ML20104A611

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

ML20104A611
Person / Time
Site:	Perry
Issue date:	01/30/1985
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
ML20104A615	List: ML20104A611 ML20104A634 ML20104A642
References
CON-#185-329 OL, NUDOCS 8502010403
Download: ML20104A611 (6)

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-5 0E$$QtD January 30,"1985 23 d4yj; R2:03 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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.THE CLEVELAND ELECTRIC ) . Docket Nos. 50-440 E _ ILLUMINATING COMPANY ) 50-441 Obs

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_( Perry Nuclear. Power Plant, )

Units 1 and 2) )

APPLICANTS' MOTION FOR

'SUMM'RY A DISPOSITION'OF CONTENTION DD 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. 5 2.749,-for summary disposition in Applicants' favor of Contention-DD. As' discussed herein, there is no genuine issue as to any fact material to Contention DD, and Applicants are entitled to.a decision in their favor on Contention DD as a matter of law.

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~:q 1This: motion:is: supported by:

l.. ~ " Applicants' Statement of. Material Facts As To Which  :

1ThereiIs~No' Genuine: Issue To Be Heard On Contention DD";

2. '" Affidavit of Daniel D. Hulbert on Contention DD"

'("Hulbert Affidavit");

3 '.' (Section II.A of " Applicants' Motion For Summary LDisposition of; Issue 14" (January 14,.1985) (articulating

~theilegal' standards! applicable to a motion for summary a disposition)..

I. PROCEDURAL BACKGROUND Prior'totthe availability of offsite emergency plans for lth'e plume : exposure: pathway emergency planning zone for the

PerryLfacility' , the Board admitted a very broad emergency

. 4 ~ planning' contention, Issue 1

Applicants' emergency evacuation plans.do not demonstrate that they provide reas'onable. assurance that adequ' ate

-protective measures can and will be taken

.in the eventLof an' emergency..

^See"LBP-81-24, 14 N;R.C. 175, 189 (1981), as modified by 7LBP-81-35,c14-N.R.C. 6 8'2 ,1 6 8 6 (1981). The' Board subsequently

'notsd[that the-wordsf" State,and; local" should be substituted

[(' t Jfor;the word / Applicants'"'in~the. wording (of'the contention ~.

7See'LBP-84-28, 20.N.R.C.;129,L130 n.1-(1984).

^AA jAfter well-developedfoffsite plans;had been. publicly.

.available:for someLtime," Applicants:(with the support of the X, . .. ':

Staff))movedifor a? Board--ordergrequirin~g'the particularization

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To'f the broad' contention.[LThe Board granted Applicants' motion,'

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~r Ldi ecting Intervenorito<"specifylin a written. filing the, 4

lspecificlinadequacies. alleged (to exist.inJthe: draft local and:

State l emergencyy plans f *L

• J *. ": See LBP-8 4-2 8, , 2 0 N.R.C. . at -13 2.

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Contention DD 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 that contention. As admitted by the Board,1/

Contention DD alleges:

The Applicant's emergency operation facility is located contrary to the criteria and guidance provided by the NRC.

" Memorandum and Order (Admissibility of Contentions on Emergency 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

. proposed by Applicants establishes February 5, 1985 as the last Lday for filing summary disposition motions. See January 18, 1985 Letter, Counsel for Applicants to Licensing-Board.

Accordingly, the instant motion is timely, and Contention DD is ripe for summary disposition.

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.

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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

-The Commission's emergency planning regulations, at 10 C.F.R. S 50.47(b)(8), require, in relevant part, that:

[a]dequate emergency facilities * *

• to support the emergency response are provided and maintained.

The. regulations also require, in relevant part, that:

Adequate provisions shall be made

• *

• for emergency facilities * * *,

including:

A licensee * *

• near-site emergency operations facility from which effective direction can be given and effective control can be exercised during an emergency..

10 C.F.R. Part 50, App. E, 5 IV.E.8.

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' Preparedness In Support of Nuclear Power Plants" (Rev. 1, November 1980).- NUREG-0654 Criterion H.2 provides: -

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n-P Each licensee shall establish an Emergency Operations Facility from which evaluation and coordination of all licensee activitie s related to an emergency is to be carried out and from which the licenseo shall provide information to Federal, State and local authorities responding to radiological emergencies in accordance with NUREG-0696, Revision 1.

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 DD should be granted. The Emergency Operations Facility (" EOF") for the Perry facility is located consistent with NRC criteria and guidance. Hulbert Affidavit, 1 7. The EOF is sited about 1,970 feet from the Unit 1 reactor building and about 1,800 feet from the Unit 2 reactor building. Id., 1 3. It is well outside the Unit 1 security boundary and where the Unit 2 security boundary will be. Id., 1 4. The only NRC regulatory guidance on the minimum distance of'an EOF from the plant is that it should be outside the plant security boundary. Generic Letter No. 82-33, Supp. 1 to NUREG-0737~(December 17, 1982); Hulbert Affidavit, 1 4. The two NRC guidance documents cited by Sunflower, NUREG-0814 and NUREG-0696, establish different requirements for EOF's located within-10 miles and beyond-10 miles from the_ plant, but do not require l specific!NRC approval for locations closer than 20 miles to the plant. Hulbert Affidavit, 1 5. Sunflower is also incorrect in claiming that the EOF location will jeopardize

e county decision-makers by forcing them to come to the Perry EOF in the event of any accident. Those officials convene in their respective Emergency Operations Centers, not at the EOF. Id.,

1 6. For all these reasons, Sunflower's contention is

-therefore incorrect in claiming that the Perry EOF is located inconsistent with NRC criteria and guidance.

IV. CONCLUSION Because there is no genuine issue of material fact to be heard on the issue of whether the Perry EOF is located consistent with NRC criteria and guidance, Applicants' Motion For Summary Disposition of Contention DD should be granted.

Respectfully submitted,

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> 4LR /C Ja . ilberg, P.C.

SH P TTMAN, POTTS ROWBRIDGE 18 M treet, N.W.

Washington, D.C. 20036 (202) 822-1000 Counsel for Applicants Dated: January 30, 1985