ML20236W525
| ML20236W525 | |
| Person / Time | |
|---|---|
| Site: | Zion File:ZionSolutions icon.png |
| Issue date: | 07/31/1998 |
| From: | Kohn S AFFILIATION NOT ASSIGNED, KOHN, KOHN & COLAPINTO, P.C. (FORMERLY KOHN & ASSOCIA |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#398-19389 98-744-04-LA, 98-744-4-LA, LA, NUDOCS 9808060039 | |
| Download: ML20236W525 (160) | |
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UNITED STATES OF AMERICA DOC ~ WI NUCLEAR REGULATORY COMMISSION
'TI '
ATOMIC SAFETY AND LICENSING BOARD 98 RE -3 AiC ;58 Before Administrative Judges:
Thomas S. Mcme, Chairman Dr. Jerry R. Kline ADac T
Frederick J. Shon.
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In the Matter of
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Docket Nos. 50-295/304-LA
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COMMONWEALTH EDISON COMPANY
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ASLBP No. 98-744-04-LA
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(Zion Nuclear Power Station,
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Units 1 and 2)
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July 31,1998
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PETITIONER'S AMENDED PETITION TO INTERVENE AND STATEMENT OF CONTENTIONS On March 30,1998 the Commonwealth Edison Company (hereinafter," Applicant"),
applied for an amendment to their license to operate Zion Nuclear Power Station, Units 1 and 2 (hereinatler," Plant Zion"). Sie letter from John C. Brons, Site Vice President at Zion Nuclear Station to the NRC, dated March 30,1998. This letter contained a number of attachments.
Attachment A contained a full staternent of the proposed amendments.
The Commission on May 6,1998, published notice of the March amendment request. 63 Fed. Reg. 25,101 (May 6,1998). On June 4,199S, Mr. Edwin D. Dienethat pursuant to 10 C.F.R. 2.714(a) Gled a petition to intervene in the Commonwealth Edison license amendment l
proceeding because of threat to public health and safety posed by Zion Nuclear Station due to l
intentional violations of safety related procedures. As a result, a Licensing Board was 1
l 9900060039 990731 PDR ADOCK 05000295 O
PDR o3 l
established on June 11,1998 to preside over the proceedings.
The Licensing Board issued an Order on June 17,1998 establishing a schedule for this proceeding. On July 1,1998, Commonwealth Edison submitted an answer to the petition for intervention. The NRC Staffissued a response to the petition for intervention on July 8,1998.
Both Commonwealth Edison and the NRC Staff alleged that Mr. Dienethal did not establish that he had standing to bring forth a petition to intervene. However, Mr. Dienethat in his initial petition to intervene indicated the intent in his petition to elaborate his rights to intervene in an amended petition.
On July 10,1998, the Licensing Board issued an Order recognizing that " pursuant to 10 C.F.R. Q 2.714 (a)(3), petitioner Edwin D. Dienethal has the right to " amend his petition for leave to inten ene... without prior approval of the presiding officer at any time up to.. fifteen (15) days prior to the holding of the first prehearing conference." The Board further emphasized according to 10 C.F. R. { 2.714(b)(1) that the petitioner shall fhe a supplement to the petition to intervene that must include a list of contentions which the petitioner seeks to have litigated in the hearing. In addition, the Licensing Board in this order established that Mr. Dienethal could amend his petition and submit any contentions by July 22,1998. An enlargement of time was granted by the Licensing Board on July 20,1998 to enlarge petitioner's time to amend his petition and submit any contentions by July 31,1998. Mr. Dienethat herein submits his amended petition to htervene and his list of contentions.
INTRODUCTION This proceeding concems a request from Mr. Edwin D. Dienethat to intervene in amendments to Applicant Commonwealth Edison's license to operate Plant Zion. Mr. Dienethal 2
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resides within ten miles of Plant Zion. He worked at the plant as a supervisor for ten years.
Based upon his knowledge of actual plant operations, his ability to obtain information (and 4
expert opinions) from current and former plant employees, and his direct personal interest in the safe operations of Plant Zion, Mr. Dienethal is uniquely situated to positively contribute to the licensing proceeding.
Mr. Dienethal has fonned the Committee for Safety at Plant Zion (CSPZ). He is the co-director of CSPZ. The other co-director of CSPZ is Mr. Randy Robarge. Mr. Robarge will be participating in this case as an expert and fact witness. As will be further explained in the standing section, Mr. Robarge is a life-long resident of the Zion area, a graduate of Zion High School, and a fomier employee of Applicant. Mr. Robarge has held numerous full-time and contractor positions for Applicant at most ofits nuclear plants. At Plant Zion, Mr. Robarge performed numerousjobs, ranging from a laborer during the construction phase of the plant to a Radiation Protection Supervisor.
This proceeding concerns the failure of Applicant to properly manage Plant Zion. As a result of these failures, Plant Zion has been shut down many years ahead of schedule. This premature shut down will cost the tax payers hundreds of millions of dollars, it will directly or indirectly negatively impact on the tax base for the City of Zion and the surrounding communities, and it has already cost hundreds of employees theirjob;, forcing residents to relocate, enter early retirement, become unemployed, or otherwise suffer financially due to the l
misconduct and mismanagement of Applicant. Worse, the failure of Applicant to adhere to the i
requirements ofits operating licenses and safety regulations resulted in significant and material l
threats to the public health and safety, the local environment and the health of plant workers, all 3
of which contributed to the need to close down Plant Zion.
l These mistakes and misconduct, which have resulted in this terrible state of affairs for the l
employees, former employees, and persons who reside around Plant Zion, cannot be repeated as l
l the plant prepares for the " decommissioning" phase. The hazards to the public health and safety posed by the continued presence of radioactive material at the Zion site, and the work which l
must be performed to decommission the plant, are as severe, and in many cases more severe, than those that existed during the full operational phase of the plant. However, because Applicant is not earning a profit from Zion, its incentive to properly manage the plant and pay the costs l
necessary to fully protect the persons and property interests of the local community is l
l diminutive. As will be set forth below, even now, as the first steps of the decommissioning l
process begin, Applicant is seeking to cut costs which will undermine the public health and
- safety, i
Whether or not Plant Zion operates at a profit or a loss, and whether or not the safe l
decommissioning and continued maintenance of the plant costs Applicant resources, should be of l
no concern to the public or the Nuclear Regulatory Commission (NRC). In fact, the public and the NRC must fully recognize how the lack ot'a profit incentive will negatively impact on Applicant's shutdown and decommissioning process. Significantly, even when Applicant had a l
l profit incentive in the past to properly manage and operate Plant Zion, it utterly failed to exercise the professionalism necessary to run the plant.
Although Plant Zion has not produced electricity for a considerable period of time and I
Commonwealth Edison has announced its intention to decommission the plant, the Applicants has not submitted a decommissioning plan to the NRC Accordingly, Plant Zion is still 4
considered an operational nuclear plant and must be held to comply with nuclear safety regulations and standards applicable to operational plants until it submits and receives approval of a decommissioned plant. However, Commonwealth Edison seeks through the proposed amendments to circumvent normal nuclear safety regulation standards.
STANDING To comply with basic standing requirements, the petitioner needs to prove three elements of standing. First, that the petitioner has or will suffer a distinct and palpable injury in fact within the zone ofinterest. Second, that the injury is or can befairly traceable to the challenged action.
And third, that the injury is likely to be remedied by a favorable decision in the pending case.
Yankee Atomic Electric Co.,43 NRC 61,68 (1996).
The possibility of health and safety or environmental injuries is palpable to substantiate injury in fact as long as "some, even minor, public exposures can be anticipated.. " E,43 NRC at 70. The petitioner need only prove a reasonable possibility of a future injury-in-fact arising out of either residency or recreational activity in proximity to the facility, or by travel of common " waste transportation routes." E It has been long held that petitioners who reside within a 50 mile radius of the facility have sufficient standing to intervene.' Residing within this distance alone places petitioners within the " zone of harm," exposing them to concrete possibilities ofinjury-in-fact caused by the facility. Although a 50-mile presumption does not apply in all license amendment proceedings, l
' See Georgia Power Co.,32 NRC 89,92 (1990); Virginia Electric and Power Co.,9 NRC 54,56 (1979); Houston Lighting and Power Co.,9 NRC 439,443-44 (1979); Tennessee Valley Authority,5 NRC 1418,1421 n.4 (1977).
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l the Commission has held it is sufficient to confer standing where a significant amendment is involved and there is an " obvious potential for ofisite consequences." Florida Power & Light Co,30 NRC 325,329-330 (1989). The facts of each case may be taken into account when detennining what distance is relevant. "Whether and at what distance a petitioner can be presumed to be affected must be judged on a case-by-case basis, taking into account the nature of the proposed action and significance of the radioactive source." Georgia Institute of Technoloev, 42 NRC 111,116 (1995).
Unquestionably, persons who reside or recreate within the " general vicinity of the piant" qualify as injury in fact victims within the zone ofinterest.2 For example, a commuter who drives by the facility on a regular basis qualifies within the " zone of harm" of possible injury-in-fact. Georgie Institute of Technology,42 NRC at 117. Additionally, a person who lives 7 days per month in a house located 35 miles from a nuclear power plant would have standing to intervene in a license amendment case. Georgia Power Co. et al.,37 NRC 96,106-107 (1993).
Moreover, a person who lives 45 miles from a nuclear plant and canoes in the general vicinity of the plant has been found to suffer " injury in fact" from a proposed license amendment to permit expansion of the capacity of the spent fuel pool. Virginia Electric and Power Co.,9 NRC at 57.
In this case, Petitioner Dienethat resides within 10.4 miles of Plant Zion, well within the standard distance accepted for intervention. Srs Affidavit of Edwin D. Dienethal,12.
Petitioner Dienethal and his family reside, recreate, work, and perform virtually all of 2Sss Virginia Electric and Power Co. 9 NRC at 56 (holding that only the " existence of a reasonablepossibility that expansion of the spent fuel pool capacity might have an adverse impact upon persons living nearby" is needed to prove standing) (Emphasis added.).
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their everyday activities well within Plant Zion's " zone of harm." Besides residing only ten miles from the facility, the Petitioner and his family boat, fish, swim, and play water sports in Lake Michigan, where Plant Zion discharges effluents and waste,1Cr Affidavit of Edwin D.
Dienethal,16; the family frequents a bike trail that spans across Zion, Illinois, and passes directly in front of Plant Zion,ii,17; Dienethat also golfs, and frequents a state public park in the town of Zion, Illinois, ii; and Dienethal's children, ages nine and six, play soccer just nine miles from the Plant once a week for six months out of the year.11, %5. Dienethal and his wife attend even soccer game each week. Id.
Petitioner's children's school is only twelve miles from the plant. Src Affidavit of Edwin D. Dienethal,15. Additionally, the Petitioner and his wife must travel within one mile of Plant Zion to visit the post office, shop, attend movies, or purchase gasoline, actions done at least three to four times a week.11, \\9. The water and food Dienethat and his family consume are also effected by Plant Zion. Food is purchased from local farms within 10 miles of Plant Zion, and water supplied by Lake Michigan where Plant Zion dumps waste. li, $10. All of these interactions within the general vicinity of Plant Zion place Dienethal and his family well within the plant's " zone of harm."
Activity near the facility places Petitioner Dienethat and his family in distinct and palpable risk of serious injury in fact, directly traceable to Plant Zion. Injury in fact need not exist already. The definition includes those who "have been injured in fact because of the possibility of an accident.... So: injury in fact is indeed the same, in this context, as an allegation that a real injury might reasonably be expected to occur in the future." Georgia Power CA,37 NRC 96,106 n.30 (1993).
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Plant Zion poses a concrete and serious risk of future negative health effects on Petitioner Dienethal, his wife and children, his family, and his community by threatening the food, water, and air quality of Dienethal's community. Sg Affidavit of Edwin D. Dienethal,$ 10,18,19, 20,21. He has alleged that if Plant Zion functions under the proposed amendments, the risk of potential injuries to himself, his family, Plant Zion workers, the community, and the local environment will be increased as a result ofinter alia: "1. LOCA (Lost of Coolant Accident),2.
radiological concems,3. unsafe levels of radiation for the employees at the plant and the general public, 4. undetectable radiation contamination by employees, 5. contamination of the local community and the environment,6. increase risk of accident at Plant Zion, and 7. contamination of Lake Michigan." E,120. Petitioner has also alleged if Commonwealth Edison Co.'s request for amendment is approved other imminent risks would result due to the increased potential of failing to detect radiation in adequate time and the increase risk of the plant functioning unsafely and outside NRC regulations. E Additionally,if the request for amendment is approved the facility poses a serious negative impact on Dienethal's property value, as well as the property l
l value of his surrounding community overall. E,
- 4. These allegations are more than sufficient to satisfy the injury in fact and other standing requirements necessary to grant Petitioner leave to intervene.
l In addition, it has been held that petitioners who regularly use the roads that may be j
employed by trucks carrying waste away from a nuclear power plant may be sufficient to confer standing to intervene. Yankee Atomic Electric Co.,43 NRC at 68 69. Petitioner Dienethal's daily business activities and work commute brings him directly past or very near Plant Zion three i
to four times a week. Sg Affidavit of Edwin D. Dienethal,18. An essential business supplier, 8
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whom Dienethal must visit on a regular basis to maintain his business, is located just one mile from the facility. M. Many of the roads Petitioner Dienethat travels for business are the same l
roads which Plant Zion uses to transport radioactive waste from the plant. M. Accordingly, l
Petitioner's use of the very roads used by Plant Zion to transport radioactive waste is sufficient to meet the injury in fact test and to confer standing to intervene in this proceeding.
In a license amendment case involving allegations of the unfitness or lack 6f character l
l and competence of management there is an obvious potential for offsite consequences, so standing is analogous to that in an operating license case. Georeia Power Co.,37 NRC at 108.
In this case, Petitioner has set forth contentions that raise allegations that Commonwealth Edison Company management officials have intentionally violated nuclear safety regulations and operated Plant Zion in a deliberately non-safety-conscious manner and that a complete quality assurance breakdown exists at the plant. Moreover, Petitioner alleges that if Commonwealth Edison Co.'s request for amendment is approved then these already unsafe conditions at Plant Zion will worsen. Accordingly, Petitioner has more than satisfied the standing requirements l
because he would be injured if Plant Zion's amendment request were granted due to the lack of J
character and competence of the plant's management.
Petitioner Dienethal satisfies all of the essential elements of standing. He has alleged that his health, safety, property rights and personal finances could be adversely affected by an order l
granting Commonwealth Edison Co.'s request for licensing amendment. There is a reasonable l
possibility of future injury in fact to his health and property value, and this threat of harm to l
l Dienethal, his family, and his community, is directly caused by the proposed license changes to Plant Zion. Petitioner Dienethal, therefore, should be granted permission to intervene against 9
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Commonwealth Edison's proposed amendment to the Zion Nuclear Power Station nuclear license.
PETITIONER'S CONTENTIONS Petitioner must proffer at least one acceptable contention to be admitted as a party to this proceeding. Georgia Power Co. 32 NRC 89,91 (1990). A contention need not appear in the intervention petition itself but, rather, can be set forth in a supplement to the intervention petition filed not later than 15 days prior to the first prehearing conference. Ld.
An intervener should review an application before submitting contentions, explain the basis for the contention by citing pertinent portions, and explain why there is a disagreement.
S.es 54 Fed. Reg. 33,171 (August 11,1989). A contention is admissible if the requirements of
@ 2.714(b)(2) are met, which provides:
(2) Each contention must consist of a specific statement of the issue oflaw or fact to be raised or controverted. In addition, the petitioner shall provide the following information with respect to each contention:
(1)
A brief explanation of the bases of the contentions (ii)
A concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing, together with references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion.
(iii)
Sufficient information(which may include information pursuant to paragraphs (b)(2)(I) and (ii) of this section) to show that a genuine dispute exists with the applicant on a material issue of law or fact. This showing must include references to the specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or,if the l
petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification oreach failure and the supporting reasons for the petitioner's belief.
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10 C.F.R. 2.714(3)(b)(2).
The contention regulations " require a clear statement as to the basis for the contentions" and " reference to specific documents and sources that establish the validity of the contention."
Arizona Public Service Comoanv. 34 NRC 149,155-156 (1991)(Sss 54 Fed. Reg. 33,168,33, 170(1989)). However, the intervener need not prove its case at the contention stage or present factual support in affidavit or evidentiary form sufficient to withstand a summary disposition motion. Nonetheless, the petitioner must make a minimal showing that material facts are in dispute such that a further inquiry is appropriate. Yankee Atomic Electric Comnany,43 NRC at 63, (citing Georgia Institute of Technolouv,42 NRC at i17-118).
As set forth below, the Petitioner has established nineteen valid contentions.
CONTENTION 1 Statement Reauired under 10 C.F.R. 6 2.714(b)(2): All of the requested amendments to the licence must be denied due to the Quality Assurance (QA)' problem identification breakdown
{
which currently exists at Plant Zion and which has existed at Plant Zion for a considerable period e
1 of time. Sss, John C. Brons to NRC (March 30,1998)(hereinafter," Applicant's Application"),
l Attachment A.
Brief Explanation of Basis for Contention Required under 10 C.F.R. 6 2.714(b)(2)(I) and the Concise Statement of Facts. Oninion. and References which Suntmrt Contention Reauired under 10 C.F.R. 6 2.714(b)(2)(ii): Applicant's proposed amendments impact on core safety processes and procedures at Plant Zion and individually and collectively cannot be approved due to a breakdown of Plant Zion's QA program, problem identification program, and other reporting or quality assurance processes necessary for the safe operation for decommissioning of Plant 11
Zion. Applicant's proposed amendments would result in the removal of key safety related personnel, such as the cite vice president, senior reactor operator licensed personnel, and the elimination of full-time radiation protection personnel on site. In addition, it would alter the staffing requirements for the control room and the training requirements of all onsite employees.
Finally, the proposed amendments would aher all of the technical specifications which govern on site safety related work. Given the sweeping nature of the proposed amendments, the quality assurance / problem identification breakdown at Plant Zion mandates that no such amendments be approved.
The public record demonstrates that Plant Zion's QA/ problem identification program has failed. Sfg Exhibit 3," Notice of Violation (NOV) and Enforcement Action (EA) Resulting from Quality Assurance Breakdown"; Exhibit 4," Notice of Violation (NOV) and Enforcement Action (EA) Resulting from Failure to Follow Procedures. Due to this breakdown, Applicant cannot insure that any of the amendment changes requested in the license shall be administered in a manner consistent with the controlling procedures, regulations, laws, and/or the requirements of public safety. The Petitioner can support this contention with a significant amount of evidence.
First, Mr. Allen Mosbaugh will be an expert witness for the Petitioner. He was qualified as an expert on quality assurance matters during the Department of Labor (DOL) proceeding in Robarce '.. Commonwealth Edison,98-ERA-2. 'During his testimony in that proceeding Mr.
l 3 The Randy Robarge Department of Labor record is publically available from the US Department of Labor, Office of Administrative Law Judges. The entire public record of that proceeding is incorporated into all of the contentions by reference. Certain depositions were conducted in that proceeding which were not made part of the public record. Where relevant, excerpts from these depositions will be attached. In regard to the specific testimony given by Allen Mosbaugh in the proceeding, he was questioned under oath extensively by counsel for Mr.
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l Mosbaugh reviewed evidence related to the quality assurance and problem identification program at Plant Zion and testified that the evidence supported a finding of a QA breakdown. The transcript of Mr. Mosbaugh's testimony shall be introduced in this proceeding. Sg Affidavit of Randy Robarge.
Second, both the Petitioner, Mr. Robarge, and numerous other employees or former 1
1 employees of the Applicant shall testify to the existence of"PIF wars" at Plant Zion. PIFS are l
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" Problem Identification Forms" for which employees at Zion were required to properly file, j
PIFs constituted one of the most important, if not the most important, method for employees to identify safety problems onsite and for Applicant's management to correct and trend safety problems onsite. The NRC Staff has fined Applicant for its failure to properly Gle PIFs, and in the Robarge DOL case nurnerous witnesses testified that the program had broken down. Plant Zion managers knew that employees were failing to file PlFs, managers were conducting illegal Geld modifications conceming the PIF requirements, employees were harassed merely for Gling PIFs, and PIFs were routinely not filed in violation of procedure. Sg Robarge,98-ERA-2.
The"PIF war" concept was very simple. As testified to by numerous witnesses during the Robarge DOL proceeding, if an employee or a department filed a PIF identifying problems with another employee or department's work, the target of the original PIF would retaliate and Robarge and counsel for the Applicant. This testimony, in its entirety, should be reviewed carefully by this board as further evidence of the QA breakdown. Mr. Mosbaugh was qualified as an expert in the Robarge proceeding, and the petitioner in this case intends to use Mr. Mosbaugh l
as an expert in this proceeding on both QA and character incompetence issues, and on other l
relevant technical issues. As can be seen by Mr. Mosbaugh's testimony in the Robara case, Mr.
I Mosbaugh possess expertise in a wide range of nuclear safety matters. Exhibit 10, Testimony of Allen Mosbaugh.
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file PIFs against the odginal alleger. This could escalate into a full scale " war" between departments or between people. "[I]f somebody PIF's our depar* ment, we PlF them back. If we PIF somebody else, they PIF us back to defend" Ssg Exhibit 5, redacted excerpts from the Deposition of Rodney Bauman, Tr.16. Ste_als.a Exhibit 6, redacted cxcerpts from the Deposition of Brent Robinson, Tr. 77-78; Exhibit 7, reda ted excerpts from the Depositio : of Ronald i
Schuster, Tr.17-19; Exhibit 8, redacted excerpts from the Deposition of John C. Mejers, Tr. 68-
- 69. Consequently, most employees wouldjust not file PIFs. See testimony from Robarge and Satterfield placed on the official transcript of the Robarge DOI. hearing. Also see, e.g. DOL
]
1 testimony of Russell Satterfield given in the Robartge matter. Ex. 9, Tr. 432-35. This decision not to file PIFs led to a complete breakdown of Applicant's QA program and its ability to determine the true condition ofits plant. Without the proper filing of PIFs, Applicant was unable to identify or trend problems, or to conduct proper root cause reviews, among numerous other problems.
Allen Mosbaugh, an unquestioned expert in quality assurance and poblem identification.
testified about PlF wars. Exitbit 10. Mr. Mosbaugh, in his testimony, stated as follows: "If something like a PIF war as I understand it was going down going on I would consider that virtually a complete breakdown of the PIF program and the quality assurance program that it implements. The concept as I understand is that people would retaliate against each other by writing PIFs. Has no place in the nuclear industry. The management should be by problem address the problems that are known. There is to be no element of retaliation. It's totally unprofessional and its a breakdown of the system." Exhibit 10 Tr. 981-82.
Applicant's highest levels of management were fully aware of the "PIF war" problem and 14 l
failed to take reasonable steps to correct the problem. In fact, the NRC Staff found that managers themselves were failing to file PIFs. S.gg Robarge,98-ERA-2.
In addition to the PIF wars, Applicant's supervisors and employees committed knowing and willful violations nandatory safety procedures. Sgg Robarne,98-ERA-2. Applicant had full knowledge of these willful violations and failed to take any action to identify, correct, or punish those persons who committed wilful violations. In testimony obtained in December 1997 from depositions conducted in Robarge, supervisors of the Applicant admitted, under oath, to knowing that intentional violations of procedures occurred onsite and that the existence of these intentional violations were well known. Mr. Ron Schuster, a long-term supervisor-employee of the applicant, testined under oath that he " physically witnessed" a supervisor" operating outside of the bounds." Ex. 7, Tr. 24. Mr. Schuster also confirmed that other supervisors were fully aware of these wilful violations and that the supervisor in question had a " reputation among the supervisors" as "someone who did not strictly adhere to procedures." Ex. 7, Tr. 24-25. Mr.
Schuster's allegations were conGrmed by three other management level employees of the Applicant during the deposition process in the Robarge case. Sgs, Ex. 5, Tr. 29-30 (Bauman);
Ex. 6, Tr.17-18 (Robinson); Ex. 8, Tr. 24 (Meyers). Official representatives of the Applicant (i.e. their counsel) participated in these depositions and learned of this wilful misconduct.
Consistent with the past practice onsite, however, no investigation or action was taken after these l
depositions were taken to verify, punish, and correct the willful misconduct.
At the hearing conducted in the Robarge DOL case, numerous nihgr witnesses tesuiied, under oath, that they knew that willful violations had been committed by more than one supervisor and that it was common knowledge on site (including site management) that such 15
wilful violations were occurring. Sn Robarge,98-ERA-2. Also see, Exhibit 9, excerpts from the Robarge hearing testimony. For example, Mr. Gerald Ruffolo testified, under oath, to personally witnessing three separate supervisoi3 give instructions that safety-related procedures be intentionally violated. Ex. 9 Tr. 219-232. Some of these witnesses testified to personally being instructed to wilfully yk'"
procedures. E Moreover, witnesses confirmed that the reputation of some of the persons who wilfully violated procedures were well known throughout the plant and through every level of management. E Additionally, Applicant has engaged in the harassment and intimidation of whistleblowers at Plant Zion. The NRC Staff ha-issued a Notice of Violation due to a contractors harassment of a whistleblower and a number of employee's for the Applicant have alleged harassment, wrongful discharge and intimidation. In a July 22,1997 letter to Thomas Maiman, Applicant's Senior Vice President for Nuclear Operations from A. Bill Beach, NRC Regional Administrator, the NRC Staff wamed Applicant about the " chilling effect" harassment and intimidation rr.ay be having on employee whistleblowing at the Plant Zion site. All twenty seven allegations of discrimination referenced in this letter indicate a QA breakoown. It is i
reasonable to assume that the NRC Staffis currently aware of other allegations of harassment and intimidation which were filed after the July 22"d letter was issued. Again, the " chilling effect" caused by the improper harassment of employees indicates a QA breakdown at Plant Zion. Evidence of harassment and intimidation was also introduced during the Robarge DOL claim and, upon information and belief, other employee's have filed discrimination claims under j
l Section 211 of the Energy Reorganization Act which are currently under investigation by OSHA.
Procedures onsite were regularly violated. For example, at the hearing in Robarge, 16
testimony was given that Radiation Work Permits (hereinafter "RWP")often were approved, even though they approved work was outside of the scope of the procedures. Sg Robarge,98-ERA-2 (testimony by Ruffello). The NRC Staff was never informed about the result of an audit of these violations, despite the fact that numerous supervisors and mangers knew of the apparent violations. The NRC has issued a Notice of Violation (NOV)in which Applicant violated technical specifications (TSs) conceming RWP. For example, NOV 295(304)/92034 cites violation of TS 6.2.2 when an operator entered a high radiation area without the correct RWP.
Petitioner himself has witnessed violations of procedure, including improper instruction regarding PIFs: One of Petitioner's supervisors asked him illegally to change information on PIF Number Zl998-00041 which was generated by Petitioner. In addition, the NRC Staff has noted numerous instances in which Applicant did not follow procedures, subsequently resulting in the issuance of nutnerous NOVs, including, but not limited to, those listed in Exhibit 4. The NRC has also issued Notices of Violation citing the wil/fid violation of procedure, including. but not limited to, NOV 295(304)/94008 01 in violation of TS 6.2.2.a.
In an attempt to hide some of the QA breakdown, Applicant has entered into agreements (i.e. protective orders) which prevent Petitioner from discovering matters relevant to this proceeding. These protective orders much be vacated, in part, to allow Petitioner permission to interview all persons who have executed such agreements over the past fifleen years in order to obtain information relevant to this proceeding. One such agreement is the subject of an ongoing l
2.206 petition filed in the Robarge matter my the National Whistleblower Center. However, i
regardless of the outcome of that proceeding, the Petitioner has a right to interview potential witnesses, and the Applicant cannot use protective orders or any other form of agreement to 17 r
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prohibit Petitioner from leaming additional facts to support this petition.10 C.F.R. s 50.7(g). In a Director's Decision, the use of a private contract to hide information from a party to a licensing proceeding, such as Mr. Dienethal, was found to be void and illegal. Texas Utilities Electne Co.,
I 37 NRC 477, Director's Decision (1993), slip op. DD-93-12. Srs alig " Preserving the Free Flow ofInformation to the Commission," 55 Fed. Reg. 10397,10402 (1990).
Throughout its existence, employees at Plant Zion have not been properly trained in QA requirements. During the hearing in Robarge, expert witness Mr. Mosbaugh reviewed various documentation related to the Zion QA program and interviewed at least one Zion employee with knowledge of the QA program. Mr. Mosbaugh testified, under oath, that Zion appeared to have a QA breakdown.
Mr. Mosbaugh's entire testimony is included as part of the basis for this contention, as is the testimony provided at the Robarge DOL proceeding given by Randy Robarge, Jerry Ruffolo, Mike Masosput, Robert Chavez, Russ Satterfield, Al Vedder, Brent Robinson, Ron Schuster, Petitioner, Alan Brown, Rodney Bauman (by deposition) and John Meyers (by deposition). In addition, the entire transcript of Robarge and the entire record of Robarge (including pre-trial depositions, correspondence between counsel, and in-court testimony by witnesses for Commonwealth Edison) are part of the basis for this contention.
Finally, Applicant's QA breakdown was one of the root causes of the premature shut-down of Plant Zion. If this root cause is not properly investigated, identified, and corrected, l
numerous health and safety violations will occur or re-occur during the decommissioning phase of Plant Zion.
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CONTENTION 2 Statement Required under 10 C.F.R. S 2.714(bX2): The Applicant engages in wilful and knowing violations of mandatory safety related procedures and the harassment and intimidation of employee's who seek to raise safety concems. Due to these practices, Applicant cannot insure that any of the work to be performed under any of the proposed amendments to the license shall be performed in a manner consistent with the controlling procedures, regulations, laws, and/or the requirements of public safety. Sag, Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(b)(2)(I) and the Concise Statement of Facts. Oninion. and References which Suopon Contention Reauired under 10 C.F.R. S 2.714(b)(2)(ii): The basis for this contention is contained in the explanation section for Contention 1 and 3.
CONTENTION 3 Statement Reauired under 10 C.F.R. S 2.714(b)(2): The Applicant cannot be granted any license amendments which would directly or indirectly permit it to conduct any future work at Plant Zion or participate in any manner in the decommissioning process. The Applicant lacks the character, competence, and integrity to engage in any licensed activities at Plant Zion, including those licensed activities which would be directly or indirectly authorized under the pending amendments to the license. Seg, Applicant's Application, A"achment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(bV2)(1) and the Concise Statement of Facts. Ooinion. and References which Supnort Contention Reauired under 10 C.F.R. S 2.714(bV2Vii): For all of the reasons set forth in the explanation section for Contention 1, Applicant lacks the competence, character, and integrity to operate Plant Zion.
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This lack of competence, character, and integrity is also documented in the numerous NOVs issued by the NRC staff during the preceding six year time period and the numerous Licensee Event Reports (hereinafter "LER") filed by the applicant for which it was unable to close-out.
Srg, e.g. Exhibits 3 and 4. Also see, NOV 295(304)/97003 0 citing the violation of TS l
3.13.2.a.1 which resulted from a breakdown of the QA Program at Plant Zion, an issue which still remains open conceming an error in the original design of part of the ventilation system causing effluent to escape the fuel building. LER 93002 was issued by the NRC citing the violation of TS 3.14.3.c.
l Additionally, Applicant lacked the character, competence, and integrity to properly correct many of the problems identified in these notices. Applicant maintained a secret personnel filing system to hide the true extent of the incompetence, lack ofintegrity, and lack of character l
ofits work force. During the Robarge DOL hearing, counsel for Mr. Robarge made on-the-record references to this filing system and requested that the documents contained within that system be produced. Src R_qbmgg,98-ERA-2. Because the Robarge case settled prior to the i
l completion of the hearing process, those records were not produced. However, they were i
l identified on-the-record and, as set forth on-the-record in Robarge, contain relevant material conceming this contention and the method and manner in which the Applicant has asponded to the misconduct (including criminal misconduct) of employees.
In addition, Applicant's lack of competence, character, and integrity is one of the root causes of the premature shut-down of Zion. If this root cause is not properly investigated, identified, and corrected, numerous health and safety violations will occur or re-occur during the decommissioning phase of Plant Zion.
20
CONTENTION 4 Statement Required under 10 C.F.R. 6 2.714(b)(2): Applicant's proposal to amend its license to allow use of the Zion Station Custom Technical Specifications (hereinafter " CTS") and to abandon its requirement to utilize the Improved Technical Specifications (hereinafter "ITS")
)
must be rejected. See, Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(b)(2)(1) and the Concise Statement of Facts. Oninion. and References which Support Contention Reauired
{
under 10 C.F.R. 6 2.714(b)(2)(ii): The CTS has serious problems which required Zion to implement numerous field or other modifications. The ITS was an improvement on the CTS and enhanced the safety of the plant. The failures of the CTS,in part, contributed to the systematic quality assurance breakdown at Zion which has resulted in the shut down of Zion. The continued use of the CTS constitutes a serious safety hazard, The ITS must come into use as required under the current license, and any changes to the ITS, or the implementation of new technical specifications, must undergo the review and approval process mandated under law. regulation, and subject to the specific approval of this Board.
During the Robarge DOL proceeding significant testimony was introduced concerning the problem with procecures at Plant Zion. For example, during his deposition, Mr. Rodney Bauman, a health physicist supervisory employee who had worked at Zion for six years, testified that the procedures used onsite were out of date, difficult to follow and referenced instruments which no longer existed. Postings for radiological controls were also " substandard." Ex. 5, Tr.
l 37-38.
Additionally, Applicant failed to adhere to the requirements of the CTS. This is 21 i
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documented in numerous NOVs and other public source documents in which the NRC staff noted problems with Applicant's ability to follow technical speci6 cations. Sn Exhibits 3-4.
There should be no downgrading of the technical speciHcations until the root cause behind Applicant's failure to adhere to existing speci6 cations is identified and corrected.
The NRC Commission has issued a Final Policy Statement on Technical Specifications Improvement for Nuclear Power Reactors, Vol. 58, No.139 Federal Register 39132 (July 22, 1993) in which the NRC has recognized that implementation of" improved" technical specifications, such as the ITS, were " expected to produce an improvement in the safety of l
nuclear power plants." E The goal behind the ITS was to " include greater emphasis on human factors principles in order to add clarity and understanding" to the technical specifications at nuclear plants. E,39133.
Any future retum to parts of the CTS must be individually analyzed and reviewed in light of the entire ITS and the history of problems with the CTS. If any specific CTS procedure or requirement shall be re-implemented, this must be accomplished on a procedure-by-procedure basis. All such changes must be approved by this Licensing Board.
Additional bases for this contention are contained in the explanation sections of
)
Contention 1 and Contention 3.
CONTENTION S Statement Reauired under 10 C.F.R. 6 2.714(b)(2): The Site Vice President position should not be eliminated. Sig Applicant's Application, Attachment A.
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Brief Explanation of Basis for Contention Reauired under 10 C F.R. 6 2.714(b)(2)(I) and the Concise Statement of Facts. Ooinion. and References which Support Contention Requ_ited 22 l
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under 10 C.F.R. 6 2.714(b)(2)(ii): Plant Zion has witnessed a systemic breakdown ofits QA program and the existence of numerous wilful violations of mandatory procedures. Any reduction in the accountability of corporate for these problems and any reduction in the level of management oversight, wil. "+rease the QA breakdown already in existence. This QA breakdown contributed, in part, to the shutdown of Plant Zion, and any management actions which may contribute to the continuation of this breakdown cannot be approved or tolerated.
A corporate vice president is also needed onsite to directly oversee the actions of the plant manager or decommissioning plant manager, as the plant manager may be unvilling to self-identify problems and safety issues which may make himself or herself appear incompetent.
Additional bases for this contention are contained in the explanation sections of Contention I and Contention 3.
CONTENTION 6 Statement Required under 10 C F.R. 6 2.714(b)(2) The Fuel Handler Training and Retraining Program (Program) cannot be approved, and all management changes premised on persons being qualified under this procedure cannot be approved, until the Program is augmented to meet the particular needs of Plant Zion and amended in a manner consistent with this j
contention. Sg, Applicant's Application, Attachment A. SE ahQ Attachment A,1,7,9.
Additionally, the Applicant filed a copy ofits training Program with the NRC. Sn Brons to NRC, letter dated March 16,1998 (including an Attachment A which consisted of the Zion Station Certified Fuel Handler Training and Retraining Program).
i Brief Explanation of Basis for Contention Reavired under 10 C.F.R. S 2.714(b)(2)(I) and the Concise Statement of Facts. Oninion. and References which Sunnort Contention Reau 23 i
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l under 10 C.F.R. S 2.714bM2Viik The training program must address the systemic breakdown of the QA program at Zion, the existence of numerous wilful violations at Plant Zion, and the l
failure of Commonwealth Edison to properly manage Zion. The Program must address the l
systemic management and quality issues which resulted in the untimely shut down of Plant Zion.
Modeling this Program aRer Trojan and Maine Yankee fails to address the speciDc problems l
which have existed and continue to exist at Plant Zion, problems which rendered the plant inoperable and constitute a direct and grave threat to the public heath and safety.
The Program placed on the public record fails to contain speci5c information about exactly what will be included in the training and who will be conducting the training. Sg Brons to NRC, letter dated March 16,1998 Information was produced during Robarge concerning the quali5 cations of persons employed by the Applicant to perfonn trainings. During the testimony of Mr. Schuster (including his under oath testimony and the offer of proofintroduced by counsel for Mr.
Robarge), information was placed on the record indicating that persons with considerable responsibility for trainings at Plant Zion may have engaged in serious criminal activity, implicating these persons character and competence to engage in any employment at a nuclear facility. It was also evident from this testimony that high ranking officials for the Applicant i
would have known of this conduct but failed to take adequate action concerning this conduct.
l A review of the Program submitted to the NRC demonstrates its problematic nature. En Brons to NRC, letter dated March 16,1998. Section 1.0 of the Program allows the Applicant to 4
l make changes to the Program without " prior" NRC " approval." Additionally, the Program i
authorizes Applicant to develop a retraining program. The retraining program does not need 24
NRC approval and appears to give the Applicant full discretion concerning the contents, examination requirements (if any), and other rules related to the retraining program. These exemptions and deficiencies could be abused, and given the past misconduct at Plant Zion, it is reasonable to assume they would be abused. The NRC has issued NOV 295(304)/96021-07 because Applicant violated TS 6.1.5 and ANSI N18.1 by lacking the proper training in Department of Transportation and NRC regulatory requirements.
The Program allows Applicant to exempt persons from the training requirements. Sg Program Sections 1.0,2.3.3 and 3.4.2. This authority can easily be abused, and Applicant would be able to override the training requirements anytime it needs to meet a schedule, save money, or exempt a personal friend from the training requirements. Given the systemic QA breakdown and the continued existence of wilful violations of plant procedures, this exemption cannot be approved. See Exh' bits 3-8.
Page A-1 of the training program contains the areas for which written examination; would be administered to employees. Given the problems identified in Contentions I and 3, the training must also include trainings on the PIF process, the employee concerns process, the QA process, and the personal responsibility employees have to report misconduct and to refrain from intentional violations of procedures.
Given the complete lack of quality work performed onsite, as evidenced in this filing, whatever Program is finally approved must be a high-quality training program for which all plant personnel-- including the Site VP and the Decommissioning Plant Manager -must take and must pass. No employee of Plant Zion should be able to " grandfather" pre-approvals for this training.
I Simply stated, the plant has had so many safety-related problems, as documented in the NRC 25 l
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NOV referenced in this filing, the decision of. Applicant to prematurely shut down Plant Zion due i
to its inability to properly manage the project and as documented in Robarge, all employees at the site must be required to take and pass an augmented training program.
l Additional bases for this contention are contained in the explanation sections of Contention 1 and Contention 3. In this regard, any training program at Plant Zion must include very detailed trainings conceming problem identification, the rights of employees to blow the whistle, and the importance of strict adherence to QA procedures.
CONTENTION 7 Statement Required under 10 C.F.R. 6 2.714(b)(2): The Applicant request for permission to delete section 6.4 from the CTS must be denied. Sn, Applicant's Application, Attachment A.
Sg ahn Attachment A,8.
Brief Explanation of Basis for Contention Required under 10 C.F.R. 6 2.714(b)(2)(1) and the Concise Statement of Facts. Oninion. and References which Support Contention Required under 10 C.F.R S 2.714(b)(2)(ii): The current ITS specifically references those parts of the Zion QA plan which would require the types of reporting required under CTS 6.4. Simply deleting 6.4, without appropriately compensating for this requirement, is inconsistent with the public health and safety. Additionally, this amendment request should be denied as Applicant should not be permitted to revert back to the CTS.
Additional bases for this contention are contained in the explanation sections of Contention 1 and Contention 3.
CONTENTION 8 Statement Required under 10 C.F.R. S 2.714(b)(2): Applicant's request to use Certified 26
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Fuel Handlers instead oflicensed personnel must be denied. See Applicant's Application, Attachment A. sis aho Attachment A,6-7.
I Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(b)(2)(1) and j
the Concise Statement of Facts. Ooinion and References which Sunnort Contention Reauired under 10 C.F.R. S 2.714(b)(2)(ii): First, the NRC has specific authority to take individual licensing action against any person who is personally licensed by the NRC. Given the breakdown in the Zion QA program, any change to the license which minimizes the oversight authority of the NRC over the conduct ofindividual supervisors or managers must be denied.
Second, Applicant has not demonstrated that the training program for the Fuel Handlers will meet the needs of the public health and safety. Third, there is no evidence that the Fuel Handlers will be trained or able to properly work during an accident condition as well as licensed personnel will be able to work. Fuel Handlers would not have tlw training, education, and background to make proper safety-related decisions during an accident condition, and they would lack this training / background to conduct or supervise proper root cause reviews. In addition, a licensed system engineer is needed to oversee the relevant system (s).
Additional bases for this contention are contained in the explanation sections of l
Contention 1 and Contention 3.
CONTENTION 9 Statement Reauired under 10 C.F.R. S 2.714(b)(2): Applicant's proposal to have only one licensed person in the control room must be rejected. Sss Applicant's Application, Attachment A. Ses aha Appendix p. 9.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(bV2)(D and I
l 27
the Concise Statement of Facts. Oninion. and References which Sunnort Contention Reauired under 10 C.F.R. 6 2.714(b)(2)(ii): No less than two licensed personnel, one of which should be a nonunion individual, must be on-duty in the control room at all times. Limiting the number of persons employed in the contro! room creates a direct and immediate threat to the public health and safety. If only one such person worked in the control room, numerous reasonably foreseeable contingencies could not be properly addressed. The examples are infinite: what if the employee falls asleep, what if the employee has a medical emergency, what if the employee must leave his station due to an onsite emergency which needs his attention, what if the employee is disgruntled about union-management negotiations, what about the need for second verifications for instrument readings, what about the propensity to improperly ignore plant instrumentation?
Simply stated, this proposal strongly suggests that cost-saving measures are clouding the judgement of the Applicant.
Applicant not only requests that only "cne qualified person" be required to " stand watch in the control room," Applicant also requests that the definition of who is " qualified" be further watered down, to permit non-licensed personnel to operate the control room and monitor the control room. This request is irresponsible. No less then two licensed personnel, properly trained and properly qualified, one of which should be a nonunion member, should be on-duty, at all times, to " stand watch" in the control room. The risk of accident, and risk that an accident would not be properly responded to, and the risk that a mistake would be made in this critical function, outweighs the cost-saving needs of the Applicant.
Finally, given the QA Breakdown and lack of character, competence, and integrity contained in the explanation sections of Contention 1 and Contention 3, eliminating the implicit 28 t
oversight and accountability function of having two licensed persons in the control room cannot bejustified.
t Additional bases for this contention are contained in the explanation sections of Contention I and Contention 3.
CONTENTION 10 Statement Reauired under 10 C.F.R. S 2.714(bV21: Applicant's request to eliminate the
" continuous onshift presence a of Radiation Protection Person" must be denied. Attachment A, 12.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(bM2VI) and the Concise Statement of Facts. Opinion. and References which Sunnort Contention Reauired under 10 C.F.R. S 2.714(bM 2Wii): This request Applicant is completely irresponsible and again indicates that the Applicant is overly concerned with cutting costs and no longer is competent or capable of properly managing Plant Zion. It is absolutely necessary to have a Radiation Protection Person on site to ensure the safety of Plant Zion employees and the general public.
By eliminating a " continuous onshift presence", Applicant will increase the possibility of unnecessary and excess radiation exposure and increase the likelihood of hann inflicted on employees and the general public. A Radiation Protection Person needs to be onsite at all times to prevent radiation from leaving the protected areas or to quickly rectify the problem if the radiation is brought into unprotected locations. The presence of this person will also decrease the possibility of radiation being taken off-site, contaminating the community. The Radiation Protection program at Plant Zion has been riddled with intentional violations by supervisors and continuous and significant quality assurance problems. During the Robarge hearing, numerous 1
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witnesses testified to a complete breakdown of QA within that department. That evidence introduced by the Complainant in that case, which is part of the public record, is hereby incorporated by reference as part of the basis to this contention.
Additionally, during the discovery phase of the Robarge proceeding, evidence was introduced in depositions concerning the QA breakdown within the Radiation Protection Department. Sgg Exs. 5-8. For example, Mr. Bauman testified that radiation monitors were
" substandard" and the ability of the Applicant to properly "infomt workers" of potentially unsafe
" radiological conditions" at Zion were also " substandard." In this regard, in the Department of Labor case of Boudrie v. Commonwealth Edison, it was proven that radioactive materially were improperly removed from Plant Zion and canied home, undetected, by employees. The record in the Bourdie proceeding is hereby incorporated by reference.
Moreover, Mr. Robarge (and other persons with expertise in radiation protection) shall testify as of the problems inherent in accepting this amendment. For example. during the Robarge DOL hearing, documentary and oral testimony was placed on the record (and information was produced during discovery, which was required to be retumed, uncopied, to the Applicant) demonstrating a complete QA breakdown within the area of radiation protection.
This included, but was not limited to, numerous examples of radioactive narticles being locatea outside of the radiation control areas, including radioactive particles being found at locations were employees ate.
Additional bases for this contention are contained in the explanation sections of Contention 1 and Contention 3.
CONTENTION 11 30
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Statement Reauired under 10 C.F.R. 6 2.714(bM2h No amendments to Applicant's license should be granted until the LERs are fully reviewed. Sgg Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. 6 2.714(bM2WD and the Concise Statement of Facts. Opinion. and References which Sunnort Contention Reauired f
under 10 C.F.R. 6 2.714(bM2Viih When Applicant accounted that Plant Zion would be f
prematurely shout down, a large number of LERs were open and under review. As a consequence of announcing the shut down of the plant, the NRC gave Applicant permission to close every open LER. This was evidenced by a letter Mr. Randy Robarge obtained in discovery of his DOL case which apparently he was required to return to Commonwealth Edison. In any event, the LERs in question clearly could be materially relevant to the issues raised in the proposed amendments and the contentions raised herein. The blanket closure of these numerous LERs was inappropriate.
Completing LERs and properly conducting the root cause analysis required under the LER process is an essential component of the nuclear safety program. The NRC Staff and Applicant must be required to review each of the closed LERs and set forth specific justification as to why, under no reasonable circumstances, each and every safety related issue implicated in the LER has no relevance whatsoever to the current safety of Plant Zion, any of the work implicated by applicants proposed license amendments and/or any work which may be performed during the decommissioning process. If any LER does contain matters which may have relevance to the current safety of Plant Zion and/or any work which may be performed in the future at Plant Zion, said LER must be completed and submitted to this Board for final 31 1
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approval. Until all such LER issues are addressed, and it is demonstrated that no outstanding issue contained in any of the LERs would impact on any of the amendments proposed by the Applicant, no amendment to the Applicant's license should be approved.
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Additional bases for this contention are contained in the explanation sections of j
i Contention I and Contention 3 l
CONTENTION 12 Statement Reauired under 10 C.F.R. 6 2.714(b)(2): No amendments can be approved
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i until the Applicant demonstrates that it has proper knowledge of the actual condition of Plant Zion. Src, Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. 6 2.714(b)(2)(1) and the Concise Statement of Facts. Oninion. and References which Support Contention Reauired under 10 C.F.R. 5 2.714(b)(2)(ii): Due to the QA breakdown, and the lack of character, competence, and integrity, which were explicated in explanation sections of Contention 1 and Contention 3, the Applicant does not have current knowledge of the actual condition of Plant Zion. For example, due to the "PlF wars" which existed onsite, problem identi5 cation forms were not filed. The failure of Applicant to insure that these forms were filed as resulted in the inability of Applicant to be aware of problems which exist onsite. In addition, due to the numerous wilful and non-wilful violations of procedure, the Applicant cannot demonstrate proper knowledge of actual plant conditions and cannot properly justify any amendments to its license.
l Additional bases for this contention are contained in the explanation sections of Contention 1 and Contention 3.
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CONTENTION 13 Statement Reauired under 10 C.F.R. 6 2.714(b)(2): The change to the specifications 1
concerning the use of overtime (6.2.1) must be denied. Sn, Applicant's Application, l
l Attachment A, 7.
Brief Explanation of Basis for Contention Reauired under 10 C.F R. 6 2.714(bM2WI) and the Concise Statement of Facts. Oninion. and References which Support Contention Reauired l
under 10 C.F.R. 6 2.714(bM2Vii): Mr. Robarge and other witnesses shall testify to the widespread abuse of overtime at Plant Zion and how this use of overtime created safety problems within the plant. The proposed amendments further waters dowr. :he overtime rules and creates an ambiguous definition as to who is covered under those rules. Given the past abuses of overtime, and how the over-use of ovenime has created safety problems, this proposal should not be approved. The NRC has issued NOVs conceming overtime, including, but not limited to, NOV 97013-02 which cites the violation of TS 6.2.1.i because of management oversight of ovenime; and NOV 97013-02 which cites the violation of TS 6.2.1.i in which overtime guidelines were not met.
Additional bases for this contention are contained in the explanation sections of I
Contention 1 and Contention 3.
CONTENTION 14 Statement Reauired under 10 C.F.R. 6 2.~i14(bM2):" Leak Path" safety problem. Sg, Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. 6 2.714(b)(2WI) and i
i the Concise Statement of Facts. Opinion. and References which Supoort Contention Reauired I
f I
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under 10 C.F.R. S 2.714(bV2)(ii): The changes requested by the Applicant, specifically those l
changes related to qualifications, staffing, and training, cannot be granted until the " Leak Path" l
safety problem is properly identified and permanently corrected. Specifically, Mr. Dienethat (and other persons) shall provide expert testimony regarding the " Leak Path" concern. BrieDy stated, the " Leak Path" issue is caused by the current non-operational condition of the Reactor Coolant Systems and various other systems. During system operation, the pressure from the system and liquid that runs through the system keep the seals and packing lubricated. Because the system is currently not in use and thus not being lubricated, it is highly likely that the packing and seals for the system components nave dried out and cracked, which would create a potential leak path.
If the system is used again before the issue of dried out and cracked seals and packing is addressed, there is an enormous potential for disaster because the system may potentially release radioactive fuel into the atmosphere via direct ventilation that connects the system directly to outside Plant Zion.
Additional bases for this contention are contained in the explanation sections of Contention 1 and Contention 3.
CONTENTION 15 Statement Reauired under 10 C.F.R. S 2.714(b)(2):" Spent Fuel Pool" safety issue. Sn Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(b)(2)(1) and the Concise Statement of Facts. Ooinion. and References which Suoport Contention Reauired under 10 C.F.R. S 2.714(bM2Vii): Petitioner contends that the current fuel pool holding tank 34
poses a serious threat of radioactive leakage that cannot be maintained or prevented effectively by Plant Zion. Specifically, Petitioner (and other persons) will testify that the fuel assembly tubing (otherwise referred to as assembly cladding), within the power plant, was poorly maintained during its use. Over time, foreign material from the outside environment (from poor maintenance practices and improper monitoring ofinventory) entered the Reactant Cooler System. The debris then would bounce around in the system, eventually finding its way into the reactor. Once in the reactor, the foreign material would lodge between tubing (cladding) of the fuel assembly. At that point, the velocity of the Reactant Cooler Flow would contact this foreign i
material and allow it vibrate against the cladding of the fuel assembly to a point where it would chaff a hole in the cladding. At that point, raw radioactive fuel was been released into the Reactant Cooler System because the cladding damage was so great. As a result, regular outages became severely more radiologically dangerous to personnel. This fuel, with the damaged cladding which leaks out a higher amount of radioactive particulate. is now stored in the fuel pool permanently.
This ft.cl pool, however, is not designed to accommodate the amount of raw radioactive fuel combined with debris and material from the cladding that it currently contains. The fuel, currently exposed to the water in the pool, is creating a potential safety danger beyond that which the apparatus and plant is equipt to handle: The fuel pool is designed with specific time and capacity limits, and those limits are currently overextended.
Plant Zion has underestimated the severity of any problem that may arise from the fuel pool because even the worst case scenario procedures fail to account for the levels of debris and cladding in the fuel. Consequently, efforts needed to combat a potential problem arising from a 35 l
breach or leak in the pool equipment will be very shortcoming. The result will be a higher release 1
of radioactive material into the atmosphere.
Additional bases for this contention are contained in the explanation sections of Contention 1 and Contention 3.
CONTENTION 16 Statement Required under 10 C.F.R. S 2.714(bV2): The Applicant's request for amendment circumvents the Commission's decommissioning process by failing to provide a valid decommissioning plan or acceptable altemative decommissioning, resulting in the unsafe removal of the plant from operational service.See Applicant's Application, Attachment A.
Bnef Explanation of Basis for Contention Required under 10 C.F.R. S 2.714(bM2VI) and
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the Concise Statement of Facts. Opinion. and References which Sunnort Contention Reauired under 10 C.F.R. 6 2.714fbM2Vii): Commonwealth Edison Co. has determined that its Plant Zion has reached the end ofits useful life and it has stated an intention to seek decommissioning. The Commission's definition of" decommissioning" states that it "means to remove a nuclear facility safelv from service and to reduce residual radioactivity to a level that permits release of the f
property for unrestricted use and termination of the license." NUREG-0586," Final Generic Environmental Impact Statement on Decommissioning of Nucicar Facilities," p. 2-5 (emphasis added). liowever, the Applicant's request to amend its license would result in reductions in the margin of safety, the safety-related staffing of the plant, the safety related technical specifications and the safety-related personnel conditions within the corporate structure, radiation protection j
and the control room prior to submitting a decommissioning plan for Plant Zion. See explanations in Contentions 1 through 15, above. Until Applicant submits a decommissioning 36
plan and receives approval of such a plan from the Commission it must be considered an operational facility subject to the nuclear safety regulations and standards applicable to operating nuclear power plants. Applicant's request for amendment will violate these nuclear safety regulations and standards and place the public health and safety at risk. Ses explanations in Contentions I through 15, above.
Applicant wants these changes to its license without applying for a formal decommissioning, without submitting a decommission plan, and without MRC approval of decommissioning. By not taking these appropriate steps, Applicant seeks through the requested amendment to its license the benefits of decommissioning without requesting and obtaining approval of a decommissioning plan in violation of NRC regulations and in violation of nuclear safety regulations, laws and standards. Granting the amendments will serve to delay the necessary safety review process which should be undertaken prior to the commencement of decommissioning and will permit Plant Zion, which is still an operational nuclear power plant, to avoid adherence to nuclear safety regulations and standards applicable to operational plants.
More significantly, the Applicant's request for amendment is not an acceptable substitute for, or attemative to, decommissioning because it will place Plant Zion (during its pre-decommissioning phase) in a condition tha' will pose an unreasonable risk to the public health and safety. Prior to decommissioning Commonwealth Edison Co. should be required to conduct a review that includes a root cause analysis of why Plant Zion suffered from so many QA and other safety-related problems during the operational phase, and the Applicant should be required to provide a detailed plan to correct these problems prior to any approval of any amendment which is directly i
or indirectly related to decommissioning.
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i Additional bases for this contention are contained in the explanation sections of I
Contentions 1 through 15.
CONTENTION 17 1
Statement Required under 10 C.F.R. S 2.714(13(2): Plant Zion's Radiation Protection Monitors should not be eliminated, and those Radiation Protection Monitors which are remaining in use need to be upgraded and/or properly maintained. Sie Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. S 2.714(b)(2)(1) and the Concise Statement of Facts. Oninion. and References which Suonort Contention Reauired under 10 C.F.R. S 2.714(b)(2)(iik The Radiation Protection Monitors which are bing eliminated through Commonwealth Edison's requested amendment are needed to protect the public health and safety, prevent the release of radiation and radiation contamination offsite and to protect workers at the plant from exposures to radiation. At Plant Zion active systems remain in operation which need to be properly maintained to protect the health and safety of Plant Zion employees and the general public. These monitors quantify the amount of radiation released into the area and quantify air quality radiation levels. Sig Affidavit of Randy Robarge, $ 11. The i
monitors need to be retained or replaced with updated monitors. M. The monitors or upgraded monitors also need to be maintained and serviced to assure quality detection in accordance with nuclear safety regulations and accepted safety standards. M. Without these monitors, improper levels of radiation may go undetected and radiation contamination may be released to the general i
public, plant workers, and the local environment, placing the health and safety of the community, plant workers, and their families in jeopardy. M.
l Plant Zion has a history of radiation and radiation contamination exposures of plant l
38
workers and improper releases of radiation contamination off-site due to tax adherence to radiation protection procedures and faulty or malfunctioning radiation protection monitors.
Petitioner will rely upon the NRC Notices of Violations and NRC Inspection Reports issued by the NRC conceming these issues in the last five years. In addition, Petitioner will rely upon the testimony, evidence and record presented in Steven Boudrie v. Commonwealth Edison Company, DOL Case No. 95-ERA-15, that demonstrates the Applicant's failure to meet radiation protection procedures and Plant Zion's faulty or malfunctioning radiation protection monitors.
Petitioner incorporates herein the entire Boudrie DOL record in support of this contention. In addition, Petitioner wil' rely upon the testimony of Mr. Robarge and other employees or former employees at Plant Zion who are knowledgeable about these issues to prove this contention.
Additional bases for this contention are contained in the explanation sections of Contention 1, Contention 3 and Contention 10.
CONTENTION 18 Statement Reauired under 10 C.F R. 6 2.714(b)(2): No changes should be made to Applicant's license until the harassment and intimidation of employees is halted. Ssg Applicant's Application, Attachment A.
Brief Explanation of B,. sis for Contention Reauired under 10 C.F.R. 6 2.714(bM2MI) and the Concise Statement of Facts. Opinion. and References which Sunnort Contention Reauired under 10 C.F.R. 5 2.714(bV2Vii): As set forth in the DOL case filed by Randy Robarge, current DOL cases pending before OSH A and the July 22,1997 letter from Beach to Maiman, a " chilling effect" exists at Plant Zion which prevents the proper disclosure of safety related problems at that site. Until the Applicant can demonstrate that it has solved this " chilling effect" problem 39 l
and has eliminated the root causes of employee intimidation, any change to Applicant's license I
must be denied.
Additional bases for this contention are contained in the explanation sections of Contention I and Contention 3.
CONTENTION 19 Statement Reauired under 10 C.F.R. 6 2.714(bM2h The license amendments should be denied in their entirety because a loss of coolant accident (hereinafter "LOCA") could result from the changes requested by Applicant. Sr,c Applicant's Application, Attachment A.
Brief Explanation of Basis for Contention Reauired under 10 C.F.R. 6 2.714(b)(2)(l) and the Concise Statement of Facts. Oninion. and References which Sunnort Contention Reauired under 10 C.F.R. 6 2.714(b)(2Mii): Mr. Edwin Dienethal and other expert witnesses shall testify that the proposed amendments could increase the potential for a LOCA, or a lesser accident, to occur at Plant Zion. The combination of staffing changes such as the elimination of the cite vice president, the elimination of senior operators, the elimination of radiation protection supervisors.
and the use of only certified fuel handlers to perform functions on site or be present on site could result in a LOCA. Specifically, the absence of the types of personnel which would be eliminated or downgraded in Applicant's proposed amendments would result in the elimination of experienced professionals on site. In an unpredictable situation, this lack of experience could prove catastrophic to the public health and safety. The downgrading of the skill, knowledge, and experienced pool of talent on site in combination with the problems identified in Contentions I and 3 could reasonably result in a LOCA due to human error. This matter will be the subject of expert testimony by Mr. Dienethal and other witnesses.
1 40 i
1
Additional bases for this contention are contained in the explanation sections of Contentions 1 through 18.
CONCLUSION For the foregoing reasons, Petitioner's request to intervene, and all nineteen contentions set forth above, should be admitted.
]
Respec tfully sub itted, S
en M. Kohn Michael D. Kohn David K. Colapinto l
KOHN, KOHN & COLAPINTO, P.C.
3233 P Street, N.W.
Washington, D.C. 20007 202-342-6980 (phone) 202-342-6980 (fax)
Attorneys for Petitioner Dated: July 31,1998 340/amendedpetition f
41 l
00ll.y' N p
- N ;.
98 AUG -3 T40:58 CEllTIFICATE OF SEltVICI-;
I hereby certify that a copy of the foregoing amended petition aiO stipplement'to retition was served via facsimile (w here indicated) and first class mail. postage @ld, this 31" day of,
July,1998 on the following persons:
Administrative Judge Office of the Secretary (2)
Thomas S. N1oore. Chairman ATTN: Rulemakings and Adjudications Atomic Safety and Licensing Board Panel Staff N1 ail Stop-T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington D.C. 20555 Washington, D.C. 20555 FAX: (301 ) 415-5599 Office of Commission Appellate Adjudication Administrates e Judge l!.S. Nuclear Regulatory Commission Dr. Jerry R. Kline Washiagton. D.C. 20555 Atomic Safety and Licensing Board Panel N1 ail Stop - T-3 F23 Adjudicatory File (2)
U.S. Nuclear Regulatory Commission Atomic Safety and 1.i.ensing Board Washington. D.C. 20555 t:.S. Nuclear Regulatory Commission Washington. D.C. 20555 Administrative Judge.
Frederick J. Shon David W. Jenkins. lisq.
Atomic Safety and Licensing Board Panel Robert li. llelfrich. F.sq.
N1 ail Stop -T-3 F23 Commonwealth lidison Co.
U.S. Nuclear Regulatory Commission I.au Department Room 1535 Washington. D.C. 20555 125 South Clark Street Chicago. IL 60603 Atomic Safety and Licensing Board Panel Sherwin E Iurk U.S. Nuclear Regulatory Commission Counsel ihr NRC Staff Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington. D.C. 20555 s
by:
1 David K. Colapinto
{
l
~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Thomas S. Moore, Chairman j
Dr. Jerry R. Kline Frederick J. Shon
)
In the Matter of
)
Docket Nos. 50-295/304-LA
-)
COMMONWEALTH EDISON COMPANY
)
ASLBP No. 98-744-04-LA
)
(Zion Nuclear Power Stat;on,
)
Units 1 and 2)
)
July 31,1998
)
EXilIBITS TO INTERVENER'S AMENDED PETITION TO INTERVENE AND STATEMENT OF CONTENTIONS Stephen M. Kohn l
Michael D. Kohn David K. Colapinto KOHN, KOHN & COLAPINTO, P.C.
3233 P Street, NW Washington, DC 20007 Phone: (202) 342-6980 Fax: (202) 342-6984 Attorneys for Petitioner I'
L 4
INDEX OF EXIIIBITS 1.
Affidavit of Edwin D. Dienethal (July 31,1998).
2.
Affidavit of Randy D. Robarge (July 31,1998).
3.
Notices of Violation (NOV) and Enforcement Actions (EA) Resulting From Quality Assurance Breakdown.
4.
Notices of Violation (NOV) and Enforcement Actions (EA) Resulting From Failure to Follow Procedures.
5.
Redacted Excerpts of Deposition of Rodney Bauman from Robarge v. Commonwealth Edmon,98-ERA-2.
6.
Redacted Excerpts of Deposition of Brent Robinson from Robarge v. Commonwealth Edison,98-ERA-2.
7.
Redacted Excerpts of Deposition of Ronald Schuster from Robarge v. Commonwealth Edison,98-ERA-2.
8.
Redacted Excerpts of Deposition of John C. Meyers from Robarge v. Commonwealth Edison,98-ERA-2.
9.
Redacted Excerpts of Hearing Transcript from Robarge v. Commonwealth Edison,98-ERA-2.
10.
Excerpts of Testimony of Allen Mosbaugh from Hearing Transcript for Robarge v.
Commonwealth Edison,98-ERA-2.
l l
IL
l EXHIBIT 1 l
I I
I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Thomas S. Moore. Chairman Dr. Jerry R. Kline Frederick J. Shon
)
In the Matter of
)
Docket Nos. 50-295/304-LA
)
COMMONWEALTil EDISON COMPANY
)
ASLBP No. 98-744-04-LA
)
(Zion Nuclear Power Station.
)
Units 1 and 2)
)
July 31,1998
)
)
AEE1 DAVIT OF EDWIN D. DIENETil AL Under the pains and penalties of perjury. I, Edwin D. Dienethal, hereby affirm pursuant to 28 USC s 1746 *at the following information is true and correct:
1.
In close proximity of Plant Zion, I own property, own a home and reside at the following address: 8354 47'h Court, Kenosha. Wisconsin,53142.
2.
The distance between my home and the gate of Plant Zion is 10.2 miles driving and 8 % to 9 miles as the crow files. It takes only 17 minutes and 23 seconds to drive to Plant Zion from my home in normal traffic conditions.
i 3.
My wife and two children, ages 9 and 6 years, live with me at the above address.
l l
Exhibit
/
,page /
of 8 l
L--_----____----
I
My wife and I have lived at the above address since 1991.
4.
The property value has an estimated fair market value of $172,504 and the contents of the house are insured at over $100,000. Ifit is revealed that the decommissioning of Plant Zion is not conforming to present rules, I believe that this would affect my ability to sell my property at the current market value.
5.
My two children attend the Kenosha Montessori School only 12 miles from Plant Zion. My wife and I share duties driving and picking up my children from this school. My children play, along with other children from the community, in the Kenosha Association Soccer League once a week for six months of the year at Anderson Park. within 9 miles of Plant Zion. Both my wife nad I attend all of these soccer games.
6.
Plant Zion empties discharge into Lake Michigan. Each year, my family and I enjoy taking a couple of family outings to Lake Michigan. In these outings, my family and I enjoy boating, participating in water sports, and swimming in Lake Michigan. My family and I also fish in Lake Michigan and consume the fish caught from Lake Michigan.
7.
My children spend at least six hours a day outside. Frequently this time is spent on a bike trail which runs to and through the town of Zion, Illinois, the town where Plant Zion is located, including directly in front of the Plant. In supervising Exhibit
/
2 of.3._.
,page
I l
my children, my wife and I frequently take walks or bike upon the bike trail.
i Other recreational activities my family and I enjr is utilizing the Illinois Beach State Park. I also occasionally play golf at the golf course in Zion, Illinois.
8.
All of my heating and air conditioning business is conducted within 50 miles of Plant Zion. I have customers in several local towns including Kenosha, Wisconsin, which is within 10 miles of Plant Zion. My supplier, Midway Supply, is located within 1 mile of Plant Zion. For the survival of my company,I will be conducting a large amount of business with Midway Supply which will require me to drive to Midway Supply 3 to 4 times each week. I am also required to travel most of the roads within 50 miles of Zion in order to conduct my business. Many of the roads I use for my business are the same roads which Plant Zion uses to transport plant waste to Hamford, Washington. This plant waste is also transported through the streets of Zion. Illinois.
9.
Three or four times a week my family and I drive within i to % miles of Plant Zion to downtown Zion, Illinois, to get gasoline, go shopping, visit the post office, or attend movies. My family and I periodically eat at restaurants or purchase food I
at the grocery store in Zion..Also while in Zion, my family and I occasionally l
visit the Power House, a public education center, which is less than i block away
)
from Plant Zion.
1 10.
The safety of the food and water my family and I consume are continuously Exhibit
/
,page 3__ of.fL l
threatened by Plant Zion. My family and I purchase produce grown on local farms located within 10 miles of Plant Zion. The water my family and I drink is from Lake Michigan. Plant Zion empties into Lake Michigan. Even the air my family and I breath is threatened by the possible chance of a Gre presenting the potential Ibr release of particles into the atmosphere from the plant.
11.
My family and I are year-round residents of Kenosha, Wisconsin. All my family activities, business activities, and daily activities are completed within 50 miles of Plant Zion.
12.
My experience at Plant Zion began in December 1989. My last day on which I worked at Plant Zion was April 15,1998. and the last day on which I conducted business on site at Plant Zion was May 29.1998. From December 1989 to August 1995, I held the position of Mechanical Maintenance Supervisor, supervising up to 50 in house mechanical and contract personnel. I was directly responsible for l
personnel safety in the Mechanical Maintenance Department, and I ensured that Nuclear Regulatory Commission and OSH A safety rules and regulations were i
followed by those under my supervision. As a supervisor I also correted I
l maintenance de6ciencies. From August 1995 to April 1998,I was a Mechanical Maintenance Work Analyst. At this position, I identified and analyzed corrective and preventive maintenance on all equipment for many departments at Plant Zion, and I developed and wrote maintenance procedures in the field of Heating, Ventilation, and Air Conditioning (HVAC). I was also the Lead Work Analyst to j
/
,page Y of 8 Exhibit
l maintain the Reactor Coolant Pumps.
During my tenure at Plant Zion, I anticipated in numerous Commonwealth 13.
P Edison training programs to ensure that I was performing work in the safest 1
manner possible. While employed by Commonwealth Edison,I received numerous certifications and took part in the following training sessions: Nuclear General Employee Training (NGET), First Line Supervisor (FLS), and Human Performance Evaluation System (IIPES). I also camed EPA cenification in
{
handling refrigerants.
14.
Before working at Plant Zion, I was employed by Cosmopolitan Reality in Chicago, Illinois from September 1985 to November 1989. I held the position of Assistant Engineer for Commercial and Residential Building Maintenance, and I directed corrective and preventive maintenance on all facility equipment and structures.
15.
From 1984 to 1985, I worked in the Research and Development Division at Y.K.K. Zipper in Northbrook, Illinois where I designed, modified, and set-up l
l clothing manufacturing industry equipment. In addition to these responsibilities,1 1
trained personnel in the safe operation of high speed machinery. I also identified j
and modified any safety problems with the equipment and wrote safety guidelines for machinery operations.
I Exhibit
/
,page 6-of E I
i
16.
From February 1976 to August 1984, I was enlisted in the United States Navy. I enlisted as an Aviation Structural Mechanic / Hydraulics and trained to become an Aviation Structural Mechanic /llydraulics Specialist. Throughout my Naval career I became certified in the pctformance of critical maintenance processes on military-and civilian-type aircraft. I held qualifications within various fields of aviation maintenance, and I was knowledgeable of the rules and regulations for the military specifications (mil-spec) of aviation. From 1980 to 1982, I was the i
Safety Petty Officer for Squadron H-C9, NAS North Island. At the end of my Naval career, I held the position of Supervisor 2nd Class in the division of the Hydraulics Shop, Aviation intennediate Maintenance Depot ( A.I.M.D.) at NAS North Island.
17.
From 1986 to 1988, I enrolled in numerous schools to gain qualifications in HVAC. For example I enrolled in the National Association of Power Engineers School in Elk Grove Village, Illinois where I concentrated on Basic and Advanced Steam Plant Operations, Electricity and Refrigeration, and Water Treatment. In 1988, I attended the Coyne American Institute in Chicago, Illinois where I earned llVAC certification and became qualified to troubleshcat and repair HVAC systems.
l 18.
Given my experience of working at Plant Zion for 9 years and my first-hand knowledge of Plant Zion operations, I am a direct witness of health and safety concerns which will impact the local environment as well as the health and safety Exhibit
/
,page b of F l
i
i l
of myself, my wife and children, employees at Plant Zion, and the community.
19.
I have specific concerns about the injuries that could result to my family and the local communities that derive from the proposed amendment by Commonwealth Edison. Based upon my background in nuclear energy and my experience in working at Plant Zion for 9 years, I believe that the proposed amendment presents many threats to the public health and safety, harm to the environment, and harm to the health of employees at Plant Zion. These injuries would result from the structural and functional changes in Plant Zion proposed by the amendment or if any mishap should occur while Plant Zion is functioning under the proposed changes of the amendment.
20.
As my contentions will demonstrate, if Plant Zion functions under the proposed amendments. the potential injuries to me and my family, Plant Zion workers, the community, and the local environment include, but are not limited to: 1. LOCA (Lost of Coolant Accident),2. radiological concerns,3. unsafe levels of radiation for the employees at the plant and the general public, 4. undetectable radiation contamination by employees, 5. contamination of the local community and the environment,6. increase risk of accident at Plant Zion, and 7. contamination of Lake Michigan. After reading the affidavit of Randy Robarge, other injuries j
appear emminent which include the increased potential of failing to detect radiation in adequate time and the increase risk of the plant functioning unsafely and outside NRC regulations.
/
,page 7 of E Exhibit I
07/30/1998 20:26 000000000000 PAGE 15 21.
My family and I, the community, plant workers, and the local euvinriment will be directly affected by these potential injuries by the proposed amendment.
Working directly and indirectly with current and former employees of Plant Zion.
I am provided with additional televant materials concerning the adverse impact that the proposed amendments will have on the health and safety of myself, my wife and my children, plant workers, and the community. Individuals with whom I
I am working include, but are not limited to, Mr. Randy Robarge.
22.
I have fonned the Conunittee for Safety at Plant Zion (CSPZ) with Mr. Robarge to jointly work to ensure that the operation and decommissioning of Plant Zion t
does not tlucaten the health and safety of the public. As co-director of CSPZ,I I
am capabic ofobtaining access to relevant materials to ensure that the public welfate is protected in light of the Plant Zion decornmissioning. In addition, I am in the unique position to intervene because of this newly formed committee and my status as co-dhector.
THE AFFIANTSAYETH FURTHER NOT.
'7 - 3 D - @
EdwinD. Dienethal Date Exhibit
/,page Eoff C00g uyo)1 aAalS ***
DOSSV HH (INY dr t091Z t 6 t i t XYd i t :ZZ illi.L 86/0C/40
1 i
EXHIBIT 2 1
l l
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l I
I i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
T homas S. Moore, Chairman Dr. Jerry R. Kline Frederick J. Shon
)
In the Matter of
)
Docket Nos. 50-295/304-LA
)
COMMONWEALTH EDISON COMPANY
)
ASLBP No. 98-744-04-LA
)
(Zion Nuclear Power f'ation,
)
Units 1 and 2).
)
July 31,1998
)
)
AFFIDAVIT OF RANDY D. ROBARGE Under the pains and penalties of perjury, I, P andy D. Robarge, hereby affirm pursuant to 28 USC % 1746 that the following information is true and correct:
1.
' I own property, own a home, and reside year-round at the following address: 8800 Third Avenue, Pleasant Prairie, Wisconsin,53158.
2.
The driving distance bett - 7 my home and the gate of Plant Zion is 8.1 miles and it takes only 13 minutes and 22 seconds to drive from my home to Plant Zion l
under normal driving conditions.
3.
My wife lives with me at the above address. We have lived at this address for 8 to ExhM 2-
,page I ofb
9 years.
4.
In 1997, I filed a Whistleblower retaliation claim against Commonwealth Edison Co. under Q 211 of the Energy Reorganization Act (ERA), the outcome of which
- ended in a settlement agreement. Sg Robarge v. Commonwealth F2[ison Co.,98 ERA 2 (1997). Upon entering into this settlement in May 1998, I was required to return all documents provided to me by Commonwealth Edison Co. in discovery.
5.
As pad of my Department of Labor (DOL) case arising from my claim under Q 211 of the ERA, a hearing was held from May 18,1998 to May 22,1998. At the hearing, w Snesses gave swom testimony confirming willful violations and the breakdown of the Quality Assurance (QA) program. The hearing transcript and record are publically available from the DOL.
6.
As part of my DOL case, I conducted discovery and personally sat in on the depositions of a number of witnesses. During said depositions, witnesses confirmed the existence of"PIF wars" concerning the filing of Problem l
Identification Forms (PIF) by employees. PIFs are used to report nuclear safety 1
concerns at Plant Zion. ("PIF wars" is a colloquial expression at Plant Zion which, i
according to the expert testimony of Mr. Allen Mosbaugh, demonstrates a l
breakdown of the QA program. Mr. Mosbaugh's testimony is publically available 4
from the DOL. At the hearing of my case, many other witnesses also confirmed l
i 1
the "PIF wars" concept and the presence of a " chilling effect," an implication of i
"PIF wars" and other practices by management to deter the filing of PIFs, at Plant Exh2it 9
, paged of 0--
E -__ - _ __.
l c
l Zion.)
7.
During the discovery phase of my DOL case, witnesses were questioned on intentional violations. These witnesses admitted that supervisors at Plant Zion intentionally violated procedures and that it was widely known at Plant Zion that supervisors intentionally and willfully violated procedures. At the hearing, these witnesses and others confirmed the acts of willful violation of procedures, and confirmed that management was aware of said acts of willful violation of procedures. These witnesses and others at the hearing also identified other supervisors that were identified in depositions as individuals who committed wilful violations of procedures and safety regulations.
8.
During the discovery phase of my DOL case, I was required by Commonwealth Edison Co. to execute a protective order from disclosing in this or any other proceedings certain information which I believe is critical to public health and safety and the merits of Mr. Edwin Dienethat's petition for intervention. It is in the public interest that the restriction be lifted as it relates to any filings in this proceeding.
9.
I contend that it is a poter cial environmental hazard, threat to public health and safety and threat to the health of plant workers for Plant Zion to eliminate various i
shift positions of Radiation Protection Technician ("RPT") on site at the plant. A RPT is needed on around-the-clock (24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />) shifts to quickly assess and solve Exhibit 1
,page d._ of b
potential radiation problems. RPTs verify radiation dose rates and determine if persons working in radioactive areas may walk off the site without danger of contaminating other persons or areas. Without the presence of RPTs on around-the-clock shifts, contaminated personnel may dangerously spread radiation throughout the plant and surrounding area.
I 1
l I
10.
I contend that it is a potential environmental hazard, threat to public health and safety and threat to the health of plant workers for Plant Zion to eliminate the I
J l
position of Full Time Operator. The Full-Time Operator quickly assesses and deals l
with technical system problems that arise within the plant. Such a position needs to remain open full time to ensure safety of the plant, the public and environment.
I 1.
I contend that it is a potential environmental hazard, threat to public health and i
safety and threat to the health of plant workers for Plant Zion to eliminate some of the Radiation Protection Monitors on active systems. These monitors quantify the amount of radiation released into the area and quantify air quality radiation.evels.
The monitors need to be retained or replaced with updated monitors. The monitors or upgraded monitors also need to be maintained and serviced to assure quality detection in accordance with nuclear safety regulations and accepted safety standards. Without these monitors, improper levels of radiation may go undetected l
and radiation contamination may be released to the general public, plant workers, and the local environment, placing the health and safety of the community, plant workers, and their families in jeopardy.
Exhibit _ E
,pagej of b L _ ____ _ ________________
W I
l 12.
My experience at Plant Zion spans from March 1972 to June 1998. From L
December 1989 to June 1998, I was a Radiation Protection Supervisor. That position included: supervising station and contractor radiation protection technicians; developing and implementing technician procedures; contamination l
control; shielding installation to reduce radiation exposure, regulating radiation dose levels for employees; overviewing station activities in the field; developing and maintaining radiation protection instruments; assisting with the health physics technical groups; and ensuring required surveillance and outage work preparation were completed.
13.
From August 1989 to December 1989 and September 1988 to November 1988,I was the Health Physics Supervisor at Plant Zion. Prior to that, I was a Senior Health Physics Technician for Baltimore Gas & Electric's Calvert Cliffs Nuclear Station from March 1989 to May 1989; for Consumers Power Company's Palisades Nuclear Station from December 1987 to January 1988 and October 1987 to November 1987; for Commonwealth Edison Company's Braidwood Nuclear Station from November 1987 to December 1987; for Commonwealth Edison Company's Plant Zion from August 1986 to February 1987, July 1985 to January 1986, April 1985 to July 1985, and June 1984 to October 1984; for Wisconsin l
Public Service Company's Kewaunee Nuclear Station from February 1986 to April 1986; and for Florida Power & Light Company's Turkey Point Nuclear Station from March 1984 to June 1984. I was also a Junior Health Physics 1
Exhibit S
,pa0el ofle__
7 07/00/A99C 23:20 000000000000 pag 07 Technician at Plaut Zion fiom August 19X3 to November 1983 and Febiuary 1982 to May 1983. Additionally,I was a Health Physics Liaison to Conunonwealth Edison Company s LaSalle Nuclear Station from February 1988 to August 1988, and I was a Health Physics Advisor at Conunonwealth Edison Company's Byron Nuclear Station from July 1985 to August 1985.
14.
I was a Site Coordinator at Commonwealth Edison Company's Byron Nuclear Station from December 1988 to March 1989; at Commonwealth Edison Company's Plant Zion from November 1988 to December 1988; at Florida Power
& Light Company's Turkey Point Nucleai Station trom February 1987 to October 1987; and at Commonwen!th Edison Company's Dresden Nuclear Station from Oc'ober 1984 to March 1985 15.
I was also an Operating Engineer with a pnvate company in Illinois from September 1973 to January 1982. Prior to that,I was an X-Ray Technician at Plant Zion from March 1972 to August 1971 THE AFFLANT SAYETH FURTHERNOT.
l wd Wc4 hSA*V
,y Date Randy D. Robarge Exhibit M
,pege _Jc of G E00 @)
uyo)l u.taas +++
30ssy Hg og,gg-t0912tSt i t 0:1 Ot :EZ.Ill.L s'6 / 0E /10
l EXHIBIT 3 l
l
l NOTICES OF VIOLATION (NOV) AND ENFORCEMENT ACTIONS (EA)
RESULTING FROM QUALITY ASSURANCE BREAKDOWN
{
l.
NOV 295(304)/95006-016, violation of Technical Specification (TS) 6.2 2.
NOV 295(304)/96017-04, violation of 10CFR50 Appendix B, Criterion XVI 3.
NOV 295(304)/96017-03, violation of TS 3.15.2 c l
4.
EA 95-283, LEVEL 111 violation, $50,000 CIVIL PENALTY
{
5.
NOV 295(304)/96017-01 violation of TS 6.2.1 a 6.
NOV 295(304)/96014-03, violation of TS 3.15 2 c 1
l 7.
NOV 295(304)/96014-02, violation of TS 6 2.1.a 8.
NOV 295(104)/96017-03. violation TS 315 2 c
(
0 NOV 295(304)/95014-1. siolation of TS 4 4.2 10 NOV 295(304)/95014-11. violation of 415 I b 3 11.
NOV 295(304)/95014-111, violation of TS 4 3 I b 4 a 6 e
12 NOV 205(304)/94014-a. siolation of TS 314 j
l 13 NOV 295(304)!94014-c. violation of TS 410 i a 6 14.
NOV 295(304)/94019-04, violation of TS 3 9 3a 15.
NOV 295(304)/94020-1, violation of 10CFR50.59(2)(b)(I) and UFSAR #
6.3.2 2 5 Table 6.3-11 16 NOV 295(304)/93020-01 alb. violation of TS 6.2.1 and 315.1 17 NOV 295(304)/95016-01. violation of TS 4.10.1 a.2 18.
NOV 295(304)/94021-08a, violation of TS 6.1.15 19.
NOV 295(304)/94021-05 20.
NOV 295(304)/96008-09, violation of TS 6.2 2 a 1
21.
NOV 295(304)/96006-01, violation of TS 3.0.4 Exhibit 3
,page /
Of 3
i 22.
NOV 295(304)/97002-10, violation of TS 6.2.2 b 23.
NOV 295(304)/96017-01, violation of TS 6.2.1.a 24.
NOV 295(304)/96016 03, violation of TS 3.1.3.c 25.
NOV 295(304)/96016-04, violation of TS 3.14 26 NOV 295(304)/96005-03, violation of TS 3.0.4
{
27.
NOV 295(304)/95018-04, violation of TS 6 2 28.
NOV 295(304)/95014-1, violation of TS 4 4 2 29 NOV 295(304)/95008-02 b.e 30 NOV 295(304)/95008-03. violation of TS 3141 a 31 NOV 295(304)'94021-08a. dolation of TS 61 15,10CFR50 Appendix B.
Criterion XVI l
32 NOV 295(304)/94020-01. violation of 10CFR50 59(2)(b)(1) 33 NOV 295(304)/94019 04. violation of TS 3 9 3a 34 NOV 295(304)/94014c, violation of TS 410 l a 6 35 NOV 295(304)/92023 36.
NOV 295(304)/93020-0l a, b, violation of TS 6 2.1 37.
NOV 295(304)/97020-01, violation of TS 6.21 38 NOV 295(304)/97020-03,04, violztion of TS 6 2.1 39.
NOV 295(304)/97020-05, violation of TS 314 40.
NOV 295(304)/97003-01, violation of TS 313.2.a.1 41.
NOV 295(304)/97013, violation of TS 6.2.1 i 42.
NOV 295(304)/97013-02, violation of TS 6.2.1.i l
43.
NOV 295(304)/94010-1.a, violation of TS 3.7.2.a and 3.7.2.e. CIVIL PENALTY Exhibit 3
,page 1 Of 3
ASSESSED 44 NOV 295(304)/94002-01, violation of 10CFR50 Appendix B 45.
NOV 295(304)/97009 01, violation of TS 6.2.2.a 46.
NOV 295(304)/97008-03, violation of 10CFR50.54(T) 47.
NOV 295(304)/97012-01, violation of TS 6 2.1 a 48.
NOV 295(304)/97020-05, violat. ion of TS 314 49 NOV 295(304)/97019-02, violation of TS 6.2.1.a 50 NOV 295(304)/97018-05, violation of 10CFR50 Appendix B, Criterion XV 51 NOV 295(304)/96020 03, violation of TS 6 2.1.a 52 NOV 295(304)/97002-10. siolation of TS 6 2 2 b 53 NOV 295(304)/94014-b. violation of 10CFR50 73(a)(2)(1)(b) l Exhibit 3
,page 1 0f 1
l
)
i f
EXHIBIT 4
{
l f
t
______________a
NOTICES OF VIOLATION (NOV) AND ENFORCEMENT ACTIONS (EA)
RESULTING FROM FAILURE TO FOLLOW PROCEDURES 1.
NOV 295(304)/96005-03, violation of Technical Specification (TS) 3.0.4 because TS 3.7.2 was not met 2.
NOV 295(304)/96021-05. 06, violation of TS 6.2 2.a 3.
NOV 295(304)/96008-09, violation of TS 6 2.2 a 4
NOV 295(304)/95023-09. violation of 10CFR50 5.
NOV 295(304)/95014-1, violation of TS 4 4 2 6
NOV 295(304)/94008-01, WILLFUL violation of TS 6 2 2.a 7
NOV investigation Report 3 92-008R. violation of TS 6 2 2 a 8.
EA 95-283. LEVEL lil violation. 550.000 CIVIL PENALTY 9
NOV 295(304)/95016-04 violation of TS 6 2.2 10 NOV 295(304)930141 a b, LEVEL 111 VIOLATION. 550.000 CIVIL PENALTY. siolation of 10CFR50 59, LTSAR s 910 2 II NOV 295(304)/97002-07. siolation of 10CFR50 Appendis, Criterion B 12 NOV 295(304)/97002-10 siolation of TS 6 2.2 b 13 NOV 295(304)/96006-04, violation of TS 6.2 14.
NOV 295(304)/96020-03, violation of TS 6 21 a 15 NOV 295(304)/96016-05 a.b, violt' ion of TS 6 2 6 a l
16.
NOV 295(304)/96014-03. violation of TS 3.15.2 c 17.
NOV 295(304)/96006-10, violation of TS 6.2.2 b.2 18.
NOV 295(304)/96005-03, violation of TS 3 0 4 19.
NOV 295(304)/95016-04, violation of TS 6 2.2 20.
NOV 295(304)/95014-1, violation of TS 4.4.2 1
Exhibit
,page /
of
21.
NOV 295(304)/95008-02a, siolation of TS 6.2 22.
NOV 295(304)/95006-la, violation of TS 6.2 23.
NOV 295(304)/95003-Ola, violation of TS 6.2 24.
NOV 295(304)/97020-01, violation of TS 6.21 25 NOV 295(304)/97020-03,04, violation of TS 6.21 26 NOV 295(304)/97020-05, violation of TS 3.14 27.
NOV 295(304)/97019-04, violation of TS 6.2.1.a l
I Exhibit N
,page 1 1
Of i
__-__________-______-__A
EXHIBIT 5 I
l l
STATE OF ILLINOIS
)
(')[,hhkf[//-
' ' ' ~ ^
)
SS:
COUNTY OF L A K E
)
BEFORE THE US DEPARTMENT OF LABOR OFFICE OF THE ADMINISTRATIVE LAW JUDGES RANDY ROBARGE,
)
)
Plaintiff,
)
)
vs.
)
98 ER 2
)
COMMONWEALTH EDISON,
)
)
Defendant.
)
)
The deposition of RODNEY BAUMAN, called by the Plaintiff, for examination, pursuant to notice and agreement, and pursuant to the provisions of.the Illinois Code of Civil Procedure and the Rules of the Supreme. Court pertaining to the taking of i
depositions for the purpose of discovery, taken before Annamarie Block, CSR, a Notary Public within and for the County of Lake and State of Illinois, at Commonwealth Edison Powerhouse, Shiloh Road, Illinois, on the 17th day of December, 1997, A.D.,
at the hour of 9:00 a.m.
L& L REPORTING SERVICE
'l WAUKEGAN, ILLINOIS S
,page/
of (847) 623-7580 Exhibh
2 1
APPEARANCES 2
KOHN, KOHN & COLAPINTO, LTD.
3233 P Street, Northwest 3
Washington, DC 20007-2756 BY:
Mr. Stephen M.
- Kohn, 4
appeared on behalf of Plaintiff; 5
SIDI.EY & AUSTIN 6
One First National Plaza Chicago, Illinois 60603 7
BY:
Mr. David Goldberg, 8
apptured on behalf of Defendant.
9 10 DEPOSITION OF RODNEY BAUMAN 11 EXAMINATION PAGES 12 By Mr. Kohn 3 - 38 13 14 l
l 15 16 17 18 19 20 21 22 l
l 23 24 L & L REPORTING SERVICE WAUKEGAN, ILLINOIS rj
,page 7_ of Cf Exhibh (847) 623-7580 t
)
3 1
(Witness sworn.)
2 RODNEY BAUMAN,
?
the deponent herein, being first duly sworn, deposeth 4
and saith as follows:
)
5 E XAMINATI ON 6
BY MR. KOHN:
7 Q
Would you please state your name and 8
address for the record.
9 A
Rodney Bauman, 7954 46th Avenue, Kenosha, 10 Wisconsin.
i 11 Q
My name is Stephen Kohn.
I'm the attorney 12 for Mr. Robarge.
Thank you for coming today.
13 Are you aware that this is a proceeding under the 14 Energy Reorganization Act?
15 A
No.
I'm not sure what that is.
proceeding under the laws that 16 Q
It*s a did anyone i
17 govern atomic energy and those laws 18 tell you that those laws protect any witness to any 19 such proceedings from any form of harassment or 20 retaliation for providing testimony?
21 A
No.
1 22 Q
Is there anything that would prevent you I
23 from telling the complete truth today?
24 A
No.
L & L REPORTING SERVICE l
WAUKEGAN, ILLINOIS I
gen 5
,page 3 e 9 l
(847) 623-7580
4 21 Q
And how long have you worked at 22 Commonwealth Edison?
t 23 A
Just under six years.
24 Q
In terms of being a health physicist, do li L & L REPORTING SERVICE L
C WAUKEGAN, ILLINOIS
,page ) -Of
/
(847) 623-758o Exhibit
16 l
l 12 Q
Have you ever heard of a concept of PIF 13 wars?
14 A
Yes.
15 Q
To you what does that mean?
16 A
It means if somebody PIF's our department, 17 we PIF them back.
If we PIF somebody else, they PIF 18 us back to defend; because a PIF, by the nature of 19 it, kind of sounds like blame is being set upon a 20 certain party, so some people feel they have to 21 defend themselves by initiating a PIT themselves on
)
i 22 the person who PIFF'd them just because of the nature l
23 of the first assigning blame.
24 Q
Can a PIF result in a person being l
L& L REPORTING SERVICE l
5 Cl WAUKEGAN, ILLINOIS Exhibit b
,page Of-(847) 623-758o
29 I
l 9
Q Did you ever -- okay.
Have vou ever heard 10 of an employee named M 11 A
Yes.
12 Q
And does he have a nicxnames 13 A
Yes.
14 0
What do people call him?
15 A
16 Q
Does he object to that name?
17 1.
No.
18 Q
And just out of curiosity, at work do 19 people generally call him lllllggb or generally call 20 him -4EEEEbt 21 A
22 Q
And did he have a reputation concerning 23 adherence to procedures?
l 24 MR. GOLDBERG Objection; calls for L & L REPORTING SERVICE C
(847) 623-7580 Exhibit _
,page
30 1
speculation.
To the extent you can answer the
(*
2 question, you may.
l 3
BY THE WITNESS:
4 A
Yes, he has a reputation for generally l-5 disregarding procedures.
i I
i L & L REPORTING SERVICE WAUKEGAN, ILLINOIS (847) 623-7580 Exhibit
,page 9
{
0
l I
37 j 1
A It was a Sunday when the Packers were 2
playing the Bears.
That's the only one I know of.
i 3
0 Do you know who won the game, do you 4
remember?
i 5
MR. GOLDBERG:
Objection; irrelevant.
6 BY THE WITNESS:
7 A
I don't recall.
8 BY MR. KOHN:
9 Q
Do you remember what season that would have 10 been?
Was that a year that either the Packers or 11 Bears -- I'm just trying to get a time.
12 A
The last season.
The season in which the i
13 Packers won the Super Bowl.
Strike that.
14 Q
Okay.
Do you remember have you ever 15 Now, are aware that are there procedures that you are familiar with 16 17 for dealing with radiation protection issues?
18 A
Yes.
19 Q
In 1996 how would you assess the state of 20 those procedures?
21 MR. GOLDBERG:
Objection; vague, ambiguous.
22 MR. KOHN:
I'll break it up.
23 3E MR. KOHN:
24 Q
Were some of the procedures out of date?
L& L REPORTING SERVICE g
,page E~ of 9l l
i WAUKEGAN, ILLINOISExhibh (847) 623-7580
38 i
1 A
Yes.
2 MR. GOLDBERG:
Objection to the extent it I
3 calls for a legal conclusion.
4 BY MR. KOHN:
5 Q
Were some of the procedures difficult to 6
follow?
7 A
Yes.
did some of the procedures 8
0 And were 9
reference you to instrumentation which no longer 10 existed on site?
11 A
Yes.
12 Q
What are postings?
13 A
Postings are a requirement of regulation to 14 inform the workers of radiological conditions.
15 Q
In 1996 what was your assessment of the 16 status of the postings of the plant?
17 A
Our postings in 1996 were substandard.
18 Q
And what about the radiation monitors in 19 the station in 1996, what was your assessment of 20 those?
21 A
Also substandard.
22 MR. KOHN:
Nothing further.
23 MR. GOLDBERG:
Nothing.
f
)
AND FURTHER DEPONENT SAITH NOT 24 L& L REPORTING SERVICE gg;g h
__'page Of WAUKEGAN, ILLINOIS (847) 623-7580
1 i
I i
l t
EXHIBIT 6 l
er =.? %
1e STATE Of ILLINOIS
)
dLg,,%{
)
SS:
COUNTY OF L A K E
)
BEFORE THE UNITbD STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES
}
RANDY D.
- ROBARGE,
)
)
Complainant,
)
)
vs.
)
Case No. 98-ERA-2
)
COMMONWEALTH EDISON,
)
)
Respondent.
)
)
The deposition of BRENT ROBINSON called by the complainant, Randy D. Robarge, for examination, pursuant to notice, and pursuant to the provisions of the Illinois Code of Civil Procedure and the Rules of the Supreme Court pertaining to the taking of depositions for the purpose of discovery, taken before Debra Lynn Schultz, CSR, a Notary Public within and for the County o,f Lake and State of Illinois, at 9 North i
County Street, Waukegan, Illinois, on the 16th day I
i of December, 1997, A.D.,
at the hour of 5:00 o' clock p.m.
i I
L& L REPORTING SERVICE, INC.
(847) 623-7580 gjg
[g
,page Of
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17 l
l 1
A.
I believe so.
2 Q.
Have you ever heard of an employee named M
4 A.
Yes.
5 Q.
And does he have a nickname at work?
6 A.
Yes.
7 Q.
And what is that nickname?
8 A.
9 Q.
Was there a time when he was a supervisor 10 in the radiation protection department?
11 A.
Yes.
12 Q.
About when was that?
13 A.
I don't really recall.
14 Q.
Was it when you were the lead supervisor?
15 A.
No.
16 He was not then?
17 A.
No.
18 Q.
Did he work in that department when you i
19 were the lead?
20 A.
Yes.
l 21 Q.
What did he do?
22 A.
He was a decon supervisor, which is a 23 different position.
24 Q.
Did Mr. M have any type of i
L& L REPORTING SERVICE, INC.
(847) 623-7580 Exhibit b
,pagelof N 610g utgoy ara 15 ***
30SSV HH G.W dr t 091 Z t o t i t YYd S t : !I illLL 96/0C/40
18 1
reputation concerning adherence to procedures at 1
i 2
the plant?
3 MR. GOLDBERG:
That you are aware of.
4 BY MR. KOHN:
5 Q.
Yeah'.
l 6
A.
Yes.
7 Q.
And what was that reputation?
8 A.
He didn't reference procedures a lot, and 9
that would be what I would say.
10 Q.
And did that cause any problems between 11 him and management, to the best of your knowledge?
12 A.
I don't recall any issues that came up 13 that were significant that I can recall.
la l
L& L REPORTING SERVICE, INC.
(847) 623-758o Edibit 6
,page3 of OE0 g ut{og aae3S ***
DOSSV HH G.W JP t09f Et6 tit YY3 St:l! GILL 86/0C/40
77 12 BY MR. KOHN:
13 Q.
Have you ever heard of a concept of PIF 14 wars?
I 15 A.
Yes.
15 O.
What does that mean?
17 A.
Some people take PIFs uafensively.
A PIF s -- and I
18 is supposed to bring out some problem thata 19 it sometimes has been used, in some cases heavy 20 handedly, if you didn't do something I wanted you 21
.to do, I will write a PIF on you, and that can --
22 and that person says keep yourself clecn, or I will 23 write a PIP on you.
So it ends up people 24 exchanging-PIFs.
g
,page g of g L& L REPORTING SERVICE, INC.
(847) 623-7580 Exhibit j
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IN7E%=.-.
1 IdMt
-~.
2 U.S.
DEPARTMENT OF LABOR 3
OFFICE OF THE MINISTRATIVE LAW JUDGES 4
RANDY ROBARGE,
)
)
5
)
6 Plaintiff,
)
))No. 98 ERA 2 7
vs.
)
8 C.O M M O N W E A L T H EDISON,
)
i
)
9 Defendant.
)
10 11 12 The discovery deposition of RONALD 13 SCHUSTER, called by the Plaintiff for examination, 14 pursuant to notice, and pursuant to the provisions 15 of the Illinois Code of Civil Procedure and the i
l 16 Rules of the Supreme Court pertaining to the taking 17 of depositions for the purpose of discovery, taken Notary Public 18 before Jennifer E.
Baker, CSR, a 19 within and for the County of Lake and State of 20 Illinois, at The Power House, 100 Shiloh Boulevard, 21 Zion,' Illinois, on the 18th day of December, 1997,
'22 A.D.,
at the hour of 9:00 a.m.
l J
23 24 g.
1 l
LEL REPORTING SERVICE, INC.,
9 NORTE COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580 Exhibit 1
,page I of I" 800g uyo)l ara 3s **.
30gsy 33 og,gg-t091Z t6t i t \\Tcl Ot !!! lll.L 96<0C 10 t
7 4
1 2
3 4
e 5
6 7
8 BY MR. KOBN:
l 9
Q.
And have you heard of a term at the site 10 called PIF wars?
11 A.
Absolutely.
12 Q.
And what's your understanding of what 13 that term means at the Zion site?
'14 A.
That term, to me, means tit for tat.
15 Means one department writes on one department or a statement, and the other 16 making an allegation 17 department will answer back or write another PIF on 18 that department.
okay.
And can PIF 19 Q.
Did you ever think 20 wars happen inside of a department, two people, say j
v personality conflict?
b.
21 you have a b
22 A.
Yes.
O v 23 Q.
Has the site management taken any steps i
u
'7 I
24 to address the personality issues that might or the l4 17 b
LEL REPORTING SERVICE,. INC.,
9 NORTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580
.te C"
L
- - _ _. ~, _,,,,,,,
I personality conflicts that might give rise to PIF 2
wars?
Have they counseled people about it or 3
3 things like that, do you know?
4 A.
Yes, I do.
5 Q.
Okay.
How has that happened or when?
6 A.
My own personal experience would be to 7
ask the individual is this really what you want to 8
say, is this the facts, or are you putting emotions 9
down on the PIF.
As managers, we*ve been 10 instructed to ensure that facts only make it to the 11 PIF process.
Don't be emotional about what you're 12 writing.
13 14 15 i i
16 17 18 I
19 20 1
21 22 23 24 18 L&L REPORTING SERVICE, INC.,
9 NORTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580
,pagel of $.
Exhibit 7 l
l t00g utiox aAa' S ***
30SSY HH UNV dl*
t091Zt6 tit T Y.i i t : l l.l}LI.
S5/0C/40 j
t l
I 2
3 4
5 6
7 8
9 BY MR.
KORN:
10 Q.
Uave you ever heard of an employee by the 11 name of 2
12 A.
Absolutely.
13 Q.
And what is his in this case name?
14 A.
15 Q.
And does he object to being called N 16 17 A.
Never.
Mr. M
-- were you aware 18 Q.
And what was 19 that he had a reputation concerning adherence to 20 procedure?
21 A.
Yes.
22 Q.
And what was that reputation?
23 MR. GOLDBERG:
You understand the 24 question?
23 L&L REPORTING SERVICE, INC.,
9 NORTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580 Exhibit 1 d
of O-
,page 900g uyo)g aAa1S ***
DOSSY 88 UNY dI*
9091Zt6 tit D3 Zt:ll IK1 96'00-40
l I
l l
I 1
THE WITNESS:
Can you clarify it?
f 2
MR. KOHN:
Sure.
)
I 3
BY MR. KOHN:
4 Q.
Did any.ane -- did you ever learn either
)
{
$ au have an opportunity to learn j
5 through -- did 6
through either direct observation or through 7
hearsay, just people talking, about @ '
i I
8 operating modus operandi procedures and adherence I
9 to procedures?
10 MR. GOLDBERG:
Objection.
The question 11 is vague and ambiguous.
12 BY THE WITNESS:
13 A.
Yes, I can say that I have physically j
14 witnessed operating outside of the i
15
'> o u n d s.
16 BY MR.
KOUN:
within 17 Q.
Okay.
And were others aware 18 the department aware that he would operate cutside 19 of bounds from time to time?
20 MR. GOLDBERG:
Objection.
Calls for 21 speculation.
22 BY HR. KOHN:
23 Q.
To the best of your knowledge?
24 MR. GOLDBERG:
To the best of your l
24 L&L REPORTING SERVICE, INC.,
9 NORTE COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580 Exhibit 7
,page i ofli j
100 g uyoll aAa35 ++*
30SSY HH GNY di' t09fEtSttt XYJ Ct:!l.lH1 95'Of'?"
l
1 knowledge.
2 BY THE WITNESS:
3 A.
To the best of my knowledge, yes.
4 BY MR. KOHN:
5
-0 And now to follow it up with that last 6
question, would it be fair to say that his 7
reputation among the supervisors was one of someone I
8 who did not strictly adhere to procedures?
9 MR. GOLDBERG:
Objection.
Calls for l
10 speculation.
11 BY THE WITNESS:
12 A.
Yes.
I 13 BY HR. KOBN:
14 15 4
16 17 l
18 19' 20 21 t
22 l
l l _.
23 I
24 25 9 NORTE COUNTY STREET L&L REPORTING SERVICE, INC.,
( 84 7 ) gg 7 5 8 01,pa90 $0-- Of b-WAUKEGAN, IL 60085
~ _ ~ ~ - - -~.
aa,aw. o m
l I
1 A.
Yes.
l 2
Q.
Tell me about your assessment of the i
3
. condition of those procedures in 1996.
4 MR. GOLDBERG:
Objection.
Vague and l
5 ambiguous.
The condition of the procedures?
l 6
Mr. Kohn, you mean physically how they were r
7 situated?
8 MR. KOHN:
No, I am talking about the 9
content.
10 MR. GOLDBERG:
He just testified that he 11-never looked at them in 1996, so how are you asking 12 him to assess the condition of them?
13 MR. KOHN:
K ll, let me just clarify l
14 logical that.
15 THE WITNESS:
Uh-huh.
16 BY MR. KOHN:
i l
17 Q.
In-1996, had you had an opportunity to l
18 review the ZAP or ZRP procedures which were 19 applicable to the Radiation Protection Department?
l 20 A.
Absolutely.
21 Q.
Okay.
And when you reviewed them, were 22 you able to form an opinion as to the condition?
23 I'm not talking about whether a page was torn.
I'm 24 talking about the content of those procedures.
l-29 l
L&L REPORTING SERVICE, INC.,
9 NORTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580 Exhibit 1,page 1 of _L 600g uyo)
DAals ++*
30SSY H8 GNY dr t 09 t Z t 6 t i t YY3 t t ; l l.1111 96/0C 10
t 1
A.
Yes.
}
2 Q.
Okay.
And what was your assessment as to 3
the content of those procedures?
4 MR. GOLDBERG:
Objection.
Vague and 5
ambiguous.
t 6
BY THE WITNESS:
I 7
A.
Some of the procedures were in a great 8
state of disrepair, needed much work.
Some were 9
middle of the road, gave pretty good guidance to 10 individuals and technicians.
And some were in 11 great shape.
12 BY MR. KOHN:
4 13 Q.
Okay.
Did some of the procedures 14 reference instruments that no longer existed 15 on-site?
16 A.
That is a true statement.
17 Q.
And were some of the procedures 1
18 confusing?
19 MR. GOLDBERG:
Objection.
Vague and 20 ambiguous.
Calls for speculation.
21 BY THE WITNESS:
22 A.
Yes.
l 23 BY MR. KOHN:
24 Q.
Now, what's the relationship between --
30 LEL REPORTING SERVICE, INC., 9 NORTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580
,page 8 of N Exhibit 1
OIOg uyo)l aralS ***
30SSV HH UNY di' t09IZt6 tit t Yd P P ; i I.IILL V6/0U 20 I
L l
l 1
if you*re to do a job, should you always check 2
both -- and you needed reference to a procedure, 3
would it be appropriate, should you always look at 4
the ZAP and the ZRP procedures, or would just be 5
going to one or the other sufficient?
6 A.
You need to clarify the question.
7 Q.
Okay.
What's the relationship between 8
the ZAP and the ZRP procedures?
9 A.
A ZAP is a Zion Administrative 10 Procedure.
It is all encompassing.
!t covers j
11 everybody here on-site.
Every Commonwealth Edison 12 employee, contractor, that works within the realm 13 of this station is held responsible for Zion 14 Administrative Procedures.
ZRPs are Zion Radiation 15 Protection Procedures, and those will affect and 16 should be adhered to by members of the Radiation 17 Protection Department here at Zion Station and
]
18 contractors that work for them.
l 19 Q.
Okay.
So as I understand your answer, 20 the ZAP, the Radiation Protection Department, as i
21 all other departments, would have to conform their l
22 work to those requirements?
23 MR. GOLDBERG:
Objection.
That's not a 24 question, Mr. Kohn.
Testimony speaks for itself.
31 i
L&L REPORTING SERVICE, INC.,
9 NORTH COUNTY STREET i
WAUKEGAN, IL 60085 (847) 623-7580 Exhibit 9 9 of f l
,page-
!!Og uyo)I BAa2S ***
30SSY HH UNY dl*
P0913t6 tit 1Yd St:ll.1111 96/0C/40
l 1
Mr. Schuster, you don't need to 2
respond to Mr. Kohn's testimony.
l 3
MR. KOHN:
Sure.
l 4
BY MR. KOHN:
5 Q.
Is that a correct assessment?
6 A.
Yes.
7 Q.
From time to time, would there be a 8
conflict bouween the two?
9 A.
Yes.
10 Q.
Now, the testimony you gave about some of 11 the -- you know -- some the probicme with the 12 procedures, was that true of both the ZRP and the j
13 ZAP Procedures or just mostly the ZRP?
14 A.
Need to clarity.
15 Q.
In other wordo, you tectified earlier
[
16 that there was a -- that some of the procedures t
did that 17 were in a state of disrepair.
Was that 18 apply to both ZAP and ZRP Procedures?
19 A.
Yes.
t I
20 Q.
Okay.
Now, in or about October of 1996, did you supervisor or assign an employee 21 did you study of radiation work permits and 22 to perform a 23 whether the RWPs which had been done or some of 24 them which had been done in 1996, how they matched 1
32 L&L REPORTING SERVICE, INC.,
9 NORTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580 Exhibit 1
,page10 of E ET0@
ugoy aAe25 ***
DOSSY HH Q.W dr t09tEt6 tit IV.i St:TI ;1EL 96/0C/10
1 up with the ZRP procedures?
2 A.
You need to clarify it.
i
-3 Q.
Okay.
You know what an RWP is, correct?
4 A.
Yes, I do.
It's a Radiation Work Permit.
5 Q.
And when an RWP is written, as I 6
understand it, it's supposed to conform to the 7
requirements and the procedures, the work as set 8
forth there?
9 MR. GOLDBERG:
Objection.
There's no 10 question yet.
I i
11 BY MR. KOHN:
12 Q.
Correct?
13 A.
That is a true statement.
14 Q.
And did there come a time in 1996 in 15 which an employee, not you but another employee, in 16 the department looked at, compared RWPs with the 17 procedural requirements in the ZRP?
18 A.
Yes.
19 Q.
Okay.
And who was that employce?
20 A.
I can't recollect that name at this 21 time.
and did that 22 Q.
Okay.
And when that was 23 employee inform you of the results of the study 24 that he made?
I 33 L&L REPORTING SERVICE, INC.,
9 N RTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580 Exhibit
,page () of mI' l
~
CIO g tntoy aAe25 ***
30SSV HH G.TY dr P091Zt6 tit IY3 St:II.1El 96/0C/40
- b
l 1
MR.
GOLDBERG:
Objection.
Calls for 2
speculation.
3 If you recall, Mr. Schuster.
4 THE WITNESS:
I need a break.
I 5
(Brief recess taken.)
6 BY MR. KOHN:
7 Q.
Okay.
So did there come a time in --
8 were you informed of the results of this comparison 9
between the RWPs and the ZRPs?
10 MR. GOLDBERG:
Objection.
The question 11 is vague and ambiguous.
12 BY THE WITNESS:
13 A.
- Yes, I have been made aware of neveral l'
14 discrepancies throughout time.
15 BY MR. KOUN:
16 Q.
And did you receive a written memo 17 confirming that?
18 MR. GOLDBERG:
Steve, I think that the 19 inherent difficulty, as Mr. Schuster's answer just l
20 indicated, is that you seem to be trying to discuss 21 a one-time incident, and Mr. Schuster is indicating 22 to you that he's known about similar related things 23 over a period of time, so I think he needs a little 24 time frame or some sort of better parameter defined 34 Exhibit i ci _L ra Bfhk L&L REPORTING SERVICE, INC.,
9 NORTB COUNTY WAUKEGAN, IL 60085 (847) 623-7580
1
'i n the question.
i 2
BY MR. KOHN:
l 3
Q.
Okay.
In terms of the several
~
period of time, what period of 4
discrepancies over a l
5 time are we talking about?
6 A.
Years.
7 Q.
Was your supervision aware of that?
l 8
A.
Absolutely.
l 9
l 10 l
l 11 l
12 13 14
?
15 i
I.
16 i
17 I
i i
18 19 20
{
1 21 22 23 24 Q.
Okay.
Now, when did you learn that over 35 1
L&L REPORTING SERVICE, INC.,
9 NORTH COUNTY STREET g
( 84 7 ) ERM9it 7 s e o f g jg gg [g WAUKEGAN, IL 60085 ve ev mi
- n. v,-
s,s n:s ns,,
,n, c=
ee **
ova m.
n-..
s. s., e
1 the years there may have been some of these 2
discrepancies between the RWPs and the ZRPs?
3 MR. GOLDBERG:
Objection.
Calls for 4
speculation, is vague and ambiguous.
Do you mean 5
every incident when he learned about various 6
BY MR. KOHN:
7 Q.
Would say this something you learned 8
about *hree or four years ago, or was it something 9
that was essentially discovered at a certain time?
10 MR. GOLDBERG:
Do you understand the 11 question?
12 THE WITNESS:
You need to clarify it, 13 more specific.
14 BY MR. KOHN:
15 Q.
Okay.
When did you first become aware 16 that there might be
- a. discrepancy between what was 17 on an RWP and what the procedures were in a ZRP?
18 A.
1982.
19 Q.
Okay.
And calling your attention to 20 1996, in'that year did you become aware was 21 there any review done of RWPs written in 19967 22 A.
Yes.
23 Q.
Okay.
And approximately when was that 24 review completed?
Exhibit 7
,page N c: b 36 LEL REPORTING SERVICE, INC.,
9 NORTH COUNTY STREET WAUKEGAN, IL 60005 (847) 623-7580
1 A.
I can't recall.
1 2
Q.
Okay.
And when that review of the '96 1
3 RWPs was done, do you remember what the finding 4
was?
5 MR. GOLDBERG:
Objection.
Vague and 6
ambiguous, lacks foundation.
7 Do you understand the question?
l 8
THE WITNESS:
Yes.
9 BY THE WITNESS:
10 A.
The fix or the corrective action was for 11 more specific instructions to be placed in the 12 special instructions of the RWP, guidance to the 13 worker.
14 BY MR. KOHN:
l 15 Q.
Was there any findings that approximately i
16 one-third of the RWPs there were discrepancies, 17 one-third of the RWPs comparing them to the ZRPs?
18 A.
I can't answer that.
19 Q.
And would it be safe to say that in 1996, 1
20 Walt Strodl was aware that RWPs, at least some of 21 them of the work performed in ;996, the work was 22,
inconsistent with the procedural requirements of 23 the ZRPs?
I l
24 MR. GOLDBERG:
Objection.
Vague and N-37 Exhibit 9
. pace of L&L REPORTING SERVICE, INC.,
9 WORTH COUNTY STREET WAUKEGAN, IL 60085 (847) 623-7580 l
l l
EXHIBIT 8
{
I
ORIGINA L UNITED STATES DEPARTMENT OF LABOR OFFICE OF ADMINISTRATIVE LAW JUDGES RANDY D.
- ROBARGE,
)
)
Plaintiff,
)
)
vs.
)
No. 98-ERA-2
)
COMMONWEALTH EDISON
)
- COMPANY,
)
)
Defendant.
)
)
l The deposition of JOHN C.
- MEYERS, called by the Plaintiff, for examination, pursuant to notice and pursuant to the Rules of the Supreme Court pertaining to the taking of depositions for the purpose of discovery, taken before Renee S.
Boubin, CSR, a Notary Public within and for the County of Lake and State of Illinois, at the Power House Museum, 100 Shiloh Boulevard, Zion, Illinois, on the 16th day of December, 1997, A.C.,
at the hour of 12:00 o' clock p.a..
Exhibit E
,page I of tZ0g uyo)I aAU3S **+
DOSS) HH UNY dl*
t0913t6t it 1Yd 09 :11.litt 96/Or/20
2 3
Q.
Tell me a little bit about his say 4
reputation.
What was 4
's reputation as a
5 supervisor?
6 A.
His reputation with who?
7 Q.
With the other supervisors.
g is a less tec.Lnically inclined 8
A.
9 supervisor.
10 11 12 13 14 15 16 was a 17 supervisor who might not have adhered to procedures.
I 18 He may have been considered a supervisor that looked 19 the other way, not necessarily held the workers, 20 technicians accountable to the standards that were 21 necessary for the position.
22 23 24 vn;=a ;
s.
Exhibit E
,page 1 Y
e of w.g..
u
. +. i.+ h e is 24 BE0g uyos paa3S ***
30SSV HM QNY dr t 09 t Z t 6 t i t XY3 1S : 11 iltLL B6/Or/LO
l l
l l
l 22 Q.
Did you ever -- have you ever heard of l
23 the phrase PIF wars, a phrase used down at 24 Commonwealth Edison?
Exhibit
,pagelof 66 6Z0g uyoy BA035 ***
30SSV HM QNY dr t0:lZt6 tit XYd ZSill flEL E6/0C/LO
1 A.
I have heard that phrase, yes.
2 Q.
What's your understanding of what that 3
means, what that refers to?
4 A.
I guess when you have a problem you 5
document the problem and can result in somebody else 6
documenting a problem back on your department and so 7
on.
8 Q.
Essentially that some empir yees -- in 9
other words, some employees may be upset if a PIF 10 was written about something they did, so they may 11 turn around and write a PIF on something whoever 12 wrote the PIF on them did.
Is that what we are kind 1
13 of talking about here?
14 A.
Yes.
That can be considered as a PIP 15 war, yes.
l 1
i
- [
Exhibit I
,page /
nf 67 OC0 g uyoy aAa3S ++*
30SSV HH UNY dr t 091Z t 6 t i t XYd ZS
- l l :litL 96/DC/40
_ _ _ _ _ _ _ _ _ _ _ _ _, - - - - - - - - - - - - ~ ' ' ' ' ~ ~ ~ ~ ~ ~ ~ ~ ~
EXHIBIT 9
]
r,.,r s.,
i I
1 UNITED STATES DEPARTMENT OF LABOR
)
2' J
3 OFFICE OF ADMINISTRATIVE LAW JUDGES s
4 5
In the Matter of:
6 7
' Randy D.
Robarge 8
9 Complainant 10 Case No.
98-ERA-2 11 vs.
12
.13 Commonwealth Edison 14 15 Respondent 16 17 Hearing held at 18 Kenosha County Center 19 Highway 45 & 50, Room A 20 Bristol, WI 53104 21 22 on Monday, May 18, 1998 23
~24 The hearing in the above-entitled matter commenced, 25 pursuant to notice, at 11:12 a.m.
26-27 28 BEFORE:
HONORASLE THOMAS F.
PHALEN, JR.
29 Administrative Law Judge 30 31 APPEARANCES:
32 33 On Behalf of the Complainant:
34 35 Michael Kohn, Esquire 36' Steven Kohn, Esquire &
37 David Colapinto, Esquire 38 3233 P Street, N.W.
39 Washington, DC 20007-2756 40 41 On Behalf of the Respondent:
42 43 David A. Goldberg, Esquire &
44 Richard F-,
O'Malley, Esquire 45 Sidley & Austin 46 One First National Plaza 47 Chicago, IL 60603 48 HEARING TRANSCRIPT 49 50 Reported by:
51 Brad Weirich 52 Court Reporter YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 York, PA 17401 I
Exhibit
,page of W I
Page 2
3
(
1 WITNESS DIRECT CROSS REDIRECT RECROSS 2
3 For the Complainant:
4 5
Ronald Schuster-80 153 158 6.
Allen Vedder 161 212 216 217 7
Gerald Ruffolo 219 250 255 8
9 For the Respondent:
10 (None) 11 12 EXHIBIT FOR IDENTIFICATION IN EVIDENCE 13 ALJ-1 through 4 7
7 14 1
JX-1 through 17 8
9 16 JX-18 through 65 15 15-17
[ Originally RX-1 through 21, 18 24-27, 36-41, 44-51, 54, 19 63-65, 68, 70-73]
20 21 CX-1 through 35 15 22 23 CX-20 246 248 24 25 CX-32 206 206 26 i
I YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717)* 854-0077 Exhibit -
.page b of_lf_
Tm,Tran ) 14 219 1
Spell your last name.
2 THE WITNESS:
3
- Ruffolo, R-u-f-f-o-1-o.
4 ADMINISTRATIVE LAW JUDGE:
5 Your witness, Mr. Kohn.
6 MR. STEVEN KORN:
7 Thank you, Your Honor.
8 9
GERALD RUFFOLO, 10 called as a
- witness, having first been duly
- sworn, 11 according to the law, testtf ed as follows:
i,
-..,e........,.,1 D
2.;. ~
.....c.
1 13 EY MR. STE*/EN KOHN:
14 O.
Mr. Ruffolo, are y:u married?
15 A.
Yes, I am.
16 O.
And do you have any children?
17 A.
Yes, : have one ch::d, age five, and my w:fe i
18 is eight and a
half months pregnant to within a coucle i
l 19 weeks.
20 Q.
And did you..
21 22 ADMINISTRATE ~VE LAW JUDGE:
23 You could be called at any moment.
24 THE WITNESS:
25 I hope not.
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 654-0077 9
, pag.
of d Exhibit l
Page 219
r,,r m a 220 i
{
1 ADMINISTRATIVE LAW JUDGE:
2 All right, go ahead.
Go ahead.
{
3 THE WITNESS:
4 I just called her ten minutes ago.
Everything's i
5 fine.
f 6
ADMINISTRATIVE LAW JUDGE:
f 7
Okay, go ahead, Mr. Kohn.
8 9
BY MR. STEVEN KOHN:
10 Q.
Can you briefly describe your employment in 11 the accmic energy industry prior :0 coming to Comed.
1 12 A.
Yes, before : came Comed I
worked sever contra::cr for a company called A:lan:ic Nuclear 13 years as a i
14 Services.
That was from.rebruary of 1934 until March of 15 1991.
t 16 Q.
Ar.d when did you start work a Comed?
17 A.
- started work a: C:mEd in March of 1991 as a l
18 statior laborer.
I was there as a statice laborer for my l
19 first ten months.at Comed.
20 Q.
And then did you get another position?
promoted to radiation protection l
21 A.
- Yes, I
was 22 technician, B level, in January of 1992.
23 Q.
And in 1994?
24 A.
I was promoted to A technician in January of 25 1994.
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 S
Exhibit
,page of Page 220
r..,r,.. m 221 1
Q.
Are you considered a member of management or 2
the union?
3 A.
I am union, bargaining union employee, or was 4
a bargaining union employee.
5 Q.
And do you know Mr. Randy Robarge?
6 A.
Yes, I do.
And would you consider him a friend?
7 Q.
8 A.
- Yes, at this time I consider him a friend.
9 When I first arrived at the plant, he was an acquaintance.
10 I was not close to Randy.
I knew hi.: through having played l
1 11 softball against him, but
- did not know him other than i
i that.
12 13 C.
And does the far:
that he's a
frier.d of a'1 n your testimcny :: day?
14 yours. would that impa:: at 15 A.
No, :'m here :: tell the truth based on wha; 16 the facts are as : see them.
17 C.
Did M.r.
Robar:e ever supervise you?
13 A
Yes, Randy was my direct supervisor from the 19 time I entered the department in January of 1992 until his 20 exit from the department.
21 Q.
And have you been supervised by the other radiation protection supervisors?
22 23 A.
Yes, I have.
I was supervised by all of them I entered 24 on basically an equal time basis from the moment j
25 the department.
i i
YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 York, PA 17401 Exhibit
,page of Page 221
\\
r.., r,y 3..
l 227 1
BY MR. STEVEN KOHN:
2 Q.
And
- again, based upon either comments that l
l 3
these supervisors said, other than Mr.
Randy Robarge, or 4
your direct observation of what they were doing with Toni 5
Meyers, did you ever form an opinion as to whether other 6
supervisors shared your concerns?
7 A.
Based on what they thought?
8 Q.
Yes.
l 1
9 A.
Yes, on one particular instance I completed a l
10 task and went out nd did another task that was previously l
l 11 assigned to Xs Meyers.
And the supervisor by the name cf 12 -
Jchn Meyers made the : mT.e nt :: Te he real;y thanked me and 1
13 appreciated me f;: taking care of that thing and :cid T.e 14 that he w;shed that T.; would 7et a werk ethic similar Oc 15 mine.
16 C
Have /cu ever heard of a.-
RP superz;scr by the 17 name of & $ '
18 A.
Yes, I have.
{
l l
19 Q.
Are you friends with him?
l l
i l
l 20 A.
Yes.
21 Q.
And did he have a nickname on site?
l 22 A.
Yes, ' N ' s n i :. k n a m e is "#b" 23 Q.
Did he have a reputation concerning adherence l
24 to procedures?
25 A.
d5HbE.' s reputation at Zion Nuclear Plant is f
l YORK STENOGRAPHIC SERVICES, INC.
l York, PA 17401 - (717) 854-0077 t
1
,page I
of Exhibit Page 227
Tmf ran 114 228 1
that he knows how to get things done quickly and he knows 2
how to do things to bypass procedure.
3 Q.
To bypass procedure?
4 A.
Yes.
5 Q.
And was
- this, based upon your observation, 6
well known to just about everyone on site?
7 A.
Yes, it's commonly known throughout the plant.
8 0
Did you ever witness him not following 9
procedures?
A.
Yes, :
did.
One particular instance wculd be 10 l f
11,
1.-volving the Unit 2 cavity during
-- excuse me, Uni: 1 t
i 12 avity during the last
.~n i :
1 outage.
'We were d: ng 13 routine sur/eys in the cavity area and the cac :y was 4
I 14 pcsted as d, u s t a
simola contaminated area.
And cur i
15 instructi ns were by procedure and from c:ner upper i
16 'i manacement in the de. car: ment were tha: if we found a thinc I
17 !
311ei a ":: part c'e.
that we were ::
e /alua e that area I
18 l
- be set ur as what is kn:wn as a red acne.
And that 19 would defin:tely slow work down.
And it was identified by 20 another rechnician 1 hat a hot particle was indeed found and 21 a follow-up survey also found a hot particle.
And<ggNp's 22 response to that was don't worry about it, there's no such 23 thing as hot particles.
24 Q.
And did you in fact create the red zone?
25 A.
No, we did not at that time.
It got created, YORK STENOGRAPHIC SERVICES, INC.
l York, PA 17401 - (717) 854-0077 7
Exhibit
,page of Page 228 l
r.,re.
229 1
I believe, on day shift the next day.
The following day I 2
was off.
I do recall when I came back that it was a red 3
zone.
4 Q.
How would you compare Mr. 6 ' adherence to l
5 procedures to Mr. Robarge's?
l 6
A.
There's really no comparison.
Randy adhered vigorously than 6 ever 7
to procedures much more 8
did.
1 9
Q.
And do you know if Mr. @ is still workino 10 on site?
l 11 A.
- les, he is.
He is, I
be l ;.e ve,
.cw an J
12 cpera:ing supervisor.
13 Q.
In addition tc Mr. :9Eplust, did ytu ever witr.ess l
l 14 a r;.
Other EP superviser knowingly
/iclate a rad waste
{
15 prccedure?
16 A.
Yes, I witnessed along the same lines ir, I i
- 7 relieve, the same c av i t;.
Mr.
- W, who :. s a first-19 line supervisor, basically do the same thing.
I discovered l
19 what I believed was a hot particle and I called out to M 2 20 at the rad office and told him this, that, " Hey, I've got a 21 hot particle down here in the that I found in the 22 cavity."
And he said, "No, you didn't."
I said, "What do 23 you mean?"
He goes, "You don't want to find a hot carticle l
24 down there; take care of it; just get rid of it."
l I
- +.
25
)
YORK STEN 0 GRAPHIC SERVICES, INC.
1 York, PA 17401 - (717) 854-0077 3
of _.1.
Exhibit
,page_
k.
Page 229
Tint Teen 3 e4 230 1
MR. GOLDBERG:
2 Your Honor, I ask that the hearsay be stricken from 3
this witness' testimony.
4 ADMINISTRATIVE LAW JUDGE:
5
- Well, let's find out if he took any action in 6
relation to
-- I'm more interested in the action 7
than the substance.
8 9
BY MR. STEVEN KOHN:
10 Q.
And what happened after you received that 11 instruction er those comments?
l l
12 A.
I fcllcwed directic.- cf the supervisor and got 13 rid of ::.
14 Q.
Dce s Mr. 4833P. s : 11 work on site?
I 15 A.
- Yes,
.e does.
He is also an operating i
I 16 superviscr.
f 17 C.
Ar.d dc fou :.cw a v. r. $ggpe?
f 18 A.
Yes, I do.
19 Q.
And what position did he hold in 1996?
20 A.
hp was and still is a
radiation 21 protection supervisor.
22 Q.
And he currently works on site?
23 A.
Yes, he does.
24 Q.
Did you ever have an interaction with Mr.
25 4$5 BBL in which you interpreted it as he was bypassing a l
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 j
1 O
of /$
Exhibit nan.n Page 230
r
,1,. i n 231 1
procedure?
2 A.
Yes, I recall a time when we still needed to 3
wear a thing called finger rings while.
4 5
ADMINISTRATIVE LAW JUDGE:
6 Finger rings?
7 THE WITNESS:
I 8
- Yes, the thermal luminescent dosimeter is the 9
thing that reads radioactivity, absorbs the 10 radioactivity and it gets accredited ::
your dese.
i 11 And we have a thing called a finger ring.
- goes 12,
-- or actuall a ::e r:n: if
- v. m _ w re i:
.cu I
13 were ::
cn your toe cr en ycu f;nger.
- measures 14 the amcun:
cf radiatice
- y:ur extremi :es.
A:
I i
15 tna: ::me we were doing a source calibra:icn e d on 16,
the bc ks in the pr:cedures was required that i
I 17 y:;.
wore finger r;ngs for th;s callera:::n.
We 18 began to do the calibration and I
no:: ed that i
19 myself plus another individual did net have finger 20 r _.;g s, which I stopped the job and I called 94bbp 21 Jggggg and I said,
" Listen, we're supposed to have 22 finger rings for this."
And he said, "Well, how 23 far are you into the calibration?".
- said, 24 MR. GOLDBERG:
25 Your
- Honor, same objection to the extent we're YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 nann !b nf Fvhibit Page 231
l 1
Tenyfran ) 14 I
l 232 l
1 getting other narrative with multiple layers of f
2 hearsay.
l 1
3 ADMINISTRATIVE LAW JUDGE:
What if anything pick it up.
He's got an 4
5 objection based upon what he said.
It's hearsay.
6 Did he do ar.ything in relation to it?
j
\\
)
7 MR. STEVEN KOHN:
I 8
Your
- Honor, because the person -- these comments I
9 are essentially an admission against interest by 10
.he company and a
management person for the 11 company.
I don't think that this contains any l
l I
12
'.e arsay under the definiticn of hearsay.
l 13 ACM:N STRAT:7E LAN JUDGE:
I 14 What's your resocnse?
l J
1
.i 15 MR. GOLDBERG:
I 16 Ob;ection j
17
- CMINISTRAT
- 75 :.AW 3.'DGE :
l 18
- Okay, go ahead with the testimony.
He's right.
19 Your testimony.
l 20 THE WITNESS:
l 21 Okay, his response was, "Well, how far are you into 22 the calibration?"
And I told him that we were not 23 quite halfway into it.
He
- said, "Well, you can 24 probably get that done, what in about another 15 25 minutes?"
And I said, " Yeah."
He goes, "Why don't YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077
_ _ _- l }
1%
r.
- r. 1.t.i i
iainuu
,payu vi Page 232
T.n,Traa 314 233 1
you just finish it.
Don't worry about the finger 2
rings."
3 4
BY MR'.
STEVEN KOHN:
5 Q.
And what did you do?
6 A.
I questioned him and I
said I
don't really 7
think that's the right way to do business.
He said, " Hey, t
B don't worry about it; it's not that big of a deal."
The 9
source that we were working with was not that high a pewer 10 of a source and finger rings are more needed, according to 11 him, for the higher power source.
And I said ckay and I 12 agreed :: f;nish the 3cb /er, shortly 13 C.
Cid Mr. Robarge ever give you instruction tc 14 viclate procedures?
15 A.
No.
16 Q.
Cal'_ing your attention 50 the 17 September / October 1996 time
- period, were you asked Oc 18 review radiation protection procedures to determine if 19 there had been violations concerning the radiation work 20 permits?
21 A.
Yes, I was.
In September, I believe it was 22 the second week of September, we had what was known as a 23 stand down'.
There were some critical errors being made f
24 within the plant.
We had just started an outage.
The then 25 site vice president, John Muller, declared that we would
\\
YORK STENOGRAPHIC SERVICES, INC.
)
York, PA 17401 - (717) 854-0077 ISbofJS[_
Exhibit
,page i
i l
Page 233 i
L____._______
)
r,1,. m i
234 1
have a stand down until all the work departments had shown l
2 him that they were ready to go back to work.
And I was 1
3 instructed at what would be the evening meeting, 6:00 in 4
the
- evening, that my job was to review RWPs and/or l
\\
5 procedures to make sure that things were correct.
1 6
Q.
And did you in fact conduct a review of the i
1 7
7 RWPs and procedures in or about September 1996?
8 A.
Yes, I did.
9 Q.
And what did you find?
10 A.
We had approximately :20 RWPs, radiation work 11 permits, on file for work at that time.
I went through 12,
each one.
And out of 30C
~ found appr:ximately 7; that i
needed corrections.
Scre were sirply minor 13 l had things :nat 14 typographical errors.
Two in particular were at tha: time 15 direct procedure violaticns.
16 Q.
And can you describe for the Court wha: the 17 direc: procedure /iciaticns were that y:u remember?
18 A.
Yes, we had one RW? that was for working in an 19 area known as the pump deck for an activity kncwn as sludge l
i 20 lancing.
This RWP allowed the worker to work within a dose l
21 rate field of up to 15,000 milligram.
In one of our ZRPs 22 at that time we had a blanket statement that sta:ed that 23 work in a dose rate field of greater than 3000 milligrams i
24 per hour had to be approved by the HPSS.
And nowhere on 25 that RWP was there any approval given.
It was just simply YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit 9 of/U
.Dage Page 234
r..,r.. > u 235 1
signed by a supervisor and an ALAR analyst.
2 Q.
And did that raise any safety concern to you?
1 1
3 A.
Yes, at that time Mr. Greg Kassner was the rad j
4 protection outage coordinator on our shift.
Greg Kassner 5
was the rad protection manager before Walt showed up.
I 6
brought to his attention the fact that this problem either the procedure 7
- existed, that it was something 8
needed to be changed or the RWP needed to be changed in 9
order for this work permit to be allowed to work on this.
10 Mr. Kassner noteu that in a log book that as I read it it i
11 said Jerry Ruffolo made a very keen observation regarding 12 this RWF.
The procedure states that it viclates -- that it 13 is a
/iolation and ycu cannot work in a dcse rate field of t
.1 14 greater than 3000 milligrams per hour without HPSS i
i I
15 a c.c r o v a '
16 Q.
And dc you know if anyone get disciplined for l
17 this rio'_ ation of procedure that you ident_fied?
l 18 A.
No, nobody got disciplined.
Nothing was ever 19 done at all either.
20 Q.
And although you were talking with Mr.
21 Kassner, was Mr. Strodl the manager of the department at 22 the time?
l 23 A.
Yes, he was.
24 Q.
And did this raise a health and safety issue l
l 25 with you?
l YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 C
(d jy i
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/
nf / 0 Cb,h:ha u
,gu e Page 23S l
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432 1
THE WITNESS:
2 My name is Russell Scott Satterfield.
I live at 3
3000 James Avenue, Winthrop Harbor, Illinois.
4 COURT REPORTER,:
5 Could you spell your last name, please?
6 THE WITNESS:
7 S,
as in Sam, A-T-T-E-R-F-I-E-L-D.
8 9
RUSSELL SATTERFIELD, 10 called as a
- witness, having first been duly
- sworn, 11 according to the law, testified as follows:
12 DIRECT EXAMINATION 13 BY riK. STEVEN KOHN:
14 Q.
Mr. Satterfield, are you currently employed?
15 A.
Yes, I am.
)
16 Q.
And where do you work?
17 A.
Commonwealth Edison.
18 Q.
At what location?
1 19 A.
Zion Station.
20 Q.
And how long have you worked there?
21 A.
Seven-and-a-half years.
22 Q.
And are you a management or a union employee?
23 A.
I am a bargaining unit employee.
24 Q.
And do you know Mr. Randy Robarge?
25 A.
Yes, I do.
I I
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 of.lf Exhibit
,page l
1 Page 172 l
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r.,r,.. i n 1
433 1
Q.
Would you consider him a friend?
2 A.
Yes.
3 Q.
Is the fact that he may be your friend -- does 4
that, in any way, interfere with your ability to tell the 5
truth today?
6 A.
No, it will not.
7 Q.
If I was to ask you a question which might be 8
harmful to Mr. Robarge, would you answer that truthfully?
9 A.
Yes.
10 Q.
And what department in Commonwealth Edison do 11-you work in?
12 A.
Radiation protection.
13 Q.
And how long have you worked in that 14 department?
15 A.
Approximately five-and-a-half years.
16 Q.
And did Mr. Robarge ever supervise you?
17 A.
Yes, he did.
18 Q.
My question for you, Mr.
Satterfield, is do 19 you file PIFs at work?
l 20 A.
I have, yes.
21 Q.
Will you now?
Do you -- is that something you 22 want to do?
23 A.
No.
24 Q.
Why don't you want to file PIFs?
25 A.
The process isn't very good.
YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 l
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\\
Gh bit _
__,pagg & gg g Page 173
1 Tigfria J..
i 434 1
Q.
And what is wrong with the process?
1 2
3 MR. GOLDBERG:
4 Objection, Your Honar.
It calls for speculation.
5 ADMINISTRATIVE LAW JUDGE:
6 Well, I think he can state his view as to why he is 7
not going to do it.
Go ahead.
8 THE WITNESS:
9 It doesn't quite work well because they never come let's say, I 10 back and interview me.
They -- I 11 write the PIF.
It would then go out and be the results be 12 completely resolved and just 13 given to me and I would read it and say, well, this 14 isn't correct.
i l
15 16 BY MR. STEVEN KOHN:
17 Q.
In terms of finger
- pointing, does that ever 18 happen or do you have that concern about a PIF?
19 20 MR. GOLDBERG:
21 Objection, Your Honor.
The time frame?
{
22 MR. STEVEN KOHN:
)
I 23 1996.
24 THE WITNESS:
25 I believe that was happening, yes.
YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 York, PA 17401 of Exhibn
. pace Page 174
T e ?mn 3 ;a 435 1
2 BY MR. STEVEN KOHN:
3 Q.
And did that raise an issue for you j
4 personally, in terms of your willingness to file PIFs'
\\
t 5
A.
Yes.
i l
6 Q.
What was that concern?
l 1
7 A.
That the process was meant to fix a problem, 8
not get a certain individual in trouble.
So at that point, 9
I would either just fix the problem myself in the field 10 with the person that was in question.
11 Q.
And why -- and how does finger pointing relate 12 to that?
I
-- if 13 A.
Some people would take that as 14 someone did something wrong, if I were to write the PIF on 15 the problem they did, they would take it personally.
16 Q.
Did you ever when is the last time you 17 filed a PIF?
18 A.
I don't recall.
It has been quite a while.
f 19 20 MR. STEVEN KOHN:
21 Nothing further.
l 22 ADMINISTRATIVE LAW JUDGE:
23 Do you have any cross?
24 MR. GOLDBERG:
i 25 One moment, Your Honor.
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 I
i l
Exhibht
,page /Fof i
Page 175 f
w ___ = __ -
l EXHIBIT 10 l
l l
3
r,r, 2 a 948 1
Yes, Your Honor, that's correct.
Thank you.
2 MR. MICHAEL KOHN:
3 Thank you, Your Honor.
4 ADMINISTRATIVE LAW JUDGE:
5 Call your witness, Mr. Kohn.
6 MR. MICHAEL KOHN:
7 Next witness we call is Allen L. Mosbaugh.
8 ADMINISTRATIVE LAW JUDG -
l I
9 Okay.
Sir, would you stand an6. raise your right 10 hand, sir?
11 12 (Witness sworni i
13 14 AEMINIST'AT~V-ann vuDGE:
R I
15 All right, sir, have a seat there.
When you're l
I 16 comfortable, state your full name and your address I
17 for the record.
I 18 THE WITNESS:
19 My name is Allen Lee Mosbaugh.
My address is 2692 20
- Boggs, B-o-g-g-s, Road, Amelia, A-m-e-1-i-3, Ohio 21 45102.
22 ADMINISTRATIVE LAW JUDGE:
23 And spell your last name, please.
1 24 THE WITNESS:
1 25 M-o-s-b-a-u-g-h.
First name is A-1-1-e-n.
J l
1 YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 York, PA 17401 EXH181T 10 1
l Pace 51
l l
TmyTraa 314 949 1
ADMINISTRATIVE LAW JUDGE:
All right, sir.
Your witness, Mr. Kohn.
2 3
4 ALLEN LEE MOSBAUGH, t
5 called as a
- witness, having first been duly
- sworn, I
l 6
according to the law, testified as follows:
7 DIRECT EXAMINATION 8
BY MR. MICRAEL KOHN:
9 0
Can you briefly describe your formal 10 educational background?
l 11 A.
After high
- school, enrolled in ne 12 engineering program at the University Of Cincinnatt.
was 13 in the Department of Chemical and Nuclear Engineering.
I 14 obtained
.y bachelor's in engineering majoring in chemical 15 engineering.
! proceeded into graduate program again in 16 the College of Engineering at the University of Cincin.ati.
f 17 I got my Masters of Science majoring in chemical and 18 nuclear engineering.
I proceeded into a Ph.D. program 19 after that again at the University of Cincinnati and 20 completed almost all of the course work degree requirements 21 for my doctorate.
I was engaged as a research assistant at 22 that time both with my masters and with my Ph.D. doing 23 contract research for the Atomic Energy Commission 24 investigating loss of coolant accident and analysis 25 phenomenon, especially with respect to a two-phase flow and YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 York, PA 17401 l
Exhibit /0
,page of Pace 52
t..rrw n 950 1
transient two-phase flow.
2 3
ADMINISTRATIVE LAW JUDGE:
4 Okay.
Before you go any
- further, I
have a
5 disclosure to make.
I have met this witness 6
before.
I was a member of the Board of Trustees at I
7 the University of Cincinnati for nine years.
As I 8
say, I don't know this person, Mr. Mosbaugh, and I 9
need to know if there's any objections at this I
10 point.
11 MR. GOLDEERG:
12 Ncne, Y ur Honor.
13 ADMINIST?JCIVE ~.AW JUDGE :
14 Okay.
Proceed.
15 THE WITNESS:
16 I did nct cceplete the -- my Ph.D. dissertation and 17 left the University of Cincinnati without 19 receiving my doctorate degree.
I at that time 19 entered the nuclear power industry being employed l
20 with the Babcock and Wilcox Company.
At a later 21 time of employment I continued to take some nuclear i
22 engineering gracuate courses that were being l
23 offered at a nuclear plant that I was stationed at 24 by professors again from the University of j
25 Cincinnati.
But that would be my formal education l
YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 i
York, PA 17401 I
/d
- xhibit
,page of
.l Page 53
r..,w 3 u 951 1
summary.
2 3
BY MR. MICHAEL KOHN:
4 Q.
If you could turn to Com,lainant's Exhibit 38, 5
which is a copy of your resume.
Did you prepare this 6
document?
1 7
A.
Yes.
8 Q.
And I
note that starting on the last page 9
going forward to the bottom of the first page there's a 10 chronology of your employment mostly in the nuclear 11 industry.
Could you highlight the areas you believe impact 12 cn your cual;fications to testify here today?
i 13 A.
All right.
1974 to 1977 I was employed by the 14 Eabcock and Wilcox Company.
And in the course of that i
15 employment I
worked at three different nuclear pcwer 16 plants.
And among other things that did in that period I
a test engineer and I was 17 of time, I was an engineer 18 also a
consultant to the station's chemistry / radiation 19 protection superintendent as they sere called in that time 20 period.
And that wac at the Davis Beccey plant that is 21
' Toledo Ediscn's at the time.
I did some work with Babcock i
22 and Wilcox on examining a
spent fuel assembly at the 23 Lynchburg Research Center that had come f rom the Occonee-24 plant.
25 After I left the employ of the Babcock and Wilcox l
l YORK STENOGRAPHIC SERVICES, INC.
(
York, PA 17401 (717) 854-0077 ihibit
'O
,page -
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r I
ror,m 952 l
1 Company I was employed by a company called EDS Nuclear as a l
l l
2 consultant at the Cincinnati Gas and Electric's Zimn.er 3
plant and in that period of time among other things I was a I
4 test engineer and I also acted as a
consultant tc that l
5 plant's chemistry / radiation protection superintendent and I l
6 did testing of their radioactive waste systems.
After that l
7 I transferred to the cincinnati Gas and Electric Company 1
8 direct with the utility where I
initially was a staff 1
f 9
engineer.
10 I moved up through their engineering organization 11 to become a
engineering supervisor, an engineering i
12 superintendent, and eventual'y a start-up superintendent.
13 In those capacities I did a lot of testtng cf various plant i
i 14 systems.
I established their rystem engineering program i
3 l
15 and I was the nuclear fuel custodian and I was involved in 16 receiving the initial core of nuclear f u e '_ as well as 17 shipping the nuclear fuel back to Exxon.
In 1984 Zimmer 18 plant was closed as a nuclear plant and I was recruited to 19 come to the Georgia Power's nuclear plant Vogel in August 20
-- near Augusta, Georgia.
And I went down there as a -- I 21 think the title was a pre-operational superintendent.
It 22 was basically an engineering superintendent.
23 I
was promoted up through their organization, l
24 became an engineering manager.
I was responsible for 25 establishing their system engineering group and was l
)
i YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit /d
,page-OL l
Page 55 L
r.,r,. m 953 1
responsible for testing of the Vogel's various systems.
As 2
an engineering manager, I was responsible 'for the entire 3
engineering department, which was about 60 or 70 engineers, l
l 4
the quality control department, and the security 5
department.
I also had responsibility for the plant's 6
administrative procedures for writing them and setting 7
their policy and revisis.g them as necessary.
I was also a 8
plant duty manager.
9 As I progressed in their organization, I eventually 1
10 elevated to the level of assistant general manager of plant 11 suppcrt.
Basically that position is one of the two ::p l
managers and we each had about half of the plant under us 12 13 and we reported to the plant general manager, I was the 14 assistant general manager of olant suooort.
In that i
15 capacity :
had eight differen: departments that worked for I
16 me and that would include engineering, the regula: cry 17 licensing department, which had the ma.n interface 18 responsibility with the Nuclear Regulatory Commission and i
19 responding to NRC violations.
20 I had quality control, security training.
That's 21 the department that did all the plant's training including i
22 the training of the operators for reactor operator and 8
23 senior reactor operator licenses.
They also had emergency i
24 planning reporting to me, personnel, administration, 25 document control and that was about half of the plant's I
l.
YORK STENOGRAPHIC SERVICES, INC.
York, pA 17401 - (717) 854-0077 i
I
/0 Lx
,page of hibit Pace 56
r.., r,. 3 a 954 1
departments.
In that period of time I had been responsible 2
for the administrative procedures of the plant.
I had an 3
individual under me that was referred to as the procedure 4
supervisor and programs such as the plant's deficiency 5
program, which at Vogel we called a DC, was a program that 6
I established.
In
- fact, I
helped develop the program, responsible for its 7
write the procedure.
and was 8
administration.
9 Subsequently I
was vice chairman of the Plant 10 Review Board and a member of the Plant Review Board.
I was i
11 also an emergency director and duty manager.
My last f
12 capaci:y at Georgia Power'was I had been selected to get a 13 senior reactor operator's license as a
manager on that i
l 14 plant.
And :
would note that while ! was with Cincinnati j
l 15 Gas and Electric at the Zimmer station I received senior i
16 reactor ocerator's license traininc and was cer:tfied as 17 such at the Zimmer plant.
18 Q.
You menticned a DC program at plant Vogel.
l 19 There's been a lot of testimony in this proceeding about a 20 PIF process.
Does the DC program at plant Vogel have any 21 similarities or equivalents to the PIF process?
j 22 A.
Yes, I have reviewed the Zion's PIF procedure we had at 23 and it essentially analogous to the program that 24 the plant Vogel which was referred to generally as the DC 25 program.
DC stood for deficiency card.
And they're YORK STENOGRAPHIC SERVICES, INC.
i York, PA 17401 - (717) 854-0077 hhibit / 0 - page of Page 57
Taytran ) ia 955 1
similar program implementing the same NRC criteria from 10 2
CFR 50 Appendix B.
3 Q.
Have you ever testified as an expert witness 4
before?
5 A.
Yes, I have.
6 Q.
Where was that?
I 7
A.
Between 1940 and 1996 in a Department of Labor 8
proceeding and also between 1992 and 1996 in a Atomic 9
Safety and Licensing Board proceeding.
In those 10 proceedings specifically I gave testimony on plant Vogel's l
i 11 deficiency program.
12 C.
And if I
understand it, you appear.d as a.n 13 expert witness before the Atomic Safety Licensing Board.
14 Were you an expert witness in the Department of Labor case 15 or were you just appearing as a witness in that proceeding?
i 16 A.
I was the initiator of that proceeding, a 17 whistleblewer, I guess.
18 Q.
Which gets me to my next question.
I 19 A.
Okay.
20 Q.
Did you ever file a proceeding under Secticn 21 210 of the Energy Reorganization Act?
l l
22 A.
Yes, I did.
23 Q.
Is there a reported decision issued by the' 1
l 24 Secretary of Labor with respect to that proceeding?
25 A.
Ye's, there is.
YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 York, PA 17401 Exhibit /d
,page-Of-
~
1 I
Page 58 l
T T a,fran 314 956 1
Q.
What was the sum and substance of the holding 2
of the Secretary of Labor?
3 A.
The Secretary of Labor found in my favor, 4
found that I had been terminated for the protected activity l
5 that I engaged in, ordered me reinstated.
Is it possible 6
that I could have a glass of water?
7 8
ADMINISTRATIVE LAW JUDGE:
9 Sure.
Could we get a..
10 MR. MICHAEL KOHN:
11 I did ask someone to try to find that for you.
12 13 BY MR. MICRAEL KOHN:
14 Q.
Did the Secretary of Labor determine that the 15 only reason you were terminated was for engaging in 16 protected activity?
i 17 A.
Yes.
i l
18 Q.
Who represented you before the Department of 19 Labor?
20 A.
The firm of Kohn, Kohn & Colapinto.
21 Q.
And who represented you before the Atomic 22 Safety and Licensing Board?
23 A.
The same firm.
24 Q.
Did those proceedings end in 1996?
25 A.
Yes.
i I
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 i
Exhibit N
,page of Page 59
I TmTrna 3 la f
957 1
Q.
And since the termination of those proceedings 2
and until the point in time you were contacted to function 3
as an expert witness in this proceeding have you had any 4
involvement with the Kohn, Kohn & Colapinto law firm?
5 A.
None at all.
6 Q.
Does the fact that you were represented by 7
Kohn, Kohn & Colapinto in the past have any bearing on your 8
ability to provide forthright and truthful testimony in 9
this proceeding?
10 A.
No.
11 Q.
I think you testified that you have rev ewed 12 plant Zion's PIF precedures and believe ycu were 13 referring to the exhibit contained -- the Joint Exhibit 6,
14 is that correct?
15 A.
Yes.
16 Q.
Dces the P:F prccess impact on the safe 17 operation of plant Zion?
18 A.
Absolutely.
19 Q.
What is 10 CFR Part 50 Appendix B?
20 A.
10 CFR 50 Appendix B is the portion of the 21 Code of Federal Regulations governing nuclear energy.
And 22 that specific section defines the quality assurance 23 programs at nuclear power plants and there are 18 criteria' j
24 in that section that define specific elements of the 25 quality assurance program that are required by the Nuclear i
I I
YORK STENOGRAPHIC SERVICES, INC.
l York, PA 17401 - (717) 854-0077 l
Exhibit _ /d
,page-of Page 60
s I
1 l
r..,ro m l
958 1
Regulatory Commission.
l 2
Q.
And how did the PIF procedures relate to 10 3
CFR Part 50 Appendix B?
4 A.
The PIF procedures directly implement several 5
of the criterion from 10 CFR 50 Appendix B.
6 Q.
And are all nuclear plants required to have 7
similar procedures?
8 A.
Yes.
9 Q.
At every nuclear plant you worked at was there 10 a similar procedure in place equivalent to the PIF process?
11 A.
- Yes, different plants implement those 12 criterion slightly different and the way they implement it 13 has changed ever the many years.
But every plant is i
14 required to have precedures that implement those ar.d the I
15 PIF program is -- at plant Zicn is part of that.
C fferent I
16 plants sometimes call these dccument non-comformances.
{
17 They might call them deficiencies.
Here they're call them i
18 PIFs but they serve the same purpose.
l 19 20 MR. MICHAEL KOHN:
Your 21 We'd like to qualify the witness as an expert, 22 Honor.
23 ADMINISTRATIVE LAW JUDGE:
24 Any objection?
25 MR. GOLDBERG:
i YORK STENOGRAPHIC SER" ICES, INC.
l f
l
(
York, PA 17401 - (717) 854-0077 1
I i
~
ghibit jd
.nonn. _.
c' l
Page 61
T.avf,sa 314 959 1
Yes, Your Honor, objection to the extent that we 2
have no idea at the moment what area of opinion 3
testimony this witness is prepared to go into.
As t
1 4
4 I understand it, given the fact that I took this 5
gentleman's deposition a
few evenings
- ago, my 6
understanding is that one of the areas of his 7
expert testimony would purport to be in the area of 8
human relations, human resources, personnel, and 9
discipline matters despite the individual's very 10 esteemed background in the nuclear industry.
I l
l 11 didr't hear any mention of human rescurces training i
12 cr anything with respect to discipline or perscrnel l
13 and I don't know that this witness to be expert in i'
14 that type of testimony.
i 15 ADMINISTRATIVE LAW JUDGE:
t i
16 All right.
- Well, at this point I'm going to 9
17 qualify him.
You may state a specific objection l
18 with regard to a human resource matter that you 19 believe is not within the field of his expertise.
20 MR. MICHAEL KOHN:
21 Thank you, Judge.
22 ADMINISTRATIVE LAW JUDGE:
23 All right.
You may proceed, Mr. Kohn.
24 25 BY MR. MICHAEL KOHN:
YORK STENOGRAPHIC SERVICES, INC.
)
(717) 854-0077 York, PA 17401
)
Exhibit
,page of i
Page 62 l
- r., re. 3.
960 1
Q.
How many nuclear -- I don't recall if I asked 2
you how many nuclear plants you have worked at.
3 A.
I worked at five different nuclear power 4
plants with five different utilities.
l 5
Q.
Is strict adherence of the PIF procedures 6
necessary..
7 A.
Yes.
8 Q.
.at plant Zion?
9 A.
Yes.
10 Q.
Would it be appropriate for managers to l
11 deviate from the plant PIF procedures?
l 12 A.
No, a
procedure such as the procedures 13 implementing the PIF program which are directly related to 14 10 CFR 50 Appendix 3,
these are administrative level 15 procedures.
These procedures have been crafted with great e
i 16 care and attentic. generally b,. the utilities.
And since 17 tney're such an important part of the program they need to 18 be followed as written.
There are program designs built 19 into them in the way they're written and in the way they're 20 sequenced.
21 Q.
Would it be appropriate for a
department 22 manager to issue an instruction that he be notified of the i
23 initiation of a
PIF in his department before a
PIF 24 committee meeting was to commence?
25 A.
No, for the reasons that I just mentioned.
A YORK STENOGRAPHIC SERVICES, INC.
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/0
~
uAllf0it
, pag 8 Of I
1 t
l Page 63 l
l
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procedure in order to adequately implement a program 2
like a PIF program you have to -- you're trying to get your 3
plant people to identify problems and you're trying to 4
stress --
you need to stress attention to detail and 5
varbatim following of your procedures.
Follow the 6
procedures as written.
And it's an opportunity for 7
management to stress that, to stress following procedures 8
as written to make the entire program work.
And when a 9
manager is going to say, "Okay, we can work around this.
10 de can add something.
We can take something away perhaps,"
1 11 the program starts to break down because the manager is in i
12 a posi-icn to set by example.
From what he dces, he sets I
i I
13 the tone for the rest of the employees.
14 And the employees are not going to -- they're going 15 to look at him and they're saying, "Ckay, he did it this 16 way,"
and they w;11 follcw h:m bf example.
And if his l
17 example is, "No, we must folicw the procedure as written i
18 and if you see a valid reason to change this procedure then 19 I will take it back through the approval process that it 20 went throu:h initially and I will get it changed," and when 21 the people see that, okay, that's very positive for the 22 plant.
The other side of the coin is if they don't see l
23 that they
- think, "Well, maybe there's some flexibility 24 here.
Maybe in my conduct of business I can exercise 25 similar flexibility."
And that's where administrative YORK STENOGRAPHIC SERVICES, INC.
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i 1
.. sNbit
/)
... nann of Page 64
TmTran 314 l
l 962 I
1 programs start to break down.
2 Q.
Is there a potential that the PIF procedures 3
when they were being designed and conceived had
-- someone 4
thought of the intent and possibly ramifications of this not to include i
5 additional type of notification and decided l
6 such in the procedure?
7 8
MR. MICHAEL KOHN:
l 9
Objection, Your Honor.
No foundation.
l 10 ADMINISTRATIVE LAW JUDGE:
11 Yes, it's pretty speculative.
Pretty speculative.
i 12 i
i 13 BY MR. MICHAEL KOHN:
i.
14 Q.
Can --
Mr. Mosbaugh, can you tell the Court l
I 15 what types of.
e 16 17 ADMINISTRATIVE LAW JUDGE:
18 Let me ask a question while we're --
while you're 19 looking up whatever you're looking at.
And this is i
20 really for my -- just my own knowledge.
f 21 22 BY THE COURT:
23 Q.
These programs, PIF, whatever they're called 24 from plant to plant, are these the kind of programs that 25 get -- that the documentation for which gets a circulation YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit -
,page-4-
Page 65 i
Tmt.en ) 64 963 I
1 through the different nuclear power companies so that you after a
period of time you begin to pick up kind of 2
3 standard language at different plants that as they 4
implement these requirements of 10 CFR?
5 A.
Let me be ch ar on your question.
Are the procedures themselves receive circulation plant to plant so 6
7 that different plants are looking at how are they doing it I
8 and maybe we'll write ours like that..
)
9 Q.
Right, and maybe even adopting.
I 10 A.
Yes.
11 Q.
. blocks of language for it?
12 A.
Yes, yes.
Part of what would be done in 13 configuring a
program like this would be look at other 14 plants' programs, possibly to take trips to cther plants, 15 see how the program's working there.
Yes, that would i
16 absciutely be..
17 Q.
So kind of a
star.dard language thing that 18 takes place?
19 A.
Your plants would be looking at all the other 20 plants, how standard it is.
There isn't a requirement l
(
21 through the NRC that..
circulated standard language that 22 Q.
There's no 23 says, "We'd like you to come in line with this language in 24 your own internal program"?
25 A.
No, I
haven't seen that but I am aware of YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit -
,page-
- of -
Page 66
r,re 964 i
1 where the NRC if they feel your program may be inadequate 2
in some way might suggest, "Go look over here, they have a 3
good program."
Also the INPO Organization would do similar 4
things.
If you thought you might want to enhance your 5
- program, suggestions and information would be obtained 6
through INPO that, you know, "Okay, go look at, you know, a 7
particular utility, a particular plant.
We found their I
8 program to be very good.
Go look at theirs."
And I know a
9 I've made trips for purposes like that and I
know that f
I i
10 that's very common.
11 Q.
But in the final analysis each plant.
12 A.
In the final analysis each plant can write--
13 can implement the criterion of the NRC in a procedure that 14 it configures and doesn't have to have it verbatim with 15 what somebcdy else has.
16 1
1 17 ADMINISTRATIVE LAW J'JDGE :
i 18 All right.
Go ahead, Mr. Kohn-19 l
1 20 BY MR. MICHAEL KOHN:
21 Q.
Can you explain any perceivable problems that 22 could cause that could be caused by requiring an 23 employee to supply a
copy of a
PIF to a departmental 24 manager at the time the PIF is initiated?
l 25 YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 j
l
~
E,shibit /d
,page of 1
Page.67 g_-__________-________________
I l
r..,r,o 2 955 l
1 MR. GOLDBERG:
)
i 2
Objection.
A hypothetical question, Your Honor.
f 3
MR. MICHAEL KOHN:
4 4
Testifying as an expert, Your Honor.
5 ADMINISTRATIVE LAW JUDGE:
6 Well, I'll take it for what it's worth.
Let me 7
hear the testimony on this.
l l
8 THE WITNESS:
9 Yes, I can think of a couple of problems.
And one i
10 problem that could occur is managers are typically 1
11 very busy.
We're ir meetings all the time and i
12 generally not very accessible.
Se one problem that 13 occurs is the problem of possible delay.
And it 14 also places a burden on an individual to do that 15 notification and then discussion that may result.
16 It does present the possibility managers are--
17 will sometimes try to encourage or dissuade an f
18 employee in a discussion.
That does happen.
And I
employees are quite sensitive to talking especially 19 20 with a higher level manager, one that they may not 21 directly work for.
And there's a certain amount of 1
reluctance when talking to higher level people.
22 23 And so I think there are some elements of--
l 24 that could create, you know, some sort of chilling j
25 effect in the writing of problems, PIFs, things of i
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 4..dlibl[
h _. n q m... ____ c' Page 68
TeepfraA ) le 966 1
that nature.
Generally in these kinds of programs 2
it's desirable to have the employee be able to 3
easily and feel in a
very unencumbered way the 4
ability to identify problems and not feel in any 5
way that they're going to be dissuaded from writing 6
them for anybody to make them feel like, " Hey, this 7
isn't a signifi; ant problem,"
or, "Well, why are 8
you doing that?
And you're -- you know, you're a 9
troublemaker, you keep identifying problems."
10 The management attitude of the plants needs to 11 be an attitude of, "We succeed by identifying our 12 problems, we want you to identify our problems.
- f i
13 you don't identify our problems for us one of those l
14 problems is going to come up and bite us.
- t's i
i 15 going to cause us a safety problem.
It's going to f
16 cause us an accident.
It's going to cause -- it's 17 going to hurt us."
And the attitude need to be l
18 very posittve and the NRC hcs stressed that at many 19 plants.
20 21 BY MR. MICHAEL KOHN:
opinion as to whether plant 22 Q.
Do you have an 23 Zion was having difficulty implementing the PIF procedures 24 during the point in time that Randy Robarge was employed?
l l
25 YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit b
,page-of 1
J Cumm SQ i
1
TiayTran 314 967 l
1 ADMINISTRATIVE LAW JUDGE:
i 2
Yes or no.
1 3
THE WITNESS:
4 Yes.
(
5 6
BY MR. MICHAEL KOHN:
7 Q.
And what ie your opinion?
8 A.
They were.
9 Q.
Can you identify Complainant -- I believe you 10 should have a copy of Complainant's Exhibit 39.
11 12 ACM I N ISTRAT I'/E 'AW JUEGE:
13 Mr.
- cha, is this a
basis questien now to his 14 response?
15 MR. MICHAEL KCHN:
16 Yes.
17 ACMINIST?ATIVE LAW JUDGE:
18 Go ahead.
19 MR. MICRAEL KOHN:
20 This is the...
21 ADMINISTRATIVE LAW JUDGE:
22 I don't want you going on without asking the basis.
23 MR. GOLDBERG:
24 Could I get the number again, Mr. Kohn, please?
25 MR. MICHAEL KOHN:
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077
~
[;dfoil
___, e n ' 1 l
Page 70
1 r..,rt 3 a i
I 968 1
39.
2 3
BY MR. MICEAEL KOHN:
4 Q.
And if you would look at page 39 -- I'd call have you 5
everyone's attention to page 27.
Is there 6
reviewed the document marked as complainant's Exhibit 39?
7 A.
- es.
I 8
Q.
And does this document contain information you 9
relied upon to reach your conclusion?
10 A.
Yes.
11 Q.
And can you explain what it is in this j
12 dccument that pertains to your conclusicn?
13 A.
The plant was cited for an NRC violation l
14 related :; losing a -- some sor of foreign material into 15 the reac:Or cavity that wasn't retrievable.
And part of l
16 the reascn for the violation and part of the improper 17 actions by the employee was tha; a ?!? was not identified 18 for this ccndition.
19 20 MR. MICHAEL KOHN:
21 We call for the admission of Complainant's Exhibit 22 39, 23 ADMINISTRATIVE LAW JUDGE:
I i
24 Any objection?
{
25 MR. GOLDBERG:
l YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 l
\\
J Exhibit /O _.nn nf.
I c
Page 71 i
]
ror,. i n 969 1
No, Your Honor.
i l
l 2
ADMINISTRATIVE LAW JUDGE:
i l
3 Hearing none, Complainant's Exhibit 39 is received 4
and is a part of the record.
5 6
BY MR. MICHAEL KOHN:
7 Q.
Would you turn, Mr. Mosbaugh, to Complainant's l
i.
8 Exhibit 40?
My notes indicate you should be looking at 9
page seven.
Is there anything in this document that aids l
10 your conclusion with respect to the PIF as to whether plant l
l 11 Zicn was having difficulty implementing its PIF procedures?
12 A.
Yes, in this case the plant received another 13 violation In this case it was with respect to scme fire 14 protection issues.
And a
part cf the reason for the 15 violation was that even though the issue was brought up by i
I 16 the NRC resident apparently to the fire marshall a ?!? was 17 not identified and not initiated.
l
\\
1B Q.
And that was a
violation of the
?!?
i 19 procedures?
20 A.
Yes.
21 22 MR. MICHAEL KOHN:
23 Call for admission of Complaint's Exhibit 40.
24 ADMINISTRATIVE LAW JUDGE:
25 Objection?
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17e01 - (717) 8S4-0077 Exhibit /
,page
- of Page 72
T<a,fran 314 970 1
MR. GOLDBERG:
2 No objection, Your Honor.
3 ADMINISTRATIVE LAW JUDGE:
4 Hearing none, Complainant's Exhibit 40 is received 5
and is a part of the record.
see g
8 Q.
If you would turn to Complainant's Exhibit 41 9
page three.
Is there anything in this document which I
10 identifies difficulty in compliance with the PIF f
11 procedures?
12 A.
- Yes, this exh bit contains a
level three i
13 violation
.' o r which Commonwealth Edison was assessed a l
14 550,000 f ne.
And among the examples contained in this l
15 violation is a case where.
i 16 17 ADMINIST?ATI~/E LAW JJDGE :
18 Which one?
Can you point to it?
19 THE WITNESS:
20 On page three item two.
21 ADMINISTRATIVE LAW JUDGE:
22 Okay.
I' l
23 THE WITNESS:
24 In this example apparently a
total of 114 deficient conditions that should have 25 conditions i
l YORK STENOGRAPHIC SERVICES, INC.
l I
York, PA 17401 - (717) 854-0077 Exhibit
,page of Page 73
r.
.r,.,, 3 a 971 l
{
1 had a
PIF initiated, apparently no PIFs were 2
initiated.
3 4
BY MR. MICHAEL KOHN:
was defined as 5
Q.
And if you'd turn to page six, 6
a civil penalty, $100,000?
7 A.
I'm sorry.
I was incorrect.
Yeah, this was a 8
severity level three problem for which they were assessed a 9
civil penalty of $100,000.
And if you would now turn to page 15 of this 10 v.
11 exhibit.
And about halfway down do you see reference to a 12 September 5, 1996, cite vice pres; dent letter?
13 A.
Yes, yes.
Apparently that is identified there 14 as a corrective action to Example 132 which is the one we 15 were looking at.
16 C.
And I
would turn your attention to 17 Complainant's Exhibit 8.
Does that appear to be the letter 18 that was initiated as a result of the failure to file the 19 114 PIFs and the institution of $100,000 penalty?
20 21 ADMINISTRATIVE LAW JUDGE:
22 Where are you at now?
Are you going off 41?
I 23 MR. MICHAEL KOHN:
24 I -- yes, Your Honor.
{
25 THE WITNESS:
l l
i YORK STENOGRAPHIC SERVICES, INC.
r
(
York, PA 17401 - (717) 854-0077 Exhibit
,page of Page 74
TonyTrna 3 la l
972
_l 1
Yes, this letter would appear to be that letter 2
from that date.
i 3
MR. MICHAEL KOHN:
l 4
I think there's an extra set of exhibits.
5 ADMINISTRATIVE LAW JUDGE:
6 Well, I've got a reason for doing this.
Thank you.
7 Repeat the question.
8 MR. MICHAEL KOHN:
l i
9 If I.
l 10 ADMINISTRATIVE LAW JUDGE:
11 Going to repeat the question?
12 MR. MICHAEL KOHN:
13 Yes.
14 15 BY MR. MICRAEL KOHN:
16 C.
Is this is complainant's Exhibit 9
17 referenced in Complainant's Exhibit 41 at page nine?
18 Excuse me, page 16.
19 A.
I see page 15 of 32 of Exhibit 41.
i 20 Q.
Well, thank you.
You're correct.
Page 15.
j l
21 A.
Yes.
22 Q.
Okay.
And it's under the heading specific I
mean does that 23 correction action.
Can you explain l
24 mean that this letter was specifically issued as a specific 25 corrective action to this notice of violation?
YORK STENOGRAPHIC SERVICES, INC.
l York, PA 17401 - (717) 854-0077 l
Exhibit M
,page of l
1 Page 75 l
- r.,tw n 973 l
1 2
MR. GOLDBERG:
3 Objection, Your Honor.
Foundation, speculation.
4 MR. MICHAEL KOHN:
5 I'll be happy to lay a foundation, Your Honor.
6 ADMINISTRATIVE LAW JUDGE:
7 Lay a foundatior.
8 9
BY MR. MICHAEL KOHN:
10 Q.
Mr. Mosbaugh, can you tell me your experience 11 with respect to NRC --
the issuances of NRC notices of 12 violat;en, a plant's response to a notice of violation, and 13 enforcement actions taken by the NRC?
14 A.
Well, I would --
I was responsible for the 15 plant voge'.'s response to the notices of violations 16 received there through the Regulatory Compliance I would have been involved in virtually all of 17 Department.
18 such responses and I also would have reviewed all such 19 responses through the plant Review Board.
The relationship 20 of this letter as a corrective action to this violation is 21 set forth in Exhibit 41.
The violation we've looked at in 22 Exhibit 41 on page three was item two and under Section B.
23 And back here in the back in the company's response to the 24 violation they address the specific corrective actions to 25 violation exdmple 1B2.
So there's a -- in this document YOD.K STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit /d
,cm o,n t
Page 76 1
7 n,7ma 3 :s 974 1
there's a
direct relationship between this corrective 2
action of this letter to this violation of the same number.
3 i
4 MR. GOLDBERG:
5 Move to strike the testimony, Your Monor.
No 6
basis.
Speculative.
This was a
letter dated 7
September 5,
1996.
Unless this witness knows 8
the.
9 ADMINISTRATIVE LAN JUDGE:
l l
10 Well, first of all these were documents that were 11 produced by the ccmpany -- by.
12 MR. GOLDBERG:
13 I dcn't believe sc, Ycur Mcncr, I'm sorry unless 14 Mr. Kohn believes otherwise.
15 MR. MICHAEL KOHN:
16 Your Honor, these documents are contained,or should 17 be contained in the documents produced by the 18 company.
This particular one was culled out of the 19 public documents room before we got down here.
20 It's a public document maintained by the Nuclear 21 Regulatory Commission.
22 MR. GOLDBERG:
23 Exhibit Number 8 are we talking about, Mr. Kohn?
l 24 I'm sorry.
25 MR. MICHAEL KOHN:
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077
[Xhil)il
,9390 ~
~
Page 77 i
T.nyTesa 3 4 975 1
Oh, oh, excuse me.
2 MR. GOLDBERG:
3 That's what I'm objecting to.
4 MR. MICHAEL KOHN:
5 Oh, I'm sorry.
I'm sorry.
I -- Exhibit Number 8.
6 That's it.
I'm sorry.
I thought Exhibit Number 9 l
7 was already in evidence.
I -- oh, 8 is in evidence 8
so I'm not sure what the objecticn is.
9 MR. GOLDBERG:
i 10 I didn't have any independent understanding.
I may 11 have been away from the trial at the time that 12 document was admitted.
And if it's being attempted 13 to be admitted for the first time.
14 ADMINISTRATIVE LAW JUDGE:
15 Okay.
I've been informed it's admitted so go ahea/
16 and ask.
17 18 BY MR. MICHAEL KCHN:
19 Q.
Now, these notices of violation and responses 20 to the notices of violation that are contained at -- that 21 we've been looking at, are they set out in a specific l
22 format typically?
l 23 A.
The NRC identifies each violation by number l
j I
24 and example
- and, you
- know, they -- yes, they are.
And to them in the same 25 generally the utility then responds YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 i
York, PA 17401 j
' Exhibit /0 r
r".
Page 78 t
1
\\
l T*a,Traa 314 976
~
1 fashion.
2 Q.
Okay.
And then the utility would -- for
)
3 instance looking at Complainant's Exhibit 41 on page 14, it j
t 4
starts out the first heading there, "Almission or denial to 5
the violation."
And then they admit it, correct?
6 A.
Right.
7 Q.
And then it goes the next heading is 8
" Reason for the violation."
And in that area does the 9
utility then set forth its understanding of the reason for 10 the violation?
11 A.
Correct.
j l
12 C.
And then the next heading is " Corrective steps 13 that have been taken, results achieved."
Would that then 14 set forth the utility's corrective action that they have 15 taken?
16 A.
Yes.
17 Q.
And then the next area deals with specific 18 corrective actions to violation.
Would that then be the 19 specific corrective action taken to alleviate the specific relyir.; upon and 20 cited violation that the utility was specific corrective 21 explains to the NRC that that was a
22 action they were taking?
23 A.
Right.
I mean there's general corrective 24 actions and then specific corrective actions.
25 Q.
Okay.
And the September 5,
1996, letter, YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 f
l Exhibit /0
,page of-Page 79
T.nyTcan ) 14 977 1
Complainant's Exhibit 8,
is identified as the specific 2
corrective action with respect to this violation, correct?
3 A.
Right, September 5, 1996, letter from the-site 4
vice president.
5 O.
And did you rely on Complainant's Exhibit 8 6
and Complainant's Exhibit 41 as part of your basis?
7 A.
Yes.
8 9
MR. MICHAEL KOHN:
10 We move for the admission of Complainant's Exhibit i
11 41.
12 ADM:NISTRAT */E LAW JL*D3E :
13 An,. objection?
I 14 MR. GOLDEER3:
i 15 No objection, Judge.
',JDG -
16 ADMINISTRATE'/E
- AW t
17 Okay Hearing none, Complainant's Exhibit 41 is i
18 received and is now a part of the record.
19 MR. MICHAEL KOHN:
20 All right.
Now turn your attention to 21 Complainant's Exhibit 43 page 23.
22 MR. GOLDBERG:
23 Your Honor, while Mr. Kohn is looking I just feel I l
)
24 need to interject on the record here that before
{
j i
25 this witness testified who was not here present to YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit
,page 01-Page 80
r~----------------
t TmyTina 3 la I
978 i
1 begin at the conclusion of the last witness Mr.
l 2
Steven Kohn is no longer with us.
In response to 3
my question about how long this witness would be 4
planning to testify on direct examination, he l
5 infermed me it would be about 20 minutes.
And I'd 6
just note that for the record so that we are clear 7
on olhat our understanding of what we're doing with 8
this witness is about.
I 9
ADMINI 'RATIVE LAW JUDGE:
How long do you have to go here, Mr. Kohn?
10 VR. MICHAEL KOHN:
little less than halfway done.
j 12 Abcut I think 13 ADMINI.aTRATI'/E LAW JUDGE :
14 Well, it's longer than th4t so going to be closer I
i 15 to an hour.
I want you to move along because we're 16 into time.
17 MR. MICHAEL KOHN:
18 Okay.
I will go quickly then.
t 19 ADMINISTRATIVE LAW JUDGE:
I 20
...I really want for the Respondent.
So move l
I 21 along.
22 MR. MICHAEL KOHN:
23 If you would...
24 ADMINISTRATIVE LAW JUDGE:
21?
Go ahead with -- where are we at, 25 YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit IO
,p:i:p OI Page 81 f
Tmfo s u 979 1
MR. MICHAEL KOHN:
2 Yes.
43, Your Honor, page 21.
3 4
BY MR. MICHAEL KOHN:
5 Q.
Do you see any did you rely on this 6
document as a basis to understand that the PIF procedures being fully implemented by the utility?
7 were not 8
9 ADMINISTRATIVE LAW JUDGE:
l 10 Did you get the right page, 21 there in 43?
It's 11 21 of 36, Exhibit 43.
i 12 THE W:TNESS:
13 Yes.
l 14 15 BY MP..
MICHAEL KOHN:
16 Q.
And can you point out what you're relying on 17 in this document?
l 18 A.
On the page 21 it talks about the condition 19 where a PIF neec' not be written for preve.ating this CAP 20 program from identifying, correcting the precedures I
21 compliance issues in the areas as identified by the 22 procedure deficiency.
14 resolved discrepancies just 23 discussed.
24 Q.
And if you would turn to page one of 25 Complainant's Exhibit 43.
Are you familiar with this type YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit N _
Page 82 i
Tea,Tra i.4 980 1
document?
It's identified as -- the cover page.
2 A.
Yeah, this type of document would be something 3
prepared by the utility when they're going to an 4
enforcement conference if the NFC has issued a high-level 5
violation and they will schedule what's called a pre-6 decisional enforcement conference and the utility comes to 7
the NRC and makes a presentation.
This would be typical of the type of presentation material the utility would use.
8 9
10 MR. MICHAEL KOHN:
for the admission of Complainant's Exhibit 11 We move 12 43.
13 ADMINISTRATIVE LAW JUDGE:
14 Any objection?
15 MR. GOLDBERG:
16 Only on the grounds with respect time frame, Your 17 Honor.
I see the date on here being March 19, 18 1997..
Complainant was terminated December 9, 1996.
19 MR. MItrJIL KOHN:
20 Your Honor, the events identified here occurred I 21 believe in
'96.
And anyway it's going to the l
witness's basis for forming his opinion.
22 23 ADMINIS'12ATIVE LAW JUDGE:
24
- Well, somebody will have to establish the 25 applicability.
Other than that, it's received.
YORK STENOGRAPHIC SERVICES, INC.
(717) 854-0077 York, PA 17401 Rhibit [O
,page of _._
Page 83
TinyTrna 3 64 981 1
You don't object to the document?
l 2
MR. GOLDBERG:
3 Not on those conditions, Your Honor, of course.
4 ADMINISTR1.?IVE LAW JUDGE:
5 It's received for the record.
Go ahead.
6 7
BY MR. MICHAEL KOHN:
8 Q.
Have you heard of the term PIF 4?
9 A.
Not until I came up here but I
have heard 10 that.
11 Q.
And did you review a
few pages from a
12 depos; tion where there was discussion of a PIF war, what it 13 was?
14 A.
Yes, I did.
15 Q.
And does the existence of the concept of a PIF further relate to your conclusion with respect to the 16 war 17 proper augmentation of the PIF process at plant Zion?
18 A.
Absolutely.
If something like a PIF war as I 19 understand it was going down going on I would consider that 20 virtually a complete breakdown of the PIF program and the 21 quality assurance program that it implements.
The concept 22 as I understand is that people would retaliate against each 23 other by writing PIFs.
Has no place in the nuclear 24 industry.
The management should be by problem address the 25 problems that are known.
There is to be no element of r
YORK STENOGRAPHIC SERVICES, INC.
iil7) 854-0077 i
York, PA 17401
/O Exhibit
_.,page of Page 84
fmyTran 314 982 1
retaliation.
It's totally unprofessional and it's a
2 breakdown of the system.
3 Q.
Do you have an opinion as to --
at the point 4
in time when Randy Robarge was employed at Commonwealth 5
Edison and at the point in time that he was terminated 6
whether Commonwealth Edison was having a regulatory ethic 7
problem?
8 A.
I...
e**
9 10 MR. GOLDBERG:
11 Objection, Your Honor, to the extent this is an 12 opinion.
Was not --
~'m sorry?
j l
13 ADMINISTRATIVE LAW JUDGE:
14 Well, I want the sequence to go.
His answer is yes 15 or no.
Then what?
16 MR. GOLDBERG:
17 Okay.
18 ADMINISTRATIVE LAW JUDGE:
19 What's your...
20 MR. GOLDBERG:
21 Then I'll wait and see if he says yes or no.
j 22 THE WITNESS:
23 I understand they were...
24 ADMINISTRATIVE LAW JUDGE:
25 No.
yes or no.
YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 i
Exhibit
_. ~ - -
i I
Page 85
r,sv w l
1 983 1
s WITNESS:
2 Yes.
3 ADMINISTRATIVE LAW JUDGE:
4 Question, please.
5 MR. GOLDBERG:
6 Now I have an objection, Your Honor.
f 7
ADMINISTRATIVE LAW JUDGR:
8 Okay.
Well, to the...
9 MR. GOLDBERG:
10 Do you want me to pose the objection after the 11 question is asked?
My objection will be the fact 12 that I believe this is a new opinion that was not disclosed to me in the course of our depositicn and 13 14 on that basis move that no testimony be permitted 15 on the subject, Your Honor.
16 MR, MICHAEL KOHN:
17 Your Honor, it was provided.
It is identified in 18 Complainant's Exhibit 43, which is a
document 19 produced by Respondent in document production.
It 20 specifically includes the admissions of the 21 Respondent, in fact a regulatory ethic problem.
22 MR. GOLDBERG:
23 I don't want to hold this up, Your Honor.
I'll--
24 just understand that I don't believe I heard this 25 opinion when I asked specifically what his opinions YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 854-0077 Exhibit /O
,oa;a._._..
I j
Page 86 L___----__--_-
)
1 i
]
r r n.
l 984
)
l 1
would be in this case.
I never heard mention of a I
2 regulatory ethics problem out of this witness's 3
mouth.
4 MR. MICHAEL KOHN:
5 All right.
Your Honor, this merely deals with the 6
PIF process and the fact that part of the basis for 7
the problem is a regulatory ethics problem.
That was specifically identified by the utility.
8 9
ADMINISTRATIVE LAW JUDGE:
10 I'll receive it.
Now, if we're going to have many Juud the of these objections we could go long time.
11 12 way that
-- and there is a way to deal with it and
+
13 deal with it quickly and that dumps it back on me 14 and that is you produce the deposition and I make a determination as to whether or not this question or 15 16 set of questions was asked.
And I deal with that 17 kind of a matter in a framework.
It's up to you to 18 ask additional questions on your cross examination 19 as to what these things refer to.
So mind you that 20 when I deal with that I deal with a broad scope.
21 Go ahead.
22 23 BY MR. MICHAEL KOHN:
24 Q.
Okay.
And in Complainant's Exhibit 43 does f
25 the utility specifically identify a
regulatory ethic YORK STENOGRAPHIC SERVICES, INC.
York, PA 17401 - (717) 054-0077 10
[^
t
.,page a
mot
?
l l
l Page 87 j
\\
TinyT,an 3.14 985 1
problem at plant Zion at the point in time that the 2
violations being discussed in the conference occurred?
3 A.
I found a reference
-- or see a reference to 4
the regulatory ethic in Exhibit 42.
You were referring to 5
Exhibit 43?
6 Q.
Okay.
Does the existence of a weak regulatory 7
ethic impact on the implementation of the PIF process?
8 A.
I'm not sure I
understand the question.
9 The...
10 Q.
How -- yoar review of Complainant's Exhibit 42 11 and 43 as it contaics information pertain _ng to a
12 regulatory ethic
- problem, how would that impact on the 13 implementation of the PIF process or strict compliance with 14 the PIF procedures?
15 A.
You
- know, the failure to implement the FIF 16 program may well be an example of the regulatory ethic.
17 Q.
And given a
deficient regulatory ethic, in 18 your opinion would it be appropriate for employees to 19 demand strict compliance with a written procedure?
20 A.
The employees should demand strict compliance 21 with the procedures at all times.
If the plant was 22 responding to and felt it had a regulatory ethics problem, I
23 the level of attention in that area is me rely increased.
1 24 It would be heightened.
The needs are much greater.
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i Taytran 3.14 986 2
MR. MICHAEL KOHN:
2 Your Honor, we'd like to move in Complainant's 3
Exhibit 42 and Complainant's Exhibit 45 at this 4
time.
5 ADMINISTRATIVE LAW JUDGE:
6 Objection?
7 MR. GOLDBERG:
8 No, Your Honor.
9 ADMINISTRATIVE LAW JUDGE:
10 Okay.
Hearing none, Complainant's Exhibit 42 and 11 45 are reccived and are part of the record.
12 13 EY MR. MICRAEL KOHN:
14 Q.
Mr.
- Mosbaugh, do you have any background in 15 what's known as human factors at a nuclear plant?
16 A.
Yes.
17 Q.
Can you explain what that is?
18 A.
Human factors is the issue that deals with the 19 performance of personnel.
It evolved out of Three Mile 20 Island and the accident there and specifically relates to 21 how individuals do their job.
And a very detailed review 22 is done in each nuclear power plant, especially in the main 23 control
- room, to human factors issues and they are all 24 encompassing.
They have to do with things like how well an 25 individual can see an instrument, what the shapes, colors, YORK STENOGRAPHIC SERVICES, INC.
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the types of labeling that might be on them.
It gets into 2
things like what background noise be, how much confusion 3
there is an area, how many people are allowed in the area, 4
the layout of the area.
5 They have to do with all the things that relate to 6
how and why an individual performing ~ a job under various 7
circumstances including stress circumstances, how he might 8
be inclined to make an error.
And that's the general area 9
of human factors.
10 0
And what training or experience do you have in 11 this specific area?
12 A
Being that I'm --
was certified as a senior 13 reactor operator, that is something that the operators are 14 trained on because it's one cf the things that could cause 15 an operator to make an error.
Also, operators need to be 16 sensitive to those issues in performing their job so that 17 they can get --
give feedback to management if they feel 18 there are human factors issues.
In addition to that, I had 19 a engineer who was a human factors engineer who worked for 20 me in the engineering department and he was part of the 21 control room review which addressed the myriad of human 22 factors issues vith the design of the main control rocca.
23 I
also had the training department which operator training as well as 24 administered senior reactor 25 they maintained the simulator for Vogel.
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