ML20011A468
| ML20011A468 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 10/07/1981 |
| From: | Lessy R, Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20011A456 | List:
|
| References | |
| NUDOCS 8110130448 | |
| Download: ML20011A468 (10) | |
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10/7/81 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
UNION ELECTRIC COMPANY Docket No. 50-483 OL
)
(Callaway Plant, Unit 1
)
NRC STAFF MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVEN0RS' CONTENTION I-B(1)
I.
INTRODUCTION In the Special Prehearing Conference Order of April 21, 1981, the Licensing Board admitted Joint Intervenors' Contention I-B(1) which alleged under the heading of Failure of the Quality Assurance Program:
B.
Cracks in Concrete There exist several cracks in concrete structures at the Callaway Plant that affect its safe operation.
Examples include, but are not necessarily limited to, the following:
l 1.
A crack up to k inch wide was discovered in the Reactor Building in the reactor cavity moat area in May 1977, a month after the concrete mat was poured. The crack extended approximately 270 degrees around the circumference.
Upon visiting the site in June 1977, an NRC inspector was unable to view repairs performed on this crack because work had progressed to an extent that made physical inspection of the repair impossible.
(See, NRC Report No. 58-483/77-06, pp. 20-21).
The NRC Staff asserts that Contention I-B(1) presents no genuine issue of material fact and that the Staff is entitled to a decision in its favor as a matter of law.
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Section II of this pleading will discuss generally the law ap-plicable to motions for summary disposition.
Section III will set forth the Staff's reasons for concluding that Contention I-B(1) raises no genuine issue of material fact.
Attached to this motion is the Affidavit of Anthony A. Varela and the Statement of Material Facts as to Which There Is No Genuine Issue to be Heard.
II. GENERAL POINTS OF LAW The Commission's Rules of Practice provide for summary disposition of certain issues on the pleadings where the filings in the proceeding show that there is no genuine issue as to any material fact and that the movant is entitled to a decision as a matter of law.
10 C.F.R. 5 2.749.
As the Commission's summary disposition rule is analogous to Rule 56 of the Federal Rules of Civil Procedure (summary judgment), Federal court decisions interpreting Rule 56 may be relied on for an understanding of the operation of the summary disposition rule.1/ Thus, in Adickes v.
Kress & Co_., 389 U.S. 144, 157 (1970), t:.? Supreme Court held that the party seeking summary judgment has "the burden of showing the absence of a genuine issue as to any material fact."1/ To meet this burden, the movant must eliminate any real doubt as to the existence of any genuine issue of material fact.1/ To further this goal, the summary disposition
-1/
Alabama Power Company (Joseph M. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).
-2/
See also Cleveland Electric Illuminating Co. (Perry, Units 1 and 2),
AEKB 4TJ, 6 NRC 741, 752-54 (1977).
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Poller v. Columbia Broadcasting Co., 368 U.S. 464, 468 (1962);
Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627 (1944).
rule provides that all material facts, set oct in the statement manda-torily accompanying summary disposition motions, will be deemed to be ddmitted unless Controverted by the opposing party.
10 C.F.R. 6 2.749(a).
Any other party may serve an answer supporting or opposing the motion for summary disposition.
10 C.F.R. Q 2.749(a). Attached to a motion opposing suramary disposition must be a separate, short, 6nd concise state-ment of the material facts as to which it is contended that there exists a genuine issue to be heard.
10 C.F.R. Q 2.749(a). A material fact is one which may affect the outcome of the litigation.S/ The opposing party need not show that it would prevail on the issues, but only that there are genuine material issues to be tried.5/ Furthermore, the record and affida-vits supporting and opposing the motion must be viewed in the light most favorable to the party opposing the motion.5/ Finally, the proponent of a motion for suunary disposition must meet its burden of establishing that it is entitled to judgment as a matter of law even if the opponent 4/
Mutual Fund Investors, Inc. v. Putnam Mgt. Co., 533 F.2d 620, 624 (9th Cir. 1977).
j/
American Manufacturers Mut. Ins. Co. v. American Broadcasting -
Paramount Theaters, Inc., 388 F.2d 272, 280 (2d Cir. 1976).
p/
See Public Service Co. of New Hamphira (Seaorook Statiun, Units 1 and 2), LBP-74-36, 7 AEC 877 (1974).
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. of such a motion fails to submit evidence controverting the conclusions reached in documents submitted in support of the inotion.E In a recent Statement of Policy, the Commission emphasized the availability of summary disposition in appropriate cases, as a means of expediting the hearing process.
In Stateme_nt of_ Policy on _ Conduct of Licensing Proceedings, 46 Fed. M. 28533 (May 27,1981), the Commission stated as follows:
In exercising its authority to regulate the coursa of a hearing, the boards should encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues.
46 Fed. M. at 28535.
As was stated previously by the Appeal Board, the summary disposition rule provides "an efficacious means of avoiding unnecessary and possibly time consuming hearings on demonstrably insub-stantial issues." Houston Lighting and Power Co. ( Allens Creek Nuclear Generating Station, Unit 1) ALAB-590,11 NRC 542, 550 (1980).
As the Appeal Board noted recently, a hearing on each issue raised "is not inevitable," but " wholly depends upon the ability of the intervenors to demonstrate the existence of a genuine issue of material fact...."
l Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 7_/
Cleveland Electric Illuminating Co., (Perry, Units 1 and 2), ALAB-443, 7 NRC 741, 753-54 (1977).
Courts have, however, granted motions for summary judgment even though certain facts have been disputed when the disputed facts were found not material to the resolution of the legal issues presented.
Riedel v. Atlas Van Lines, 272 F.2d 901, cert. denied, 362 U.S. 942 (1960); Newark Morning 905 (8th Cir.1959) Tf67. Supp. 689, 693 (D.N.J.1975); Aluminum Ledger Co. v. U.S.,
Co. of America v. Burlington Truck Lines, Inc., 342 F. Supp. 166, 175 (N.D. Ill.1972).
. and 3), ALAB-654, 14 NRL (Sept.11,1981) (slip. op., at 4). A party cannot avoid summary disposition "'on the mere hope that at trial he will be able to discredit movant's evidence,'" nor may a party "'go to trial on the vague supposition that something may turn up.'"
Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246, 248 (1975), quoting 6 Moore's Federal Practice 6 56.15[3] and e
[4].
III. ARGUMENT Joint Intervenors' Contention I-B asserts that cracking in concrete structures at the Callaway Plant will affect the safe operation of the facility.
Contention I-B(1) focuses on a crack discovered in the reactor cavity moat area in May 1977. Although the contention concedes that repairs were performed on the crack, it charges that NRC Staff personnel were unable to physically inspect the repair work.
For the reasons set forth in this motion, the Staff concludes that this contention fails to raise any genuine issue of material fact. The Staff further concludes that the attached Affidavit of Anthony A. Varela and the attached Statement of Material Facts as to Which There is no Genuine f
Issta n be Heard, when read together with this iaotion, show that the Staff is entitled to a decision in its favor as a matter o; 13%
Union Electric reported the existence of the ciack by telephone co the NRC Region III office on May 10,19.
At that time, the Applicant considered the crack a potentially reportable significant deficiency l
l l
under 10 C.F.R. % 50.55(e).E A Nonconformance Report was filled out (NCR 2-0651-C-A), and Applicant initiated an investigation into the cause of the crack.
The section of the reactor base mat that contained the crack was poured in April 1977.
NRC inspectors were present during the lengthy concrete placement and were satisfied that an adequate job had been done. (Varela Affidavit,13). Subsequent to the placement, steel liner plate was welded to a wide-flange steel member which had been embedded in the concrete to serve as an anchor for the liner plate. The embedded member is situated circumferentially 270 degrees surrounding the reactor vessel moat. The crack in the concrete was discovered the day following completion of the welding. The crack was on the outside of the embedded member and tracked the member's arc around the moat.
(Varela Affidavit, 11 4, 5).
The Staff and the Applicant believe the crack to have been caused by post-weld contraction of the liner attached to the embedded member, thereby pullir.g the member inward towards the moat and causing the crack in the concrete outside of the member.
The heat impact of the weld was I
8_/
Section 50.55(e) requires holders of construction permits to notify the NRC of "each deficiency found in design and construction, which, were it to have remained uncorrected, could have affected adversely the safety of operations of the nuclear power plant at any time throughout the expected lifetime of the plant..." Union Electric and its architect-engineer (Bechtel) later concluded that the crack in the reactor moat concrete would not have adversely affected the safety of the plant even if it had remained uncorrected. The NRC Staff agrees with this assessment of the crack's safety significance.
(Varela Affidavit,18).
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1 augmented by the fact that the welding was dor,e continuously, without any stagger in the weld sequence, over the complete circumferential length of the embedded member (approximately 65 feet).
(Varela Af fidavi t,1 6).
The recommended repair of the crack, as set forth in NCR 2-0631-C-A, consistes of the complete removal (by chipping) of the cracked area and the replacement of the removed concrete in a subsequent concrete placement (scheduled to cover the liner plate). This placement occurred on June 2, 1977.
In addition, Union Electric took corrective actions (outlined in NRC Report 50-483/77-06) to ensure that future welding perfomed on embedded steel would not result in similar cracks.
(Varela Affidavit,117, 9).
Although no NRC inspector physically inspected the repair of the crack, a Staff inspector (Mr. Anthony A. Varela) did visually observe that the reolacement concrete was sound.
Mr. Varela also reviewed qual'.tr control documentation and interviewed responsible quality control personnel.
In addition, the Staff notes that the original cracking was not caused by any deficiencies in the concrete placement process.
In the Staff's view, there is no reason to believe that the June 2 concrete placement was not done properly.
(Varela Affidavit, 1 10).
IV. CONCLUSION Based on the foregoing, the NRC Staff believes that there is no genuine issue as to any material fact regarding the concrete crack in the reactor moat area and its repair.
Thus, the Staff concludes that l
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sucunary disposition of Contention I-B(1) should be granted in its favor as a matter of law in accordance with 10 C.F.R. 9 2.749.
Respectfully submitted, Robert G. Perlis Counsel for NRC Staff g
Roy P. Lessy Deputy Assistant Chief Hearing Counsel Dated at Bethesda, liaryland this 7th day of October,1981.
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STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS N0 GENUINE ISSUE TO BE HEARD 1.
Concrete for the section of the reactor cavity moat area that contains the crack that is the object of Joint Intervenors' Contention I-B(1) was poured in April 1977. No cracking occurred in the days immediately following the placement of the concrete.
2.
In early May 1977, steel liner plate was welded to a wide-flange steel member which had been embedded in the reactor moat area concrete to serve as an anchor for the liner plant. The enbedded member is 1
approximately 65 feet long and is situated circumferentially 270 degrees surrounding the moat. All the welding of the liner to the embedded member was done without any interruption or stagger in the well process.
3.
The crack in the concrete was discovered the day following the completion of the welding of the liner to the embedded member. The crack was on the outside of the embedded member and tracked the member's arc around the moat.
4.
Applicant inmediately identified the crack as a potentially reportable deficiency under 10 C.F.R. s 50.55(e).
Later review indicated that the crack was not reportable and that it would not have adversely affected the safe operftfon of the plant even if it had not been repaired.
5.
The crack was cause by the post-weld contraction of the liner plate.
This contraction pulled the embedded member inward towards the moat, causing the crack in the concrete outside of the member.
6.
The cracked concrete was chipped away, and the area from which the crack was removed was refilled during the next place of concrete in the reactor moat area on June 2, 1977.
2-7.
The replacement concrete was visually observed by a Staff inspector to be sou..J.
8.
There is no reason to believe that the repair of i
the cracked area was iradequate in any way.
9.
The occurrence of the crack does not evidence any deficiencies in Applicant's quality assurance program. The crack was quickly identified, its cause ascertained, adequate repairs were made, and steps were taken to ensure that future welding woula not result in similar cracks.
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