ML20011A506
| ML20011A506 | |
| 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 | |
| ISSUANCES-OL, NUDOCS 8110130494 | |
| Download: ML20011A506 (8) | |
Text
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UNITED STATES OF AMERICA 10/7/81 NUCLEAR REGULATORY COMMISS1014 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
UllION ELECTRIC COMPANY Docket No. 50-483 OL 3
(Callaway Plant, Unit 1
)
NRC STAFF MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVENORS' CONTENTION 1-D 1.
INTRODUCTION In the Special Prehearing Conference Order of April' 21, 1981, the Licensing Board admitted Joint Intervenors' Contention I-D which alleged under the heading of Failure of the Quality Assurance Program:
D.
Concrete Cover There exist many areas where concrete coverage of reinforcing bars in concrete walls and floor; at the Callaway Plant does not adhere to requirements.
Bechtel Power Corporation's interpretation of the cover requirements was that minimum cover require-ments cauld be reduced by one-third, but the NRC stated W a meeting between NRC, UE, Bechtel, and Dani i inter-national personnel on January 23, 1978, tha' no reduction of the two-inch cover minimum is sweptable. However, the NRC indicated that it would be acceptable "if the cover requirements were fully met in the area of the sixth lif t, utilizing the fif th lift as a transition area." (See, NRC Report No. 50-483/77-11, pp. 10-11).
Some examples of.onadherence to concrete cover requirements are as follows:
1.
At 340 degrees azimuth, vertical reinforce-ment bars and supporting bars for the horizontal tenidon sheathing in the 3rd lift of the reactor containment wall had concrett: cover "less than that specified by NRC requirements, but within the concrete cover requirements as interpreted by licerises and contractors."
(See, NRC Report No. 50-483/77-11, pp. 4 and 9-11).
2.
NRC inspectors observed the preplacement pre-paration of the fourth lift of the exterior wall of
~ 8110130494 811007 PDR ADOCK 0500C483 C
the Reactor Containmer Building, finding 14 unacceptable items, in half of which concrete cover was less than the 2 inch minimum required or more than tra 9.6 inch maxinum required. These items include instances where the concrete cover is as small as 5/8 of an inch (at azimuth 210 degrees) and as great as 12 inches (at azimuth 260 degrees).
Some items were corrected, and the rest were within the range judged to be acceptable below the sixth lift because of the one-third placement tolerance.
(See, NRC Report No. 50-483/78-01, pp. 9-11).
The HRC Staff asserts that Contention I-D presents no genuine issue of material fact and that the Staff is entitled to a decision in its favor as a matter of law.
Section II of this pleading will oiscuss generally the law applicable to motions for summary disposition.Section III will set forth the Staff's reasons for concluding that Contention I-D raises no genuine issue of material fact. Attached to this motion is the Affidavit l
of Eugene J. Gallagher and the Statement of Material Fact; as to Which There Is No Genuine !ssue to be Heard.
l l
II. GENERAL P0INTS OF LAW l
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. 9 2.749.
As the Commission's summary disposition rule is analogous to Rule 56 of the Fed'eral Rules of Civil Procedure (sununary judgment), Federal court decisions interpreting Rule 56 may be relied on for an understanding of the operation of the strary disposition rule.M Thus, in Adickes v.
y Alabama Power Company (Joseph M. Farley, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).
l
i
-b-Kress & Co., 389 U.S. 144, 157 (1970), the Supreme Court held that the party seeking summary judgmerit has "the burden of showing the absence 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.M To further this goal, the summary disposition rule provides that all material facts, set out in the statement mandatorily accompanying summary disposition motions, will be deemed to be admitted unless controverted by the opposing party.
10 C.F.R.
b 2.749(a).
Any other carty may serve an answer supporting or opposin:: the motion for summary disposition.
10 C.F.R. 9 2.749(a). Attached to a motion opposing summary disposition must be a separate, short, and concise statement of the material fact 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.O The opposing party need not show that it would prevail on the issues, but only that there are genuine material issues to be tried. l Furthermore, the record and affidavits supporting and opposing the motion must be viewed in the light most favorable to the party oppos1hg the motion.0l y
See & Cleveland Electric Illuminathg Co. (Perry, Units 1 and 2),
ALAB-433, 6 HRC 741, 752-54 (1977).
y Poller v. Columbia Broadcasting Co., 368 U.S. 464, 468 (1962);
Sartor v. Arkanses Natural Gas Corp., 321 U.S. 620, 627 (1944).
4.]
Hutual Fund Investors, Inc. v. Putnam Mgt. Co., 533 F.2d 620, 624 (9th Cir.1977).
5f American Manufacturers Mut. Ins. Co. v. American Broadcasting -
Paramount Theaters, Inc., 388 F.2d 272, 280 (2d Cir.1976).
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See Public Service Co. of New Hamphire (Seabrook Station, Units 1 and 2), LBP-74-36, 7 AEC 877 (1974).
Finally, the proponent of a motion for summary dispositf an must meet its burden of establishing that it is entitled to judgment as a matter of law even if the opponent of such a motin fails to submit evidence contrcurting the conclusions reached in documents submitted in support of the motion.1/
In a rer.ent Statement of Policy, the Commission emphasized the availability of summary disposition in appropriate cases, as a means of expediting the hearinc Nocess.
In Statement of Policy on Conduct of Licensing Proceedings, V Fed. RS. 28533 (May 27, 1981), the Commission stated as follows:
In exercising its authority to regulate the course of a hearing, the boards should encouro9a 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. Reg. at 28535.
As was stated previously by the Appeal Board, the summary disposition rule provides "3n efficacious means of avoiding unnecessary and possibly time consuming hearings on demonstrably insub-stantial issues." Houston Lightin i 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
-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 d'souted facts were found not material to the resolution of the legal issues presented.
Riedel v. Atlas Van Lines, 272 F.2d 901, 905 (8th Cir. 1959) cert. denied, 362 U.S. 942 (1960); Newark Horning Ledger Co. v. U.S., TITT.- Lpo. 689, 693 (D.N.J. 1975), Aluminum Co. of America v. Burlington Truck Lines, Inc., 342 F. Supp.166, 175 (N D. Ill.1972).
to demonstrate the existence of a genuine issue of material fact...."
Philadelphia Electric Co. (Peach Bottom Atcmic Power Statian, Units 2 and 3), ALAB-654, 14 NRC
($ept.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 suppositica that something may turn up.'"
Gulf States Uticities Co. (River Bend Station, Urtits 1 and 2), LBP-75-10, 1 NRC 246, 248 (1975), quotinJ 6 Moore's Federal Practice 5 56.15[3] and
[G III.
ARGUMENT Contention I-D asserts that there are many areas at she plant where concrete coverage of reinforcing bars in concrete walls and floors does not adhere to requirements. TY :ontention specifically identifies the third and fourth lifts of the reactor containment wall as areas where concrete cover requirements were not met.
For the reasons set forth below, the Staff concludes that Contention I-D fails to raise any genuine issue of material fact. The Staff Further concludes the attached Affadavit of Eugene J. Gallagher and the attached Statement of Material Facts as to which there is no Jenuine Issue to be Heard, when read together with this motion, show that the Staff is entitled to a decision in its favor as a matter of law.
ASME Code requirements for placement of concrete cover af reinforce-ment steel spec.ify a minimta cover of two inches and a maximum cover of one-fifth the thickness of the concrete section.
(ASME Sections CC-3533.1 and CC-3534 of Appendix C to BC-TOP-5A). There is no dispute that these cover requirements were not met in certain arsas belcw the sixth lift of
the containment wall. At the time of the placements of ti.e first three lifts, Applicant and its contractors interpreted ASME Section III, Division 2 Concrete Reactor Vessels and Containments, as allowing a one-third reduction of coverage requirements. This matter was brought to the Staff's attention, and a meeting was h-id between members of the Staff and Applicant's repre-sentatives.
Following this meeting, the Staff was in frequent correspondence with the Applicant on this matter.
It was the Staft's position that the ASME code allowed no reduction of the cover, and that the Applicent.:ould use the fifth lift as a transition stage but would have te meet bcih the minimum and the maximua requirements by the sixth lift. The Staff did, however, indicate that exceptions to the maximum requirement, where
..ecessary, could be sought.
(Attachment 3, Report 78-01, Enclosure 1,
- p. 8). The applicant accepted the Staff view and was in compliance with the two inch minimum at all places above the fifti lift. Two exceptions were sought to the maximum requirement and, after appropriate Staff review, were granted.
(Gallagher Affidavit at 3; Attachments 7 and 8). The Staff stresses that Applicant's failure to adhere to the ASME cover require-ments below the sixth lift was not the resuit of sloppy workmanship or quality assurance, but was due to their interpretation of the relevant section of the ASME code.
Intervenors do not allege that the use of a one-third reduction below the sixth lift presents a safety problem.
The minimum cover is designed to protect steel reinforcement bars from exposure.
The maximum cover is designed to prevent crecking urder loading ccnditions.
In the Staff's view, the cover in place below the sixth lift will adequately perform its intended function and will not adversely affect the
structural integrf ty of the reactor building over the life of the plant (Gallagher Affidavit at 4). floreover, the Staff does not believe the existing concrete cover below the sixth lift requires any corrective action.
j (Gallagher Affiduit at 4).
IV.
CONCLUSION Based on the foregoing, the NRC Staff believes it is clearly demon-strated that there is no genuine issue as to any material fact regaiding l
the reduction of concrete cover requirements below the sixto lift of the e.ontainment building. Thus, the Staff concludes that Sumary Disposition of Contention I-D should be granted in its fcyor as a matter of law in accordance with 10 C.F.R. Q 2.749.
Respectfully submitted, hY Robert G. Perlis
(:aunsel for HRC 5taff a
Roy P. Lessy Deputy Assistant Chief Hearing Counsel l
I Dated at Bethesda, Mary'end this 7th day of October,1981.
STATEMENT OF IMTERIAL FACTS AS TO WHICH THERE IS NO GENUINE ISSUE TO BE HEARD 1.
At the time of the concrete placements of the first thret lifts of the reactor containment wall, Applicant and its contractors interpreted the applicable ASME code as allowing for a one-third reduction in placement tolerance for concrete ccver of reinforced steel.
2.
Before concrete for the fourth lift was poured, mer..bers of the HRC Staff met with representatives of the Applicant to discuss App'.icant's interpretation of the cover requirements.
3.
As a result of this meeting and the correspondence which followed, Applicant agreed to be in compliance with the two inch cover minimum by the sixth lift, using the fifth lift as a transition stage.
4.
Applicant also agreed to comply with maximum cover requirements, except that a provision was made allowing Applicant to request exceptions to the maximum where necessary.
5.
Concrete pours after the sixth lift adhered to the two-inch minimum requirement in all places.
6.
Two exceptions to the maximum requirement were granted by tne NRC based on a case h,v-Case evaluation.
7.
The application of the one-third reduction in cover requirements, where used, does not jeopardize the safe operation of the plant.
8.
Because the instanccs of reduction of coicrete coverage resulted from Applicant's interpretation of the applicabl? ASME code, and not i
from any construction defects, this does not demonstrate a cognizable issue with respect to the Quality Assurance Program.
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