ML20214C358
| ML20214C358 | |
| Person / Time | |
|---|---|
| Site: | Braidwood  |
| Issue date: | 02/13/1986 |
| From: | Kropp W NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION III) |
| To: | |
| Shared Package | |
| ML20214C321 | List: |
| References | |
| OL, NUDOCS 8602210112 | |
| Download: ML20214C358 (13) | |
Text
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UNITED STATES OF AMERICA ,
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
COMMONWEALTH EDIS0N COMPANY ) Docket Nos. 50-456
) 50-457 (Braidwood Station, Units 1 and 2 )
AFFIDAVIT OF WAYNE J. KROPP IN SUPPORT OF NRC STAFF'S RESP 0'ISE TO APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION OF R0 REM QA SUBCONTENTION SB I, Wayne J. Kropp, being duly sworn, depose and state as follows:
- 1. I am employed by the U.S. Nuclear Regulatory Commission, Region III, as Resident Inspector Construction, at the Braidwood Station, Units 1 and 2. A copy of my professional qualificatiois is attached hereto as Exhibit 58-1.
- 2. As Resident Inspector I am responsible for performing inspections of construction activities to verify compliance with applicable codes, standards and regulatory requirements.
- 3. The purpose of this Affidavit is to support the NRC Staff's response to Applicant's Motion For Sumary Disposition of Rorem QA Subcontention SB. This subcontention states as follows:
- 5. Contrary to Criterion III, " Design Control,"
of 10 C.F.R. Part 50, Appendix B, Commonwealth Edison Company has failed to establish measures to assure that applicable regulatory requirements and design bases are correctly translated into specifications, drawings, procedures, and instructions including provisions to assure that appropriate quality standards are specified in design documents and that deviations from such standards are controlled. Applicant has also failed to NO" k N $50$oPM 56 Q ,
require that measures are established for the ,
' identification and control of design interfaces and for the coordination among .
participating design organizations, that the measures include the establishment of procedures among participating des lgn organizations for the review, approval, release, distribution, and revision of .
documents involving design interfaces; and that provide for verifying or checking the adequacy of design, such as by the performance of design reviews, by the use of alternate or simplified calculational methods, or by the performance of a suitable testing program.
B. Repairs to coatings by Midway Industrials in the Unit 1 and 2 containments were performed utilizing a coating system not qualified for the Design Basis Accident in accordance with Section 5 of ANSI N101.2 (1972). (Inspection Report 85-15, Exh. 17.)
- 4. In preparing this Affidavit I reviewed the following documents:
- 1. " Statement of Material Facts As To Which There Is No Genuine Issue";
- 2. " Testimony of Kenneth T. Kostal (On Rorem Subcontention58)";
- 3. " Testimony o,f Richard Leigh (On Rorem Subcontention 58)".
- 5. I identified the item which forms the basis for t,his .
subcontention during a routine inspection conducted from March 25, 1985 to May 3,1985, of ongoing coating repair work in the Unit 1 containment.
During this inspection it was noted that repairs to coatings on the Unit 1 and 2 containment liners and equipment hatches were performed in 1978 and 1979. without a repair procedure qualified for Design Basis Accidents (DBA) conditions in accordance with ANSI N101.2, " Protective Coatings (Paints) for Light Water Nuclear Reactor Containment Facilities."
- 6. ANSI N101.2 requires that coating systems used in a coating ,
repair process be qualified to withstand DBA conditions. This standard delineates the test methods to be used to evalu' ate the coating repair process for its ability to withstand DBA conditions.
- 7. During my Inspection I determined that the Applicant did not have documents to substantiate the DBA qualification by laboratory testing of a coating system used for repairs involving the use of a power ,
grinder, a primer coat, and a finish coat of phenoline-305. Therefore, I determined that a portion of 10 CFR Part 50, Appendix B Criterion III, Design Control, was not met. The portion of this Criterion which was not met pertained to the measures which were to be established for the selec, tion and review for suitability of applfcation of materials and processes that are essential to the safety related function of structures. The results of my inspection are documented in Inspection Reports 50-456/85015; 50- 457/85016, dated May 16, 1985, the pertinent portion of which is attached hereto as Exhibit 58-2.
- 8. As a corrective action to preclude the recurrence of this violation repair procedure QCP-3A, Rev. 4, delineating the repair process for coatings was issued by the coating contractor, Midway. The repair processes identified in procedure QCP-3A, Rev. 4 were reviewed and approved by Sargent & Lundy (S&L). The repair processes were qualified for DBA conditions in accordance with ANSI N101.2. The coating contractor, Midway, issued NCR Reports 23, 24, 25 and 26 to document and disposition the areas in'the Unit 1 and Unit 2 containments, where repairs were done with a process not qualified to ANSI NIF .2.
- 9. The NCRs were dispositioned "USE-AS-IS" and were approved by ,
. S&L. The justifications for the disposition were documented by S&L on Design Infonnation Transmittals (DITs) BR-SSD-0002-0 and BR-SSD-0005-1.
These DITs documented that the square footage of the areas repaired in an unqualified manner was limited to less than 200 square feet. S&L also placed these areas on Applicant's coatings exception list.
- 10. I verified that the Nonconformance Reports accurately identified the areas of the Unit 1 and 2 containments which were repaired using a system not qualified in accordance with ANSI N101.2. I reviewed the DITs and found them ahceptable. I also verified that these areas are identified on S&L's coatings exception list which is being prepared for identifying unqualified coatings in the containment. I verified that the coating contractor, Midway, has issued a qualified coating repair procedure (QCP 3A) which was approved by S&L.
- 11. I closed this item in my Inspection Report 50-456/85052, 50-457/85050 dated December 6, 1985, the pertinent portions of which is attached hereto as Exhibit 58-3. The basis upon which I closed the item was the implementation of the Applicant's corrective actions. I determined that the corrective actions were effective in resolving this item and in preventing further noncompliances. As noted in the Inspection Reports that identified this violation, coating repair work was being done using a repair system which was qualified in accordance with ANSI N101.2. Also, at the time this violation was identified, I reviewed numerous coating records to determine the magnitude of this problem. Based on this review the violation was considered to be an isolated occurrence which did not involve large areas of coatirig.
Therefore, no written response from the Applicant was required, as the .
corrective actions identified in Inspection Reports 85015 and 85016 were ,
adequate to resolve this violation and to preclude its recurrence. Based on the fact that the area repaired by Midway with an unqualified repair process was determined to be less than 200 square feet, I have concluded that this item would not have resulted in a component or system not being able to perform its design function. This item would not have had any effect on -
the safe operation of the plant.
At/AW - > w /7s ay
.KFofpf Sworn and subscribed before me this 13thday of February,1986
/dt I Notary Publ W My Commission expires:
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hbibtY~ .S~. 6-1 WAYNE J. KROPP, SR.
Organization: U.S. Nuclear Regulatory Commission, Region III
Title:
Reactor Inspector -
Grade: GS-13 Birth Date: September 5, 1945 Education: Dundee Community High School, Dundee, IL, 1963 U.S. Navy, Nuclear Power School, 1968 U.S. Navy, Nuclear Plant Operator Training Unit, 1969 i
Experience:
1984 to Resident Insp'ctor, e Braidwood Nuclear Project - Responsible i Present for inspecting construction activities in the areas of electrical, mechanical and structural to verify compliance with design requirements and licensing commitments. (NRC) 1983 to Reactor Inspector Quality Assurance Programs Section -
1984 Inspected various plant sites to verify compliance with licensing commitments in the area of quality assurance. (NRC/DRS - Region III) 1982 to Consultant Service Engineer - Performed and directed audit and 1983 surveillance activities as the Clinton Nuclear Power Plant Audit Supervisor. (Quadrex) 1980 to Audit Supervisor - Responsible for all audit activities 1982 associated with the Marble Hill Nuclear Project (Public Service of Indiana).
1977 to Procurement QA Supervisor - Responsible for establishing and 1980 implementing the procurement quality assurance program for Black Fox Nuclear Project (Public Service of Oklahoma).
1975 to Source Surveillance Supervisor - Responsible for implementation 1977 of the source survef;1ance programs for all power plant under construction by Brown and Root.
1974 to Quality Control Engineer - Assisted in establishing an 1975 Architect / Engineer Quality Assurance Program for the design procurement and construction of a nuclear power plant.
(Flour - Pioneer) 1971 to Technical Specialist - Performed quality assurance audits of 1974 - potential suppliers of electrical hardware and equipment. ,
Performed surveillance at supplier's facilities to assure compliance with specification requirements. (Duke Power Co.)
-.n
fr C.B -t Wayne J. Kropp, Sr. 2 1965 to Reactor Operator - Nuclear Reactor Operator and Electric Plant 1971 Operator aboard a nuclear submarine (U.S. Navy).
1965 to Precision Machinist - Employed in the research laboratory making 1965 parts for Mass Probe and other space exploration experiments (St. Procopius College).
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&Wa-2 U. 5. NUCLEAR REGULATORY COMMIS3 ION
, REGION III +
Reports No. 50-456/85015(DRP);50-457/85016(DRP)
Occket Nos. 50-456; 50-457 ,
Licenses Hos. CPPR-132; CPPR-133 Licer.see: Comenwealt'h Edison Company Post Office Box 767 Chicago, IL 60690 Facility Nane: BraidwoodNuclearPowerStation,t[ nits 1and2 '
Inspection At: Braidwood Site, Braidwood, Illinois Inspection Conducted: March 25 through May 3, 1985 Inspectors: R. D. Schulz W. J. Kropp R. N. Gardner s
Apprcved By:
fd W. S. itti , Director [/M./ b<
Braidwood Project D(te '
Inspection Su'xtary Inscection on March 25 throuch May 3, 1985 (Report No. 50-456/85015(DRP);
50-457/85016(DRP)) . .
Areas Inspected: Routine, unannounced safety inspection of activities with regaro to licensee action on previous inspection findings and 10 CFR 50.55(e) reports, followup on allegations, plant tours, nonconfomance reports /c3r.*ective action, safety-related' piping, containment coatings, instrumentation, electrical e;uipment installations, and the Quality Control Inspector Reinspection Program.
The inspection consisted of 352 inspector-hours onsite by three NRC inspectors including 30 inspector-hours onsite during off-shifts.
P.esults : Of the nine areas inspected, no items of noncompliance or deviations were identified in five areas, one item of noncompliance was identified in each of the remainin failure to adequately control structural beam modifications (g four areas: paragraph 4); failure to take adequate corrective action for pipe support nonconfoming conditions (paragraph 5); inadequate review of con-tainment coating process (paragraph 7); and inadequate inspection of junction box installation (paragraph 9).
h s' 8 -L 4
IBR04A - 3", Boron Thermal Regenerative piping 2CV16F - 2", Chemical and Volume Control piping 2AF168 - 3", Auxiliary Feedwater piping 2CV24AA - 2", Chemical and Volume Control piping 2CC37A - 2", Component Cooling piping ICC50AA - 3", Component Cooling piping 2AF02AA - 6", Auxiliary Feedwater piping IMS01AC - 32", Main Steam Piping 1RC40EB - 1/2", Reactor Coolant piping l
IFWO3DB - 16", Feedwater piping Field weld data sheets and weld rod stores requisitions were checked to verify identification and inspection of criteria procedurally required for quality welding. The weld data sheets included documentation of fit-up inspections, root weld inspections, final weld inspections, and nondestructive examinations. Attributes checked in the field included:
quality of the welds, identification of the weld and welder, and ioen-tification of the spool piece.
While examining field weld 6 on piping line 2CV17C - 3", Spool CV-22, the inspectors noticed that work had proceeded past the mandatory hold points on the temporary attachment control sheet for penetrant testing of the tacking blocks removal area. This was brought to the attention of the piping contractor and since the penetrant test was not performed a non-conformr.nce report was issued. The nonconformance report, No. 4441, stated that a penetrant test would be perfonned on the final weld, including 1/2" on beth sides of the weld. This corrective action resolves the craft error to the satisfaction of the NRC inspectors.
j No violations or , deviations were identified.
! 7. Containment Coatings l
The coating repair work presently being performed on structural steel 4 within the containment was evaluated for compliance to applicable l standards and the painting contractor's (Midway) procedure QCP 3
' Revision 3, dated October 27, 1982. Procedure QCP 3A describes the coating system to be utilized for repairing surfaces coated with Carbo l Zine 11 and Carbo Zinc 11/Pnenoline 305 primer. When surface prepara-tion of the repair cannot be accomplished by open blasting or vacuum blasting, the procedure allows the surface to be prepared using a power
, grinder with a 3-M Clean N Strip Wheel to produce an anchcr pattern of l
, .~...
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h/ C-8-L approximately 1 MIL. The repair work observed in the containment consisted of preparing the surface in accordance with procedure QCP 3A and then -
applying a coating of Carbo Zine 11. A topcoat of Phenoline 305 was not going to be applied on the repair.ed areas. The repair work presently being accomplished in the containment is in compliance with the requirements of procedure QCP-3A.
The inspector requested documents to substantiate that the system used for repairing the coatings, was qualified in accordance with ANSI N101.2 (1972) "Prctective Coatings (Paints) for Light Water Nuclear Reactor Containment Facilities", Section 5. The licensee furnished test reports tnat substantiated that the repair system of preparing the surface with a power grinder utilizing a 3M Clean N Stop Wheel and then coating with Carbo Zine 11 was qualified to the Design Basis Accident (DBA) in ,
accordance with ANSI h101.2.
Further inspection revealed that repairs to coatings on the Unit 1/2 containment liner and equipment hatch were perfor1ned in 1978 and 1979 without a repair procedure qualified for DBA conditions. The inspection documents recorced the repair system as being the same as the repair system presently being used on containment structural steel with the exception of a topcoat of Phenoline 305 finish being applied. The inspector requested documents to substantiate the qualification of this system (power grinder, carbo zine ll, topcoat of phenoline 305) to ANSI N101.2. The licensee could not produce any such documents nor could they provide documentation that these areas repaired were on the coating exception list. The amount of area affected has been tentatively identi-fied as approximately 250 square feet. The failure to qualify a repair coating system to ANSI N101.2 or to identify unqualified coatings on an exception list is considered a violation of 10 CFR 50, Appendix B, Criterion III (456/85015-07; 457/85016-06). The licensee has provided corrective action for this noncompliance which is satisfactory and there-fore a response to this item of noncompliance is not required. The corrective action consists of either repairing the coating areas that were repaired with the unqualified coating system or justifying the placement of these areas on the " Coatings Exception List". The action to preclude . ,
recurrence has been implemented by issuing a revised repair procedure that utilizes a coating system qualified to ANSI N101.2.
- 8. Instrumentation l Instrumer.tation was selected to verify that their installation was in accordance with requirements established in the appropriate design documents. The instrumentation selected were:
1-PT-544 - Pressure Transmitter l 1-FT-619 - Flow Transmitter l 1-FT-688 - Flow Transmitter 1-FT-AF017 - Flow Transmitter 1-FT-AF011 - Flow Transmitter l 16
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LI 5 NX t i At RI Gt't A10Ri C09'.)5510s I 1
RIG 10N 111 l Rtpe't Ne. 50-456/85052(DRP); 50-457/85050(DR~ )
Docket Nos. 50 456; 50-457 Licenst Nes. CFPR-132; CPPR-133 Licensee: Com?.onwealth Edison Company Post Of fice Box 767 Chicago; IL 60690 Facility Name: Braidwood Station, Units 1 and 2 Inspection At: Braidwood Site, Braidwood, IL .
Inspection Conducted: October 21 through November 30, 1985 Inspector: R. D. Schulz W. J. Kropp Approved By:
0h W. S. Little, Director /2 kdf Braidwood Project Date Inspection Sum.ary Inspection on October 21 throuch November 30, 1985 (Report No.
i 50-456/85052(DRP); 50-457/85050(DRP))
l Areas Inspected: Routine safety inspection of licensee action on previously identified items, licensee action on 10 CFR 50.55(e) reports, plant tours, structural steel, and trending. The inspection involved a total of 186 inspector-hours onsite by two NRC inspectors, including 38 inspector-hours onsite during off-shifts.
Results: N: violations or deviations were identified.
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caliper on the form. lhis chanae made the identification of the dial caliper mandatory and thus it also becem a final docu ent review requirement under the stipulations of Procedure QCP-630,
- Revision 3. " Storage, Maintenance, And Review of QA Records." In addition, the calibration records for the dial calipers that were used prior to the procedural changes were reviewed and all the calipers were within their proper calibration range. Implerentation of revised Procedure PGCP-11 was audited by the licensee in QA Audit No. 20-84-518 and was found to be acceptable. Subsequently, the i l -licensee took two random samples of 64 and 100 small bore installed l l piping bends and measured the bends for ovality. Six of the bends .
of the 64 samples were above 5, but below 10.37%. Four of the l bends of the 100 samples were above B but below 9.3%. The ASME
, Boiler and Pressure Vessel Code,Section III, 18-4223.2, states in l part that evaluation is required if ovality exceeds 81. The ten I bends that were above 8% met the requirements of the stress report i l per Sargent & Lundy analysis. A selected sample of these i
! calculations were reviewed and found to be acceptable by the l
- inspector. Numerous piping bends have been examined by the !
inspector and all have been found to be visually acceptable.
4 l (Closed) 456/85015-01; 457/85016-01: Unauthorized holes had been l cut in three structural beams to permit the routing of nonsafety-related drain piping. Subsequent to the identification of these three beams by the inspector a complete inspection of the drain piping systems was accomplished by the architect engineer, Sargent &
Lundy. This inspection identified 49 beams with holes that were either not shown on the design drawings or were cut different than i
design drawing requirements. All of the beams were found to be structurally adequate based on the as-built dimension. Seams 9AB513 and 8AB677N were reinforced by the licensee because the stress levels were close to exceeding the allowable stress. These two beams were reinforced with stiffener bars and angles in accordance with Engineering Change Notice No. 28509. The reinforced installations were examined by the inspector and found to be in accordance with the Engineering Change Notice. The modifications were controlled by Structural Steel Installation Traveler Nos. 8018 and 8019. The design calculations for nine beams not requiring reinforcement and one of the beams reinforced were examined by the inspector and found to be acceptable. The unauthorized holes in the beams appear to be isolated to the drain piping system. Numerous structural steel and -
! piping inspections by the licensee, contractors, and NRC have been perfomed and similar problems have not been identified. Furthermore, present controls are adequate to preclude the unauthorized cutting of holes in beams by piping personnel. The piping contractor has instituted craft training programs which cover the proper use of field problem reports and the necessity to obtain engineering approval prior to modifying another contractor's work. The 49 beams were documented on Nonconformanc.e Report 740 and the nonconformance has been appropriately closed.
(Closed) 456/85015-07; 457/85016-06: Repairs to coatings in the Unit 1 and Unit 2 containments were perfomed utilizing a coating 4
$ C-8-)
system not qualified in accordance with ANSI N101.2. Ihr coating contractor issued Nonconformance Reports 23, 24, 25, and 2e to document and disposition the areas in the Unit I and Unit 2 -
, containments, where repairs were done with a process not qualified to ANSI N101.2. The nonconformances were dispositioned "use-as-is" and were approved by Sargent & Lundy (S&L). The justifications for the disposition were documented by S&L on Design Information Transmittals (DIls) BR-550-0002-0 and BR-55D-0005-1 and were found to be acceptable. These DITs documented that the square footage of the areas repaired was limited (less than 200). This area is identified by S&L on a coatings exception list which is being prepared for identifying unqualified coatings in the containments. The inspector also verified that the coating contractor, Midway, has a qualified coating repair procedure (C.P. 3A, Revision 4) approved by S&L.
(Closed) 456/83-09-08A; 457/83-09-08A: Phillips Getschow Company :
had not established and executed a plan for auditing the implementing procedures of the quality assurance program. Phillips Getschow Compar,y revised their audit schedule on August 21, 1983, to include auditing all the implementing procedures annually. The inspector verified that audits are being performed in accordance with the audit schedule. A comprehensive review was accomplished by the licensee and piping contractor with regard to past auditing activities. Each implementing procedure approved for use at the site was analyzed against both the piping contractor's and licensee's audits. Based on this combination of audits, which were conducted to determine compliance with the Phillips Getschow Quality Assurance Manual and inherent overlap into the implementing procedures the review concluded that no questionable areas remained. The evaluation also took into account the nature of the task and retrofit programs which have been implemented.
The inspector examined this comprehensive review and found it to be satisfactory for resolving the question of past auditing activities in relation to programmatic and regulatory compliance.
l
[ (closed) 456/83-09-08C; 457/83-09-08C: Pullman Construction l Industries, Inc. audit program did not cover all the implementing procedures. Pullman has implemented an audit schedule that provides for auditing the entire population of implementing procedures. The implementing procedures not previously covered and identified in 1983 included:
- B3.1.F. Design Control .
- B5.1.F. HVAC Repair Adjustment
- B9.3.F. Expansion Anchor Installation
- B10.2.F, Visual Weld Inspection 5
O SUBCONTENTION 5.C .
Subcontention 5.C, as admitted in this proceeding, states:
- 5. Contrary to Criterion III, " Design Control,"
of 10 C.F.R. Part 50, Appendix B, Commonwealth
. Edison Company has failed to establish measures to assure that applicable regulatory require ments and design bases are correctly 4
transla_ted into specifications, drawings, procedures, and instructions including provisions to assure that appropriate quality standards are specified in design documents and the deviations from such standards are controlled. Applicant has also failed to require that measures are established for the identification and control of design interfaces and for the coordination among participating design organizations, that the measures include the establishment of procedures among participating design inter-faces; and that the design control measures provide for verifying or checking the adequacy of design, such as by the performance of design reviews, by the use of alternate or simplified calculational methods, or by the performance of a suitable testing program.
C. Edison employed designs for safety-related HVAC duct supports based on Chapter E36.0 of S&L's Structural Standard Document which did not limit the slenderness ratio for ceiling mounted duct supports. (Inspection Report No.
85-43/39, Exh. 19.)
In its Motion for Summary Disposition, Applicant acknowledges that drafts of Chapter E36.0 of Sargent & Lundy's (S&L) Structural Standards Document omitted a maximum allowable limit on slenderness ratios required by the relevant section of the American Institute of Steel Construction (AISC) Steel Construction Manual. Motion at 4. Applicant argues, however, that this incident was an isolated occurrence and does not call into question Applicant's Compliance with 10 C.F.R. Part 50, Appendix B, Criterion III. Id. at 2. The Staff agrees. As explained below, the violation which forms the basis of Subcontention 5.C has been corrected
and did not raise any significant safety or hardware question.
Consequently, the Motion for Sumary Disposition should be granted. .
The violation upon which Subcontention 5.C is based was identified by Region III NRC Inspector J.W. Muffett during an inspection conducted to investigate the concerns raised by an expert witness in the remanded licensing hearings for the Byron Station facility. Affidavit of James W.
Muffett In Support of NRC Staff's Response To Applicant's Motion For Sumary Disposition Of Rorem QA Subcontention 5.C (hereinafter "Muffett Affidavit"). During his inspection, NRC Inspector Muffett found that Chapter E36.0 of S&L's Structural Standards Document (SSD) did not contain a limit on the slenderness ratio for ceiling mounted heating, ventilation, and air conditioning (HVAC) duct supports. Mu ffett Affidavit at 15; see Inspection Report Nos. 50-456/84043 and 50-457/84039 (attached as Ex. 5.C-2 to Muffett Affidavit). All other sections of the SSD contained the necessary guidance on maximum allowable slenderness ratios. Muffett Affidavit at 15.
To address this violation, Applicant: (i) evaluated existing HVAC duct support designs to ensure their structural integrity; (1,1) revised Chapter E36.0 to incorporate the maximum allowable slenderness ratio for HVAC duct supports; and (iii) reviewed its Structural Standards Document to ensure that there were no similar omissions contained therein.
Muffett Affidavit at 17. The implementation of these corrective actions was verified by NRC Inspector Muffett and he is satisfied that these measures are sufficient to remedy the effects of the violation and render minimal the possibility of recurrence. Muffett Affidavit at 18. Because the corrective actions taken by Applicant resolved the Staff's concerns,
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NRC Inspector Muffett closed this item in Inspection Report Nos. -
50-456/85040 and 50-457/85039 (attached as Ex. 5.C-3 to Muffett Affidavit).
As NRC Inspector Muffett notes, the " violation that forms the basis of Rorem Subcontention 5.C represents an isolated incident of failure to incorporate a design parameter in a design specification" and "does not represent a significant breakdown in Applicant's quality assurance program" relating to design control. Muffett Affidavit at 110.
Therefore, there is no genuine issue as to any material fact to be litigated regarding Subcontention 5.C and Applicant is entitled to a favorable decision on this issue as a matter of law. Accordingly, the Motion for Sunnsry Disposition of Subcontention 5.C should be granted.
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