ML20101S863

Motion for Summary Disposition of Contention a Re Emergency Planning.No Genuine Issue of Matl Fact Exists & Applicant Entitled to Favorable Decision

ML20101S863
Person / Time
Site:	Perry
Issue date:	02/01/1985
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20101S865	List: ML20101S863 ML20101S877 ML20101S884
References
CON-#185-409 OL, NUDOCS 8502050683
Download: ML20101S863 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION .:'-

n c? -5 Ac;fo BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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t, In the Matter of. )

) ot 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 A 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. $ 2.749, for summary dieposition in Applicants' favor of

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Contention A. As discussed herein,-there is'no genuine issue as to any fact material ~to Contention A, and Applicants are en-titled to a decision in their favor on Contention A as a matter of. law.

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r-This motion is supported _by:

1. ~" Applicants' Statement of Material Facts As To Which There Is'No Genuine Issue To Be Heard On Contention A";

2. " Affidavit of Scott T. McCandless on Contention A"

("McCandless. Affidavit"); and

3.Section II.A of " Applicants' Motion For Summary Dis-position of Issue 14" (January 14, ~1985) (articulating the legal' standards applicable to a motion for summary dispo-sition).

I. PROCEDURAL BACKGT OUND 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 1:

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

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

After well-developed offsite plans had been publicly

available for some time, Applicants (with the support of the-Staff) moved for a Board order requiring the particularization of the broad contention. The Board granted Applicants' motion,-

directing Intervenor' to "specify in a written filing the

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specific inadequacies alleged to exist in the draft local and

'Stateemergencyplans***." See LBP-84-28, 20 N.R.C. at 132.

Contention A 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,1/ Contention A alleges:

Evacuati'on time estimates have not been re-viewed by state or local organizations and adverse weather conditions have not been considered.

" Memorandum and Order (Admissibility of Contentions on Emergen-cy Plans and Motion To Dismiss)" (January 10, 1985), at 6.

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 A 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. GOVERNI'NG LEGAL STANDARDS A. Summlry Disp'osition 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 Commission's emergency planning regulations require the preparation of "an analysis of the time required to evacu-ate * * *." 10 C.F.R. Part 50, App. E, 6 IV. The standards embodied in the emergency planning regulations are further addressed by NUREG-0654/ FEMA-REP-1, " Criteria For Preparation and Evaluation of Radiological Emergency Response Plans and Preperedness In Support of Nuclear Power Plants" (Rev. 1, November 1980).

NUREG-0654 Criterion J.10.1 provides that plans shall in-clude:

1. Time estimates for evacuation * *

• based on a-dynamic analysis * *

• for the plume exposure pathway emergency planning zone (See-Appendix 4).

Appendix 4 to'NUREG-0654 sets forth the regulatory.accep-tance criteria for evacuation time estimate studies ("ETEs").

Appendix 4 specifies:

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$ .Two conditions ---normal and adverse - :are considered in 1 the analyses. EAdverse con-

^ dit'i'ons would.' depend on the characteristics of aLspecif-ic. site andLcould include

, , flooding,; snow,uice,. fog or-rain. * *'*;These condi-tions;will affect both trav-el times and capacity._cMore

'than one adverse condition

, .may need to be; considered.

That'is,'a northern site 4 with a high-summer tourist population should consider i- -rain, flooding, or fog as the adverse ~ condition-as

'welllas snow with. winter population estimates.

NUREG-0654,'at 4-6 to 4-7. Appendix 4 further provides, in r

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- relevant part:

A review of the draft sub-mittal by the principal or-ganizations (State and '

local) involved in emergency' response ~for-the site shall be solicited and comments resulting;from such review included with the submittal.

NUREG-0654, at 4-10.

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III. ARGUMENT

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' Applying the Commission's-summary disposition standards to

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the' facts-of this case, it.is clear that thelinstant motion-for

. summary 1 disposition of Contention A should be granted. ; Sun-- -

flower's allegation that Applicants failed _'to; afford.the State-andithe. Counties an opportunity to reviewithe-ETE is simply

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-t incorrect. .To the contrary, offsite emergency plan-ning/ response, officials have played an important role in the development of the ETE - Lfar beyond a mere " review" of the document. McCandless Affidavit, 13. The ETE itself reflects the role of. county officials (officials from the Ashtabula,

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Lake, and'Geauga County Disaster Services Agencies and Sher-iffs' Departments) in the determination of preparation and mo-bilization times and vehicle occupancy cates. Id., 13.

Further, before beginning work on the Perry ETE (in early October 1983), HMM personnel met individually with representa-tives of each;of-the three counties (including the three DSA Directors). The meetings covered the basic ETE methodology, and the general input data and assumptions for the computer simulation model for the ETE, as well as the model output and the time / weather condition scenarios to be modeled. All meet-ing participants were in agreement with the information presented. Id., 1 4. Then, in mid-October, HMM personnel again met with the officials (including the DSA Directors) of-the three counties, to review the area-specific data and as-

, sumptions for use in the ETE. All those.in attendance at the meetings concurred n'the results to date, as.well'as the pro-posed plans and procedures for continued work'on.the ETE. Id.,

1 5. Finally, copies of the March 1984 draft of the ETE were provided to the-DSA Directors of each of the three counties, and to the Ohio Disaster Services Agency. The agencies'

7-comments will be reflected in the next revision ~of the ETE.

The~ comments'wgil"besubmittedtotheNRCwiththenextrevi-

, . siontof'the ETE. .Id., 1 6. Thus, there is no substantive merit whatsoever to the first part of Contention A.

The second part of Contention A similarly lacks merit.

The sole basis for Sunflower's assertion that the ETE has

" failed credibly to address the effects of adverse weather (i.e., a thunderstorm) on a summer Sunday evacuation" is-a ref-f erence to NUREG-0887, Supplement No. 4 to the Staff's Safety Evaluation Report ("SSER 4"), at 13-16, and a quotation from NUREG-0654 that a northern _ site with a high tourist population should consider adverse summer weather conditions. Applicants f

responded to the NRC's comments in SSER 4 by revising Appli-I cants' onsite emergency plan to include the March 1984 draft of the ETE, which expressly addresses the effects of a thunder-storm on a summer Sunday evacuation. See PNPP Pl'an, Rev. 3, Appendix D. Thus, HMM actually considered two adverse weather scenarios in the preparation of the ETE -- capacity and travel speed reductions of 20% (to represent sudden summer Sunday thunderstorm conditions) as well as capacity and travel speed reductions of 30% (to represent winter snowstorm conditions).2/

McCandless Affidavit, 1 7.

2/ The adverse weather. scenario assumptions for.the Perry ETE were selected-based upon discussions with local officials (including the three County DSA Directors). -The assump-tions employed are consistent with those used in NRC-approved analyses conducted by HMM for other sites 1 i with comparable meteorology. McCandless Affidavit, 1~8. '

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s In summary, contrary to Sunflower's claims, state and

local-organizations' have reviewed the ETE, and the ETE does in-deed reflect a summer Sunday thunderstorm scenario (as well as winter snowstorm conditions).

IV. CONCLUSION Because'there is no genuine issue ~of material fact to be heard'on-either the issue of whether state and local officials have reviewed the'ETE, or whether'the ETE; included both summer and winter' adverse weather scenarios, Applicants' Motion For i

Summary Disposition of Contention A should be granted.

Respectfully submitted, j& 'p Ja . Si lberg, P.C.

-f-SHA , PI TMAN, POTTS &'m 3WBRIDGE-180 S reet,.N.W.

Washington, D.C. 20036 (202).822-1000; Counsel for Applicants Dated: February 1,'1985

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