ML20024E988
| ML20024E988 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 09/06/1983 |
| From: | Kelley J Atomic Safety and Licensing Board Panel |
| To: | DUKE POWER CO., NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), PALMETTO ALLIANCE |
| References | |
| 81-463-01-OL, 81-463-1-OL, ISSUANCES-OL, NUDOCS 8309080069 | |
| Download: ML20024E988 (20) | |
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00cMETED USNAC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'83 SEP -7 A10 50 ATOMIC SAFETY AND LICENSING BOARD rrc"'m' Before Administrative Judges:
James L. Kelley, Chairman i
Dr. A. Dixon Callihan Dr. Richard F. Foster SERVED SEP 71983
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Docket No. 50-413 OL In the Matter of
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50-414 OL DUKE POWER COMPANY, Et A1 ASLBP No. 81-463-01 OL (Catawba Nuclear Station, Units
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1 and 2)
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September 6, 1983
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MEMORANDUM AND ORDER (Ruling on Applicant and Staff Motions for Sumary Disposition of Contentions 16 and 19 and on Palmetto Motion for Sanctions)
I.
Motions for Summary Disposition of_ Contention 16 4
Palmetto Alliance Contention 16 reads as follows:
Applicants have net demonstrated their ability safely to store irradiated fuel assemblies from other Duke nuclear facilities so as to provide reasonable assurance that those activities do not endanger the health and safety of the public.
On the basis of Palmetto Alliances' responses to interrogatories, Applicants' motion for summary disposition characterizes this contention as consisting of three parts (Motion, p. 1):
A. 1.
The design of t,he Catawba enlarged pool has not adequately i
accommodated the expanded heat load; A. 2.
The potential for cask drop and fuel handling accidents is increased; B309080069 830906 DR ADOCK 05000
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- A. 3.
The potential for aircraft crashes to threaten public health and safety is increased.
Relative to Part A.1., Applicants proffer " material facts to which there is no genuine issue to be heard."
(Applicants' Motion II-B through H); relative to Part A.
2., seven more material facts (II-I through 0) are proffered; and relative to Part A.
5., material facts II-P and Q are proffered. These submissions are supported by affidavits from Duke Power Company employees A. L. Snow, M. S. Tuckman, and M. C.
Green.
The Staff's motion for summary disposition of Contention 16 focuses on three principal areas:
(1) criticality; (2) the ability of the spent fuel pool cooling system to remove decay heat and to maintain adequate levels of water; and (3) the ability of Applicants to move spent fuel casks into and out of the spent fuel storage facility without causing damage either to the assemblies being moved or to assemblies in the spent fuel pool.
The Staff also considered whether removal of spent fuel assemblies from the casks presented any safety concerns. The Staff
" statement of material facts" includes 8 statements on the criticality area (5-12); 18 on the cooling system (13-30); and 8 on cask handling (31-38).
Material fact No. 39 deals with doses to workers, and No. 40 makes a legal conclusion.
The Staff's submission is supported by affidavits from NRC employees A. Singh and K. N. Jabbour.
In its answer of August 5, 1983 Palmetto Alliance reinterates its concern about Duke Powar Company's " Cascade Plan" for moving spent fuel from one station to another and poses general ouestions about the
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- 4 cooling capacity for the enlarged fuel storage area and the risks associated with the handling of large numbers of spent fuel casks,
arriving from other sites.
Its general argument involves not only Contentions 16 and DES 19, but also several other contentions which this Board has already rejected.
See 15 NRC 578-581; Memorandum and Order of February 25, 1983.
We caution Palmetto Alliance against further attempts to reintroduce issues such as the management and transport of spent fuel from other power stations which are outside the scope of this proceeding.
More to the point, Palmetto Alliance has provided as a part of its answer to Contention 16 a list of material facts as to which they allege a genuine issue. We read these " material facts" as an attempt to l
controvert those of the Staff and Applicants, even though they are little more than assertions, unsupported by affidavits by experts.
Indeed, Palmetto Alliance states that:
"[It] employs no persons competent to testify either from personal knowledge or on the basis of expert opinion to the matters addressed in the affidavits of the employees of the NRC or Duke Power Company."
(Affidavit of counsel for Palmetto Alliance, p. 2.)
Palmetto asks for a continuance to give it additional time to obtain affidavits to support its position.
Palmetto states that it has found two experts, Dr. Marvin Resnikoff and Mr. Lindsay Audin to perform the needed analysis. We deny this request for a continuance primarily because it is untimely.
Palmetto has been on notice for many months that it would probably face a summary disposition motion on this highly
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technical contention, and that it had no technical expertise to support its position.
Furthermore, the motions themselves;-- which Palmetto alleges contain new technical material -- were served on July 8, almost i
a month before the c.ontinuance was finally requested,on the same date that Palmetto's response to the motion was due. Beyond that, the continuance request is open-ended. We are not being asked for an additional week, or month, or for any specific period, but apparently for however long it may take to secure the desired affidavits.
In view of the fact that we are denying the, motions for summary disposition in several respects as explained hereafter, it does not-appear that Palmetto is being significantly disadvantaged by our denial of its continuance request.
We hope that Palmetto will be able to obtain the assistance of necessary experts in the presentation of its case on these technical contentions.
A.
Adequacy of the Spent Fuel Pool Cooling System 1.
Under Nomal and Maximum Heat Load Conditions,;
The Staff affiants (1 10) state that the pool water temperature can be maintained at less than 105 F with two cooling trains a
b operating assuming maximum heat load of 39 x 10 Btu /perhour(emphasis added). This temperature is also maintained when storing Oconee and McGuire spent fuel. The " maximum" increase in heat load due to storing Oconee and McGuire fuel is less than 2%.
It states further that the cooling system is designed to maintain a pool' temperature below 150'F with a heat load of 42.7 x 10 Btu /per hour, s
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Applicants' Material Fact C maintains.that the spent fuel pool cooling system satisfies GDC 44 and 61; that the failure of one train will not compromise the design temperature under normal conditions; and that un<ier abnormal conditions.[ maximum beat load?] consideration of failure of either train is inappropriate (emphasis adced).
Palmetto Alliance questions how the inventory of spent fuel in the Catawba pool can be more than double that planned at the CP stage without increasing the effectiveness of the cooling system and how adding, such a substantial amount of spent fuel from Oconee and McGuire only* increases'the heat load by 2%.
(Material Facts 27, 28, 29 and pp.
10 and 11).
In view"of ;le enigmatic statements of the Applicants and Staff relative to u oling capacity under various combinations of normal,
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maximum, and abnormal heat loads, with and without Oconee and McGuire spent fuel and with one or both cooling trains operating, we find that the evidence does not establish the absence of a genuine issue.
The purtions of the Applicants' and Staff's motions which concern the ability of the spent fuel pool cooling system to maintain the d
anticipated pool water temperature, with 0conee and McGuire fuel, at or below the Staff's acceptance criteria is denied, g
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'2.
Under Abnormal and Accident Conditions i
[
If the spent fuel pool cooling system should fail to perform its function, for whatever reason, the temperature of the pool water could rise above the acceptance criteria value (150*F) and might eventuallybdil. ' Appl'icants' affiant '(M. C. Green, p.1 and 2) explains i
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'. o that the fuel pool liner will not rupture at 150 F and that the leak tight integrity of the liner system would be maintained at 210' F.
He further states that if the liner plate did fail, calculations indicate a total outflow through all cracks of less than one-half gallon per day.
Palmetto Alliance (Material Facts 10,11, and 12) controverts the Applicants' statement but offers no evidence or rationale for the opposite view.
The Staff's motion does not address this matter.
Finding no basis for Palmetto Alliance's position we grant Applicants' motion in respect to the integrity of the pool liner and leakage from cracks in the structure.
The Staff's Material Fact No. 25 states that " Applicants' analysis of the consequences of failure of both cooling trains, assuming no makeup water is supplied and the maximum decay heat production rate, showed that it will take 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> before the fuel assemblies would be uncovered; this affords ample time under any foreseeable conditions to initiate makeup water replacement to maintain tLe water level in the pool."
Palmetto Alliance asserts that, in the event of an accident, the stored fuel assemblies will not remain covered for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> (Material Fact 4), that 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> is not sufficient time to initiate corrective action (Material Fact 8), and that manually initiated sources l
cannot provide virtually unlimited makeup water for the pool (Material Fact 9).
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. The Applicants state that NRC recognizes that 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> is sufficient (Motion at 8, 9) and that the manually initiated makeup water supply sources can provide virtually inlimited makeup (A. L. Snow, 18).
n However, as support for 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> being sufficient to take corrective action, Applicants cite 10 CFR 50, Appendix R, II, L 5 and FSAR 69.1.3.3.1.
We read Appendix R to be associated with fire protection.
Further, FSAR 9.1.3.3.1 states that "the fuel assembly would remain covered for the required 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> to meet sabotage requirements" (emphasis added).
FSAR 9.1.3.3.1 goes on to read:
"The time [72 hours] takes into account 26 gpm being removed from the pool for reactor coolant makeup and that the fuel pool boils after approximately 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br />.
The large heat capacity of the fuel pool and the slow heat up rate provide enough time for maintenance to assure adequate cooling for multiple component failures including the above, complete loss of cooling."
We find that a genuine dispute exists concerning the validity 9
of the 72 hour8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> time calculations and whether there will be sufficient time to take corrective action needed to prevent uncovering of the fuel assembly. Tnis aspect of the Applicants' and Staff's motions are denied.
' B.
Criticality This area is not a distinct part of the Applicants' motion but is mentioned briefly in relation to the dropping of a spent fuel cask (M.
C. Green,18, 9,10 and 11). As we read Mr. Green's affidavit, GDC 62
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. is satisfied because the dropping of a spent fuel cask onto spent fuel assembly cannot happen.
The Staff's motion treats the potential for criticality in much greater depth (Material Facts 5-12) but acknowledges that "the Staff did not perform any direct calculations of the reactivity of spent fuel storage arrangements within the racks but a comparison was made to the design of the spent fuel racks in other plants." The Staff also states that "the Applicants performed an analysis which showed that criticality will remain below 0.95... for any configuration of the fuel storage in the Catawba pool that would involve fuel from McGuire or Oconee facilities."
(Affidavit, 1 9).
of 0.95 or less does not Palmetto Alliance maintains that a k,ff provide an adequate margin to preclude criticality (Fact 20), and that the fuel storage arrangement at Catawba is not adequate to maintain an acceptable margin to criticality (Facts 22,23,24). They also challenge the Staff's use of comparative, rather than direct, calculations (Fact 21) and the Applicants' analysis of configurations involving fuel from McGuire and Oconee.
Palmetto Alliances's assertions dre not supported by affidavits of experts or other evidence.
Considering the unsual size of the expanded Catawba fuel storage facility, it is not self-evident that the reactivity of the spent fuel storage arrangement can be adequately assessed by a comparison to other plants rather than by a design specific calculatioa.
Further, the Staff does not indicate whether the Applicants' analysis of configurations of spent fuel from McGuire and Oconee received any independent review.
9 Thus the evidence does not establish the absence of a genuine issue to be heard and the portion of the Staff's motion concerned with criticality is denied.
C.
Cask Drop Applicants' maintain that it is physically impossible for a cask to drop into the spent fuel pool (Motion, p. 10).
This position, which relies heavily on mechanical stops to prevent the cask crane from being moved into the fuel pool area, is supported by the affidavit of M. C.
Green (11 8-12 and FSAR 9.1.2.3).
The Staff's motion (Material Fact 31-38 and somewhat more lucidly the Affidavit at 55 14-17) explain that the safe handling of heavy loads is assured by a two phase approach.
First, by a set of general guidelines identified in NUREG-0612; and second by requiring extra
" features" where evaluation indicates that the potential consequences of a load drop could be "significant". The Staff affidavit at paragraph 16 states that " -- the Applicant has committed to implement tha measures in [ affidavit] paragraph 15 above before receiving an operating license." Neverthelt;s, the Board infers from the obscure statement of Affidavit, paragraph 16 and SER 59.1.5, that one or more issues posed in i
NUREG-0612 remains.
Palmetto Alliance denies the Applicants' claim that a cask drop accident is physically impossible (Material Facts at p. 20) and also asserts that a commitment by the Applicants to meet NRC requirements is not enough (Palmetto Alliance Material Facts 33 and 17).
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. However, no supporting evidence is presented.
Nor does Palmetto raise any significaot questions about the Applicant and Staff position.
The Applicants and Staff have considered cask drop potential at length and are proceeding with NRC requirements that are specifically formulated to prevent such accidents. Although the implementation of the specific requirements is not yet complete, the Applicant has committed to accomplish this implementation before receiving an operating license.
Such commitments about future performances are appropriate for many requirements in the operating license context, so long as there is a reasonable assurance that they will be met.
Therefore, we find no genuine issue of material fact concerning the dropping of a cask'into the spent fuel pool and this portion of the
- Applicants' and Staff's motion is granted.
D.
Fuel Handling Somewhat apart from the issue of dropping a cask into the spent fuel pool is the potential for mishandling of the cask (including the removal of the cask lid when shielding is inadequate, i.e., the top of the cask protrudes above the water).
Palmetto Alliance maintains that the Applicants' lack of experience and absence of written procedures, combined with the large number of casks expected to arrive from Oconee and McGuire raise serious questions about the Applicants' ability to meet the GDC 61 requirement for suitable shielding for radiation protection.
(Palmetto Alliance Material Facts, p. 16).
Applicants maintain that the procedures wilk be implemented, but they are not yet completed and will not be needed for some years.
'. (Applicants' motion at p. 12).
The Staff inerely states that the unshielded removal of the cask lid would be inconsistent with the Applicants' commitment to assure that doses to workers are as low as reasonably achieveable.I None of the evidence presented by the parties is persuasive and the movants have not shown that there is no genuine issue as to any material fact. Consequently, we deny the part of the motion which relates to fuel handling.
E.
External Threats The Applicants and the Staff believe that Palmetto Alliance expects to include external threats, such as aircraft crashes, within the scope of' Contention 16.
(Applicants' motion, p. 14 and Staff's motion, p. 3).
Palmetto Alliance makes its intent abundantly clear with 3 pages of argument beginning on p. 20 of its Material Facts response.
As stated by both the Applicants (motion at p.14) and the Staff (motion at'p. 4), Intervenor sought to introduce this topic with their contentions on the DES (DES 16). That contention was rejected by this Board as untimely.
It is not appropriate for Palmetto Alliance now to I
attempt to reintroduce that same subject by annexing it to a different contention that was accepted much earlier in this proceeding. We do not 1
The Board notes that Contention 16 is concerned with the health and safety of the public. Workers are not mentioned.
Since neither Applicants nor Staff have objected to the broadening of the scope to-include occupational exposure, we do not disallow it.
. consider external threats such as aircraft crashes to be embraced within this contention which is concerned with the activity of storing irradiated fuel assemblies from other Duke nuclear facilities. We now specifically exclude external threats such as aircraft crashes from consideration in the contention.
We note in conclusion that the Applicants' decision to expand the spent fuel pool at Catawba was taken after the construction pennit was issued.
The expansion was accomplished without a formal construction permit amendment because the Applicants and Staff apparently believed that it did not involve a "significant hazards consideration" within the meaning of Q 189a of the Atomic Energy Act.
As a result, there has been no opportunity for public scrutiny of the expanded spent fuel pool in the licensing process.
This provides an independent reason why seemingly significant safety issues concerning the pool should be explored at the hearing.
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II.
Motion for Sumary Disposition of Contention 19_
l Contention DES 19 is the remnant of a much broader contention l
l originally filed by Palmetto Alliance in December of 1981 as Contention l
- 15. The history of this contention, and rejection of all parts save 1
that listed below, was set forth in our Memorandum and Order of February l
25, 1983, pp. 8-9.
The portion of DES 19 we finally ddmitted reads as follows:
Failure to evaluate the environmental costs of operation of Catawba as a storage facility for spent fuel from other Duke facilities compromises the validity of the favorable cost-benefit balance struck at the construction permit phase of this proceeding.
Since the CP stage hearing, l
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. Duke Power has considerably expanded the Catawba spent fuel pool capacity and provided for denser storage of irradiated fuel.
FSAR Table 1.2.3-1.
Applicants intend to use Catawba for storage of irradiated fuel from the McGuire and Oconee nuclear facilities of Duke Power Company.
FSAR 9.1.2.4; OL Application, pp. 11-12.
This Board recognized that the wording of DES 19 was rather general "... due in part to the fact that the FES contains very little analysis of environmental impacts associated with the spent fuel pool."
Id. We directed that the primary focus be on the environmental effects of routine releases during normal operation at Catawba. We noted that there would be "no reason to consider" environmental effects of severe accidents "... unless it were first shown that severe accidents are credible in the spent fuel pool designed for Catawba."
Id.
Now before us are motions for summary disposition of Contention DES 19 by the Applicants and Staff and a response to both motions from Palmetto Alliance.
All parties discuss both routine releases and accidents.
We treat these areas in that order.
Routine Releases Applicants' listed six (C-H) material facts as to which there are no genuine issues to be heard relating to routine releases and support those facts with an eight point affidavit from employee A. L.
Snow.
The Applicants' argument is to the effect that:
(a) Inter veriors failed to raise a general spent fuel pool contention; (b) they expressed their concern only about the transhipped fuel from both Oconee and McGuire; (c) since there is nothing different about the transhipped fuels, the environmental impact cannot be greater than that from a pool
. filled only with spent fuel from Catawba; (d) since there is no argument about filling the pool with Catawba spent fuel, there should be no concern about part of the pool contining spent fuel from Oconee and McGuire. We reject this debate team approach and turn our attention instead to the potential for a significant increase in environmental costs as a consequence of there being a spent fuel pool of expanded size partially filled with fuel from the Oconee and McGuire stations.
The Staff's motion on this contention handles the potential for routine releases from the spent fuel storage facility (SFSF) and the environmental consequences in a clear and straightforward manner.
Its motion lists 40 material facts as to which there is no genuine issue to be heard and, significantly, supports the motion with an affidavit of employees J. S. Boegli, E. F. Branagan, Jr. and R. J. Serbu, which is 16 pages long. The subjects covered by the list of material facts and by the affidavit include:
(a) reference to pertinent parts of the FES, (b) the nature and source of radioactive materials released from spent fuel assemblies stored in the pool, (c) the nature and quantity of radioactive material originating in the spent fuel storage facility which escapes to the off site environment, (d) the doses to individuals l
and iopulations which result, (e) the dose to workers who handle the l
l fuel, ind (f) the nature and volume of the solid waste generated by the transhipp:J fuel.
Paimetto Alliance's answer to the motions for summary l
l disposition of des 19 provides a list of 32 material facts alleging a l
genuine issue to be heard.
This list closely tracks that of the Staff l
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. and with minor exceptions simply states that the Staff fails to adequately demonstrate its point.
While the Staff's facts are supported by its affidavit which goes on to explain key assumptions and makes reference to the computational methods used, Palmetto Alliance offers no basis at all for its list of material " facts." Indeed, Palmetto's list is nothing more than a pro forma denial.
Under the summary disposition rule, such denials are to be given no effect.
10 CFR 2.749(b).
In view of the Staff's thorough presentation and Palmetto's failure to present any contrary evidence or even to suggest a significant issue, we find that there are no material facts as to which there is a genuine issue to be heard concerning routine releases (including solid waste) from the Catawba spent fuel pool.2 The Staff's motion for summary disposition is granted.
Accidental Releases The motions of both the Applicant and the Staff plead that Palmetto Alliance had not shown that a severe accident in the SFSF is 2
This contention focuses on the environmental costs of the spent l
fuel pool.- In this situation, we read " environmental costs" as l
primarily associated with radiation dose to people. The Staff estimates the dose to the total body of the population within a 50-mile radius of Catawba,.due to the nonnal operation of the SFSF to be less than 0.1 man-rem per year. Affidavit, 1 18.
In order to have an environmental cost of any significance, the dose to the population would need to be many times the estimated 0.1 man-rem.
Consequently, we do not view the facts proffered in regard to the adequacy of predicting routine releases and the resulting dose as material, in the sense they would not likely affect the outcome of the litigation.
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. credible (as conditioned by this Board's Order of February 25,2983)and consequently severe acci. dents should be excluded from further j
consideration.
Palmetto Alliance argues that it has raised a number of accident scenarios, and cites the accident portion of its rebuttal to summary disposition motions on Centention 15 as support. Absent the summary disposition presentation on Contention 16, we would have no prior showing at all about accidents, credible or otherwise, in relation to DES 19.
Palmetto Alliance's subject pleading, which merely postulates accident types without further evidence or elaboration, does not show that any of them are credible.
Our rulings on the abnormal and accident portions of Contention 16 allowed the following aspects of that contention to be heard:
(1) a 72 hour8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> period for re-establishment of pool cooling, (2) i criticality and (3) fuel handling. Should Palmetto Alliance prevail in i
i the hearing on any of these admitted scenarios, we will then determine whether there is a need for further consideration under Contention 19 of the environmental effects of accidental releases associated with such scenarios. As to other possible accident scenarios under Contention 19, the Applicant and Staff motions for summary disposition are granted.
Occupational Exposure The Staff's motion for summary disposition of DES 19 includes the aspect of occupational exposure.
(Material Facts 6, 33, 34, 35, 36, 37, 38 and affidavit, pp. 11-14).
In response, Palmetto Alliance merely asserts that the Staff has failed to adequately demonstrate that i
. occupational doses are properly characterized.
(Material Facts 25, 26, 27 and 28).
The Staff's position is adequately supported by its affidavit and Palmetto Alliance presents no reasons at all for its contrary assertions. We grant the Staff's motion relative to the occupational exposure aspect of this contention.3 Staff's Affidavit As a part of its answer to the motion on DES 19, Palmetto Alliance complained that the Staff's affidavit is supplementary in nature and that Palmetto Alliance should be provided an opportunity to retain an expert to review it.
(Material Facts on DES 19, at p. 12).
Palmetto suggests further that this affidavit be published as a supplement to the FES and circulated for public comment.
As we made clear in denying a similar continuance request (pp. 3-4 above), we have no intention of prolonging this proceeding by granting belated requests for open-ended continuances to enable any party to seek advice on technical matters that could have been sought in a timely fashion.
However, we do agree that the subject affidavit is a welcome clarification of how the Staff arrived at the values and conclusions 3
We find the inclusion of occupational exposure in this environmental. costs contention surprising -- the more so because of related Contention 16, supra, which includes the same subject and is more obviously dependent on GDC 61 and ALARA concepts.
In any event, we will be hearing the fuel handling aspect of the subject as an accepted part of Contention 16.
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'. about the SFSF which they published in the FES.
In order that the Staff's affidavit will be readily available in the public record, we are appending it to this Order for later publication.
III.
Palmetto Alliance Motion for Sanctions Against Duke Power Company By motion dated August 5, 1983, Palmetto Alliance has asked the Board toimpose certain sanctions on the Applicants.
In support of this request, Palmetto alleges that:
"The Applicants have consistently attempted to mislead the Board by misrepresenting Palmetto Alliance's position on...
contentions [16 and 19] 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." Motion, pp. 1-2.
The specific example principally urged in support of this broad claim concerns the way in which the Applicants have characterized both the scope of Contention 16 and certain Palmetto positions in discovery under Contention 16.
The Applicants have responded in opposition to the Palmetto motion. The burden of their argument is that the motion is factually inaccurate and that, if any sanctions are warranted, they should be imposed on Palmetto.
The Applicants analyze various pleadings in detail in an effort to show the accuracy and reasonableness of their past positions.
The facts of this matter are relatively complicated, as evidenced by the thirty pages of pleadings before us.
Because of the view we take of it, we are not required to weigh and determine the right er wrong of every charge and counter-charge involved.
Suffice it for our purposes
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, to say that the Applicants' very narrow interpretation of Contention 16 is wrong. To say, as the Applicants do, that Contention 16 is concerned only with differences in fuel characteristics between Catawba, Oconee and McGuire requires a hypertechnical parsing of its terms and a disregard of the context from which it emerged.
Indeed, quite early in the case we indicated our disagreement with the Applicants' narrow reading of this contention, although we were never called upon to render a square ruling during discovery.
16 NRC at 1951.
Contrary to the Applicants' position, and as reflected in our summary disposition ruling, Contention 16 does encompass the design characteristics of the Catawba spent fuel pool and whether they will accommodate the quantities of spent fuel possibly to be transhipped from Oconee and McGuire. Most of what the Applicants have to say in the merits portion of their response (pp. 6-19) rests upon their impermissibly narrow reading of Contention 16.
We accordingly disagree with most of this discussion.
Having said that much, however, it does not follow that some sanction against the Applicants is appropriate merely because they have t
taken a legal position the Board thinks is wrong.
In this regard, we j
are guided primarily by the Commission's Statement of Policy on Conduct L
of Licensing Proceedings, 13 NRC 452, 454 (1981). To be sure, the Commission stated that: "When a participant fails to meet its obligations, a board should consider the imposition of sanctions against the offending party." But that statement was made in the context of preventing unwarranted delay in licensing proceedings.
For example, sanctions are appropriate when a party entirely fails to meet important I
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. discovery obligations, as Palmetto has done earlier in this case.
See Memorandum and Order of June 20, 1983.
But except perhaps in very unusual circumstances not presented here, partisan advocacy is an inherent part of the process, not a basis for sancticns.
A few additional observations are called for.
Palmetto's motion levels several serious charges against the Applicants, including attempts to " mislead the Board" (p. 1), " deception to buttress their claim" (p,3) and " deliberately misrepresenting the record" (pp. 4-5).
In our judgment, none of these charges has been substantiated.
Furthermore, these charges and other portions of Palmetto's pleading (for example, the last sentence) impugn the integrity of the Counsel for the Applicants. The motion does not substantiate these charges.
On the basis of their participation in this case over an extended period of time, the Board knows Counsel for the Applicants to be men and women of integrity.
We caution Counsel for Palmetto to avoid inflammatory 4
rhetoric in the future.
The Palmetto motion for sanctions is denied.
-FOR THE ATOMIC SAFETY AND LICENSING BOARD JI J
s L. Kelley, Chairman A inistrative Judge V'
September 6, 1983.