ML20024E293

Motion for Sanctions Against Applicant Based on Behavior Re Discovery & Prehearing Procedures & Re Contentions 16 & DES- 19.Util Misrepresented Facts.Util Motion for Summary Disposition Should Be Dismissed.W/Certificate of Svc

ML20024E293
Person / Time
Site:	Catawba
Issue date:	08/05/1983
From:	Guild R GUILD, R., PALMETTO ALLIANCE
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8308100201
Download: ML20024E293 (10)

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00CKETED USNRC UNITED STATES OF RAE-9 A11 :55 NUCLEAR REGULATORY COM'ISSION M

DEEDBE_ISE_9I9t!IG_S9EEIY_9 neb $t[bb$BOBBD BRANC4 In the Matter of )

) Docket Nos. 50-413 DUKE POWER COMPANY, et alu ) 50-414

)

' (Catawba Nuclear Station ) August 5, 1983 Units 1 and 2) )

MOTION FOR SANCTIONS AGAINST DUKE POWER COMPANY ET AL.

The Statement of Policy issued by the NRC Commissioners in May 20, 1981 asserts that " fairness to all involved in NRC's adjudicatory procedures requires that overy participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations" and that "when a participant fails to meet its obligations, a Board should consider the imposition of sanctions against the offending party." [See Commissions Statement of Policy on Conduct of Licensing Proceedings, 13 NRC i

! 452, at 454 (1981)3.

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l Intervenors assert that the Applicant's pattern of behavior with respect to discovery and other pre-hearing procedures and on t

Contentions 16 and DES-19 warrant the imposition of sanctions.

The Applicants have consistently attempted to mislead the Board i by misrepresenting Palmetto Alliance's position on these i

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contentions in a way that abuses licensing process by obfuscating issues and hence diverting the energies of all the parties involved from the serious issues affecting the health and public safety. Some of the more egreD i ous examples of the Applicants efforts to distort Intervenor's attempt to be responsive on the discovery process are reflected in the Applicants' Motion For Sanctions Against palmetto Alliance and Carolina Environmental Study Group, submitted on June 6, 1983. As noted in PA and CESG's June 10, 1983 Response, Palmetto Alliance and CESG strongly objected to Applicants totally unsubstantiated claim that PA and CESG were deliberately trying to keep our contentions broad. palmetto Alliance denies (under the assump- tion that Applicants innuendos call for an explicit response) the implication that palmetto Alliance is either dishonest or dis- inDenuous in its participation in this pro-conding. We, and our members take with the utmost seriousness our obligations under Comminsion rules of practice and our obliga- tion to protect the health and safety of those persons living in proximity to the Catawba Nuclear Station. We are not playing games. palmetto observes that App- licants 144 page Motion is rife with dis- tortions, misrepresentations and mischarac- terizations of Palmetto's posit ions, motions and actions in this proceeding.

Palmetto Alliance and CESG Response to Applicants Motion for Sanctions Regarding Contentions 6, 7, 8, 16, and 44/18 and Responses to NRC Staff Motion for Sanctions Regarding Contentions 7 and 44, at pp. 3-4 Specifically with respect to Contention 16, the Applicants in their June 6 Motion accuse Palmetto of conducting " trial by surprise" and engaging in obstructionist tactics. But as

palmetto noted in its June 10 response After much smoke and thunder about the inadequacy of palmetto discovery re-sponses and a ringinD call for the dis-missal of the contention, they then plead the entitlement to the alterna-tive remedy of a narrowing of the con-tention to the specifics they concede are asserted in palmetto discovery responses. See Applicants Motion at pp. 123-125.

pA and CESG Response to Motion p. 21.

On pages 110-115 of their June 6 Motion the Applicants reflect clear outline of the specific accident scenarios that Palmetto had described in its Contention 16 discovery responses. palmetto Alliance has made its position clear again and again while the Applicants persist in their games. On page 119 of their June 6 Motion the Applicants use a gambit they have continued to employ in summary disposition. The Applicants argue that discussion of their cooling capability with regard to the expanded heat load is " unrelated to the Oconee/McGuire spent fuel storage issue" and hence outside of the scope of Contention 16.

1 Not only is this absurd on the face of it , but Applicants resort to mischaracterization and deception to buttress their claim. In a footnote to the text, the Applicants argue that it was in its May 27, 1983 Supplementary responses that Palmetto for_the_first

" the probability of ... boil-off occurring is tims alleges that

1. An absurdity that the Applicants will later try and refute by deliberately distorting Intervenor responses to discovery questions.

greater because of the increased heat load that will prevail at Catawba now that Oconee, McGuire and Catawba spent fuel assemblies will be stored there" (See Applicants Motion for Sanction June 6, 1983 FN#77 at p. 119). Furthse " inasmuch as this matter eng_ngt_tgised in palmetto Alliances May 27, 1983 Response to Interrogatory 13 . . . . Palmetto Alliance should not be permitted to raise the issue" (Id. at p. 119 emphasis added). Palmetto's response to interrogatory 13 reads, in part:

Palmetto Alliance believes that there is an unacceptably high probability that the water in the spent fuel pool will reach and surpass the 150 degree F heat limit which could result in ruptures in the pool liner plate, pool water leakaDe, and boiloff. . .

.Sush_en_escutense_is_mede_ mete _likely_beseuse__9f__ibe fast __tbet__deminn_medifisatienn_st_ce tenba__egre__tban double __tbe__numbet__9f__ fuel _ennemblien_19__be__sisted libereby_dtematiselly_instecninn_1be__ beet __leedt have si Dnificantly reduced the margin for error. In other words, the cooling trains and other " structures, cystem and components important to safety" were designed to operate with respect to a much lower heat load than the

,, subsequent modifications of the cascade plan called for if the safety related systems were designed so as to prevent water tamperature in the pool from water temperature in the pool from reaching dangerous levels when the pool contained a maximum of 662 fuel assemblies, then expanding the heat load to hold 1418 assemblies significantly increases the heat load and reduces the margin for error. (Lmphasis added)

PA Further Supplementary Responses to Applicants Interrogatories May 27, 1983, at p. 25.

Palmetto finds it hard to believe that the Applicants have this severe a problem understanding the English language and can only conclude that the Applicants are deliberately

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> misrepresenting the record in this case. Such a conclusion is strengthened by subsequent arguments made in this same connection i

in the Applicants Motion for Summary Disposition on Contention 1

! 16. Prior to the Applicants Motion for SummaPy Disposition, t

.I Palmetto Alliance had, in response to numerous interrogatories of I

I both Applicants and Staff, made its concerns regarding Contention 16 abundantly clear. The record reflected the following

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i I information and clarification provided cy I Palmetto i

l i *Bennense_19_999119 ants _101errenaterx__G_9f_89r11_12n i 12a3_Sunalementary_Besa20ses i Palmetto Alliance contends that the design of the enlarged pools has not adequately accommodated the l the j

expanded Catawba heat load beinD experienced from i

more than doubling in the number of assemblies to be stored including the Oconee and McGuire spent fuels. .

. ( p. 51).

• Bess 20se__19__Sicff_Interrene19ty_15_9f__99aust__13u 12aal i

palmetto Alliance still contends that the added i

scurce term, from the additional irradiated spent fuel l

transshipped in the cascade from Oconee and McGuire i represent an additional risk of harm beyond that

,! associated with storing at the Catawba facility only l

Catawba generated spent fuel.

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lI *Besc20se_19_Interrenciery_13__9f__Belmet19__9111ccee EurthMr_SuGDlgmgggggy_8gggggggg_Mgy_@Zs_12@@

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-quoted above- (p. 25)

• Bes990se_t9_Interrene19ty_Z_9f_99911 cants __E9119w:Ua

,l Interrenat9 ties _Benardinn_Cententiens_16_ cud _12 l

We contend that the probability of . . . boil- off occuring is greater because of the increased heat load l that will prevail at Catawba now that Oconee, McGuire, 7

and Catawba spent fuel assemblies will be stored there I

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(p. 30).

• Beneenne_te_Interrencierx_Z_of_Ecleette_8111anse_and GES9__Beneennen__te_Baalisanta_dex_23u__12e3__Eclieu:Ua Interreacherien_On_ DES __Gententien__11&_12s_12s_ June _Eu Igagu pA and CESG do not contend that there is any fundamental difference between Catawba spent fuel and Oconee/McGuire spent fuel such that one results in a greater heat load than the other. We are contending that if Catawba receives spent fuel from Oconee and McGuire as well as its own spent fuel this will result in an expanded heat load and radiation inventory (p.8).

• Beneenne___te__Interrenaterx__11__9f__E8__end___GES9 Ben 99anen__te__89911senin__dax___E3u___1283___E2119e:Ua Interrenaterien_en_ DES __Ggnigntigng__11t_1Zu_1g_Jgng_@t 1203u As with Interrogatories 7, 8, 9 and 10 above, the Applicants seem to attribute to pA and CESG the view that the orinin of the spent fuel has and effect on how dangerous to the environment it is or how likely it is to escape into the environment. It is obvious from our previous statements and responses that pA and CESG do not make such an absurd contention. (p.8)

• Eres__Ec1mette__Bilicose__end__GES9' n__Bennenne___t2 Baelisents_detien_fer_Eanstiensu_ June _19u_1203 Dasically, our concern is that the doubling of

, capacity of the Catawba spent fuel pools over its original design will significantly increase the heat load and yet Duke Power Company claims that the l

original heat removal system need not be modified . . .

l . The indications of the increased demands on the heat removal system are founded in Duke's own document, The 1976 Catawba Heat Load Study. Their own study indicates that the pool water temperature control capacity is limited under the assumed heat load in- creases that were studied. palmetto stands by the adequacy of its l discovery responses on Contention 16.

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In the face of this clear record the Applicants resort to l

l the sort of gamesmanship that makes a mockery of Duke's commitment to a fair licensing process

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Intervenors assert that the incidental environmental impant associated with the storage of Oconee and McGuire spent fuel at Catawba must be evaluated.

However, Intervenors do not contend that there is a relevant diffarence between Catawba spent fuel and Oconee and McGuire spent fuel. Rather,' they allege that storage of Oconee and McGuire spent fuel will result in a greater inventory at Catawba. . . .

However, the spent fuel pools of Catawba could be filled entirely with Catawba spent fuel only. In response to a question asking if they " contend that the DES and FES fail to evaluate the possible environmental effects associa 3d with the storage of Catawba spent fuel at Catawba" intervenors responded "No". See Intervenors Responses to Applicants Interogatories, May 2, 1983 at p. 11. Accordingly, if the Catawba spent fuel pools could be filled with spent fuel from Catawba only (which spent fuel Intervenors interrogatories acknowledge is no different fromn Oconee and McGuire spent fuel) then Intervenors' concern with the Catawba spent fuel pools being filled up with Oconee and McGuire spent fuel must be viewed as being enveloped by the environmental evaluation of the storage of Catawba spent fuel. In this roDard, Intervenors have stated that they do not content the environmental evaluation conducted on the storage of Catawba spent fuels therefore, nothinD remains to be litigated.

Applicants Motion at p. 6.

It was Duke power Company who created the so-called cascade plan that called for the storaue of Catawba, Oconee, and McGuire spent fuel. palmetto Alliance made clear that its concerns related to the increased inventory and heat load this plan represented, as the above. passages clearly show. In this context Intervonors were asked if we contended that the DES /FES failed to evaluate the storage of Catawba spent fuel. we replied "No", attempting once aDain to be clear that our concern related to the expanded pool design that would handle Oconee and McGuire

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b and Catawba spent fuel. The Applicants then seize on this response to deny in the face of explicit responses to interrogatories-- that Intervonors have raiced a concern at all.

This level of gamesmanship is truly astounding,' especially in light of the fact that this instance of obfuscation and bad faith participation (as well as all of the instances noted in this Motion) came on the heels of a specific warning given to the applicants by the Board regarding Contention 16:

On this contention the applicants do appear to have placed a very narrow interpretation--in es, whether the Catawba spent fuel pool can accomodate physical differences if any, in spent fuel assemblies. We caution the applicants against obstructing the discovery process by placing an unduly narrow interpretation on contentions and questions. We note in this connection that, on tne whole, the staff appears to have been more responsive to similar Palmetto interrogatories.

Board Memorandum and Order (Ruling On Various Discovery Disputes), December 22, 1982.

Palmetto Alliance hereby urges the imposition of sanctions upon the Applicants for deliberately confusing issues and misrepresenting Palmetto Alliance's position in a manner that flies in the face of the Commissions mandate to reduce delays and ensure fair and thorough hearing processes. We suggest that the appropriate sanctions include dismissal of the Applicant's Oconee and McGuire spent fual storage application, dismissal of the Motion for Summary Disposition on Contention 16 and DES-19, as 1

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O well as a warning to the applicants that misrepresenting the public record will not be tolerated. Just as the fact that a party may have personal obligations or possess fewer resources than others does not relieve that party of its' hearing obligations, an overabundance of resources should not excuse the excesses of 5 lawyers producing 144 page documents filing ursubstantiated charges of dishonesty and misrepresenting the public record.

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(

Robert Guild

)

Post Offico Box 12097 Charleston, South Carolina 29412 Counsel for Palmotto Alliance f

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 9IOff In the matter of ) Docket Nos. 50-413 '

) 50-414 DUKE POWER COMPANY, et al. ) *83 AUG -9 A11 :55

)

(Catawba Nuclear Station, ) ,_Aug s_t 6 , 1983 Units 1 and 2) ) jfFgE-T 0 I4G I SEW SRANCH CERTIFICATE OF SERVICE I hereby certify that copies of MOTIONSFOR SANCTIONS AGAINST DUKE POWER COMPANY ET AL.

in the above captioned matters, have been served upon the follow-ing by depositing same in the United States mail, postage prepaid, on this day of August 6, 1983 James L. Kelley, Chairman Chairman Atanic Safety and Licensing Board Panel Atcmic Safety.and Licensing Appeal Board U.S. Nuclear Regulatory Ccmnission U.S. Nuclear Regulatory Ca mission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan Henry A. Presler Union Carbide Corporation Charlotte-Mecklenburg Environmental Coal P.O. Box Y 943 Henley Place Oak Ridge, Tennessec 37830 Charlotte, N.C. 28207 Dr. Richard R. Foster J. Michael bb3arry, III, Esc.

P.O. Box 4263 Debevoise & Liberrran Sunriver, Oregon 97701 1200 Seventeenth St., N.W.

Washington, D.C. 20036 Chairman Atcmic Safety and Licensing Board Panel Jesse L. Riley U.S. Nuclrn Regulatory Ccmnission 854 Henley Place Washington, D.C. 20555 Charlotte, N.C. 28207 George E. Johnson, Esq. Scott Stucky Office of the Executive Lecal Director Docketing and Service Station U.S. Nuclear Regulatory Ccmnission U.S. Nuclear Regulatory Cmniasion Washington, D.C. 20555 Washington, D.C. 20555 William L. Porter, Esc.

Albert V. Carr, Jr., Esq.

Ellen T. Ruff, Esq.

Duke Power Caqany P.O. Bcx 33189 Charlotte, N.C. 28242 s

Richard P. Wilson, Esq.

Assistant Attorney General I '

g State of South Carolina  !

P.O. Box 11549 nobert Guild d Columbia, S.C. 29211 Attorney for Palmetto Alliance, Inc.