ML20107H784

Supplemental Brief on Appeal of ASLB 841016 Supplemental Initial Decision Granting Authority for Issuance of Ol. Decision Should Be Reversed.Certificate of Svc Encl

ML20107H784
Person / Time
Site:	Byron
Issue date:	11/06/1984
From:	Wright T DEKALB AREA ALLIANCE FOR RESPONSIBLE ENERGY, LEAGUE OF WOMEN VOTERS OF ROCKFORD, IL
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#484-032, CON-#484-32 OL, NUDOCS 8411090268
Download: ML20107H784 (36)

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UNITEDSTATESOFAMERICk NUCLEAR REGULATORY COMMISSION

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD b

In the Matter of:

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Docket Nos. 50-454 O C E

COMMONWEALTH EDISON COMPANY

)

50-455 oc

)

(Byron Nuclear' Power Station,

)

Units.1 and 2)

)

INTERVENORS' SUPPLEMENTAL BRIEF ON APPEAL f

i 1

DOUGLASS W. CASSEL, JR.

TIMOTHY ' W. URIGHT, III L

'109: North Dearborn Suite 1300

-Chicago, IL.60602

'(312) 641-5570 Attorneys for Intervenors Rockford League of Women Voters.and DAARE/ SAFE November 6,'1984

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. TABLE OF CONTENTS Table of; Authorities-...............................

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Introduction.......................................

1 s

1 Statement'of.the: Case..............................

3 Argument.......=....................................

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I.

The-Licensing Board Erred by Failing

'to Focus on Whether Defects Overlooked

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.by Inspectors were of "Possible Safety Consequence"................................

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.A.

The BRP1Did Not Focus on Whether

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- J Inspectors Overlooked-Defects of "Possible. Safety Consequen'ce"...........

7 B.

The Remanded Licensing Hearing Likewise Did Not Focus on-Whether' e

Inspectors OverlookedLDefects of "Possible. Safety Consequence" 8

a C.

The. Boar'd Did NotJAllow Intervenors p

to Take Issue with Whether the BRP

Sho'uld

Have' Focused on the Most Safety Significant' Inspection Attributes.and Elements.................

10

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II.

~The Board Below Erred in Excluding Evidence Rele'vant to the Ultimate Issue in.the 15 Hearing.....................................

11 A.

The Board Erred By_ Refusing to

Receive.the Testimony of_Dr. Bleuel.....

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' l'..The Board committed prejudicial

' 7 error by. applying an improper and

' d p'rejudicial standards to late-s >$ '

filed < testimony.....................

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Good,cause......................

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Whether late information would significantly broaden the hearing 16

.c.

Would that position be covered by another party.................

17 d.

Availability of other means whereby the Petitioners' interest will be protected.......

17 e.

The extent to which the participants' participation may reasonably be expected to assist in developing a sound record...........................

17 s

2.

The Board applied an improper and restrictive standard in excluding Dr. Bleuel's testimony...............

18 3.

The Board erred in refusing to receive Dr. Bleuel's-testimony a.s rebuttal testimony................

19 B. The Board Erred'by Excluding Certain Portions of'Dr. Ericksen's Testimony......

20

..C. The Board Erred By Excluding the Testimony of_an Authorized Nuclear Inspector, Present at the Byron Site During BRP' Activities..... 22 III.

The Board's-Ruling Respecting the Quality of Work;at byron, Based on Design Evidence, Is Reversible Error Due to a Lack of-Due Process and Fundamental Fairness............................

23 A.'The Board Below Relied on the Design of Byron in Finding the Quality of Work Acceptable.............................

24 B..The Board. Improperly Excluded Evidence on the Byron Station Design Fulating to

-the BRP.....................................

26 IV.

The BRP Was Also Fatally Flawed for Failure to Define Criteria for Judgment Clearly at the Outset'or, in_the Alternative, to be Subjected to Independent. Review...............................

29 Conclusion...................................

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TABLE OF AUTHORITIES

' Cases Ohio Bell-Telephone Co. v.__Public Utilities Commission, 301 U.S. 292 (1937) 25 NRC Decisions-Commonaealth Edison Company - (Byron Nuclear Power Station, Units 1 and. 2) ALAB-770, _19 NRC 1163 (1984) 3, 11 Wisconsin' Electric' Power Co. (Point Beach Nuclear Plant, Unit 2) CLI-7 3-4, 6 AEC 6 (1973) 11, 24 r

Statutes

Atomic Energy Act, $182 42 U.S.C.

52232(a) 11 c_-

Administrative Procedure Act 5 U.S.C.

5556(d) 2.5 i Regulations 10 CFR Part 2:

2.714'.

18, 19 25 2.740.

2.743.

25

!10 CFR Part 50:

50.57(a) 2

.50. 5 7(a) (3) :

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' UNITED STATES 0F AMERICA C0crep%gg y

ugy NUCLEAR REGULATORY COMMISSION BEFORE THE. ATOMIC SAFETY AND LICENSING APPEAL BOARp le,s, le y -g N! :C9

'In the Matter of:

)'

.)

Docket Nos. 50-454 COMMONWEALTH' EDISON COMPANY

)

50-455

)

(Byron Nuclear Power Station,

)

Units 1 and.2)

)

INTERVENORS' SUPPLEMENTAL BRIEF ON APPEAL INTRODUCTION This case comes before the Appeal Board on Intervenors' Rockford League of Women Voters and DAARE/ SAFE ("Intervenors")

objections to the October 16, 1984, Supplemental Initial Decision of1the Licensing Board (" Board").

That decision granted author-ity>for-issuance of an operating license for the Byron Nuclear Power Station (" Byron").

This memorandum supplements the March 1;2, 1984 brief of Intervenors~on the pending appeal, over which this' Appeal' Board has retained; jurisdiction.

• /

The Board,- in its initial. decision, ruled in Commonwealth Edison Company's o

'(" Applicants")' favor on all issues except quality assurance.

In itsfremanded heari~ng the' Board heard additional evidence on the 4

'#/f This-Supplemental Brief incorporates by reference two of tt -

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three1 additional groundsofor license denial stated in Inte.-

.venors' original Brief : on. Appeal.

These grounds are that the Board below erroneously deniedLIntervenors the right to liti-gate the-need for power and alternative energy source-issues,

.and the Board's error in_ its decision on the seismology contention.

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s Byrbn Reinspection Program ("BRP") and in its supplemental initial' decision ruled in favor of the Applicant on'the quality-assurance issue.

Accordingly, the Board set aside its January 13, 1984, order barring the Director of Nuclear Reactor Regula-tions - from issuing an operating license for Byron and authorized that a license be issued subject to a determination by the Direc-

-tor that~the applicant is~in compliance with 10 C.F.R. 50.57(a).

The Board's decision to authorize the issuance of an operating license for Byron is erroneous in at least four respects: (1) it failed to focus on whether inspectors overloored defects of safety. significance; (2) it barred the introduction of relevant evidence bearing on this and other ultimate issues before the

. Board; -(3) it was unfair in relying heavily on design evidence proffered by Sargent & Lundy to determine the quality of work,

. while ' excluding Intervenors' design evidence; and (4) it failed to call for an independent evaluation of the safety significance of the discrepancies found in the BRP.

When the evidentiary record.of the remanded hearing is objectively considered it becomes clear that Byron should not have received its operating license.

The BRP, as constituted, e

did not overcome the significant shortcomings found initially in Applicant's quality assurance program, nor did it demonstrate the quality of safety-relatad work ~at Byron.

For reasons stated herein, the Board's order in its supplemental initial decision should be reversed.

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2 STATEMENT OF THE CASE

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.In Tits Initial Decision,' the Board recognized that some Ereinspection program could-provide the necessary assurance that Byron isisafe to operate.

However, the Board felt that the reinspectioni program then underway did not provide that assurance; 'the. Board had "no confidence in the.' program" itself.

-(I.D. p. 5; see also 1D-435.)

Not only could the NRC staff not

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vouch for.the program (I.D. 1D-416 ), but the Board independently questioned -its efficacy and validity.

(I.D. 11D-435-438.)

On May 7, 1984, this Appr:. Board, in remanding the case,

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ordered:

... a further hearing to permit a full explora-tionJof the significance of the program in terms

-of whether there is currently reasonable assur-ance.that the Byron facility has been properly

_s constructed.

Stated otherwise, the focus of the

' inquiry should be upon whether, as formulated and executed, the reinspection program has now provided the requisite degree of confidence that theLSatfield and Hunter quality assurance :inspec-tors were competent and, thus, can be presumed to have uncovered any construction defects of possible safety consequence. /

(Emphasis added.)

Thus, this Appeal Board properly directed that the hearing focus on the "possible safety consequence" of any defects

' overlooked'by-inspectors.

Unfortunately, neither-the Byron Reinspection Program nor.the. remanded hearings did 30.

• /. Because the Appeal Board is familiar with this case, this

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statement. will omit much of the procedural history and other information stated in the Initial-and Supplemental Initial Decisions.

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ALAB-770 at 27-28.

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.The reopened hearings on quality assurance and the BRP were

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held between' July 23-August 24, 1984.

Intervenors proffered the testimony of five-witnesses, of

.whom three were ultimately allowed to testify, and only one of whose testimony was received in full. */

One witness, Charles Stokes, testified on the adequacy of the engineering evaluations performed by Sargent & Lundy and questioned the use of undocumented engineering judgments.

(Stokes, ff. Tr. 10,770; S.I.D.

1D-13. )

He also proffered testimony concerning design issues, including design issues related to the BRP.

The Board declined to receive this portion of his testimony.

(Stokes, ff.

Tr', '10,770. )

Another. witness, Dr. Eugene Ericksen, presented testimony primarily'on the statistical validity of the BRP to demonstrate work quality.

He also offered testimony that a statistically sound reinspection program would impose higher reliability

' requirements for. inspections of greater safety significance.

-However, the. Board declined to receive that portion of his testi-mony.

(Ericksen, f f. Tr.11,045.)

'Intervenors also offered the testimony of two other o

. witnesses.

One witness, ~ Dr. William Bleuel, was an expert in reliability engineering with 25 years of practical experience in

1. f That witness, Professor: Dev Kochhar, questioned the adequacy of certain suspect assumptions used by the Applicant in the formulation of the BRP.- Those assumptions included

. establishing the first 90~ days as.th~e period to examine inspectors; allowing the findings of the original inspector

.to be known by'the reinspector; and allowing the contractors

-to reinspect their.own work.

(Kochhar, ff. Tr. 10,538.)

4

n 4.

A the defense, aerospace, and computer industries.

He, too, proffered testimony that a reinspection program designed to focus on whether Byron is safe to operate would have been differently structured, or at least that the data from the one conducted by Applicant would have to be reoriented.

Again, the Board declined

-to ' receive ' his. testimony.

The final proffered witness, Sargent Podworny, was an Authorized Nuclear Inspector at Byron during the reinspection activities.

(Bleuel, ff. Tr. 10,764; S.I.D. TD-13.)

Subsequent to the close of the record in the reopened hearings, Intervenors filed their " Motion to Reopen the Record in the Byron Licensing Proceeding to Include the Byron Station

-Design As An Issue."

'On' October 16, 1984, the Board issued its Supplemental

-Initial Decision, concluding that Applicant had now prevailed on the quality assurance contention, and that the evidence on remand

'had now overcome all of the quality assurance shortcomings the Board originally-'found and discussed at length in its initial decision.

Additionally, the Board indicated that it intended to deny Intervenors' Motion to Reopen the Record, and would supply a memorandum and order.to that effect at-a later time.

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~'*/. On November 5,1984, the day before this brief was due to be served, -Intervenors received the Licensing Board's opinion on that motion.

Intervenors plan to respond to it at oral argument.

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-ARGUMENT =

. :T-LI.. 'THE LICENSING; BOARD ERRED BY FAILING TO FOCUS ON WHETHER DEFECTS:0VERLOOKEDEBYJINSPECTORS WERE OF "POSSIBLE SAFETY

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CONS QUENCE."

g LThefBoard1below/ failed to h'eed-this Appeal Board's direction

to focus Jon whether defects overlooked _by inspectors were of I

n:

-:"poss' ble - safety. consequence."

That direction properly reflected i

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ithe mandatei ofl thel Atomic Energy Act that-no operating license

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[issueTwithoutia. finding;that-the.' operation of a nuclear plant-

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i"willTprovide adequateJprotection to the, health and safety of the

public," 421U.S.C. 32232(a), as well as the commission's t

b regulatory standard' requiring,a._ finding that 7There:is reasonable assurance (i) that.the

' activities _ authorized by the operating

-license 1canLbe conducted without endanger-ing the health:and' safety.of the'public 10 C.F.R.'550.57(a)(3)

The'centraliissue on remand ~was whether the new. evidence-

_ sufficiently cured or' overcame.the! quality assurance ' failures

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2-identified inithe.' initial-decisionisuch that there is.now rea-z

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sonable assurance >that: inspectors didJnot overlook constructioni defectsi of; "possible safety, consequence."

In-the remanded Lhearing,-the burdenlof proof was on Applicant to-demonstrate such reasonable 1 assurance.

However,ineither the BRP'norLthe 3

' remanded: hearings 1 focused.ontwhetherLinspectors overlooked c

defectsJof. "possible safety consequence."

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lA. -The BRP Did.:Not' Focus.On Whether Inspectors Overlooked

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i TF Defects Of "Possible' Safety Consequence'.".

- The ~ Byron re' inspection - program msde no effort to focus

>on:the "possible1 safety 7 consequence".of the. reinspected works it

sampled every ' inspection 'in. ther first 90. days -- without regard to y

fsafityt significance -- by' every fifth. inspector -- without regard 5toithe; safety! significance of his. assignments.

Yet the Board y

' below held ' that, "These ~ r.esults, coupled-with the adequacy of the

. sample,4canc bel extrapolated to the conclusion that all Hatfield f an~d' Hunter work at-the Byron Station is adequate for the purposes

\\of / the i design."~

S.I.D. s1D-200.

What is-.more surprising is that theiBoard seemingly went.b'eyond-the' scope of Hatfield and Hunter

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to state.that, "The? Boar'd. accepts the results of the Sargent and LL' undy analyses as-supportive of' the acceptable. quality of work at t

c the. Byron'. s i t e.". I_d. 1 D-2 0 3

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Had the :BRP been properly designed to focus on whether.

Jinspectors : overlookedidefectsiof "possible safety consequence,"

tit should9(and1 presumably would)'have.been' designed differently m

7,g.

Fors xample,La BRP ' designed to focus on 2

.inLseveral. key respects.

e Esafety consequences::

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7 O.::would not!have omitted;any:reinspections-what-:

ever of two of theJeleven--Hatfield' attributes

that could be reinspected,;and five of the.

forty-eightLHunter.l elements that could'be.

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? reinspected... _ (S.I.D-. 1D-51)-~

wou'ld."not[have reinspected relatively few 4

inspections'in some categories of greater

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isafetys significance than those which were heavily-reinspected (e.g'.,

Ericksen,

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. Amended Attachment B, ff. Tr. 11,045).

This-point is.~one'.of~ engineering judgment andLsimple=-common' sense, as well as' formal statistical ~ methodology.

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>Lwould not have omitted a failure modes and effects. analysis (see discussion of testi-

. mony of Dr.. William Bleuel, below).

.It :is thus not surprising that even Applicant's work quality expert, Mr. Laney, testified on cross-examination that he could

-not, based on-the February 1984-BRP reportfalone, infer-that the quality of.Hatfield and Hunter work at Byron was adequate.

(Tr.

9378-79.)

He was also-uncertain as to what inference, if any, could be - drawn even af ter the BRP's June, 1984 supplement.

(Tr.

9379.)-

In-contrast,-the Board accepted the BRP as an indication of the quality of work at Byron despite the fact that dispropor-tionate numbers of reinspections focused on documentation inspec-

.tions that' had no direct safety consequences.

(See Ericksen Amended: Attachment.B, ff. Tr. 11,045.)

.It was thus predictable that discrepancies in these inspections would be found not to have direct safety significance.

The Board below could not have inferred, based on the record, that comparable proportions of

'reinspections of.other kinds-of inspections - of greater safety significance, according to Applicant's. Mr. Tuetken; - would also-show no discrepancies of safety significance.

(Tuet ken, cross-

examination, Tr. 8539-45; Intervenors Ex. R-1, ff. Tr. 11,033; t

Ericksen Amended Attachment B, f f. Tr. 11,045.)

B. LThe Remanded Licensing Hearing Likewise Did Not Focus On

'Whether Inspectors Overlooked Defects Of "Possible Safety Consequence."

Not only did.the BRP not focus on the safety significance ofLinspection activities, the remanded hearing itself was 8

.a con,tinually prevented by the Board from achieving such a focus.

.(See generally, S.I.D.

1D-32. )

The Board below said as much:

Thus we address.for the first time in this decision an effort by.Intervenors to take the inspector qualification issue where the Board will not follow.

The reinspection program.was formulated and implemented as a1 device to validate the qualifications of

suspect inspectors.

It was not a direct work quality inspection.. It will be neces-sary to make this' point repeatedly in the

sections below..

S.I.D. 1D-32 The Board failed to realize that in order to proceed from a Lsample of reinsp3cted work to a valid inference that inspec-tors did not overlook defects of "possible safety consequence,"

'one must consider not only the safety significance of any discre-pancies detected in the sample, but also the "possible safety consequence" of the-sample itself.

For example, at one extreme, if' the sampled reinspectors had reinspected only documentation, no safety-significant, discrepancies would have been detected.

Yet that would. provide _little or no assurance that the plant is safe.

Nonetheless the Board consistently refused to receive expert' testimony by' Dr. Bleuel-and Dr. Ericksen that made this basic point.

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At a minimum, Intervenors argued'below that before an inference 1can validly be drawn regarding the work quality of

. safety significant hardware at Byron, a rearrangement of the BRP's existing data would be necessary.

Applicant's witness, Mr.

Tuetken, had categorized all the inspect' ions and attributes per-formed by Hunter, Hatfield and PTL according to four categories 9

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'of]safetysignificance.

Those categories ranged ~from "most e

important-to safety," "second most important," " third' most impor-tant," and 2 "least important to safety."

Tuetken, cross-examina-tion,'Tr. 8539-45; Intervenors Ex. R-1, ff. Tr. 11,033; Ericksen Amended Attachment B, ff. Tr. 11,045.

If the BRP results had

-been 'reoriente'd-according to Mr. Tuetken's classifications, those results would have revealed whether an inference is indeed per-missible that any defects overlooked by inspectors were not of "possible safety. significance."

Once the data was reorganized in this fashion, additional inspections of safety significant hardware.or certain reinspections of attributes that.could have been reinspected-(but~were not) may have been necessary to derive La sample base from which a. valid inference of work quality of safety significant components could have been made -(Ericksen, ff.

Tr. 11,045.).

C.

The Board Did Not Allow Intervenors To Take Issue With Whether The BRP Should Have Focused On The Most Safety Significant Inspection Attributes and Elements.

Not only did the BRP and the hearing not focus on defects of "possible safety-consequence," the Board below

, repeatedly would not permit Intervenors to present evidence.that the BRP, to support valid inferences that Hatfield and Hunter inspectors did not overlook defects of safety consequence, should have focused on the most safety significant inspection attributes and elements.

(See generally, S'I.D.

1D-32.)

The Board also prevented Intervenors from questioning the design of the BRP and its secondary attempt to infer' work quality.

(Bleuel, rejected 10 p'.

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testimony, Tr. 10,769; Ericksen, excluded testimony, Tr. 11,045.)

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By excluding Intervenors' testimony regarding the effective

-design of a BRP to show the quality of work of greatest "possible safety consequence," or alternatively the reorientation of the data to show. whether a valid inference of such work quality might be made, the Board below effectively prevented Intervenors from introducing evidence focusing on the work quality of the most safety'significant work..

II.

THE BOARD,BELOW. ERRED IN EXCLUDING EVIDENCE RELEVANT TO THE ULTIMATE ISSUE-IN THE HEARING.

-The ultimate issue in the remanded hearing, as acknowledged by the Board below and this Appeal Board, is whether reasonable assurance-exists that the Byron facility has been properly constructed.

S.I.D.1D-8; 19 NRC 1163,1178.

The Board is obliged to receive relevant evidence bearing on the ultimate issue, and to refuse to do so is reversible error. */

In excluding the testimony of Intervenors'- witnesses, the Board

' committed reversible error.

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A.

The Board Erred By Refusing To Receive The Testimony Of Dr. Bleuel.

~ Intervenors presented the testimony of Dr. William Bleuel, Ph.D, a reliability and design assurance engineer with 25

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~ Refusing to receive relevant evidence on the ultimate issue

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is analogous to refusing the right to participate in the resolution of an issue.

See generally, Wisconsin Electric Power Co..(Point Beach Nuclear Plant, Unit 2), CLI-73-9, 6 AEC 6, 7 (1973) for the latter point.

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years'; experience binf designJand qualityf assurance.

The' relevancy

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<[o'f'DrXBleuel's! estimonyLwas not disputed, 'although its probative t

(value:was questioned.,The Board ruled thatithe testimony did not b-imeetf the : standards of late-filed information and that there were falsoinojoyerriding considerations necessitating admission.

'(See; Tr.1.10,743[and: fr. _ pages. )

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1 Thel purpose of Dr. - Bleuel's~ testimony. was to suggest that 1

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the) Byron Reinspection Program does not provide reasonable assuran'ce Lthat : the = plantiwas constructed or will be operated

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rsafely.

(Bleuel, Tr.1f f.10,765', at 3.)

Dr. - Bleuel~ based his D

opinionion three: grounds,.all'oftwhich were clearly relevant to

> <the J proceeding:

(1) _Applicantifailed to employ;a failure-modes D

and. effects 1 analysis, a. basic". tool of reli-

-Jability engineering, in formulating and

-implementing'the program'.-

L (2).'In11ts engineering.evaluationfor discre-Lpancies, Applicant at?the outset failed to define exactly the1 criteria.for determining s

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. failure, or, in the alternative, to retain

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an independent.firmcwith-no direct economic

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Dor1 institutional ~ stake.in_the outcomefto perform.an'after-the-fact reliability assess-ment..

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(3)

The1 program's: assumption that< inspectors would

.. perform least well during the initial three

-months'is inconsistent with Dr. Bleuel's 25

' years of. professional ~ experience.-

n See generally, Bleuel rejected testimony, LTr.-10,765

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l Drb Bleuel's; proffered testimony on his' first point - the 7

cabsence(of; aifailure mcdes and ; effects analysis - so directly

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.e usummarizes 'ther heart.-~oflIntervenors' case that seven of his

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' answers! bear; quotation atilength.

His answers 8'through 14'(and.

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the'accompanyingfquestions) were,- in' excerpted form, as follows:

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A LQ.8.' ~What is failure' modes and' effects analysis?'

/ A. 8.'

zFailure modes and effects analysis is a tool of C,

reliability engineering.

Essentially it entails three steps:

first, identifying eachoof the possible ways (modes) in which a systemicould fail;;second, analysing the effects of each such-failure mode; and third, categorizing'the failure modes according to their. effects. LFor example, they may be critical

-(e.g., pcse; a threat of death due to excessive radiation) ; major h(e.g., pose a' threat of temporary plant shutdown with attendant c.

economic costs); or minor (e.g., cosmetic).

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.Theimportance5ffailuremodesandeffects-c _ ry analysis is that it enables the analyst to focus,-not on

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individual items.. viewed-in isolation, but on-the ites-in the context of the : system as a whole, -based on thorough understanding of its. systemic-interactions'and their relative importance.

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The~ practical value of failure modes and effects 12A 1

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analysis ;is,f first, titat it enables one to focus resources (inspectors',; engineering analysis, managerial attention)

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1on the' critical failure modes (taking intoLaccount both 4

their criticality.and their likelihood).

Second, it both permits

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c and demands the application of stricter standards (such as statistical-reliability standards)..to the critical modes then-

areLapplied.co less important modes.

.Q.9._Was failure modes and effects analysis utilized in the Byron Reinspection Program?

.A.9. No,-the : documents which I have reviewed contain

-no' evidence--of;this_ analysis.,having been done.

-Q.10. In what respect did'the Reinspection Frogram

" fail to use failure modes and effects analysis?

'A210.-In many respects.

Most fundamentally, the Reinspection Program,.as" designed and= implemented,.neither concentrated re-s'ources:'and, effort,4nor' utilized stricter criteria, for the components;of the most critical-failure modes _at Byron.

Inde'ed, 1 here appears to have'been no effort in the original program t

even to identify, - analyze or' categorize critical failure. modes, let'alone to'act;on such; analysis.

Q.11. What is the: significance of this failure?

.A.ll. This failure may be' understandable in light of the

program's; primary. purpose as stated by Edison, namely, to deter-mine whether inspectors, who_may not have been properly qualified, nevertheless

performed capably, 12B

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lH6 wever, withLrespect1to the(Program's.s'econd1(and

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f' ipparentlyTnot;;initialf purpose' -- Luamely, to demonstrate that

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. the:: quality loffwork at Byron :is adequate to provide? reasonable

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7f fassurance that-fthefplant can be: operated-safely:-- the. absence

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Jof any failure mode's;an'd effects analysismis a1 serious' flaw.

In my(opinion,.;without. p.erforming a failure moiles' and effects vanalysis Coneicannot.have reasonable'a'ssurance that adequate-

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.c reliability of the plant and~its associated safety requirements.

can1be achieved.

i TQ'.12.

How:might a-failure modes.and effects

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analysis'have been incorporated'into'the-

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Byron reinspection program?

' A.12.

To-accomplish this purpose credibly, a wholly L

Edifferent.. approach would h've been required.-

Rather than sprea'd-a

. rein'spection resources-randomly.among inspectors...without.. regard.

M L

3

__tolthe(relative safety significance.or. systemic impact of.the

~

_:workthsyinspected,theprogramwouldjhavebegunbyEidentifying:

y 7the mostJsafety significant; failure maides, and'the components einvolved in?each.

Thisitask:is' achievable.

For~ example, Byron's7 y

Startup Coordinator, :Mr.' Richard Tuetken,'. at. his' deposition and

?uponLrequest'of;intervenors' 4

counsel; categorized--all the Hatfield proce'dures and PTL'an'd Hunter; attributes according to theiri safety ( significance,. in categories.1, 2, 3, and " Leas t,"

ranging,tr;espectively,[from-thefirstrankofsafetysignificance, a

'to;theTsecond'and third ranks, to least important.

'(A copy

% of-Mr. Tuethen's -categorizations, which has previously been s

y 12C

. ;; p.

t N '

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'7' 1

1 s

ens _

e'"-. _.

p,.

~-

g +

a.+

v

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9

- marked fortidentification'as Intervenors' Exhibit R-1, is' attached as Attachment.B to my testimony.)

-Mr.:Tuetken's. categorization is not, of course, o

anfailure~ modes and effects analysis, since it does not expressly.and thoroughly identify the failure modes to which eachL procedure or attribute might contribute, or-their effects

.and' systemic interactions.

Nonetheless,-it is a useful starting

' point for'a credible safety analysis of Byron.

With that qualification, one may use Mr. Tuetken's categorizations for Hatfield, for example, to illustrate how a reinspection program-could have been properly designed to show the adequacy-of the work at Byron for' safety parposes.

Such a1 program:would have focused on the Hatfield procedures' in th. Tuctken's safetyJeategory No. 1

namely, cable' pan hangers, cable installation, cable terminations,

-equipment' modifications, visual weld inspection, and exposed

' conduit. LThetother fifteen Hatfield procedures would hava u

received.relatively less attention.

More specifically, such a program would have ensured,.for the category 1 procedures, for example, a greater

~

sample size than-for other procedures; additional training and supervision for the~reinspectors of those procedures; more en-

~ ineering evaluations of d'iscrepancies '(i.e., evaluation either g

of all discrepancies or of a larger sample of the discrep-

-ancies than for less important procedures); more thorough 12D 4

y--y w

ey y

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--y

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angineering' evaluation 'e.g., reinspection of other welds subject to load redistribution effect-due-to the failure of

~

i he: weld originally reinspected); and stricter engineering t

eval'uation_ criteria (e.'g., more conservative ratios of actual-to allowable stress).

Moreover, Mr. Tuetken's categories might have been refined, with even greater scrutiny given to the most critical sub-categories.

For example, his category of visual weld in-7 spections might have been divided into highly stressed welds on: critical safety components, less highly stressed welds on critical safety components, highly stressed welds on less

~

~

-critical components, and lightly stressed welds on less critical components.

-Q.13.

Would such a failure modes'and effects analysis also have affected the statistical reliability assessment of theLprogram?

f A.13.

Yes.

For the most critical-procedures, in addition Lto ensuring larger sample sizes than for less important pro-cedures, one would use stricter statistical standards.

If

~ Military Standard -105D were to be used, for example, then one

would use Inspection Level'III rather than Inspection Level II,-

a higher than usual confidence level, and a higher-than usual reliability standard.

In-fact, the statistical requirements demanded by NASA during my quality control work for Endevco

.went beyond the minimum requirements of Military Standard 105D.

12E

y, x

-The: reliability. required for the overall vibration measurement

~

s9 stem forlthe' Surveyor ^ satellite was 99.9, and for the transducer,

. cable:andfpiecescof the amplifier the reliability requirements were

.atileast 99.999.

Of-equal importance is the fact that in a failure modes an'd effectsfanalysis,. reliabilities would not be calculated for individua'l'. procedures or attributes-in isolation from others (as

-Edison's/ Reinspection Program Report does in. Chapter VII),

Rather,; the q'ues' tion-would bei he reliability of the particular t

system. _ To obtain' the reliability for the system, one would multiply the reliabilities of the individual components.

Since these reliabilities are less than 1.0, the system reliability would be lower than the reliabilities for the individual components.

ilowever, since. failure modes-in actuality occur by systems, the system

-reliability would,.more accurately than any individual component's reliability, predict the likelihood of a safety-sigificant fai-lure. In

- my opinion', Edison. erred seriously by failing to calculate reliabili-ties for systems.

Q.14.. Does. the Supplemental Report of June 1984 remedy the failure of the February,1484 Reinspection Program Report.to employ fail-ure modes and effects analysis?

A.14.

No.

The Supplemental Report moves in the right direction.

Fo r examp le, 'it includes analysis of additional welds selected on the-basis of being highly stressed.

However,

-rather curing the deficiencies, these partial steps merely

_ illustrate.what is wrong with the entire Reinspection Program.

For instance, in the case of the highly stressed welds, it is not

clear:that an effort was made to select welds that were highly 12F' c

s

. 3 1 stressed on th'e mos t ' safety'significant components, let alone LthT most highly stressed wel~ds throughout an entire system identified as critical. through a-failure modes l and effects l analysis.

[

Thus, while the Supplemental Report properly recognizes

'that _ the' original Report's engineering evaluation of the most visually. discrepant welds missed the point, the Supplemental Report, _ too, misses the point.to the extent it selected. welds for

. evaluation based on their degree of stress rather than on their

-safety significance.

L Mo reover, th-degree of inspection ano engineering scrutiny Lof L-all Lreinspected procedures and--attributes should have been Lbased, - not;merely:on which inspector happened to inspect them, e

or on Ltheir visual appearance, or on their degree of stress,

e but on1 their relative safety significance, i.e.,

the extent to which any -discrepancy in the. particular procedure or attribute

?would contribut'e -to failure oof a critical system, as determined b'y a'-failure modes ~and effects analysis, c

s T

12G E

m

G

~

a s

_ Thus, [Dr. Bleue'l's testimony on this point went directly to whether the BRP, as designed and implemented, provides reasonable assurance.thatlinspectors did!not overlook construction defects of: "possible safety consequence."

(His second and third points are discussed below.)

His testimony was thus clearly within the scope of the remanded hearing and should have been admitted both as direct and reouttal evidence.

1.

The Board committed prejudicial error by applying an improper and prejudicial standard to. late-filed testimony.

The Board below subjected the profiled testimony of Dr. Bleuel to an incorrect and overly strict standard, which

~

accordingly'resulted.in the. exclusion of the testimony, to the prejudi'ce of Intervenors.- The overly strict standard employed by thel Board below was 'in conflict with that previously employed by this same' Board when faced with a.similar request.

On April 25, 1983, Intervenors made an oral request to present the testimony of John Hughes on matters pertaining to quality assurance'and quality control ("QA/QC") at Byron.

(See Transcript, April 25, 1983, Tr. 5313-36.)

With the permission of' the Board, Intervenors were granted leave to serve a written-

. statement by Mr. Hughes on the Board and parties, and to file a written motion at a later time.- The Board suggested that

=because the request to. offer additional QA/QC testimony was made af ter the time set aside for Contention 1 A and late in the schedule of the hearing, a decision on whether to allow the testimony'would be based upon a consideration of a relaxed application of'the standards for reopening the record.

(Tr.

13

581)-23.)

In contrast, as. discussed.below, the Board applied stricter standards to the admission of Dr. Bleuel's testimony.

The way in which the Board handled the two very similar situations is puzzling, and cannot be justified by simply categorizing.Dr. Bleuel's tertimony as " expert testimony."

Given the Board's initial concern respecting the BRP, Dr. Bleuel's testimony presents an even more compelling case for admission

~

-under.the-standard employed in the Hughes case.-.

Nonetheless, even under the more rigid standard the Board

. applied to Dr. Bleuel, it should have received his testimony in the remanded hearing.

The Board analyzed whether to accept his testimony under a modified version of the standard for accepting

. late-filed contentions:

First, we address the standards for accepting late-filed contentions and information in the standards and contention and evidence.

If those standards are not met, then we might move to another consideration, and that is despite all of the failures of the five stan-

-dards_for late-filed contentions and. evidence, are there other overriding reasons which we would accept 1new issues and new evidence on?

Licensing Board, Tr. 10,743 a.

Good cause In analyzing whether there was good cause for late filing, the Board ruled that in its view a " higher showing of good'cause has to be made when you are bringing late expertise in,_as compared to newly discovered facts."

(Tr. 10,744)

In the -first place, Dr.- Bleue'.'s testimony was " late" only in a limited sense.

He first came foward to intervenors' counsel 14

t on July'24,:1984.

Counsel promptly informed the Board on July 24,

'1984.

Intervenors' cprefiled testimony was not due until August

.13, 1984,. on -which date Intervenors filed Dr. Bleuel's proposed testimony.. lThe only " deadline" missed by Dr. Bleuel was the date, prior-to the hearings, by which Intervenors were to inform Applicant of all proposed witnesses.

=In the second place, to the limited extent it was late, this was not.the fault of Intervenors.

They had made a diligent search, on an expedited schedule,-for expert witnesses.

Dr.

Bleuel came forward to them as a volunteer on the first day of the hearings.

Counsel for Intervenors, in response to an inquiry regarding fgood cause for being late, stated:

Dr. Bleuel came-forward to Intervenors on or about the'first day of the resumed: hearings, as I indicated previously He telephoned first Mr. Campbell and then he had a discus-sion with Ms. Judson on the 23rd.

I found out-about it the evening of.the 23rd of July, informed the Board, as I recall, on the morning of the 24th.

See generally, Tr. 10,415-10,416 Notwithstanding-this explanation, the Board concluded that,

" simply what you did is you were late in-getting your expert.

And you have not carried the burden of good cause."

(Licensing Board, Tr.10,74 4.)

This contrasts with the Board's earlier decision to receive Mr. Hughes testimony.

Mr. Hughes had consented to be a witness the day before counsel for Intervenors made their oral motion.

.(Motion at:2.

In the case of Dr. Bleuel, Intervenors' counsel 15

c W

~

repfesented The first11 earned of_ Dr.. Bleuel. the night before he-made the; Board and all' parties aware, and well~ before any of.

fIntervenors' " witnesses' testimony ;was due.- 'The equities adsgest.

-the: Board;erre'd in ruling'against Intervenors'on the~goodTeause.

~ inquiry.;

~

g x

Eb.

'Whether late information Jwould signific'antly s

broaden-the hearing

-The Board 1 suggested that this inquiry involv!

i es t

s "whether late information would'significantly--broaden the c

-(

3 Lhearing, ; broaden D the : issues." ' (See Transcript, 10,745.)

The.C c

w Board:-ruled that' if it were :to accept Dr. Bleuel's testimony, it would broaden.theiproceedingLand would extend'the proceedin5

~

Tr.L10,745.

The Board weighed this factor agai~nst admittingJDr.

-B euel's testimony..

I Intervenors do not agree.- Dr. Bleuel's testimony covered

-three points:

4 1)

Edison failed;to-employ a FMEA.

i

.2)E No: criteria employed at the outset, 'or alternatively, no independence.-

,.3)- 'BRP assumption thatLinspectors would perform.least well

.during' initial three months.is inconsistent 1with his professional experience.

TheDissues : raised by Dr. Bleuel are direct criticisms of f the.

!BRP'and' attack 1both the formulation and.the execution of the BRP.

0 It 'is. clear that the second and third issues would not have -

~

broadened the parameters of the remanded hearing, which focused on'the BRP.-

As'to the first issue, the need for failure modes

'and-effects analysis,.that would in no way have broadened the-

h' earing beyond 1the ; fundamental issue of whether the BRP provides-reasonable assurance that: Byron is safe to operate.

Moreover, as-16 1.

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' ' d i s,c u s s e'd a b o v e,- Intervenors argued below that, without unduly

.prolongingfthe' proceeding, at least a reorientation of the existing BRP dataLwould have sufficed to illumine whether the BRP can justify the. inferences sought to be drawn from it by the Applicant and the Board, ir.

C c.

Would-that position be covered by e

another party

-e s The Board below ruled that much of Dr.

Je Bleuel's testimony was unique, and no other party would cover his

. point's. -The. Board weighed this point in favor of receiving the

't'estimony. -Intervenors agree.

U d.

Availability of ot x ' means whereby the petitioners' inters will be protected e

1

<0n this point, the Board ruled that, "there is

?f probably no other satisfactory avenue for the Intervenors to

,.~ bring its ~ concern - raised by Dr. Bleuel's testimony to the atten' tion of the licensing authority, federal government, except

thrdugh this Board." - Tr..10,747.-

The Board ruled in

-3n[

JIntervenors' favor on this point, but reasoned that this factor

/@i

. receives'much less weight when the party proffering the testimony S.

does nct show good cause for' lateness.

Id.

e.

The extent to which the participants'

~

participation may reasonably be expected to assist in developing a sound record The Board proceeded to analyze this factor with respect to Dr. Bleuel's testimony, and determined it must balance the due process considerations of what happens when the Applicant's right to'have a prompt resolution of this hearing is t

17

V:..

f[:a[i p:_

r 4

Linjonflict; with developing: a full. record'.

'*I

Af teri a. lengthy'discussionsor whether -Dr. Bleuel's testimony would~ assist' in developing a sound record', the Board ruled that-i hit' did not_ ;believef that the -testimony. of Dr. Bleuel could make.a e,

? contribution 1to the record.- cTr..10,760.

Intervenors'strongly

disagree. iDr.; Bleuel's testimony would have' focused precisely on k-

';what.the1BRP and the' Board-below-didnot: defects of "possible 1

i safetyc consequence.".Bystnereased sampling of more safety' i"N

'significant;;-inspection procedures,-_ and subjecting Lthem to

' stricter jstatistical-reliability standards,' Dr. Bleuel would have

'l

~ made ?possible a, reliable finding on ' whether the Byron plant is -

s Mr $

p]w

or*is not?-; safe.

p+

> The -Board below went to great -pain _ to exclude the testimony s

e

~

j,

'? ofD Drt-Bleuel; from: the _ remanded ' hearings, ej

-As.a result, t-pr DIntervenors' ability _. to put on.an effective case.was seriously Q:;

/ prejudiced.

{h W6 12.

The' BoardLapplied.an. improper and restrictive:

, M,t"'

' standard;in excluding =Dr. Bleuel's.; testimony.-

~

W As stated earlier, the Board employed a very strict.

7 s t-.

N

.standa'rd Ein analyzing 1 the admissibility.: of-'Dr..Bleuel's x

..m

i v

~ '(testimony.

That standard was derived from 10 CFR Part 2, 42.7.14, I" Intervention."

That secti'on lays,out the requirements to'be met ki; -

when"one desires to. participate as a party and has filed a

~

gg s/i 'The. Board 1did _ acknowledge that~ "we -are specifically not accepting-Licensee's point that Failure Modes and. Ef fects v :

_ Analysis is not feasible,~because that'would be an issue to

~ be determined on cross-examination rather than should: it be-t accepted orinot."

Tr. '10,7 50-51.

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18 l

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~... ~...,. -.. -.. _. - - >

f<x,.

nlk.

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Srittenepetition: for leave to intervene.

10 CFR $2.714. ' Dr.

n M "

kBleuelL.wa's'a uitness for:Intervenors, not an Intervenor m.c his M

s y

towniaccord.W Accordingly, use ofEthat utandard was. error-and effectively l barred Int'ervenors from? presenting' relevant-and e

t

~

prob'ative-' evidence -on iwhat was clearly defined as the ultimate

~

N z i s's u e' i n ' t h i s Le a s e'.

e N

' ~

- 3. - The. Board erred - in refusing-to receive Dr. Bleuel's

~

. testimony.as.! rebuttal tessimony.

~

in his motion to admit the M :-

Counsel for Intervenors, c

- testJ monyf of;Dr.lBleuel, also requested. that the testimony be

,. y

-; a[dmitted ifor' purposes. of[ rebuttal.. The Board declined to do so.

'.[

iThe(Board'si:rifusal. was plain error, and'as a result of that

'. error,fIntervenors have:been'. prejudiced.

The'three points raised.

byIDN. Pleuel were' unquestionably rebuttal evidence.' The Board 7

Usaid::as"much:-

2First',vitidoesJtend to be rebuttal.

He.is-

. not;bringingDa7new issue.

He just says the way1 they aaid they did 'ityisinot the way.

J Lit should:be~.done. 'And he is certainly 1

+

' entitled to his opinion..

Tr. 10,756

,f

'After admitting'that the rules for rebuttal evidence in NRC w.

J/ '

Shearings are:ad hoc, the _ Board concluded that Dr. Bleuel simply

~

c

b",

i d.

was-inotTable-to make--a contribution to the hearing.

Tr. 10,756-:

e,. w

><v 110,'757.: Forithe reasons. stated <above,-Intervenors disagree.

314' x

y'5 (Moreover, Lthe ' Board's refusal -to ' allow Dr. Bleuel's testi-1

.;g

': b, n

+: P

^ 1 mony!.in. rebuttal. is especially unfair in light of the Board's 37

-- ~

fpermittingraLWitness: for Applicant' with similar credentials (Mr.

O fHansel)?todtestify.

Like Dr.-Bleuel (who has no nuclear exper-i a;

+

.i-j 39

'fI e

Y

)l', M ;;,

,1,..

.;:,z,, -,

...;:.,,,.....-,,,.-...-.,:.,.w_-,_,_.-.___,,,_-...,_,,.,,-

,c,-,.-,,,

y ience), Mr. Hansel had very little nuclear experience.

Both men

-nonetheless had extensive relevant experience'in the aerospace and defense. fields.

The Board ' chose to rely extensively in its Supplemental Initial Decision on Mr. ilansel's ' testimony, yet refused to permit Intervenors even to - present Dr. Bleuel, a

witness with comparable practical experience (and superior pro-u fessional degrees) in rebuttal.

As a result, for example, the Board rblied on' Mr. Hansel's experience in upholding use of the initial 90-day period for sampling purposes '(S.I.D.

166), thereby rejecting Intervenors' witness Dr. Kochhar as lacking in practi-cal experience, - while at the same time refusing to permit Dr.

Bleuel to rely on his.own extensive business. experience to rebut Mr. Hansel.. This was unfair.

B.

The Board Erred By-Excluding Certain Portions Of Dr. Ericksen's Testimony.

In granting applicant's motion to strike portions of Dr.

Ericksen's testimony, the Board below committed error and, again, prejudiced Intervenors.

The excluded portions of Dr. Ericksen's testimony were necessary to fully address whether the sample reinspected was

' adequate to provide reasonable. assurance that the plant could be operated safely.

Dr. Ericksen criticized Applicant's conclusions because-in its statistical analysis,. Applicant failed to distinguish elements which were most important -to safety from elements which were less important or to distinguish eleuants which' were' easy to inspect from elements which were difficult to inspect.- The Board excluded this testimony even though 20 h

r

~ Apglicant's _ witness, ~ Dr. Singh, admitted that he did not apply a

!ctricter standards.for elements based on their-safety significance _ (Tr. 9059, 9072-74).

The Board offered the

.following justification for-its exclusion:of this portion of Dr.

Ericksen's testimony:

Dr. Ericksen does not have sufficient ' factual understanding of the history and purposes of tha Reinspection Program to express an opin-ion as to how it should have been designed.

Nor does he have the expertise to make the judgments that he has about the initial design of the Reinspection Program... the

. tenor.of these questions'and answers, as was the case with-Dr. Bleuel,.was how the pro-

. gram should have been originally designed.

And it is not formulated to attack the infer-ences that Commonwealth Edison draws from the results.

Tr. at 11,026 However, Dr. Ericksen's excluded testimony, like Dr.

- Bleuel's, did attack the inferences that Applicant drew by indi-

' cating that Applicant's inferences could not be drawn absent a properly structured program.

The fact that the testimony was

-phrased,.in part, in terms of improved program design does not render-it irrelevant to program evaluation.

In 1ddition, the' exclusion of this. portion of Dr. Ericksen's testimony could not be based on1 11mits in the scope of his exper-tise,-for two reasons.

First, Dr. Ericksen's recommendations were based on the document indicating how Applicant's witness, Mr. Teutken, one~of.the principal engineers in charge of the LByron plant,. classified-inspection procedures and attributes by

' safety.

(Intervenors Ex.

R-1. )

Second, Dr. Ericksen used objec-

.tive. data <on the varying discrepancy rates among different 21 b

r inspections in the' program in order.to justify the need to clas-sify inspection elements'according to difficulty.

(Ericksen, tr.

following 11,045, Table 4.)

Thus, Dr. Ericksen's statistical expertise was properly informed by both engineering expertise and engineering data.

Dr. Ericksen's testimony was thus not only properly-before the

Board:in-the remanded hearing, it was directly relevant to

. whether or. not the-BRP properly focused on the "possible safety

consequence" of ' discrepancies.

By excluding this portion 'of Dr. Ericksen's testimony along with Dr. -Bleuel's testimony,. Intervenors were foreclosed from making an essential point in their case in chief (and in rebut-tal) - :nnmely, whether the_BRP should have focused on truly

, safety significant' types-of inspections in order to make a valid o

inference regarding whether inspectors overlooked construction defects Tor "possible safety consequence."

Without that focus, as

. Dr. Bleuel stated, the BRP.cannot provide reasonable assurance E

'that the 3yron plant can be operated safely.

C.

The Board Erred By Excluding The Testimony Of An Authorized Nuclear Inspector, Present At The Byron Site During BRP Activities.

The Board also-rejected the proffered testimony of Intervenors' witness, Sargent Podworny.

Mr. Podworny was an

. Authorized Nuclear Inspector at Byron, employed by the insurance company under contract to the Hunter Corporation, the piping

. contractor at Byron.

As such, Mr. Podworny was responsible for Lfinal, or near final, sign-off on certain Hunter documentation 22

y ce u

packages,-lncluding those for 14 of the Hunter attributes listed in Exhibit B to Applicant witness Del George's pre-filed testi-mony.. (See.Intervenors' Memorandum In Support of Their Motion To Include'Their Proposed Issue No.

1, filed July 30, 1984.)

Based on ~ Mr.- Podworny's allegations, the National Board of Boiler.and Pressure Vessel Inspectors conducted an audit at Byron, the-purpose of which "was to determine the confidence in the quality of work'at the Byron Station."

(Tr. 9921.)'

The Board's preliminary report, discussed in the arguments at the

. hearing,.made at least two " findings which will impact on the h a r d w a r e."

(Tr. 9922.)

Nonetheless the Board declined to receive Mr. Podworny's testimony.

l(Tr. -10,146 et seq.)

While one may debate the weight of his testimony, it: was error not at least to receive it into the. record.

III.: THE~ BOARD'S RULING 'RESPECTING THE QUALITY OF WORK AT BYRON, BASED O!! DESIGN EVIDENCE, IS REVERSIBLE ERROR DUE TO A LACK

_OF. DUE PROCESS-AND FUNDAMENTAL FAIRNESS.

The. Board committed reversible error by relying upon and making findings on the plant design and design margin, while

. explicitly ruling that' design was not en issue and denying Inter-venors (but not Applicant)-an~ opportunity to present their evi-

' dence.on: design.

Intervenors were thus barred from presenting evidence on the Byron plant design which would have raised ques-4

-tions about the design margin se heavily relied upon by the Board b e l o.w. - (See. generally S.I.D. 1141-19 6; e.g., 51189, 190.)

Th,e 23

+-

'-r

'_W

' Board's reliance on the " margin inherent in design" is further unfair in. light ' f its denial of Intervenors' Motion To Reopen o

the-Record To : Include The Byron Station Design As An Issue."

• /

Both the Atomic Energy Act and the Administrative Procedure

- Act. require that all parties - not just Applicant "have the right1to:an-opportunity to participate in the resolution of properly contested i s s ue s."

Wisconsin Electric Power Co. (Point

. Beach Nuclear Unit 2) CLI-73-4, 6 AEC 6, 7 (1973),

(See I.D.1D-l-

423.).

The Board below did not include the Byron station design as an issue in the remanded hearing, and Intervenors' allegations of design' defects were excluded.

Therefore, it was inappropriate for the Board to make~ findings based on design and design margins.

Moreover, the Board's action deprives Intervenors of their constitutional,-statutory and regulatory rights to a fair hearing.. **/

This is especially so where, as here, the Board's findings on the alleged quality of the work relied so heavily on

~

the plant's original design.

A.

The Board ~Below Relied On The Design Of Byron In' Finding The Quality Of Work Acceptable.

The Board relied heavily on the design of the Byron plant in order to reach its-findings on the quality of work at

• /

See note p. 5, supra.

• • /'

E.g.,

Ohio Bell Telephone Co. v. Public Utilities Com'n, 301 U.S.

292, 300, 304-5 (1937) (constitutional due pro-cess);. 5 U.S.C.

5556(d)- (Administrative Procedure Act rights to present evidence, to cross-examine and to rebut);

10 CFR $2 740 and 2.743 ~ (NRC regulations establishing

-rights to discovery, to present evidence and rebuttal evi-dence, and to cross-examine.)

24

hk.:. :

' Byron.

The Board? stated:

E

~

.The Board was' initially suspicious of the absence of any design-significant discre-

'pancies'from.all of those analyzed.

Sar-gent & Lundy attributes this absence to'

'the Byron design and, as explained by the Sargent & Lundy panel, is an inherent con-sequence of.the design process.

S.I.D. 1D-189 Subsequently, the Board accepted "the results of the Sargent

& Lundy analyses.as supportive of the acceptable quality of work

,. at the -Byron - si te."

(S.I.D. 1 D-2 n 3. )

Yet, even as the Board made findings based on the " extensive margin Lincorporated-in the Byron design," id. at 1D-189, it simultaneously refused to receive Intervenors' evidence on design defects as a. " general attack on the design of the Byron Station."

i See. generally Tr. 10,687-739.

'The Board addressed this contradiction in a single footnote

~

-in.the supplemental initial decision:

-Intervenors' assert.that because design is

-not an issue-in this proceeding, the-

. Licensing' Board can make no findings with respect to-conservative ' loadings, assump-

~

tions or margin used in the Byron design.

Although the adequacy of the general design of the Byron plant was not an issue the.Sargent & Lundy discrepancy evaluations clearly do fall under the ambit of the remanded proceeding.

Sargent

& Lundy's evaluation necessarily consi-dered loadings, assumptions and margins used'in the design.

And, as noted by the Licensing Board, the issue of design criteria is relevant to the extent.that the' criteria are used in the evaluation of

.the discrepancies noted in the BRP.

Tr.

10,668-87.

Thus, to the extent that these f actors were used in the Sargent & Lundy evaluations, information on loadings,.

25

w

+

-.m assumptions.and margins was properly received into evidence,~and findings based upon,that evidence-may..be made.

Accordingly, the Board may properly find

that the unrebutted evidence on loadings,

assumptions and. design presented by Mr.

McLaughlin and Mr. Laney lend support to their conclusion on the. adequacy of-the Hatfield and Hunter work.

S.I.D. TD-189, footnote 10 e

iWhile the Lgeneral design of the Byron plant was not an issue

'in the remandedchearings, the Board erred in not analyzing at least those-design defects.which related to the BRP.

For the same reason, the Board erred in denying Intervenors' Motion to reopen-the record for an independent design review, at least to lthe extent that review would have addressed the design of systems affecting the electrical work (done by Hatfield) and the piping work-(done by Hunter) at Byron.

B.

The Board Improperly. Excluded Evidence On The Byron Station Design Relating To The BRP.

Tne Board excluded portions of Intervenors' expert

. witnesses' ~ testimony on design. defects found in the Byron station design criteria.- See generally, Tr. 10,686-739. _While some_of the _ defects alleged by-Intervenors' expert witness may fall outside of the scope of the BRP, others have an impact on the analyses performed in-the BRP.

For example, question and answer inumber.119 was stricken from the testimony of Intervenors' expert

witness. -That testimony read

-Q19:

Do you have other concerns with the design criteria?

A19:

Yes.-

In Section 37.2.1, relating to mechanical 1 component. supports such as Hunter pipe supports, 26

~

~

7-s,.

there is a listing of design effects that are to be ignored when performing. calculations, for exam-ple,l torsional stresses, axial self weight and assumptions that all masses are lumped at the shear center.- The stresses are small, but they

.are non-conservative.

If these stresses were added to the calculations, I believe, some of them would-fail.

This same problem occurred at Diablo, namely, ignoring mino-but non-conservative design effects.. At.Diablo the NRC required that all the minor stresses be included and all calculations where minor stresses were ignored be recalculated.

I have included a summary of these procedures and the procedures themselves as Attachment 3 to my testimony.

If,.in fact, certain non-conservative design effects were omitted at the design phase, then that omission would affect the so-called "very generousLdesign margins inherent in the design pro-c e s s." '

(S.I.D. at 11. )

The testimony should have been admissible on that basis alone.

Another basis of admissibility is as rebut-tal' evidence.

This-testimony rebuts that of the Sargent & Lundy fengineers who testified to alleged design. margins.

Id.

Another portion of Intervenors' expert witness testimony

-that was stricken involved questions and answers Nos. 29-33, which relate.to.Sargent & Lundy analyses of the safety signi-ficance.of discrepancies initially inspected by Pittsburgh Test-

-ing Laboratory ("P T L" ).

(Tr.

10,686-739.)

Board's reasoning in1 striking those portions of the-testimony was that it had defined "the scope of hearing with respect to PTL to be the three companies, Systems Control, Hunter and Hatfield."

Tr. 10,727. */-

8/ - The Board also ruled-that the testimony was not admissible on Ealternative grounds such~as its view of the credibility and competency of the Sargent & Lundy engineers who performed all of the~ analyses for safety significant defecna in the BRP.

(footnote-continues on next page) 27 1.

e

,f However, the Board.had not been clear, at the outset in its Pretrial Order, on whether PTL was included in the scope of the

- hearing.

Any confusion on-this issue should thus be resolved in favor of Intervenors.

The Board acknowledged:

... we did not in so many words say that we will bring Pittsburgh Testing Laboratory into the reopened hearing limited to their-inspec-tion activities at Systems Control and Hatfield.

....- I am of the opinion that the Applicant was quite correct in interpreting what could

'have been a better, clearer order on our part,

... we should have written that better.

Yet based on a fair interpretation of that order, Inter-venors had. prepared portions of testimony on the legitimate

. understanding that PTL wha included in the scope of the remanded hearings.- As a matter of basic fairness, Intervenors' interpre-

. tation of an admittedly vague pretrial order should not, during

- the hearing itself, have been construed to exclude testi;ony.

It would hardly have burdened the applicant to respond to such testimony,'since PTL was included in the scope of the BRP and Applicant's engineers did evaluate and disposition the PTL dis-crepancies.

In sum, the Board should have admitted the evidence on.PTL,'both as a matter of fairness and on the issue of the credibility of. Applicant's engineering witnesses.

Intervenors were prejudiced by the E sard's action and denied a fair hearing.

(footnote continued from previous page)

This was error. The evidence was relevant at least to the credibility of the Sargent & Lundy witnesses.

Evidence that Sargent & Lundy did not use adequate care in dispositioning a PTL discrepancy would justify concern that adequate care may not have been applied in other similar analyses performed by

'Sargent-& Lundy.-

28

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'O IV.

THE.BRP WAS'ALSO FATALLY FLAWED FOR FAILURE TO DEFINE

CRITERIA FOR JUDGMENT CLEARLY AT THE OUTSET OR, IN THE

' ALTERNATIVE, ~ T0 = BE SUB,TECTED - TO - INDEPENDENT REVIEW.

At several points during the-hearings, Intervenors objected to the;1ack of independence in the engineering evaluation of the safety significance of discrepancies detected in the BRP.

Intervenors' point was perhaps best summarized by Dr. Bleuel, in the following portion of his rejected testimony:

i 29

u 4.ecl~ n d):

A basic-tenet of quality-assurance is that the criteria

.[fo~r. determining failure;should be. clearly defined before any evaluations of success or failure are actually; conducted.

Other-wise:the criteria, especially ~in a highly judgmental context, fcan-generally.be. defined during-the course of the evaluation to guarantee. success. regardless of the-actual reliability..of the system;being evaluated.

No charge of bad-faith need be made to support-this practical lesson from my years of experience in a-'

-the field.

4 9

-29A-

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Q 16

.How did the fai1ure_.to specify e~ valuation criteria Jat the outset affect' the ~ reliability of the' engineering evaluations

'for the ~ reinspection' program?

70.16.

I'have notfanalyzed the specific engineering criteria land methods utilized by'Sargent & Lundy to evaluate the Byron-

~

Reinspection Program; nor would I be competent to do so.

Rather,

.I am_ making a universal point, based; on extensive business

' experience in design assurance and quality assurance, that criteria' for evaluations of success or failure -- no matter who

conducts 'the evaluations -- should-be clearly defined at the 1 outset, if the evaluations are to be deemed reliable.

~

The' point has particular force 'where, as here, the choice

.ofi criteria 1and methods for the evaluation is highly judgmental.

A1 reading of the Reinspection Program Report 'shows plainly that Jsuch.was the' case here.

' ' Appendices.C"and D to the Report concern the engineering

evaluations of discrepancies.

Of three types of evaluations

~ (Categories X, Y and' Z defined in Appendices C and D o$ the

' Report, ' excerpts. from which are _ appended as Attachment C to myatestimony),. Category 4 is. expressly described as evaluation based on ' engineering judgment.

In the case of subjective discrepancies, of 4,132 total discrepancy evaluations, 3,074 fell in this category; of 2117 Hatfield subjective discrepancy evaluations, 2064 were in this category of evaluation by judgment.

(Table C-2, p. C-4, in Attachment C to my testimony.)

' Judgment was likewise involved in the evaluations in categories X and Z, least significantly in subjective category

-29B-

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r e

X where the principal judgment was simply that certain types of weld discrepancies did not reduce weld strength, and most significantly-in category Z, whic6 involved evaluation by engineering calculations.

Such calculations, of course, require the exercise of considerable judgment as to both the criteria and the methods for the evaluation.

Recent testimony in this case by Sargent & Lundy engineers McLaughlin and Kostal, which has been brought to my attention by intervenors' counsel, illustrates the use of judgment in such calcu-lations.

In the case of the Reinspection Program, I am advised that the testimony suggests that individual welds on a component were evaluated by calculations which did not necessarily entail reinspec-tion of other welds' subject to load redistribution effects (unless,

- by coincidence, those other welds happened to have been captured in the Reinspection Program sample).

(McLaughlin testimony, Tran-

-script at 9154-56; Kostal testimony, Transcript at 10,238-10,240.)

In contrast, for purposes of preparing his testimony on the engineer-ing evaluations of Systems Control Corporation weld discrepancies, Mr. Kostal selected certain cases in which load redistribution ef-fects were calculated, and any welds thereby affected were visually reinspected.

(Transcript at 10,238-10,240.)

Now, in the testimony just cited, both engineers expressed their judgment that these additional calculations and rein-spections were not necessary, but that is precisely my point.

They so determined by an exercise of judgment -- one of many such judgments which permeate engineering calculations.

If this judgment were to govern the evaluations, it (along with many

-29C-L

.+

cthart) chould hava 'bron. clearly stated at the outset.

The J

Tvery fact thatcMr. Kostal felt it desirable to perform these

' additional calculations and reinspections for his testimony suggests that it is not irresponsible to _ raise legitimate Lquestions about. the validity of. the pacticular judgment.

In short, - the criteria and metbods for evaluation should h ve.been clearly specified before any reinspection results were received, especially because the engineering evaluations -

were highly. j udgmental.

Q.17.

.Is there any acceptable alternative to clearly defined criteria for success or failure at the outset?

A.17.

.Yes.

In cases where the criteria for success or a

failure are not clearly defined at the-outset, an acceptable alternative is to have the evaluation conducted by an indep-endent entity with no economic or institutional stake in the o utcome.

This avoids the situation of the " rabbit guarding the cabbage patch. "

.Intervenors' counsel has asked me to review NRC Chairman Nunzio Palladino 's February 1, 1982 letter to Congressman

~ John Dingell, concerning_ criteria for an independent design review 'o f. the Diabla Canyon nuclear power plant.

I have reviewed the letter (Attachment D to my testimony).

In my opinion, the criteria set forth therein appear adequately to describe an acceptable degree of independence for review in a case, like this~one, in which the criteria for success oor-failure are not clearly defined at the outset and are highly judgmental.

I refer particularly to the following

-29D-m-

a.

1:nguaga in Chairman Palladino's response to the portion of Congressman Dingell's question 1 which asked for a definition of the term, " independent"-

Independence means that the individuals or companies selected must be able to provide an obj ective, dispassionate technical judg-ment, provided solely on the basis 'of tech-nical merit.

Independence also means that the design verification program must be con-ducted by companies or individuals not pre-viously involved with the activities at Diablo Canyon that they will now be reviewing.

Sargent & Lundy, of course, has been extensively involved in the design, prior partial evaluations of, and advice concern-ing the activities at Byron which it was asked to evaluate in the Reinspection Program.

It has a direct economic and institutional stake in the outcome, both of the Reinspection Program and of this licensing proceeding.

If engineering evaluation were to show serious safety problems at Byron, and Byron were not to be licensed, the firm, which according to press reports has recently laid off engineers due to loss of business resulting in part from cancellations of other nuclear power plants, might lose businets at Byron.

Its business at Edison's Braidwood plant, also designed by Sargent & Lundy and quite similar to Byron, would likewise be in question, and its reputation might be j eopardized.

threatening further loss of business.

None o f this is to impugn in any way the integrity of Sargent'6: Lundy.

I am merely pointing out that Sargent &

Lundy is not in any real sense, or in the sense of Chairman Palladino's definition, " independent" for purposes of engineer-ing evaluations of the work at Byron.

-29E-

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-In; sum,-base'd on my extensive ~ business experience in-.

design assurance ~ and quality ass'urance, when the criteria for s uccess*orl: failure are not clearly _ defined at the outset, the

~

evaluation must.bedone:by.-a.~ firm which is independent,'if the Levaluationiis ; to be~: deemed reliable. -Here the evaluation was l done byj a firm which is plainlyL.not independent, and the

evaluationc therefore should not. be - deemed ' reliable.

Qil8.

Does the NRC Staff review of Sargent & Lundy's

' engineering evaluations supply ~ the necessary degree. of independent. review?

TA.18.

No.

The evaluation itself, not merely a limited,

~

l partial' review of the' evaluation, must be independent, if it

isf to 'be.-; relied upon.

-29F-e l

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e For the foregoing reasons, as stated by Dr. Bleuel, the of ten highly judgmental criteria and methods used. by Sargent &

~

Lundy:shouldlnot be considered a reliable basis for evaluating Jthe safety' significance of discrepancies, since they were neither clearly defined at the outset nor applied by independent reviewers.

Conclusion The Licensing Board committed reversible error in issuing the Byron operating license.- The Board failed to focus on items of "possible safety consequence" in ruling' that Applicant had met its burden of " reasonable assurance."

That conclusion is not supported in'the record.

More importantly, the Board deprived Intervenors of their due process rights to a fair hearing.

Accordingly, the Supple-

. mental Initial Decision, insofar as it authorizes an operating license:for Byron, should be reversed.

November 6,.1984 Respectfully submitted, Douglass W. Cassel, Jr.

Timothy W. Wright, III For Service:

Attorneys for Intervenors Rockford Douglass W. Cassel, Jr.

League of Women Voters and DAARE/

Timothy W. Wright, III SAFE 109 North

Dearborn,

1. 1300 Chicago, IL 60602 (312) 641-5570 By:

% >JA b.

Y Timothy W. Kright, III Q

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i1 2 r gt.,5 1 CERTIFICATE OF' SERVICE

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JIlhereby c_ertify that_.on:this.6th day.of, November, 1984,:I:

served 2 copies tof ~:'Intervenors' Supplemental-Brief on-Appeal-on each'.of. the parties. list led below by_having said copies placed. in

envelopes, properly-addressed.and

postisged?(first class), and'

.' depositing them Lin the U.S.. mail' at ' 109 North

Dearborn,

Chicago,

pIllinois' 60602, Jexcept 'that; Messrs.. Rosenthal, Gotchy, Wilbur, y<

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, ; Lewis and Gallof wereJservedivia overnight -delivery and Mr. Miller-was ser;vedl personally.

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?AlansS.iRosenthal, Chairman:

Ivan I. Smith', Chairman

.Administsative~ Judge ~

A d m i n i s t r a t i v'e J_u'd g e

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~ tomic Safety;and Licensing

-Atomic Safety'and-Licensing A

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!AppealTBoard;

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U.S.-Nuclear Regu13 tory:

'U.S;-Nuclear Regulatory i /

Commission

. Commission

_ ashington D.C.,20555 Washington D.C.=20555.-

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Dr.'ReginaldcL. Gotchy Dr. A. Dixon Callihan n

, Administrative. Judge ~

Administrative Judge s

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" Atomic Safety and--Licensing-Atomic Safety,and Licensing

, Appeal Board Board

- ? Commission-

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U.S.. Nuclear; Regulatory

U.S. Nuclear Regulatory c

-Commission i

? Washington': D '.C. ' 20555 Washington D.C. 20555 i

's Hoiard.A~. Wilbur Dr. Richard F.-Cole r

m lAdminiatrative Judge Administrative Judge N

Atomic' Safety and Licensing.

Atomic Safety'ard Licensing

. -Appeal Board.

'U.S.2 Nuclear Regulatory Board U.S.. Nuclear Regulatory

_ H Commission Commission

" Washington D.C.:.20555-Washington-D.C. 20555

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Micilael Miller, Esq.

Stephen Lewis,~Esq.

Ish'am Lin9,oln &LBeale Office of General Counsel

-Three First National 1 Plaza U.S. Nuclear Regulatory

^

Chicago,-IL 60602 Commission Washington D.C. 20555

' John Streeter

~ Joseph Gallo, Esq.

'U.S.-Nuclear Regulatory Isham Lincoln-& Beale Commission -

11120 Connecticut Avenue N.W.

Region III Room 325

0ffice'of Inspection &

Washington D.C.-

Enforcement 799 Roosevelt Road Glen Ellyn, IL 60137 4

D,8 4 U L

.D Attorn61

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November 6,'1984 2

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