ML20041G170
| ML20041G170 | |
| Person / Time | |
|---|---|
| Site: | Callaway  |
| Issue date: | 03/08/1982 |
| From: | Baxter T SHAW, PITTMAN, POTTS & TROWBRIDGE, UNION ELECTRIC CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-OL, NUDOCS 8203190351 | |
| Download: ML20041G170 (13) | |
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March 8, 1982 UNITED STATES OF AMERICA E%I,IE 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 0
(Callaway Plant, Unit 1)
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APPLICANT'S ANSWER TO JOINT E*it w' INTERVENORS' MOTION FOR ADMISSION 2
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OF ADDITIONAL EVIDENCE L; "9un 9
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Introduction Q
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b On February 19, 1982 -- after Applicant Union Electric Company had filed its proposed findings of fact and conclusions of law on Joint Intervenors' contentions, and approximately three months after the record was closed on the embedded plate 1/
issue (part I.A of Contention No. 1)
-- Joint Intervenors filed a ".
. Motion for Admission of Additional Evidence."
Attached to the motion is a Bechtel Power Corporation letter (J.
H.
Smith) to Union Electric Company (D.
F.
Schnell), dated April 9, 1980
(" BLUE 675"), with an Attachment entitled " Listing of Plates with Manually Welded Studs Installed in Concrete by 6/9/77," which includes a 14-page table.
In their motion, Joint Intervenors seek to have this document -- which Applicant 1/
In addition, pursuant to the Board's Memorandum and Order IModification of Hearing Schedule), September 24, 1981, copies of exhibits were to have been filed by November 6, 1981 -- prior l
to the commencement of the evidentiary hearing.
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8203190351 820308 PDR ADOCK 05000483 g
' produced for inspection and copying by Joint Intervenors in 2/
July, 1981
-- marked for identification and received into evidence as Joint Intervenors' Exhibit No. 78.
Joint Inter-venors have proceeded to rely on this document heavily in their ".
. Proposed Findings of Fact and Conclusions of Law," dated March 1, 1982.
II.
Governing Standards In spite of the obvious burden which a moving party has to provide the Licensing Board with a discussion of the law applicable to its motion, Joint Intervenors have addressed, in their motion, only the Board's authority to grant the relief requested, but not the principles which should govern the Board's decision to do so or to deny the motion.
The standards used in determining whether to reopen an evidentiary record, however, are well settled in NRC case law.
The motion must be both timely presented and addressed to a significant safety or environmental issue.
If an initial decision has been rendered, the movant must establish that a different result would have been reached initially had the material submitted in support of the motion been considered.
Moreover, the proponent of a motion to reopen has a heavy burden.
Kansas Gas and Electric Company, et al. (Wolf Creek Generating Station, Unit No. 1), ALAB-4 62, 7 N.R.C.
320, 338 l
(1978).
I 2/
Document Request No. 10 (First Set).
' Approximately the same standards have been applied in situations where, as here, the motion to reopen was filed after the record was closed but prior to the issuance of an initial decision.
In Public Service Company of Oklahoma, et al.
(Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C.
- 775, 804 (1979), the Atomic Safety and Licensing Appeal Board acknowledged the timeliness factor, and held that a board need not reopen the record if the issues sought to be pre-sented are not of major significance, and that where the issue was already fully litigated there was no need to reopen absent a showing that the outcome of the proceeding might be affected thereby.
The Commission itself recently has endorsed these principles in guidance provided to a licensing board on the litigation of TMI-related issues:
[W]here the evidentiary record on safety issues has been closed, the record should not be reopened on TMI-related issues relating to either low or full power absent a showing, by the moving party, of "significant new evidence not included in the record, that materially affects the decision."
This is in accord with longstanding Commission prac-tice.
E.g.,
Kansas Gas & Electric Co., et al.
(Wolf Creek Generating Station, Unit 1),
ALAB-462, 7 NRC 320, 338 (1978).
We emphasize that bare allegations or simple submission of new contentions is not sufficient.
Only sig-nificant new evidence requires reopening.
Of course, in moving to reopen, a party need not supply written testimony of independent experts, but is free to rely on admissions and statements from applicant and NRC staff and official NRC documents or other documen-tary evidence.
. Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-81-5, 13 N.R.C.
361, 362-363 (1981).
III.
Argument A.
Timeliness Joint Intervenors obtained a copy of BLUE 675 and its attachments during discovery from Applicant in July,1981 --
seven months before the instant motion was filed.
In spite of the extensive amount of hearing time devoted to the embedded plate issue, with the resultantly large record, including 35 exhibits advanced by Joint Intervenors, Joint Intervenors apparently apprehend no obligation to explain their failure to introduce this document at the hearing where it could have been the subject of inquiry by the parties and the Board.
The sole attempt at a justification consists of two sentences in a footnote:
This document was not submitted during the hearing due to inadvertance and oversight.
Not until the drafting of the Joint Inter-venors' proposed findings of fact was the importance of this document discovered.
Joint Intervenors' Motion at 1, n.l.
Joint Intervenors' explanation totally fails to excuse the untimeliness of their motion.
Parties to NRC proceedings are expected to exercise reasonable care and due diligence in the preparation of their cases.
An un-adorned plea of "inadvertance and oversight" is not
adequate.
Neither is it adequate to assert, without explanation or the existence of any apparent intervening development, that the "importance" of the document was not earlier " discovered."
Applicant submits that Joint Intervenors' motion suffers fatally from the extreme untimeliness for which Joint Intervenors have advanced no adequate justification.
B.
Addressed to Significant Safety Issue Joint Intervenors do not seek to raise a new issue here, but rather to add to the evidentiary record on an issue already tried.
The document now offered by Joint Intervenors is relevant to part I.A of Contention No. 1, ich was admitted for adjudication and is before the Board for cecision.
Whether or not that contention represents a significant safety issue depends, of course, upon one's view of the case.
C.
Significant New Evidence, Not Included in the Record, That Materially Affects the Decision.
The record alreao_, addresses, in a thorough fashion, Bechtel's engineering analysis to determine if the deviations from the required weld detail which were identified on the manually welded embeds would adversely affect the load carrying capacity of such embeds.
See citations in Appli-cant PF 71.-3/ The record includes a summary of the calculations on reduced load carrying capacity for the manually welded 3/
Applicant's Proposed Findings of Fact and Conclusions of Law in the Form of a Partial Initial Decision, February 1, 1982, 1 71.
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l plates.
See Applicant Ex. 4 at Appendix B, Calculation Sheet No.
3.
The exhibit proposed by Joint Intervenors simply provides a plate-by-plate listing, breaking down data which already is in the record.
Consequently, this is not significant new evidence.
It is only when Joint Intervenors grossly misinterpret the information in the offered document that the appearance of significance attaches to it.
This motion illustratcs the danger of receiving evidence without the aid of witnesses at a hearing.
Documents do not always speak for themselves -- they often require explana-tion and interpretation.
The Board now has only the interpreta-tion of Joint Intervenors' counsel as to what this Bechtel document says.-4/ On the basis of that interpretation alone, however, Joint Intervenors have included in their motion the highly reckless accusation that Applicant has made material misrepresentations of fact to the NRC Staff and to the Board.
It is plain from the record that Joint Intervenors arc in error.
In fact, a more complete quotation of Applicant's proposed findings than Joint Intervenors provided in their I
motion serves to illustrate the error:
There were 225 manually welded plates embedded in safety-related buildings at Cal-laway prior to June 9, 1977.
They are used l
for attachment of structural steel framing members to the concrete.
All support safety-l related loads.
Their precise location and the l
4/
The signature of a person signing in a representative capacity Is a representation that the document has been subscribed in the capacity specified with full authority, that he has read it and knows the contents, that to the best of his knowledge, information, and belief the statements made in it are true, and that it is not interposed for delay.
10 C.F.R. S 2.708(c).
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actual loads imposed are known.
The manually welded embeds at Callaway are not loaded to their full structural capacity.
To the con-trary, the design loads for the manually welded plates provide a minimum safety factor of at least 2.0 against the yield limit state of the plate and tencile capacity of the anchor rods.
Furthermore, in general, the actual loads imposed on the plates are considerably less than the allowable design load capacity, thereby providing an additional margin of safety.
Applicant Embed Testimony at 34, 35; Gallagher Testimony at 3; see Tr. 772 (Meye rs), 776 (Fisher), 915 (Parikh).
Applicant PF 66 (emphasis supplied, representing the portion of the proposed finding quoted by Joint Intervenors).
Cf. Joint Intervenors' Motion at 2.
The complete proposed finding makes it clear that there are two bases which support Applicant's statement, quoted by Joint Intervenors, that " [t]he manually welded embeds at Cal-laway are not loaded to their full structural capacity":
(1) the determination of the design load itself provides a safety factor of two; and (2) in general, the actual loads are less than the design load capacity.
Joint Intervenors attack, with their proposed Exhibit 78, only the second basis.
It is absolutely l
l untrue, then, that "in many cases there is little or no margin for error" or that "[i]f Bechtel's calculations are wrong and l
the reduced load capacity is slightly lower, plate failure can be expected."
See Joint Intervenors' Motion at 3, 4.
If the reduced load capacity is slightly lower, there is l
l still a considerable safety factor, prior to failure, as a result of the design load calculation.
This is clear from the second Applicant proposed i
finding quoted by Joint Intervenors.
Discussing the results l
L
- of the Bechtel analysis to recalculate load carrying capacity assuming weld undersize, Applicant stated as follows, in a sentence omitted by Joint Intervenors' in their quotation:
The smallest minimum safety factor against exceeding the plastic limit state of the plate is 1.91.
Applicant Embed Testimony at 37, 38; Applicant Ex. 4; Staff Ex. 6 at 7-9; Tr. 724, 740, 792 (Meyers), 1242 (Thomas).
Applicant PF 71(1). /
5 Cf. Joint Intervenors' Motion at 2.
This makes it clear that the plates, even with the recalculated load carrying capacities, retain their " inherent" margin of safety.
Applicant now recognizes that there is an overstate-ment in the sentence in Applicant's proposed finding 71(1),
as well as in Applicant's Embed Testimony at 37-38, which states that "[i} n all cases the recalculated load carrying I
capacity still exceeded the maximum intended design load."
Indeed, as Joint Intervenors point out, there are four plates (out of 259) where the recalculated load carrying capacity 6/
equals the design load.-
In no case, however, does the actual load exceed the recalculated load carrying capacity.
Appli-cant proposed finding 71(1) should have stated, nevertheless, l
l in parallel with Applicant proposed finding 66, that "in l
5/
The number "1.91" in this proposed finding represents a typographical error.
The number stated in the testimony cited is "1.92."
See Applicant Embed Testimony at 38.
6/
In fact, in the case of two of those four plates the recalculated load carrying capacity is not smaller than the original number, which itself was equal to the design load.
See, in Joint Intervenors' proposed Exhibit 78, 10th page of table, 12th entry, and lith page of table, 2nd entry.
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general, the recalculated load carrying capacity still exceeded the maximum intended design load, thereby retaining an additional margin of safety (above and beyond the " inherent" margin of two in the design load) for most plates."
This error, which was not intentional, cannot be viewed as an attempt to misrepresent the facts to this Board.
The error is harmless because it does not affect the validity of the key finding advanced by Applicant -- the manually welded embeds at Callaway are not loaded to their full structural capacity.
Applicant PF 66.
Even in the case of the four plates where the recalculated load capacity equals the design load, the significant safety factor inherent in the design load determination -- which Joint Intervenors deliberately chose to ignore in their motion -- remains.
IV.
Conclusion For the reasons set forth above, Joint Intervenors' motion to reopen the evidentiary record is untimely and prejudicial to Applicant, and it does not advance significant-new evidence, not included in the record, that materially affects the decision.
Consequently, there are solid grounds upon which to deny the motion.
Nevertheless, Applicant recognizes that the evidence would have been received i5 it had been offered at the hearing on a timely basis.
As an accommodation to Joint Intervenors, Applicant would waive its well-founded objections if the
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opportunity is provided for Applicant to file and have received into evidence by the Board, an affidavit by a Bechtel witness to explain the proposed Joint Intervenors' Exhibit 78.~7/
There are two reasons why Applicant is entitled to respond with additional evidence, if it proves to be needed.
First, evidence admitted by the Board must be reliable.~8/
10 C.F.R. S 2.743(c).
Interpretations of technical documents by counsel alone, unassisted by any expert testimony, has been shown above not to be reliable.~9/Second, due process requires that Applicant have the opportunity to confront the evidence presented against it.
The opportunity for a reply brief may not be adequate confrontation.
Applicant intends to complete its review of the record and Joint Intervenors' use of their proposed Exhibit 78, and to report to the Board by March 16, 1982, with a 7/
It may be that upon review of Joint Intervenors' use of Eheir proposed Exhibit 78 in their proposed findings of fact, and of the underlying evidentiary record, Applicant will deter-mine that an affidavit is not necessary to explain the decu-ment.
We have not yet been able to complete that review.
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Authenticity, of course, is not at issue here.
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Another example of unreliable speculation is Joint Inter-venors' conclusion that the absence of entries in the table for the column entitled " Type of Load on Plate" means that in its engineering analysis Bechtel apparently did not know, or at least did not consider, the type of load on each plate."
See Joint Intervenors' Motion at 4.
There are other explanations, of course, but the Bechtel witnesses were not asked about the document, so the answer may not be in the record.
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filed affidavit or with a statement advising the Board that a-responsive and explanatory affidavit will not be necessary.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE Thomas A. Baxter, P.C.
Richard E. Galen Counsel for Applicant 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1090 0
_.m.._,._
e 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)
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CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to Joint Intervenors' Motion for Admission of Additional l
Evidence" were served this 8th day of March, 1982, by deposit 0
in the U.S. mail, first class, postage prepaid, to the other parties on the attached Service List,
. _ ~ =
l Thomas A.
- Baxter, P.C.
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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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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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SERVICE LIST James P. Gleason, Esquire Ke m h M. d1ackes, Esquire Qui man Chackes ard Hoare Atcaic Safety ani Licensing Board 314 N. Broadway 513 Gilmoure Drive St. Icuis, Missouri 63102 Silver Spring, Maryland 20901 Mr. John G. Feed Mr. Glenn O. Bright acute 1 Atcnic Safety and Licensing Kingdcm City, Missouri 65262 Board Panel U.S. Nuclear Regulatory O = 4=sion Mr. Howard Steffen Wash W m, D.C.
20555 Chanois, Missouri 65024 Dr. Jerry R. Kline Mr. Harold Icttmann Atomic Safety and Licensing m ute 1 Board Panel Owensville, Missouri 65066 U.S. Ntr. lear Regulatory reission Washington, D.C.
20555 Mr. Earl Brown P.O. Box 146 Pcy P. Iassy, Jr., Esquire Auxvasse, Missouri 65231 l.
Office of the Executive Iegal Director U.S. Nw-laar Regulatory cen=4==icn Mr. Fred Luekey l
Washington, D.C.
20555 Rural Boute Rhina1=v', Missouri 65069 Docketing and Service Section l
Office of the SheLiry Mr. Samuel J. Birk,
l U.S. Nuclear Regulatory cenmiasion P.O. Box 243 j
Washington, D.C.
20555 m rrison, Missouri 65061
. Joseph E. Birk, Esquire Mr. Febert G. Wright Assistant to the General Counsel '
Fulton, Missouri 65251 mute 1 Union Electric Ccupany P.O. Box 149 St. Icuis, Misscuri 63166 Eric A. Eisen, Esquire Birch, Horton, Bittner & Monroe A. Scott Cauger, Esquire 1140 Cbnnecticut Avenue, N.W.,
- 1100 Assistant General Counsel Warhi v a, D.C.
20036 Missouri Public Service Cewmission P.O. Box 360 Jeffersen City, Missriri 65102
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