ML20113E333

Response Supporting Applicant 841210 Motion for Summary Disposition of Conservation Council of North Carolina Contention 8.Matl Issue of Fact Exists Re Adequacy of Training for Radiation Protection Section Staff

ML20113E333
Person / Time
Site:	Harris
Issue date:	01/16/1985
From:	Rochlis S Federal Emergency Management Agency
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20113E307	List: ML20113E312 ML20113E321 ML20113E333 ML20113E358 ML20113E368 ML20113E375
References
OL, NUDOCS 8501230419
Download: ML20113E333 (8)

Text

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C J nuary 16, 1985 s

00CKETEC UNITED STATES OF AMERICA USMC NUCLEAR PTGULATORY CO*P1ISSION THP A"OMIC SAFETY AMD LICENSING BOARD

'25 SW 22 AM :47 In the Matter of CAROLINA )

PONER AND LIGHT COMPANY ) .

and NORTF CAROLINA EASTERM ) Docket No. 50-400-OL. i

• • UNICIPAL POWER AGFNCY ) l (Shearon Harris 'Tuclear Plant )

Plant Units 1 and 2) )

FEMA STAFF RESPONSE TO APPLICANTS' MOTION l FOR SUM"ARY DISPOSITION OF CC'IC CO'ITE'1 TION O I. INTRODUC" ION On Decenber 10, 1984, the Applicants moved for summary dis-position on Conservation Council of Morth Carolina (CCNC) Con-tention 9, (hereinafter Applicant's Motion) pursuant to 10 CFR l 8 2.749 of the Commission's regulations. FE"A staff supports l Applicants' Motion for summary disposition e:: cent as noted herein on the grounds that they have demonstrated an absence of a cenuine issue of material fact, and that they are entitled to a favorable judgement as a matter of law.

II. BACKGROUND CCNC Contention 8 was admitted by the Board as a natter in controversy in this proceeding during the 'tay 2, 1984 prehearing conference. CCNC 9 as admitted by the Board, contends:

10 C.F.R. 50.47 (b) (1) nandates that "each principal response organization has staff

to respond and to augment its initial l response on a continuous basis" (emohasis added) while (b) (15) requires that eneraency resoonse training is provided to those who 8501230419 850116 PDR ADOCK 05000400 PDR g

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r: y s

-t l may be called on to assist in an emergency." The Radiation Protection Section (RPS) of the NC Department of  ;

Human Resources, one of the principal I state agencies, does not have adequate staff and does not have adequately trained staff.

CCNC has not made any discovery requests on this contention.

III. ARGUMENT A. Standards for Summary Disposition i Summary disposition is appropriate pursuant to the Commission's regulations if, based on a motion, the attached state-nents of the parties in affidavits and other filings in the pro-1 ceeding, it is shown that there is no genuine issue of material i

fact and the moving party is entitled to judgnent as a natter of law. '10 C.F.R. A 2. 74 9 (d) . The-Commission's rules governing l sunnary disoonition are equivalent to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7AEC 210, 217 (1974);

Dairvland Power Cooperative (Lacrosse Boiling Water Reactor), LDP-82-58, 16 NRC 512,519 (1982). The purpose of summary disposition is to avoid hearings, unnecessary testimony and cross-examination in areas where there are not material issues to be tried. Mere allecations in the pleadings will not create an issue against a motion for summary disposition supported by affidavits. 10 C.F.R.

~ 8 2.74 9- (b) ; Fed. . R. Civ. P. 56 (e).

A party seeking sumnary disposition has the burden of demonstrating the absence of any genuine issue of material fact.

Cleveland Electric Illuminating Co. et al (Perry Muclear Power

. Plant,-Units 1 and 2), n.L43-4 4 3, 6 NRC 741, 751 (1077$1 l

l

In deternining whether a notion for summary disposition should be granted, the record must be vietaed in the light most favorable to the opponent of such a motion. Poller v. Colunbia Boardcastina cvsten, Inc., 368 U.S. 464, 473 (1962); Dairyland Power Coonerative (Lacrosse Boiling Mater Reactor), LBP-82-58, 16 NRC 512,519 (1932).

The Supreme Court has pointed out that Rule 56 of the Federal 4 .

Rules of Civil Procedure does not nermit plaintiffs to cet to a trial on the bacis of the allecations in the com71aint enupled Mit'1 tha hope that something can be developed at trial in the wa" of evidence to suoport the allegations. First National Bank of Arizona v. Cities Service Co., 391 U.c. 253, 289-90 (1958),

rehearing denied 393 U.S. 901 (1968). To defeat sunmary disposition an opposing party must present material substantial facts to show that an issue exists. Conclusions alone will not suffice. Gulf States Utilities Co. (River Bend Station, Units 1 and 2) 1 MRC 246, 240 (1975).

The federal courts have clearly held that a party opposing a motion for summary judgment is not entitled to hold back evidence, if any, until.the time of trial. Lipschutz_v. Gordon Jewelry Corp.

367, ~. Supp. 1086, 1995 (S.D. Te::ac 1973); the opponent must come forth with evidentiary facts to demonstrate that there is an outstanding unresolved material issue to be tried. Stansifer v.

Chrysler Motors Corp. 487 F. 2d 59, 63 (9th Cir 1973); Franks v.

Thompson 59 FRD 142, 145 (M.D. ALA. 1973). Nor can summary dis-position be defeated by the possibility that CCNC might think of something new to say at the hearing. O'Brien v. Mcdonald's Corp.,

59 FRD 370,374 (N.D. Ill. 1979). It is incumbent on CCNC to come forward at this time with material of evidentiary value to con-travene the Applicants and FEMA staff's affidavita and to show

the existence of a material fact to be resolved ct an evidentiary hearing.

Both the Appeal Board and the Commission have encouraged the use of the Commission's summary disposition procedure. State-ment of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452,457 (1981). See Northern States Power Co. (Praire Island Nuclear Generating Plant, Units 1 and 2), CLI-73-12 6 AEC 241 (1973),

aff'd sub nom BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C.

Cir. 1974); Houston-Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542,550-51 (1980);

Mississippi Power and Light Co. (Grand Gulf Nuclear Stations, Units 1 and 2), ALAB-130, 6 AEC 423, 424,25 (1973); Duquesne Light Co.

(Beaver Valley Power Station, Unit 1), ALAB-109, 6 AEC 243,245 (1973). The Commission has stated that:

. . . Boards should encourage the parties to invoke the summary disposition procedures on the issues of material fact so that evidentiary hearing time is not unnecessarily devoted to such issues.

CLI-81-8, supra, 13 NRC 452,457. The Commission's summary dis-position procedures " provide. . .an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demonstrably insubstantial issues." Allens Creek, supra, 11 NRC at 550.

Applicants have met these standards with regard to their motion for summary disposition concerning CCNC Contention 8 e:: cept as noted herein.

I B. There is no Genuine Issue of Material Fact (except as noted herein) to be Heard with Respect to CCNC Contention 8 Section 50.47 of NRC's Emergency Planning Rule (10 C.F.9.

. Parts 50 (Appendix E) and 70 as amended and NUREG 0654/FEPiA-REP-1 Rev. 1, November 1980, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" are used by FEMA pursuant to 44 C.F.R.

E 350(a) "in reviewing, evaluating, and approving State and local radioloaical emergency plans and preparedness."

CC'IC 8 contends that the Radiation Protection Section (RPS) of the North Carolina Department of Human Resources does not have adequate staff and does not have adeauately trained staff as mandated by 10 C.F.R. 8 50.47 (b) (1) and (b) (15) .

NUREG 0654/FEPtA-REP-1 II. A. provides that:

" Primary responsibilities for emergency response by_

the nuclear facility licensee and by State and local ~ organizations within the Emergency Planning Zones have been assigned,the emergency responsibilities of the various supoorting organizations have been specifically established, and each princinal response organization has staff to respond and to augment its initial response on a continuous basis (at n. 31).

(See also 10 C.F.R. E 50.47 (b) (1 ) and 44 C.F.R. 5 350.5 (a) (1) ) .

NUREG 0654/FEPtA-REP 01 II.O. " Radiological Energency Response Training" Planning standard provides:

" Radiological emergency response training is orovided to those who may be called on to assist in an emergency (at p. 75). (See also 10 C.F.R. 8 50.47 (h ) (15) and 4a C.F.R. 5 350. 5 (b) (15)) . .

The North Carolina Emergency Response Plan (ERP) in suoport of the Shearon Harris Nuclear Power Plant establishes that the Radiation Protection Section (RPS) of the North Carolina Denartment of Human Resources has responsibility for monitoring radiation releases, recommending protective measures for the oublic and

.and energency workers, establishina radioloaical safety criteria for recovery, and resconsibility as the lead agency for radio-logical damage assessment for land, crops, livestock, and other

-oersonal.oronerty. (EDP at Part I, III, D. 1). The affidavit of Thomas I. Fawkins indicates that during the last full oarticioation .

exercise at Plant Catawba in February, 1994, FEMA evaluators found "no MURPG 0654 deficiencies involvina the Radiation Protection Section." Mr. Hawkins relates that in the two full particination exercises prior to Catawba (Brunswick in May 1993, "cGuire in Decenber 1982), FEMA evaluators "found no significant deficiencies involving RPS and their accident assessment activities." Hawkins affidavit at 2. FEMA evaluators did find minor training deficiencies involving RPS staff in the 1982 (McGuire) and 1983 (Brunswick) exercises. Id at 2.

. A review of the affidavit of Dayne H. Brown in Support of Applicants' Fotion for Summary Disposition (Brown Affidavit) indicates that in the event of an accident at the Harris Plant aoproximately 25 oecole are needed to .perforn RPS functions. The current o.PS staff contains 17 professionals (Brown affidavit, caragraoh 6).

Two vacant positions are scheduled to be filled prior.to commercial operation of the nuclear oower plant. The PPS will augment its staff with in-houm clerical personnel (3); personnel from the North Carolina Division of Emergency Management (four additional nrofessionals and one secretary); Team of Radiological Fmergency Volunteers (TORFV) and by neans of Southern Mutual Radiological Assistance Plan (Brown Affidavit caragraphs 4,6,8-9).

Based upon a review of the cast performance of the RPS at

-crevious exercises and the information orovided in the Brown

o Affidavit, includina the experience factors discussed and auamentation capabilities, the allegation of the Intervenors that the RPS does not have adequate staff to respond to a radiolocical emergencv at Plant Harris is an unsupnorted allegation.

The RPS satisfies NUREG 0654/FE*tA-REP-1,Section II.A. recuirenents that it have staff to respond and to auament its initial response on a continuous basis.

The Brown Affidavit lists the trainina PPS members have received and expect to receive, Attachment E, Brown Affidavit.

Within the cast 5 years RPS has participated in a total of six emergency resoonse exercises at three nuclear cover plant sites, (Arown Affidavit, Paragraph 11). No NURFG 0654 deficiencies were noted with regard to RPS at the Catawba exercises, however minor training deficiencies were noted in 1982 and 14R3. (See Itawkins Af fidavit) . Mhile the RDS staff has gained additional experience and training since the 1982 and 19R3 exercises and has further training planned prior to commercial operation of the Harris Plant (Id at paraqraph 12), due to the minor training deficiencies noted in 1982 and 1983, feria staf f cannot suoport the assertion of the Applicants' that no material issue of fact remains concerning that portion of CCMC Contention 9 dealing with the adequacy of training for the RPS staff.

IV. CONCLUSION FEMA staff agrees with the arounents made in the Acolicants' Motion and suoporting papers that no issue of material fact remains with regard to that portion of Contention CCMC 0 concernina the adequacy of the RPS staff to resnond and augment its response on u

g a continuous basis, however FF,"A staff cannot support the Applicants assertion that a material issue of fact does not exist with regard to the adequacy of training for the RPS staff.

Respectfully submitted, Steven M. Rochlis Regional Counsel Federal Emergency Management Agency Region IV

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