ML20112K118
| ML20112K118 | |
| Person / Time | |
|---|---|
| Site: | Harris  |
| Issue date: | 01/14/1985 |
| From: | Ridgway D 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 | |
| OL, NUDOCS 8501180476 | |
| Download: ML20112K118 (19) | |
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. t January 14, 1985 DQCKETCO Apr ~
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'05 m n n o BEFORE THE ATOMIC SAFETY AND LICENSING BOARD;;g" 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) )
APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION OF WILSON 12(b)(3) AND EPJ-2 Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (" Applicants") hereby move the Atomic Safety and Licensing Board (" Board"), pursuant to 10 C.F.R.
S 2.749, for summary disposition in Applicants' favor of Wilson 12(b)(3) and EPJ-2. As discussed herein, there is no genuine issue as to any fact material to Wilson 12(b)(3) and EPJ-2, and Applicants are entitled to a decision in their favor on both contentions 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 Wilson 12(b)(3) and EPJ-2";
- 3. " Affidavit of Kevin Twine on Wilson 12(b)(3) and
_EPJ-2" (" Twine Affidavit");
- 4. " Affidavit of Dennis S. Mileti on Wilson 12(b)(3) and EPJ-2" ("Mileti Affidavit"); and 8501{Bhf0
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- 5. " Applicants' Memorandum of Law In Support of Motions For Summary Disposition of Emergency Planning Conten-tions," (filed October 8, 1984).
I. PROCEDURAL BACKGROUND Wilson 12(b)(3) 1 Wilson Contention 12(b)(3) was admitted as a contention in this proceeding in the Board's August 3, 1984 " Memorandum and Order (Final Set of Rulings on Admissibility of Offsite Emer-gency Planning Contentions, Ruling on Petition for Waiver of Need for Power Rule, and Notice of Upcoming Telephone Confer-ence Call)," LBP-84-298, 20 N.R.C. 389, 423. As admitted by the Board, Wilson 12(b)(3) contends:
The evacuation time study itself is deficient because: The 240 family [ sic] without transpor-tation is too low -- there are more without cars and many whose only car would be out of the EPZ at work. Many have cars that are not in working order.
Applicants have served one set of interrogatories and re-quest for production of documents on Dr. Wilson on the subject of Wilson 12(b)(3). See " Applicants' Emergency Planning Inter-rogatories and Request for Production of Documents To Interve-nor Wilson (Second Set)" (October 5, 1984), at 6-9. " Response by Richard Wilson to Applicants Interrogatories on EPJ-5 and Wilson 12(b)(2) and Wilson 12(b)(3)" was filed on October 25,
.1984. Dr. Wilson served one set of interrogatories on Appli-cants on the subject of Wilson 12(b)(3). See " Richard Wilson
4
_ Interrogatories to the Applicant on EPJ-5, Wilson 11, Wilson 12b2, Wilson 12b3 "(September 19, 1984). " Applicants' Response to Richard Wilson Interrogatories on EPJ-5, Wilson 11, I
Wilson 12b2, Wilson 12b3" was filed October 16, 1984. Dr. I Wilson served one set of interrogatories on the NRC Staff / FEMA on the subject of Wilson 12(b)(3). See " Richard Wilson Inter-rogatories to the NRC Staff and FEMA with Regard to EPJ-5 and Wilson 11, 12b2, 12b3" (September 19, 1984). "NRC Staff and FEMA Responses to Interrogatories Dated September 19, 1984 Pro-pounded By Richard Wilson on Contentions EPJ-5 and Wilson 11, 12b2 and 12b3" were filed October 9, 1984 and "NRC Staff Sup-plemental Response to Interrogatory 2 of Interrogatories Dated September 19, 1984 Propounded By Richard Wilson on Contentions EPJ-5 and Wilson 11, 12b2 and 12b3" was filed October 22, 1984.
The-NRC Staff / FEMA did not file any discovery requests on Wilson 12(b)(3). The last date for filing discovery on the contention was October-8, 1984. Discovery on this contention is, therefore, complete.
-EPJ-2 Emergency Planning Joint ("EPJ") Contention 2 was admitted as a contention in this proceeding in the course of the May 2, 1984 prehearing conference. See Tr. 989, attached to " Order (Ruling On Various Procedural Questions and Eddleman Contention 15AA)" (May 10, 1984). As admitted by the Board, EPJ-2 contends:
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Section IV.E.4.e of the State plan (at 47) is deficient because it provides no estimate of the number of people without transportation (Appli-cants' estimate of 240 families in evacuation time study (p. 3-2) seems far too low), no sug-gestion as to how people without transportation would get to pickup points, and no criteria for determining when and where they would be "estab-lished as required."
Applicants have served one set of interrogatories and re-quest for production of documents on the sponsors of EPJ-2 on the subject of EPJ-2.1/ See " Applicants' Emergency Planning Interrogatories and Request For Production of Documents to Sponsors of EPJ-l and EPJ-2 (First Set)" (August 9, 1984), at 9-12. The " Response to Applicants' Emergency Planning Inter-rogatories and Request For Production of Documents to Sponsors of EPJ-l and EPJ-2 (First Set)" was filed September 17, 1984.
CHANGE served one set of interrogatories on Applicants on the subject of EPJ-2. See " Emergency Planning Interrogatories and Request for Production of Documents to Applicants" (October 8, 1984), at 4. " Applicants' Response to [ CHANGE] Emergency Plan-ning Interrogatories and Request for Production of Documents (on Contentions EPJ-1, EPJ-2 and EPJ-4]" was filed October 29, 1984. Mr. Eddleman has served one set of interrogatories on 1/ CHANGE is designated " lead intervenor" on EPJ-2. Dr.
Wilson is a co-sponsor. See the Board's August 3, 1984
" Memorandum and Order (Final Set of Rulings on Admissibil-ity of Offsite Emergency Planning Contentions, Ruling on Petition for Waiver of Need For Power Rule, and Notice of Upcoming Telephone Conference Call)," LBP-84-29B, 20 N.R.C. 389, 422.
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the NRC Staff and FEMA on the subject of EPJ-2. See " Wells Eddleman's Interrogatories to NRC Staff and FEMA (Sixth Set)"
(August 31, 1984), at 1-5. " FEMA Response to Interrogatories 1
Dated August 31, 1984 Propounded by Wells Eddleman" was filed September 28, 1984. The NRC Staff / FEMA did not file any dis-covery requests on EPJ-2. The last date for filing discovery on the contention was October 8, 1984. Discovery on this con-tention is, therefore, complete.
Wilson Contention 12(b)(3) and EPJ Contention 2 are clas-sified as emergency planning contentions to be addressed in the hearings scheduled to commence June 18, 1985. Written direct testimony on the contentions is scheduled to be filed June 3, 1985. Further, the Board and the parties have established January 14, 1985 as the last day for filing summary disposition motions on these contentions. Thus, the instant motion is timely, and Wilson Contention 12(b)(3) and EPJ Contention 2 are ripe for summary disposition.
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II. GOVERNING LEGAL STANDARDS
-A. Summary Disposition
" Applicants' Memorandum of Law In Support of Motions 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 emergency planning regulations, at 10 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.
The regulations also require the preparation of "an analysis of the time required to evacuate * * *." 10 C.F.R. Part 50, App.
E, S IV.
As noted in footnote 1 to 10 C.F.R. S 50.47, 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 J.9 provides, in relevant part:
Each State and local organi-zation shall establish a ca-pability for implementing protective measures * * *.
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Criterion J.10.g further provides:
The organization's plans to implement protective mea-sures for the plume exposure pathway shall include:
- g. Means of relocation; In addition, Criterion J.10.1 provides that plans shall in-clude:
- 1. Time estimates for evacuation * *
- based on a dynamic analysis * *
- for the plume exposure pathway emergency planning zone (See Appendix 4).
Appendix 4 to NUREG-0654 sets forth the regulatory accep-tance criteria for evacuation time estimate studies ("ETEs").
Appendix 4 specifies that, in estimating demand:
The number of permanent residents shall be estimated using the U.S. Census data or other reliable data, ad-justed as necessary, for growth. * *
- This popula-tion shall then be trans-lated into two subgroups: 1) those using autos and [2)]
those without autos. The number of vehicles used by permanent residents is esti-mated using an appropriate auto occupancy factor. A range of two to three per-sons per vehicle would prob-ably be reasonable in most cases.
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NUREG-0654, at 4-2 to 4-3. Appendix 4 emphasizes that:
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- special attention must be given to those households not having automobiles. The public transport-dependent f population must, therefore, be considered as a special case. ,
NUREG-0654, at 4-3.
Finally, NUREG-0654, Appendix 4 directs:
An estimate of the time re-quired to evacuate that seg-ment of the non-car-owning population dependent upon public transport shall be made, in a similar manner to that used for the auto-owning population.
This estimate shall include consideration of any special services which might be ini-tiated to serve this popula-tion subgroup. Such ser-vices might include fixed-route departures from designated assembly points.
NUREG-0654, at 4-9.
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 Wilson 12(b)(3) and EPJ-2 should be granted. Contrary to Intervenors' assertions, state and local emergency planning authorities have made a sophisticated and realistic assessment of both the need for and the availability
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! of resources for the evacuatior. of persons without private transportation, and have developed a plan for the efficient use of available transportation resources to evacuate this segment ;
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I of the population within the EPZ.
Both the intervenor sponsors of EPJ-2 and Dr. Wilson were critical of the ETE estimates of the non-auto-owning population within the EPZ. The intervenor sponsors of EPJ-2 argued that
. the ETE est i mates "s i mply relate general population to auto ownership without any attempt to estimate * *
- household (s) where the principal or only automobile is away from the home for substantial periods (e.a.,-principal wage earner at work)."
See 9/17/84 Responses to Interrogatories, at Response EPJ-2-3.2/ However, since the. preparation of the ETE, a more precise estimate of people without transportation has been developed, derived from later, more complete U.S. Census 2/ Intervenors also argued that the estimates of the popula-tion without their own private transportation should ac-count for "[the) percentage of automobiles not in service at any particular time, * * * (and the] percentage of au-tomobiles likely immobilized by adverse weather * * *."
However, Intervenors have failed to identify'any legal au-thority requiring a quantified analysis of such contingencies, nor have they identified a data base from which such figures might be derived. (The Board can take official notice of the lack of Census figures on such mat-ters). See Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 N.R.C. 53, 102 (1984) (acknowledging inability to estimate number of such ad hoc cases requiring transportation assistance). In any event, State and local authorities have provided' excess transportation capacity to allow flexibility to accomodate such contingencies.- Pugh Affidavit, 11 7, 10, 13, 18-19.
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data.2/ This refined estimate includes both (a) persons who are members of households which do not own a vehicle, and (b) persons in households in which the vehicle is not at home, and separately analyzes three times of day -- the evening (non-working) and weekend hours (roughly 6 p.m. to 8 a.m. on weekdays); the hours of 8 a.m. to approximately 3 p.m. during weekdays, when the entire working and school populations are away from home; and the hours of 3 p.m. to 6 p.m. during week-days, when the working population is away from home, but the school population is at home. Twine Affidavit, 11 4-8. Thus, this refined estimate is responsive to Intervenors' concerns; indeed, it is even more detailed and sophisticated than that-which they sought to require.
Dr. Wilson countered the ETE estimate with his own esti-mate. See 10/25/84 Responses to Interrogatories, at Response 12(b)(3)-2, Table 1. However, Dr. Wilson's analysis is techni-cally flawed. As Mr. Twine, an experienced demographer, explains, a methodology such as that proposed by Dr. Wilson is normally used to provide a rance of estimates including a lower as well as an upper limit, whereas Dr. Wilson has discussed only the upper limit. Thus, Dr. Wilson's proposed methodology is conservative in the extreme. Twine Affidavit, 1 9.
J/ The refined figures.would have no discernible impact on the evacuation times represented in the ETE. See "Affida-vit of Robert D. Klimm on Eddleman 215(3)" (January 14, 1985), 1 5 n.2.
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Moreover, there is no legal authority supporting the use of such conservatism in emergency planning. Indeed, existing NRC case law recognizes that the underlying premise of emergency planning is a realistic assessment of the demand for resources, !
combined with the efficient use of the available resources.
See, e.a., Consumers Power Co. (Big Rock Point Plant),
LBP-83-44, 18 N.R.C. 201, 205-06 (1983) (unreasonable to re-quire diversion of public funds to purchase additional bus ca-pacity to prepare for an event which is highly unlikely ever to occur; instead make intensive use of available resources).
In any event, sufficient resources exist to accommodate the population needing transportation assistance (even when ,
calculated using Dr. Wilson's ultra-conservative methodology),
assuming that 80% of persons without access to their own pri-vate transportation would evacuate with friends and relatives.
Twine Affidavit, 1 9. This assumption is reasonable, based on actual past emergency evacuation experience. Mileti Affidavit, 1 6; Twine Affidavit, 1 6. Accord Duke Power Co. (Catawba Nu-clear Station, Units 1 and 2), LBP-84-37, 20 N.R.C. 933, 1001 (1984) (approving North Carolina Plan which " anticipates that most people without their own means of transportation will be able to secure transportation from neighbors or friends);
Kansas Gas & Electric Co. (Wolf Creek Generating Station, Unit 1), LBP-84-26, 20 N.R.C. 53, 103 (1984) (recognizing that
" evacuation for those without their own means of transportation s.
will'in most cases be provided by relatives, neighbors and friends").
Both the intervenor sponsors of EPJ-2 and Dr. Wilson also expressed concern about the designation of pick-up points for persons needing official transporation assistance in an emer-gency. The sponsors of EPJ-2 asserted:
[P]ickup points [should] be designated before operation of the plant. Pick-up points should be located close enough to the loca-tions of those that need them so that they may be evacuated in times compati-ble with those estimated in the ETE.
9/17/84 Responses to Interrogatories, at Responses EPJ-2-12 and EPJ-2-13. Dr. Wilson concurred:
The locations of so-called
' pick-up points' ***
should be specified in order to provide assurance that these people can be evacu-ated. *** There should be some demonstration that people will be able to get to the pick-up points from their homes.
10/25/84 Responses to Interrogatories, at Response 12(b)(3)-8.
As explained below, the actions advocated by Intervenors are being taken.
An inventory'of pickup points is being developed as part of the Standard Operating Procedures in each county. The pick-up points are being located so that no one within the EPZ will
,.e be more than one mile from a pickup point.1/ The pickup points actually selected for use in an evacuation would depend on the area to be evacuated, and would be included in the EBS an-nouncements broadcast at the time an evacuation is ordered. '
Pugh Affidavit, 11 3 n.1, 4, 6, 9, 12, 15 n.3, 19. See also Mileti Affidavit, 1 6 n.l.
Finally, Dr. Wilson advocated:
[T]he number of vehicles designated to go to each
[ pickup] point should be specified in order to pro-vide assurance that these people can be evacuated.
The capacity of each vehicle and the agency supplying each vehicle should be specified.
10/25/84 Responses to Interrogatories, Response 12(b)(3)-8.
Again, these actions are being taken.
Detailed plans for official transportation assistance for Harris EPZ residents needing such assistance are being developed by the Emergency Management Offices of the four counties. Pugh Affidavit, 1 4. EPZ residents who may need 4/ Intervenors declined to specify any numerical criteria for the selection of pickup points. See 9/17/84 Responses to Interrogatories, at Response EPJ-2-9(b). In any event, in three of the counties within the EPZ, those who identify themselves in advance of an emergency as in need of offi-cial transportation assistance would -- in an emergency --
be picked up at their homes. In these counties, pickup points are used only by those who need official transpor-tation assistance but failed to identify'themselves prior to the emergency (for whatever reason).' Pugh Affidavit, 11 6, 9, 12.
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official transportation assistance will be identified through ;
the use of the "special needs card" included with the emergency public information brochure, as well as through contacts with social service and public health and safety agencies. Pugh Af- i fidavit, 11 3, 5, 8, 11, 14, 19. The agency resources (person-nel and vehicles) available to provide official transportation assistance in an emergency have been identified, and evacuee capacities have been calculated. Pugh Affidavit, 11 6-7, 9-10, 12-13, 16-18. Further, the Standard Operating Procedures now being developed for the counties of Chatham, Lee and Harnett will allocate a portion of the available resources to pick up people on the list of persons needing official transportation assistance, and the remaining resources vill be allocated to stop at pickup points. Pugh Affidavit, 11 6, 9, 12. (In Wake County, all persons needing official transportation assistance would go to pickup points.) Pugh Affidavit, 1 15.
In summary, those members of the general public within the EPZ who may need official transportation assistance in the event of an evacuation are being identified in advance through "special needs cards" and through contacts with social service and public health and safety agencies. Detailed plans for of-ficial transportation assistance for persons needing such as-sistance are being developed by emergency planning officials in Chatham, Harnett, Lee and Wake Counties. . Pickup points are being designated and will be included in the EBS announcements f
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broadcast at the time of an evacuation. The responsible State and local-emergency planning officials have determined that, in an emergency, sufficient resources (vehicles and drivers) will be available to accommodate the estimated maximum number of EPZ residents who may need official transportation assistance, with sufficient excess capacity to accommodate individuals who nor-mally have cars (which are being repaired at the time of the emergency), and other such cases. Pugh Affidavit, 11 5, 7, 8, 10, 11, 13, 14, 18, 19. These measures provide reasonable as-surance that sufficient resources will be available to provide official transportation assistance for those in need in the event of an emergency at Harris.
Neither Dr. Wilson nor the intervenor sponsors of EPJ-2 can avoid summary disposition on the basis of guesses or suspi-cions, or on the hope that at the hearing Applicants' evidence may be discredited or that "something may turn up." See Gulf States Utilities Co. (River Bend Station, Units 1 and 2),
LBP-75-10, 1 N.R.C. 246, 248 (1975). Intervenors here simply cannot distinguish this case from the body of NRC case law ap-proving similar plans for the evacuation of persons needing of-ficial transportation assistance. See, e.o., Catawba, supra, 20 N.R.C. at 1001-03, 1005-06 (approving plan providing for use of brochure to request pre-emergency identification of persons needing assistance; compilation of list of persons needing as-sistance; use of EBS announcements to inform public of pickup 4
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points; and use of personal cars, buses, official county autos, ambulances, and other official vehicles to evacuate persons needing assistance).
I IV. CONCLUSION Because there is no genuine issue of material fact to be heard on the issue of the provision of evacuation transporta-tion for members of the public who need official transportation assistance (as raised in Wilson 12(b)(3) and EPJ-2), Appli-cants' Motion For Summary Disposition of Wilson 12(b)(3) and EPJ-2 should be granted.
Respectfully submitted, ,
Y M n Th6mah A. '~Bditer', elC. ('
Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C. 20036 (202) 822-1000 Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants
. Dated: January 14, 1985 7
UNITED S***ES OF AMERICA NUCLEAR RE',fATORY CCMMISSION , _ .
? f ii BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 65 ggy 77 p , $p In the Matter of ) -
) 00 2 it 4 CAROLINA POWER & LIGHT COMPANY and NORTH CAROLINA EASTERN
)
)
ckETf'*SERuta g3 Docket No. 50Yl00 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
CERTIFICATE OF SERVICE I hereby certify that copics of " Applicants' Motion For Summary Disposition of Wilson 12(b)(3) and EPJ-2," " Applicants' Statement of Material Facts As To Which There Is No Genuine Issue To Be Heard on Wilson 12(b)(3) and EPJ-2," " Affidavit of Jesse T. Pugh, III on Wilson 12(b)(3) and EPJ-2," " Affidavit of Kevin Twine on Wilson 12(b)(3) and EPJ-2," and " Affidavit of Dennis S. Mileti on Wilson 12(b)(3) and EPJ-2" were served this 14th day of January, 1985, by deposit in the U.S. mail, first class, postage prepaid, upon the parties listed on the attached Service List.
'Ah Y4kI DeIis'ha A. ' R'idgway' ()
Dated: January 14, 1985 7
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of . )
)
CAROLINA POWER & 7IGHT COMPANY )
and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )
)
(Shearon Harris Nuclear Power )
Plant) )
SERVICE LIST James L. Kelley, Esquire Atomic Safety and Licensing Board John D. Runkle, Esquire' U.S. Nuclear Regulatory Commission Conservation Council of Washington, D.C. 20555 30 n Road Mr. Glenn O. Bright Chapel Hill, North Carolina 27514 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission M. Travis PaYne, Es9uire Washington, D.C. 20555 Edelstein and Payne Post Office Box 12607 Dr. James H. Carpenter Raleigh, North Carolina 27605 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Dr. Richard D. Wilson Washington, D.C. 20555 729 Hunter Street Apex, North Carolina 27502 Charles A. Barth, Esquire Janice E. Moore, Esquire Mr. Wells Eddleman 718-A Iredell Street f ce o xe Legal Director Durham, North Carolina 27705 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard E. Jones, Esquire Vice President and Senior Counsel Docketing and Service Section Carolina Power & Light Company Office of the Secretary Post Office Box 1551 U.S. Nuclear Regulatory Commission Raleigh,' North Carolina 27602 Washington, D.C. 20555 Mr. Daniel F. Read, President CHANGE Post Office Box 2151 Raleigh, North Carolina 27602 l-
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Dr. Linda W. Little Governor's Waste Management Board 513 Albemarle Building 325 North Salisbury Street Raleigh, North Carolina 27611 j Bradley W. Jones, Esquire U.S. Nuclear Regulatory Commission Region II 101 Marietta Street Atlanta, Georgia 30303 Steven F. Crockett, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mr. Robert P. Gruber Executive Director Public Staff - NCUC Post Office Box 991 Raleigh, North Carolina 27602 Administrative Judge Harry Foreman Box 395 Mayo University of Minnesota Minneapolis, Minnesota 55455 Spence W. Perry, Esquire Associate General Counsel FEMA 500 C Street, S.W., Suite 480 Washington, D.C. 20740 Steven Rochlis, Esq.
Regional Counsel FEMA 1371 Peachtree Street, N.E.
Atlanta, Georgia 30309 1