ML20101S834

Motion for Summary Disposition of Contention Gg.No Genuine Issue of Matl Fact Exists & Applicant Entitled to Favorable Decision

ML20101S834
Person / Time
Site:	Perry
Issue date:	02/01/1985
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., DUQUESNE LIGHT CO., OHIO EDISON CO., PENNSYLVANIA POWER CO., TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20101S836	List: ML20101S834 ML20101S846 ML20101S857 ML20101S873
References
CON-#185-407 OL, NUDOCS 8502050662
Download: ML20101S834 (11)

Text

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UNITED STATES OF AMERICA r-

'53 'YS ')_ A9:53 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD $7

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. .  ;, y ; ,n i s [ ~~ ~ t ,i In the Matter of )

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THE_ CLEVELAND ELECTRIC ) Docket Nos. 50-440 #

ILLUMINATING COMPANY. ) 50-441 o c-

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

-APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION GG The Cleveland Electric Illuminating Company, Duquesne Light Company, Ohio Edison Company, Pennsylvania Power Company, and The Toledo Edison Company (" Applicants") hereby move the Atomic Safety and Licensing Board (" Board"), pursuant to 10 C.F.R. 9 2.749, for summary disposition in Applicants' favor of Contention GG. As discussed herein, there is no genuine issue as to any fact material to Contention GG, and Applicants are entitled to a decision in their favor on Contention GG as a matter of law.

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i This motion 11s supported by:

1. " Applicants' Statement of Material Facts As To Which

- There Is No Genuine Issue To Be Heard On Contention-GG";

.- 2. " Affidavit'of

Janet E. Dugan on Contention GG" P ' ("Dugan-Affidavit")';

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- 3. " Affidavit of Dennis S. Mileti on Contention'GG"

("Mileti Affidavit"); and

4. Section-II.A of " Applicants' Motion For Summary Dis-

. position of Issue 14"1(January 14, 1985)~(articulating the legal standards applicable to a motion.for summary dispo-sition).

i. I. PROCEDURAL BACKGROUND Prior to the availability-of offsite emergency plans for the plume exposure pathway Emergency Planning Zone ("EPZ") for the Perry facility, the Board admitted a very broad emergency

planning contention, Issue le i Applicants' emergency evacuation plans do not demonstrate that they provide reason-

. able assurance that adequate protective measures can and will be taken in the event of an emergency.

See LBP-81-24, 14 N.R.C. 175, 189 (1981),- as-modified by LBP-81-35, 14 N.R.C. 682, 686 (1981). The Board subsequently

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-noted that the words " State and local" should be substituted for the word " Applicants'"'in the wording.of the contention,

j. See LBP-84-28, 20 N.R.C. 129,.130 n.1 (1984).

After well-developed offsite plans had been publicly available for someLtime, Applicants (with the support of the l Staff) moved for a Board order requiring the particularization of the broad contention. The Board granted. Applicants' motion, 3

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directing Intervenor to "specify in a written filing the spe-cific inadequacies alleged to exist in the draft local and

, State emergency plans * * *," See LBP-84-28, 20 N.R.C. at 132.

Contention GG was initially advanced in " Sunflower Alli-ance's Particularized Objections To Proposed Emergency Plans In Support of Issue No. I" (August 20, 1984). Over the opposition of Applicants and the Staff, the Board admitted a form of that contention. As admitted by the Board,l/ Contention GG alleges:

The emergency plans have not made provision for communicating with individuals (like Amish people) who do not utilize radio or television devices.

" Memorandum and order (Admissibility of Contentions on Emergen-cy Plans and Motion To Dismiss)" (January 10, 1985), at 7.

As the Board has noted, discovery on emergency planning issues in this proceeding has been completed. See January 10, 1985 Memorandum and Order, at 5. Further, the schedule pro-posed by Applicants establishes February 5, 1985 as the last day for filing summary disposition motions. See January 18, 1985 Letter, Counsel for Applicants to Licensing Board. Ac-cordingly, the instant motion is timely, and Contention GG is ripe for summary disposition.

1/ The Board expressly rejected all allegations of the pro-posed contention which are not included in the contention as framed by the Board. See January 10, 1985 Memorandum and Order, at 5.

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II . - GOVERNING LEGAL STANDARDS A. Summary Disposition Section-II.A of " Applicants' Motion For Summary Disposi-tion of Issue 14" (January 14, 1985) sets forth the legal stan-dards applicable to a motion for summary disposition. The dis-cussion there is fully applicable to this Motion and is incorporated by reference herein.

.B. Substantive Law The'Commis.* ion's emergency planning regulations, at 10 C.F.R. $ 50.47(b)(5), require, in relevant part, that:

• *

• means to provide early notification and clear in-struction to the populace within the plume exposure pathway Emergency Planning Zone have been established.

The regulations specifically require "a listing of local broad-cast stations that will be used for dissemination of informa-tion during an emergency." 10 C.F.R. Part 50, Appendix E,

, 6 IV.D.2.

This planning standard is further addressed 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).

NUREG-0654 Criterion E.5 provides:

State and local government organizations shall estab-lish a system for dissemi'nating to the public ,

. appropriate information 1

• *

• received from the-licensee including-the ap-propriate notification to appropriate broadcast media, e.g., the Emergency Broad-cast System (EBS).

Criterion E.6 further'provides, in. relevant part:

Each organization shall es-tablish administrative and physical means * *

• for J

• *

• providing prompt in- '

structions to the public within the plume exposure l pathway Emergency Planning Zone. (See Appendix 3).

NUREG-0654 Appendix 3 details the acceptance. criteria for-

"Means For Providing Prompt Alerting and Notification of Re-i sponse Organizations and The Population," and is unequivocal in '

its reliance on broadcast media as a means of " notification" of- l the public (after the public has been " alerted" by the sirens): l A prompt notification scheme i shall include the capability of local and State agencies to provide information promptly over radio and TV at the time of activation'of the alerting signal (i.e.,

sirens). The Emergency Plans shall include evidence of such capability * * *

[to] provide for designated agencies to air messages on TV and radio in emergencies.

NUREG-0654, at 3-4. See also NUREG-0654, at 3-13 to 3-15 (dis-cussing EBS). NUREG-0654 expressly recognizes that compliance 1

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ilth.the applicable regulations-and regulatory guidance "does Enot *.*

• constitute'a' guarantee that-early notification can-be

.provided for everyone with 100%' assurance * * *." NUREG-0654, at 3-1. See 10 C.F.R. Part.50, Appendix E, 5 IV.D.3 (capabili-lty to provide 15-minute notification i s " design objective") .

III. ARGUMENT Applying the Commission's summary disposition standards to the' facts of this' case, it.is clearLthat the instant motion for summary disposition of Contention GG'should be granted. The existencelwithin the Perry EPZ of an Amish population'- -or, indeed,Lany discrete population which does not use radio and TV-

-- is. flatly disproven by the affidavit of Janet E. Dugan. .In 1984, CEI conducted a. study to determine the location of the Amish in northeastern Ohio,.as a part of the Perry-Hanna trans-mission line. proceedings. The results ofithat study indicate that.there is no Amish population within the Perry plume EPZ.'

Dugan Affidavit, 13. Further, contacts.with the~ planning com-missions'of Lake, Ashtabula, and Geauga Counties. indicate that there are no population groups within the; plume EPZ which'do not use radio and TV. Id., 1- 4. ' In addition, local Councils of Churches as well as parish priests and~various other. minis-ters throughout thesEPZ were contacted. None of these persons 1 was aware of any people within the EPZ whose religious beliefs would preclude;use of radio'or TV. Id.,.1 5.

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7 As discussed in Section II above, the NRC/ FEMA regulatory scheme expressly contemplates reliance upon the broadcast media (in particular, EBS) to provide emergency. instructions to the public?(after the'public has been " alerted" by the sirens).

Sunflower has provided no regulatory basis for its implication that other means of warning must be provided, in addition to radio and TV broadcasts via the EBS system. Nor is there a need for additional. formal means of warning. As explained in the affidavit of Dr. Mileti, members of the public can be ex-pected to receive emergency warning information through a wide variety of indirect means. The existence and efficacy of such means of indirect alerting and notification are recognized in Commission case law. See, e.g., Southern California Edison Co.

(San Onofre Nuclear Generating Station, Unita 2 and 3),

LBP-82-46, 15 N.R.C. 1531, 1534-35 (1982); Duke Power Co. (Ca-tawba Nuclear Station, Units 1 and 2), LBP-84-37, 20 N.R.C. 933, 973-74 (VV 10, 12), 978 (1 29) (1984).

Decades of research on public response to notification of an emergency have established that, historically, many people have first received emergency information from other members of the public. Mileti Affidavit, 11 2, 3. The initial response of most people to a warning of an impending emergency is to seek out more information, and/or engage in additional communi-cation with others in order to confirm the warning and informa-tion. Confirmation of warning information occurs in a variety i

of ways; people may turn to different radio or TV stations to hear the warning several times, check with friends and neigh-bors to ask if they heard the same message, and talk the situa-tion over with others. People thus become part of the warning dissemination effort, albeit informally, through social net-working. Id., 4, 5. In the event of an emergency at the Perry plant, the seeking of confirmation would lead people to contact others who might or might not as yet have learned of the emergency. Similarly, people hearing sirens can naturally be expected to take steps to determine the reason for the use of the sirens, by turning to radio and TV and/or checking with friends or neighbors. Id., V 5.

In addition to the confirmation process that may be car-ried out by the public, the pre-emergency public information brochure (and other media) will educate the public to tune to an EBS radio or TV station when the sirens within the plume EPZ are sounded, to receive a message. Therefore, even if a house-hold does not have a radio or TV, it will be aware of the need to seek additional information about the EBS message from friends or neighbors with TV or radio. Dugan Affidavit, 1 7.

Moreover, in an emergency, neighbors, friends and family

-- and even total strangers -- check on one another and offer assistance if it is needed. As a result, people communicate with other members of the public who might not as yet have learned of the emergency. Thus, people who have received 1-I o ,

notification of an emergency at Perry generally can be expected to notify those whom they have reason to believe may not have _

, been informed of the nature of the emergency. -Members of the r public would be particularly likely to provide such notifica-tion to any discrete segments of the population known not to have access to emergency information on radio or TV (e.g., the

' Amish). Mileti Affidavit, V 6.

Finally, the high level of activity which would be associ-ated with an emergency at Perry would have a strong " ripple ef-fect," generally alerting members of the public to seek addi-tional information about the events taking place, even if they had not been directly warned by the official. alert and notifi-cation systemor another member of the public. In other words, the activities of other residents who have already received no-tification (turning on the lights in their homes, perhaps preparing to evacuate, or even the stream of traffic driving I

out of the 10-mile EPZ) would alert most members of the public who may not yet have been warned, and cause them to seek addi-tional information about what is going on (for example, inr.

talking to neighbors). Id., 1 7.

In any event, the offsite plans include measures to assure that any members of the public without radio and TV receive direct notification of the need to evacuate in an emergency.

The public information brochure will include a special needs information card to be completed and returned (in advance of

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i any emergency) to'the respective County Disaster Services Agen-

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cy by anyone who might need special assistance in an emergency.

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'The special help categories on the card include persons without ,

radio and persons.without TV.

In the-event of an evacuation, specialipersonal notification would be provided to those indi-viduals -- if any -- who have indicated that they have no radio or TV. Dugan Affidavit, 1 6. In addition, each household in the EPZ is being provided with a card stating "WE HAVE BEEN NOTIFIED." In the event of an emergency, the members of the public would display the card, or tie a towel to the doorknob or mailbox, to indicate that they are aware of the need to take specific protective action. Any household not displaying the card or a towel.would be individually checked, and given the EBS message, Id., 1 8.

In summary, there is no evidence whatsoever to indicate the existence of a population which does not use radio and TV (such as the Amish) within the Perry EPZ. Nevertheless, the offsite plans include measures to assure that any members of the public without radio and TV receive direct notification of the need to evacuate in an emergency. These members of the public can also be expected to receive emergency warning infor-mation through a wide variety of indirect means. For all these reasons, Sunflower's claims in Contention GG lack substance.

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I V .' CONCLUSION I

Because there is no genuine issue of material fact to be 2 heard with respect to the warning of persons without radio or TV-(such.as.the Amish), Applicants' Motion For Summary Disposi-tion of Contention'GG should be granted.

Respectfully submitted, an j g Jay , ~S lberg', P.C.

l SH ,. PI TMAN, POTTS & T BRIDGE l 18 0)4 reet, N.W.

l Washing n, D.C. 20036 (202) 822-1000 Counsel for Applicants Dated: February 1, 1985 t

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