ML20214C317
| ML20214C317 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 02/18/1986 |
| From: | Berry G, Chan E, Johari Moore NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20214C321 | List: |
| References | |
| CON-#186-122 OL, NUDOCS 8602210094 | |
| Download: ML20214C317 (11) | |
Text
_
p February 18, 1986 UNITED STATES OF AMERICA DOCMETED NUCLEAR REGULATORY C0fmISSION USNRC BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 9
In the Matter of QFFICE CF if t c:... i ;
00CMETING & Uf Pvn:p COMMONWEALTH EDISON COMPANY Docket Nos.
50-456O L 50-457 (Braidwood Station, Units 1 and 2 NRC STAFF RESPONSE IN SUPPORT OF APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION OF PORTIONS OF ROREM'S AMENDED QUALITY ASSURANCE CONTENTION i
I.
INTRODUCTION On December 20, 1985, Applicant filed, under cover of a letter to the members of the Atomic Safety and Licensing Board [hereafter "the Board"] a motion for sumary disposition of portions of Intervenor Rorem's amended quality assurance contention.
" Motion and Supporting Memorandum of Commonwealth Edison Company for Sumary Disposition on PleadingsAsToCertainSubcontentions"1/[hereafter" Applicant's Motion"]. Specifically, Applicant seeks summary disposition of the following' portions of Rorem's amended quality assurance contention:
i 3.C 6.F 9.C 12.F 14.. B.2 5.A 6.G 9.0 12.J
- 14. B.3 5.8 6.I 10.F 13.8 14.B.4 4
5.C
- 9. A (Partial) 12.E
- 14. B.1 1/
As Applicant states in its cover letter, its filing consists of the motion for summary disposition and memorandum in support thereof and an individually stapled packet for each su bcontention item which includes Applicant's statement of material facts and discussion and supporting affidavits for each subcontention item.
8602210094 960218 DR ADOCK O 6
h30
I
~ The Staff's response to Applicant's Motion is set forth below. The Staff supports Applicant's Motion on the grounds that Applicant has
}
demonstrated that there are no genuine issues of material fact to be heard and Applicant is entitled to a favorable decision as a matter of law.
II. BACKGROUND Intervenor Rorem et al's quality assurance contention, consisting of numerous subparts, was admitted by the Licensing Board in it's Order of June 21, 1985.
Commonwealth Ejison Company (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-20, 21 MRC 1732, 1737 (1985). Since the admission of this contention, Applicant, the Staff and Intervenors have k
engaged in discovery concerning this contention by means of 1
interrogatories and numerous depositions. On December 20, 1985, 4
Applicant filed the instant motion for summary disposition.
In a prehearing conference on January 27, 1986, the Licensing Board determined 4
that Intervenors' and the Staff's responses to this Motion were to be filed by February 18, 1986.
III. DISCUSSION i
A.
Standards For Summary Disposition Summary disposition is appropriate pursuant to the Commission's regulations if, based on a motion, the attached statements of the parties in affidavits, and other filings in the proceeding, it is shown that i
there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.
10C.F.R.I2.749(d). The 4
~v..,,, -
,,,,.,_.,,--.~_.,,,,.,-,----..---.m-
-me-,-m,_..,,,
w.
.. -,, a,
m,--.
,,,-w-.n,,,,,-
-,m..
--,----,------..e-
-w-
regulations also provide for sumary disposition as to any portion of a matter involved in a proceeding as to which there is no genuine issue of
~
material fact.
10 C.F.R. 9 2.749(a). See n, Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), LBP-77-46, 6 NRC 167(1977); Toledo Edison Company (Davis Besse Nuclear Power Station),
LBP-73-30, 6 AEC 691, 699 (1973).
The Commission's rules governing sumary disposition are analogous to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power
~
Company (JosephM.FarleyNuclearPlant, Units 1and2),ALAB-182,7AEC 210, 217 (1974); Dairyland Power Cooperative (Lacrosse Boiling Water Re'.ctor), LBP-82-58, 16 NRC 512, 520 (1982). Therefore, decisions concerning the interpretation of Rule 56 of the Federal Rules of Civil Procedure may be used by the Commission's adjudicatory Boards as guidance in applying the provisions of 10 C.F.R. 5 2.749.
Id.
A hearing on the questions raised by an intervenor is not inevitable. See Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654, 14 NRC 632, 635 (1981). The purpose of summary disposition is to avoid hearings, unnecessary testimony and cross-examination in areas where there are not material issues to be tried. The Supreme Court has very clearly stated that there is no right to a trial except insofar as there are issues of fact in dispute to he determined. Ex parte Peterson, 253 U.S. 300, 310 (1920).
Under the i
Federal Rules, the motion is designed to pierce the allegations of fact in the pleadings and to obtain summary relief where facts set forth in I
detail in affidavits, depositions, interrogatories, or other material of 1
evidentiary value show that there are no genuine issues of material fact i
- - - -.., _ _. -.. ~.. - _, _ _ _, _. - _ _.
__.,_,,_.,_,-_._._.__.,_--.__...y
\\.
to be tried. 6 J. Moore, Moore's Federal Practice 156.04[1](2ded.
1976). Merely reciting allegations in the pleadings will not create a genuine issue as to a material fact sufficient to defeat a properly supported motion for sumary disposition.
10 C.F.R. I 2.749(5); Fed. R.
Civ.P.56(c).
A party seeking sumary disposition has the burden of demonstrating the absence of any genuine-issue of material fact.
Cleveland Electric Illuminating Co. et al. (Perry Nuclear Power Plant, Units 1 and 2), ALA3-443, 6 NRC 741, 753 (1977).
In determining whether a motion for sumary disposition should be granted, the record must be viewed in the light most favorable to the opponent of such a motion.
Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962);
Dairyland Power Cooperative (Lacrosse Boiling Water Reactor), LBP-82-08, 16 NRC 512, 519 (1982).
To draw on federal practice, the Supreme Court has pointed out that Rule 56 of the Federal Rules of Civil Procedure does not permit plaintiffs to get to a trial on the basis of the allegations in the complaints coupled with the hope that something can be developed at trial in the way of evidence to support the allegations.
First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-90 (1968),
rehearing den., 393 U.S. 901 (1968). Similarly, a plaintiff may not defeat a motion for summary judgment on the hope that on cross-examina-tion the defendants will contradict their respective affidavits. To pennit trial on such a basis would nullify the purpose of Rule 56, which permits the elimination of unnecessary and costly litigation where no genuine issues of material fact exist.
See Orvis v. Brickman, 95 F.
Supp. 605, 607 (1951), aff'd 196 F.2d 762 (D.C. Cir. 1952),
cited with approval in Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246, 248 (1975).
To defeat summary disposition an opposing party must present material and substantial facts to show that a genuine issue of material fact exists.
Conclusions alone will not suffice.
River Bend, LBP-75-10, supra at 248;' Perry, ALAB-443, supra at 754. The regulations do not require merely the showing of a " material issue of fact" or an " issue of fact. " They require a genuine issue of material fact.
To be genuine, the factual record considered in its entirety, must be enough in doubt so that there is reason to hold a hearing to resolve the issue.
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2) LBP-83-46, 18 NRC 218, 223 (1983).
The federal courts have held that a party opposing a motion for sumary judgment is not entitled to hold back evidence, if any it has,
until the time of trial.
Lipschutz v. Gordon Jewelry Corp., 367 F. Supp.
1086, 1095 (S.D. Texas 1973). The opponent must come forward with evidence to show that there is an outstanding upresolved material issue to'be tried. Stansifer v. Chrysler Motors Corp., 487 F.2d 59, 63 (9th Cir. 1973), and Franks v. Thompson, 59 F.R.D. 142, 145 (M.D. Alabama 1973).
Sumary dispositi.on cannot be defeated by the possibility that Rorem might think of something new to say at hearing.
O'Brien v. Mcdonald's Corp., 48 F.R.D. 370, 374 (N.D. Ill.1970). Nor can the Applicant's motion be defeated on the hope that Rorem could j
possibly uncover something at hearing.
Hurley v. Northwest 1
I t
i l
l'
.. Publications, Inc., 273 F. Supp. 967, 974 (D. Minn. 1967). Now, in opposition to the Applicant's motion, is the time for Rorem to come forth with material of evidentiary value to controvert the Applicant's and Staff's affidavits and to show the existence of a genuine issue of material fact to be resolved at an evidentiary hearing.
The Comission's regulations permit responses both in support of and in opposition to motions for sumary disposition.
10 C.F.R. 5 2.749(a).
Such responses may be filed with or without supporting affidavits.
I_d_.
However, if the motion is properly supported, the opponent of such a motion may not rest simply on allegations or denials of the contents of the motion. Virginia Electric and Power Co. (North Anna Nuclear Power Station, Units 1 and 2), ALAB-584, 11 NRC 451, 453 (1980).
In addition, any facts not controverted by the opponent of a motion are deemed to be 4
admitted.
10 C.F.R. 9 2.749(b). The Appeal Board has noted that a hearing on each issue raised "is not inevitable," but " wholly depends upon the ability of the intervenors to demonstrate the existence of a genuine issue of material fact...." Philadelphia Electric Co. (Peach
~
Bottom Atomic Power Station, Units 2 and 3), supra 14 NRC 632, 635; accord Budget Dress Corp. v. Joint Board 198 F. Supp. 4, (S.D. N.Y. 1961) aff'd 299 F.2d 936 (2d.Cir.,1962), cert. denied, 371 U.S. 815 (1962).
Both the Appeal Board and the Comission have encouraged the use of 4
a the Commission's sumary disposition procedure.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452,457(1981).
See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241 (1973), aff'd sub nom. BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974);
4 f
_._-.7___
I Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 550-51 (1980);
Mississippi Power & Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424-25 (1973); Duquesne Light Co. (Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243, 245 (1973). The Commission has stated that:
Boards should encourage the parties to invoke the summary disposition procedures on the issu~es of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues.
CLI-81-8, supra, 13 NRC 452, 457. The Commission's summary disposition procedures " provide... an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues." Allens Creek, supra, 11 NRC at 550. The Applicant has met these standards with regard to its motion for summary disposition.
8 a
SUBCONTENTION 3.C Subcontention 3.C., as admitted in this proceeding, states:
3.
Contrary to Criterion II, " Quality Assurance Program," of 10 C.F.R Part 50, Appendix B, Commonwealth Edison Company has failed to establish a quality assurance program which complies with the requirements of Appendix B and which is documented by written policies, procedures and instructions and is carried out in accordance with those instructions.
Edison has failed to assure that its QA program provides controls over activities affecting quality and that such activities are accomplished under suitably controlled conditions and are appropriately verified for quality by inspection.
l C.
The Applicant's electrical contractor (Comstock) utilized Level I Quality Control Inspectors for inspection and acceptance of 1l~
Level 1 inspectors over four years.
electrical welds. This involved 14 different (Inspcction Report 85-06 Exh.11).
The Staff agrees that this subcontention should be dismissed sumarily. As Applicant indicates in its motion, the remedial measures employed to address this matter render miniscule the possibility that the activity described in Subcontention.3.C will recur or that that activity i
has resulted in the indeterminate quality of any weld inspected by,the quality control inspectors involved.
This item was identified by Region III NRC Inspector R.N. Gardner during a routine review of Applicant's Braidwood Construction Assessment Program (BCAP). See Affidavit of John M. Jacobson In Support of NRC l
Staff's Response to Applicant's Motion For. Summary Disposition of Rorem QA Subcontention 3.C at 15 (hereinafter "Jacobson Affidavit").
During that inspection, the NRC inspector learned that 14 different Level I quality control inspectors had inspected and approved electrical welds.
t i
l Id.; see Inspection Report Nos. 50-456/85006 and 50-457/85006 (attached as Ex. 3.C-2 to Jacobson Affidavit).
The use of Level I inspectors in this manner was deemed contrary to the requirements of ' ANSI N45.2.6-1978 and a violation of 10 C.F.R. Part 50, Appendix B, Criterion II.
See Ex. 3.C-2.
In its May 6, 1985 Response to Inspection report Nos. 50-456/85006 and 50-457/85006, see Ex. 3.C-3 (attached to Jacobson Affidavit), Appli-cant took the position that ANSI N45.2.6-1978 expressly permits Level I inspectors to perform inspections, examinations, and tests. As NRC Inspector Jacobson notes, " Applicant's position is not incorrect."
Jacobson Affidavit at 16. As NRC Inspector Jacobson also observes, however, "ANS,I N45.2.6-1978 does not permit construction activity to be accepted solely on the basis of a Level I inspector's review.
The adequacy and correctness of that review must be confirmed by a Level II inspector."
Id. At Braidwood, however, the involvement of the Level II electrical inspector " consisted only of reviewing inspection reports for completeness and not the adequacy or correctness of the underlying inspection."
Id. According to NRC Inspector Jacobson, " Level II involvement of this small level does not satisfy the requirements of l
l ANSI N45.2.6. because no evaluation of the inspection results is performed."
Id.
As explained below, Applicant has taken a number of corrective actions to address this violation.
First, Applicant issued a directive to its site contractors which requires them to use only Level II or III inspectors to perform weld inspections. Jacobson Affidavit at 17.
For other types of inspections Level I inspectors "are required to record l
l l
- - - - -. - - - - - - - ~ - - -
specific data which is to be reviewed, evaluated, and verified by a level II-inspector." I_d. NRC Inspector Jacobson has reviewed these measures and is satisfied that they "should eliminate any recurrence of the type of violation which forms the basis of Rorem Subcontention 3.C" Jacobson Affidavit at 19.
To ensure that past inspections performed by Level I inspectors which were not reviewed adequately by Level II inspectors have not resulted in the quality of any weld being indeterminate, Applicant developed the " Level I Reverification Program" (LRP). Jacobson Affidavit at 110. As NRC Inspector Jacobson states, this program "is designed to demonstrate, through a sampling of actual inspections and hardware, that the welds inspected by the Level I inspectors contain no design significant discrepancies." Id.
NRC Inspector Jacobson has reviewed the LRP concept and methodology and is satisfied that upon completion of the program, "there will be no statistically significant question regarding the acceptability of the hardware previously inspected by Level I inspectors. " Id.
Although this item will not be closed by the Staff until the LRP is completed, summary disposition of this subcontention can be granted at this juncture.
In effect, by granting sumary disposition of this subcontention the Board would be delegating to the Staff the responsi-bility of ensuring that the LRP is implemented properly. This is not an impennissible delegation of authority to the Staff, however, because the Staff's authority would be limited to determining whether the results of the LRP sample provide 991 reliability at a 99% confidence level that there are no design significant discrepancies in the electrical weld population.
If necessary to provide this assurance, a total (100%)
reinspection will be conducted. Viewed in this light, it is apparent that the authority of the Staff is procedural or ministerial in nature; in other words, the Staff must determine that the results of the LRP prove what it purports to prove or else require Applicant to conduct a 100% reinspection.
Delegations of this nature properly can be made to the Staff. Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), LBP-84-2, 19 NRC 36, 216-217 (1984).
Unless Intervenor raises a genuine issue relating to the adequacy or methodology underlying the LRP, Applicant is entitled to prevail on its Motion for Summary Disposition of Subcontention 3.C.
i O
l 1
l l
.