ML20030C360
| ML20030C360 | |
| Person / Time | |
|---|---|
| Site: | Waterford  |
| Issue date: | 08/21/1981 |
| From: | Blake E ARKANSAS POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20030C353 | List: |
| References | |
| NUDOCS 8108260019 | |
| Download: ML20030C360 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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l LOUISIANA POWER & LIGHT COMPANY
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Docket No. 50-382 I
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(Waterford Steam Electric
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Station, Unit 3)
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BRIEF IN SUPPORT OF APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVENOBc' CONTENTION 22 (SAFETY-RELATED CedCRETE) l I.
INTRODUCTION Louisiana Power & Light Company
(" Applicant") submits this brief in support of its motion for summary disposition of Joint Intervenors' Contention 22, which makes the following allegation:
22.
Applicant has failed to discover, acknow-ledge, report or remedy defects in. safety related concrete construction.
As shown below, there is no genuine issue as to any fact material to this contention, and Applicant is entitled to have the contention dismissed as a matter of law.
The Affidavit of T'homas F. Gerrets filed with this motion demonstrates the complete absence of any factual basis for Contention 22, and Joint Intervenors have not come forward with any evidence to support their' allegations.
Accordingly, the contention is ripe for summary disposition.
9108260019 910821 A PDR ADOCK 05000382 l
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II.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND As originally proposed on April 11, 1979, Joint Intervenors' Contention 22 was as follows:
22.
Applicant has failed to discover, acknowledge, report or remedy defects in materials, construction and workmanship such as improperly poured and set concrete and concrete poured without required reinforce-ment during the fabrication of the contain-ment vessel, (reactor vessel) and/or related integral systems.
Both the Applicant and the NRC Staff opposed the contention on the ground that it failed to set forth any basis for the allegations.
At the Special Prehearing Conference on April 26, 1979, counsel for Joint Intervenors admitted that he had no specific basis for t
1 Contention 22 other than a newspaper report quoting anonymous sources, and he agreed to abandon the contention if, after discovery, he was unable to prove any facts in support of his allegations.
In pertinent part, counsel stated:
MR. JONES [ counsel for Joint Intervenors] :
Mr. Chairman, at the outset I would like to say that I wish I had a more specific basis on which to assert Contention 22.
I would also like to make the Board aware of th'e fact that this is the most difficult contention which we have drawn and filed.
The reason for this being, as I'm sure you, gentlemen, have heard before, it's a very easy thing for any construction employee to make allegations of this type.
I have advised the Petitioners that I would not become a party to such a contention as this in the absence of a specific allegation or an affidavit from a spe-cified individual.
What caused us to change our position was the fact that there was a report' in one of the evening newspapers approximately two weeks ago at the height of the public concern about Three Mile Island.
And we believe that based on the newspaper reports, which appeared _ _ _
and are a matter of record--I would be glad to append that report or reference it as part of the contention--that there is a significant and substantial enough basis to warrant the Peti-tioners, as a group of public citizens, to be allowed to go forward at least in a discovery phase.
If we can' t prove anything--and very frankly I hope to God we c:n't prove anything--
with regard to this contention, because this is a contention which gives me the most serious difficulty.
Please believe me, we would be more than happy to abandon it.
MR. TROWBRIDGE [ counsel for Applicant):
Mr. Jones, I didn' t hear your last sentence, something about abandoning it.
MR. JONES:
In the event that our--assuming the Board will accept this as a contention, we'll go on discovery.
If we can't prove any-thing, I would be more than happy to abandon this.
Transcript at 102-03 (emphasis added).
On September 12, 1979, the Licensing Board issued nn order ruling on the admissibility of the intervenors' various contentions.
With respect to Contention 22, the Board acknowledged the vagueness of the allegations and pointed out that an NRC investigation had revealed no substantial basis for the newspaper report that gave rise to the contention.
A copy of the NRC inspection report is attached as Exhibit G to the Affidavit of Thomas F. Gerrets filed in support of this motion.
Nevertheless, the Licensing Board modified the wording of Contention 22 and admitted it as rephrased.
The Board also suggested that a motion for summary disposition could be filed upon completion of discovery:
We are loathe to admit any contention founded on purported allegations of unidentified individuals.
On the other hand, howeve r, a por-tion of the contention relating to safety related concrete construction is reasonably specific and perhaps may be fleshed out upon use of the discovery procedure.
Further, after discovery has been concluded, in the event the Joint Petitioners do not withdraw this contention, Applicant and/or Staff may move for summary disposition pursuant to 10 C.F.R. S 2.749.
In l
sum, the contention is specific enough to evoke our concern.
The contention, as rephrased by 1
the Board, is admitted and reads as follows:
" Applicant has failed to discover, acknowledge, report or remedy defects in safety related concrete construction."
Sept. 12 Order, at 8 (emphasis added).
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On January 7, 1980, Applicant answered detailed interrogatories served by Joint Intervenors concerning alleged defects in safety-l t
related concrete.
On January 18, 1980, Joint Intervenors served answers to the NRC Staff's interrogatories on Contention 22.
The l
interrogatories requested Joint Intervenors to identify specifically I
all alleged defects in safety-related concrete and to provide other information in support of Contention 22.
In response, Joint Intervenors l
l identified no defects in concrete and provided none of the information sought.
Rather, Joint Intervenors stated that the interrogatories were " unanswerable."
4 i
The period for discovery on Contention 22 is now closed, and Joint Intervenors still have provii.ed no factual support for their allegations.
As suggested in th Licensing Board's Order of September 12, 1979, the time has now come for summary disposition of Contention 22.
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4 III.
ARGUMENT The standards governing summary disposition motions in an NRC proceeding are now well established and are quite similar to the standards applied under Rule 56 of the Federal Rules of Civil Procedure.
Alabama Power Co. (Joseph M. farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 217 (1974); see Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B), ALAB-554, 10 N.R.C.
15, 20, n.17 (1979).
Where, as here, a properly supported motion for summary disposition.is made, the party opposing the motion may not simply rely upon the bare alle-gations of its contention.
Rather, it must come forward with substantial facts in the form of admissible evidence establishing that a genuine issue of fact remains to be heard.
10 C.F.R.
S 2.749 (b) ;
Virginia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 N.R.C.
451, 453 (1980).
A party cannot avoid summary disposition on the basis of guesses or suspicions or on the hope that at the hearing the Appli-cant's evidence may be discredited or that "something may turn up."
Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
LBP-75-10, 1 N.R.C.
246, 248 (1975).
If the party opposing the l
motion fails to make the proper showing, then summary disposition l
must be granted.
10 C.F.R.
S 2.749(b).
As the Appeal Board recently emphasized, " summary disposition procedures provide in l
reality as well as in theory, an efficacious means of avoiding unne-l l
cessary and possibly time-consuming hearings on demonstrably insub-l stantial issues Houston Lighting & Power Co. (Allens Creek l
l..
Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C.
542, 550 (1980).
Similarly, the Commission itself has recently issued its Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, directing that "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. Reg. 28,535 (May 27, 1981).
Applying the foregoing standards to this case, it is clear that Applicant's motion for summary disposition should be granted and that Joint Inter'/enors ' Contention 22 should be dismissed.
The Affidavit of Thomas F.
Gerrets filed in support of this motion describes in detail the stringent Quality Assurance (QA) and Quality Control (QC) programs implemented at Waterford 3 by Applicant, by the architect-engineer and construction manager, Ebasco Services, j
Inc., and by the ccncrete subcontractors, J.
A.
Jones Construction Company and Fegles Power Service.
The affidavit describes the concrete construction procedures that were followed, as well as the numerous tests and inspections that were performed at every stage of construction from procurement of materials through the mixing of concrete and the placement of the concrete at the pour site.
All tests, inspections and other QA/QC functions have been thoroughly documented, and frequent audits have been performed to i
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ensure continuing compliance with proper QA/QC procedures.
l In addition, the Gerrets Affidavit describes the QA/QC experience with safety-related concrete during construction.
Only l.
e four significant deficiencies in safety-related concrete were discovered during construction, and those were all duly reported to the NRC and corrected by Applicant to the satisfaction of the NRC's inspectors.
The NRC's independent inspections of Waterford 3 revealed no significant defects in any of the safety-related concrete at the plant.
The problems identified by the NRC's inspections--all of which were relatively minor--have been corrected by Applicant and closed out following reinspection by the NRC.
Similarly, there is no substance to the newspaper report that initially prompted Contention 22.
That report was based on a purported conversation with certain unnamed con-struction workers at a " lounge" near the plant site.
The workers were apparently working on the Intake Structure, which is not a safety-related structure, and they raised some questions about the concrete placement procedures being followed at Waterford 3.
The allegations in the newspaper article were thoroughly investi-gated by Applicant and the NRC, and both concluded that the alle-gations lacked any substantial factual basis.
Finally, the Gerrets Affidavit establishes that Applicant is aware of no significant uncorrected defect in any of the safety-related concrete at Waterford 3.
Joint Intervenors have offered nothing that controverts this statemerc under oath by Mr. Gerrets.
It has now been more than two years since Contention 22 was filed.
During that time, Joint Intervenors have had full discovery and yet they still have not come forward with any specific alleged defect in safety-related concrete or any other factual basis for their contention.
Nor have they offered any evidence that would.
raise a genuine issue of material fact bearing upon Contention 22.
Under the circumstances, this is clearly one of those " demonstrably insubstantial issues" that should be decided on a summary disposi-l tion motion and should not be the subject of unnecessary and time-consuming hearings.
IV.
CONCLUSION For all the reasons stated above, Applicant submits that its motion for summary disposition should be granted and that Joint Intervenors' Contention 22 should be dismissed.
DATED:
August 21, 1981.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, H.W.
Washington, D.C.
20036 (202) 822-1000 BY:
Ernest L.
Blake, Jr.
James B.
Hamlin Counsel for Applicant Louisihna Power & Light Company
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