ML20209H508
| ML20209H508 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 02/03/1987 |
| From: | Rosalyn Jones BUSINESS & PROFESSIONAL PEOPLE FOR THE PUBLIC INTERES, ROREM, B. |
| To: | |
| Shared Package | |
| ML20209H487 | List: |
| References | |
| OL, NUDOCS 8702060066 | |
| Download: ML20209H508 (97) | |
Text
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UNITED STATES OF AMERICA
'87 FEB -4 P4 :20 NUCLEAR REGULATORY COMMISSION BEFORETHEATOMICSAFETYANDLICENSINGBOkkD
,J i i i.,,
3 n u,.
In the Matter of:
)
)
COMMONWEALTH EDISON COMPANY
)
No. 50-456-d?/
)
50-457
( Braidwood Nuclear Station,
)
{
Units 1 and 2)
)
)
BRIEF OF INTERVENORS BRIDGET LITTLE ROREM, ET AL.
)
)
)
Robert Guild
)
Robert L.
Jones Do uglass W.
Cassel, Jr.
Business and Professional People for the Public Interest 109 No r th De arbo rn, #1300
)
Chicago, Illinois 60602 (312) 641-5570 Februa ry 3, 1987 8702060066 870203
)
PDR ADOCK 05000456 G
O TABLE OF CONTENTS PAGE I.
INTRODUCTION AND
SUMMARY
OF ARGUMENT.
1
()
II.
UNDER PRODUCTION PRESSURE FROM EDISON, COMSTOCK'S UNQUALIFIED AND ABUSIVE MANAGEMENT CREATED A POISONED ATMOSPHERE OF HARASSMENT AND PRODUCTION PRESSURE AT COMSTOCK.
9
(['
A.
Comstock Managers Saklak And DeWald Created An Atmosphere Of Production Pressure By Word And Deed.
9 B.
Numerous Comstock QC Inspectors Were Subjected To Harassment And Production
()
Demands.
15 C.
Retaliation By Management Against Inspectors Puckett And Seeders In 1984 And Inspectors Archambeault And Martin In 1986 Exemplify The Harassment And O
Pressure To Compromise Quality That Were Prevalent At Comstock.
16
- III, THE ACTS OF EDISON AND COMSTOCK MANAGEMENT, AND THE ATMOSPHERE OF PRODUCTION PRESSURE PERCEIVED BY COMSTOCK INSPECTORS SHOWS A O
FAILURE TO MEET THE REQUIREMENTS OF CRITERION I FOR AUTHORITY AND INDEPENDENCE, AND THUS A LACK OF REASONABLE ASSURANCE.
43 A.
Under The NRC Licensing Requirements, Edison Cannot Provide Reasonable 10 Assurance Of Licensability Unless It Proves That It Has Complied With Its Non-Delegable Duty To Establish An Effective Ongoing Quality Assurance Program.
45 B.
The " Authority And Organizational
.lO -
Freedom" Of QC Inspectors Is A Core Requirement Of Criterion I.
46 l
l The Comstock QC Organization Was C.
Edison Failed In Its Duty To Insure That l
l Structured And Run In Accordance With The i(3
" Authority And Organizational Freedom" Requirements of Criterion I.
48 i
D.
The Massive Breakdown In The Comstock QC Department Was So Severe As To Distinguish This Case From Any Reported lO Licensing Decision.
53 i
fO l
--.---,-----,.,n,-.-------.--
.-,---,-w
)~
E.
In Response To The Overwhelming Evidence
)
Of A Criterion I Violation, Edison Must Undertake A Substitute Program That Complies With criterion I.
57 IV.
EXPERT TESTIMONY AND EMPIRICAL EVIDENCE REINFORCE THE PRESUMPTION THAT THE POISONED J'
ATMOSPHERE AT COMSTOCK RESULTED IN ADVERSE WORK PERFORMANCE.
59 A.
The Expert Testimony.
60 B.
The Empirical Evidence.
66
)
V.
EDISON'S REBUTTAL CASE FAILED TO ESTABLISH THE ADEQUACY OF COMSTOCK QC INSPECTOR PERFORMANCE OR THE SAFETY OF THE PLANT.
67 A.
Edison's Rebuttal Evidence Fails To Show
)
That Comstock QC Inspector Performance Was Unaffected By Harassment And Production Pressure.
70 B.
Edison's Design Significance Statistics Fail To Provide Reasonable Assurance That
)
The Plant Is Safe.
87 VI.
REMEDY.
93 VII. CONCLUSION 94
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>s
~
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ii
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J
lO l
February 3, 1987 t
UNITED STATES OF AMERICA O
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
.n~-
In the Matter of:
)
V
)
COMMONWEALTH EDISON COMPANY
)
No. 50-455
)
50-456 I
(Braidwood Nuclear Station,
)
Units 1 and 2)
)
O BRIEF OF INTERVENORS BRIDGET LITTLE ROREM, ET. AL I.
INTRODUCTION AND
SUMMARY
OF ARGUMENT.
O The evidence in this record on Intervenors' Quality Control Inspector Harassment contention establishes the existence of a seriously flawed quality assurance program at Braidwood's elec-trical contractor, the L.K. Comstock Company, which was strained under intense and pervasive production pressure emanating from Commonwealth Edison's Project Construction Department and trans-mitted, in turn, through Edison and Comstock supervision to comstock's first line Quality Control (QC) inspectors.
Within this deficient Quality Assurance program at Comstock the demands 0-for production and a pattern of supervisory actions were generally understood among QC inspectors as management harassment and pressure to compromise quality; that perception is presumed to have had the effect of impeding the inspectors' performance of their quality assurance functions.
It is simply uncontested that serious quality assurance O
problems existed at Braidwood generally and at Comstock in parti-1 0
1 1
)
cular.
The Region III NRC Staff cited Edison at Braidwood for a
$100,000 civil penalty in February 1983 on a finding of a quality y
assurance breakdown in the installation and inspection of mech-anical equipment.
The Staff attributed this breakdown to serious weaknesses in Edison's management control systems.
(FF. 101-
{~
102).
The follow-up cpecial quality assurance team inspection the next year confirmed serious QA problems extending to each major site contractor including Comstock - attributed by the Staff to " inadequate contractor programs and workmanship, inadequate licensee reviews of the contractor programs, and inadequate licensee quality assurance overview to ensure
)
contractor activities met all requirements.
The NRC urged "more aggressive CECO management involvement in and support of the CECO QA program."
(FF. 105)
At Comstock itself three separate Quality Control managers served during a space of one year.
(FF. 103,108)
The third and current QC Manager Irving F. DeWald was confronted at his hiring
)
in October 1983 with a quality assurance nightmare including the task of a complete review of all existing quality documents due to widespread flaws and a backlog of some 14,000 uncompleted
)-
quality control inspections many for work performed over a year before.
(FF 109)
Commonwealth Edison's Braidwood Project Construction Super-
)
intendent was organizationally responsible for overseeing both the production and the quality assurance functions of site contractors, including Comstock.
In the Spring of 1984 Edison
)
replaced Dick Cosaro with Dan Shamblin in the site superintendent 2
)
f
)
position, apparently due to weaknesses in Cosaro's quality assurance efforts.
Shamblin established quality control produc-
)
tion schedules for Comstock and told DeWald directly that he expected to see significant backlog reductions "very shortly."
(FF 110-112) g--
Against this backdrop of a crippled quality assurance pro-gram f acing nightmarish demands there emerged a pattern of super-visory acts of harassment and production pressure.
It is undis-puted that there developed among Comstock inspectors "a wide-spread perception of harassment and pressure to compromise qual-ity'
( Applicant's Proposed Partial Initial Decision, p. 49) emanating from Comstock management.
Incidents of perceived harassment and production pressure in this record span the time period from early 1982 through 1986.
The perception of super-visory pressure to compromise quality for quantity was so severe that on March 29, 1985, 24 Comstock inspectors went to the NRC as a group with their complaints - the largest group of inspectors ever to do so in the history of the nuclear power industry.
(FF.
124)
At Comstock the QC inspectors' perceptions are traceable to 3.
a clear source failure by Edison to assure that Comstock's Quality Control inspectors had sufficient authority and freedom from production pressures to effectively identify construction discrepancies so that they could be properly evaluated and corrected.
In short, the widespread perception of harassment and pressure to compromise quality among Comstock QC inspectors
)
establishes that Edison has failed to meet its non-delegable 3
J
O obligation to comply with the Commission's Quality Assurance Criteria 10 CFR Part 50, Appendix B.
l
!O At the heart of the Camission's " reasonable assurance" requirement for the grant of an operating license, 10 CFR l
Paragraph 50.57, is the obligation to establish and implement an
!C effective quality assurance program for construction.
General Design Criterion I, " Quality Standards and Records," 10 CFR Part 50, Appendix A. The Quality Control inspectors at Comstock are iO relied upon to perform the central quality assurance function of
" verifying... that activities affecting the safety-related func-tions have been correctly performed."
Criterion I, "Organiza-O tion," supra, and assuring that " conditions adverse to quality
... are promptly identified," Criterion XVI, " Corrective Action,"
Edison has failed in its duty to ensure that Comstock's supra.
O Quality Control inspectors were free of pressures to sacrifice quality and free from harassment in the performance of their inspections.
O The widespread perl:eption among Comstock inspectors of pres-sure to sacrifice qualihy for quantity and production considera-tions itself is inconsistent with the responsibility of Edison to
.g assure " sufficient independence from cost and schedule when opposed to safety considerations."
Criterion I, " Organization,"
supra.
It would )e a sufficiently fatal flaw in Edison's g
required complian?e with its Criterion I obligations to find, as i
is conceded here,*ft " widespread perception of harassment and pressure to sacrifa.ce quality" on the part of Comstock QC inspec-O t rs even if su h berception was ill-founded.
Edison retains the 4
l
)
non-delegable duty to identify and remedy such flaws in order to assure the continued integrity of QC inspector performance. */
Inde ed, if such perceptions are unfounded the task of altering them might well be an easy one.
But no matter how difficult the task may be, it was Edison's duty to identify even an erroneous
)
but general perception of production pressure and to effectively remedy it in a timely fashion.
Edison's acknowledgement of such widespread perceptions here is not timely enough to avoid a Board imposed remedy to ensure corrective action.
However, the general perceptions by Comstock inspectors of harassment and production pressure are hardly ill-founded.
Where
)
there's smoke there's fire; and the evidence in this record establishes beyond doubt that the perceptions of the Comstock inspectors were the product of fires set by Edison and Comstock management for which Edison must be held accountable.
The factual bases for the inspectors' perceptions are the words and deeds of responsible managers and supervisors employed by Edison
)
and Comstock.
While Applicant's failure to remedy the perceived pressure to sacrifice quality might be less blameworthy were Applicant otherwise innocent (though it would still constitute a
)
violation of Criterion I), Edison's culpability cannot be excused here, where its owr. management has created the conditions in which the perceived pressures arose and then has permitted such
)
pressure to remain unabated for months and years.
Given its
- /
"The quality assurance functions are those of (a) assuring that an appropriate quality assurance program is established and ef fectively executed...."
Criterion I, supra.
"The Applicant shall regularly review the status and adequacy of
)
the quality assurance program."
Criterion II, " Quality Assurance Program."
i 5
)
l
30 I.
culpable role, Edison's failure to identify and remedy such flaws O
at Comstock is both more understandable and yet more reprehensible.
In sum, Criterion I of Appendix B establishes that an effec-tively functioning quality assurance program must provide QC l gg-inspectors with freedom from cost and schedule pressure.
It is thus presumed by Commission regulation that such production pres-sure impugns the integrity of the critical QA functions of veri-fying quality and assuring the identification and correction of
)
the inevitable construction discrepancies.
Such a presumption, of course, makes practical sense.
Requiring allegiance to production considerations by Quality q)
Control inspectors would very likely lead to discouraging the identification of defects where production would be impeded.
In
)
- O no event should the QC inspector be put in the position of choos-ing between quality and production considerations.
The testimony of expert industrial / organizational psycholo-gists on both sides supports this sensible presumption.
All
,O three experts who testified, Dr. McKirnan, Dr. Arvey and Dr.
Hulin, agreed at the level of social theory that values and behaviors can be learned or altered in the workplace through words and deeds of supervisory personnel.
(FF. 701-709) i McKirnan and Arvey were troubled by the evidence of aversive influences on inspector choices between quality and production considerations, but conclude that precise work effects require rigorous empirical study.
(FF. 701-708)
Dr. Hulin pretended to perform such an empirical study at Braidwood through inspector O
interviews to show that there had been no adverse work effects at 6
O
l l
Comstock, but the results of his interviews, to the extent they carry any weignt, tend to reinforce, rather than refute, the
~
I presumption that production pressure at Comstock resulted in I
compromised QC inspector work performance.
(FF 709-712.)
The presumption of adverse performance gains further credence from record evidence such as the BCAP reinspection results, showing thousands of discrepancies overlooked by QC inspectors (including a substantial proportion of notable discre-pancies) and the history of 100% reinspections undertaken in a number of areas at Braidwood (cable pan hanger configurations, mechanical electrical equipment installation, quality documenta-
)
tion) because of widespread problems that existed in spite of an ongoing quality assurance program.
(FF. 811, 826.)
Edison's rebuttal reinspection program evidence fails to establish plant licenseability for reasons that are both legal and factual.
From a legal standpoint, once Edison had conceded a widespread perception of production pressure that alone consti-tuted a violation of Criterion I QA requirements, Edison could not cure such a violation with a bit of sampling evidence purporting to show acceptable QC work performance; Edison's only legally adequate response to the shortcomings of its QA program is to implement a substitute program that complies with Criterion I, something it concedes BCAP was never designed to do.
Legal issues aside, the BCAP and PTL programs fall far short of demonstrating, as matters of fact, acceptable QC inspector performance or acceptable hardware quality.
BCAP was a litiga-
)
tion activity carefully controlled by Edison and subject to the 7
)
n.-
1 1
4, m.;
es a'
wi same production pressures that pervaded Comstock.
(FF. 815-822) l
!O Although Edison's performance of BCAP was required by the NRC in response to serious QA problems identified in NRC inspections at Braidwood, neither the BCAP Director nor the NRC inspector 3g ~
assigned to BCAP were informed of this background.
(FF 806-814.)
~
Both regarded it as a " confirmation" program designed merely to give an added degree of assurance of presumed acceptable construction quality.
)
It is undisputed that BCAP was not designed to test QC inspector performance in general or Intervenors' contentions in this case in particular.
(FF 812)
The agreement rate statistics 3
generated by tha BCAP program are not a measure of inspector t
performance.
(FF 835.) Moreover, Edison's witnesses made no attempt to use those statistics.to conduct a thorough test of
- O Intervenors' adverse work performance allegations; Edison tested only one' extreme version of the allegation, and even that test was flawed by unsupported factual assumptions.
(FF 841-848.)
It is further undisputed that BCAP did not even cover a period of two years subsequent to June 30, 1984, during which many -- indeed the most severe -- incidents of harasment and 70 -
production pressure in this record occurred.
Thus, regardless of the conclusions that might be drawn from the BCAP results prior i
t to June 30, 1984, BCAP provides no rebuttal evidence at all for l$
L the pericd after that date.
l PTL not only shares many of the same fatal flaws as BCAP, such as the use of agreement rates and the failure to test many O
hypotheses that are consistent with Intervenors' allegations and 8
O
- O expert testimony, but PTL also has severe flaws of its own, most
~O n tably the fact that its sample was not a probability sample and thus cannot be used to draw statistically sound inferences about the general population.
(FF. 852-854.)
g7 In short, Edison's rebuttal case provided no evidence of effective QC inspector performance, and strongly supports, to the contrary, a presumption that the atmosphere of harassment and Pr du ti n pressure at Braidwood eroded the work performance of O
Comstock QC inspectors.
On the basis, then, of the affirmative proof of a widespread perception among Comstock QC inspectors of management harassment and pressure to compromise quality, and in light of all the empirical evidence of actual adverse inspector performance, Edison has failed to meet its burden of demonstrating reasonable assurance that the Braidwood station meets licensing require-ments.
O II.
UNDER PRODUCTION PRESSURE FROM EDISON, COMSTOCK'S UNQUALIFIED AND ABUSIVE MANAGEMENT CREATED A POISONED ATMOSPHERE OF HARASSMENT AND PRESSURE TO COMPROMISE QUALITY A. Comstock Managers Saklak and DeWald Created an Atmosphere
! O --
of Production Pressure By Word and Deed The setting in which the principal events influencing i
i Comstock inspectors unfolded proved a tinder box for the fires 1$
which would soon ignite.
In 1980 and 1981, future QC Manager DeWald and inspector Martin, with but scant help, serviced whole 1
I crews of welders with weld inspections and accepted hundreds of
()
welds on single page grid-reference inspection checklists.
The 9
0
h quantities of inspector work performed, the quality of work accepted and the documentation practices raised lingering ques-tions, and the lack of quality consciousness on the part of QC Manager DeWald evidenced by such practices became the subject of cynical legend among inspectors.
(FF. 113, 129-133.)
)
In July 1982, a young, aggressive Comstock construction scheduling engineer named Rick Saklak, with no quality control training or experience, was sent upstairs by production manage-
)
ment to Quality Control as Supervisor of Inspectors to bring the
" zoo" under control.
(FF. 114.)
Ineffectual sampling inspections by Comstock led to an
)
Edison demand in November 1982 for an increase from 35% to 100%
of QC inspection coverage without commensurate increases in the inspector workforce.
(FF. 115.)
)
By the time Irv DeWald returned as QC Manager to replace the too " quality conscious" Tom Corcoran in September 1983, Comstock Quality Control was drowning in a swamp of quality problems,
)
including the backlogs of 14,000 quality inspections and 50,000 quality documents yet unreviewed for flaws.
(FF. 115-116.)
The development of such conditions clearly evidence Edison's failure
)
to adequately oversee the Comstock Quality Assurance program, a conclusion reached generally by the Region III NRC Staff regarding Braidwood contractors in Inspection Report 83-09.
(FF.
h 105.)
Yet, the record shows, instead of promptly identifying and remedying the Comstock problems before they grew out of control, Edison allowed them to smoulder until confronted with the crisis
)
of the 1984 inspector backlogs.
Edison management ignited the 10 1
)
very fire which since then has consumed the Comstock QA program.
The smoke from those fires pervades the record in this proceeding
)
and produced the widespread perceptions by QC inspectors of harassment and pressure to compromise quality.
The production pressure on QC inspectors began at the top with Edison Construction Superintendent Dan Shamblin, who, in apparent violation of Appendix B, Criterion I (see infra) was given control over Comstock QC operations.
Shamblin made insistent demands on Dewald for action "very shortly" in eliminating the inspection backlog and for completion of the quality document review program (FF. 112), performance of a
)
myriad of other corrective actions and special projects, as well as keeping pace w*th ongoing Comstock production efforts.
Edison's production pressure was, in turn, communicated by
)
Mr. DeWald and other Comstock supervision to the Comstock Quality Control inspectors by a variety of means.
From DeWald's weekly exhortations the inspectors understood that the Comstock contract
)
and their very jobs were in jeopardy should they fail to meet Edison's production demands.
Edison's demands were translated into a backlog completion schedule based upon " average expected
)-
levels of inspector production" or " quotas."
Individual inspector performance against these goals or quotas was monitored by supervision through reinstituted daily inspector status re-
)
ports, and a new status department was organized under Assistant QC Manager Larry Seese.
(FF. 117-123.)
An ill-conceived cross certification program was initiated to increase inspector pro-
)
ductivity.
(FF. 125.)
11
)
I o
The QC inspectors thus learned from supervision that produc-tivity was to be rewarded and attention to quality was either ignored or discouraged.
Inspectors understood that valued overtime assignments and access to the necessary cross training for pay raises were I C) conditioned upon meeting supervisors' production expectations.
While management avoided publishing explicit QC production quotas, they routinely stressed production goals based on average O
inspector performance levels and sanctioned substandard inspector production performance.
Inspectors who were too slow or too attentive to inspection quality were counseled, sanctioned, and
- O transferred from special " hot" inspection projects to less sensitive assignments.
There were no management rewards for devotion to inspection quality, nor virtually any sanctions for O
substandard work such as missing rejectable conditions.
The message was clearly understood by the QC inspectors: management's concern was for quantity of production, not quality of the O
product.
(FF. 117-124.)
The yet uncertified and unqualified QC Supervisor Rick Saklak was given a free hand to berate, cajole, bully and abuse
()
inspectors to meet production demands.
Inspectors' tales of Saklak's abuses are legion and his behavior was well known to f
management.
Saklak continued to receive the highest praise from
()
DeWald and other management for his efforts up until the end of his tenure.
His final act of misconduct in threatening inspector Snyder prompted his termination only after an unprecedented mass
.(3 petition to the NRC site resident inspectors by some 24 Comstock 12
- O
(3 inspectors in March 1985.
(FF. 120-124, 127, 128, 301-327, 501-508.)
O Quality Control Manager Irv DeWald established by word (or silence) and deed the organizational climate and values for the Comstock inspectors.
The QC inspectors had virtually nothing (3
good to say about Mr. DeWald.
He is depicted as cold, uncommunicative, unsupportive, unqualified and devoid of management skills.
While such an extreme picture might otherwise 43 be viewed skeptically, his testimony in this proceeding confirms the accuracy of this bleak vision.
One inspector, Danny Holley, told of his gentle private effort to counsel Mr. DeWald to adopt
- O the courtesy of responding to morning greetings from his inspectors.
Mr. DeWald did so for two weeks and then " returned to his old ways."
(FF. 129.)
O DeWald had little or no personal contact with his inspectors.
He delegated virtually all supervision to Mr.
Saklak and others and was heard from by the QC workforce O
principally during weekly mass meetings, where he warned of the threatened loss of the Comstock contract if Edison's demands were not met and exhorted his inspectors to meet production goals.
- (3 (FF. 117, 118.)
Whether folklore or fact, Comstock inspectors common 1/
believed that Mr. DeWald's own previous weld inspection practices
.O exemplified his values, favoring quantity over quality.
It was common belief among inspectors that as a Level II weld inspector Mr. DeWald claimed through documentation to have inspected over l C) 1000 welds in a single day and found all acceptable.
Such a i
13 0
-m
__.--ry,--.
- - - -, - - - - - - - - -, _,, - -,. _ ~ - _
O claim was met with ridicule and disbelief by the QC inspectors, who judged that at most only one tenth of that number could be 3
competently performed.
Several inspectors claimed to have seen such a DeWald checklist in the Comstock QA vault, though no such document was located.
In all likelihood Mr. DeWald's weld 3
inspections took place over a period of days after which the acceptance of an entire grid area of components (each with many welds) was documented on a single checklist sheet with a single j3 date.
Such a practice itself is highly improper and was the likely result of production demands at that time, which led to poor quality inspection and documentation and subsequent
- O corrective action programs.
(FF. 113, 132.)
Mr. DeWald had scored only a 85% grade on his written Level III proficiency test, and had actually flunked a 1985 mock (3
practical weld inspection, failing to identify defects on three of six welds examined.
Mr. DeWald was required to study, perform 40 hours4.62963e-4 days <br />0.0111 hours <br />6.613757e-5 weeks <br />1.522e-5 months <br /> on-the-job training and retest to keep his welding
- (3 certification.
(FF. 131.)
In any event, both the folklore and the plausible reality paint an unflattering picture of the Comstock QC Manager's atti-
,0 tude about quality control as perceived by his inspectors.
There is no evidence of actions by Mr. DeWald to dispel such a percep-tion or otherwise establish inspection quality as a value of QC
- O Management.
Mr. DeWald's singular accomplishment as QC Manager seems to be achievement of Edison's production demands.
Edison's Mr. Shamblin congratulates Mr. DeWald on completing the backlog iO inspections: "It is through the dedication and hard work of 14
- O
}
yourself, your management and supervisory personnel and individual quality control inspectors that Braidwood Station will be completed and receive a license."
Att. 3 to Shamblin, Prefiled (ff. Tr. 16274).
I)
B. Numerous Comstock QC Inspectors Were Subjected To Harassment and Production Demands.
During the period which was the principal focus of our attention at hearing, from Mr. DeWald's return as QC Manager in September 1983 until the present, a series of encounters between QC inspectors and their supervision occurred which were the subject of testimony.
These events both exemplify Applicant's 3
failore to assure the freedom of Quality Control from production pressure required by Criterion I of 10 CFR Part 50, Appendix B, and form a part of the fabric of influences on inspector D
perceptions, values and work performance.
These encounters, in the context of the environment at Comstock thus far described, make clear that the inspectors' " widespread perception of D
harassment and pressure to compromise quality," is based in fact, and, moreover, is the product of discrete conduct by Comstock and Edison management.
D Among the myriad encounters are the following:
Saklak's improper direction to inspector Mike Mustered to sign off three Inspection Correction Reports in July 1984 (FF. 502); Inspector Dean Peterson's transfer from the special cable pan project for slowing production by insisting on cleaning paint from welds (FF.
503); DeWald's counseling of inspector Holley for inspecting too O
slowly (FF. 504); supervisors Walters' and Landers' threatened denial of overtime to inspector Bowman when Bowman sought to I
D l
1
O document a case of base metal reduction (FF. 505); Saklak's threat against inspector Rolan of sanctions by the NRC when Rolan resisted Saklak's direction to implicate a craftsman (FF. 506);
Stouts' reprimand for low inspection productivity (FF. 120);
management's complaints to then-lead inspector Klatchko for his crew's low inspection productivity (FF. 507); Supervisor Simile's punitive transfers of inspectors Bossong and Perryman for com-
.O plaining about improper design of the hanger walkdown special project (FF. 508); Saklak's threat against inspector Synder in March 1985 for refusing to sign off calibration ICR's (FF. 124,
,0 327).
More recently, in 1986:
Management's removal of inspector Martin from cable pulling inspections after he requested addi-tional inspection assistance; and Supervisor Simile's punishment O
of inspector Archambeault for pressing complaints about numerous l
cable pulling deficiencies and improper production pressure.
(Brief, infra.)
O C. Retaliation By Management Against Inspectors Puckett and Seeders In 1984 And Inspectors Archambeault And Martin In 1986 Exemplify The Harassment And Pressure To Compromise Quality That Were Prevalent At Comstock.
O of special significance in influencing the Comstock inspectors, and evidencing Comstock Management's continued emphasis on quantity over quality, are four cases, two from 1984 g
and two from 1986, in which Comstock's punishment of quality control inspectors represents independent violations of federal Employee Protection laws Mackowiak v. University Nuclear Systems, 735 F.2d 1159 (9th Cir. 1984), 42 USC Section 5851, and the NRC's O
implementing regulation, 10 CFR Section 50.7.
l9 16
'O i
Section 50.7 provides that " discrimination by a 4
Commission licensee, permittee and applicant for a Commission
- O license or permit, or a contractor or subcontractor of a 4
+
Commission licensee, permittee, or applicant against an employee j
for engaging in certain protected activities is prohibited.
3 Discrimination includes discharge and other actions that relate to compensation, terms, conditions, and privileges of employment."
In 1984, at the height of Edison's pressure on i
O Comstock to eliminate the inspector backlog, management removed by termination and punitive transfer respectively, Level III QC i
Inspector Worley Puckett and Calibration Inspector John Seeders.
3)
In the spring of 1986 Comstock management improperly punished cable pull inspectors Archambeault and Martin, reflecting the continued existence of unlawful production pressure at Comstock O
to the present.
These violations alone would warrant a denial of Applicant's license or civil penalty under Commission regulations, but in this record they are merely the tip of a very J
- O large iceberg.
Those four incidents are not only significant as l
examples of Edison's emphasis on quantity over quality at i
Comstock, but they are also significant because of the signals l
H3 that they sent to other QC inspectors, who were acutely aware of them.
l l
1.
The Termination of Worley Puckett.
!O l
In the case of Level III Welding Inspector Worley O.
l Puckett, Comstock and Edison management were confronted at the height of the inspection backlog elimination campaign in August iO 17 ijo
f 1984, with Mr. Puckett's recommendation to stop welding work and 1
regroup in order to avoid what he saw as an impending breakdown in their welding inspection program.
Instead of heeding Mr.
Puckett's warning or even seriously evaluating his concerns, t
Comstock, with active Edison participation, fired within less b
than a week the messenger who brought the bad news.
Mr. Puckett's summer 1984 concerns proved remarkably prophetic.
Through his successor Tony Simile and the NRC Staff,
)
nearly all of Mr. Puckett's itchnical concerns were validated; his written comments to Mr. DeWald regarding brewing morale problems amon.g the inspectors foreshadowed the mass complaints to the NRC by Comstock inspectors in March 1985, and his diagnosis of an approaching breakdown in the Comstock QC program itself is confirmed by the evidence in this proceeding.
)
Mr. Puckett, it seems, was just what the Comstock weld inspection program needed in May 1984 when he arrived at Braidwood.
Unfortunately, the needs of the Comstock QC program and Edison's backlog schedule demands were in direct conflict, and tragically the considerations of schedule and production were allowed to prevail over Mr. Puckett's quality concerns.
Puckett
)
brought with him sorely needed talent and experience, commodities in short supply in the Comstock weld inspection program.
For more than 20 years, Mr. Puckett had done welding craft and
)
quality control work, attaining impressive personal certifications and exercising supervisory responsibilities in the U.S. Navy nuclear and civilian nuclear power programs (FF. 201).
)
Further, Mr. Puckett's nine years at the troubled Zimmer project 18 J
=. -
O made him acutely aware of the Nuclear Regulatory Commission's expectations for an effective quality assurance program.
His iO experiences at Zimmer, an admitted baptism of fire, convinced Mr.
Puckett of his duty to avert a similar quality assurance disaster at Braidwood.
(FF. 202-205.)
!O It is acknowledged that Mr. Puckett was a conscientious employee during his 90 days at Comstock, App. Prop. PID at 9.
With little apparent direction from DeWald or other management,
'O he undertook at his own initiative a comprehensive review of the many welding-related quality control activities.
He sought out and acted upon the suggestions of Level II welding inspectors.
10 (FF. 206) He observed welding conditions in the field for future reference and action.
He revised and oversaw the critical functions of the welder test facility (FF. 208).
He initiated and partially completed reviews of welder qualification records (FF. 209, 211), weld rod withdrawal slips (FF. 210) and the cumbersome and complicated series of existing Comstock welding d3 procedures (FF. 212-215).
Mr. Puckett noted many deficiencies in l
all areas.
He knew enough of the scope and extent of these deficiencies to make his August 22 recommendations that work be
!O temporarily suspended until a complete review and diagnosis of the problems could be accomplished.
(FF. 216-217)
(
The work performed by Mr. Puckett was done without any
- O assistance and with little, if any, encouragement by management.
l In addition, during his brief tenure Mr. Puckett succeeded in i
completing all of the reading, training and testing requirements O
for his Level III certification except the final field practical 19 i
4
!O
- O i
weld inspection exam -- which he was required to take four times (FF. 218.)
It can hardly be seriously claimed that with his
- O extensive background in welding and quality control that Mr.
Puckett was not sufficiently competent to perform visual weld inspections.
Even Edison appears to concede as much by
- O acknowledging the Puckett field test as "at best, of secondary importance."
App. Prop. PID at 58.
During his short tenure at Comstock, Mr. Puckett identified
.g numerous areas of concern, for many of which NRC criticism at Zimmer served as persuasive precedent (FF. 205).
Mr. Puckett identifiec concerns in such areas as welder' qualification records, weld O
filler material control, construction material traceability, and welding procedure qualifications, as well as noting general concern with serious morale problems among quality control
'O inspectors.
His repeated efforts to alert Mr. DeWald to these problems fell on almost completely deaf ears.
(FF. 216-219.)
Although hired, apparently, to supervise the Level II "O
welding inspectors (the role currently played by his successor Tony Simile), Mr. Puckett was never permitted to exercise any supervisory authority.
Although hired to arbitrate inspection
'()
decisions, to draft procedures and to initiate quality documents such as Nonconformance Reports as a Level III Quality Control l
j inspector, Mr. Puckett was denied necessary formal certification,
()
obstensibly for his failure to successfully complete the final certification requirement: a field practical weld inspection exam.
(FF. 220, 221, 230)
(In fact, Puckett was required to O
take four such tests.
He passed two: the first was deemed 20
- O
,0 4
invalid since it did not include any rejectable conditions, the second was apparently-lost.
On two he was scored less than the required 1004: the first involved a trivial clerical mistake and the disputed absence of welder stamps, and the second was assigned a failing grade by Mr. DeWald only af ter he decided to
,O' fire Mr. Puckett.)
(FF. 228.)
As final recourse, on August 22, 1984, Mr. Puckett wrote DeWald what he terms a personal note expressing his concerns for
- O the failing Comstock Quality Control program.
While recognizing the impact on production, Puckett urged that welding be stopped to permit "a complete review of our procedures, welders
'O
~
qualifications and welders filler material withdrawal forms" on the basis of which the full magnitude of the problems could be determined and a plan for corrections implemented.
(FF. 217).
- O The response by DeWald and QA Manager Robert Seltman was, 4
indeed, prompt.
They summoned Puckett and without further inquiry regarding his concerns or consideration of his stop work
'O recommendation, they directed Puckett personally to complete all of his recommended reviews - without any assistance - within the week.
Though Mr. Puckett read this impossible assignment as lO pressure for his resignation, in effect constructive termination, he set his shoulder to the task.
(FF. 218, 219).
In the days that followed DeWald secured Puckett's replacement - the trusted
<3 Level III inspector at another Comstock site, Tony Simile; flunked Puckett on his latest practical exam - the coupon test; l
received the blessing of Edison Construction Superintendent 33 Shamblin for Puckett's dismissal; and then, only when Puckett 21 O
i
_=
D persisted in attempting to perform his impossible task, fired him, citing Comstock's never-before-used 90 day probation policy.
D (FF. 223, 226.)
Edison asserts that Comstock and Edison management were innocently motivated in firing Worley Puckett, that Mr. Puckett's J
acknowledged expression of quality concerns formed no part of the motive for his termination.
App. Prop. PID at 56.
Edison seeks to justify the Puckett dismissal on the grounds of asserted D
incompetence shown principally through a microscopically detailed post mortem examination of Mr. Puckett's technical positions on a number of code interpretation issues.
Wholly apart from the D
merits of these positions a glaring flaw in Edison's argument 13 that no such serious consideration was ever given to Puckett's technical positions during his tenure or at the time of his D
firing.
Instead Comstock advanced a variety of other, obviously pretextual excuses for his termination.
Although Comstock told the U.S. Department of Labor that Puckett had been fired for scoring too low on his general profi-ciency exam, their Area Director ruled that Puckett's protected activity was the basis for his firing.
He sustained Mr.
C)
Puckett's complaint of retaliatory discharge in violation of the Energy Reorganization Act.
Int. Ex. 11.
The pretextual charac-ter of this low exam score claim is confirmed by evidence that C)
Puckett's score of 88 exceeded both the established passing score of 80 and even the score of 85 achieved by Mr. DeWald on his own Level III weld inspection proficiency exam.
Int. Ex. 17.
O 22 0
.O In its defense of Mr. Puckett's claim for unemployment compensation Comstock asserted yet another ground for 13 termination: " falsification of his credentials during the interview."
Intervenors' Exhibit No. 27.
The Administrator of the Ohio Bureau of Employment Services rejected this Comstock
- O assertion as unsupported.
Id.
Mr. DeWald disclaimed knowledge of this Comstock position and agreed on the accuracy of Mr.
Puckett's resume which he reviewed during his initial hiring j()
interview.
(FF. 225.)
Comstock's claimed reliance on an asserted 90-day evaluation policy has little force.
It simply was never used in any case lO prior to Mr. Puckett, (DeWald Att. 7); nor were any evaluations of Mr. Puckett's work actually performed either l
during his tenure or at the time of his termination.
Any i
3 rational probationary employment policy simply must include l<
systematic monitoring, evaluation and documentaton of performance.
No such policy existed in practice at Comstock and it was not employed in fact with Mr. Puckett except as a pretext
- g for his dismissal.
(FF. 226.)
Finally, then, we turn to the claim that Mr. Puckett's 888erted in mpetence was the basis for his termination.
It is O
apparent, first, that no Quality Control employee had ever been discharged or even disciplined for incompetence (the case of discrimination against John Seeders will be dealt with below).
)
Mr. Puckett was the first.
Of the ten employees terminated I
(aside from Puckett and Seeders), absenteeism accounts for six cases, sleeping on the job for one, falsified applications for
)
23 i
'O
O two.
Rick Saklak is the tenth case.
Comstock simply had no meaningful standard of competence that it applied within the QC O
department as a grounds for termination of employment.
- DeWald, Prefiled, Att. 7, (ff. 1700).
Moreover, Worley Puckett's knowledge, experience and work performance far exceeded any O
rational minimum standard of competence for the position of Level III Quality Control inspectors at Comstock.
The focal point of Edison's assertion that Mr. Puckett's O
incompetence formed the legitimate basis for his dismissal by Comstock is the arcane question of welding code and welding procedure interpretation regarding the welding of A-36 steel to O
A-446 sheet steel.
Edison's claim that Mr. DeWald and the Edison management acted at the time on the basis of Mr. Puckett's handling of this matter is simply not credible.
The O
circumstances of the dispute and Puckett's firing are inconsistent with such a conclusion, and Mr. Puckett's objective
^
handling of the matter reflects anything but incompetent g
performance.
See FF. 213-217, 219.
Mr. Puckett's live testimony can only confirm the conclusion he was sufficiently competent, as an objective matter, to fill the Comstock Level III position for which he was hired, and that O
his dismissal represented a clear loss of talent and dedication to quality for the Comstock program.
Though away from the codes, procedures, documents and events for two years at the time of his g
testimony, Mr. Puckett demonstrated remarkable facility with the materials and subjects at hand.
He exhibited knowledge, understanding, initiative and f rthrightness in his response to O
24 O
- O examination from all sides.
The Board's observation of Mt.
Puckett's should confirm his ample competence in welding code and 13 procedure interpretation and analysis.
He was widely respected bytheweldibginspectorswhoknewhisworkandwhoquestionhis dismissal.
(FF. 227.)
The central talent that Mr. Puckett
!(D possessed in ample, proportions, knowledge of welding and commitment to quality, might represent the real basis for his discharge.
It may well be that Wof1'ey Puckett simply knew too O
much and was too committed to qualit'y to last long in the Comstock QC program at Braidwood.
B.
The Punitive Transfer of John Seeders
!O The second instance of unlawful retaliatory action by b
Comstock management-with significance to thd overall climate of harassment and production pressure was the removal of calibra-
.O tions inspector John Seeders by Comstock and Edison management.
Comstock rid itself of Seed _ers through punitive transfer in lieu oftermination,onthhinitiativeofsupervisorRickSaklak, because of Seeders' complaints of harassment and pressure to
<3 sacrifice quality.
The action against seeders was widely l
discussed among the quality control inspector workforce at l
l Comstock.
It was generally understood that Saklak had success-zg
(
fully pushed to get rid of Seeders because Seeders had stood up to his harassment and abuse and that management thereafter
[
}g removed Seeders because of Saklak's urgings and Seeders' August 17, 1984, letter of complaint.
(FF. 301-302.)
While the QC l
l inspectors' understanding of the punitive transfer of Seeders has independent significance for creating the atmosphere of q) l 25 lo
- ()
l accuracy of this generally understood reason for the action t
I against Seeders.
This retaliatory punitive action against
- Cf Seeders, like the discharge of Worley Puckett, represents a violation of the Commission's Employee Protection Regulation 10 4
CFR Section 50.7 and Federal Employee Protection Statutes.
IO Edison asserts that the punitive transfer of John Seeders was motivated legitimately by seeders' poor work performance in calibration inspections, amounting to incompetence of such
!O proportions as to justify termination.
Even assuming that Edison has demonstrated significant and widespread discrepancies in the Comstock calibration inspections program, they have not
- O established either that Seeders was sufficiently responsible for such problems or that Seeders' deficient calibration work was the l
motivating basis for transfer in lieu of termination.
In a
!O Section 50.7 case where mixed motives for termination are apparent, the employer bears the burden of proving that the employee would have been discharged even in the absence of the O
discriminatory motive.
Mackowiak v. University Nuclear Systems, 735 F.2d 1199, 1194 (9th Cir. 1984).
Edison has carried no such burden here.
On this record, it is clear that but for Seeders' o
resistance to Saklak and his August 17, 1984 letter, the punitive action against Seeders would never have been taken.
John Seeders served as the sole calibrations inspector at Comstock for a period of about two years without observed fault O
or criticism of his work performance.
(FF. 303, 308) His recollection of praise from his management during this period is undisputed (FF. 306).
His immediate lead Larry Phillips O
evaluated Seeders as " efficient" in an interview with Irv DeWald, 26 O
- O notes of which were verified only days before Seeders punitive transfer.
Similarly, Seeders' fellow inspectors and his trainees uniformly reported to DeWald that Seeders' job performance was good.
(FF. 324)
The calibrations work itself was unique in character.
It involved periodic and scheduled inspections of a large number of tools and instruments and the documentation of their calibration status.
Because, unlike all other Comstock inspection disci-O plines, calibration inspections had to be performed in process, absolutely no backlog or delay in Seeders calibration work was permissible.
(FF. 314)
Further, the calibration inspection o
duties were in large part documentary in character.
Each calibration inspection was documented periodically and automatically triggered a chain of paper work; a unique and
.O definitive paper work record evidenced any and all flaws in the calibration record.
i l
Seeders was offered no effective supervision whatsoever in
!O his calibration work.
His immediate lead, Larry Phillips, was not certified in calibrations, was uninformed as to the function-ing of the calibrations department and, practically, provided no
- O guidance, direction, supervision or criticism for Mr. Seeders work.
Rick Saklak, in turn, was responsible for supervising Phillips and the calibration department.
Saklak was not certi-
'O fled in calibrations, was unfamiliar with the functioning of the i
department, and exercised no practical supervision of Seeders work.
Finally, QC Manager Irv DeWald was ultimately responsible through Saklak and Phillips for the calibration inspection 27
- O
O.
program.
While DeWald was formally certified as a Level III inspector in the calibrations discipline, he, likewise, was unin-13 formed as to the functioning of the calibrations program and i
exercised no practical supervision over Mr. Seeders' work.
(FF.
303)
Mr. Robert Seltman, the Comstock QA Manager, had never
- (D identified any programmatic deficiencies in the functioning of the calibrations department or Mr. Seeders' work through his QC audits or surveillances.
In the summer of 1984, John Seeders had O
every reason to believe that he was performing acceptably in his calibrations inspection work.
(FF. 303, 306.)
The events which led to seeders punitive transfer were set
- (3 in motion by a May Edison audit finding in the calibration area which identified instances of out-of-calibration inspection find-ings apparently without a required Inspection Correction Report
!(3 (ICR) to control the deficient calibration.
Seeders was called upon to perform a review, for Comstock's response to Edison, of his calibration records to determine whether the audit finding l
jo was isolated or more widespread.
Edison asserts that from the outset, Seeders was instructed by supervision to perform a com-plete review of his records.
Seeders asserted that only a par-tial sampling review was initially sought by his supervision.
<3 (FF 307, 309-311)
In any event, as deadlines came and went supervision made explicit their demand for a 100% review.
Seeders responded that such a task would be impossible given that 3
he had to continue performing in-process inspections, the timing of which he could not control.
(FF 309)
A complete review of calibration records was, indeed, for all practical purposes an gg impossible task given its scope and the limited time and a
28
!O I
O resources available to Seeders.
Such a task would have required a complete review of all calibration records and calibration ICR documentation from the project's beginning.
(FF 313)
Seeders then had a number of interactions with Seltman and Saklak during which they pressed him to complete a prompt, 100%
reinspection regardless of its quality.
Seeders interpreted Seltman's and Saklak's statements as orders to compromise the quality of his inspections and review, including orders to O
falsify documentation.
Eventually those orders escalated into threats of discipline, loss of his job, and loss of his livelihood.
Seeders resisted all efforts to compromise his work O
quality; as he stated in his August 17, 1984 letter to DeWald, "I
never did nor will I ever falsify documentation for anyone or for any reason.
I hold my professional attitude and ability above O
anyone on any management level."
Although Seeders pressed on with the document review, in addition to his inspection and training functions, Saklak and Seltman continued to insist on O
faster progress.
Tensions grew to the point that Saklak pressed for, and achieved, Seeders' termination soon after Seeders' August 17 letter to DeWald.
(FF 307-313)
O Matters came to a head between Seeders and Comstock manage-ment when QA Manager Seltman pressed Seeders for a prompt report of his complete calibration records review.
Upon first learning of the full character of the review demanded and the short time frame in which to accomplish it, Seeders retorted with the ob-vious fact that such a task was impossible.
Mr. Seeders under-O stood from Seltman's response that what Comstock wanted was 29 0
O simply a response -- any response -- to Edison's audit finding, without respect to its quality.
Moreover, Seeders understood O
Seltman to suggest falsification of documents.
Seeders charac-terized it later as harassment and asserted that he would never falsify quality documentation.
Int. Ex. 23.
(FF 307-313)
O Shortly thereafter, Mr. Saklak had his go at Seeders.
(FF 316)
Having learned that Seeders' review was incomplete, and, perhaps, having misunderstood an unintended, casual criticism of O
Seeders by his lead Larry Phillips, Saklak confronted Seeders.
According to Seeders, he was directed by Saklak to complete his review at the same time he continued his assigned calibrations O
work, necessary receiving inspections (in Larry Phillips' ab-sence), and the ongoing cross-training of other inspectors.
It was clearly implied that completing the product of the priority, O.
regardless of product quality.
Saklak offered the assistance of another inspector to do Seeders' " leg work" -- understood by Seeders as his inspection activities -- leaving Seeders to false-q) ly document the inspection results as his own.
(FF 316)
The later statement of inspector Myra Sproull, documented in Mr.
DeWald's September 25, 1985 report (App. Ex. 4), confirms this h3 part of Seeders' version of events.
There, Ms. Sproull confirms that, indeed, Saklak discussed her doing receiving " leg work" for Seeders.
She apparently declined on grounds of lack of famili-q) arity with the required procedure.
Saklak threatened to bar Seeders from cross-training in C.E.A.'s -- a prerequisite to increased pay -- and observed that "sometimes you have to play a little chess in the business to
- O keep your job."
Int. Ex. 23.
Understanding Rick Saklak's 30
'O u
iO character and personality and the information on which he was likely acting, it is not dif ficult to credit Seeders' version of
)
what transpired.
Seeders justifiably took Saklak's statements as threat.
Seeders told Saklak he considered the threats to be
" blackmail" (id.) and again refused to f alsify documents or compromise the quality of his inspections.
(FF 316)
Finally, on Friday, August 17, 1984, Saklak once again confronted Seeders; this time, however, in the presence of a number of other Comstock inspectors.
Saklak exploded in a rage when he observed Seeders in conversation and apparently not in pursuit of his many tasks.
Saklak was, by all accounts, loud, abusive and deaf to Mr. Seeders' protestations (apparently validated by a number of eyewitnesses) that, indeed, he had work in hand.
Saklak announced that he could play games as well and O
he almost dragged Seeders from the QC office to administer a formal reprimand. (FF 318-319).
Citing the statements of a number of eye witnesses, Seeders, O
ironically, appeared to succeed in refuting Saklak's specific charge that Seeders had been neglectful of his assigned work at the time of the morning's encounter.
No matter, though, Saklak O
had prepared a wide-ranging indictment of Seeders for other crimes, real and imagined, past and present as a superseding reprimand.
It seems likely that Mr. Saklak's so-called " Pearl O
Harbor file," a legendary repository of incriminating documents maintained by Saklak, proved useful in supplying purported crimes by Seeders, having f ailed to convict him of the charge in ques-O tion.
(FF 320)
In Irv DeWald's absence, assistant QC Manager, 31 O
!I Larry Seese, with Saklak at his side, administered the written warning without benefit of trial or evidence.
QA Manager Robert O
Seltman, Saklak's car-pooling friend, was detailed to serve as the witness sought by Seeders.
Facing these multiple assaults, Seeders determined to act.
(FF 319)
O Apparently, over the next evening, Mr. Seeders composed his August 17, 1984 letter, Intervenors' Exhibit 23, addressed to Mr.
DeWald and copied to Edison management and NRC inspector Schultz, O
among others.
He wanted others to know of the series of events described above and his concerns for the QC department.
The letter was passed from hand to hand generally throughout the QC O
department.
It became the subject of widespread shop talk among the inspectors.
(FF 301-302, 320)
Only after Seeders' August 17, 1987 letter did QC Supervisor O
Saklak mount a review of the calibration inspection program.
He' instructed trainee Richard Snyder to undertake a 100% calibration document review along with trainee Don Coss and former calibra-O tions inspector, Myra Sproull.
Saklak did not seek merely a review of the calibration records for the purpose of addressing an audit.
Instead, Saklak directed Snyder and the others to o
review all calibration records for any and all discrepancies in building the management's case against Seeders.
(FF 325)
What was found was a " mess" in the calibration inspection documenta-g tion which formed the basis of a generic nonconformance report NCR 3419.
He believed he found what he was looking for -- enough of a case on Seeders to justify getting rid of him.
(FF 327)
O But the mess in the calibration inspection records was as much the fault of others as it was John Seeders'.
John Seeders' 32 O
O deficient work performance does not objectively support the ex-treme sanction of termination, nor were such deficiencies the
)
motiva:ing basis for the action taken against him.
As John Sceders' successor in calibrations, Richard Snyder, stated to the NRC in March of 1985, (paraphrased) "It wasn't John's fault because the department was messed up.
. Rick.
. Got him moved out."
Two weeks before the mass complaints by Comstock inspectors in March, 1985, Snyder himself had gone to the NRC site resident with quality concerns regarding inadequate super-vision by Saklak of the calibrations inspection program.
There
'had apparently been little improvement since the days of Seeders' O
tenure.
Mr. Snyder further testified that the Comstock calibra-tions procedures during Seeders' tenure left much to the unsuper-vised interpretation of the lone calibrations inspector.
While O
Snyder believed that Seeders was in part at fault for the defects he identified at Saklak's direction, he agreed that much of the mess in calibrations was the fault of management and the QA O
program at Comstock.
(FF 304, 327)
In response to DeWald's inquiries after Seeders' August 17 letter, each inspector who was polled endorsed the adequacy of O
Seeders' work performance.
His lead, Larry Phillips, told DeWald that Seeders " performs his job in an efficient manner."
Robert Wicks, who was being trained by Seeders at the time, told DeWald O
that Seeders was "doing his job coupled with training, receiving, calibrations, and all the paper work plus the audit response."
App. Ex. 4.
Further, despite significant effort at hearing, O
Edison simply failed to establish that Mr. Seeders was respon-33 O
sible for significant or widespread calibration document discre-pancies.
Objectively, John Seeders' work performance can hardly D
be characterized as so poor as to warrant termination in the context of the Comstock QC department.
All the less likely then, in the absence of objective cause, D
is that Comstock management and Edison were, in fact, motivated by John Seeders' work performance in taking the punitive action against him.
Aside from the timing of the review of Seeders' D
work performance on the heels of Saklak's threats and Seeders' August 17 letter of concerns, and aside from Comstock and Edison's culpability in creating the calibration document mess
)
for which they blame Seeders, the context of the action against Seeders eliminates any doubt of improper motives.
Seeders' charges of harassment, intimidation, production and
- )
deteriorating morale among QC inspectors generally came at the height of the Edison imposed back-log elimination projects.
(FF 317)
Seeders elaborated to Edison's Mr. Geiseker -- recently
- )
assigned to the Comstock contract, Seeders " indicated that the harassment was a relatively recent problem that was occurring in the Comstock QC department and that it could probably be related 3
to the increased pressure that was currently being placed on QC management and was, in turn, being placed on QC personnel."
App.
Ex. 92.
(FF 323)
Seeders' complaints had been communicated by
- )
the NRC resident, Robert Schultz.
(FF 322)
As in the case of Worley Puckett, discussed above, the simplest course for dealing with these charges of breakdown in the program was to attack the credibility of the accuser.
Blame the messenger and his message g
will be ignored.
And, of course, in the case of both Seeders and 34 O
O Puckett, this ploy worked, at least for a time.
Finally, consider again the context of the treatment of O
others similarly situated at Comstock.
The record reflects that not a single other Comstock employee -- aside from Mr. Puckett --
was ever fired or disciplined for incompetence or poor work O
performance.
The cases of Seeders and Puckett stand alone, and in both, the asserted reasons for punishment are mere pretext for the unlawful retaliatory motive.
DeWald Prefiled, (ff. Tr. 1700)
Att. 7.
g
- 3. Denial of Transfer to Gregory Archambeault.
During the course of the trial in this proceeding, two O
m te recent cases of management retaliation against oC inspectors came to the parties' attention through allegations made to the NRC: the 1986 cases of Gregory Archambeault and Richard Martin.
The Archambeault and Martin incidents confirm that an atmosphere
()
of harassment and production pressure extended beyond the 1984 inspection backlog crisis, past the 1985 mass complaints to the Nuclear Regulat ry Commission, and continues up until the pre-O sent.
The involvement of additional Comstock supervisory person-nel, including particularly Worley Puckett's successor, Tony Simile, makes clear that earlier acts of harassment represent the g
dominant ideology at Comstock and are no mere isolated aberrations.
Gregory Archambeault, an experienced electrical inspector with extensive experience at four prior nuclear sites, was hired O
in January 1986 to work a's a cable pull and termination inspector.
FF 400-401.
Shortly after his certification in February, he identified numerous quality concerns and complained of production pressure emphasized over quality considerations.
35 0
- O FF 405.
Supervision discouraged his identification of quality problems and retaliated against him for his expressions of
.O concern.
A. family can who expected to be assigned to normal day shif t work af ter temporary training assignment to the night i
shift, Mr. Archambeault's repeated transfer requests were refused lO while other non-complaining inspectors' requests were granted.
FF 409-11, 417-22.
After complaining to the NRC and giving deposition testimony in this proceeding, Mr. Archambeault's
- O transfer request was finally granted in September,1986.
FF 426.
The actions by Comstock supervision, including General QC Superintendent Tony Simile, were clearly motivated by Archambeault's lO-expression of quality concerns.
FF 423.
4 Shortly after his certification in cable pulling, 4
Archambeault and a trainee encountered numerous obvious cable
- O discrepancies as they performed a cable pull inspection in the upper cable spreading room.
Within plain view of the location where numerous cable pull inspections had been previously 10 performed, Archambeault observed numerous instances of cable bend radius violations, cable separatation violations, unsupported cables dangling from trays, and cable jacket damage.
The defects lO were located in an area directly above ceiling penetrations into the main control room below.
Archambeault wondered why no one l
l had previously identified these nonconforming conditions.
FF 405.
lO Mr. Archambeault's supervisor, Harry Revels, instructed him not to initiate a nonconformance report but instead to document his observations on an informal memo.
Revels wanted to check to (3
determine if the problems had been otherwise identified.
Later l
36
!O I
!O ha told Archambeault that Comstock Supervisors Simile and DeWald i
wished to observe the problems.
Weeks passed without further action.
FF 406-407.
ici When Mr. Simile and the others finally toured the area they concurred with Archambeault's judgment that the matters were indeed nonconforming.
However, Tony Simile instructed Archambeault not to document each of the individual nonconforming t
conditions, but simply to initiate a so-called generic nonconformance report describing the conditions only generally.
. O Archambeault believed this was an inadequate measure to insure the control of these discrepant conditions and privately, on his free i
time, made thorough listings of each of the myriad problems he had observed.
FF 408.
In the final analysis, Gregory Archambeault's personal listing represented the only compilation ever made of the discrepant conditions he identified.
Later Mr. Archambeault was to raise concerns of undue emphasis on production stemming from an incident where his efforts to complete the documentation of some 42 cable separation 3
discrepancies was interrupted for his reassignment to a priority j
cable pulling or " hot pull."
FF 413-414.
Shortly thereafter, on June 4
)
1986, Mr. Archambeault contacted the Nuclear Regulatory Commission b3 r
to express his mounting concerns that Comstock was discouraging the identification of discrepant conditions, and that inspectors, including himself, were becoming demoralized because of undue C) emphasis on production pressure.
Archambeault, Tr. 12314.
{
416.
Archambeault had conveyed those same concerns to his l
supervisor the previous week in the hope that a trip to the NRC O
would be unnecessary, but Comstock refused to respond.
FF 412.
37 O
0 Comstock rewarded Mr. Archambeault's conscientious attention to quality by subjecting him to the continued personal hardship g.
of night shif t duties, denying him repeated requests for transfer to the day shift while transferring others similarly situated, and by communicating veiled threats that his actions made him a O
prime candidate for the Comstock lay-off list.
FF 411, 417-23.
Mr. Archambeault reiterated his request for transfer off night shif t by written requests in June, July and August.
O s metime in June, Harry Revels submitted Mr. Archambeault's name, along with those of Inspectors Willoughby, Nelson, and Peters to Supervisor simile for transfer to the day shift.
FF 420.
In July Mr. Archambeault's supervisor, Harry Revels, confided Simile's consideration of Archambeault's NRC complaints in passing on his transfer request.
In effect, Archambeault was told that, having complained to the NRC, he had disqualified himself from any change in assignment since any action would be understood as harassment by Comstock.
Revels added by way of
" advice" that his complaints had made him a prime candidate for the rumored impending lay-off by Comstock.
On this chilling note, Mr. Archambeault returned home to update his resume.
FF 422-423.
Archambeault received no formal response until late August, t
when, after the NRC had initiated inspections of Archambeault's a
concerns, Tony Simile denied the transfer requests in writing.
i Mr. Archambeault was finally transferred to the free shift on the eve of his appearance as a witness in this proceeding.
1 Edison's position is that the actions by Simile and Revels i
represented innocent managemen isions to allocate inspector iO 38 (O
i l
- O i
resources without regard to Mr. Archambeault's complaints.
It is simply beyond dispute that Archambeault's expression of concerns t
lC) to the NRC, indeed, played a role in the transfer denial.
It is i
simply implausible that this consideration of Archambeault's
{
protected activity was wholly benign.
Mr. Simile's unresponsive-3
- C) ness t Archambeault's identification of the cable discrepancies i
~
and Archambeault's complaints about production pressure infect improperly the future transfer denials.
It is particularly dif-
]()
ficult to credit simile's innocent explanation after hearing of 4
his malicious use of the transfer weapon in the earlier case of i
l Inspector Larry Perryman.
With some glee, Mr. Seese punitively
()
transferred Perryman to the fi.rst shift with apparent knowledge that he thereby deprived Mr. Perryman of personal time with his dying mother.
FF 508.
Such a track record of abuse weighs strongly in favor of the obvious conclusion in this cases that g)
Simile's action was taken because of Archambeault's prior quality complaints.
4.
Reassignment of Richard Martin.
)
The fourth and final illustrative-example of recent Comstock production pressure manifested in an act of retaliatory I
treatment involves the second shift cable pulling inspection H3 I
activities of Richard Martin.
Martin was permanently removed from QC inspection duties and assigned administrative and menial tasks not requiring inspector qualifications when he resisted the
.O j
introduction of a new production-enhancing measure.
As cable l
pull inspector Gregory Archambeault testified, Martin was a goed l
inspector who identified many problems and went by the book, but 1 0 who had been reduced to a document reviewer because he did his i
l l
39
!(3 t
.--,.--.n--a nn nn--
.n_,___,,
.-. - - =
=.
d
~O job too well, and expressed concerns about the cable pulling activity.
Archambeault, Tr. 12314-15.
3 Martin had been assigned as a cable pull inspector on the second shift since October, 1985.
FF 427.
He, along with ap-t i
proximately ten other cable pulling inspectors, performed quality i C) control verification of the in-process activity of cable pulling I
and installation.
Depending upon the length and complexity of the pull, Martin and the others followed the practice of assist-3 ing one another in order to adequately monitor the cable pulling f,
activities.
FF 429.
For example, where cables rose, descended or bent sharply in the risers and cable pans, assisting inspec-K) tors would monitor the bend points to assure that cable did not bind, become overstressed, or be subject to minimum bending j
radius violations.
Id.
Where sufficient QC assistance was un-t h3 available, inspectors would require that a complex pull be accom-i plished in manageable stages or that work be suspended until sufficient QC assistance was available.
Martin, Tr. 12708 i ()
From time to time craft would direct criticism against QC where craft production schedule requirements had not been met.
FF 427.
But new QC supervision and new inspection techniques
()
were suddenly announced.
For some days rumor among the second shift QC inspectors had it that new supervision was to be assigned to straighten out the second shift activities.
Id.
On
()
March 28, 1986, Bob Tuite and Mike Lechner appeared in the capacities of second shift supervisor and cable pulling lead, respectively.
Supervisor Tuite gathered all second shift O
inspectors, including Lechner, for a meeting that night.
Tuite 40
'O
O assured the inspectors that they were not out to get anyone, but were simply there to confirm that QC was doing its job and that O
raft's e aplaints were misdire ted.
Tuite assured the cable pull inspectors that he saw no objection to inspectos;s receiving assistance in a cable pull activities.
FF 428.
Tuite's words shortly proved to represent hollow assurances.
That very evening inspector Martin was assigned a long and complex pull of about 350 feet, which passed through seven rooms and had about 12 bends.
FF 431.
Martin had walked the length of the pull to note the need for possible assistance.
He estimated that the pull would require three or four inspectors and he asked his lead, Mike Lechner, for such assistance.
Despite his de-scription of the pull's complexity and his reminder of Tuite's contrary assurances -- heard by Lechner as well -- Martin's new lead announced that hereafter a new policy was in effects only one QC inspector would be permitted per pull.
To Martin's re-peated pleas for assistance, Lechner simply responded that one lO was good enough on the day shift, assistance was not a require-l ment and "we're going to be using one person on a pull now."
Id,.
Lechner made no suggestion that pulls would be performed in manageable segments, or that work would be suspended until O
inspectors were available, or that the availability of QC inspectors to assist would be considered at all.
That night Martin observed that there were plenty of inspectors available to O
assist on the inspection if Lechner had permitted.
FF 431.
Feeling intimidated by this turn of events, Martin documented his request for assistance on a Comstock memorandum and presented it to O
Lechner on his return to the field office.
Lechner passed the 41 O
l O
memo back, declining to sign it and informing Martin that he was to remain in the office that evening.
FF 432.
O That very night Lechner's friend recently transferred as well from the first shift, Don Schirmer, replaced Martin not only on the pull in controversy, but also as the assigned cable pull inspector for the craft foreman for whom Martin had inspected.
FF 433.
The next night Martin was assigned to perform the so-called " hold tag verifications" by Supervisor Tuite.
This task, O
not a formal inspection assignment, entailed checking ICR and NRC hold tags in the field.
It took about a week to complete.
FF 434.
After several additional weeks without formal assignments O
on the second shift, Mr. Martin was returned to Assistant QC Manager Larry Seese's status department to perform non-inspection clerical assignments.
FF 436.
O Mr. Martin's testimony stands uncontradicted on these events.
The changes in supervision over second shift inspection activities and the adoption of an arbitrary prohibition on O
inspection assistance for cable pul'.ing, r.an be interpreted as nothing other than verification of the production pressure concerns voiced by Archambeault and Martin.
Removing Mr. Martin
()
from his cable pull inspection assignment, and reassigning him to menial, clerical, or other non-inspection activities, is clear retaliation for his resistance to production pressure and his
()
humble request for assistance.
This retaliatory response is all the more ironic in light of Supervisor Tuite's apparent direct contrary assurances given Martin, Lechner and all other inspec-O
- t. ors mere moments before.
42 0
~-
i l
O' The Martin retaliation represents clearly discriminatory action stemming from Martin's protected conduct and serves as a
- O second recent example of a violation of the Commission's employee 1
protection regulations. 10 CFR Section 50.7.
Finally, it i
confirms ~that harassment and production pressure extends widely o
through Comstock supervision beyond simply DeWald, Saklak and simile; and that it is not limited to the 1984 backlog campaign, i
l but extends up until most recent times.
!O j
The punitive treatment of Puckett, Seeders, Archambeault and l
Martin is significant not only as a violation of the employee O
prot'ection provisions of Section 50.7, but also for the manner in
[
which it reinforced among QC inspectors.
Comstock's insistence on production over quality.' Those four incidents were the IO subject of a great deal of shop talk at Comstock, and virtually every Comstock inspector was aware of and was influenced by one l
or more of the incidents.
FF 227, 301-02, 711.
The message from those incidents was clear Comstock wanted O
inspector productivity, and any inspector who rocked the boat by l
performing his job too conscientiously or who otherwise threatened production by raising quality or safety concerns, however legitimate, risked serious punishment.
III. THE ACTS OF EDISON AND COMSTOCK MANAGEMENT, AND THE ATMOSPHERE OF PRODUCTION PRESSURE PERCEIVED BY
- O l
COMSTOCK INSPECTORS SHOWS A FAILURE TO MEET THE REQUIREMENTS OF CRITERION I FOR AUTHORITY AND j
INDEPENDENCE; AND THUS A LACK OF REASONABLE ASSURANCE.
t l
The evidence before this Board shows beyond doubt that the lO atmosphere at the Comstock QC department was poisoned by i
l 43
!'O
- O systematic and pervasive harassment and production pressure on a scale which distinguishes Braidwood from any recorded case in the
- C) annals of licensing proceedings.
The production pressure at Comstock was systematic, flowing from schedule pressure by f
Edison's Site Project Construction Superintendent by means of his 20 organizational authority directly through Comstock's production and quality control management, through supervision to line quality control inspectors.
The effects of this pressure were
- (3 indisputably pervasive
- an unprecedented 24 Comstock inspectors attested to such pressure unanimously in complaints to the NRC Staff and that widespread perception had been confirmed by their O
live testimony in this proceeding.
The NRC Resident inspectors, Mr. Schultz and Mr. McGregor, on the basis of these March 29, 1985 complaints and also their extensive observations of the er din 9 m rale problems among Comstock inspectors in broadening 0
problems in Comstock's work, urged prompt and decisive action, but to no avail.
We can say with confidence, therefore, that the problems at Comstock were systematic, that its effects were q) clearly not isolated or random but were pervasive -- reflected in the acknowledged widespread perception of harassment and pressure to compromise quality.
Finally, in spite of Schultz and g
McGregors' urging, the problems were not corrected, or even more generally acknowledged, but continued to fester and grow through 1986.
Because of that massive and inexcusable quality assurance 3
breakdown, Edison has failed to provide reasonable assurance that Braidwood meets NRC licensing standards.
'O 44 iO
,--_y-_~,-m-e----,_-y---
---,,,----%+-,
e
O A.
Under the NRC Licensing Requirements, Edison Cannot Provide Reasonable Assurance of Licenseability Unless It Proves That it Has Complied With Its Non-Delegable Duty
]
To Establish an Effective Ongoing Quality Assurance
.(3 Program.
The Commission's regulatory scheme for assuring the protection of the public's health and safety in construction of
) C) nuclear power plants such as Braidwood requires effective implementation by licensees such as Edison of the Commission's Quality Assurance Criteria.
" Quality C)
Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants."
The " reasonable assurance" standard for licensing, 10 CFR Section 50.57, is met through effective adoption and
- O implementation of a quality assurance program that complies with Commission regulations.
r It is apparent on the face of Appendix B that the Criterion I requirements to establish an effective and independent QA
)
program may not be waived or delegated.
Those requirements are stated in absolute terms; a license may not be granted absent
" reasonable assurance" that they have been met.
Edison, on the q) other hand, suggests through its rebuttal case that it is free to i
i subject its QC inspectors to production pressure, however severe, as long as no significant adverse work performance is shown.
g Indeed, Edison's emphasis on design significance takes the argument even further by suggesting that even if Edison has I
subjected QC inspectors to harassment or production pressure, and l
even if that pressure causes poor performance (i.e., missed i,
discrepancies), it may obtain a license as long as none of the I
overlooked discrepancies happen to be design significant.
That i O l
position makes a mockery of the law.
45 0
O The heart of the NRC licensing requirements is that an effective and independent QA organization must identify, evaluate and initiate corrective action where called for on all conditions that fall short of acceptance criteria.
The licensing scheme equates safety with an effective QA program: if " reasonable O
assurance" could be established through after-the-fact sampling, then the QA program requirements would be superfluous.
The very existence of the requirements for an independently structured QA O
program, comprehensive documentation, and prompt and comprehensive identification of discrepancies establish that minimal after-the-fact sampling is insufficient to meet licensing criteria.
B.
The " Authority and Organizational Freedom" of QC Inspectors Is a Core Requirement of Criterion I.
O It is apparent that the inherent hazards posing risk of catastrophic harm to the public require extremely high levels of confidence that materials, components and systems are constructed O
in accordance with specifications.
Further, given the immensity of nuclear construction projects and the realistic limits on governmental resources, the task of verifying that facilities O
are, in fact, built to specifications must rest largely upon the licensee and its contractors own activities in assuring quality.
Quality control inspectors, such as those at Comstock, serve in O
effect as the eyes and ears of the NRC in assuring quality.
It is for these reasons that the integrity of the licensee's quality assurance program, and in particular the integrity of the O
work of quality control inspectors in verifying the acceptability 46 0
l0 of work must be rigorously protected.
Freedom from compromise 1
rising from harassment, retaliation or production pressure, is at
- (D the very heart of compliance with the Commission's quality assurance criteria.
In its decision in Duke Power Company, et al.
(Catawba Nuclear Station, Units 1 and 2), DD-85-9, 21 NRC 1759,
]C)
(1985), the Commission's Director of Inspection and Enforcement, writing for the Commission Staff, confirmed the critical importance of protecting quality control inspectors from retalia-(3 tion by management for identifying quality concerns to them:
Quality control inspectors play a crucial role in the NRC's regulatory scheme.
The NRC's regula-tions require Licensees and their contractors and subcontractors to give inspectors the ' authority Q3 and organizational freedom' required to fulfill their role as independent observers of the construction process.
10 CFR Part 50, Appendix B, at 413.
In a real sense, every action by quality control inspectors occurs 'in an NRC proceeding,'
because of their duty to enforce NRC regulations.
At times the inspector may come into conflict with Q3 his employer by identifying problems that might cause added expense and delay.
If the NRC's regu-latory scheme is to function effectively, inspec-tors must be free from the threat of retaliatory discharge for identifying safety and quality problems.
lO Id., quoting Mackowiak v. University Nuclear Systems Inc., 735 F.2d 1159, 1162-63 (9th Cir. 1984).
The NRC Staff thus rejected i
the Catawba Licensing Board's and the Licensee's view that the q)
Commission's Employee Protection regulations, 10 CFR Section 50.7, protect only those who have taken their safety or quality complaints off site to the NRC.
g)
Staff's catawba decision is supported by all courts of appeals save one which have considered the question: Mackowiak, supra, Consolidated Edison Company of New York Inc. v. Donovan, 673 F.2d 61 (2nd Cir. 1982); and Kansas Gas & Electric Co. v.
47 10
O Brock, 780 F.2d 1505 (10th Cir. 1985).
It is also consistent with the position of the Secretary of Labor, who is charged by O
Congress with providing individual remedies to those victimized by retaliation for their protected conduct.
42 USC Section 58.51.
In emphasizing the critical importance of assuring the O
integrity of Quality Control inspection activities and their freedom from production pressures as recognized by Congress in its adoption of the Employee Protection laws, the NRC Staff O
rejected the Fifth Circuit's minority position in Brown & Root, Inc. v. Donovan, 747 F.2d 1029 (1984), as "at odds with the remedial purposes of Section 210", the Employee Protection provi-lO sions of the Energy Reorganization Act of 1974, as amended, 42 USC Section 58.51, f rom which the Commission's Regulation, 50.7 i
is derived.
lO As these decisions make plain in their discussion of the i
interplay between the prohibitions against retaliation embodied l
in Section 50.7 and the Criterion I principles of " authority and O
organizational f reedom" as applied to quality control inspectors, it was a prerequisite to the effective functioning of Edison's quality assurance program that the Comstock inspectors be free of O
the pressures imposed by cost and schedule considerations.
C.
Edison Failed In Its Duty To Ensure That The Comstock QC Organization Was Structured and Run In Accordance With the " Authority and Organizational Freedom" Requirements
()
of Criterion I.
criterion II specifies that "the applicant shall estab-lish at the earliest practicable time... a quality assurance O
program which complies with the requirements of this appendix,"
48 O
0 Critation II alco rcquires tha cppliccnt to " regularly review the status and adequacy of the quality assurance program."
Edison's obligation is thus to have established a quality assurance program that meets the Criterion I requirements with respect to " authority and organizational freedom" for the Comstock quality control inspection program.
This duty first O
entailed establishing an organizational structure that would assure such independence, but, further, monitoring and evaluating the effectiveness of the organizational structure chosen to O
assure the continued effectiveness of the quality assurance and quality control programs in meeting the Commission's quality assurance criteria, including Criterion I.
Edison has failed on C) both scores.
1.
The Comstock QC Organizational Structure Is At Odds With Criterion I.
It is somewhat ironic that Edison cites appeal board action in its LaSalle construction permit proceeding, Commonwealth Edison Company (LaSalle County Nuclear Power Station, Units 1 and 2), ALAB-153, 6 AEC 821, (1973), in support of the Comstock QC organizational structure at Braidwood.
App.
- Prop. PID at 15, n. 16.
Ironic, indeed, because the Appeal Board in ALAB-153, with Commission agreement (RAI-73-12, p. 1072 (December 7, 1973)), rejected Edison's proposed QA organization,
" holding that the Applicant's quality assurance (QA) organization O
as reflected in the evidence of record was not in compliance with 10 CFR part 50, Appendix B, Criterion I because QA personnel report to an on-site official (at the construction project) who has cost and scheduling responsibilities."
LaSalle, Supplemental O
49 0
O Initial Decision, LBP-74-14, p. 289, (March 18, 1974).
In the decision on remand (to which Edison cites) the Licensing Board O
approved an amended QA organization where " quality control inspections and testing will be performed by independent inspec-tion agencies or by the contractors' independent quality control O
organization under the direction of the quality assurance depart-ment of Commonwealth Edison."
(1d. at p. 290, emphasis added. )
That organizational structure approved in the remand deci-O sion is of course quite different from the structure at Braidwood under which constock's quality control department reports to Edison's Site Project Construction Department.
As Edison acknow-O ledges, c natruction superintendent Dan Shamblin, who has produc-tion schedule responsibilities for Edison, administers the Comstock contract and in that capacity "he oversees the produc-g tion, engineering and quality departments in Comstock and the other contractor organizations."
App. Prop. PID at 15.
While Comstock Quality Control Manager Mr. DeWald technically reports off-site to the Comstock Regional QA/QC Manager, the Comstock QC
()
department at Braidwood and Mr. DeWald as its manager report functionally to Edison's Mr. Shamblin, the on-site official with direct cost and schedule responsibilities.
()
The evidence in this record amply reflects that while DeWald's reporting to Comstock regional managment was merely f rmal with respect to the day to day functioning of his QC O
department, Edison's on-site construction superintendent exer-cised direct day-to-day control over the performance of Comstock's quality control functions.
Mr. Shamblin personally g
ratified the Puckett termination, the Seeders transfer, and 50 0
~
J
O directed the investigation of the mass complaints by Comstock inspectors to the NRC which implicated his own actions as the
- O source of production pressure and the widespread perception of pressures to compromise quality.
By contrast, there is little evidence of any formal, let alone
'O effective, " direction" of Comstock's quality control program by Edison's quality assurance department as approved by the Board decision in LaSalle, supra, p. 290.
'O i
The testimony of Edison's corporate quality assurance mana-ger, Walter J. Shewski, evinces a level of detachment and lack of y3 information rivalling the qualities of even Mr. DeWald.
Mr.
i Shewski founded the corporate department and survived without apparent criticism, the Staff's finding of a QA breakdown at Braidwood and all of the myriad QA problems identified since
)
then.
Mr. Shewski's only apparent contact with Comstock quality l
control matters reflects at best a missed opportunity to avert
})
the QA disasters then unfolding.
He met with Comstock QC offi-cials in October 1983, apparently in response to a report of falsified QC documentation.
While chastising Comstock for permitting the practice of xeroxing inspection checklists as a
)
time-saving measure, he largely ignored the evidence under his I
nose of Coastock's widely followed and patently inadequate weld inspection and documentation practices.
Edison can thus take no comfort in either the form or the l
functioning of the QA department's oversight of Comstock quality 1
i control.
The form as well as the function of Comstock's organi-
,0 zational reporting to Edison's on-site project construction 51 i
10
O superintendent violates the spirit if not the letter of thd?very NRC case law cited by Edison.
LaSalle, supra.
The organiza-O tional structure violates both the spirit and the letter of 10 CFR Part 50, Appendix B, criterion 1.
Moreover, the evidence regarding Mr. Shamblin's conduct O
underscores the reason why the organizational structure is such an important regulatory concern.
The Comstock QA structure did not merely create a potential or theoretical problem.
Mr.
o O
Shamblin took advantage of his position to apply regular and direct production pressure on Comstock QC supervisors, who in turn transmitted those pressures to QC inspectors in the field.
O 2.
Edison Allowed Comstock To Implement Its QC Program In A Manner That Violated Criterion I.
The evidence recounted above of acts by Comstock supervision which abused, harassed, threatened and interfered g
with the effective performance of quality control inspection activities, as well as acts of unlawful retaliation against inspectors for their protected identification of quality concerns g
together form the basis for the widespread perception of harass-ment and pressure to compromise quality, acknowledged by Edison.
This perception was caused by a series of acts and omissions attributable to Edison and Comstock management.
These include l
the establishment of a flawed structure which failed to ensure l
independence from cost and schedule pressures and instead subjected Comstock quality control to the direction of the. site j
construction superintendent; who, in turn, impolse'd the stringent production demands represented by the need to e'liminate the 14,000 inspections backlog and the 100% quality' document review 52
'O
jO c
efforts; and further, the imposition of production demands by
]
s lO DeWald, Saklak, Simile, and others directly upon the Comstock QC i
inspectors through the threats of loss of a contract and jobs, denial-of overtime, transfer to undesirable assignments, threats l(3 and abuse, and outright termination.
All of these acts, which a
form the fabric of an atmosphere of production pressure, also evidenced Edison's and Comstock's managements values, emphasizing jo production over quality consideration.
The record is simply devoid of any serious or substantial models for quality communi-cated by Edison or Cr.e.v.3ck management.
O D.
The Massive Breakdown In the Comstock QC Department Was So Severe As To Distinguish This Case From Any Reported Licensing Decision.
i The conclusion that this record compels the license O
denial because of Edison's programmatic noncompliance with criterion I is mandated by Commission case law.
The interplay between an effective quality assurance program and this iO reasonable assurance standard is outlined in the Appeal Board's decision in Union Electric Company (Callaway Plant, Unit 2) ALAB-j 740, 18 NRC 343, 346 (1983).
The very existence of a quality 10 assurance program requirement recognizes that "in any project l
t even remotely approaching in magnitude and complexity the erec-J l
tion of a nuclear power plant, there inevitably will be some i(3 construction defects," and that " error-f ree construction" in the I
first instance is not expected.
The key, however, is that a 1
functioning and effective quality assurance program must promptly
!O identify and control the predictable construction defects so that they may be evaluated and, if necessary, corrected.
l io 53
- i i'
'O Thus, in examining claims of quality assurance deficiencies, one must look to the implication of lO those deficiencies in terms of safe plant operation.
Obviously, this inquiry necessitates careful
)
consideration of whether all ascertained i
construction errors have been cured.
Even if this O
is established to be the case, however, there may remain a question whether there has been a breakdown in quality assurance procedure of sufficient dimension to raise legitimate doubt as to the overall integrity of the facility and its F
safety-related structures and components.
A L
O demonstration of a pervasive failure to carry out
{
a quality assurance program might well stand in the way of the requisite safety finding.
Id.
The quality assurance flaws induced by harassment and O
production pressure at Comstock are of just such dimension.
In the context, then, of this case of harassment and production pressure contrary to the " authority and organizational O
independence" requirements of Criterion I, the pervasive and programmatic character of both the problem and its consequences raises such " legitimate doubt," (id), as to compel the denial of O
the license.
10 CFR Section 50.57.
The record of the Comstock
.QC department at Braidwood reflects both a programmatic, systematic and pervasive problem and a widespread and pervasive O
effect on the quality control inspectors whose freedom and independence has been sacrificed.
In no sense can either the nature of the problem or its consequences be casually dismissed O
as mere isolated occurrences in an otherwise effective and trustworthy program.
Instead, the massive and widespread nature of the quality assurance flaws reflected in this record distin-O guish this case from Callaway and all others.
O 54
O The record of Comstock at Braidwood is far different from and therefore distinguishable from the only developed record of O
harassment complaints on numerous quality control inspectors as reflected in the Licensing Board's decision in Duke Power Company et al.,
(Catawba Nuclear Station, Units 1 and 2), LBP-84-24, 19
- O NRC 1418 (1984).
Applying the Appeal Board's decision in Callaway, supra, the Licensing Board in Catawba concluded that "although, as one would expect, we find violations of the QA
.O program and Appendix B, we find no pervasive failure or breakdown.
On the contrary, we find that, on the whole, the Duke QA program at Catawba worked well."
19 NRC at 1434.
The Catawba
~O Licensing Board rejected intervenors' claim that the Quality Assurance organization lacked independence from the licensee's construction function (19 NRC at 1458-60); rejected assertions
- O that licensee action sought to discourage the detection and documentation of substandard workmanship by inspectors (19 NRC 1479-92); and concluded that isolated acts of harassment of
,0 l
inspectors by craftsmen in retaliation by supervision did not deter the inspectors from doing their job.
19 NRC 1513-32.
On the Braidwood record, however, a flawed organizational O
structure under which the Construction Superintendent oversaw l
l quality control activities, coupled with the production pressures to eliminate the massive inspection backlog produced numerous
- O acts of harassment and retaliation by QC supervision against QC inspectors, which caused an acknowledged widespread perception among those inspectors of harassment and pressure to compromise O
quality.
The isolated and non-detrimental quality assurance lapses found by the Licensing Board at Catawba are overshadowed lO 55
O by the programmatic flaws and widespread effects on QC inspectors at Braidwood.
g Facing a different source of uncertainty, the Licensing Board in Byron reached the conclusion which is compelled by the O
Braidwood record.
As explained in its Supplemental Initial Decision, Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), LBP-84-41, 20 NRC 1203 (1984):
O Our Initial Decision denying the license was based principally upon findings that the NRC Staff had determined that there were widespread failures among contractors at Byron to demonstrate in accor-ance with NRC requirements that there qual-ity assurance inspectors were properly trained,
.O qualified and certified.
Although no significant construction or hardware defects were discovered, our concern about possible deficiencies in inspec-tor competence precluded a finding that the quali-ty of work at Byron was satisfactory.
O Id,.
at 1206-07.
After hearing on remand the Licensing Board concluded that quality control inspector competence had been established, 20 NRC at 1212-13, and that there existed no further o
impediment to the grant of an operating license for the facility.
20 NRC at 1206.
The issue at Braidwood, however, is not one of mere competence; but, instead, is the very integrity of the quality O
control inspection program itself.
The flaws in the Braidwood quality assurance program are structural and programmatic in scope, and are simply not amenable to the limited response called O
for by the training and certification questions in Byron.
The Board in Byron, on remand, concluded that it was capable of drawing inferences regarding inspector competence from a O
sampling reinspection program.
In the face of the structural and programmatic failures to assure the independence of Braidwood QC
- O 56
.O inspectors from production pressures, and the widespread perceptions of harassment and pressures to compromise quality O
which resulted, the loss of integrity of the inspection program itself is simply not susceptible of resolution through means of the limited sampling inferences drawn from BCAP.
Whatever O
inferences Edison might offer based on the sample reinspection at Byron from the design evaluation of sample defects, no engineering evaluations of defects found at Braidwood can resolve the flaws in quality control program integrity here.
E.
In Response To The Overwhelming Evidence of a Criterion I Violation, Edison Must Undertake A O
Substitute Program That Complies With criterion.
These facts establish a programmatic failure to comply with the " authority and organizational freedom" requirements of
.O 10 CFR 50, Appendix B, Criterion I in the organization and imple-mentation of Comstock's quality control program for the safety-related electrical work at Braidwood.
This programmatic viola-
- o tion undermines the integrity of the quality control program at Comstock and represents a failure to establish effective perfor-mance of the quality assurance functions defined by Criterion I
o (a) assuring that the appropriate quality assurance program-is established and effectively executed and (b) verifying, such as by checking, auditing, and inspection, the activities affect-ing the safety-related functions have been correctly performed.
!O In addition, these violations also represent failures to assure compliance with the Appendix B criteria for " Inspection",
Criterion X, and " Corrective Action," Criterion XVI.
O What are the legal consequences of the programmatic violations of the Commission's quality assurance requirements?
-O 57
- O Integral to Edison's required quality assurance program for O.
construction at Braidwood is the performance of quality control inspections of activities affecting quality "to verify conformance with the documented instructions, procedures, and
- o drawings for accomplishing the activity."
Criterion X,
" Inspection".
Absent an effective quality control inspection program, Edison cannot establish, as required by Criterion XVI,
- O
" Corrective Action" that " conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances are promptly O
identified and corrected."
Such requirements must be met as a precondition to establishing the reasonable assurance required for licensing in accordance with 10 CFR Section 50.57.
O Having violated the strictures of Criterion I, resulting in a QC organization at Comstock under intense production pressure with an atmosphere of widespread harassment and pressure to
- O compromise quality, it is unavailing to Edison to suggest that, somehow, the quality control inspectors' work was unaffected.
i The integrity of the inspection product, that is, the conviction lO that defects and nonconformances have been promptly identified l
and corrected (or " reviewed and accepted," Criterion XV "Noncon-forming Materials, Parts or Components") cannot be established,
.O since the integrity of the quality control program itself is undermined in the absence of the required authority and organiza-tional freedom from production prssure.
As a matter of law, the l?
integrity of the product is dependent on the integrity of the inspection process itself.
It is simply inconsistent with the O
58
O Commission's regulatory scheme to suggest, as Edison does, that in spite of wrongdoing by Edison and contractor management for
- O which Edison is responsible, it should be permitted to claim that one is assured that all nonconformances are promptly identified and corrected nonetheless.
The integrity of an independent qual-ity control program is a legal precondition under the Commission's scheme to a reasonable assurance finding.
In sum, on the record evaluated thus far Edison has failed O
in its burden to demonstrate reasonable assurance that, within the electrical scope of work, safety related components and systems have been constructed in accordance with regulatory O
requirements in order that the facility may operate without endangering public health and safety.
10 CFR 50.57 Below we will turn to the additional evidence in this proceeding,
'O including opinion evidence by experts on behavior in the workplace and Edison's Braidwood Construction Assessment Program and PTL overinspection evidence as rebuttal.
These additional
'O sources of evidence further confirm the conclusion expressed here that the integrity of Comstock's quality control inspection program is undermined.
Finally, Intervenors suggest below a O
range of remedial measures available to evaluate, address and correct the programmatic discrepancies in the QA program at Braidwood.
O IV.
EXPERT TESTIMONY AND EMPIRICAL EVIDENCE REINFORCE THE PRESUMPTION THAT THE POISONED ATMOSPHERE AT COMSTOCK RESULTED IN ADVERSE WORK PERFORMANCE.
I O The regulatory scheme described above in Part III of this brief gives rise to a presumption that when a QA
-O 59
- - - ~ ~ -
- O organization is not independent as requiredein Criterion I, and O
when QC inspectors are subjected to production pressures in violation of Criterion I, adverse QC work performance will result.
Absent such a presumption, there is no justification for 43 making adherence to criterion I requirements a prerequisite to granting an operating license.
Thus, the Criterion I violations described above are alone sufficient justification to deny an
- O operating license.
The presumption of adverse work performance is not just a matter of law, but also of common sense.
Moreover, it is
!O substantially reinforced in this record by the testimony of the I expert witness industrial psychologists, as well as by empirical evidence from the reinspection programs and other Braidwood
'O rework programs, demonstrating that Comstock QC inspectors have overlooked thousands of discrepancies in the plant, a substantial portion of them notable.
- O
~
A.
The Expert Testimony.
Intervenors and Edison offered the testimony of experts in industrial and organizational psychology who provided expert 10 support for the presumed relationship between harassment and production pressure and the work performance of those under the influence of such forces.
(FF 701-712)
Although reliance on the 2 0 expert testimony is unnecessary to a judgement on this l
contention, it reinforces the significance of the presumption i
that a failure to comply with Criterion I independence
'O requirements can adversely influence the actual performance of quality control inspections and confirms that the widespread 60
,'O
O.
perception of harassment and pressure to compromise quality very g
likely led to erosion of the Comstock inspectors' work performance.
Intervenors' witnesses, Doctors McKirnan and Arvey, together with Edison's Dr. Hulin, are in agreement on what they acknow-o ledge as generally accepted principles of learning and behavior in the workplace.
(FF 702, 703, 709)
All agree that individuals' behavior in the workplace is shaped by a combination
- O of influences including " expectancies" or perceived likely rewards and punishments for various chosen behaviors.
In addition, behavior in the workplace and elsewhere is influenced
- O by the work climate or organizational values established by the observation of those in positions of power, such as supervisors and managers, as well as through the observation of the
!O consequences of behavior by one's peers (i.e., whether it is rewarded or punished). (Id.)
While all three of the social psychologists agree on a
'O general approach to understanding workplace behavior, Edison's Dr. Hulin parts company with Intervenors' Drs. McKirnan and Arvey as to the application of such principlec in the Comstock work-O place.
(FF 709)
Dr. Arvey opines that any firm conclusion as to actual erosion of work performance must depend upon a far more rigorous empirical study than was available either to him or was
- O available to us in this record.
To further study the phenomenon i
of work performance by Comstock inspectors, he urges resort to a variety of objective indicia or " behavior traces" as a source of
!O empirical data which may serve as a source of measure for the l
effects of harassment.
Nevertheless, Dr. Arvey confirms the l
O 61
O troubling char &cter of the limited picture available to him of the Comstock workplace.
(FF 702).
- O Dr. McKirnan stressed the important influences which organi-zational climate and values have on workplace behavior.
Dr.
.McKirnan urges us to interpret the inspector and supervisor O-interaction reflected in the memoranda of the Comstock inspec-tors' March 1985 NRC complaints by reference to three factors:
- 1) whether those such as DeWald and Saklak established models for O
QC inspector work performance through the values which they instilled by word and deed with respect to work quantity as opposed to work quality; 2) whether the models identified possess O
power in the organization to affect the experience of Comstock inspectors.
The power to fire, transfer, discipline or to affect pay through eligibility for raises and overtime are exam-
.O ples of power that can influence the modelling of inspector behavior; and 3) whether the models are understood as representa-tive and powerful in the organization or merely eccentric and
-O unrepresentative.
(FF 703-704)
Dr. McKirnan suggests that application of his expert frame-i work for understanding workplace behavior to the limited picture iO of Comstock reflected in the memoranda of the inspectors' NRC visit leads him to the strong belief that the organizational climate, values and modelling in the Comstock quality control O
department probably led to actual erosion in inspector work performance.
Like Dr. Arvey, Dr. McKirnan recognized the limited nature of his data and stated that a firm conclusion could not be O
drawn without a firm empirical study.
(FF 707)
O 62
13'
' Edison's Dr. Hulin, of course, while advancing the same generally accepted analytical approach to understanding work place
!O behavior, finds no evidence of influences that suggests erosion of inspector performance.
Edison distinguishes Dr.
Hulin's work from that of Dr. McKirnan on the basis of Dr.
lO Hulin's purported extensive resort to an empirical assessment of the Comstock workplace.
To the contrary, Dr. Hulin's treatment of his study of the Comstock workplace actually undermines the
!O credibility of his conclusion.
While his prepared testimony credits only the bright side at Comstock, the actual transcripts of his recent interviews with inspectors suggest a far more bleak
- O picture.
(FF 709-710)
The Hulin interviews, although conducted in the presence of company lawyers and a court reporter (hardly conditions lending
!O themselves to candid revelations of problems at the work site) turned up a remarkable number of comments confirming that the atmosphere of production pressure continues to influence Comstock
.'O..
inspectors in broader numbers than previously known and through periods of time much later than the events focused on in the hearings. Dr. Hulin's distortion of -- indeed, his attempt to
,iO ignore or conceal --
the data from these interviews casts doubt upon the credibility of his analysis. (FF 710-712)
Dr. Hulin's expert conclusion regarding QC inspector work
!O performance can be no better than the facts upon which it is i
based.
To the extent that Dr. Hulin has misrepresented or mis-understood the facts at Comstock, the volume of facts he iO considered enhanced the cost of his project far more than the value of his opinions.
O 63
- ~ -.,.,, - - -.. - -. -. - -.. -. - -. - - - -... -., _, -. -. - - - - - - -. - - -, -. -. -.. - - - -,..
O Finally, evidence was offered by Doctors Arvey and McKirnan O.
for Intervenors and Mr. Laney for Edison on the influences affecting inspectors' self-reporting of deficient inspection work.
Doctors Arvey and McK1rnan expressed the common sense j
O views that the volunteering of self-incriminating acknowledge-ments of known, improper inspection work is unlikely.
The fear of adverse consequences such as discipline or even termination (J
has an obvious deterrent effect on the admission of misconduct as serious as accepting rejectable work at a nuclear power plant.
(FF 702, 708)
Even Edison's Mr. Laney, who generally of fers
- O opinions from his experience as to the high levels of integrity he has observed among quality control inspectors as a class, acknowledges that one would be foolish to accept at face value O
the self-serving statements of one's subordinates without resorts to extrinsic evidence.
One would only expect such employees to tell the boss what he wanted to hear.
O Dr. McKirnan explained that inspector denials of inadequate workplace performance may be sincere, even if untrue.
Exposure to the poisoned atmosphere at Comstock may have eroded inspec-O tors' standards gradually but unconsciously; inspectors may interpret the reduced quality of work at Comstock as still acceptable since their anchor for quality has declined. (FF 708)
O Moreover, inspectors as proud as those described by Mr. Laney would be reluctant to admit even to themselves that their standards had declined.
- O But all this expert pronouncement really adds little to the common sense that can be employed to evaluate the testimony and O
64
iO.
the credibility of witnesses.
Neither we, nor this Board, need a 4
weatherman to know which way the wind blows.
It is clear that
'O most, if not all, of the inspectors who testified in this proceeding, were hourly employees employed by Edison's contrac-tor and serving on the Braidwood site at Edison's pleasure.
As f
in the case of former supervisor Saklak, Edison retained the contractual right to exclude a worker from the Braidwood site and for that matter, from all other Edison sites; and, through nega-
" O tive references, other employment in the nuclear industry as well.
Any statements against Edison's interest to Edison, Comstock Management, the NRC Staff or in public on the public O
record of this proceeding carry potential risks. This same influence likely acted upon even those no longer in Comstock's employ who depend upon favorable references for future employ-iO ment.
The Board should observe that not a single witness appeared unduly eager to volunteer facts critical of his present or former 20 employer, of Edison or of the industry in which he is employed.
Even though under subpoena, and sworn to tell the truth, it required not inconsiderable courage to speak truth to power.
The
- O QC inspector testimony in this proceeding as well as the state-ments of concern made by these inspectors earlier to their I
management, Edison's Quality First program or management, or the I;O NRC, must be understood in this light as mild and cautious criti-1 l
cisms likely understating the full and objective extent of the damage rather than exaggerating it.
P
\\
lO 65
O B.
The Empirical Evidence.
One inescapable conclusion from the CSR program is that the electrical construction populations at Braidwood are riddled with defects, many of them " notable."
The CSR inspectors found 3,578 discrepant conditions, of which no less than 1,057 O
(30%) were " notable," meaning that they reduced the capacity of the item by 10% or more.
Att. 2C (Kaushal-3), Revised.
Fifteen percent of all welds reinspected contained at least one O
discrepant condition.
(FF 826)
Even more striking, discrepancies I
were found in 86% of the cable pan hangers, 72% of the electrical equipment installation, 64% of the cable pans, 59% of the O
conduits, and 56% of the conduit hangers.
App. Ex. 181.
Indeed, even ignoring the conditions that Edison terms insignificant, notable discrepancies were found in 53% of the O
cable pan hangers, 43% of the equipment installations, 20% of the conduit hangers, 9% of the cable pans, and 8% of the conduits.
Id.
Two recurring categories of discrepancies were troubling O
enough that they prompted Edison to undertake comprehensive walkdown programs: absence of stiffeners in structural steel supporting electrical equipment and improper attachment of O
conduit to cupports.
Kaushal, Prefiled (ff. Tr. 13068) at 29-33; Kostal, Tr. 14365-66; Thorsell, Tr. 14367-68.
Although those raw numbers may not establish conclusively O
that Comstock QC inspector performance was unacceptably poor, they certainly demonstrate that it was far from perfect.
Al-though neither Mr. DelGeorge nor NRC Inspector Gardner ultimately O
concluded that QC performance was unacceptable, each of them expressed some discomfort over the total number of discrepancies.
O 66
O (FF 827).
At the least, those figures lend credence to the g
presumption of adverse work performance.
V EDISON'S REBUTTAL CASE FAILS TO ESTABLISH THE ADEQUACY OF COMSTOCK QC INSPECTOR PERFORMANCE OR THE SAFETY OF THE PLANT.
g In its rebuttal case, Edison concedes the principal poiat of Intervenors' direct case: that the Comstock QA organization was riddled with problems, including a widespread perception of
!(3 among QC inspectors of pressure to sacrifice quality for quantity.
Rather than tackle Intervenors' case head-on, Edison attempted on rebuttal to show, primarily through the results of g
the BCAP CSR reinspection program and secondarily through the results of the PTL reinspection program, that as an empirical matter, harassment and production pressures at Comstock did not
'o result in adverse work performance of QC inspectors or an unsafe plant.
The threshold problem with Edison's rebuttal case is the o
very notion that Edison may rebut proof of a Criterion I viola-tion by showing no adverse QC work performance.
That position is clearly at -odds with the " authority and organizational f reedom" O
requirements of Criterion I, which establishes objective criteria of independence and prohibits harassment and retaliation in any form and to any degree.
Those requirements are not voluntary;
- (3 they cannot be waived in favor of evidence showing acceptable performance in spite of failure to comply with Criterion I.
Edison's position is in effect that it is free to harass its (3
QC inspectors to meet production requirements as long as their work is not significantly affected.
In fact, Edison's emphasis
'O 67
O on design significance takes the argument even further.
If, as Edison suggests, it suffices to show that a plant is free of O
design significant defects, then it follows that a utility may obtain a license even though (1) it harasses its QC inspectors, and (2) the harassment causes poor performance (i.e., missed
.O discrepancies), as long as no overlooked discrepancies happen to be design significant.
That position makes a mockery of the law.
The heart of the NRC licensing regulations is that an O
effective and independent QA organization must identify, evaluate and, where necessary, initiate corrective action on all con-ditions that fall short of original design criteria.
The licens-
.O ing scheme equates safety with such an effective QA program; if safety could be established through minimal hardware sampling, then the QA program requirements would be superfluous.
- O Once it has been shown that a QA organization has failed to meet criterion I requirements, the only appropriate step is to fashion a remedial program that provides a reasonable substitute O
for effective first line inspections, endeavoring to identify and initiate corrective action on all discrepant conditions.
In l
fact, that is just the sort of approach Edison itself has taken
>O at Braidwood with respect to problems identified in quality documentation, mechanical equipment installation, and cable pan l
hanger configuration.
Once problems were identified in those
- O areas calling into question the quality of work and reliability of QC inspections, Edison instituted 100% reinspection programs to substitute for the unreliable first line inspections.
By O
Edison's own admission, BCAP is not such a program, it was never l
intended as a substitute for first line QC inspections.
I lO 66
- O In spite f.those reservations, we will address Edison's O
rebuttal evidence on its own terms in the sections below.
Part A describes fundamental problems with both the design and O
implementati n f the BCAP and PTL programs which not only render the results of those programs unreliable, but also establish that those results do not even address in a meaningful way the issue
!O f QC inspector performance.
BCAP was an adversarial litigation activity from the start, carefully controlled by Edison and its attorneys and violating many independence criteria of the Dingell lO letter.
Neither BCAP CSR nor the PTL program was designed to respond to allegations concerning QC inspector effectiveness, and neither program generated statistics that can even be used to jg measure QC effectiveness.
Moreover, the population from which the CSR sample was drawn did not include large portions of the electrical construction called into question in this record.
ig Thus, no conclusions were even drawn for much of the suspect work.
Part B explains why, additionally, the BCAP and PTL results IO are inadequate to establish plant safety.
The standard of "de-
)
sign significance" is so amorphous and so far below original acceptance criteria that it is at best a questionable substitute g
for safety.
Because the CSR sample was drawn from such a small portion of the electrical construction opoulation, no statistical conclusions about hardware quality can be drawn for most of the
!O electrical construction.
The sample size even for the electrical i
populations that were included in CSR was too small to give O
69 i
- O adequate assurance of safety.
And no statistical inferences can be drawn at all from the PTL sample results.
The only firm O
conclusion that can be drawn from the CSR and PTL programs with respect to hardware quality is that the plant contains a vest number of defects overlooked by QC inspectors.
O A.
Edison's Rebuttal Evidence Fails to Show That Comstock QC Inspector Performance Was Unaffected by Harassment and Production Pressure.
Although Edison offered the opinion testimony of Dr.
O Hulin and Mr. Laney concerning the effectiveness of inspector performance, Edison concedes those witnesses cannot provide definitive answers and that its rebuttal case must stand or fall iO on the empirical results from the reinspection programs.
App.
Prop. PID at 12.
BCAP was the focus of Edison's rebuttal case and clearly the principal evidence on which Edison bases its O
claim that production pressure and harassment had no adverse effect on QC inspector performance.
But neither BCAP nor PTL support Edison's claim of effective O
QC inspector performance.
The empirical rebuttal evidence tends to reinforce - rather than refute - Intervenors' claims.
1.
The Origins Of BCAP And Its Lack Of O
Independence From Edison Undermine Its Credibility.
Edison would have the Board draw comfort from the fact that BCAP was undertaken for reasons other than this litiga-O tion. Prop. PID at 92.
But the circumstances surrounding BCAP's adoption undermine, rather than reinforce, the credibility of its results.
Edison treated BCAP as an adversarial litigation O
project from the beginning, carefully controlling the product from start to finish.
O 70
- O The record reveals that the NRC required Edison to undertake BCAP in the wake of NRC findings of serious quality assurance
- g breakdowns at Braidwood.
FF 806-909.
Edison never publicly acknowledged the fact that BCAP was an NRC requirement, and
.O indeed, never even informed its BCAP director, Mr. Kaushal, why BCAP had been undertaken. FF 810.
Rather than arrange for an independent group to conduct
- (3 BCAP, Edison placed its own employees, including Mr. Kaushal, in charge and made them answerable directly to Mr. Wallace, the Braidwood Project Manager, who had cost and scheduling responsi-o bilities at Braidwood.
FF 803.
Edison's control extended to the design as well as the implementation of BCAP; Edison rejected a number of NRC recommendations to improve the BCAP design. FF 813.
l(3 It is undisputed that the BCAP Task Force -- dominated by and answerable to Edison employees -- does not meet the inde-pendence criteria of the "Dingell letter" or even BCAP's own O
standards of independence for the Independent Expert Overview Group.
FF 815-819.
That lack of independence is more than a theoretical concern, as the record evidence demonstrates.
Iron-
- O ically, the BCAP program itself was apparently the victim of the very sorts of production pressures that Intervenors claim plagued the Comstock QC department.
FF 821.
Those pressures are appar-IO ent in the limited BCAP sample size, the unrealistic original target completion date for BCAP, the complaints of forced over-time by BCAP engineers, and in the poor CSR inspector performance O
that prompted a suspension of inspections and that NRC inspector Gardner attributed to Edison production pressure.
Id.
O 71 1
O-BCAP's lack of independence is perhaps most strikingly high-lighted by the drafting process for the BCAP final report.
FF 0
819-820.- That 120-page report went through an incredible 30,000 or more pages of drafts.
FF 819.
Edison's attorneys partici-pated heavily in the drafting, and even claimed that drafts were O
attorney work products and thus protected from discovery.
Id.
Drafters were admonished by one Edison official to sanitize their language in order not to suggest problems at the plant or to O
arouse Intervenors' attention.
Id.
When the exhaustively edited final report was issued, it did not even contain basic figures and information that might reflect negatively on Edison, such as O
a calculation of the rate of discrepancies on an item basis or the trending analysis report of "Cate9 cry Z" defects prepared by Sargent & Lundy.
FF 820.
O The BCAP CSR program was hardly a mechanical task; it required exercises of judgment at every turn, with respect to such issues as the choice of a sample size, the choice of a confidence O
level to strive for, the scope of the sample, the choice of checklist items and acceptance criteria, setting inspection schedules, determining which observations were deemed invalid and O-out-of-scope, determining what would trigger sample expansion, calculating design significance and trending results.
All of those judgments were made by Edison and those working O
with Edison under the direction of Edison's site Project Manager, or Sargent & Lundy, Edison's architect-engineer, which had been responsible for the adequacy of the plant's original design and O
for evaluating and accepting departures from that design.
Sargent & Lundy thus had a vested interest in accepting its own O
72
-O past design and evaluative work.
- /
There is reason to question
.O whether any of those actors could exercise the sort of dispassionate judgment that NRC Chairman Palladino deemed essential in his correspondence with Congressman Dingell.
1 1
13 In sum, when the integrity of Edison's QA program was called seriously into question by the NRC, Edison chose to investigate itself, anc to do so by means of a program controlled by the 13 production side of its organization, the source of the pressure creating the problem under investigation.
Edison now asks this Board to reject overwhelming evidence of a serious QA breakdown
- O at Comstock in favor of the results of this partisan reinspection program conducted by Edison and written up by its attorneys.
We question how much credibility can be attached to that partisan O
effort.
2.
The BCAP CSR Evidence Failed To Adequately Address Intervenors' Claims And Revealed Nothing About QC Inpectors Performance Except That They Overlooked A Large Number of Defects, Including
- O Many Serious Defects.
Leaving the independence issues aside, and assum-ing that the BCAP program was well structured, well run, and O
produced reliable statistics, BCAP CSR utterly fails to prove the effectiveness of QC inspector performance.
Indeed, the CSR statistics cannot be used even to addresss the issue of QC O
inspector performance.
- /
For instance, when Sargent & Lundy evaluated cable pan hanger configuration discrepancies for design significance, O
it was required to judge its own previous pre-BCAP conclusion that there were no design significant discrepancies in the cable pan hangers.
Kostal, Tr. 14951.
- O 73
.O a.
The CSR Data Do Not Cover A Large Portion Of Time During Which Harassment And Production Q
Pressure Were Prevalent At Comstock.
The most striking shortcoming of the CSR program results is that they fail'to address the two-year period after O
June 30, 1984 during which numerous incidents involving harassment and production pressure (indeed the most serious such incidents) occurred.
FF 823-824.
Thus, whatever conclusions can
()
be drawn from the CSR results for the period prior to June 30, 1984, they offer no rebuttal at all to Intervenors' allegations arising from that time to the present.
O The most troubling incidents of harassment and perhaps the most intense production pressure occurred after June 30, 1984, which was not analyzed in the CSR and during which most elec-O trical items received QC acceptance.
FF 824.
The Comstock campaign to eliminate the backlog was reaching its most intense period in June, 1984.
During that month, DeWald received a O
memorandum from Shamblin emphasizing the urgency of eliminating the backlog and announcing weekly meetings for progress reports.
Id,.
The termination of inspectors Puckett and Seeders,' arguably O
the most egregious incidents of harassment in this extensive record, occurred in August 1984.
Id.
In January 1985, Saklak wrote a memorandum indicating that the production pressure on him O
was so intense that he would be forced to resign.
Id.
And the incidents continued into 1986, when both Greg Archambeault and Rick Martin were subjected to retaliation for raising safety O
concerns and resisting pressure to sacrifice quality for quantity.
Id.
Edison's failure to perform statistically C
74
O reliable sampling reinspections or design significance analyses of the Comstock QC inspections after June 30, 1984 renders its O
rebuttal evidence woefully insufficient to respond to Intervenors' claims or to provide reasonable assurance of plant safety.
O' b.
Because the CSR overinspectors did not examine the same attributes or apply the same acceptance criteria as the Comstock QC inspectors, the CSR results cannot be used to measure QC inspector effectiveness.
O The CSR overinspectors did not inspect the same packages as the Comstock QC inspectors.
Rather, the CSR inspec-tions covered only limited categories of the.QC inspectors' work.
O The following categories of attributes covered by the initial QC inspections were excluded altogether f rom the CSR samples (FF 831):
O 1)
Items or attributes judged unacceptable by the QC inspector.
2)
Items or attributes deemed not potentially design-significant.
O 3)
Inaccessible items or attributes.
4)
Non-recreatable attributes (such as weld pre-heating and cable pulling).
O 5)
Discrepant conditions of a type previously identified and addressed by Edison or one of its contractors on an existing non-conformance report or in some other fashion.
Nor did the CSR overinspectors necessarily employ the same accep-O tance criteria as the Comstock QC inspectors.
Kaushal, Tr.
13180.
Thus, the CSR overinspectors did not even pretend to O
recreate the inspections of the Comstock QC inspectors.
Not having looked at the same inspection packages nor having employed O
75
O the same acceptance criteria as the QC inspectors, the CSR inspectors did not assemble data from which one could draw O
precise conclusions concerning the performance of the first QC inspectors.
c.
The agreement rate statistics generated by O
the CSR program do not speak to the issue of QC inspector effectiveness.
The CSR results were expressed in terms of " agree-ment rates" and the incidence of " design significant" defects.
O Edison's rebuttal case depends heavily on its assertion that those statistics, especially agreement rates, are a reliable measure of QC inspector effectiveness.
E.g.,
DelGeorge, Prefiled O
(ff. Tr. 16740) at 12.
In fact, those statistics provide no measure at all of inspector performance.
They do not even ad-dress, much less rebut, the serious concerns about inspector O
performance raised in Intervenors' direct case.
Because those meaningless statistics are the very foundation of Edison's rebut-tal case, that rebuttal necessarily fails to carry the day.
'O l
Edison's agreement rates are by definition not a measure of the accuracy with which QC inspectors identified and reported accep-table and unacceptable conditions according to QC acceptance
'O criteria.
Rather, they are a measure of the proportion of ac-ceptable conditions to rejectable conditions, in the opinion of the overinspector, according to overinspection acceptance criteria
- O that may differ from the QC criteria, within the population of inspection points that the QC inspector found acceptable. */
- O
- /
Even that is an oversimplification, because the inspection points that are reinspected are only a subset of the QC-accepted inspection points.
See FF. 831.
- O 76
!O Edison was forced to concede that agreement rates taken' alone reveal nothing about QC inspector accuracy.
Edison con-cedes that variables affecting agreement rates in addition to i
inspector accuracy include (1) craft labor error rates, (2) 1 overinspector accuracy rates and (3) the nature of inspections
- O being performed
(" subjective" v. " objective"); unless one can assign specific values to those other variables, one cannot know the QC inspector accuracy.
FF 835.
Indeed, Edison does not have
'O and has never attempted to derive, specific values for either craft error rates or overinspector accuracy rates.- DelGeorge, Tr. 16822-23, 16841-42.
O Thus, by Edison's own analysis, the base agreement rates it presented reveal nothing about the QC accuracy level, with one exception:
as demonstrated by Intervenors' Exhibit 188, QC lO inspector accuracy rates are always far lower than agreement rates.
Thus, the Braidwood QC inspector accuracy rates are considerably lower than the 95% plu" figures presented by Edison.
O Depending on the craft error rate and the overinspector accuracy rate, an agreement rate above 95% could be achieved when the QC inspector accuracy rate is only 70% or lower, which even Mr.
O DelGeorge concedes would reveal unacceptable QC performance.
Tr.
16819.
Moreover, to the extent that agreement rates could have any O
meaning in and of themselves, it is important to note that Edison's CSR agreement rate figures are inflated in that they do not reflect.all defects found by overinspectors in the population O
of QC accepted items and attributes.
Some discrepancies found by overinspectors were deemed "out of scope" or " invalid" and thus 77 O
O not even counted in the agreement rates.
FF 831.
- Indeed,
- O the"invalld" observations involved in many cases the most troubled categories in the plant, where one might expect to find an in-creased proportion of overlooked defects.
For example, the record
.O reveals that because of widespread problems with cable pan hanger configurations, in spite of ongoing QC inspections, Edison planned a 100% walkdown of cable pan hangers and deemed all O
configuration discrepancies invalid.
Tr. 13312.
d.
The Agreement Rate Statistics Do Not Provide A Basis For A Trending Analysis.
Edison asserts that whatever the limitations of O
agreement rate statistics in drawing conclusions with respect to overall QC inspector performance, agreement rates are adequate to study trends in that performance over time and
~'O even to test whether specific acts of harassment resulted in adverse work performance.
DelGeorge, Tr. 16945-46.
The most fundamental error with that assertion is that, as O
demonstrated above, agreement rates are no measure of inspector performance.
FF 835.
Given the agreement rates for two separate periods of time, Edison, by its own admission, cannot determine O
or even approximate the QC inspector accuracy rate for either period.
It follows inexorably that Edison cannot make any com-parison between the levels of inspector perintmance in the two O
periods or discern any kind of trend.
Edison argues nevertheless, that trending inferences may be drawn from the lack of a major shift in agreement rates for the
- O periods before and after July 1, 1982 and August 1, 1983.
Edison FF 936.
Edison contends that it is unlikely that the craft error
'O 78
'O-rate and overinspector accuracy rate (two other variables affecting agreement rates) would change in synchronization with agreement rates so as to mask significant changes in the QC inspector accuracy rate.
Id.
But Edison, which bears the burden of proof on its rebuttal case, offered not a scintilla of evidence 10
~
to support its speculation about how the other variables might i
move.
Such speculation cannot substitute for evidence.
- /
Not only is Edison's trending analysis of agreement rates
- O based on pure speculation, it is also premised on two erroneous, or at least utterly unsubstantiated assumptions:
that QC inspector performance ~was acceptable prior to July 1, 1982 and,
,O that any effects of Comstock harassment and production pressure l
would necessarily malfest themselves as gross changes in the performance of all QC inspectors at all times.
FF 844, 846.
4
- O All of Frankel's, and virtually all of DelGeorge's testimony about trending addresses the issue whether agreement rates declined after July 1, 1982 or August 1, 1983.
DelGeorge O
concludes from the apparent absence of such a downward trend that the harassment and production pressure problems at Comstock lO
- /
Moreover, Edison's speculation completely overlooks an ad-l ditional variable in the record which could explain at least in part, the relative stability of agreement rates in the face of declining QC inspector accuracy:
the subjective /
objective makeup of the sample populations during various i
periods.
Edison's testimony was that the agreement rates
- <D for non-weld (objective) inspections generally run as much j
as 5% higher than agreement rates for weld (subjective)
I inspections.
FF 841.
Because the non-weld component of the CSR sample population increased dramatically after the second quarter of 1982, Edison's testimony suggests that all-else being equal, agreement rates should rise after that O
point.
For ought Edison has shown, the factor preventing the rates from rising as expected is a decline in QC accuracy rates.
That is at least as plausible as Edison's speculation.
See FF 841.
O 79 I,-
.. -.. ~...... _ _, -, -,
N]-.
f N
'O K,-
during 1982 and beyond had no adverse effect on OCs. inspector
\\
O performance.
That analysis assumes that there were no problems with production pressure, and no adverse work > performance at Comstock before mid-1982.
However,Edisonhresentednoevidence s
O to substantiate that assumption.
Indeed, the' lim'ited record evidence concerning the pre-1982 period at Comstock indicates that contrary to Edison's assumption, there were widespread O
problems at Comstock prior to July 1982.
FF 845.
A second crucial and unsupported assumption underlying
~ -
Edison's trending analysis is that any effects of harassment rJ_
O would manifest themselves as large swings in dhe performan~c~e-of all inspectors.
DelGeorge testified that for purposes of 'his analysis (and necessarily Dr. Frankel's asfwell) he assumed, O
based on Intervenors' contention and expert testimony, that any effects from harassment would affect "all work activ,ities within the QC department equally" (Tr. 16949) and would be "so gross and[
O so invariable" (Tr. 16989), perhaps on the order _o_f a 30% overall drop in performance (Tr. 16936), that they would;readily show up in data aggregated on a quarterly basis for all inspectors.
Tr.
O 16989; DelGeorge, Prefiled (ff. Tr. 16740) at 31-32; FF 848.
Even assuming that Edison proved an absence of the gross, universal shifts in QC inspector performance postulated by O
DelGeorge, it does not follow that Edison has roved a lack of ~
adverse QC performance as a result of harassmsnt.
Rather, Edison has shown at the most an absence of the most extreme possible O
manifestation of harassment -- an extreme which finds no basis in the testimony of either Dr. McKirnan or Dr. Arvey.
Bo th Dr.
O 80
O-McKirnan and Dr. Arvey specifically declined to speculate to what degree Comstock harassment would affect work performance.
FF 0
846. Neither Dr. McKirnan nor Dr. Arvey stated or implied that the work of all inspectors would be affected at all times, nor that work performance would necessarily be affected by as much as
- O 30%. */
In short, Edison simply concocted their extreme
,1. interpretation of Intervenors' case out of thin air.
'?
It does not inevitably follow from a widespread lO perception of production pressure that massive and universal
<s p
work performance will be evident at Comstock.
A fairer reading of Intervenors' contention and Intervenors' expert lO testimony, is that such a tangible and widespread atmosphere e
is likely to result in significant performance problems for more than just the direct victims of incidents of harassment.
O It would be entirely consistent with the McKirnan and Arvey s
testimony to find that not all inspectors suffered declines in performance, or not all at one time, or that the declines O:
in performance were on a smaller order than 30%.
Those sorts of declines in performance might not manifest themselves in aggregated figures such as those presented by Edison and yet O
would raise serious concerns about the integrity of the QA organization and the safety of the plant.
O
- /
DelGeorge's 30% figure is apparently based on a statement of Dr. Arvey taken entirely out of context.
Dr. Arvey testified that a 30% swing in performance would provide a clear indication of a problem; that is a far cry from stating that harassment would necessarily cause a swing that large.
In
()
fact, Dr. Arvey deliberately declined to speculate on the magnitude of the effects of harassment.
Arvey, Tr. 4453.
O 81 e
/
O l-DelGeorge's data, aggregated for all or most inspectors for
()
periods of three months or more, as he conceded is incapable of revealing such smaller changes.
DelGeorge, Tr.
16766-69.
For example, if an incident of harassment caused 10%
O of the Comstock QC inspectors to lower their performance by 30%
for a period ofna full month, an unquestionably serious and 1
unacceptable effect, the overall agreement rates for that quarter O
would'be lowered by only 1% or less, a result that DelGeorge would dismiss as insignificant.
Even to the. extent that DelGeorge's aggregated figures are c
O sensitive to less-than-universal changes in agreement rates, DelGeorge's testimony provides absolutely no analysis of such results.
His testimony on trending is purely conclusory.
Beyond O
his ultimate conclusion, DelGeorge fails to state with any specificity what th'e CSR data reveal and why they support his conclusion on trending.
In his testimony DelGeorge presented bar O
charts representing agreement rates for each quarter.
The manner of presentation of the charts obscures the precise agreement rate figures for each quarter, and DelGeorge does not provide those O
figures in the text of his testimony.
What is clear from the bar charts, if not the precise numbers, is that agreement rates did vary from quarter to O
quarter, sometimes by 5% or less (for aggregated inspection point data, Att. 2C-De1 George 1 and 2), and sometimes by as much as 50%
(for per weld data, Att. 2C-DelGeorge 3).
DelGeorge does not O
attempt to account for those quarter-to-quarter changes or explain why they are unrelated to incidents of harassment.
O 82
.-.~
10 Rather, DelGeorge offered only his bare opinion that any changes were not caused by incidents of harassment.
Such unadorned and unsubstantiated conclusions carry no persuasive weight, especial-ly coming from a highly interested party who has conceded that when he set out to perform his analysis, "it was my hope that I iO could demonstrate" that there had been no adverse effects attri-butable to harassment and production pressure at Comstock.
DelGeorge, Tr. 16759.
'O e.
Design Significance Is Not a Measure of Inspector Performance.
3 l
Mr. DelGeorge's testimony cited the lack of
!O overlooked design significant defects in the CSR sample as important evidence tending to show adequate QC inspector performance.
DelGeorge, Prefiled (ff. Tr. 16740) at 13; Tr.
]c[
16771-72.
However, Mr. DelGeorge's own subsequent testimony
+
establishes that design significance statistics are no measure at 4
all of inspector performance.
h3 As Mr. DelGeorge testified, the normal and proper basis for judging a QC inspector's performance is whether he effectively inspects to established acceptance criteria.
DelGeorge, Tr.
iO 16776-81.
Design significance is not such a criterion, or even a condition that can be identified by a visual inspection.
DelGeorge concedes that the design significance of a discrepancy h3 is not apparent in the field and can be determined only after the fact on the basis of data and expertise not available to the QC l
inspector in the field.
Tr. 16775-76.
Moreover, there is no f0 evidence that a defect which is more serious from an engineering standpoint is more obvious to the inspecto'r.
DelGeorge, Tr. 16786.
lO 83
= -.
10 f
Thus, " design significance" is a concept without relevance to the issue of inspector performance.
The significance of the
!O defects found or overlooked by an inspector is a fortuity, some-thing the inspector cannot.know or control and therefore some-thing which cannot be considered to his credit or his detriment.
- O An inspector could overlook half of the discrepancies in a sample j
without overlooking one which Mr. Kostal would deem design signi-ficant.
(Indeed, Mr. Kostal had difficulty imagining any defect
- O that he would consider design significant.)
That inspector's performance would nevertheless be unacceptable by any meaningful standard (see e.g.,
DelGeorge, Tr. 16819.)
!O f.
The Number Of Discrepancies Overlooked In The CSR Sample Reinforces Intervenors' Concerns.
j The only firm conclusion that can be drawn about IO inspector performance from the CSR program is that the Comstock QC inspectors overlooked thousands of discrepancies, including over a thousand notable discrepancies, in the items included in lO the CSR sample. C (Kaushal-3).
Well over t
half of the items in the sample contained discrepancies, and 15%
of all welds were discrepant.
FF 823.
In addition to those many
!O
" valid" discrepancies in the CSR sample, there are hundreds of other discrepancies not counted in the CSR data because they were
]
deemed invalid or out-of-scope.
Those numbers are certainly lO consistent with Intervenors' allegations, and may reinforce them.
Even Mr. DelGeorge conceded that some of the raw numbers would I
cause him concern if he had not studied the nature of the IO discrepancies.
DelGecrge, Tr. 16793.
lO 84
s jO 3.
Like-the CSR Data, the PTL Data Do Not Reveal Effective Insrector Performance.
l9 The PTL statistics share one fatal flaw with the
.CSR data - they are expressed in terms of agreement rates, which are no measure of inspector performance.
That fact alone renders CF the PTL evidence irrelevant to the central issue in Edison's rebuttal case.
Moreover, the PTL statistics are inherently unre-liable because the PTL sample is not a probability sample and h3 thus does not permit statistical inferences to the population i
from which the sample was drawn.
FF 852.
The PTL trending conclusions drawn by DelGeorge and (to a iO very limited extent) Frankel also suffer from the same defects as the CSR trending analysis: the use of agreement rates, the'unsup-ported assumption that Comstock QC inspections were effective
!O prior to July 1982, and the unsupported assumption that the only relevant inspector performance effects are massive swings in performance for all inspectors.
lO Indeed, the trending testimony of DelGeorge and Marcus sharply. reveals the limitations of Edison's theory on trending.
The PTL data reveal dramatic swings in agreement rates from month
!O to month, including eight months in which overall agreement rates 4
were deemed unacceptable.
FF 853.
Marcus and DelGeorge explain away those poor months in terms of poor individual inspector O
performance.
Indeed, Marcus and DelGeorge concede that 19 of 100 inspectors in the PTL sample achieved unacceptable agreement rates for the entire period.
Id.
But almost without exception, O
they fall to answer or even discuss the most basic questions: why O
as
iO those individuals performed so poorly and why harassment or production pressure was not considered to be a cause.
!O Although De1 George and Marcus claim to have examined the individual cases for their relationship to incidents of harassment, they fail to explain-the basis for their conclusions.
O Some explanation is essential, because Intervenors' Exhibit 191 shows that incidents of harassment were occurring during the times when the poor performance occurred.
Moreover, by Edison's
- O own admission, a pervasive atmosphere of production pressure reigned at Comstock during that period.
Without more, a causal connection can be inferred.
~O But DelGeorge and Marcus fail to provide more.
Their analysis begs the question.
Which incidents of harassment did DelGeorge examine when analyzing the poor performance of an O
individual inspector?
How close in time were they to the poor performance under scrutiny?
What assumptions were made about how l
l soon the effects of harassment would manifest themselves?
Did
'O they consider that harassment of one inspector might result in poor performance of another inspector who was not involved in the j
incident but was aware of it?
DelGeorge and Marcus answered none lO l
of those questions, and their conclusory opinions thus carry no weight.
- /
We are given only the conclusory opinions of interested Edison witnesses.
- O 1
l
- /
Moreover, DelGeorge and Marcus did not even pretend to exa-mine individual performances within the 34 months when over-all agreement rates were deemed acceptable.
There is no O
reason to assume that no individual performances within some of those months were unacceptable, given that some 19 out of 100 inspectors achieved unacceptable overall agreement rates.
O 86
to In short, the PTL data and statistics raised more questions O
than answers about QC inspector performance.
PTL certainly provides no basis for concluding that QC performance was effective.
i g B.
Edison's Design Significance Statistics Fail To Provide Reasonable Assurance That The Plant Is Safe.
Edison's additional rebuttal argument seems to be that
- O even if it failed to show that Comstock QC inspector performance was effective, the " design significance" statistics show that the plant is safe.
But Edison's design significance evidence is
!O insufficient to constitute reasonable assurance of plant safety.
The principal weakness of the design significance data is of course that it applies to only a small portion of the electrical O
population; no conclusions are drawn for the troubled period from June 1984 to the present.
Moreover, design significance is an inappropriate licensing
'O standard.
Finally, although Edison's 95%/95% confidence and reliability intervals are superficially reassuring, the " design I
significance" standard is so amorphous, and the conclusions O
Edison was able to reach about design significance so limited, that the design significance statistics fail by a significant margin to provide reasonable assurance of plant safety.
- O 1.
Design Significance Is An Unacceptably Lenient, Amorphous Standard.
Even if an applicant were permitted to obtain a
- O i
license in spite of the absence of an effective and independent QA organization, upon a showing that hardware quality was accep-lO 87
O table, there is reason to question whether as a logical matter
" design significance" is an appropriate standard by which to
- O judge hardware quality.
The standard of design significance is a
" moving target."
Sargent & Lundy exhibited a remarkable ability to define any defect as non-design significant; none of the 1057
- O notable defects in the CSR sample were judged design significant.
]
As Mr. Kostal's testimony made clear, any calculation tending to show that a defect was design significant was " refined" over and 10 over until the affected component achieved a passing grade.
Sargent & Lundy had no shortage of refinement techniques to calculate a passing grade for any item.
FF 855.
Indeed, on 10 cross-examination, Mr. Kostal was hard pressed even to imagine a defect, however severe, that he would consider design signifi-cant.
Id.
In light of Mr. Kostal's testimony, it is difficult
- O to draw much reassurance at all from the absence of one of these mythical defects in the plant.
is clear from the CSR program that the plant is riddled It iO with defects overlooked by QC inspectors, including many
" notable" defects.
The CSR reinspections identified 3578 defects in the sample.
Well over half of the items were found to contain
- O discrepancies, and a remarkable 8.9% of items in the sample l
contain notable discrepancies.
FF 826.
Because Edison insists that the CSR sample results may be extrapolated to the entire
-O population, it is fair to assume that the electrical construction categories at Braidwood contain many thousands of unidentified, unrepaired discrepancies including many hundreds or thousands of
- O i
unidentified notable discrepancies.
Thus, the plant falls well below original acceptance criteria.
iO 88
- 0 Edison justifies licensing such a defect-riddled plant be-j) cause of the generous design margins in a nuclear plant such as Braidwood.
But is it enough to assert that a plant is designed with conservatisms and that the defects found do not reduce any
- ()
item's capacity unacceptably?
Nuclear plants have generous de-sign margins for a reason.
The margins are designed in antici-pation of uncertainties in operation and unforeseeable problems Q) and stresses.
The NRC would presumably not license a plant without significant design margins and conservatisms.
And yet, the logical extension of Edison's argument is that a plant could g
be licensed even though it lacked, due te defective construction, any design margin at all.
Moreover, Sargent & Lundy performed @no evaluation to determine the significance of the aggregation of Lg those defects.
It is possible that although no defect in and of itself rises to critical level of design significance, it may be that the mass of defects together does so.
The record is silent g
on that point, and doubts on such an issue must weigh against Edison.
2.
Edison's Design Significance Conclusions Are Too Limited To Provide Reasonable Assurance Of Plant
- O Safety.
According to Edison's own testimony, the CSR program was not adequately designed to respond to the problems identified l<3 in Intervenors' testimony with the levels of confidence normally l
required in the industry.
l Three design features of BCAP stand out in this regard (FF l O 812):
1.
Edison's witnesses emphasized that BCAP was designed as a quality confirmation program.
Edison began with the l
89 lO i
t
O assumption that construction quality at Braidwood was good, and that no significant problems existed.
- Kaushal, P.
5.
O 2.
BCAP was never intended to be a substitute for comprehensive, first-line QC inspections.
Rather, the BCAP design was based on the assumption that the QC program was functioning adequately.
BCAP was envisioned simply as an extra layer of confidence.
O Kaushal, pp.
5, 17.
3.
BCAP was not designed to look for isolated hardware problems however severe they might be.
Rather, the CSR was designed to look only for recurring, programmatic design significant discrepancies.
Kaushal, pp.
3-4.
O Those three BCAP features dictated the confidence and reliabilty intervals chosen by Edison.
FF 812.
Kaushal made it clear that 95% confidence and reliabilty intervals were O
considered sufficient only because Edison assumed acceptable quality construction work and QC performance.
Moreover, Kaushal justified the 95% levels on the basis of Edison's desire to seek O
only programmatic defects:
"If any such construction problems were to exist, I would expect them to produce recurring construc-tion discrepancies which would surface at least once and perhaps O
several times" in a sample large enough to support statistical judgments with 95% confidence and reliability.
Kaushal, p.
16.
Kaushal contrasted " confirmation" programs such as BCAP with O
the more stringent " verification" programs that are necessary when there is reason to suspect problems in construction or quality control.
Tr. 13079-81.
Known or suspected problems in O
specific areas of construction often lead to 100% reinspection of the suspect area.
Kaushal testified that identified or suspected problems had led to 100% reinspections at Zimmer, Marble Hill and O
Comanche Peak, among others.
Tr. 13083-88.
Kaushal does not consider 100% reinspections " unreasonable" when problems crop up.
O 90
O Indeed, Kaushal acknowledged that even at Braidwood, Edison has q) conducted several 100% reinspections of subpopulations in which problems have been identified, including quality control documen-tation, installation of safety-related mechanical equipment, and 33 cable pan hanger configuration.
Tr. 13089-93.
Because Edison offers BCAP in rebuttal to Intervernors' direct case, Edison must show that BCAP can respond adequately to the direct evidence.
However, to the contrary, Edison concedes O
that BCAP was not designed to respond to Intervenors' claims in these hearings.
FF 812.
O Indeed, it follows inexorably from Kaushal's testimony that BCAP is not even the type of program that could respond to those claims or that the industry would accept as an adequate response.
jg The direct case reveals massive problems in Comstock's QA organization that raise serious questions about the adequacy of QC performance.
According to Edison's own scheme, a proper
!g utility response to such concerns would be a verification program, perhaps involving 100% reinspections for all work called into question, rather than Edison's BCAP confirmation program.
i lO The CSR sampling fell short of these " verification" standards in at least two respects, by relying on minimal sample sizes appro-priate only for confirmation and by failing even to sample large g
portions of the electrical population (all work QC inspected and accepted after June 30, 1984) that were called into question in Intervenors' direct case.
J O
The design significance evidence presented by Edison is so limited that it cannot possibly satisfy Edison's burden of prov-
'O 91
)
ing the plant safe in spite of the Comstock QC breakdown.
The 95% confidence and reliability intervals by which Edison ex-
)
pressed its design significance conclusions belie the limited scope of the design significance analysis.
Those statistical conclusions apply to only the small portion of the electrical
)
construction work from which the CSR sample was drawning items QC inspected and accepted prior to June 30, 1984, minus inaccessible, out-of-scope, invalid, and non-recreatable attri-
)
butes.
FF 823-824.
s.
Only some 24% of the electrical construction was completed by June 30, 1984 (Intervenor's Exhibit 145), and not even all of
)
those items and attributes were included in the CSR sample popu-lation.
Id,.
Edison's 95%/95% confidence and reliability figures mean only that Edison is 95% confident that 95% of the CSR popu-
)
lation sample (less than one-fourth of the electrical population) is free of design significant defects.
Edison can thus draw no statistical conclusion at all with respect to the three-fourths
)
of the electrical work not included in the CSR, or with respect to 5% of the work that was included in the CSR sample.
With respect to the overall electrical population, Edison's confidence
)
and reliability figures can thus be expressed as 95%/19% -- 95%
confidence that some 19% of the plant's electrical work is free of design significant defects.
That is precious little reas-
)
surance of safety in the face of the overwhelming evidence of production pressure problems at Comstock.
)
)
92
VII.
REMEDY.
The requirements of Criterion I are non-waivable.
The
.O
" reasonable assurance" requirement of 10 CFR Section 50.57 cannot be satisfied without compliance with Criterion I.
Thus, Edison can cure a finding of an inadequate quality assurance program "O
only by providing a reasonable substitute for first-line inspections that itself complies with Criterion I and the requirements of Appendix B.
<O Such a program could of course not be a perfect substitute for Appendix-B-mandated first-line quality assurance.
In-process inspections could not be recreated and an alternative to
.O destructive inspections or those involving inaccessible items may be available, as suggested by Appendix B, criterion X, or such inspections may be performed at a less-than-100% rate, if Edison
.O could demonstrate by alternate methods that such items are acceptable.
Indeed, 100% reinspection even of accessible items may not be necessary in all cases, if Edison can reasonably
- O demonstrate the acceptability of a lower level of confidence.
Nevertheless, a remedial program would, unlike BCAP, have to comply with basic Criterion I requirements.
In particular, O
unlike BCAP, it would have to be comprehensive, covering all types of inspection activities called into question, for all construction categories, and for the entire period of time during
'O which the Comstock QC organization fell short of Criterion I requirements.
Secondly, unlike BCAP (and the Comstock program),
the remedial program would have to be independent of oversight or
.O control by Edison officials charged with cost, production and scheduling responsibilities.
- O 93
l lo l
Any remedial plan to address the programmatic quality
()
assurance flaws at Comstock must be the subject of Licensing Board review and approval at the design, implementation and evaluation stages; subject, of course, to a full opportunity for
()
the parties to participate and be heard in the protection of their interests and those of the affected public.
()
CONCLUSION
{
For the foregoing reasons, Intervenors respectfully request that Applicant's License to operate the Brai,dwood Nuclear Station l
C) be denied.
I L
h.'ja7,1.~.'s Robert L. Jones, Jr., One of the Attorneys for Intervenors Bridget Little Rorem, et al.
O Robert Guild Robert L. Jones, Jr.
Douglass W. Cassel, Jr.
Business and Professional People O
for the Public Interest 109 North
Dearborn Street,
Suite 1300 Chicago, Illinois 60602 (312) 641-5570 0
February 3, 1987
'O O
O 94