ML20141H161

Order Granting Applicant 851220 Motion for Summary Disposition of Issues 5.A,5.C,6.G,6.I,9.D,10.F,12.E,13.B & 14.B.4 of Intervenor Amended QA Contentions & Denying Portions of Motion on Other Issues.Served on 860423

ML20141H161
Person / Time
Site:	Braidwood
Issue date:	04/21/1986
From:	Grossman H Atomic Safety and Licensing Board Panel
To:	COMMONWEALTH EDISON CO.
References
CON-#286-893 79-410-03-OL, 79-410-3-OL, LBP-86-12, OL, NUDOCS 8604240129
Download: ML20141H161 (79)

Text

o 00 LBP-86-12 US.hfD UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION N 2p E3yg

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Before Administrative Judges:

Herbert Grossman, Chainnan Richard F. Cole A. Dixon Callihan SERVED APR23198(3 In the Matter of Docket Nos. 50-456-OL

) 50-457-OL

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COMMONWEALTH EDIS0N COMPANY ) ASLBP No. 79-410-03-OL

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(Braidwood Station, Unit Nos. I and 2) ) April 21, 1986

)

MEMORANDUM AND ORDER (Ruling on Sumary Disposition)

MEM0RANDUM On December 20, 1985, Applicant filed a motion for summary disposition of portions of the amended quality assurance contention of Intervenors Bridget Li ttle Rorem, et al. Specifically, Applicant seeks sumary disposition of the following portions of Intervenors' amended quality assurance contention:

pgRo4240129 860421 G ADoCK 05000456 PDR b D .f-

3.C 6.F 9.C 12.F 14.B.2 5.A 6.G 9.D 12.J 14.B.3 5.B 6.I 10.F 13.8 14.B.4 5.C 9.A(partial) 12.E 14.B.1 On February 18, 1986, within the time set by the Board for responding to the motion, Intervenors filed their opposition to the motion and Staff filed its response, which supported Applicant's motion with regard to each of the subparts. On March 5, 1986, within the time limit prescribed by 10 C.F.R. 5 2.749(a), Intervenors filed their response to the NRC Staff filing in support of Applicant's motion.

In the basic filings, the parties appeared in substantial agreement on the standards for summary disposition, and we will not dwell on this subject at any great length. The Commission's rules governing sumary disposition are analogous to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Co. (Joseph M. Farley Nuclear Power Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974). In operating license proceedings, the burden of proof with respect to summary disposition is upon the applicant-movant, who must demonstrate the absence of any genuine issue of material fact. Cleveland Electrical Illuminating Co. (Perry Nuclear Power Plant, Units 1 & 2),

ALAB-443, 6 NRC 741, 753 (1977). And, in determining whether a motion for summary disposition should be granted, the record must be viewed in the light most favorable to the opponent of such a motion.

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Dairyland Power Cooperative (Lacrosse BWR), LBP-82-58, 16 NRC 512, 519 (1982).

On the other hand, where the proponent has met his burden, his opponent must set forth specific facts to demonstrate that there exists a genuine issue of material fact for trial. Mere allegations and denials are not sufficient to overcome an otherwise persuasive sunnary disposition request. Virginia Electric Power Co. (North Anna Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 (1980);

Thiladelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-562,10 NRC 437, 444 (1979). The opposing party need not show that he would prevail on the issues but only that there are genuine issues to be tried. Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit No. 1), LBP-77-45, 6 NRC 159, 163 (1977), citing Poller v. CBS, Inc., 368 U.S. 464, 473 (1962); American Manufacturers Mutual, Ins. Co. v. American Broadcasting-Paramount Theatres, Co.

Inc., 388 F.2d 272, 280 (2d Cir. 1967).

In their response to Applicant (at 2-3), Intervenors allege that Applicant seeks to have the Board summarily dispose of each contention sub-item to crase each such historical flaw from the Braidwood QA records "with no subsequent opportunity for Intervenors to use [each of these flaws] to demonstrate patterns of inadequacies."

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Furthermore, in this response to Applicant and in its later response to Staff. Intervenors oppose many of the material facts alleged by Applicant and supported by Staff as being founded upon affidavits of witnesses who do not speak from personal knowledge, rely on hearsay and express opinions. As stated by Intervenors (Answer to Applicant at 6):

Accordingly, because the affidavits offered by Edison are not based on affiant's personal knowledge of specific facts, but are conclusory in nature, and because competency to testify is not affirmatively demonstrated from the face of the affidavits, those affidavits should be found unreliable and disregarded as supporting a " material fact".

Applicant filed a motion for leave to file a response to Intervenor's answer opposing summary disposition, and Intervenors filed an answer thereto, both of which were accepted by the Board as motion papers in the pending motion for summary disposition. In its motion for leave to file (at 3-4), Applicant makes it clear that, except with respect to Subcontention items S.A, 5.8 and 5.C, which challenge design quality assurance, Applicant still would bear the burden of proof at the evidentiary hearing to demonstrate that each of the subcontention items do not represent a pattern of quality assurance deficiencies, even if summary disposition were to be granted. The exception for Subcontention items S.A, 5.8 and 5.C is based upon NRC case law distinguishing between design quality

6 assurance and construction quality assurance. We accept Applicant's representation without further discussion.

With regard to the nature of the evidench presented by Applicant in support of its motion for summary disposition, further discussion is necessary. We agree in general with Applicant (Motion for Leave to File Response at 5) that 10 C.F.R. 6 2.749(b), which does not expressly require affidavits "made on personal knowledge," differs from Rule 56(a) of the Federal Rules of Civil Procedure, containing that provision, in order to reflect the difference between administrative practice and court practice. In administrative proceedings, the presiding officer does have more leeway than a judicial officer in accepting hearsay testimony, if reliable, to shortcut what might otherwise be a laborious procedure in establishing the facts. But see also Rule 803, of the Federal Rules of Evidence, item (24), which permits the admission of otherwise excludable hearsay in court proceedings if it is trustworthy and offered under certain conditions.

We do not agree, however, with Applicant's further elaboration on 10 C.F.R. 9 2.749(b)'s requirement that an affiant supporting summary disposition be " competent to testify to the matters," as relating only to expert competence. With regard to statements of contested material fact, the witness must be competent as a fact witness, and we

understand that, in general, to require personal knowledge. As an administrative board, we can dispense with the personal knowledge requirement with less constraints than a judicial court, to expedite and facilitate the adjudicatory process, but not to the exclusion of a fair opportunity for the opponent of the proffered evidence to rebut it. Where material facts appear legitimately in dispute and a witness with personal knowledge is readily available, that witness should be offered. Similarly, when a document is relied upon that is readily available, that too should be presented.

'Nor do we agree with Applicant's further implication (M. at 5-7) that the leeway given an expert witness (in both court litigation and administrative proceedings) to base his testimony upon hearsay, if of the type reasonably relied upon by experts in the field, permits him to establish the material facts in dispute although he is lacking in personal knowledge. His opinions may be arrived at upon information that may not be admissible in evidence, and they will be accepted as expert opinions if reasonably qualified, but those expert opinions )

cannot substitute for, or establish, the material facts about which the expert witness may lack competence as a fact witness, i.e., have personal knowledge.

Turning now to the material submitted to us, we observe that Applicant has chosen to rely to a great extent on affidavits of o )

persons without direct knowledge of basic material facts. To the extent that some of these facts are not actually in dispute, we would not require that either an affiant in summary disposition, or a witness at hearing, have personal knowledge of the facts asserted. We would rely upon our authority as an administrative tribunal and under the Commission's rules to consider hearsay as competent evidence, taking into account Intervenors' failure to contradict directly the assertions in judging their reliability. Those facts that Intervenors genuinely dispute, however, should be supported by persons with firsthand knowledge, if possible.

Intervenors, on the other hand, have not made our task easy, having declined to specify which of the material facts asserted by Applicant they dispute. However, they have technically complied with Rule 2.749(a) by submitting short and concise statements of material facts in which they contend that there exist genuine issues to be heard, albeit unreferenced to the numbered statements put forth by Applicant. While they have specified in detail the portions of Applicant's affidavits they contend are incompetent, they leave it up to the Board to reference tnose portions back to Applicant's statements of material facts containing those record citations and decide whether, in light of Intervenors' statement of disputed facts, those particular material facts asserted by Applicant are genuinely in dispute.

Furthermore, to a large extent, Intervenors rest their opposition on general denials of Applicant's and Staff's assertions. At this point in time, after extensive discovery, Intervenors should be in a position either to accept or specifically contradict many of these assertions with affirmative evidence on their part. If they cannot do so now, they stand little hope of doing so at a full-fledged evidentiary hearing, and we should not have to waste the resources of the parties and Board in offering one. Were the hearing (already set to begin during the week of May 5,1986) not impending, we would have Intervenors file a further document pinpointing each of Applicant's stated material facts which they genuinely dispute and setting forth the basis for their belief that the facts are not as stated. Under the circumstances, we have done the best we can in determining which material facts are genuinely in dispute because they are realistically opposed by Intervenor and have not been reasonably established through reliable evidence.

We have granted summary disposition on Subcontentions S.A, 5.C, 6.G, 6.I, 9.D, 10.F. 12.E, 13.B. and 14.B.4. On some of these subcontentions, we have stated our grounds for granting the motion.

On ti.e others we have granted, we will issue our full written decision at a later date. On the remaining issues, although we have denied summary disposition, we have determined which of the material facts l

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1 stated by Applicant are not genuinely in dispute and need not be further established at the forthcoming evidentiary hearing.

ROREM SUBCONTENTION ITEM 3.C

3. Contrary to Criterion II, " Quality Assurance Program," of 10 C.F.R Part 50, Appendix B, Comonwealth Edison Company has failed to established a quality assurance program which complies with the requirements of Appendix B and which is documented by written policies, procedures and instructions and is carried out in accordance with those instructions. Edison has failed to assure that its QA program provides controls over activities affecting quality and that such activities are accomplished under suitably controlled conditions and are appropriately verified for quality by inspection.

3. C. The Applicant's electrical contractor (Comstock) utilized Level I Quality Control Inspectors for inspection and acceptance of electrical welds. This involved 14 different Level 1 inspections over four years. (Inspection Report 85-06 Exh. 11.)

Board's Ruling on Summary Disposit..on (3.C)

The Board denies sumary disposition and accepts certain material facts, as modified, as to which there is no genuine issue to be heard.

Certain of the contractors at the Braidwood site authorized the use of unqualified Level I Quality Control Inspectors in the performance of visual weld inspections as required of Level II Inspectors. In the place of a 100% reinspection program, Applicant has developed the " Level I Reverification Program" (LRP). The LRP is designed to demonstrate on a sampling basis that the welds in question

contained no design-significant discrepancies. Applicant urges the Board to accept its claim that the LRP will assure that the quality of the weld inspections did not compromise the safe construction of the plant or significantly invalidate the effectiveness of the quality assurance program. From this position, Applicant argues that Staff should be designated to review the results of the LRP to ensure that the program's results prove what Applicant claims.

Intervenors oppose a grant of summary disposition on the grounds that it is inappropriate to delegate this authority to the NRC Staff.

In addition, Intervenors have put in issue the adequacy of the design, organization, methodology, implementation, and the results of the LRP.

In doing so, Intervenors refer specifically to discovery depositions that allegedly establish specific defects in the program.

Considering the prospective nature of the LRP --and the necessity for us to pass judgment upon the methodology and design of this program, we would be remiss in passing this issue on to Staff. See Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2),

ALAB-770, 19 NRC 1163, 1175 (1984) and Louisiana Power & Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076, 1103 (1983), in which the Appeal Board ruled against delegating i similar responsibilities to Staff. In our opinion, Intervenors must be given the opportunity to question Applicant's program at a full

evidentiary hearing, and the Board be given opportunity to determine the merits of that program after the evidentiary record is complete.

Material Facts As To Which There Is No Genuine Issue To Be Heard (3.C)

1. As a result of inspection activities related to the Braidwood Construction Assessment Program (BCAP), the NRC Staff assessed an item of noncompliance with respect to L.K. Comstock's (LKC's) use of Level I inspectors to perform visual weld inspections, as well as another item of noncompliance (later withdrawn) relating to the BCAP Task Force's apparent failure to document this LKC practice as a BCAP observation. (Affidavit of George Orlov on Rorem QA Subcontention 12.E [ hereinafter, "Orlov Affidavit"] at 3-12; Deposition of Ronald N. Gardner dated October 31, 1985 at Tr. 55-72.)

2. Review of LKC and E.C. Ernst records establishes that a total of 13 or 14 Level I inspectors performed visual weld inspections over a period from March 1977 to April 1984. After April 1984 LKC only used Level II inspectors to perform visual weld inspections. (E.C. Ernst was the original electrical contractor at Braidwood. In the spring of 1979, LKC took over the respnsibilities for the electrical installation.) (Gieseker

Affidavit on Rorem QA Subcontention 3.C [ hereinafter, "Gieseker Affidavit"]at2-3.)

3. To address the concern regarding the LKC's and E.C. Ernst's use of Level I weld inspecurs, CECO has developed the " Level I Reverification Progra.s" (LRP). The LRP is designed to demonstrate on a sampling basis that the welds inspected by LKC and E.C. Ernst Level I inspectors contain no design significant discrepancies. (Gieseker Affidavit at 4.)

4. The total population of inspection reports generated by LKC and E.C. Ernst Level I inspector is approximately 9,000. A random probability sample of 475 inspection reports will be selected and all the welds of interest covered by these selected inspection reports will be reinspected. According to Applicant, this sample size is sufficient to allow one to conclude with at least 99%

reliability at a 99% confidence level, that if there are not design significant weld discrepancies in the sample, there are none in the entire population. (Gieseker Affidavit at 5-6; Frankel Affidavit on Subcontention Item 3.C at 8-10.)

5. If necessary a supplementary sample will be selected to ensure that a minimum of five inspection reports are selected for each

of the 13 inspectors. (Gieseker Affidavit at p. 6; Frankel Affidavit on Subcontention Item 3.C at 9.)

6. LRP reinspections will be performed by currently certified LKC Level II inspectors, with overview by a Level III inspector. No reinspector will reinspect welds which he or she initially inspected or approved. The identities of the original inspectors and the original inspection results will be withheld from the reinspectors. The reinspectors will use currently approved LKC visual weld inspection procedures, which incorporate acceptance criteria that have been reviewed and approved by the NRC Staff.

(Gieseker Affidavit at 7-8.)

7. Engineering evaluation :till be performed to determine the design significance of each identified weld discrepancies. These evaluations will be performed in the same way as for the Byron Quality Control Inspector Reinspection Program. (Kostal Affidavit on Rorem QA Subcontention 3.C.)

8. If any design significant discrepancies are identified in the original sample, they will be repaired or otherwise appropriately resolved. According to Applicant, the sample will be expanded to a size sufficient to establish again with 99% reliability at a 99% confidence level, that if there are not design significant

weld discrepancies in the sample, there are none in the entire population. If the number of design significant discrepancies found precludes obtaining an expanded sample size that is less than the entire population of Level I inspection reports, then the entire population will be reinspected. (Gieseker Affidavit at8-9.)

ROREM SUBCONTENTION ITEM 5

5. Contrary to Criterion III, " Design Control," of 10 C.F.R. Part 50, Appendix B, Commonwealth Edison Company has failed to established measures to assure that applicable regulatory requirements and design bases are correctly translated into specifications, drawings, procedures, and instructions including provisions to assure that appropriate quality standards are specified in design documents and the deviations from such standards are control?ed. Applicant has also failed to require that measures are established for the identification and control of design interfaces and for the coordination among participating design organizations, that the measures include the establishment of procedures among participating design organizations for the review, approval, release, distribution, and revisions of documents involving design interfaces and that the design control measures provide for verifying or checking the adequacy of design, such as by the performance of design reviews, by the use of alternate or simplified calculational methods, or by the performance of a suitable testing program.

Subcontentions S.A, 5.B and 5.C individually allegedly assert, with greater particularity, specific instances of nonconformity.

Subcontention 5.A states:

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5. A. The NRC CAT inspection concluded that in the area of [ sic]

the most significant finding was the failure to annotate unincorporated design changes on controlled design documents. The most significant finding in the area of design change control was design change documents written against superseded revisions of the approved design drawings. In at least one instance, this deficiency resulted in a pipe support being installed and inspected to other than the latest approved design. (CAT Inspection Report 84-44/40, Exh. 10.)

Board's Ruling for Summary Disposition (5.A)

We grant summary disposition to Applicant on Subcontention 5.A.

To facilitate preparation for hearing on the other issues, we will issue our full decision on this issue at some later date.

5. B. Repairs to coating by Midway Industrials in the Unit 1 and 2 containments were performed utilizing a coating system not qualified for the Design Basis Accident in accordance with Section 5 of ANSI N101.2 (1972). (Inspection Report 85-15, Exh. 17.)

4 Both the Applicant and the NRC Staff remedied a deficiency in the statement of Subcontention 5.A with slightly different combinations of words. The Applicant addressed the "... control of design documentation ..."; the Staff addressed "... design control ...".

Board's Ruling on Sununary Disposition (5.8)

We deny summary disposition on this subcontention. On the facts given, there is some question in our minds as to how the discrepant inspection could have occurred if the proper procedures were in place based upon a simple error in judgment by the Quality Control Inspector. Further testimony on this subject should be illuminating.

Furthermore, while we are not concerned with the exact amount of affected area since our focus is on overall quality assurance, we are not at all certain that the significance of the quality assurance failure in this matter has been fully delineated. Intervenors have raised some apparently legitimate questions regarding the scope of the j problem and, consequently, whether the proper corrective action was taken. Further testimony would be desirable.

l Material Facts As To Which There Is No Genuine Issue To Be Heard (5.B)

1. Portions of the steel containment liners and related auxiliary items such as equipment hatches on the insides of the Braidwood l Unit 1 and 2 containments are coated with safety grade coating  ;

systems. Midway Industrial Contractor, Inc. (MIC) was responsible for installing the coating system. The original

coating installation took place in 1978. (LeighAffidavitat2.)

2. Two distinct but related coating systems are used in different areas of each containment. The most extensive area is covered with a single coating system consisting of a layer of inorganic carbolere-zine primer (CZ-11) applied over bare metal. The less extensive coating consisted of a dual coating system utilizing a layer of CZ-11 primer over bare metal plus a layer of organic (epoxy-like) phenoline finish coat applied on top of the primer.

(Kostal Affidavit at 3-4.)

3. The total amount of coated area in each containment, counting both single coating and dual coating system, is about 100,000 square feet. The total amount of coated area covered by the dual coating system is about 26,000 square feet per containment.

(Kostal at 5, 7.)

4. Under NRC regulatory requirements, coating systems must be designed to withstand the conditions of a design basis accident (DBA) without unduly degrading the performance of plant fluid systems. It is sufficient for this purpose if a coating system meets the requirements of ANSI Standard N101.2. (Kostal at 2-3.) l l

5. ANSI N101.2 requires that each coating system be qualified to the DBA. In practice, qualification is achieved by testing

" coupons," i.e., sample metal substrates with the coating system applied as it will be in the field, to OBA ambient conditions.

The coating system passes if the test coupon after exposure is compared to certain photographs of coating degradation in the applicable ASTM standard and shows degradation no more severe than that in a particular photograph. (Kostal at 2.)

6. Metal surface preparation is an important element of a coatii.9 system. Each coating method must be requalified for different metal preparation methods. The single coating system consisting of CZ-11 primer alone over bare metal was qualified over a metal surface prepared by sandblasting and over a metal surface

, prepared by power tool grinding. The dual coating system consisting of a CZ-11 primer coat covered with a phenoline-305 top coat was qualified in accordance with ANSI N101.2 only over a sandblasted metal surface. (Leigh Affidavit at 2; Kostal Affidavit at 3-4.)

7. The applicable procedure for the application of coating systems was MIC Procedure QCP-3. This procedure fully carried into effect the requirements of N101.2 by requiring that the dual

coating system, CZ-11/Phenoline-305, be applied only over sandblasted metal surfaces. (Leigh Affidavit at 2.)

8. Containment liners were installed by first erecting 30' X 10' segments of liner plate into place, then welding them together.

The 30' X 10' plates were sandblasted and coated with CZ-11 primer in the fabrication shop prior to erection, except that a narrow strip along each edge was left free of primer for welding.

The plates were then welded together. (Leigh Affidavit at 2-3.)

9. After welding, the narrow, uncoated strips along each weld had to be coated with primer. However, by this time the weld strips had spots of weld spatter, small rust blooms, and occasional sharp edges. MIC personnel used a power tool to grind off these minor imperfections before applying the CZ-11 but did not re-sandblast the affected areas. (Leigh Affidavit at 2-3.)

10. Because the areas in question were to have a finish coat of Phenoline-305, the grinding of the affected areas without resandblasting created a situation in which the spots over which the dual coating system was applied on ground surfaces were not properly qualified in accordance with ANSI N101.2 (Kostal Affidavit at 3-4.)

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11. ANSI N101.4 deals with quality assurance requirements for the application of coating systems in accordance with N101.2. N101.4 requires, inter alia, that surface preparation methods be properly inspected for conformity with the requirements specified in the application procedure. (Kostal Affidavit at 2-3.)

12. Applicable regulatory requirements allow for the existence of some unqualified coatings in containment. Perfection is not required. In particular, ANSI N101.4 provides for documentation for compiling a coatings exception list. The coatings exception list. The coatings exception list permits the totality of unqualified coatings in containment to be evaluated for acceptability in the light of the purposes of qualification.

Edison has developed a coatings exception list and the areas relevant to this issue are on it. (Kostal at 7-8.)

13. The NRC Staff has accepted placement of the affected areas on the coatings exception list as adequate corrective action for this problem. (Kostal Affidavit at 8.)

14. The purpose of qualifying the coating system with a particular surface preparation method is to control adhesion and prevent delamination. If a coating were to delaminate in large pieces or sheets in large quantitie; after exposure to DBA conditions, it l

could clog the strainers of fluid systems necessary to control post-accident conditions in the plant. Proper surface preparation controls adhesion of the coating and prevents delamination. (Kostal at 5-6.)

Disposition of Intervenor's Subcontention 5.C The generic statement of Intervenor's Subcontention 5 appears at the outset of this Section. Subconter. tion 5.C states:

5. C. Edison employed designs for safety-related HVAC duct supports based on Chapter E36.0 of S&L's Structural Standard Document which did not limit the slenderness ratio for ceiling mounted duct supports. (Inspection Report 85-43/39, Exh. 19.)

Board's Ruling on Summary Disposition (5.C)

We grant summary disposition to Applicant on Subcontention 5.C.

To facilitate preparation for hearing on the other issues, we will issue our full decision on this issue at some later date.

ROREM SUBCONTENTION ITEM 6.F

6. Contrary to Criterion Vs " Instruction, Procedure and Drawings,"

of 10 C.F.R Part 50, Appendix B, Comonwealth Edison Company has failed to ensure that activities affecting quality are prescribed by documented instructions, procedures, or drawings, and are l

accomplished in accordance with these instructions, procedures, or drawings.

6. F. In June 1984, Phillips Getschow, piping contractor, found piping that violated minimum wall requirements. This defect was not reported to owner in accordance with 10 CFR 21.21.

(Inspection Report 84-21/20, Exhibit 20.)

On June 1,1984, during a receipt inspection, Phillips Getschow Company identified a 10-foot section of pipe, 2 feet of which did not conform to the minimum thickness requirement of the materials specifications used for purchase of the pipe. The minimum wall requirement was 0.629 inches. Two feet of the 10-foot length were i

found to be .620 inches by digital ultrasonic measurement. Staff i Exhibit 6,F-2, at 6. This pipe was regarded as " customer suppliece material" by Phillips Getschow. Phillips Getschow identified and 1

documented this deficiency on PGCo (Phillips Getschow Company) NCR 1615 which was initiated on June 13, 1984. The disposition of NCR 1615 was to scrap the two feet of pipe containing the nonconforming section. This was the only length of pipe of this heat number ever received at the Braidwood site. Affidavit of David A. Boone, at 3-4 None of the nonconforming pipe was ever installed in the Braidwood facility. In its motion for summary disposition CECO states that when Phillips Getschow identified the nonconforming pipe, Phillips Getschow performed an undocumented review for 10 C.F.R. Part 21 reportability.

This review determined that the deficiency was not reportable under Part 21. Later reviews of this deficiency by Commonwealth Edison

reached the same conclusion. Phillips Getschow procedure QAP-110, a procedure designed to facilitate compliance with 10 C.F.R. Part 21, required Phillips Getschow to notify Commonwealth Edison of the deficiencies such as those identified on NCR 1615. Phillips Getschow failed to report this deficiency pursuant to QAP-110. Applicant acknowledges this failure but argues that the deficiency which Phillips Getschow failed to report under QAP-110 was of a limited nature and that the incident has no significant implications for the quality of the Braidwood facility and concludes that the item of noncompliance, the failure to report, was an isolated occurrence.

Phillips Getschow's failure to submit NCR 1615 to Commonwealth Edison was identified through Phillips Getschow's corrective action in response to a Phillips Getschow corporate audit. This audit reviewed in part Phillips Getschow's compliance with the requirements of Procedure QAP-12 which required submission of NCRs to Comonwealth Edison. As part of their response to the corporate audit, Phillips Getschow documented the failure to submit NCR 1615 to Commonwealth Edison on Phillips Getschow NCR 2027, issued on September 4, 1984.

Boone Affidavit 6.F, at 7-8. Phillips Getschow submitted NCR 2027 to Comonwealth Edison for review. Comonweal th Edison personnel documented its determination that NCR 2027 to which NCR 1615 was attached was not reportable under 10 C.F.R. Part 21. Mr. Boone, a Construction Field Engineer employed by Daniel Construction Co. on

contract to Comonwealth Edison's Project Construction Department at Braidwood, has a specific recollection of reviewing NCR 1615 for reportability under Part 21 as a part of the review of NCR 2027.

Boone Affidavit, at p. 8. Comonwealth Edison approved NCR 2027 on September 12, 1984. This was several days before the NRC inspector discussed Phillips Getschow's failure to notify Comonwealth Edison of the deficiency documented on NCR 1615 with Phillips Getschow's QC Manager.

As a result of the NRC inspector's concerns, Phillips Getschow and Commonwealth Edison undertook additional corrective actions which CECO contends adequately resolve Phillips Getschow's failure to notify Comonwealth Edison of the deficiency identified by NCR 1615.

Phillips Getschow issued a report of noncompliance in accordance with QAP-110. Comonwealth Edison informed the material supplier of the deficiency and once again determined that the deficiency was not I reportable under 10 C.F.R. Part 21. To ensure that Phillips Getschow personnel observed appropriate reporting procedures, Comonwealth Edison discussed this item with appropriate Phillips Getschow personnel. The corrective actions taken were acceptable to the NRC l

Staff and they closed this item. NRC Inspection Report Nos.

50-450/85007 and 50-457/85007.

NRC Staff agrees with the Applicant that the incident described in Subcontention 6.F was an isolated incident of failure of one contractor to report a single deficiency pursuant to procedures and does not represent a pervasive breakdown in the Applicant's QA program. None of the information available to the Staff indicates any subsequent failure to comply with 10 C.F.R. Part 21 reporting requirements. Staff argues that Intervenor has not provided any information during discovery which supports a contrary view and because there are no genuine issues of material fact to be heard regarding this subcontention, Applicant appears to be entitled to a favorable decision on this subcontention as a matter of law.

Intervenor argues that there are still facts in dispui.e; that Phillips Getschow Company failed to report to Edison its identification of piping which violated minimum wall thickness specifications; and, that Commonwealth Edison, once it learned of the defects, failed to promptly inform the material supplier of the defect. The matter was brought to the attention of the NRC Inspector by an anonymous tip that a safety concern existed and that the defect should have been reported to Edison management, pursuant to 10 C.F.R. Part 21. Ultimately, Edison informed the supplier of the defect but only after the NRC expressed concern about the matter to Phillips Getschow. In its response, Intervenor raises several questions, e.g.:

Why didn't Phillips Getschow's NCR procedure require a Part 21 l

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evaluation? Why didn't Edison, itself, report the defect to the supplier when it learned of the problem instead of waiting for the NRC action? Intervenors also qu'estion the competence of Mr. Boone to sponsor the testimony on this issue, stating that Mr. Boone appears to be a licensing and compliance man with no stated personal knowledge of the matters in issue with the exception of the specific action referred to. Intervenors also state that they requested production of Phillips Getschow Company's review of closed NCRs. This information has not yet been made available to Intervenors. Intervenors also object to portions of the affidavit of NRC Inspector Schulz (items 5, 6, 7, and first sentence of item 8) as being simple hearsay or opinion as to the ultimate fact issues.

Board's Ruling on Summary Disposition (6.F)

The Board denies the motion on this issue. While the Board accepts most of the Applicant's proposed material facts, the questions raised by Intervenor in its response require an answer through competent testimony.

Material Facts As To Which There Is No Genuine Issue To Be Heard (6.F)

1. On June 1,1984 during a receipt inspection, Phillips Getschow Company identified two (2) feet out of a ten (10) foot length of

pipe which did not conform to the minimum thickness requirements of the material specification used for purchase of the pipe.

This pipe was regarded as " customer supplied material" by Phillips Getschow. Phillips Getschow identified and documented this deficiency on PGCo NCR 1615. The disposition of NCR 1615 was to scrap the two feet of pipe containing the nonconfonning section. This was the only length of pipe of this heat number ever received at the Braidwood site. (Affidavit of David A.

Boone, at p. 3-4.) ("Boone Affidavit 6.F".)

2. Phillips Getschow Procedure QAP-110 required Phillips Getschow to notify Commonwealth Edison of the deficiencies such as those identified on NCR 1615. QAP-110 proceduralizes Phillips Getschow's obligations under 10 C.F.R. 21.21. Phillips Getschov failed to report this deficiency pursuant to QAP-110. (Bocr.

Affidavit 6.F at pp. 5-6.)

3. Phillips Getschow Procedure QAP-12 required submittal of NCR 1615 to Commonwealth Edison for review. Commonwealth Edison's review of this NCR would have included a review of the failure of the two-foot length of pipe to meet the will thickness specification for reportability under 10 C.F.R. Pa-1 21. (Boone Affidavit 6.F, atpp.6-7.)

4. Phillips Getschow failed to submit NCR 1615 to comonwealth Edison. Phillips Getschow's failure to submit NCR 1615 to 1

Comonwealth Edison was identified through Phillips Getschow's corrective action in response to a Phillips Getschow corporate audit. This audit reviewed, in part, Phillips Getschow's compliance with the requirements of QAP-12, which required submission of NCRs to Comonwealth Edison. As a part of their response to the corporate audit, Phillips Getschow documented the failure to submit NCR 1615 to Comonwealth Edison on Pnillips Getschow NCR 2027 issued on September 4, 1984. (Boone Affidavit 6.F, at pp. 7-8.)

5. Phillips Cetschow submitted NCR 2027 to Comonwealth Edison for review. Comonwealth Edi iect Construction documented its determination that NCR 2027, . which NCR 1615 was attached, was not reportable before it approved NCR 2027 on September 12, 1984.

Mr. Boone has a specific recollection of reviewing NCR 1615 for reportability under Part 21 as a part of the review of NCR 2027.

(Boone Affidavit 6.F, at p. 8.)

6. Phillips Getschow personnel responsible for submitting NCRs written against customer supplied material or items to Ccmmonwealth Edison were given training on the PGCo QA Manual and

implementing procedure QAP-12 on September 12, 1984. (Boone Affidavit for 6.F at p. 8.)

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7. The NRC identified Phillips Getschow's failure to notify Comonwealth Edison of the deficiency identified in NCR 1615 under QAP-110 as item 2 in Inspection Report 50-456/84-21, 50-457/84-20. The NRC inspector discussed this concern with Phillips Getschow on September 17, 1984. (Boone Affidavit 6.F, at pp. 3, 9.)

8. As a result of the NRC's concerns, on September 19, 1984 Phillips Gatschow issued a Report of Noncompliance to Comonwealth Edison pursuant to QAP-110 notifying Comonwealth Edison of the deficiency identified on NCR 1615. A Report of Noncompliance is the formal method prescribed by QAP-110 for initiating a Part 21 review by Comonwealth Edison. Upon notification, Comonwealth Edison informed the material supplier of the deficiency in the material and detennined that the deficiency was not reportable under 10 C.F.R. Part 21. (Boone Affidavit 6.F, at pp. 9-10.)

9. As part of its response to the NRC's concern, Comonwealth Edison discussed this item with appropriate Phillips Getschow personnel to enhance awareness of the reporting requirements of QAP-110.

(Boone Affidavit 6.F. at p.10-11.)

10. The NRC found Commonwealth Edison's corrective action acceptable and closed the item of noncompliance. (Boone Affidavit 6.F, at

p. 11.)

11. Phillips Getschow has initiated changes to its QA Manual.

QAP/8-12 (formerly QAP-12) and to QAP/BR-110 (formerly QAP-110) and has developed QAP/BR-12.3 to enhance reporting. Under current procedure, Phillips Getschow perfonns a documented review of all NCRs for reportability under 10 C . F . R . Part 21. Only those NCRs which Phillips Getschow deems reportable are reported under QAP-110. (Boone Affidavit 6.F, at pp. 12-13.)

12. Phillips Getschow has evaluated all closed PGCo NCRs generated on or before May 4, 1984 for potential reportability under 10 C.F.R. Part 21. Phillips Getschow determined that none of these NCRs were reportable. Phillips Getschow also evaluated a random sample of NCRs generated between May 4, 1984 and April 3,1985, and determined that none of these NCRs were reportable.

Coninonwealth Edison has evaluated those NCRs in this population which were not contemporaneously submitted for its review as required by Phillips Getschow's procedure and has concurred with Phillips Getschow's reportability reviews in all cases. (Boone Affidavit 6.F, at pp. 12-13.)

13. Phillips Getschow is in the process of implementing revisions to QAP-110 which will provide more specific criteria for evaluation and reporting of NCRs under 10 C.F.R. Part 21. (Boone Affidavit 6.F, at p. 12-14.)

R0 REM SUBCONTENTION ITEM 6.G

6. G. Applicant placed purchase orders with an unapproved bidder, H. H. Howard Corporation of Chicago, that did not have an approved QA program. Purchase orders were for cleaning of 206,744 feet of safety-related piping. (Inspection Report 84-17, Exhibit 12.)

In 1981 Edison decided to have a large amount of SA 106 Grade B carbon steel piping chemically cleaned because rust and corrosion had fonned on the inside and outside surfaces of the pipe from exposure to the elements.

H. H. Howard documented the chemical cleaning methods that would ,

be used in a letter to Braidwood Project Construction. This list of methods was forwarded to Sargent & Lundy for review of technical adequacy prior to approval by Edison. A Field Change Request allowing the cleaning was then approved.

Edison did not detect this error because at the time Edison's procedure controlling the purchase of services did not require review

by Edison's Quality Assurance Department of all purchase orders relating to safety-related equipment.

1

! Applicant acknowledges that having the pipe cleaned by a non-safety-related vendor was an error and constituted a noncompliance i

with the requirements of Criteria V, " Instructions, Procedures and Drawings" of Appendix B to 10 C.F.R. Part 50. Applicant concedes that its QA Manual at QP 4-1 requires that vendors of safety-related services be listed in an approved bidders list and that purchase orders for such services be reviewed and accepted by Applicant's

, Quality Assurance Department to assure that the necessary technical and quality requirements are included in the procurement documents and

< that the procurement is made from the plant location for which the vendors quality assurance program is approved. Applicant contends that this noncompliance was an isolated incident and Edison has taken effective corrective action to prevent recurrence.

Edison decided in 1981 to have chemical cleaning performed on a quantity of safety-related carbon steel small bore pipe because rust and cor sion had formed on the pipe from exposure to the elements.

Edison issued two purchase orders to the H. H. Howard Company for the cleaning process. These methods of cleaning were considered by CECO to be standard commercial methods and Edison believed they would not adversely affect the pipe. Edison erroneously concluded that the I

cleaning process itself was not safety-related and, accordingly, issued the purchase orders to H. H. Howard, a non-safety-related vendor. As a non-safety-related vendor, H. H. Howard was not required to have an approved QA program and was not on the approved bidders list. Edison now recognizes that sending the pipe to a non-safety-related vendor for cleaning was an error in judgment. This error went undetected because at that time Edison's procedure controlling the purchase of services did not require that Edison's Quality Assurance Department review all purchase orders related to safety-related equipment. To determine whether similar errors had occurred in other purchases affecting safety-related pipe, Edison reviewed other purchases of this type of service. No other purchases affecting safety-related pipe were found.

To prevent recurrence of this type of noncompliance, Comonwealth Edison revised Braidwood procedure PCD-07, " Site Purchasing Instructions." The revised procedure requires all purchases of services relating to safety-related equipment to be reviewed by the QA department. It also requires that Construction Supervisors review purchase requests to ensure proper inclusion of quality assurance requirements. When a procurement document designates a service relating to safety-related equipment as non-safety-related it must also designate the organization directing the work, the applicable QA program, required procedures and any necessary procedure training.

Thus, even non-safety-related services performed in connection with safety-related equipment muet be performed in accordance with an approved QA program. The NRC Staff reviewed this corrective action and found it acceptable. The issue was closed in NRC Inspection Report 84-42.

The acceptability of the pipe that was chemically cleaned by H.

H. Howard Company is the subject of Subcontention 11.C of Intervenor's l

QA Contention. Applicant and NRC Staff both argue that there ajpear l l

to be no genuine issues of material fact to be heard regarding this subcontention as a matter of law. Intervenors disagree. Intervenors state that there are unanswered questions concerning this matter. For example: Why did Edison store this safety-related pipe outdoors in an uncovered condition? Why did it decide to employ a chemical cleaning process in order to install this corroded pipe in the plant? And:

Why did Edison employ an unapproved vendor without a quality assurance program to perform this critical task on a safety-related component? l Intervenors also question whether Applicant's affiant Michael A.

1 Gorski has personal knowledge of any of the matters stated in his affidavit and further states that neither Edison nor NRC looked into the question of the root cause of this item of noncompliance, stating that the cause, significance and implication of Edison's handling of a vast quantity of safety-related material must be addressed on the rretrits and that summary disposition is inappropriate.

1 Board's Fuling on Summary Disposition (6.G)

The Board grants the motion. Al though Intervenors raise some questions concerning the root cause of the noacompliance and the issue of direct knowledge as to matters stated in the affidavit, the matter was a one-time mistake, acknowledged as such by Applicant, with very little impact on the overall quality assurance program. There would be little value in holding an evidentiary hearing on this matter.

Board's Findings of Fact (6.G) i

1. In 1981, Edison decided to have a large amount of SA 106 Grade B carbon steel piping chemically cleaned because rust and corrosion had formed on the inside and outside surfaces of the pipe from exposure to the elements. (Gorski Affidavit, p. 1.)

2. H. H. Howard documented, in a letter to Braidwood Project Construction, the chemical cleaning methods that would be used.

This list of methods was forwarded to Sargent & Lundy for review of technical adequacy prior to approval by Edison. A Field Change Request allowing the cleaning was then approved. (Gorski Affidavit,p.2.)

4

(

3. Edison did not detect this error because at the time Edison's procedure controlling the purchase of services did not require review by Edison's Quality Assurance Department of all purchase orders relating to safety-related equipment. (Gorski Affidavit, pp. 2-3.)

4. Edison performed a review of other purchases of this type of service and found no other purchases affecting safety-related pipe. (Gorski Affidavit, p. 3.)

5. Edison revised its procedure controlling the purchase of services to prevent recurrent of this type of noncompliance. The revised procedure requires all purchases of services relating to safety-related equipment to include reviews by the QA Department.

The procedure also requires that Construction Supervisors review purchase requests to assure that QA requirements are included.

The procedure also requires that when a procurement document designates a service for safety-related equipment as non-safety-related, the document also designates the organization directing the work, the applicable QA program, required procedures and aay necessary procedure training. Thus, even non-safety-related services performed in connection with safety-related equipment must be performed in accordance with an approved QA program. (Gorski Affidavit, pp. 3-4.)

6. The NRC Staff reviewed the corrective action taken by Edison and found it acceptable. This issue was closed in NRC Inspection Report No. 84-42. (Gorski Affidavit, p. 4.)

7. The issue whether the pipe cleaned by H. H. Howard Company is acceptable for use in safety-related applications is raised by Item 11.C of Intervenors' QA Subcontention. Edison has performed a detailed analysis of this issue and will present that analysis in response to Subcontention Item 11.C. (Gorski Affidavit, p.

4.)

ROREM SUBCONTENTION ITEM 6.I

6. I. Material installed for the pipe whip restraint plate was not of proper specifications. (Inspection Report 84-09, Exhibit 22.)

Board's Ruling on Summary Disposition (6.1)

We grant sumary disposition to Applicant on Subcontention 6.I.

To facilitate preparation for hearing on the other issues, we will issue our full decision on this issue at some later date.

ROREM SUBCONTENTION ITEM 9.A 1

Rorem Subcontention 9.A states in pertinent part:

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I 9. Contrary to Criterion IX, " Control of Special Processes," of 10 C.F.R Part 50, Appendix B, Comonwealth Edison Company has failed to ensure that measures are established to assure that special processes, including welding are controlled and accomplished in accordance with applicable ccdes, standards, specifications, criteria and other special requirements.

9. A. 127 safety-related structural steel fillet welds were painted prior to acceptance of the work and the welds were subsequently visually inspected for acceptance, with 79 accepted in the painted condition. In addition, visual weld inspections were not performed on safety-related full penetration welds completed under the jurisdiction of Structural Specifications R/L-2735 and F/L-2722 prior to May 1, 1984. The welds were accepted based on other methods of nondestructive examination, but were not accepted in accordance with the requirements of Section 8.15, Quality of Welds, Visual Inspection.

Su3 contention 9.A encompasses two separate events. Event I involves alleged inspection of fillet welds through paint. Event II involves an alleged failure to perfonn visual weld inspections on certain full penetration welds. Only Event I was addressed in Applicant's Motion for Sumary Disposition.

Board's Ruling on Sumary Disposition (9.A)

The Board denies sumary disposition and accepts certain material facts, as modified, as to which there is no genuine issue to be heard.

This issue arose through discovery by an NRC inspector in 1984 of a visual weld inspection report of Pittsburgh Testing Laboratories l

(PTL), Applicant's independent testing contractor, indicating that 1

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certain fillet welds had been inspected through paint. This was contrary to Braidwood Quality Procedures.

Upon learning of this probleu, PTL reviewed the approximately 4,000 visual inspection reports which had been completed up to that point in 1984 to determine if there were other inttances where fillet welds had been inspected through paint. PTL discovered five other reports notating an inspection through paint. Altogether, the reports reflected the inspection of 127 welds in painted condition.

Applicant offers that it has taken measures to ensure that inspections, af ter the problem was identified, have been conducted in accordance with requirements, and has inspected and dispositioned the 127 identified welds to assure thdt the violation of procedures did not result in any hardware problems in the field.

As Intervenors point out, however, no explanation whatever is provided for the apparent assumption that in all instances where the welds were inspected through paint, the improper inspections were documented on the inspection reports themselves. Intervenors suggest that the two inspectors who documented this practice may have done so to evidence their protest of such obviously faul ty inspection procedures or because they were especially diligent. Intervenors ask how many other welds might have been inspected through paint but not

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

documented as such. Intervenors question why the faulty inspection procedure was adopted in the first instance and, secondly, why an effectively qualified and trained PTL weld inspector would follow such an improper procedure, whether documented or not.

We agree with Intervenors that these matters must be explored at a full evidentiary hearing.

Material Facts As To Which There Is No Genuine issue To Be Heard (9.A)

1. In May, 1984, while conducting a review of Pittsburgh Testing Laboratories (PTL) documents in connection with an unrelated matter, an NRC inspector found one visual weld inspection report which indicated that certain fillet welds had been inspected through paint. This inspection report had been prepared in 1980.

The inspection report related to an inspection of structural steel fillet welds installed by Napoleon Construction Company (NCC). (Fred D. Forrest Affidavit at 3.)

2. The NRC inspector brought this visual weld inspection report to the attention of PTL's site manager. PTL's site manager acknowledged that an inspection of fillet welds through paint was contrary to PTL procedures. (Fred D. Forrest Affidavit at 3.)

1 i

The NRC issued an item of noncompliance, severity level IV as a result of these improper inspections.

3. To determine whether there were further visual weld inspections which had been done through paint, the PTL site manager ordered a review of all PTL visual weld inspection reports which totaled approximately 4000 at that time. (Fred D. Forrest Affidavit, p.

3.)

4. Five additional visual weld inspection reports were found which contained a similar notation indicating that visual weld inspections had been done after the welds were painted. The six visual weld inspection reports involved were reports numbered

! 561, 709, 711, 713, 716 and 717. PTL found no other weld inspection reports indicating that inspect 4ons had been conducted of painted welds. (Fred D. Forrest Affidavit, pp. 3-4.)

5. The welds covered by Report 561 had been visually inspected through paint, but Edison QA had also directed that the welds be subjected to magnetic particle inspection. Despite the prior successful magnetic particle inspection, Edison instituted an NCR to disposition the breach of visual weld examination procedures reflected in Report 561. The subject welds were reinspected visually and by use of magnetic particle examination in an i

unpainted condition pursuant to this NCR. (Fred D. Forrest Affidavit at 3-4.)

6. The other five visual weld inspection reports identified were all completed by a single PTL inspector in a nine-day period in 1980.

The five reports encompassed approximately 125 fillet welds.

(Fred D. Forrest Affidavit at 4.)

7. PTL instituted an NCR to investigate and correct the problem represented by these five visual weld inspection reports. The method chosen by PTL to disposition this problem was to have the paint removed from the subject welds and to conduct a reinspection of each weld. (Fred D. Forrest Affidavit at 4.)

8. Upon further investigation, it was determined that certain of the original welds had been deleted in work done subsequent to 1980.

It was also determined that certain of the welds were currently inaccessible because of work done subsequent to 1980. For all welds which were still in existence and accessible, Gust K.

Newberg Construction Company ("Newberg"), the structural steel welding contractor at Braidwood in 1984, removed the paint from each weld. Within approximately one week of the discovery of the problem, PTL had conducted a reinspection of all of the welds

which were still in existence and accessible. (Fred D. Forrest Affidavitat4.)

9. Upon reinspection, PTL accepted sane of the welds and did not accept others. Most of the welds which were not accepted by PTL upon reinspection were reworked by Newberg. These reworked welds were subsequently inspected and accepted by PTL. (Fred D.

Forrest Affidavit at 4-5.)

10. It was determined upon reinspection that certain of the fillet welds that had been placed in 1980 were shorter than what was called for.

11. In addition, three of the welds encompassed by the subject reports were dispositioned pursuant to Edison NCRs. Two of these welds were inaccessible because of work done in 1980. These were analyzed by Sargent & Lundy. One of the inaccessible welds was found not to require analysis because subsequent work had made it redundant. The other was accepted by Sargent & Lundy after reviewing the results of PTL's reinspection of the other welds included in the subject inspection reports. Sargent & Lundy found that the design margin for the inaccessible weld was high compared to the type of weld deficiencies found in similar welds, concluding the weld could be accepted "as is". The third weld 1

1

i l

which was the subject of an Edison NCR was a fillet weld which was shorter than called for by the design drawings and for which there was insufficient room to place a longer weld. Sargent &

Lundy found that the weld was of sufficient length. (Fred D.

Forrest Affidavit at 5.)

12. By January 1985, all of the welds which had not been deleted had been inspected and accepted or dispositioned pursuant to Newberg and Edison NCRs. (Fred D. Forrest Affidavit at 6.)

13. All of the welds which were included in visual weld inspection report numbers 561, 709, 711, 713, 716 and 719 have now been reinspected in an unpainted condition and accepted or have been dispositioned pursuant to Newberg and Edison NCRs. (Fred D.

Forrest Affidavit at 6.)

14. After discovery of this problem in May 1984, Edison issued a letter to PTL directing that all future visual weld inspections shall be done while welds are in an unpainted condition to prevent recurrence of the problem. PTL's site manager has also instructed his inspector's that all inspections shall be done in accordance with procedures. (Fred D. Forrest Affidavit at 6-7.)

15. NRC has closed out this item of noncompliance after review of the corrective action taken by the Licensee and its contractors.

(NRC Inspection Report numbered 50-456/85-40 and 50-457/85-39.)

ROREM SUBCONTENTION ITEM 9.C Rorem Subcontention 9.C states in pertinent part:

9. C. Nine L.K. Comstock filler metal withdrawal authorization forms documented the release of E7018 weld rod for cable pan welds between May 25, 1982, and July 28,1985 (Inspection Report 84-13 Exhibit 24).

Board's Ruling on Summary Disposition (9.C)

The Board denies sumary disposition and accepts certain material facts, as modified, as to which there is no genuine issue to be heard.

During a routine safety inspection in 1984, NRC resident inspectors reviewing over 300 filler metal withdrawal authorization forms at L.X. Comstock (LKC) found that nine of them documented the release of E-70 series electrodes for use in cable pan welding, when LKC procedures had specified the use of E-60 series of electrodes.

! Five of the nine forms indicated that E-60 weld drives had been used, although their heat numbers corresponded to E-70 electrodes. Thus, the accuracy of the filler metal withdrawal authorization forms was in i

l 1

doubt. To disposition this discrepant condition, LKC revised its procedures in order to improve control of the filler metal and committed itself to a review of all filler metal withdrawal forms issued since the start of the project. Subsecuently, it did not complete the review, but, on an engineering evaluation, determined that there was no design significance to interchanging the two types of weld rods. NRC accepted this disposition.

Intervenors point out that no effort was made to determine the root cause of the document discrepancy problems that resulted in the wrong heat numbers or rod type specifications being listed on the quality documents. Furthermore, they challenge the engineering judgment that there was no design significance to interchanging the two types of weld rods, on the basis of deposition testimony that the workaU lity of the two types of rods was different, which could result in welds with subsurface porosity or cracking that might be undetectable even upon visual inspection.

While this Board is not concerned, in general, with the

" hardware" issues, i.e., the safety effects of each of the identified quality assurance discrepant conditions, we have a concern about the validity of an engineering judgment that dispositions the entire issue so that the root cause and the extent of the document discrepancy problems have not been examined.

We believe an evidentiary hearing on this matter is necessary.

Material Facts As To Which There Is No Genuine Issue To Be Heard (9.C)

1. Filler material withdrawal authorization forms at L.K. Comstock (LKC) document the release of electrodes to welders. During a routine safety inspection from June 5 through July 6,1984, NRC resident inspectors reviewed over 300 such forms and found that nine of them documented the release of #7018 weld rod, an E70 series electrode, for use in cable pan welding. The NRC Staff assessed a severity Level IV item of noncompliance as a result of this finding. Sargent & Lundy drawings and LKC procedures had specified use of E60 series electrodes for cable pan welding.

Although five of the nine forms indicated that E6013 weld rods had been used, their heat numbers corresponded to E7018 weld rods. Thus, the accuracy of the metal withdrawal authorization forms [ identification of weld rods as E60 or E70 series] was indeterminate. (Affidavit of James W. Gieseker, pp. 2, 3

[ hereinafter "Gieseker Affidavit"].)

2. Cable pans are thin gauge carbon steel channels supported by hangers at regular intervals. The cable pan welds for which E60 series had been specified, but E70 series weld rods may have been used, are those which attach a cable pan to its support.

i l

Nonconformance Report (NCR) 3275 was issued by LKC to track and disposition the discrepancy. (Gieseker Affidavit at 3-4.)

3. LKC took the follcwing steps to disposition NCR 3275. First, LKC Procedure 4.3.10 Rev. D was revised in order to improve control of filler metal. Additionally, appropriate personnel involved in issuance and control of filler metal received training in the applicable procedure. Finally, LKC committed itself to a review of all filler metal withdrawal forms issued since thi start of the project to identify any additional document discrepancies in which actual heat numbers might not match the type of electrode withdrawn, as was the case with five of nine withdrawal forms discussed above. The NRC closed this item on March 12,1985 in Inspection Reports No. 50-456/85-005(DRS); 50-457/85-005(DRS).

(Gieseker Affidavit at 4.)

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4. LKC did not complete a review of all such forms; instead, it dispositioned the discrepancy by an engineering analysis that concluded that there was no design significance to interchanging E60 weld rods with E70, or vice-versa.

5. A subsequent NRC inspection found that no significant deficiency exists in either LKC's control of filler metal withdrawal or in its documentation. Inspection Report No. 50-456/85-009(DRS);

( ..

50-457/85-009(DRS). A random sample of LKC filler metal withdrawal forms covering a three-year period by the NRC inspector identified one typographical error and one misfiling.

No other deficiencies were found. The report also concluded that LKC had in place adequate weld filler material controls, in light of the corrective action LKC had taken in NCR 3275 to improve control of filler metal. (Gieseker Affidavit at 6.)

ROREM SUBCONTENTION ITEM 9.D

9. Contrary to Criterion IX, " Control of Special Processes," of 10 C.F.R Part 50, Appendix B, Coninonwealth Edison Company has failed to ensure that measures are established to assure that special processes, including welding are controlled and accomplished in accordance with applicable codes, standards, specifications, criteria and other special requirements.

9. D. [A] quality [ structural steel, flux core welding procedure,]

was not approved for use by the Architect-Engineer, Sargent

& Lundy, but was released for use in installation by the structural steel contractor and documented as being used for cover plate welds. Furthermore, the welder documented as performing the welding was not qualified. In addition, RPS Division loop B, reactor records identifying the welder or welder filler metal utilized. (The words in brackets represent corrections to Intervenors' statement of the NRC item of noncompliance set forth in Subcontention 9.D.)

Subcontention 9.0 encompasses two separate events. Event I involves alleged use of an unapproved structural steel welding procedure by an allegedly unqualified welder. Event II involves the absence of complete documentation for a socket weld joint for instrumentation piping. A separate statement of material facts as to

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which there is no genuine issue to be heard is provided for each l

event. The two events are discussed together, since they were characterized as separate examples of one severity level V item of noncompliance by the NRC Staff.

Board's Ruling on Summary Disposition (9.D)

We grant sunnary disposition to Applicant on Subcontention 9.D.

To facilitate preparation for hearing on the other issues, we will issue our full decision on this issue at some later date.

R0 REM SUBCONTENTION ITEM 10.F

10. Contrary to Criterion X, " Inspection," of 10 C.F.R Part 50,

, Appendix B, Commonwealth Edison Company has failed to ensure that a program for inspection of activities affecting quality was established and executed by or for the organization performing the a tivity to verify conformance with the documented instructions, procedures and drawings for accomplishing the activity.

10. F. Electrical contractor, Comstock, inspected and accepted a junction box which was later determined to have deficiencies in the location of the anchors used for mounting of the junction box. Anchors were accepted even though they were 3" from the required location specified by Sargent & Lundy Drawing 20E-1-3571

i Board's Ruling on Sumary Disposition (10.F)

We grant summary disposition to Applicant on Subcontention 10.F.

To facilitate preparation for hearing on the other issues, we will issue our full decision on this issue at some later date.

ROREM SUBCONTENTION ITEM 12.E

12. Contrary to Criterion XVI, " Corrective Action," of 10 C.F.R Part 50, Appendix B, Comonwealth Edison Company has failed to ensure that measures were established to assure that conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances are promptly identified and corrected. And in the case of significant conditions adverse to quality, Applicant failed to ensure that the cause of the condition is determined and corrective action taken to preclude repetition.

12. E. Although BCAP had identified that Level I QA inspectors had inspected and accepted construction activities, this was not documented as a BCAP nonconforming (conditionInspection Report 85-06, Exhibit II.)

observation.

This Subcontantion asserts that the BCAP (Braidwood Construction Assessment Program) Task Force identified a nonconforming condition but failed to document it as a BCAP observation. The allegedly nonconforming condition relates to Comstock use of Level I Inspectors for visual weld inspections. Applicant states that the BCAP Task Force did, in fact, issue an observation documenting Comstock's practice. The NRC Staff has withdrawn the item of noncompliance upon which this Subcontention is based. Applicant contenas that there was no violation of Criteria XVI of 10 C.F.R. Part 50, Appendix B.

Applicant argues that, while it is true that there was a failure of communication between the BCAP Task Force and the NRC staff inspector, it is also apparent from the circumstances that the proposed item of noncompliance would never have been issued had the NRC staff inspector not been monitoring the activities of the BCAP Task Force exceptionally closely and had the Assistant Director of BCAP not been open and candid in advising the NRC staff inspector of the task I l

force's deliberations concerning whether the identified Comstock l l

practice was or was not a violation of the applicable requirements of ANSI Standard N45.2.6-1978. Applicant contends that Subcontention Item 12.E is based on a factual error and asserts that the BCAP Task Force failed to document something which, in fact, it did document.

The steps Connonwealth Edison is taking to resolve the NRC Staff's concern regarding Comstock's use of Level I inspectors are described in the affidavit submitted in response to Subcontention Item 3.C.

These actions are not material with respect to this Contention Item 12.E. Even if the Licensing Board were to conclude there is a genuine i issue of material fact as to Subcontention Item 3.C., Applicant contends that the Licensing Board can grant summary disposition on Subcontention 12.E.

Staff agrees with Applicant that Rorem Subcontention 12.E is premised on a factual errar and shares the Applicant's view that there is no genuine issue as to any material fact regarding this

subcontention. The fact is that BCAP personnel did not fail to identify instances in which Level I QC inspectors were used to inspect and accept construction activities. Consequently, the facts underlying Rorem Subcontention 12.E do not indicate that Applicant has violated 10 C.F.R. Part 50, Appendix B, Criteria XVI by failing to assure that conditions adverse to quality were "promptly identified and corrected." Accordingly, both Applicant and Staff submit that there is no genuine issue as to any material fact to be heard and Applicant is entitled to a favorable decision on this subcontention as a matter of law.

Intervenors do not agree, stating that Edison's Braidwood Construction Assessment Program (BCAP) has .been presented to the NRC and the public as a comprehensive assessment of a quality of construction of the Braidwood facility. Intervenors allege that BCAP refused to acknowledge the serious programmatic QA deficiencies represented by the practice of utilizing Level I QC inspectors to perform the visual inspection of welds and that this casts serious doubt on the integrity and reliability of the BCAP effort.

Intervenors state that documenting the Level I concern as an observation was initiated only after NRC Inspector Ron Gardner had identified his dissatisfaction with BCAP's failure to do so. Far from demonstrating a conservative, cautious approach to a significant question implicating quality and safety of construction, Intervenors

allege that BCAP's treatment of the Level I QC inspector issue evidences a false and overly technical defense of a flaw in the inspection practice. Intervenors contend that Subcontention Subpart 12.E must be considered together with Subpart 3.C which raises the substance of the improper use of Level I QC inspectors.

Board's Ruling On Sunenary Disposition (12.E)

The motion for summary disposition is granted. The Board agrees with Applicant and Staff that there are no genuine issues of material fact to be heard concerning this contention and Applicant is entitled te a favorable decision on its motion. Any concerns about the

improper use of Level I inspectors can be ventilated during the litigation of Rorem Subcontention 12.E.

Board's Findings of Fact (12.E)

1. In late 1984, the Braidwood Construction Assessmeint Program (BCAP) Task Force noted that Comstock's procedures for visual inspections of welds required that the inspectors who performed the inspection be certified to at least Level I, and also required that each inspection report would be reviewed and approved by a Level II inspector. (Affidavit of George Orlov on Rorem QA Subcontention 12E [ hereinafter, "Orlov Affidavit"] at

5.) The question arose within the BCAP Task Force whether this practice was consistent with the requirements of the applicable ,

standard, ANSI N45.2.6-1978 (,Id.).

2. ANSI N45.2.6-1978 is ambiguous as to what methods Level II inspectors must use to establish the acceptability of Level I inspectors' visual weld inspection results, and the degree of responsibility which may be g .en to Level I inspectors performing such visual weld inspections. (Orlov Affidavit at 4-5; Deposition of Ronald N. Gardner dated October 31, 1985, at Tr. 66-71.)

3. In late 1984, the Assistant Director of BCAP, George Orlov, told NRC Project Inspector Ron Gardner that the BCAP Task Force woulu document this concern with respect to Comstock's practice by issuing an observation. However, in February 1985 Mr. Orlov told Mr. Gardner that the BCAP Task Force would not issue such an observation because Comstock's practice did not depart from the requirements of ANSI N45.2.6-1978. (Orlov Affidavit at 6-9; Gardner deposition at Tr. 57-58,62-63.)

4. After tht conversation, Mr. Orlov sensed that he had failed to convince Mr. Gardner that Comstock's practice was acceptable.

Accordingly, he discussed Mr. Gardner's concern with the BCAP

Task Force Director, who directed him to document the question concerning Comstock's practice by issuing an observation. (Orlov Affidavit, p. 10). This observation was in fact issued on February 27, 1985. (Orlov Affidavit at 10, and Exhibit A.)

5. Prior to the completion of Mr. Gardner's inspection on March 1, 1985, the BCAP Task Force failed to communicate effectively to Mr. Gardner the fact that this observation had been issued.

(Orlov Affidavit at 10.)

6. On March 8, 1985 the NRC Staff issued Inspection Report 50-456/85-006; 50-457/85-006 which included as an item of noncompliance the following statement:

Although the Braidwood Construction Assessment Program (BCAP) had identified that Level I QA inspectors had inspected and accepted construction activities, in violation of the requirements delineated in ANSI N45.2.6, this nonconforming condition was not documented as a BCAP observation.

(Orlov Affidavit at 3.)

7. CECO responded to this Inspection Report on May 6, 1985 and showed Mr. Gardner the BCAP observation written on February 27, 1985. (Orlov Affidavit at 10, and Exhibit B.) On June 27, 1985 the NRC Staff agreed that this was not an item of noncompliance.

The NRC Staff stated that the information presented in CECO's

response was not known to the NRC inspector at the time of the inspection. (Orlov Affidavit, Exhibit C.)

ROREM SUBCONTENTION ITEM 12.F

12. F. In addition, 37 BCAP observations were invalidated by S&L even though the documented basis for the invalidations of the observations did not support the invalidations.

(Inspection Report 85-06, Exh. 11.)

A " Red Line Drawing" is a blueprint of a piping isometric drawing on which field changes to piping dimensions or routing are recorded, typically using a red pen. The purpose of a Red Line Drawing is to document any potential differences between the piping configuration in the architect / engineer's initial design and that which is eventually installed.

QC verification of the information contained in Red Line Drawings is required by 10 C.F.R. Part 50 Appendix B and relevant Ceco and Phillips Getschow Company (PGCo) procedures.

In its motion for sununary disposition Applicant states that Subcontention 12.F asserts that 37 BCAP observations were invalidated by S&L (Sargent & Lundy). Applicant states that is not true. S&L recommended that 37 BCAP observations relating to the lack of QC signatures on " Red Line Drawings" be invalidated but that recommendation was never accepted. The 37 Red Line observations never

were invalidated. Orlov Affidavit, at 11. Applicant states that the BCAP task force at one time intended to invalidate the 37 Red Line observations, but on a different basis from that suggested by Sargent

& Lundy; namely, that the QC signatures on Phillips Getschow Company's Stop Work Order (SW0) forms were an acceptable substitute for the missing QC signatures on the Red Line Drawings. However, subsequent investigation by the BCAP Task Force and site QA personnel showed that the SWO forms were not acceptable alternative documentation, so the 37 observations remain valid. The 37 observations are being resolved by

- QA. Hunsader Affidavit, at pp. 1-3. In its motion, Applicant states that the facts relating to this contention item illustrate the extremely strict scrutiny to which the BCAP Task Force was subjected.

The Independent Expert Overview Group (IE0G) issued an observation relating not to a BCAP Task Force action, but to a Sargent & Lundy recomendation. Similarly, the NRC Staff issued an item of noncompliance to the BCAP Task Force for proposing to invalidate the 37 observations (without, in the NRC Staff judgment, sufficient prior inquiry into the basis for the proposed invalidation). The NRC Staff maintained that this was an item of noncompliance even after being informed that the BCAP Task Force was awaiting the results of a QA surveillance prior to actual invalidation of the 37 observations.

Subsequently, in response to a recommendation from an NRC Staff, BCAP QA comitted to review 100% of all invalidated BCAP observations and l

discrepancies to ensure that sufficient justification for such invalidation exists.

Applicant maintains that not only is Subcontention Item 12.F based on a misstatement of fact but the circumstances surrounding the issue increase rather than din.inish confidence that all conditions adverse to quality identified by the BCAP have been appropriately addressed.

NRC Staff generally agrees with Applicant and believes that the motion for summary disposition should be granted. The NRC Staff apparently did not recognize that Sargent & Lundy's action with respect to these 37 BCAP observations was a recommendation for an invalidation rather than an outright invalidation. In evaluating Sargent & Lundy's justification, NRC Inspector Gardner learned that the QC inspector who signed the Stop Work Order (SW0) was not always the same QC inspector who actually performed the inspection in the field. Because of this the existence of a signed SW0 form was not an acceptable substitute for the lack of a QC signature on the verification drawing. It was on this basis that the Staff determined that the invalidation of the 37 BCAP observations was an example of noncompliance with the 10 C.F.R. Part 50, Appendix B, Criterion XVI which requires Applicant "to assure that conditions adverse to quality

... are properly identified and corrected."

While Applicant disagreed that the item at issue constituted an example of noncompliance nevertheless, to address the Staff's concern, Applicant took two corrective actions. First, BCAP quality assurance personnel established mandatory hold points during the processing of invalidated observations or discrepancies to allow quality assurance personnel to review the justification for validation. Second, BCAP quality assurance personnel reviewed observations and discrepancies previously invalidated to ensure the sufficient justification for the invalidation existed.

The NRC Staff opines that there is no evidence indicating that the violation giving rise to Rorem Subcontention 12.F is not an isolated occurrence. The Staff feels that adequate measures have been taken by Applicant to remedy that violation and the Staff's concerns have been resolved. Both Applicant and Staff say there is no genuine issue as to any material fact that needs be heard and Applicant is entitled to a favorable decision on its motion for summary disposition on Rorem Subcontention 12.F.

Intervenors disagree stating that BCAP observations on this matter were improperly invalidated by Sargent & Lundy. BCAP failed to document any disagreement with the Sargent Lundy invalidation until after the NRC inspection and admission of an amended quality assurance contention. Intervenors state that a series of decisions reflected in

this item of noncompliance further evidence the overly narrow apologist approach taken by BCAP management toward serious and blatant quality assurance flaws. Intervenors also state that BCAP continued to defend the improper practice of failing to require quality control field verification of the accuracy of as-constructed piping drawings in the face of an obviously vague and imprecise procedure and in the absence of any initiative to determine and evaluate actual practice.

Intervenors argue also that, in substance, Sargent & Lundy did, in fact, invalidate the 37 BCAP observations without the least objection from BCAP, at least, not until Edison's May 6,1985 response to the NRC items of noncompliance. Orlov Affidavit, Exhibit B. Intervenors state that Edison's argument rests on its interpretation of the BCAP procedure requiring BCAP to make the final determination of validity.

The Independent Expert Overview Group (IE0G), the Evaluation Research Corporation (ERC) seems to have gotten it clear in the minds of the Intervenors where they stated "S&L has responded to several BCAP l

observations ... declaring them to be invalid." Intervenors also state no documentation whatever was filed with Applicant's motion for summary disposition evidencing BCAP disagreement with Sargent &

Lundy's invalidation recommendation and none was produced upon request at or during Mr. Orlov's deposition. Mr. Orlov explained that the relative portions of the observation form were in the QA vault. When asked to specify when BCAP documented its disagreement with Sargent &

Lundy's invalidation recommendation of December 27, 1984, Mr. Orlov i

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1

identified the date as July 1965, more than six months later after the NRC identified the noncompliance after Edison responded to the noncompliance and even after 'the admission of Intervenors' amended quality assurance contention raising this issue. Intervenors contend that important issues remain for resolution regarding the reasons for such actions actions by BCAP and particular the implications of such actions for the integrity of the BCAP program and that summary disposition is inappropriate and should be denied.

l Board's Ruling on Summary Disposition (12.F)

Applicant's motion is denied. Questions raised by Intervenors concerning the documentation of 8 CAP's disagreement with S&L's recommendation on the 37 Red Line observations have not been fully answered and remain for hearing.

Material Facts As To Which There Is No Genuine Issue To Be Heard (12.F)

1. A " Red Line Drawing" is a blueprint of a piping isometric drawing on which field changes to piping dimensions or routing are recorded, typically using a red pen. The purpose of a Red Line Drawing is to document any potential differences between the piping configuration in the architect / engineer's initial design and that which is eventually, installed. (Affidavit of George

Orlov on Rorem QA Subcontention 12F [ hereinafter, "Orlov Affidavit," at 3-4].)

2. QC verification of the information contained in Red Line Drawings is required by 10 C.F.R. Part 50 Appendix B and relevant Ceco and Phillips Getschow Company (PGCo) procedures. (Orlov Affidavit, at4.)

3. The BCAP Task Force initially interpreted the relevant PGCo procedure to require that there be a QA signature on each Red Line Drawing, indicating that QC verification had taken place.

(Orlov Affidavit, at pp. 5-6.) The BCAP Task Force document reviewers quickly found 37 Red Line Drawings for small bore piping with no such QC signature, and accordingly the BCAP Task Force issued 37 observations. (Id.)

4. In accordance with BCAP procedures, the architect / engineer Sargent & Lundy (S&L) reviewed the 37 BCAP observations. At the end of December 1984 S&L recommended that all these observations be invalidated on the basis that the Red Line Drawings reviewed l

by the BCAP Task Force (which were called "re-lined record copy isometrics") werr not required by the applicable S&L specifications or by the applicable PGCo procedures. (Orlov Affidavitat5-7.)

l

5. On January 14, 1985 the Independent Expert Overview Group (IE0G) identified a concern regarding this S&L recommendation. IE0G indicated that the S&L recommendation was based on a technicality as to some of the Red Line Drawings, and that the 37 observations were not invalid. (Orlov Affidavit at 7, and Exhibit B.)

6. The IE0G concurred with the BCAP Task Force's proposed corrective actions. IE0G indicated that its observation would remain open until the BCAP's corrective actions were completed and subsequently verified by IE0G. (Orlov Affidavit at 9.)

7. In February 1985 the results of the BCAP re-review and the site Quality Assurance surveillance indicated that the SW0 forms were not acceptable alternative documentation of QC verification of piping configurations and dimensions, because the signatures on the SWO forms were those of office QC technicians rather than field QC inspectors who performed the piping inspections. (Orlov Affidavit at 11.)

8. Also in February 1986, NRC Project Inspector Ron Gardner performed a follow-up review of the BCAP's response to the IE0G observation relating to the 37 Red Line Drawings. At PGCo he determined that the SW0 forms were not acceptable alternative documentation. He later informed BCAP Task Force personnal that

the BCAP Task Force should have done this research prior to submitting its January 25, 1985 response to the IEOG observation indicating that the 37 Red Line observations were invalid.

(Orlov Affidavit at 12.) On March 8, 1985 the NRC Staff documented this inspection finding as an item of noncompliance.

(Orlov Affidavit at 12.)

9. In response to an NRC Staff recommendation, on March 22, 1985, BCAP QA established mandatory hold points which prohibited the BCAP Task Force from invalidating any BCAP observations or discrepancies without BCAP QA review and concurrence. In addition, BCAP QA reviewed previously invalidated BCAP t

observations and discrepancies to ensure that sufficient justification for the invalidations exists. (Affidavit of Neil P. Smith on Rorem QA Subcontention 12.F [ hereinafter " Smith Affidavit"].)

ROREM SUBCONTENTION ITEM 12.J

12. J. In two areas, supports / restraints and piping runs, deficiencies were identified by the NRC CAT that were not ident.ified by the BCAP inspectors. On the basis of the limited sample overinspected, it appears that BCAP inspection effort needs to be improved in areas of supports / restraints and piping runs.

Subcontention 12.J is based on the results of an NRC Construction Assessment Team (CAT) finding. The CAT inspection took place in

December 1984 and January 1985, early in the period of the BCAP Task Force inspections when only a limited number of hardware items had been inspected by the BCAP Task Force. In four of the six areas overinspected by the CAT there was general agreement between BCAP and CAT findings. Deficiencies in piping runs and pipe support / restraints were found by the CAT but were not identified by the BCAP Task Force inspectors working in those areas. The affidavit of Ed Shevlin, the BCAP Task Force Lead Mechanical / Welding Inspector, states that by his (Shevlin) count, three mistakes were made by a BCAP Task Force inspector in inspecting pipe runs and two BCAP Task Force inspector mistakes were made in inspecting supports / restraints. Other differences between the BCAP Task Force and the CAT were attributable to the instructions given to the BCAP Task Force inspectors or a different inspection technique. In its motion for summary disposition, Applicant concedes that in the two areas, piping runs and supports / restraints, deficiencies not identified by BCAP inspectors were found by the NRC Construction Appraisal Team (CAT) but argues that even the best inspectors make mistakes occasionally. It is unrealistic to expect perfection in QC inspection activities anymore  ;

l than in any other field of human endeavor. Applicant also implies that because BCAP inspections were just beginning in these areas, BCAP QA overinspections of BCAP Task Force inspection work had not begun and would likely have uncovered the same deficiencies identified by the NRC Construction Assessment Team.

In the area of pipe supports / restraints the BCAP Task Force

' reverified all attributes called into question by the CAT findings on all previously inspected pipe supports / restraints. In the reverification prograin, no BCAP task force inspector reinspected his own work. The reverification program for supports / restraints resulted in only 20 new observations of which only eight were attributable to inspector error. Based on this reverification program, the initial BCAP task force inspections for these attributes were determined to be greater than 98% accurate. Shelvin Affidavit, at p. 26-27.

In addition to the actions taken by the BCAP Task Force in response to the CAT findings, BCAP QA carried out an overinspection program in which from 16 to 23% of the BCAP Task Force inspections in the pipe run and pipe supports / restraint construction categories were over inspected by BCAP QA inspectors. The acceptance criteria for agreement between BCAP Task Force inspections and BCAP QA inspections j

was set at 95% for objective attributes, and 90% for subjective attributes. The BCAP Task Force inspections exceeded these acceptance criteria in each piping run and pipe supports / restraint construction category. Smith Affidavit, at p. 15. Applicant argues that the affidavit submitted in support of this motion shows that there is no genuine issue of material fact to be heard with respect to the adequacy of BCAP Task Force inspections of pipe runs and pipe supports / restraints. Applicant contends that its inspection

activities for piping runs and pipe supports / restraints complies with Criteria XVI of 10 C.F.R., Part 50, Appendix B. The NRC Staff agrees.

As a result of the CAT inspection, in addition to a partial repeat inspection of 160 previously reinspected mechanical pipe supports, Applicant revised BCAP instructions for inspectors and additional training was provided to BCAP inspectors. Gardner Affidavit 12.J, at Item 11, p. 133. Staff affiant, Gardner, opined that these corrective actions adequately address the CAT findings and subsequent inspections of BCAP inspector performance in these areas provide further assurance that the BCAP inspection effort has been satisfactory. In his affidavit he reports that this item will be closed in the final BCAP inspection report expected to be issued in February 1986.

Intervenors disagree with both Applicant and Staff and contend that Edison and its Braidwood Construction Assessment Program (BCAP) have failed to assure that conditions adverse to quality are identified and corrected in a timely manner. Intervenor contends that the Construction Sampling Reinspections (CSR) are at the core of the BCAP effort to assess and establish the quality of construction at Braidwood. Serious questions exist as to the effectiveness of the CSR inspection effort. In their answer to Applicant's motion for summary disposition on Subcontention 12.J, Intervenors cite additional construction deficiencies which, they state, reinforce the CAT findings. Intervenors cite Inspection Report 85-02 of February 13,

1985, where an NRC inspector witnessed overinspections of a concrete placement and noted four deficiency items not found by BCAP inspectors and an overinspection of electrical concrete hangers where additional items, again not found by BCAP inspectors were noted. Intervenors contend that certain portions of Mr. Gardner's affidavit are unreliable based on (1) failure to affirmatively demonstrate ccmpetence to testify on the matters based on personal knowledge; and (2) impermissible expressions of opinion as to the ultimate facts.

Intervenors allege that paragraph 7 of Mr. Gardner's affidavit regarding the CAT inspection is hearsay and not founded upon personal knowledge and Mr. Gardner's statements in paragraph 12 are opinion as to the ultimate facts and are, therefore, unreliable, stating that in his opinion that Item 12.J will be closed in the final BCAP inspection report is mere speculation. The item remains open. Applicant and Staff both state that with regard to Subccntention 12.J BCAP inspection efforts were, in fact, improved in the areas of pipe supports / restraints and pipe runs and that Intervenors have not presented any information during discovery to controvert Mr. Gardner's or Applicant's assertions.

Board's Ruling On Summary Disposition (12.J)

The Board denies the motion for summary disposition. The issues are apparently still open with respect to the NRC Staff's and the

BCAP's final inspection reports either not yet completed and/or not part of the motion submitted. Staff's and Applicant's experts should be subject to questioning on their conclusions at an evidentiary hearing.

Material Facts As To Which There Is No Genuine Issue To Be Heard (12.J)

1. As documented in Inspection Report 50-456/84-44, 50-457/84-40, an NRC Construction Assessment Team (CAT) inspection was performed on December 10-20, 1984 and January 7-18, 1985 at the Braidwood site. The schedule for the Braidwood Construction Assessment Program (BCAP) inspections was such that only limited hardware l

samples were available for NRC CAT overinspection. It was possible to overinspect a very small sample of hardware in the areas of pipe supports / restraints, piping runs, HVAC supports and ducts for welding, HVAC ducts for configuration and conduit runs.

In four of the six areas that were overinspected there was general agreement between BCAP and NRC CAT findings: ~i n two areas, pipe supports / restraints and piping runs, deficiencies were identified by the NRC CAT that were not identified by the BCAP inspectors. (Id., p. A-1.)

2. The BCAP Task Force inspectors who performed inspections of piping runs and pipe supports / restraints were all certified to r -

ANSI N45.2.6-1978, Level II or Level III. Their average quality control experience was approximately nine years. None of them had any prior involvement with Braidwood. (Shevlin Affidavit at 3-6.)

3. With respect to piping runs, the BCAP inspections overinspected by the NRC CAT were associated with four isometric drawings. Two differences in findings were identified, both involving the same isometric drawing and the same BCAP Task Force inspector. In one case, the BCAP inspector had failed to add to her measurement a "take-out" dimension (a dimension taken from a table when measuring a curved section of pipe). In the other case, a mistake in the isometric drawing contributed to the BCAP inspector's error. (Shelvin Affidavit at 10-13.)

4. The BCAP Task Force Lead Mechanical / Welding Inspector, Ed Shevlin (who is certified to ANSI N45.2.6-1978 Level III) discussed these errors in detail with the BCAP Task Force inspector involved and with all of the BCAP Task Force inspectors, reviewing measurement techniques and the use of "take-out" dimensions, as well as reminding them to take the time necessary to do each inspection correctly. He also directed two BCAP Certified Lead Inspectors separately to overinspect portions of the work of the BCAP Task Force inspector who made the errors. These overinspections

identified no further problems. Based on his evaluation of the circumstances, Mr. Shevlin advised the BCAP Task Force Director that the errors were an ' isolated incident, and that no further reverification of piping run inspections was necessary. (Shevlin Affidavit, at pp. 14-15.) The BCAP Task Force Director accepted this advice and allowed BCAP Task Force piping run inspections to continue. (Kaushal Affidavit at 4.)

5. The NRC CAT overinspected six pipe supports and restraints which had undergone previous inspections by the BCAP Task Force. The NRC CAT found that three of the pipe supports or restraints had discrepant conditions not identified by the BCAP Task Force inspectors. (Shevlin Affidavit at 17-19.)

6. Upon investigation of the CAT findings, the BCAP lask Force Lead Mechanical / Welding Inspector, Mr Shevlin, found two items which he attributed to inspector errors. He also found one item (relating to attachment location along supplementary steel) where the instructions given to BCAP Task Force inspectors required clarification. Finally, one item (relating to verification of vendor fabrication dimensions) had not hitherto been treated as within the scope of the BCAP Task Force inspections. (Shevlin Affidavit at 19-22.)

7. In January 1985, soon after learning of the CAT findings, the BCAP Task Force Director suspended BCAP Task Force inspection activities for pipe supports / restraints and initiated a plan to reverify those aspects of previous BCAP Task Force pipe support / restraint inspections called into question by the CAT findings. (Kaushal Affidavit at 2, 5-6.)

8. The reverification program covered all 160 BCAP Task Force pipe support / restraint inspections which had been performed through l

January 18, 1985. The BCAP Task Force inspectors who performed  !

l the reverification were not aware of the identities of the original BCAP Task Force inspectors or the results of the original BCAP Task Force inspections. No BCAP Task Force inspector reinspected his own work. The reverification program resulted in only 20 new observations. (Kaushal Affidavit at 6; Shevlin Affidavit at 26-27.)

9. 'Following evaluation of the new observations and " feedback" training sessions with the BCAP Task Force inspectors, inspections of supports / restraints resumed on February 1,1985.

(Kaushal Affidavit at 6.)

10. After the CAT inspection, the Independent Overview Group and the NRC Staff performed numerous reviews and overinspections of BCAP l

C Task Force inspections in the mechanical / welding area. Neither IE0G nor the NRC Staff ever issued any other observation or item of noncompliance with respect to BCAP Task Force inspections of pipe runs or of pipe supports or restraints. (Kaushal Affidavit at 7; Shevlin Affidavit at 28.)

11. In addition to reviewing the qualifications, training of the BCAP Task Force inspectors and the instructions and checklists which they followed, BCAP QA also performed overinspections of the BCAP Task Force inspections. Those BCAP QA overinspections were just beginning at the time of the NRC CAT inspection and had not taken place with respect to any of the items overinspected by the CAT.

(Smith Affidavit at 7-11, Kaushal Affidavit at 2.)

12. For the five pipe run and pipe support / restraint construction categories, the percentage of BCAP Task Force inspections overinspected by BCAP QA ranged from 16% to 23%. The acceptance criteria for agreement between the BCAP QA overinspectors and the BCAP Task Force inspectors were established at 95% for oi,jective attributes and 90% for subjective attributes. For each pipe run and support / restraint construction category, the BCAP Task Force inspections met these acceptance criteria. (Smith Affidavit at 12-15.)

ROREM SUBCONTENTION ITEM 13.8

13. Contrary to Criterion XVII, " Quality Assurance Records," of 10 C.F.R Part 50, Appendix B, Comonwealth Edison Company has failed to ensure that sufficient records were maintained to furnish evidence of activities affecting quality. The records are to include at least the following: results of reviews, inspections, tests, audits, monitoring of work performance, and materials analyses. Applicant has failed to make such records identifiable and retrievable.

13. B. Sargent & Lundy Engineers calculations which provided the original justificatin for the factor design methodology and magnitude were not retrievable. (Inspection Report 84-43/39, Exh. 19.)

Board's Ruling on Sumary Disposition (13.8)

We grant sumary disposition to Applicant on Subcontention 13.B.

To facilitate preparation for hearing on the other issues, we will issue our full decision on this issue at some later date.

R0 REM SUBCONTENTION ITEM 14.8 l 14. Contrary to Criterion XVIII, "A9dits," of 10 CFR Part 50,

[ Appendix B, Comonwealth Edison Comkny has failed to ensure that a comprehensive system of planned and periodic audits is carried out to verify compliance with all aspects of the quality assurance program and to determine the effectiveness of the program. The Applicant also failed to ensure follow-up action, including reaudit of deficient areas. i

14. B. A special NRC QA inspection report May 7,1984 that:

I

• Mechanical contractor Phillips, Getschow, Co. has not established and executed a plan for auditing the implementing procedures of the quality assurance program on a period (sic) basis to determine the effectiveness of the program in accordance with the f

Phillips, Getschow, QA Manual.

1

• Electrical contractor L.K. Comstock Co./L.K. Comstock Engineering Company auditing activities neither conformed with the comprehensive annual schedule of planned and periodic audits established as required by QA Program Manual Section 4.14.1, nor did they verify compliance with all aspects of the Quality Assurance Program.

• HVAC contractor Pullman Construction Industries, Inc.

did not meet their yearly schedule for audit activities required by their QA Manual, Section 18, in that the following implementing procedure [s] were not auditei:

" - B 3.a.F, Design Control

- B 5.1.F, HVAC Repair Adjustment B 9.3.F. Expansion Anchor Installation

- B 10.2.F, Visual Weld Inspection

• Edison's audits of the installation of small bore instrumentation and process piping were inadequate in that contractor hanger design calculation problems were not identified for more than two years.

(Inspection Report 83-09, Exhibit 5.)

Subcontention 14.B lists four separate examples of a single item of noncompliance which was identified by the NRC Staff. These four instances are alleged to demonstrate collectively a failure on the part of Commonwealth Edison Company to comply with the requirements of Criterion XVIII of Appendix B to 10 C.T.R. Part 50 which requires that a comprehensive system of planned and periodic audits be carried out to verify compliance with all aspects of the quality assurance program and to determine the effectiveness of the program.

Applicant concedes that the first three examples of noncompliance listed in Subcontention 14.B represent a violation of Criterion XVIII

.- ~, -_ _ -

of 10 C.F.R. Part 50, Appendix B, but argues that the examples of noncompliance properly constitute only one violation of Criterion XVIII and that the noncompliance occurred because of a differing interpretation of Regulatory Guide 1.144-1980, the Regulatory Guide which provides guidance on how to achieve compliance with Criterion XVIII. Applicant states that the contractors involved here undertaken effective corrective actions as independently verified by both Coninonwealth Edison and the NRC Staff to resolve tne noncompliance and to prevent recurrence of similar noncompliance. With regard to Subcontention part 4, Applicant argues this item is not a bona fide item of noncompliance but rather simply a mistake by the NRC inspector as to the dates on which Applicant's audit activities were required.

NRC Staff agrees with the Applicant's arguments and supports the 1

motion for summary disposition.

On the first three items of noncompliance, Intervenors argue that Applicant's attempt to acaieve summary disposition must fail for three reasons. First, Intervenors state that Applicant is attempting to rewrite history to make it now appear that the violations of Criterion X'/III were merely the result of differing interpretations by the NRC and Edison, but that this is inconsistent with the evidence.

Secondly, Intervenors allege that Applicant does not provide competent evidence to sustain its allegations of material fact. And lastly, Intervenors claim that important discovery is still ongoing with

respect to this contention. In summing up their arguments, Intervenors state that Edison's motion is inconsistent with the evidence revealed to date; its material facts and supporting testimony are not competent or reliable; and, there is still much discovery to be had and questions to be answered before any of this subcontention is ripe for decision.

We agree with Intervenors on the lack of competent evidence to support the allegations of materici fact. For that reason, we have not accepted any facts as not being genuinely in dispute.

About the only matter which does not appear to be hotly contested relates to item four, concerning the mistake by an NRC inspector on the dates that certain work was performed and audits were required.

Intervenors appear only to question whether these audits identified contractor hanger design calculation problems, as required. We find Applicant's and Staff's affidavits to establish convincingly that substantial audits were performed on a timely basis and that no further matters need be heard at an evidentiary hearing on item four.

Board's Ruling on Summary Disposition (14.B)

The Board denies summary disposition on the first three items of noncompliance and declines to accept any material facts in advance of ,

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the evidentiary hearing. The Board grants suninary disposition on item four and will issue its opinion at a later date.

ORDER For all of the foregoing reasons and based upon a consideration of the entire record in this matter, it is, this 21st day of April,

1986, ORDERED (1) That Applicant's motion for summary disposition on issues S.A, 5.C, 6.G, 6.I, 9.D, 10.F, 12.E, 13.B and 14.B.4 is granted; and (2) That Applicant's motion with regard to the other issues is denied but the Board accepts certain material facts on these issues on which no further evidence will be taken at hearing, as detailed in the body of the Memorandum, above.

FOR THE ATOMIC SAFETY AND LICENSING BOARD L W as Herbe'rt Grossman, Chainnan ADMINISTRATIVE JUDGE

.