ML20031C647
| ML20031C647 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 10/02/1981 |
| From: | Baxter T SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20031C639 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8110070393 | |
| Download: ML20031C647 (11) | |
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Octobsr 2, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE FEE ATOMIC SAFETY AND LICENSING BOARD 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 INTERVENORS' CONTENTION NO. I.D (CONCRETE COVER)
I.
INTRODUCTION Union Electric Company
(" Applicant") submits this brief in support of its motion for summary disposition of Joint Intervenors' Contention No.
I.D, which alleges that
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there are many areas where concrete coverage of reinforcing bars in concrete walls and floors at the Callaway Plant does not adhere to requirements.
As shown below, there is no genuine issue as to any fact material to this contention and Applicant is entitled to have the contention decided in its favor.
The Affidavits of Subir K.
Sen and R.
David Neal filed with this motion demonstrate the complete lack of any factual basis for this Contention No.
I.D, and Joint Intervenors have acknowledged that they have no cvidence to support their allegations.
Accordingly, summary disposi-tion of this contention is appropriate.
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II.
STATEMENT OF FACTS AND PROCEDURAL BACKGROUND j
Joint Intervenors' proposed Contention I.D states as follows in the March 6, 1981 Amended and Supplemental Joint Petition to Intervene:
l There exist many areas where concrete coverage of reinforcing bars in concrete walls and floors at the Callaway Plant does not adhere to requirements.
Bechtel Power Corporation's interpretation of the cover requirements was that minimum cover l
requirements could be reduced by one-third, but the NRC stated in a meeting between NRC, UE, Bechtel, and Daniel International per-l sonnel on January 23, 1978, that no reduction of the two-inch cover minimum is acceptable.
However, the NRC indicated that it would be acceptable "if the cover requirements were fully met in the area of the sixth lift, j
utilizing the fifth lift as a transition j
area."
(See, NRC Report No. 50-483/77-11, t
pp. 10-11).
Some examples of nonadherence to concrete cover requirements are as foliows:
1.
At 340 degrees azimuth, vertical reinforcement bars and supporting bars for i
the horizontal uendon sheathing in the 3rd l
lift of the reactor containment wall had
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concrete cover "less than that specified by NEC requirements, but within the concrete cover requirements as interpreted by licenses and contractors."
(See, NRC Report No.
l 50-483/77-11, pp. 4 and 9-11).
2.
NRC inspectors observed the preplace-ment preparation of the fourth lift of the exterior wall of the Reactor Containment Building, finding 14 unacceptable items, in half of which concrete cover was less than the 2 inch minimum required or more than the 9.6 inch maximum required.
These items include instances where the concrete cover l
is as small as 5/8 of an inch (at azimuth l
210 degrees) and as great as 12 inches (at
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l t
i
. azimuth 200 degrees).
Some items were cor-rected, and the rest were within the range judged to be acceptable below the sixth i
lift because of the one-third placement tolerance.
(See, NRC Report No. 50-483/78-01, pp. 9-11).
Neither Applicant nor the NRC Staff objected to this contention (or the other subparts of Contention No. 1) except for an objection to the language in the contentAon to the effect that the deficiencies listed were not intended to be exhaustive of all such allegations which Joint Intervenors might seek to place in issue.
The Board,in its April 21, 1981 Special Prehearing Conference 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-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 additional contentions are to be pro-posed in the future, they will have to receive the Board's approval at that time.
Joint Intervenors have advanced no other. examples of alleged nonadherence to concrete cover requirements.
Accordingly, Applicant submits that consideration of Con-tention No. I.D is properly limited to the stated examples of alleged nonadherence to concrete cover requirements in the reactor building wall.
In an effort to probe the basis for the contention, and for any implications to be drawn from the facts which
, underlie the contention, Applicant served interrogatories on Joint-Intervenors.
In their answers to Applicant's interrogatories, Joint Intervenors confirmed what the language of Conbaution I.D implies -- that the term " requirements" refers to the' NRC Staff's interpretation of the requirements even though, as the contention also states, the NRC Staff determined that it would be acceptable if the NRC Staff's interpretation of the requirements were fully met in the area of the sixth -
lift, utilizing the fifth lift as a transition area.
- See, e.g., Joint Intervenors ' Response to Applicant's Interroga-tory No. 1D-18 (Second Set).
Asked whether they contend that the alleged failure of concrete coverage to " adhere to requirements" constitutes or in any way relates to a failure in the quality assurance program at the callaway Plant, Joint Intervenors answered in the affirmative and explained that "[t]he very fact that l
requirements for concrete cover were either ignored or grossly l
l misunderstood indicates a failure of the quality assurance l
program."
Joint Intervenors' Supplemental Response to Applicant's Interrogatory No. 1-D6 (First Set).
Asked whether they contend that the alleged failure of concrete coverage to " adhere to requirements" will affect t'e safe operation of the Callaway Plant, Joint Intervenors answered in the af firmative and explained that "[wl e believe U.E. is unable to demonstrate that the failure to adhere to l
t
concrete coverage requirements will not affect the safe operation of the plant."
Joint Intervenors' Response to Applicant's Interrogatory No. 1D-7 (First Set).
In response to Applicant's follow-up interrogatory on this point (No. 1D-24), Joint Intervenors provided no further factual basis for their allegations, but rather stated:
Joint Intervenors have not located 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 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.
It is important to note that Joint Intervenors' interrogatory answers are signed by counsel alone.
It is evident therefore that Joint Intervenors have failed to present any factual support for their contention.
Applicant, on the other hand, has set forth affirmative evi-dence demonstrating that the application of concrete coverage requirements for the reactor building wall will not adversely affect the integrity of that structure or the safe operation l
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of the callaway Plant, and that it is not indicative of any l
quality assurance problem.
Accordingly, this contention is l
ripe for summary disposition.
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III.
ARGUM5dT l
i The standards governing summary disposition motions in an NRC proceeding are well established and are quite similar l
I 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 sum-mary disposition is made, the party opposing the motion may not simply rely upon the bare allegations 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 Applicant's evidence may be discredited or that "something may turn up."
Gulf States Utilities Co. (River Bend Station, t
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, l
i
. then summary disposition must be granted.
10 C.F.R. S 2.749(b).-1/
As the Appeal Board recently emphasized, " summary disposition procedures provide in reality as well as in theory, an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial i.ssues Hous*un Lighting &
Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-590, 11 N R.C.
542, 550 (1980).
Similarly, the Commission itself has recent ly issued its Statement cf Policy on Conduct 1
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 genuina issue of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues."
46 Fed. Reg. 28,535 (May 27, 1981).
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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 pro-ceeding does not automatically guarantee that it will be litigated at the hearing.
Admission of a contention by the Board is not an appraisal of its merits, but rather a deter-mination that the contention meets the criteria of specificity, asserted basis and relevance as well as the other requirements set fo rth in 10 C. F. R.
S 2. 714 (a).
The question of the con-tentioh's substance is for later resolution -- by way of summary disposition if the contention 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 Powar Company (Catawba Nuclear Station Units 1 and 2), ALAB-150, 6 AEC 311, 812 e
i (1973); Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
. Applying the foregoing standards to this case, it is clear that Applicant's motion for summary dispocition should be granted, and that part I.D of Joint Intervenors' Contention No. 1 should be decided in Applicant's favor.
The underlying facts, Applicant submits, are not in dispute here.
In the p.:ocess of investigating anonymous allegations that there had been failures to adhere to concrete cover requirements, it developed that Applicant and the NRC Staff held differing interpretations of the requirements applicable to the external wall of the reactor building.
The disagreement revolved around the question of tolerances -- not whether they are appropriate, but whether they apply to the minimum and maximum design figures specified, or whether they should be applied so that the cover is never less than the minimum design figure specified or greater than the maximum design figure specified.
The NRC Staff took i
the position that it would be acceptable if the cover require-l ments, as interpreted by the NRC Staff, were fully met in the l
area of the sixth lift of the reactor building wall, utilizing the fifth lift as a transition area.
Applicant agreed to comply with the NRC Staff's interpretation of the concrete cover requirements starting at the sixth lift.
Affidavit of Subir K.
Sen in Support of Applicant's Motion for Summary Dispositicn l
of Joint Intervenors ' Contention No. I.D (Concrete Cover) ("Sen Affidavit"), paras. 20-22, 24.
Only two potential questions arise from this factual situation:
(a) does the disagreement over cover requirements i
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reflect any failure in Applicant's quality assurance program; i
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and (b) is the structural integrity of the reactor building wall, and thereby the safe operation of the Callaway Plant, in question because Applicant's interpretation of the require-ments prevailed during the first five lifts.
Joint Intervenors contend that there was a failure of the quality assurance program in that Applicant allegedly ignored or grossly misunderstood the requirements.
The evi-dence presented by Applicant in support of its motion, however, makes it clear that there was not a gross misunderstanding or disregard for the requirements.
They were consistently interpreted and applied by Applicant and its contractors through the fourth lift.
Sen Affidavit, para. 25; Affidavit of R. David Neal in Support of Applicant's Motion for Summary Disposition of Joint Intervenors' Contention No. I.D (Concrete Cover) ("Neal Affidavit"), para. 5.
Dr. Sen -- who has exten-sive experience in civil and structural engineering, who is an active member of the American Concrete Institute Code Committee on Nuclear Safety-Related Joncrete Structures, and who advis'ed the Bechtel project team on this matter --
explains in his Affidavit why Applicant's interpretation of the requirements was and is technically sound.
Sen Affidavit, passim.
No mistake was made here by Applicant.
The NRC Staff sirply made a different interpretation of e
requirements which are subject to more than one reasonable interpretation.
Id., para. 25.
Dr. Sen has also addressed thoroughly the question of the structural integrity of the reactor building wall and
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the adequacy of the concrete cover to perform its design functions.
He has demonstrated -- based upon years of field experience in many different environments, exposure I
tests conducted in extremely aggressive environments, and l
l the standard of the American Concrete Institute -- that the application of the concrete cover requirements below the sixth. lift of the Callaway Plant reactor building wall will not affect the integrity of the structure and is adequate 1
for the concrete cover to protect the reinforcing steel from corrosion and to promote bond development between the steel and concrete.
Sen Affidavit, paras. 8-15, 18, 19, 23, 24.
Joint Intervenors have presented no competent evidence to the contrary.
l Consequently, the allegations in Contention I.D l
constitute " demonstrably insubstantial issues" which should i
be decided on a motion for summary disposition and which should not be the subject of an unnecessary and time-consuming hearing.
iV.
CONCLUSION Based upon the foregoing and upon the facts set forth in the Sen Affidavit, the Neal Affidavit and Applicant's Statement of Material Facts, Applicant submits that its l
l motion for summary disposition should be granted and that i
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't part I.D of Joint Intervenors' Contention No. 1 should be decided in Applicant's favor.
Respectfully submitted, SHAW, PITT N, POTTS & TROWBRIDGE fu 4.h Thomas A.
Baxter Richard E. Galen Counsel for Applicant I
1800 M Street, N.W.
i Washington, D.C.
20036 (202) 822-1000 l
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