ML20101S901

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

ML20101S901
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
ML20101S903	List: ML20101S901 ML20101S915 ML20101S926
References
CON-#185-408 OL, NUDOCS 8502050704
Download: ML20101S901 (7)

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February 1, 1985 l 2..

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' UNITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISSION C37<EED

• t BEFORE THE ATOMIC SAFETY AND-LICENSING :l t' BOARDsq-3 gg In-the Matter of )

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THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 b~

ILLUMINATING COMPANY ) 50-441 O (__

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.(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' MOTION FOR-

SUMMARY

DISPOSITION OF CONTENTION C 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. S 2.749, for summary disposition in Applicants' favor of Contention C. As di,;ussed herein, there is no genuine issue as to any fact material to Contention C, and Applicants are en-titled to a decision in their favorJon Contention'C as a matter of law.

This motion is supported by:

1. " Applicants' Statement of Material Facts As To Which There Is No Genuine Issue To Be-Heard On Cantention C";

2. " Affidavit of John ~Baer on Contention C" ("Baer Affi-davit"); 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-l sition).

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e 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 1

Applicants' emergency evacuation plans do .

not demonstrate that they provide reason- -

able assurance that adequate protective I

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 spe-I cific inadequacies alleged to exist in the draft local and

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

Contention C 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 of1that contention. As admitted by the Board,l/ Contention C alleges:

1/ The Board expressly rejected all allegations of the pro-posed contention which are'not included in the contention (Continued next page)

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• l Emergency plans do not contain a consis-tently' defined role for County Commission-ers during an emergency nor is their legal authority to act, as required.

" 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 C is

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ripe for summary disposition.

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..

(Continued) as framed by the Board. See January 10, 1985 Memorandum and Order, at 5.

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, .B.- Substantive Law 4

The Commission's emergency _ planning regulations, at 10

- C.F.R. 5 50.47(b)(1),' require, in relevant part, that:

r Primary responsibilities for emergency response by * * *

' local organizations within the Emergency Planning Zones

'have been assigned, [and]

the emergency responsibilities of the var-ions supporting organiza-tions have been specifically established * * *.

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 A.2.a provides, in relevant part:

Each organization shall l specify the functions and responsibilities for major elements and key individuals by title of emergency response * *"*. The de-scription of these functions shall include a clear and concise summary such as a table of primary and support responsibilities using the- .

agency as one axis, and the function as the other. .

i Criterion A.:2.b further provides:

4 Each plan shall'containL(by reference to specific acts,

' codes or statutes) the legal basis for'such authorities.

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-t III. ARGUMENT Applying the Commission's summary disposition standards to the facts of this case, it is clear that the instant motion for '

summary disposition of Contention C should be granted. The I gravamen of the first part of Sunflower's complaint seems to be that "there is no consistently defined role in a major or minor

. emergency for County Commissioners,-especially in conjunction with any leadership which would be forthcoming from the State."

See " Sunflower Alliance's Particularized Objections To Proposed Emergency Plans In Support of Issue No. I," at 4. To the con-

, trary, the radiological emergency response plans clearly and 4

consistently define the role of the County Commissioners as including overall responsibility for local emergency op-erations. Baer Affidavit, 1 3. Although the emergency organi-zations among the three counties may differ, the:

responsibilities and roles of the County Commissioners in the three counties are parallel, as established by the. emergency Baer Affidavit, 1 3.2/ Moreover, the plans for all plans.

three counties establish that, in the event of an emergency at 2/ In conformance with NUREG-0654 Criterion A.2.a,.each of the three county plans includes a matrix of responsibilities for the various emergency response orga-nizations. See " Lake County Emergency Response Plan for the Perry Nuclear Power Plant" (Rev. 3, October 1984), At-tachment A-7; "Ashtabula. County Radiological Emergency Preparedness Plan" (May 10, 1984), Appendix 7: "Geauga County Radiological Emergency Response Plan" (Change No. 2 dated July 1984), Appendix 6.

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t Perry, the Commissioners would receive protective action recom-mendations from the State, and would confer with appropriate State agencies concerning relaxation of protective measures.

Baer Affidavit, 1 4.

Sunflower also contends that the plans fail to establish the legal authority for the County Commissioners to act under the plans in the event of an emergency. Sunflower has simply failed to examine the plans themselves. In compliance with NUREG-0654 Criterion A.2.b, the information is clearly set forth in the plans. Baer Affidavit, 1 5.

In summary, contrary to Sunflower's claims, there is no confu'sion with respect to emergency roles of the County Commis'-

sioners (including their relationship to the State), and the legal basis for their authority is set forth in the respective

plans.

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. IV. CONCLUSION Because there is no genu'ine issue of material fact to be-heard'on either the issue of the consistency of the emergency roles of the County Commissioners (including their relationship to.the State), or the' inclusion in the plans of the legal au-thority of the Commissioners to take emergency actions, Appli-cants' Motion For Summary Disposition of Contention C should be granted.

Respectfully submitted,

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! m t /- 'L' i ci JayfE./ S11 berg, P.C. j SRAW,/PITTMAN, . POTTS & TROWBRIDGE 1800'M 8treet, N.W.

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

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