ML20080C223
| ML20080C223 | |
| Person / Time | |
|---|---|
| Site: | Catawba  |
| Issue date: | 08/17/1983 |
| From: | Mcgarry J DEBEVOISE & LIBERMAN, DUKE POWER CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8308190281 | |
| Download: ML20080C223 (23) | |
Text
1 I
80CNETED usnRc 55 I5318 A854 UNITED STATES OF AMERICA NUCLEARREGULATORYCOMMISSIO{"~""~?"
BEFORE THE ATOMIC SAFETY AND LICENSING B'OARD' In the Matter of )
)
DUKE POWER COMPANY, et al.
) Docket Nos. 50-413
) 50-414 (Catawba Nuclear Station, )
Units 1 and 2) )
APPLICANTS' RESPONSE TO PALMETTO ALLIANCE'S
" MOTION FOR SANCTIONS AGAINST DUKE POWER COMPANY ET AL" Pursuant to 10 C.F.R. 32.730(c), Duke Power Company, et al. (" Applicants") herein respond to Intervenor Palmetto Alliance's " Motion for Sanctions Against Duke Power Company Et A1," filed August 5, 1983. This Motion seeks " dismissal of the Applicants' Oconee and McGuire spent fuel application" and " dismissal of the Motion for Summary Disposition on Contention 16 and DES-19" (Motion at p. 8).1 As will be demonstrated below, Intervenor's 1 palmetto Alliance's Contention 16, admitted by the Board's Memorandum and Order of July 8, 1982 (pp. 7-8)_
reads as follows:
Applicants have not 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.
Palmetto Alliance /CESG joint Contention DES 19 reads as follows:
Failure to evaluate the environmental costs of 8308190281 830817 PDR ADOCK 05000413 9 PDR t SO3
l Motion is both factually inaccurate in the accusations on which it is premised and legally insufficient to support the imposition of sanctions. Applicants accordingly submit that this Motion must be denied.
Intervenor's Motion makes repeated and serious, but unwarranted, accusations against Applicants. It begins by asserting that " Applicants have consistently attempted to mislead the Board by misrepresenting Palmetto Alliance's position en [ Contentions 16 and DES-19] in a way that abuses licensing process by obfuscating issues . . .
(pp.
1-2), and goes on to contend that Applicants have (footnote continued from previous page) operation of Catawba as a storage facility for spent fuel from other , Duke facilities compro-mises the validity of the favorable cost-benefit balance struck at the construction permit phase of this proceeding. Since the CP stage hearing, 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. FSAk 9.1.2.4; OL Application, pp. 11-12.
The Board in its Memorandum and Order of February 25, 1983 (pp. 8-9) admitted this contention stating:
The Board understands in admitting it that the primary focus of DES 19 would be on the en-vironmental effects of routine releases from such transshipped fuel during normal operations at Catawba. Although the contention literally extends to environmental effects of severe accidents, there would be no reason to consider such effects unless it were first shown that severe accidents are credible in the spent fuel pool designed for Catawba.
" resort [ed] to mischaracterization and deception" (p. 3),
and that Applicants "are deliberately misrepresenting the record in this case" (pp. 4-5). Applicants are accused of
" obfuscation," " bad faith participation" (p. 8) and "the sort of gamesmanship that makes a mockery of Duke's commitment to a fair licensing process" (p. 6).
When one looks beyond this rhetoric and invective, however, there is no substance underlying these accusa-tions. In support of its claims, Palmetto Alliance relies upon passages from one page and one footnote in Applicants' June 6, 1983 Motion for Sanctions and upon a
.brief excerpt from Applicants' July 8, 1983 Motion for Summary Disposition on DES Contention 19. Palmetto Alliance's apparent misunderstanding of the nature of the argument being made in these cited pages has led it to assert that Applicants are attempting'therein to mislead the Board on certain aspects of the Intervenor's position on Contentions 16 and DES 19. A reading of these excerpts in the context in which they were written reveals, however, that this is not the case. Applicants have in no way attempted to distort the record or to misrepresent Palmetto Alliance's position on any issue.
The fact that these allegations are groundless,- ,
however, does not mean that Applicants regard them lightly. On the contrary, the timing of this Motion q
(which presumably could have been filed at any time after Applicants' June 6, 1983 Motion for Sanctions or July 8, 1983 Summary Disposition Motion on DES-19, at which Intervenor has taken such offense) suggests that this may be an attempt by Palmetto Alliance to create a smokescreen of confusion and inaccuracy about the parties' positions on Contentions 16 and DES-19 which will tend to aid its opposition to a grant of summary disposition on these contentions. Whatever the Intervenor's motives, this Motion is couched in abusive language which impugns Applicants' integrity as a party to this proceeding, and has no basis other than Palmetto Alliance's own misunderstanding or distortion of an issue on which Applicants' position is quite clear. As such, the Motion warrants careful scrutiny by the Board. If, after reviewing this response, the Board concurs with Applicants' belief that Palmetto Alliance has filed a frivolous Motion which has created confusion and innuendo over Contentions 16 and DES-19, Applicants submit that it is the Intervenor who should face disciplinary action.
i 9 T
, ARGUMENT
- A. This Motion is Factually Inaccurate In support of its Motion, Palmetto Alliance asserts (p. 2) that "[s]ome of the more egregious examples of the Applicants' efforts to distort Intervenor's attempt to be responsive on the discovery process" are reflected in Applicants' June 6, 1983 Motion for Sanctions. Applicants will discuss each of these " examples" in turn.2 2 Palmetto Alliance first voices an objection (p. 2) to Applicants' assertion in their discovery responses that the Intervenor has consistently attempted to keep its contentions broad and unfocused so that it would be in a position to raise any concern remotely associated with the contention at any time up to and including the hearing. Applicants have maintained that the Intervenor's lack of responsiveness is calculated to achieve this purpose; and indeed, Palmetto Alliance's unresponsiveness has not gone unremarked by the Board.
As long ago as the October 8, 1982 prehearing
, conference, the Board noted that, in general, many of Palmetto Alliance's interrogatory answers were unsatis factory, stating that the Intervenor's answers were not " responses to the questions in any. full sense." (Tr. 611). In its December 22, 1982 Order,.the Board noted (p. 3) in reference.to Intervenor's interrogatory-responses on Contentions 8, 16 and 27 that "all but a handful of Palmetto's answers to the Applicants were not in fact responsive." Subsequently, in its May 13, 1983 Order (pp. 1-2) the Board reiterated its criticism of Intervenor's discovery responses in general:
Palmetto's responses to many key questions have been-vague, evasive, incomplete or nonexistent. This is so despite the fact that Palmetto has been given every reasonable opportunity to develop adequate
-answers to the Applicants' and Staff's interrogatories.
i The Board then put Palmetto Alliance on notice that
" factual specifics" were required.
Palmetto Alliance devotes a substantial part of its Motion to a discussion of certain language found on p. 119 of Applicants' June 6 Motion for Sanctions. Intervenor cites language in the text and in the footnote on that page as evidence of Applicants' alleged attempts to mischaracterize Intervenor's position on Contention 16.3 i
1 An examination of the text on pp. 118-120 and of footnote 77 indicates, however, that the arguments expressed '
therein by Applicants are quite clear. Any resulting confusion as to the meaning of this language is due either to the Intervenor's failure to understand Applicants' position or to Intervenor's dissatisfaction with, and attempt to obscure, the' position in which it now finds itself on this contention.
The discussion (to which Intervenor refers on p. 3 of the instant Motion) of p. 119 of Applicants' Motion for Sanctions concerns Palmetto Alliance's assertion that General Design Criteria 44, 61 and 62 will not be met (and that the water temperature of the spent fuel pool will reach " dangerous levels") because the spent fuel pool cooling system is inadequate to accommodate the heat load associated with the quantity of spent fuel to be stored in 3 Much of the followingl discussion'on contention 16 also relates to DES-19, as these two contentions raise
-concerns on the safety .and the environmental impacts, resgatawbaectively, at of storing Oconee.and McGuire spent fuel
the expanded spent fuel pe l. (As explained below, Applicants believe that this assertion is beyond the scope of the contention.) Responding to this assertion, Applicants stated on p. 119 of their Motion:
With respect to the adequac of the in-place cooling system, Applicants naintain that such is unrelated to the Oconee/McGuire spent fuel stor-( age issue, which of course is the subject of the I
contention. Rather, the matter relates to the adequacy of the spent fuel pool in general -- a matter not the subject of this proceeding. As such, this allegation should be stricken.
The point which Applicants sought to make here was that the language of Contention 16 does not deal with the general adequacy of the spent fuel pool cooling system to handle the heat load of the expanded spent fuel pool (whether or not this was or now may be a matter of concern to the Intervenor). Rather, Contention 16 focuses specifically on Applicanto' ability " safely to store irradiated fuel assemblies from other Duke facilities" without endangering the public health and safety.
Palmetto Alliance's assertions that the cooling' system is inadequate to cool the current spent fuel pool are not relevant to the question of whether Oconee and McGuire spent fuel can be stored safely at Catawba, unless it can be shown that there is some unusual heat characteristic of Oconee or McGuire spent fuel (as opposed to Catawba spent-fuel) which would affect the designed cooling capability.
Intervenor's answers to interregatories disavowed any such
l I
distinction;4 thus, the general issue of the adequacy of the spent fuel pool cooling capability should not be litigated under Contention 16.
Applicants submit that the distinction we have drawn between these two issues (i.e., the overall sufficency of the cooling system to service the expanded spent fuel pool
-- which could conceivably contain fuel from Catawba, Oconee, and/or McGuire -- vs. the possible safety issues unique to the storage of Oconee and McGuire spent fuel at Catawba) is not " absurd on the face of it" as Palmetto Alliance asserts. On the contrary, this distinction (which is significant in terms of the proper scope of Contention 16) is quite clear.
4 One of Applicants' interrogatories on DES-19 reads as follows:
- 7. Explain whether (and, if so, why) you con-tend that the " heat load and radiation inven-tory" associated with the spent fuel pools would differ depending upon whether the fuel pools were filled with Catawba spent fuel or with Oconee/McGuire spent fuel. Provide the bases for your answer.
Palmetto Alliance stated in its June 6, 1983 Response to this Interrogatory that:
P.A. and C.E.S.G. 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. 7).
Palmetto Alliance next alleges (pp. 3-5) that footnote 77 on p. 119 of Applicants' Motion for Sanctions misrepresents Intervenor's position on Contention 16, citing this footnote as an example of Applicants' resorting to "mischaracterization and deception to buttress their claim" (p. 3). The footnote reads as follows:
77 In response to Applicants' Follow-up In-terrogatories (attached to Palmetto Alli-ance's Supplementary Responses of May 27, 1983 at p. 30), Palmetto Alliance alleges for the first time that the probability of this boil-off occurring is 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.
Inasmuch as this matter was not raised in Palmetto Alliance's May 27, 1983 Response to Interrogatory 13, the interrogatory which this Board ordered Palmetto Alliance to re-spond to, Palmetto Alliance should not be permitted to raise the issue.
Alternatively, if the cooling issue is narrowed as suggested by Applicants, only heat loading associated with Oconee and McGuire fuel could be entertained.
, Footnote 77 points out that, prior to its May 27 Responses, Palmetto Alliance did not contend'in any of its
- 3 sets of earlier responses to Applicants' original interrogatories on Contention 16 that the probability of-boil-off. occurring is increased because of unique thermal I
I
l l
i characteristics of Oconee and McGuire spent fuel.5 Nor did Palmetto Alliance so contend in its May 27 Supplemental Response to one of these original 4
interrogatories (No. 13) which the Board directed it to answer. Rather, Intervenor had expressed concern that boil-off was more likely to occur because the cooling system would be unable to accommodate the increased heat load caused by the expanded number of spent fuel assemblies which could be stored in the Catawba spent fuel pool (such increased number of assemblies to include Oconee and McGuire spent fuel).6 Footnote 77 goes on to state that since "this matter
[i.e., the alleged thermal uniqueness of Oconee and McGuire spent fuel] was not raised in Palmetto Alliance's May 27, 1983 Response to Interrogatory 13" to which the 5 This was Applicants' interpretation of the Intervenor response cited in footnote 77 of Applicants' Motion for Sanctions. See fn. 8, infra, p. 13.
6 See Palmetto Alliance's April 19, 1983 Responses, in 1
which it stated:
Palmetto Alliance contends that the design of the enlarged pools has not adequately-accommodated the expanded Catawba heat load being experienced from the more than doubling in the number of assemblies to be stored including the Oconee and McGuire spent fuels-such that the 150 degree.F. heat limit on the-design pool liner plate and the potential for fuel pool water boil-off with resulting potential fuel element degradation, hydrogen gas generation and potential radiation release remains a threat. (Response to Interrogatory 6 on Contention 16, p. 51).
t
l 11 -
Board ordered Palmetto to respond, Intervenor should not be permitted to raise that issue. A review of Intervenor's response to Interrogatory 13 corroborates that the emphasis therein was on boil-off caused by expanded heat load due to a larger number of assemblies in the spent fuel pool, rather than by the unique thermal characteristics of Oconee and/or McGuire fuel.
Interrogatory 13 asked Intervenor to state why it contends that various NRC requirements have not been met by the Applicants. Palmetto Alliance's response reads in pertinent part:
Palmetto Alliance believes that there is an unacceptably high probability that the water in the Catawba spent fuel pool will reach and surpass the 150 F heat limit which could result
, in ruptures in the pool liner plate, pool water leakage, and boiloff. This could in turn result in fuel element degradation, hydrogen gas generation and potential radiation release.
Such an occurance [ sic] is made more likely because of the fact that design modifications at Catawba that more than double the number of fuel assemblies to be stored (thereby dramatically increasing the heat load) have significantly reduced the margin for error. In other words, the cooling trains and other " structures, systems, and components important to safety" were designed to operate with respect to a much lower heat load than the subsequent modifica-tions of the cascade plan call for. If the safety related systems were designed so as to prevent water temperature in the pool from reaching dangerous levels when'the pool l
l l
12 -
contained a maximum of 662 fuel assemblies, then expanding the pool to hold 1418 assemblies significantly increases the heat load and reduces the margin for error.
Palmetto Alliance Supplemental Responses, May 27, 1983, p.
25.
Palmetto Alliance appears to have erroneously interpreted footnote 77 as asserting that the entire issue of boil-off (i.e., inadequate cooling capacity) was not raised in the May 27 Responses at all (see Motion, pp. 4-5), leading Intervenor to the equally erroneous assertion that "the Applicants are deliberately misrepresenting the record in this case" (Id.). As the above discussion of this footnote has made clear, this is not the case.
Palmetto Alliance goes on to note that "[s]uch a conclusion is strengthened by subsequent arguments made in this same connection" in Applicants' Motion for Summary Disposition on Contention 16. No such " arguments"'are cited, however; nor is any other support for this assertion provided.
Instead, on pp. 5-6 of the Motion, Palmetto Alliance supplies a series of quotes from its various interrogatory responses in an apparent attempt to demonstrate that it raised the general issue of boil-off before, after and in its May 27 Responses.7 This, of course, is not the point.
7 of course, the fact that this issue may'have been raised by Intervenor afcer May 27 is totally irrelevant to the point Palmetto A111aJ7e is attempting to make.
On the contrary, Applicants' point in footnote 77 was that the alleged increased probability of boiloff due to the particular thermal uniqueness of Oconee and McGuire fuel (rather than simply to the increased size of the spent fuel pool) had not been raised before Intervenor's May 27 Responses to Applicants' Supplemental Interrogatories on Contention 16 (see p. 30 of May 27 Responses). Applicants did not and do not contend that the general subject of boil-off was not raised in discovery responses before the May 27 pleading.8 What we contend is that boil-off due to heat load not peculiar to Oconee or McGuire spent fuel is beyond the scope of Contention 16.
Given this disparity between the actual meaning of the text and the footnote on p. 119 of Applicants' Motion for Sanctions, and the incorrect interpretation Palmetto Alliance places upon this language in this Motion, these citations do nothing to further Intervenor's argument that Applicants have misrepresented its position on Cont'ention 8 Applicants note that part of any confusion which has arisen may result from our inference that the language cited in the referenced footnote 77 ' referred to the
' thermal uniquoness of Oconee and McGuire fuel.
Applicants acknowledge that ,perhaps this interpretation is too generous, reading too much into-Intervenor's-language. This language could be viewed as simply another example of Intervenor's allegation that-the increased number of spent fuel assemblies poses a -
problem, an allegation which'goes beyond the scope of Palmetto Alliance's contention.
- 16. If anything, they merely. demonstrate Intervenor's inability to discern the legal argument Applicants have made regarding the proper scope of Contention 16.
The second illustration which Palmetto Alliance cites of Applicants' alleged attempts to distort the record consists of an excerpt from Applicants' July 8, 1983.
Motion for Summary Disposition on DES Contention 19, p. 6.
(This passage is apparently intended to support the Intervenor's allegation that its position on DES-19, as well as on Contention 16, has been misrepresented.) The excerpt in question reads as follows:
There is yet another reason which compels dis-missal of this contention. To explain, Inter-venors assert that the' incremental environmental.
impact 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 difference 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. See Intervenors' Responses to Appli-cants' Follow-up Interrogatories, June 6, 1983 at p. 7 wherein it is stated:
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.
However, the spent ' fuel pools of Catawba - could .
be filled entirely with Catawba spent fuel only.
In response to a question asking if they ' con-tend that the DES and'the FES fail-to. evaluate l
the possible' environmental effects associated I with the storageLof. Catawba spent fuel at Catawba' Intervenors responded 'No.' See In-tervenors' Res Interroga-tories, - May 2,ponses 1983 attop.
Applicants '
11.- Accordingly, if
the Catawba spent fuel pools could be filled with spent fuel from Catawba only (which spent fuel Intervenors acknowledge is no different from Oconee and McGuire spent fuel) then Inter-venors' concern with the Catawba spent fuel pool 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 regard, Interven-ors have stated that they do not contest the environmental evaluation conducted on the stor-age of Catawba spent fuel. Therefore, nothing remains to be litigated.
Applicants submit that the position reflected in this passage, which sets forth one argument as to why DES-19 should be dismissed on summary disposition, is quite clear and self-explanatory. DES-19 asserts that the incremental environmental effects caused by storing Oconee and McGuire spent fuel should be evaluated. The FES takes into account impacts from exposures to routine releases "resulting from spent fuel from Catawba and the spent fuel from Oconee and McGuire that may be stored at Catawba."
FES, {5.9.3.1.2. The environmental evaluation of the expanded spent fuel pool which was conducted by the Staff has found that such storage has an insignificant impact upon the environment. FES at 9-7, 9-8. It seems self-evident that this conclusion is the same whether the expanded pool is full of Catawba fuel only or whether it also contains some Oconee and McGuire spent fuel (which, being older, has decayed longer and carries less heat load' than Catawba fuel.)
Indeed, Intervenor has acknowledged in discovery that there is no significant difference between Catawba and Oconee/McGuire spent fuel in terms of heat load and radioactivity (see Intervenor's June 6, 1983 Interrogatory Responses on DES Contention 19, p. 7). Intervenor has further acknowledged that it does not contend that the DES and FES " fail to evaluate the possible environmental effects associated with the storage of Catawba spent fuel at Catawba . . ." (Intervenor's May 2, 1983 Responses, p.
11; Palmetto Alliance August 5, 1983 tiotion for Sanctions, pp. 7-8). (See SER $9.1.3; FES, p.9-8, which indicate that the safety and environmental effects, respectively, of the expanded spent fuel pool have been considered.)
What Palmetto Alliance does contend, as it reiterates in its Motion, is that its concern relates to "the expanded fuel pool design that would handle Oconee and McGuire and Catawba spent fuel" (Motion, pp. 7-8). But since -- as Palmetto Alliance admits -- there is essen-tially no difference between Oconee, McGuire and Catawba epent fuel in terms of their attendant heat load and radi-ation, and since Intervenor does not fault the FES evalua-tion of the environmental ef fects of a full load of spent Catawba fuel in the expanded pool, we should be able to read the FES evaluation as equally applicable to Oconee and McGuire spent fuel storage in the Catawba pool.
s e .- . .
- 4
- - u 17 -
3 r ;
s 4 1 g
'T g
Hence, Intervenor has failed to demonstrate th9t there is
- e a genuine dispute of material fact aristag out of the ,
storage of some Oconee/McGuire spent fuel in the spent .I fuel pool. -
In sum, Applicants submit that the excerpt from their -
~
Motion for Summary Disposition on DESr19 cited abbve *
(pp. 14-15) reveals no " gamesmanship" or misrqpresbntat' ion ,
Rather, it simply explains - .
on Applicants' part.
~;~ - ~.
Applicants' position on DES-19.9 The confusion which this Motion adEempts to areate on both Contention 16 and DES-19 stems froi Palmetto . ,
Alliance's attempt to combine a concern with the size of the spent fuel pool (and its capacity to handlo expanded _
heat loads from additional numbers of assemblies) with the 9 Applicants further note that on p. 8 of its Motion, Palmetto Alliance quotes a passage fr,om the Boa'rd's December 22, 1982 Order which states that Applicants' interpretation of contention 16 is'"very narrow." This exerpt appears to have been included in order to create the inference that Applicants' discoverysanswers on this contention were unresponsive. Applicants submit that even a cursory reading of their. interrogatory responses of October 19, 1982 and March- 25,'1983 on .
Contention 16_ demonstrates that Applicants provided therein all information relevant to this contehLlon.
Applicants would further note that despite having been given an opportunity by the Board to " serve detailed, answer-by- answer grounds for relief" regarding Applicants' October 19, 1982 responses (December 22, 1982 Order at p. 16), Palmetto _ Alliance did not object-any of Applicants' specific interrogatory responses on Contention 16 in its January 28, 1983 Motion to Compel.
Accordingly, Intervencr should not now be heard to insinuate that the discovery responses in question were insufficient.
./-
~ l
- ~
l n
y ~
~
type of spent fuelT;j;.e., from Oconee or McGuire) which will be stored in the' pool. These are two distinct issues, and only the latter issue is properly raised by the language of these contentions.
Palmetto Alliance is now attempting to combine these areas of concern because it has belatedly realized that tlyh language of Contentions 16 and DES-19 does not encompass an issue ( i . e'. , the ability of the pool's cooling system to handle the heat load from the expanded number of assemblies to be stored in the pool) which it would 'ke to litigate. To explain, Intervenor's concern as expressed in interrogatory responses on both Contention 16 and DES-19 is with the size of the spent fuel pool and whether the increased inventory of assemblies and
~ , _ _ - ~ -
correspondingly increased heat load can be handled safely and without significant_ environmental impact. Since it x admits there is no fundamental difference between Catawba and McGuire or Oconee fuel insofar as resulting heat load or radiation is concerned, Intervenor cannot claim to be within the scope of these contentions, which are confined to the safety and environmental problems arising from storage of Oconee and McGuire spent fuel.
This disparity between the spent fuel pool concerns
.which Intervenor has identified in its discovery responses and the concerns included in its contentions is not the
p 19 -
fault of Applicants. If Intervenor wished to pursue a concern that the expanded size of the Catawba spent fuel
. pool will have safety and environmental impacts which must be evaluated, it should have proposed a general spent fuel pool contention to this effect. Palmetto Alliance did not do so, however. Rather, for whatever reasons, Intervenor limited its contentions to the alleged safety and environmental impact associated specifically with the storage of Oconee and McGuire spent fuel at Catawba.
B. The instant Motion is legally insufficient to warrant the imposition of sanctions.
Guidance on the imposition of sanctions in NRC proceedings is provided by the Commission's Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454- (1981), which emphasizes that "[f]airness to all involved in NRC's adjudicatory procedures requires that every participant fulfill the obligations imposed by and in accordance with applicable law and Commission regulations," and states that "[w] hen a participant fails to meet its obligations, a board should consider the imposition of sanctions against the offending party." Id.
In selecting a sanction, the Commission states thatt licensing boards should consider the following factors:-
the relative importance of the unmet: obligation, its potential for harm to other parties or the
. orderly ~ conduct of the proceeding, whether' its occurrence.is.an isolated incident or a part of
4 a pattern of behavior, the importance of the safety or environmental concerns raised by the ,
i party, and all of the circumstances. (ld.)
Thus in order to support a motion for sanctions, the movant must first demonstrate that the opposing party has
. " failed to meet its obligations" as a party to the proceeding. Once this threshold showing has been made, the movant should address the five - factors enumerated above, since the Appeal Board has interpreted the Commission's Policy Statement to require that a licensing board consider these five criteria in deciding upon an appropriate sanction. Commonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-678, 15 NRC 1400, 1416 (1982).
1 In Applicants' view, Palmetto Alliance has failed 7
utterly to make the necessary showing in support of its Motion. In the first place, the Intervenor has not demonstrated that Applicants have failed to meet any of their obligations as a party to this proceeding. The accusations made in this Motion have no factual basis.10 Rather, as explained in Section A., above, they stem from the Intervenor's misunderstanding or mischaracterization of. the position ~ that Applicants have taken on whether i 10 .Cf. Wisconsin' Electric Power CompanyJ(Point Beach
' Nuclear Plant, Units-1 and.2), LBP-81-62, 14 NRC 1747, 1760 (1981),'wherein the Licensing Board stated: "[W]e consider it highly improper for a . party to ' cast-aspersions on the integrit
.any supportive evidence." y of another party without
certain issues are properly encompassed by the language of Contentions 16 and DES-19. As the above response indicates, Applicants have not in any way attempted to distort the Intervenor's position on these contentions.
Moreover, Palmetto Alliance has failed even to address the five factors set forth in the Commission's Policy Statement. Accordingly, no basis exists for the imposition of sanctions against Applicants.
CONCLUSION For the reasons set forth above, Applicants submit that Palmetto Alliance's Motion for Sanctions should be denied.
Respectfully submittad,
. Ik(A! 0, l'AAfA Yl J.. Michael McGaPry,(pII Anne W. Cottingham DEBEVOISE & LIBERMAN 1200 Seventeenth St.,-N.W.
Washington, D. C. 20036 (202)857-9833 Albert V. Carr, Jr.
Ronald L. Givson DUKE POWER COMPANY P. O. Box 33189 Charlotte, N.C. 28242 (704)373-2570 Counsel for Duke Power Company, et. al.
August 17, 1983 l
l
00LKETED USNRC 13 NE 18 A8 55 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OFFICE 0F SECRE!An' 00CKEilNG & SERVICI.
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD BRANCH In the Matter of )
)
DUKE POWER COMPANY, et- -al.
-- ) Docket Nos. 50-413
) 50-414
( Catawba Nuclear Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Response To Palmetto Alliance's ' Motion For Sanctions Against Duke Power Company Et Al' " in the above captioned matter have been served upon the following by deposit in the United States mail this 17th day of August, 1983.
James L. Kelley, Chairman George E. Johnson, Esq.
Atomic Safety and Licensing Office of the Executive Legal Board Panel Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory -
Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. A. Dixon Callihan Albert V. Carr, Jr., Esq.
Union Car'uide Corporation Duke Power Company P.O. Box Y P.O. Box 33189 Oak Ridge, Tennessee 37830 Charlotte, North Carolina 28242 Dr. Richard F. Foster Richard P. Wilson, Esq.
P.O. Box 4263 Assistant Attorney General Sunriver, Oregon 97702 State of South Carolina P.O. Box 11549 Chairman Columbia, South Carolina 29211 Atomic Safety and Licensing Board Panel Robert Guild, Esq.
U.S. Nuclear Regulatory Attorney-at-Law Commission P.O. Box 12097 Washington, D.C. 20555 Charleston, South Carolina 29412 Chairman Palmetto Alliance Atomic Safety and Licensing 2135 1/2 Devine Street l Appeal Board Columbia, South Carolina 29205 ;
U.S. Nuclear Regulatory l Commission '
Washington, D. C 20555 l
.\
Jesse L. Riley
- Scott Stucky 854 Henley Place Docketing and Service Section Charlotte, North Carolina 28207 U.S. Nuclear Regulatory Commission Carole F. Kagan, Attorney Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S.-Nuclear Regulatory Commission
. Washington, D.C. 20555 i
s/ ( (JCL 0 N'? ? . kNE
(/ J. Michael McGirry, gII~ /
- - Designates those hand delivered.