ML20138A152
| ML20138A152 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 03/05/1986 |
| From: | Guild R GUILD, R., ROREM, B. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#186-369 OL, NUDOCS 8603140091 | |
| Download: ML20138A152 (36) | |
Text
- -,
March 5, 1
ao T-g UNITED STATES OF AMFRICA g
NUCLEAP PEGULATOPY COMMISSION s
Thh ffgk]
~b BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i
4r 06A 3
Y In the Matter of:
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COMMONWEALTH FDISON COMPANY
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Docket Nos. 50-4 5 6 OL-74T( ' '
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50-457 (Braidwood Nuclear Power
)
Station, Units 1 and 2)
)
IPTERVENORS' RESPONSE TO NPC STAFF FILING SUPPOPTING APPLICANT'S MOTION FOR
SUMMARY
DISPOSTION Pursuant to 10 CFR S 2.74 9 ( a ), Intervenors Pridget Lit tl e Forem, et al.,
respond to whatever "new facts and arguments,"
id., are deemed to be presented by the NPC's Staff's February 18, 1986 response in support of Applicant's summary disposition motion.
Notwithstanding the contrary assurances by FFC Staff counsel during the January 27, 1986, Prehearing Conference, Tr.
the Staf f's filing provides blanket endorsement for the summary rejection of the 19 contention subparts which are targetted by Applicant's summary disposition motion.
Indeed, as Staff Counsel informed Intervenors prior to our receipt of their February 18 filing, virtually no new facts are presented in the Staff's endorsement of Fdison's position. 1/
-1/
The sole "new fact" identified by Staff Counsel as included in the Staf f's February 18 filing was the withdrawal of the item of noncompliance set out in subpart 14(b)(4).
- See, Exhibit 14(B)(4)-4.
As argued in our February 18 Answer, audit inadequacies are evidenced by the circumstances identi-fled by NPC Inspector Yin, regardless of dates and timing of certain audits, since whatever audits were conducted failed to identify the deficiencies found by the NPC.
Yin Deposi-tion Transcript, p.
126-28.
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In essence, the NRC Staf f's filing represents no more than an enthusiastic echo of Edison's litigation position embellished with the same inspection reports cited by Edison and ornamented with a series of 20 pro forma affidavits from the various inspec-tors involved attesting to the appropriateness of summary treat-l l
ment.
In short, the NPC Staff's support for Edison adds nothing I
of substance by way of fact or argument which alters to any significant degree, Intervenors' position as presented in our l
l February 18, 1986, Answer.
To the extent, however, that the Licensing Board deems the inspectors' endorsement of summary disposition by way of support-I ing affidavits as constituting "new facts and arguments" of significance on the question of summary disposition, reliance on such endorsements in considering Applicant's motion would be inappropriate.
First, such statements of opinion or belief represent mere conclusions, are not the sort of facts stated upon personal knowledge appropriate for determination through summary process.
Flliot v. Massachusetts Mutual Li fe Inc. Co.,
3P8 F.2d 362, 365-66 (5th Cir. 1968); Mapco Inc. v. Carter, 578 F.2d 1268, 1282 (Emer Ct App 1978), cert, den ied, 4 3 7 U.S. 904 ; G.D. Searle
& Co. v. Cha s. P fizer & Co., 2 31 F.2 d 316, 318 (7 th Cir.19 5 6 ).
The evaluation of such statements of opinion must be made by the trier of fact - this Board - upon consideration of all of the evidence at hearing.
Elliot, supra, 388 F.2d at 365-66.
- Second, Intervenors are unable to confront, probe, and clallenge the bases for any such statements of conclusion or belief at this time, in order to support our opposition to Applicant's motion.
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Assuming, arguendo, the conclusory statements of endorsement reflected in the NPC Staff affidavits would be otherwise appro-priate for consideration, reliance upon them for summary disposi-tion is inappropriate absent a fair opportunity for Intervenors to examine the Staff Affiants at deposition or hearing on these matters. 2/
10 CPR 2.74 9 (c).
Waldie v. Schlesinger, 509 F.2d 508, 510 and n.1 (D.C. Cir.1975).
Intervenors submit that such conclusory endorsement of summary deposition may be of limited significance even to the endorser.
For example, although NBC Pesident Inspector Schulz's affidavits were not available at the time of his most recent deposition examination, Schulz succinctly stated the limited scope of his endorsement:
Summary dispositions - those items I closed out based on my closure reports.
In other words, any thing I feel that I closed in the report could be summary disposed.
And all the information for the summary disposition came from my closure report, my NBC closure report.
And there is no additional information other than what's in the NPC closure report.
Schulz Deposition Transcript, p. 464.
The closure of an item of 2/
Intervenors examined NRC resident inspector Robert E.
Schulz in deposition, February 10, 1986.
Only at that time did Intervenors learn that Schulz was to be the author of affida-vits supporting Applicant's summary dispostilon motion, (five in number supporting subparts 6F, 6G, 6I, 14(b)(1), and 14(b)(3)).
Schulz Deposition Transcript, p.
397.
Counsel for the Staf f declined to make these af fi' davits available during the examination or until they were to be filed some eight days later.
(Tr. 403.)
Mr. Schulz has since left the employ of the Nuclear Regulatory Commission (Tr. 232), and has declined to make himself available voluntarily for testimony.
(Tr.
235.)
Mr. Schulz was not identified as a proposed Staff wit-ness for hearing in the February 28, 1986, Etaff witness list.
3 w
i noncompliance hardly establishes the appropriat enesc of summary disposition of these contention subparts.
Such treatment would eliminate effective consideration of the root cause of the deficiency, its significance, the effectiveness of any corrective action, and the implications of such OA deficiency for the safety of Braidwood nuclear station.
At least with respect to subparts 6F, 6G, FI and 14(B)(1) and 14(B)(3) - those items closed by Mr.
Schulz - closure of the item of noncompliance is the sole basis for summary disposition.
We con only speculate as to the bases for the other inspectors' endorsement of Applicant's position.
SUBCONTENTION 3(C)
THE FLECTPICAL CONTACTOR UTILIZED UNOUALIFIED LEVEL I OUALITY CONTPOL TNSPECTOPS FOR INSPECTION AND ACCEPTANCE OF ELECTRICAL WELDS This item of noncompliance was identified by Region III NBC inspector R.N. Gardner during the performance of his inspection activities of Applicant's Braidwood Construction Assessment Program (BCAP) documented in Inspection Report 85-006, March 8, 1985.
According to the affidavit of NPC inspector John M.
Jacobson supporting summary disposition (p.15) "this item will remain open pending the completion of the LPP (the ' Level T Reverification Program')."
Notwithstanding the inappropriateness for closure of the item of noncompliance, the Staff claims that this subpart is appropriate for summary disposition, apparently, since the Staff views its responsibilities on the subject as merely " procedural or ministerial in nature".
NPC Staff 4
t Pesponse, p. 11.
This Staff position neither supports summary disposition of this subject, nor does it enhance confidence in the adequacy of the Staff's future inspection commitment.
What the Staff argues for is not simply a delegation, improperly, to itself to insure proper implementation by Applicant, but, in reality, delegation by all parties concerned to the Applicant Commonwealth Edison Company to inspect its own activities which have been found deficient.
Summary disposition is clearly inappropriate and should be denied.
Two days af ter the Staff submitted its February 18 Pesponse supporting Applicant's summary disposition motion, NPC Pegion III l
issued a clarification of its position regarding the Level I CC l
inspector item of noncompliance.
Letter, Norelius (P. TII) to Pecd (CFCo) February 20, 1986, Attachment I hereto.
Apparently l
on the basis of "recent inspections in which we interviewed those who were the (reviewing) Level II inspectors" and " guidance from NBC headquarters," the Begion clarified the basis for the Level I violation:
We have concluded that the NOV did not clearly express our inspector's primary concern as stated on page 3 of the Peport Details, "...
the thrust of this issue concerns the accept-ability of inspections performed and accepted solely by Level I OC inspectors."
Our Nov should have been written citing the failure of the Level II inspectors to review the Level I inspection results for validity and acceptabil-l ity.
Id-This clarification is not addressed in either Mr. Jacobson's af fidavit or the other Staff summary disposition materials.
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t e
While it is clear that the NBC reaf firms its finding that the practice involving Level I OC inspectors for acceptance of welds at Braidwood constitutes a noncompliance, the significance of the February 20 clarification can not be determined on the basis of the summary disposition papers before the Doard.
This is simply a further matter which must be resolved at hearing.
Mr. Jacobson's affidavit raises a further question of timing and the reliability of Applicant's position on the Level I issue.
According to the Jacobson summary disposition affidavit (p. 14 ') :
During an interview of L.K. Comstock (LKC) Level II inspectors which I conducted on November 27, 1985, I learned that the Level II involvement consisted only of reviewing inspection reports for completeness and not the adeouacy or correctness of the underlying inspection activity.
If this is the same interview witnessed by Edison's Mr. Gieseker, one must wonder why its results were not incorporated in Mr.
Gieseker's subsequent December 20, 1985 summary disposition af fi-davit; but, instead, prompted a " correction" to his af fidavit not made until his February 12 deposition.
Gieseker Deposition Transcript, pp. 18-25.
By that correction, Edison appears to acknowledge for the first time that "the overall practice employed by LKC for use of Level I and II inspectors was not in conformance with the ANSI standard."
Geiseker Deposition Exhibit 3.
These factual inconsistencies are incapable of resolution or evaluation on the naked summary disposition papers.
l Mr. Jacobson's affidavit provides only the most conclusory and uncritical endorsement of Edison's Level I Reverification Program (LRP).
This endorsement appears to be founded upon 6
o Edison's summary disposition materials, which he reviewed "in preparing the af fidavit" (Jacobson, p.
- 13) together with a docu-ment which he describes as " Commonwealth Edison Company's Level I Poveri fica tion Program."
Id.
No further description of this
" Program" document is provided.
One can only speculare as to whether it is the LPP draft procedures identified in Mr.
Gieseker's deposition of February 12, 1986, Group Fxhibit 2, or some other document.
No such program document is attached to the NFC Staff's summary disposition filing.
If there are some further bases for Mr. Jacobson's endorsement of LPP methodology and expected conclusions (Jacobson Af fidavit, p.
15), they are not identified in the papers before the Board.
More fundamentally, the Staff's casual and cursory treatment of this issue is troubling for what it has not done and makes no promises to do in the future.
There is simply no inquiry what-ever with any degree of rigor, as to the " statistical assurance provided by the LPP" which the Staf f's Mr. Jacobson categorically endorses.
Jacobson Affidavit, pp. 15-16.
One simply cannot accept uncritically general inferences as to construction quality, on the basis of such a limited view of the underlying sampling design and methocology, let alone without analysis of the implementation and results of r. program which has
}et to even begin.
Hard guestions simply must be posed and janswered before one can embrace the sort of general statistical inferences which the LRP claims to provide.
Intervenors support the appropriateness of the concerns in this regard raised by the Comanche Peak Licensing Board in its November 11, 1985, 7
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i f.
Memorandum on Statistical Inferences 'From CPPT Sampling, a copy p
l-of wh'ich is provided as Attachment 2.
There is simply no justi-l
.fication for the Staff approaching this sampling issue as casual-l l
ly as they apparently have.
. Jacobson Affidavit On 3C Numerous portions of Mr. Jacob' son's af fidavits are unreliable based on:
(1) lack of personal knowledger (2) inadmissible hearsay; (3) inadmissible opinion; (4) inadmissible testimony of conclusions and speculation; and (5) impermissibic j
testimony as to the ultimate facts in this litigation.
j
').
In his affidavit Mr. Jacobson makes no affirmative l
l showing that he has personal knowledge of the events which are the subject. matter of his testimony.
For exampics 2.
Paragraph 5 (entirety)
' Affiant lacks personal knowledge as to the events f
surrounding the item to which he testfies; his recitation of what j
happened is pure hearsay.
.3.
Paragraph 9 (entirety)
Mr. Jacobson's conclusion as to what the remedial l
measures "should" do is irrelevant, conclusory and pure opinion l-l on Mr. Jacobson'.s part.
l 4.
Paragraph 10 (entirety) l
\\
l.
The first sentence in paragraph 10 is hearsay.
Applicant may best explain why it developed the "(LPP)".
Mr.
I -
Jacobson's agreement "that upon completion, there will be no design significant questions," is both speculative and opinion as I
to an ultimate fact.
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SUBCONTENTION 5(A)
SIGNIFICANT CONSTPUCTION ASSFSSMENT (CAT) TEAM DESIGN CONTPOL FINDINGS INVOLVING SAPGENT & LUNDY PROCEDUPES FOP PIPING PFAFALY-SIS AND L.K.
COMSTOCK ANNOTATIONS ON DESIGN DRAWINGS These design control findings were identified by the NPC CAT Team in the February 15, 1985, Inspection Peport 84-44/40.
In support of Applicant's motion for summary disposition the FPC submits the a f fidavit of James W. Muffett, characterizing inspec-tion findings by others of which he hoe no apparent personal knowledge, expressing his belief to the significance of these items.
Upon such a thin foundation rests the NFC Staf f's support for summary disposition of this subpart.
Muffett Affidavit on Subcontention 5(A)
Fumerous portions of Mr. Muffett's affidavits are unreliable based on: (1) lack of personal knowledge; (2) inadmissible hear-sayr (3) inadmissible opinion; (4) inadmissible testimony of conclusions and speculation; and (5) impermissible opinion testi-mony as to ulcimate facts in this litigation.
1.
On the face of the affidavit, Mr. Puffett does not affirmatively demonstrate any personal knowledge of the subject matter of his testimony.
For example 2.
Paragraph 5 (entirety)
Mr. Muf fett's recitation of events surrounding this issue is pure hearsay.
Additionally, the use of terms such as "small number," and statements such as "The discrepancies were isolated and were not determined to be significant" constitute impermissible opinions and conclusions as to ultimate facts.
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3.
Paragraph 6 (entirety)
This paragraph is replete with conclusions and opinions.
For example, the first sentence uses such phrases as "In an effort to enhance its controls of these activities..." Edison "made improvements."
This is clearly opinionated and conclusory as to the ultimate facts.
l 4.
Paragraph 7 (second sentence) l The second sentence beginning, "I
am sa tis fied..." is l
l irrelevant.
It constitutes sheer opinion and speculation as to r
what might happen at some future point on time.
5.
Paragraph 8 (entirety beyond the first sentence) t Mr. Muf fett's beliefs are inadmissible opinion, especially when, as here, those opinions seek to reach the ul ti-L mate facts in this litigation.
SUBCONTENTION 5(B)
ABSENCE OF A COATREPATP PPOCEDURE OUALIFIED FOR THC DESIGN BASIS ACCIDENT CONDITONS Instead of eliminating genuine issues in dispute on this subject, the NPC Staff's summary disposition filing reinforces the fundamental disagreement with Applicant as to whether the l
noncompliance reflected in this item represents a violation of 1
the 30 CFR Part 50, Appendix B,
" Design Control," Criterion III.
Mr. Kropp reaffirms the Staff's position as follows:
During my inspection I determined that the Applicant did not have documents to substantiate l
the DBA qualification by laboratory testing of a coating system used for repairs involving the use 10
o of a power ' grinder, a primer coat, and a finish coat of phenoline-305.
Therefore, I determined that a portion of 10 CFR Part 50, Appendix B Criterion TII, Design Control, was not met.
The portion of this Criterion which was not met pertained to the measures which were to be established for the selection and review for suitability of application of materials and processes that are essential to the safety-related function of structures.
Kropp Affidavit, p. 31.
This reaffirmed position conflicts directly with the position taken by Applicant with regard to contention subpart 5(B) Statement of Material Fact, p. 2; Kostal I
Affidavit, p. 9.
l Further, the Staff filings reflect uncertainty as to the l
l area of containment liner affected by the unouali fied coatings l
l repairs. Where Mr. Kostal of Sargent & Lundy speaks to a maximum l
area of "127 square feet per unit" (Kostal Affidavit, p. 5), the j
NPC's Mr. Kropp identifies an area of "approximately 200 square feet of the containments" in his affidavit at page 28; while his j
original Inspection Peport, 85-16, of May 26, 1985, describes the area "approximately 250 square fe e t."
Id.,
p.
16.
L At page 32 of his affidavit Mr. Kropp states that Sargent &
Lundy evaluation of this nonconforming condition is reflected on two "Desian Information Transmittals (DIT's)".
These documents
(
are not identified in Mr. Kostal's af fidavit in Applicant's i
filing, nor are they appended to the NPC Staff's summary disposi-l tion documents.
Similarly, the " coatings exception list" said to be under preparation and reviewed by Mr. Kropp is neither attached to the NPC nor Applicant filings.-
Lastly, the " numerous coating ~ records" which Mr. Kropp states he reviewed to determine l
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the magnitude of this problem are neither further identified nor provided in support for his conclusion.
These issues, in addi-tion to those identified in Intervenors' February 18 Answer, are l
not susceptible of resolution by summary disposition, and should be the subject of hearing.
j i
L Kropp Affidavit on Subcontention 5(B) l l
I Certain portions of Mr. Kropp's affidavits are unreliable l
l based on (1) inadmissible opinions; (2) inadmissible speculation; (3) testimony of conclusions; (4) impermissibic opinion testimony as to the ultimate facts in this litigation; and (3) the absence of supporting documentation.
For exampics 1.
Paragraph 9 (second and third sentence)
Mr. Fropp relies on certain reports prepared by the i
Applicent which are not appended to his affidavit.
- Moreover, this testimony is hearsays the report is the best evidence of what it says.
2.
Paragraph 11 (last three sentences)
These sentences are replete with opinions and conclu-sions on the ultimate facts in this litigation.
For example, the j
following phrases "... were adeouate to resolve this violation I
and to preclude its recurrence" and "I have concluded that this item..." are clearly impermissible opinions and/or conclusiosn l
respecting the ultimate facts.
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SUBCONTENTION 5(C) i i
SARGENT & LUNDY~(S&L) FAILUPE TO SPECIFY Tile ATSC CODP PFOUIPFD I
K1/r LIMITS FOR IIVAC SUPPORT DESIGN This item was opened as a result of an allegation documented l
.in Inspection Peport 84-43/39 of March 15, 1985 and closed in l
Inspection Peport 85-40/39 on November 22, 1985.
The Staff t
supplied the affidavit of Inspector J.W.
Muffett in support of l
Applicant's summary disposition motion.
Mr. Puf fett's affidavit (p. 38) reflects the review of nothing beyond Applicant's summary j
disposition filing, the written response to the violation, and i
i bis inspection reports as the basis for his conclusory support
[
l for summary disposition.
His assertions th. CAL's omission of the code required slenderness ratio limits constitute merely an l
" isolated -incident" which does not " represent a significant breakdown in Applicant's quality assurance program" should be accorded little_value in resolving the issues presented by this l
contention.. The ultimate conclusions as to the implications of this item and its significance for the adeouacy of the Praidwood quality assurance program must be reeched on the basis of the consideration of the whole record at hearing.
Summary disposi-r tion of this matter should be rejected.
t i
Muffett Affidavit on Subcontention 5(C) l Certain portions of Mr. Muf fett's affidavit are unreliable
(
based on (1) inadmissible opinions; (2) impermissibic specula-tion; (3) testimony of conclusions, and (4) impermissible opinion i
testimony as to.the ultimate facts in this litigation.
For examples v
13 l
L
1.
Paragraph 8 (entirety)
Whether Mr. Muffett is satisfied or not is neither relevant nor probative.
Such satisfaction is clearly opinion testimony respecting the ultimate facts.
Moreover, Mr. Puf fett is being explicitly speculative when he opines that the correc-tive actions may " render the possibility of recurrence minimal."
l 2.
Paragraph 10 (entirety)
This paragraph in its entirety attempts to opine regard-l ing what is the ultimate f act issue in this proceeding and is therefore inadmicsible.
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SUBCONTENTION 6(F)
L PAILUPE TO PROVIDE FOP A PAPT 21 PEPOPT OF PIPING MINIMUM WALL DEFECTS
??PC Inspector Schulz opened and closed this item.
IIe has testified that the closure of this item itself justifies summary disposition and that his inspection report reflects "all the l
information" supporting summary disposition.
Schulz Deposition Transcript, p. 464.
Pr. Schulz's af fidavit characterizes the deficiency as
" identified during a routine unannounced documentation review" (Affidavit, p.
46), in deposition he identified the source as an anonymous tip from a worker with a safety concern.
Schulz l
Deposition Transcript, p. 369.
Mr. Schulz neither asked nor determined the cause of the minimum wall deficiency (Schulz Deposition Transcript, p. 371), or whether the defect posed 14
generic implications for the existence of deficiencies in other pipe produced by the same manufacturer.
Schutz Deposition Transcript, p. 372.
Mr. Schulz's closure of this item of noncom-pliance adds no substantial basis for summary dispositi on of this issue.
1 Schulz Affidavit on Subcontention 6(P)
Certain portions of Mr. Schulz's affidavit are unreliable based on (1) inadmissible opinions; (2) hearsay; (3) conclusions; and (4) impermissible opinion testimony as to the ultimate f acts in this litigation.
l l
1.
On the face of the af fidavit, !!r. Schulz does not affir-l l
matively represent that be has personal knowledge of the subject l
l matter to which he testifics.
2.
Paragraphs 5 and 7 (entirety)
Because Mr. Schulz is without personel knowledge, his testimony as to what happened is simply heernay.
3.
Paragraph 6 (entirety)
Paragraph 6 in its entirety is hearsay and opinion testimony as to the ultimate fact issues.
4.
Paragraph 8 (first sentence)
Mr. Schulz's opinion as to whether this particular violation represents a "significant breakdown" is based on hearsay, impermissibic becauce it seeks to address an ultimate fact issue, and is nothing more than his opinion.
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e SUDCONTENTION 6(G)
PAILUPE TO PROVIDF OUALITY ASSUPANCE FOR THE CIIEMICAL CLEANING OF OVER 200,000 FEFT OF CORRODED PIPE This item was opened by NBC Inspector Schulz in Inspection Peport 84-17 on October 1, 1984 and closed by Mr. Schulz in Inspection Report 84-42/38.
The hardware implications of the "ef fect of the chemical cleaning process on mimimum wall deficiencies" remains open and is being evaluated by Inspector Muffett as part of contention subpart 11(C).
The issues involved i
in the use of the unapproved vendor for chemical cleaning I
identified in subcontention 6(G), should cicarly be decided along with the effects of such cleaning in subcontention 11(c).
Mr. Schulz neither sought nor obtained information explain-ing how and why Edison failed to provide quality assurance in the i
l chemical cleaning process.
Schulz Deposition Transcript, pp.
382-384.
Again, Mr. Fehu12's belief that the item was appro-l priate for closure as a noncompliance fails to provide a suffi-cient basis for summary disposition.
Schulz Deposition Tr anscr ipt, p. 4 6 4 Schulz Affidavit on Subcontention 6(G)
A portion of Mr. Schulz's affidavit is unreliable based on inadmissible speculation and impermissible opinion testimony as to the ultimate facts.
For example:
1.
Paragraph 9 (fifth sentonce)
This clearly represents only Mr. Schulz's opinion ac to what the basis will be for design significance.
16
e SUDCONTENTION 6(I)
FAILUPE TO ASSUP. INSTALLATION OF PPOPEP PIPF WitTP PFSTRAINT PLATP MATEPIAL NRC inspector Schulz opened this item in Inspection Peport 84-09, June 29, 1984, and closed this item Tnspection Peport 85-15/16, May 16, 1985.
The limits of Mr. Schulz's i nsperc t ion scope on this subject is discussed in Intervenors' February 18, 1986, l
Answer on this subpart.
Such questions as whether this item reflects the deliberate use of improper material and the signifi-l cance and implications of these deficiencies require resolution l
at hearing.
Mr. Schulz's closure of this item does not support summary disposition.
Schulz Affidavit on Subcontention 6(I)
A portion of Mr. Schulz's affidavit in unreliabic based on speculation and impermissible opinion testimony as to the ulti-mate facts.
For exampics 1.
Paragraph 9 (entirety beyond first sentence)
M r. Schulz's determinations respecting " safety" problems or whether an item of nonconformance represents a "significant breakdown" are speculative, and are opinions as to an ul tima te fact.
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SUBCONTENTION 9(A) i FDISON AND PITTSBUPG TESTING LABOPATORY (PTL) PEPPITTFD IMPPOPEP INSPECTION OF AT LEAST 127 FILLET WFLDS IN A PAINTED CONDITION 1
\\
The visual inspection of painted welds by PTL, authorized by l
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Fdison, was identified by NFC Inspector P.
Schulz in Inspection Peport 84-21/20, November 16, 1984, and closed by Inspector Jacobson in Inspection Peport 05-40/39, November 22, 1985.
The Staff offers only the affidavit of Mr. Jacobson in support of summary disposition.
Of course, Mr. Jacobson in unable to competently support facts beyond his personal knowledge such as the circumstances in which Mr. Schulz identified these deficiencies.
According to his l
a f fidavi t, his review in support for summary disposition is founded upon two nonconformance reports not provided in the Staff i
papers, Edison's summary disposition filings and Mr. Schulz's Inspection Peport.
The questions raised in Intervenors' February 18, l
1985 Answer regarding the root cause and significance of this improper weld inspection remain unacknowledged and unanswered in the Staff filing.
Summary disposition is inappropriate and should be denied.
l i
Jacobson Affidavit on Subcontention 9(A)
Certain portions of Mr. Jacobson's affidavit are unreliable based on: (1) his apparent lack of personal knowledge; (2) i 1
l inadmissible hearsay; (3) speculations; (4) conclusions; and (5) impermissible opinion testimony as to the ultimate facts in this litigation.
For examplo 1.
Mr. Jacobson fails to af firmatively demonstrate on the l
face of his affidavit that he has personal knowledge respecting j
the issue to which he testified.
l 2.
Paragraph 10 (entirety)
Whether or not Mr. Jacobson is satisfied is neither l
18
relevant nor probative.
Such satisfaction is clearly opinion testimony and seeks to reach the ultimate facts.
3.
Paragraph 11 (Jast centence)
Whether or not Mr. Jacobson le carified is neither relevant nor probative.
Such satisfaction is clearly opinion testimony and seeks to reach the ultimate facts.
4.
Paragraph 12 (entirety)
Whether or not Mr. Jacobson agrees with Applicant is a i
matter of opinion, and is clearly inadmissible.
l SUBCONTENTION 9(C)
FDISON AND COMSTOCK FAILED TO PEMEDY USE AND DOCUMFMTATION OF PROPER FFLD FILLER MATERIAL The gross failure by L.K.
Comstock Company to control the use of weld rod for cable pan welding was identified by Inspectors McGregor and Schulz in Inspection Poport 84-13 of August 6, 1984, and closed by Inspector Kevin Ward, Inspection Report 85-005, March 12, 1985.
Mr. Ward's affidavit is offered in support of Applicant's motion for summary disposition.
According to his affidavit, Mr. Ward's review was limited to l
l Applicant's summary disposition papers, the Inspection Deport which opened the item and Applicant'r response to the violation.
Ward Affidavit, p. P 3.
The "related NCPs, procedures, material l
test report and documentation" ( Af fidavit, p. 84), are not l
l further described or provided with the Staf f's papers.
Mr. Ward simply endorsec Edison's conclusion that no further document review was required since even where E70 rod was used when E60 19 1
c was specified "either rod that was used on these field innta11a-tions was acceptable."
Ward Affidavit, p.
84 Mr. Ward simply fails to address the " generic" Comstock document discrepancy problems, their cause, or their significance.
Further, as demonstrated in Intervenors' February 18, 1986, Answer, a genuine issue as to workmanship quality is presented by the rod substitution.
As former Comstock Level III welding inspector Worley O.
Puckett testified at deposition, "You are more likely to receive a defective weld, when E70 is used in place of E60 rod."
Puckett Deposition Transcript,
- p. 330.
The af fidavit of the NRC's Pr. Ward fails to even acknowledge any workmanship basis for the specification of the E-60 cod for the galvanized thin gauge cable pan applications.
The NBC's conclu-l j
sory endorsement provides no additional basis for summary resolu-tion of these issues.
Ward Affidavit on subcontention 9(C)
Certain portions of Mr. Ward's af fidavit are unreliable based on: (1) his apparent lack of personal knowledge; (2) inadmissibic hearsay; (3) speculation; (4) conclusions; and (S) impermissibic opinion testimony as to the ultimate facts in this litigation.
Furthermore, Mr. Ward refers to certain studies or other documents that are not appended to his affidavit.
1.
Mr. Ward fails to af firmatively demonstrate on the f ace of his affidavit that he has personal knowledge respecting the issue to which he testifies.
2.
Paragraph 7 (second and seventh sentence) 20
i Mr. Ward is clearly speculating when he states that "in addition, any unacceptable welds would likely have been identified...."
The second sentence of his affidavit staten:
"The problems identified were the result of documentation e r r o r s."
This is clearly speculation and opinion as to the ultimate facts.
In addition, Mr. Ward speaks of certain docu-monts which are not appended to his affidavit.
j Paragraph 8 (entirety) l Mr. Ward's determination is cicarly opinion and is l
opinion testimony as to the ultimate facts.
lie also refers to certain documents which are not appended to the affidavit.
SUDCONTFNTTON 9(D)
NEWEEPC AND PilILLTPS-GETSCIION WELDING DOCUMENTATTON DEFICIENCIES UFC inspectors Schulz and McGregor identified exampics of l
falso and deficient weld documentation practices in Inspection l
l Peport 85-17, October 1, 1984, closed by Inspector K. Ward in l
l Inspection Report 04-40/37, January 16, 1905.
Very little of Mr.
l I
Ward's af fidavit supporting summary disposition is fn.unded upon l
his personal knowledge or work.
Ile simply endorses on on unspec-i ified basis the work of others and Edison's conclusion that i
summary disposition is appropriate.
Nowhere does the NFC filing l
l addroso the ouestions raised by Intervonors in our February 18, 1986, Answer with respect to the cause of, the falso documenta-tion, or the existence of documentation deficiencies stemming l
from previous documentation practices.
Summary disposition in 1
inappropriate and should be denied.
21
r Ward Affidavit on Subcontention 9(D)
Certain portions of Mr. Ward'c affidavit are unreliable based on: (1) his apparent lack of personal knowledges (2) inadmissible hearsay; (1) speculation; (4) conclusions; and (5) impermissible opinion testimony as to the ultimate facts in this litigation.
For example:
1.
Mr. Ward fails to affirmatively demonstrate on the face of his affidavit that he has personal knowledge respecting the issue to which he testifies.
2.
Paragraph 6 Because Mr. Ward Jecks personal knowledge, the entirety l
of paregraph 6 is hearsay.
In addition, paragraphs 7, 8,
9, and 1
10 are hearsay.
3.
Paragraph 11 (entirety beyond first sentence) 1 Whether Mr. Ward agrees is neither relevant nor proba-tive.
It is opinion testimony.
4 Paragraphs 12, 13, and 14 (entirety)
Because Mr. Ward locks persono] knowledge, the informa-l tion contained in these paragraphs is hearsay.
4.
Paragraphs 15,_16, 17 and 18 (entirety) i l
Decause Mr. Ward locks personal kno ledge with respect l
to these occurrences, these paragraphs constitute hearsay.
Additionally, Mr. Ward's opinions are conclusory and seek to l
l reach the ultimate facts.
1 1
l 22
e o
i SUBCONTENTION 10(F)
GROSS INSPECTION EFFORS BY L.F.
COMSTOCF IN ELECTPICAL JUNCTTON BOX LOCATION FPC inspector Kropp identified this iten in Inspection l
Peport 85-15/16 on May 16,1985, and closed the item in I
Inspection Report 85-32/31 on October 4, 1985.
In supporti1g l
Applicant's summary disposition motion, Mr. Kropp does no more l
than recite his closure of the item based on acceptance of the l
i Applicant's corrective action.
As asserted in our February 18, 1986, Answer, no ef fort was made to explain the reason for this gross inspection discrepancy.
Thus there is no basis for assuming, as do Edison and NBC, the deficiency is " isolated" to l
this offending inspector alone.
Summary disposition should be I
i denied.
Kropp Affidavit on Subcontention 10(F)
Certain portions of Mr. Kropp's affidavit are unreliable based on: (1) inadmissible conclusions; (2) speculation; (3) impermissible opinions as to the ultimate facts in this litigation.
For exampics i
1.
Paragraph 7 (last sentence)
Mr. Kropp's determinations are opinion and therefore unreliable.
l l
2.
Paragraph 8 (entirety beyond first centence)
The reasons for closing this item of noncompliance and whether the issue was an isolated case or represents a significant breakdown is opinion testimony, and is therefore unreliable.
23
3.
Paragraph 10 (entirety)
Whether or not Mr. Kropp agrees with Applicant is neither relevant nor probative.
l l'
l t
j SUBCONTENTIONS 12(E), (P), (J)
E.
FAILURE BY BRAIDWOOD CONSTRUCTION ASSFSSMENT PROGRAM (BCAP)
?
TO IDENTIFY AND CORRECT IMPROPER USE OF LEVEL I OC INSPECTORS IN A TIMELY AND EFFECTIVE MANNFR F.
IMPROPER SARGENT & LUNDY (S&L) INVALIDATION OF 37 BCAP OBSERVATIONS J.
INDETERMINATE EFFECTIVENESS OF CONSTRUCTION SAMPLING REINSPECTIONS (CSR) UNDER BCAP These three amended quality assurance contention subparts, 12E, F and J, cite specific significant deficiencies in the Braidwood Construction Assessment Program (DCAP).
In our May 24, 1985, Motion To Admit Amended Quality Assurance Contention, pp.
e-ll, we identified serious flaws in the major corrective action programs at Braidwood, including BCAP and questioned BCAP's effectiveness to remedy the historic OA breakdown at the plant.
In its November 22, 1985, Partial Pesponse to Intervenors' Second set of Interrogatories and Requests to Produce, specific interrogatory 7, Commonwealth Edison identified BCAP as relevant to contention subparts IB, 12E, 12 F, and 12J:
CFCo presently intends to rely upon the fact that the BCAP was performed, and that the BCAP was performed subject to quality assurance oversight, in responding to contention item IB.
l These f acts will be used as evidence of CECO's l
management's involvement in and support of the CECO CA program, and as evidence of management's commitment to insure that all safety-related activities performed by contractors' personnel are in accordance with regulations, codes, standards, and license requirements.
Ceco 24 j
l h
does not presently intend to rely upon the BCAP results and conclusions as evidencing the ability of safety-related parts, components, or systems to meet regulatory requirements or perform their intended safety function This position could, of course, change in whole or in pa r t over time...
Td.,
pp. 3-4.
Although the NRC's Mr. Gardner promises a final NPC BCAP Inspection Report "to be issued in early February 1986," (Gardner Affidavit, 12J, p. 128), no such report has yet been published.
l BCAP-related items, thus, remain open.
The Sta f f's final written position on BCAP is as yet unavailable.
A premise underlying the schedule in this proceeding is that j
corrective action programs relevant to Intervenors' quality assurance contention would be completed, including a final i
1 written NRC Staff position, "in sufficient time to permit an adequate opportunity for discovery."
Joint Motion To Revise Hearing Schedule, October 18, 1985,
- p. 1.
"Should this assump-tion prove incorrect in the future, counsel for the respective parties are prepared on an informal basis to adjust the discovery deadlines to provide for such discovery."
Id.,
p.
3.
On this ground, aside from all others, summary disposition of BCAP issues prior to an adequate opportunity for discovery after the NPC's yet unpublished BCAP inspection report must be rejected as premature.
Mr. Gardner's affidavits endorsing Edison's summary disposi-tion motion on these contention subparts fail to address the significant unresolved issues detailed in Intervenors' February 18, 1986, Answer.
Summary disposition of these serious unresolved
]
25
.guestions regarding the effectiveness of the BCAP program is
[
wholly inappropriate.
Gardner's Af fidavit on Subcontention 12(E) i Certain portions of Mr. Gardner's affidavit are unreliable based on: (1) inadmissible speculation; (2) conclusions; and (3) impermissible opinion testimony as to the ultimate facts in this litigation.
For example:
1.
Paragraph.9 (entirety)
Since the item of noncomoliance.is not yet closed out, whether or not it will be is clearly speculation on Mr. Gardner's t
l part.
l l
2.
Paragraph 10 (entirety)
Whether or not Mr. Gardner agrees with Applicant is mere opinion.
l Gardner's Affidavit on Subcontention 12(F) i i
l Certain portions of Mr. Cardner's affidavit based on: (1) i hearsay; (2) inadmissible conclusions; (3) impermissible opinions 1
[
as to the ultimate facts; and (4) speculation.
For example:
1.
Paragraph 8 (entirety) l Mr. Gardner's statements as to what Applicant said is
' inadmissible bearsay.
i l
l 2.
Paracraph 9 (first sentence) l l
Mr. Gardner's statements of conclusory opinion' are
-i unreliable.
l 3.
Paracraph 10 (entirety) l As to the adequacy of Applicant's corrective actions, j
i l
26 l
l
review and evaluation of PCAP observations, Mr. Gardner's statements are mere opinion and are conclusions as to the ulti-mate issue.
4.
Paracraph 11 (entirety)
The final BCAP Inspection Report has not been issued.
Statements as to the closure of item is mere speculation.
The item remains.open.
Gardner's Affidavit on Subcontention 12(J)
Certain portions of Mr. Gardner's affidavit are unreliable based on: (1) failure to effirmatively demonstrate competence to l
testify on the matters based on personal knowledge; and (2) impermissible expressions of opinion as to the ultimate facts.
1 1.
Paracraph 7 (entirety) l l
Mr. Gardner's testimony regarding the CAT inspection is hearsay, not founded upon personal knowledge.
2.
Paragraph 12 (entirety)
Mr. Gardner's statements are opinion as to the ultimate facts and are therefore unreliable.
His opinion that this item will be closed in the final BCAP inspection report is mere specu-lation.
The item remains open.
SUBCOFTFNTION 13(B)
SAPGENT & LUNDY (S&L) WAS UNABLE TO JUSTIFY TUE USE OF THE "PHT" DESICN FACTOR TN CFRTAIN BOUNDING CASFS DUE TO IPPETPIFVADLP, IPCOMPLETE AND IPADE00 ATE CALCULATIONS In response to concerns raised by intervenors' witness in the Byron proceeding, NPC Inspector Muf fett identified this 27
design documentation deficiency in Inspection Peport 84-43/39 on March 15, 1985, and closed the item in Inspection Peport 85-40, November 22, 1985.
Mr. Muf fett's af fidavit endorsing summary disposition adds no new facts beyond those advanced by Edison, and totally fails to address issues identified by Intervencrs' February 18, 1986, Answer which remain unresolved.
The NPC still has failed to identify the root cause of the document retriev-ability deficiency as well as the root cause of the design control deficiency reflected in the failure of S&L's standards to identify bounding cases which would reauire uniaue detailed analysis.
The significance end implications of these S&L discre-pancies cannnot be resolved on summary disposition.
Muffett's Affidavit on Subcontention 13(B)
Certain portions of Mr. Muf fett's af fidavit are unreliable because they are conclusory and express opinions as to the ulti-mate facts.
For example:
1.
Paracraph 10 (entirety)
Mr. Muf fett's opinion as to the extent of the deficiency and its significance represent mere opinion on the ultimate issue which must be decided by the Board.
SUBCONTENTION 14(B)(1), (2), (3), AND (4)
IN INSPECTION PEPOPT 82-09, THE NPC IDENTIFIED FAILUPES BY TFE BBAIDWOOD OUALITY ASSUPANCE PROGPAMS TO IDENTIFY DEFICIFNCTFS IF A TIMELY MANNER THROUGH A COMPREHENSIVE AND EFFECTTVE SYSTEM OF AUDITS BY 1.
THE MECHANICAL CONTRACTOR, PHILLIPS-GETSCl!OW CCMPANY 2.
THE ELECTRICAL CONTPACTOR, L.K. COMSTOCK COMPANY 28 m
7
.3.
'THE HVAC CONTRACTOR, PULLMAN CONSTFUCTION INDUSTRIES, AND 4.
COMMONWEALTli PDISON, ITSELF The NRC Staff's endorsement of Edison's summary disposition argument fails to addpess the unresolved issues identified in V"
Intervenors' Feb r ua r y.' 18,1986, Answer with respect to Contention t
14.
In essence, the 14(B) noncompliances for violation of the Appendix D ' " Audit" Cri'ter ion, XVIII, reflect Fdison and its
)
contractors' failure to identify and correct a number of other
. serious violations identified by the NPC in Inspection Peport 83-hsNPCInhpectorSchulzput 09, May 7, 1984.
it:
Any Level IV violations and:above should be identified by the contractor or the licensee.
And that's my personal philosophy.
I would say the audits did not meet those goals.
Schulz Deposition Transcript, p.
340.
In his May'7,.19P4 letter of transmittal for Inspection 1
Feport 83-09, NPC Regional Administrator James Keppler cl aracter-ized the substantive findings as follows:
The major factors contributing to the deficiencies were inadequate contractor programs and workmanship, inadegute licensee reviews of i
the contractor programs, and inadeoute licensee quality assurance overview to ensure contractor activities met all requirements.
The violations indicate the need for more ' aggressive Ceco management involvement and 'aupport of the CFCo OA I
program to ensure thath all 'eafety related activities performed by contractor personnel are in accordance with the regulations, codes, standards' and license requittements.
T d.,
a t p. 2.
The NBC Sta f f's closure of the items of noncompliance reflected in subparts 14(B)(1), (2) and (3) fail to resolve the serious cuestions of significance and implications
(
29
)
raised by the occurrence of these audit deficiencies as argued in
-Intervenors' February 18, 1986, Answer.
The sole new " fact" presented by the NPC in support of
' summary disposition with respect to subcontention 14 is their withdrawal of the violation identified in subcontention 14(B)(4).
February 13, 1986, Letter, Papperillo (NPC) to Feed (Ceco) Exhibit 14(B)(4)-4 to NFC fita f f Pesponse.
l By affidavit, Mr. Puffett of the NFC asserts "My inspection l
of Applicant's audit records confirmed that contrary to what Mr.
l Yin had been told the audits of these certain activities had been timely and adequate."
Muffett Affidavit, p. 172.
This l
l conclusion is in apparent conflict with the opinion of Mr. Yin, 1
and indeed, the opinion stated by Mr. Muf fett himself at deposi-tion.
Mr. Yin testified that regardless of timing the audits performed were nonetheless inadequate because they failed to identify-the deficiencies he had found.
Yin Deposition Transcript,.p. 126-28.
Mr. Muffett, who was present during Mr.
Yin's deposition, was questioned on this very subject:
l 12:
And you heard Mr. Yin testify that having been aware of those audits, he nonetheless held to his conclusion that the auditing had been inadeouate?
l At That's true.
0:
Do you dispute his conclusion?
As I don't dispute his conclusion, no.
l At bottom, then, proof of the adequacy of the audits would have been the timely and effective identification by Edison or l
Lits contractor of the deficiencies found by the NPC.
If any-j 30
thing, the withdrawal of this item of noncompliance by the NPC simply' clouds the issue, yet hardly establishes the appropriate-ness'of summary disposition.
For reasons stated in Intervenor's February 18, 1986, Answer, summary disposition should be denied.
Schu12's Affidavit on Subcontention 14(B)(1)
Certain portions of Mr. Schulz's affidavit cre unreliable based on (1) hearsay with respect to actions by others not within his ' personal knowledge; (2) statements of opinion as to the ultimate facts.
For cyample:
[
1.
Paragraph 6 (entirety)
Mr. Schulz's description of what Applicant "d e te r m i n ed,"
what Applicant took into account, and "the purpose of Applicant's verification" is obviously founded not on persona) knowledge but upon hearsay.
2.
Paragraph 8 (entirety)
Mr. Schulz's expressions of opinion as to efficiency of Applicant's corrective actions is more opinion as to the ultimate facts.
Pelke's Affidavit on Subcontention 14(B)(2)
Certain portions of Mr. Polke's affidavit are unreliable based on: (1) lack of competence founded on personal knowledge; (2) speculation; (3) inadmissible OFpressions of opinion on the ultimate' issues.
1.
Paragraph 5 Mr. Pelke's statement of agreement represents opinion.
31
2.
Paragraph 7 Mr. Pelke's description of Applicant's statements and actions constitute hearsay and do not appear to be founded upon personal knowledge.
3.
Paragraph 9 Mr. Pelke's sta tements as to the purpose of Applicant's surveillance is more speculation.
Iris statement that "these audits compensate for any auditing inadeouacy..." presents conclusory opinion on the ultimate facts.
4.
Paragraph 11 Mr. Pelke's opinion is conclusory, wi thout identifica-tion of adeouate supporting facts.
The audits in ouestion are neither identified in any detail, nor appended to the Staff's filing.
5.
Paragraph 12 (Jast sentence)
Mr. Pelke's description of what will happen in the future is more speculation.
This item remains open.
6.
Paragraph 13 Mr. Pelke's statements with regard to his agreement with Applicant on questions of significance are mere conclusory opinions on the ultimate issue.
Schu12's Affidavit on Subcontention 14(D)(3)
Certain portions of Mr. Schulz's af fidavit are unreliable based on expression of opinion and conclusions regarding the ultimate issue.
1.
Paragraph 6 (last sentence)
Mr. Tchulz's exprension of satisifaction is mere opinion 32
e.
I l-as to adequacy.
It is conclusory and reflects the ultimate issue
.which must be determined.
2.
Paragraph 7 Mr. Schulz's expression of opinion is unreliable, l
conclusory and expresses opinions on the ultimate issue.
iiis description of the " evaluation by Applicant" is hearsay.
The document is not appended to the Staf f's filing.
l 3.
Paragraph 8 Mr. Schulz further expresses an opinion as to the thoroughness of the hearsay evaluation, conclusions as to the significance of Pullman's past audit fa ilu r es.
This constitutes more opinion.on the ultimate issue for decision.
4.
Paragraph 9 Mr. Schulz's opinion os to the ' significance of these deficiencies, again, is opinion on the ultimate issue for decision.
Muffett's Affidavit on Subcontention 14(B)(A)
Mr. Muf fett's af fidavit, in part, is unreliabic based on:
(1) hearsay and'(2) expressions of opinion on the ultimate iscue.
1.
Paragraph 5 (ontirety)
Mr. Muf fett's description of what Mr. Yin found - and wha t Mr. Yin believed is obviously hearsay and not founded upon l
personal knowledge.
l 2.
- Paragraph 6 Mr. -Muf fett's statements as to what "Mr. Yin had been told" is pure hearsay, not founded upon personal knowledge.
33
s 3.
Paragraph 7 Mr. Muffett's statements with regard to the validity of a violation and its significance represents conclusory opinion on the ultimate issue for decision.
CONCLUSION For the foregoing reasons, Applicant's motion for summary disposition should be denied.
i l
DATED:
March 5, 1986 1
Pespectfully submitted, i
\\
\\
l Pobert GdM.d One of the Attorneys for Intervenors Forem, et al.
l l
I 1
l l
[
l Douglass W.
Cassel, Jr.
Pobert Guild Timothy W. Wright, III 109 North Dearborn Suite 1300 Chicago, Illinois 60602 (312) 641-5570 34
UNIILO ST Att ;
- " b. e "' 4 ATTACHMENT 1 NUCLE An nEGULATORY COMMisslON
[
i ntcion in 7
CLCN CLLYN. ILLINotS E0137 s
February 20, 1986 Dccket No. 50-456 Docket No. 50-457 Cor:r.onwealth Edison Company ATIN: Mr. Cordell Reed Vice President Post Office Box 767 Chicago, IL 60690 l
Reference a R. F. Warnick letter to C. Reed dated March 8, 1985 l
b D. L. Farrar letter to J. G. Keppler dated May 6, 1935 l
c C. E. Norelius letter to C. Reed dated June 27, 1985 Gentlemen:
l In our letter to you dated June 27, 1985, we advised you that we wero reviewing your position stated in your letter dated May 6,1985 responding to i
l Violation 1 of the Notice of Violation (NOV) transmitted to you by our letter dated March 8, 1985. Our review of your position versus the requirements of i
AN5! 45.2.6 for Level I and 11 inspectors included seeking guidance from NRC l
Headquarters, and evaluating industry practice and discussing the matter with past and present members of the ANSI 45.2.6 Committee.
l l
We have concluded that the correct interpretation of ANSI 45.2.6 inspection requirements is as follows:
l A Level I inspector may perform inspections to an approved procedure, record the inspection results and accept the results as provided by the procedure. A Level 11 or III inspector is required to evaluate the Level ! inspector's inspection results for validity and acceptability. The evaluation for l
validity and acceptability shall include reviewing th7 insacction data sheets i
and reports, and a periodic observation of the Level I worr. performance in the field.
We bave reviewed our NOV and the related inspection report details (Inspection Report 50-456/85-006; 50-457/85-006, Details Section 3). We have concluded that the NOV did not clearly express our inspector's primary concern as stated on page 3 of the Report Details, "...the thrust of this issue concerns the acceptability of inspections performed and accepted solely by Level I QC inspectors." Our NOV should have been written citing the failure of the Level 11 inspectors to review the Level I inspection results for validity and acceptability.
Recent inspections in which we interviewed those who were the Level 11 inspectors during the period of concern have indicated that the Level 11 review was directed toward confirming that the inspection records were properly filled out, not directed toward assuring the validity and acceptability of the inspection data. This additional information will be documented in the next inspection report written by John Jacobson.
00/~
L.,40
m__..... _.. _.. _
r s'
2 February 20, 1986 l'
Commonwealth Edison
\\
Company l
l The Based on the above we have concluded that the subject violation is valid.
i corrective action described in your May 6,1935 letter appears to be j
We will review your corrective actions during future inspections.
[
adequate.
Your cooperation with us is appreciated.
Sincerely, t
I
$0/ & neck: &
Charles E. Norelius, Director Division of Reactor Projects i
cc:
D. L. Farrar, Director of Nuclear Licensing
[
M. Wallace Project Manager D. Shamblin, Construction Superintendent E. E. Fitzpatrick, Station j
Superintendent P. L. Barnes, Regulatory Assurance Supervisor DCS/RSB (RIDS)
Licensing Fee Management Branch Resident inspector, RIII Braidwood Resident Inspector, RIII Byron Phyllis Dunton, Attorney General's Office, Environmental Control Division D. W. Cassel, Jr., Esq.
J. W. McCaffrey, Chief Public Utilities Division H. S. Taylor, Quality Assurance-Division E. Chan, ELD l
J. Moore, ELD G. Berry, ELD J. Stevens, NRR The Honorable Herbert Grossman, ASLB The Honorable A. Dixon Callihan, ASLB i
The Honorable Richard F. Cole, ASLB l
[
o ATTACHMENT 2 LDP - O_,,,
UNITED STATES OF AMERICA f
NUCLEAR REGULATORY COPJ4!SSION Before Administrative Judges:
Peter D. Bloch, Chaiman Dr. Kenneth A. McCollom Dr. Walter H. Jordan Herbert Grossman, Esq.
Docket Nos. 50-445-OL & OL-2 In the Matter of 50-446-OL & OL-2 TEXAS UTILITIES ELECTRIC COMPANY, et al,
~
ASLDP No. 79-430-06 OL-(Comanche Peak Steam Electric Station, Units 1 and 2)
November 11, 1985 MEMORANDUM (Statistical Inferences from CPRT Sampling)
The purpose of this memorandum is to raise Board concerns about the approach to statistical inference apparently being used by the Comanche Peak Response Team (CPRT).I Although the Staff of the Nuclear Regula-tory Commissio'1 (Staff) is following this issue closely, we are raising our concerns at this time so that they will not become a source of delay should evidence gathered by the CPRT be introduced at a later stage of this case.
Our concern is that we have not seen a clear statement of how Applicants have designed their sampling studies.
We expect 1
See Transcript of Meeting Between NRC Staff [(Staff)] and Texas Utilities Generating Company [(Applicants)] to Discuss the Official Inspection of Painted Support Welds, September 17, 1985; Transcript of Public Hearing, Plantation Inn, Granbury Texas, October 2 and 3,1985[betweenApplicantsandStaff].
qy9%Tf'
c i
o.w..
Statistical Inference:
2 that' evidence from which the Board is asked to draw a statistical 2
inference should include, in effect, the following elements :
i 1.
Statement of the hypothesis and assumptions, 2.
Statement of the level of significance chosen, 3.
The test statistic and critical region, 4
Presentation of any computation [or reference to a verified 5.
A full statement of the conclusions.
The most important reason for adhering to this general fonnulation f
is that it clearly displays the relationship between the problem being i
addressed and the resolution of the problem.
For example, if the problem is verifying that wiring has been properly installed in the Comanche Peak Station, then one must decide how to construct the sample of wiring to assure that all the wiring has been properly installed.
If everything about wire installation is the same, then it might be proper to treat all the wiring as the same population and take a single sample.
l If, however, certain wiring requires far more complex procedures for l
l installation, then it might be necessary to utilize a stratified sample l
l that will pennit generalization about the complex procedures looked at j
by themselves.
If the procedures are indeed more complex, then one l
l 1
/
i 2
This particular fonnulation of requirements is from Wilfrid J.
Dixon and Frank J.
- Massey, Jr.,
Introduction to Statistical Analysis; Fourth Edition, McGraw-Hill, New York (1983) at 85.
l However, the general principles expressed are believed by the Board j
to be comon knowledge among statisticians.
i l
i
(
Statistical Inference:
3 would not make inferences that because simpler tasks have been.done l
properly that the complex must have been done properly as well.3 Similarly, if it is alleged that certain quality assurance inspec-tors or certain craft personnel were not qualified, one would seek a stratified sample of their work in order to determine whether each of the questioned employees perfomed adequately.
Although the sample might not include the work of every such questioned person (we do not reach a conclusion concerning whether each person's work would need to be included), it would have to be adequate to draw inferences about the l
work of each questioned inspector. One likely would not draw inferences t
about a few questioned inspectors by sampling work that was generally l
done by qualified personnel.
There is no basis for generalizing from the work of primarily qualified personnel to the work of unqualified personnel.
Special problems may 'be caused. by changes in personnel over time.
For example, it is not clear that one could generalize from work per-formed under Mr. Tolson to work performed under his predecessors, or vice versa.
Along the same lines, if there was a time period in which the audit function was neglected, it might not be possible to generalize about that time period from work perfomed in other time periods.
l l
l l
3 See Tr. (Plantation Inn) at 79.
We reach no conclusion about the l
correctness of Mr. Calvo's point.
l l
t Statistical Inference:
4 With respect to the statement of the hypothesis and assumptions (step 1), it is apparent to the Board that a sample must be carefully structured if an inference is to be drawn to rebut the existence of a problem already detected by the Staff or by the Applicants. Generally, t
l unstratified samples are unlikely to prove to be persuasive with respect t
to specific, identified problems.
l A hard question also must be posed about the level of safety that l
f must be assured. With an adequate Appendix 8 program, there undoubtedly l
would be some oversights and deficiencies.
The project is too large to l
be perfect.
However, if the Board is to be persuaded that there was i
mnged by adequate quality assurance program, then a sample must be adequate f
mrd at 2cest of (given the level of confidence permitted by statistical inference from ut-lun:h closely approximate r
l 2aring on
.the sample) to
/
the level of safety contemplated by Appendix 0.
]/12/85 If that level of safety cannot be assured, the plant fail to meet Appendix B requirements and to t
would appear to require the granting of an exemption from Appendix 8 3
pursuant to 10 CFR 2.758.
l Additionally, to the extent that the FSAR makes promises about the applicability of particular codes, the purpose of the review program is l
l to determine whether those connitments were met.
If commituents were not met, then the Station must be corrected or the Staff must determine l
whether it is appropriate to permit an amendment of the FSAR.
l We seek the connents of the parties concerning the points made in i
l this memorandum, including the points about stratified sampling, cali-(
bration of the sample concerning allowable levels of safety, the need to l
relate specific problems (hypotheses) to the sample, and the possible i
i
.or
c-i e
o Statistical Inference:
5 need for an exemption from Appendix 8.
Parties may file their responses so that they are received by the Board during calendar year 1985.
FOA THE ATOMIC SAFETY AND LICENSING BOARD Peter B. Bloch, Chairman ADMINISTRATIVE JUDGE Bethesda, 'Ma ryland i
l l
o
- e 3/6/06 O
UNITED STATES OF AMERTCA f
NUCLEAP PEGULATORY COMMISUTON 4
9 t ~a,ro M
i g.10198r>> 1 HEFOPE TIIR ATOMIC SAFETY AND LICENSING 110APD -
p StkklLpa "G 4 f4 trev. !
g In the Matter of:
)
kD ;p COMMONWFALTil EDISON COMPANY Docket No. 50-456 oc 7
)
50-457 (Draidwood Nuclear Power
)
Station, Unita 1 and 2)
)
l CEPTfFICATE OF SERVICP i
l i
l I hereby cortify that I have nerved coplec of intervenorn' Peoponse to l'PC Staff Filing Supporting Appilcant'n Motion For l
Summary Dinpocition on each party to tbio proceeding as linted on the attached Service Liot, by having cold copion placed in r
j onvolopen, properly cddrenced and pontnqed (firnt clano), and deposited in the U.S.
mall on thin 6th day of March,1986; l
cxcept that the Licensing Doord and NPC Staff Counsel Mr. Troby l
were cerved via Federal Express overnight delivery and Edinon l
l councol Mr. Miller wan norved by mennengor.
)
y,u 'A r
1 y
y I
I l
t i
1
O oe 11PAIDWOOD SERVICC T.TST fle r be r t Gronnman, Fna.
Michaci t.
Miller, Pno.
Chairman and Adminintrative Judge Potor Thornton, Eno.
Atomic Garoty and Liconning Doard Icham, I,incoln & Peale U.S. Nuclear Regulatory Comminnion Three First National Plana Wachington D.C.
20555 Chicago, Illinoin 60602 Pichard P. Cole Docketing & Service rection Adminictrative Judge Office of the Uccretary Atomic Safety and Liconning Doord U.S. Nuc1 car Pegulatory U.S. truclear Regulatory Commincion Commicnion Washington D.C.
20555 Woohington D.C.
20555 hs Dixon Cal 1Jedn C.
Allen Dock, Eng.
Admlnigtgp Kvc Judge P.O. Dox 342 102 0 k t,ane Urbana, Illinoin 61901 03k idge, tenqococe 37030 Dridget Little Forcm Stuart Treby, Eng.
117 North I,inden Street NPC Staff Counnel Ennox, Illinoin 60935 l
U.S. !!uclear Pegulatory Commincion l
7335 Old Georgetown Pond Thomac J. Cordon, Eco.
Dothonda, 11aryland 20014 Waller, Evann & Gordon 2503 South Feil Jocoph Onllo, Ecq.
Champaign, 1111noic 61020 l
Inham, t,incoln & Doalo l
1150 Connecticut Avenue N.W.
Lorraino Crock Suite 1100 Pouto 1, Dox 102 Manhington D.C.
20036 Mantono, filinoin 60950 Pcqlon !!!
Office of Incpection &
A. Dixon Callihan rnforcement Administrative Judga l
U.S. Pue' ear Pogulatory c/o Loulo Joliet Renainunuco ConnicJion Centor 799 Poncevolt Pond 214 N. Ottawa Glen 'l11yn, Illinola 60137 Joliet, IL 60431 Atomic Safety and Licenning l
Poord Panel U.S. t!uclent Regulatory Commidnion Wanhington D.C.
20555 l
Atomic Safety and f,1 conning Appeal floard l
(f.S.
!!uclear Regulatory Comminnion Wanhington D.C.
20555 I
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