ML20113E368

Response Supporting Applicant 841212 Motion for Summary Disposition of Eddleman Contention 57-C-13

ML20113E368
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 8501230435
Download: ML20113E368 (8)

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• Janunry 16, 1985

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el' ITNITED STATES OF AMERICA DOLMETED

'ITICLEAR REGT!LATORY COM".ISSION WC THE A"OMIC SAPETY AND LICF';SI'IG ROARD

'65 JM 22 A11 :47 In the Matter of CAROLINA )

POWER A'TD LIGHT COMPANY ) -- - -

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and NOR*H CAROLINA EASTERN ) Docket No. 50-409-OL- -

MT"IICIPAL POWER AGENCY )

(Shearon' Farris Nuclear Power )

Plant T? nits 1 and 2) )

FEMA STAFF RESPONSE TO A.PPLICANTS' MOTION FOR Si!""ARY DISPOSITION OF EDDLE"AN CONTPImION 57-C .13 I. INTRODUCTION On_ December 12, 1984, the Applicants noved for sumnary dis-nosition on Mr. Ed41enan's Contention 57-C-13, (hereinafter Applicant's Motion) purusant to 10 CFR R 2.749 of-the co=nission's regulations. FEMA staff supports Applicant's Motion for surnary disoosition on the grounds that thev have demonstrated an absence of a genuine issue of material _ fact, and that they are entitled to a favorable judgment as a matter of law.

II.- BACKGROUND Contention 57-C-13 was admitted by the Board-as a matter in controversy in this proceeding by the Board's Memorandum and Order-(Further Rulings on Admissibility of Offsite Emergency Dlanning Contentions Submitted by-Intervenor Eddlenan) on tTune 14, 1984 Eddlenan 57-C-13 contends as admitted by the Board and as aareed to by the parties:-

The Plan, in discussing nrotective-actions, re-peatedly refers to the "best_ Protection Factor' ,

(PF) for sheltering. Yet it nowhere sets uo .

criteria for identifying such protection factors 8501230435 850116 PDR ADOCK 05000400

C_ PDR -

or the highest PF in hospitals and nursing homes.

The highest PF areas need to be determined in advance (before the emergency preparedness exercise) to comply with 19 C.F.R. 50.47 (a) (1) 's requirement for assurance of approoriate orotection action.

If seeking the highest PF is appropriate action (as the plan states, Pt 2 pp. 29-30, Pt 1 po. 26,

- Pt 4, on. 29-29, Pt 5 p. 31) then that action nust be assured.

Discovery on this contention was conducted by Mr. Eddlenan (see Interrogatories to MRC staff and FEMA (Fourth Set dated June 29, 1994 and Fifth Set dated August 9, 1984). The deadline for filina discovery was August 9, 1984. FEMA staff resoonse to the Fourth and Fifth Set of Interrogatories was filed on Aucust 34, 1984 and Reptember 7, 1984 respectively.

III. ARGUMENT A. Standards for Summary Disposition Sumnarv disposition is appropriate pursuant to the Commission's regulations if, based on a motion, the attached statements of the parties in affidavits and other filings in the proceeding, it is shown that there is no genuine issue of material fact and the noving party is entitled to judgment as a matter of law. 10 C.F.R. E 2.749 (d) . The Commission's' rules governing. summary disposition are equivalent to Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Comoany . (Joseoh

'M. Farley Muclear Plant, Units 1 and 2), ALAB-182, 7AEC 210, 217-u

.(1974);.Dairyland Power Cooperative (Lacrosse Boiling Water Reactor) , LBP-8 2-58, 16 NRC 512,519 (1982). The purpose of summary disposition is.to avoid hearings, unnecessary testimonv and cross-examination in areas where there are not naterial issues-to be tried. Mere allegations in the pleadings will not. create

.an issue against a motion for summary disposition supported ~by affidavits. 10 C.F.R. 8 2.749-(b); Fed. R. Civ. P. 56 (e).

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

Cleveland Electric Illuminatina Co. et al (Perry Muclear Power Plant, Units 1 and 2), ALAB-443, 6 MRC 741, 753 (1977). In determining whether a motion for sunnary disposition should be granted, the record must be viewed in the light most favorable to the opponent of such a motion. Poller v. Columbia Broadcastina System, Inc. 368 U.S. 464, 473 (1962); Dairyland Power Coonerative

-(Lacrosse Boiling Water Reactor), LBP-82-59, 16 NRC 512,519 (1982).

The Suprene Court has pointed out that Rule 56 of the Federal Rules of Civil Procedure does-not permit plaintiffs to get to a trial on the basis of the allegations in the complaint coupled with the hooe that-sonething can be developed at trial in the way of evidence to support the allegations. First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289-90 (1968),

rehearing denied 393 U.S. 901 (1968). To defeat summary disoosition an ooposing carty 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 NRC 246,248 (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' Jewelrv Corp., 367 F. Supp. 1086, 1095 (S.D. Texas 1973)- the opponent must come forth with evidentiary facts to demonstrate that there is an outstanding unresolved material issue to be tried.

_a_

Stansifer v. Chrysler Motors Coro. 487 F. 2d 59, 63 (9th Cir.

1973); Franks v. Thompson 59 FRD 142, 145 (M.D. ALA. 1973).

' Tor can summary disposition be defeated by the possibility that Mr. Eddleman might think of something new to say at the hearing.

O'Brien v. Mcdonald Coro., 59 FRD 370,374 ('.D. N Ill. 1979). It is incumbent on Mr. Eddleman to come forward at this time with material of evidentiary value to contravene the Aoplicants and FEMA staff's affidavits and to show the existence of a material fact to be resolved at an evidentiary hearing.

Both the Aopeal 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 AFC 241 (1973), aff'd sub nom BPI v. Atomic Energy Commission, 502 F.2d 424 (D.C. Cir. 1974); Houston Liahtina and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542,550-1 (1980); Mississippi Power and Light Co. (Grand Gulf - Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423, 424-25 (1973); Duquesne Licht' Co. (Beaver Valley Power Station, Unit,1),.ALAB-109,-6 An 243, 245 '(1973). The Connission has stated that:

. . . Boards should encourage the parties to invoke the sunmary disposition orocedures on the issues of~

material fact so that evidentiary hearing time is not unnecessarily devoted'to such issues.

CLI-91-9,-supra, 13 NRC 452,457. The Commission's' summary dis-position procedures " provide. . .an efficacious means of avoiding unnecessary and possibly time-consuming hearinas on demonstrably

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insubstantial issues." -Allens Creek, suora, 11 NRC-at.550.

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Applicants have met these standards with regard to their motion for summary disposition concerning Eddleman Contention 57-C-13.

B. There is No Genuine Issue of Material Fact to be heard with respect to Eddleman Contention 57-C-13.

Section 50.47 of NRC's Emergency Planning Rule (10 C.F.R. Parts 50 (Aopendix E) and 70 as amended and MUREG 0654/ FEMA-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 PEMA nursuant to 44 C.F.R. E 350 (a) in reviewing, evaluating, and approving State and local radiological emergency plans and creparedness."

10 C.F.R. B 50.47 (a) (1) provides:

Except as provided in Paragraoh (d) of this section, no operating license for a nuclear power reactor will be issued unless a finding is made by 'IRC that there is a reasonable assurance that adequate protective measures can and will be taken in the event of a ~

radiological emergency.

NUREG 065d/FrMA-REP-1, Rev. 1 provides at II.J.10:

The organization's plans to implement orotective measures for the plume exposure pathway shall include:

d. Means for protecting those persons whose nobility may be impaired due to such factors-.

as institutional or other confinement; The Morth Carolina Emergency Response Plan (ERP) in Support of the Shearon Farris Nuclear Power Plant provides at Parts 2, 3, 4, 5 IV E.5:

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The immobility of hospital and nursina home patients may preclude evacuation of these facilities. If so the followina' protective actions may be advised:

C. Stav indoors and relocate to the best orotection factor (PF) in the building, if necessary.

• he ERP further provides at Parts 2, 3, 4, 5 IV. F.7:

"ransoortation for Evacuation

b. Special Facility Population (2) Mosnital and Family Care Facilities -

Institutionalized persons within the 19 nile EPZ will be evacuated utilizing emergency nedical vehicles for non unbulatorv patients and available busses and vans for ambulatory patients.

There is no regulatory recuirenent that the best protection factor within a structure be pre-determined for hospitals and nursing hones in advance of emeraency preparedness exercises.

• he'7 orth Carolina ERP is in compliance with MUREG 065a/ FEMA-n9P-1 standards for protecting the mobility impaired by providing for sheltering inside the hosoital or nursing home facility, if necessary, or evacuation of the anbulatory and non-anbulatory patients.

The Applicant arranged for a survey to be conducted of each-hosoital and nursing home within the FPZ to determine the best protection factor vnthineach facility. Jesse T. Pugh, III, Director, of the Division of Fnergency ?tanagement of the North 1 Carolina Departnent-of Crime Control and Public Safety accepte? the results o* the-survey (Affidavit of Jesse *. Vuch, JII, Paragranh 11).

.The survey established the criteria used in selecting a best

< protection factor,- (Pugh Affidavit, Paragraph 3) and identifies a best PP. area for.each facility where possible (Id, at paragranh 9). She Divisionfof Frergency "anagement will retain the information on file and will advise the owner or administrator of-each facility by

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-letter of.the survey;results.-

(Id at paragraph 11). -

FEMA staff maintains that the best PFs within a structure are not required to be determined (See Affidavit of Thomas I.

Hawkins in Support of Applicants' Motion). Notwithstanding the above assertion, FEMA staff concurs with the Applicants that "the factual issues raised by Eddleman Contention 57-C-13 have been resolved" by the survey and by advising the operators of the affected facilities of the results of the survey.

IV. CONCLUSION Based on the foregoing discussion, the Anplicants' Motion

-for Summary Disposition should be granted.

Respectfully submitted,

,h d * -

Steven M. Rochlis-Regional Counsel d Federal Emergency Management Agency mm.