ML20112J852
| ML20112J852 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 01/14/1985 |
| From: | Gaukler P CAROLINA POWER & LIGHT CO., NORTH CAROLINA MUNICIPAL POWER AGENCIES, SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20112J843 | List:
|
| References | |
| RTR-NUREG-0654, RTR-NUREG-654 OL, NUDOCS 8501180394 | |
| Download: ML20112J852 (16) | |
Text
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f PBE.T_E0 January 1471985
'85 Jrj 17 p; ;gg UNITED STATES OF AMERICA -
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
APPLICANT'S MOTION FOR
SUMMARY
DISPOSITION OF EDDLEMAN 30 Carolina Power & Light' Company and North Carolina Eastern Municipal Power Agency (" Applicants") hereby move the' Atomic Safety Licensing Board (" Board"), pursuant to 10 C.F.R. 5 2.749, for summary disposition in Applicants' favor of Eddleman Contention 30. As discussed herein, there is no genu-ine issue as to any fact material to Eddleman Contention 30 and Applicants are entitled to a decision in their favor on l
Eddleman Contention 30 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 Eddleman 30; l
- 2. Affidavit of Charles Reed in Support of Ap-plicants' Motion for Summary Disposition of Eddleman 30 (" Reed Affidavit"); and
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- 3. Applicants' Memorandum of Law in Support of Motion for Summary Disposition of Emergency Planning Contentions, (filed October 8, 1984).
I. PROCEDURAL BACKGROUND
. Eddleman Contention 30 was initially advanced in " Wells Eddleman's Contentions on the Emergency Plan (2nd Set)" (April 12, 1984). Eddleman 30 was admitted as a contention in this proceeding in the Board's " Memorandum and Order (Further Rulings on Admissibility of Offsite Emergency Planning Conten-tions Submitted By Intervenor Eddleman)" (June 14, 1984), at l'J -2 2 . In its June 14, 1984 order, the Board did not specify the precise wording of Eddleman 30 as admitted by the Board.
The Applicants, Mr. Eddleman, and the NRC Staff then entered into a stipulation codifying certain admitted contentions. See
" Joint Stipulation Codifying Certain Admitted Contentions"
! (October 12, 1984).1/ As stipulated by the parties, Eddleman 30 contends:
The plan's provisions (Part 1 pp. 49-50) for Potassium Iodide do not comply with the re-quirements of NUREG-0654 II.J.10.e (pg. 63) that the plans must include " quantities" for persons whose " evacuation may be infeasible or very dif-ficult" who are in the plume EPZ.
Applicants have served one set of interrogatories and 1/ In.their " Joint Motion for Approval of Stipulation Codi-Tying Certain Admitted Contentions" (October 12, 1984), the Ap-plicants, Mr. Eddleman, and the NRC Staff requested Board ap-proval of the wording of Eddleman 30. On December 6, 1984, the Board granted the Joint Motion of the parties. See " Order Ap-proving Joint Stipulation Codifying Certain Admitted Conten-tions" (December 6, 1984).
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0 request for production of documents on Mr. Eddleman on the sub-ject of Eddleman 30. See " Applicants' Emergency Planning In-terrogatories and Request for Production of Documents to Inter-venor Wells Eddleman (First Set)" (August 9, 1984), at 6-7.
" Wells Eddleman's Response to Applicants' 8-09-84 Emergency Planning Interrogatories" was filed September 7, 1984. Mr.
Eddleman served two sets of interrogatories on the Applicants on the subject of Eddleman 30. See " Wells Eddleman's General Interrogatories to Applicants Carolina Power & Light, et al.,
(9th Set)" (June 29, 1984), at 17. " Applicants' Response to Wells Eddleman's General Interrogatories to Applicants (Ninth Set)" was filed July 25, 1984, and " Applicants' Response to Wells Eddleman's General Interrogatories to Applicants (Tenth Set)" was filed September 7, 1984. Mr. Eddleman has served two sets of interrogatories on the NRC Staff and FEMA on the sub-ject of Eddleman 30. See " Wells Eddleman's Interrogatories to
. NRC Staff and FEMA (4th Set)" (June 29, 1984), at 8, and " Wells Eddleman's Interrogatories to NRC Staff and FEMA (5th Set)"
(August 9, 1984), at 12. " FEMA Staff Response to Interrogato-t ries Propounded by Intervenor Wells Eddleman" was filed August 14, 1984, and " FEMA Staff Response to Interrogatories Prounded by Intervenor Wells Eddleman" was filed September 7, 1984. The NRC Staff / FEMA did not file any discovery requests on the sub-ject of Eddleman 30. The last date for filing discovery on the contention was August 9, 1984. Discovery on this contention i is, therefore, complete.
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1 Eddleman Contention 30 is classified as an emergency plan-ning contention to be addressed in the hearings scheduled to commence June 18, 1985. Written direct testimony on the con-tention is scheduled to be tiled June 3, 1985. Further, the Board and the parties have established January 14, 1985 as the )
last day for filing summary disposition motions on this conten-tion. Thus, the instant motion is timely, and Eddleman Conten-tion 30 is ripe for summary disposition.
II. GOVERNING LEGAL STANDARDS A. Summary Disposition Applicants' Memorandum of Law In Support of Motion for Summary Disposition of Emergency Planning Contentions, filed October 8, 1984, is fully applicable to this motion and is in-corporated by reference herein.
B. Substantive Law The Commission's regulations on emergency preparedness re-quire offsite emergency response plans to meet the standards set forth in 10 C.F.R. S 50.47(b). Among other things, the plans must reflect that "a range of protective actions have been developed for the plume exposure EPZ for emergency workers and the public." 10 C.F.R. S 50.47(b)(10). The criteria for meeting this requirement are set forth in NUREG-0654/
FEMA-REP-1, " Criteria for Preparation and Evaluation of Ra-
,diological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (Rev. 1 November 1980) (hereinafter cited as "NUREG-0654"). Specifically the criteria for
implementing 10 C.F.R. 5 50.47(b)(10) are found in Section II.J of NUREG-0654, entitled " Protective Response".
The evaluation criterion II.J.10.e. addresses the provi-sions for the use of radioprotective drugs, the issue raised in Eddleman Contention 30. II.J.10.e. provides in full as fol-lows:
- 10. The organization's plan to implement protective measures for the plume exposure path-way shall include:
- e. Provisions for the use of radio-protective drugs, particularly for emergency workers and institutionalized persons within the plume exposure EPZ whose immediate evacuation may be unfeasible or very difficult, including quantities, storage, and means of distribution.
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 Eddleman Contention 30 should be granted. As made clear by the Board's order of June 14, 1984, the sole issue raised by Eddleman Contention 30 is whether a specific quantity of potassium iodide for emergency workers and for institutionalized persons must be set forth in the Plan itself, or whether the Plan's provision for determining the re-quired quantities of potassium iodide is sufficient.2/ There 2/ Mr. Eddleman had originally raised a host of contentions related to radioprotective drugs, in particular with respect to potassium iodide. Among other things, Mr. Eddleman had con-(Continued next page)
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is, however, no federal requirement tha't a state emergency re-sponse plan identify the specific quantity of potassium iodide in the plan itself in order to meet federal emergency planning requirements. Furthermore, as set forth in the affidavit of Charles D. Reed, Pharmacist, Division of Health Services, De-partment of Human Resources for the State of North Carolina (hereinafter cited as Reed Aff. 1__), the North Carolina State Plan provides reasonable assurance that potassium iodide will be available for emergency workers and institutionalized per-sons wholly apart from whether specific quantities of potassium iodine are listed in the Plan.
A. NUREG-0654 Does Not Require Specification In The ERP Of the Quantities of Potassium Iodide To Be Stored In The Vicinity Of A
- Nuclear Power Plant The lack of any requirement in NUREG-0654, criterion II.J.10.e, for specification of potassium iodide quantities in ERPs is confirmed by FEMA itself. In his interrogatories to 4
FEMA and to the NRC Staff, Mr. Eddleman asked "what is FEMA's v
or NRC Staff's understanding of the subject matter of" Eddleman (Continued) tended that the Plan was deficient because it did not make clear who was to distribute potassium iodide and to whom potas-sium iodide was to be distributed, and because it did not make provision for use of potassium iodide by the general public.
The Board rejected all these contentions except the very narrow and specific contention identified in the text above -- i.e.,
must the quantity of potassium iodide for emergency workers and those persons in institutions be set forth in the Plan itself.
Licensing Board Order dated June 14, 1980 at 19-22.
O Contention 30. In response to this interrogatory, FEMA an-swered as follows:
30: NUREG 0654 does not require that specific quantities of KI be listed in the plan. Plans state that the Division of Health Services (DHS) of the Department of Human Resources (DHR) will establish a program to insure that a sufficient number of Potassium Iodide units are located in the vicinity of plant Harris. DHS's program will include a running inventory of quantities of potassium iodide on hand and on order and where these quantities are located. Since these quantities fluctuate, it would be misleading and/or cumbersome (because of necessary updating) to include those figures in the North Carolina Emergency Response Plan document itself.
Emphasis supplied.3/
Thus, FEMA has interpreted its own requirement, II.J.10.e., as not requiring specification of the quantity of potassium iodide in the Emergency Response Plan itself. Rath-er, the Plan need only make provisions for the determination of the quantity of potassium iodide necessary for emergency workers and institutionalized persons. Since II.J.10.e is a criterion established by FEMA, FEMA's interpretation of this 1
! criterion is entitled to substantial weight. The courts have
- repeatedly indicated that an agency's interpretation of its own f regulation should be upheld unless " plainly erroneous". See, e.g., United States v. Larionoff, 431 U.S. 864, 872 (1977);
Udall v. Tallman, 380 U.S. 1, 16-17 (1965). Although this l
l 3/ See " FEMA Staff Response to Interrogatories Propounded by Intervenor Wells Eddleman," Response to Interrogatory 1, (August 14, 1984).
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J criterion does not carry the weight of a regulation, the same rule would apply with even greater force to regulatory guid-ance, such as NUREG-0654.
FEMA's interpretation of II.J.10.e is not plainly errone-ous. The literal language of II.J.10.e requires only that the Plan include "[p]rovisions for the * *
- quantities" of potas-sium iodide. FEMA has reasonably interpreted this language to mean "[p]rovisions for the * * * [ determination of sufficient]
quantities," not "[p]rovisions for the * * * [ specification of specific] quantities." Furthermore, as noted in FEMA's inter-rogatory answer quoted above, there are practical reasons for not requiring specification of a specific quantity of potassium in the Plan. For one thing, as noted by FEMA, the quantities of potassium iodide stored near a nuclear power plant may fluc-tuate over time for a variety of reasons, such as a change in population of the EPZ. See Reed Aff. 1 6. Accordingly, it could be cumbersome to specify the quantities of potassium j iodide in the emergency plan document itself, since it could i
periodically require amendments to the Plan. For similar rea-sons, the names and telephone numbers of officials charged with implementing the Plan are not set forth in the Plan itself.1/
4/ As noted in the affidavit of Charles Reed, while not for-
, mally part of the ERPs of the various nuclear power plants within the State, the Division of Health Services does distrib-ute on an ongoing basis information to State and local offi-cials identifying each location within the State where potassi-um iodide is stored, the specific quantities of potassium iodide stored at each location, as well as the names, addresses and telephone numbers of the persons with access to the potas-sium iodide stored at each location. Reed Aff. 1 6.
o 1 .
Moreover, speaification of the quantities of potassium iodide to be stored at various locations around the Shearon Harris facility could be misleading. As explained in the affi-davit of Charles Reed, the fact that a specific quantity of po-tassium iodide usiits may be stored at a particular location within the Shearon Harris vicinity would not dedicate that po-tassium iodide solely for use in and around that location.
Reed Aff. 1 6. Rather, the State has estabitshed a coordinated state-wide plan for the procurement, storage and usage of po-tassium iodide that emphasizes flexibility to ship potassium iodide anywhere, anytime that it is needed. Reed Aff. 11 5-6.
Thus, as interpreted by FEMA, criterion II.J.10.e does not f
require listing of specific quantities of potassium iodide in ERPs. Moreover, for the reasons articulated by FEMA and in the affidavit of Charles Reed, such specification of quantities in the Plan is impractical administratively.
B. The North Carolina Plan Satisfies The Functions And Goals Of Both The Regulations And Criterion II.J.10.e As is apparent from its language, the function of criteri-on II.J.10.e is to assure that one of the protective actions l
[ provided for by ERPs under 10 C.F.R. S 50.47(b)(10) is provi-1 i sion for the use of potassium iodide for emergency workers and
- institutionalized persons within the plume exposure EPZ. As
- recognized by FEMA in its interrogatory answer and as reflected
, in the Reed affidavit, critical to this function is a program 1
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that provides for the determination and procurement of suffi-cient quantities of potassium iodide on an ongoing basis, including during an actual emergency itself, and not the speci-fication of a fixed quantity of potassium iodide in the ERP.
The State of North Carolina has such a program.
The North Carolina Emergency Response Plan for the Shearon l Harris facility,Section IV.E.6. provides for the " Procurement, Storage and Distribution of Radiological Protective Drugs."
That section provides in full as follows:
i
- a. The Division of Health Services, DHR, will establish a monitoring and replacement pro-gram to insure that a sufficient number of po-tassium iodide units are conveniently and stra-tegically located in the vicinity of the Shearon Harris Plant. The majority of the potassium i
iodide units will be stored in the Chatham, Harnett, Lee and Wake County Health Departments under the control of officials in those counties. The Division of Health Services will
- coordinate directly with SERT, the counties in-volved, and Carolina Power & Light Company in order to carry out this program. SERT will be immediately informed of any significant change i in the status of available potassium iodide '
units.
- b. The Division of Health Services will determine the number of potassium iodide units required for emergency workers and institution-alized persons within the plume exposure pathway
, and will coordinate the procurement of all po-tassium iodide.
Thus, by the terms of the Plan, the Division of Health Services is to' establish a program for the procurement and storage of sufficient potassium iodide for emergency workers i and institutionalized persons on an ongoing basis, including during an emergency. Pursuant to this Plan, the State has
b determined that it should at the present time store 3,000 units of potassium iodide in the vicinity of the Shearon Harris EPZ among the county health departments in Chatham, Harnett, Lee and Wake counties.5/ The State believes that this quantity of potassium iodide is sufficient to handle any immediate response to an emergency at the Shearon Harris facility that involves the actual or potential release of radioactive iodine, which would require distribution of potassium iodide to emergency workers and institutionalized persons. Id.
Furthermore, as referred to above, the storage of potassi-um iodide in the Shearon Harris vicinity will be part of a co-ordinated state-wide plan for the procurement, storage and usage of potassium iodide for emergency workers and institu-tionalized persons in the event of an emergency at any one of the four nuclear power plants that affect the State. Reed Aff.
1 5. In order to maximize the protection afforded emergency workers and institutionalized persons, the State's program em-phasizes maximum flexibility to ship potassium iodide anywhere, anytime that it is needed. Id. Accordingly, in the event of a sustained or expanding emergency at Shearon Harris, the potas-sium iodide stored at McGuire (7,000 units) and that stored at Brunswick (5,000 units) would be available for use at Shearon Harris. Id.6/
i 5/ Each unit of potassium iodide consists of one bottle containing 14 tablets. Reed Aff. 1 4.
6/ Beyond that, as part of its general preparedness program In the event of a nuclear power plant emergency, the State is a (Continued next page) 4
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a Thus, the Shearon Harris ERP provides reasonable assurance for the provision of potassium iodide for emergency workers and institutionalized persons in the event of an emergency, as sought by criterion II.J.10.e and 10 C.F.R. S 50.47(b). Ac-cordingly, even if the Board were to read the literal language of criterion II.J.10.e as requiring specification of the quan-tity of potassium iodide in ERPs, it should not order such specification here. NUREG-0654 provides only non-binding guid-ance on means to satisfy the requirements in 10 C.F.R.
S 50.47(b); it does not exclude other acceptable means of sat-isfying the regulation. See Metropolitan Edison Company (Three Mile Island Nuclear Station, Unit No. 1), ALAB-698, 16 N.R.C.
1290, 1298-1299 (1982). Here, as written and implemented, the North Carolina Plan satisfies the function of both criterion II.J.10.e and 10 C.F.R. S 50.47(b)(10).1/
(Continued) member of the Southern Mutual Radiation Assistance Plan. Reed Aff. 1 5. This Plan provides for the sharing of radiological emergency assistance capabilities by the states located in the southeastern part of the United States in the event of a nucle-ar power plant emergency in any one of the states. Id. Among the emergency capabilities to be shared in such an event are the states' respective stores of potassium iodide. Id.
7/ In the event the Board were nevertheless to determine that the quantity of potassium iodide must be specified in the Plan, that can be accomplished through simply amending the Plan, since the State has already made the determination that 3,000 units of potassium iodide should be stored in the Shearon Harris vicinity. The State has indicated that it would amend the Plan to include this quantity should the Board determine that such amendment of the Plan is required. Reed e.ff. 1 7.
However, for the reasons set forth above, the Applicants urge the Board that it is neither required nor practical for it to require any such amendment to the Plan.
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In summary, criterion II.J.10.e. does not, as recognized by the agency responsible for its interpretation and applica-tion, require specification within the Plan itself of the quan-a tity of potassium iodide to be stored in the vicinity of a nu-clear power plant. As recognized by FEMA, the quantities of potassium iodide necessary for emergency workers and institu-tionalized persons may fluctuate and therefore what is required to satisfy criterion II.J.10.e is a program that makes provi-sion for the determination and the procurement of sufficient quantities of potassium iodide on an ongoing basis. The North Carolina Shearon Harris Plan does this and therefore satisfies both criterion II.J.10.e and 10 C.F.R. 5 50.47(b)(10).
IV. CONCLUSION For the foregoing reasons the Board should grant the Ap-plicants' Motion for Summary Disposition of Eddleman 30.
Respectfully submitted, Gbf Thomas A. Baxter, P.C. '
mdL Paul A. Gaukler SRAW, PITTMAN, POTTS & TROWBRIDGE l 1800 M Street, N.W.
l Washington, D. C. 20036 (202) 822-1000 l
! Richard E. Jones i Dale E. Hollar CAROLINA POWER & LIGHT COMPANY l P. O. Box 1551 Raleigh, North Carolina 27602
- (919) 836-7707 r
l Counsel for Applicants l
l Dated: January 14, 1985 l
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'85Jaiiiia'By 24;5d985 L G ICE - ~. f L Rt f CCCXE' G iSE--1 G AiK H UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
CAROLINA POWER & LIGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion For.
Summary Disposition of Eddleman 30," " Applicants' Statement of Material Facts As To Which There Is No Genuine Issue To Be Heard On Eddleman 30," and " Affidavit of Charles D. Reed in Support of Applicants' Motion for Summary Disposition on Eddleman Contention 30" were served this 14 day of January 14, 1985, by deposit in the U.S. mail, first class, postage pre-paid, upon the parties listed on the attached Service List.
Glil ~ ~
Dated: / -N- ES
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a January 14, 1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 4 In the Matter of )
)
, CAROLINA POWER & LIGHT COMPANY )
cnd NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power Plant))
SERVICE LIST James L. Kelley, Esquire John D. Runkle, Esquire
' Atomic Safety and Licensing Board Conservation Council of U.S. Nuclear Regulatory Commission North Carolina Washington, D.C. 20555 307 Granville Road i Chapel Hill, NC 27514 Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U.S. Nuclear Regulatory Commission P. O. Box 12607 Washington, D.C. 20555 Raleigh, NC 27605 Dr. James H. Carpenter Dr. Richard D. Wilson Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, NC 27502 '
Washington, D.C. 20555
[ Charles A..Barth, Esquire Mr. Wells Eddleman Janice E. Moore, Esquire 718-A Iredell Street Office of Executive Legal Director Durham, NC 27705 l U.S. Nuclear Regulatory Commission
- Washington, D.C. 20555 i
- . Docketing and Service Section Richard E. Jones, Esquire
- Office of the Secretary Vice President and
- U.S. Nuclear Regulatory Commission Senior Counsel Washington, D.C. 20555 Carolina Power & Light Company
, P.O. Box 1551 i
! Raleigh, NC 27602 b -
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- Mr. Daniel F. Read, President Dr. Linda W. Little f CHANGE Governor's Waste Management Board P.O. Box 2151 513 Albermarle Building Raleigh, NC 27602 325 North Salisbury Street Raleigh, North Carolina 27611 Cradley W. Jones, Esquire Steven F. Crockett, Esq.
U.S. Nuclear Regulatory Commission Atomic Savety and Rggion II Licensing Board Panel 101 Marietta Street U.S. Nuclear Regulatory Commission Atlanta, Georgia 30303 Washington, D.C. 20555 Mr. Robert P. Gruber Administrative Judge Harry Foreman Executive Director Box 395 Mayo Public Staff - NCUC University of Minnesota P st Office Box 991 Minneapolis, Minnesota 55455 Raleigh, North Carolina 27602 Spence W. Perry, Esquire Steven Rochlis, Esq.
Acsociate General Counsel Regional Counsel FEMA FEMA 500 C Street, S.W., Suite 480 1371 Peachtree Street, N.E.
! W2shington, D.C. 20740 Atlanta, Georgia 30309 e
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