ML20148G216

Decision.* Affirms Concluding Partial Initial Decision, LBP-87-14,25 NRC 461.Served on 880325

ML20148G216
Person / Time
Site:	Braidwood
Issue date:	03/25/1988
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#188-5947 ALAB-890, LBP-87-14, OL, NUDOCS 8803290067
Download: ML20148G216 (31)

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3W7 00CKETED USNHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

• 88 WR 25 A10:;3 ATOMIC SAFETY AND LICENSING APPEAL BOARD

7: . . . .

Administrative Judges: DUcrJ ; k ,

Alan S. Rosenthal, Chairman March 25, 1988 Dr. W. Reed Johnson (ALAB-890)

Howard A. Wilber

) SERVED MAR 251988 In the Matter of )

)

COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456-OL

) 50-457-OL (Braidwood Nuclear Power )

Station, Units 1 and 2) ) (Safety Issues)

)

Robert Guild, Chicago, Illinois (with whom Douglass W.

Cassel, Jr., and Robert L. Jones, Jr., Chicago, Illinois, were on the brief) for the intervenors Bridget Little Rorem, et al.

Joseph Gallo, Washington, D.C., and Philip P. Steptoe, Chicago, Illinois (with whom Peter Thornton, Chicago, Illinois, was on the brief) for the applicant Commonwealth Edison Company.

Gregory Alan Berry for the Nuclear Regulatory Commission staff.

DECISION Before us on the appeal of intervenors Bridget Little Rorem, et al., is the concluding partial initial decision of the Licensing Board in this proceeding involving the application of the Commonwealth Edison Company (applicant) for an operating license for each of the two units at its Braidwood nuclear power facility in Illinois. The decision 1

See LBP-87-14, 25 NRC 461 (1987). In an earlier (Footnote Continued) 8803290067 880325 gDR ADOCK 05000456 pS()2-

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addresses a contention put forth b', those intervenors concerning alleged harassment and intimidation of quality control (OC) inspectors in the employ of an applicant contractor performing electrical work at the facility.2 As admitted by the Licensing Board, the intervenors' contention alleged:

Contrary to Criterion I . . . of 10 C.F.R. Part 50, Appendix B, and 10 C.F.R. Section 50.7, Commonwealth Edison Company and its electrical contractor, L.K. Comstock Engineering Company (Comstock] have failed to provide sufficient authority and organizational freedom and  !

l independence from cost and schedule as opposed to safety considerations to permit the effective identification of and correction of quality and safety significant deficiencies. Systematic and widespread harassment, intimidation, retaliation and other discrimination [have] been directed against Comstock QC inspectors and other employees who express safety and quality concerns by Comstock management. Such misconduct discourages the identification and correction of deficiencies in safety related the Braidwood Station.gomponents and systems at (Footnote Continued) partial initial decision, the Licensing Board resolved in the applicant's favor the emergency planning issues raised by the intervenors. See LBP-87-13, 25 NRC 449 (1987). On sua sponte review in the absence of an appeal, we affirmed that decision in ALAB-871, 26 NRC 78 (1987).

2 Although the intervenors' original contention in the quality assurance area was considerably broader, it was reduced in scope by reason of a Commission order. See i CLI-86-8, 23 NRC 241 (1986), and Licensing Board Memorandum and Order (May 2, 1986, unpublished).

LBP-87-14, 25 NRC at 464 (quoting intervenors' contention).

3 After this preamble, the contention described what the intervenors characterized as instances of harassment and intimidation. According to the conteation, more than twenty-five Comstock QC inspectors had complained to the NRC at various times since August 1984 about harassment carried out by certain Comstock quality assurance supervisory personnel. This harassment was said to include widespread pressure to approve deficient work, to sacrifice quality for production and cost considerations, and to violate knowingly established quality procedures. Any inspector expressing quality or safety concerns, the contention asserted, was subjected to threats of violence, verbal abuse, termination of employment, transfer to an undesirable job, or other adverse treatment. Further, the contention maintained that, despite the termination of the employment of a Comstock QC supervisor for his mistreatment of a OC inspector, the effects of his harassment remained and systematic harassment continued to occur.

During the course of almost 100 days of evidentiary hearings on the contention, the Licensing Board received the testimony of over sixty witnesses, including several of the Comstock QC management personnel and inspectors involved in the alleged harassment and intimidation. In addition, the applicant presented testimony on data from two reinspection procrams as rebuttal to the intervenors' charge that the effectiveness of the QC inspections was impaired by actual i

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or perceived harassment and intimidation. Unrelated to any claim embraced by their contention but as part of a general attack upon one of the Comstock QC managers, the intervenors were also allowed to introduce evidence concerning a method of inspection (referred to as the grid system) performed by Comstock prior to the period of the asserted harassment and intimidation.

Over a lengthy dissent, the majority of the Licensing Board found there to be reasonable assurance that the plant was properly constructed.4 At the outset, the majority determined that the structure of Comstock's quality assurance organization met the requirements of Criterion I of 10 CFR Part 50, Appendix B, regarding the freedom of quality assurance personnel from cost and schedule 4

Although cast in such broad terms, that finding must be read much mora narrowly. Obviously, given the limited scope of the matter being litigated, the most that the majority could appropriately find was that reasonable assurance existed that the Comstock electrical work had been properly performed. In the circumstances, it was fcr the NRC staf f to resolve, outside of the adjudication, any outstanding questions regarding the quality of the remainder of the construction work. The staff (subject to possible Commission review) also had the responsibility of making the ultimate findings required by 10 CFR 50.57 (a) ar, a precondition to the actual issuance of the operating license that the Licensing Board had authorized. Among other things, the staff had to find that the facility had been constructed in conformity with all regulatory requirements and that reasonable assurance exists that its operation will not endanger the public health and safety.

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i 5 considerations.5 It then discussed the most significant alleged instances of harassment and intimidation of OC inspectors.6 Although the Board majority considered some of the actions against the QC inspectors to have "crossed the line of acceptable behavior," it found no evidence that any of the demonstrated instances of harassment or production pressure was intended to have an ef fect on the quality of the inspections.7 Further, the Board majority considered credible the testinony of the QC inspectors that, despite the actual or perceived harassment, they had continued to perform their inspections properly.8 As part of its examination of the question whether the QC inspectors had succumbed to any harassment or schedule pressure, the Board majority reviewed the evidence relating to the applicant's two reinspection programs at the facility.' These programs consisted of a second inspection of a sample of completed work by qualified individuals who See LBP-87-14, 25 NRC at 468-71.

6 Id. at 471-92.

Id. at 502.

O Id. at 502-03. In this regard, the majority expresse3 its agreement with the belief of applicant i

consultant Robert V. Lancy, that the QC inspectors would

, scrupulously protect their personal integrity. Ibid. See j Laney, fol. Tr. 17,245, at 24-25.

9 See LBP-87-14, 25 NRC at 492-99.

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6 had not been involved in the initial inspection. Although the programs were not instituted for litigation purposes, the applicant presented an analysis of the data from the reinspections to demonstrate the consistent level of performance by the Comstock QC inspectors before, during, and af ter the period of alleged harassment. The Board majority agreed that the results did so demonstrate.10 It also observed that no significant construction shortcomings had been identified in the one reinspection program during the course of which the safety significance of found deficiencies was assessed.11 Finally, the Board majority reviewed the adequacy of Comstock's grid system inspection method and found no cause for concern.12 Based on the testimony of the QC inspectors and the results of the reinspection programs, the Licensing Board majority cor.cluded that, despite management harassment and schedule pressure, the QC inspectors had continued to perform their inspection duties in a professional manner.l' Consequently, to repeat, the majority found the requisite 10 Id. at 503.

11 Id. at 499. The other reinspection program did not evaluate the safety significance of its results. See DelGeorge, fol. Tr. 16,740, at 14.

See LBP-87-14, 25 NRC at 499-500.

13 Id. at 502.

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reasonable assurance that the Braidwood facility has been properly constructed and can be operated without endangering the public health and safety.14 On the strength of that finding, the Board authorized the issuance of licenses to operate both units of the Braidwood Station, provided that conditions stated in its earlier emergency planning decision (see supra note 1) are fulfilled.15 The Licensing Board Chairman filed a minority opinion in which he disagreed with many of the subsidiary findings of the majority. Among other things, the Chairman concluded that the harassment and production pressure were intended to affect the quality of the QC effort.16 In this connection, differing with the view of his colleagues, the Chairman found that the employment termination of a high-level inspector had been prompted by the fact that he had raised 17 In addition, the Chairman considered quality concerns.

the applicant's reinspection prograns to have been inadequate to support the efficacy of the quality assurance 14 As previously observed, supra note 4, Id. at 503.

that finHIng requires qualification.

15 Id. at 504.

16 Id. at 538.

I 17 Ibid.

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8 program or the soundness of the electrical system installation.18 Notwithstanding his belief that improper production pressure was present and that instances of harassment, intimidation and retaliation had occurred, the Board Chairman found that the QC inspectors had properly performed i

their inspections for the period in question and that there is reasonable assurance that the electrical system was properly installed by Comstock. Thus, contrary to the inte rvenors ' claim, the Board Chairman concluded that the

! quality of the construction of the Braidwood facility was not adversely affected by harassment or intimidation of QC inspectors. Based on his concern regarding the efficacy of Comstock's by then abandoned grid system method of weld inspection, howevbr, the Board Chairman could not find reasonable assurance of the safety of the facility.19

] on their appeal, the intervenors maintain that (1)

Criterion I of 10 CFR Part 50, Appendix B, was not met because of harassment and intimidation of QC inspet. tors; (2) j there is no evidence that the QC inspectors performed their I

tasks satisfactorily; (3) deficiencies in grid system weld 18 Id. at 538, 555-59, 669.

19 Id. at 538, 668-f9, In another break with the i majority 7 the Board Chairman recommended the imposition of civil penalties against the applicant and Comstock for specific matters related to harassment and intimidation of QC personnel. Id. at 538.

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inspections compel reversal of the decision; and (4) the Licensing Board improperly placed the burden of proof on the intervenors. The applicant and NRC staf t' oppose the appeal. ;

For the reasons that follow, we affirm the Licensing Board's decision.

I. Criterion I of 10 CFR Part 50, Appendix B Appendix B to 10 CFR Part 50 sets forth the quality assurance criteria for the design, construction, and operation of structures, systems, and components that prevent or mitigate the consequences of postulated accidents that could cause undue risk to the health and safety of the public.20 Criterion I provides in relevant part:

The persons and organizations performing quality assurance functions shall have sufficient authority and organizational freedom to identify quality problems; to initiate, recommend, or provide solutions; and to verify implementation of solutions.

Such persons and organizations performing quality assurance functions shall report to a management level such that this required authority and organizational freedom, including suf.ficient independence from cost and schedule when opposed to safety considerations, are provided. . . . Irrespective of the organizational structure, the individual (s) assigned the responsibility for assuring effective execution of any portion of the quality assurance program at any location where activities subject to this appendix are being performed shall have direct access to such levels of management as may be necessary to perform this function.

20 See 10 CFR Part 50, Appendix B, Introduction.

10 As earlier noted, the Licensing Board rejected the intervenors' claim that these requirements were not met in the case of the OC inspection of Comstock work. Renewing that claim before us, the intervenors go on to maintain that, a fortiori, the facility should be denied an operating license.'"l Utilities engaged in the construction of nuclear power

!:cilities are, of course, expected to comply with all of the requirements imposed by criterion I and the other

, portions of Appendix B. And, beyond doubt, the failure to observe those requirtnen'.s -- just as thu violation of other Commission regulations -- may subject the utility to enforcement action on the part of the NRC staff. But this is not an enforcement proceeding and the issue at hand is thus not whether a sanction should be imposed against the utility because of its asserted noncompliance with a Commission regulation. Rather, we are concerned in this licensing proceeding with whether the Licensing Board correctly aathorized the issuance of operating licenses for the Braidwood facility and, more specifically, whether there is adequate record support for the Board's ultimate finding i

of reasonabic assurance that the Comstock electrical work 21 See Opening Brief of Intervenors-Appellants Bridget Little Rorem, et al. (July 1, 1987) at 6-7; App. Tr. 6-11.

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e 11 was properly performed. On that score, a failure to observe some Criterion I requirements may or may not call for the conclusion that the requisite assurance is lacking. That will depend upon such factors as the nature of the violation and what measures, if any, were taken to compensate for the perceived QC organizational deficiency.

We need not, however, pursue that matter further. For we are in agreement with the Licensing Board that, contrary to the intervenors' insistence, criterion I was not violated here.

The intervenors' Criterion I claim is ersentially rooted in the undisputed fact that the applicant wished to eliminate the QC inspection backlog pertaining to the Comstock work. In this respect, the record discloses that a backlog of approximately 14,000 inspections existed in mid-1983.22 In November 1983, the NRC staff expressed concern regarding Comstock's ability to eliminate that backlog while carrying out its ongoing inspection responsib111 ties.23 In a written response to that concern, the applicant indicated that Comstock's inspection force had been expanded.24 l

22 See DeWald, fol. Tr. 1700, at 7.

f 23 See Intervenor Exhibit 3 at 7-8, 27-29.

24 See Intervenor Exhibit 7, Enclosure 2 at 3.

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In early 1984, the applicant selected Daniel Shamblin as its new Project Construction Superintendent at Braidwood. Shamblin found the continuing inspection backlog unacceptable.26 In recognition of that fact, Comstock QC Manager Irving Deiald prepared a plan for the elimination of the backlog.27 After considering the plan, Shamblin announced that the elimination of the backlog must be the first priority of Comstock.28 He also was prepared to suspend any further Comstock craft work if necessary to accomplish that objective.29 In addition, Shamblin required Comstock management to report to him every Monday on the backlog elimination ef fort.30 As part of that effort, Comstock established a daily inspection status report for use in determining the progress being made in reducing the backlog.31 In addition, DeWald met with the Comstock QC inspectors every Friday to discuss i

See Shamblin, fol. Tr. 16,274, at 1.

6 d at 8-10.

Id.

27 See Intervenor Exhibit 12.

28 See Intervenor Exhibit 8 at 1.

See Shamblin, fol. Tr. 16,274, at 10-14.

O See Intervenor Exhibit 8 at 2.

I See DeWald, fol. Tr. 1700, at 20-21; Seese, fol. Tr.

2330, at 7-9.

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13 inspection activities.32 At these meetings, it was reported that DeWald frequently would exhort the inspectors to perform their tasks expeditiously.33 Comstock also continued to hire additional QC inspectors.3 As a result of the ef forts of the applicant and Comstock, the inspection backlog was eliminated in September 1984.35 We find nothing in these undisputed facts that might be taken as supporting the intervenors' belief that the QC inspectors lacked "sufficient independence" within the meaning of Criterion I. The applicant's desire to reduce the inspection backlog was not only quite understandable but also might well have had, at least in part, safety underpinnings.36 Moreover, the steps taken to achieve that end appear to us to have been perfectly reasonable. Of particular significance, the record is devoid of anything to suggest that the applicant's management (through Shamblin)

See Tr. 1786 (DeWald).

33 See Tr. 4240-41 (Snyder); Tr. 5796-98 (Go rman) ; Tr.

7566-68 (Seeders).

See DeWald, fol. Tr. 1700, at 7-10.

35 See Shamblin, fol. Tr. 16,274, at 16-17.

36 See also Intervenor Exhibit 3 at 7-9.

Id. at 8-9.

As construction work progresses, it may become more ,

difficult to conduct certain types of QC inspections (e . g . , !

of items that are no longer readily accessible to the inspector).

2 14 was calling upon the inspectors either to conduct the inspections at a pace that would not enable a proper review of the items under scrutiny or to overlook discovered deficiencies. Among other things, there is no probative evidence that inspection quotas (let alone unreasonable ones) were imposed, or that any action was taken against a QC inspector because of the failure to complete a certain number of inspections in a given period.37 Additionally, it is clear from the testimony of the inspectors that they were free to raise quality concerns and did so when 8

appropriate.

See, e.g., Tr. 4248-56 (Snyder); Tr. 4857-66, 4883-84 (Rolan); Tr. 4995-98, 5050-54 (Mustered); Tr.

5107-28, 5207-09, 5242-43 (Holley); Tr. 5782-83 (Gorman) ;

Tr. 5918-23 (Peterson); Tr. 6857-73 (Bowman); Tr. 8655-57 (Hunter); Tr. 9238-41 (Martin); Tr. 9665-70 (Perryman) ; Tr.

9884-85 (Bossong). In support of their argument, the intervenors refer to a meeting between 24 Comstock QC inspectors and the NRC resident inspectors, where the QC inspectors are said to have agreed in response to a question that Comstock emphasized quantity over quality. See Tr.

17,534-35 (McGregor). But the testimony of the QC inspectors at trial indicated that, although stressing the I importance of expedition, the Comstock management took no

! concrete action intended to exalt quantity over quality.

See, e.g., Tr. 4267-69, 4469, 4526-27 (Snyder); Tr. 4744-47, 4882-84 (Rolan); Tr. 5115, 5122-23 (Holley); Tr. 5924-29 (Peterson); Tr. 6857-58 (Bowman); Tr. 16,647-49 (Hii).

See, e.g., Tr. 4182, 4185-87 (Snyder); Tr. 6795-815 O

(Bowman); Tr. 9648-50, 9673-81, 9689 (Perryman). This is not to say that all supervisors of the QC inspectors were pleased by the independence shown by the inspectors.

Nevertheless, the inspectors indicated that, while their management may have responded slowly in some instances, (Footnote Continued)

5 15 In the circumstances, the intervenors' argument comes down to the proposition that Criterion I contains an absolute prohibition against any endeavor by the utility to obtain the more timely performance of inspoction activities on its construction project. We reject such an expansive reading of the Criterion.39 As we see it, so long as there is no indication that it encompassed an explicit or implicit direction to perform substandard inspections, there is nothing improper about an effort to shorten the gap between the completion of a segment of the construction work and the ascertainment of the quality of that segment.

II. Harassment and Intimidation We turn now to the question whether, notwithstanding the absence of a violation of Criterion I, the record supports the intervenors' claim that intimidation and harassment of comstock QC inspectors stood in the path of the result reached below. In addressing this question, we first summarize the testimony bearing upon the nature of the (Footnote Continued) problems were resolved in due course. See, e.g., Tr. 4193, 4520-27 (Snyder) ; Tr. 4837-42 (Rolan); Tr. 6818, 6956-57, 6968-69 (Bowman) ; Tr. 9677, 9751-52 (Perryman); Tr.

12,373-82 (Archambeault).

39 Because the pertinent portion of Criterion I relates to the freedom of quality assurance personnel to raise quality concerns, we agree, however, that a violation of that criterion could occur regardless of the presence or absence of harassment or intimidation of those personnel.

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e 16 asserted intimidation and harassment and then consider the evidence directed to their effect upon the acceptability of the inspectors' performance.

A. Over a dozen Cemstock QC inspectors were called to testify. These individuals were not of one mind with regard to what constituted harassment or intimidation in a construction site setting.40 Not surprisingly, then, equally diverse opinions were expressed with regard tn whether harassment or attempts at intimidation had taken place. Some of the inspectors believed that they had been harassed and/or subjected to intimidation by Comstock QC management at various times during the 1983-85 period.41 The cited examples included abusive language by supervisors and the refusal by Comstock management to allow an inspector 2

to change his work nhift. Other inspectors, however, 40 See, e.g., Tr. 4975 (Mustered); Tr. 7051-53 (Wicks);

Tr. 6788, 6819 (Bowman); Tr. 7435-36, 7875 (Seeders) ; Tr.

9422-25 (Martin) ; Tr. 12,482 (Archambeault).

41 See, e.g., Tr. 4196-98, 4224-28 (Snyder); Tr.

4660-65 (Rolan); Tr. 5098-99 (Holley); Tr. 5728, 5741-44, 5754-56 (Gorman) ; Tr. 7418, 7425, 7853-55 (Seeders); Tr.

8635-37, 8669-70 (Hunter); Tr. 9214-15, 9219-20, 9416, 9420-26 (Martin) ; Tr. 9948 (Bossong); Tr. 12,369-70 (Archambeault).

See, e.g., Tr. 4196-98 (Snyder); Tr. 12,369-70 (Archambeault). The most serious incidents of harassment and intimidation involved confrontations with Comstock QC Supervisor Richard Saklak. Because of one such confrontation, Saklak's employment was terminated by Comstock. See DeWald, fol. Tr. 1700, at 26-33.

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t 17 disclaimed any belief that they had been significantly harassed.43 But while there was disagreement among the inspectors concerning their subjection to harassing and intimidating conduct on the part of superiors, no significant divergence of opinion was present in the testimony about the effect of that conduct upon inspector performance. With a single limited exception, each inspector to whom the question was posed stated unequivocally that, notwithstanding any perception of harassment or intimidation directed against him or fellow workers, he had carried out his responsibilities in a professional manner.44 These statements were supported by concrete illustrative examples.

Inspector Richard Snyder testified that, over the vehement objection of a supervisor, he filed a report on the calibration of a welding machine.45 Inspector John Seeders testified that he performed a record review in a careful 43 See, e.g., Tr. 4972-79 (Mustered); Tr. 6780-91, 6796-800, 6810-12, 6818-21, 6910-11 (.owman);

B Tr. 7039-40, 7050-58 (Wicks). See also Tr. 6255 (Puckett).

44 See, e.g., Tr. 4256 (Snyder); Tr. 4739, 4743-44, 4880-81 (Rolan); Tr. 4974, 4991-94 (Mustered); Tr. 5111-16, 5153-54 (Holley); Tr. 5916-18 (Peterson); Tr. 6911 (Bowman);

Tr. 7052 (Wicks); Tr. 7756-57 (Seeders); Tr. 8668-71, 8702-03 (Hunter); Tr. 9544-51 (Martin); Tr. 12,491-92, 12,642-48 (Archambeault).

45 See Tr. 4181-87, 4196-97 (Snyder).

3 18 manner despite his conviction that he was being pressed to complete the review quickly.46 And inspector Robert Hunter stated that, when a supervisor came to him and requested that an inspection report be closed out, before complying with the request he would ensure that this action was appropriate.47 The exception to this line of testimony was the observation of inspector Terry Gorman that he might have unintentionally discharged his duties in a less careful manner because of strong pressure exerted on him to complete high priority assignments.48 At the time in question, however, Gorman was not engaged in the field inspection of construction work but, instead, was assigned to the processing of documents in the document vault.49 From all that appears in the record, the processing errors that were discovered by file clerks (and led to Gorman's concession of a possible adverse reaction to pressure) were of no safety significance.

B. The intervenors acknowledge tne testimony of the inspectors on their job performance. At least by 46 See Tr. 7423-30 (Seeders).

47 See Tr. 8873-77 (Hunter).

48 See Tr. 5752-62 (Go rman) .

49 See Tr. 5746-47 (Gorman).

t 19 implication, they also concede the absence of any affirmative evidence to suggest that that testimony was false. Nonetheless, we are told that, because the testimony was self-serving, we should not merely discount it entirely but, as well, assume the converse: that the perceived harassment and attempted intimidation had a decided effect upon the quality of the inspection of completed construction work.50 The intervenors do not explain why we should accept the portion of the testimony of the inspectors that assists their position while, at the same time, reject as being not worthy of belief the portion that cuts against their attack upon the result below. We need not, however, pursue that seeming inconsistency any further in this instance. That is because there is credible evidence of record that bears out the inspectors' insistence that they carried out their field inspections properly, despite the perceived harassment and attempted intimidation. That evidence consists of the results of two reinspection programs that, in combination, 50 In this connection, the intervenors maintain that the Licensing Board majority gave excessive weight to the testimony of applicant consultant Robert Laney that the QC inspectors would resist pressure to compromise their integrity. Although the majority did note its general agreement with this witness's views on the subject (see supra note 8), we do not read that agreement as crucial to the Board's ultimate conclusion on the matter.

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d 20 produced a second opinion by different inspectors regarding the construction work examined by the QC inspectors in question, both before and during the period that those inspectors allegedly were subjected to harassment and intimidating tactics.

1. The first of the two programs was the Construction Sample Reinspection (CSR) , which addressed all construction work completed before June 30, 1984.51 Its objectives were to provide assurance that the plant construction met "applicable design requirements" and "to confirm that the overall quality pro <Jram was functioning as expected." 2 The CSR was made up of three elements.53 The first was a random selection of the items to be reinspected from the total number of safety-related items available for reinspection, l

with the consequence that each item had an equal opportunity f

to be included in the sample.54 According to the uncontroverted testimony of a statistician, the selected sample was large enough to support a conclusion with 95 percent confidence that, if no design-significant defects were found in the inspected items, 95 percent of the total l

51 See Kaushal, fol. Tr. 13,068, at 3.

2 Id. at 4-5.

53 Id. at 11-16.

54 Id. at 14.

L 21 population would be free of such defects.55 The remaining two elements involved the non-random selection for reinspection of items that either were a part of essential plant systems or, for some other reason, were deemed to warrant special scrutiny.56 The second reinspection program was conducted by Pittsburgh Testing Laboratory (PTL) with an objective of ascertaining how well the QC inspectors had performed their duties. This program was initiated during the early phases of construction in 1977 and continued through the construction period. The portion of the PTL data analyzed See Frankel, fol. Tr. 17,082, at 10. Discrepancies identified during the CSR program were evaluated for design significance by Sargent & Lundy, the architect-engineer for Braidwood. See Kaushal, fol. Tr. 13,068, at 25-26. None of the discrepancies was found co be design significant. See Thorsell, fol. Tr. 14,270, at 17; Kostal, fol. Tr. 14,270, at 21. We need add only that the record belies the Licensing Board Chairman's endeavor to put the objectivity of Sargent & Lundy into question. See LBP-87-14, 25 NRC at 662-65. For example, to support his belief that Sargent &

Lundy might have been concerned about being held accountable for any determined design-significant defects, the Licensing Board Chairman pointed to a cable that assertedly had been excessively bent as the result of a cable junction box that was too small. Id. at 663. But the evidence discloses that the box was of adequate size and the cable manufacturer had allowed use of the cable as installed in it notwithstanding the degree of bending. See Tr. 14,488-89, 14,590~91, 15,490 (Thorsell) . The remaining claims by the Licensing Board Chairman regarding the objectivity of Sargent & Lundy in its analysis of identified discrepancies are equally without merit.

56 See Kaushal, fol. Tr. 13,068, at 14-16.

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4 22 for this proceeding related to work that had been reinspected between July 1982 and June 1986.57 For the purposes of this proceeding, the applicant assembled the data obtained from these two reinspection programs in such fashion as to enable a comparison of the relationship between the results of the inspections and reinspections for both (1) the inspections taking place before the period of asserted harassment and attempted intimidation; and (2) the inspections occurring during that period. Specifically, the objective was to ascertain whether there was significantly greater agreement between the inspectors and reinspectors regarding items accepted by the former prior to the commencement of the purported undue pressure. If so, there might be room for an inference that the inspectors had succumbed to such pressure. On the other hand, so the applicant's reasoning continued, if there turned out to be no significant difference between the rates of agreement throughout the entire period, the appropriate inference would be that there was no pressure-related change in the performance of the inspectors.58 See Rebuttal Testimony of George F. Marcus (August 1986) at 7-12, admitted at Tr. 15,568.

58 See DelGeorge, fol. Tr. 16,740, at 5-6, 9-13.

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2. As is undisputed, the data support the thesis that the agreement rate between the inspections and reinspections did not vary to a material extent insofar as the inspections conducted before and after 1983 are concerned.59 In common with the applicant and the Licensing Board majority, we conclude that probative weight can be attached to this fact.60 In this connection, we have considered and rejected the intervenors' objections to any reliance being placed upon the reinspection data -- objections based entirely upon the views expressed by the Licensing Board Chairman in his dissenting opinion.

To begin with, crucial significance does not attach to the fact that the CSR program covered only inspections conducted before Cune 30, 1984. In stressing that consideration,61 the Licensing Board Chairman overlooked the additional fact that the PTL reinspection program extended to inspections throughout the period of construction work.

59 j Id. at 13. See also Frankel, fol. Tr. 17,082, at l 20-27. No exact dates were established during the

! proceeding for the comnencement and cessation of the alleged harassment and intimidation. See LBP-87-14, 25 NRC at

539-40. Nevertheless, it appears that the period generally ranged from mid-1983 to late 1985. In any event, collectively, the reinspection programs covered inspection work performed both before and during the alleged harassment and intimidation.

60 See LBP-87-14, 25 NRC at 493-99, 503.

6 Id. at 654-55.

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24 The data acquired from that program that were put into evidence below related to the initial inspections performed during the entire period of alleged haransment and attempted intimidation. In this connection, both programs reinspected work that had been initially inspected between July 1982 and June 1984. The data derived from those reinspections indicated that the two programs provided similar results vis-a-vis the agreement rate between the initial inspections and the reinspections.62 Thus, there is little reason why the PTL data should be deemed insufficient for the period not embraced by the CSR program.

The insistence of the Licensing Board Chairman that the PTL data should be discarded as not derived from a statistically random sample entirely ignores the testimony of applicant witnesses Martin R. Frankel and Louis O.

Delceorge.63 Dr. Frankel, an acknowledged expert in the analysis of statistical data, indicated that, although the PTL sample was not statistically randon, it nonetheless might suffice to support an inference that the initial inspectors had not succumbed to undue pressure. This, he 62 See DelGeorge, fol. Tr. 16,740, at 37-38; Tr.

16,801-02 (DelGeorge) .

See LBP-87-14, 25 NRC at 559, 665-66.

64 See Frankel, fol. Tr. 17,082, at 25.

L 4

25 added, could be determined only by means of an engineering evaluation.65 Mr. DelGeorge, an engineer and official of the applicant with broad experience in the execution of reinspection programs, provided just such an evaluation.66 He concluded that, given its size and distribution over time, the PTL sample was sufficient despite not being statistically random.67 Significantly, neither the Licensing Board Chairman nor the intervenors even refer to this conclusion or the analysis offered in support of it, let alone explain why we should decline to accept it.68 No greater merit attaches to the Licensing Board Chairman's complaint, echoed by the intervenors, that the supplied reinspection data did not include the items that had been rejected by the initial inspectors.69 As a practical matter, reinspections normally are not directed to the determination whether a particular item had been 65 See Tr. 17,147-48 (Frankel).

- 66 See DelGeorge, fol. Tr. 16,740, at 43-44.

0 Id. at 45-47.

68 The Licensing Board Chairman also criticized the PTL program based upon his refusal to accept the testimony of applicant witnesses that only a small percentage of welds had been reinspected through paint. See lap-87-14, 25 NRC at 665-66. The intervenors do not press this point on appeal and we find nothing in the record to cast doubt upon the credibility of the witnesses.

69 Id. at 557-59, 660-62.

i 26 rejected by the initial inspectors for good reason, the focus of reinspections is on work that has been accepted (either initially or af ter correction of determined deficiencies). Moreover, to repeat, the issue here is whether there was a significant change in the quality of the initial inspectors' performance as the result of harassment ,

and intimidation. As seen, the data from the reinspection programs countered the existence of any such change.

In sum, we have been provided with insufficient cause not to take the reinspection results as corroborating the testimony of the inspector witnesses that they had performed their field inspections without regard to any harassment or attempted intimidation. On this score, it is important to bear in mind that there was not one scintilla of evidence that tended to establish that harassment or attempted O

intimidation had influenced the field inspections.

III. Grid System Prior to November 1982 Comstock employed an inspection method known as the grid system. There was no claim below 0 In the absence of such evidence, the intervenors' reliance upon Union Electric Co. (Callaway Plant, Unit 1),

ALAB-740, 18 NRC 343 (1983) is entirely misplaced. Stated otherwise, the record at hand does not indicate, in the words of Callaway, "a breakdown in quality assurance procedures of sufficient dimensions to raise legitimate doubt as to the overall integrity of the facility and its safety-related structures and components." Id. at 346.

l t 27 that harassment or intimidation endeavors influenced the results of inspections using that system. This being so, it is doubtful that those inspections were within the ambit of the single contention admitted for litigation. Despite his I

recognition of this consideration, as previously noted the Licensing Board Chairman relied exclusively upon his beliet that the grid system was flawed to support his conclusion that there was not reasonable assurance that the facility was properly constructed.72 Because the intervenors endorse the attack upon the grid system, we are constrained to address the matter notwithstanding our conviction that it was beyond the scope of the proceeding. We find the Licensing Board Chairman's criticism of the grid system insubstantial.

I See LBP-87-14, 25 NRC at 553-54.

72 See supra p. 8.

73 As a general matter, in an operating license proceeding, the Licensing Board must confine itself to "matters put into controversy by the parties." 10 CFR 2.760a. While the Board has the power to raise sua sponte "a serious safety, environmental, or common defense and security matter" (ibid.), it may not exercise that power without the issuance of "a separate order which makes the requisite findings and briefly states the [ board's] reasons for raising the (new) issue." Texas Utilities Generating Co. (Comanche Peak Steam Electric St?. tion, Units 1 and 2),

CLI-81-24, 14 NRC 614, 615 (1981). No such order surfaced with regard to the issue of the adequacy of grid system inspections.

)

28 The grid system method called for the selection of a certain percentage of classes of items for inspection. In the case of welds and equipment, 100 percent were inspected.

For all other classes, 35 percent received scrutiny (subject to an expansion of the sample if an unacceptable number of deficiencies were discovered in the items initially selected for inspection).74 At the end of October 1982, the applicant decided that it was not satisfactory to inspect only some items.

Accordingly, it directed Comstock to commence forthwith an inspection of all items, including those that had previously eluded inspection under the 35-percent standard.75 One vestige of the grid system remained, however, for almost another year. In conducting the 100-percent inspection of the welds, some inspectors had followed the practice (permitted by Comstock) of documenting the inspection results in personal notebooks and then later transferring the information to official checklists.76 In October 1983, at the applicant's insistence, the practice 74 See LBP-87-14, 25 NRC at 499-500; DeWald, fol. Tr.

1700, at 7; Intervenor Exhibits 160 and 200.

75 See LBP-87-14, 25 NRC at 564; DeWald, fol. Tr. 1700, at 7; Intervenor Exhibit 205, Attachment III. See also App.

Tr. 55.

6 See DeWald, fol. Tr. 1700, at 24.

(

29 was discontinued.7 Thereafter, the inspectors wcre required to use the checklists during the inspections.78 Given that ultimately 100 percent of all items were inspected, it is not significant that only 35 percent of certain items were examined at the outset.79 This leaves the Licensing Scard Chairman's dissatisfaction with the pre-October 1983 practice of recording weld inspection results ab initio in personal notebooks. Although that practice may well have been undesirable, there is nothing in the record to suggest that it resulted in the failure to O

document discerned weld deficiencies. In this regard, it See Tr. 9570-78 (Martin).

Ibid.

79 Apparently relying on an erroneouc proposed finding submitted by the staff, the entire Licensing Board incorrectly thought that just 35 percent of the welds were inspected. See LBP-87-14, 25 NRC at 499-500, 564. See also NRC Staff's Findings of Fact and Conclusions of Law on Rorem, et al. Contention 2.C (February 13, 1987) at 7-8.

O Under the grid system, upon finding a defective weld the QC inspector would bring it to the attention of the craft personnel with instructions to take necessary corrective action. As a general matter, the weld would not be incorporated into an official checklist until after the defect had been corrected and, thus, the weld could be listed as acceptable. Depending upon the amount of time required to correct the defect, several days (or perhaps a week or more) might elapse before a particular weld would turn up on a later checklist. See Tr. 8290-91, 8348-56 (Martin).

In light of the foregoing practice, acknowledged by (Footnote Continued)

i 30 is noteworthy that the CSR program did not identify any design-significant weld defects, i.e., deficient welds that 81 might raise safety concerns.

(Footnote Continued) the Licensing Board Chairman (see LBP-87-14, 25 NRC at 554, 650), it is scarcely surprising that the checklists make reference only to accepted welds. Nonetheless, the Chairman takes that fact to suggest that the inspections did not turn up all weld defects. Proceeding on the assumption that a proper inspection would have determined that roughly 30 percent of the welds were defective, he reasons that it would not have been possible to correct all of them before the preparation of the checklist showing that they were acceptable. Id. at 554-55, 651.

There are several flaws in this line of reasoning.

For one thing, there is no record basis for the Licensing Board Chairman's assumption respecting the percentage of welds that should have been found defective on an initial inspection. Second, the record evidence refutes his tacit assumption that all welds initially found defective made their way into the same checklist as acceptable. See Tr.

8352-53 (Martin). Third, the evidence also centradicts the yet further tacit assumption that a large number of weld defects could not be corrected within the several day period elapsing between the inspections and the preparation of the checklists. See Tr. 8357-63 (Martin).

81 The intervenors assert that the CSR program did not measure the effectiveness of QC inspector performance under the grid system. This is true but irrelevant. For our purposes, it is enough that the absence of any detected design-significant weld defects meant that there is 95 percent confidence that 95 percent of the total weld population is free of such defects. See supra pp. 20-21.

A 31 For the foregoing reasons, the Licensing Board's concluding partial initial decision, LBP-87-14, 25 NRC 461, is affirmed.

It is so ORDERED.

FOR THE APPEAL BOARD Qb_-NN Ag C. JeWn Sh6emaker SecreUnry to the Appeal Board 82 Me have considered all of the intervenors' other claims on appeal and find them equally without merit. Among those claims is the insistence that the Licensing Board improperly allocated the burden of proof. It may well be that, once the intervenors had established that QC inspectors believed that they had been subjected to harassment and attempts at intimidation, the applicant had l the burden of going forward on the safety significance of i that belief. If so, the applicant sustained that burden through the vehicle of the inspectors' testimony and the evidence relati.1g tc the reinspection programs, which reflected that any harassment or attempted intimidation that might have occurred did not materially influence the outcome of field OC inspections. Although given ample opportunity i to do so, the intervenors did not succeed in rebutting the l applicant's showing. Thus, the applicant must be deemed to have also satisfied its ultimate burden of proof on the question whether the Comstock electrical work was properly performed.

1

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