ML20031C641
| ML20031C641 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 10/02/1981 |
| From: | Galen T SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20031C639 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8110070376 | |
| Download: ML20031C641 (11) | |
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Octob r 2, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOA.lD In the Matter of
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UNION ELECTRIC COMPANY
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Docket No. STN 50-483 OL
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(Callaway Plant, Unit 1)
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BRIEF IN SUPPORT OF APPLICANT.'S MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTI RVENORS '
CONTENTION NO. IB (CONCRETE CRACKS)
I.
INTRODUCTION Union Electric Company
(" Applicant") submits this brief in support of its motion for summary disposition of Joint Intervenors' Contention No. IB, which alleges that there are cracks in concrete structures at the Callaway Plant which will affect its safe operation.
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 Affidavits of Eugene W.
Thomas and R.
David Neal filed with this motion demonstrate the complete lack of any factual basis for this Contention No. IB, and Joint Intervenors have acknowledged that they have no evidence to support the.ir allegations.
Accordingly, summary disposition of this contention is appropriate.
8110070376 811002 PDR ADOCK 05000483 0
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II.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND Joint Intervenors' Contention No. IB as proposed on March 6, 1981, and as revised on March 24, 1981, reads as follows:
There exist several cracks in concrete st'uctures at the Callaway Plant that affect i^s safe operation.
Examples include, but are not necessarily limited to, the following:
1.
A crack up to 1/4 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 de-grees around the circumference.
Upon visiting the site in June 1977, an NRC inspector was unable to view repairs per-formed on this crack because work has progressed to an extent that made physical inspection of the repair impossible.
(See, NRC Report No. 50-483/77-06,.pp. 20-21.)
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The NRC was notified by a Callaway l
Plant ironworker in January 1978 that a lift I
of the north wall of the Control Building had been poured above a part of the wall which contained a crack approximately 12 feet long i
and 8 inches deeo, and which extended from the inside to the outside of the wall and which apparently had been overlooked by the Applicant's quality assurance personnel.
(See, NRC Report No. 50-483/78-01, p. 20.)
Neither Applicant nor the NRC Staff objected to this contention (or ".he other subparts of Contention No.1) except for an objectien to the language in the contention to the effect that the deficiencies listed were not intended to be i
exhaustive of all such allegations which Joint Intervenors might seek to place in issue.
The Board in itn April 21, 1981 l 9
Special Prehearing Confernce Order, upheld this objection concluding that:
.. 10 C.F.R. 2.714(b) requires that petitioner 's contentions must be specified at the time of the special prehearing conference.
This re-1 quirement is necessary so that controversies within the jurisdiction of the Board are framed and also to provide the applicant and other parties with knowledge of the issues they will face in the proceeding.
If ad-ditional contentions are to be proposed in the future, they will have to receive the Board's approval at that time.
To date, Joint Intervenors have presented no other " examples" of concrete cracks to support their Contention No. IB, let alone receive Board approval of such additional allegations.
Accordingly it is submitted that consideration of Contention No. IB is properly limited to the safety significance of the circumferential crack in the reactor cavity meat area and the cracks in the Control Building walls.
In an effort to probe these allegations, Applicant served interrogatories on Joint Intervenors seeking the factual basis for their contention that these cracks will affect the safe operation of the Callaway Plant.
(See Appli-cant's Interrogatory Nos. 1B-6 and 1B-7 (First Set), and 1B-20 and 1B-22 (Second Set).)
Joint Intervenors' response to the initial interrogatory concerning the crack in the reactor cavity moat area (No. 1B-0) was as follows:
We believe UE cannot demon-strate that this crack will not affect the safe operation of the plant.
See NRC Report a 4
No. 50-483/77-06, pp. 20-21 (It was reported by UE by phone on May 10, 1977 that 'an investigation had been initiated to determine the safety-related significance i
of the crack.'
The outcome of this investi-gation is not mentioned in the report.)
Moreover, the failure to discover and inspect the crack in a timely manner evidenece a I
failure of the quality assurance program.1/
1 In response to Applicant's follow-up interrogatory on this j
item (No 1B-20) Joint Intervenors provided no further factual basis for their allegations, but rather stated:
Joint Intervenors have not lo-cated an engineer or other person who is l
both qualified and willing to answer this l
interrogatory for the record.
The burden l
of proof that this nonconformance will not affect the safe t,yeration of the Callaway Plant lies with the Applicant.
According to S103 (b) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S2133(b) (1970):
"The Commission shall issue such licenses on a non-exclusive basis to person applying therefor...
(2) who are equipped to observe and who agree to observe such safety standards to protect health and to minimize danger to life or property as the Commission may by rule establish..."
This would include compliance with the 10 CFR 50, Appendix A General Design Criteria and Appendix B Quality Assurance Criteria.
See also 10 CFR S2.732.
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In response to a second round interrogatory (No. 1B-21) seeking the factual basis for Joint Intervenors; state-ment in the Answer to Interrogatcry No. 1B-6(a) that the moat area crack was not discovered and inspected "in a timely manner," Joint Intervenors conceded that they have no facts to support this allegation and I
struck it from their answer.
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Similarly, in response to inquiries concerning the safety significance of the Control Building wall cracks, Joint Intervenors responded as follows:
IB-7(a).
We believe UE cannot demon-strate that this crack will not affect the safe operation of the plant.
Moreover, the fact that UE's quality assurance personnel overlooked the crack and allowed the next lift to be poured on top of it evidences a
failure of the quality assurance program.
See NRC Reporu Nos. 50-483/78-01 and 50-483/
78-03.2,/
Joint Intervenors have not lo-cated an engineer or other person who is both qualified and willing to answer this interrogatory for the record.
The burden of proof that this nonconformance will not affect the safe operation of the Callaway Plant lies with the Applicant.
According to S103(b) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. S2133 (b) (1970):
'The Commission shall issue such licenses on a non-exclusive basis to person applying therefor...
(2) who are equipped to observe and who agree to observe such safety standards to protect health and to minimize danger to life or property as the Commission may by rule cetablish...'
This would include compliance with the 10 CFR 50, Appendix A General Design Criteria and Appendix B Quality Assurance Criteria.
See also 10 CFR S2.732.
It is evident therefore that Joint Intervenors have failed to present any factual support for their contention.
j Applicant, on the other hand, has set forth affinnative
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Joint Intervenors have not withdrawn this allegation of a failure of the quality assurance program.
As demon-strated in tha Affidavits of Eugene W. Thomas and R.
David Neal, there was no such failure.,
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evidence demonstrating that the concrete cracks in the reactor cavity moat area and in the Control Building walls are structurally insignificant and will not affect the safe operation of the Callaway Plant.
Accordingly, this contention is ripe for senmary disposition.
III.
ARGUMENT The standards governing summary disposition mot'ons in an NRC proceeding are 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);
i 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 sum-mary disposition is made, the party opposing the motion may j
not simply rely upon the bare allegations of its contention.
Rather, it must come forward with substantial facts in the form of admissible evidence establinhing that a genuine issue of fact r ains to be heard.1 10 C.F.R.
S 2.749(b); Vp,; inia Electric & Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 N.R.C.
451, 453 (1980).
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A party cannot avoid summary disposition on the basis of guesses or suspicions or on the hope that at the hearing the Applicant's evidence may be discredited or that "something,
I 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 motion fails to make the proper showing, then summary disposition must be granted.
t 10 C.F.R. S 2.749 (b).3/
As the Appeal Board recently em-phasized, " summary disposition procedures provide in reality as well as in theory, an efficacious means of avoiding un-necessary and possibly time-consuming hearings on demon-strably insubstantial issues..."
Houston Lighting & Jower Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590, 11 N.R.C.
542, 550 (1980).
Similarly, the Com-mission 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 whera there is no genuine 3/
Contrary to the inference in many of Joint Intervenors' responses to Applicant's interrogatories (see, e.g.
Answers to Interrogatory Nos. 1B-20 and 1B-22, supra),
the fact that the Board has accepted a contention as admissible in a proceeding does not automatically guarantee that it will be litigated at the hearing.
Admission of a contention by the Board is not an ap-praisal of its merits, but rather a determination that the contention meets the criteria of specificity, asserted basis and relevance as well as the other re-quirements set forth in 10 C.F.R.
S 2. 714 (a).
The question of the contention's substance is for later resolution -- by way of summary disposition if the con-tention is shown not to present a genuine issue of fact to be heard.
Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 216, 217 (1974); Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-150, 6 AEC 811, 812 (1973); Missis-sippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973). _.
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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 Intervenors' Contention No. IB should be decided in Applicant's favor.
The Affidavit of Eugene W. Thomas filed in support of this motion estab-l i
lishes beyond question that neither the crack in the reactor l
cavity moat area nor the cracks in the Control Building walls are of any structural significance and that such cracks will i
not affect the safe operation of the Callaway Plant.
The circumferential crack in the reactor cavity moat l
l area was thoroughly inspected and its cause and possible ef-fect were fully investigated.
As detailed in the Thomas Affidavit, this localized crack was in an area of non-rein-forced and non-structural concrete whose primary function is fill material.
As such, even if the crack had gone undetected and unrepaired it would have had no effect on the structure performing its intended functions.
The crack, however, was repaired and is now in a condition at least as good as the original design requirement.
Joint Intervenors, as detailed above, have come I
forward with no substantive facts in the form of admissible l
l evidence to support their contention that this crack will in 1
i any manner affect the safe operation of the Callaway Plant.
Indeed they have acknowledge _ that they have not done so, just as they have acknowledged that they have no basis for their allegation that the discovery and dispositioning of this crack in some manner adversely reflects upon the quality assurance programs at Callaway.
Sinilarly, the Thomas Affidavit establishes that the Control Building cracks are of no structural significance.
Small cracks of this nature (less than 1/16 inch in width at the widest point) are expected to occur in reinforced concrete construction as a result primarily of volume changes and re-1 l
sulting strains associated with the drying shrinkage of con-crete during its normal curing process.
Because of this I
characteristic, however, the design methods used for reinforced concrete construction assume that the concrete will crack in this manner.
As indicated in the Thomas Affidavit, the Control Building walls are designed to serve their intended # unctions even if they were separated into individual vertical strips.
Again the Joint Intervenors have presented no sub-stantive evidence contradicting the facts set forth in the Thomas Affidavit nor in any way raising a factual issue as to the safety implications of the cracks in the Control Building walls.
The only issue they have raised concerns an allega-tion that Applicant's quality assurance personnel either over-looked or ignored such cracks and improperly allowed another
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lift of the Centrol Building wall to be poured over the area with such a crack.
As set forth in the Thomas Affidavit and in the Affidavit of R. David Neal, these cracks were not ig-nored or overlooked.
Since cracks of this minor nature are not uncommon and are of no structural significance, they are not required to be reported by quality control personnel un-less they exceed 1/16 inch in width.
None of the referenced cracks exceeded this width and indeed the majority were either hairline cracks or were less than 1/32 inch in width.
Furthermore, the very nature of the cracking process is such that the cracks identified during the NRC inspection may well not have existed at the time of earlier site inspections.
Since in the end none of these cracks were determined to be structurally significant and the only repairs made were for cosmetic reasons, the quality assurance / quality control program in no way failed to perform its functione properly.
- Finally, both the Thomas Affidavit and the Neal Affidavit establish that allowing subsequent lifts of the Control Building walls to be placed on top of portions containing these minor cracks I
was not improper and in no way hindered any repairs which were or might have been required.
Under these circumstances, the allegations concern-ing both the reactor cavity moat area crack and the cracks l
l in the Control Building walls clearly constitute " demonstrably insubstantial issues" which shon3d be decided on a motion for _
-o summary disposition and should not be the subject of an unnecessary and time-consuming hearing.
IV.
CONCLUSION By reason of the foregoing, and based upon the facts set forth in the Thomas Affidavit, the Neal Affidavit and Applicant's Statement of Material Facts, Applicant submits that its motion for summary disposition should be granted and that Joint Intervenors' Contention No. IB should be de-cided in Applicant's favor.
SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.
W.
Washington, D. C.
20036 Telephone:
202-822-1000 By M
dh-Thomas A.
Baxter Richard E. Galen Attorneys for Applicant Union Electric Company Dated:
Octobel 2, 1981 l
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