ML20141F741

Reply to Proposed Findings of Fact & Conclusions of Law on Conservation Council of North Carolina Contention WB-3 Re Drug Abuse During Const Filed by Other Parties.W/Certificate of Svc

ML20141F741
Person / Time
Site:	Harris
Issue date:	01/03/1986
From:	Oneill J CAROLINA POWER & LIGHT CO., NORTH CAROLINA MUNICIPAL POWER AGENCIES, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
References
CON-#186-692 OL, NUDOCS 8601090531
Download: ML20141F741 (60)

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

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(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' REPLY TO THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CCNC CONTENTION WB-3 (DRUG ABUSE DURING .

CONSTRUCTION) FILED BY OTHER PARTIES Thomas A. Baxter, P.C.

John H. O'Neill, Jr., P.C.

SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar Andrew H. McDaniel CAROLIMA POWER &~ LIGHT COMPANY Counsel for Applicants -

January 3, 1986

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'86 UNITED STATES OF AMERICA Y'7 NUCLEAR REGULATORY COMMISSION, 2 '40 IQ l.l .;

' i]GlY; BEFORE THE ATOMIC SAFETY AND LICENSING BOARDT In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' REPLY TO.THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CCNC CONTENTION WB-3 (DRUG ABUSE DURING CONSTRUCTION) FILED BY OTHER PARTIES Thomas A. Baxter, P.C.

John H. O'Neill, Jr., P.C.

SHAW, PITTMAN, POTTS & TROWBRIDGE Richard E. Jones Dale E. Hollar Andrew H. McDaniel CAROLINA POWER & LIGHT COMPANY Counsel for Applicants i

January 3, 1986 l

TABLE OF CONTENTS Page I. INTRODUCTION-------------------------------------------- 1 II. BACKGROUND FINDINGS------------------------------------- 3 III. EXTENT OF EMPLOYEE DRUG ACTIVITY------------------------ 5 A. Drug Abuse Control Policies and Procedures----------------------------------------- 5

1. The Policies and Their Communication to Employees---------------------------------- 5

2. Supervisor Drug Awareness Training------------ 6 1

3. Assessment of Program Effectiveness----------- 7 i l

B. Means for Identifying Drug Activity--------------- 10 l l

1

1. Security Measures---------------------------- 10 t

2. Urinalysis Drug Screen Testing--------------- 13 C. Assessment of the Extent of Drug Activity--------- 15

1. Undercover Drug Investigation---------------- 15

2. Employee Terminations------------------------ 26

3. Indirect Indicators-------------------------- 28 l

4. Observation by Persons Working at l the Site------------------------------------- 29 l D. Conclusion---------------------------------------- 31 IV. IMPLICATIONS OF EMPLOYEE DRUG ACTIVITY ON HARRIS PLANT CONSTRUCTION QUALITY----------------------------- 32 A. Introduction-------------------------------------- 32 B. Errors Caused by Workers Impaired by Drug Use----------------------------------------------- 34 C. Assurance of the Quality of Work Performed by Craft Workers Implicated in Possible Drug Activity------------------------------------- 36 D. Assurance of the Proficiency of Quality Inspectors Implicated in Possible Drug Activity------------------------------------------ 38 E. Conclusion---------------------------------------- 47 Appendix A h,

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January 3, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' REPLY TO THE PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CCNC CONTENTION WB-3 (DRUG ABUSE DURING CONSTRUCTION) FILED BY OTHER PARTIES I. INTRODUCTION

1. Applicants herein submit their reply to: " Attorney General's Proposed Findings of Fact on CCNC Contention WB-3 (Drug Abuse During Construction)," dated December 13, 1985 (cited hereafter as "NCAG PF [ paragraph number (s)l"); "Conser-vation Council's Proposed Findings of Fact and Conclusions of Law on Contention WB-3 (Drug Abuse During Construction)," dated December 16, 1985 (cited hereafter as "CCNC PF "); and "NRC Staff Proposed Findings of Fact and Conclusions of Law on Con-servation Council of North Carolina's Contention WB-3 (Drug Abuse During Construction)," dated December 20, 1985 (cited hereafter as " Staff PF ").1/

1/ The Board Chairman granted Applicants' counsel an exten-sion of time to January 3, 1986 to file this Reply, by tele-(Continued next page)

2. Applicants have not attempted to respond to each pro-posed finding with which Applicants disagree. Nor is the Board required to address expressly each and every individual finding proposed by every party. See Union Electric Company (Callaway Plant, Unit 1), ALAB-740, 18 N.R.C. 343, 367 (1983), citing Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 N.R.C. 33, 41 (1977), aff'd, CLI-78-1, 7 N.R.C. 1 (1978), aff'd sub nom. New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 87 (1st Cir.

1978). As to matters not raised in this reply, Applicants rely upon but do not repeat " Applicants' Proposed Findings of Fact and Conclusions of Law on CCNC Contention WB-3 (Drug Abuse Dur-ing Construction," dated December 5, 1985 (cited hereafter as

" App. PF ").

3. Applicants' reply is organized by subject matter in the same manner as their initial proposed findings. Since the other parties' proposed findings do not proceed along the same path, an index is provided (Appendix A hereto) which cross-references the paragraph numbers of the CCNC and NCAG submis-sions with the paragraph numbers of this reply.

(Continued) phone on December 23, 1985. Applicants' counsel was unable to reach counsel for CCNC and counsel for the NRC Staff during the holidays. CCNC had previously been granted an extension of time to file its Proposed Findings. .

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II. BACKGROUND FINDINGS

4. CCNC proposed several findings as an introduction to the Board's decision on CCNC Contention WB-3. CCNC PF 1-5.

CCNC first provides an incomplete description of the modifica-tions the Board made to the contention as proposed. CCNC PF 1.

In addition to striking CCNC's reference to alcohol use, the Board substituted the word " employees" for the words "construc-tion workers." Memorandum and Order (Ruling on Contentions Concerning Diesel Generators, Drug Use and Harassment at the Harris Site), at 5 (March 13, 1985).

5. Discussing the newspaper article which accompanied and formed the basis for its proposed contention, CCNC states that " Major Lanier of the Sheriff's Department was quoted as saying that drug abuse at the site was ' widespread'." CCNC PF 2. While it is appropriate for the Board to refer to this newspaper article in its decision to provide some historical context for the litigation (see App. PF 3), the CCNC proposed finding is rejected because it could be misread as an evidenti-ary finding which played some role in the Board's ultimate con-clusion. Clearly, the newspaper article is not in evidence and its contents have no evidentiary status. In fact, CCNC objected to the admission of Applicants' testimony which quoted countervailing statements from the sane article. Tr. 8781-84.

The Board sustained the objection. Tr. 8848-49. The same rule now applies to CCNC, particularly since it had the opportunity

to obtain Major Lanier's testimony on this score and failed to do so.

6. Of more significance is the absence, in the proposed findings filed oy CCNC and the North Carolina Attorney General, of any comment upon Applicants' discussion of the relevant reg-ulatory requirements which govern the Board's decision on this contention. See App. PF 7-11. In particular, the Board agrees with Applicants that the two-pronged test for examining CCNC Contention WB-3 is: (1) whethar ascertained construction er-rors caused by employees under the influence of drugs have been corrected; and (2) whether there has been a pervasive failure to carry out the quality assurance program as a result of employees working under the influence of drugs. App. PF 11.

While CCNC and the North Carolina Attorney General do not address this test explicitly, it is clear from their proposed findings, even if they were accepted at face value, that no uncorrected construction errors linked to drug use have been identified, and that no QA implementation failure linked to drug use has been identified. Both CCNC and the North Carolina Attorney General largely ignore the substantial evidence in the record of this proceeding which demonstrates that Applicants have implemented a construction QA program at the Harris Plant which provides reasonable assurance that any errors caused by employees under the influence of drugs will not go undetected and uncorrected.

III. EXTENT OF EMPLOYEE DRUG ACTIVITY A. Drug Abuse Control Policies and Procedures

1. The Policies and Their Communication to Employees

7. CCNC quotes the drug abuse portion of CP&L's Drug and Alcohol Abuse Statement of Practice and, without elaboration, asserts the conclusion that "It]he corporate policy regarding drug use on site is unclear" -- citing Tr. 8406-08. CCNC PF

39. CCNC's proposed finding is entirely misplaced. At this point in the hearing, Judge Kelley was questioning Applicants' witnesses on the second paragraph, which addresses off-site drug activity. There is no testimony which questions the clar-ity of the first paragraph, and the Board fails to see how the policy against drug activity on site could be clearer.2/

2/ As to the paragraph on off-site activity, Applicants explained the basis in judicial precedent for articulating a nexus between the policy and the employment. Tr. 8406 (Bensinger). It was also explained that the Statement, rather than exempting off-site activity, provides the basis for CP&L personnel action with regard to such activity. Tr. 8409 (Bensinger, Ferguson). The first sentence of the CP&L Chair-man / President statement in tho employees' Reference Manual is that "[d] rug and alcohol abuse whether on or off the job is a serious concern to our Company." Applicants' Ex. 31 at 2. The record demonstrates that in fact CP&L and Daniel do terminate employees for off-site drug activity. Applicants' Assessment Testimony, ff. Tr. 8893, at 12; Tr. 8405 (Flowers).

2. Supervisor Drug Awareness Training

8. CCNC notes that CP&L's Supervisor's Reference Manual on Drug and Alcohol Abuse was revised on February 15, 1985, to add three new sections which reflected training material pro-vided to the supervisors by Bensinger, DuPont and Associates in August, 1984. CCNC PF 30. Then, without citation to any addi-tional evidence, CCNC leaps to the conclusion: " Prior to that time there was little supervisory training on the [ sic) drug abuse detection." Id. Not only is this conclusion unsupported by CCNC's proposed findings, but also the record shows it to be flat wrong. Applicants' witnesses testified that supervisor drug awareness training had been presented earlier, and that similar information (reflected in the new written material) had been provided, but not in the same format.3/ Tr. 8382 (Bensinger, Ferguson).

3/ In any case, the Supervisor's Reference Manual prepared in early 1983 was not significantly modified by the February, 1985 revision, which added 9 pages of text to a Manual which had been 31 pages in length, and had already included: the Company Drug and Alcohol Statement of Practice and Interdepartmental Procedure; ten pages describing Drugs of Abuse; Observation and Documentation of Changes in Employee Behavior; Supervisor's Check-List in Observing Behavior; and Guidelines for Conducting a Disciplinary Interview. Applicants' Ex. 33.

3. Assessment of Program Effectiveness

9. CCNC proposes that "[t]he Employee Assistanco Program is not an effective part of Applicants' drug program." CCNC PF

34. The basis for this conclusion, however, is missing. It is true that participation in the program does not guarantee con-tinued employment.4/ Tr. 8371 (Ferguson). The Board does not view this obviously necessary feature to render the program in-effective. It is also true that two employees have utilized the program for drug abuse. CCNC mischaracterizes the record, however, when it asserts that "[t]here is no rehabilitation component to the program." CCNC PF 34. The testimony cited is that the two employees discussed above were not in a rehabili-tation program because the problem was with drug and alcohol abuse within the employees' families. Tr. 8372 (Ferguson).

The Employee Assistance Program refers employees to resources according to their individual problems. Applicants' Ex. 31 at 6.

10. CCNC points out that Daniel added some elements to its drug abuse control program at Harris at the beginning of 1985. CCNC PF 40. While enhancements were made, Daniel had an 4/ Applicants' Ex. 31 at 4 ("Any employee who reports person-al abuse of alcoholic beverages, drugs or controlled substances to supervision before it is observed on the job will be coun-seled and will be referred to the Employee Assistance Program.

In such cases the employee should understand that a temporary reassignment of duties may be necessary and that participation in the Employee Assistance Program does not guarantee continued employment.").

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effective drug abuse control program prior to 1985 which in-cluded: a firm policy of prohibition which was clearly commu-nicated to all employees; an extensive orientation program to explain the policy and to educate its employees on drugs; supervisory orientation during safety meetings on how to iden- ~

tify and address drug abuse; supervision monitoring employees entering and leaving the workplace; random searches; active surveillance in the field by Industrial Relations; and a pro-gram for employees to communicate violations. Tr. 8417-18 (Pannill). Mr. Bensinger testified not only that it is not un-usual for a corporation to change its drug abuse control policies over time, but that it is necessary and appropriate to do so to meet changing circumstances. Tr. 8418.

11. CCNC observes that the NRC Staff testimony was based upon a review of the documentation of Applicants' drug abuse control programs. CCNC PF 42. The Board found the Staff's comparison of the Harris programs to the program elements rec-ommended by the Edison Electric Institute to be helpful. App.

PF 26, 28. Staff witness Tobin testified that if CP&L has im-plemented the program described in the documentation, it would be effective in its goal of deterr'ng drug abuse. Tr. 8756.

CCNC overstates, however, the degree of Staff reliance on docu-mentation alone. See CCNC PF 42-44. Staff witness Prevatte, NRC's Senior Resident Inspector for Construction at the Harris site, testified that he has made first-hand observations in the field of the implementation of the drug abuse control program

at the site.5/ Tr. 8677. He further testified that CP&L's program as implemented is having a positive effect in reducing drug activities on the site. Tr. 8768 (Prevatte).

12. In any event, the Board need not rely only on Staff testimony on the question of program implementation. 121e Board heard the testimony of the key personnel who implement that program, and the record is replete with evidence of the results of program implementation. Not in its direct case, in its cross-examination of Applicants' witnesses, or in its proposed findings did CCNC identify a single element of the program de- .

scribed to us which has not been implemented in fact.

5/ CCNC follows an observation on Mr. Prevatte's familiarity with Applicants' drug abuse control programs, with the state-ment: "He relies on information cupplied him by Applicants on a voluntary basis." See CCNC PF 43. In context, however, it is clear that Mr. Prevatte was speaking of the voluntary provi-sion of information on drug-related incidents as they occur.

See Tr. 8678 (Prevatte). CCNC continues that Mr. Prevatte "could not identify the documents he had reviewed in naking his conclusion." CCNC PF 43. The record cited in no way supports this statement. Counsel for CCNC asked Mr. Prevatte if he had read testimony and affidavits filed in this proceeding, and he answered in the affirmative. Tr. 8682-83 (Prevatte). He was not asked to identify them, or whether they played any role in his conclusions. Id. In a similar vein, CCNC proposes the finding that Mr. Prevatte "had not investigated any allegations of widespread drug abuse." CCNC PF 43. The testimony cited, however, is that he had not investigated the allegations of CCNC witness Miriello. Tr. 8683-84 (Prevatte). CCNC did not establish, h~ e ver, that Ms. Miriello had reported to the NRC the incid !r *escribed in her testimony; and it is clear that her testb nad only been available for a matter of days.

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B. Means for Identifying Drug Activity

1. Security Measures

13. CCNC proposes a finding that "Mr. Joyner is the only security person on site with training in drug detection." CCNC FF 35. When Mr. Joyner testified that other security people do not undergo such training, Tr. 8630, he was referring to the contract security force. Mr. Joyner is not the only non-contract security person at the site, however, and the others have received drug awareness training. Tr. 8632 (King).

As to the contract security personnel, CP&L does not offer formal training on drug detection; but the practice of those security companies is to provide such training, and a large percentage of their employees have prior military experience which includes such training. Tr. 8361-63 (King, Bensinger).

14. CCNC also asserts that the contract security force only infrequently detects drugs. CCNC PF 35. The testimony cited (Tr. 8825, 8904) does not remotely support that state-ment.6/ CCNC then continues that "[t]he program relies on any detection of drug involvement on the worker's immediate super-visor." CCNC PF 35. The relationship of this statement to the contract security force is unclear. Detection of drug activity is accomplished by a variety of means -- supervisor and 6/ Mr. Joyner did testify that the operations Security con-tractor infrequently turns over to him construction personnel who violate site drug policies. Tr. 8826.

contract security personnel observations being among the many.

See App. PF 31-45. Further, the testimony cited, "Tr. 8379 ff.," is about the dates of revisions to CP&L's Supervisor's Reference Manual.

15. CCNC proposes a series of unrelated proposed findings on narcotic detection dog searches, with no apparent conclu-sion.7/ CCNC PF 37. CCNC apparently finds it meaningful that the dog secrches are visible to employees. See id. Applicants testified that the schedule for drug dog searches is set by Mr.

Joyner of CP&L Security and the dog handler, and that no one else on site is notified until just before the search begins.

While no effort is made to conceal the dog's presence, employees observing the dog upon arrival still do not know the areas on site which will be searched that day.g/ Tr. 8937-38 .

(Joyner), 9018-19 (Mathias, Mackonis), 9041-42 (Mackonis). The implication of CCNC's proposed findings is that employees might have the opportunity to hide or dispose of drugs in their pos-session and thereby elude the dog. Applicants' dog handler testified, however, that the searches include potential hiding 7/ In spite of the witness's explicit rejection of CCNC's use of the word " scaffolding," Tr. 9011 (Mackonia), CCNC uses the term sithout clarification in its proposed findings. CCNC PF

37. The tantimony is that the dogs have been to the top of a cooling tower, up on gridwork, and into high areas, but not on scaffolding in the sense of "two boards hanging by a rope."

Tr. 9010-11 (Mathias, Mackonis).

a/ It is not evident, in any case, how an effective search could be conducted with the dog and its handler concealed from site employees.

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locations such as designated eating areas, lunch boxes, avail-able articles of clothing, bathrooms, trash containers and far reaches of the site. Tr. 9034-35, 9042 (Mackonis). In addi-tion to the fact that disposing of drugs is expensive to employees, Tr. 9037 (Mackonis), Officer Mathias testified that in the Harris situation -- where the different areas are searched at different times on a random basis and knowledge of the search is at best relatively sudden -- the likelihood is very slim that an entire group of people, who are allegedly using drugs on a widespread basis, would dispose of their drugs and escape detection.9/ Tr. 9038. CCNC asked Officer Mathias what he would do if he were an employee in possession of mari-juana and was given five minutes' notice that a dog was going to search the hearing room. Tr. 9051. From his narcotics law enforcement experience, officer Mathias answered that an employee would take a chance and not throw away an expensive investment. Further, he testified that the average person does not understand the dog's capabilities, and that there are few places to hide drugs where the dog would not detect them. Tr.

9053-54 (Mathias). Finally, the Board agrees that if some drugs are disposed of because of the dog searches, then the de-terrent feature of the program, intended by Applicants, is being effective. See Tr. 9036 (Mackonia), 9039 (Mathias).

9/ This search technique can identify widespread drug abuse, which Officer Mathias found to be present at a high school of 1200 to 1300 people. Tr. 9038, 9040 (Mathias).

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16. CCNC also points out that the dogs do not do " body searches." CCNC PF 37. As is the com.non practice, these dogs are trained to provide an ag;ressive response when they have an indication. Mackonis and Mathias, ff. Tr. 8993, at 8; Tr.

9019-22 (Mathias, Mackonis). The use of the dogs to conduct area pearches, however, does not diminish the effectiveness of the searches. The dogs have the capability to identify, in ad-dition to stashed drugs, residual odors from more traces of drugs left on containers and paraphernalia, or from contact of the drug with almost any surface. Tr. 9032-33 (Mackonis),

9047-49 (Mathian). Drug users, based upon the experience of officer Mathias, leave behind detectable traces of drugs, so that widespread drug use would have been identified from the nearches if it were present. Tr. 9041 (Mathias).

2. Urinalysis Drug Screen Testing 4

17. CCNC asserts that "Applicanto' drug detection program relies heavily on its urinalysis program." CCNC PF 31. Again, the testimony cited, Tr. 8358, does not support such a state-ment and does not even address the degree of reliance upon these tests.

18. CCNC's proposed findings, an did its witnean at the hearing,10/ intermingle and therefore confuse the arrangements for " pre-employment" drug screen testo and those ordered for

,1,0/ See App. PF 41 n.9.

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cause. See CCNC PF 31-33. Applicants for employment with CP&L at the Shearon Harris site undergo a drug screen urinalysi test as a part of the pre-employment physical examination.

Bensinger et al., ff. Tr. 8326, at 9; Applicants' Ex. 31 at 5.

In addition, CP&L employees with less than three years continu-ous service as a regular full time employee who are not covered by Drug and Alcohol Interdepartmental Procedures,11/ but who are being considered for responsibility or assignment changes which would cause them to be covered by these procedures, are required to have a drug screen.12/ Applicants' Ex. 31 at 5.

Since there are no reasons to suspect drug involvement by any particular employee required to undergo one of these

" pre-employment" tests,13/ CP&L does not impose special precau-tions with respect to urine sample authenticity as it does for employees tested for cause. Tr. 8361-62 (Ferguson). Employees tested for cause, no matter what their length of service, are encorted by a CP&L employee until the urine sample is rendered.

Tr. 8359-60 (Ferguson).

11/ CP&L employees whose assigned work location is on a Com-pany nuclear power plant site and others who require unescorted access clearance to operating Company nuclear p)wer plants, even though their regular assigned work location may be some-where else, are covered by the Company Drug and Alcohol Abuse Statement of Practice and related Drug and Alcohol Interdepartmental Procedures. Applicants' Ex. 31 at 3.

12/ This in in excess of what would be required in the NRC proposed Fitness for Duty rule. Long et al., ff. Tr. 8653, at 7.

13/ If drug involvement were suspected, the applicant would not be hired or the employee transferred to Harris in the first place. Tr. 8362 (Ferguson).

C. Assessment of the Extent of Drug Activity

1. Undercover Drug Investigation

19. The NCAG preposed findings on the Phase One issue (i.e., whether or not there has been widespread drug use at the site, including Applicants' program to deter drug activity) address exclusively the undercover investigation conducted in late 3984. The NCAG thereby ignores the vast body of other ev-idence available to the Board for assessing the extent of drug activity, see App. PF 69-82, and ignores virtually all evidence which contradicts that which he cites. The NCAG advances no reason for the Board to ignore this other available evidence, most of which encompasses the entire time period of the Harris Project. This refusal to confront the full range of evidence before the Board is especially troublesome given the extraordi-nary reinspection burden the NCAG would have the Board place on Applicants solely on the basis of the NCAG's proposed findings.

See NCAG PF 24.

20. Beyond the fact that the NCAG has ignored major ele-monts of the record on the extent of employee drug activity, even his treatment of the evidence on the undercover investiga-tion reflects tunnel vision. A review of the NCAG proposed findings would leave one with the impression that Applicants presented no direct evidence on the investigation. There is not one citation to testimony or other evidence presented by Applicants on this subject. While the Board does not expect

any party to argue the other side's case, proposed findings which " play ostrich" and ignore entirely the evidence of the party with the burden of proof are of no assistance to the Board. Even CCNC, the proponent of the contention,14/ con-fronts countervailing evidence, as do the Applicants and the NRC Staff in their proposed findings. The Board cannot resolve complicated disputes with a totally one-sided view of the record, which unrealistically pretends that there was unanimity among the witnesses.

21. It is proposed that the Board rely ". . . on the evi-dence presented by the law enforcement officers who partici-pated in the investigation." NCAG PF 1. Curiously, however, the NCAG fails to cite any of the testimony by his own witness, Agent Williams, who was the SBI undercover operative during the investigation.15/ Instead, in his limited use of his own wit-nesses, the NCAG relies chiefly upon the testimony of SBI Su-pervising Agent Overton, whose only asserted involvement in the investigation was to attend two planning meetings. See 14/ While the NCAG petitioned to participate in the adjudica-tion of this issue under the provisions of 10 C.F.R. $ 2.715(c)

-- which does not require an interested state agency to take a position on the issues -- in his proposed findings the NCAG clearly has abandoned any previous detachment from the CCNC contention.

15/ SBI Agent Williams contradicted the other SBI witnesses on the extent of drug activity (CCNC PF 8), the potential agent safety threat from dog searches (Williams, ff. 9274, at 12),

and the wisdom of the SBI's proposed plan to extend the inves-tigation without an informant (Applicants' Investigation Testi-mony, ff. Tr. 8471, at 41).

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1 Overton, ff. Tr. 9274. The Board does agree with the NCAG pro- k ,.

posed findings' reliance upon the testimony of the Wake County Sheriff's Department (WCSD) personnel'instead of the testimony of the much less involved SBI witnesses. App. PF 65. The NCAG does not explain, however, why we should not rely at well upon i

the testimony of CP&L's experienced commissioned law enforce-4 ment officers (Mr. King and Mr. Joyner) who-part cipated in the investigation, or upon the testimony of the former Administra-tor of the U.S. Drug Enforcement Administration (Mr.

Bensinger).

22. CCNC cites the testimony of Applicants' witness King h

for the proposition that the use of metal detectors had the ef-feet of making drug ucers " skittish." CCUC PF 17. In fact, at the cited transcript page, Mr. King refused to agree with the [

questioner that this would be the effect. Tr. 8524 (King); ge,e also Applicants' Investigation Testimony, ff. Tr. 8471, at '

16-19; Tr. 9197 (Ifensley) .

23. CCNC, again based on its misunderstanding of this

[3 record, proceeds with the proposed finding that "[g] ate ,.

searches also began during the investigation and indeed found .

e two workers with drugs." CCNC PF 17. The use of gate searches did not begin during the investigation -- only the use of k hand-held metal detectors for random exiting searches. See App. PF 36 (containers previously routinely opened for inspec-tion as employees exit and randomly as they enter). The testi-many cited by CCNC discusses the particular incident, raised in t'

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the testimony of SBI witness Burch, where two employees known to be bringing drugs onto the site were stopped from doing so.

Tr. 8614 (Joyner). This was not a routine gate search which happened to " find" two workers in possession. In his discus-sion of this incident, the NCAG ignores the testimony by Deputy Hensley and Lt. Self in which they acknowledged that the plan was to stop and arrest the two employees before entering the site, since Hensley could not get them to sell to him. Compare NCAG PF 5 with Tr. 9197-98 (Hensley, Self) and Applicants' In-vestigation Testimony, ff. Tr. 8471, at 21-23.

24. The NCAG proposes findings, based upon a purported statement by the confidential informant, that CP&L people 16/

were searching stash areas identified by Deputy Hensley. NCAG PF 6; Burch, ff. Tr. 9274, at 4. As the NCAG should be aware, the significance of the informant's statement, if not the accu-racy of it, was entirely undermined by Deputy Hensley's testi-many that he did not inform CP&L of any stash area locations of which he was aware. Tr. 9197 (Hensley); Applicants' Investiga-tion Testimony, ff. Tr. 8471, at 20.

25. CCNC describes the investigation as flawed because of the scope of Deputy Hensley's contacts on the first shift. See CCNC PF 16. Deputy Hensley testified that the 61 employees he 16/ The SBI tesrimony attributes to Lt. Self a statement that Mr. King and Mr. Joyner were identified by the informant.

Burch, ff. Tr. 9274, at 4. In contrast, at the hearing Lt.

Self could not remember whether or not the informant had iden-tified particular persons or even CP&L Security. Tr. 9220-21.

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j w i actually identified came from a number of different crafts, and that while initiylly he somewhat restricted himself to the geo-graphical area where the informant's acquaintances worked, as the operation progressed he moved throughout the entire plant.

Tr. 9265-66 (Hensley). Similarly, the NCAG suggests that the i - small number of purchases made on the first shift was due to group dynamics. See NCAG PF 8. Accepting the proposition that Deputy Hensley might have attracted suspicion if he purchased drugs contemporaneously from several dealers who knew each other, there is no reason why he could not have ceased making purchases from the initial circle of employees and moved into another group on the first shift -- if there was one -- to buy drugs. It remains a compelling inference that the law enforce-ment agencies proposed moving their concentration to the second shift because they were not finding new suspects on the first shifti Applicants' Investigation Testimony, ff. Tr. 8471, at 40-41 and Attachment 5; Tr. 8589 (King); App. PF 67.

26. The CCNC and NCAG proposed findings on the termina-tion of the investigation and CP&L's plan to initiate drug dog searches highlight the professional disagreement already acknowledged. CCNC PF 12-13; NCAG PF 9-12; App. PF 62-63, 66-67. One additional observation on the NCAG proposed find-ings is in order, however. The NCAG cites testimony by SBI witness Overton that CP&L insisted on the use of drug dogs over his objections, and that in his opinion CP&L gave no valid rea-son for the use of the dogs. NCAG PF 9, 11. Since none of the

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law enforcement witnesses questioned the effectiveness of searches with narcotic detection dogs, the Board finds the rea-l son for adding such a search program to be obvious. Given the experience to date with this investigation,17/ it is under-l l standable that in mid-December, 1984, CP&L did not want to rely solely upon an extended investigation and to forego its own vigorous enforcement of drug abuse control policies. See App.

PF 67.

27. The parties agree on the record with respect to the results of the investigation (8 arrested, 53 identified),1g/

and that Deputy Hensley testified that he observed another 40 employees consuming drugs. App. PF 64; CCNC PF 11; NCAG PF 3-4. CCNC, however, attempts to meet Applicants' testimony questioning whether Hensley could have been close enough to those 40 employees to be sure he was observing drug consump-tion, and yet too far away to obtain any identifying informa-tion from the hardhats. Applicants' Investigation Testimony, ff. Tr. 8471, at 42-44; Tr. 8974-77 (Joyner). CCNC proposes that the testimony of various witnesses (yet CCNC cites only Mr. Joyner's) on the use of hard hats for identification pur-poses was inconclusive since the numbers could be difficult to 17/ See App. PF 65.

Ig/ The Staff incorrectly describes this total of 61 as the number of names of suspects Applicants provided to the police.

See Staff PF 43. Applicants provided the undercover agents, at the outset of the investigation, with a list of 21 suspected employees. Tr. 8568 (King).

read from a distance.19/ CCNC PF 36. The test!.mc.., _ited by CCNC does not support this proposition. In fact, the witnesses testified that even if the angle of vision was bad, the employee under observation undoubtedly would move his head soon and permit identification. Tr. 8985-86 (Joyner, Bensinger).

Mr. Joyner also testified that if it were necessary to move a substantial distance to identify an employee he would do so if he thought drugs were being consumed, and that if the employee walked off he would follow. Tr. 8987-88.

28. Discussing the quantities of drugs observed, CCNC attributes to Deputy Hensley testimony that "in several in-stances" dealers from whom he purchased had available " pound amounts of marijuana and hashish." CCNC PF 15. In contrast, Deputy Hensley actually testified that on one occasion there were-15 16-gram bags of hashish.20/ Tr. 9226-28, 9265 (Hensley).

29. CCNC and the NCAG propose a finding that Deputy Hensley saw employees doing safety-related work using or sell-ing drugs, citing Tr. 9223. CCNC PF 10; NCAG PF 5. In fact, 19/ There are only 8 to 15 employees in a typical crew. The crew identification markings on the hats are close to 3 inches in height and could be read by a person with 20/20 vision from a distance of 100 to 150 feet. Tr. 8975-76 (Joyner). Employee names and identification codes are on the hat in smaller fig-ures. Id.

20/ Further, 16 (accounting for the one purchased by Hensley) 16-gram bags, or 256 grams, are equivalent to slightly over one-half pound.

( _ .

Hensley testified that he saw employees doing " safety work,"

and then was asked how he knew the work was " safety-related."21/ Tr. 9223. Deputy Hensley explained that he saw inspectors in white hard hats, but that he did not know whether their work was safety-related or not. Tr. 9223-24. He also saw some with red hats who are safety inspectors in the sense of fire and industrial safety. Tr. 9224. Deputy Hensley sub-sequently confirmed that he could distinguish hard hat colors, but not whether an employee was doing nuclear safety-related work. Tr. 9264-65 (Hensley); Applicants' Investigation Testi-mony, ff. Tr. 8471, at 25. In addition, the record shows that CP&L inspectors wear the light blue hats all CP&L employees wear, but with QA insignia on the side. Tr. 8978 (Joyner).

The Construction Inspection (CI) staff wear dark blue hats, while supervisors (including QA and CI supervisors) wear white hats. Tr. 9323-24 (Plueddemann).

30. CCNC and the NCAG propose findings of fact based upon so-called " intelligence" being developed by Deputy Hensley.22/

21/- The word " safety" used among construction personnel does not necessarily equate with the term " safety-related" as used in NRC regulation.

22/

C the While SBI witness Burch refers to intelligence gathered by officers," Burch, ff. Tr. 9274, at 8, there is no indica-tlon that the SBI acquired any meaningful information not pro-vided by the WCSD. SBI Agent Williams used the word "intelli-gence" to describe what the informant had told him and Agent Williams had taken no steps to confirm or to substantiate on his own. Applicants' Investigation Testimony, ff. Tr. 8471, at

43. The Board does not give weight to such uncorroborated as-sertions.

See CCNC PF 10, 14; NCAG PF 5 This word, which has the so-phisticated gloss of authentic.ty because it normally describes information which is not revealed, does not imply reliability from an evidentiary standpoint unless the basis for the " intel-ligence" can be examined. It can be applied, in law enforce-ment circles, to mere rumors or interesting sounding leads to be pursued. While this process of investigation is under-standable, the Board cannot base significant conclusions on ev-idence which, through no one's fault, remains unreliable.

31. For example, it is asserted that Deputy Hensley obtained information that a supervisor was bringing pound quan-tities of cocaine into the plant from Florida, but that he had not been identified when the investigation ended. NCAG PF 5.

-CCNC goes'further and suggests that one of the identified sus- .

pected employees was-distributing for this alleged supervisor.

CCNC PF 14. The testimony, however, is that Deputy Hensley had not identified a distributor, let alone determined that the ru-mored flying supervisor actually exists. Tr. 9200 (Hensley);

Applicants' Investigation Testimony, ff. Tr. 8471, at 28-30.

Deputy Hensley testified forthrightly that information on the theoretical supervisor was simply general conversations with employees. Tr. 9182,.9185-88 (Hensley).

32. " Intelligence" is also cited as the basis for Deputy Hensley's testimony that there were several cliques dealing drugs at the site. F.CNC PF 10; NCAG PF 5. He testified that these cliques involved anywhere from 100 to 200, including the

100 previously arrested, identified or seen. Tr. 9180, 9263-64 (Hensley). Deputy Hensley testified that the basis of his knowledge on these cliques was general conversations with employees with whom he was dealing on site, and who advised him that drugs were available. Tr. 9250-52. In an effort to probe the status or quality of this information, Applicants posed the question: Did you provide CP&L, in addition to the names of 61, with any intelligence on cliques that was far enough along that CP&L could follow up on it after the investigation was over? Tr. 9204. Deputy Hensley answered:

I provided CP&L with all the informa-tion I had when the investigation was ter-minated. Now, to whether there was any-thing that they could follow up later or not, I couldn't answer.

Id. (Hensley).

33. Addressing Deputy Hensley's opinion that drug'use at Harris was widespread, CCNC describes him as "an experienced agent." CCNC PF 10. No evidence is cited in support of this proposition. In fact, Deputy Hensley had never before partici-pated as an undercover agent in a narcotics investigation. Tr.

9167-68 (Hensley). His boss, Sheriff Baker, did not consider ,

him to be experienced. See Applicants' Investigation Testi-mony, ff. Tr. 8471, at 12; Burch, ff. Tr. 9274, at 2; Williams, ff. Tr. 9274, at 5. The NCAG quotes Deputy Hensley's general conversations with employees as the basis for Hensley's opin-ion. NCAG PF 13. Deputy Hensley, however, was immersed in a group of drug dealers and users to whom he had been introduced

by the confidential informant, who was an experienced drug J-user. App. PF 68; Tr. 9249 (Hensley). Without questioning that Deputy Hensley's impression is an honest one from his standpoint, it is likewise clear that he did not have a repre-sentative experience in terms of his association with Harris site employees. In addition, while he was trying to be helpful to the Board, Deputy Hensley was at best uncertain in his re-sponses to questions which asked him to estimate the overall extent of employee drug use. He did testify, in response to Judge Carpenter, that somewhere in the area of 5 to 12 percent probably would be accurate. CCNC PF 10. In the same answer he testified, "I don't know," and qualified his ability to esti-mate. Tr. 9245. Minutes later, when asked by Judge Kelley whether he had a considered judgment or an estimate for what he thought the percentage of drug use was at the site, Deputy Hensley testified: "No, sir, I do not." Tr. 9256-57.

34. CCNC cites SBI witness Burch for the proposition that drug use at the plant was widespread, and SBI witness Williams, the undercover operative, for the proposition that it was not.

CCNC PF 7, 8. The NCAG, by contrast, simply advances Ms.

Burch's view that the resulta of the undercover operation can-not be used to show that drug use at the plant was not wide-spread. NCAG PF 14. Incongruously, however, the NCAG proceeds to propose that the "results of the investigation presented to the Board" offer overwhelming evidence to support its conclu-sion that drug use at the Harris Plant was widespread. Id.

-Yet,.SBI witness Burch testified that the results of the under-

. cover investigation and the fact that over 200 employees had been terminated historically did not in and of themselves rep-i resent widespread drug use. Tr. 9312. It is also completely unclear what the NCAG means by the "results of the investiga-tion." The numbers presented by Deputy Hensley of 100 to 200 involved-employees include the speculative 40 supposedly seen but not identified, and his estimate of up to 100, based on general conversations, involved in the so-called " cliques."

Even-giving this evidence the benefit of the doubt in terms of its reliability and weight, it does not reflect widespread drug use in a population of over 6,000 employees. The other reli-able evidence in the record -- not addressed at all by the NCAG ,

-- indicates strongly that drug use has not-been widespread. -

2. Employee Terminations

35. CCNC provides the breakdown by year of the number of employee terminations involving suspected drug activity. CCNC PF 21.

In assessing this data, however, it was noted that 60 4

of the employees terminated in 1985 were actually identified in 1984, but were not released until the beginning of 1985. There is, then, a roughly equal distribution between 1984 and 1985 of the numbers of policy violators identified (87 in 1984; 103 in 1985). Tr. 8806-07 (Hindman). As CCNC notes (CCNC PF 22), -

< there are four reasons why the number of employees identified increased in 1984: an increase in drug use in society 4

1 J

f y ,- ,,,--e. . . - - - . , ~ . , - - , y ,,,,,

, , , , - - ,4 a,7---g---r,--g,-,- --, , - - - - --------,-.--------n.

. generally; a doubling of the site population in 1984 over 1983; I

't more cover and concealment due to the changing nature of the ,

I work environment on site; and heightened awareness of drug abuse control problems (including the attention which the un-dercover investigation received). Tr. 8899-8900, 8902 (Hindman); 8973-74 (Bensinger).

36. CCNC asserts, citing Tr. 8504, that the 218 employee terminations include 29 individuals identified from a six-week investigation in 1982, and that these 29 plus the 61 identified in the 1984 investigation represent 40% of employee termina-

- tions. CCNC PF 23. Applicants' witness King testified that a five to six week intelligence operation conducted in 1982 iden-tified 29 individuals who were involved in approximately 42 in-cidents (some of which were off site) and several of whom were -

removed from the job site. Tr. 8503-04, 8812-13. While the record is clear that any of the 29 later determined to be in-volved with drugs were released, and that not all of them were determined to be involved, the actual number released was not specified because that data had not been researched.23/ Tr.

. 8813 (King). In short, there is no evidentiary basis for this CCNC proposed finding, or, therefore, for the suggestion that over 40 percent of the workers terminated have been identified through two investigations.24/ CCNC PF 23. The record cited l 23/ Contrary to CCNC PF 23, then, Mr. King did not testify that the 29 are-included in "the matrix." See Tr. 8813.

i 24/ In addition, CCNC ignores the fact that prior to the 1984 investigation, CP&L Security provided the law enforcement offi-cers with a list of 21 suspected employees. Tr. 8568 (King).

l

for this conclusion -- Tr. 8612 -- is a discussion between the Board and counsel.

3. Indirect Indicators

37. CCNC PF 27 addresses, largely in isolation, the dis-tinction between sellers and consumers of drugs. Once more, one cannot read the record cited by CCNC and find any support for CCNC's proposed findings. Mr. Bensinger was not attaching levels of " concern" with sellers versus buyers, but rather was explaining that law enforcement would be more interested in major dealers, and that the quantitites of drugs identified at Harris are not indicative of a major drug business. Tr.

8596-98; see also Tr. 8344, 8575 (Bensinger).

38. CCNC proposes an unreliable mathematical extrapolation from a dog search of employee parking lots. CCNC PF 28. The errors in this proposal are compounding. First, CCNC states it was an 8-hour search, whereas the witness testified that she spent "the whole morning" on it. Tr. 9028 (Mackonis). Second, CCNC notes that the dog made 11 indica-tions, but fails to acknowledge that so. arches of 10 of those vehicles the following day were negative. (one employee re-fused to permit a vehicle search). Mackonis and Mathias, ff.

Tr. 8993, at 11; Tr. 9029-30 (Mackonis). While there are sev-eral potential explanations for the dog's indications, id., the Board has no basis for assuming that drugs were actually in all or any of the vehicles.

39. CCNC notes, in CCNC PF 49, Dr. DuPont's testimony (although CCNC's citations to the record are erroneous) that in American society males in the 18 to 25 year age group have the highest rate of drug use. DuPont, ff. Tr. 9994, at 5. CCNC then cites age and gender data for current CP&L site employees, and concludes that "[t]he Harris work force is primarily young males." CCNC PF 49. The very data identified in CCNC's pro-posed finding, however, contradict CCNC's conclusion. Only 77 of the 955 CP&L employees (8%) are males in the 18 to 25 year age group. Id. For Daniel / Davis employees, males under 25 constitute 13% of the employees, and for Quality Assurance in-spectors, they represent 5% of the employees. Applicants' Ex.

53 (Supplemental Affidavit of William J. Hindman, Jr. on Gender and Age Information About Certain Harris employees (CCNC Con-tention WB-3), dated November 26, 1985).

4. Observations by Persons Working at the Site

40. In its brief reference to its only voluntary witness, CCNC fails to address the convincing challenge Applicants presented to Ms. Miriello's credibility and to the basis for her opinion. Comparc CCNC PF 9, with App. PF 78-80. Lines 13 through 17 of Staff PF 42 inappropriately address testimony by Ms. Miriello which was stricken by the Board and is not in evi-dence.25/ See Tr. 9148, 25/ The Staff incorrectly describes Applicants' Exhibit 41 as a Quality Check form completed by Ms. Miriello when she left (Continued next page)

41. CCNC recites the testimony of Applicants' witnesses King and Joyner that they felt they had no basis upon which to estimate the number of workers currently using, possessing or selling drugs on site. CCNC PF 24. CCNC then mischaracterizes the testimony as an unrealistic " position that there are no workers on site involved with drugs. " See id. That is not at all what the witnesses said. They testified that they had no knowledge of anyone currently involved with drugs, that if they had such knowledge the employee (s) would no longer be working at Harris, and that they had not formulated an estimate of cur-rent activity because they had no basis for one. Tr. 8814-18 (King, Joyner). When asked, Mr. Joyner readily acknowledged that there may be drug use currently at Harris. Tr. 8823-24.

The Board understands and respects these witnesses' .

unwillingness to guess, and does not view the testimony as any-thing but completely candid.

42. CCNC also misunderstands Mr. Bensinger's testimony, which was not that the users identified in 1985 (roughly 85 to 100) represented 20 to 30 percent of the total. See CCNC PF

24. Rather, Mr. Bensinger was saying that the 85 to 100 is (Continued)

CP&L employment. Staff PF 42. Rather, this form was completed by Ms. Miriello when she left the employment on site of Nuclear Energy Services (prior to her employment with CP&L). Neverthe-I less, it is correct that this form was executed by Ms. Miriello on February 19, 1985, after incidents described in her testi-mony. See App. PF 80.

relatively close to, and does not deviate more than 20 to 30 percent from, the total. See Tr. 8967-68 (confirming that the aggregate effect of the various identification measures is to identify more than 50 percent of the users).

D. Conclusion  ;

43. The NCAG proposed findings, as discussed above, are limited and therefore of little value. While CCNC covered more ground, the degree of accuracy of its proposed findings is not high. Both would have the Board rely on the opinion testimony of Deputy Hensley as the basis for a conclusion that drug use is widespread.26/ While Deputy Hensley was a helpful and j forthright witness, there is uncertainty in his testimony which ,

ventured beyond the hard results of the investigation. The di-verse sources of information, both direct and indirect, on the drug activity, and the substantial evidence in the record, lead clearly to the conclusion that drug use at the Harris site has not been widespread as CCNC and the North Carolina Attorney General contend. See App. PF 84, 85.

26/ While CCNC discusses definitions of " widespread," CCNC PF 26, it makes no effort to show that the evidence satisfies any of them. ,

IV. IMPLICATIONS OF EMPLOYEE DRUG ACTIVITY ON HARRIS PLANT CONSTRUCTION QUALITY A. Introduction

44. Applicants sought to rebut the presumption of possi-ble construction deficiencies due to drug use by Harris site employees by establishing that (1) any employees who might have been working at the Harris Plant while impaired by drug use would not generate errors which are different in kind from those made by other employees and, as such, which would be identified by QA personnel the same as other errors; (2) all safety-related work performed by craft workers is subjected to quality inspections to identify and ensure correction of deficiencies; and (3) the work of QA inspection personnel itself is routinely subject to surveillance and audits and, if an inspector is implicated in drug activity, the inspector's work is re-evaluated or physically reinspected. CCNC first misstates Applicants' position (CCNC PF 45) by suggesting that Applicants do not reinspect work performed by inspectors inpli-cated in possible drug activity, and then asserts that Appli-cants' reliance on its construction QA program is unrealistic in light of CCNC PF 46-58. Au will be shown infra, CCNC's pro-posed findings are no more than a series of non sequiturs and fabricated statistical manipulations which do not support the baldly asserted conclusion (CCNC PF 59) that "there is not a l reasonable assurance" that operating the Harris facility could

be conducted without endangering the health or safety of the public or in compliance with NRC regulations. The Board finds CCNC's findings regarding the reinspection issue to be particu-larly unhelpful.

45. The North Carolina Attorney General would have the Board find "that widespread drug use has affected construction quality of safety-related systems and that the Applicant (sic) has failed to reinspect safety related work done by known drug abusers." NCAG PF 15. However, the NCAG has failed to identi-fy a single instance where drug use has affected construction quality of the Harris Plant. Furthermore, the NCAG's proposed findings are not support'ed by references to the record, con-trary to the Commission's rules at 10 C.F.R. $ 2.754(c) (see NCAG PF 18-21); are inadequately developed; misconstrue the facts; fail to acknowledge, much less attempt to refute, the contrary evidence in the record; rely on speculation and bald assertions; and would require the Board to rely on extra-record material that is not even identified sufficiently for an inde-pendent review. We note too that the NCAG took no active part in cross-examination of the witnesses proffered by Applicants and the NRC Staff at the Phase Two hearing, and further note the apparent fact that the NCAG's office lacks any particular expertise in matters pertaining to nuclear safety (as opposed to criminal investigations involving drug activity). For all of these reasons, the Board finds the proposed findings of the NCAG do not assist this Boa,rd in evaluating the evidence in the record of this proceeding.

B. Errors Caused by Workers Imoaired by Drug Use

46. The North Carolina Attorney General's proposed find-ing on this subject is accurate as far as it goes, but is lim-l l ited to a brief discussion of the effects of an intoxicated l

state from drug use. NCAG PF 16; see also App. PF 90. The NCAG fails to establish that any Harris employees have been in such a state on the job,27/ and ignores evidence that drug use occurs most often away from the job, and that any drug impaired I employee would not produce errors different in kind from those made by other employees and identified through the quality as-surance program. See App. PF 88-94.

47. CCNC incorrectly asserts that Dr. DuPont's conclu-sion, on the qualitative similarity between drug-induced errors and errors from other causes, is " based on an analogy between alcohol and drug abuse." CCNC PF 46. Rather, this conclusion is based upon Dr. DuPont's substantial experience in the treat-ment of drug abusers. DuPont, ff. Tr. 9994, at 12; Tr.

10,013-14, 10,066-67 (DuPont). The analogy Dr. DuPont made be-tween drug and alcohol abuse, only for illustrative purposes, was used to explain patterns of use on the job and away from h

the job, and in occasional use versus frequent use. Tr. 10,000 (DuPont); DuPont, ff. Tr. 9994, at 5-6.

27/ Applicants' witnesses testified that they know of no in-stances of employees being impaired by drugs on site. Tr.

8841-42 (Joyner, King, Hindman).

48. CCNC continues with the observation that a drug abuser is more likely to be involved in illegal activities, such as purchasing and selling drugs, and theft. CCNC PF 46.

CCNC does not explain, however, why this fact might in any way undermine Dr. DuPont's testimony on the kinds of errors gener-ated by a drug-impaired employee.

49. In response to Dr. DuPont's testimony that crew work situations will often result in on-the-spot corrective action if employees consume drugs in a way that impairs performance',

CCNC notes that this phenomenon would not occur if the entire crew were under the influence of drugs.2@/ CCNC PF 48. CCNC does not establish that this has ever occurred, however,, or explain how it could go undetected if it did occur. CCNC pro-ceeds to cite Dr. DuPont's agreement with the general proposi-tion that there are social situations 29/ where drug use is ac-cepted, although they are relatively isolated in American society. Id., Tr. 10,007 (DuPont). There is no suggestion, however, that the Harris workplace is such a social situation.

Dr. DuPont testified that in American society there are very strong values against drug use, so that most users of illegal drugs are constantly confronted with social pressure against 2H/ Dr. DuPont did not testify, however, that in such a situa-tion " errors could not be controlled." See CCNC PF 48.

29/ CCNC misrepresents the record by tacking on "or work situ-ations" here -- which was not part of the question or the testimony in response to it. Compare CCNC PF 48 with Tr.

10,007 (DuPont).

t 6

their use. Further, he explained that a profound decrease in drug activity occurs when a young person enters the work force where the tolerance of such activity is low. Tr. 10,007-08 (DuPont). It follows that the decrease would be even more dra-matic where the employer, as in this case, actively campaigns against illegal drug activity. .

50. Dr. DuPont did not testify that drug sales on site would have a detrimental effect on employee attitudes about drug use. Compare CCNC PF 48 with Tr. 10,030 (cited by CCNC).

51. Neither CCNC nor the NCAG have called into question the important conclusion that any errors generated by a drug-impaired employee would not be different in kind from other er-rors which are identified through the construction QA program.

App. PF 92-94.

C. Assurance of the Quality of Work Performed by Craft Workers Implicated in Possible Drug Activity

52. Neither CCNC nor the NCAG deal directly with the steps taken by Applicants to evaluate the quality of work per-formed by craft workers implicated in possible drug activity.

See App. PF 95-107. Nor do they quarrel directly with Appli-cants' ietermination that all safety-related craft work per-formed by employees implicated in drug activity was subject to independent inspections. App. PF 95. Both CCNC and the NCAG ignore the detailed evidentiary record regarding.the sequential layers of review and various indices of the efficacy of the Harris construction QA program, t

53. The NCAG deals with this subject in one two sentence finding (NCAG PF 17). The first sentence incorrectly states

" Applicant (sic) has not reinspected the work of 218 craft workers it has terminated for suspected or confirmed drug use."

As is abundently clear from the record (see Applicants' Ex. 51 at Chart II-2 and App. PF 95), of the 218 Harris site employees implicated in any way in possible drug activity 146 were craft workers.39/ Not all of these workers performed safety-related work. See Applicants' Ex. 51 at Chart II-1. As a practical matter, it is not pcssible to determine with certainty all work or even all systems or components on which work was performed by individual craft workers at all times. Since safety-related craft work performed by employees implicated in drug activity was subject to independent inspections, reinspection of craft work -- even if feasible -- was not necessary. App. PF 95.

The second sentence of NCAG PF 17 is, indeed, correct -- Appli-cants rely on the efficacy of the Harris construction QA pro-gram to detect errors made by craft workers, whether the errors are the result of impairment due to drug use or for any other cause. See App. PF 96.

54. CCNC's sole statement in contravention to Applicants' findings on this issue is the naked assertion that Applicants' L

30/ The significance of this incorrect statement is not so much in the numerical difference between 218 and 146 as in the demonstrated lack of familiarity with the facts in this case by the representative of the NCAG who drafted the proposad find-ings.

position is " unrealistic." CCNC PF 45. The remainder of CCNC's proposed finding deals with the QA attribute surveil-lance program and reinspection of the work of 27 QA personnel implicated in possible drug activity. These issues are addressed in the next section.

D. Assurance of the Proficiency of Quality Inspectors Implicated in Possible Drug Activity

55. The NCAG takes issue with Applicants' reinspection plan for QA personnel implicated in possible drug activity be-cause it utilizes a sampling methodology. NCAG PF 18. The NCAG characterizes " Applicants' reinspection of drug abusing QA personnel [as] spotty at best." NCAG PF 19. CCNC attempts to show that Applicants have overstated the proficiency of QA in-spectors by not comparing the number of deficient attributes with the number of components reinspected, which CCNC assumes would result in a lower inspector proficiency rating. CCNC PF 54, 56. Neither argument has any merit.

56. The NCAG attempts to support its allegation of

" spotty" reinspection of the work of QA personnel implicated in possible drug activity by citing to " examples" of inadequate reinspection. The NCAG states without explanation or citation that "the work of three of these QA personnel which related to Radiographic Examination (RT) was not reinspected." NCAG PF 19.A. In fact, RT work done by four NDE inspectors was not reinspected because each of the four inspectors participated as l

l

a member of a two-man team in making radiographic set-ups and film exposures. Certified as Level II - Limited (shooter only) in RT, these four inspectors did not perform interpretation of RT film for final acceptance or rejection of the items radio-graphed. RT film is subject to two independent reviews /

interpretations by cther Level II personnel qualified for film interpretation. App. PF 117. The NCAG offers no explanation for the alleged inadequacy of Applicants' failure to reinspect the work of these four RT inspectors, where their work was not interpretative and was subject to independent reviews.

57. The NCAG continues, disapprovingly, "only 284 items of their work on liquid penetrant and magnetic particle exami-nations were reinspected." NCAG PF 19.A. The sample size.was determined based on Military Standard 105-D -- a sampling sys-tem that has acceptablity and widespread usage in both the de-fense and nuclear industries. Trainor, ff. Tr. 10,077B, at 15.

The NCAG did not attempt to challenge the appropriateness of inspecting a statistically significant sample of an inspector's work to determine the inspector's proficiency. See id. at 18-19. Nor did the NCAG challenge the conclusions reached by Applicants' witness Trainor that, based on the reinspection data from the work of the inspectors implicated in drug activi-ty, it can be concluded with 99 percent confidence that inspec-tor proficiency will be greater than 95 percent and that it will lie in a performance range of 99.9 percent to 96.1 per-cent. Id. at 19; App. PF 125. Of the 284 items reinspected, 1

M ____ . __

only four minor deficiencies -- all corrected by buffing --

were found. App. PF 117. The NCAG certainly has not explained why he would suggest such a reinspection is " spotty at best."

58. The NCAG, in the face of convincing statistical data demonstrating that the inspector proficiencies for QA personnel

. implicated in possible drug activity are no different than reinspection results of the inspector population as a whole, offers wild speculation to explain the favorable reinspection recults. "This high rate," the NCAG opines, " suggests that the reinspection sample size was too small, or the reinspection was faulty, or the reinspectors were drug users themselves." See NCAG PF 19.B., 19.C., 19.E., 21. The reinspection sample size was based on Military Standard 105-D (discussed supra) and the inspectors who performed reinspections were specially assigned, certified inspectors, none of whom were implicated in drug usage. Tr. 10,135-36 (Forehand). Rather, what the data strongly suggest is that the 27 QA inspection personnel in question were not under the influence of drugs while performing their inspection activities. App. PF 126. None of the 27 inspection personnel implicated in possible drug activity were identified as having used or possessed drugs at the Harris site. Id.

59. Fourteen QC inspectors have been terminated because of a positive drug screen test or refusal to take the drug screen test. The work of eight of these QC inspectors was reinspected pursuant to Harris Plant Procedure CQA-7 and the l

overall inspector proficiency rate was 99.7 percent. App. PF 119; see NCAG PF 19.C. The NCAG states: "No explanation has been given why none of the work of six of those QC inspectors was reinspected." In fact, certain of the work of these six QC inspectors was reinspected and justifications for not reinspecting certain other work was discussed in detail. See App. PF 120-124.

60. The NCAG notes that the work of certain terminated QC inspectors, "who field-tested concrete and performed sieve analysis, grout testing and caulk weld (sic) (cadweld) inspec-tions" or who were involved in grout placement or concrete rebar inspections, was not reinspected. NCAG PF 19.D., 19.E. -

The reasons that no reinspections were performed were discussed in detail in App. PF 120-123. The NCAG simply chose to ignore the explanations. Similarly, the NCAG failed to respond to Applicants' straight-forward explanation of why the work of an inspector who only participated as a team member in system walkdowns need not be reinspected. Compare NCAG PF 19.F. with App. PF 124.

61. The NCAG weakly attempts to cast aspersions on Appli-cants' construction QA program by hinting that a search of NRC's records of inspections will reveal persistent problems with QA at the Harris site. NCAG PF 20. Here, as generally elsewhere, there is no citation to record evidence -- only naked assertions. To the contrary, the NRC Staff has been uncharacteristically complimentary regarding the construction QA program at the Harris Plant. See App. PF 105; Staff PF 59

n. 16.

62. CCNC PF 50 states that several inspectors performed inspection work that could not be reinspected -- such as inspection of concrete placement, reinforcing steel bars and embedded plates -- and which had safety significance. CCNC ig-nores Applicants' evaluation of the work performed by such in-spectors and the various reasons why Applicants are confident of the quality of such work. Applicants' evaluation included a review of inspector proficiencies for implicated inspectors re-sulting from reinspection of certain work that could be reinspected, a review of supervisory audits, an evaluation of independent verifications of concrete placement, rebar place-ment and placement of embedded itea by other personnel, and, in some cases, an evaluation of independent testing to confirm concrete strength or tensile strength of cadweld splices on robar. See App. PF 120-123. CCNC PF 50 is incomplete and therefore misleading.

63. CCNC PF 51 may leave the impression that the QA attribute surveillance program only reinspects work that has been performed in the last eighteen months. While the program was initiated in June 1984, the reinspections include samples of all the safety-related work done at the Harris site from the early phases of construction, with the exception of certain work -- such as concrete placement -- that cannot be reinspected. Tr. 10,095-96 (Parsons).

l

64. CCNC's principal attack on Applicants' reinspection program to verify the quality of work performed by QA inspec-tion personnel implicated in possible drug activity is to quarrel with the calculation of inspector proficiencies based on reinspection of attributes. CCNC argues that one should compare the number of observed deficiencies with the number of components inspected. Assuming the worse case where each defi-ciency identified by Applicants as a result of reinspection equates to a " defective" component (i.e., assuming there is never more than one deficient attribute per component), CCNC then calculates component inspection proficiencies from 82.4 percent to 91.5 percent for the QA attribute surveillance pro-gram (CCNC PF 54) and 90 percent to 97.6 percent for certain inspectors (CCNC PF 56). CCNC attempts to clothe this approach with a mantle of legitimacy by asserting that " Byron looked at components rather than attributes" and citing to a statement by Applicants' witness Trainor (Tr. 10,116). CCNC PF 52. In fact, both Mr. Trainor and Mr. Parsons testified that their un-derstanding of the calculation of inspector proficiencies in the Byron proceeding was based on a comparison of deficiencies with total attributes and not components. Tr. 10,123 (Trainor, Parsons). More importantly, the Byron decision itself reflects such a comparison and the fact that the 95 percent /90 percent standard for objective and subjective inspections is based on reinspection of attributes. See App. PF 101, 102.

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65. During the hearing Mr. Eddleman pursued this line of inquiry on cross examination -- attempting to equate any defi-cient attribute in a component with a " defective component."

Mr. Trainor rejected that suggestion. Tr. 10,124 (Trainor).

As the record demonstrates, most deficient attributes uncovered during reinspections were minor in nature. See Applicants' Exhibit 51 at 49-54. While this entire discussion is somewhat academic -- since there is no definition of a " defective compo-nent" -- it is likely that very few of the deficiencies in attributes uncovered during reinspections would result in a classification of the entire component as " defective". This is particularly true since none of the deficiencies uncovered dur-ing reinspections of the work of inspectors who were implicated in possible drug activity or during the course of the QA attribute surveillance program were of safety significance.

App. PF 103. Furthermore, there is nothing in the record to support CCNC's hypothesis that each deficiency uncovered would be in a separate component. Tr. 10,102 (Parsons). Finally, there is nothing against which to compare CCNC's new inspection proficiency calculations. The 95 percent /90 percent standard developed for objective / subjective inspections in the Byron proceeding was for attributes. A component might have 10 attributes or over 100 attributes. See CCNC PF 53. CCNC would apparently weigh each component equally for purposes of de-termining " defective components." Furthermore, a component might be subject to inspections by different inspectors.

CCNC's statistical manipulatiens to come up with a new defini-tion of inspector proficiency certainly have no support in the record, are not consistent with the approach taken in the Byron proceeding, provide no useful information for the Board, and make no qualitative statement about the proficiency of inspec-tors at the Harris Plant.

66. CCNC PF 55 and Staff PF 70 leave the impression that evaluation or reinspection of the work of certain of the 27 QA personnel implicated in possible drug activity was still in progress as of the date of the Phase Two hearing. At the hear-ing, Applicants' witness Forehand testified to the completion of the evaluation and reinspection of three QC inspectors whose reinspaction results had not been available at the time written testimony was filed. Tr. 10,072-75 (Forehand).

67. CCNC PF 56 discusses three inspectors who had per-formed inspections on inter alia expansion anchors. This pro-posed finding concludes with the statement: "There are serious reasons to doubt the validity of the inspection activities of these inspectors especially as two of them did substantial inspection work on concrete and grout placements and installa-tion of embedded and reinforcing bars in concrete." For sup-port of this curious statement, CCNC cites to Applicants' wit-ness Forehand's discussion of the reinspection results and evaluation of the work of these three inspectors. Nothing in that discussion would support an implication that the validity of the work of inspectors who worked in the civil inspection

area was per se suspect, as CCNC appears to imply. In fact, NRC Staff witness Prevatte's testimony would appear to support the opposite proposition. Mr. Prevatte volunteered that con-crete and rebar placements and other civil engineering aspects of the construction project at the Harris Plant "has been a strong point." Tr. 10,174 (Prevatte). The NRC has found very j few deficiencies in inspections of the civil program at Harris.

Tr. 10,375 (Prevatte).

68. CCNC PF 57 discusses the results of a recent Con-struction Assessment Team (" CAT") inspection at the Harris Plant. NRC Staff witness Prevatte testified that he did not participate in the CAT inspection but recalled the subject area of four potential enforcement findings. Tr. 10,179-80 (Prevatte). Judge Kelley sustained Applicants' and the Staff's objections to cross-examination on the results of the CAT inspection as irrelevant to the contention. Tr. 10,180, 10,182 (Judge Kelley). CCNC PF 57 is extraneous to the Board's find-ings and irrelevant to the disposition of the contention.

69. CCNC PF 58 asserts that the Board " sustained objec-tions to further cross-examination on the effectiveness of Applicants' QA program." The Board did not cut off cross-examination on issues involving the effectiveness of Appli-cants' QA program; rather, as noted above, Judge Kelley sus-tained the Staff's objection to questions regarding the recent CAT inspection when CCNC's counsel could not tie the question to the specific issues being litigated as part of CCNC Contention WB-3. Tr. 10,182 (Judge Kelley).

V 3-3 A

E. Conclusion 70 .~ The NCAG wculd have the Board find in favor of Inter-venors with respect to CCNC Contention WB-3 (NCAG PF 22) and would have the Board order Applicants (1) to reinspect all of i

the work of the 27 QA' personnel terminated for suspected or

~

confirmed drug use, (2) to reinspect 75% of the work done by "218 (sic) craft personnel it has terminated for known or sus-pected drug use," and (3) to reinspect a random sample of 30%

of all safety-related construction (NCAG PF 24).31/ The NCAG never raised this proposal or any variation of it during the hearings to determine its feasibility, cost, likely usefulness or schedule impact. Indeed, the representative of the NCAG i

played no active role during the Phase Two hearing. The NCAG proposed findings do not in any way even attempt to support the scope of the prop'osed order -- with certain schedule delays for startup of the Harris Plant and dramatic cost implications for Applicants' customers. Taken litei'lly, to comply with the J

[.

's, proposed order Applicants woriti F.avc to rip up parts of the Harris Plant to reinspect work no longer accessible. The NCAG I

l ignores testimony in the record of this proceeding establishing that it would not be feasible to determine all of the work m

31/ We construe this proposed order to require a reinspection  ;

of 30% of all safety-related construction. It could also be i interpreted to require a reinspection of an appropriately se-lected sample of the universe comprising 30% of all safety-related construction. Since there is no explanation of the basis for the proposed order, it is not entirely clear what ex-actly the NCAG had in mind.

[ ..

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performed by the 146 craft workers implicated in possible drug activity. Even though the sample reinspections conducted through the QA attribute surveillance program provide a 99 per-cent confidence level in the very high ratings (99.5 percent) of overall inspector proficiency and thus in the quality of the work on safety-related systems at the Harris Plant, the NCAG would require reinspection of 30 percent of all safety related construction. No justification is offered for such a massive reinspection program, particularly in light of the evidence that.the sample size selected for the QA attribute surveillance program will detect a change in inspection proficiency as small as 1.0 percent. Trainor, ff. Tr. 10,770B, at 17. The NCAG's proposed order is not a sericus, responsible or practical pro-posal. While Applicants have not attempted to place a dollar figure on the cost in man-hours and schedule delay to comply with the proposed order, it would likely be in the hundreds of millions of dollars -- even if the proposal to reinspect work no longer accessible were rejected. For that cost, there would be no tangible benefit.

71. The record of this proceeding has established that Applicants have a uell-conceived, properly implemented and mon-itored QA program at the Harris Plant site capable of detecting errors from any source -- including drug use. The order pro-posed by the NCAG cannot be justified.

espe 'Efully subm$ ted, j .

I Thom A. Baxter, P.C. I John .'O'Neill, Jr., P.C.

Shaw, Pittman, Potts & Trowb idge Street, N.W.

Washington, D.C. 20036 (202) 822-1090 Richard E. Jones Dale E. Hollar Andrew H. McDaniel Carolina Power & Light Company P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-8161 Counsel for Applicants Dated: January 3, 1986 .

-APPENDIX A CCNC PF App. Reply 1 4 2 5 3 --

4- --

5 --

6 --

7 34 8 34 9 40 10 29,30,32,33 11 27 12 26 13 26 14 30,31 15 28 16 25 17 22,23 18 --

19 --

20 --

21 35 .

22 35 23 36 24 41,42 25 --

26 43 27 37 28 38 29 --

30 8 31 17,18 32 18 33 18 34 9 35 13,14 36 27 37 15,16 38 --

+

39 7 40 10

(' 41 __

! 42 11 43 11 I

44 11 -

45 44,54 I 46' 47,48 j i

.4

4 CCNC PF App. Reply 47 --

48^ 49,50 49 39 50 62 51 63 52 64 53 65 54 55,64,65 55 66 56 55,65,67 57 68 58 69 59 44 60 --

11 I

i i

.i l

l t

.NCAG PF App. Reply 1 21 2 --

3 27 4 27 5- 23,29-32 6 24 7 --

8 25 9 26 10 26 11 26 12 26 13 34 14 34 15 45 16 46 17 53 18 55 19- 55-60 20 61 21 58 22 70 23 --

24 19,70,71

January 3, 1986 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

~

In the-Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL cnd NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

-(Shearon-Harris Nuclear Power )

-Plant) )

CERTIFICATE OF SERVICE This is to certify that copies of the foregoing "Appli-cants' Reply to the Proposed Findings of Fact and Conclusions -

of Law on CCNC Contention WB-3 (Drug Abuse During Construction)

Filed by Other Parties" were served by deposit in the United States mail, first class, postage prepaid, this 3rd day of January,;1986, to all those on the tach Ser ce L'ist.

- e John)H. O'Neill, Jr., P.y.

V

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY ) Docket No. 50-400 OL cnd NORTH CAROLINA EASTERN )

MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire Atomic Safety and Licensing Board Conservation Council of U.S. Nuclear Regulatory Coinmission North Carolina Washington, D.C. 20555 307 Granville Road Chapel Hill, North Carolina 27514 Mr. Glenn'O. Bright M. Travis Payne, Escuire Atomic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Commission P.O. Box 12607 Washington, D.C. 20555 Raleigh, North Carolina 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, North Carolina 27502 Washington, D.C. 20555 Charles A. Barth, Esquire Mr. Wells Eddleman Janice E. Moore, Esquire 806 Parker Street Office of Executive Legal Director Durham, North Carolina 27701 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Section Richard E. Jones, Esquire Office of the Secretary Vice President and Senior Counsel U.S. Nuclear Regulatory Commission Carolina Pcwer & Light company Washington, D.C. 20555 P.O. Box 1551 Raleigh, North Carolina 27602 Mr. Daniel F. Read, President Dr. Linda W. Little CHANGE Governor's Waste Management Board P.O. Box 2151 513 Albemarle Building Raleigh, North Carolina 27602 325 North Salisbury Street Raleigh, North Carolina 27611

Cradley W. Jones, Esquire

~U.S. Nuclear Regulatory Commission R gion II 101 Marrietta Street Atlanta, Georgia 30303 Mr. Robert P. Gruber Executive Director Public Staff - NCUC P.O. Box 991 RSleigh, North Carolina 27602 H. A. Cole, Jr., Esquire Special Deputy Attorney General 200 New Bern Avenue Raleigh, North Carolina 27601 1

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