ML20236P110
| ML20236P110 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 07/31/1987 |
| From: | Gallo J COMMONWEALTH EDISON CO., ISHAM, LINCOLN & BEALE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#387-4158 OL, NUDOCS 8708120223 | |
| Download: ML20236P110 (75) | |
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/ AUG -3 P 3 :53 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSON OFOCE F ,;- >As' M CKETifa A t i:V Ci.
B*ANc4 BEFORE THE ATOMIC SI.FETY AND LICENSING APPEAL BOARD
.In the Matter of )
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COMMONWEALTH EDISON COMPANY ) Docket Nos. 50-456_D D
) 50-457 (Braidwood Station, )
Units 1 and 2) )
BRIEF OF COMMONWEALTH EDISON COMPANY Joseph Gallo Philip P. Steptoe ISHAM, LINCOLN & BEALE Peter Thornton 1150 Connecticut Avenue, N.W. ISHAM, LINCOLN & BEALE Suite 1100 Three First National Plaza Washington, D.C. 20036 Chicago, Illinois 60602 202/833-9730 312/558-7500 8708120223 870731 PDR G
ADOCK 05000456 PDR 6[)
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' TABLE OF CONTENTS Page
- I. -INTRODUCTION . '
. . . . . .. . .. . . . . . . . .. . . 1 II.- ARGUMENT'. .;. .. .. . . .. . . . . . . . . . . . . . . . 5 L A. 'The Licensing: Board Majority Correctly
" Applied.The Applicable Standard For
- Actionable Harassment . . - . . . . . . . . . . . . . . 5 B. .The Evidence Supports.The Majority's Conclusion 1That Edison Did'Not Improperly Pressure Comstock To Compromise y Quality Standards . . . . . . . . . . . . . . . . 13 C. .The Evidence Supports The Majority's Conclusion That Comstock's QC Managers j Did'Not Improperly Pressure Inspectors'To compromise. Quality Standards .. . . . . . . . . 22 D. -There Is No Merit to Interveners'1 Argument That Inspectors' Perceptions Of Harassment
--Even Though Unfounded--In-Themselves Demonstrate A Pervasive Breakdown In Comstock's QA Program . . .. . . . . . . . . . . . 36 E. .The Licensing Board Majority's Conclusion
'That Inspector Effectiveness Was Not Compromised Is Supported By Overwhelming Evidence' .. . . . . . .- . . . . . . . . . . . . . 36
- 1. The Inspectors' Testimony . . . . . . . . . 39
- 2. The Reinspection Evidence . . . . . . . . . 43
- a. The Reinspection Evidence Is Adequate For The Purposes Used In This Proceeding . . . . . . . . . . . . . . 47
- b. The BCAP and PTL Reinspection Evidence, Taken Together, Reliably Cover The Relevant Time Replacement Periods'. . . .. . . . . . . . . . . . 49
- c. Agreement Rates Are A Reasonable Measure of Inspector Effectiveness . . 53
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- d. .Sargent & Lundy's Design Significance Evaluations Were Objective . . .. . . 60 F. Judge Grossman Unlawfully Found A Lack Of Reasonable Assurance On The Basis
-Of An Issue Over Which The Licensing Board Had-No Jurisdiction .-... . . . . . . . . . . . 66 69 III. CONCLUSION . . . . . . . . . . - . . . . . . . . . . . . .
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TABLE OF AUTHORITIES K ' NRC' Decisions- i Paae(si )
/ V . Consolidated Edison Co. (Indiana Point' Station,
- Unit No. 3), CLI-75-14, 2 NRC 835'(1975) .. . . ' . . .- 37 Duke Power Co. (Catawba Nuclear' Station, Units
- 1 and 2), ALAB-355, 4 NRC 397'(1976) . . . . . .. . 6, 37 Duke' Power Co. (Catawba Nuclear Station, Units 1 and 2),. LBP-84-24,.19.NRC 1418 (1984), aff'd,
. Duke Power Co. (Catawba Nuclear Station, Units
- l y and 2 ) ,: ALAB-813, 22 NRC.59'.(1985)'. . . . . . . . .4, 5, 8, 14,35,42
" Houston'Lichtina and' Power'Co..-(South Texas n Project, Units 1 and.2), LBP-81-54, 14-NRC 918.(1981) . . . . . . . - . . . . .. . . . . . 67 Louisiana' Power and Licht Co. (Waterford Steam Electric Station, Unit.3),-ALAB-732, 17 NRC 1076 L (1983)..,. .-.... ;. . . . . .. . . . . . .. . . . ' . 38 Texas Utilities Generatina Co. (Comanche Peak Steam
. Electric Station, Units 1 and 2),-CLI-81-24, 14 NRC 614 (1981). . . . . . .. . .. . . . . .. . . . 67-
. Texas Utilities'Generatina Co.-(Comanche Peak Steam Electric Station, Units-1 and 2), LBP-83-60, 110 : NRC: 6721 (1983) . . . . . . . .~ . . . . . . . . . . . 42 Union' Electric Co. (Callaway Plant, Unit 1),
ALAB-740,.18 NRC 343 (1983) , . . . .. . . . . . . .6,33,34, 35 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 319 (1972). . . . . . 6 l A
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~ Statutes-and Regulations 52 U.S.C.-55857 . . . . . .. . . . . . . . . ~ . - 34 10 CFR l'50.7 . .. . . . . . . . . . . . . . . . 34 10 CFR 5 2.'743 . . . . . . . . . . . . . . . . 64
. 10 CFR 5 2.104(c) . . . . . . .. . . .. . .. . 67 1 10.CFR 5 2.760a . . . . . . . . .
. .. . . . . 67 Other' Authorities' Memorandum, Chilk to Rosenthal, Cotter and Bickwit, Raising of Issues Egg Soonte in Adjudicatory Proceedings, June 30, 1981 . . . . .. . . . . . . .. 67 l'
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' UNITED STATES OF AMERICA-l NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY'AND LICENSING APPEAL BOARD i
/In the Matter of )
.)-
COMMONWEALTH 1 EDISON COMPANY ) Docket-Nos. 50-456
) 50-457' j
-(Braidwood Station, )
. Units 1 and 2) )
BRIEF OF' COMMONWEALTH EDISON COMPANY I. INTRODUCTION
' Commonwealth Edison Company (" Edison" or'" CECO") hereby
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files its brief in'this' appeal'taken by Interveners'Bridget Little Rorem, 31. al. (" Interveners"), from the Concluding' Partial Ini-tial Decision, issued by the Atomic Safety.and Licensing Board on ;
'May 19, 1987.
The decision appealed from decided'in Edison's favor Interveners' contention that Quality Control ("QC") inspectors employed by L. K. .Comstock, Inc.-("Comstock"),.the electrical ,
contractor at Edison's'Braidwood Station, had been harassed and
-intimidated. -The majority of the Licensing Board rejected.the allegations that Comstock management had pressured QC' inspectors to compromise' quality standards in order to processLinspections
'more rapidly and-that management had retaliated against inspectors
'for' raising safety concerns. -The majority found that.although.in some instances'Comstock management had " crossed the line of ac-ceptable behavior" in dealing with QC inspectors, such instances
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of their duties, and41n fact did not degrade that performance.
1 (Majority Opinion-("Maj. Op.d), p. 74.) Judge;Grossman wrote.a separate opinion, in which he found that comstock management had exerted " production pressure" on the QC inspectors and.had in some, i
instances. engaged.in retaliation against inspectors for raising safetyLconcerns.. He agreed with'his colleagues, however, that'the Jadequacy of the QC inspections had not,been compromised by' manage-ment actions and that, as to the issues raised by Interveners'-
I contention, there is reasonable assurance that the electrical' system can be operated without endangering the public health and I safety. (Minority opinion.(" Min. Op."), pp.'33-34.) Judge Gross-man went on, however, to-find against-the Applicant on an issue (grid area weldninspections) not within the scope of the harass- l 1
ment contention and.therefore not before the Licensing Board. H
.i Although.he recognized'this' jurisdictional defect, Judge Grossman nonetheless concluded that this issue stood in the way of a-rea-sonableiassurance finding. (Id., pp. 35-38.)
F Interveners' appeal is grounded on the assertion that the Licensing Board majority gave-insufficient weight to the fact that many comstock QC inspectors believed that management was improperly pressuring them to produce too many. inspections and thereby exalting quantity over quality. This perception on the part of the inspectors, Interveners point out, was evidenced by the visit of 24 inspectors to the NRC in March 1985. Interveners d
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find three bases for this perception. First, they argue that inspectors correctly perceived that Edison was pressuring Comstock- j
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.to' eliminate a large inspection backlog and threatening loss of
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the electrical' contract if this were not accomplished. Second, !
I they. argue that inspectors correctly perceived, through manage-l ment's exhortations at weekly meetings and through management's
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use ofEinspection: status repo_ts, that Comstock management was more interested in the quantity of inspections than in the thor-oughness'and-quality of inspections. Third, they argue that.
inspectors believed, rightly or wrongly, that individual inspec- q
'tdrschad been harassed'and retaliated.against. .
Interveners do not attempt to argue the merits of wheth-ertindividualEinspectors were harassed or retaliated against, even though such allegations were the focus of Interveners' evidentiary
- presentation and argument below.' Interveners do not challenge the conclusions of the majority, with which Judge Grossman disagreed, h.
that Comstock had not engaged in harassment or retaliation wit'h 3qh 4-.
L[i " regard'to inspectors Puckett, Perryman, Archambeault and Martin. l gS' : Interveners.have instead shifted the focus of their appeal to a j legal theory'not accepted by any of the Board members.
In Inter-I venors' view, whether or not haras'sment occurred is immaterial so long as inspectors-believed it occurred.1 To be sure, Inter-n an venors-argue on appeal that the inspectors were. correct in be-
.lieving that Edison was pressuring Comstock management, which was k
ki 1 ~ Interveners make much of the fact that Edison's Proposedi j Partial Initial Decision ("PPID") submitted.to the Licensing t Board agreed that many inspectors perceived Comstock: manage-
?( ment-actions as harassment and. improper pressure. (Int.(Br.,
Y pp. 3, 7, 9-11.) Only Interveners' misguided legal theory, however, could accord dispositive weight to this, fact when, as' Edison also explained (PPID, pp. 36-51), the perception
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resulted from misunderstanding.
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i in turn pressuring them for greater production at the expense of quality. But that is no more material, in Interveners' view, than the fact that inspectors believed, whether correctly or not, that individuals had been subjected to harassment and retaliation. It i
is this perception of pressure and harassment, whether or not justified, to which Interveners think the Licensing Board gave insufficient weight. In Interveners' view, this perception gives rise to a strong inference that the adequacy of the QC in:pectors' work was compromised. Interveners therefore devote the major emphasis of their brief to explaining why the extensive record evidence that the inspectors performed their duties adequately, whatever their perceptions, is in their view insufficient to overcome this inference. This being the case, they say, the inference stands, and the Appeal Board must reverse the Licensing Board's decision. Allied to this argument is an argument, set forth separately, that in reaching its conclusion the Licensing Board improperly imposed the burden of proof on Interveners.
Finally, Interveners attempt to capitalize on Judge Grossman's unjustified excursion regarding grid area weld inspec-t3>ns. They argue that Edison did not meet its burden of proof on this issue, notwithstanding that the issue was not part of Inter-venors' harassment contention and thus not before the Licensing Board.
Because Interveners do not challenge on brief the re-jection by the Licensing Board majority of their allegations that individual inspectors were harassed and retaliated against, they have waiiad these issues on appeal. Duke Power Co. (Catawba
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i Nuclear Station, Units 1 and 2), ALAB-813,.22 NRC 59, 65-66 (1985). Accordingly, Edison does not address these issues herein except insofar as they relate to the asserted perceptions of the ,
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I inspectors. This brief will demonstrate that the voluminous evidentiary record compiled in this proceeding amply supports the other conclusions reached by the majority. Edison will show the fallacy of intervanors' position that management wrongdoing is irrelevant so long as inspectors feel aggrieved. Edison will show that the evidence supports the majority's conclusion that CECO did not impose improper pressure on Comstock management. Edison will show that the evidence also supports the majority's conclusion that Comstock management did not pressure QC inspectors to compro- ]
mise quality standards, and will show that Interveners' reliance on weekly meetings and status reports as evidence of such pressure is misplaced. . Edison will show that the evidence amply supports the Board's. conclusion that the quality of the QC inspectors' work was not compromised. Finally, Edison will show that Judge Gross- {
l man had no authority to raise the issue that he cited as prevent- )
ing a finding of reasonable assurance. In short, Edison will show that the record in this proceeding compels affirmance of the s l
Licensing Board's Order. 1 II. ARGUMENT
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A. The Licensing Board Majority Correctly Applied The ADD 11 cable Standard For Actionable Harassment, i I
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4 The function of the Appeal Board on appeal of a licens- )
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ing board's initial decision is to review the decision for suffi- !
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a ciency and correctness. An essential element of such a review is i
an inquiry into whether each of the essential findings of the i I
l licensing board is supported by " reliable, probative and substan-tial evidence of record." Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 310, 322 (1972).
This standard of review is not the deferential one which is ac-corded to an agency decision by a federal appellate court. Duke j power Co. (Catawba Nuclear Station, Units 1 and 2) , ALAB-355, 4 NRC 397, 402-04 (1976). Nonetheless, while it is the duty of the Appeal Board to reject or modify factual determinations which are neither well founded nor rational, it will not ordinarily, as a i
reviewing tribunal, substitute its judgment for that of the li- J censing board on factual matters. Egitt_ Beach, suora, 5 AEC at j
322. When the credibility of evidence turns on the demeanor of a {
witness, the Appeal Board gives the judgment of the licensing board which saw the witness and heard his testimony "particularly great deference." Catawba, suora, 4 NRC at 404. For example, when faced with the argument that the Licensing Board had ignored serious doubts about the candor of certain applicant witnesses in a case raising claims of quality assurance deficiencies, the Appeal Board declared itself " unprepared to substitute" its judg-ment for that of the Licensing Board. Union Electric Co. (Calla-way Plant, Unit 1), ALAB-740, 18 NRC 343, 367-70 (1983).
These cautions are especially appropriate in this case.
The majority of the Board recognized that this is not the typical case adjudicated before a licensing board, in which technical issues of design or construction are at issue. (Maj. Op., p. 71.)
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Rather the Board in this case was required to sift through and evaluate voluminous evidence given by a large number of people from a construction site relating their memories of what they and <
others had done, said, thought and felt over a period of several years. The appearance on the stand by many QC inspectors elicited voluminous anecdotal evidence, much of it hearsay, ranging from particular confrontations between inspectors and their superiors to the inspectors' interpretations of management policies and .
l their perceptions of inspector morale. In all, some 60 witnesses produced approximately 18,000 pages of oral testimony and spon-sored more than 500 exhibits over 97 days of hearings. (Id.,
- p. 6.) In evaluating this mass of material, the Licensing Board was required to determine "many questions of perceptions and credibility in addition to questions of pure fact." (Id., p. 71.)
In order to evaluate the Licensing Board's conclusions ,
on this mass of evidence, one must first have a clear idea of what the Board was looking for. Interveners' contention asserts sys-tematic and widespread harassment and intimidation of Comstock QC inspectors by their management, as well as instances of retal-iation by management against inspectors who raised safety and :
quality concerns. A central problem in this proceeding was the definition of what constitutes harassment. With regard to retal-iation, there was no similar problem. Because the term "discrim-ination" (taken to be synonymous with retaliation) is defined by regulation, the parties have been on common ground in discussing whether or not actionable retaliation had taken place in a given instance. The definition of discrimination in 10 CFR S 50.7, i
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- insofar as it is applicable in this proceeding, ties the pro-hibited misconduct to quality concerns, in that it prohibits adverse job action against employees who raise safety or quality concerns with the NRC.
The regulations contain no definition of harassment, j because they contain no express prohibition of such conduct.
Harassment.has merely been regarded as a violation of Criterion I of Appendix B to 10 CFR Part 50, which requires an applicant to have-an effective quality assurance program. Accepting this as true, Edison proposed to the Licensing Board that it adopt in this proceeding the definition of harassment persuasively formulated by the Licensing Board in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), LBP-84-24, 19 NRC 1418, 1520-21 (1984), aff'd, ALAB-813, 22 NRC 59 (1985). (Tr. 1405-06; PPID, p. 20.) That i
definition provides the nexus -- required for a violation of Criterion I -- between conduct defined as harassment and the lack l j
of an effective quality program:
The inspector's job consists of identification and documentation of compliance or deviation from construction procedure according to prescribed procedures. Any action taken by another rmolovee or suoerior intended to {
modify the actions of the insuector for the j Durcose of imoedina the crocer performance of l the insoector's task is considered to be i l
harassment. The use of or threat to use physical force or other violence is obviously }
the most overt form of harassment, but harass-ment can be more subtle, taking the form of oral invectives or behavior designed to intim-idate, embarrass or ridicule the inspector.
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I Catawba, supra, 19 NRC at 1520-21 (emphasis added). The Catawba i Licensing Board also recognized that the harassment contention before it alleged improper " company attitudes and practices," and that the intent of interfering with the inspectors' performance i
I could, as is usual in the law, be inferred from the circumstances surrounding an incident alleged to constitute harasement. The. i i
Board held, however, that to be sustained such a contention must j involve " specific instances of misfeasance." Id. et 1433.
Edison proposed the Catawba definition to the Board early in the proceeding as a definition of actionable harassment, but Chairman Grossman rulod that there was no need to be, precise about the definition of harassment, preferring instead to let'each witness use the term according to his own understanding. (Tr.
1408-09.) The subsequent course of the proceeding. demonstrated that harassment was a common word in the vocabulary of QC inspec-j tors, but that it served to cover a wide variety of grievances against'their management. Inspector Terry Gorman thought that-harassment meant being asked to do his job. (Tr. 5746-49.)
Inspector Robert Wicks thought that he was harassed when people !
made him angry by repeating things he didn't like. (Tr. 7052-53.)
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Others applied the term to any conflict with a superior, wherher or not the superior's conduct was directed toward compromising the l
inspector's adherence to quality standards. (Rolan, Tr. 4660-74, 4692-94; Archambeault, Tr. 12284-88, 12602-12.)
It is plain why Interveners never acceded to the Catawba definition of harassment. They recognized that close analysis of the record yields only a few isolated instances in which manage-i
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i ment attempted to impede inspectors in the performance of their ]
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tasks. They therefore did not want the Licensing Board to deter- ]
mine whether specific instances of misfeasance had occurred. They wanted to paint a picture of a " poisoned atmosphere" at Comstock, presenting a case in which insinuation takes the place of factual l evidence demonstrating misconduct. Nor did Interveners shrink i I
from facing the logical implications of this approach. They argued to the Licensing Board, as they have done on appeal, that the " poisoned atmosphere" was enough to entitle them to prevail on their contention. That is, a decision in Interveners' favor would !
be compelled if the inspectors felt disgruntled and resentful of' management for whatever reason, or if_they perceived, without any foundation in fact, that harassment of inroectors was occurring.
Neither law nor common sense supports Interveners' novel theory.
Under this theory, all allegations of harassment are self-validat-ing. Thus, an applicant for a license to operate a nuclear power plant would be required to conduct a reinspection program whenever a rumor or an allegation of harassment of QC inspectors became common knowledge among the inspectors.
Tne majority of the Licensing Board properly rejected Interveners' theory. The majority correctly posed the question before it as follows: "Did the cc.mmonwealth Edison Company inten-tionally and unreasonably pressure Comstock's quality control managers to increase productivity? Second, as a result of this pressure or for whatever reason, did Comstock quality control managers systematically engage in conduct intended to pressure quality control inspectors to overlock deficiencies and accept
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discrepant work?" (Maj. Op., pp. 71-72.) Thus the majority l
L correctly recognized, as had the gatawba board, that the key issue 1
is whether the evidence demonstrates management conduct intended to impede the proper performance of the inspectors' duties. The majority concluded that the evidence did not show such conduct.
The majority found that Edison's actions towards Comstock were ,
necessary and reasonable. (Id., p. 72.) They found that the actions of Comstock management towards the QC inspectors were less l clear cut, because some of them " crossed the line of acceptable behavior," (Id., pp. 72-74.) Moreover, the majority of the Board recognized that there were " demonstrated instances of harassment or production pressure;" indeed, the Applicant conceded that there were such instances. (Id., p. 74; PPID, p. 49.) Nonetheless, the majority concluded there was no evidence that any of these in-stances "was intended to have an effect on the quality of the inspection or to promote the failure to observe defects in work-manship." (Maj. Op., p. 74.) Thus the majority gave a negative response to both of the questions they had posed.
Initially, it appeare'd that Judge Grossman accepted the Catawba definition of harassment. Although he used the word loosely, he apparently agreed that only harassment "in a quality sense" (Min. Op., p. 30.) was violative of Criterion I and, hence, material in this proceeding. Thus he found that inspectors Peterson and Bowman had been " harassed," but concluded that the i incidents were typical of those to be expected on any construction site. (Id., p. 32.) He also recognized, at least at one point, that "we are not here to examine Comstock's management practices,
except to the extent that they affect quality control require-ments." (Min. F. 190.)
Judge Grossman, however, did not apply the Catawba definition consistently. His erroneous conclusions that Edison improperly pressured Comstock and that Comstock improperly pres-sured its inspectors are attributable to this conceptual confu-sion. Judge Grossman stated:
I do not agree that only concrete acts of harassment and intimidation can evidence improper production pressure by management in violation of Criterion I of Appendix B to Part 50. Exhortations by management to in-crease production at the expense of. quality, even if not accompanied by harassment and intimidation, constitute improper production pressure.
(Min. Op., p. 31.)
Edison does not disagree that exhortations to increase production at the expense of quality are improper.
Edison submits that such exhortations, which would amount to a management directive to violate procedures, would clearly consti-tute harassment under the Catawba rationale. Judge Grossman, however, concluded that Edison and Comstock had engaged in im- )
proper " production pressure" despite being unable to point to any )
I specific evidence of wrongdoing. ("I did not find any evidence in ;
l this proceeding of such a general Quality Control management practice of encouraging inspectors to disregard quality for quan- )
i In finding that improper production pressure had tity." (14.))
occurred though he could cite no supporting evidence that specific acts of misfeasance had taken place, Judge Grossman departed from the assential element of the Catawba definition of harassment. He l
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concluded'that acts of misfeasance by management need Dat be shown int the record before it can properly be concluded that production pressure "in a quality' sense" occurred.
Judge Grossman cruches his position in such a way that' noLintentional-wrongdoing on the part of management need be shown Ltoijustify an adverse finding. It is enough that several Comstock.
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inspectors testified'that management had given them pep talks at which they were. warned that if.the work.in hand were not com-
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plated, Comstock might.-be in' danger of-losing its contract. Judge Grossman made'this testimony do double duty. He not only used it to concludeLthat management. exhortations were improper, despite his-finding that inspectors were not encouraged to' disregard I
quality. .He also used it to find that Edison improperly-pressured LComstock:by? threatening loss of the contract,.although all the idirect evidence on this pointLwas to the contrary. (Shamblin,
. Prep. Test. at 30 ff..Tr. 16274; DeWald, Tr. 1347-49.) -These very tenuous'and questionable inferences are entitled to no probative weight.
B; The Evidence Supports The Majority's conclusion That Edison Did Not Improperly Pressure Comstock To i Comoromise Quality Standards. (
Interveners attack the conclusion reached by-the Major- 1 ity of the Licensing Board that CECO did not improperly pressure Comstock to produce a greater volume of inspections at the expense of quality standards.2 Their position echoes the dissenting 1
2 Interveners do not advance, on appeal, their arguments of- l (Footnote' continued on next page) !
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-opinion of Judge Grossman on this issue.3 Judge Grossman con-cluded that Edison's Construction Superintendent, Dan Shamblin, had exerted improper pressure on Comstock QC Management to force j them to eliminate a backlog of installed work awaiting inspection in 1984. (Min. Op., pp, 31, 7-8.) There is no credible basis,
'however, for concluding that the weight of the evidence is con-trary to the majority's finding.
When Dan Shamblin became CECO's Construction Superinten-dent in May 1984, he found that the Comstock QC Department was 1
confronted with a sizeable " inspection backlog." That is, there was a large and expanding body of electrical work which had been installed by the craft but which the QC inspectors had not yet been able to inspect for compliance with quality standards. l (Shamblin, Prep. Test. at 8-9, Attch. 2 ff. Tr. 16274; Int.
Ex. 8.) Shamblin recognized that the Comstock inspection backlog presented a potential quality problem. There was a large volume of electrical work whose quality was not being verified in a L
(Footnote continued from previous page) r fered below that the interaction between Shamblin and Com-stock's QC management constituted a per se violation of Criterion I. The argument should, therefore, be deemed waived. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 65-66 ( 19 8 5 ) ..
3 In fa;t, in several instances Interveners' arguments on appeal consist of little more than adopting pertions of Judge Grossman's Minority Findings of Fact which Interveners incor-porate by reference in theli brief. (Int. Br., p. 7.)
Interveners' brief appends five Minority Findings (numbers 1, 2, 37, 41 and 212) which are not incorporated by reference in their brief. Because Interveners thus have not properly raised any of the matters contained in those findings, the Appeal Board should disregard them.
I manner sufficiently timely to permit the identification of poten-tial adverse quality trends. (Shamblin Prep. Test, at 8-9 ff. Tr. 16274.)
Shamblin took a number of steps to assist the Comstock !
QC Department in eliminating the backlog. Shamblin recognized i
that Comstock's QC Department had too many assignments that were l competing for priority treatment. Therefore, one of Shamblin's first steps was to develop a set of work priorities for Comstock, based on information provided by Comstock's QC management. By setting these priorities, Shhutblin enabled Comstock to address more effectively the various tasks it faced. (Int. Exs. 8, 12; Shamblin; Prep. Test., Attch. 2 ff. Tr. 16274; DeWald, Tr. 1352- j 55, 1298-99, 1306-07, 1854; Saklak, Tr. 8125-26, 8227-28, 8249-50; Shamblin, Tr. 16309-14.)
In addition to setting work priorities, Shamblin sought j to alleviate the workload on Comstock so that it could proceed with-inspections. In addition to assigning four Sargent & Lundy
" loan servants" to Comstock to perform QC inspections (Shamblin, Prep. Test., Attch. 1 ff. Tr. 16274), by early June he had devel-oped nearly two dozen other action items intended to reorder, l reallocate and reduce the workload facing Comstock QC. (14.,
Attch. 2.)
Shamblir monitored Comstock's progress on its endeavors to reduce the backlog through periodic meetings with, and weekly 1 status reports from, Comstock QC management. Those reports pro-vided both Edison and Comstock with data to judge Comstock's performance and to target areas for improvement. (Id. at 9-10.)
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'As Shamblin continued observing Coms t ock's performance, it became apparent that Comstock would not eliminate its inspection backlog by the original July 1984 target date. While he was prepared to suspend Comstock's production work if that became necessary, his evaluation of the QC Department led him to conclude that it was handling satisfactorily both the backlog reduction and the inspec-tion work necessary to support ongoing installation efforts; and therefore he agreed to schedule extensions requested by Comstock.
(Id. at 14,.17-18.) The backlog was ultimately eliminated in September 1984 (Id. at 17.)
One reason Shamblin was appointed Construction Super- {
intendent was to increase awareness of quality assurance concerns on the part of Ceco's construction management. (O'Connor, Tr.
10063-65, 10032.) Shamblin's job was to oversee the work of the Braidwood on-site contractors such as Comstock. He was respon- l I
sible for monitoring Comstock's on-site engineering, production j f
and quality control departments to ensure quality construction of ;
'the Braidwood. electrical work. (Shamblin, Prep. Test. at 3-5 ff. Tr. 16274.)
Shamblin's stated philosophy is to build quality into the construction by ensuring that skilled contractor engineert and craftsmen are used; that these personnel receive the appropriate l training for their jobs; and that they perform their work to approved installation procedures. The qua]ity of completed con-struction is verified by ensuring that trained and certified i quality control inspectors using approved inspection procedures l inspect the construction work and by ensuring that the contrac-b-
_ _ _ _ _ . __.m_ ._. __ _
U t O:-
q' '
_17_
/
tor's. quality organizations are independent of contractor produc-tion organizations. Shamblin=also assures that the-contractors'
)
QA organizations conduct audits and surveillance of their engi . j neering, production and QA areas. (M.,.p. 4.)
Further, Shamblin belisves that although quality.must E function independently of engineering and production, all three q
departments must work as a team to achieve successful completion ]
of a project. That is, engineering personnel and craftsmen must L.
be' indoctrinated with quality principles, so that the work is l
correctly performed in the first. instance; quality personnel ]
should be indoctrinated with those same quality principles and
.a'd vise the craft of the results of'QC inspections in timely fash-ion, so that: adverse trends-'in craft work can be identified and corrected. By. overseeing all'three areas, Shamblin would ensure that the proper checks and balances necessary for each contractor to produce.a quality product would be maintained. (M. at 4-5; 1Rg also Laney,' Prep. Test. at 9-13 ff. Tr. 17245.)
The majority concluded from this evidence that the i
inspection. backlog was a potential quality problem and that l l
Shamblin's activities to eliminate it furthered quality rather than degrading it. (Maj. Op., pp. 14-15, 72.) They concluded that, given the need to eliminate the backlog, Shamblin's conduct i was necessary and reasonable. (M., p. 72.) This conclusion is j l
dlearly supported by the evidence just cited. Interveners, of course, wish to draw a. contrary conclusion, and they cite, incred- )
i 1 'itably, the majority opinion..in support of their position, as well as, a letter written by Shamblin to Comstock (Int. Ex. 8.), an i
h 1
I asserted lack"of ' record support. for Shamblin's allegiance to i
'I quality,.and shop talk among Comstock QC-inspectors. (Int. Br.,
L p. 8.)
l
-Interveners' reliance on the majority decision to estab- 4
'lish. improper; production pressure by Shamblin is easily dismissed.
Theyfsimply.mischaracterize the majority's' decision at page 8 of.
their Brief. What the majorityEstated, at page 15 of their opin- l l
. ion, was: 1 There.is no doubt that considerable-pressure was put on DeWald by Shamblin, including the ,
possibility of a work shutdown if progress on= !
reducing the backlog was not made. In the 1 Board's opinion, this was a:necessary-action considering-the potential consequences of not reducing the backlog.- consideration of this circumstance leads us to conclude that there was no unreasonable' pressure on comstock management or QCl inspectors . . .. 1 Nothing at page 15 or'elsewhere in the majority opinion supports Interveners' position. Similarly,: Interveners' assertion that the record is " devoid of any concerns expressed by Shamblin about the l l
quality of Comstock's work" is also easily dismissed. The unre- !
butted direct testimony of Shamblin demonstrates otherwise.
~
Interveners also argue that the mere fact Shamblin sent DeWald a letter on June 9, 1984 (Int. Ex. 8) requiring that
" reduction of the backlog be the first priority and positive l
results must be seen.very shortiv" compels reversal of the majori- l l
ty's finding that Shamblin did not engage in improper pressure.
Interveners appear to take the position that Shamblin's underscor- l ing'of "first" and "very shortly" compels a finding that Shamblin j l
l i
1 l
f was exerting improper production pressure at the expense of quali-ty. Neither law nor common sense requires such a conclusion. As ,
{ '
the majority found, action was required to reduce the backlog (Maj. Op., p. 15) ; and the June 9, 1984 letter represented a major first step in taking such action. Quality requirements of'Appen-dix B required that reduction of the backlog be the first priority of the entire Comstock orgahlzation, including the Production and Engineering Departments. Moreover, it was consistent with Appen-dix B to expect " positive results" very shortly. It is notewor-thy that Shamblin did not demand the elimination of the backlog very shortly, merely that oroaress in that direction be shown very shortly. Interveners' reliance on Shamblin's use of underscoring in the June 9 letter in an attempt to prove undue production pressure simply illustrates the dearth of evidentiary support for Interveners' position.
Interveners also infer that Shamblin had sinister moti-vations of production pressure merely because he and DeWald met periodically during the June to September 1984 timeframe to moni-tor Comstock's progress in reducing and eliminating the backlog.
There is no evidence of any undue production pressure or other improper conduct resulting from either Shamblin's meetings with DeWald, or thereafter, when DeWald returned to the task at hand.
It is not reasonable for Interveners to infer, from the mere fact that Shamblin held such meetings, that he engaged in improper conduct at them.
Interveners, lastly, argue that the majority erred in not finding that Shamblin engaged in improper production pressure 1
Il / 1 h 1
.I because'" Edison's' pressure on Comstock QC for faster production ~
+ 'and11ts threat-to cancel Comstock's contract were matters of L ' considerable shoptalk'among Ccastock QC inspectors." (Int. Br.,
- p. 8.) It is here that Interveners' depart from Judge Grossman's 1 formulation in~his separate. opinion. Instead of inferring improp- q
)
er' production' pressure from shoptalk as Interveners;do, Judge j Grossman concluded that Shamblin, in fact, imposed improper pres- !
sure on Comstock management to accelerate the speed of inspections ~
<atLthe expense of quality standards.- (Min. op., p. 31.) Central to this conclusion is Judge'Grossman's finding that Shamblin threatened DeWald with loss of the electrical contract if the R quantity of completed inspections was not accelerated.- (Id.)
There is no' direct evidence of this. Both DeWald and Shamblin denied ~that'such a threat'was made. (Shamblin, Prep.. Test. at'30 ff. Tr. 16274; DeWald, Tr. 1347-49.)4 i
~ Judge Grossman's finding is' based primarily'on the. fact that, unlike the majority, he~did not believe Shamblin's testi-mony. Disregarding this testimony, he relied on unsupported inferences from essentially neutral facts establishing that:
-(l) Shamblin held weekly progress meetings; (2) several inspectors
.said that'DeWald had exhorted the men to greater effort warning '
that the contract was in jeopardy if the backlog were not elimi-nated; and (3) several years later, Applicant-brought another electrical contractor to perform some of the work on Braidwood 4 Shamblin also testified that he was not contemplating adverse contract actions, but was, on the contrary, satisfied with Comstock's performance. (Shamblin, Prep. Test. at 18, 30, Attch. 3'ff'. Tr. 16274.)
1
i I
Unit 2. (Min. Op., pp. 8, 10-11.) Reliance on the weekly prog- j l
ress meetings is misplaced for the reason stated suora, namely, it is not reasonable for Judge Grossman to infer, from the mere fact that Shamblin held such meetings, that he engaged in improper ,
L l
conduct at them.
It is true that in November 1985, a portion of the 1
electrical work on Unit 2 was reassigned from Comstock to another {.
on-site contractor. This action was necessary in Mr. Shamblin's j judgment because Comstock was fully occupied by the work on Unit 1 and its substantial participation in the licensing hearings con-cerning Interveners' harassment contention. (Shamblin, Prep.
Test. at 30-31 ff. Tr. 16274.) Judge Grossman rejects this testi-mony and seizes on the event as demonstrable proof that Shamblin j threatened to terminate the Comstock contract in the summer of 1984. (Min. Op., p. 31.) He does not explain, however, how the reassignment of part of the electrical work on Unit 2, almost 14 months after Comstock's QC Department had righted itself and eliminated the backlog in September 1984, establishes the alleged j l
threat. There is no reasonable nexus. I l
Interveners, understandably, do not join in Judge Gross-man's innuendo on the contract threat issue. They do not allege Instead, they state l that $hamblin, in fact, made such a threat.
(Int. Br., p. 8) that CECO's threat to cancel Comstock's contract was a matter of considerable shoptalk among Comstock QC inspec-tors. Such hearsay is not probative, and Interveners' reference .
l to the shoptalk is a manifestation of their main theme that per-
, I I
L l
1 l
ceptions'of harassment, true or not, are actionable violations of !
I Criterion'I. This matter is addressed below.
CECO submits that the evidence shows that the later letting ri a portion of the electrical work to another firm was unrelated and did not result from any dissatisfaction of Shamblin l with Comstock. Even if Interveners' and Judge Grossman's infer- l ences were reasonable, however, it certainly cannot be said'that the contrary conclusions'of the majority were unreasonable. In particular, where, as here, the credibility of witnesses is in issue, the conclusions of a trial board should not be disturbed unless' clearly contrary to the evidence. (See pp. 5-6, supra.) f C. The Evidence Supports The Majority's Conclusion That Comstock's QC Managers Did Not Improperly Pressure Insoectors To Comoromise Quality Standards. l
'l l
Interveners attack the conclusion reached by the major- l ity that Comstock's QC manager, Inr DeWald, did not improperly pressure the;QC inspectors at the expense of quality standards.
They argue that the evidence shows DeWald instituted (i) weekly meetings with the QC inspectors at which "he relayed Edison's threats and exhorted them to increase the speed of their work,"
and (ii) a status tracking system "which projected the number of inspections an inspector should perform in a day and compared them 1
to actual results." (Int. Br., p. 9.) The record does not sup-1 port these assertions.
DeWald instituted weekly Friday meetings between QC management and QC inspectors shortly after he had become Com-stock's QC Manager at Braidwood in August 1983, nine months before l l
l
' , ;Shamblin was appointed Construction Manager. DeWald testified
?thAt he. viewed those weekly meetings as an important means of-communicating'with the QC inspectors. '(Tr. 1786.) .one of the central messages he attempted to communicate.was that quality was never to be sacrificed to meet production: schedules or goals.
This was: documented on 'one occasion, a meeting held January 18, 1985.- (App. Ex. 97.) .
g l
'DeWald also' utilized the weekly ruetings to respond to com-ments and questions,-and'to. explain new policies and procedures such as the use of status reports to track Comstock progress.
'(DeWald, Tr.' 1853-54; Seese, Tr. 2639; Bowman, Tr. 6872.) Once Comstock's tracking' system was in place, Comstock management also provided the inspectors with current information concerning the 1
U. status of: completed and uncompleted inspections. (Seese, Tr.
2372;LBowman, Tr. 6872.)'
Several.QC inspectors testified that Comstock management used those weekly meetings to convey general information-to the inspectors. ~(Gorman, Tr. 5775; Snyder,' Tr. 4244.) After manage--
ment had spoken, the inspectors.would ask questions about proce-dures and. details. (Bowman, Tr. 6871-73; Snyder, Tr. 4245.)
During these meetings, Comstock management also described those
' areas of inspection that were behind'and those areas which needed more manpower allocated to them. (Snyder, Tr. 4241.) Assistant QC Manager Larry Seese would read the status reports which de-Ltailed the progress being made on projects to eliminate inspection j backlogs-and the projected dates for. completion of those projects.
'(Snyder, Tr.' 4243; Bowman, Tr. 6871-73; Perryman, Tr. 9663.)
il
Only two QC inspectors, Terry Gorman and John Seeders, testified that DeWald promoted the production of inspections at the expense of quality. Neither inspector worked in the areas that were the focus of the backlog that was the focus of Shamblin's attention. Mr. Seeders worked in the tool crib and was _
responsible for tool and instrument calibrations. (Seese, Prep.
Test. at 13 ff. Tr. 2330.) Seeders candidly testified that he understood that DeWald was emphasizing quantity over quality because some of the veld inspectors would comment that "DeWald E
wants numbers again" when DeWald pushed inspectors for greater productivity. (Tr. 7566.) Likewise, Gorman, who worked in the document vault, believed that the purpose of the meetings was to urge inspectors to perform more inspections, which he then con-cluded as emphasizing quantity over quality. (Tr. 5797.)
Gorman's opinion has no basis in the record and Seeders' opinion, based on hearsay, is not probative. The Board majority properly rejected this evidence and found that the weekly meetings were not used by DeWald as a vehicle to impose improper production pressure on Comstock QC inspectors. (Maj. Op., p. 15.)
Comstock's QC status tracking system was one of its most important management tools to monitor QC progress and allocate resources to effectively address the inspection backlog and to keep current with ongoing installations. In addition, such a system enabled management to project the completion of various inspection tasks, such as elimination of the backlog which existed in the spring of 1984. Such a projection was based on a conserva-tive estimate of how many inspections, on average, an inspector
was likely to accomplish in a day. (Egg, gzg., Int. Ex. 12.)
(Seese, Prep. Test. at 8-10 ff. Tr. 2320; Seese, Tr. 2350-51; Saklak, Tr. 8118.)
Comstock's schedules and status reports reflected the goals and progress of inspection groups and areas, not the pro-gress of irsdividual inspectors. Although the status report fig-1 ures showing the number of inspections conducted were compiled j from Letd Inspector summary sheets based on individual inspectors' reports, those individual reports were not used routinely to monitor individual inspector performance. The Comstock QC inspec-tors were informed'of the way in which this compilation was pre-1 pared and the use to which the status reports were put. (Seese, Tr. 2365-66, 2368-69, 2377-81, 2522-26,.2502-03, 2517-18; Seese, Prep. Test. at 7-10 ff. Tr. 2330; DeWald, Prep. Test. at 20-21 ff. Tr. 1700; DeWald, Tr. 1420-21.)
Comstock management explained to its inspectors that those reports were not production quotas and began posting those reports as.of October 9, 1984 so that the inspectors could see that the reports were not " sinister." (Seese, Tr. 2498-99, 2372, 2381-82; Seese, Prep. Test. at 9 ff. Tr. 2330; DeWald, Tr. 1576-78.). Comstock management hoped that posting the reports would, as it had at the Perry plant, show the inspectors Comstock's goals end progress toward those goals, fostering a spirit of teamwork and togetherness and a feeling that each inspector was playing a role in Comstock's overall success. (Seese, Prep. Test. at 9 ff. Tr. 2320; Seese, Tr. 2498-99; Saklak, Tr. 8209-10.)
I' l
The foregoing evidence provides an ample basis for the l
l Majority's rejection of Interveners' assertion that the status reports were' instruments of wrongdoing. Moreover, Judge Grossman also agreed that Comstock properly employed status reports. (Min.
F. 40.) Therefore, Interveners' reliance on finding 40 of the minority's separate opinion is misplaced. The separate opinion simply adopts findings of fact submitted by Edison. Apparently, Interveners have taken these facts and, like the town gossip who infers the worst from the fact that a man was in the company of a woman other than his wife, interpreted them to serve their precon-ceived suppositions. This may be grist for daytime television but not the basis for reversal of the majority opinion.
Interveners also cite finding 39 of the minority opinion to support their view that improper production pressure was being imposed by Comstock QC Managers.- They do not explain in their brief, however, how this finding advances their position. Judge Grossman uses finding 39 to support his opinion that DeWald did threaten inspectors with the loss of Comstock's contract with Edison in order to extract increased production at the expense of quality. (Min. Op., pp. 10, 31.)
Judge Grossman apparently gave weight to the testimony of these inspectors whose only basis for believing that Comstock was threatened with the loss of the Edison contract was shop talk from other inspectors. (Bossong, Tr. 9857; Gorman, Tr. 5840-41, 5871, 5884-85; Seeders, Tr. 7568.) Judge Grossman buttressed these rumors by also. relying on the testimony of those other inspectors who recalled meetings with Comstock management at which t
1 i
- _ - _ _ _ _- - - _ \
the subject was raised. Here Judge Grossman, again in contraven-tion of the catawba definition of harassment, inferred wrongdoing without finding acts of misfeasance by Comstock's managers.
Wrongdoing-was assumed simply because the matter of Comstock's contract status was discussed with the inspectors. It mattered not whether the QC managers were using the matter to exalt quanti-ty over quality.
One inspector recounted a meeting with Seltmann, Com-stock's.QA Manager, and Worthington, a QC Supervisor, (Holley, Tr. 5151-52), another recounted a meeting with Seese, Assistant QC Manager, (Peterson, Tr. 5950-51) and one, Mr. Hunter, said that DeWald mentioned the matter at several weekly meetings. (Hunter, Tr. 8499-8500, 8655, 8744, 8747, 8751.) Holley testified that Seltmann merely asked the inspectors for a concerted effort to do their best. (Tr. 5151.) Peterson testified that Seese had stated "everybody's efforts would be appreciated." (Tr. 5951.) Only Mr. Hunter, the inspector who was fired for falsifying quality documents, testified with certainty that DeWald was pressuring inspectors at the weekly meetings about the possible loss of the Comstock contract.
Except for the uncorroborated, and therefore unreliable, testimony of Mr. Hunter, none of the inspectors testified that DeWald or his managers had attempted to extract unreasonable
. amounts of work because of any notion that Comstock might lose the contract. What the record does show is that Comstock's contract status was discussed at various times but in a random and benign manner. Judge Grossman's contrary finding is without merit.
)
i
I o
h 1
Judge Grossman'came up with another reason for believing I h
that Comstock management had imposed improper pressure. He found
~ that the fact tha' 24 inspectors complained to the NRC of improper production pressure " establishes its existence," although it may not have been evidenced by concrete instances of harassment and intimidation. (Min. Op., p. 31.) Judge Grossman reached this remarkable evidentiary conclusion despite extensive testimony by L many of the.24 inspectors -- which he completely ignored -- as to what they meant when-they raised their hands in response to a request for a show of hands to determine how many of the inspec-tors agreed with the allegation that Comstock's QC Department was emphasizing quantity over quality. (Tr. 17534.)5 Judge Gross-man simply accepts allegations of harassment as self-validating.
If the inspectors told NRC they felt pressured, it matters not whether management had engaged in some cognizable act of mis-feasance to engender this feeling. Such sleight-of-hand cannot serve as the basis for disturbing the reasoned conclusions reached by the majority of the Licensing Board. 4 Finally Judge Grossman finds that Comstock hired Rick Saklak for the QC Department for the primary purpose of maintain-ing pressure on production. (Min op., p. 33.) He grasps at 5 The Record does not disclose the reasons all 24 inspectors raised their hands. In fact, one of those inspectors denied ;
that he did raise his hand at that meeting. (Hii, Tr. 16647-49.) For the ones who did provide their reasons, the reasons ranged from misinformation and miscounting to a perceived obligation to provide other inspectors with loyal support. 1 (Snyder, Tr. 4267-69; Bowman, Tr. 6857-60; Gorman, Tr. 5832, j 5874, 5877; Hunter, Tr. 8745-46, 8655.) It is obvious from this record why Judge Grossman was compelled to reject this evidentiary dead end.
(
k various facts to support his thesis. We are told that Saklak was young, 24 years of age, inexperienced and given supervisory re-sponsibilities beyond his experience, all of which demonstrate that Saklak was DeWald's ir.ctrument of improper production pres-7
- sure..
The record supports a different conclusion, however.
- Saklak was short-tempered and abrasive. He was not well-suited to interpersonal dealings. His many altercations with inspectors, ranging from 1982 to his termination in April 1985, establish his immaturity in dealing with people. His run-ins with Seeders and Rolan resulted from non-quality matters. ( S eese. , Prep. Test.,
Attch. 3 ff. 2330; Seeders, Tr. 7637, 7370-72, 7438; Rolan, Tr.
4665-68, 4673-74; Martin, Tr. 9421-22.) Saklak's run-in with Hii and Holley also involved no debate over quality matters. (Holley,
- Tr.-5100-02; Hii, Prep. Test. at 4-5 ff. Tr. 16608.) His run-in with Mustered did involve a quality matter, however, it was a matter apparently between the two principals that no one else was aware of. (Mustered, Tr. 4973-74.) When this problem recurred in March 1985 with Snyder, Saklak was discharged.
All of these incidents point to one common denominator, a man with a quick temper and a foul mouth. A tempestuous fellov whose conduct caught up with him in 1985. The Comstock QC inspec-tors went initially to the NRC resident inspectors to complain about Saklak. (Egg, gzg., Snyder, Tr. 4462-63; Mustered, Tr.
4990-91.) The matter of whether Comstock was pressuring the QC inspectors to emphasize quantity over quality was raised secon-darily. Significantly, when the 24 inspectors addressed this
Issue, Saklak's name was not mentioned. Saklak simply does not I fit as a piece of the conspiracy puzzle fashioned by Judge Gross-man, whose conclusions on this matter are entitled to no weight.
D. There Is No Merit To Interveners' Argument That Inspec- ,
tors' Perceptions Of Harassment--Even Though Unfounded--
In Themselves Demonstrate A Persasive Breakdown In Comstock's OA Procram.
Interveners correctly point out that a good deal of the evidence in this case concerns alleged incidents of harassment of and retaliation against QC inspectors by Comstock management (Int. Br., p. 9.) Two of these incidents provided primary bases for Interveners' contention. Interveners alleged that Inspector John Seeders had been transferred out of the QC department because he had written a letter to management alleging that he was being harassed. Interveners also alleged that Inspector Worley Puckett had been terminated because he had raised safety concerns about the Comstock welding program.
The majority of the Licensing Board rejected both of these allegations. The majority concluded that Seeders' transfer out of tho QC department was attributable to his failure to comply w3th prescribed procedures and his inattention to the details of his work. (Maj. Op., p. 39.) Judge Grossman concurred, finding that Seeders had been transferred because he failed to discharge his duties as an inspector properly. (Min. Op., p. 26.) The majority also concluded that Puckett was terminated for legitimate reasons. (Maj. Op., p. 30.) The majority found that Puckett did
not have the judgment' reasonably to be expected from one who was hired as an expert in welding and welding codes. This was re-flected, in particular,,in Puckett's unnecessary recommendations that work be stopped while trivial problems that did not affect work-quality were straightened out. (Id., pp. 25-26, 27-30.)
Judge Grossman dissented.on the reasons for Puckett's firing. He believed the preponderance of the evidence showed that Puckett was terminated for raising legitimate concerns.and requiring that they be dispositioned in writing. (Min. Op., p. 24.)
Interveners do not challenge the Licensing Board's find-ings about Seeders and Puckett (nor about other inspectors who allegedly were harassed). They merely observe that the Board majority, Judge Grossman and the parties differed about them.
(Int. Br., p. 9.) Interveners point out, however, that there was no' dispute that there was_ considerable-shop talk about such inci-'
dents among the inspectors and that " inspectors widely viewed the actions of DeWald and Saklak as retaliatory and as part of an l effort to promote quantity over quality."
(14.) Interveners I
append to that statement a list of citations to portions of the
' transcript where, in general, various oc inspectors acknowledged they had heard that Seeders or Puckett claimed that management's treatment of him was retaliatory. These citations do not advance Interveners' cause; most of them do not even support Intervenor's statement that inspectors viewed management actions as retaliatory and an effort to promote quantity over quality.
Thus, with respect to Seeders, inspectors Perryman and Bowman undarstood that he had been transferred from QC because of i
some argument with his supervisor, Saklak. (Tr. 9636, 6951-52.)
Inspectors Hunter and Holley had heard that Seeders was trans-ferred for writing the complaining letter. Hunter merely said the inspectors discussed Seeders' claim to this effect. (Tr. 8650.)
Holley believed the claim, and thought it likely that Comstock management would retaliate for writing the letter that Seeders wrote. (Tr. 5210.) All that this evidence fairly shows is that a number of inspectors heard incorrect and conflicting rumors about the cause of Seeders' transfer out of the QC department.
The evidence cited by Interveners with respect to Puckett is no stronger. Inspector Martin was aware that Puckett had identified deficiencies in the Comstock welding program and subsequently been terminated. (Tr. 9233.) Inspector Wicks was aware that after his termination Puckett filed a claim with the Department of Labor alleging that he had been retellated against.
(Tr. 7133.) Inspector Rolan remembered thinking that Puckett's termination at the end of the 90-day probationary period was peculiar, because that had not happened before. (Tr. 4914.)
Inspector Gorman had heard a rumor that Puckett was fired for flunking a test and not being qualified. He also had heard a rumor that Puckett was fired for complaining to management.
(Tr. 5886-87.) Inspector Hunter remembered Puckett as a good old boy who seemed to know what he was doing, and he thought Puckett had been fired for making too many waves. (Tr. 8645-46.) Inspec-tor Peterson had heard a rumor that Puckett had issued an order stopping welding work and that Comstock management had felt the order was not warranted and fired him for it. (Tr. 5965-66.)
Inspector Bowman' had heard that Puckett had filed a Department of Labor claim alleging retaliation. (Tr. 6955.) Again, the evi-dance merely shows that inspectors heard a number of conflicting rumors about why Puckett and been fired.
.These citations, Interveners believe, are evidence of I the inspectors' perception that there was a " pervasive atmosphere
" (Int. Br., p. 10.) The Board's.
of pressure at Comstock. . . .
error, according to them, was that it did not "even acknowledge that. fact, much less attribute to it the decisive weight it demands." (Id.) And Interveners are forthright in saying that the perception deserves this decisive weight notwithstanding that f the. Inspectors' beliefs may have been quite wrong. Thus, Inter-venors'do not challenge the Board's conclusions that neither ,
I Seeders nor Puckett was retaliated against, because in Interven-ors'-view these conclusions are irrelevant. The freedom from cost and schedule mandated by Criterion I does not exist, they say --
apparently as a natter of law -- when false rumors of management wrongdoing circulate at a workplace. (14., pp. 10-11.))6 When the rumors circulate a good deal, Interveners continue, there has I l
6 Interveners also claim that compliance with criterion I can be achieved only if QC inspectors " feel completely free to bring all safety concerns to management's attention."
(Int. Br., p. 10.) There is not a shred of evidence in the record that any inspector was ever deterred from raising any safety concern because of Puckett's termination or any other false allegation of wrongdoing on the part of management; and Interveners do not purport to cite such evidence. Rather l they embrace the convenient theory that when some inspectors believe management wrongdoing has occurred, they will neces- i sarily feel subjectively constrained and that is in itself sufficient to demonstrate a Callawav-type breakdown. (Id.)
been -- apparently again, as a matter of law -- a pervasive break- i down of the QA program, of the type in Union Electric Co. (Calla-way Plant, Unit 1), ALAB-740, 18 NRC 343, 346 (1983), as suffi-cient to prevent a reasonable assurance finding. (Int. Br., .
- p. 11.)
This novel theory was accepted neither by the Licensing Board majority nor by Judge Grossman. Its acceptance as a prin-ciple of law would have grave consequences. When Congress enacted the "whistleblowers' statute," (52 U.S.C. 9 5851.) and when the Commission promulgated the echoing 20 CFR 6 50.7, they were care-ful not to create a regulatory scheme in which the standards rest on perceptions rather than demonstrable facts. Section 50.7 provides: "An employee's engagement in protected activities does not automatically render him or her immune from discharge or discipline for legitimate reasons or from adverse action dictated by nonprohibited considerations." Interveners' position, if accepted, would efJ;ctively read this provision out of the legis-lation and regulation. An applicant would have to vorry not only about whether its conduct was legitimate, but also whether its legitimate conduct might be misconstrued by some of its employees.
Thus QC inspectors could never be disciplined nor required to do productive work. Indeed, even then an Applicant would not be safe. If the standard for an effective QA program hinged not on the objective behavior of the applicant but on the subjective beliefs and feelings of its QC inspectors, no harassment conten-tion could ever be resolved in an applicant's favor. Thus, an I'
applicant for an operating license would be required to conduct a l
t
I reinspection program whenever an allegation of harassment of QC l inspectors became common knowledge.7 In Interveners' view, the }
l Licensing Board wasted six months of hearings trying to determine j I
whether Interveners' a?. legations were true.
The Interveners' concluding citation of Callaway (Int.
Br., p. 11.) is illegitimate. The Appeal Board in Callaway rea-soned that when the issue is the adequacy of quality assurance, the inquiry focuses on whether all ascertained construction errors l have been corrected and whether "there has been a breakdown in quality assurance procedures of sufficient dimensions to raise legitimate doubt as to the overall integrity of the facility and its safety-related structures and components. A demonstration of a pervasive failure to carry out the quality assurance program may well stand in the way of the requisite safety finding." callaway, supra, 18 NRC at 346. The Callaway dacision did not involve a harassment contention, but the Appeal Board applied this test to a harassment contention in Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 65 (1985). The Appeal Board there' criticized the Interveners because they had pointed to "no evidence demonstrating that there was a pattern of retaliation or harassment that had an intimidating effect upon the inspectors."
(14. at 67.)
7 Indeed, Interveners even go this one better. In a footnote (Int. Br., p. 12.), they suggest that no license could be issued for a plant where a violation of Criterion I occurred if the only basis for the corrective action was a reinspec-tion program based on sample techniques. Since it is not feasible to reinspect 100% of all work, e.c., welds entombed in concrete, it would appear that under Interveners' formu-lation a license would never issue for such a plant.
L h l The same lack of evidence plagues Interveners here.
Having learned from past mistakes, however,8 they substitute the legal argument that no such evidence is necessary. Rather, a l J
widespread breakdown of the QA program must be presumed from the evidence that some inspectors thought -- incorrectly -- that l harassment and retaliation was occurring. Neither callaway nor-
.qatawba provides any support for this presumption, and to drasti-cally expand the reach of those deeinions to embrace Interveners' j theory would impermissible distort the Commission's regulations for the reasons given above. ,
E. The Licensing Board Majority's Conclusion That Inspector Effectiveness.Was Not Compromised Ic Succorted By Overwhelming Evidence.
The majority of.the Licensing Board concluded that Edison did not impose unreasonable pressure on Comstock management or QC inspectors. (Maj. Op., p. 15.) The majority also concluded that Comstock management had not pressured QC inspectors to com-promise quality standards in order to process inspections more rapidly. The majority found that although in some instances Comstock management had " crossed the line of acceptable behavior" in dealing with QC inspectors, such instances did not evider.0c an intent to c grade the inspectors' performance of their duties.
(Id., p. 74.) Having reached these conclusions, the majority nonetheless went on to consider whether, assumino that improper production pressure had been exerted on the inspectors, the in-8 Counsel for interveners in Catawbg was counsel for Inter-venors in this proceeding.
spectors had allowed it to compromise the quality of their work.
(Id., pp. 9, 72.) The majority concluded that there had been no such adverse effect on quality standards. (14., pp. 9, 55-68, 75.) Judge Grossman argued with the majority on this point.
(Min. Op., p. 34.) Extensive evidence in the record before the Licensing Board, however, provides overwhelming support for the majority's conclusion, and there is not a shred of contrary ;
evidence.
Interveners quarrel with the Licensing Board's conclu-sion, but they do not point to a single piece of evidence that suggests the Licensing Board was wrong. Instead they argue that i the mass of evidence relied on by the Board is insufficient to support the Board's conclusion. In order to give some credibility to this thesis, Interveners charge that the Board improperly shifted the burden of proof on the ultimate issue of whether there is reasonable assurance. (Int. Br., pp. 18-20.) They argue that the Board's framing of the issues in its series of questions evinces this. This argument is merely a makeweight. The Board majority framed the issues neutrally and answered them in the negative based on the weight of the evidence. "[L]icensing boards are bound to base their decisions on what they judge to be the preponderance of the evidence adduced in the record." Duke Power 29 (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 405 n. 19 (1976); Consolidated Edison Co. (Indian Point Station, Unit No. 3), CLI-75-14, 2 NRC 835, 839 n. 8 (1975)
(expressly confirming on this point ALAB-188, 7 AEC 323, 356-57 (1974)). Interveners complain that the Board was wrong to ask
itself whether the evidence showed that a pervasive breakdown in quality assurance procedures had taken place. (Int. Br., p. 18.)
The Board, of course, was simply following the guidance of the 1
l Appeal Board's callaway decision in framing the ultimate issue ;
posed by allegations of harassment. The Interveners apparently believe that the Board was required to assume that pervasive harassment had occurred and then ask, in that context, whether there was sufficient evidence of effective QC performance. (Id.)
The Board was clearly not required to do this, but it nonetheless did so and found the evidence sufficient.
Interveners' citation of Louisiana Power and Licht Co.
(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 NRC 1076 (1983) hurts, rather than helps, their burden of proof argument.
The Appeal Board there rejected a very similar argument by inter-venors that the Licensing Board had improperly placed on them the burden of proving their " synergism" contention. The Appeal Board pointed out that interveners had failed to make a prima facie showing of synergistic effects and that the applicant's evidence established that synergism would not occur. Moreover, applicant had presented persuasive evidence that if synergism did occur its effect would be essentially nil. Thus, to the extent that the Intervenor had made a prima facie showing, the showing had been rebutted. The parallel with this case is close. Here Interveners failed to make a prima facie case that widespread harassment of QC inspectors had occurred. Edison presented affirmative evidence, which the Board majority found convincing, that no such pattern of management wrongdoing had taken place. Moreover, Applicant pre-l l
'i sented persuasive evidence that, assuming harassment had' occurred, it had not had a significant adverse effect on quality. Thus, to
- the extent Interveners' evidence even established a prima facie case, it ;as rebutted.
The Licensing Board carefulif evaluated two significant kinds of evidence showing that there had been no compromise in the quality of Comstock QC inspections. First, all the inspectors whc testified that they thought harassment had occurred also testified that it had no effect on their work. The Licensing Board majority believed this testimony; Interveners merely argue that they should-not have done so. Second, the Licensing Board evaluated extensive expert testimony presented by Edison based on massive accumula-tions of data from two reinspection programs. The Licensing Board majority correctly concluded on the basis of this evidence that there had been no decline in the effectiveness of the Comstock QC inspectors during periods when they were allegedly suffering from management harassment and improper production pressure. (Maj.
Op., p. 76.) Interveners offer various technical reasons, based on Judge Grossman's dissenting opinion, why they think the rein-i spection evidence was entitled to no weight. These reasons are not valid.
- 1. The Inspectors' Testimony ,
The Licensing Board had before it first-hand testimony of nearly one-third of the Comstock QC inspectors who as a class Interveners claimed were either directly harassed by Comstock management or were subjectively affected by rumor and folklore of
b'._ j harassment. These QC' inspectors uniformly testified that any such influences did not affect the quality of their inspection work, The Interveners argue that the Board was not entitled to give any weight to this testimony because the inspectors would have a strong disincentive to admit they had done something wrong. (Int.
Br., p. 15.) Interveners, however, made the same argument to the 1 Licensing Paard, and the Board took account of it. (Maj. Op.,
- p. 75.) The Board majority did not uncritically accept the testi-mony of the inspectors on this point. In lending credence to the inspectors' testimony that they had not compromised the integrity of their work, the majority considered the demeanor of the witnes-ses and in particular the consistency of their statements with '
their testimony regarding their overall approach to their jobs.
(Id., pp. 9, 75.)
Thus, the Board majority concluded that each inspector who testified appeared to be " conscientious, proud of his work and well aware of the corporate and regulatory mechanisms which pro- ;
tected employees at nuclear power plants from unlawful production pressure or retaliation for raising safety concerns." (Id.,
pp. 9-10.) The majority commented further:
The Board subscribes to the judgment of a witness who described the inspectors as mem-bers of a group that are proud and protective of their technical skills and personal integ-rity. Their technical skill and integrity represent their job security and their fami-lies' livelihood, but even more importantly, these are their badge of acceptance in the work arena. The witness suggested that an inspector working alone at his job will scru-pulously protect these, his most basic assets, unaffected by external group dissension. We agree, our personal observations of the
f demeanor and the testimony of more than a dozen Comstock QC inspectors confirms those impressions.
(Id., p. 75.) There is simply no basis for finding this conclu-sion erroneous. Interveners argue that the witness referred to by the Board, Edison's witness Mr. Laney, gave " general testimony (which] hardly establishes that individual Comstock inspectors were unaffected by harassment and production pressure." (Int.
Br., p. 14.) Edison agrees. But it is plain that the Licensing Board majority did not rely on Mr. Laney's testimony for that purpose. The Board majority made its own conclusions on the credibility of the individual inspectors. It is apparent from the j majority's opinion that they cited Mr. Laney because his state-ments about QC inspectors, based on many years' experience in nuclear quality assurance and quality control, corroborated the Board's' independent observations and provided a useful way of articulating them.
Interveners also attempt to cite Mr. Laney in opposition to the Board's conclusion giving credence to the inspectors' .
testimony: "Even Mr. Laney testified that he would give little or no weight to uncorroborated denials of wrongdoing by an inspector, because such denials are self-serving." (Int. Br., p. 15.) This is true but disingenuous. Mr. Laney indeed testified that he would not simply take at face value an inspector's claim that the quality of his work was unaffected by pressure or harassment. He I also testi,'ied, however, that in this case, because of all the i evidence corroborating that testimony, he found it both credible l
and consistent with the complaints the inspectors made to the NRC.
(Laney, Prep. Test. at 24 ff. Tr. 17245; Laney, Tr. 17335-37.)
The Licensing Board majority similarly relied on corroborating evidence in reaching its conclusion.
Nor can it be said as a matter of law or common sense that an inspector's testimony in this regard can never be believed l 1
by a trier of fact. Other licensing boards have frequently found inspectors' testimony that their work was not affected by harass-ment or intimidation not only credible but dispositive on the question of effect. See Texas Utilities Generatina Co. (Comanche )
i Peak Steam Electric Station, Units 1 and 2), LBP-83-60, 18 NRC j l
672, 682 (1983) (testimony that an inspector resisted pressure convincing as to effect on work of that individual), Duke Power ]
i C2 (Catawba Nuclear Station, Units 1 and 2), LBP-84-24, 19 NRC j l
1418, 1519 (1984) (finding that inspector's performance was ac- l ceptable was supported by inspector's testimony that inspection process was not compromised); Id. at 1530 (harassment did not affect performance: "[N]o inspector said harassment affected job performance.") The Licensing Board in this case was equally capable of judging the credibility of the witnesses before it. ]
Interveners also argue that even if the testimony of the inspectors on this point was credible, it did not settle the issue l l
of whether any inspector;s performance was adversely affected by !
perceived harassment because not all the inspectors testified. ;
l (Int. Br., pp. 14-15.) They note Judge Grossman's observation that since the testifying inspectors were among those who com-plained to the NRC, they would be among those most likely to 1
i
)
l uphold good quality practices. (Min. F. 281.) This is of course mere speculation on Judge Grossman's part. Indeed, since the l . perceptions of harassment that the inspectors put forward did net have an objective basis in management misconduct, as the Board majority found, it is just as likely that the complaining inspec-tors were the only ones who formed such perceptions. In any case, the Interveners are correct that the testimony of the inspectors leaves open the following hypothesis: there may have been other inspectors who had the same erroneous perception of harassment as the testifying inspectors but who, unlike the testifying inspec-tors, allowed that perception to compromise the quality of their work. Without arguing further about whether Edison was required to rebut this possible inference, it is sufficient to r.ote that the possibility was in fact rebutted by the extensive reinspection evidence that Edison presented. This evidence is the chief sup-port of the conclusion that whatever perceptions inspectors may have had, there was no significant adverse effect on their per-formance. It is to that evidence that we now turn.
- 2. The Reinspection Evidence i Interveners argued to the Licensing Board below that widespread harassment, intimidation and improper production had occurred at Comstock over a period of years. They alleged that "the atmosphere at the Comstock QC department was poisoned by systematic and pervasive harassment and production pressure on a scale that distinguishes Braidwood from any recorded case in the annals of licensing proceedings." (Int. Br., pp. 43-44, 53-54.) l l
i 1
1
(
q I
They argued that the adverse effects on the adequacy of the Com-
'I stock inspectors' performance resulting from such' harassment were {
l j
on a commensurate scale. In particular, their theory was that acts of-harassment would affect not only the immediate victims, I but the inspectors generally, because they would learn that con-scientious performance of.their duties was discouraged. (Egg McKirnan, Prep. Test at 3-12 ff. Tr. 10267.)
If Interveners' allegations were true, we should be able f to see their effects by reinspecting the work that the Comstock QC k
inspectors approved. We would expect to see the Comstock inspec-tor performance decline in 1983 and especially in 1984, when the j major incidents of harassment are alleged to have occurred. Simi- t i
larly, we would expect'to find improved inspector performance after Saklak was terminated in April 1985. Indeed, Interveners' witnesses recommended that sample reinspection of Comstock QC .
accepted work be performed (Arvey, Prep. Test. at 11, 13 ff.
Tr. 4391; Arvey, Tr. 4409, 4434, 4436), and predicted that tem- j poral analysis of reinspection data would show a relationship f between1 acts of harassment and numbers of discrepant items missed I
by Comstock inspectors. (McKirnan, Tr. 10390.)
Edison presented the results of two large, reliable reinspection programs as rebuttal testimony. These were the Construction Sample Reinspection ("CSR"), carried out in 1984 and I
1985 as a part of the Braidwood Construction Assessment Program
("BCAP"), and the Pittsburgh Testing Laboratory ("PTL") ongoing overinspection program performed under the direction of Edison's Quality Assurance Department. (Marcus, Prep. Test. at 7 ff. Tr.
L
15568; Kaushal, prep. Test. at 3 ff. Tr. 13068.) For purposes-of its evidentiary presentation, Edison created a computerized data base from the CSR and PTL data which matched the reinspection 1 i
results with the names of the original Comstock inspectors and the dates when those original inspections were performed. Edison's witnesses evaluated these data bases in terms of " agreement rates"
-- the percentage of work accepted by a Comstock QC inspector which an independent reinspector agreed had been accepted correct-ly. These agreement rates, evaluated as a function of time, l l
permit comparison of trends in Comstock QC inspector performance with episodes of alleged harassment, intimidation and undue pro- l duction pressure. (Maj. Op., p. 56, Del George, Prep. Test. at 9 I
ff. Tr. 16740.)
After a comprehensive evaluation of this evidence, the majority of the Licensing Board concluded that it established ,
there was no discernable difference in Comstock QC inspector performance (as measured by agreement rates between Comstock QC inspectors and the reinspectors) before, during, or after periods <
of alleged harassment. (Maj. Op., pp. 55-68, 76.) In addition, the majority was assisted in reaching its conclusion on the ulti-mate issue of reasonable assurance by the fact that none of the discrepancies found in the CSR reinspection was design significant
-- that is, none of these discrepancies would have prevented the 1
affected item from fulfilling its intended safety function.
(14.)9 9 The discrepancies identified in the PTL overinspection pro-(Footnote continued on next page)
[ l 1
On appeal, Interveners argue that the majority's reli-ance on the reinspection evidence was misplaced because that I evidence is of "no orobative value whatever on the issue of QC inspector performance." (Int. Br. at 13, emphasis in original.) l 1
Rather than arguing in support of this position themselves, Inter- {
l venors attach Judge Grossman's dissenting findings to their brief. I i
They do, however, point out several of Judge Grossman's conclu- l sions:
- 1. The two reinspection programs do not provide reliable data to support the majority's con-clusions. The BCAP CSR data covers only items inspected by Comstock inspectors before June 30, 1984, and thus covers only a portion of the time during which harassment is al-leged to have occurred. The PTL data, which does cover the relevant entire period, is not a statistically random sample, and thus does not yield reliable data.
- 2. Agreement rates between the independent rein-spectors and the original Comstock inspectors provide Do measure of the effectiveness of the original inspectors' performance.
- 3. The conclusion that the BCAP CSR reinspec-tions did not discover any design significant defects is untrustworthy because the evalua-tion of the data was performed by Sargent &
Lundy, the Braidwood Architect-Engineer.
None of these objections to the probative value of the reinspection evidence is meritorious. We will address each of them below. We will also address miscellaneous arguments raised by Judge Grossman in the attachment to Interveners' brief which (Footnote continued from previous page) gram were not reviewed for design significance.
l purport to question the validity or usefulness of the reinspection >
evidence.
- a. The Reinspection Evidence Is Adequate For The Purposes Used In This Proceedina.
The CSR includes visual reinspection of all categories a
of electrical items within Comstock's scope of work. This data l spans the time period from the start of construction to June 30, 1984. A portion of the items reinspected in the CSR was a
" probability sample" selected by statistically random techniques so as to support conclusions with at least 95% confidence and at least 95% reliability about the total population from which the sample was drawn. The remaining portion of the CSR sample was chosen on the basis of engineering judgment. (Kaushal, Prep.
Test. at 13-16 ff. Tr. 13068; Frankel, Prep. Test. at 9-11 ff.
Tr. 17082.) The'CSR. program produced data on reinspection of 733 electrical items, including more than 10,000 welds. This data l base covered the work of 75 inspectors employed by Comstock and 1 the predecessor electrical contractor, E.C. Ernst Company. Among these inspectors were 19 of'the 24 Comstock QC inspectors who expressed concerns to the NRC Staff on March 29, 1985. (Del George, Prep. Test, at 17, 19 ff. Tr. 16740.)
PTL was employed by Edison's Quality Assurance Depart-ment to perform routine overinspection of work accepted by Com-stock QC inspectors. The PTL data base extends from July 1982 through June 1986. Prior to June 1985, PTL overinspected only welding; thereafter the program was expanded to include other I
I
l Comstock inspection disciplines. (Kaushal, Prep. Test. at 3-9, 13-18 ff. Tr.'13068; Frankel, Prep. Test, at 9-11, ff. Tr. 17082; The PTL data base !
Marcus, Prep. Test. at 7-12 ff. Tr. 15568.)
included more than 7200 components and 28,000 welds, approximately 28% of the total number of electrical components and 10% of the l
total number of welds completed and QC accepted by Comstock during the four year period from July 1982 to June 1986. (Del George, Prep. Test. at 17, 32 ff. Tr. 16740; Marcus, Prep. Test. at 12 ff. Tr. 15568.) The PTL program produced data on 100 Comstock inspectors, including 20 of the 24 inspectors who expressed con-cerns to the NRC Staff on March 29, 1985. (Del George, Prep.
Test. at 17, 32 ff. Tr. 16740.)
These reinspection programs were conceived, designed and carried out independently of each other, for reasons unrelated to Interveners' allegations. They were carried out by qualified inspectors who were. independent of Comstock's QA/QC organization.
-(Del George, Prep. Test. at 6, 9 ff. Tr. 16740; Kaushal, Prep.
Test. at 9 ff. Tr. 13068; Marcus, Prep. Test, at 7-8 ff. Tr.
15568.) The CSR in particular was carried out with intense over-sight by the NRC Staff, an independent expert overview group, and Edison's own dedicated QA group. (Kostal and Thorsell, Tr. 14939-
-46; Kaushal, Prep. Test. at 10-11 ff. Tr. 13068.} i The CSR and PTL data are comprehensive, in number of Comstock QC inspectors reviewed, in number of inspections re-viewed, and in timo periods covered. If Interveners' allegations were true, the significant declines in Comstock QC inspector performance Interveners predict would be reflected in the agree-
L l
-49 ' .
l l
ment rates over time. _Yet there is no reflection of any such adverse effect; there are no trends over time which can be made to fit Interveners' claims. .( Frankel, Prep. Test, at 12-25 ff. Tr.
I 17082; Del George, Prep. Test. at 13, 27-37, Attch. 1-6 ff. Tr.
16740; Frenkel, Tr. 17083-90, 17155-58; Del George, Tr. 16767, )
i 16905-10, 17020-46; Int. Ex. 191.) The Licensing Board majority j correctly recognized this. They concluded: "If harassment and intimidation occurred on a scale commensurate with Interveners' allegations, it should'have manifested itself in the results of both reinspection programs. No effect was observed." (Maj. Op.,
- p. 76.) The' agreement rate data shows that the Comstock QC inspectors consistently performed their jobs effectively and that their performance was unaffected by any alleged incidents of harassment. Unable to refute the testimony that agreement rates were high throughout the entire range of reinspection data, Inter-venors instead focus their attack on the validity and usefulness of'the underlying data.
l
- b. The BCAP And PTL Reinspection Evidence, Taken Together, Reliably Cover The Relevant Time !
l Periods Interveners first assert that the BCAP and PTL data is e incomplete and insufficient because it does not fully cover the time period during which Interveners contend that harassment of Coustock QC inspectors occurred. The time period covered by Interveners' contention, to which the reinspection data is perti-nent, extends from the date Irv DeWald became Comstock QC manager in August 1983 through March 29, 1985, when the 24 inspectors 1
complained to the~NRC. As explained above, the CSR and PTL data bases spanned the time from 1975 until June 30, 1986. .These data .j covered a sufficiently broad spectrum to discern any adverse effects on inspector effectiveness stemming from alleged events of-harassment occurring in 1983-86. The criticism of Judge Gross-man / Interveners to contrary lacks credible basis.
Interveners also argue that the PTL data are unreliable because they were not selected on a statistically random basis.
However, the PTL data base is sufficiently large so that the adverse perturbations of inspector performance that Interveners believe existed could be detected. (Del George, Prep. Test. at 33, 43-44 ff. Tr. 16740.) As indicated above, the PTL data base included 10 percent of all welding and 28% of the welded compo-nents accepted by Comstock QC inspectors. This included over 25%
of all the welda installed, inspected and accepted from November 1984 to April 1985, the period of time leading up to and including the visit of the Comstock inspectors to the NRC in March 1985.
(D' Antonio,. Prep. Test., Attch. 2C (D' Antonio-2) ff. Tr 15568; Marcus, Prep. Test, at 12, Attch. 2C (Marcus-1) ff. Tr. 15568.)
The Licensing Board majority found tras data base ample. (Maj.
'Op., p. 57.) Moreover, the CSR and PTL data overlap the two year period - July 1, 1982 to June 30, 1984; and a comparison of the data shows that the agreement rates for this period are 89% and 90% respectively. This consistency provides further confidence in the reliability of the use of the two data bases in this proceed-ing. (Del George, Tr. 16801-02.)
Judge.Grossman criticized the reliability of the PTL
' data further because some of the PTL.overinspections were con-ducted through paint. This criticism, however, is of little consequence since only 7% of PTL's total reinspection
~
involved a
the inspection of painted welds. (Marcus, Prep. Test. at 10 ff. l i
Tr. 15568.) The agreement rates were re-examined by r2 moving from i
the data base the 7% of the weld data that the overinspection checklists indicate were inspected through paint. Removing these i welds from the. analysis produced no change in the agreement rates.
(Marcus, Tr. 15829.) Judge Grossman challenged the accuracy of the 7% figure by speculating that other reinspection may have been done through paint'but not noted on the checklists. The majority concluded that the 7% figure was accurate because the PTL inspectors' standard practice, reinforced by standing verbal orders, was to. note any inspections through paint in the comment section'of the checklist. (D' Antonio, Forrest and Frazier, Prep.
Test. at 9 ff. Tr. 15568; Frazier, Tr. 15750, 15827-28; Forrest, Tr. 15781-82.) Judge Grossman rejected this testimony, attaching much importance to the fact that the instructions were not in writing.10 l
10 A competent witness (Mr. Frazier) testified that he gave those-instructions and explained his reasons for believing that his inspectors followed them. (Frazier, Tr. 15781-83, 15797-800, 15827-28.) There is also a contemporaneous Com- i stock document which confirms that this was PTL practice (See Int. Ex. 184, p. 4.) The absence of detailed procedures for ]
the overinspection program prior to 1985 is attributable to ]
the fact that.these overinspections were not required by 10 CFR Part 50, Appendix B, the NRC Staff, or any industry codes $
or standards (Egg Marcus, Prep. Test. at 7-12 ff. Tr. 15568). l l
1
._ _________________A
~52-Judge Grossman made several additional comments which appear'to imply criticisms of the design of the BCAP program.
None of these criticisms has any validity. For example, Judge Grossman criticized BCAP on the ground that it was not designed to )
look at suspected-problems. (Min. F. 337.) This statement is true, but irrelevant. BCAP was designed to find previously un- l identified problems. '(Kaushal, Prep. Test, at 3-6, 16-17 ff.
'2r. 13068.) The eCAP reinspection nor.etheless gathered a data base which was adequate to decermine inspector effectiveness. l Judge Grossman also complained that BCAP employed a i sample size that would reveal "only" recurring, programmatic l construction problems. (Min. F. 337.) This is not a shortcoming, s however. It was for this reason that the BCAP data was useful to determine inspector effectiveness in the context of Interveners' contention. ' Interveners alleged that the problems at Comstock were pervasive and widespread, and denied that the effects of f these problems were' isolated or random. (See Maj. op., p. 67.)
Thus, Interveners' contention alleges exactly the kind of problems that the CSR was designed to find.
Judge Grossman also found fault with the BCAP design because, in his view, Edison was not responsive to some 27 recon-mendations made by the NRC Staff. In fact, Edison responded positively to all but one of the Staff recommendations. (App.
Ex. 128.) The one recommendation that Edison did not accept was i that the BCAP director, Dr. Kaushal, report to Edison's Manager of 1
Projects, Mr. Maiman, rather than to its Braidwood Project Mana- ]
ger, Mr. Wallace. (Id., Attch. A., pp. 5-6.) The Licensing Board I
majority considered Dr. Kaushal's reporting to Mr. Wallace and concluded there was no evidence that this relationship compromised the validity of the data collected. Moreover, the majority rea-soned, "[t]he intense regulatory spotlight and the built-in over-views under which the CSR program was conducted would make compro-mise extremely unlikely." (Maj. Op., p. 62; Kaushal, Prep. Test.
at 10-22 ff. Tr. 13068; Smith, Prep. Test. ff. Tr. 13068; Shevlin, Prep. Test. at 12-16 ff. Tr. 13068; Wozniak, Prep. Test. at 4-10 ff. Tr. 13068; Gardner, Prep. Test. ff. Tr. 17606; Staff Ex. 25.)
- c. Agreement Rates Are A Reasonable Measure Of Inspector Effectiveness.
A QC inspector's responsibility is to control quality by accepting good work and rejecting bad work. His accuracy is therefore measured by the extent to which he accepts only accept-able work and rejects only rejectable work. It is only the work that he accents, however, which gives rise to quality concerns.
Quality is assured by minimizing the amount of bad work the in-spector accepts. In contrast, the NRC really does not care about the work the inspector reiects. Whether he is rejecting only rejectable work is purely a cost consideration.
Accordingly, Edison's quality oversight activities, including the BCAP and the PIL overinspections, focused on the work that was accepted by the QC inspectors. These activities attempted to determine, through independent reinspection, what percentage of the work accented by the inspectors should have been accented. For purposes of evaluating the BCAP and PTL reinspec- l l
I 1
i
tion evidence in this proceeding, CECO's witnesses used " agreement rates" as a reasonable measure of inspector effectiveness. The agreement rate measures the percentage of work accepted by com-stock QC inspectors which the independent reinspector agreed had been accepted correctly. The idea, of course, was to compare the inspection judgments reached by a group of inspectors who were allegedly harassed, intimidated and subjected to undue production pressure with the inspection judgments reached by two groups of reinspectors who were independent of Comstock and therefore were not subject to the same alleged pressures. (Marcus, Tr. 15842-45.)
As the Licensing Board majority recognized, it is not possible to evaluate retrospectively QC inspector accuracy. The discrepancies identified by the Comstock QC inspectors were re-ferred back to the craft for remecial action and were never exam-ined by the reinspectors. (Maj. Up., p. 66.) The reinspection data thus does not tell us whether the Comstock QC inspectors were correct or incorrect when they rejected work. The majority under-stood, however, that this was not a defect in the data. Quality i concerns arise from accepted work, not from rejected work. The BCAP and PTL data allow measurement of inspector effectiveness by monitoring the percentage of QC accepted items that should have been rejected but slipped through the QC net. The Licensing Board I
majority accepted the expert testimony that agreement rates based l I
on this definition of effectiveness are the "best available behav- {
ioral tiace measure" for Comstock QC inspector performance.
(Maj. Op., p. 66.)
l
o.
Judge.Grossman adopted a different definition of
" effectiveness." His definition was based en the percentage of
. work correctly reiected out of all reiectable work, rather.than the percentage.of work correctly g.ccented out of all accented work. Thus if an inspector inspected'150 welds and accepted 100 of them, and if 85 of the welds he accepted were good, Judge Grossman would not agree that the innpector was 85% effective. He would say the inspector's effectiveness depended on how many of the 150 welds he inspected were bad. If 45 of them were bad, he would say the inspector was 67% effective, and if 20 of them were bad he would say'the' inspector was 25%' effective. (Egg Min. F.
357.) Judge Grossman's definition of inspector effectiveness is not irrational. The statistics that he seeks, however, are un-knowable. Judge Grossman has defined effectiveness in terms of the items rejected by the QC inspectors, which, as the majority recognized, are "long gone." (Maj. Op., p. 66.) Moreover, Judge Grossman's refusal to accept a definition of effectiveness based on the items accepted by the inspectors had no credible basis.
Judge Grossman apparently thought that he could measure effectiveness, as he defined it, if he just knew the number of items rejected by Comrtock QC inspectors. He observed that this statistic should be available from QC records. (Min. FF. 357-359.) Judge Grossman was mistaken. One cannot calculate effec- ;
tiveness -- even as he defined it -- unless one also knows the number of items correctiv rejected by the inspectors. Because the rejected items were returned to craft and were not reinspected, we cannot determine how many of them were good and how many bad. We
1 could of course make the irrational assumption that inspectors never rejected good work. Judge Grossman, while never expressly acknowledging it, appears in fact to have made this assumption.
He stated, for example, that one could not expect inspectors to find things that weren't there. (Min. F. 357 n.4.) The evidence clearly establishes, however, that QC inspectcts can and do reject acceptable work. Indeed the majority of their errors probably I
consist of rejecting acceptable work rather than in accepting rejectable work. (Eng Shevlin, Tr. 13775-78, 14063-67, 14070-71, 14184-85; Del George, Tr. 16917-20, 17049-53.)11 Moreover, Judge Grossman's assumption leads.to an absurd result: the mere work (good or bad) an inspector rejected, the more " effective" he would be.
The evidence clearly supports the Licensing Board major-ity's conclusion that studying variation in agreement rates over time is a reascuable way to detect chances in inspector effective-11 An inspector's task is not merely to find what is there, as Judge Grossman puts it, but also to measure it -- which can be very subjective, at least where welding is concerned --
and to decide what should hg there, based on the drawings and design drawings available to the inspector. Forty percent of the welds rejected by PTL Level II inspectors and sub-jected to further inspection by Level III inspectors were found to be acceptable. Marcus, Reb. Prep. Test. at 16-17, ff. Tr. 15568; Marcus, Tr. 15791-92; Forrest, Tr. 15793-94.)
Although it was very rare for CSR observations to be overrid-den based on further inspection by a Level III inspectors, (Shevlin, Tr. 13785-88.) many CSR observations were invali-dated because reviews of documentation established that the conditions reported as discrepant by the CSR inspectors were in fact "in accordance with design." (Kaushal, Reb. Prep.
Test., pp. 22-23, ff. Tr. 13068; orlov, Tr. 13395-14000, 14036-62; Int. Ex. 142.) The discrepancies reported by Comstock QC inspectors were of course not subject to a similar weeding-out process.
ness over time. (Egg gzg., Del George, Tr. 16945-46.) Agreement rates are not a perfect measure of inspector effectiveness even J when effectiveness is properly defined on the basis of inspected, rather than rejected, work. This is so because the CSR and PTL reinspectors were fallible (Shevlin, Tr. 14067-69, 14159-61, 14184) and because agreement rates are influenced by the quality of the. work being inspected (itg., the craft error rate). (Del George, Tr. 16809-11. Egg also Int. Ex. 188; App. Ex. 182, 183, 184.) But as the Licensing Board recognized, there is no reason 1
to believe that reinspector accuracy and the craft error rate l I
would vary in such a way as to mask changes in inspector effoc- l tiveness over time. (Maj. Op., pp. 66-67; Del George, Tr. 16929- j i
46; Frankel, Tr. 17085-92.)
Judge Grossman took the position that the lack of change in the agreement rates over the period 1982 - 1986 did not neces-sarily show that the Comstock inspectors' performance had not been adversely affected by harassment since 1983. (Min. F. 360.)
During the period before October 1983, the grid area weld inspec-tion system, which Judge Grossman found unsatisfactc ry, was in effect at Comstock. After August 1983, Judge Grossman believed, harassment had occurred. Thus neither period, he concluded, represented a standard against which any other period could be judged. (Min. F. 360.)
Judge GIJssman's hypo +5esis will not withstand scrutiny.
The trending analysis performed on the reinspection data does not require one to adopt an absolute standard of inspector perform-ance. It merely requires one to ask whether inspector performance (
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l got worse or better when certain events occurred. Moreover, Judge Grossman's hypothesis would force us to assume that, by some improbable chance, the alleged bad effects of the grid weld in-spection system prior to October 1983 and the alleged bad effects I of harassment after August 1983 exactly balanced one another, leaving Comstock QC inspector effectiveness at the same level throughout the period. Finally, even if this fortuitous balance I
had any credibility, it simply would not matter. The results of the BCAP design significance evaluations show that this level of j QC inspector performance, good or bad, was good enough. (Egg Kaushal, Prep. Test, at 33-34 ff. Tr. 13068; Del George, Prep.
Test. at 47-49 ff. Tr. 16740; Del George, Tr. 16945-48; Kostal, Prep. Test. at 32, App. Ex. 179; Thorsell, Prep. Test, at 19 ff. Tr. 14270.) Indeed, Judge Grossman himself eventually j l concluded that the inspectors' performance was adequate after October 1983. (Min. Ult. FF&CL, 114.)
There is another issue with respect to agreement rates:
how are inspector judgments to be counted? This affects the calculated agreement rates. BCAP used the concept of " inspection points for this purpose. Each inspector check to determine the acceptability or resectability of an item or attribute was termed an " inspection point." Edison presented CSR agreement rates in this proceeding on an inspection point basis. They show that over 93% of the inspection judgments made by the Comstock QC inspectors were correct. (Kaushal, Prep. Test, at 19-20 ff. Tr. 13068; App.
Ex. 177; Kostal, Prep. Test. at 22, App. Ex. 179; Kaushal, Shevlin and Smith, Tr. 13758-64; 14225-29; 14251; Frankel, Prep. Test. at
s F
13 ff. Tr. 17083; Del George, Prep. Test., Attchs. 1, 2 and 6 ff. Tr. 16740.) Edison also presented the CSR welding results using agreement rates calculated on a " weld" basis (welds found nondiscrepant out of total welds reinspected). This permits comparison between CSR results and the PTL overinspection results, which have been maintained on a weld basis. (Del George, Prep.
Test. at 14-16, Attchs. 3 and 5 ff. Tr. 16740.) It also meets concerns that improper definition of inspection points could lead to inflated and misleading agreement rates. (Egg Min..F. 355.)
On a weJd basis, about 85% of the welds accepted by Comstock QC inspectors were found acceptable by the CSR reinspectors. (Del George, Prep. Test., p. 38 ff. Tr. 16740.) The comparable figure for PTL overinspections from July 1982 through June 1986 is about 93%. (L1.)12
- d. Sargent & Lundy's Design Significance Evaluations Were Obiective.
Judge Grossman refused to give any credence to the BCAP design significance evaluations, primarily because he questioned the objectivity of Sargent & Lundy ("S&L"), the architect-engineer 12 Judge Grossman argued that CECO " inexplicably breached" a commitment to the NRC Staff by not presenting the CSR results on an " item" basis in the BCAP Final report -- a document which was never offered or received in evidence. The Licens-ing Board properly concluded that presenting the CSR results on an item basis is " clearly unreasonable and would be mis-leading." (Maj. Op., p. 65.) Even Judge Grossman agreed that it might be " unrealistic." (Min. F. 355.) Moreover, J the record establishes that no such commitment was ever made or broken. (Int. Ex. 158, Int. Ex. 140, App. Ex. 128; Kaushal, Tr. 13119-31, 13756-64; Gardner, Prep. Test. at 7 ff. Tr. 17606, Gardner, Tr. 17710-18, 18317-19, 18632.)
- for Braidwood,'which performed the evaluations. He took the 4
general position that "by virtue of its direct involvement in the design and construction of the Braidwood plant and its potential liability lto Commonwealth Edison for any construction.or licensing problems, Sargent & Lundy is too committed to the' licensing of the plant to be considered an objective evaluator." (Min. F. 368.)
Judge Grossman's premises are erroneous. S&L did not supervise or
- manage construction and there is no reason -- nor does Judge
- Grossman offer one -- why:it-would be liable.for construction defects.. '(Kostal, Tr. 14283-311.) The Board majority properly rejected Judge Grossman's argument, observing that S&L "did not l perform construction, and there is no reason why it would be adversely.affected by identified construction defects." (Maj.-
Op., p. 63.)13 Judge Grossman's only attempt to show:that S&L was responsible for a design-significant construction defect is unsupported by the record. He argus at a certain cable had been bent more tightly than the allcasble bend radius because it terminated in a junction box -- designed and ordered by S&L --
I that'was too small. (Min. F. 364.) But the facts are otherwise.
l 13 Judge Grossman also noted that S&L dispositioned NCRs and ICRs.that documented construction discrepancies. (Min.
F. 363.) .He did not explain the relevance of this, but was b apparently attempting to show that S&L.was somehow evaluating its own work. If so, he was wrong. S&L was not cailled on in the BCAP to judge its dispositioning of NCRs. Because BCAP was looking for unidentified construction problems, any problems discovered by the reinspectors which were already
.the subject of an NCR were not sent to S&L for evaluation as to design significance. (Kaushal, Prep. Test. at 22-24 ff..Tr. 13068; Gardner, Tr. 17728-29.)
The'Comstock electrician was at fault for the construction defect, because the cable could have been installed in the junction box without violating the bend radius criteria. (Thorsell., Tr.
15489-90.) Moreover, S&L had not designed, much less installed the junction box. (Thorsell, Tr. 14923-24, 15320-25.)
Furthermore, the defect was not design significant. (Thorsell, Tr. 14482-89, 14925.)
In addition to his general position that architect-engineers should be disqualified from making design significance evaluations as to their own plants, Judge Grossman scoured the record to find specific reasons why S&L should not be trusted in this case. These reasons are in every case insubstantial and unrelated to the trustworthiness of the design significance evaluations in issue. The Board majority properly concluded:
"There is no evidence to indicate that Sargent & Lundy's participation in evaluating BCAP discrepancies was anything less than highly professional and impartial." (Maj. Op., p. 63.) In addition, the majority observed, "the overall it .julatory atmosphere surrounding the BCAP program with virtually continuous oversight by BCAP QA, IEOG and a full-time resident NRC inspector assigned only to BCAP activities reduced the possibility of lenient treatment of discrepancies to virtually zero." (Id., see also Kostal & Thorsell, Tr. 14939-46; Gardner, Tr. 17608-15, 18304-08.) Judge Grossman did not respond to this point.
Judge Grossman criticized S&L because in 1984, S&L l complained that Comstock QC weld inspectors were being "over-critical." There is nothing in the record to suggest that S&L's
position' reflected anything other than good engineering judgment.
Excessive rejection of good welds was an industry-wide problem at the time, ultimately. addressed in the visual weld acceptance criteria approved by the NRC Staff in 198.5. (Egg Int. Ex. 69; Shevlin, Tr. 14106-109; Schapker, Suppl. Prep. Test. at 2 ff. Tr. 10959; Kostal, Tr. 12919.)
Similarly, Judge Grossman criticized S&L for "de-moralizing" QC inspectors by dispositioning QC discrepancies on a i "use as is" basis. (Min. F. 366.) But most of the complaints to which he referred concerned dispositions by comstock engineers, not S&L. (Eg3 Int. Ex. 42, p. 4; Mendez and Neisler, Prep. Test.
at 29-30 ff. Tr. 10490.) Moreover, as Judge Grossman lucidly explained elsewhere, an inspector is not charged with " determining l whether any putative discrepancies are significant from a safety <
standpoint." Such an evaluation is uniquely the province of an engineer to evaluate " based in part on the inspector's findings but also. based a. a variety of other data and expertise that is not immediate;. known to a quality control inspector." (Min.
F. 361.) There is no evidence that S&L's judgment in such cases was anything less than objective. 1 Judge Grossman faulted S&L for "its participation in the improper termination of Mr. Puckett and its testimony in defense ,
of that termination." (Min. F. 367.) But as he recognized elsewhere, it was Comstock (with Edison's concurrence) that fired Mr. Puckett. (Min. F. 126.) S&L had no responsibility. The notion that an individual's truthful testimony is evidence of institutional bias on the part of his employer is a novel one. In o
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any case,.the testimony was undertaken long after the BCAP
-evaluations.
^
Judge Grossman found-reason to doubt S&L's objectivity !
because of:its' recommendation that BCAP invalidate observations !
relating.to.the lack of QC. signatures on Phillips-Getschow " red- I line" drawings. (Min.;F.'367; App. Ex. 130.) S&L's proposed' rationale for invalidation was inadequate,.but it is hard to view
.this error as " partisan", since it took place long before Interveners' contention'was filed and it involved Phillips-
~Getschow, not Comstock. ~In addition, this episode (which began with lan observation by the Independent' Expert Overview Group),
Illustrates the close supervision over S&L and'the entire BCAP effort" referred to by the majority. (Maj. Op., p. 63; gag Gardner, Prep. Test. at 11-12 ff. Tr. 17606; Gardner, Tr. 17764- .
67, 18328-34; Kaushal, Prep. Test. at 25 ff.-Tr. 13068; aushal, Tr. 13489-503, 13828-34; Kostal, Tr. 14343-45; Thorsell, Tr.
14476-77.-)
Judge Grossman faulted.S&L for complaining to Comstock
-management about two Comstock QC inspectors who bypassed Comstock's QC management and engineering department and went to a top-level Sargent & Lundy engineer to ask a question about a detail'on a drawing. (Min. F. 367; Egg Martin, Tr. 9410-26.)
S&L's reporting of this failure to go through channels has no rational relation to S&L's objectivity in evaluating BCAP discrepancies.
Judge Grossman accused S&L of " unilateral departure from FSAR standards" in evaluating BCAP discrepancies for design
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significance. (Min. FF. 367, 369.) The uncontradicted testimony, however, is that S&L did not depart from FSAR standards in evaluating BCAP discrepancies. (Kostal, Tr. 15174-76.) The only example Judge Grossman gave was S&L's use of Braidwood site-unique
~
response spectra. (Min. F. 367.) The evidence showed, however, that S&L had developed these spectra at the beginning of the
'Braidwood project and had thereafter used them, with the knowledge of the NRC Staff, to address Braidwood-specific conditions when f necessary. (Kostal, Tr. 15176-79; 15218-19.)14 Judge Grossman criticized what he characterized as the S&L witnesses' attitude that S&L had designed the plant's electrical systems with so much safety margin that no deficiencies in construction and inspection could impair their ability to function safely. (Min. F. 368.) The witnesses, however, did not adopt this dogmatic position. (Egg Kostal and Thorsell, Tr. 15219-225, 15239-42, 15244-63, 15265-66, 15486-89; Int. Ex.
174.) Moreover, they testified at length as to the specific nature and the magnitude of the design margins upon which they relied in stating that design significant defects were unlikely.
(Egg Thorsell, Prep. Test, at 11-15 ff. Tr. 14270; Kostal, Prep. Test. at 17-18, App. Ex. 179; Kostal and Thorsell, Tr. 15223-25.) The Majority found this testimony persuasive.
(Maj. Op., pp. 63-65.)
14 The Appeal Board may take official notice that the Byron /Braidwood FSAR includes individual spectra for Byron i and Braidwood, as well as enveloped spectra. Egg FSAR Chapter 3.7; 10 CFR S 2.743.
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Judge Grossman questioned the statistical application of the BCAP results because, he said, "the population being sam-pled . . . must have a degree of homogeneity." (Min. F. 369.)
Judge Grossman simply ignored the expert testimony, which estab-lishes that homogeneity is ngt a requirement for statistical sampling. (Frankel, Tr. 17096-98. Egg also Kaushal, Tr. 13743; Int. Ex. 158.) Judge Grossman also suggested that statistical projection of the BCAP results is inappropriate because S&L's design significance evaluations were unique calculations suitable only for the particular items selected. (Min. F. 369.) However, the testimony shows that the refinements used by S&L in performing the BCAP evaluations, such as taking into account Braidwood unique response spectra, actual material strengths, actual cable weight within conduits and cable pans, actual cable pan widths and spans, were refinements available for use, as required, with respect to the entire sampled population from the beginning of the project.
(Egg Kostal, Prep. Test. at 17-18, App. Ex. 179; Thorsell, Reb. Prep. Test. at 11-15 ff. Tr. 14270; Kostal, Tr. 15077-122, 15133-37, 15174-76.) Therefore, the results of the design significance evaluations can indeed be projected to the entire population sampled. (Frankel, Tr. 17134-39, 17162-64.)
F. Judge Grossman Unlawfully Found A Lack Of Reasonable '
Assurance On The Basis Of An Issue Over Which The Licensina Board Had No Jurisdiction.
Although Judge Grossman agreed with his colleagues that the harassment contention before the Licensing Board did not stand in the way of a finding of reasonable assurance, he went on to find a lack of such reasonable assurance on the basis of an issue l l
completely divorced from the harassment contention. (Min. Op., l l
l 6
p -e L l l
35.) He=nonetheless blandly proceeded to act as though they were, l
and concluded that the incidental remarks of the two witnesses 1~
l demonstrated that Comstock's weld inspections during this period l were inadequate. He therefore found himself unable to. conclude that there was reasonable assurance that the plant could operate safely..
It need hardly be argued that Judge Grossman had no power to take this action, because his opinion admits as much on its face. It.is elementary that the jurisdiction of a licensing board is limited to the adjudication of issues properly put in contest by the parties in accordance with the Commission's regulations. 10 CFR 5 2.104(c). There is only one exception to this. A licensing board may raise an issue agn sconte when it determines that a " serious safety, environmental, or common defense and security matter exists." 10 CFR 5 2.760a. Moreover, when a licensing borcd raises an issue gun snonte in an operating license proceeding, it must issue a separate order making the requisite findings, state its reasons for raising the issue, and forward a copy of that order to the Commission and to the Office of the General Counsel, which shall make a prompt report to the Commission on the matter. Memorandum, Chilk to Rosenthal, Cotter and Bickwit, Raising of Issues Eya Soonte in Adjudicatory Proceedings, June 30, 1981; Egg Houston Lichtina and Power Co.
(South Texas Project, Units 1 and 2), LBP-81-54, 14 NRC 918, 923 n.4 (1981); Texas Utilities Generatina Co. (Comanche Peak Stear Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981).
a
- g. - . ,,
r 4 Sihce he. expressly recognized that the issue was not before the Licensing' Board, and since he took no steps to raise AMA Sponte, it is.fairfto conclude that Judge Grossman was actuated by an irresistible impulse in nonetheless making his decision turn on'the issue.15 He apparently. felt that he could J
not ignore what he had concluded to be a potential problem. If
= ' so, he' seriously misapprehended his responsibilities. . oversight of activities not within the jurisdiction-of a hearing board is entrusted solely'to the commission and its regulatory: staff.
i 15 The Majority opinion also contains a brief discussion of the grid area weld inspections, apparently in response to Judge Grossman's unjustified-excursion into that area. The Majority discerned "no cause to be concerned about the utility.of that Braidwood-construction which was initially inspected by the ' grid-area' scheme" prior to November 1, 1982, because the initial inspections and BCAP' reinspection revealed no discrepancies "sufficiently severe to affect the capacity or ability of an item to perform its safety
' function." (Maj. Op., pp. 70-71.) In fact, the scope of these initial' inspections was much broader than the 35%
sample which both the majority and minority assumed had been performed for the period prior to November 1982. Although up to that time, Comstock had performed 35% sample inspections on some aspects of its electrical work, it had always inspected 100% oi its welds. (Reg Int. Ex. 200.)
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III. CONCLUSION WHEREFORE, for the reasons stated above, the appeal of !
Interveners Bridget Little Rorem, 31. al., from the Concluding Partial Initial Decision of the Atomic Safety and Licensing Board should be~ denied and the decision should be affirmed.
i.
-Respectfully submitted, Qw -
O g of the attorneys for Commonwealth Edison Company.
ISHAM, LINCOLN & BEALE Three First National Plaza q' Suite 5200 Chicago, Illinois 60602 (312)-558-7500 ISHAM, LINCOLN & BEALE 1150 Connecticut Avenue, N.W.
Suite 1100 Washington,-D.C. 20036
-(202) 833-9730 DATED: July 31, 1987 ,
I 1
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I r
UNITED STATES OF AMERICA C p NUCLEAR REGULATORY ColOIISSION BEFORE THE ATOMIC SAFETY 'AND LICENSING APPEAL BOARD / AUG -3 P3 59 i 0FFict PF H .? t 4 Ax!. i
.In the' Matter of
-) McKETim; A SErvtCf
. . ) 8UNCH COMMONWEALTH EDISON COMPANY ') Docket Nos. 50-456
. . . ) 50-457 (Braidwood Station, Units 1 and 2)-)
CERTIFICATE OF SERVICE l
'i F
l I.hereby certify that copies of the BRIEF OF COMMONWEALTH EDISON COMPANY were served on the persons' listed below by. deposit /in the: United states' mail,.first-class postage
. prepaid, this 31st d'ay of July 1987.
l Gary J. Edles, Esq. Ivan W. Smith Chairman Administrative Law Judge
- Administrative Law Judge Atomic Safety and Licensing Atomic Safety and Licensing Board-Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory- Commission Commission Washington, D.C. 20555 Washington, D.C.. 20555 Dr. Reed W. Johnson Dr. Richard F.' Cole Administrative Law Judge Administrative Law Judge
- Atomic Safety and' Licensing Atomic Safety and Licensing Appeal Board Board
. U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission- Commission.
LWashington, D.C. 20555 Washington, D.C. 20555 ,
I Christine N.. Kohl, Esq.- 1 Administrative Law Judge Dr. A. Dixon Callihan j
~ Atomic Safety.and Licensing Administrative Law Judge 1 Appeal Board 102 Oak Lane U.S. Nuclear Regulatory Oak Ridge, TN 37830 Commission Washington,.D.C. 20555 l
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Gregory Alan Barry, Esq. Mr. William L. Clements Elaine I. .Chan, Esq. Chief, Docketing.and Servicas office ~of the Executive U.S. Nuclear Regulatory LegaliDirector Commission-U.S. Nuclear Regulatory office of the Secretary Commission , Washington, D.C. 20555 Washington,,D.C.- 20555
~
Atomic Safety and Licensing Ms. Bridget Little Rorem Board Panel 117 North Linden Street U.S. Nuclear Regulatory P.O. Box 208
' Commission Essex, IL 60935 Washington, D.C. :20555 Atomic Safety and Licensing Douglass W. Cassel, Jr., Esq.
Appeal Board Panel Robert Guild, Esq.
U.S.. Nuclear Regulatory Robert L. Jones, Jr., Esq.
Commission BPI Washington, D.C. 20555 109 North Dearborn Street Suite-13000 Chicago, IL- 60602 i
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