. - - , . - _y
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\l contacted Mr. Keppler for the purpose of discussing the matter before a final decision was reached and later meetings were O
held in which the matter was discussed.
After the March 10, 1982 meeting, Consumers Power and Bechtel personnel were uncertain how the Staff's position was ,
to be applied to specific work activities.151 To clarify the situation, a draft table was prepared reflecting Consumers Power's and Bechtel's understanding and a call was placed to Region III on March 12, 1982 to discuss the matter.152 Paragraph 83. Neither Mr. R. Cook or Dr. Landsman could recall the precise words Mr. Boos had used at the March 10 meeting.1 3 Mr. Budzik's statement was that he thought that on March 10, 1982 that the underpinning instrumentation system was less than 50% complete.
Paragraph 84. No response.
Paragraph 85. Mr. Mooney and Mr. Boos both clearly testified that the rationale for proposing that the installa-150 Staff Exh.U-it No. 22 at p. 26.
i 151 Mooney, Tr. 20008; see also Mooney and Wheeler, l
prepared testimony concerning the alleged violations of the April 30 ASLB Order and the March 1982 cable-pulling incident at pp. 10-12, following Tr. 19983.
152 Boos and Mooney, Tr. 20008-20012. Intervenor provides no support for her proposed conclusion that the March 12 phone call was " carefully orchestrated" for the purpose of obtaining "special exemptions."
153 Landsman and R. Cook, Tr. 17427-17429.
-s tion of the instrumentation be non-Q was that it did not need to be O because the quality could be verified by a checkout of the system.154 Paragraph 86. As indicated in the reply to paragraph 82 above and in paragraphs 572-573 of Consumers Power's pro-posed findings, the conference call was for'the purpose of con-firming with the NRC Staff the understanding of Consumers Power and Bechtel of how the Staff position would apply to specific work activities.
Paragraph 87. The final sentence of this proposed -
finding is superfluous commentary. ;
Paragraph 88. Mr. Boos' explanation that he considers 25-33% completion to be " essentially well underway" is credi- a ble.1 5 Paragraph 89. Mr. Boos' statements of March 12, 1982 do not indicate that instrumentation installation was "near i
completion." With regard to the knowledge of Messrs. Fisher and Schaub on March 12, 1982, summaries of their statements are contained in the investigation report. Therefore, it is unnecessary to rely upon others' speculation as to why they 6
knew or should have known.
154 Mooney and Boos, Tr. 20011-20012.
155 Boos, Tr. 20128.
156 See Staff Exhibit No. 22 at pp. 21-23.
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Paragraph 90. This proposed finding incorrectly attributes testimony to Dr. Landsman in the second paragraph which he did not make.
Paragraph 91. A more complete rendition of the avail-able testimony on the number of cables installed as of March 17, 1982 is provided in paragraph 577 of Consumers Power's proposed findings. Mr. Schaeffer's knowledge of the installation of the instrumentation is also described in para-graph 575 of those findings. !
Paragraph 92. Intervenor has no support for the assertion that there has been a series of actions which have undermined the NRC inspectors enforcement efforts at the site.
Paragraph 93. Mr. Keppler acknowledged having discus-sions with Mr. J. Cook about this matter, although he denied reaching an agreement with Mr. J. Cook.
Paragraph 94. Mr. J. Cook's telephone calls with Mr.
Keppler reflect the fact that Consumers Power and Bechtel representatives left the March 10, 1982 meeting believing that the working level Staff opinion expressed at that meeting could yet be appealed to NRC management. As such, Mr. J. Cook's actions do not indicate a bad management attitude. Moreover, ,
i it appears that Messrs. Keppler and Norelius were receptive to .
157 Staff Exhibit No. 22 at pp. 26-27.
158 See Reply to paragraph 82 supra.
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.O discussing the matter with Mr. J. Cook, an indication that they j found his actions to be proper.
I Mr. J. Cook's understanding of Mr. Keppler's position did not differ from that expressed by Mr. Keppler. The conclusion to be drawn from the evidence is that Mr. Marguglio was incorrect in stating what he believed was the outcome of the discussions between Messrs. J. Cook and Keppler. Inter-venor agrees that his mistake is not a material false state-ment. To the contrary, there is no evidence to indicate that the error was anything more than a misunderstanding or miscom- ;
munication. As such, it cannot be considered indica'ive t of poor management attitude.
Paragraph 95. When this statement was made, the evi- i dence available to Mr. Keppler and the Staff did indicate that ;
the cable pulling commenced on March 11, 1982. However, subse-quently, evidence was revealed which establishes that the cable 161 pulling was begun at least by February 27, 1982 and that the cable for the eight electrical instrument locations origi-nally needed to start Phase 2 work were pulled by March 12, 1982.162 l
l 159 See Staff Exhibit No. 22 at pp. 26-27. !
160 _I d_ .
161 Black, prepared testimony at p. 11 and Exhibit 3, fol-lowing Tr. 19778; Bleck, Tr. 19905-19907.
162 Black, prepared testimony at pp. 12-14, following Tr.
19778.
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+ h s Paragraph 96. For a more detailed discussion of the opinions of Messrs. R. Cook and Weil and Dr. Landsman, see paragraph 579 of Consumers Power's proposed findings.
Paragraph 97. The facts of record indicate that Mr.
Boos made accurate statements with no intent to mislead the NRC Staff.
Paragraph 98. The opinion expressed is that of Dr.
Landsman and Mr. R. Cook. Intervenor has no basis for attrib-uting the opinion to the NRC Staff.
Paragraph 99. Consumers Power offers one argument .
grounded in fact for its conclusion that "Mr. Boos did not make ;
either a material false statement or even a misleading state-ment in either the meeting or the conference call."164 The i
facts demonstrate that Mr. Boos' statements were accurate and hence could not be false or misleading.
Mr. Mooney testified that the instrumentation in- 7 i
stallation had not been defined as either Phase 1 or Phase 2 l work.165 As explained above, the rationale during the March 12 call for proposing to the Staff that this work be non-Q was that it did not need to be 0, not that it was already i
l 163 See Consumers Power Company's Proposed Second Supple-mental Findings at paragraphs 577-588.
164 Id. at paragraph 588.
165 Mooney and Wheeler, prepared testimony concerning the i alleged violations of the April 30 ASLE Order and the March 1982 cable pulling incident at p. 12, following Tr. 19983.
A 66 completed or nearly completed. The interview summaries cited do not contradict this view.
Mr. Swanberg's statements concerning 159 cables are taken out of context. As of March 17, 1982, preliminary design f
drawings in Ann Arbor, but not the matrix drawing used by the field engineers to govern installation, showed that 159 cables would be needed to complete the instrumentation system.167 As of March 10, 1982, the construction drawings used by-the field personnel still reflected the fact that 30 cables would ;
be required.168
. There is uncontradicted evidence that the conduit installation and cable pulling for the eight electrical instru- l ment locations was completed at least by March 10, 1982.169 There has been no evidence presented which calls into question 0
the credibility of either Mr. Black or Ms. Glass.
166 See Reply to paragraph 85 supra. See also Reply to paragraphs 82 and 86 supra.
167 Staff Exhibit No. 22 at pp. 10-11; Glass, Tr. 19911-19913.
168 Black, prepared testimony at pp. 13-14, following Tr. ,
19778; Black and Glass, Tr. 19911-19913. Applicant acknow-ledges it had committed to a greater number of instruments and cables during a March 8, 1982 phone call with NRR. Hood, Tr.
17751-17755.
169 Black and Glass, Tr. 19901-19903.
170 The citation to Ms. Glass' testimony is incorrect.
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\/ Paragraph 100. Intervenor's proposed conclusion is not supported by the record.171 Paragraph 101. None of the nonconforming conditions that were found impaired the integrity of the system.172 Paragraph 102. Applicant has presented extensive evi-dence supporting its conclusion that the it did not violate the Board's April 30, 1982 Order by excavating beneath the deep O i duct bank or by relocating the fire line.
The conclusions drawn in the last paragraph of page 2 of the cover letter to the second investigation report, Staff Exhibit No. 28, were not subject to cross examination. The Board admitted these conclusions for the sole purpose of show-ing that OI had taken a position -- not for the truth of the l
matters stated in the paragraph.174 While it is true that Mr. Weil testified that the first investigation was concluded because of, inter alia, a lack of resources,175 Mr. Weil also testified that he, with the concurrence of OI management, closed the first investiga-171 See Consumers Power Company's Proposed Second Supple-mental Findings at paragraph 588.
172 Stamiris Exhibit No. 117 at p. 8.
173 See generally Applicant's Proposed Second Supplemental Findings of Fact and conclusions of Law, paragraphs 590-668, and citations therein.
174 Tr. 21671-21674.
175 Weil, Tr. 22302.
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l tion because sufficient facts and information had been devel-oped. Furthermore, Mr. Weil interviewed Mr. Donnell dur-ing the course of the first investigation, and Mr. Weil never testified that the second investigation was necessary because ,
4 he had failed to follow-up cn Donnell.
l Paragraph 103. This paragraph inaccurately states that Dr. Landsman first discovered on May 20, 1982, that Appli-cant proposed further excavation below the deep O duct bank.
Actually, the referenced citations establish that Dr. Landsman was aware of Applicant's proposal prior to May 20, 1982, but ;
that he first observed the further excavation on the 20th.178 Paragraph 104. The proposed findings filed by Inter-venor skip paragraph 104 in the numbering of paragraphs. :
Paragraph 105. Contrary to Intervenor Stamiris' cita- ;
tion, Tr. 21610 makes no reference to any communication between '
Dr. Landsman and Messrs. Mooney and Schaub.
Paragraph 106. Applicant submits that, for the many reasons set forth in its Proposed Second Supplemental Findings of Fact and Conclusions of Law, its misunderstanding about the i need for approval for further excavation beneath the deep Q
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176 Weil, Tr. 22303, 22305-22307.
177 Weil, Tr. 21379-21380. '
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178 Landsman, Tr. 21549. '
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duct bank was justified.1 With respect to the issue of the source for such approval, it is uncontested that Applicant was O
aware that Region III had this responsibility. Unfortu-nately, Dr. Landsman believed that NRR was responsible for approving work for purposes of compliance with the Board's April 30 Order.181 Paragraph 107. Mr. Hood testified at Tr. 21726-21727 that he left the May 20 meeting with an understanding that the Staff had granted no approvals. He did not testify that, because of the informal nature of the meeting, no approvals could have been granted.1 Dr. Landsman's testimony at Tr. 21653 is much more generalized than is implied by Stamiris proposed finding 107.
Paragraph 108. No response.
Paragraph 109. Applicant disagrees with Ms. Stamiris' speculative and unsupported interpretation of Mr. Sevo's notes as set forth in nota 10.
Paragraph 110. Staff Exhibit No. 26, Attachment 9 at
- p. 4, is merely a list of attendees for the NRC entrance meet-t t
179 See Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law, paragraphs 595-657, and cita-tions therein.
180 See Staff Exhibit No. 26, Attachment 10.
181 Landsman, Tr. 21557-21558, 21910; See also Staff Exhi-bit No. 26, Attachment 11 at p. 3, paragraph 3.
182 Hood, Tr.21726-21727.
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ing of May 19 and the exit meeting of May 21. It does not sup-port the assertion made in this proposed finding.
Paragraph 111. While the testimony of Messrs. Palmer, !
Schaub and Murray may not be consistent with the Minutes issued on June 4, this does not render their tectimony not credible.
Rather, as is set forth in Applicant's Proposed Second Supple-mental Findings of Fact and Conclusions of Law, it suggests }
genuine confusion and misunderstanding.183 i
Paragraph 112. Ms. Stamiris' citations establish that :
the subject inspection report was not written until July.184 Paragraph 113. Mr. Horn's statement was made to f
, Mr. Weil on July 13, 1983, after a review of the minutes of a ,
meeting that Mr. Horn did not attend. Mr. Horn did not " con-firm" anything; rather, he stated that based on his review of I the minutes, it " appeared" that a commitment was made at the May 21 exit meeting. Mr. Horn also stated that the Staff could possibly approve soils remedial work activities -- such as the
( excavation beneath the deep Q duct bank -- without his know- ;
ledge.1 1
i 183 See Applicant's Proposed Second Supplemental Findings >
of Fact and Conclusions of Law, paragraphs 606-616, 648, and citations therein. j 184 At Tr. 21581, Dr. Landsman testifies that the report r was probably written in June. However, at Tr. 21768, Dr. '
< Landsman testifies that he wrote the report in July, and that l he "never said June." i
( 185 Staff Exhibit No. 27 at p. 7.
)
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's' Paragraph 114. Dr. Landsman's opinion as to why Applicant promptly stopped work on the deep O duct bank excava-tion is speculative and uncorroborated. More likely, the work 6
was simply stopped in deference to Dr. Landsman's request.
Paragraph 115. Ms. Stamiris is incorrect when she states that Applicant continued to excavate an additional amount one shift on July 29. No excavation took place on July 29 -- only clean-up work and work necessary to secure the excavation.187 And, if any excavation took place during the second shift on July 28, it was limited to approximately 0.5 feet (from elevation 585.5 to elevation 585), which was prudent and necessary to secure the excavation.188 Whether Dr. Landsman was correct in his speculation that Applicant " wished to complete the excavation prior to stopping work" is in no way supported by the record citations offered by Ms. Stamiris in this proposed finding. Furthermore, as is stated above in Applicant's reply to Stamiris proposed finding 114, this speculation is uncorroborated.
Paragraph 116. [First such numbered paragraph, p.
95]. Staff Exhibit No. 26, Attachment 2 states that Applicant had indicated that Messrs. Hood and Kane had provided "[a]p-186 See Wheeler, Tr. 22087-22088.
187 Wheeler, Tr. 22091-22092, 22097.
188 See Wheeler, Tr. 22090-22091, 22097.
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l' em U proval concerning the technical adequacy" of the deep O duct ,
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bank excavation. It does not state that Applicant told Dr.
Landsman "that it had obtained permission" to make the excava-tion.
Transcript pages 21837-21840 do not provide support for the statement that Mr. Hood and Mr. Kane " deny that they gave Consumers any such permission to excavate beneath the deep O duct bank."
Neither Staff Exhibit No. 26, Attachment 15 nor Tr.
21851 contain any reference to Mr. Kane disputing Mr. Schaub's statement regarding " commercial risk." A proper citation would be to Kane, Tr. 21853, where Mr. Kane testifies that the state-ment attributed to Mr. Schaub by Mr. Weil is " incorrect."
Paragraph 116. [Second such numbered paragraph, p.
96]. The record does not establish that Dr. Landsman made any statements to Applicant on August 4, 1982, with respect to the fire line relocation. Dr. Landsman testified that he " assumed" he had informed Applicant on the 4th of his concerns.190 However, his August 24 memorandum to Mr. Shafer makes no refer-ence to having told Applicant to stop the work.191 Similar-189 Compare Staff Exhibit No. 26, Attachment 2 at p. 2 with Stamiris Second Supplemental Proposed Findings, paragraph 116 at p. 95.
190 Landsman, Tr. 22220.
191 Staff Exhibit No. 26, Attachment 2 at p. 2.
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' l ly, the September 22 Inspection Report makes no reference to I D*: Landsman's having instructed Applicant to stop the fire j h
lina work on August 4, even though the report covers the I August 4-5 inspection. The report refers only to the August 9 i
stop work request relating to all remedial soils work.192 The memorandum and the Inspection Report corroborate Mr. ;
Wheeler's testimony that he was unaware of the NRC Staff having ,
t expressed any concerns on August 4, 5 or 6, and that Applicant f first became aware of such concerns on August 9. 9 i
Ms. Stamiris is simply wrong when she states that the ,
t relocation excavation work continued through August 10. As Mr. Wheeler repeatedly testified, the excavation was completed on August 5.194 Work Permit 6 does not indicate that work j actually continued to the 10th; rather, it establishes that i :
approval to do any work related to the Permit was withdrawn on i
the 10th.I' Similarly, the referenced Inspection Report does not suggest that ongoing work was stopped on the 9th;
- rather, it establishes that a Stop Work Order relating to all remedial soils work was requested by the NRC Staff and issued [n by Applicant on the 9th.196 t
192 Staff Exhibit No. 26, Attachment 17; id. at p. 7. ,
193 Wheeler, Tr. 22397. l 194 Wheeler, Tr. 22397-22398. i:
195 Staff Exhibit No. 26, Attachment 7 at p. 2. [
r 196 Staff Exhibit No. 26, Attachment 17 at p. 7.
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Paragraph 117. The Horn minutes are incorrectly iden-tified as dated June 6, 1982. The correct date is June 4.
Mr. J. Cook did not become aware of the Horn minutes or the Fisher notes until just prior to the August 11 enforce-ment conference.198 Similarly, Mr. Mooney did not become aware of the contents of the Horn minutes or the Fisher notes i until just prior to the enforcement conference.199 ;
Complete information on the matter, including the Horn i
minutes and the Fisher notes, was provided to the NRC during the OI investigation and during the evidentiary hearings before ;
[
this Licensing Board. The inference that Applicant was hiding [
something is unfounded. !
i Paragraph 118. The Inspection Report appended to Staff Exhibit No. 26, Attachment 17 recites that Applicant based its position on " prior understandings of the NRC require-ments pertaining to the ASLB Order," in addition to prior 00 approvals granted by the NRC Staff.
l As this proposed finding on behalf of Ms. Stamiris ;
i makes clear, Applicant, at the August 11 meeting, offered the May 25 letter as justification for the deep O excavation.201 197 Staff Exhibit No. 27, Attachment 6.
198 Staff Exhibit No. 27, Attachment 10 at p. 2.
199 See Staff Exhibit No. 27, Attachment 11 at p. 2.
200 Staff Exhbit No. 26, Attachment 17 at p. 6.
/~ 201 Hood, Tr. 22259-22260, 22262-22263.
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O In addition, Dr. Landsman agreed that Applicant had mentioned that it thought it had Dr. Landsman's blessing " based on small work done in the past which Ross said he did not want to be bothered with." 02 This recollection by Dr. Landsman, cou-pled with the Inspection Report reference to " prior understand-ings", noted supra,203 suggests that Applicant did raise the substance of the Wheeler / Landsman agreement during the course of the August 11 meeting. Thus, Ms. Stamiris' inference that Applicant developed these theories after-the-fact, in an effort to justify the deep O excavation, is unfounded. Furthermore, the inference is contradicted by the sworn testimony of Appli-cant's witnesses.204 Paragraph 119. Mr. Donnell did not agree with either Dr. Landsman's or Mr. R. Cook's recollection of the alleged conversation, and suggested that both gentlemen had confused the deep O excavation incident with a drilling incident involv-ing the same duct bank.205 Furthermore, he has flatly denied that he was terminated because he brought the deep O excavation 06 to Applicant's attention.
202 Landsman, Tr. 22257.
203 See note 181, supra.
204 See, e.g., Wheeler, Tr. 22067-22068, 21974-21975; Mooney, Tr. 22360-22362: Staff Exhibit No. 26, Attachment 10 at pp. 1-2: Staff Exhibit No. 27, Attachment 12.
205 Donnell, deposition testimony at pp. 33-36, 83-85, following Tr. 22537.
() 206 Staff Exhibit No. 31 at pp. 90-91; Donnell, Tr. 22605.
Paragraph 120. Ms. Stamiris -- with much qualifica-tion -- asserts that Mr. Donnell " appeared to" and " essential-ly" corroborated Dr. Landsman's and Mr. R. Cook's recollection of the alleged conversation. These assertions are made without benefit of citation and constitute an unwarranted inference from the facts of record. Applicant submits that the record is clear: Mr. Donnell did not corroborate the recollections of either Dr. Landsman or Mr. R. Cook.
Paragraph 121. Applicant disagrees with the Staff opinions expressed in the first paragraph to this proposed 08 ,
finding.
Mr. Wheeler has testified that Stamiris Exhibit Nos.
123, which was prepared shortly before the August 11 enforce- ,
ment conference, represents Mr. Sibbald's uncertain recollec-tions at the time the document was prepared.209 Applicant agrees with the last paragraph to this pro- ,
posed finding. In addition, Applicant submits that it did i notify the NRC Staff about its plans for utility protec-tion.
207 Donnell, deposition testimony at pp. 27-26, 33-36, 37-39, 83-84; Donnell, Tr. 22613-22614.
l 208 See generally Applicant's Proposed Second Supplemental l Findings of Fact and Conclusions of Law, paragraphs 590-657, ,
and citations therein.
209 Wheeler, Tr. 21990.
l l 210 See Staff Exhibit No. 26, Attachments 8, 10, 14;
(~g Applicant's Proposed Second Supplemental Findings of Fact and w) Conclusions of Law, paragraphs 606-607, and citations therein.
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F O' Paragraph 122. Applicant disagrees with the conclu-i
-sion' set'forth in this proposed finding, and submits that the :
Company did not -- deliberately or otherwise -- violate the [
Board's April 30 Order.211 Applicant further responds to the subparagraphs of this proposed finding as follows:
(a) As discussed in its Proposed Second Supplemental Findings of Fact and Conclusions of Law, the May 25 letter and the June 11 Wheeler / Landsman agreement provided a reasonably valid basis for Applicant's belief that the deep Q excavation had been approved.212 (b) See response to Stamiris proposed finding 122, subparagraph (a), supra.
(c) Dr. Landsman's speculation is not dispositive of Applicant's attitude as of August 2, 1982. Stamiris Exhibit No. 129 indicates only that Mr. Schaub did not feel it was necessary to contact the Staff in this one instance, because the Staff had already given approval to drill the service water wells, and utility probing was part of the drilling pro-213 cess.
211 Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law, paragraphs 643-657, 667-668, and citations therein.
212 Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law, paragraphs 617-639, and citations therein.
213 Stamiris Exhibit No. 129.
O (d) Ms. Stamiris' citation to Stamiris Exhibit No.
113 is incorrect; the cite should probably be to Stamiris Exhi-bit No. 133. Furthermore, Applicant cannot find a reference to a July 20 approval of the deep O excavation within Stamiris Exhibit No. 133.
The balance of this subparagraph is specious. Appli- l cant had explained the substance of the deep O excavation to the Staff on May 20, prior to the May 25 letter.214 3 ,
July 20 approval of the May 20 proposal would have been a mere formality or a result of very minor design modifications.215 (e) Once again, Ms. Stamiris has not provided any 16 record support for this unfounded assertion.
(f) The justifications offered by Applicant are in no way contradictory. Rather, they are independent justifica-tions, the cumulative effect of which provide a reasonably valid basis for Applicant's belief that the deep O excavation was approved. Furthermore, Applicant submits that these justi-fications were in substance raised with the NRC Staff during 1
the August 11 enforcement conference.
i 214 Staff Exhibit No. 27, Attachment 12 at pp. 7-8; Kane, l
Tr. 21564.
215 Compare Kane, Tr. 21564 and Staff Exhibit No. 27, Attachment 12 at pp. 7-9 with Stamiris Exhibit No. 133.
216 See Applicant's response to Stamiris proposed finding 117, supra.
217 See Applicant's response to Stamiris proposed finding
{} 118, supra.
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(g) Both the facts stated and the inferences drawn }
therefrom in this proposed finding are in error.218 (h) Ms. Stamirls' reference to Tr. 22527 as support l
for Mr. Schaub's responsibilities relating to the placement of I the asterisks is incorrect; the reference should probably be to ;
Schaub, Tr. 22530. Similarly, the reference to Staff Exhibit i
No. 32 at p. 2 should probably be changed to Staff Exhibit No.
32 at pp. 15-16 (as originally numbered).
i Ms. Stamiris' reference to the June 20, 1982 schedule is incorrect. -The reference should be to the June 30, 1982 1
schedule. Moreover, neither Staff Exhibit No. 27, Attach-ment 20, nor Schaub, Tr. 22527-22529, support the assertions j made in the first half of the third paragraph to Stamiris pro-f posed finding 122(h). With respect to the second half of the i t
third paragraph to Stamiris proposed finding 122(h), the tran-script reference should probably be changed to Schaub, Tr. ;
22529-22530.
More complete citations to support the fourth para-graph of Stamiris proposed finding 122(h) would be Schaub, Tr. '
, 22530-22531 and Staff Exhibit No. 32 at pp. 15-16 (as original-I ly numbered). In any event, the record is clear that neither !
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l 218 See Applicant's response to Stamiris proposed findings 114, 115 and 116 [second such numbered paragraph, p. 963, supra. i 219 See Staff Exhibit No. 27, Attachment 20. (
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the Applicant not the Staff used the schedules in question for O
tracking NRC approvals for work items.
With respect to the last paragraph to Stamiris pro-posed finding 122(h), it appears from the transcript that Mr.
Schaub was confused by the question posed. He never denied be- !
ing one of the persons responsible for determining whether NRC approvals had been granted. He did deny, however, responsibil-ity for actually-approving work.221 Paragraph 123. Applicant disagrees with the conclu-sion expressed in this proposed finding.
Paragraph 124. Applicant disagrees with the conclu-sions expressed in this multi-paragraph proposed finding.
Applicant has previously set forth in detail its justifications for believing that the May 25, 1982 letter from Mr. Eisenhut to Mr. Cook confirmed that the installation and activation of the ,
s freezewall -- of which the utility protection proposals were a part -- had been approved prior to April 30, 1982.223 Paragraph 125. Ms. Stamiris is mistaken when she ,
e asserts that Applicant has suggested that the late July, 1982 220 Landsman and Hood, Tr. 22265; see Staff Exhibit No.
27, Attachments 23, 27 and 30. !
221 Schaub, Tr. 22521-22523.
222 See Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law, paragraphs 643-657, and cita-tions therein.
223 See Applicant's Proposed Second Supplemental Finding,s )
O of Fact and Conclusions of Law, paragraphs 617-622, and cita-tions therein.
f
O design audit meeting provided " prior" NRC approval of the deep O excavation. Applicant's position is that the design audit fostered the misunderstanding between the Company and the Staff relating to the approval status of the excavation. This posi-tion is fully articulated in Applicant's Second Supplemental Proposed Fin' dings of Fact and Conclusicus of Law.224 Paragraph 126. Ms. Stamiris' assertion thet Appli-l cant's," explanation <that such an agreement existed between Dr.
Landsmen and Mr. Wheeler" is "not credible" flies in the face of the facts of record. Mr. Wheeler gave a full and complete account of the agreement,_and produced a handwritten note made contemporaneous 1y with the discussion. Conversely, Mr. ,
Landsman had trouble recalling whether such an agreement had been reached. He eventually conceded that he had told Mr.
Wheeler that he did not wish to review in advance excavation permits except for major excavations such as the service water underpinning. However, Dr. Landsman did not share his under-standing with Mr. Wheeler that the agreement applied only to work previously approved by NRR. Given the testimony of record, Applicant submits that Mr. Wheeler's testimony is, in '
fact, credible. ~~
224 See Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law, paragraphs 623-624, and cita-tions therein.
225 See Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law, paragraphs 626-632, and cita-tions therein.
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r O , Paragraph 127. Ms. Stamiris' assertions are unwar-ranted. By its very terms, the Wheeler / Landsman agreement would have exempted the deep Q excavation from " prior" NRC approval. Dr. Landsman indicated that he no longer wished to review excavation permits for mincr excavations before the work started. Rather, Dr. Landsman desired to review all completed t
permits for minor excavations after-the-fact, during his regu- l lar site visits.226 In addition, Mr. Schaub did not "ap-prove" the deep Q excavation. The record is clear that {
i Stamiris Exhibit No. 123 is an indication that Mr. Schaub con-firmed NRC approval for the work.
Shortly after his June 11 meeting with Dr. Landsman, Mr. Wheeler advised his staff -- including Messrs. Murray and Sibbald -- of the agreement. 28 Mr. Sibbald signed the work permit and Mr. Murray signed the excavation permit after being informed of the Wheeler / Landsman agreement.
226 Landsman, Tr. 21934; Staff Exhibit No. 26, Attachment 10 at pp. 1-2.
227 Stamiris Exhibit No. 123; Wheeler, Tr. 21986-21988; Schaub, Tr. 22521-22523. In any event, Stamiris Exhibit No.
123 is not dispositive of the Schaub confirmation, for it represents the uncertain recollections of Mr. Sibbald just prior to the August 11 enforcement conference. Wheeler, Tr.
21990.
228 Wheeler, Tr. 22484; Staff Exhibit No. 26, Attachment 10.
229 See Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law, paragraphs 634-635.
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. excavation are also unwarranted. Again, Mr. Wheeler advised l
both Mr. Murray and Mr. Sibbald of the June 11 agreement short- l ly after the agreement was reached.230 Mr. Murray, who sign-ed the work permit, recalls contacting Mr. Schaub and deciding ,
that the work was " minor" under the terms of the agreement.231 Once again, Ms. Stamiris confuses " approval and release" of the fire line excavation with " confirmation of NRC approval" for the excavation.232 Thus, her attempt to dis-credit Mr. Schaub's testimony that Mr. Wheeler " released" the excavation based on the Wheeler / Landsman agreement. is specious.
Paragraph 128. This proposed finding is nothing more than an unrestrained attack on the credibility of Mr. Schaub ,
based on mischaracterizations of the record. Mr. Schaub did not provide a written, signed statement to the OI investigators ,
because he had been interviewed at length, had totally cooper-
- i ated with the investigators and had answered all the questions fully, openly and honestly. In addition, Mr. Schaub was a busy '
man who felt a written statement was redundant given the i
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, 230 Wheeler, Tr. 22484; Staff Exhibit No. 26, Attachment f
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231 Staff Exhibit No. 26, Attachment 12 at p. 2. That Mr.
Schaub does not recall this discussion does not harm the credi- f bility of either witness.
232 See note 227, supra.
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g I kJ exhaustive interview. It was necessary to clarify por-tions of Staff Exhibit No. 26, Attachment 15, and Staff Exhibit No. 27, Attachments 15 and 27, because the exhibits consist of transcripts of Investigator Weil's handwritten notes, which apparently do not reflect the verbatim statements of Mr.
Schaub.234 Finally, Stamiris Exhibit No. 129 (inaccurately cited by Ms. Stamiris as Exhibit No. 192) indicates only that Mr. Schaub did not feel it necessary to contact the staff in I
this one instance because staff had previously approved the drilling of the service water wells, and utility probing was part of the drilling process.235 Without benefit of record citation, Ms. Stamiris asserts that Applicant failed to voluntarily produce Mr. Schaub as a witness, and infers devious motives. This is just one more example of Intervenor's penchant for fabricating issues which cannot be supported by the record. Ihe record demon-strates no reluctance on the part of Applicant to make Mr.
l Schaub available: Counsel for Applicant immediately agreed to l
produce Mr. Schaub when the parties expressed a.. interest in 233 Schaub, Tr. 22512, 22515; Applicant's responses to Stami ris Interrogatories of October 11, 1983 (dated October 27, 1983),
Response 23.
234 Weil, Tr. 22390-22392; see Schaub, Tr. 22496-22506, 22513-22516, 22517-22522 [ pointing out errors].
235 See Stamiris Exhibit No. 129.
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his testimony. It is Applicant's perfect right to present its affirmative case as it sees fit; Intervenor's attempt to infer dark motives from Applicant's chosen presentation is an act of desperation. L Paragraph 129. Applicant disagrees with the conclu-l sions expressed in this proposed finding. Applicant's justifi-cations for characterizing the deep Q excavation as minor are set forth at paragraphs 638-639 of Applicant's Proposed Second Supplemental Findings of Fact and Conclusions of Law. Similar-ly, Applicant's justifications for characterizing the fire line excavation as minor are set forth at paragraphs 662-663 of the Proposed Second Supplemental Findings.
Paragraph 130. For the reasons fully discussed above, Applicant disagrees with the conclusions set forth in this I
proposed finding.
Paragraph 131. For the reasons fully discussed above, Applicant disagrees with the conclusions set forth in this proposed finding.
Paragraph 132. For the reasons fully discussed above, Applicant submits that its defense of its position is justified, and that such defense does not reflect poorly on Applicant's current management.
236 See Tr. 21946-21948, 22060.
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'-) Paragraph 133. For the reasons fully discussed above, Applicant disagrees with the conclusion set forth in this proposed finding.
Paragraph 134. No response. '
Paragraph 135. Intervenor's conclusions are unsup- j ported by the evidence of record. She offers no support for any of the statements made in this finding.
Paragraph 136. Intervenor casts Mr. Gardner's testi-mony in more negative terms than he used in his testimony. For example, Mr. Gardner testified that auestions were not "readi-37 ly" addressed, not that they were not addressed at all.
Paragraph 137. Intervenor misstates Mr. R. Cook's testimony. He did not state that sessions were changed because !
of schedule pressures or that changes in scheduling caused 8
problems with training. In addition, Mr. R. Cook and the other Staff inspectors credited Consumers Power with taking l actions to resolve the problem of the pace of the training.239 Paragraph 138. This matter is addressed in the reply to paragraphs 54-55 supra.
237 Gardner, Tr. 14482. See generally reply to para-graph 48 supra.
238 R. Cook, Tr. 16632-16634. See also reply to para-graph 52 supra.
239 R. Cook, Landsman, Gardner and Shafer, March 25, 1983 prepared testimony with respect to quality assurance at pp.
2-3, following Tr. 14373; Gardner, Tr. 16257; R. Cook, Tr.
16797.
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Paragraph 139. While Dr. Landsman testified as to his opinion on this matter, the weight of the evidence does not support a finding that cost and scheduling pressures have ad-versely affected Consumers Power's commitment to quality.
Paragraph 140. This issue is discussed generally in paragraphs 521-529 of Consumers Power's proposed findings.
Paragraph 141. Mr. R. Cook did not testify that work presently being done is " shoddy". His testimony was that he still believes that work in the past had been done in such a manner. In addition, on the transcript pages cited, Mr.
R. Cook does not attribute the quality of workmanship to cost 242 concerns.
Paragraph 142. No response.
Paragraph 143. Intervenor's extrapolation of an NRC Staff assessment primarily from statements of Dr. Landsman's opinion is improper. Mr. Keppler's testimony concerning the cause of problems on the Midland project was more than his own personal assessment. His testimony clearly reflects that he I
j 240 See Consumers Power Company's Proposed Second Supple-mental Findings at paragraphs 521-529.
241 See generally Consumers Power Company's Proposed i
l Second Supplemental Findings at paragraph 528, n. 1469. Appli-l cant notes that the Quality Verification Program will address I concerns about the quality of past construction.
l 242 R. Cook, Tr. 14390-14405, 14440-14450.
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/~N i kl was referring to an overall assessment or consensus of the Region III Staff.
i Paragraph 144. Based on all the evidence, Intervenor ;
has not prevailed on her second contention, j Paragraph 145. No response.
Paragraph 146. Consumers Power acknowledges that cer-tain Staff members criticized particular individuals. There was no Staff position that any individual on the project should be replaced.244 Paragraphs 147-148. Mr. Wells' qualifications are addressed in Consumers Power's proposed findings at paragraphs 453-454 and n. 1250. The first citation attributed to Dr.
Landsman in paragraph 147 and the citation to Shafer, Tr. at i 16255 are both incorrect.
Paragraph 149. Dr. Landsman specifically tastified that he regards Mr. Meisenheimer as technically qualified.
Moreover,, Dr. Landsman did not testify that he "had a problem with the fact that Mr. Meisenheimer was not a soils engineer."
Dr. Landsman simply stated that he would not label Mr.
l Meisenheimer a soils engineer.245 l
l 243 See Keppler, Tr. 15380.
i 244 See Consumers Power Company's Proposed Second Supple-mental Findings at paragraphs 376 and 515-516.
l 245 Landsman, Tr. 16471-16473. Mr. Meisenheimer's quali-fications are addressed in Consumers Power's proposed findings at paragraphs 374-376.
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(9 Paragraph 150. There is no evidence to indicate that Mr. Meisenheimer misrepresented his qualifications in either his oral testimony or in his resume.
Paragraph 151. Mr. Meisenheimer forthrightly testi-fled that, while all construction is basically similar, the documentation required in nuclear construction is more rigor-ous. He demonstrated a clear understanding of the rigor and discipline required by nuclear OC in emphasizing the controlled i documentation required for it.246 Mr. Meisenheimer's education and experience appears ,
more than adequate to qualify him as a geotechnical engi-247 neer.
Paragraph 152. The fact that Mr. Meisenheimer con-cludes that there was not a OA or OC failure reflected by cer-tain incidents does not by itself reflect poorly on Mr.
Meisenheimer's understanding of OA/OC. To the contrary, it may indeed reflect favorably upon his understanding. Intervenor provides no evidence that Mr. Meisenheimer was incorrect in any of these assessments.
With regard to the particular incident addressed in this finding, Intervenor again misstates the witness' testi-I mony. Mr. Meisenheimer did not testify that the incident was 246 See Meisenheimer, Tr. 19672-19674; 19683.
247 Meisenheimer, Tr. 19597-19633.
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O kl not a OA/OC concern or that there were no OC implications. His reasonable and uncontradicted testimony was that, at the time this well was drilled, QC did not have responsibility for veri-fying the correctness of the location of the drilling, but ordy to verify that the rig was at the stake approved by field engi- ;
neering.248 OC properly verified the rig location; field engineering was to blame for the incorrect location of the stake.249 Paragraph 153. The qualifications of MPOAD euper-visory personnel are discussed in paragraphs 374-376 of Con-sumers Power's proposed findings.
Paragraph 154. Staff concerns regarding MPOAD person-nel qualifications would be raised by Mr. Keppler. He has never received a Staff recommendation that the NRC seek the 0
removal of any MPOAD personnel. ,
Paragraphs 155-15G. ~Once again, Intervenor attempts to rely exclusively upon the personal opinion of Dr. Landsman.
Paragraph 157. No response.
Paragraph 158. Dr. Landsman did not testify that ,
there have been " constant and continuing misunderstandings" ,
between Mr. Mooney and the Staff. In fact, Dr. Landsman 248 Meisenheimer, Tr. 20332-20333.
l 249 Meisenheimer and Mooney, Tr. 20332.
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! 250 Keppler, Tr. 15587-15588.
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pointed out that communications between Mr. Mooney and the Staff have improved greatly.251 ;
Paragraph 159. First of all, it should be noted that Mr. Boos did not make misstatements on March 10 and March 12, i 1982.252 Secondly, the fact that Mr. Mooney disagreed on technical matters with the Staff or offered explanations as to why certain actions were taken does not support a conclusion !
that his testimony is not credible. Rather, such information contributes to full development of the record. E Paragraph 160. No response.
Paragraph 161. Intervenor inaccurately described the l testimony of Mr. Mooney. Concerning the trend graph in the coils area, Mr. Mooney stated that Stamiris Exhibit No. 91 indicates that construction did not think there was an adverae trend because the facts surrounding each IPIN recorded on the graph were different. Mr. Mooney personally was of the opinion that he needed more information to determine the validity of 3
construction's position.
With regard to the S&W report, Mr. Mooney testified that he has not been able to discover any generic causes for 251 Landsman, Tr. 20881-20882.
252 See Consumers Power Company's Proposed Second Supple- ,
mental Findings of Fact at paragraph 588.
253 Mooney, Tr. 17130-17133.
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() the soils problems, but that he has been able to identify spe- >
cific causes for specific problems.254 .
Finally, Mr. Mooney did not view the NCRs as being no problem, but he did state that the number of NCRs was within reason for a project the size of Midland.255 (
Nothing in this testimony by Mr. Mooney indicates that he has an attitude toward QA and quality construction work which is disturbing. l Paragraph 162. Mr. Mooney did not testify that the review of soils by S&W was " imposed" by the NRC. He thought the third-party review was appropriate even though he had not ,
O considered it prior to Mr. Keppler's suggestion.
Paragraph 163. No response.
Paragraph 164. Mr. Mooney's testimony was that Con-sumers Power was very close to the point of overemphasizing quality on the Midland project. His explanation accom-panying this statement demonstrates a good understanding of quality construction practice and its relation to QA principles.
Paragraph 165. No response.
254 Mooney, Tr. 17362-17363.
255 Mooney, Tr. 17333. '
256 Mooney, Tr. 17391-17393.
257 Mooney, Tr. 17325.
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b) ss Paragraph 166. This reporting relationship provides Mr. J. Cook with more access, on a full-time basis, to senior management.
Paragraph 167. More accurately, Mr. Howell stated that he would be attempting to improve the relationship between Consumers Power and the NRC.259 Paragraph 168. Intervenor completely misconstrues Mr. L Howell's testimony concerning the decision to go forward with the DGB. His testimony was that he was not specifically involved in making that decision.260 i Mr. Howell explained more fully what he meant by his statement concerning the Intervenors. Putting aside the soils prob 1 cms which arose in 1978, Mr. Howell explained that, if there had not been the intervention and delays in the early 1970s, then he believes that the plant could have been operat-ing in the middle 1970s.261 Mr. Howell also stated that he was not aware of construction ever being halted on the project 62 due to intervention.
The conclusions which Intervenor proposes in this finding are unsupported.
258 J. Cook, Tr. 20925.
259 Howell, Tr. 20943, 20965-20975.
260 Howell, Tr. 2812, 20970.
261 Howell, Tr. 20994-20995.
262 Howell, Tr. 21103.
Paragraph 169. Mr. Howell further testified that he intends to review information from the past which has a bearing on the future so that he is assured that the controls and management which are in effect will prevent the kind of prob- i lems represented by the DGB Inspection findings.263 '
Paragraph'170. Intervenor again totally misstates Mr.
Howell's testimony. Mr. Howell did not recall if Consumers Power informed the NRC that the review panel generally agreed with the Forecast 6. He further stated that internal reviews by lower level employees and study teams is not information which must necessarily be supplied to the NRC. However, he clearly was of the opinion that management's position on such matters, as well as major concerns or uncertainties, should be expressed to the Staff.264 Paragraph 171. Mr. Howell testified that Mr. Selby would remain as involved in the project as before in terms of his concern and understanding of the project.265 Paragraph 172. Mr. Harrison and Mr. R. Cook did not believe that-the reorganization and the return of Mr. Howell 6
would have an adverse impact on the Midland Project.
263 Howell, Tr. 21019-21020.
264 Howell, Tr. 21044-21048. See also reply to paragraph 76 supra.
P 265 Howell, Tr. 21137.
266 Harrison and R. Cook, Tr. 21162-21163.
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Paragraphs 173-175. Intervenor's conclusions in these 67 proposed findings are unsupported and unsupportrale.
CONCLUSIONS OF LAW Applicant continues to support the Conclusions of Law and the Order proposed in Consumers Power's January 27, 1984 filing.
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267 See generally Consumers Power Company's Proposed Second Supplemental Findings at paragraphs 534-535.
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i APPENDIX RESPONSES TO INTERVENOR'S CROSS-REFERENCE TO PREVIOUSLY FILED PROPOSED FINDINGS On May 11, 1984 Intervenor filed a document entitled l r
"Croas-Reference to Intervenor Barbara Stamiris' Previously Filed Proposed Findings of Fact and Conclusions of Law." .
t Applicant generally disagrees with the amendment to Inter-venor's Proposed Findings. In addition, Applicant has the following specific comments: P Paragraph 72. Intervenor's assertion that the 1980 reorganization did not lead to greater management commitment to quality, and the speculation that it may have contributed to the QA breakdown the NRC discovered in late 1982 in its DGB inspection, are unsupported by the record. Her reference to an explanation " infra" is inadequate to identify where that expla- -
nation can be found.
Paragraph 153. Intervenor attempts to withdraw the concession she made in her December 10, 1981 proposed findings that the decisions referred to may have been made for reasons other than time and financial pressures. There has been no new evidence since 1981 supporting this change of position.
Paragraph 187. Intervenor attempts to withdraw the concession she made in her December 10, 1981 proposed findings that there is a lack of proof that the substitution of concrete ,
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see paragraph 186). There has been no new evidence since 1981 r supporting this change of position.
I Page 44. Intervenor seeks to delete a sentence which (
we cannot find on page 44 of Intervenor's Supplemental Findings ;
dated March 29, 1982.
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,..__.-_r__,..-, - _ ,_ _ _ - . _ . _ _ - . _
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E X r.E ~ E P
' Upac UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOM84 JUN 25 P12:17 BEFORE THE ATOMIC SAFETY AND LICENSINGrBOARDiga:
g~ gy m m a dei ,
F,ANCH In the Matter Of: ) Docket Nos. 50-329 OM
) 50-330 OM CONSUMERS POWER COMPANY ) Docket Nos. 50-329 OL (Midland Plant, Units 1 & 2) ) 50-330 OL CERTIFICATE OF SERVICE I, Rebecca J. Lauer, one of the attorneys for Consumers Power Company, hereby certify that copies of the following documents were served upon all persons shown on the attached service list by deposit in the United States mail, first-class, postage prepaid, this 22nd day of June, 1984:
- 1. Applicant's Reply to NRC Staff Further Sup-
- plemental Findings of_ Fact and Conclusions of Law Concerning Quality Assurance,
- 2. Applicant's Reply to Intervenor Barbara Stamirls' Second Supplemental Proposed Find-ings of Fact and Conclusions of Law on Quality Assurance and Management Attitude Issues, and
-3.- cover letter to the Administrative Judges, dated June 22, 1984.
- t%
Rebecca"J. Lauer ISHAM, LINCOLN & BEALE Three First National Plaza Suite 5200 Chicago, Illinois 60602 (312) 558-7500 DATED: June 22, 1984 -
, SERVICE LIST Frank J. Kelley, Esq. Charles Bechhoefer, Esq.
Attorney General of the Atomic Safety & Licensing State of Michigan Board Panel Carole Steinberg, Esq. U.S. Nuclear Regulatory Comm.
Assistant Attorney General Washington, DC 20555 Environmental Protection Division Dr. Frederick P. Cowan 720 Law Building 6152 North Verde Trail
, Lansing, Michigan 48913 Apt. #B-125 Boca Raton, Florida 33433 Cherry & Flynn Three First National Plaza Atomic Safety & Licensing Suite 3700 Appeal Board Chicago, Illinois 60602 U.S. Nuclear Regulatory Comm.
Washington, DC 20555 Mr. Wendell H. Marshall 4625 South Saginaw Road Mr. Scott W. Stucky Midland, Michigan 48640 Chief, Docketing & Services U.S. Nuclear Regulatory Comm.
Mr. Steve Gadler Office of the Secretary 2120 Carter Avenue Washington, DC 20555 St. Paul, Minnesota 55108 William D. Paton, Esq.
Ms. Mary Sinclair Counsel for the NRC Staff 5711 Summerset Street U.S. Nuclear Regulatory Comm. ;
Midland, Michigan 48640 Washington, DC 20555 James E. Brunner, Esq. Atomic Safety & Licensing l Consumers Power Company Board Panel !
212 West Michigan Avenue U.S. Nuclear Regulatory Comm. !
Jackson, Michigan 49201 Washington, DC 20555 Mr. D. F. Judd Mr. Jerry Harbour l Babcock & Wilcox Atomic Safety & Licensing P.O. Box 1260 Board Panel Lynchburg, Virginia 24505 U.S. Nuclear Regulatory Comm. I Washington, DC 20555 Ms. Barbara Stamiris 5795 North River Road Ms. Lynne Bernabei Route 43 Mr. Thomas Devine Freeland, Michigan 48623 Mr. Louis Clark Government Accountability Samuel A. Haubold, Esq. Project of the Institute Kirkland & Ellis for Policy Studies 200 East Randolph Drive 1901 "Q" Street, N.W.
Suite 6000 Washington, DC 20009 Chicago, Illinois 60601 Frederick C. Williams, Esq.
P. Robert Brown, Jr., Esq. Isham, Lincoln & Beale Clark, Klein & Beaumont 1120 Connecticut Ave., N.W.
1600 First Federal Bldg. Suite 840 1001 Woodward Avenue Washington, DC 20036 Detroit, Michigan 48226 John Demeester, Esq.
Dow Chemical Building Michigan Division Midland, Michigan 48640
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