ML20104A158

Motion for Summary Disposition of Sunflower Alliance Contention I Re Emergency Evacuation Plans.No Genuine Issue of Matl Fact Exists & Applicant Entitled to Favorable Decision

ML20104A158
Person / Time
Site:	Perry
Issue date:	01/30/1985
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20104A159	List: ML20104A158 ML20104A193 ML20104A212
References
CON-#185-331 OL, NUDOCS 8502010130
Download: ML20104A158 (6)

Text

lo }3j h-i January 30, 1985_ >Erce e3h5C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION h_ ~ E chtiAh,

~ BEFORE THE ATOMIC SAFETY AND LICENSING BOAih fjgjERvict.-

In the Matter of )

)

THE CLEVELAND' ELECTRIC ) Docket Nos. 50-440 Ob

-ILLUMINATING COMPANY ) 50-441 0C-

)

-(Perry Nuclear Power Plant, )

Units l'and 2) )

db APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION I 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 uC.F.R. 5 2.749, for summary disposition in Applicants'~ favor of Contention I. As discussed herein, there is no-genuine issue as-tc.any fact. material to Contention I, and' Applicants are

~

i entitled to a decision in their. favor on Contention I as a matter of law.

This motion is supported by:

1.. " Applicants Statement of Material Facts As To Which LThere IsENo Genuine Issue To Be Heard On Contention I";

'2. " Affidavit of-Daniel D. Hulbert on Contention I"

("Hulbert-Affidavit");-

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

disposition).

'8502010130 850130 C'

. PDR ADOCK.05000440 0: PDR 3 -3

{(

o. .

e.

I. PROCEDURAL BACKGROUND Prior-to the availability of offsite emergency plans for the' plume. exposure' pathway emergency planning zone ("EPZ") for the Perry Nuclear Power Plant, the Board admitted a very broad emergency planning contention, Issue 1:

Applicants' emergency evacuation plans do not demonstrate that they provide reasonable 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'b'een publicly available for some time, Applicants (with the support of the

' Staff)' moved forJa Board order requiring the particularization ofcthe broad contention. The Board granted' Applicants' motion, directing Intervenor to "specify in a written filing the

. specific inadequacies alleged ~to exist in the draft local and State emergency plans * * *." See LBP-84-28, 20 N.R.C. at.132.

Contention I was initially advanced.in " Sunflower Alliance'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 thatecontention. As admitted by the Board,1/

1/ .The' Board expressly' rejected all allegations of the proposed contention'which are not included in the contention as framed by the Board. See January 10, 1985

. Memorandum and. Order,.at 5..

y 4

^

Contention I alleges:-

Applicant's emergency plan contemplates that an evacuation would not take place beyond a :5-mile radius of the Perry plant.

~" Memorandum and Order (Admissibility of Contentions on Emergency 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, 31985 Memorandum and Order, at 5. Further, the schedule proposed 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.

Accordingly, the instant motion is timely, and contention I is ripe for summary disposition.

'II. GOVERNING LEGAL STANDARDS

A.  : Summary Disposition Section II.A of " Applicants Motion For Summary

. Disposition'of Issue 14" (January 14, 1985) sets forth"the

. legal, standards applicable to a motion for summary disposition.

The discussion there is fully applicable to this Motion and is incorporated by.' reference herein.

B. Substantive Law-

'TheLCommission's emergency planning-regulations, at'10

-- C.F.R. 5 50.47(b)(10), require, in relevant part, that:

a- .._ __-- ~--- _ . . _ _ _ , - _ . _ . . _ , _ , ~ .

p w A range'of protective actions have been developed for the plume exposure U ' pathway for * *

• the public.

Guidelines for the choice of protective actions during an emergency, consistent with Federal

, guidance, are_ developed and in place

This planning standard is further addressed by i

NUREG-0654/ FEMA-REP-1, " Criteria For Preparation and Evaluation-

of Radiological Emergency' Response Plans and Preparedness In i:

. Support of Nuclear Power Plants" (Rev. 1, November 1980).

NUREG-0654: Criterion J.10.mLprovides, in relevant part, that a licensee's, plans shall include:

[t]he bases for the choice of recommended protective actions from the plume exposure pathway during emergency conditions. This shall

-include * *

• evacuation time estimates.

l l(Emphasis supplied). 10 C.F.R. S;50.47(c)(2)' specifies, in relevant part:

ANin a Generally, the plume exposure pathway "C~~ ~EPZ_for nuclear power-plants shall-consist of an area'about 10 miles (16 km)'in radius * * *.

III.-' ARGUMENT Applying the Commission's summary disposition standards to

-the facts of this case, it is clear that the instant motion for isummary d'isposition.of Contention I should-be granted.

Sunflower-cl' aims that the' Perry Emergency Plan does not concemplate. evacuation beyond 5 miles. The Hulbert Affidavit

' demonstrates that thisEclaim is incorrect. The Perry Emergency 3

l t

Plan and the off-site emergency plans all have adopted a plume exposure pathway EPZ of about 10 miles, as called for in 10 C.F.R. S 50.47(c)(2). Hulbert Affidavit, 1 3. The primary method by which Applicants determine protective action  !

recommendations compares projected doses (calculated from radiological release rate and meteorological information) to the US EPA Projected Action Guidelines, and thus does not limit the evacuation recommendations to 5 miles. Hulbert Affidavit, 1 5. .An alternate procedure in the Perry Emergency Plan compares potential releases (based on plant information) with pre-established curves. While the specific recommendations associated with the curves extend only to 5 miles, the Plan specifically states that the recommended protective actions may be extended based on particular conditions. Hulbert Affidavit, 1 7. To avoid confusion, the alternate procedure is being amended to specifically state that possible protective action recommendations may range to the full 10 mile plume exposure pathway EPZ. Hulbert Affidavit, 1 7. The three county plans each' contemplate protective actions for the entire plume exposure pathway EPZ. Hulbert Affidavit, 1 6. It is' clear that the Perry Emergency Plan and the off-site plans contemplate evacuation beyond 5 miles. Hulbert Affidavit, 1 9.

Sunflower's contention is therefore incorrect.

I y

3 IV. CONCLUSION Because.there is no genuine issue of material fact to be heard onLthe issue of whether the Perry Emergency Plan

-contemplates evacuation beyond 5 miles, Applicants' Motion For

. Summary Disposition of Contention I should be granted.

Respectfully submitted, 1

, 47 /b '(

Jay BC/S b e r g , ._ P . C .

SHAW/,,$1 MAN, POTTS & ROWBRIDGE 1800'k S reet, N.W.

Washington, D.C. 20036 (202) 822-1000 Counsel for Applicants i

Dated: January 30, 1985