ML20209F192

Decision ALAB-812 Denying Joint Intervenors 841108 Motion to Reopen Record on Const QA & Mgt Character & Competence, Except Insofar as Issues Re Matters Under Investigation by Ofc of Investigation Are Raised.Served on 850711

ML20209F192
Person / Time
Site:	Waterford
Issue date:	07/11/1985
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:
References
CON-#385-768 ALAB-812, OL, NUDOCS 8507120407
Download: ML20209F192 (95)

Text

7 Rb E UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD Administrative Judges:

Christine N. Kohl, Chairman July 11,,1985 Dr. W. Reed Johnson (ALAB-812)

Howard A. Wilber 80CKMES USNTC

)

In the Matter of )

) 65 h 11 P256 LOUISIANA POWER & LIGHT COMPANY ) Docket No. 50-382 OL

) .

(Waterford Steam Electric Station, ) .

Unit 3) ) *

,g I

SERVE 0 JUL 11 E5' Lynne Bernabei and George Shohet, Washington, D.C., for Joint intervenors Oystershall Alliance and Save Our Wetlands, Inc.

Bruce W. Churchill, Dean D. Aulick, and Alan D.

Wasserman, Washington, D.C., for applicant Louisiana Power & Light Company.

Sherwin E. Turk and Bernard M. Bordenick for the Muclear Regulatory Commission staff.

DECISION The last matter pending before us in this operating license proceeding is Joint Intervenors' fifth motion to reopen the record.1 Filed on November 8, 1984, this 62-page 1

A number of reported decisions issued over the last two years reflect the history of this proceeding. See ALAB-732, 17 NRC 1076 (1983); ALAB-753, 18 NRC 1321 (1983);

ALAB-786, 20 NRC 1087 (1984); ALAB-801, 21 NRC 479 (1985).

Just this past April, we denied another motion to reopen, concerning the adequacy of the concrete basemat of the facility. Soo ALAB-803, 21 NRC 575 (1985). The Commission has declined review of each of these decisions. See Notices from the Sccretary (September 14, 1983; November 20, 1984; (Footnote Continued) 0507120407 050711 PDR O

ADOCK 05000302 pon . s Q,Ih

.s

i ,

2 motion, accompanied by 62 exhibits, seeks a hearing on three

broad, new contentions.2 Contention A alleges a systematic l

breakdown in the construction quality assurance (QA) program of applicant Louisiana Power & Light Company (LP&L). Joint Intervenors argue that, as a consequence of this breakdown, LP&L cannot show that it can operate the plant safely.

Contention B states that LP&L does not have the character and competence to operate Waterford in accordance with the Commission's safety requirements. Contention C claims that the NRC staff's inspection and investigation efforts at Waterford are not adequate to ensure that potentially safety-significant deficiencies have been corrected and the plant can operate safely.

LP&L and the staff filed lengthy replies in opposition to Joint Intervenors' motion. Because of significant deficiencies in both the form and substance of the staff's reply, however, we found it necessary to strike all but a small portion of it from the record. ALAB-801, supra note 1, 21 NRC at 482-84. At the same time, we explained why (Footnote Continued)

May 9, 1985; May 17, 1985); CLI-85-3, 21 NRC 471, 473 n.1 (1985).

2 In ALAB-792, 20 NRC 1585 (1984), clarified, ALAB-797, 21 NRC 6 (1985), we explained, in response to arguments made by Louisiana Power & Light Company and the NRC staff, why we have jurisdiction to consider the entirety of the instant motion to reopen. The Commission has also declined review of those decisions. See Notice from the Secretary (March 22, 1985).

t .

3 1

L staff input on certain matters with a potential impact on plant safety is essential to our disposition of Joint Intervenors' motion. Id. at 482, 485-86. We therefore requested the staff to provide, additional, clarifying information and offered both LP&L and Joint Intervenors the opportunity to file further comments as well. Id. at 486 07. All parties have responded and, except for possibly relevant matters under investigation by the NRC's Office of Investigations (OI) (sce pp. 68-73, infra), the record is

~

now complete. For the reasons set forth below, we deny Joint Intervenors' November 8 motion to reopen the record in all respects save one: insofar as the motion raises issues that may relate to matters under investigation by OI, we are unable to rule and therefore leave that part of the motion for the Commission's resolution.3 3

In CLI-85-3, 21 NRC 471, the Commission authorized the issuance of a full-power license to LP&L to operate Waterford. The Commission explicitly stated that its decision was without prejudice to our consideration of this motion to reopen (as well as another then-pending motion concerning the basemat). Id. at 472. See also 10 C.F.R.

S 2.764(g). Accordingly, we have given no weight to the Commission's prior license authorization in deciding to deny Joint Intervenors' motion.

Joint Intervenors subsequently petitioned for judicial review and a stay of the Commission's decision. Oystershell Alliance v. NRC, No. 85-1182 (D.C. Cir. filed March 25, 1985). In an order issued April 3, 1985, the court denied the motion for stay.

I 4 i

< I.

With the relatively recent plethora of motions to l

reopen, in both this proceeding and others, we have had frequent occasion to discuss the criteria that a movant must satisfy. The motion must be timely and address a significant safety or environmental issue. It must also show that a different result might have been reached had the newly proffered material been considered

initially.

ALAB-786, supra note 1, 20 NRC at 1089. "[B]are allegations or simple submission of new contentions" is not enough.

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 NRC 361, 363 (1981).

At a minimum, . . . the new material in support of a motion to reopen must be set forth with a degree of particularity in excess of the basis and specificity requirements contained in 10 C.F.R.

2. 714 (b) for admissible contentions. . . . [I]t must be tantamount to evidence . . . (and] possess the attributes set forth in 10 C.F.R. 2. 743 (c) defining admissible evidence for adjudicatory proceedings. Specifically, the new evidence supporting the motion must be " relevant, material, and reliable."

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-775, 19 NRC 1361, 1366-67, aff'd sub nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), vacated in part and reh'g en banc granted on other grounds, 760 F.2d 1320 (1985). See also id. at 1367 n.18.

A motion to reopen that raises previously uncontested issues -- such as Joint Intervenors' motion here -- must also satisfy the Commission's standards for admitting

c ..

5 late-filed contentions. Pacific Gas and Electric Co.

, (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-82-39, 16 NRC 1712, 1714-15 (1982).4 Tne burden of satisfying all these requirements is heavy indeed. See Kansas Gas and Electric Co. (Wolf Creek Generating Station, Unit No. 1) , ALAB-4 62, 7 NRC 320, 338 (1978). See also Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1) , CLI-85-07, 21 NRC __,, __,

(May 9, 1985) (slip cpinion at 3).

Because Joint'Intervenors' motion raises quality assurance and management character and competence issues, it must also be considered in light of the guidance on those special issues provided in several recent decisions. For example, in Union Electric Co. (Callaway Plant, Unit 1),

ALAB-740, 18 NRC 343, 346 (1983) , we pointed out that 4

Those five standards, embodied in 10 C.F.R.

S 2. 714 (a) (1) , ares (1) Good cause, if any, for failure to file on time.

(ii) The availability of other means whereby the petitioner's interest will be protected.

(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.

(iv) The extent to which the petitioner's interest will be represented by existing parties.

(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.

r 6

[i]n any project even remotely approaching in magnitude and complexity the erection of a nuclear power plant, there inevitably will be some construction defects tied to quality assurance lapses. It would therefore be totally unreasonable to hinge the grant of an NRC operating license upon a demonstration of error-free construction. Nor is such a result mandated by either the Atomic Energy Act of 1954, as amended, or the Commission's implementing regulations. What they require is simply a finding of reasonable assurance that, as built, the facility can and will be operated without endangering the public health and safety. 42 U.S.C. SS 2133 (d) , 2232 (a) ; 10 C.F.R.

S 50.57 (a) (3) (i) . Thus, in examining claims of quality assurance deficiencies, one must look to the implication of those deficiencies in terms of safe plant operation. [ Footnote omitted.]

To determine if the requisite reasonable assurance exists, two questions must be addressed: (1) whether all ascertained construction errors have been cured, and (2) even if so, whether there has nonetheless been so pervasive a breakdown in the QA procedures as to raise legitimate doubt about the overall safety of the facility. Ibid.

Although these considerations were initially enunciated in the context of an appeal from a licensing board decision rendered after a hearing on QA, they are just as pertinent to the disposition of a motion to reopen on OA. See Union Electric Co. (Callaway Plant, Unit 1), ALAB-750, 18 NRC 1205, 1209-11 (1983); Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-756, 18 NRC 1340, 1344-45 (1983), aff'd sub nom. San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287 (D.C. Cir. 1984), vacated in part and reh'c en banc granted on other grounds, 760 F.2d

m

? .

7 1320 (1985); Diablo Canyon, ALAB-775, 19 NRC at 1367.

103 also had recent occasion to address the relationship between quality assurance deficiencies and the overall competence and character of an applicant's management.5 In Houston Lighting & Power Co. (South Texas Project, Units 1 and 2) , ALAB-799, 21 NRC 360, 371-74 (1985), we expressly approved consideration of remedial measures directed to construction and related QA deficiencies as part of the appraisal of an applicant's character and competence.

Further, the untim61y listing of " historical examples" of alleged construction QA deficiencies has been found insufficient to warrant reopening of the record on the management character and competence issue. Diablo Canyon, ALAB-775, 19 NRC at 1369-70.

Keeping the requirements for motions to reopen and our own recent precedents on OA and management character and competenco in mind, we now turn to Joint Intervenors' three proposed contentions and the numerous individual allegationc offered as substantiation for each.

5 More than a decade ago, however, we recognized the importance of " managerial attitude" to an applicant's OA program -- i.e., the willingness of company officials to impicment the program to the fullest. Consumers Power Co.

(Midland Plant, Units 1 and 2) , ALAB-106, 6 AEC 182, 184 (1973).

8 II.

In ALAB-801, we noted "our preliminary view that much of Joint Intervenors' motion to reopen falls of its own weight." 21 NRC at 481. Our further review of the matter confirms this. Although Joint Intervenors have attempted to support most of their individual charges with documentation, these exhibits are frequently lacking in substance or are deficient in some other respect. Many charges concern events that occurred years ago, and no effort has been made to show good cause why they were not raised earlier or to establish that the alleged problem was left uncorrected and continues today. Such charges could be rejected on the basis of untimeliness alone. Nonetheless, because of the overall seriousness of Joint Intervenors' allegations, our principal focus as to most of the individual charges, as well as the three broad proposed contentions, has been on their safety significance -- i.e., the second of the traditional reopening criteria.

A. Quality Assurance Joint Intervenors' first proposed contention states:

LP&L has failed to establish and implement an adequate quality assurance program in accordance with 10 CPR Part 50, Appendix B, throughout the life of construction of Waterford, which led to a serious, systematic breakdown of quality l assurance. LP&L cannot now provide the required assurance that Waterford 3 has been constructed in i

accordance with all NRC requirements or that Waterford's construction is verified to be of adequate quality to protect the public health and safety. Therefore, the Commission cannot make the

9 finding required by 10 CFR 50.57 (a) necessary for issuance of an operating license for Waterford 3.

Joint Intervenors' Motion to Reopen (November 8, 1984)

(hereafter, " Joint Intervenors' Motion") at 4. Joint Intervenors advance 12 groups of charges in support of this contention, purportedly illustrating how LP&L's QA program, as implemented, has failed to satisfy all but two of the Commission's 18 quality assurance criteria in 10 C.F.R. Part 50, Appendix B. There are a total of 73 individual charges specifically linked to this contentien, but essentially no argument is presented, presumably in the belief that the examples presented are self-explanatory.6 Each charge contains references to one or more of the exhibits filed with the motion to reopen. These exhibits consist primarily of documents or portions of documents generated by LP&L or the staff in connection with the construction and regulatory 6

We continue here the practice of referring to the specific allegations in Joint Intervenors' motion to reopen as " charges" and identify them by the same letter and number designations used by Joint latervonors. See ALAD-801, 21 NRC at 485 n.15.

Charge A(1) (g) is addressed in our discussion of charge B(1) at pp. 68-73, infra, inasmuch as both concern matters possibly related to OI investigations. On the other hand, parts II.D and II.E of Joint Intervenors' motion contain argument that concerns construction QA at Waterford, llence ,

we include these latter parts of the motion here, in our discussion of contention A, relating to quality assurance.

(_

l o' 10 oversight of Waterford.7 Also included are three affidavits by persons employed at the plant during construction.8 On the surface, this marshaling and organization of materials in support of poopening on the quality assurance contention seem to satisfy the format standards we have suggested for such filings. See Diablo C;nyon, ALAB-775, 19 7

This type of material is acceptable evidence in support of a motion to reopen. Diablo Canyon, CLI-81-5, 13 URC at 363.

8 Because the three affiants wish to remain anonymous, the copics of their affidavits served on the parties have all identifying information expunged. The Board's three copics of each, however, are unexpurgated and have boon kept under seal. Joint Intervonors also filed, simultaneously with their motion to reopen, a Motion for a Protective Order, under which completo copies of the affidavits would be made available to representatives of the parties on a restricted basis.

Although the staff contends that Joint Intervonors have not established a sufficient basis for a protectivo order, it does not object to the entry of such an order. NRC Staff's Responso (December 21, 1984) at 1 n.2. Although a protective order would have permitted disclosure of more detailed information about the background of the allegors, it would not have significantly enhanced the substance of the charges themselvos. As a consequenco, LP&L has responded quite fully to most of the chargos in the anonymous affidavits, and it opposos Joint Intervenors' request. Applicant's Rosponso to Motion for Protectivo Order (November 30, 1984).

No commend Joint Intervonors for their handling of this matter in accordance with Diablo Canyon, ALAD-775, 19 NRC at 1367 n.18. In view of our decision denying almost the entirety of their motion to r2cpon, however, wo nood not decido whether the entry of a protactivo order would have bocn warranted hora. Joint Intervonors' motion for a protectivo order is thoroforo denied as moot.

11 1:RC at 1368 n.22. But many of the individual charges have little or nothing to do with the Appendix B criteria with which they are matched in the 12 broader groupings of allegations. Other charges are related to one another or are duplicative. In order to facilitate our task in addressing all of Joint Intervonors' claims, we have considered each charge without regard to the particular Appendix B criterion or criteria with which it is linked.

(In other words, Joint Intervonors' failure to connect a chargo with the correct critorion is not fatal to their case.) We have also grouped for discussion those chargos that are obviously related or raise the identical issue.

With respect to the substance of Joint Intervonors' QA charges, we have found that they fall into three categories:

(1) those that portond a serious breakdown in LP&L's construction OA program; (2) those that could bo indicative of QA failures, but upon analysis appear to be without merit or are isolated events of no generic or safoty significance; and (3) those that, for a variety of reasons, aro unsupported on their face. In the following sections, we discuan each category in turn and conclude that the record l

need not be reoponed to explore LP&L's quality assuranco

! program. An explained boiow, the evidence beforo us does not indicato oither the existence of significant uncorrected l

construction errors, or a breakdown of the overall OA program sufficient to raise a legitimato doubt an to the i

, O 12 capability of Waterford to be operated safely. See p. 6, supra.

1. The NRC relies upon an applicant's quality assurance program, and its implementation, to ensure that a nuclear power plant and its component parts are designed to acceptable criteria and standards, and that the plant and its components are constructed or fabricated in accordance with their design. .See 35 Fed. Reg. 10,498 (1970); 10 C.F.R. Part 50, Appendix B. As a result of certain events and their subsequent investigation by the NRC staff, deficiencies were found in several fundamental areas of the LP&L quality assurance program at Waterford -- hence raising a potentially significant safety problem. Relying largely on the staff documents that set forth these deficiencies, Joint Intervonors present a series of charges that depict a sorious breakdown in the LP&L program. Specifically, these arca (1) inadequato OA staffing; (2) LP&L's abdication of responsibility for QA to contractors; (3) inadequate qualification of quality control (OC) 9 and QA inspectors; (4) failure to identify trends indicative of generic quality 9 " Quality control" in included within quality assuranco and concerns "those quality assurance actions related to the physical charactoristien of a material, structure, component, or system which provido a means to control (their) quality . . . to prodotormined requiremonts." 10 C.P.R. Part 50, Appendix D, Introduction.

l .

13 problems; (5) failure to perform effective audits of QA l

performance; and (6) failure to manage and "to disposition" properly Nonconformance Reports (NCRs) and other types of

deficiency reports.10

a. Because these charges derive their principal support from NRC staff documents, it is appropriate to review briefly the circumstances from which those documents originated. In the spring of 1982, LP&L was preparing to accept the first turnovers of plant systems from its architect-engineer'and construction manager, Ebasco Services, Inc. The LP&L construction QA organization found sorious QA deficiencies in the four systems in question and in the accompanying QA records. LP&L reported this "significant construction deficiency" to the NRC. Following an inspection, the Commission issued a Notice of Violation and imposed a $20,000 civil penalty on LP&L, citing inadequate control of activities affecting quality -- a violation of 10 C.r.R. Part 50, Appendix B, Critorion II.

In particular, the Commission found a breakdown in the quality assuranco chain involving LP&L, Ebasco, and the subcontractor whose work and quality control was in 10 As is ovident from the following discussion, some of those deficiencies are necessarily interrelated. For examplo, the fact that LP&L's own construction QA staff was not adoquato wan partly responsiblo for all of the other problems cited hora.

i

s

~ ~

Q ,' *

." > l ,,

, ,l 14 n

_4

/, question,' Mercury Company of Norwood, Inc. But the

[ ,

d esc

. 7 .. .

. Commission,also took note.o'f the corrective action

{_lincludingIraining'forMercurycraftandQApersonnel) i a,lready initiated by LP&L. JI Exh. 6, Inspection Report No.

5" -

f50-382/82-14 (December 67 1982) at 8-12, 13;yy NRC Staff's Response (April 22, IN85) [hereafter, " Staff Response to

'/

~ ALAB-801"), Constable' Affidavit, Exh. 2 (Notice of Vid15 tion). LP&L's problems with Mercury continued, however, and in late 1983'the contract with Mercury was terminated, and Ebasco completed the remaining work of that subcontractor'. StaffjResponse to ALAB-801, Harrison j ,

Affidavit at 7.

Eahlyin1984, as part of a series of plant inspections undertaken by.the-NRC's Office of Inspection and Enforcement (I&E) , a Construction Appra'inal Team (CAT) visited the Waterford site. This groupifound the areas inspected to be generally in accordance wi'.h safety requirements, but noted some quality assurance deficiencies -- namely, the failure to take proper correctivojdction on problems previously identified by the# 4RC's Pegional Office. See JI Exh. 23, s.

"JI bxh." refers Co exhibits submitted with Joint

, Intervenors'. November 8, 1984, motion to reopen. "LP&L Exh." refort to those submitted with Applicant's Answer to Joint Intervonors' Motion to Reopen (November 30, 1984)

[harcaf ter, " Applicant' a 'Ani;wer") , and "LP&L Supp. Exh. "

denotes those filed wi{n Applicant's Supplemental Comments (April 10, ,1985). -

e

'a , ,. ,

l ,

/ s L

l .

15 CAT Inspection Report No. 50-382/84-07 (May 14, 1984). At about the same time that the CAT was conducting its routine inspection of the plant, the NRC received approximately 350 allegations of. construction and quality assurance deficiencies. The staff developed a Management Program to address the technical issues raised by those allegations.

It also organized a Task Force of 40 persons who spent six weeks onsite, beginning in April 1984. Board Notification No.84-170 (October 12, 1984), Waterford Safety Evaluation Report, Supplement'No. 7 (September 1984) [hereafter, "SSER-7"), Appendix J at 2-3.1 By May this group had resolved most of the allegations, but there remained 23 issues with " potential safety implications" requiring further input from LP&L and review by the staff. These 23 issues are set forth in a June 13, 1984, letter from D. G. Eisenhut (then NRC Director of Licensing) to J. M. Cain, President and Chief Executive Officer of LP&L [hereafter, "Eisenhut Letter"). See JI Exh.

9. Although the deficiencies that make up the 23 residual problem areas involve a wide range of activities and organizations at Waterford (i.e. , LP&L, Ebasco, and various 12 The Task Force also included members of an NRC Inquiry Team organized in the summer of 1983 to investigate QA allegations reported in a local New Orleans weekly.

SSER-7, Appendix J at 3. See id., Attachment 6, Appendix A at 1.

l .'

16 subcontractors), 10 of them relate to the work of Mercury, the subcontractor that had been the focus of the 1982 civil penalty action. LP&L and the staff held several meetings during the summer of 1984, and by December 1984, LP&L had, in the staff's view, adequately answered the 23 remaining questions. Staff Response to ALAB-801, Harrison Affidavit at 13-14. The staff's evaluation of the LP&L responses, Supplement No. 9 to the Waterford Safety Evaluation Report

[hereaf ter, "SSER-9"), was made available in January 1985.

See Board Notification No.85-006 (January 14, 1985).13 Two other staff documents have a bearing on the matters raised by Joint Intervenors' motion. The Waterford Task Force issued Inspection Report No. 50-382/84-34 (July 20, 1984). See JI Exh. 5. There the staff noted LP&L's past problems, but concluded that its QA program is generally adequate except for several items also raised in the Eisenhut Letter and still "open" at that time. In SSER-7, the staff reported its findings on the some 350 allegations brought to its attention in early 1984. Most items were resolved in a manner acceptable to the staff and closed out In ALAB-801, 21 NRC at 485, we noted the relevance of SSER-9 to many of the issues raised in this proceeding and requested the staff's affidavit attesting to the validity of the factual material contained in this document.

The staff subsequently provided this, and vouched for SSER-7 as well. See Staff Response to ALAB-801, Crutchfield Affidavit at 5.

l -

17

-- again, except for those related to matters discussed in the Eisenhut Letter and those that were referred to OI.

See, e.g., ALAB-801, 21 NRC at 485-86.

b. In the following pages we explore the various major problem areas that resulted in the apparent breakdown in LP&L's quality assurance program.

(1) Staffing: In A(1) (b) , Joint Intervenors charge that LP&L failed to maintain adequate QA staffing during the construction of Waterford, despite warnings about this potential problem in an internal audit. See also Joint Intervenors' Response to ALAB-801 (May 6, 1985) at 15-17.

They rely on four exhibits for support: (1) a July 31, 1979, draft of a report prepared by Management Analysis Company ("MAC Report") and internal memoranda discussing the' report -- JI Exh. 1; (2) Waterford Task Force Inspection Report No. 50-382/84-34 -- JI Exh. 5; (3) Inspection Report No. 50-382/82-14 -- JI Exh. 6; and (4) a February 16, 1978, internal LP&L memorandum suggesting the addition of another QA engineer -- JI Exh. 7.14 14 Joint Intervenors have failed to provide specific page references to JI Exhs. 1, 5, and 6. See p. 63, infra.

Nonetheless, we were able to locate the sections of eacn document pertinent to charge A(1) (b) . As for JI Exh. 7, Joint Intervenors do not explain what difference one more person would have made to LP&L's rather lean construction OA staff.

l .

18 There is no real dispute that LP&L's construction OA staff was not large enough for the task it faced. Further, the MAC Report apprised LP&L of the disadvantages of this situation, but LP&L took no action until the breakdown involving Ebasco and Mercury was clearly identified.

Indeed, had there been greater attention to the warnings of the MAC Report earlier, the breakdown likely would not have occurred and the 1982 civil penalty action would not have been necessary. See JI Exh. 5 at II-13 to II-14, V-4 to V- 7 ; Staff Response to ALAB-801, Harrison Affidavit at 46-47, Constable Affidavit at 2-11. See also JI Exh. 6 at 8, 12.15 15 Joint Intervenors place undue weight, however, on the MAC Report itself, in connection with this and other charges. It.is, of course, noteworthy that LP&L did not heed the recommendations of its own consultant. But the MAC Report, though broad in scope, is limited in specifics. It is a 30 man-day study, only seven pages in length. Its importance should not be elevated above what is warranted.

Joint-Intervenors also err in suggesting that LP&L should have disclosed the MAC Report to the NRC under 10 C.F.R. S 50.55 (e) . See Joint Intervenors' Response to ALAB-801 at 16 n.9. That provision requires the reporting of construction and design deficiencies (including a significant breakdown in the QA program) that, if left uncorrected, could affect the safe operation of the plant.

But the MAC Report is simply a collection of 15

" Observations and Recommendations" on the broad topic of

" Construction Monitoring." It does not identify any specific construction deficiency subject to the reporting requirements of 10 C.F.R.. S 50. 55 (e) .

19 LP&L, however, cannot turn back the clock and enlarge the QA staff that oversaw construction at the Waterford

. site. Our focus, then, must be on whether any significant construction deficiencies resulted and remain as a consequence of LP&L's inadequate staffing, and whether LP&L has taken steps to prevent understaffing in the future. As explained below, we are persuaded by the record here that there are no significant construction defects at the Waterford facility. Further, LP&L now appears to be more sensitive to the nesd for an adequate in-house QA staff and has accordingly increased its construction and, more inportant, its operational QA staff. See Staff Response to ALAB-801, Harrison Affidavit at 47-48. See also pp. 85-87, infra. Thus, although inadequate staffing has been a root cause of many of LP&L's QA problems, this seems to be a

" lesson learned." See LP&L Supp. Exh. 1, Attachment, Table 2, Issue 23c.

(2) Abdication of Responsibility: Joint Intervenors' charge A(1) (h) states that, as is evident from the problems in the first systems turnover packages, LP&L effectively abdicated its QA responsibilities to Ebasco during early design and construction work at the plant. As support for this charge, they rely on Inspection Report No.

2 o' 20 50-382/82-14, where the turnover problems are described.

See JI Exh. 6-at 8-12.16 Delegation of QA activities is acceptable under the NRC's regulations, so long as an applicant bears ~the ultimate responsibility for QA performance and is able to assure itself that its delegate is performing adequately.

19 C.F.R. Part 50, Appendix B, Criterion I; Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2),

ALAB-793, 20 NRC 1591, 1598 (1984). As a consequence of its inadequate construction _QA staff, discussed above, until 1982 LP&L was forced to rely heavily for QA performance on its construction manager, Ebasco.

In and of itself, this heavy reliance does not present a QA problem. But the Mercury breakdown showed that Ebasco had failed to implement its own QA program fully. Thus, LP&L.could not provide the assurance that its delegate was performing properly. See Staff Response to ALAB-801, Harrison Affidavit at 48-49; JI Exh. 6 at 8-12. Although this was serious enough to lead to 16 Joint Intervenors also rely on JI Exh. 3, Ebasco's

-Quality Assurance Manual for Waterford, dated October 15, 1975. The exhibit is lengthy and no particular portion of it has been called to our attention. See p. 63, infra.

Further,' Joint Intervenors.have failed to explain what purpose the exhibit is to serve or what point is made in

-relying on it. Serving up exhibits in this fashion -- as

-Joint Intervenors have done in numerous instances in connection.with their motion to reopen -- contributes nothing of value to the proceeding.

21 LP&L's 1982 civil penalty for failure to control its QA activities (Criterion II), it does not demonstrate an abdication of QA responsibility by LP&L (Criterion I). See Staff Response to ALAB-801, Constable Affidavit, Exh. 2.

For one thing, it was LP&L's QA staff that discovered and reported to the NRC the deficiencies in the four

., turnover packages from Ebasco. Id., Harrison Affidavit at 49; JI Exh. 6 at 10.17 As corrective action, LP&L organized a Task Force to review the safety-related work of all contractors in addition to Mercury. These contractors and Ebasco each performed 100 percent walkdowns of all systems prior to turnover, and LP&L performed sampling inspections of all systems during walkdowns. Deficiencies discovered during the walkdowns were documented and later corrected.

Staff Response to ALAB-801, Harrison Affidavit at 34-36.

Thus, although it originally relied too heavily on Ebasco, LP&L's QA staff ultimately performed its function of identifying and correcting deficiencies in the quality of construction at the facility. We are therefore unable to 1

LP&L's role in bringing this problem to the NRC's attention led to the assessment of a penalty one-half the amount that ordinarily would have been levied. Staff Response to ALAB-801, Constable Affidavit, Exh. 2 at 2.

/ .'

22 find any basis in this record for Joint Intervenors' charge 0

that LP&L " abdicated" its QA responsibilities to Ebasco.

(3) Qualification of Inspectors: In charge A(1) (c) ,

Joint Intervenors question the qualifications and training of QA and QC personnel employed during construction at Waterford. They rely on the Eisenhut Letter as support for this charge.19 Although Joint Intervenors have not specified the parts of that letter pertinent here, Issues 1, 10, and 20 concern the qualifications of various inspection 18 Although Joint Intervenors limit charge A(1) (h) to construction activities, we also see no evidence of an abdication of QA responsibilities by LP&L at the operational phase. Indeed, LP&L's management now appears to recognize the need for active involvement in QA oversight. See id.,

Harrison Affidavit at 44-45; LP&L Supp. Exh. 1, Attachment,

" Operational Phase QA Program Assessment".

19 Joint Intervenors also rely on an affidavit of an anonymous former construction worker at Waterford (see note 8, supra) and the transcript of a public meeting held on August 17, 1984, between the NRC staff and representatives of LP&L to discuss LP&L's response to the Eisenhut Letter.

See JI Exhs. 8, 10. Neither, however, provides any support for charge A(1) (c) . The affidavit contains allegations concerning the lack of qualifications of certain personnel (e.g. , welders and maintenance workers) , and assertions about inadequacies in QC coverage. But we see nothing in the affidavit about the qualifications of inspection personnel. As for the transcript, once again Joint Intervenors have failed to refer to the particular portions of this 171-page document that assertedly support charge A(1) (c) . See p. 63, infra. This is despite the fact that, prior to the filing of Joint Intervenors' motion to reopen, we criticized the staff for submitting this same document to us without an explanation of its purpose and relevance to the matters then before us. See ALAB-786, 20 NRC at 1092 n.8.

23 personnel. See JI Exh. 9, Enclosure at 1, 7-8,-12. In part D(2) of their motion, Joint Intervenors raise a related objection to the manner in which'LP&L proposed to (and did) respond to Issues 1, 10, and 20. Joint Intervenors assert that LP&L would rely on contractor certification or background checks, rather than formal QA documentation, to verify the credentials of the QA/QC inspectors employed by LP&L, Ebasco, and their subcontractors. They also claim that LP&L refused to perform 100 percent reinspection of work previously inspected by personnel who could not be shown to be qualified. According to Joint Intervenors, the staff's acceptance of the verification program proposed by LP&L in response to the Eisenhut Letter results in the use of a more lenient standard at Waterford than applied to plants with assertedly similar QA problems, such as Zimmer and Midland. Joint Intervenors' Motion at 37-38. See also Joint Intervenors' Motion for Leave to File Reply (January 25, 1985) (hereafter, " Joint Intervenors' Reply") at 15-19.20 The significance of Joint Intervenors' arguments is that an inspection by an unqualified person may be 0

In ALAB-801, 21 NRC at 488, we granted Joint Intervenors permission to file this pleading to the extent it contained comments on Issues 1, 6, and 22 in the Eisenhut Letter and SSER-9. We also accepted the staff's and LP&L's responses to same.

e 24 tantamount to no inspection at all, and thus, the quality of the work inspected is indeterminate. See, e.g., JI Exh. 9, Enclosure at 1. Issues 1, 10, and 20 of the Eisenhut Letter set forth certain discrepancies or deficiencies found by the staff in the qualifications of some inspection personnel relied on by LP&L during the construction of Waterford. Id.

at 1, 7, 12. According to LP&L, the cause of these problems was the inconsistent and often undocumented application of the qualification standard that permits substitution for education and experience, ANSI [American National Standards Institute] N45.2.6-1973. LP&L Exh. 12 (rev.) at 1-5. As corrective action, the staff required LP&L to "(1) verify the professional credentials of 100% of the site QA/QC s personnel, including supervisors and managers, (2) reinspect the work performed by inspectors found unqualified, and (3) verify the proper certification of the remaining site QA/QC personnel to ANSI N45.2.6-1973." JI Exh. 9, Enclosure at 1.

See also id. at 8, 12.

LP&L submitted extensive replies to this staff request.

See LP&L Exhs. 7, 12 (rev.), 17 (rev.). The staff likewise undertook a comprehensive review of LP&L's program to address the inspector qualification matters raised by the Eisenhut Letter. The staff concluded that LP&L had identified all unqualified site OA/oc inspection personnel, and that, where necessary, appropriate corrective action was

25 taken. No significant rework, however, was required. See SSER-9, Appendix J at 7-18, 51-52, 75-76.

Contrary to Joint Intervenors' claims, the credentials of 100 percent of the persons who performed safety-related QA/0C inspections onsite were reviewed under LP&L's program, as required by the Eisenhut Letter. Background checks with former employers, schools, etc., were made, but for the purpose of verifying further or supplementing site personnel

' files that were no longer complete because the construction workforce was largely demobilized. Once the personal data were collected from the best available sources, they were measured against the appropriate standard and individual inspectors were judged qualified or unqualified. See LP&L Exh. 12 (rev.) at 1-1 to 1-4. See also Applicant's Answer to Joint Intervenors' Motion (November 30, 1984), Responses to Specific Allegations [hereafter, "LP&L's Responses to Specific Allegations") at 81.

Although the staff initially required LP&L to

" reinspect the work performed by inspectors found unqualified," actual reinspection was determined not to be necessary in all cases. See JI Exh. 9, Enclosure at 1. See also NRC Staff's Further Response (February 28, 1985),

Harrison Affidavit at 15-16. Where records revealed that duplicate inspections by qualified inspectors had been performed, there was no need for yet another reinspectio6.

See, e.g., SSER-9, Appendix J at 51; LP&L Exh. 17 (rev.) at i

J

26 10-4. A sampling approach was used with respect to nine unqualified inspectors responsible for QA on structural welding of HVAC (heating, ventilating, and air conditioning) duct supports. The work on all reinspected welds in a sample of 220 was found acceptable, providing a sufficient level of confidence to the staff that the remainder of the work covered by these inspectors was adequate. See SSER-9, Appendix J at 17; NRC Staff's Further Response, Harrison Affidavit at 26. See also LP&L Exh. 12 (rev.) at 0-2. In other instances, actual testing and nondestructive examination of the hardware or system, along with the nature of the work actually performed and the on-the-job training of the individuals who conducted the inspection, were considered by the staff. See, e.g., SSER-9, Appendix J at 12-13; NRC Staff's Further Response, Harrison Affidavit at 20-21. See also LP&L Exh. 12 (rev.) at I-2 to I-3.

On the other hand, 100 percent of the "N1" instrument tubing installed by Mercury -- the principal source of the QA problems identified in 1982 -- was reinspected. Only minor discrepancies, requiring little rework, were found in this instrumentation, which is vital to the safe shutdown of the plant. SSER-9, Appendix J at 13. With respect to the "N2" installations -- which are required to maintain pressure boundary integrity but otherwise are not directly safety-related -- the staff noted that 100 percent of those installed before July 1982 had already been reinspected.

. ,P .

27 Although some inspectors whose qualifications were in question might have participated in those reinspections, the favorable results of the N1 reinspection program provide additional assurance of the quality of Mercury's N2 installations. Still further, the systems containing this equipment were tested and independently inspected, with acceptable results. Id. at 13-14; NRC Staff's Further Response, Harrison Affidavit at 21-22.

As a result of the work discussed above, we are not persuaded by Joint'Intervenors' criticism of LP&L's verification program and the staff's acceptance of it, as described in SSER-9. See Joint Intervenors' Reply at 1

15-19. They have taken statements out of context or given

.them a strained reading in order to support their thesis that adequate reinspections have not been performed.22 The effort undertaken by LP&L to verify the qualifications of the QA/QC inspectors at Waterford and, where that was not possible, to verify the quality of their work, was extremely 21 The staff's response to this criticism is exceptionally detailed and convincing. See NRC Staff's Further Response, Harrison Affidavit at 15-27.

Joint Intervenors also complain that SSER-9 does not indicate the percent of inspectors in each category that were found to be unqualified. We agree with the staff that, regardless of whether it is one or 100 percent, the important thing is that all these individuals have been identified and appropriate corrective action has been taken.

Id. at 17.

r l

( 28 l thorough. Its submission to the NRC -- LP&L Exhs. 7, 12 (rev.), and 17 (rev.) -- essentially includes an evaluation of the work of every inspector (or group of inspectors) whose qualifications could not be documented. The staff's own assessment of this material is likewise extensive. We see no basis for Joint Intervenors' claim that the staff has applied more lenient standards than applied at other plants such as Zimmer and Midland. Indeed, the comparison is inapt because, unlike the situation at Waterford, the QA deficiencies identified at those facilities extended well beyond primarily documentation problems to actual hardware deficiencies, requiring significant rework. NRC Staff's Further Response, Harrison Affidavit at 13-14, 26. See, e.g., Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear Power Station), CLI-82-33, 16 NRC 1489 (1982).

Accordingly, on the basis of the record here, we share the staff's conclusion that the matter of inspector qualifications has been satisfactorily resolved. This is not a significant matter warranting reopening of the record.

(4) Trends: In several charges -- A(1) (p) , A (10) (c)

(in part), and A(10) (c) -- Joint Intervenors assert that LP&L failed to trend QA problems so as to identify pervasive or generic deficiencies in the quality assurance program.

They cite, without specific page references, to CAT

l .'

29 Inspection Report No. 50-382/84-07 and the Eisenhut Letter as support for this claim. See JI Exhs. 23, 9.23 Since 1974, LP&L has had in effect a three-phase program, under the responsibility of Ebacco, to analyze Nonconforming Condition (or Nonconformance) Reports (NCRs) for repetitive and widespread QA problems. LP&L's Responses to Specific Allegations at 18-20. The CAT Inspection Report, on which Joint Intervenors rely, found this program to be generally adequate. See JI Exh. 23 at VIII-3, VIII-4. Issue 23 of the Eisenhut Letter, however, notes that LP&L's failure to determine the root cause of the Ebasco-Mercury breakdown allowed QA problems to continue.

Joint Intervenors also rely on JI Exh. 12, another affidavit from an anonymous former worker at Waterford, a QA engineer. Nothing in this affidavit, however, concerns LP&L's alleged failure to trend QA problems.

24 The only references to trending of QA problems that we could locate in the CAT Inspection Report are in Section VIII. (The principal concern of this report is LP&L's failure to take corrective action in five areas previously identified as problems by the NRC. We discuss this matter in connection with Joint Intervenors' charge B(4) at pp.

81-85, infra.) Section VIII of the report briefly addresses a three-month lapse in the procedures for trending NCRs.

The CAT concludes that this is not a major concern because the NCRs in question eventually did become part of the data base for the Ebasco quarterly trend analysis. JI Exh. 23 at VIII-3. The report also notes that Discrepancy Notices (DNs) and the like were not included at all in the data base. Although no omitted item was found to have safety significance, the CAT observes that "some repetitive problems may not be analyzed to preclude recurrence." Id.

at VIII-4.

l 30 JI Exh. 9, Enclosure at 14. Compare SSER-7, Appendix J at 85, with id. at 98, 100. See also Staff Response to ALAB-801, Harrison Affidavit at 5-6.

Despite these problems in LP&L's trending program, the staff now "is satisfied that deficiencies in the performance of trending during construction did not have an impact on either the quality of construction or the safety of the plant." Id. at 50. The staff's satisfaction is based on the fact that nonconforming conditions were identified by

the QA program and' ultimately resolved properly. Ibid. See pp. 34-39, infra. Furthermore, LP&L considers this a major lesson learned. LP&L Exh. 5 at 23-9, 23-11. Consequently, l

It has improved and incorporated trending procedures in its operational QA program. It is noteworthy that, under these procedures, LP&L's senior management -- i.e., its Senior Vice President for Nuclear Operations -- oversees this program through review of quarterly trending reports. LP&L Supp. Exh. 1, Attachment, " Operational Phase QA Program Assessment" at 16-18. The staff has reviewed LP&L's l

operational QA trending program and " believes that this i program affords the necessary controls, during the 1

operations phase, for the proper trending of nonconformance, i

i audit and other data." Staff Response to ALAB-801, Harrison l

l Affidavit at 51. In these circumstances, there is no basis for reopening.

l l

I 1

31 (5) Audits: Joint Intervenors contend that the audits of construction work at Waterford were ineffective for several reasons: they were not documented properly, not conducted in accordance with specified procedures, and, in some cases, not done at all. See charges A(12) (a) ,

A (12) (b) , and A(12) (c) . Joint Intervenors find support for these charges in Inspection Report No. 50-382/82-14, which was the basis of the 1982 civil penalty assessed against LP&L for the Ebasco-Mercury QA breakdown. See JI Exh. 6 at 7-10.

There is little doubt that the implementation of LP&L's audit program was lacking and led to the 1982 QA breakdown.

Mercury's audits were not comprehensive and did not pick up failures in QA and construction procedures. Ebasco did not recognize trends in the Mercury nonconformances and inadequacies in the Mercury audits. LP&L, because of its staffing problems (see pp. 17-19, supra), only belatedly came to realize its contractors' deficiencies. Further, even after 1982, problems persisted and some corrective actions were insufficient. Staff Response to ALAB-801, Harrison Affidavit at 4-7, 17-18. Although Joint Intervenors do not rely on them, the Eisenhut Letter (Issue

23) notes these auditing problems, and SSER-7 (allegation A-48) documents the details of the auditing program failures. JI Exh. 9, Enclosure at 14; SSER-7, Appendix J at 96-100.

32 Given these serious deficiencies, two pertinent questions arise. Are the auditing failures responsible for actual hardware or workmanship deficiencies that may remain unidentified and uncorrected? What assurance is there that these auditing failures will not recur? In addressing LP&L's submission on Issue 23 of the Eisenhut Letter, the staff concluded generally that the " shortcomings" that existed in LP&L's QA program have been identified and adequately remedied. SSER-9, Appendix J at 85. In response to our request in LAB-801, 21 NRC at 485-87, for further clarification on this conclusion, the staff has elaborated.

Focusing on the work of Mercury, the staff states that virtually all of the auditing deficiencies identified in SSER-7 were substantiated. Staff Response to ALAB-801, Harrison Affidavit at 17. Nonetheless it concludes "that these issues do not have safety significance." Id. at 18.

The principal reason for the staff's conclusion is the extensive reinspection of Mercury's work, which resulted in only " discretionary rework" to correct " minor problems."

Id. at 18-19. See pp. 26-27, supra. The staff also finds additional assurance of the quality of Mercury's work in, among other things, still more inspections and QA documentation reviews performed by qualified Ebasco personnel, the several NRC inspection teams, and the

l' o' 33 independent Authorized Nuclear Inspector (ANI); 5 plant system walkdowns;'and satisfactory completion of various tests of Mercury systems. Staff Response to ALAB-801, Harrison Affidavit at 20.

With respect to the work of subcontractors other than Mercury, the staff " determined that these audit programs were generally effective, unlike the audit programs for Mercury installations." Id. at 21. They identified problems, which led, in turn, to timely corrective action.

Ebasco's audits of'these contractors were found to be

" generally adequate," and LP&L's audits -- while not in full compliance with the schedule and commitments set by LP&L L itself -- provided further assurance of the quality of the work of these subcontractors. The staff's overall conclusion, reflected in several specified staff inspection reports, is that the audits of these QA programs were

. effective. Id. at 21-23. As for the operations phase at Waterford, the staff is satisfied that "a comprehensive QA audit program is in place and that a realistic audit 1

schedule is being implemented." Id. at 52. See LP&L Supp.

'5 The ANI is the agent of a state, municipality, or insurance company authorized to write boiler and pressure vessel insurance, and is qualified to conduct specified inspections. See ASME [American Society of Mechanical Engineers) Boiler and Pressure Vessel Code,Section III, Article NCA-5000 (July 1983).

34 Exh. 1, Attachment, " Operational Phase QA Program Assessment" at 3-7, 24-25.

Audits are an important element of an applicant's overall QA program and are required by 10 C.F.R. Part 50, Appendix B, Criterion XVIII. Nonetheless, as the staff has explained, through the systematic sampling of various work and the QA documentation for it, audits provide but a third level of assurance. The principal levels of assurance are provided by, first, quality craftsmanship and, second, quality inspections. Staff Response to ALAB-801, Harrison Affidavit at 16-17. The record here shows that auditing deficiencies existed only with respect to the work performed by Mercury. But as to that work, the first and second levels of assurance were, in fact, provided. This is demonstrated by the absence of significant safety deficiencies in the improperly audited Mercury work, as revealed by the major reinspection of that work that was undertaken by qualified personnel. Further, there is no basis for assuming that the implementation of future audits under LP&L's auspices will reflect the same failures associated with the audits of Mercury's work. Accordingly, we conclude that Joint Intervenors' charges in connection with LP&L's audit program do not warrant reopening of the record.

(6) NCRs: Nonconformance Reports (NCRs) and other' documents such as Discrepancy Reports (DRs), Engineering L

.? .'

35 Deficiency Notices (EDNs), Field Change Requests (FCRs), and Design Change Notices. (DCNs) are generated in a QA program to identify and to record discrepant or changed conditions.

In general, these documents result from the work of OC inspectors. Proper dispositioning of these reports is a vital part of a QA program, because it is through this process that the suspect condition is eventually corrected or, in some cases, judged by a qualified person to be acceptable in spite of the discrepancy. See 10 C.F.R. Part 50, Appendix B, Criteria XV, XVI. For example, a weld that is undersized according to a governing standard may nevertheless be. determined by analysis to be adequate for the particular service intended, and hence properly dispositioned "use-as-is."

The organizational level at which a deficiency may be dispositioned is governed by QA program procedures. Under certain circumstances, a condition first noted as a discrepancy (to be resolved perhaps by a subcontractor) must be upgraded to an NCR (resolvable only by the construction manager). In general, upgrading to a higher level means that more documentation and analysis are required for disposition. In addition, certain NCRs must be evaluated for reportability to the Commission under 10 C.F.R.

S 50.55 (e) and 10 C.F.R. Part 21. Failing to upgrade when required is itself a program nonconformance and, more

E c .'

36 important, involves the risk that a discrepant condition will not be properly evaluated and corrected.

Joint Intervenors raise several charges related to LP&L's treatment of NCRs and the like, relying on the Eisenhut Letter, presumably Issues 4, 6, and 13. See JI 6

Exh. 9, Enclosure at 2-4, 5-6, 9. In charges A(10) (a) ,

A(10) (b) , A(10) (c) (in part) , and A(10) (f) , they claim that LP&L failed to identify, through NCRs, serious nonconforming

^

conditions; to upgrade lower-tier documents to NCR status; and to disposition'NCRs properly. Joint Intervenors also assert, in charges D(3) and D (4) , that LP&L's response to the Eisenhut Letter did not constitute an adequate review of the pertinent documentation or meet even the NRC's ninimal requirements. Joint Intervenors' Motion at 38-39; Joint Intervenors' Reply at 19-21.27 Joint Intervenors also cite two other exhibits.

One, JI Exh. 40, is a one-page, illegible, handwritten memorandum from an unidentified source. The only words discernible are " loss of coal dust." Obviously, we can give this " document" no weight. The other exhibit, JI Exh. 43, is a 1977 NCR for certain piping material. Joint Intervenors offer no explanation of the purpose this single e'xhibit is to serve. Thus, it too is accorded no weight.

See also LP&L's Responses to Specific Allegations at 53, 27 Joint Intervenors also casually allege in this section of their motion to reopen that LP&L has made efforts to undermine an unspecified OI investigation. Joint Intervenors' Motion at 39. They neither explain nor support this accusation. It therefore warrants no discussion.

37 SSER-9 thoroughly addresses the NCR-related concerns raised by Joint Intervenors' charges and first described in the Eisenhut Letter. In Issue 4, the staff documented a number of examples of lower-tier documents that were not upgraded to NCRs -- as they should have been. See JI Exh.

9, Enclosure at 3-4. The staff initially requested LP&L to review all of the pertinent lower-tier documents to assure that proper corrective action (including reporting to the NRC) was taken. Id. at 4. But LP&L proposed a modified sampling approach,'which the staff found to be

" conservative" and acceptable. SSER-9, Appendix J at 25-26.20 Further, the staff considered LP&L's review team to be experienced and competent. Although LP&L acknowledged that there had been procedural and misinterpretation problems in the handling of hardware discrepancies, the staff found good engineering practice, appropriate corrective action where necessary, and no actual hardware deficiencies that raise a safety concern. Id. at 26. See generally LP&L Exh. 9.

Issue 6 of the Eisenhut letter involves mainly the dispositioning of Ebasco NCRs. The staff's random review of 28 gpgg,s review included all of the lower-tier documents specifically identified by the staff and approximately 900 of 32,000 other documents. This sample -

included only safety-related components, but otherwise was random. LP&L Exh. 9 at 4-3, 4-4.

38 these documents revealed that about one-third contained

" questionable dispositions." JI Exh. 9, Enclosure at 5.

The staff again provided examples of problem documents, including 23 Mercury NCRs. Consequently, the staff directed LP&L to propose a program to assure that all NCRs and DRs had been properly upgraded and dispositioned, and to correct any problems discovered. Id. at 5-6. Although the staff subsequently agreed to accept less than a 100 percent detailed review of these reports, after problems were encountered in the' review process, LP&L tnen examined all NCRs (including over 7000 generated by Ebasco). Depending on the type of problem identified, some NCRs received a turther in depth review. NRC Staff's Further Response, Harrison Affidavit at 28-29. A sampling approach was used for the lower-tier DRs, however. But of the 2,029 DRs reviewed, only 33 problems were identified and they were all ndministrative in nature. Id. at 29-30.

The staff found that program deficiencies did exist:

' the whole NCR system was complicated, the guidelines for implementation were not specific enough, and some documentation was lacking or indeterminate. SSER-9, Appendix J at 32-35.29 Notwithstanding these deficiencies, i

j 29 Issue 13 of the Eisenhut Letter specifically addressed the matter of missing NCRs. JI Exh. 9, Enclosure (Footnote Continued)

39 the staff concluded that "the problems with NCRs and DRs have been identified and properly resolved." Id. at 35.

The key to this finding was the absence of hardware problems and safety-significant issues. Ibid. See generally LP&L Exh. 8.

Thus, although substantial problems in the implementation of LP&L's NCR system existed, the review of the documentation generated by that system has been extensive. Where a sampling approach, rather than a complete review, wds undertaken, it was justified, given the total number of documents potentially involved and the absence of any serious safety problems in even the documents originally identified by the staff as questionable.

Further, the programmatic deficiencies that were discovered are addressed by LP&L's newly revised operational QA program. See LP&L Supp. Exh. 1, Attachment, " Operational Phase OA Program Assessment" at 10-15. In the circumstances, we have no cause to reopen the record for further pursuit of this matter.

2. In the second category of charges in contention A are those that ostensibly might indicate some quality (Footnote Continued) at 9. But the NCRs identified as missing had, in fact, been entered into the NCR system and were adequately dispositioned. The initial inability to locate them was attributed to the cumbersome NCR procedures. SSER-9, Appendix J at 59-60.

40 l

assurance failures. However, after closer analysis of these charges themselves, as well as the rejoinders of LP&L and I

the staff (including SSER-9), we conclude that they are meritless. Further, even if these charges were to have substance, they are but isolated incidents of no generic or safety significance. As in the case of the more serious charges discussed in part II.A.1, we have grouped related or identical charges and discuss each grouping below,

a. Charges A(1) (d) (in part) , A(7) (e) , and A(7) (f) assert that speciai processes like welding were not performed in accordance with proper procedures. For example, Joint Intervenors claim that half of the welding on some two million feet of stainless steel tubing for the containment instrument lines was not " purged" of atmospheric contamination. As a consequence, " sugaring" (oxidation) formed on weld surfaces, leading to possible future cracking of the weld itself. Joint Intervenorr also allege that welds were not cooled sufficiently between " passes" because of management pressu:e to speed up. The principal support for these charges nf, welding deficiencies is the affidavit ofaformerworkerabthesite. See JI Exh. 8 at 5-6.30 Joint Intervenors also rely on the MAC Report, JI Exh. 1. But this document makes only the briefest reference to a general need for LP&L to assure that any problems with welding be resolved.

41 We note at the outset that the reliability of the alleger's claims is somewhat suspect. The informer's assertion that there are about two million feet of stainless steel tubing for the containment instrumentation is greatly overstated. The total amount of stainless steel tubing is actually about 121,000 feet, of which only 12,000 feet is safety-related tubing located in the containment building.

Second, purging of the tubing is not required before welding in this instance. Mercury initially purged the tubing but discontinued this practice because it was unnecessary for the socket welds in question: the geometry of this type of weld does not expose the molten metal to the air inside the tube during the welding process. Further, sugaring was minimized by the use of special portable welding equipment with a very stable electrical current output. In the relatively few instances where some sugaring was detected, the welds were cut out and replaced. There is also no specific requirement for a certain amount of time to elapse between each welding pass. The only requirement is that the

! temperature not exceed 350*F before the second pass. This can be achieved within a few seconds. LP&L's Responses to l Specific Allegations at 42a-42b (renumbered per revision

, .-2 r j .m -

1 g ,/

= * ,

( .b ,

'o

~

i < 42

~

~

I attached to Letter to , Appeal Board from B. W. Churchill

'(December 18, 1984)).33

'It is also important to note, in this connection, that Mercury's w6rk on the instrumentation lines here in question has been subjected to, extensive reinspection and testing with satisFs'ctory results. See pp. 26-27, 32-33, supra.

b. Joint Interve'nors, in charges A(1) (d) (in part),

A(1) (m) (in. part) , and A(7) (a) , contend that welding and

, instrumer,tation work were not performed by qualified individuals.' In parEicular, they claim that welders were not-tested onsite and1that pipefitters were substituted for welders. See JI'Exh. 8 at 3, 10.32 See also Joint r-

-Intervenors' Reply at 21; Joint Intervenors' Response to ALAB-801 at 4-5. '

[ Joint Inte'$,venors fail to explain the significance of off5itd testing of welders. LP&L acknowledges that this

~

occurred, explaiiing that.offsite testing was often more efficient Ond is"dcceptable,under the ASME (American Society

/

of Mechan [ical Engineers) Code.

i ' -

LP&L also statc<s'that some

' 7-

, /, -

___ z ,

</ - ,  ;

' I We note that the NRC's Regulatory Guide 1.44,

" Control of the U' s e of Sensitized Stainless Steel" (May

,- 1973), at 1.44-2' lists the limiting of interpass temperature

-as just one cf 'cv s ral techniques recommended to control the

, _ -sensitization of stainless steel during welding.

' ;~ J6 int Intervenors agdin rely on the MAC Report, JI Exh. 1; bGt it contains no discussion of welder

., c.ualifications. ,,

f f

ih*

• am

.d F ,.

~

i.

l

/ '

// ..

43 pipefitters are skilled and qualified to perform welding, but only those who passed welding tests were permitted to weld. LP&L's Responses to Specific Allegations at 40. With respect to instrumentation, union craftsmen, extensively trained onsite in an apprentice program, performed this work. It was also inspected and audited by site OA and OC personnel. Id. at 14.

The subject of welders' qualifications was reviewed in

-depth by the staff and LP&L because of concerns identified by the staff in Issues 9 and 22 of the Eisenhut Letter. See JI Exh. 9, Enclosure at 7, 13. Issue 9 involved missing documentation for some support welds on instrumentation cabinets,_ raising the question of whether all of the welders who performed this work were qualified. In response to the staff's request, LP&L reinspected 17 of the 18 cabinets and located some of the missing documentation. The staff then reviewed a sample of LP&L's work. The results of the reinspection and review showed that the welding was adequate to meet all expected loadings and that no rework was necessary. The staff also concluded that the generic aspects of this matter were adequately evaluated. SSER-9, Appendix J at 49-50.

Issue 22 reflected the staff's concerns that, due to documentation deficiencies, some Mercury welders did not appear to be qualified, and that code requirements for the control of weld filler material had not been met. LP&L

44 performed a review of Mercury welders' qualifications and found that all were qualified except one, a nonconformance that had been properly dispositioned in an NCR. See LP&L Exh. 6 at 22-1 to 22-2. The staff's review confirmed that, although Mercury's records contained numerous clerical errors and were not maintained according to procedures, its welders were qualified for the various welding jobs performed. (For example, welders qualified to make groove welds were also qualified to make fillet welds, but not vice versa.) As for'the control of filler material, the staff determined that the redrying process used by LP&L instead of the rebaking required by the American Welding Society and ASME Codes was an acceptable deviation and provided satisfactory results to ensure the necessary elimination of moisture. Consequently, the staff found this had no safety significance or impact on plant hardware. SSER-9, Appendix J at 79-83. See also NRC Staff's Further Response, Harrison Affidavit at 30-32; Staff Response to ALAB-801, Harrison Affidavit at 33. All welders thus appear to have been qualified for the work they performed. We also take note-once again of the successful results of the reinspection and testing program for Mercury's work. See pp. 26-27, 32-33, sutra.

c. Joint Interve'nors charge that Ebasco procurement personnel were not adequately trained, especially in quality assurance. See charges A(1) (1) and A(3) (e) . They have l

_ ____________ O

45 supplied five exhibits to support these charges, but none is of probative value. JI Exhs. 18, 19, 20, and 31 are various notes on, and listings of, audit items generated from 1976 to 1978. Joint Intervenors have made no effort to direct our attention to the particular parts of these documents that supposedly support their charge, and our perusal of them is unavailing. LP&L notes one item of possible relevance -- an NCR stating that there was no record of training for one Ebasco senior buyer -- but points out that corrective action was taken on this matter and the NCR was closed out in 1977. LP&L's Responses to Specific Allegations at 13, 27. See JI Exh. 20 at 3. The fifth

" supporting" document, JI Exh. 21, is a March 1981 NRC

" Preliminary Notification" concerning the arrest of eight construction workers (none involved with either QA/QC or procurement) for possession and sale of marijuana.

Obviously, this exhibit has nothing to do with the adequacy of the training of Ebasco's procurement employees.

d. In charge A(1) (n), Joint Intervenors allege that alcohol and drug abuse was common at the Waterford site. An informer's affidavit claims that not only was such abuse common, it was condoned and even participated in by management. JI Exh. 8 at 4. Joint Intervenors again cite JI Exh. 21, concerning the 1981 arrest of eight construction workers for the possession and sale of marijuana, but this time in a more relevant context.

46 LP&L denies that drug and alcohol abuse was common at Waterford. It points out that the allegations in JI Exh. 8 are vague and nonspecific.33 It also notes that LP&L management cooperated fully with local law enforcement officials in the four-month undercover investigation that led to the arrest of the eight construction workers discussed in JI Exh. 21. LP&L describes its policy on drug and alcohol abuse -- a policy strengthened after the 1981 arrests. This policy applies to LP&L and contractor employees alike, and it provides for disciplinary action against employees found in possession of a controlled substance, even during off-duty hours. Unannounced searches, urinalysis, and observation by security personnel and timekeepers are means used to detect the use of unauthorized substances. . The policy also includes measures to educate and to assist employees with substance-abuse problems. LP&L's Responses to Specific Allegations at 15-17.

The staff confirms LP&L's work with local law enforcement to minimize drug use onsite. Following a recent review of LP&L's drug program, the staff concluded that it was better than the industry average and appeared to be 33 The unexpurgated copy of this exhibit (see 1.ote 8, suora) contains no additional details on this point.

47 implemented effectively. Hence, the staff has no concerns of this nature about the fitness of Waterford's operating staff. NRC Staff's Response, supra note 8, Crossman 4

Affidavit at 2, Enclosure I.

e. Charges A(1) (o) and A(8) (a) concern an alleged lack of QC coverage for night shift construction work at Waterford. Joint Intervenors rely on the statement of a former worker, who claims that in 1982 Ebasco had no QC coverage on the night shift and that, according to a co-worker, Mercury'had "only" one or two QC inspectors for 10 to 12-person night crews. See JI Exh. 8 at 6-7.35 The allegations of the former worker are so nonspecific that they fail to provide any serious or credible support for the charge of no QC coverage at night. For instance, the work supposedly lecking in such coverage is not even described, and an inspector / crew ratio acceptable to Joint Intervenors is not specified. Nonetheless, LP&L conducted a sample survey of 1982 Ebasco and Mercury work schedules.

34 This was one of the staff responses that we did not strike in ALAB-801. See 21 NRC at 484.

35 Joint Intervenors also rely on JI Exhs. 1 and 22, the MAC Report and an August 1979 memorandum on the MAC recommendations. The latter contains no reference to QA/QC coverage at night, and the MAC Report itself makes only a passing reference to a likely future need for " covering the around-the-clock work that lies ahead." JI Exh. 1 at 2.

Thus, neither adds support to these charges.

48

.The survey results show that, depending on the amount of work under way, Mercury had from one to 24 inspectors on the night shift. Also contingent on the amount of work involved, Ebasco had from one to four inspectors assigned to the night shift. LP&L's Responses to Specific Allegations at 17-18. Charges A(1) (o) and A(8) (a) are thus without merit.

f. Joint Intervenors rely on other allegations in JI Exh. 8 (at 4-5) to support charges A(2) (d) and A(2) (e) .

They claim that whip restraints and temporary hangers were installed first and design drawings were done later to conform to the actual installation. They also assert that design drawings did not accurately reflect interferences between pipe hangers and instrumentation.

LP&L replies that whip restraints and temporary hangers were installed at Waterford in accordance with regulatory requirements and accepted industry practice. It explains that temporary construction hangers are used only to hold piping in place while permanent hangers are installed; design drawings would serve no useful purpose and thus are not made for this type of hanger. Temporary testing hangers, on the other hand, provide additional pipe support during testing and are preceded by design drawings. Where field changes were necessary for this type of hanger, field or design engineering personnel were authorized, pursuant to approved procedures, to " redline" changes directly onto the

49 design drawing. LP&L also points out that it is not uncommon to discover interferences in actual installation that were not contemplated by the design drawing. LP&L suggests that the alleger may have observed such changes without understanding the differences in hangers or the propriety of making drawing changes in the field. LP&L's Responses to Specific Allegations at 22-23.

Although Joint Intervenors do not rely on it here, we note that the CAT Inspection Report discusses various discrepancies betwsen as-built drawings and the actual installation of supports and restraints. The CAT concluded that, although no extensive structural integrity problems were identified, LP&L's inspection efforts in this area had not been totally effective. JI Exh. 23 at III-5 to III-9.

As a result, LP&L performed two 100 percent reinspections of pipe supports and restraints. The staff reviewed this work and found only minor deficiencies, none of safety significance. Staff Response to ALAB-801, Mullikin Affidavit at 5-6. See p. 84 and note 63, infra.

g. Affidavits from two former workers at Waterford provide the basis for Joint Intervenors' charge A(2) (f),

concerning the allegedly improper installation of Hilti bolts. The allegers claim that, although design drawings required four such bolts on baseplates, often only two were used; welding to the bottom of the baseplate was done but

50 not permitted; and bolts shorter than authc.rized were used on occasion. See JI Exh. 8 at 6, 10-11; JI Exh. 27 at 6-7.

LP&L has extensively addressed the informers' allegations, including those not explicitly encompassed within charge A(2) (f) . It first notes generally that, whenever it was necessary to deviate from design requirements for the installation of Hilti expansion bolts (used to install anchor plates to existing concrete structures), engineering approval was obtained. More specifically, LP&L points out that there are numerous instances, involving both safety- and nonsafety-related hardware, where the approved designs called for two, rather than four, Hilti bolts in the anchor plate. With respect to the claim that such-bolts were welded to the bottom of baseplates, LP&L states that this would be extremely unlikely, inasmuch as this procedure would be more difficult than that authorized and would have been discovered through QC inspections or supervisor observation. The use of bolts shorter than required would be readily detected during testing because they could not withstand the torque applied at installation. One such case was, in fact, identified and dispositioned in an NCR. LP&L adds further that Hilti bolts are conservatively designed and have substantial reserve capacity. Thus, in the event of the isolated incidents described in the affidavits, there would be no danger to the

51 structural integrity of the plant. LP&L's Responses to Specific Allegations at 23-25.

h. In charges A(3) (g) , A(5) (b) , and A(10) (h) , Joint Intervenors complain that there was inadequate control of design documents. For example, design errors assertedly went uncorrected because it was not cost-beneficial to correct them, and labeling errors and the like made retrieval and maintenance of these documents difficult.

Joint Intervenors rely on a letter (undated, but probably written in late 19h9) from LP&L to Ebasco concerning certain errors on drawings. See JI Exh. 26.36 While LP&L's letter describes the drawing errors as "significant," the attachments to the letter listing the errors show that virtually all involve either the same misspelling ("extration steam" rather than " extraction steam") or wrong cross-reference numbers. Id. at 1, attachments. As LP&L explains, these discrepancies appeared on appliques or stickers affixed to drawings received by the project to facilitate distribution and review. The errors did not appear on the drawings themselves and did not affect the design information. They also did not affect document 36 They also refer to an October 1979 handwritten memorandum from and to unidentified persons about errors on manufacturers' drawings. This document is largely illegible and unintelligible, although it characterizes the errors in question as " minor." See JI Exh. 25 at 2.

52 maintenance or retrieval. Thus, they can properly be considered minor (see note 36, supra), particularly because 1

all items involved were classified as nonsafety and j nonseismic. Nevertheless, this matter was addressed as an audit item, followed by corrective action and eventual closecut. LP&L's Responses to Specific Allegations at 29-30. See also id. at 36, 54.

i. Charges A(3) (h) , A(3) (i) , and A(10) (g) (in part) concern alleged deficiencies in LP&L's records management system. Joint Intervenors argue that LP&L resisted recommendations to establish a suitable computerized records system, and that the contractor hired for this job quit as a result. They submit as support for these charges three September 1978 internal LP&L memoranda, reflecting one individual's views on the recommendations of a task force on records management. See JI Exhs. 32, 33, 34. Another documerit, JI Exh. 35, is an April 1980 letter to the Waterford project manager from the contractor for the records system, expressing that firm's difficulties in installing and implementing the Master Tracking System (MTS) at the site.37 37 JI Exhs. 1 and 5 -- the MAC Report and the NRC's Waterford Task Force Inspection Report -- are also cited by Joint Intervenors. Our attention is directed to no particular portion of these documents that might support the charges in question, and none is apparent.

53 LP&L strongly defends its records management system.

It notes that the computer system recommended by the author of JI Exhs. 32, 33, and 34 was, in fact, installed and used by LP&L. It also states that, despite some initial problems and complaints from the contractor concerning installation of the MTS at Waterford, the work was completed in 1980 by that contractor and the system remains in use today. LP&L's Responses to Specific Allegations at 30-31. There is thus no basis to Joint Intervenors' charges.

j. Joint Intervenors express a concern, based on a former worker's statement, that the safety of the plant may be affected by the alleged continuing use of temporary pipe supports. In charge A(4) (e) , they claim that possibly more than 300 such supports have not been replaced with permanent hangers, which have a greater allowance for thermal expansion. See JI Exh. 8 at 4.

But as we noted earlier, pipe supports were extensively examined during several walkdowns and reinspections, and no significant safety deficiencies were found. See p. 49, supra. See also LP&L's Responses to Specific Allegations at 34-35. We note further that the satisfactory performance of pipe supports and restraints was verified during the Pre-Core Hot Functional Thermal Monitoring Program. See SSER-9, Appendix J at 16-17. Thus, Joint Intervenors' concern about thermal expansion has been addressed.

l l

}

54

k. Joint Intervenors assert in charges A(6) (a) and A (10) (g) (in part) that LP&L failed to establish an adequate and consistent components numbering system.38 They rely on JI Exh. 39, two November 1978 memoranda that simply suggest a particular numbering and identification scheme. The exhibit thus does not establish Joint Intervenors' point.

Indeed, as LP&L points out, the system recommended in these memoranda was employed for plant startup and continues in use today, during the operations phase. LP&L's Responses to Specific Allegations at 37.

1. Charge A(6) (b) states that LP&L failed to ensure that safety-related pipe hangers were fabricated from the correct steel and included all necessary parts. JI Exh. 8, a former worker's affidavit upon which Joint Intervenors rely, contains nothing directly on this point. There is, 38 In addition to this allegation and another (see pp.

52-53, supra), charge A(10) (g) also includes a claim that LP&L never corrected certain problems identified by the MAC Report (see JI Exh.1 at 6) and various audits. Joint Intervenors refer to JI Exh. 5, the July 1984 Waterford Task Force Inspection Report, to support this charge further.

Although they have once again failed to specify the applicable portion of this lengthy report,Section V is addressed to Joint Intervenors' apparent concern. There the staff notes LP&L's staffing and auditing problems and its failure to respond promptly enough to the MAC Report recommendations. See JI Exh. 5 at V-4 to V-7. We have already considered these matters at pp. 17-19, 31-34, supra, and need not review them again in the context of omnibus charge A(10) (g) . We add, however, that the Task Force Report considered this item to be " closed." JI Exh. 5 at V-7.

55 however, a related allegation that the metal used for rame safety-related work at the plant lacked the proper identification and narkings (e.g. , heat numbers) , precluding traceability in the event of a defect. JI Exh. 8 at 9.

LP&L replies that hangers were not required to have heat numbers; rather, this hardware was accompanied by certificates of compliance with the appropriate specifications, provided by the suppliers. LP&L's Responses to Specific Allegations at 38. The staff addressed a similar issue in SSER-7, allegation A-126. It noted that, in 1978, changes were made in the traceability system at Waterford, but implementation problems occurred. As a result, these changes were abandoned in late 1983. The steel certification program, however, had continued in effect th'roughout this time, and the staff found that it met the NRC's requirements. Moreover, the individual who originally brought this concern to the staff's attention was satisfied with the certification procedures and the staff's conclusions. SSER-7, Appendix J at 135-36. It is also worth noting, once again, the favorable results of the several walkdowns and reinspections of the pipe hangers and supports at the facility. See p. 49, supra.

m. Joint Intervenors raise essentially the same objection in charges A(6) (c) , A(7) (c) , and A(7) (d) -- that weld rod traceability records were not reliable. They point to JI Exh. 8 at 9, where a former worker avers that, because

56 the weld rod room was not open during the night shift, workers themselves filled out weld rod forms. These forms supposedly show that more weld rods were used than was in fact the case. This lack of accurate records, in the affiant's view, means there is no assurance that proper weld rods were used.

LP&L denies the charge, stating that there were detailed procedures for the storage, issuance, and control of welding materials at the plant site. It describes the special wciding requisition forms and notes that these, along with a " weld traveller package," are stored in permanent files to assure traceability. LP&L acknowledges that Ebasco's weld rod room was locked during nights and weekends when less work was in progress, but this was to prevent unauthorized entry. If welding material was needed, an attendant who could be easily summoned was available.

Other contractors maintained a full-time attendant whenever welding was being done. This system and the relevant documentation were audited several times over the years and found acceptable. LP&L's Responses to Specific Allegations at 39-40. LP&L has thus effectively rebutted Joint Intervenors' charge.3' 39 We think it noteworthy in this regard that JI Exh.

27, an affidavit from a former welder at Waterford, does'not identify any problems related to weld rod traceability.

1 I

57

n. Charges A(8) (d) and A(8) (e) assert that, contrary j to existing documentation, QC inspectors failed to perform i

i adequate inspections of safety-related work, such as main steam valves and fit-ups on Mercury instrumentation tubing.

See JI Exh. 8 at 7-8, 10.

In denying this charge, LP&L describes the procedures l

for inspection and maintenance of valves. It also refers to one instance where the QA program found that the Main Steam Isolation Valve had not been inspected properly. This was written up in an NCR, the valve was reinspected, and no 1

deficiencies were found. In LP&L's view -- and we agree --

this shows that the QA program was functioning properly.

LP&L also adds that each valve has been stroked (closed, then opened) and verified as correctly installed and operable.

With respect to the alleged problems with fit-ups in Mercury tubing, LP&L explains why this charge is not credible. Assuring a proper fit-up gap is a relatively simple procedure; on the other hand, an attempt to deceive a QC inspector by erroneous external markings (as JI Exh. 8 asserts) would be more difficult and time-consuming. If the gap in the tubing were not sufficient, the weld would likely crack and be immediately detected and repaired. Further, because the purpose of the gap is to facilitate proper welding, once a weld is completed and found acceptable, the size of the gap is no longer significant. LP&L's Re',ponses

58 to Specific Allegations at 45-47. We need only repeat that Mercury's work has been extensively reinspected with favorable results. See pp. 26-27, supra,

o. Joint Intervenors argue, in charges A(1) (m) (in part) , A(9) (a) , A(9) (b) , and A(9) (c) , that LP&L failed to establish and follow procedures (including the improper use of unqualified personnel) to control the handling, storage, cleaning, and maintenance of electrical equipment, valves, etc. They mention, in particular, two 1981 incidents of flood damage to electrical equipment and suggest that it may not have been reinspected and retested. These charges are based on allegations in a former worker's statement. See JI Exh. 8 at 3-4, 8-9.40 LP&L states in response that there were two flooding incidents in October 1981. One was in a nonsafety-related area (the Turbine Building) and resulted in no damage to safety-related equipment. The other was in the Reactor Auxiliary Building and was caused by the failure of a valve to operate during pneumatic testing -- not by unqualified workers. The emergency diesel generator control panels incurred substantial damage and consequently were completely 40 We note that there are some inconsistencies between JI Exh. 8 and Joint Intervenors' actual charges. For example, the affidavit refers to flood damage in 1982, rather than 1981. See JI Exh. 8 at 8.

59 replaced. This incident was documented and resolved, to the NRC staff's satisfaction, through the NCR system. LP&L's Responses to Specific Allegations at 47-48.

Speaking more generally to the charges, LP&L explains the care and maintenance procedures for equipment employed during the construction phase. Valves are not ordinarily stroked during this period because dust and construction debris could damage them. As part of the startup process, however, all valves are tested, the results are documented, and repairs are made. These procedures were audited and, despite minor deficiencies, found adequate. Id. at 48-49.

LP&L also explains its procedures for hiring, training, supervising, and testing maintenance workers. It points out that some maintenance positions require no prior experience.

Thus, the use of former cab drivers and bartenders, as alleged, would not be improper for some work. Id. at 14-15.

p. In part D(1) of their motion to reopen, Joint Intervenors complain that LP&L's corrective action for Issue 5 in the Eisenhut Letter - " Vendor Documentation -

Conditional Releases" -- is not adequate. See JI Exh. 9, Enclosure at 4-5. In their view, this issue concerns the lack of visual inspection of safety-related equipment by either vendor or site personnel at the time of receipts i.e., documentation was checked, but not the quality of the equipment or workmanship. LP&L's sample review of vendor documentation, according to Joint Intervenors, cannot

60 d

substitute for visual inspection. Joint Intervenors' Motion at 36-37. See JI Exh. 10 at 136-38.

As LP&L points out, Joint Intervenors misunderstand the concern raised by the staff in Issue 5. See LP&L's

Responses to Specific Allegations at 80-81. The staff had i

found certain deficiencies in the handling of conditional certifications of equipment supplied by Combustion l Engineering (the vendor of the nuclear steam supply system 4

! for Waterford) -- namely, QA documents (as-built drawings, material certifications, and fabrication plans) apparently missing since 1976. The staff considered this documentation deficiency safety-significant because problems with vendor CA records could affect installed safety-related equipment.

j The staff therefore directed LP&L to review its records to j determine if such conditional certifications were identified and resolved. JI Exh. 9, Enclosure at 4-5. Thus, this issue has nothing to do with visual inspection of equipment at the time of receipt; rather, it is essentially another miscing records problem.

In any event, LP&L has responded adequately to the matter raised by Issue 5. In its submission to the staff, LP&L acknowledged that some conditional certifications from Combustion Engineering were not formally tracked, but this was because the conditional nature of the certification was thought to reflect incompleted purchase orders, rather than hardware or software deficiencies. LP&L re-reviewed the

61 records associated with Combustion Engineering material and equipment, as well as those of other manufacturers, and found no matters that would adversely affect plant safety.

In addition, LP&L has taken steps to assure that conditional certifications will be formally tracked in the future, and it has made a commitment to review all Combustion n Engineering conditional certifications to determine if the conditions noted could affect the operability of the equipment. LP&L Exh. 16 at 5-1 to 5-3. The staff as well reviewed a sufficient sample of purchase orders and Material Receiving Inspection Reports. It concluded that LP&L's identification of, and corrective action taken on, the conditional releases of equipment satisfactorily resolved any concerns about vendor-supplied safety-related equipment.

SSER-9, Appendix J at 27-28.

q. Charges A(4) (b) and A(8) (c) and part E of Joint Intervenors' Motion (at 39-44) all concern the concrete basemat on which the Waterford facility rests and the backfill surrounding it. We previously addressed this matter at length in three decisions -- ALAB-753, 18 NRC at 1324-29, ALAB-786, 20 NRC at 1090-95, and, most recently, ALAB-803, 21 NRC at 578-86, where we concluded that "no

62 significant safety issue exists as to the basemat."41 Joint Intervenors raise no basemat-related arguments in the instant motion to reopen that we have'not already considered. Indeed, many of the exhibits on which they rely are rather familiar documents (e . g . , JI Exh s . 41, 59, 60, 61, 62), and others are illegible and unintelligible or provide no support for the argument that LP&L has failed to identify, analyze, and correct problems connected with the basemat (e.g. , JI Exhs. 37, 38, 40, 56). We remain convinced of the adequacy of the basemat and reiterate that "any QA problems associated with [it] have been satisfactorily resolved." ALAB-803, 21 NRC at 586 n.21.

3. A number of other QA charges in Joint Intervenors' contention A still remain. But although we have considered each individually, they are so devoid of merit for one or more " generic" reasons that no lengthy discussion of them is

warranted. See San Luis Obicpo Mothers for Peace, 751 F.2d at 1320-21.

In some cases, the exhibits on which Joint Intervenors

. rely are simply of no probative value because they are illegible, unintelligible, or undated, or they fail to 41 No party petitioned the Commission for review of'any of these decisions.

63 identify their source.42 _

Joint Intervenors also rely on certain large documents but fail to cite to the specific pages or portions assertedly pertinent to the charge, likewise making them of no value. See ALAB-801, 21 NRC at 483-84. See also p. 88, infra.43 As noted earlier, some charges and their corresponding exhibits are years old, yet Joint Intervenors make no attempt to establish that the alleged QA deficiencies have not been remedied and thus continue to the present.44 In other cases, the exhibits have no apparent relation to the specific charge, or the particular nature of the QA problem alleged is neither evident nor explained in the motion.45 Finally, Joint Intervenors at times rely on documents that, in fact, refute the corresponding charge or, at best, provide no support for it.46 Thus, Joint Intervenors have failed to supply, for these charges, the "' relevant, material, and reliable'"

42 See charges A(1) (e) , A(1) (k) , A(2) (a) , A(2) (b) ,

A(2) (c) , A(3) (c) , A(8) (b) , A(10) (h) .

43 See charges A(1) (a) (i) , A(1) (a) (ii) , A(1) (a) (iii) .

44 See charges A(1) (a) (i) , A(1) (a) (ii) , A(1) (i) ,

A(1) (k) , A(2) (a) , A(3) (b) , A(3) (f) , A(4) (a) , A(5) (a) ,

A(5) (c) , A(7) (b) , A(10) (d) , A(11) (a) , A(11) (b) , A(11) (d) .

45 See charges A(1) (f), A(1) (j) , A(3) (c) , A(4) (a) ,

A(4) (c) , A(4) (d) , A (5) (c) , is (11) (a) , A (11) (b) , A (11) (c) .

46 See charges 7 (1) (e) , A(1) (i) , A(3) (a) , A(3) (b) ,

A(3) (d) , A(3) (f) , A(5/ (ei , A(10) (d) .

r -

64 evidence required to support a motion to reopen. Diablo Canyon, ALAB-775, 19 NRC at 1366-67.

4. The extensive record compiled in connection with Joint Intervenors' motion to reopen unequivocally demonstrates that a quality assurance breakdown did, in fact, occur in the LP&L-Ebasco-Mercury chain. The breakdown was due in large measure to LP&L's inadequate staffing and a cumbersome NCR system, which in turn created problems in implementation of the QA auditing program and difficulties in trending deficiencies. SSER-7 (allegation A-48) and the Eisenhut Letter document these problems. See SSER-7, Appendix J at 96-100; JI Exh. 9. Some of these problems also prevented LP&L from initially acting as promptly as it should have, when various QA problems began to crop up during the major period of plant construction.

On the other hand, the more serious QA lapses (e.g. , in the inspector qualification area) involved the work of primarily one subcontractor -- Mercury. To be sure, the work of other subcontractors was not without irregularities; but they were shown to be largely isolated instances and typical of problems found at other nuclear plants under construction. See Staff Response to ALAB-801, Harrison J

65 Affidavit at 10.47 No serious hardware or system defects were discovered in any of the work, despite an extensive reinspection and document review effort. Indeed, the CA documentation -- originally suffering from numerous infirmities itself -- is now materially complete and reflects the as-built condition of the facility. In short, the problems that existed either have been corrected or are without significance insofar as the safe operation of the plant is concerned. See Callaway, ALAB-740, 18 NRC at 346.

47 Joint Intervenors argue that a May 1984 draft of SSER-7 (allegation A-48) shows that there was a " complete" breakdown of "all QA functions." Joint Intervenors' Response to ALAB-801 at 3 & n.1. We disagree. In the first place, a draft is just that -- a working document. It is entirely reasonable that a document like SSER-7 would go through several revisions before it appears in final form and presumably reflects the actual, intended position of the preparer (s). In the absence of a legitimate reason to doubt that SSER-7, as published, represents the staff's position

-- and Joint Intervonors have supplied none -- the draft is not a particularly useful item on which to rely. See Staff Response to ALAD-801, Crutchfield Affidavit at 4-5. This is true whether the draft document is a technical or investigatory report, a litigant's brief, or a judge's decision.

Second, the specific portion of the draft Joint Intervonors have called to our attention is entitled

" Assessment of Allegation." Read in context, it does not represent the staff's findings, evaluation, or conclusions

-- which are set forth in subsequent portions of the discussion of allegation A-48. Further, we do not find the differencen between the draft and the final version of SSER-7 so compelling. Both tell us what we already know from the substantial additional information available:

there was a QA breakdown in the LP&L-Ebasco-Mercury chain.

66 l

Moreover, LP&L's OA program has shown considerable improvement in the last two years. LP&L's management responded convincingly to the several NRC inspections and investigations into its OA program during this time; its submissions in response to the Eisenhut Letter (and the actual work they represent) are impressive. Further, LP&L has incorporated the lessons it has learned from its past quality assurance failures into what appears to be an effectivo QA program for future operation, so as to prevent a recurrence of the deficiencies revealed in this record.

Thus, the questions we posed in ALAD-801, 21 NRC at 486-87, have been fully and satisfactorily answered. Soo generally Staff Rosponse to ALAB-801, llarrison Affidavit at 15-45. The record shows that no safety-related construction errors remain uncorrected, and the breakdown in LP&L's OA procedures has not been shown to be complete, systemic, or so porvasivo as to raisc legitimato doubt about the safe operation of the plant. Sco Diablo Canyon, ALAB-756, 18 NRC at 1344-45. Reasonablo assurance that the plant can be operated safoly exists, and, hence, thoro is no ground for reoponing on Joint Intervonors' contention A.48 40 The staff recently informed us and the parties of its proposed $130,000 civil penalty against LP&L for various failures in 13 areas of its construction OA program. Board Notification No.85-062 (Juno 4, 1985). The staff considers (Footnoto Continued)

67 B. Management Character and Competence The second proposed contention on which Joint -

Intervenors seek reopening states: -

LP&L does not have the necessary character and l competence to operate Waterford 3 in accordance with all NRC requircmente and in a manner which protects the public health and safety. Therefore, the Commission cannot make the findings required by 10 CFR 50.57(a) needed to issue a license to operate Waterford 3.

Joint Intervenors' Motion at 15. Joint Intervenors argue that LP&L's lack of character and competence is demonstrated in essentially six' ways: (1) pending investigations by the l

(Footnote Continued) f the violations to be Severity Level III -- Level I being the most serious and Level V the least serious from a safety standpoint. See 10 C.F.R. Part 2, Appendix C, Supplement t II. The Notice of Violation and accompanying letter request an extensive. response (which may incorporate by reference previous submittals) from LP&L within 60 days.

The request for more information from LP&L and some of the language in the staff's letter and Notice are somewhat curious in light of the staff's recent strong endorsement, in filings before us, of both LP&L's corrective actions and its operational QA program. Nonetheless, the issues raised by the Notice of Violation are all derived from SSER-7, SSER-9, and various earlier inspection reports; nothing new l is presented or revealed. Indeed, the proposed civil penalty appears to be simply the culmination of the staff's various inspection efforts over the last few years and was suggested in several reports. See, e.g., SSER-7, Appendix J  ;

l at 15; SSER-9, Appendix J at 5; JI Exh. 5, Appendix B; JI l Exh. 23 at B-1 to B-2. Thus, we fully expected that some  !

! onforcement activity (including the imposition of a punitive l monetary fine) was likely to result from the deficiencies the staff identified in LP&L's construction QA program. In <

other words, even if the full amount of the proposed penalty is ultimately exacted, neither it nor the events on which it ,

is based would alter the outcome of our ruling here.

l l

68 NRC's Office of Investigations into allegations of falsification of records and harassment of OA/0C personnel  !

i at the site; (2) misstatements and misleading statements by LP&L to the Securities and Exchange Commission (SEC) about the statu: and =chedulo of the pl:nt; (3) insecurato and misleading statements by LP&L in an April 27, 1984, letter to the NRC staff; (4) LP&L's historical failure to comply

with NRC regulations and to correct noncompliances adequately; (5) LP&L's failure to upgrade its staff; and (6)

LP&L's failure to ensure the competence of Ebasco site management.

Again, in considering Joint Intervenors' claims, we have focused on whether these charges raise a significant safety issue. We conclude that charges B(2) through B(6) do' not, either individually or collectively. Thus, there is no justification for reopening the record on these grounds to explore LP&L's character and competence at an adjudicatory

(

hearing. As for charge B(1), however, the state of the  ;

record does not permit us to make a judgment one way or the other. The unusual problems presented by this charge compel .

i us to leave the matter for the Commission's resolution.

1. Joint Intervenors' first ground for challenging LP&L's character and competence is the pendency of several OI investigations into alleged records falsification and 1

I P

]

69 harassment of QA personnel.49 They provide a transcript of a July 13, 1984, meeting between staff and OI personnel and officers of LP&L. The purpose of that meeting was to discuss LP&L's program plan for responding to the 23 issues raised in the Eisenhut Letter, and the credibility of the LP&L personnel responsible for implementing that plan.

See JI Exh. 46, Tr. 3. Relying on an article from the Wall Street Journal, Joint Intervenors claim that OI is ready to refer "over four cases" to the Department of Justice (DOJ) for criminal prosecution. Joint Intervenors' Motion at 15; JI Exh. 45.

LP&L replies that an OI investigation is conducted to determine if a problem exists. Thus, the validity of any allegation that prompted an investigation is indeterminate 49 In charge A(1) (g), Joint Intervenors claim that LP&L took retaliatory action against QA personnel who adhered strictly to QA procedures. They rely on JI Exh. 12, an affidavit from an anonymous former QA engineer at the plant, l who avers that he was terminated from his position for l voicing concerns about quality assurance. The staff initially advised us only that OI was " reviewing issues in this area." NRC Staff's Response, Crutchfield Affidavit, Attachment 1 (Matrix) at 1. Because of the lack of specificity in the publicly available version of the affidavit (see note 8, supra), OI cannot state whether this i particular allegation is encompassed within the matters it l is investigating in connection with the Waterford facility.

01 acknowledged, however (in a letter it made public), that one of those investigations " addresses the issue of the alleged harassment and intimidation of QA/QC personnel."

Letter to Appeal Board from B. B. Hayes (April 12, 1985) at

1. We have therefore grouped charges A(1) (g) and B(1) together for the purpose of our discussion here.

.F [- ,

?

,/

. l ,

10 until 'arr investigatory finding is made. Without knowing any of the details of the investigations, LP&L is unable to respond more specifically. It strongly asserts, however, that its management has demonstrated the commitment, sincerity, and involvement necessary to operate Waterford in a safe manner. Applicant's Answer, supra note 11, at 23-24.

Because of the dearth of publicly available information concerning OI's investigations (see, e.g. , SSER-7, Appendix J at 15) , we solicited more details directly from OI. Order of December 19, 1984 (unpublished). Recognizing OI's likely desire to keep sensi'tive investigative material confidential, however, we invoked the Commission's special policy for handling"the inevitable conflicts that arise when investigations are conducted in areas with potential relevance to a pending adjudication. See 49 Fed. Reg.

36,032 (1984). Under this policy, our subsequent commurications with OI have been on an ex parte, in camera basis. See Noticos of March 22, May 2, and June 4, 1985 (unpublished) . 50 Unfortunately,.those communications have not been fully productive. We solleitad specific information from OI, in 1

l 50 Joint Intervonors recognize that we are bound by the Commission's policy, but formally note their objection to, And sock to participato in, such briefings pursuant to a protective order. ' Joint Intervonors' Response to ALAB-801 at 11-12.

/

71 both written and oral form -- the kind of specific information we need "to determine the relevance of material to [this] adjudication, and whether that information must be disclosed to the parties." 49 Fed. Reg. at 36,033. Despite our efforts, complete, usable information has not been forthcoming. Some of the information does not yet exist; i.e., although the investigations were begun in 1983 or 1984, most are not yet complete, and they will not be until late summer at the earliest. Further, OI is generally reluctant to provide anyone with information that it considers incomplete. In addition, the OI personnel who responded to our requests did not have firsthand knowledge of the subjects of our inquiry, or they were not adequately prepared; i.e., neither were they the actual investigators who conducted the interviews, nor had they read the notes or transcriptions of the interviews.51 To remedy this information gap -- where it was apparent that information on a particular subject did indeed exist but OI was unable to describe or to summarize it for us --

we took the unusual step of reviewing some of the investigative documents ourselves, in the NRC Regional Office where they are located. Nothing we have seen gives 51 These circumstances are no doubt attributable to the j limited resources of, and many demands made on, OI.

f 1

72 us cause for significant concern about the integrity of LP&L's management. On the other hand, we cannot rule out all possible grounds for Joint Intervenors' charges. But OI's position is that, until its investigation is truly complete (which may include consultation with DOJ) , it opposes the release of information to the parties, even under a protective order. If the information is not available to the parties, however, we cannot rely on it in making our decision. Ibid. Simply stated, we have no expectation of getting adequate information from OI, which we can share with the parties and on which we can rely in making a decision, within a reasonable, definite period of time. In this circumstance, neither a denial nor a grant of the motion to reopen would be sustainable or fair. Thus, we' are at an impasse.

Only the Commission, it would appear, can obtain full access to the information discovered by OI and thus 52 We have been scrupulous in the protection of the information OI has provided us. We do not feel constrained, however, from " revealing" the following. There is no basis for Joint Intervenors' claim that over four cases have been referred to DOJ. OI has advised us that it has referred only one case so far, and DOJ declined to prosecute. Letter to Appeal Board from B. B. Hayes, supra note 49. A number of cases involve allegations of QA records falsification and harassment and intimidation. See note 49, supra. Some of them, however, appear to be isolated or anecdotal examples of QA problems already and fully addressed elsewhere.

Several cases have been closed, with findings that do not s

reflect adversely on LP&L.

73 .

i determine its relevance to Joint Intervenors' motion. And, under the Policy Statement, only the Commission can decide if and when that information is to'be released to the parties. See id. at 36,034. Our experience here convinces us that there is a fundamental and philosophical conflict between the mission and duties of OI and those of the adjudicatory boards.53 The Commission alone is in the position to resolve this conflict. We thus have no real option but to leave this matter for the Commission to resolve.54

2. Joint Intervenors assert that "LP&L has made a significant number of misstatements and misleading e

53 '

A licensing board recently experienced similar difficulties. See Long Island Lighting Co. (Shoreham

• Nuclear Power Station, Unit 1), LBP-85-18, 21 NRC ~- --

(June 14, 1985) (slip opinion at 6-8).

$4 We believe it would be futile to pursue the further ,

procedures outlined in the Policy Statement, 49 Fed. Reg. at 36,034. Those measures focus on disclosure to the parties.

We are not even at that point yet; the problem here is disclosure to this Board of possibly relevant information, within a reasonable time period. We have attempted to obtain information from OI since February 1984. Our efforts have been largely unsuccessful: what we have learned has come only after considerable prodding on our part. Further, the last two years of this proceeding have been characterized by extreme, albeit often unavoidable, delays.

We are not willing to incur further delay in the disposition of Joint Intervenors' motion while OI completes its work.

In this decision, we rule on all other matters before us.

We believe it is both logical and more efficient for the Commission to address this remaining, unique matter in the context of its consideration of our opinion here. '

74 statements in financial statements submitted to the [SEC) about the status and schedule of the Waterford project."

Joint Intervenors' Motion at 16. They cite seven instances, during February-July 1984, in which LP&L made these statements.55 According to Joint Intervenors, LP&L's estimated time of receipt of an operating license in these documents was disingenuous, given that the NRC staff had already informed LP&L that alleged construction QA deficiencies would have to be resolved before license issuance. And, in'their view, LP&L's misleading statements to the SEC show "its lack of honesty with regulatory bodies" and inability to be trusted with regard to statements about

., the safety of Waterford. Id. at 21.

We do not and cannot properly decide if LP&L's filings with the SEC and related issuances to stockholders are

" misleading" for the purposes of the securities laws. But neither do we disclaim entirely any interest in how LP&L portrays its dealings with the NRC in public documents -- as (1) LP&L 1983 Annual Report (February 23, 1984) - JI Exh. 47; (2) SEC Form 10-K (for fiscal year ended December 31, 1983; filed March 30, 1984) - JI Exh. 48; (3)

Preliminary Prospectus (May 25, 1984) - LP&L Exh. 10; (4)

Prospectus (filed June 7, 1984) - JI Exh. 50; (5) Amendment to Registration Statement (July 24, 1984) - LP&L Exh. 11; (6) Middle South Utilities, Inc. (the parent of LP&L),

Memorandum to Members of the Financial Community (July 30, '

1984) - JI Exh. 51A; (7) Middle South Utilities, Inc.,

Report to Stockholders (July 1984) - JI Exh. 52.

75 did the staff in its submission stricken in ALAB-801. See NRC Staff's Response, Crutchfield Affidavit at 4. For, if LP&L's statements to the SEC and stockholders were to be so at odds with the facts as we know them, there would be room ,

for legitimate concern, and possibly further inquiry,-about LP&L's honesty with the NRC. The NRC's dependence on a licensee for' accurate and timely information about its facility makes candor an especially important element of management character. See Metropolitan Edison Co. (Three Mile Island Kuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1208 (1984), rev'd in part on other grounds, CLI-85-2, 21 NRC 282 (1985). See also id., CLI-85-09, 21 NRC _ , _

(May 29, 1985) (slip opinion at 26); South Texas, 21 NRC at 371 (nexus of particular character trait to particular performance standards contemplated by Atomic Energy Act and NRC regulations is required).

We have scrutinized each of the seven statements cited by Joint Intervenors. To be sure, the drafters of the l

statements chose their words carefully, including i-

, appropriate qualifying words and phrases, as necessary.56 1

For example, LP&L's 1983 Annual Report states that

"[s]ubject to the timely issuance of the necessary license by the [NRC), fuel is scheduled to be loaded into the reactor during the second quarter of 1984, and commercial operation is anticipated by the end of 1984." JI Exh. 47 at 3 (emphasis added) . -The 10-K statement explicitly notes (Footnote Continued) i

76 As events developed and the NRC's inspection efforts intensified, the language in the statements was modified on the basis of the best information available at the time.57 (Footnote Continued) that, although LP&L " currently expects to receive an operating license from the NRC in April 1984," the opposition of " anti-nuclear groups" can result in

" regulatory delays." The statement goes on to set forth the estimated additional financing charges that would be incurred were such delay to occur ---again explicitly acknowledging that possibility. JI Exh. 48 at 6. Virtually identical language appears in the May 1984 Preliminary Prospectus, June 1984 Prospectus, and July 1984 Registration Statement amendment. See LP&L Exh. 10 at 5; JI Exh. 50 at 5; LP&L Exh. 11 at 5.

57 In the Preliminary Prospectus, LP&L no longer states when it expects to receive a license; rather, it

" anticipates that Waterford 3 will be ready for fuel loadine in late May 1984." LP&L Exh. 10 at 5 (emphasis added). The Prospectus filed on June 7 states that LP&L " believes" the plant is ready for fuel loading. JI Exh. 50 at 5. Six weeks later, the amendment to the Registration Statement discusses the June 13, 1984, Eisenhut Letter. It notes that the NRC required these issues to be resolved before licensing, that LP&L had submitted a program plan for resolution of the iscues, and that it was involved in continuing discussions with the staff on these matters. It also mentions commencement of a program of ultrasonic testing of the basemat "for the purpose of providing final assurances" of the mat's structural integrity. The statement cautions that license issuance "should not be expected before possibly late August or September 1984."

i LP&L Exh. 11 at 5. The Middle South memorandum to the financial community, issued one week later, reflects an upbeat attitude but is also consistent with LP&L's SEC filings. See JI Exh. SlA.

! Joint Intervenors argue that LP&L essentially knew that its problems were more significant than its filings l reflected. But in support of this, they repeatedly rely on l documents that were prepared or events that occurred after the issuance of the particular statements in question or.the time period they were intended to cover. For instance, (Footnote Continued) l l

l

77 The statements indeed reflect an attitude of optimism, but it is sufficiently tempered by reality. They also show LP&L's confidence in its Waterford facility -- a view naturally expected from the management of an organization.

But we cannot conclude, as Joint Intervenors urge, that the statements are either misleading or inaccurate, so as to cast serious doubt on LP&L's willingness and ability to deal honestly with the NRC.

3. Joint Intervenors allege that LP&L made inaccurate and. misleading statements to the NRC as well in an April 27, 1984, letter. Joint Intervenors' Motion at 21-26. This letter was LP&L's formal response to an April 2, 1984, letter, in which the staff set forth some 39 allegations of improper construction practices at Waterford. See JI Exhs.

54 and 53. Joint Intervenors claim five of LP&L's 39 responses were " false statements." Joint Intervenors' Motion at 21-26.

(Footnote Continued)

LP&L's 10-K filing expressly covered the year ending December 31, 1983, and it was filed March 30, 1984. See JI Exh. 48. Yet Joint Intervenors rely on a letter from the NRC to LP&L -- dated April 2, 1984, and requesting additional information on 39 issues -- as an indication that LP&L's 10-K statement of an expectation of license issuance in April 1984 was misleading. Joint Intervenors' reliance is all the more misplaced in view of the staff's request for the additional information by April 18, "[i]n order to maintain the scheduled licensing decision date of late April or early May." JI Exh. 53.

78 Joint Intervenors' arguments are without merit. As

" proof" of the falsity of LP&L's April 27 response, Joint Intervenors rely on several NRC-generated documents, which identify certain problems in LP&L's construction QA

~

' 58 program. These documents, however, were not even in

, existence at the time of the April 27 letter.59 More 4

58 See Eisenhuk Letter (June 13, 1984) - JI Exh. 9; 4

Waterford Task Force Inspection Report No. 50-382/84-34 (July 20, 1984) - JI Exh. 5; Robert E. Philleo, " Evaluation of Concrete Construction Adequacy in the Basemat" (May 18,

, 1984) , attached to NRC Staff's Motion for Additional Extension of Time (June 14, 1984) - JI Exh. 41; CAT ..

Inspection Report No. 50-382/84-07 (May 14, 1984) - JI Exh.

23; viewgraphs from staff meeting with LP&L (August 17, 1984) - JI Exh. 56.

1 Joint Intervenors also rely on an affidavit from their counsel, dated September 24, 1984 (JI Exh. 55). The purpose of the affidavit is not clear, other than to show that certain documents were lost during part of 1983 and 1984 --

a fact no one disputes. The affidavit refers to the findings of George Hill, the former head of a document review team at Waterford. Any views held by Mr. Hill, however, should have been submitted in an affidavit by him, not Joint Intervenors' counsel. Diablo Canyon, ALAB-775, 19 l NRC at 1367 n.18.

59 The only matter cited by Joint Intervenors that ,

L predates the April 27 letter is NCR W3-7549 (February 1,

( 1984). Joint Intervenors state that this NCR recorded many

! of the same problems identified by the staff in Item (11) of the April 2 letter (i.e., extra supports for instrumentation cabinets were allegedly made from materials with no heat numbers, completed by uncertified welders, and examined by uncertified inspectors). See Joint Intervenors' Motion at 25-26. Joint Intervenors thus suggest that LP&L did not I

respond entirely truthfully when it described this allegation, in its April 27 letter, as "[p]artially valid."

l See JI Exh. 54, Attachment, Item (11). LP&L agrees that.the NCR and Item (11) concern essentially the same thing, but (Footnote Continued) l

, --.,,_-.-,-,.,-n--. , . . - - - - , . - . . - , . . - . . , . .-

- = - - . - -_

. 1 79 l important, the 39 allegations in the staff's letter --

described as having been " received over the last several months" -- were broad and unspecific. See JI Exh. 53.60 (Footnote Continued) states.that the " disposition of the NCR at the time was the same as in the April submittal." It subsequently supplemented the NCR, and the matter was closed as part of SSER-9/Icsue 9. LP&L's Responses to Specific Allegations at 71.

O The five items of concern here to Joint Intervenors demonstrate the unparticularized nature of the allegations in the staff's April 2 letter:

I l. It has been alleged that civil / structural and piping QC inspectors were not certified in accordance with the appropriate requirements.

6. It has been alleged that basemat concrete was not placed in accordance with the ACI

[American Concrete Institute) Codes.

7. It has been alleged that a complete (100%)

review of all concrete placement packages was not performed thoroughly in that all '

NCR's, Nasty Grams, EDN's and letters were not included in the review.

11. It has been alleged that the extra supports for instrumentation cabinets covered by an FCR that were mounted on gratings inside containment were fabricated with materials for which there is no heat numbers traceability by uncertified welders and examined by uncertified inspectors

[ sic].

21.b. It has been alleged that * * * [w] elders and QC weld inspectors were not adequately qualified.

JI Exh. 53, Enclosure. The subjects raised by these allegations are addressed above in our discussion of Joiht

(Footnote Continued)

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

4 80 Further, LP&L had a limited time in which to respond to the staff (less than a. month). It is thus not surprising that LP&L's response was lacking in detail.

It is also clear from the staff's letter that the i

review of the QA allegations was then at a relatively early stage and was expected to continue for some time. See ibid.

Consequently, there is no indication that the staff either viewed LP&L's April 27 reply as the final word on the matters set out in the staff's letter, or was misled by it.

Indeed, this was the first of several exchanges of correspondence, with each round becoming more focused on particular, asserted construction or QA deficiencies. Nor i is there any evidence that LP&L did not supply the best answers possible in the circumstances at that time. Much closer review of more specific allegations by LP&L later, at the staff's urging, did bring to light correspondingly-more

! accurate (and sometimes less favorable to LP&L) information than that provided in LP&L's April 27 letter. But that fact does not fairly raise " doubts about LP&L's forthrightness and honesty with the staff" in the April 27 letter. Joint Intervenors' Motion at 25. We therefore reject Joint (Footnote Continued)

Intervenors' contention A and in our decisions concerning i

the basemat, ALAB-753, ALAB-786, and ALAB-803.

81 Intervenors' argument that this letter was either inaccurate or misleading.

4. In further support of their challenge to LP&L's management character and competence, Joint Intervenors allege that "LP&L historically has failed to comply with NRC regulations and when cited by the NRC has failed adequately to respond to correct noncompliances and prevent their recurrence." Joint Intervenors' Motion at 26. They cite generally to Issue 23 in the Eisenhut Letter, concerning the QA program breakdown between Ebasco and Mercury (see JI Exh.

9, Enclosure at 14), and to five particular items listed in the CAT Report as matters LP&L failed to correct despite its previous commitments to the NRC to do so.61 In their supplementary comments, Joint Intervenors stress that LP&L's asserted failure to correct these QA problems, until after the NRC's repeated urgings, shows a lack of initiative and absence of basic managerial capabilities. Joint Intervenors' Response to ALAB-801 at 13-14.

61 Although Joint Intervenors repeatedly refer to

" Exhibit 24" as CAT Inspection Report No. 50-382/84-07, it is in fact their Exhibit 23. The five items concern (1) heating, ventilating, and air conditioning and electrical raceway seismic supports, (2) as-built verification of pipe supports and whip restraints, (3) maintenance of safety-related motors, (4) structural steel welding by Peden Steel, and (5) the clearance between piping and adjacent structures. See JI Exh. 23 at II-4 to II-5, III-5 to III-9, II-13 to II-15, IV-10 to IV-11, III-1 to III-5, VIII-5 to VIII-6.

82 We agree with Joint Intervenors that it is undesirable for the NRC routinely to be the principal stimulus in getting a licensee to correct previously identified deficiencies. The Commission must necessarily depend heavily on a permittee or licensee to report important information and to assume a role of at least partial self-policing. See pp. 74-75, supra. It is therefore essential that the motivation to discover, analyze, and correct potentially safety-significant problems originate with plant management.

We are unable tc conclude here, however, that LP&L lacks either the willingness or desire to correct deficiencies that could affect the safe operation of the Waterford plant. With respect to Joint Intervenors' reliance on Issue 23 in the Eisenhut Letter, we have already discussed in part II.A, supra, the fact that a serious breakdown in a portion of LP&L's construction QA program indisputably occurred. Further, this breakdown was, in part, a consequence of applicant's failure to respond fully to the 1982 Notice of Violation. But it is also true that LP&L's QA program first reported this situation. More important, the record shows that significant matters have not gone uncorrected and the breakdown was not so pervasive as to raise a legitimate concern about overall plant safety.

See pp. 64-66, supra.

e .

83 Moreover, the five particular matters highlighted in the CAT Report as remaining uncorrected despite previous citations from the agency must be viewed in their proper perspective.62 In the first place, the CAT Report itself notes that the underlying cause of these deficiencies was LP&L's " difficulties in implementing an effective in-process quality assurance program." JI Exh. 23 at A-1. Our conclusion that LP&L now appears to have remedied that more fundamental problem (see pp. 64-66, supra) logically suggests that significant improvement in LP&L's corrective action program will follow. In fact, LP&L has already acted to strengthen its " Licensing Commitment Tracking Program."

The staff (including members of the CAT) has reviewed the revised program and concludes that it is adequate and, if implemented adequately, "there should be no future concern 62 In addition to these five items, Joint Intervenors refer as well to Issue 16 in the Eisenhut Letter, which concerns LP&L's asserted failure to pursue vigorously surveys and exit interviews it conducted with QA personnel in early 1984. Because this was not a matter previously identified by the NRC as requiring corrective action, which LP&L failed to undertake, the relevance of Issue 16 to Joint Intervenors' specific argument here is unclear. Rather, Issue 16 seems more pertinent to LP&L's responsibility to identify possibly programmatic QA deficiencies. See pp.

28-30, supra. In any event, despite its earlier criticism in the Eisenhut Letter, the staff now finds LP&L's QA interview program -- initially undertaken voluntarily -- to be significantly improved and working well. SSER-9, Appendix J at 65-68; Staff Response to ALAB-801, Crutchfield Affidavit at 6-11. We have been given no cause to conclude otherwise.

84 that-NRC-identified problems will not be corrected." Staff Response to ALAB-801, Mullikin Affidavit at 4. Moreover, the five instances of uncorrected deficiencies identified in the CAT Report and relied on by Joint Intervenors were the only such instances found by the CAT. Ibid. The CAT did followup inspections as to each and determined that all of its concerns were satisfactorily resolved, despite some minor problems that,were identified.. Id. at 4-8.63 .

Thus, while LP&L did fail to correct certain deficiencies identified by the NRC in earlier inspections, the record does not establish a pattern of recalcitrance on the part of LP&L so as to suggest the continuance of a historical trend. LP&L eventually -- albeit at the staff's urging -- addressed and corrected the identified deficiencies. See LP&L's Responses to Specific Allegations at 77-78. But more important, it has acted to assure better tracking of such matters in the future.64 In these 63 For example, in one case, "a minor procedural violation" concerning documentation was discovered, and

" minor rework" of no safety significance was required on about one-ninth of the 3,600 pipe supports / restraints.

Staff Response to ALAB-801,-Mullikin Affidavit at 6.

64 It is entirely appropriate that we consider an applicant's successful remedial efforts in connection with claims that it lacks the necessary character and competence to operate a plant safely. See South Texas, 21 NRC at 371-74. Not to do so would have the undesirable effect of discouraging applicants and licensees from promptly undertaking such corrective measures.

85 circumstances, we have no reasonable basis to doubt LP&L's management character or competence in this regard. See generally Diablo Canyon, ALAB-775, 19 NRC at 1369-70.

5. Joint Intervenors separately raise another example of LP&L's asserted failure to correct a problem identified previously by the NRC: "LP&L failed to take necessary action to upgrade its staff after repeated warnings by the NRC-that its staffing was too low and affected the readiness of the utility to begin operations." Joint Intervenors' Motion at 28.65 Th'ey rely on two NRC documents as support for this charge. One is a memorandum, dated May 7, 1981, in which the NRC's Division of Human Factors Safety states that it could not complete an audit at the site because the level of staffing and management readiness was so low at that time. JI Exh. 57. The other is an August 4, 198i, memorandum from a staff member to the Advisory Ccmmittee on Reactor Safeguards (ACRS), comparing the organizational structure and staff of several plants. He observed that there was little commercial nuclear operating experience at Waterford and that many plant and corporate support positions needed to be filled. JI Exh. 58 at 3.

65 At pp. 17-19, supra, we have discussed Joint Intervenors' related charge in connection with contention A

-- i.e. , A (1) (b) -- that LP&L failed to maintain adequate staffing for its OA program during construction of the plant.

86 Joint Intervenors' exhibits, however, do not tell the whole. story. They offer only a snapshot glimpse of the status of the plant's operations staff in mid-1981, without providing any relevant developments since then. To begin with, the NRC's appraisal of the operating staff level at Waterford in 1981 was made on the basis of LP&L's " overly optimistic," then-scheduled fuel load date of October 1982.

Staff Response to ALAB-801, Constable Affidavit at 12-13.

More significant, however, is the fact that, after being advised of the NRC i s concerns, LP&L quickly acted to alleviate them. By December 1981, the staff found that LP&L had already "taken positive steps to significantly improve its organization." Id. at 13. These changes, including substantial increases in experienced personnel, were implemented from January 1982 to December 1984. Id. at 14.

In March 1982, the ACRS, as well, was able to report that, contrary to its concern seven months earlier, LP&L's organization and staffing would be adequate to operate Waterford in a safe manner by the then-projected fuel load date of January 1983. LP&L Exh. 15. The staff continued to monitor LP&L's progress in this regard up to the time LP&L was actually ready (and later authorized) to load fuel and to operate at low power. It concluded in December 1984, and still maintains, that LP&L has adequately upgraded its staff. Staff Response to ALAB-801, Constable Affidavit at 15-16. Its operational QA staffing levels, in particular,

87 now compare favorably to those of other plants. Id.,

Harrison Affidavit at 54-55.

Joint Intervenors have thus failed to show that LP&L did not address a significant matter brought to its attention by the NRC. Indeed, the record shows that LP&L responded promptly to the Commission's expressed concerns that the plant might not be staffed adequately, in terms of both manpower and experience, by the time of fuel load. A skilled workforce cannot be hired overnight. Given that inherent constraint, LP&L actively recruited personnel and steadily increased its operations staff in the three years since the NRC first brought the matter to its attention. No more could reasonably be expected from LP&L's management.

6. Joint Intervenors' last argument in support of its claim that LP&L lacks the character and competence to operate Waterford safely concerns Ebasco's site management.

Joint Intervenors rely on the fact that, in May 1983, Ebasco assigned Robert Marshall, a former Kaiser Construction-superintendent at the Zimmer nuclear plant in Ohio, to Waterford as site manager. They refer to some ten QA problems allegedly associated with Mr. Marshall and discussed in a November 1981 NRC inspection report on the Zimmer facility. Joint Intervenors' Motion at 29-32. Joint Intervenors thus suggest that, in permitting Mr. Marshall to serve at Waterford, "LP&L failed to ensure that Ebasco site

,  ?

88 management was competent, trustworthy, and dedicated to quality principles . . . . Id. at 29.

Joint Intervenors have not provided any documentary support for their allegation -- specifically, neither the Zimmer inspection report on which they so heavily rely, nor even any page citations to it. At a minimum, Joint Intervenors were obliged to direct our attention to the specific portions of the report that ostensibly support their serious charges against Mr. Marshall. Their having failed to do so, we are not obliged to do Joint Intervenors' research for them. See ALAB-801, 21 NRC at 483-84; Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), ALAB-804, 21 NRC 587, 592 & n.6 (1985).66 More important, Joint Intervenors fail to link Mr.

Marshall's brief tenure at Waterford to any particular problem at that site. They allege that "[a]fter NRC complaints about Mr. Marshall circulated at Waterford, he

! was removed from his position and moved to Ebasco corporate 66 This is particularly true here because the Zimmer l inspection report in question is about 420 pages long (including exhibits) and our copies are all on microfiche, l making review of the report extremely difficult. (Due to space limitations, readily available copies of older NRC inspection records are now retained only on microfiche.

Moreover, the Zimmer construction permit has been revoked f and the operating license proceeding terminated. See i Cincinnati Gas & Electric Co., et al., Docket No. 50-358, i

Order Revoking Construction Permit (May 16, 1985).)

• ~

• 4 89 headquarters. . ." but, as noted above, they neither cite to nor submit any support whatsoever for this charge. See Joint Intervenors' Motion at 29 n.2. LP&L, on the other d

hand, strongly denies the allegation, asserting that Mr.

Marshall was only temporarily assigned to Waterford to complete the last phase of construction. When that was i

essentially accomplished by May 1984, "Ebasco requested that he be released to assume his role as Vice President, Nuclear and Defense for Ebasco Constructors in . . . New Jersey."

LP&L's Responses to Specific Allegations at 76. Joint Intervenors have thus clearly failed to satisfy their burden of. showing that the employment of Robert Marshall at Waterford raises significant questions about LP&L's management competence and integrity.

C. The Adequacy of the NRC Staff's Inspections and Investications Joint Intervenors' third proposed contention. states:

i The NRC Staff's special CAT inspection, Special  !

Inquiry Team inspection, Task Force inspection and Office of Investigation inquiry, and the corrective action, including reinspection and l rework, which the Staff has required of LP&L, are

! not adequate to ensure that construction i deficiencies of potential safety significance at l Waterford have been resolved and that LP&L will be able to operate Waterford 3 in accordance with all regulatory requirements and to protect the public health and safety.

! Joint Intervenors' Motion at 32. The contention reflects Joint Intervenors' general dissatisfaction with the staff's efforts at Waterford and its treatment of the allegations

90 addressed in SSER-7. Joint Intervenors are'similarly dissatisfied with LP&L's response to the QA problems identified by, and of concern to, the staff. See id. at 32-36, 46a-49, 51-57.67 Insofar as Joint Intervenors seek to litigate the adequacy of the staff's work in connection with the Waterford facility, they propose a contention that is not litigable.68 "[I]n. an operating license proceeding . . . ,

the applicant's license application is in issue, not the adequacy of the staff's review of the application. An intervenor . . . may not proceed on the basis of allegations that the staff has somehow failed in its performance."

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, ' Units 1 and 2) , ALAB-728, 17 NRC 777, 807, review The structure of Joint Intervenors' motion --

organized around the proposed contentions -- starts to break down with contention C. Nonetheless, we attempt to address their arguments in the context where they most logically seem to fit. The motion also contains two pages numbered "46;" we have renumbered the second "46a."

To the extent that contention C challenges the adequacy of both the corrective actions required by the staff and LP&L's response -- in general and with regard to specific allegations (e.g. , NCRs) -- we have already addressed these matters in our discussion of contentions A and B. Our determination that neither of these proposed contentions raises a significant issue warranting reopening of the record (with the exception of the matters relating to OI investigations) necessarily required our consideration of the adequacy of the corrective action for identified deficiencies.

.  ?

91 declined, CLI-83-32, 18 NRC 1309 (1983). This follows logically from the fact that it is the applicant that ultimately bears the burden of proving its entitlement to the privilege of an operating license. See Consumers Power Co. (Midland Plant, Units 1 & 2) , ALAB-315, 3 NRC 101, 103

'(1976). Moreover, the NRC's adjudicatory boards are not empowered to direct the staff in the conduct of its inspection and investigatory duties. Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-lh, 11 NRC 514, 516-17 (1980). Absent such authority, it would make little sense to litigate the adequacy of the staff's independent performance.

This is not to say, however, that the staff's review --

and, necessarily, its adequacy -- play no role at all in a licensing proceeding. They do indeed, as is evident from this very case. In ALAB-801, for instance, we explained why

" thorough staff input" is essential to our resolution of certain "important matters [ raised by Joint Intervenors' motion) that could bear directly on plant safety." 21 NRC at 482. See also ALAB-786, 20 NRC at 1091 & n.7. We would i

be less than candid were we to deny that the adjudicatory

, boards have traditionally found it useful and desirable to

)

. rely on the staff's expertise for an evaluation of contested i issues, especially technical ones. See, e.g., Florida Power and Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2),

ALAB-553, 10 NRC 12, 14 n.7 (1979). See also South Carolina

92 Electric and Gas Co. (Virgil C. Summer h'uclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1156 (1981), review declined, CLI-82-10, 15 NRC 1377 (1982). This is particularly true where, as here, the primary basis for the proposed contentions is a series of findings that resulted from staff inspections and investigations. Thus, the staff's review is a significant ingredient of NRC licensing proceedings, even though its adequacy cannot be litigated per se, as a contention.

Because we have concluded that Joint Intervenors' contention C, challenging the adequacy of the staff's work at Waterford, does not raise a litigable issue, we need not address any of the reopening criteria with regard to this contention. Nevertheless, some comment on Joint Intervenors' criticism of the staff is warranted. On the one hand, they characterize the staff's recent inspections in connection with the plant as " unprecedented" and

" comprehensive" and refer to the " increasingly strict reinspection programs" imposed on LP&L by the staff. Joint Intervenors' Motion at 32, 33, 46a. But on the other, Joint Intervenors are quite critical of the staff's efforts, particularly in comments directed at staff work not yet

<' .s

- 93 1

4 completed by early November 1984, when Joint Intervenors filed this motion to reopen. See, e.g., id. at 52, 55-57.69 We believe that Joint Intervenors' criticism of the staff is not deserved. It undoubtedly could be fairly ,

t f argued that greater NRC staff oversight throughout the U

construction of Waterford might have prevented or lessened ['

i

] the QA problems that were later revealed. But once the i allegations began to mount, the staff devoted rather substantial resources to assuring that the facility was constructed properly and will operate safely. See Staff i'

Response to ALAB-801, Constable Affidavit at 10-11; id.,

1 Constable Exh. 3, Attachment at 1.70 The staff's efforts i

i-1 l 69 Joint Intervenors also fire other assorted and i random shots at the staff. For example, they claim that the staff has put many of the individuals who originally made allegations about the quality of construction at Waterford on the NRC's payroll. Joint Intervenors suggest that this

. has compromised the allegers' independence. Joint Intervenors' Motion at 56. Joint Intervenors offer no f

corroboration whatsoever for this charge. Moreover, the

" continued independence" of the allegers is beside the point. What is important is whether there is any basis to the allegations as made and, if so, whether proper l corrective action has been taken.

70 It is important to distinguish the staff's

]

considerable inspection activity itself from its written  !

i presentations to us concerning that activity. Our rather l 1

harsh criticism of the staff in ALAB-801, 21 NRC at 482-87, i was limited to the staff's failure, up to that point, to r

a. communicate effectively the reasons for its conclusions. As j is' evident from principally our discussion in part II.A.1,

supra, this problem has been cured by the staff's j

! supplementary filing in response to ALAB-801.

4

- - -+ - - - c---, -,-.,,vm ,_ ..---- . .,.,v ~., ,m-,--

.. .,,--_,.,.,w-v - ,y,v w-, r- , ---.-~w=-,,,,, ,.g-,

.;p 94 included, where necessary, walkdowns and actual inspections-of plant systems, as well as extensive records reviews.

See, e.g., id., Harrison Affidavit at 36-38, 41-42. See also note 48, supra. Thus, even if contention C were

-litigable, Joint Intervenors have failed to show here that the staff's inspection efforts raise.a significant safety issue.

As we have seen, many of Joint Intervenors' charges concerning failures in LP&L's construction QA program are substantiated kur various NRC inspection reports and other documents. But the thousands of pages that make up the record for this one motion to reopen also show that LP&L eventually acted to assure that all significant deficiencies' were corrected. It is also clear from the record that, after extensive reinspection and document review efforts, only minor hardware problems with no safety significance were discovered. The underlying causes of the identified deficiencies have been addressed as well, and there is therefore no reason to expect a recurrence in the future of these quality assurance failures.

Many of Joint Intervenors' other charges are unsubstantiated. Myriad accusations in their filings lack any corroboration whatsoever, or the support offered is of no value. We have addressed the most significant of the' charges. Those remaining are so without merit as to warrant

, - ;}

95 no discussion, or they-have not been presented in a cogent enough fashion to permit a response. In conclusion, except for matters that may involve OI investigations, Joint Intervenors have failed to meet their burden of showing the existence of a significant safety issue warranting the reopening of the record.71 '

Joint Intervenors' November 8, 1984, motion to reopen on construction quality assurance and management character and competence is denied, except insofar as it raises issues that may relate to hatters under investigation by the NRC's Office of Investigations; to that extent, the motion is referred to the Commission. Joint Intervenors' motion of the same date for a protective order is denied as moot.

It is so ORDERED.

FOR THE APPEAL BOARD O, b -3 _+

~ AE C. J $ Sh6emaker Secretary to the Appeal Board 71 In light of this conclusion, we need not decide if Joint Intervenors have satisfied the other requirements for reopening. See pp. 4-5 and note 4, supra.