ML20136E131

Motion for Summary Disposition of Joint Intervenors Contention EP-6 Re Availability of Emergency Public Info/ Educ Matls.No Genuine Issue of Matl Fact Exists & Applicant Entitled to Favorable Decision

ML20136E131
Person / Time
Site:	Vogtle
Issue date:	11/18/1985
From:	Ridgway D GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20136E137	List: ML20136E131 ML20136E164 ML20136E178
References
CON-#485-233 OL, NUDOCS 8511210429
Download: ML20136E131 (8)

Text

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. iI h DOCKETED USSRC November 18, 1985 ,._..

UNITED STATES OF AMERICA '85 NOV 20 A10:27 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSINGSBbERb

. In the Matter of )

)

GEORGIA POWER COMPANY, et al. ) Docket Nos. 50-424

) 50-425 (Vogtle Electric Generating Plant, ) 7 f}

Units 1 and 2) )

APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF JOINT INTERVENORS' CONTENTION EP-6 (AVAILABILITY OF EMERGENCY PUBLIC INFORMATION/ EDUCATION MATERIALS)

Pursuant to 10 C.F.R. 5 2.749, Applicants hereby move the 1

-Atomic Safety and. Licensing Board (" Board") for summary dispo-sition in Applicants' favor of Joint Intervenors' Contention i

EP-6. Applicants base this motion on the grounds that no genu-ine issue exists to be heard as to any material fact with re-spect to Contention EP-6 and that Applicants are entitled to a decision in their favor as a' matter of law on this contention.

In support of this motion for summary disposition of Con-tention EP-6, Applicants rely upon:

(1) " Applicants' Statement of Material Facts as to Which No Genuine Issue Exists to Be Heard Regarding Contention EP-6";

(2) " Affidavit of Jean M. DiLuzio On Contention EP-6,"

i dated November 18, 1985 (-[iLuzio Affidavit");-and (3) all filings in this proceeding.

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I. Background As initially proposed by Joint Intervenors, Contention EP-6 alleged:

Applicants have not shown, pursuant to 10 CFR Part 50 Appendix E, IV D.2 and 50.47(b)(7) that adequate and credible edu-cation and notification procedures will be followed during normal plant operation and in the event of an accident at Vogtle.

These requirements include " basic emergency planning information," " general information as to the nature and effects of radiation,"

" signs or other measures . . . helpful if an accident occurs." 10 CFR Appendix E, IV, D.2.

See " Joint Intervenors' Revised Contention Relating To Emergen-cy Response" (June 24, 1985), at 4-5. In its August 12, 1985 '

" Memorandum-and Order (Ruling On Joint Intervenors' Proposed Contentions On Emergency Planning)" (" August 12 Order"), which admitted Contention EP-6, the Board noted:

To provide the public with essential information, called for by the regulatory requirements, Applicants' plans provide for the distribution of a printed brochure to all EPZ residents and for placing an adver-tisement in the telephone directory con-taining basic emergency information. Also signs are to be placed on the banks of the Savannah River to advise hunters and fish-ermen of appropriate actions in an emergen-cy.

August 12 Order, at 31. The Board went on to observe:

Applicants have not made known the contents of the printed brochure, the ad-vertisement and the warning notices.

Whether the information to be contained therein will meet the regulatory require-ments cannot be determined at this time.

Absent knowing what information is to be provided to the public, there is no way to reach a conclusion as to its adequacy.and credibility. It is on the foregoing basis alone that we find the proposed contention admissible.

August 12 Order, at 32 (emphasis supplied).

The Board's October 1, 1985 " Memorandum and Order (Ruling on Applicants' Motion of September 5, 1985 for Reconsideration and Clarification)" (" October 1 Order") further emphasized the limited nature of the subject matter of Contention EP-6, as ad-mitted by the Board. The Board stressed that EP-6 was not to be construed as a challenge to "the substantive content of Ap-plicants' various means for providing public education and in-formation." October 1 Order, at 3. Rather, as the Board explained:

The Board's admission of Contention EP-6 was to the extent that it inherently al-leges that the plan is defective in that Applicants have not made known the informa-tion that is to be given to the public as provided for in 10 CFR 50.47(b)(7) and Part 50 App. E, IV.D.2, to be contained in the described brochure, advertisment and warn-ing notices Applicants are to furnish. In summary, Applicants are charged with failing to put forth a complete emergency response plan in the area of education and information, and it is this that was found litigable.

October 1 Order, at 2-3. Thus, the gravamen of Contention EP-6, as admitted by the Bocrd, is the lack of the emergency public information brochure, the telephone directory advertise-ment, and the warning notices to be posted for transients.

As to the substantive content of the materials, the Board held that "should Joint Intervenors wish to challenge the ade-quacy of the content of the public education and information materials, then Joint Intervenors are to file specific proposed contentions with statements of bases within a reasonable time after the contents of each of the three specified types of pub-lic educational and informational materials are made known to the parties." The Board further ruled that any such conten-tions would be due within 30 days of the availability of the .

materials. October 1 Order, at 3-4. No such proposed conten-tions -- which would have been due November 5, 1985 -- have been filed by Joint Intervenors.

II. Legal Standards for Summary Disposition The admission of a contention for adjudication in a li-censing proceeding under the standards enunciated in 10 C.F.R. 5 2.714 does not constitute an evaluation of the merits of that contention. Instead, such a ruling reflects merely the deter-mination that the contention satisfies the criteria of specif-icity, asserted basis, and relevance. The admission of a con-tention also does not dictate that a hearing be held on the issues raised. Section 2.749(a) of the NRC's Rules of Practice authorizes a licensing board to grant a party to the proceeding summary disposition of an admitted contention without proceed-ing to a hearing.

That section provides that "[a]ny party to a proceeding may move, with or without supporting affidavits,' for a decision ,

by the presiding officer in that party's favor as to all or part of the matters in the proceeding." 10 C.F.R. S 2.749(a).

Delineating the standard to be applied by a licensing board in ruling upon such a motion, that section further states:

The presiding officer shall render the de-cision sought if the filings in the pro ~'

ceedings, depositions, answers to inteirog-atories, and admissions on file, together with the statements of the parties 'and the affidavits, if any, show that there is no genuine issue of fact and that the moving -

party is entitled to a decision as a matter of law. -

10 C.F.R. 5 2.749(d).

The standards governing summary disposition motions in an NRC licensing proceeding are quite similar to the standards ap-plied by federal district courts to summary judgment motions under Rule 56 of the Federal Rules of Civil Procedure. Alabana Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2),

ALAB-182, 7 A.E.C. 210, 217 (1974); Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B and 2B), ALAB-554, 10 N.R.C. 15, 20 n.17 (1979). Where, as here, a motion for summary disposition 'is properly supported pursuant to the Com-mission's Rules of Practice, a party opposing the motion may not rest upon the mere allegations or denials of its answers.

A party cannot avoid summary disposition on the basis of guesses or suspicions, or on the hope that at the hearing the

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movant's evidence may be discredited or that "something may turn up." Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 N.R.C. 246, 248 (1975). Rather, an opposing party must set forth specific facts showing that a genuine issue of fact exists. 10 C.F.R. S 2.749(b). Where the movant has made a proper showing for summary disposition and has supported his motion by affidavit, the opposing party must proffer countering evidentiary material or an affidavit explaining why it is impractical to do so. Public Service Co.

of New Hampshire (Seabrook Station, Units 1 and 2), LBP-83-32A, 17 N.R.C. 1170, 1174 n.4 (1983), citing Adickes v. Kress & Co.,

398 U.S. 144, 160-61 (1970).

The Commission and its adjudicatory boards have encouraged the use of the summary disposition process where the proponent of a contention cannot establish that a genuine issue exists, so that evidentiary hearing time is not unnecessarily devoted to such issues. Statement of Policy on Conduct of Licensing

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Proceedings, CLI-81.-8, 13 N.R.C. 4."2, 457 (1981); see also Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590, 11 N.R.C. 542, 550 (1980) ("[T]he Section 2.749 summary disposition procedures provide in reality as well as in theory, an efficacious means of avoiding unneces-sary and possibly time-consuming hearings on demonstrably insubstantial issues.")

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III. Argument

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Applying the Commission's summary disposition standards to )

the facts of this case, it is clear that the instant motion for l summary disposition of Contention EP-6 should be granted. As discussed in Section I above, the gravamen of that contention

-- as admitted by the Board -- was the lack of the emergency public information brochure, the telephone directory advertise-ment, and the warning notices to be posted for transients.

However, as explained in the " Affidavit of Jean M. DiLuzio on Contention EP-6," filed herewith, copies of those emergency public information/ education materials, developed in accordance with the applicable regulations and regulatory guidance, were provided to the Board and the parties on October 4, 1985.

DiLuzio Affidavit, 11 3-4. The availability of those materials resolves the issue raised by Contention EP-6.

While the Board held that the substantive content of the emergency public information/ education materials was not at issue in Contention EP-6, it specifically afforded Joint Inter-venors the opportunity to propose new contentions on the sub-ject. Pursuant to the Board's October 1 Ordor, any proposed contentions challenging the content of the Ls+erials were due to be filed no later than November 5, 1985. Joint Intervenors have advanced no such contentions.

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IV. Conclusion Because there is no genuine issue of material fact to be heard on the issue of the availability of the emergency public information/ education brochure, the telephone directory adver-tisement, and the transient warning notices, the Applicants re-spectfully request that the Board grant their motion for summa-ry disposition of Contention EP-6.

, Respectfully submitted, h1 GL M G6ofge F. Trowbridge, P.C.

Bruce W. Churchill, P.C.

Delissa A. Ridgway David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 l

, (202) 822-1000 James E. Joiner, P.C.

Charles W. Whitney Kevin C. Greene Hugh M. Davenport TROUTMAN, SANDERS, LOCKERMAN

& ASHMORE 1400 Candler Building l Atlanta, Georgia 30043 l (404) 658-8000 l

l Counsel for Applicants l

Dated: November 18, 1985

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