ML20106A254

Motion for Summary Disposition of Contention G Re Availability of Potassium Iodide for Emergency Workers.No Genuine Issue of Matl Fact Exists & Applicant Entitled to Favorable Decision

ML20106A254
Person / Time
Site:	Perry
Issue date:	02/05/1985
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20106A256	List: ML20106A254 ML20106A269 ML20106A279 ML20106A287
References
CON-#185-481 OL, NUDOCS 8502110093
Download: ML20106A254 (11)

Text

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o February 5, 1985 COLf; QED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'85 FE3 -8 A10 :14 BEFORE-THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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THE CLEVELAND ELECTRIC ) Docket Nos. 50-440 0 C-ILLUMINATING COMPANY ) 50-441 C)C-

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(Perry Nuclear Power Plant, )

Units 1 and 2) )

APPLICANTS' MOTION FOR

SUMMARY

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

8502110093 850205 I PDR ADOCK 05000440 .

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This motion is supported by:

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

2. - " Affidavit of John J. Mauro" on Contention G ("Mauro Affidavit");

3. " Affidavit of Floro D. Miraldi, M.D. on Contention G"

("Miraldi Affidavit"); and Section II.A of " Applicants' Motion For Summary Dis-

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4.

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

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 measures can and will be taken in the event of an emergency.

See LDP-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).

I 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, y

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directing Intervenor Sunflower Alliance, Inc., et al. (" Sun-flower") 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 G 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 G alleges:

Emergency plans should include the avail-ability of potassium iodide (KI) for emer-gency workers and the public.

" 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-1 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 G 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 Commission's emergency planning regulations, at 10

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

(a] range of protective ac-tions have been developed for the plume exposure path-way EPZ for * *

• the pub-lic. Guidelines for the choice of protective actions during an emergency, consis-tent with. Federal guidance, are developed and in place * * *.

In addition, 10 C.F.R. S 50.47(b)(ll) requires, in relevant part, that:

[m]eans for controlling ra-diological exposures, in an emergency, are established for' emergency workers.

The standards embodied in the emergency planning regula-

.tions are further addressed by NUREG-0654/ FEMA-REP-1, " Criteria For Preparation and Evaluation of Rdiological Emergency Re-

.sponse' Plans and Preparedness In Support of Nuclear Power

-Plants" (Rev. 1, November 1980). NUREG-0654 Criterion J.10.e

-specifies, in relevant part, that offsite plans shall include

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s Provisions for the use of radioprotective drugs, par-ticularly for emergency workers and institution-alized persons within the plume exposure EPZ * * * .

~ Criterion J.10.f further provides:

State and local organiza-tions'_ plans should include the method by which deci-sions by the State Health Department for administering radioprotective drugs to the general population are made during an emergency and the pre-determined conditions under which such drugs may be used by offsite emergency workers.

The Appeal Board has stated that neither the NRC regula-tions on emergency planning nor NUREG-0654 require the avail-ability of KI for-offsite emergency workers or the public.

-Union Electric Co. (Callaway Plant, Unit 1), ALAB-754, 18 N.R.C. 1333, 1334 (1983).

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 G should be granted. Sun-flower in its Contention G asserts that the state and county emergency plans should' provide for the use of potassium iodide (KI) by offsite' emergency workers and the public.

As discussed below, NRC regulations do not mandate the use of KI for offsite emergency workers or the public; decisions regarding KI use are i

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the prerogative of state and local governments; the State of Ohio's position, endorsed by the three counties within the EPZ, is'~that KI should not be employed; and this decision is reason-able and appropriate in light of the costs and benefits of KI use.

The Commission's regulations (specifically, 10 C.P.R. SS 50.47 (b)(10) and (b)(ll)) do not require that KI be provided for_use by offsite emergency workers or the general public.

NUREG-0654 includes a recommendation that KI be provided for offsite emergency workers. However, federal policy on KI has evolved over the years since publication of NUREG-0654; and that' document no longer fully and accurately reflects the cur-rent federal regulatory position. See Mauro Affidavit at 11 12-22.

Current federal policy on KI recognizes that decisions on

. the provision of KI to offsite emergency workers and the public are the prerogative of the responsible state and local govern-ments. See id. The Appeal Board:in Callaway has stated:

Generally speaking, the Commission bases its de-cision regarding the adequacy of-emergency plans on a review of' findings and determinations made by the Federal Emergency Management Agency (FEMA), which is responsible for reviewing offsite emergency plans. In turn, FEMA leaves '

to state governments the decision regarding the distribution of KI. A FEMA' interim policy guid-ance statement on the use of potassium iodide, dated December 1, 1982, indicates:

- Each' state has a responsibility for formu-lating guidance to define if and when po-tassium iodide'is used as a thyroid blocking agent for' emergency workers, 4

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.e-institutionalized persons, and the general public. Where States elect not to include KI in their preparedness posture either for emergency workers or institutionalized persons, the plans should state under whose authority the decision was made and the ra-tionale for the decision.

Similarly, the Federal Radiological Pre-paredness coordinating Committee, which is com-prised of representatives of numerous Federal

- agencies,-including FEMA, the NRC, and the Envi-ronmental Protection-Agency, states:

It is recognized that the decision to use KI for thyroid blocking to protect the 3 health and safety resides with the State and local health authorities. Therefore, with the exception of the NRC licensee's personnel located on-site during the acci-dent, the decision for use of KI during an actual emergency by all other individuals for whom the use of KI is recommended are the responsibility of those authorities.

In addition, because the' factors bearing on the desirability of stockpiling and distributing KI for thyroidal blocking of the general population within the Emergency Planning Zone for the Plume Exposure Path-way depend heavily on local conditions, this matter is a decision.for State and local authorities to make.

' ALAB-754,18 N.R.C.: at 1335 (footnotes omitted) .

The position of the State of Ohio, as set.forth by the State Director of Health, is:that KI should not be issued for

offsite emergency workers or the general population. Miraldi Affidavit at 1 2; State of Ohio Plan for Response to Ra-

-diological Emergencies at Licensed Nuclear Facilities (Edition of 1984) (" State Plan"), 5 II.J.3.c. The rationale for the

-State's public health policy decision is stated in the State Plan at S III, Letter No. 12. The three counties have followed

o the State's advice concerning KI. Lake County Emergency Re-sponse Plan for the Perry Nuclear Power Plant (Rev. 3, October 1984), 5 K-04; Ashtabula County Radiological Emergency Pre-paredness Plan (May 10, 1984), 5 J.5; Geauga County Ra-diological Emergency Response Plan (Change No. 2 dated July 1984), 5 J-7.

The Ohio policy on KI currently is under review. The Di-rector of the Radiological Health Program of the Ohio Depart-ment of Health is empaneling an "Ad Hoc Committee on Potassium Iodide" to review the present policy and make recommendations y to the Ohio Department of Health. Miraldi Affidavit at 1 3.

As discussed in the Mauro Affidavit, there are numerous, complex technical issues associated with the use of KI for offsite emergency workers and the public; and any decision by a state or local government to employ or not to employ KI offsite must be based on a balancing of the costs and benefits of such a program. Mauro Affidavit at 11 23-24.

Although there is little disagreement that KI, if properly used, would be effective in reducing the internal dose to the thyroid gland from inhaled or ingested ~radioiodine, the bene-fits of this protective action are questionable. Id. at 1 25.

First, studies have shown that the probability of a large re-lease of radioiodine following a core melt accident is much ,

lower than previously thought. Id. at 1 9. Second, there is incroacing evidence.that radioiodine source terms following severe reactor accidents have been grossly overestimated in the past. Id. at 11 15, 36. Third, the health consequences of ex- ]

posure to the thyroid gland from radioiodine are marginal com-

' pared to exposure to the whole body from radioiodine and other

. radionuclides. Id. at 1 25. Fourth, studies on the effec-

'tiveness of various methods of respiratory protection demon-strate that ad hoc measures (e.g., sheltering, or using wetted towels or sheeting) provide protection against exposure to the thyroid comparable to KI, while protecting other organs as well. Id. at i 11. In sum, the potential benefits of offsite KI use are so small that the transportation risks associated with stockpiling the drug may alone,be sufficient to offset them. Id. at 11,34-35.

The costs of making KI available for use by offsite emer-gency workers and the public include both economic costs, and

, potential costs to the public health and safety. Id,. at 1 26.

Economic costs include the purchase price.of the drug, periodic r'eplacement costs (every three years), costs for stockpiling, ce distributing and monitoring the status of the drug, and admin-istrative expenses. Id. at 1-27. Public health costs include the numerous potential adverse side effects of KI, including possible effects on newborn children, the elderly, pregnant women, the developing fetus, and people with allergic reac-tions. Id. at 11 10, 29-32. In addition to public health ef-

, fects, the use of KI in an' emergency can impact the public 9

e safety by interfering with other, more effective, protective measures, such as shelter and evacuation. Id. at 11 32-33.

It is precisely because of the considerable uncertainties regarding the merits of offsite use of KI that the decision whether or not to make the drug available is appropriately lef t for the State of Ohio and county governments. Licensing Boards have stepped lightly where, as here, a state has weighed the costs and benefits of KI, and has made a public health policy decision not to provide it. See Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 N. ROC.

1211, 1669 (1981), aff'd, ALAB-697, 16 N.R.C. 1265 (1982),

ALAB-698, 16 N.R.C. 1290 (1982), and CLI-83-22, 18 N.R.C. 299 (1983). See also, Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 N.R.C. 1020, 1033 (1984) (contention challenging state policy against distributing KI to public rejected based on prior litigation of issue in other proceedings). Indeed, Intervenor can point to no case where a Licensing Board has ordered the provision of KI

'despite a state's decision not to provide it. In this case, too, the State of Ohio's public health policy decision not to

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provide KI for-emergency workers and the public is reasonable I and should not be overruled. Mauro Affidavit at 1 38.

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IV. CONCLUSION Because there is no genuine issue of material fact to be heard on the issue of the use of KI, either by offsite emergen-cy workers or the public, Applicants' Motion For Summary Dispo-sition of Contention G should be granted.

Respectfully submitted,

, L~ t .

filbe rg ,P . C.

Jphel Mac A. Swiger

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S , PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 counsel for Applicants Dated: February 5, 1985

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