ML20236A834
| ML20236A834 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 10/21/1987 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#487-4689 OL, NUDOCS 8710230168 | |
| Download: ML20236A834 (100) | |
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! TRANSCRIPT OF PROCEEDINGS UNITED STATES NUCLEAR REGULATORY COMMISSION I ATOMIC SAFETY AND LICENSING APPEAL BOARD PANEL In the Matter of: )
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COMMONWEALTH EDISON COMPANY ) . .
BRAIDWOOD STATION, UNIT NOS ) Docket Number 50-456 OL '
1 AND 2 ) 50-457 OL i
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- Pages: 1 through 100 Place: Bethesda, Maryland Date: October 21, 1987 Heritage Reporting Corporation 0
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Washington, D.C. 20005 (202) 628-4888 8710230168 871021 PDR ADOCK 0500 6
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- 7s 4 k- NUCLEAR REGULATORY COMMISSIO3 ATOMIC SAFETY AND LICENSING APPEAL BOARD PANEL In the Matter of: :
- Docket Numbers 50-456 OL
-COMMONWEALTH' EDISON COMPANY- : 50-457 OL-BRAIDWOOD' STATION, UNIT'NOS. : ;
1.AND 2- : j East West Towers-Conference' Room, Fifth Floor 4350 East West Highway Bethesda, Md.
Wednesday, October 21, 1987 The Panel convened, pursuant to notice, at 10:00 ;
a.m.,.for the purpose of oral argument in the above-entitled matter.
PANEL MEMBERS:
4 -s -
HONORABLE ALAN ROSENTHAL ;
s HONORABLE HOWARD WILBER HONORABLE REED JOHNSON <
Administrative Law Judges
. APPEARANCES:
On behalf of the Interveners:
ROBERT GUILD, Esquire 314 Pall Mall Columbia, South Carolina 29201 On behalf of the Applicants (Commonwealth Edison-Company):
JOSEPH GALLO, Esquire -
Isham, Lincoln & Beale 1150 Connecticut Avenue, N.W.
Washington, D.C. 29201 PHILIP P. STEPTOE III, Esquire Isham, Lincoln & Beale Three First National Plaza 1 Chicago, Illinois 60602 O
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APPEARANCES (Continued) . l On behalf'of NRC Staff:-
GREGORY ALAN BERRY, Esquire i
-EDWIN'J.REESE,-Esquire !
Office of General Counsel Nuclear Regulatory Commission-Washington, D.C. 20555 f
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.! g V 1 PROCEEDINGS f 2 JUDGE'ROSENTHAL: Good morning. This Board is
'3- hearing oral argument today on the appeal of interveners 4 Bridget Little Rorem, et al., from the Licensing Board's.May 5 -19, 1987 concluding partial initial decision which authorized L 6 the issuance of operating licenses for the two units of the L 7 Braidwood Nuclear Power Facility.
8 The argument is governed by the terms of our 9 September 3' Order. As provided therein, each side will.have 10 one hour for the presentation of argument.
11 If they so desire, the Appellants may reserve a 12 reasonable portion of their time for rebuttal.
- 13. As also stated in the Argument Order, counsel may 14 assume that the members of this Board are generally familiar 15 with the Decision under appeal as well as with the appellate l 16 positions of the parties as developed in their briefs.
17 For this reason, no counsel need or should engage in 18 an extended discussion of the background of the controversy.
19 Rather, each participant should proceed directly to the heart 20 of the issues raised by the appeal.
21 I will now request counsel to identify themselves 22 formally for the record. Mr. Guild?
23 MR. GUILD: Yes, Your Honor. My name is Robert Guild 24 of Columbia, South Carolina. I appear for the Interveners-25 Appellants.
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5 1 : JUDGE ROSENTHAL: Thank you, Mr. Gui1d. And Messrs'.
2 Gallo and:Steptoe..
L -3 : MR. GALLOs. Thank you,.Your Honor. Joseph.Gallo, H 3 4' 'Isham,' Lincoln's Beale, Washington,.D.C., representing' -l 5 -Commonwealth Edison Company. To-my.right is my; partner, Philip 6 Steptoe.
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7 JUDGE ROSENTHAL: Very good. .And Mr. Berry.
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~8 MR.-BERRY: Good morning,-Your Honor. My name is !
1 9 Gregory Berry.- I'm here on behalf of-the NRC staff. With me ~ l 10 today on my right~is the Deputy Assistant GeneraloCounsel, i
11- Edwin J.-Reese. ;
i 12 JUDGE ROSENTHAL: .Thank-you, Mr.-Berry.
Now, do I- l 13 assume correctly that there has been an equal division of the 14- time on the Appellee's side of the case, between'the Applicant i i
'15 and the Staff?
16- MR. GALLO: That's correct, Your Honor.
17 MR. BERRY: Yes, sir, Your Honor.
18 JUDGE ROSENTHAL: All right. Now, Mr. Gallo, would. j 19 you tell us how you and Mr. Steptoe have divided your 30 l 20 minutes and which one will go first?
21 MR. GALLO: I will proceed first, Your Honor. Mr. 'l 22 Steptoe will address the reinspection program issues, that is, 23 BCAD and the PTL issues as they apply to the reinspection 24 . program and the evidence that was elicited in this case. I!
25 will address the balance of the issues. And I will go first. ,
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s 1 EJUDGE ROSENTHAL: All right. And do you have.any l 2 idea as to how you would like to see the 30 minutes divided 3 between the two of you?
4 'MR. GALLO: I'm just assuming that we'll split it-5 evenly.
6 JUDGE ROSENTHAL: All right.- Well, we'll see how 7 thatfgoes. All right, Mr. Guild, we'll hear from you. ;
1 8 MR. GUILD: Yes, Your Honor. If it please the' Appeal 9 Board, I would ask to reserve 15 minutes of my total time-to l 4
10 reply, if necessary, l i
11 JUDGE ROSENTHAL: Would you please use the rostrum? i 12 MR. GUILD: Yes, sir.
13 May I reserve that time?
14 JUDGE ROSENTHAL: Yes.
15 MR. GUILD: Members of the Panel, the question that I 16~ would ask you to keep in mind that we would-like resolved on ,
a 17 this record, that we think is the center of this appeal, is l l
18 whether or not the Commission's qua.lity assurance requirements 19 to NCFR Part 50, Appendix B, particularly the programmatic 20 requirements contained in Criterion 1, mean what they say they 21 mean, mean what this: Commission expressly stated when they 22 promulgated those regulations. Or, if in fact, they're simply i
I 23 an empty rhetoric.
f- 24 If they are only empty rhetoric, we ask you to send a I 25 very clear message to first the work force in the nuclear l
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.'ndustry,: including thoseLat.the.Braidwood Station, who i
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sacrificed theiricareers,.who, withJintegrity and a. lot of i 1
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-courage sought'to enforce.those-regulations, to their 1 4- ' detriment, and more generally.we'ask you to send a clear s1 5
~ message. to the publicithat the confidence- that they' have in the construction of nuclear. power plants which is founded on a o . 7
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comprehensive quality assurance program and: strict adherence 8 thereto, should'not be a comfort to'them.
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JUDGE ROSENTHAL ' Excuse me, Mr. Guild, but isn't the.
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- ultimate question'before us whether as a result of alleged.-- '
'11 and I stress.the word-at this point alleged -- harassment and; 12 intimidation of quality control inspectors, there'is a lack of .
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reasonable assurance that this plant was safely constructed?
( l'4 MR. GUILD: No, sir,:there is no question about the 15 fact. The fact is conceded, Your Honor. And that is that the i 16
' work force, the quality. control inspectors who implement
..17 Criterion 1 of the Commission's quality assurance regulations 18 understood, believed, perceived and we contend, acted under the 19 belief that there was improper production pressure upon them 12 0 imposed by their --
21 JUDGE ROSENTHAL: You said acted under the belief. I 22-was under the impression and you can correct me if I am wrong, 23 that these inspectors who testified expressly denied that they j
- 24- had allowed this perception of intimidation and harassment to
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1 their duties. l 2 Am I-correct about that?
3 MR. GUILD: You're not, Your Honor.
4 JUDGE ROSENTHAL: They didn't testify that, or what 5 inspector testified that he had allowed the perception of 6- harassment or intimidation to interfere'with the performance of 7 his duties?
8' MR. GUILD: All inspectors who testified acknowledged.
9 that they perceived and understood that Commonwealth Edison j 10 Company had improperly pressured their management, the L.K.
11 Comstock Company, and that they acted under that pressure.
12 Now, Judge, no inspector, and this is fundamental to 13 Criterion 1, no inspector ought be put in the position of 14 having to choose between doing his or her job and responding to ;
15 the pressure to expedite cost and schedule considerations.
16 That's the point of Criterion 1.
17 JUDGE ROSENTHAL: Maybe I misunderstand you, Mr. '
18 Guild. But what inspector stated on the record that he had >
19 failed to perform his assigned responsibilities conscientiously i 20 and diligently because of the perception of harassment or 21 intimidation?
22 MR. GUILD: That question is irrelevant, Judge. It's 23 an improper question to ask and an improper question to 24 consider by this Board or by the Licensing Board, where the 25 fundamental question under Criterion 1 is whether the applicant l l
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y 1 II ~1 has maintained ltheir obligation to assure.that the persons who y '2 are charged with implementing a quality: assurance program are; 3 sufficiently free of cost-and schedule pressure'so that'they-4 may.do their quality control. job.-
5 JJUDGE.ROSENTHAL: .The Licensing Board found~1n.this 61 case that there was not improper. pressure brought.-to bear. Ar. I correct about'that?'
'7 8' MR.' GUILDS..No,Lsir.
9 . JUDGE ROSENTHAL: The Licensing Board'found'that
'10 there was improper. pressure?
11 JUDGE ROSENTHAL: I'm talking about the' majority.
-12. MR. GUILD: The majority of the Licensing Board found.
13 that in a number of instances, even_the majority found that
'Comstock management had stepped over the line and exerted 14 15' improper pressure.
16 They declined to find that there were specific acts
-17 of harassment or. retaliatory treatment.
18 The minority, the Chairman, found that.there indeed 19 was systematic and improper-pressure imposed by in turn Edison, 20 on Comstock management, Comstock management'on their own !
21 quality control inspectors. And that that improper production j 22 pressure had the effect that improper pressure is presumed to 23 have by the Commission's own regulations, Criterion 1, and by j 24 the Commission's own regulations 50.7.
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25 JUDGE ROSENTHAL: But the minority member if I recall
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(). 1 correctly, did not come to the conclusion on the basis of this 2 . asserted improper pressure that the license should be denied.
3 MR.' GUILD: Well, sir, that we think is the result 4 that is compelled by his conclusion that there was improper 5 pressure. And we believe it's the result that.is compelled by 6 the record, and we believe it is the result that is compelled 7 if this Board is to apply Criterion 1 by its express terms.
8 If you don't mean to apply Criterion 1, let me ask 9 this Appeal Board to state in unequivocal terms that it does 10 not mean what it says.
i 11 JUDGE ROSENTHAL: Wait a minute. Even-if there is a 12 violation, of a criterion, it doesn't necessarily follow does 13 it that the plant was improperly constructed? You have to
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14 establish that there is some link between the asserted 15 violation of the criterion and the manner in which this plant 16 was built.
17 MR. GUILD: That's not our burden, Your Honor, if I 18 may, I don't believe it is ours.
19 JUDGE ROSENTHAL: But certainly when the Applicants 20 came forth with, among other things, a reinspection program, 21 didn't that satisfy their burden of establishing that whether 22 or not there was a violation of Criterion 1, whether or not 23 there was some improper pressures brought to bear, that none 24 the less when push came to shove, as these inspectors l 25 testified, they had done their job properly?
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'. 4 11-p 1 lMR.' GUILD: Absolutely not, Judge.. If I may, if 2: you'll indulge me'a moment to establish my train of thinking,
-3 Criterion 1 says that the presumption behind the quality.
4 assurance-program is that applicant's own people or their 5 contract people relied upon to perform quality assurance and 6 quality control' inspections will. identify nonconforming.
s , 7- conditions, those defects out there, so that, pursuant'to. H
'8 additional aspects of the QA program, they can be evaluated and ,
9 corrected. That's fundamental.
10 And Criterion'1 explicitly says that such quality L 11, . assurance people must have. sufficient authority.and l
L 12 organizational freedom, sufficient independence from cost and 13 schedule pressure, that they can do three things identify 14 quality problems, initiate, recommend, and provide solutions 15 and verify the implementation of those solution.
16' JUDGE WILBER: Is there anything in the record that 17 says they did not do that?
18 MR. GUILD: Well, that exactly is the point, Judge.
19 When you violate Criterion --
- 20. JUDGE WILBER: Tell me where in the record they did
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21 not do that. Show us the testimony where they did not do 22 exactly what you were saying they were supposed to do.
23 MR. GUILD: Your Honor, it turns the design of a 24 quality assurance program on its head to ask interveners to l 25- provide this Commission evidence of where the defects are. The
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~ 12 presumption of a quality assurance program is that a. quality 1 1 2 ' control ~ inspector will have.the freedom to identify _those 3- defects.
4 . JUDGE ROSENTHAL: You are claiming though,'I think 5 what Mr. Wilber has in-mind is you are making a claim.here that 6 Criterion 1 was violated.
7 Now what specific evidence'are you pointing to:inlthe 8 record that establishes that that criterion was violated?
9 MR. GUILD: Well,.if I may elaborate on my argument 10 'and complete this train of thought.because you won't have my l
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l 11 answer unless I'm allowed to do that, Judge.
l 12 The-position of the Interveners is that there is an l 13 acknowledgement on this record by the parties that was the 14 foundation for looking into the reinspection programs in the 15 firet instance and acknowledgement by the parties to quote the 16 Applicant that there was a widespread perception of improper 17 production pressure and harassment on the part of quality 18 control inspectors by --
19 JUDGE ROSENTHAL: But inspection doesn't necessarily 4 20- establish that there has been a violation.
21 MR. GUILD: It does indeed, Your Honor, and if I may, 22 what is the point of Criterion 1 except to say that the
[ 23 Applicant, a licensed Applicant for a Commission license, has
' 4 24 the duty to provide sufficient independence and authority to a 25 quality control inspector so that that inspector at least that O
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(/ 1 inspector as a group, widesgread, is the admission here, those ;
2 inspectors as a group understand, believe, perceive that they 3 have the freedom to do their job of identifying defects.
l l 4 JUDGE ROSENTHAL: Where in the record is there a 5 concrete indication that would undergird a legitimate 6 perception on the part of these people that they didn't have 7 that-independence?
i 8 MR. GUILD: Let's turn to it, Judge. Our position is 9 that it's conceded that there was-a widespread belief, i
10 understanding, perception --
l 11. JUDGE ROSENTHAL: I'm not interested in whether there i 12 is a belief. I want to know what did this utility do or what 13 did Comstock do that would have given rise to a legitimate 14 perception that the independence was lacking and that they darn 15 well better decline as it were to perform their jobs properly?
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16 MR. GUILD: I'll reiterate my point once more so that 17 the record will be absolutely apparent. This Board should and 18 must act on the concession that there was a widespread 19 perception of a failure to comply with criterion 1.
20 JUDGE ROSENTHAL: Pleaso respond to my question.
21 MR. GUILD: Let's start from the beginning. What are 22 the facts behind this widespread understanding on the part of 23 quality control inspectors? Was it fanciful? Was it somehow 24 based on such an ethereal foundation that the Applicant was
- 25 free to ignore it?
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D :1 -No. In 1982, the Nuclear Regulatory Commission, 2" Region 3, identified a breakdown in the. quality assurance s 1 3 program at the.Braidwood' Station'for the installation and 4 inspection of mechanical safety-related equipment'.. They. levied
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L 5 a $100',000 civil penalty.
'6 Braidwood had been'substantially free from. effective J/ NRC oversight until that time and suddenly it was determined l-8 that there had been a breakdown in the OA program.
9- Following that point in September of.1982, Edison 10 .sent a-new: project director to the site. The new project
- 11 director. conducted an investigation to determine that there was 12' ' widespread inadequate quality assurance and quality control.at
- 13 the site, that'the electrical operations which were the subject b 14 of these harassment proceedings were suffering from a 1
-15 significant backlog due to ineffectual,. nonstctistically-based.
16 sampling inspections that had taken place heretofore.
17 In-August of 1983, the Comstock company replaced the 18 quality control ~ inspector at Comstock, and Mr. Corcoran, who 19 was-deemed to be too quality conscious and insufficiently 20 attentive to construction considerations, with a Mr. Irving 21 DeWald, who is the center of focus on Comstock mana'gement J
22 harassment.
23 In October of 1983, Mr. DeWald determined that there i
24- was a.14,000 hangar inspection backlog in the L.K. Comstock 25 quality, control scope of work and a 50,000 document backlog in i O Heritage Reporting Corporation (202) 628-4888 U______i_______ ______.i.____
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l 1 the review of all of the previously determined ineffective 2 quality documents at Comstock.
3: In January of 1984 the NRC Region weighed.the .;
I 4 . decision of whether to issue a stop work for.all of Comstock's
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l 5 quality control and production work because of the backlog that '!
l 6 they observed in Comstock quality control functions. ]
L 7 In January of 1984, a significant deficiency report
- j 8 under 5055E was filed by the Commonwealth Edison Company noting 1
-9 that there were significant problems with.comstock's quality 10 control recordkeeping.
11 In May of 1984, Region 3 proposed a Level 2 civil !
l 12 penalty which according to Regional Administrator at the time 13 Mr. Kepler had been unprecedented in NRC regulatory history.
14 This was in' Inspection Report 8309. It found inadequate 15 quality assurance overviews of the four principal site 16 contractors at Braidwood, including the electrical contractor.
I 17 In May of 1984, Commonwealth Edison Company'for i 18 reasons unrelated to yet unidentified harassment and production 19 pressure, committed to the NRC to initiate the Braidwood ,
20 construction assessment program, BCAP, a quality confirmation 21 program founded on the presumption that work was done 22 satisfactorily to that time, addressing as Mr. Kepler then 23 stated the 8205 civil penalty concerns and the 8309 widespread 24 QA deficiency concerns.
25 In May of 1984, Mr. Shamblin, the Edison Project O
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I. 2 Mr.Casaro, who was determined to'have been weak in his quality l ,
l 3 assurance performance.
o 4 In June of 1984, Commonwealth Edison Company's Mr.
I 5 Shamblin called Comstock's quality control management in and 6' informed them:in no uncertain terms that addressing and solving
'7 the backlog ~ problem would be a condition to_the continued 8 extension of the Comstock electrical contract.
19 JUDGE ROSENTHAL: What's wrong.with that?
10 MR. GUILD: Finally, if I may, Your Honor, in March l
11' of_1985, the first public reflection of this problem,-24 12 Comstock quality control inspectors en masse visited your site g 13 inspector's office and stated to a man that quality was being
.g 14 . sacrificed for quantity considerations because of the schedule 15 pressure imposed by Commonwealth Edison Company. .
16 JUDGE ROSENTHAL: Let me ask you this question.
' 17 MR. GUILD: That's the factual background.
18' JUDGE ROSENTHAL: Well, let me ask you a few 19 questions about it. Number one, did any individual inspector 20 testify that he had been told that in order to reduce'the 21 backlog he was to sacrifice quality for quantity?
22 MR. GUILD: It was understood.
23 JUDGE ROSENTHAL: Understood how?
24 MR. GUILD: Well, do you want an example, Judge?
25 First of all, the question --
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.,y f\ )f -1 JUDGE ROSENTHAL:' What were they told that gave rise 4 l
2' in their minds to a legitimate inference that they were being L ,3 told that?
4 MR. GUILD: Well, they were told, for one thing, if S. the backlog wasn't solved in short order, that the contract 6 would be cancelled.
f 7 JUDGE ROSENTilAL: So, a lot of' times when you are 8' confronted with a backlog you are going to be concerned about-9 it. And what you are. going to tell your workmen is that you l
10 would like to see that backlog diminished.
11 MR. GUILD: Well, if it's Your Honor's belief that 12 that is an appropriate message to send, to a quality control e- 13 inspector, consistent with criterion 1 which says they must be 14 independent of cost and schedule pressure, I think you should 15 state that loud and clear in your opinion in this case because 16 I read Criterion 1 to say the quality control inspectors must 17 put quality first.
18 JUDGE ROSENTHAL: I just want to make clear that I 19 understand your position. You are telling us that the 20 inspectors were reasonable in their assumption that they were 21 being told to sacrifice quality for quantity because they were 22 told that this backlog had to be eliminated?
23 MR. GUILD: One item in a constellation of many 24- forces, Your Honor.
25 JUDGE ROSENTHAL: I want to know specifically what D.O Heritage Reporting Corporation (202) 628-4888 1
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hs 1 items you are referring to. Here is one'of them. That there 2 was'an indication that that backlog better be reduced.1 3' MR. GUILD: The common understanding stated by the
~4 inspectors was that they were told to get numbers. The concern 5 by management was never stated about quality of inspections, 4 6 how are they finding defects, are the over-inspection rates i 7 deficient because it reflects that they are missing problems-in 8 the work they're doing. No. The question is how many 9 inspections have you completed in a day. Have you met'the 10 average of five, seven, ten, depending upon what the discipline 11 is.
12 JUDGE JOHNSON: -May I interrupt?
i 13 MR. GUILD: Yes, Judge, certainly.
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'14 JUDGE JOHNSON:. Are you familiar with the testimony 15 of Mr. Mustered, I believe his name was?
.16 MR. GUILD: In what respect, Your Honor?
17 JUDGE JOHNSON: Are you familiar with the things that 18 Mr. Mustered said during his direct examination at the hearing?
19 MR. GUILD: In the extract, no --
20 JUDGE JOHNSON: With regard to quotas, with respect 21 to getting numbers out? With respect to how many inspections 22 per day he was supposed to do?
23 MR. GUILD: If Your Honor, that is a direct question, 24 the answer is no, I am no familiar with the general testimony 25 and if you have a specific question I would be happy to address Heritage Reporting Corporation (202) 628-4888
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2 JUDGE JOHNSON: He was one of the inspectors who was 3 subjected to this pressure that you are talking about.
4 MR. GUILD: Yes.
5 JUDGE JOHNSON: And.his direct testimony is that he I 6 was never asked to complete so many inspections in one day and 7 never in the history of his employment with Comstock as a 8 quality assurance inspector did he have anyone ever ask him to 9 justify why he did only one or five or so many inspections in 10 one day.
11 MR. GUILD:' If that is a reading of his testimony, 12 Judge, I ask you to consider'that in light of testimony by 13 other inspectors that when they took too much time to clean 14 previously completed wells of paint, they were reassigned to 15 other tasks because it was believed, if no explicitly stated 16 that they were slowing down the overall productivity of the 17 inspection team they were on.
18 JUDGE JOHNSON: Let me ask you one other question.
19 MR. GUILD: Yes, sir.
20 JUDGE JOHNSON: In the course of your professional 21 activity as an attorney, have you ever had subordinates work 22 for you? Have you ever had anybody doing work under your 23 direction?
24 MR. GUILD: Certainly. And if the trick question, H25 Your Honor, if --
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.1 JUDGE JOHNSON: It's not a trick question.
2 MR. GUILD: -- I put them under a deadline? There is 3 expert testimony in this case that of course we all act under p 4 deadlines. The issue is'whether or not with respect to a 5 quality control inspector he is subject to improper. production 6 pressures, or was he independent and free to identify defec,ts.
7 JUDGE JOHNSON: Let me finish my question, if I may. ;
8 What we are trying to do is ask questions.to explore what lies .
L i 9 behind some of.the things that are said in the various parties' 10 briefs. I would like to know, these individuals, the quality 11 assurance inspectors' job is to make-inspections. That is ;
12 their work, it is safety related work. I do not see how 13 employing these people to do their job necessarily implies the 7
14- further statement do your job, do not do it right. That seems 15 to me to be logically inconsistent.
16 In other words, your secretary's job is to type a 17 brief that-you have given her. You do not tell her I need it
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18 right now, and do not bother whether it is accurate or not.
19 Clearly, when you say you need it, you want ,tt done well.
20 When you tell the inspectors to do their job, you do 21 not tell them but do not do it. You tell them do it and do not ,
22 waste time in doing it. I do not see how you make the jump 23 from get the work done to get the work done but do not do it ,
i 24 right.
25 MR. GUILD: Your Honor, if I may, I apologize for
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1 -interrupting your question. ,1 think that the presumption of l 1
2- Criterion 1 is clear, and it is clearly contrary to what I 'I
- 3. understood to be the inference of your question.- I think in ,
4 fact that it is clear and properly so that where a large !
5 organization has the money and the resources. invested in.the 6 construction of a nuclear power plant and in meeting a schedule .
7- and.in bringing a plant in under a budget that we all recognize 8 to be the case, that the only bastion between the safety and l 1 4 9 the-public and.the cost and schedule considerations of the ]
10 company, the primary one I should say, is the line quality 11 control inspector whose job it is to identify deficient, 12 defective, non-conforming conditions.
- 13 That the NRC and the Atomic Energy Commission before 14 that properly presumed that unlike the secretary who is typing i'l ] 15 your brief where you can look at the brief and determine 16 .whether it meets quality standards or not that as the front 17 line inspector of that weld in the vast recesses of the plant 18 that may never be looked at by anyone else that we want to 19 ensure that that QC inspector is free from cost and schedule 4 20 pressure.
21 He should not feel that he has to make five 22 inspections a day or that he will be subject to either explicit 23 or implicit sanctions by his employer. He should not feel that J'
24 if he takes time to clean the paint off of the weld that he is 25 subject to being transferred to another crew and chastised by O ,
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2 And Io was: going to add the final example. In-the !
3 case of Inspector Richard Martin who testified'about events
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4- that we're' unfolding'during the course.of our hearings,.he
-5 should not feel that if he asks.for help'in' conducting a cable' 6 pulling: inspection that he will be forever taken off quality
.7 control. inspection duties and sat in an office essentially 8' doing make work because he was not willing to do an inadequate 1
9 inspection job which he-believed was necessarily implicit if he
.10. .had to do the job himself. Taose are. examples of production /
L 11 pressure impacting the work of quality control.
12 JUDGE;ROSENTHAL: When you say impacting it, again I 13 get back'to what I understand to be the state of the record.
.o 14 That these inspectors denied that the pressure or the 15 perception of pressure led them to do their work improperly. '!
16 Now I am asking you whether one, that is true; two, i
17 if it is not true, point out to me the testimony of inspectors 18 who said they had done their work improperly in response to the i
19 pressures; and threo, if in fact they denied that they were J 20 succumbed to these pressures, are you now telling us that they 21 lied under oath?
- 22. MR. GUILD: Well, Judge, your question sounds like 23 cross-examination that I heard from the utility lawyers. And 24- frankly, I think that it is an improper and irrelevant question 25 to ask, and it really reflects I think the answer to my earlier O Heritage Reporting Corporation (202) 628-4888 i
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question-about.whether Criterion 1 means what it says. !
f,- ~2 JUDGE ROSENTHAL:. Well, you may think.that'it is A 3 Irrelevant,'but I have unfortunately_the job of deciding this
~ '
4 case, so.I would appreciate a response to the question.--
L 7 5 MR. GUILD: I will answer it, Your Honor, but I wish 6 that you would at least acknowledge that I believe that it is
- 7. an' improper,-not germane, and irrelevant question. i
+
8 JUDGE ROSENTHAL: You have made it clear that.you
~
9 think that.the question is improper. Now go' ahead and answer,.
10' it.
- 11. MR. GUILD: The answer to the question is that: as Mr. ;
12 Laney testified.'as an expert witness for the company that when
- t ,
13 a quality control inspector is put on the witness stand and he i'
14 is asked did you violate that sacred commitment.that you made 15- to comply with Criterion 1, did you violate the sacred 16 commitment that you made to enforce Appendix B, did you commit 17 an-act that could result in penalties levied by the NRC and 18 loss of your job, that the self-serving answer that you are 19 going to-get, Judge Rosenthal, is going to be no.
20 JUDGE ROSENTHAL: Even though the individual has 21 perjured himself, and in the event that it is discovered that 22 he has given a dishonest response that he can subject himself 23 to criminal penalties, you are prepared to say that these 24 witnesses, that we should infer that the self-interest of these I
25- witnesses led them to perjure themselves, and by doing so put O Heritage Reporting Corporation (202) 628-4888
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() 1 them in line for possible criminal prosecution, is that what 2 you are telling us?
3 MR. GUILD: Again, Yout Honor, I think that'is an 4 improper inference.
5 JUDGE ROSENTHAL: .I am asking you a specific' 6 question.
7 Are you telling us that we should infer, yes or no, 8 that we should infer that these witnesses lied on under oath?
9 MR. GUILD: I cannot answer the question yes or no.
10 Would you like an answer that elaborates, Judge?
11 JUDGE ROSENTHAL: All right, you may elaborate.
12 MR. GUILD: All right, sir. The expert testimony on
,- 13 this record both from Mr. Laney who I alluded to who d,s 14 acknowledged that such an answer would be self-serving and 15 unreliable without corroborating additional evidence as,well as 16 the expert testimony of the industrial psychologist who i 17 testified, and particularly the expert for Interveners, Dr.
18 McCernan, was to the effect that what an individual does when 19 they asked a question like that is first of all they do not 20 consciously lie. It is not a question of perjury, Judge.
21 And to think so really reflects an overly simplistic l 22 view of the kind of influences on an individual in that 23 setting. What they do, Your Honor, is they say, well, my 24 standard of performance was equal to the standard of 25 performance of everyone else on that job. And we all looked 1
)
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%s l' the other way,,because we knew that we were under cost and 2, schedule pressure. I did not accept unacceptable work, I
-3 accepted work that met the standard of acceptability that 4 prevailedatthetime.
5 And if you want an example of that, Judge Rosenthal.
6 We talked.about Mr. DeWald, the quality control inspector, when 7 he served as a Level 2 welding inspector. And according to at 8 least the belief, understanding, and recollection of a number 9 of inspectors, he documented the inspection of over 1000 welds t
10 in a single day with no defects and no rejects. And if you 11' asked Mr. DeWald whether he thought he ever accepted an 12- improper weld or whether he ever succumbed to production 13 pressure, he would tell you with all confidence in his honesty 14 that he never had.
15 But if you went out and relooked at his. work, you 16 would find that he was under intense production pressure. He 17 was one of only a handful of inspectors at the. time inspecting 18 the work of hundreds of welders and that he was under 19 production pressure. He compensated for that, but he believed
- 20. In his heart of hearts that he was doing an acceptable job.
21 JUDGE ROSENTHAL In that circumstance perhaps, Mr.
22 Guild, it is time for you to address the reinspection. i 23 Why are not the reinspection a demonstration that in s
24 point of fact these inspectors did not succumb to the perceived j l
25 pressure?
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( 1 ' JUDGE WILBERs Before.you gofto that,'you say that 24 2 inspectors went to the NRC' office I believe.
3' MR. GUILD: Yes,.Your Honor. ,
I f 4 ' JUDGE WILBER: That.is 24 out of how many?
5 MR. GUILD:- I would venture a 100, Your Honor.
6 JUDGE WILBER: All right.
7 MR. GUILD: And those 24 were lined up in a half hour 8 period of time at the general call of the' site inspector, who 1
9 said by the way you six who have just come into the office,
- 10. come back in a half an hour and yes, you can bring others if 11 you like. But they rounded up.18 others of their fellows who 12 came in on that short notice.
J
.13 By the way, the site resident inspector who was O 14 shortly thereafter against-his.will transferred to another site 15 and who the staff resisted allowing to testify in this l
16 proceeding testified under oath that it was his strong 17 . recommendation that the region immediately send trained 18 investigators to take statements under oath of these 19 inspectors, because he believed that the complaints that he was 20 hearing from the Comstock inspectors confirmed a long series of 21 unresponsiveness by Edison and production pressure on the 22 inspectors. And he thought that there should be immediate 23 action including a stop work if necessary.
24 None of those recommendations were followed. The 25 allegations were allowed to languish. Memories were allowed to
(
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k' 1 fade. The NRC's staff response was wholly inadequate.
- 2. JUDGE'WILBER: And you consider this 24 as a large 3 significant number then, is that correct?
4 ,
.MR. GUILD: It was. believed by the s te resident to l 5 be-the largest. number of quality control --
'6 JUDGE WILBER: I ask you, do you-believe this to be a 7 -large significant number?
~ '
l.
8 MR. GUILD: My belief is irrelevant, Judge. The ,
1 9 witness and the evidence says that it was the largest number of i
10 complaints received in a group by the NRC ever in history 11 period at Braidwood.from L.K. Comstock in this case.
1.
i 12 JUDGE ROSENTHAL: All right.
l q 13- Now what about the reinspection? {
.O 14 MR. GUILD: Let's find out what the reinspection 1
, )
)
15 program may establish, because it.certainly does not rebut the l i
16 failure to comply with Criterion 1. What it does establish is I i
17 that of the population examined in the electrical area that it- l l
18 was only 24 percent.of the completed electrical work. 76 19 percent had yet been final QC accepted as of the cut-off date 20 of BCAP. Of that work, large numbers of defects had gone 21 unidentified by the line quality contro1' inspectors.
22 The inference which that supports is that of the 23 population subject to BCAP sampling and if inference is 24 possible the entire population as the applicant would have us 25 believe that there are substantial numbers of yet unidentified O
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,a 1' r unevaluated safety.related construction defects.
g 2 The' estimate is-as follows. Of the defects.found by
- 3' BCAP, approximately one in three in the~ electrical category E4. 'were' determined'by Edison's_ criteria or Sargent Lundy's. ;
'-i" 5 cr'iteria to be notable in character, defects that. reflected at 6 least a 10-percent reduction in the design capacity offthe i i
l
.7 item. '
8 Of the population, we would surmise and infer that ,
9- there are some 15,000 to 18,000 other yet unidentified defects 10 . remaining in the electrical areas of the plant, and that some 1 i
11 4000 to 5000 of those defects meet Sargent Lundy's definition ;
12 of notable. i gsg - <13 -Some116 percent of the 13,000 welds inspected by. j
' \_) . I 14 .BCAP, again'only 24 percent of the total population of i
.i 15- electrical' work, final.QC accepted June 1984, 16 percent'of l r
16 welds were found to fall to meet the' acceptance criteria. . j
.17 60 percent of the cables inspected under BCAP, again ]
'18 the population as. limited, had one or more rejectable i 19 conditions. They would have to have been rejected by the first 20 line QC inspector and sent back for rework. Those rejectable 21 conditions were missed by the QC inspectors, the peopin des l[ ,
22 believe were subject to production prassure improperly. ,
,. o $ ,
L 23 56 percent of the conduit hNngerd riuffered from
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. , j 24 rejectable conditions found under BCAP. 64 percent of thd
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( .1- .the conduits, and 73 percent of the electrical equipment
'2 installations suffered from one or more rejectable conditions 3- that the original quality control inspectors failed to 4' identify.
5 Now what that says.to me is that-if the reinspection-6 program, the.CSR element of BCAP,'is simply considered for what i-7 it purported to be, which was an analysis not of inspector-l0 performance because it.was never. designed for that, but an 1 9: analysis of the quality of hardware, what we can say to answer 10 question that lt recall you asking me in the previous
~11 proceeding, Judge Rosenthal, yes, we can infer that there are 12 thousands of' unidentified defects in the Braidwood Nuclear
,f-( 13 Power Plant, and that is from the Applicant's own evidence.
1 14. JUDGE WILBER: May I ask a question?
MR.' GUILD:
" 4 15- Yes, Your Honor,-you may, certainly.
16 JUDGE WILBER: You have just cited a list of 17 percentages of various equipment that were found to be I l
18 defective.
19 Where in the record are these numbers to be found?. l 20 MR. GUILD: They are in an exhibit, Your Honor, and !
i 21 if I may. I am looking at minority findings of fact 353, i
22 Applicant's' Exhibit 101. And I would be happy to double-check ,
23 that, Your Honor, but that is the note that I have for the l i
24 source of those, j 25 JUDGE WILBER: The percentages, I do not recall them
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L L: i L 30 rs 1 being in your brief,.is that correct?
2 MR. GUILD:- I believe that they are in the minority 3 findings of fact that were appended and. incorporated by l
4 reference, Judge.
5 If I.may, the Applicant recognizing that there was a !
6 prima facie showing, they never said this, but implictedly ;
7 recognizing that there was.a prima facie showing of a quality .
8 assurance breakdown in the QC department at Comstock, at i 9 Braidwood, and recognizing that under the Calloway. analysis l
10 that there-wa's at least'a sufficiently pervasive failure to l
l 11 comply with quality assurance procedures as to give rise to the ;
i 12 inference that there were unidentified defects in the plant, i
13 they undertook a rebuttal case, a rebuttal case which was 14 characterized by the licensing board as really the case in ;
H 15 chief. Because it was not the harassment caso, but it was j 16 essentially an effort to prove the hardware acceptability in 17 the guise of a rebuttal case to the harassment allegations.
18 If the rebuttal case is viewed within the limits of I i
19 what it should be, which is an effort to rebut the prima facie 20 showing of a violation of Criterion 1, it fails miserably to do l 21 so. It fails to do so on several points, l 22 First, the BCAP which was primarily designed as a 23 confirmation program assuming the quality of construction was 24 not looking for harassment, or the effects of production
'25 pressure, or deficient work by quality control inspectors. I O
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- s > - 1 What it was looking for were recurring patterns of construction t
2 defects,. hardware defects, that presumably flowed from some q r , 3, kind of a programmatic deficiency in the production work, in ;
l 4 the actual construction work in question. l H -i
!~ What it did not look for and could not find, and j
=5 l
i 6 could not.look for if it employed the methodology design that.
'7 it did, were systematic and pervasive flaws in the quality )
8 control program. First, I would mention ---
9 JUDGE JOHNSON: Explain your conclusion, why could ,
i 10 they not find those? j 11' MR. GUILD: Because what it did not attempt to do, 12 Your Honor, was review the performance of quality control 1
fv 13 inspectors. It simply looked at hardware.
14- JUDGE JOHNSON: I thought it did. I thought that it 15 went back, at least the PTL inspection and I realize it is 16 different, and looked at the performance of individual 1
17 inspectors over various time periode. I 18 MR. GUILD: PTL is a different case indeed, Your i 19 Honor, and I can touch on that as you raised it. PTL suffers ;
20 from flaws that are additional to the flaws under the 21 reinspection program in BCAP. The flaws in PTL beyond it being 22 a generally sloppy and ineffectual effort at measuring --
23 JUDGE JOHNSON: Where in the record is it called 24 sloppy'and ineffectual? l 25 MR. GUILD: I say that, Your Honor. That is my Heritage Reporting Corporation {
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- 2 JUDGE JOHNSON: Are you an' expert in reinspection ,
3' ' programs?
4 MR. GUILD: I do not offer myself as anything other
!' 5 :than aLlawyer, Judge.. But the fact of the matter is'if I'can 6 ' characterize --
~7 JUDGE JOHNSON: You are. offering now opinion, Mr. .
8: Guild, in the evidentiary record.
l 9' }UL GUILD: And I may give you some facts,.Your 10 Honor, .I will.be happy to tell you what the basis of my 11 assertion is.. No inspector: ever was disciplined, given 121 addition training, reassigned, had their performance affected 13- in one. whit as a' result of the PTL inspection data. RIf it were l7 -
114~ designed to be a measure of inspector performance, it was never 3 15 .used as a measure of inspector performance. And that is the' ~l l
- 16. basisLfor me saying as a generality that it was an ineffectual 17 program if it was designed to do what you suggest, Your Honor.
18 Beyond that, its Isaws were that it was totally !
19 non-random and non-probabilistic in its sampling. It was a 20 seat of the pants sample suffering from all of the potential 21 problems from a grab sample, and not subject to statistical !
22 inference drawing. .
23 JUDGE JOHNSON: What do you mean the difference 24 between a grab sample and a probabilistic sample? j 25 MR. GUILD: Well, sir, for example, for the PTL, I l
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C p a !.. 33 ' "l l- .-someone;would'go..in'and they would have's stackcof inspection.
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?. 2 -reports, and they.would~ simply grab a-number of those H 3 . inspection reports'and'make:sure at the end of:some period of s.
4 ? time lthat'they.had captured sufficient numbers for individual- 1 5~ ' inspectors to meet a quota. They made no effort,to try to-q j
' 6: ~ sample. scientifically.as a'CSR on a BCAP at least made
,7 .
~ reference to when they' constructed the probabilistic aspect'of 8 their sample, d
9 So PTL simply had inspectors, and they.were told.do an over-inspection of X-percent of the work of so and so.. They:
11 would grab up an inspection report. They would do the first~ i 12' five welds'outLof 100, if that were the goal,-and they would do
'13 the last five welds out of 100. They would do the'five welds
~
.14 ~ .that:were lowest to the ground if it meant. climbing up'too high
.15- to'get.another five welds. We do not know which five welds 16- that they would grab. But the fact of'the matter is that they
- 17. did not grab five welds that were selected probabilistically.
18 JUDGE JOHNSON: Where in the record can we find this,
~19 which five welds that they grabbed?
20 MR. GUILD: I do not have the record references at 21 ready hand, Your Honor, but I would suggest --
22 JUDGE JOHNSON: Is that explained really in the 23 record, I mean do you recall that sort of description from the
'24 -record?
-25 MR. GUILD: Yes, I recall.
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.1' JUDGE JOHNSON: .That they would take five in a row 2 here and~five in a row there?. i 3- MR. GUILD: If-I recall, the cross-examination of PTL
.i 4 employees or. witnesses who described the program, and they 5 could not explain how the sample was made,.but said that the 6 sample selection process was left to the individual 7 over-inspector,.that he could simply choose as he would the 8 five welds if five were.the goal, that there was restriction.
~
9 JUDGE JOHNSON: In regard to how the samples-were 10 selected, if I have 175 samples of inspector X's work, and the 11 reinspection indicates that of the 175 inspections that he did 12' and'found were not correct that the reinspector found that 160 13 of those were acceptable and 15 were not,.not matter how the j
' ~
14 data were gathered, why is that not a good indication of 15 inspector X's performance?
16 MR. GUILD: It simply not, Your Honor.
17 JUDGE JOHNSON: Why not?
18 MR. GUILD: Because it is not a sampling inspection 19 from which as a matter of science and statistics that we are j 20 allowed to draw inferences, and the testimony is -- i 1
21 JUDGE JOHNSON: You have 175 samples of a man's 22 performance, and tell me why if you have 175 samples of his 23 performance that they are not a good example or a good a
24 indication of his work? l l
25 MR. GUILD: I have tried to answer your question, and j
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.G 1 V 1 the statisticians who testified -- l
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2 JUDGE JOHNSON: But I do not_ understand. I happen to l 3 .be'a scientist.
4 MR. GUILD: And I am a lawyer. ;
5 JUDGE JOHNSON: And you do not make sense to me.
'6 MR. GUILD: All right, sir. I would just commend to l 7 you the testimony of the statistician witnesses in this-8 proceeding who established that they could not draw inferences 9 from the PTL sampling, because they were not probabilistic 10 samples. And I think that makes perfect sense, Your Honor, 11 because in fact we do not know that the individual's work that l l
12 was deficient'in a way that you are interested in was not ;
13 simply omitted for non-random reasons, that it was simply the l O 14 top weld on the scaffold where the welder found it most l
15 : difficult to do the weld, that the QC inspector found it most
-[
16 difficult to do the inspection, and the over-inspector most
'17 difficult to get to, and he did not look it, and it has the
]
18 crack in it. I'm sorry. j i
19 JUDGE WILBER: You just said that they didn't look at i
20 it. I was under the impression that there was a hundred per (
21 cent inspection of the welds. j 22 MR. GUILD: Well, that depends on who you are [
23 speaking of, Your Honor. If we are talking about first line 24 quality control inspection, there appear to be times at the l 25 plant where there weren't -- there certainly were historical )!
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-2 ' JUDGE WILBER: I'm talking-about'recent times.
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P MR.'. GUILD: :Well, recent. times doesn't' include.all 53 1.
U 4' -the' work that is outtthere that is safety related.: 4
/ ,
5 .~ JUDGE WILBER: I understand that. .We'll get to the-L :6 'next point later.
7: MR.-GUILD: And there is not a hundred per cent _.of 8 all the safety.related~ welding at the plant that has been 9' subject to visual inspection.
i
.10 JUDGE WILBER:' It has not been?
i-11 'MR. GUILD: It has not been. That's right.
i a JUDGE WILBER: -Are you referring to the grid o L' 12
.. inspection?
. 13
'O
- 14.
MR. GUILD: .The grid inspections'in part, and in past 15 times before that there were only 35 per cent sampling i
16 inspection done of certain installations. l 17 JUDGE WILBER: Now what caused the back log? Wasn't
'18. that because of'a hundred per cent inspection that was required 19 of all prior work?
20 MR. GUILD: Well, that certainly was --
21 JUDGE WILBER: Judge Grossman said -- 4 22 MR. GUILD Yes.
23 JUDGE WILBER: I don't know if you can rely on him or i
24 not, but I believe that is what he said. j l
, 25 MR. GUILD: Well, sir, it certainly was a major cause j LO Heritage Reporting Corporation i (202) 628-4888 I
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1 of the back log, but as far as'I know, there was never a.
2 serious effort made to determine whether or not it was
-3' attributable to that cause solely, or whether or not the fact.
l
'4 -thatlMr.~-
5 JUDGE WILBER: The point is, hasn't there been a.
6 hundred per cent inspection of the welds, and you just told me 7 that they would skip one if it were inconvenient?
'I 8 MR. GUILD: Your Honor, may I answer one question at 9- a time? What I was trying to address-was whether or not-I 10 agree with Judge Grossman that the sole basis .for the back log 11 --
12 JUDGE.WILBER: No, no, no. I think' Judge Grossman --
-s 13 MR. GUILD: Do you want me to answer on the back log .
14 question?
15 JUDGE WILBER: Yes. Let me re-ask it then. I i 16 thought Judge.Grossman said that there had been.a hundred per 17 cent inspection of the welds that had been previously inspected f
i 18 under the grid inspection program. And after the grid !
i
'19 inspection program, it was my understanding that there was a 20 hundred per cent inspection of the welds.
21 MR. GUILD: Yes, sir.
l 22 JUDGE WILBER: Now the question is what's missing? .]
l 23 MR. GUILD: What's missing is that, as Judge Grossman L 24 points out in his dissenting opinion, the grid inspections 25 totally lack credibility, and the reason why they lack
- f'\ l
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/~Y j fAs/ - 1_ credibility is because we don't know whether all of those q 0
2- inspected welds have actually been inspected because -- j 3 JUDGE WILBER: :I just got through saying that I l
4 thought he: testified that there was a hundred per cent re- i 5 inspection. !
6 101. GUILD: Well, that's-the problem, Judge. The 7 problem is we don't know that there has been a hundred per' cent-8 re-inspection, because the record keeping was so bad under the l 9 grid programs that.you can't tell whether that hanger actually l i
10 had'all of it's welds --
l 11 JUDGE ROSENTHAL: Is the grid program before us - . ,
12 your adversaries claim that the grid program, which. involved j
? -
13 pre-harassment period of time, was not within the scope of your j 14 contention, and further, that the licensing board did not
-15 follow the procedures that would have been required to raise 16 the issue sua sponte.
17 MR. GUILD: Well, they're wrong, Judge, and --
18 JUDGE ROSENTHAL: Okay. Tell.me on which score. If l 19 it was within your contention, the contention dealt with 20 harassment and intimidation, and my impression was -- and you- J 21 can correct me if I'm wrong -- that the grid inspection dealt ,
22 with events that preceded any harassment or intimidation claims 23 or events. Am I right about that or wrong?
i 24 MR. GUILD: What happened, Judge, is this. Let's i
25 just take it from the end, working backwards to make it clear, J
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1! L14 Applicant /in-their rebuttal case says, let's look at the L , 2 history of a. plant;from.it's inception to'it's. completion, and i
3 ~1et's-try to' compare periods of time to see whether.we can
~
4 . rebut.what we characterize as interveners hypothesis.
5 And they take the. collection of work lfrom'the 6 beginning of time atLBraidwood up until a point, and then from 7 that point further, and they say,:this is pre-harassment,1this 8 is post-harassment.' :
'9 And the very least what this record included, because 10 it had'to include that if Applicant's rebuttal case relevant I 11 and germane,.is it, included the prior period as a base or.
12- . foundation upon which to compare the post period. j 1
f g; i3 1 The prior period. included the period when Mr.~DeWald V" 14 was a Level 2 inspector and he was performing gird inspections..
l 15 All right, sir? It included the period from which'a
'16 substantial part of Applicant's construction sampling re- !
1 17 inspection. data comes.
18- JUDGE ROSENTHAL: When the grid inspections.were 19 conducted, does the record establish that at that time there l 20 were inspectors that were under the impression that they were i 21 being harassed or intimidated? Yes or no.
22 MR. GUILD: I can't answer the question yes or no,
- 23. Judge. It is a hypothesis that Interveners advance when they 24 respond to Applicant's -- .
25 JUDGE-ROSENTHAL: It goes to the only contention Heritage Reporting Corporation '
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.40 f) 1 .if you can't' answer that question, I don't. understand how you 2 can'tell' me that the grid inspection is within theEscopo of.
3 your contention, because your contention -- as admitted by the l
4 licensing. board, as allowed'by the Commission -- dealt with.
5 intimidation an'd' harassment. !
l 6 Now if in fact tho grid inspection.procendad,'any- l 7 possible perception of harassment or intimidation, it plainly, j
'8 in my judgment, was'not within the ambit of that contention. ;
l 9 MR. GUILD: And what.I am telling you, sir,'is that I l 10 can't tell you whether there was production pressure or :
11 harassment in;the pre-Irving DeWald time -- l l
12 JUDGE ROSENTHAL:- Is there any evidence that there l
-s 13 might have been? A perception? i ks) 14 MR. GUILD: There is indeed. There is indeed.. If I
- 15. one looks'at the allegations that Mr. Thomas Corcoran, the 16 quality control manager at Comstock, was replaced by Mr. DeWald j l
17 because Corcoran was too quality conscious and not sufficiently j 18 construction oriented, one can only infer that somebody in ,
t 19 management was putting production pressure on Comstock's l 20 quality control department.
21 JUDGE ROSENTHAL: Did anybody testify that at the 22 time of the conduct of the grid inspection, there was a 23 perception of intimidation or harassment?
24 MR. GUILD: Absolutely. Richard Martin, one of --
25 JUDGE ROSENTHAL: Was he -- he undertook the grid Heritage Reporting Corporation t (202) 628-4888
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1- ' inspw J.onL --
i 2 MR.' GUILD: Absolutely. ;
3 JUDGE'ROSENTHAL: He said that, at the time I j
,4 undertook-that grid inspection, I had a perception of
'S harassment. ,
'6 MR. GUILDS: Improper. production pressure, Your Honor.~ ;
7 What Mr. Martin said was -- along with Mr. DeWald -- there were 8 three or four of us inspectors inspecting the work of hundreds l t
5 9 of welders. We did not have time, because of production
-10 pressure, to document our inspection -- i 11- JUDGE ROSENTHAL: That is in connection with the grid. I 12 . inspection?. .
a
^13 MR.' GUILD: Absolutely. l
( l 14- JUDGE ROSENTHAL: All right.
'15 MR.. GUILD: It's Mr.. Martin's' testimony'that he would 16 wait days, sometimes, to document his work on an official 17 inspection report, and would make informal notes in his i
18 personal notebook that he never issued inspection correction-19 reports to the quality document that was provided by the 20 program --
21 JUDGE ROSENTHAL: If you want to reserve 15 minutes 22 for rebuttal, you are at that point now.
23 MR. GUILD: It was Mr. Martin's contention that 24 indeed he was subject to production pressure. I think the 25 answer to the question about whether the grid inspection O
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(_) 1- reports are within the scope of the proceeding.is_that Judge 2 Grossman was being unduly charitable to the Applicant when he 3 suggested that-there was.some basis for Applicant to_have'a 4 lfurther opportunity to defend the efficacy of the grid report, 15 and'therefore he said, in effect,_the period was not the focus L 6 of'the inquiry, the subject.of grid inspections were not the 7 focus.of the inquiry,_we're going to give Applicants another 8 chance.
9 But if a period was germane for Applicant's rebuttal 10 purposes, it certainly was germane for purposes of our 11 affirmative case.
12 JUDGE ROSENTHAL: All right. Thank you, Mr. Guild.
- 13. MR. GUILD: What I haven't addressed, Judge, and I 14 will. return to, is the general question of --
.15 JUDGE ROSENTRAL: No you won't. In rebuttal you will 16 .not address anything except in rebuttal to what your 17 adversaries have to say. You cannot raise any point on 18 rebuttal that is not in the vernacular rebuttal.
19 MR. GUILD: Well, Your Honor, then, if I may, I was 20 asked the question, what are the problems of CAP. The record i 21 is incomplete in reflecting my problems with BCAP, and I was 22 interrupted repeatedly by the Appeal Board. I have other 23 matters --
24 JUDGE ROSENTHAL: Well, that's what we're here for.
25 Mr. Guild, you seem to have a distorted impression as to what O Heritage Reporting Corporation (202) 628-4888
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2- MR. GUILD: No, sir, IJjust - - l 3 ~ JUDGE.ROSENTHAL: Your argument is supposed to be
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4 ' advanced in your brief. The purpose of. oral argument is to 1 5 allow us to explore the problems that we'may have with the q
position o'f a particular counsel, and to give that counsel an -
6 1 7 opportunity to respond to-those inquiries.
8- The purpose'is not to' allow counsel simply to rehash l
9 what'is in his brief, or what, if it is not in the brief, what 10 should have been.
11 MR. GUILD: - I-was not permitted.to answer the 12- question fully,'Your Honor, and I certainly would object if I 13 find, in the board's opinion, some' suggestion that I haven't 0
14 ~ addressed matters relating.BCAP deficiencies, that I would 15 ; desire to do so. If requesting additional time is the. i i
16 . appropriate' remedy to complete my answer, I will do so. If 17 not, I'll just have to see.
1 18 JUDGE ROSENTHAL: All you are entitled to have us 19- address in.our opinion is what you have in your brief. So what 20 you covered in your brief, you can rest assured, will be 21 addressed. You don't have a right to expect us to extend your 22 time and oral argument so you can possibly address points that 23 were not in your brief.
24 MR. GUILD: And if that stands for a denial of my 25 request for additional time --
n v
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$ 1 JUDGE ROSENTHAL- It doec.
P 2: MR; GUILDt- -- I will take'it.as that. !
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3 JUDGE ROSENTHAL: iYou'll have some-additional time,-
4- because you've actually consumed 50 minutes and.I will give.youi !
g .i l, 5 15 more rebuttal. l 6 Mr. Gallo? '
H 7 -MR..GALLO: Mr. Chairman, members of the board.. The n
8 only issue with respect to criterion one, that-is before this 9 board and that was briefed,.is whether or not Commonwealth Edison, through the person of Dan Shamblin, imposed improper. i 11 production pressure _on Comstock QC management, which.in. turn I~ 1'
.12 'was' transmitted-as alleged to the QC inspectors, and whether or.
13 not that. improper. production pressure and other alleged acts of J
14- harassment impacted the quality of their inspection work.
l 15 JUDGE ROSENTHAL: Well, supposing that these quality 16 assurance inspectors had, as they apparently did'have, a 1
17 ' perception of undue pressure? Since what we are concerned with 18 here is whether quality assurance work was done properly, why 19 isn't the perception good enough? I i'
20 MR. GALLO: Because I don't believe that perceptions 21 accord with the precedent of this board and the Commission !
{
22 generally, and I am referring specifically to the definition of J 23 harassment that was handed'down by the licensing board in the ;
24 Catawba case. )
1 1
25 JUDGE ROSENTHAL: Licensing board?
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'3 r- 1 MR. GALLO2 IYes, 22 : ! JUDGE ROSENTHAL - Well, the' licensing board's. i L . . ,
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-3_ determinations are certainly not binding on us.
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'4 MR. GALLOs. But.the issues' raised with respect to 9 5 : harassment 11n that' case were' reviewed by the. appeal 1 board, and j b
15 that definition.was allowed;to stand ~without quarrel.-
'7 JUDGE ROSENTHAL - Well, look. . The licensing boards
)
8 .'sayla great' deal, Mr. Gallo. 'You're notLsuggesting, are you,.
9 that unless we specifically repudiate 1something,that'a ,
10' licensing board has-said, that we're.to be-assumed to.have-l 11 1 agreed with.it? ;
- j
- 12 MR. GALLO. No,'I-am not' suggesting-that, Your Honor. 'i
. 13 Button. appeal from that. case, harassment'was the very' issue !
()::
. , i 1144' .that.was heard, and it was pursued by~ counsel for the. 4 i
15; interveners in'this case. i
,J 16 So that the question of the definition of harassment 1 1
17 inLthat case was certainly an issue before this board, one that j s
18 .was brought to it's attention. l l
19 JUDGE ROSENTHAL: Well, let's forget about the '
20 precedents, and tell me why it is that we shorld not be 21' concerned with perceptions of intimidation and harassment if 22 those perceptions translated themselves into a deficient 23 quality assurance effort?
24' MR. GALLO: Well, a phrase like that -- I have to 25 agree that if perceptions translate themselves into deficient' O
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(_) 1. tinspection work, it is a proper matter _for" inquiry by the NRC- }
2 to'look at.
/ -3 The record in this case is clear that that was not 4 .the. case. l 1
.s~
S- JUDGE ROSENTHAL: Well, now how is the record clear. l l'
6 .Because these inspectors. denied that they had allowed the 7 perception of --
8 MR. GALLO: That's one leg of the basis for that -- )
9 JUDGE ROSENTHAL: How much weight should we put on I p
'10 thatLdenial?. Mr. Guild suggests that it obviously was in their
- 11. self interest to insist that they had done their jobs as they i 12 were called upon to do them. And also he said that that 13 statement might have had some kind of subjective element to !
14 them. What's wrong with that? l i
15 MR. GALLO: I think that their testimony and their I 16 denials given under oath, as pointed out by you during the 17- exchange with Mr. Guild, are entitled to great weight. As Mr.
18 Laney testified, he himself would not accept the statements of 19 these inspectors without further corroboration.
20 And there is further corroboration, and it is that j f
21 corroboration which makes those statements credible and i 22 entitled to weight. I am referring specifically to the l 23 evidence in the case that indicated how these inspectors l O l L 24 reacted to various management situations. !
25 For example, in Finding 311, Judge Grossman Heritage Reporting !
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.M l' particularly finds;that inspector Dean.Peterson resisted, as he 2' . saw'it, the pressure to inspect through paint. This11s solid
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3 . evidence of-how this;particular' inspector behave-under a-
'4 . situation that'he' believed to be. pressure, undue pressure _,
5: Inspector Snyder, 1r) response to Saklak's'. direction.
i i.
6! to sign off on these-three:ICRs, contrary to procedures, )
i 7- refused to do that. That's concrete evidence'of'how this
/8 particular inspector behaved in the-face'of --
9 JUDGE ROSENTHAL: That's one or two out of~a group of
- 10 what -- 24 or 25?
~
.11 MR. GALLO: Well, there's Mr. Mustered as well. He ]
. joins the group, again, in response to direction by Mr. Saklak ~ ;
13 to ignore procedures. Mr. Perryman and Mr.'Bossong join the 14 Lgroup. They refused to turn over and to use their Form-7s on-15' .an inspection until the Form 7s were clarified to their 16 satisfaction. ;
17 There is further extrinsic evidence of how:these two j 18 . inspectors behave. Even Mr. Martin refused to take certain 19 actions until it was clear to his satisfaction that procedures 20 were properly clarified before he went forward to use them. ]
1 21 It is these acts, that these inspectors testified to, j 4
22 that provide the further corroboration that give the inspectors 23 statements that they did not allow perceptions of pressure and l 24 intimidation to affect their inspection work.
- 25 I might mention that inanector Bowman joins the list.
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- lHere's an-inspector who's out on his assignment,-and helseesta 2' quality problem on a matter that is not within the purview of.
,3 .his inspection.
4 Nonetheless, he brings it;to the attention of.
1
. :5- management. He receives some flak for.that. Nonetheless, he 6 persisted until the matter was taken care of. It is these 7 kinds of examples that lends credibility to the-statements of I
l' t8 the inspectors, that they did not. allow their inspection work' '!
to be adversely affected by either actual acts or perceptions 1 9
10 of harassment and intimidation.
, i 11 I would like to turn to the question of Mr. Shamblin.
l 12- Interveners argue on~brief that Mr. Shamblin in fact imposed 13 ' undue production pressure on Mr. DeWald, the.comstock QC- d 14 manager. .In reliance on that position, they point to a 15 ' memorandum that Shamblin wrote to DeWald June 9, 1984.
16 And in that memorandum it said that the back log.
17 would have to be addressed and resolved very shortly, and that 18 it was a first priority. And the interveners infer from that 19 undue, improper production pressure.
20 They also infer from the fact that from time to time 21 from the June to September time frame in 1984, that meetings 22 were held between DeWald and Shamblin, that that was a vehicle 23 for undue production pressure.
24 The evidence just doesn't support those inferences. q t
25 What the evidence does support is that Shamblin had the Heritage Reporting Corporation ,
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(/ 1 responsibility for overseeing on siteJsubcontractors -- I j u 2' should say on site contractors. Comstock was one of them.
3 when he first came aboard as construction l<
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4 superintendent, he perceived the problem that Comstock was ;
o I
5- . aware of the quality nature of that problem, was aware that the
'6 'NRC was concerned as well, and he sought about.to properly take 7 : care of the matter.
.l 8 And he did this in several ways. After all, the June- :
9 9 memo that I referred to was also addressed to Mr. Rolan, the 10 product' ion superintendent for Comstock, as well as Mr. DeWald.
11 ]
1 12 Here are some of the things that Shamblin dida he 13 directed Rolan, the production superintendent, to do non-safety l O.
14 related work, thereby relieving the generation of new work that j 1
1 15 .had to be inspected by DeWald's group.
16 He directed Rolan to make sure that his people were 17 installing against the latest revisions of the drawings, i l
18 because too many NCRs were needlessly written because his l 19 people-were -- that is the craft were installing against the 20 wrong revision of the drawing, which subsequently was picked up
-l 21 by the inspectors, and NRC generated.
22 All of that could have been eliminated if the work 23 was done right in the first place. Shamblin made that point to 24 Rolan. He added additional staff immediately to the QC 25 inspector force for loan employees as inspectors --
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-Q , 1 JUDGE ROSENTHAL: All that may be true, but wasn't. i L :2 ;there a basis for:these inspectors.to believe -- whether this 3.
L
. was the contemplation of the management or not -- thatlin~ order 4 to reduce this-back log, they would do it with things -- in.the ,
, '5: vernacular -- quick and dirty.
l l
6' MR. GALLO: No, I don't believe that is true at all.
JUDGE ROSENTHAL. Were they ever disabused of any
~
H 7 8 such notion and told that, look, fellows, we've got to do j 9 something about.this back log, indeed, Comstock is under some {
i 10 kind of threat from the utility if :the back log isn't reduced, j 11 but that's not to interfere with your obligation to make q 12- certain that the inspection is properly conducted. .,
'i
. -13 Was':that kind of message given? j 14 MR. GALLO: Meetings were. held weekly between QC 15 manager DeWald and the QC inspectors, during the time the back .I
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16 log was being addressed. .The testimony that was elicited from 17 the inspectors was that these meetings were used as 18 informational sessions in terms of discussing the procedures .
. 19 that were being employed, problems that were being encountered 20 by the inspectors.
21 These meetings were coed to discuss the status of the 22 inspection effort as it addressed the back log. In specific 23 answer to your question, Mr. DeWald and the inspectors did not l 24 testify that at these meetings specifically there was an
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.2 That was implied -- by implication. -
3 JUDGE ROSENTHAL: But 24 --
14 MR. GALLO: Just like as I stand here before you,-
l 5 what I tell you is the truth. I don't have to say it's the 6 truths it's implied.
L 7 JUDGE ROSENTHAL: All right, but the fact is that 24 i
8 or whatever it was of these inspectors, were sufficiently ,
9 concerned that they went to the region. Now that, you would 10 have to agree, .is.a rather unusual occurrence. I 11 Now if some kind of message of production pressure 12 was not being sent,.maybe not intended message, but if that f- 13 wasn't the message that actually was being received, it's a 14 little difficult.for me to understand this' mass delivery, as it i
.15 were, to the regional office. .
t 16 MR. GALLO: Well, the meeting of the 24 inspectors 17 with the NRC in terms of complaining about production pressure 18 is a red herring. Those inspectors went to complain about 19 Saklak.
20 When the first six inspectors went in the morning to 21 the NRC, they went there specifically to complain about the 22 abuse that snyder had endured at Saklak's hands. That was the 23 purpose.
24 And when they left and were invited to return and 25 bring whoever they want, those inspectors came in support of O
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. 1, Snyder's position:and complaint against Saklak. It was almost 2- as'an aside, during,the course of the~ discussions with the L
3 region on the telephone, when one of the inspectors -- I L 4- believe it was Mr. Stout'- . raised this question of production l
'S pressure.
6- And Mr. McGregor, the NRC resident, asked for a show
,7 of hands of who' agreed. It was that informal. It was that 8 quickly ger.erated.
9 JUDGE ROSENTHAL: So you say that the center of this 10 was the individual who was subsequently removed.
11 MR. GALLO: That's right. And to indicate the rather I
l 12 cavalier mann9r in which hands were raised to indicate an 13 agreement with Mr. Stout at the request of NRC Inspector tO. '14 McGregor, some of the~ inspectors were. asked why it was they 15 raised their hand on the 24th -- I am sorry, on March 29, and 16 Mr. Snyder said he raised his hand on production pressure. ,
17 Now, he was the main player. Because he raised his hand even 18 though he knew of no specific instance where Comstock O/C's 19 management had emphasized quantity over quality. Gorman 20 inferred it, from Dewald's emphasis in getting more inspectors 21 out of the office into the field. There was this on-going 22 debate from time to time that Mr. DeWald testified to that l
23 often inspectors would sit around the office rather than going i 24 out to inspect. 4 25 JUDGE JOHNSON: Mr. Gallo, I hate to interrupt you, Heritage Reporting Corporation ,
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12 not been consumed, and I have.-a number.of questions on the !
l ~3 inspections, so-I want you to. leave sufficient time for your l !
1 4- ; colleague, Mr. Steptoe. l 5 .MR.-GALLO: ~All right. I will just conclude.this
! -6 discussion -- !
'7 JUDGE JOHNSON: No you will'not, because:I have a l 8 question: Mr. Guild made the point contrary to your' position 9 on brief, that'the inclusions'of data in the.. applicant's .
10 rebuttal case in the period of the grid inspection, properly l 11 brings the~ grid inspection-into question under the ambit of.the 12 issue being tried in this case. What is your. answer?
.13 MR. GALLO: I think that is wrong.
.O 14 JUDGE JOHNSON: I am not surprised, but what reason
?15 would you give for that?. j i
l 16 MR. GALLO: That is-because the use of that~ period of l
17 . time for purposes of the rebuttal case'was simply tol provide a 18 frame of reference, against which inspector agreement rates 19 'could be compared for the period of interest. That is, as the ;
20 licensing board found, at the beginning of the Dewald's i 21 incumbency as the 0/C manager in September -- in August, 1983.
22 Now, use of that information does not mean -- and the use of
! 23 that information for comparison purposes, for the prospective L
24 purposes, does not mean that the underlying question as to 25' whether.or not the wells are inspected at that time, a non O
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'2 contention. It is just simply -- that conclusion . simply cannot 3- be reached, and'it'cannot be inferred from theuse.of the 4- 'information', as explained in our rebuttal case. Am I clear on
, 5 'that point? f 1
6 JUDGE JOHNSON: I think so. The Record, with respect.-
7 to the grid inspection is rather,.if I have seen it, confusing ( i ci
'8- Can you answer the question, "were all of the wells inspected '!
q 9 at a rate of about 35 percent -- totally - . :
1 10 JUDGE ROSENTHAL: Is that Mr. Steptoe's part? j 11 JUDGE. JOHNSON: No.
12 JUDGE ROSENTHAL: This is one of the reasons that I g 13 do not like these' divided arguments.
~
14- MR. GALLO: No, the. grid inspections issue I am 15 handling.
j]
16 JUDGE ROSENTHAL: Excuse me. "
17 JUDGE JOHNSON: My understanding of the situation is .
18 that in the early days, during which the grid inspection was 19 being implemented, that only among 35 percent of the i
)
20- electrical-related wells, were being inspected, and then 1 l
21 subsequently as a result of pressure from Commonwealth, or a s 22
change in policy from Commonwealth, Comstock was directed to go 23 back and do 100 percent inspection of the electrical wells, and 24 that this 100 percent inspection, the fact that it had to be 25 done was a primary cause for the backlog that existed in early 1
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MR. GALLOs.'Let.me say;first,.Dr'. Johnson,-that the N ~3: . reason.in my-judgment.that the Record is confused is;th'at that was.inot an' issue',thEt was addressed at the.. hearing. Jon.the-.
~
- .4:
(5 F question of the inspectiop of the. wells,during.the 1982-83 time
- n. ~
t 6 ' frame,j100 percent of't;hosdiwe,lls were inspected?at that tim'e.
m
'7 .
The _35 percent' that you refe:S to was 35' percent of inspection 8' sample:of the.other attributes, like hangar configuration.
N 9 Those attr $/utes Were subject to,the 35) percent sample-o l
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limitation, and 'it'has that as'pects tat was. determined. by 4 . y. J1 Commonwe'lth. a Edison to be inappropriate, in that:100 percent of L1} ' 'those'typss of-inspections were ordered. n And'indeed,'that was
'13. .part of.the backlog that' cont!sibuted'to the backlog. The
- i c': 141 c reisson I step d away from the podium-is that Intervenor's Y
.15 Exh'ibit No.139 aN{fY160, and 200, should indicate that 100 j
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3 16 'p'ercent of the wells were inspected ~at this' time. f i JUDGE WILBER: What.were those Exhibits.again, . ;;<,; . p+> , ,
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y' 'r - 18 please? ,
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. ,c. 19 MR. GALLO: 39, 160, and 200. 1 "i
JUDGE WILBER: 20 And then I would also like some 9 7, , ,. 21 -clarification on something you said at the very outset of your G(f;Ny " 22 argument. I think I interpreted it as the issue here was jp jd 23 . whether Commonwealth had imposed prese.;e which was interpreted j 24' as harassment? I
- 4 47 gt * ;[O 25 It is certainly true, is it not, that if the Comstock Heritage Reporting Corporation I (202) 628-4888 !
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7 MR. dALLO: The answer is yes, and I wc41d agree with 8 l , '.' 4 your h'ypothetica(situation if you w>uld ad one a'spect to it, 8 9 that'the imp'tped r production prsepure,came.from Mr. Rowland, 10. bi the Comstock production' person. l\ >
', 1 JUDGE'WILBER:.yWell,.Pr. Sacklac was pb(aps an agent
'11' !
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- 12. un4 of Comstock in the first '1,ns'dnct)ll_ (' a{if <, it coulN h.se shown that 13 Sacklac's behavior resulted in impropbr haraa tent leading to
.14 improper work, certainly Commonwealth would have to bear the'
?
- 15. responsibility ultimate 1y A,, t, hat. ,
m {o ' 16 MR. GALLO: Ye//{tf,g, .s )if would. ] 17 JUDGE ROSENTHA b Mr. Ga lo', you have seven minutes s 18 left. ,/ ./ ,/s 19 i MR. ALLOD/((bjustwantedtoconclude--tryto 1 i- (' \ 20 conclude bil, tim-Nent pos ,Intav or ! !argue, and when it is 21 allsaidan'hdone, that the lir}osintJ board majority erred ~
\
-22 because it neglected to consider thi. perception issue. In 1'
3 23 fact, they did. Because you do not+1ookhat the perception ; A i 24 issue in a vacuum, you look to see whpther or not it'had any 25 impact, and the licensing makrit3 dId that.f They lhd ed atgit O Heritage rV Rrporti$g Corporation
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?ISC ' 57 iy :1. from'the standpoint of the corroborating evidence, I have 2 Ealready poin*ted'out,.and also.with respect:to the' reinspection. y
?3- evidence [thatwas: pres'entedonrebuttal,;andetthispol't,.I
. n io 4' wil,1 Jyield'to my colleague.
u b .5 4 JUDGE ROSENTHAL:. "' Mr. Steptoe? [;Il . 6 g. . MR. STEPTOE : ;Thank.you. . I.will.try to be brief.
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- 8. ' JUDGE ROSENTHAL - You will have'no alternative.-
'9 (4 MR. STEPTOE: I thinkuthe' primary point I want to 1
-10 make before I hear questions I.s'that Interveners claims in'this' 11- case from the. outset'is.-that harassment, intimidation, and so'- 1 12' forth, at Comstock was pervasive, widespread. They used;that-13 word firstl- :. systematic, powerful. Almost every, adjective you. I t
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- 14. can think of~.' And you have to think in-terms of Interveners' g ur
; j.- 15 claims.when.you are assessing the adequacy and sufficiency of
- 16. th,9 reinspection. evidence, to rebut those claims.
'17 "
'l JUDGE ROSENTHAL: Have you heard Mr. Guild's 18 explanation as to why in his view'the reinspection did not
'19. demonstrate that these inspectors did not succumb to the
( .f; '20 alleged pressure?. Now why is he wrong? sd: 21 MR. STEPTOE Well, he is wrong for several reasons. 22 First, he said that BCAP only looked.to construction work, and 23 that is nonsense. BCAP looked at work that was completed and
,24 was.Q/C accepted. .Therefore the reinspection of Q/C accepted 25 work, do shed light on. performance of the Q/C inspectors. I is o Heritage Reporting Corporation p (202) 628-4888 l-E 2 _
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.- 1 .have never heard that argument before today;and it is not in: q j
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' 2: the-brief-and it was not raised below. - And it is: simply wrong.
3 Second, he attached PTL on the, grounds th'at it-was a 4 sloppy and ineffectual program'because no' inspector was ever-5 disciplined due to the PTL program. That.is wrong,'too. 6 The purpose of the PTL program' initially was not to look'at 7.. Individual inspectors, and until June 1985,'it did not'look at, 8 focus in, on:Q/C inspector work. It-just looked at Q/C -l 9 . excepted work, to get an overall view of how Comstock was n-10 doing. } 11 However,there is evidence in this Record which 0/C
.12~ inspectors were disciplined,'the most recent -- the most 13 prominent'one is two inspectors, Hunter and Arndt in March
.O~ 14 1986, were fired for inspecting welds through paint.- It was 15 the'PTL over-inspectors who caught them.
16 In addition, there le another inspector, I think it 17 was Assmussens, who as a result of this review of the PTL.
'18 overinspection data, they increased the overinspection 19 frequency for that inceptor because he had a low agreement I 20 rate.
21 Finally, Rick Martin, back in the fall of 1982 had 22- his welding certification pulled as a result of overinspections l 23' performed about June 1982. Those overinspections are not found j l 24 in the PTL data base which is attached to Marcus' testimony, l 25 but that matter is discussed by Mr. Marcus in his testimony. O Heritage Reporting Corporation ] (202) 628-4888 - - - _ _ - - _ _ _ _ _ - - _ _ l
3 L 59 1 Mr. Guilds said that PTL reinspection evidence 2 cannot'be trusted,because it is non-probablistic -- it is a l 3 graph sample, the details of how that sample was selected 4 changed over time and it is fairly complicated. At the
~ beginning they just took. ten percent of the. welds'on each I +
5 6 . installation, okay? Then in about November 1984, they.took ten 'l
~
L7 percent of the installations,.for example, ten percent of:the i- 8. installations looked'at 100 percent, overinspectedL100 percent ; 9 of.'the welds, and it changed again in May 1985, so-all that is ! 10' in DiAntonio's testimony and the testimony of the PTL L, 11 witnesses. 'And it is fairly clear.
'12 JUDGE JOHNSON: But Mr. Guild's point'about 13 reinspectors avoiding the difficult welds, which can be the i O 14 hardest ones to inspect in the first place, what -- how do you a
15 obtain this? It sounds pretty reasonable to me that if you.do 16 not have a procedure to select welds to be reinspected, that 17 the reinspectors being human might select those that.were most 18 convenient. 19 MR. STEPTOE Well, the PTL overinspectors really had 20 no reason to pull their punches here. But that is a 21 possibility. I mean, it was not a statistically designed 22 sample, but is there any reason to believe that there is 23 harassment, intimidation is very. widespread out there. The 24 welds that were most convenient to inspect were the ones that 25 were good. It would -- and you cannot really tell. It depends O Heritage Reporting Corporation ! (202) 628-4888 4 l
-1
-60
/N, 4s / 1 on where.the scaffolding, where the. convenient welds are, and l 2 this is only during the period from up until November.-- I 3 .think it was November 1983 or_1984, when they were only l
4 selecting 10 percent of the welds on the installation. After 5 that. time they were overinspecting 100 percent of the welds on 6 each installation and that argument goes away. 7 The other point is that'our statistical expert in 8 this case was Dr. Frankel, and he said that a statistician l 9 cannot draw inferences from a non-probability sample. He did i 10 not say that nobody could. 11 In fact, if you read his direct testimony, he makes i 12 the point that non-probability samples are used very frequently j 13 in this context for all sorts of decisions that affect the
.O 14: public health and safety and including say drug testing, !
15 testing of products for safety standards, and what is necessary 16 is subject matter expertise, somebody who understands what you 17 are looking at and whether this is convincing. 4 18 And in particular the PTL sample, the real strength 19 of it is, it is distribution over time and its incredible size: 20 , you have ten percent of all the welds over a 40 year period ; 21 over the critical period, which is from November 1984 to April 22 1984 when this buildup over Sacklac was occurring, leading to 23 the 24 inspectors going in to complain to the NRC -- you have . 24 25 percent of the welding overinspected. 25 Now, 20 of these 24 inspectors were welding Heritage Reporting Corporation (202) 628-4888 1 w__:_- __ _-
i
? I .l,
^ '-
.)
.61 1 inspectors, and you have got,_I think,'19 in the sample.
2 . JUDGE JOHNSON: .Can you enlighten me in:what;the d" '31 Loriginal' purpose ofLthe'PTL overinspection program was?
- . 11 - -MR. STEPTOE
- Yes,'thatcis;inqMr. Marcus' direct '
5 ' testimony. Essentially when grant was starting out injl977, JOc. Shewski, the head of Commonwealth Edison:.Q/A. knew about,the
~
, 6 7- " Alaska Pipeline' welding problems,:and he justLdecided'that-
- 8. overinspection of weldings would'befa' good' idea to stay ahead' i
9 gof industry? problems. It was never a requirement of' Appendix'B' 10 'or.any other. industry code or standard, but isfsomething that' q l
- 11 Edison's Q/A' organization wanted to do.
12 ' ' JUDGE JOHNSON: Is this -- I mean, I am notLterribly
. 13 familiar -- was there a Q/A program on the Alaskan Pipeline?. /
O- 14' MR. STEPTOE I do not know that.- -i i ~ 115 JUDGE JOHNSON: I mean, he already had a 0/A program 16 as Appendix B provides, a Q/A program. Why was that'not enough .
. 17 to take care of the Alaska Pipeline problem syndrome? q l
l 18 MR. STEPTOE: I do not know the answer to that except 19 that 0/A programs -- I mean, Appendix B has been around since L 20 1973, but anybody familiar with this industry will tell you
)
. 21 that they have expanded and intensified over time, and I think-22 that Edison deserves credit on its own to do something in j 23" addition to Appendix B requirements.
I 24 JUDGE ROSENTHAL: Your time has expired. I will give. 25 you a minute if you want to present us with any cogent 1 C:) Heritage Reporting Corporation I (202) 628-4888 I 1 I L _._ __.l.m.._._.m_ _ _
62 11 conclusion.: I 2, MR. STEPTOE Mr. Gallo made some statements about 3 the quality of the work and he said tha't there were a large Lc . 4 number of defects that had gone unidentified. That was-5 establish'ed by the BCAP program. I 6 Well, he cannot have it.both ways. He cannot-say j 7 that without indicating that-98 percent-of the work was found '! 8 to be nondiscrep -- moreover, 2/3rds of the discrepancies were. ;
\
9 . insignificant -- none of these.were design significant, meaning 10 .none had'a potential impact on the safety of the public.
~
11 Similarly, 16 percent of the' welds were-discrep -- 12 that may seem high to you, but I submit to you, you'put a.BCAP 13 program into any plant in the country where.you have a set of LO '14 very good inspectors, you have overinspected by BCAP-Q/A, you 15 have overinspected by the Independent Expert Overview Group, 16 and you have Ron Garber breathing down their necks on behalf of 17 .the NRC, you are going to find some results. 18 JUDGE ROSENTHAL: Thank you. We will take a ten-19 minute recess and then we will hear from Mr. Barry. Very good, 20 Mr. Berry. .You may proceed. ; 21 MR. BERRY: May it please the Appeal Board, my name 22 is Gregory Berry. It is my pleasure to appear before you today j 23 on behalf of the staff, to urge you to affirm Licensing Board 24 Decision 8714. It is also a pleasure for me, Your Honor, to be 25 reunited with Mr. Gallo and Mr. Guild with whom I spent most'of O. , Heritage Reporting Corporation I (202) 628-4888 l
.t
'l l
63
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\ 1 .the year 1986 in.various courtrooms in Kankakee, Joliet, Marcum l
l 2 and Chicago. l: L 3. In' fact, Your Honor, exactly one year ago today, 4 October 21, 1986, we were in the midst of the 74th day of 5 hearing and by that time had received over 15,000 of the 18,000 6 pages of testimony and 350 of the more than 500 exhibits. l- .7f And I make this observation, Your Honor, to emphasize 8 what I_believe is an important fact th'at shouldn't be 9 overlooked here. And that is that the issues that were admitted ~ , i 10 for litigation in this proceeding were thoroughly litigated. '! ! 11. No witness deemed important by any party was denied the
- 12 opportunity to testify by the Board.
13 JUDGE ROSENTHAL: What's the relevance of that, Mr.
) i 14 Berry? The question before us is whether on the basis of this 15 record, whether it be voluminous or otherwise, the Licensing 16 Board reached the right result.
17 MR. BERRY: The relevance of that, Your Honor, is 18 that the record reflects the strongest case of each of the 19 parties. And why is that important? And the reason that is 20 important is because, as you pointed out for example, asked Mr. ! l 21 Guild for example, is there an instance, a single instance ; 22 where an inspector testified that yes, he compromised the l 23 quality of his inspections due to harassment, production i 24 pressure and intimidation. And the answer is no. And-it's not ' 25 for lack of effort, lack of opportunity to prove it.
.O Heritage Reporting Corporation (202) 628-4888
_2_______ __ _ - )
64 kh 1 JUDGE ROSENTHAL: But according to Mr. Guild, the 2 reason is that the totality of circumstances one could not 3 expect one of those inspectors whether there were 24 of them 4 testifying or 224 of them, to concede that he had not done his j 5 job properly. - 6 MR. BERRY: I disagree with Mr. Guild, and as you 7 pointed out, I believe that the threat of going to jail for 8 perjury or criminal consequences for not testifying truthfully I 9 would act as a more powerful -- . 1 10 JUDGE ROSENTHAL: Mr. Guild suggested that that isn't 11 a realistic fear because so much of this is subjective. 12 MR. BERRY: More importantly, Your Honor, the 13 testimony given by the individual witnesses themselves was O 14 consistent. It was consistent with statements that they had 15 made in a number of different fora over a substantial period of 16 time. We should keep in mind that the inspectors did not just 17 appear on the witness stand one day and respond to questions pu 18 to them by the interveners, by the Board, by the applicant, by 19 the staff. All of these witnesses were deposed by each of the 20 parties prior to their testimony and they were interviewed by 21 the Nuclear Regulatory Commission, the Regional Inspectors and 22 the resident inspector and the statements that they made were 23 consistent, were consistent in March of 1985, they were 24 consistent in January and February and March of 1986 and they 25 were consistent with the testimony they gave on the stand in O Heritage Reporting Corporation (202) 628-4888 l l
L i j l
. 65: 1 I?h. .
(). l' .'the Summer of 1986. i 2 Now,lYour Honor, we don't, you don't, and the. Board i f 3 didn't rely' totally on the inspectors' denial that no I did not
; 4 compromise the quality of my inspections due to harassment or 5- production pressure or intimidation. The~ evidence also as Mr.
1 6 Gallo pointed out contains extensive discussion by the l
. . l 7 individual inspectors as to how they went about doing their l 8 job. .And the thoroughness, the meticulousness,'the care that ]
~
a 9~ they brought to their task is. replete; It's extensive in that ! l 10 1 record. It's not plausible to believe that an-inspector who 11 would stand up to his boss and not, and refuse to sign.off an-
-12 NCR would -- and it's proven, that's corroborated, not only by
,. 13 that inspector but other inspectors by the inspector, I mean by 14 the manager who attempted to have them do that'and by' senior 15 management, that that inspector somehow on other occasions j 16 'would give in to the pressure.
17 There is no evidence of it. And that was an issue 18 .that was explored. And we left no path untraveled. We asked 19 the inspector, we looked at their work, they testified as to 20 what they did, how they did their work, they were asked whether 21 other inspectors, if they didn't did they know of other 22 inspectors who may have had it. And the answer is there was 23 none. 24 JUDGE ROSENTHAL: What significance do you attach to 25 the fact that a significant number of inspectors felt J
. (~%
V Heritage Reporting Corporation (202) 628-4888
f 66 l 1 constrained'apparently to go to Region.3fand to complain?-
- 2. Wasn't that an unprecedented event? I 3 MR. BERRY- As Mr. Guild pointed out, there was 4 testimony that in the history of the NRC that the resident 5 inspector at Braidwood was unaware of a similar occurrence.
6 But in point of fact what happened is that as Mr. Gallo pointed 7 out, as the staff has pointed out in briefs and.throughout this 8 proceeding,.the. day before that meeting took place, Mr. Saklak' jl ! 9.' threatened Mr. Snyder. 10 JUDGE ROSENTHAL: That threat was enough to get 24, 11 whatever number it was, inspectors to parade down to the 12 Region? f-s 13 HR. BERRY: Certainly, Your Honor, particularly when
~
14 you understand what the evidence shows, what the testimony is.. 15 We don't have to speculate on this point. This is the 16 evidence. And the. evidence was that there were six, that after : 17 being threatened Mr. Snyder decided to go to the NRC. Ho knew 10 his rights, he knew that he didn't have to put up with that 19 sort of behavior, and he was determined to take his complaint l 20 to the NRC. He communicated his intention to do so with some 21 of his coworkers and five of them agreed to.go with him to the , 22 NRC to relay their own stories and their own past run-ins and 23 encounters with Mr. Saklak and that we had the six in the 24 morning. 25 The resident inspector then communicated with his O Heritage Reporting Corporation (202) 628-4888
67 1 superiors in the regional office and relayed that, relayed what 2 had transpired. The regional officials directed the resident 3 inspector to direct.those six inspectors to come back to that 4 office during the lunch hour so a telephone conference could be 5 arranged with the regional-personnel and those six inspectors 6 to interview them, to question then, to find out more details j 7 .about what had happened. 8 The resident inspector when he relayed that
.9 .in formation , that. request to the six inspectors, he also said l 10 well,'it.'s lunch hour and you can bring anybody else who wants 11- .to come, anybody else who has a, who wants to talk to.the 12 region. They're free to attend also.
13 So those six went back, communicated to certain of 14 ~their-colleagues and ultimately 18 additional inspectors showed 15 up. Now, why did those other 18 attend? The testimony is 16 varied on that score. Some of the inspectors, Mr. Martin for 17 example, he testified that the reason he went was because he l 18 understood it was a-general gripe session, that the inspectors 19 were free to air any complaints, concerns, questions, problems, 20 that they had about life on that site to the NRC. 21 Other inspectors testified that the reason they went 22 was to present a united front. Other inspectors testified that 23 they were there to provide moral support for Mr. Snyder. In i I
- 24. this regard I point out for example, Mr. Rolan, Frank O. Rolan, 25 he testified that he was there to basically corroborate and j Heritage Reporting Corporation i (202) 628-4888 l l
L 'l c g l 4
- 68 H L /~'\ ; 1 t\ d.;
- .1 confirm-Mr.'Saklak's, Mr. Snyder's account because a couple.
2 ; months' before - Mr. Saklak had threatened tx) fire him. And he-31 didn'ttwant the NRC to'get the impression that'}de. Snyder might '-
L
- 4- be making this up.
5 JUDGE.ROSENTHAL: What was the reaction of'the. y
.6 resident' inspector or the other Region 3. people that might-have .
7 -been involved to.all this? > l 18 101. BERRY: 'What.was their reaction? As our resident 9- inspectors or regional 1 inspectors, all'NRC personnel are l 10- trained to do, they.take these matters. seriously. 11~ JUDGE ROSENTHAL: What do they do in taking them7 s
'12 . seriously? i 13, MR. . BERRY: They contacted their superiorsLin the
- 141 regional office and subsequently as a result of-that. contact 15 -there was the second,.the telephone conference was set up 16 during the lunch hour.
17 JUDGE ROSENTHAL: I understand that. What followed. , a ! 18 the telephone conference? " 19 MR. BERRY: After the telephone conference, the 20 regional inspector, I mean the regional officials, they did two l i 21' things, Your Honor. One, after being notified of this threat l 22 and this, the 24 inspectors coming to the NRC, they, first they 23 inquired of those inspectors whether they had any problem with ! 1 24 the regional officials contacting Commonwealth Edison against l 25 whom none of these allegations had been made to bring to O Heritage Reporting Corporation (202) 628-4888 i
~ ~ - - _ - - _ _ _ - _ _ - _ _ - _ - _ _ _ _ .
97^ m ,
+
. 3 s
4
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, 69
( 'l Commonwealth Edison's attention that there was.a problem or a-s2i potential problem in its QC department. So they did.that,
'3- number one,and-in fact they-contacted Commonwealth Edison, they' 4 ' brought.this. matter!to their attention and they demanded that f , 5' Commonwealth Edisonztake action to.look into this problem to 6 correct it'and to repdrt back to the: region by later.that: day 1 7
what'they_ proposed to do about it. 8- - Then.also what thel region did was they assigned.two j P ! 9 . inspectors to.go down to that, to Braidwood, to interview these , q 10' inspectors and:to determine whether any.of.the complaints, the 11 1 . concerns, the matters that they had brought up_posedfa threat
-12 to the public1 health and safety,.whether there was any-f 13^ implication'in terms of the hardware, were any of the: matters 14 that they were-complaining about, any'of the matters they had 15 raised, did it have the potential to affect the ability of a i
16 component or item to perform satisfactorily in service. And 17 they sent the' inspectors there. The inspectors performed that G 18 inspection, and in the course'of that inspection they s 19 identified, they interviewed the vast majority of these 20 ; inspectors who had attended this meeting. And in the course of 21 that-inspection -- 22 JUDGE ROSENTHAL: Excuse me, Mr. Berry. Isn't it j!
'23 true that the on-site resident inspectors wanted the regional
-24 office to send an inspector down immediately to take~ sworn ;
e 25 statements and the regional office declined to do so and it l L ( i Heritage Reporting Corporation j (202) 628-4888 j l l l
-- _---_- _ .__ 8
y> _ Y ' ..f ! 70 1 .wasn't don for another month? Is that true? 2 MR. BERRY: Yes, there:is testimony that, and in fact
.3- the resident inspectors did make that recommendation. And.the .!
4 testimony,from one of.the officials in the' regional' office is
.5 that when that. request'was made by the resident inspectors to 6 their management that they,.'the resident inspectors were !
7~ informed and directed.by their management to conduct those j 8 interviews themselves. That's.the testimony of Mr. DeWald, who-9< was the.--
'10 JUDGE ROSENTHAL: Did they have any investigation 11 expertise and-knowledge, these resident. inspectors? They're~ l 12 not in the' business of conducting investigations, are.they?
.13 MR. BERRY: No, not to my knowledge they don't, and
" O 14 as'well as none of the individuals in the regional office, on 15 -the part of the staff, are investigators either. They're 16 ' engineers they're scientists, they have technical backgrounds.
17 But, also what the regional officials did is they 18 contacted the office of investigations. As soon as they l 19 received this allegation from the resident inspectors, and they I 20 talked to the inspectors themselves, as is their practice, they 21 called in the Region 3 office of Investigation field office, ! 22 the Director, Mr. Pawlik, and they brought that to his 23 attention. Now, Mr. Pawlik didn't commence an OI investigation )
)
,24 right away.
~
25 JUDGE ROSENTHAL: Whatever may have been the scenario O: ! Heritage Reporting Corporation (202) 628-4888
p 71 i. I) v 1 that was-followed here, the fact does remain, does it not, that i l 2 24 inspectors were asked to raise their hands if they thought 1 3 that improper production pressures were brought to bear and 4- they all' raised their hands. Is that true? 5 'MR. BERRY: That is testimony of Mr. McGregor, the
+5 resident inspector.
7 JUDGE ROSENTHAL: Do you accept that testimony? Is , , i ! 8 there any contrary testimony? l 9' MR. BERRY: There was testimony.by one inspector that -l 10 readily comes to my mind who denlee having done that. But in j
-11 general, no, I believe that is what happened. I.would say 12 certainly a majority of the inspectors raised their hand when 13 this inspector, when this particular inspector Mr. Stout
( 14 indicated that quality, quantity is emphasized over quality. 15 .And I believe what the question was, the resident inspector l I 16 then said how many of you agree with that? And most of the 17 inspectors raised their hand. Now, you have to understand with 1 18 that particular inspector there Mr. Stout, the person.that 19 raised this matter at that meeting, that Mr. Stout had ten days 20 before been reprimanded for erratic attendance and a ) 21 substantial absenteeism and in the course of being reprimanded, 22 his written reprimand had indicated that part of the reason 23 that he only performed 34 inspections over a period of 21 days, 24 was because he was generally absent. How they computed that l 25 average, that 1.58 inspections per day, is that they used his, ; O Heritage Reporting Corporation (202) 628-4888 l l l I _ _ _ _ _ _ . - _ . \
L l l 72 l sm () 1 I these daily status reports that the inspectors were to fill 2 out.
~3 Now, they shouldn't have done that. Comstock l 4 management indicated to the inspectors.that that was not the 5 purpose of them and in fact Mr. Seese, the Deputy QC testified
~
6 that again Mr. Saklak shouldn't have don that but in fact he 7 'did that. So what has happened is you have Mr. Stout now has 8 .been reprimanded and his reprimand says his poor. performance is
]
! l
.9 based on the status reports that he has filled out so he goes 1
! 10 into the office ten days later and I don't believe that_it is L 11 unreasonable and I think is wholly understandable why he would l L 12 say that they are emphasizing-production -- ;
)
13 JUDGE ROSENTHAL: 24 inspectors, according to the 14- evidence,. raised their hands. Now, why does it take the NRC 15 one month to send people in to investigate? j 16 MR. BERRY: That action was consistent with the NRC's 17 policy, Your Honor. I 18 JUDGE ROSENTHAL: What, of letting these things go j 19 for a month? l 20 MR. BERRY: No, of bringing the matter to the 21 attention of the licensee who has a substantial interest in ] l 22- making sure that there are no problems in this facility and the 23 director of the policy of the EDO, in that case existing -- q 24 JUDGE ROSENTHAL: We get 24 inspectors that claim 25 that there has been undue production pressure brought to bear, Heritage Reporting Corporation (202) 628-4888 1 I
H i 73 I 1 that the NRC,'the EDO's policy in that regard is to deal with _
. I 2 the applicant and-then a month later send in inspectors, is 3 that right? Is that what you're telling me the Commission's 4 policy is?
5 MR. BERRY l I'll tell you what the_ policy is. The l 6 ' policy is that when you receive allegations-late.in the term 7 that it is the policy of the Commission that the NRC would 8 : bring those allegations to the attention of the licensee and-9 give the licensee the first opportunity to correct them subject i 10 to later audit and investigation by the NRC and that's what
- 11. happened in this case. It was consistent with the policy.
12 It's important to remember that the allegations' raised by these I 13 inspectors were not against Commonwealth Edison, they were not k 14 against Mr. Shamblin or Mr. Gieseker or Mr. -- 15 JUDGE ROSENTHAL: So the resident inspectors didn't i 16 understand this policy when they asked for immediate ' 17 investigation, they just were totally unfamiliar with the 18 policy? 19 MR. BERRY: That may well be. 20 JUDGE ROSENTHAL: Well, that is the inference that 21 you are asking us to draw . { i 22 MR. BERRY: I would think that is a reasonable i 23 inference to draw, then. But that is the policy. That is the l 24 . policy. And that was the policy in effect at the time, and the i 25 regional officials' actions were consistent with that policy. ; ( Heritage Reporting Corporation (202) 628-4888
. _ _ _ _ _ _ - = -
t Jl I
'74 -j JUDGE WILBER: Are you making a distinction _between anTinspection-and'an investigation?
~
2 I think you said Mr.
-3 Pawlik, was.it'-- i 4 MR. BERRY- Yes, n 5 JUDGE WILBER: -- determined that an investigation 4 l
6 was no-required? Did I understand you correctly?, 7 MR. BERRY: Yes. That's correct. See, Judge'Wilber, l' 8 the staff and most men in the pulpit don't always understand or' 19- appreciate this, is that investigations are conducted by the 10 office of inves,tigatione, an office responsible and answerable 11 to the Commission. [ (' _ 12- Inspections are performed by the regional personnel. ! 13; Now, when this matter was brought to the regional officials' 14-attention, they consulted the Office of Investigations and they 3 15 consulted the experts in this field in determining whether an 16 investigationofwrondoingorcrkminalmisconductwas 17- warranted. They communicated to the Office of Investigations 18 the substance of the allegations. 19 And the Office of Investigations made the ' 20 determination that an investigation by their office was no 21 warranted at that time. 22 JUDGE ROSENTHAL: So nothing happened for a month 23 either in terms of the regional office or in terms of the 24 office of. investigations apart from apparently communicating 25 with the applicant and saying something to the effect that l l
) l Heritage Reporting Corporation I (202) 628-4888 !
l l 75
.1 there seems to be a number of Comstock quality assurance 2 inspectors that believe there is undue production pressure.
3 That's all that took place in that month? 4 MR. BERRY: Well,.there are resident inspectors l l 5 continuously on the site. The NRC was present on the site l I 6 during that time. Also, they communicated with the applicant l 1
-7 and gave the applicant the first opportunity to clean its own 1 8 ho use so to speak. And as soon as that was done,then the 1
9 resident, then the regional office assigned two inspectors to 10 go to that site and commence their investigation. And that was 11 reasonable. It's not unreasonable. What that allows the NRC to 12 do is two things. .One, they can, they have the opportunity to 13 question the same inspectors-te a3 and review documentation, to 14 review hardware.if that is necessary and required but also what l 15 it gives them the opportunity to do is to review the licensee's 16 response. And the licensee who had this matter brought to 17 their attention were to take correctivo action, has taken the 18 action and it gives the regional office an opportunity to 19 review and assess the adequacy of the licensee's response and I 20 believe that is reasonable, I believe that it is proper in this 21 case and as the testimony indicated by another resident 22 inspector, a Mr. Neisler, a former resident inspector, he 23 indicated that he didn't agree with Mr. McGregor and Mr. 24 Schultz that an inspector or investigator needed to be sent to
-25 the site immediately, that work should be shut down pending an i l
n v Heritage Reporting Corporation (202) 628-4888
2 i 76 () l' investigation.. He' testified that his experience, and he had 2' .been a resident inspector at Calloway for a number of years, is 3 that -J t would have been important to send down an investigator
-4 or interviewer immediately'if there was a real danger of. ]
l
~5 evidence being lost, documents being destroyed, of radioactive. j I
6 releases, some effect on the hardware and none'of.the l 7 allegations or concerns expressed by the inspectors -- l l 8 , JUDGE ROSENTHAL: Mr. Berry,.was there any attempt on I 9 the part of the regional office to make a formal' determination 10 as to whether there were any violations of Criterion 1.
-11 involved?
12 I mean,_ presumably, the Regional Office is very 13 concerned, at least it should be concerned, with the matter as
~'
14 to whether the quality assurance regulations of this Commission. 15 are fully observed. 16 Here you have these allegations of-production 17 pressure which I would have thought would have suggested the 18 possibility at least that Criterion 1 was'not being observed. 19 Now, apart from calling to the attention of the utility's 20 management that there were these allegations, did the regional 21- office or anybody else in the Commission go into this question? 22 I mean, that as I understand it is really the heart of the 23 argument that is being advanced to us by the interveners is 24 that this all amounted to a violation of a very important 25 quality assurance criterion. D Heritage Reporting Corporation (202) 628-4888
8-l I. f 77
- ()- 1 MR. BERRY: Certainly that question was looked into,
.2 Your Honor. The regional office assigned Mr. Mendez, Mr.
3 Neisler to conduct an inspection, to go down to the . sit e, 4- interview all of these. inspectors to get to the bottom of it, 5 to address all the issues. i 6 JUDGE ROSENTHAL: Did they file a report? 7 MR. BERRY: Yes, they filed a report. It's' admitted 8 in' evidence as Staff Exhibit 17. I
'9 JUDGE JOHNSON: May I ask a clarifying question on i 10 that? _One of the positions taken by Interveners is that the 1
~
11 testimony by the 20 inspectors could not be believed when they 12 testified that they did not in fact. fail to make inspections as 13 a result of harassment because they would be afraid of job h%- 14 action or some penalty. Did the NRC investigation investigate 15 or offer confidentiality to the inspectors.that they ' - 16 interviewed and did they tell them or give them the opportunity
)j 17 to say without being subsequently harmed by it,yes, I have not 18- been doing my inspections properly? ]
19 MR. BERRY: Yes, they certainly did, Judge Johnson 20 and that is reflected in the testimony of the NRC inspector who 21 conducted these interviews, Mr. Mendez and Mr. Neisler. Those I 22 questions were thoroughly explored and the questions were put T 23 to the inspectors. The inspectors were promised confidentiality ! l
'24 and they were assured by the inspectors that what they said l 25 would not be used against them adversely.
Heritage Reporting Corporation l (202) 628-4838 j 1 _______ _a
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i l 78'
/^
(-)s 1 JUDGE ROSENTHAL: Promised confidentiality or ) l
.2 promised' confidentiality if it.were possible to maintain i
i 3 confidentiality? { l 4 'MR. BERRY: Yes. 5 JUDGE ROSENTHAL: They weren't given the absolute , .6 assurance, were they? 7 MR. BERRY: Yes, you're right, .it's the latter,.it's 8 the latter, Judge Rosenthal, and as it turned out, they did a l 1 9 pretty good job of keeping that confidential. What had 10 happened is that when the NRC regional officials, after they i I 11 had this meeting with the inspectors, they prepared a report, a ' 12 memorandum to themselves, they sent it out to each.of the 13 inspectors and said this reflects our understanding of your ; 14 concerns. If it does not, if you have any questions, comments, 15 ' clarifications to make, as to'our understanding. of your 16 concerns, please get back to us. 17 It somehow or subsequently made its way to the 18 intervenor and that's how these names were first known by any 19 party to this case other than the staff. And the interveners 20 had the opportunity to question those and their identify was 'l 21 further protected throughout discovery. 22 JUDGE JOHNSON: Let me ask, this is an inspection 23 report, the report of the inspection by the regional people j 24 that we're discussing here? Where is that in the record? . 25 MR. BERRY: It is admitted in evidence as Staff Heritage Reporting Corporation (202) 628-4888
)
l
. 79 !
3 '1 Exhibit 17. - 2 JUDGE ROSENTHAL: Does it go specifically.into the I
-3 matter of compliance with Criterion 1?
4 MR. BERRY: I don't recall.whether it says yes, 5 applicants'are in compliance with criterion 1 or no they're not 6 in compliance with. Criterion 1. As far as the adequacy of the i 7 program, that was approved at the later stage. And when I
)
8 answer your question, Judge Rosenthal, what the report does, 9 and what their objective was, each of the inspectors, cur 13 of 10 the 24 inspectors, had an opportunity to speak to the regional 11 officials and they made concerns, they raised concerns. Those 12 concerns were documented. Those concerns were given to the , 13 inspectors and they went out and conducted an inspection, 14- examination of those concerns. For example, one of them was- ! 15 whether there is -- are inspectors under pressure to increase 16 production. So they'd go out, they'd talk to the inspectors 17 that raised these concerns, they'd look at some of the-- i 18 paperwork to see whether there had been a significant increase 19 over a period of time. 20 JUDGE ROSENTHAL: Did they look specifically at the 21 question as to whether the inspectors had the requisite degree 22 of independence? Whatever degree of independence as the staff l 23 sees it Criterion 1 calls for. l u 24 MR. BERRY: Well, if that's not in one of the l I ' 25 headings or the subheadings, the headings of the report, it is D v 1 Heritage Reporting Corporation 1 (202) 628-4888
l I' . i L' , 80
\_/ 1 'certainly covered in that report and the report indicates that 2 they found that these inspectors had the requisite freedom and I' 3 independence and assurance to document deficiencies, that they a
e 4 were not' discouraged from documenting deficiencies or bringing i 5- matters of importance to safety or quality to.the attention of 6- their. supervisors. So when you read that entire report', what- .
-7 thatEreport reflects is what the evidence in this proceeding )
8- showed and that is that you had a Mr. Saklak~who was an l 9- individual ~that his temper got the best of him all-too often L l 10 and it caused problems throughout the' inspector work force, ! l 1 ' L 11' which as you recall was the reason why inspectors went to'the L 12 NRC on,that morning in March -- 13' JUDGE ROSENTHAL: Did the NRC inquiry into this focus O 14 on the statements to the effect that the backlog had to be 15 reduced? 16 MR. BERRY: Apparently this perception that these l 17 individuals -- l I
~18 JUDGE JOHNSON: May I ask a clarifying question?
19 When did the. inspectors go to the NRC? l E 20 MR. BERRY: March 29, 1985. l 21 JUDGE JOHNSON: When was the backlog? 22 MR. BERRY: The backlog was eliminated in September
-23 of 1984 I believe.
1 24- JUDGE JOHNSON: So there was about a nine month 25' period after the elimination of the backlog that we've heard lO Heritage Reporting Corporation (202) 628-4888
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( - 1. z about'unt11'the inspectors went'to see the -- the Comstock i i 2 inspectors went'to see the NRC residents, is that correct? 1' 3 MR. BERRY: Yes, Your Honor. L 4 JUDGE JOHNSON: So there is no reasonable nexus then 5 between the backlog in the summer of 1984 and the visit by - . - i' H 6 .these 24 inspectors tot he NRC resident in March of 1985 is i 7 there? l 8 JUDGE ROSENTHAL: Well, then, if that-is th'e case Mr. 9 Berry, where did their perception of production pressures come 10 from? Apparently they all raised-thol.: hands when they were l 11 asked whether they felt they were under production pressure. 12 Now, if it.didn't come from as Judge Johnson suggests, from
.13 these events of the prior year, where did it come from?
'O 14 MR. BERRY: 'Well, Your Honor, and again, I would like i 15 to state this at the outset and I want to ask you a question.
16 Staff has never taken the position in this proceeding that 17 there was no production pressure. I don't agree with the. 18 interveners that it is improper that there be production 19 pressure. There is always going to be production pressure 20 whenever somebody has a deadline or obligation to perform a 21 task. So the question is not whether production pressure 22 exists, it is whether it is unreasonable. Whether there was 23 undue production pressure. 24 And it is our position in this proceeding that no, 25 there was not undue, unreasonable production pressure. Now, O Heritage Reporting Corporation (202) 628-4888
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,4 2 pressure? Well, let's look back at it. In 1983, thejNRC l j 13 brought to the attention of Commonwealth Edison and!Coystock '
a jd'4 ,. l 4 that because of the then existing backlog, that the NRC3had a' i 5 concern over the ability of Comstock to perform its duties ' fi s ', l r
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6 properly. One, to eliminate that backlog and to be able to '
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i 7 per. form current inspections in a timely fashion because in'\ I' i 8 orderto,becausewhenyouperformyourcurrent'inspeyfons-.y 7, - l
- 9. timely, it allows you to detect -- \
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, u 10 JUDGE ROSENTHAL: Your time, Mr. Berry,.'hastexpired. )
' ) ft ,,
11 I would like a short answer to this question. .And thatkis ( . < 12 where did they get the perception that they were upder 13 productionpressure,.undueornotasitmighthavs/been, if it 14 didn't come from the backlog matter? , , , , ,, C 'n i 15 MR. BERRY: It came from the nature of their york, 16 Your Honor. They were inspectors in a nuclear power plant. 17 They had supervisors, they had bosses, there were tasks to'be '
.<q 18 performed and in the course of doing their job they were under
,(
I -l 19 pressure. 20 JUDGE ROSENTHAL: Everybody is under pressure. , 21' MR. BERRY: Exactly. < 22 JUDGE ROSENTHAL: That's not the kind of thing that 23 you normally would complain about. That's an incident of your 24 job. l i 25 MR. BERRY: And that is why I say, Your Honor, we l' m , U " Heritage Reporting Corporat on. (202) 628-4888 j," jh t ( 1
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1 1 r/ 1 f 1[ < W , 83- . h 1 should not\ put too much reliance on.this meeting on March 24,
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- 2. 1985. Aga'n, i they.went there to support Mr. Snyder.In 1 a ( .{
3 connection with the encounter with Mr. Saklak. As an aside, the . 4 inspector that I already discussed, he indicated that'he-
-l 5 thought production was paramount. And where'did he-get that i 6 impression from? Because he had been reprimanded-ten days 7
7 before for poor performance and that's where it comes from. . !/1 8 JUDGE ROSENTHAL All right. Your tim -- Y" 'l ' 9 JUDGE JOHNSON: Walt a minute. The time which you 10' will be given to speak has/no expired. I have one more j 1, 11 question. ,, , 12 'Part'of the intervenous position is that the meeting i y 13 between Mr.Shamblin of Commonwealth Edison,t Project Manager,and , p l V 14 Mr. DeWald, of'Comstock, was an integral part'of this improper ' ' 15 pressure by f the applicant, and a component of the perception of 16 harassment.that led to production over_ quality. In other words, 17 the meetings themselves. Now, my understanding is that'the j i e 1 18 meetings between Mr. Shamblin and Mr. DeWald were in fact 19 offered to the NRC as in response to 8309 or one of the NRC 20 inspection reports as evidence ,of. aIanagement control over the 21 construction site. Doty $u follow what I'm doing? I'm doing some , 1 22 background now. (,
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23 The questdon .is wit!h respect to Cnterion 1, how does (
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24 the NRC view an applicant, manager',sc losely overseeing the work l 25 of a subcontractor's quality assurance management? , l 0 ,' Herita.ge Reporting Corporation ,
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2 the staff views that favorably, whqt happened between Mr. '
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3 Shamblin and Mr. Dewald. At this joint, or't e staff discussed 4 it more fully in the brief, and I w.jtl,ld b( very brief in 5 response to yoor question, is that nAs we don't believe there
\
6 was anything wrong with the meeting. Yqu'have to remember that ,i 4 7 what had happened, the NRC had ac'eised Commonwealth Edison that 8 there was a need for Lcre aggrej ive Commonwealth Edison ' t' 1 i 9 Company , e 1 10 management and involvement in this quality assurance program,
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11 Now this had happened short'ly,'peks before Mr. Shamblin
), t 12 instituted these meetings with mis, DeWald.
And it is also is
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,m 13 important that you remembet(qhap, Mr. Shamblin did not quote
,) ' 9
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14 oversee or direct or supervisu Mr. DeWald or any of the other - 15 QC departments. HewasJdsicallytheapplicant'sliaisonto ( 16 the major contractors on the site. Mr. DeWald as well as the 17 other contractors, quality control department managers. They 18 had their chain of command and their reporting relationship. i 19 Now, what Mr. Shamblin did is he could communicate the 20 applicant's understanding priorities and wants and needs.But he 21 didn't have authority to override directions Mr. DeWald had received f roni his own managemen.t.
~
22 So,,ngn'I don't believe and 23 the staff doesn't believe tha't there'is anything improper or 24 einister or hdemful in the meeting or the meetings between 25 applicant Mr. Shamblin and Mr. DeWald and if you read that a j
; s Heritage Reporting Corporation (202) 628-4888 l
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- (/ 'l . exhibit that: was relied 'upon . by the interveners, the memoranda 2L from Mr. Shamblin to Mr.-lDeWald, you. read that in light oft.the. ,
1
- 73. events'that had happened, taken place shortly before then you. I 1
[, 4. will see'that that is consistent with a good quality practice, ] IO S that.the NRC was concerned'about the backlog at.that time..The
.6 NRC was concerned about Comstock's ability to timely complete l
4 7 its inspections and they communicated.that to Commonwealth 8 Edison who was responsible ultimately for that; plant and the 9 quality of that plant and its contractors and their action was 10 consistent with allaying one of the concerns expressed by the . 11 Commission and I don't think that any adverse inferences should 1 , ! 12- be drawn against them for doing that and I realize my time is. ) p 13 up and -- l ts : i 14- JUDGE.ROSENTHAL: Your time is up. 15 'MR. BERRY: 4- I thank you very much for your 16 indulgence. Thank_you.
, t 17 JUDGE ROSENTHAL: Mr. Guild. -i d
18 MR. GUILD: Thank you, Your Honor. How much' time has i 19 Une Board -- l 20 JUDGE ROSENTHAL: 15 minutes, i 21 MR. GUILD: The effort by the NRC staff in response l l 22 to the complaints by the 24 inspectors was inadequate not ! 23 simply in the intervenor's opinion but in the opinion of the j i 24 site resident inspector who entertained the complaints in the l 1 25 first instance. A former Braidwood resident, Leonard l 9 Heritage Reporting Corporation j (202) 628-4888 l s
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-%(d ' 1 MacGregor, as has been previously argued, asked for an j 2 aggressive, immediate investigation with trained investigators l 1
3 and he didn't get it. When Mr. Mendez was sent to the site a 1 3 l ~4 month later, he prepared a draft report that Mr. MacGregor l 5 reviewed as wholly inadequate and he complained to his
'6 supervision at the region that the Mendez effort was simply a 7 . sham. And at that point Mr. Neisler was assigned..And Mr.
1 8 MacGregor's opinion of the final product changed a little when 9 he viewed the end result that wasn't produced.for months yet to ! 10 come, i 11 In fact, the allegations were against Cctimonwealth 12 Edison. Company. And that point is made by Mr. MacGregor and gs 13 Mr. Schultz's own memorandum to their supervision. They said we. d 14 have had complaints about Edison pressure on Comstock QC for l 15 months and Edison has not been responsive. That's why we urge 16 you to stop work if necessary and make an immediate response. ! 17 They understood, MacGregor and Schultz did, that this ; i i 18 was not an isolated matter of Mr. Saklak, although certainly he 19 was a major part of the problem, but that it was a matter of 20 pressure that came systematically through the Edison 21 Construction Superintendent's office. 22 Mr. Gallo's description of Mr. Shamblin's interaction 23 with Mr. DeWald is benign indeed. What is not mentioned in the 24 action plan that my colleague referred you to was the explicit j 25 direction reflected in our finding 112 that the letter directed O Heritage Reporting Corporation (202) 628-4888
87 (~/ 1 'DeWald and others,Mr. Rolan in particular, who ran the 2 production side of Comstock,.to increase inspector production 3 by -- and'the'resulting inspection output -- by a' thorough 4 review of inspector field practices. that was one of the clear 5 mandates to Comstock QC and Comstock production that was i 6_ supportive of the letter that said we want results quickly, we. ! 7 want results right away. i 8 Turning to the -- l 9 JUDGE JOHNSON: Well, we just heard the NRC counsel i 10 indicate that the" meetings between Shamblin and DeWald were in 11- fact in their opinion a' proper exercise of applicant authority l 12 over what is going on at the site and it seems to me that there l 7s 13 is a sort of a fine line here between the -- you are'saying the ) t' 'I 14 existence of these meetings per se was almost a violation of a 15 Criterion 1 or a component of the harassment. It looks to me 16 like there is a fine line between what is appropriate applicant i 17 oversight and an activity that might be construed as 18 harassment. Do you agree with that? 19 MR. GUILD: I do and I think that our view is that 20 systematically, organizationally there was a problem that the 21 NRC should have responded to much earlier in the relationship 22 between Mr. Shamblin in the capacity of site construction 23 superintendent and the contractor QA programs because in a 24 fashion that I think is unprecedented, and certainly has been 25 disapproved of in decisions by this Board, Mr. Shamblin /'h ) k4 i Heritage Reporting Corporation (202) 628-4888 l i
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) 1 controlled not only the production. side of theEcontractor work 2 bout he also controlled the quality assurance side. It put him:
3- in a dual position where he could bring in the Comstock's Mr. ')
'4 'Rolan,.who was the construction superintendent, Comstock's Mr.
5 DeWald who was the Quality Control Manager, have them in a. j 6 meeting at the same tim and say the primary job is getting this .! 7 backlog done. I think that puts undue pressure, j 8 JUDGE JOHNSON: Isn't that almost an error in the ! l 9 process?- In other words, we're dealing with a schedule. The .j l 10' quality assurance work surely has to go on at a rate l 11 commensurate with the production work or you have what has been ! 12 described in this record as a safety problem in itself. In
-j 13 other words, if production gets too far ahead of QA or QC, then 14 you have a backlog. So when you are talking to people about 15 schedules, about getting things done, they have to move l 16 together.In other words, we just heard that production on l 17 safety related stuff was stopped by Mr. Shamblin at some point -
18 in order to allow the QC to close the gap between what had been 19 generated and what had been inspected. 1 20 MR. GUILD: Your Honor, I think the answer to the
.i l
I 21 question is that you have to build into the program the 22 independence called for in Criterion 1 and one answer you know 23 in hindsight is why shouldn't Edison's QA organization, Mr. 24 Shewski or some other person in a position of independent 25 responsibility with a direct line to the senior management of I 1 l f~) (_s l Heritage Reporting Corporation (202) 628-4888 l l 1 __________________a
k I k V n, p,.. 89.
'l the company, have the control over'the site contractor's QA.
2- ~organi.zation so.that if there were a problem he would have the
-3 . organizational authority.to be able to protect quality control, s
4 l quality assurance.
- 5 It didn't-happen, and~I think organizationally,part-6 of the problem was having Mr. Shamblin in charge. Our point is
- 7. as-a' matter.of fact in implementation there is no' doubt in'our.
8 mind thatlthose meetings were not benign. Those meetings- ;
'L 9 terrorized Mr. DeWald and he communicated in turn that urgency j 10 to his inspectors-we think improperly.
( 11 JUDGE ROSENTHAL: Mr. Guild, the , when I posed.the 12 matter.to Mr. Gallo as.to whether there were.some objective 13 indications that these inspectors.had not succumbed to whatever !
'z( )' 14 pressures might have been brought to bear, he referred to 1
i 15 certain actions taken by some of those inspectors which.he said
' 16 demonstrated empirically that the inspectors, at least those 17 inspectors, had~not allowed the perceived pressure to interfere
'18 with the performance of their duties. j 19 I'm sure you've got some response to that and I'd 20 ~1ike to hear it.
21 MR. GUILD: Mr. Gallo makes a good point. And I l l 22 think that those inspectors have all of the attributes that his 23 Mr. Laney and that Mr. Gallo himself would attribute to them in 24 terms of their courage and their forthrightness and I don't 25 dispute any of that. What is the reality though,as Judge Heritage Reporting Corporation (202) 628-4888
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$-- 1 Grossman found in his minority finding, Finding 281,.these were l 2 the inspectors who were most likely to resist. .That is a clear 3 inference, they are the ones that went to the NRC after all.
4 They are the ones that had committed themselves prior, 5 .previously, they had a memo. documenting in-writing what their 6 positions were and they were most likely to be in a position to 7 say yes,I stood up and I resisted Saklak. Moreover, I think it l' 8 is human nature, and this is what our industrial psychologist j 9 suggested in his testimony, we all tend to remember the i 10 instances where we did well. We all tend to recall with i 11 glowing terms when we were heroic. We tend to -- our memory 12 clouds when we recall the times when we knuckled under and s 13 didn't do as well as we thought. And I think that phenomenon
~(#]a~
14 went on here as well. t
'15 Rarely do you see these inspectors volunteering a 16 time.when they knuckled under. And the exception does exist, i
'1 l 17 For example, Mr. Martin's name came to mind.Mr. Martin I i
18 candidly, an unusual man, Mr. Martin said you know back in the 19 days when I worked alongside Irv DeWald doing Level 2 welding 20 sections, we were under production pressure and I suspect that 21 my work, the quality of my inspection work suffered as a 22 consequence. I may not have caught all the defects. I may have 23 missed some. You know, that is an unusual and candid l 24 admission. e 25 The bottom line point I believe, Your Honor, is that O v Heritage Reporting Corporation (202) 628-4888 l
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1 .this record'should.not rest on the testimony of these 2 . courageous quality control. inspectors. What.they,are telling: .. 1 J3 the Nuclear Regulatory Commission, that I urge you to heed, . is - l 4 that'therefis a problem at-L. K. Comstock Company at'the S Braidwood site. They are. inviting the Nuclear Regulatory 6: Commission to take the aggressive initiative to get to the root i 7 cause of that problem. 8 JUDGE.ROSENTHAL: By doing what? 9 MR. GUILD: By doing a. thoroughgoing investigation'of J l 10 .the issue that .they raised to you. But you can't force'them to 11- not.only have the courage to have brought the matter to the ! l
.12 NRC's attention but to have shouldered the entire burden'of 1 13 proof -- i 14 JUDGE ROSENTHAL: What would'you have us do? Would I 15 you have us say that okay, as the interveners claim, there were 16 undue production pressures and those undue production pressures 17 may have or there was at least a production of undue production l
18 pressure and that perception may have notwithstanding the 19 denial of these inspectors had the effect of shoddy QA 20 inspection and therefore because of that possibility, no 21 operating license and the applicants are directed to take the 22 . plant down. Is that what you are asking us to do? 23 MR. GUILD: What I would have this Board do is find 24 that the applicant has failed to carry their burden of proof. l 25 Then as in by analogy the Byron proceeding, the responsibility i Heritage Reporting Corporation (202) 628-4888
92 ( ). 1 would be on the applicant's initiative in the first instance to 2 propose a corrective action. 3 JUDGE ROSENTHAL: You would have us find they failed 4 to meet their burden of proof? 5 MR. GUILD: Yes. 6 JUDGE ROSENTHAL: And this you would say that neither 7 the testimony of these inspectors that the perception didn't 8 affect their performance nor the reinspection programs 9 represented a carrying of that burden of proof? 10 MR. GUILD: They certainly do not rebut what we 11 believe is a prima facie showing that criterion 12 had not been 12 complied with. 13 JUDGE ROSENTHAL: Wait a minute. If there is a 14 violation of a criterion, in and of itself, that doesn't 15 require the plant walls to be taken down, does it? The question 16 is is there a nexus between the violation of that criterion and 17 an improperly built plant? 18 MR. GUILD: Absolutely. 19 JUDGE ROSENTHAL: Where is that in this case? 20 MR. GUILD: In your analysis in the calloway 21 proceeding, you opine and I think it's consistent with this 22 record, that if you fundamentally in a pervasive and a 23 programmatic fashion, you couldn't have anything more 24 programmatic than a failure to ccmply with Criterion 1. It 25 undermines the confidence and the integrity of the quality O Heritage Reporting Corporation (202) 628-4888
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-! 2 ' : JUDGE'ROSENTHAL: .' Pervasive violation of' Criterion:l' 73 - makes it pervasive, beginning to end. .Or wasLit-a few. isolated 9
'l
.4- incidents which you claim had. the ef fect of' impinging upon the '
s5" LindependenceL- . 6 MR." GUILD: . Judge,.if.this isn't" pervasive, and you-
- 7. can in'all conscience find-this,..these are isolated cases,-I 8: invite you to do-so..
9- JUDGE ROSENTHAL:' .. W hat is. pervasive? What are the'
'10 events.that you say collectively made this pervasive?. 4 11- -MR.1 GUILD: The production! pressure from Edison--in.
'12 turn;on.Comstock management exhibited in:. individual' instances e, A '13' of production pres'sure and1 harassment and intimidation'..We=
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14 -don't waive by any means'our. assertions that1we made out cases.
' 15: .of. individual'. retaliatory treatment as the minority opinion 16 found but.the fact-of the matter is the pervasive question is q
17' ' addressed and settled 1by the testimony of the inspectors'and j
. .1 18 the. concession'of applicant that'there'was a widespread. belief, l q
19 understanding is their word, perception -- j 20 JUDGE WILBER: Perception, and not actual pressure. I 21 MR. GUILD: That's not my word. Perception is their 22 word, Judge,and because it's a concession on their part I in
.23 fairness use their own language. The understanding, belief, l i
'24 which we think is what formulates human activity, you know. !
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- 25. People behave because they have an understanding or a !
Heritage Reporting Corporation (202) 628-4888 ! 11.. - __ u
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~Y ! .[V D :1 perception. And these inspectors' perceived that they were to 1 2- sacrifice quality for quantity. That's'all.
3' JUDGE ROSENTHAL: Yes, but if that was an .! i 4 unreasonable perception how can you saddle the' applicants or 5 Comstock with a violation of Criterion.1? I mean criterion 1 I 6 would think is a, has to be viewed objectively. You can get' . l 7 people who see the goblins under the bed where they don't exist j
.q 8 and who form perceptions which have.no basis in fact. Don't we' )
9 really have to ducide if we're looking at the matter of a 10 violation of Criterion 1, not at whether there was a perception l;
- 11. on the part of these people that there was undue. pressure but 12 whether the applicants and/or Comstock had done something which -
13 would constitute a violation of Criterion 1 and therefore would ;
./~% , -( / 14 legitimately be looked upon by the inspectors as undue I
j
-i 15- pressure. l 16 MR. GUILD Well, I think there are two points. )
- 17. First, I think that from a matter of industrial psychology and ,
18 human behavior, it's perception that counts. It's what 19 motivates people, it's what causes them to act. And I think 20 that underlies Criterion 1 as well as the legal matter because 21 I think that if applicant allows a circumstance to develop, ! 22 through benign cause, through malice, through whatever cause, 23 and it fails to detect that inspectors are not free to do their , 24 job of identifying defects, then the responsibility for 25 remedial measure, for diagnosis and remedial measure, falls ! ( < Heritage Reporting Corporation (202) 628-4888 i
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1 squarely on the applicant. 2' It is an objective question, Your Honor, it is not a ) 3 subjective on. Subjectively, what is the understanding of 4 those inspectors on which they are prepared to act? O
- 5. JUDGE ROSENTHAL: But it has to be a reasonable 1 l
6 understanding. I 7 MR. GUILD: It doesn't have to be even reasonable,. 8 Judge, because the fact of the matter is if -- 9 JUDGE ROSENTHAL: If I take a course'of action with 10 respect to one of my employees, and one of my,and that employee i 1 11 chooses to read into that action something which a hundred 12 objective observers would agree was entirely unreasonable, why l I
'13 should I be hung on it? i 14 MR. GUILD: Here's your problem, Judge. . What you are 15 concerned about is whether that welding inspector detects, 16 identifies and documents a deficient weld. It's the result that ;
1 17 matters. Now if that inspector acts improperly for the wrong ; 18 reason because he's erroneously believed Mr. Worley Puckett was ! 19 fired in retaliation, the fault still occurs. . 20 JUDGE ROSENTHAL: Then it might be that you would 21 have a fault occurring, to use your language, without any 22 violation of Criterion 1 at all because let us suppose that 23 Criterion 1 was observed to the letter. Everybody had to agree 24 with it. But in fact through entirely irrational thinking, 25 inspectors came to the conclusion that we're being pressured L (v) m Heritage Reporting Corporation (202) 628-4888
e -m t - J. 96: 1 c i
- (_ ~)J l' and then acting-on that perception,' irrational though'it may '!
l2 .be, they didn't do.their jobs. Then.in that circumstance, I 3 suppose you would agree, that we've got a potential safety l 4- problem irrespective of whether contention, excuse me, i 5 Criterion.1 were complied with or not.- l i 6 MR. GUILDS, Well, sir, I think that the bottom line i 7 is you've got to worry about whether those inspectors were free-8 to do their job. And it's their understanding and belief and- -l 9 actions that count. Now, what I would-suggest to you -- 10 ' JUDGE ROSENTHAL: We have to worry about whether they 11 .did their job. Isn't that really what this comes down to? l l 12 MR. GUILD: Whether they were free to do their job.
~
13 Because if they're not free to do.their job you better h) 1 3 v 14 understand why those 15 percent of the welds that were , i 15 reinspected under BCAP were found to have rejectable defects ! 16 that weren't detected by QC, There is no evidence'in this ;] 17 record to suggest that a a 15 percent failure rate on safety l 18 related welds meets Commission regulatory standards and I hope 19 there never will be -- ! 20 JUDGE ROSENTHAL: Was there any evidence addressed to 6 21 the question of the significance of a 15 percent failure rate? l 22 I mean I assume that if the evidence reflected that there was a 23 15 percent failure rate, that there would have been evidence 24 adduced on the question of the significance of that rate, 25 evidence adduced either by the -- if it was endeavoring to I Heritage Reporting Corporation (202) 628-4888
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(,): :1 minimize'the significance of that orlon behalf of the j 2 Jintervenors,1f the interveners 1were endeavoring to establish- ;
;3 that'a 15' percent deficiency rate or. discrepancy rate'.was '{
4 significant., 5' MR. GUILDS. The burden of proving the safety.of the. J 6 -Braidwoo'd station is not on the interveners. And we offer.no i I 7 evidence on that score. But'neither did applicant. The r best we i 8 can say is that Mr. Gardner, who was-the NRC site inspector ~who 9 oversaw implementation of BCAP said 7 that according to his J10 . standards-he thought that the' level of defects found by BCAP 11 were too high.1He.said I'm not offering expert opinion to that l 1 12 statement, to that effect, but I'm telling you that that level csg 13 of rejectable conditions in my personal high standard is too
14 high.
15 Now, that is the only record evidence we have on the .- 16 question. That,is far short of applicant carrying its burden 17 to'either prove the. plant is safe, reasonable assurance, or 18 rebut the prima facie showing that there has been production . 19 pressure and a Criterion 1 violation. 20 You have this 15 percent weld reject rate and the 21 other defect rates found under BCAP and they're staring you in 22 the face unaddressed and unexplained, Your Honor. And I 23 submit to you that if anything they corroborate the fear that 24 that production pressure has undermined the effectiveness of 25 the quality-control.
'( )
Heritage Reporting Corporation (202) 628-4888
-f 9-98L 1? JUDGE'ROSENTHAL: Your time has expired.:Let'me1just:
'2 -see?if;I can summarize'your position'at'least as I understands j J3. it.
l s
.4 Andlthat is, your position is that there,zwas at least
)
5 a perception of undue pressure, that.that perception stemmed . T6 from what you deemed to have.been violations of;CriterionL1, 7 and that notwithstanding the testimony of these quality 8' . assurance inspectors that'they.had no succumbed to the i 9 pressure,1that the applicant did not1 carry its burden of proof-on that matter and in that connection I take[it your position 10 j
.- R
- 11 -is.that the reinspection did no establish'that the inspectors. ]
12 had done their job properly.
. 13 Is that' a f air basic . summary of your position? 1 D L14 MR. GUILD: Two points,- Your Honor. One is.that the l 15 perception is' conceded-to be widespread among the inspectors, j l
16 not isolated. And-secondly, that BCAP never purported to be a ' 1 17 measure of QC performance. It'is simply a reflection of 18 hardware adequacy at a point in time. And on that score we 3 19 think it reflects -- 20 JUDGE ROSENTHAL: Did you think also that the PTL 21 reinspection was not a fair measure? j l 12 2 MR. GUILD: I agree, I do and I just refer the Board
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L > 23 to the minority findings of fact on the PTL score. It deserves i l 24 to be accorded very little weight because it's just not an j i 25 effective overinspection program. j 1::L L Heritage Reporting Corporation ! (202) 628-4888 j l'
i
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- 99. d r%
(,) 1 JUDGE'ROSENTHAL: Thank you, Mr. Guild.-
)1 1
2- MR.' GUILD: Thank you, sir.- !
-3 JUDGE ROSENTHAL: On behalf'of'the entire Board, I l 4 wish to thank counsel for their spirited presentations this ,
5 . morning. And on'that' note, the Intervenor's Appeal from the
.6 Licensing Board's May 19, 1987 Concluding Partial Initial'
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7 Decision will stand submitted. 8 -(Whereupon, at ~ 12:32 p.m.,.the hearing was l l 9 adjourned.) i i l 10 ------- 11 . I 12 i 13 j
- (:Y 14 l
l 15 j; 16 ! 17 18 ; i 19 , i 12 0 21 22 23 , 24 l 25 O ' Heritage Reporting Corporation (202) 628-4888
I 100 1 REPORTER'S CERTIFICATE 2
)- UNITED STATES NUCLEAR REGULATORY COMMISSION
. s./
.3 DOCKET NUMBER: 50-456 OL; 50-457 OL
,- %g
*1 ., 4 CASE TITLE: COMMONWEALTH EDISON COMPANY BRAIDWOOD STATION, UNIT NUMBERS 1 AND 2 5 HEARIN,i DATE: October 21, 1987 6 LOCATION: Bethesda, Maryland j 7
I hereby certify that the proceedings and evidence 8 are contained fully and accurately on'the tapes and notes 9 '
. reported by me at the hearing in the above case before the 10 ATOMIC; SAFETY AND LICENSING APPEAL BOARD PANEL.
11 , 12 13 Date: October 21, 1987 14 15 16 M . Official Reporter HERITAGE P.EPORTING CORPORATION < 18 1220 L Street, N.W. , Washington, D.C. 20005 20 21 23 ( 24 25 l HERITAGE REPORTING CORPORATION
, (202)628-4888 l
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