ML20093D656

Memorandum of Law in Support of Motions for Summary Disposition of Eddleman Emergency Planning Contentions 144 & 154

ML20093D656
Person / Time
Site:	Harris
Issue date:	10/08/1984
From:	Ridgway D CAROLINA POWER & LIGHT CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
Shared Package
ML20093D652	List: ML20093D650 ML20093D656 ML20093D662 ML20093D670 ML20093D676 ML20093D692 ML20093D696 ML20093D701
References
OL, NUDOCS 8410110331
Download: ML20093D656 (8)

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s October 8, 1984 DOCKETED USNRC UNITED STATES ~OF AMERICA NUCLEAR REGULATORY COMMISSION 84 OCT 10 Ali:10' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD OFF,CE Or 3Eu? ETA l e ECChE fif;G & SEh';U.

BRA!!CH

'Inithe Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL

-MUNICIPAL POWER AGENCY )

)

(Shearon. Harris Nuclear Power )

~ Plant)

)

APPLICANTS MEMORANDUM OF LAW IN SUPPORT OF MOTIONS FOR

SUMMARY

DISPOSITION OF EMERGENCY PLANNING CONTENTIONS I.' INTRODUCTION Contemporaneously herewith, Applicants Carolina Power & '

Light Company and North Carolina Eastern Municipal Power

Agency have filed two motions with the Atomic Safety _and Li-censing Board seeking summary disposition, pursuant to 10 C.F.R. S 2.749, of emergency planning contentions

.Eddleman-144 and Eddleman-154.1/ In order to avoid repeti-i

' tion, Applicants set forth in this single memorandum of law

1/ These two motions address onsite emergency planning is-sues. However, Applicants will file motions on offsite planning contentions in the future. Therefore, this

' Memorandum is applicable to both onsite and offsite planning issues.

8410110331 841008 PDR ADOCK 05000400

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~ the= general standards by which such motions for summary dis-position are to be decided.

II. GOVERNING LEGAL STANDARD The admission of a contention for adjudication, under the standards of 10 C.F.R. 5 2.714, is not an appraisal of the merits of'the contention, but merely a determination that it meets the criteria of specificity, asserted basis and relevance. A hearing on an admitted contention, howev-er, is not inevitable. Licensing boards are authorized to decide an admitted contention on its merits in advance of trial on the basis of pleadings filed.

"Any party to a proceeding may move, with or without supporting affidavits, for a decision by the presiding offi-cer in that party's favor as to all or any part of the mat-ters involved in the proceeding." 10 C.F.R. S 2.749(a).

The standard embodied in the regulation is that "[t]he pre-siding officer shall render the decision sought if the fil-ings in the proceeding, depositions, answers to interrogato-ries, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law."

10 C.F.R. S 2.749(d).

The Commission and its adjudicatory boards have long encouraged the use of this summary disposition process where r-- 1

.the proponent of a contention has failed to establish that a genuine issue exists, so that evidentiary hearing time is not i unnecessarily devoted to such issues.- Statement of

-Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 N.R.C. 452, 457-(1981); see also Houston Lighting and Power CompanyL(Allens Creek Nuclear Generating Station, Unit 1),

ALAB-590, ll N.R.C. 542,-550 (1980) ("* *

• the Section 2.749 summary disposition procedures provide in reality as well-as in theory, an' efficacious means of avoiding unneces-sary and possibly time-consuming hearings on demonstrably insubstantial issues * * *").

.The standards governing' summary disposition motions in an NRC proceeding are quite similar to the standards applied under Rule 56 of the Federal Rules of Civil Procedure.

Alabama Power Company (Joseph M. Farley Nuclear Plant, Units .

1 and'2), ALAB-182, 7 A.E.C. 210, 217-(1974); Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B andc2B), ALAB-554, 10 N.R.C. 15, 20 n.17 (1979). Where, as here, motions for summary disposition are properly supported pursuant to the Commission's Rules of Practice, a party opposing the motions may not rest upon the mere allegations or denials of its answers. Rather, an opposing party must set forth specific facts showing that there is a genuine

' issue of fact for litigation. 10 C.F.R. S 2.749(b). A party cannot avoid summary disposition on the basis of

' guesses or suspicions, or on the hope that at the hearing

e. :

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Applicants' evidence may be discredited or that "something mayiturn up." Gulf States Utilities Company (River Bend Station, Units 1 and 2), LBP-75-10, 1 N.R.C. 246, 248 (1975).

.The governing regulation permits summary disposition

"*'*

• as to all or any part of the matters involved in the proceeding." 10 C.F.R. S 2.749(a). Just.as summary dispo-sition may be-granted as to some but not all contested is-sues, so may summary disposition be granted as to one or more parts of an intervenor's contention. The format or or-ganizational style employed by the pleader of contentions-should not prevent a licensing board from deciding that, as to discrete matters of fact and/or law, there is no genuine

-issue to be heard with respect to one or more aspects or parts of a given contention. Thus, where summary disposi-4 tion may not be appropriate as to the entirety.of a given contention, a licensing board may and should determine which

. issues within the contention are not genuinely disputed, and set only disputed issues for trial.

In the case of contested off-site emergency planning issues, there is special reason to give the summary disposi-tion process the diligent effort required to scrutinize the parties' pleadings and sort out those matters as to which there is no genuine issue to be heard. The wasteful hearing time which would be spent on truly baseless allegations would be contrary to not only the interests of public at 7-L .

large and of the parties to the proceeding, but also the nu-

. merour ncn party State and local agency personnel (and per-haps representatives of private response organizations) whose participation would be required.

The regulatory scheme for emergency planning was out-lined by.the Appeal Board in Cincinnati Gas & Electric Co.

(Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 N.R.C. 760, 764 (1983). Under the Commission's regulations, no operating license for a nuclear power reactor can issue unless the NRC finds that there is reasonable assurance that adequate protective measures both on and off the facility site can and will be.taken in the event of a radiological emergency. 10 C.F.R. S 50.47(a)(1). Emergency response plans must meet the 16 standards set forth in 10 C.F.R.

S~50.47(b).2/

The focus of a hearing should be on whether the

! emergency plans themselves meet the " broadly drafted stan-dards" of 10 C.F.R. S 50.47(b). The details of plan imple-mentation are not properly subject to scrutiny in the hear-ing process. Licensing hearings are not to be " bogged down 2/ In addition to the criteria of 10 C.F.R. S 50.47(b),

Appendix E of 10 C.F.R. Part 50 sets forth in greater detail the information which must be included in emer-gency plans. Guidance as to how these regulatory stan-dards can be satisfied is provided by NUREG-0654/ FEMA-REP-1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (Rev.

1, November 1980).

e.

with litigation about such details." Louisiana Power &

Light Co. (Waterford Steam Electric Station, Unit 3),

ALAB-732,-17 N.R.C. 1076, 1106-07 (1983). See also Duke Power.Co. (Catawba Nuclear Station, Units 1 and 2),

LBP-84-37, 20 N.R.C. (September 18, 1984), slip.op, at 7.

- The. Commission's regulations do not require that ex-traordinary emergency planning measures be taken. See

-Southern California ' Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 N.R.C. 528 (1983). As another licensing board recently observed:

The planning standards of 10 C.F.R. 5 50.47(b) and NUREG-0654 provide a reason-able planning basis rather than absolute planning re-quirements. This Board does not have to find that all individuals are covered by the plans under all circum-stances.

Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),

LBP-84-37, 20 N.R.C. (September 18, 1984), slip op. at 7 (emphasis supplied). The Catawba Board quoted the Commission in San Onofre:

It was never the intent of the regulation to require directly or indirectly that state and local governments adopt extraordinary measures

• *

• just to deal with nu-clear plant accidents. The emphasis is on prudent risk reduction measures. The regulation does not require dedication of resources to 1 .

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. .a handle every possible'acci- l dent'that can be imagined. l

.The concept of the regula-tion is that there should be core planning with suffi-cient planning flexibility to develop a reasonable ad hoc response to-those very serious low probability ac-cidents which could affect j the general public.  !

17 N.R.C. at 533. Thus, like_the Catawba Board, the basic test ,

to be applied by this Board is whether the emergency plans

'"take the necessary ' prudent' risk reduction measures."

LBP-84-37, slip op. at 7.

III. CONCLUSION The motions' filed contemporaneous 1y are meritorious and

- should-be granted, as a matter of law, in their entirety. Each motion. demonstrates that there is no genuine issue of material fact to be heard. If, however,.the Board were to be of the view that an intervenor.has-demonstrated that one or more genu-ine issues exist as to a given contention, the Board should ex-ercise its authority to narrow the issues for trial by u.

dicpo3ing of tho;a portions of contentions as to which no genu-ine-issue exists.

Respectfully submitted, l

Thomds A. Baxter, P.C.V V Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 and Richard E. Jones Samantha F. Flynn Dale E. Hollar Hill Carrow CAROLINA POWER & LIGHT COMPANY ~

P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: October 8, 1984 t

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