ML20011A482
| ML20011A482 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 10/07/1981 |
| From: | Lessy R, Perlis R NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC OFFICE OF INSPECTION & ENFORCEMENT (IE) |
| Shared Package | |
| ML20011A456 | List:
|
| References | |
| ISSUANCES-OL, NUDOCS 8110130468 | |
| Download: ML20011A482 (8) | |
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10/7/81 UNITED STATES OF AMERICA NUCLEAR REGULAT0nY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
UNION ELECTRIC COMPAN7 Docket No. 50-483 OL (Callaway Plant, Unit 1
)
NRC STAFF MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVENORS' CONTENTION 1-B(2J__
I.
INTR 00'JCTION In the Special Prehearing Conference Order of April 21, 1981, the Licensing Board admitted Joint Intervenors' Contention I-B(2) which alleged under the heading of Failure of the Quality Assaiance 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:
2.
The NRC was notified by a Callaway plant iron-worker in January 1978 that a lif t of the r. orth wall of the Control Building had been poured above a part of the wall which contained a crack approxi-mately 12 feet long and 8 inches deep, and which extended from the inside to the outside of the wall.
(See, NRC Report No. 50-483/78-01, p. 20).
In spite of its size and the existence of addi-tional cracks, the NRC Staff decided the crack wa, "an acceptable crack cause by normal concrete shrinkage."
(See, NRC Report No. 50-483/78-03,
- p. 3).
The NRC Staff asserts that Contention 'A (2) 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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Sectior: 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 3 raises no genuine issue of material fact. Attached to this motion is the Affidavit of Euc;.ne J. Gallagher and the Statement of Material Facts as to Which There Is No Genuine Issue to be Heard.
II. GENERAL P0 NTS OF LAW The Commission's Rules of Practice provide for sumr.;ary disposition of certain issues on the pleadings where the filir gs 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 anabgous 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.M Thus, in Adickes v.
Kress & Co., 389 U.S. 144, 157 (1970), the Supreme Court held that the party seeking summary judgment has "the burden of showing the utsence of a genuine issue as to any material fact."U To meet this burden, the movant must eliminate any real doubt as to the existence of any genuine issue of material fact.E To further this goal, the summary disposition y
Alabamc. 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),
ALAB-433, 6 NRC 741, 752-54 (1977).
3J Poller v. Columbia Broadcasting Co., 368 U.S. 464, 468 (1962);
Sartor v. Arka.isas Natural Gas Corp., 321 U.S. 620, 627 (1944).
i rule provides that all material facts, set out in the statement manda-torily accompanying summary disposition motions, will be deemed to be admitted unless c'ntroverted by the opposing party.
10 C.F.R. 9 2.749(a).
Any other party may serve an answer supporting or opposing the motion for sununary disposition.
10 C.F.R. 9 2.749(a). Attached to a motion opposing summary disposition must be a separate, short, and 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. 9 2.749(a). A material fact is one which may affect the outcome of the litigation.E The oppusing party need not show that it would prevafl on the issues, but only that there are genuine material issues to be tried.E 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.E Finally, the prcaonent of a motion for summary disposition must meet its burden of establishing that it is entitled to judgment as a matter of law even if the opponent y
Mutual Fund Investors, Inc. v. Putnam Mgt. Co., 533 F.2d 620, 624 (9th Cir.1977).
y American Manufacturers Mut. Ins. Co. v. American Broadcasting -
Paramount Theaters, Inc., 388 F.2d 272, 280 (2d Cir. 1976).
y See Public Service Lo. of flew Hamphire (Seabrook Station, Units 1 dnd ?), LBP-74-36, 7 AEC 87/ (1974).
of such a motion fails to submit evidence controverting the conclusions reached in documents submitted in support of the motion.1/
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 Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533 (May 27, 1981), the Commission stated as follows:
In exercising its authority to regulate the course of a hearing, the boards should encourage the parties to invoke the summary disposition procedure on issues where there is no genuir.e issue of material fact so thct evidentiary hearing time is not unnecessarily devoted to such issues.
46 Fed. Reg. 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." _H_ouston 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 issua of material fact...."
Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 i
-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, l
cert. denied, 362 U.S. 942 (1960); Newark Morning 905 (8th Cir. 1959) WTE F. 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).
l l
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and 3), ALAB-654, 14 NRC (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
[4].
III. ARGUMENT Joint Intervenors' Contention I alleges generally that the Applicant's quality assurance program was ineffective during construction of the plant, resulting in various identified construction defects which are said to jeopardize the safe operation of the plant.
Contention I-B(2) specifically focuses on crack-in the concrete of the north wall of the Control Building.
The contention asserts that the existence of these cracks evidences defi-ciencies in Applicant's quality assurance progam and threatens the safety of the plant.
For the reasons set forth below, the Staff concludes that Contention I-B(2) fails to raise any genuine issue of material fact. The l
Staff further concludes the attached Affadavit of Eugene J. oallagher and the attached Statement of Material Facts as to which there is no Genuine Issue to be Heard, when read together with this motion, show that the Staff l
l is entitled to a summary decision in its favor as a matter of law.
Cracking is a matter of routine in concrete structures. One of its l
principal causes is crying shrinkage (an unavoidable property of concrete).
l Such cracking does not affect the structural integrity of the concrete.
l Cracking also may develop as a result of concrete's relatisely low tensile strength.
(Gallagher Affidavit at 2-3).
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Applicant adopted work procedures designed to ensure that concrete cracks posad no safety problems at the site. Quality control inspectors were instructed to inspect concrete approximately thirty days subsequent to placement and report all cracks greater than one-sixteenth of an inch to the Area Civil Engineer. The Area Civil Engineer was instructed to examine cracks identified by the QC inspector, assess the crack's effect, if any, on the capability of the structure, and if he found the structural capability to be
'fected, to file a nonconformance report (NCR). Work Procedure-109, section 4.10 (Attachment 1).
The matter of the cracking in the concrete of the Control Building north wall first came to the Staff's attention as a result of information passed along by an ironworker at the Callaway facility. Staff inspectors visually examined the wall as part of a routine inspection conducted from January 10, 1978 through February 6,1978, and requested that the Applicant look into the matter and determine if any corrective acticn was indicated.
Inspection Report 50-483/78-01 ( Attachment 2), p. 20.
The Applicant's architect / engineer (Bechtel Power Corporation) there-upon evaluated the cracks, none of which was wider than one-sixteenth of an inch.
Such cracks were therefore so small as to be unreportable.
Bechtel concluded that the cracks were caused by normal concrete shrinkage, they would not impair the structural integrity of the wa'l, and no remedial actions were necessary.
NCR-2-2081-C-A ( Attachment 3); NCR-2-2173-C-A l
(Attachment 4). The Staff, after inspection and evaluation, agreed with this conclusion.
Inspection Report 50-483/78-03 (Attachment 5), p. 3.
In the Staff's view, the cracks occurred as a result of normal drying shrinkage i
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and are not load-related in any way. They have no structural significance, and they do not threaten the safe operation of the plant.
(Gallagher at 2-3).
The existence of cracks does not cflect adversely on quality control work at the site.
As explained earlier, work procedures in effect at the site required reporting of cracks 17aater than one-sixteenth of an inch in width to an arec engineer.
As none of the cracks in question was this wide, no reporting of i.he cracks or other corrective action was necessary.
IV. CONCLUSION Based on the foregoing, the HRC Staff believes it is clearly demon-strated thd there is no genuine issue as to any material fact regarding the cracking in the concrete of the Control Building's north wall. The cracking has no safety significance and does not reflect adversely on the quality control program at the Callaway site.
Respectfully submitted, Robert G. Perlis Counsel for NRC Staff Roy P. Lessy Deputy Assistant Chief Hearing Counsel l
Dated at Bethesda, Maryland l
this 7th day of October, 1981.
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STATEMENT OF MATERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE HEARD 1.
Cracking routinely occurs in concrete structures.
It is 9eaerally caused either by drying shrinkage or because concrete has relatively low tensile strength.
2.
Drying shrinkage is an unavoidable, inherent property of concrete and does not generally constitute a threat to the integrity of the concrete structure.
3.
Applicant adopted work procedures designed to identify cracks that might pose safety problems at the plant. Such procedures required cracks to be reported to the Area Civil Engineer only if the crack width exceeded one-sixteenth of an inch.
4.
As a result of allegations made to the Staff, the cracks in the l
control building were examined by Staff inspectors during an inspection of the site from January 10, 1978 through February 6,1978.
5.
The cracks in the Control Building north wall ranged in width frou one-sixteenth of an inch down to even smaller " hairline cracks." No crack was greater than one-sixteenth of an inch in width.
6.
The cracks in the wall were a result of normal shrinkage as the concrete dried.
7.
Such cracking does not affect the structural capability of the wall and jeopardizes neither the function of the wall nor the safe operation of the plant.
8.
Because the cracks were not greater than one-sixteenth of an inch in width, no quality control action was required.
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