ML20031C667
| ML20031C667 | |
| 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 8110070449 | |
| Download: ML20031C667 (11) | |
Text
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Octobsr 2, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE 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)
)
BRIEF IN SUPPORT OF APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVENORS' CONTENTION NO. II.A.1 (SA-358 PIPING)
I.
INTRODUCTION Union Electric Company
(" Applicant") submits this t
brief in support of its motion for summary disposition of Joint Intervenors' Contention No. II.A.1, which alleges that a piece of substandard SA-358 pipe has been installed in the emergency core cooling system at the Callaway Plant.
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 Michael F.
Stuchfield and Joseph V. Laux filed with this motion demon-strate the complete lack of any factual basis for part II. A.1 of Joint Intervenors' Contention No. II, and Joint Intervenors have acknowledged that they havb no competent evidence to sup-port their allegations.
Accordingly, summary disposition of 1
this content'.on is appropriate.
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o II.
STATEMENTS OF FACTS AND PROCEDURAL BACKGROUND Joint Intervenors ' proposed Contention II. A.1 states as follows in the March 6, 1981 Amended and Supplcmental Joint Petition to Intervene, as further modified by the March 24, 1981 Revised Cantentions of Joint Intervenors:
Safety-related pipe installed at callaway was manufactured by a company or companies which did not have adequate control of welding para-meters.
This resulted in known cases of defects which did not comply with the requirements of the American Society of Mechanical Engineers (ASME) Code.
The evaluation and acceptance of those defects and deficiencies were not done in accordance with the ASME Code.
The i
safety of pip ^ installed at Callaway remains l
in question and demands further investigation j
before an operating license should be issued.
For example:
1.
In May 1979 a pipefitter discovered and l
reported a substandard piece o' 003 Class II SA-358 piping which had been ins.lled in the emergency core cooling system.
The pipe was substantially out-of-round, was machined below the minimum wall, and had rejectable wold de-l fects on the inside of a longitudinal seam weld.
1 (See, NRC Report No. 50-483/80-10).
The piping j
was approved for shipment at the vendor's, was l
accepted on site, and was installed despite i
these deficiencies.
Neither Applicant nor the NRC Staff objected to this contention (or the other subparts of Contention No. 1) except for objection to the language in the contencion 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 objec-tion, concluding that:
. i
.. 10 C.F.R. 2. 714 (b) requires that petitioner's j
contentions must be specified at the time of the special prehearing conference.
This requirement is necessary so that controversies within the jurisdiction of the Board are framed and also to provide the applicant and other parties with 4
knowledge of the issues they will face in the i
proceeding.
If additional contentions are to be proposed in the future, they will have to receive the Board's approval at that time.
Joint.Intervenors have advanced two examples of alleged welding defects in safety-related pipe installed in the Callaway 4
Plant.
Accordingly, Applicant submits that consideration of Contention No. II.A is properly limited to the stated examples.-1/
i In view of the fact that the piece of pipe which is the subject of Joint Intervenors' Contention No. II.A.1 had i
~.1 ready been the subject of two investigations by the NRC Staff 2/
in response to anonymous allegations, Applicant served inter-rogatories on Joint Intervenors in an effort to probe the basis for any continued dissatisfaction with the SA-358 pipe in question.
)
Applicant's Interrogatory No. 1E-9(a) (First Set) asked i
Joint Intervenors to state the factual basis for their allegation that "[t]he safety of pipe installed at Callaway remains in question and demands further investigation before an operating license should be issued."
Applicant's Interrogatory No. lE-13 (First Set) asked Joint Intervenors whether they contend that the installation of an allegedly substandard piece of SA-358 pipe will affect the safe operation of the Callaway Plant 1/
Subparagraph 2 of part II.A of Joint Intervenors' Contention i
No. 1 (the second example) addresses SA-312 piping and is not the subject of this motion.
2/
See NRC Inspection Report No. 50-483/81-04, June.:25, 1981; NRC Inspection Report No. 50-483/80-10, June 10, 1980.
l lu
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s and, if so, to state the factual basis for such contention specifying the manner and degree in which safe operation will allegedly be affected.
Joint Intervenors stated that they do contend that the safe operation of the plant will be affected by the pipe in question, and provided the following identical language in partial answer to both interrogatories:
The appearance of the inside weld indicates that the original inside weld was melted through by a pass made from the outside.
If this had occurred the wald metal would have been contaminated by the air inside the pipe.
The consequences of this possible contamination upon the mechanical properties of the pipe needs further investigation.
This theory, that the weld imperfections may have been caused by a " melt through," is repeatedly invoked by Joint Intervenors, in their interrogatory answers, as the basis for cuestioning the conclusions of Applicant and the NRC Staff on the structural integrity of the pipe.
- See, e.g.,
Joint Intervenors' response to Applicant's Interrogatory No. lE-30(a)
(Second Set) ("(i]f the excess reinforcement, overlap and fissures or cracks were caused by melt-thru, surface grinding may not have restored the pipe to prior specified requirements.").
Applicant's Interrogatory No. 1E-34(a) (Second Set) asked Joint I.itervenors to "(s] tate the factual basis for the allegations in your responses to Interrogatory Nos. lE-9 (a) (3) and lE-13(b) that ' [t]he appearance of the inside weld indicates that the original inside weld was melted through by a pass made from the outside,' including the name, address and professional qualifications of any individual who has given an opinion to this effect."
In response, Joint Intervenors stated as follows:
' The documents and references cited in answer to 2
lE-30(a) and listed in lE-30(b) indicate melt-thru as'a probable cause for the reported defects.
a The documented facts of the case and not the opinions of individuals are relied upon'to sub-stantiate the contentions however, identification of individuals has been objected to.
The cited documents and references, however, are to:
Commission regulations; NRC IE inspection reports which do not reach the
~
conclusion Joint Intervenors state above; and handbooks which describe welding procedures and define a " melt through."
None of these references document the facts of this case, or support, without the exercise of any opinion, that melt through was a i
probable cause of the weld imperfections in the pipe in question.
It is important to note that Joint Intervenors' inter-rogatory answers are signed by counsel alone. hit is apparent, therefore, that Joint Intervenors have no competent evidence i
to present to support this contention which already has been investigated thoroughly by the NRC Staff in response to anonymous allegations.
Applicant, on the other hand, has set forth affirma-tive. evidence in the form of an affidavit by a well qualified and experienced metallurgical engineer with the architect / engineer for the Callaway Plant.
See Affidavit of Michael F.
Stuchfield in Support of Applicant's Motion for Summary Disposition of Joint Intervenors' Contention No. II.A.1 (SA-358 Piping).
Mr. Stuchfield explains that while a slight or momentary variation in a welding parameter could have caused the con-dition described as overlap, burn-through could not have been i
the cause of the condition.
Stuchfield Affidavit, para. 12.
- Further, Mr. Stuchfield establishes that the pipe in question was not machined below the minimum design wall thick-ness, that it was not substantially out-of-round, and that even if the constructor had not identified and reworked the weld imperfection by grinding, the presence of the overlap and slightly higher reinforcement would not have affected the strength or structural integrity of the weld joint.
Stuch-field Affidavit, paras. 5, 6, 13.
Applicant has also set forth affirmative evidence by a quality assurance engineer at the Callaway Plant who was directly involved with the NRC investigation and resolution of the SA-358 piping allegation.
See Affidavit of Joseph V.
Laux in support of Applicant's Motion for Summary Disposition of Joint Intervenors' Contention No..II.A.1 (SA-358 Piping).
Mr. Laux describes the discovery of the weld imperfections, the extent of those imperfections, the basis for reporting them to the architect / engineer, the repair made to the pipe, and the inspections and tests performed after the repair was made.
Mr. Laux alsc explains that the system of QA/QC programs and procedures for identification and control of nonconformancas worked as intended in the identification of the weld imperfections.
Accordingly, this contention is ripe for summary disposition.
q l III.
ARGUMENT The standards governing summary disposition motions 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); 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 motica for summary 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 Util.cies Co. (River Bend Station, Uni 3 1 and 2), LBP-75-10, 1 N.R.C.
246, 248 (1975).
If the party op posing the motion fails to make the proper showing, 3/
chen sur.tmary disposition must be granted.
10 C.F.R. S 2.749(b).-
3/
Contrary to the inference in many of Joint Intervenors' responses tc 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 (Footnote continued) 1 4
. 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 issues...".
. Houston Lighting &
Power Co. (Allens Creek 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 fore'oing standards to this case, it is clear that Applicant's motion for summary disposition should be granted, and that part II.A.1 of Joint Intervenors '
Contention No. 1 should be decided in Applicant's favor.
This contention addresses a very small area (see Laux Affidavit, paras. 5-7) of a single piece of SA-358 pipe which the NRC's Office of Inspection and Enforcement has Trootnote continued) litigated at the hearing.
Adn.ission 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 forth in 10 C.F.R. S 2. 714 (a).
The question of the con-tention'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. Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-150, 6 AEC 811, 812 (1973) ; Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 426 (1973).
- investigated thoroughly on two occasions in response to anonymous allegations from a single individual.
The affidavits filed by Applicant in support of its motion demonstrate that the pipe is not substantially out-of-round and that it was not ma hined below the minimum design wall thickness.
The affidavits demonstrate that the weld imperfections, excess reinforcement and overlap, were not material to the structural integrity of the pip, but were nevertheless identified at the Callaway Plant site through the proper exercise of the constructor's Quality Control program and procedures, and were repaired by localized grinding.
The affidavits also show that subsequent tests and inspections of the weld metal and wall thickness, performed by both Applicant and NRC Staff personnel, confirm that no defects are present in the weld.
Finally, it is shown that hydrotesting of the ECCS prior to plant operation will further confirm the structural integrity of the weld in this pipe.
Joint Intervencrs, during the discovery process, have presented only speculation and theories to the effect that the overlap condition mar have been caused by " burn-through," which mag indicate inadequate control of welding parameters, which may mean that there are defects in other piping.
The interrogatory answers speak of the appearance of the inside weld but, while 10 C.F.R.
S 2.740b(b) requires that answers be signed by the person making them,' Joint Intervenors' answers are signed by their counsel,- who
> "... states to the best of his know' edge, information and belief that the responses provided.
are true and contain such information as is presently available to Joint Inter-venors."
As the Board is aware, the Joint Intervenors have chosen not to identify anyone who is assisting them technically.
The Commission's regulation governing summary dis-1 position, however, requires that "[al ffidavits shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein."
10 C.F.R. S 2.749(b).
There is no indication that Mr. Chackes, counsel for Joint Intervenors, has the requisite personal knowledge and competence to present admissible evidence on this matter.
Rule 56(e) of the Federal Rules of Civil Procedure requires that affidavits in support of or in opposition to a motion for summary judgment shall be made on personal knowledge, shall set forth such facts as would be I
admissible in evidence, and shall show affirmatively that the 4/
affiant is competent to testify to the matters stated therein.~
An attorney's affidavit not made on his personal knowledge of the facts, but merely stating what he believes or what he intende to prove at the trial, does not measure up to 4/
While the Federal Rules of Civil Procedure do not apply in practice before this agency, they offer guidance because the Commission's rules are generally patterned after them.
This is certainly true in the case of 10 C.F.R.
S 2.749, for the summary disposition procedure provided by that section finds a judicial counterpart in Rule 56 of the Federal Rules of Civil Procedure.
Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 N.R.C.
741, 756 n.46 (1977) ; Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 A.E.C. 210, 217 (1974).
w 4
_11_
the requirements of Rule 56(e).
6 Pt. 2 MOORE'S FEDERAL PRACTICE 1 56.22(1], at 56-1319 (2d ed. 1980).
In short, Joint Intervenors havo-presented no admissible evidence to support their theories and specula-tions concerning the SA-358 piping contention.
In view of the clearly admissible evidence presented by Applicant, the allegations in Contention II.A.1 constitute " demonstrably insubstantial issues" which should 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 Stuchfield Affidavit, the Laux Affidavit and Applicant's Statement of Material Facts, Applicant submits t):.c its motion for summary disposition should be granted and that 7 art II. A.1 of Joint Intervenors ' Contention No. 1 should he decided in Applicant's favor.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE c -: = h.
Thomas A.
Baxter 3
Richard E. Galen Counsel for Applicant 1800 M Street, N.W.
Washington, D.C.
20036 1
1 (202) 822-1000 l