ML20138K638

Proposed Findings of Fact on Conservation Council of Nc Contention WB-3 Re Drug Abuse During Facility Const. Certificate of Svc Encl

ML20138K638
Person / Time
Site:	Harris
Issue date:	12/13/1985
From:	Long K, Sanford J NORTH CAROLINA, STATE OF
To:
References
CON-#485-517 OL, NUDOCS 8512190015
Download: ML20138K638 (16)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION C KKETED '

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matt'er'of +65 EC 16 D1:55 CAROLINA POWER & LIGHT COMPANY )

- and NORTE CAROLINA EASTERN ) Docket No. 50-400 OL 9

- MUNICIPAL POWER AGENCY ) .  ?

(Shearon Harris Nuclear ) .

. Power: Plant) )

4 ATTORNEY GENERAL'S PROPOSED FINDINGS OF FACT ON CCNC CONTENTION WB-3 (DRUG ABUSE DURING CONSTRUCTION)

1. The'first issue raised by CCNC Contention WB-3 is whether drug use at the Harris-Plant was widespread. The Board finds that' drug use at Harris was widespread based on the undercover drug operation conducted by the Wake County Sheriff's Department (WCSD) and,the North Carolina State Bureau of Investigation (SBI). The Board relies on the evidence presented bysthe law enforcement officers who participated in the investigation.

2. On 17 October 1984 a meeting was requested by the WCSD. : Attending the meeting were Sheriff Baker and Major Lanier sof the WCSD, Agents Overton and Burch of the SBI, and Mr. King and Mr. Joyner of CP&L (Overton, p 2). Overton testified that Mr.' King stated that they "...had discovered a substantial drug  ;

1 problem at the Harris plant..." and that something needed to be done (Overton, p 3). CP&L had requested that an undercover 1 operation be conducted by the WCSD. Sheriff Baker further m

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' requested'that the SBI participate in the operation (Overton,

, P 3).

3. Th,e undercover operation at the Harris plant began in November, 1984. The undercover operatives were Deputy Hensley of

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the NCSD and Agent Williams of the SBI. The two officers worked with a confidential informant (Burch, p 3). Deputy Hensley

started working at the site the first part of November, 1984 and continued through the first part of January, 1985. He worked weekdays except for holidays (T p 9169). Hensley was instructed

. to use his cover as an employee at the plant to try and purchase drugs and to obtain information. The investigation resulted in theLarrest of eight persons (T p 9173).

4. 'In addition, Deputy Hensley testified that he identified-between~ fifty-one'and fifty-three other employees involved in

' drug-use (T pp 9173-9174). Also, he observed other employees involved-with drugs but he was unable to identify them. He estimated this number to be approximately forty persons. Thus, he personally observed approximately one hundred employees either using or selling illegal drugs during the course of the investigation (T p 9175).

5. Deputy Hensley gave'as an approximate estimate that he purchased seven grams of cocaine, four and a half ounces of marijuana, five grams of crystals and sixteen grams of hashish

.(T pp 9207 - 9208, 9277). He further testified that while at the plant he only worked the first shift (T p 9216). An incident was described by Hensley where he received information from an informer that two individuals were to enter the plant with a i

3 large. amount ofm'arijuana. He knew the identity of the individuals.but previously he had not been able to make a drug

- purchase from them (T p 9221).

Lt. Self explained the circumstances relating to this incident as well. He stated that

. al plan was discussed which would have allowed the two individuals to enter the plant and Hensley would have attempted a purchase.

But Lt..Self was not able to get to the plant because of another

' operation (T p 9223). The operation began to develop additional information from intelligence reports which indicated that there

- were other_ groups of employees involved with drugs which included several hundred people in various employment levels at the site but_the operation was terminated before these employees were identified (Burch, p 5; T p 9177). As an example, Hensley obtained information that a supervisor was bringing pound quantities of cocaine into the plant. But the investigation i

ended before he could determine the person's identity (T pp 9182 s

- 9183). Hensley was able to recognize site employees involved in drug use who were in safety related work. This was based on observing the color of their hats.(T p 9223).

6. Lt. Self explained that during the operation the informant told him that "CP&L" people were searching stash areas. As a result, Lt. Self informed Hensley not to reveal to anyone.the whereabouts of stash areas inside the plant (T p 9220). Hensley described one stash area as Deing in cable trays. One was twenty feet above ground and the other was six or seven feet. When Hensley made one purchase, the employee climbed up and obtained the drugs from the cable trays (T p 9226). He f

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stated-that*on t' hat occasion he purchased sixteen grams of j 4

hashish.- Moreover, the employee had a total of a pound of l hashish in this stash area (T p 9227).

7. Deputy Hensley testified that when he first arrived at the site-his-first buy was made after he had been there approximately one and a half hours. He explained that this was a

" controlled buy" which meant that the informant made the. actual purchase in Hensley's presence and under Hensley's supervision after he was.given the money for the purchase by Hensley. The drug was cocaine and was purchased in the spread area (T pp 9229, E

9297). Hensley disagreed with Mr. Joyner's testimony that-no drug buys were made in the. parking lot. Hensley testifed that the last: purchase he made was of an ounce of marijuana from a person in the Harris parking lot. The person was later arrested. Furthermore, Hensley observed six other plant employees make purchases of marijuana from the same person at this time. The other employees included electricians'and a

-pipefitter-(T pp 9230-9231).

8. Deputy Hensley explained that his work in the operation became. limited because he had been in one particular group which worked during the day shift. He stated that it would not have been productive to keep making drug purchases from the same individuals. However, he testified that drugs were plentiful among this group. It was at this point that he discussed with the other officers the move to another shift in an attempt to identify as many individuals involved in drug use as possible

'(T pp 9232-9233). Hensley testified that there were 4

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.' 'approxima't'ely sixty people in this group. The eight who were l

_ arrested _were the employees from whom he made actual purchases. O He explained-that he could not go to others in the group to buy I

drugs because that would bring suspicion directed towards him.

'He stated, "[I]f you got a supply of drugs and it was readily 4

available, you just can't ask people to (sic) associate all the time with each.other for more drugs. It is just going to throw suspicion on you," (T p 9233). It was for that reason that

'Hensley believed that he needed to move to another group and not

-because he could not make additional drug buys from the group with which he was associated (T p 9234). Major Lanier noted that during the undercover operation it was learned that there were several groups of employees known by the informant to be involved in drug use. In each_ group there were~certain suppliers. Due to the closeness of these dealers on the site, Hensley could not go to different dealers for purchases because it would arouse suspicion (T pp 9236-9237). Hensley further explained the closeness of the dealers. If one dealer was out of drugs, he could go to another dealer and obtain drugs and pay the other-

' dealer at a later time. Hensley stated that the dealers even ran

" specials" and because there were no price differences he could not go to different dealers or that would also arouse suspicion (T p 9236).

9. In Hensley's opinion had the operation continued he could have purchased more drugs on the plant site (T p 9239).

4 Lt. Self testifed that a plan was being formulated to move

.Hensley to the second shift (T p 9240). Agent Overton testified i

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as to the' reasons for the termination of the undercover operation. He attended a second meeting at the WCSD. Also present were Sheriff Baker, Major Lanier, Lt. Self and Mr.

, King. Expanding the operation to the second shift was discussed. Overton informed King that plans were being made to bring into the operation a replacement for SBI Agent Williams.

F Sheriff Baker noted two factors that could cause problems in the operation. He had been informed that CP&L was going to bring drug dogs onto the site and that a major lay-off was planned.

King stated that he had no choice as far as the drug dogs were concerned. Both Baker and Overton expressed concern over the use

, of the dogs (Overton, p 5). Overton stated that use of the dogs would hamper the operation. Sheriff Baker stated that he would not leave'an agent inside the plant if drug dogs were to be used and Overton agreed that use.of the dogs would create an unnecessary risk. Therefore, Baker and Overton made the decision to terminate the operation "...because of CP&L's insistence on the use of the drug dogs over the objections of the SBI and the WCSD," (Overton, p 5). Overton testified that the use of the i

dogs during the undercover operation would have created the

- " distinct-possibility" that the undercover agents would have been endangered'and that the " risk was too great," (Overton, pp 5-6).

10. Deputy Hensley testified that the use of drug dogs could have created a risk to his safety. He explained, "Well, if the dogs had been used in a situation where a certain group of people, including myself, knew a stash area or a quantity of drugs would be or who would have them, and if the dog picked up 4

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.7 on that, it coul'd cause some fault (sic) as to an informer or something being into the plant which could have pointed back towards me r," (T p 9224).- Overton testified that based on his experience with agents working undercover, "...they are not as concerned about their personal safety as their supervisors are concerned about their personal safety. And very often an undercover agent will continue in an operation waereas a judgment has to be made by the supervisory (sic) to terminate that operation," (T p 9282).

11. Moreover, Overton testified that CP&L gave no valid reason for the use of the drug dogs (Overton, p 6). He further explained the risk of the introduction of drug dogs during an undercover operation, "Well, it would be very much like Deputy Hensley described, in that for no good reason, in my opinion anyway at.that time, may cause some attention to be shown on Loth ,

Agent Williams and Deputy Hensley in that they wert the newest.

people in that group of people that were buying drugs

.. . If their cover was exposed, then they could very - there I could very well have been retaliation physically," (T pp 9307 -

9308).

12. In Overton's opinion the termination of tha operation was premature and was'not a success. An operation o:5 this secpe normally would have lasted six months (Overton, p 6). Lt. Sel f disagreed with the applicant's testimony that report ed Lt. Self as saying the operation was to end on 2 January 1995. Lt. Self ,

testified that the plan was to review the operation, not end it (T p 9201-9202).

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13. 'In4 Deputy Hensley's opinion drug use at the Harris plant was widespread. He based his opinion on what he observed and on whatjhe learned during the operation (T p 9246). He testified that there were eight arrests and that all of the f defendants had pled guilty (T p 9240). 41other fifty-three persons were identified and the identities were given to CP&L.

He. observed approximately another forty employees involved in drug use-but was unable to obtain their identities. He suspected another-hundred or so (T p 9241) and estimated that there were

.cthers at the plant using drugs (T p 9256). He explained that he learned of other groups involved in drugs as follows:

" Conversations with the people-that I was dealing with on the site, just after getting to know them a little bit, striking up a conversation such as - well, i you can get anything you want out here about any time you want it. Has it always

, been.like this? Or, is this just an unusual - and from general conversation with them, most of them that had been there any length of time said that as long as they had been there they had already -

they had access to drugs in this manner,"

(T p 9251).

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14. The Board agrees with Agent Burch that the results of the undercover operation cannot be used to show that drug use at Harris was not widespread as the Applicant asserts (T p 9306).

On'the contrary, the Board agrees with Deputy Hensley and concludes that drug use at the plant was widespread. However, we are not able to determine the extent of the drug use. Even though the undercover operation lasted only a short period, was confined to one shift, and was terminated prematurely because of

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.the Applicant's insistence in using drug dogs; the results of the investigation which have been presented to the Board offer overwhelming ' evidence to support our conclusion that- drug use at Harris was widespread.

15. Other issues raised by CCNC contention WB-3 are whether drug use at the plant af fected - the construction quality of safety-related systems and whether Applicant has failed to reinspect all safety related work by known drug abusers. The Board finds that widespread drug use has af fected construction cuality of safety-related systems and that the Applicant has failed to reinspect safety-related work done by known drug abusers.

16. Marijuana , cocaine and methamphetamine ( speed) are the drugs most of ten abused by Harris employees. Tr. 10,036-39.

Marijuana produces an intoxicated state, the most notable effects of which on work performance come from the drop in motivation and memory. Cocaine and methamphetamine use results in poor concentration on a task because of easy distractability or inappropriate preoccupation to a particular detail of the task to the neglect of the total task. Tr 10,036-39; Dupont at 4, 9.

17. Applicant has not reinspected the work of 218 craf t workers ~it has terminated for suspected or confirmed drug use.

Applicants Exhibit 51 at Chart II-2. Applicant relies instead on

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P I /what - iti contends; is the ef fectiveness o f its OA program . to have h

L, caught lany. errors caused by drug-using craf t personnel.

n 18 . . 10.CFR Part 50, Appendix B requires that a OA program

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mustiensure " adequate confidence" that the plant will perform

--' satisfactorily.- -However, by its own admission, Applicant- has g sterminated 27 OA . personnel for suspected or confirmed drug use.

Applican'ts'-Exhibit 51 at Chart II-2. Applicants have only

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' reinspec'ted a sample of the work done by these 27 quality inspection personnel. 'The Board finds that this sample

. reinspection does not insure " adequate confidence" that the plant i

I  ? will' per form 'satisf actor ily.

- 19 . . Indeed, the Applicant's reinspection of drug abusing OA

. personnel was. spotty at best. For example:

i A. The - work.of three of these OA personnel which related to Radiographic -Examination (RT) was not reinspected and only. 284 items of' their Work oniliquid penetrant and magnetic particle L ~ examinations were reinspected.

B. Sample reinspection of the work of seven drug using CI L

inspectors who inspected cable pulls ~ or cable terminations and '

L b drilled-in expansion anchors indicated an overall acceptance rate 4

of 99~.34.~This1high rate suggests that the reinspection sample L' size was too small, or the reinspection was faulty, or the L

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, .reinspectors were drug users themselves.

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C. Samples of the work of eight of fourteen OC inspectors terminated for confirmed or suspected drug use were

. reinspected. Again the overall acceptance rate on sample reinspection was an extremely high 99.7%. No explanation has been given why none of the work of six of these OC inspectors was re in spec ted .

D. The work of two drug-terminated OC inspectors who field-tested concrete and performed sieve analysis, grout testing and caulk weld inspections were never reinspected.

E.- Very small samples were reinspected of the work of three drug-terminated OC personnel who inspected expansion anchors:

respectively 8%, 14% and 1.0% for an overall sample size of 10%.

Again the sample reinspection indicated an extremely high proficiency rate of 99.9%, suggesting a sample size that was too small or a flawed reinspection program. Indeed the work of two of these OC personnel on grout placement and concrete rebars was not reinspected at all.

F. The work of a drug-terminated final quality inspector who performed final system walkdowns was not reinspected.

20. A search of the NRC's own records of inspections done throughout the history of this construction project will reveal that Applicant has had persistent problems with OA. For example ,

i in 1980 the Applicant was corrected for improper training of OA l

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personnel; in 1982, defective shop -welds defied four levels of

- inspection ~ (in the shop, upon delivery to the yard, upon delivery.

to the craf t -- crew and ' upon ~ inspection by OA) before being discovered and corrected by NRC ' personnel.

. 21. . These facts coupled with the unusually high level of

. 7 proficiency on ~ reinspection of the work of known or suspected

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6 drug using OA personnel suggests that the Applicant's reliance on

' sample reinspection of selected OA personnel terminated for drug usage is misguided. . Widespread drug use of the extent evidenced

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' at- Harris : Nuclear : Plant does not ensure " adequate confidence" the

. plant'has- been constructed safely or will perform safely and adequa tely.

CONCLUSIONS OF LAW

22. As reflected in the foregoing opinion on CCNC i

-Contention WB-3 the Board has resolved contested safety matters l'n. favor of the Intervenors.

23. ' In reaching this decision, the Board has considered all the: evidence _ submitted .by. the parties and the -entire record of this proceeding, consisting of the Commission's Notice of

1. Hearing,1 the pleadings filed by the parties, the transcripts of

- the hearing and the exhibits received into evidence. All issues and proposed findings presented by the parties, and not addressed in. the Board's decision, are deemed to be without merit or V ,

if

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13 unnecessary . to the decision. The Board's findings of fact are supported by- reliable, probative and substantial evidence in the record.

It is therefore ORDERED

24. ' Applicants must reinspect all of the work of the 27 OA personnel it has terminated for suspected or confirmed drug use,

- must reinspect 75% of the work done by 218 craf t personnel it has

. terminated for known or suspected drug use and must reinspect a random sample of 30% of all safety related construction.

Respectfully submitted this 13th day of December, 1985.

LACY H. THORNBURG Attorney General 4

e .0 M b-Jd Anne Sanford Special Deputy Attorney General Ka en E. Long Assistant Attorney General N. C. Department of Justice Post Of fice Box 629 Raleigh, North Carolina 27602 Telephone: (919) 733-7214 u_

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UNITED STATES OF AMERICA 6 All :56 NUCLEAR REGULATORY COMMISSION j

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD '-

In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docke t No . 50-400 uoL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

CERTIFICATE OF SERVICE I- hereby certif y that a copy of " Attorney General's Proposed Findings of Fact on CCNC Contention WB-3 (Drug Abuse During Construction)" was served this 13th day of December 1985, by depo sit in the U. S. Mail, first class, postage prepaid, to the parties on the attached Service List.

< ~N 7 A T Jo Anne Sanford' 6/

Sp' ial Deputy Attorney General N.C. Department of Justice Post Of fice Box 629 Raleigh, North Carolina 27602 Telephone: (919) 733-7214

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

-BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the. Matter of. )

)-

CAROLINA ~ POWER'& LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No . 50-400 OL

-MUNICIPAL POWER AGENCY )

)

(Shearon Harris' Nuclear Power )

Plant) )

SERVICE LIST James L. Kelly, Esquire John D. Runkle, Escuire

. Atomic Safety & Licensing Board Conservation Council of N. C.

U. S. Nuclear Regulatory Comm. 307 Granville Road Washington , D. C. 20555 Chapel Hill, . N. C. 27514

'Mr.Glenn O. Bright M. Travis Payne , Esquire Atomic Safety' & Licensing Board Edelstein and Payne U. S.-Nuclear Regulatory Comm. P. O. Box 12607 Washington , D. C. 20555 Paleigh, N. C. 27605 Dr. James H. - Carpenter Dr. Richard D. Wilson Atomic Sa fe ty & Licensing Board 729 - Hunter Street U. S. Nuclear Regulatory Comm. Apex, N. C. 27502 Wa shington , D. C. 20555 Charles A. Barth, Esquire Mr. Wells Eddleman-Janice.E. Moore, Esquire 718-A Iredell Street Of f. of Exec. Legal Director Durham, North Carolina 27705 U.S.-Nuclear Regulatory Comm.

Washing ton , D. C. 20555 Docketing & Service Section Richard E. Jones, Escuire Of fice of the Secretary Vice Pres. & Senior Counsel U.S. Nuclear Regulatory Comm.

Carolina Power & Licht Oompany Washington, D. C. 20555 P. O. Box 1551 Raleigh, N. C. 27602 Mr. Daniel F. Read, President Thomas A. Baxter SHAW, PITTMAN, POTTS & TROWBRIDGE CHANGE P.'O. Box 2151 1800 M Street, N.W.

Raleigh, North Carolina 27602 Washington , D. C. 20036

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Page two' . Service List Dr. Linda'W. Little Governor's Weste Management Board 513 Albemarle Building

'Raleigh, North Carolina 27611 Bradley W. Jones, Esquire U. S. Nuclear Regulatory Commission Region II 101 Marrietta Street Atlanta, Georgia 30303 Mr. Robert Gruber

. Executive : Director

'Public Sta f f - N.C.U.C.

Post ' Of fice Box 991 Raleigh, North Carolina 27602 Administrative Judge Harry Foreman

. Box 395 Ma yo University of Minnesota Minneapolis, Minnesota 554.55 I

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