ML20107G367

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Answer Opposing Util Motion for Summary Disposition of Contention C.Emergency Evacuation Plans Completely Sidestep Logic & Mandates of State of Oh Law
ML20107G367
Person / Time
Site: Perry  FirstEnergy icon.png
Issue date: 02/23/1985
From: Lodge T
LODGE, T.J., SUNFLOWER ALLIANCE
To:
Atomic Safety and Licensing Board Panel
Shared Package
ML20107G302 List:
References
OL, NUDOCS 8502260399
Download: ML20107G367 (4)
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing bed FB 25 PI d5 In the Matter of

) ggF $]CRfT ky THE CLEVELAND ELECTRIC ) Docket Nos. 50-4/4 Rage @TO h41 ILLUMINATING COMPANY )

(Ferry Nuclear Power Plant, Units I and 2) ) . . w e. . % , , .

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SUNFLOWER'S ANSWER TO MOTION FOR

SUMMARY

DISPOSITION OF CONTENTION C By 10 CFR Section 2.749(d), Applicant must show that there is no genuine issue as to any material fact and that it is entitled to a decision as a matter of law. The record is to be viewed in the light most favorable to the party opposing the motion. Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473 (1962); Pennsylvania Power & Light Co. and Allegheny-Electric Cooperative, Inc. (Susquehanna Steam Electric Station, Units 1 and 2), LBP-81-8, 13 NRC 335, 337 (1981).

Applicant continues to' deny the lead role in declaration of an emergency which must be borne by the Governor of the State of Ohio. Using a political scientist-affiant does not comprise evidence of hard law.

In the event of a radf> logical emergency at PNPP, CEI staff are responsible for classifying the incident, activating the onsite emergency-organization, and notifying offsite authorities. -NUREG-0887 Supp. 4.at 13-2..

The State of Ohio Diaster Services Agency (DS'A), . Adjutant-General's office is the lead support agency to affected county. governments, and'it falls to DSA to notify other state officials and locally involved entities. J .

.Ashtabula's County Commissioners will " control" actions to'be l, DR -

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taken. See State Plan, Rev. 3 at 5-31. Lake County's Commissioners did not even rate a mention as to their roles in the State Plan. H. at 5-25. In the event of a " general emergency," where protective steps must be taken

. for the public within a 10-mile radius of PNPP in as little as 15 minutes,

' ,Ashtabula County's " Radiological Emergency Response Plan" (RERP) states that its County Commissioners will " order" shelter or even evacuation, based on advice of County staff and " recommendations" of the Governor's office.

See also Lake County RERP at 1. See also State Plan, Rev. 3 at Id. at 4.-

5-27. , wherein the Lake County Prosecutor advises on' emergency authorities and proclamations. In sum,there is no consistently-defined role in a major or minor emergency for County Commissioners, especially in' conjunction with.

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any. leadership which would be forthcoming from the State.

Sadly, the plans are deficient in a major l technical respect.

Worse, in' a major evacuation, they completely sidestep the logic and mandates of Ohio law.

NUREG-0654 obliges Applicant's plans to "contain;(by reference w-

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to specific acts, codes or statutes) the legal basis for such authorities"

.of'various component entities inLemergency ~ activities. Nowhere'does any sucN

, z documentation or discourse appear. g Moreover,'.the ? tenor of the state and' local plans ignores 1the;overwhelmingifact of Ohio law'that !only the Governor!asy a ;

ideclare an' emergency. f0.R.C. 5915;01(D) defines " emergency" asi

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-(A)ny period during which the' president or/the-

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m congress of the United States or'the nevernor; has proclaimed'that an emermancy exists. . &  ;

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(emphasis supplied) .

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~There;are legal'and" policy reasons for the Drequirement-the he. y;;

'Governordeclarean: emergency.10hiohasa" good [Semaritan"" statute'forl persons

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? assisting.'during ^ 'a ' civil Ldefense L emergency, which only: provides coverage' and .

immunity fron' civil liability upon' declaration'of an. emergency by-the Governor.,;

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. s R.C. 5915.10. That section of the Ohio Revised Code states as follows:

r (A) The state, any political subdivision, municipal agency, civil defense volunteer, or another state or a civil defense force thereof or of the federal government or of another country or province or subdivision thereof performing civil defense services in this state pursuant to an arrangement, agreement or compact for mutual aid and assistance, or any agency, member, agent or representative of any of them, or any individual, partnership, corporation, association, trustee, receiver or any of the agents thereof, in good faith carry-ing out, complying with or attempting to comply with any law, any rule, regulation or order duly promulgated or issued pursuant to sections 5915.01 to 5915.143 inclusive, of the Revised Code, any federal law, or any arrangement, agreement or compact for mutual aid and assistance or any order issued by federal or state military authorities relating to civil defense, shall not be liable for

.any injury or death to persons or damage to property as the result thereof-during training periods, test periods, practice periods or other civil. defense operations, or false alerts, as well as during enemy

attack, actual or imminent, and subsequent to the same except in cases of willful misconduct.

. (emphasis supplied)

.In:the past two years, perhaps a dozen different decisions of i the Ohio Supreme Court.have~ virtually destroyed the doctrine'ofL"sovereigni

-QL immunity" which has traditionally protected governmen'tal' units from civil $

o liab~ility.for mistakes of its officials. However, there has not been a civil disaster the, magnitude of'an' extraordinary nucidAr occurrence to ' test' what '

N [may remain of local government immunity under this' faded' doctrine and R.C.  ;

.* 5915[10.. Under the proposed plans, local officials'.such as Ashtabula County

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" Commissioners might expose themselves and the numerous: civil," volunteers" . -

y .. 1. 1 comprising the backbone of governmental response to the potential of civil monetary damages by " proclaiming',' an emergency and ordering merely shelter, as opposed.to evacuation,Jto avoid liability for'such problems.as,a' drunken'or;

. drugged?or exhausted volunteer bus driver's antics'..while all.the while'the:

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the Lake County Commissioners " proclaim" an evacuation and direct all emergency personnel to cut and run. Besides the enormous inconsistencies

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in preserving the public health and safety, Sunflower wonders if local officials'really want to roll the dice of multimillion dollar liability by ordering all in the EPZ not to evacuate. What are the liabilities of a county commissioner who votes to " proclaim" an emergency in the absence-

. of the Governor's proclamation, but instead of ordering evacuation, orders shelter only, thereby committing hundreds or. thousands in the plume exposure pathway to toxic radiation poisoning?

Complicating these issues is the official guidance for decision-making. '_NUREG-0654 at 1-3 states that:

Prompt notification of offsite authorities is intended to indicate within about 15 minutes for the unusual event class and sooner (consistent:

.with the need for other emergency actions) for-other classes. The time is measured from the time a.

at which operators recognize that events have occurred which make declaration of an emergency

. class appropriate..

--(emphasis supplied); _

Y See also 10 CFRf50 App. _E (IV) - (D) '(s). .

a. The. issue in this contention is not whether the roles'and. responsi .-
g bilities of'the commissioners'of'each' county"are "parall'el."The'. issue is -

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swhat entity-the county commissioners or the. Governor-declar'es aniemergency 2

'and sets 'an evacuation into motion. --AsjApplicant<han not-resolved this? issue;

'by its notion,iit should be' summarily'denisd.

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_7 Respectfully.' submitted . ,

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".- trry; .. Lodge w - -h ,8 ' N Eichigan Street.

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, 4 Toledo, OhioD 43624 4 M

_f ) Ph'one: (419) 255-7552

.. .s Counsel for SunfloweriAlliance.

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