ML20137P044
| ML20137P044 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 01/31/1986 |
| From: | Churchill B GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20137P050 | List: |
| References | |
| CON-#186-923 OL, NUDOCS 8602040324 | |
| Download: ML20137P044 (12) | |
Text
m(Q23 gle\\'@1986 ti Januar nM Y.1 UNITED STATES OF AMERICA fpf LugD NUCLEAR REGULATORY COMMISSION TQ BEFORE THE ATOMIC SAFETY AND LICENSING BOl
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In the Matter of
)
)
GEORGIA POWER COMPANY, et al.
)
Docket Nos. 50-424 4
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50-425 (Vogtle Electric Generating Plant, )
Units 1 and 2)
)
APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVENORS' CONTENTION EP-1/EP-1(a)/EP-2(b)
(24-HOUR STAFFING OF BURKE COUNTY ENN LINK)
Pursuant to 10 C.F.R. 5 2.749, Applicants hereby move the Atomic Safety and Licensing Board (" Board") for summary dispo-sition in Applicants' favor of Joint Intervenors' Contention EP-1/EP-1(a)/EP-2(b).
Applicants base this motion on the grounds that no genuine issue exists to be heard as to any ma-terial fact with respect to Contention EP-1/EP-1(a)/EP-2(b) 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-1/EP-1(a)/EP-2(b), Applicants rely upon:
(1)
" Applicants' Statement of Material Facts As to Which No Genuine Issue Exists to Be Heard Regarding Contention EP-1/EP-1(a)/EP-2(b)";
(2)
" Affidavit of Richard L. Bryant on Contention EP-1/EP-1(a)/EP-2(b)," dated January 31, 1986 ("Bryant Affidavit"); and 0602040324 B60131 PDR ADOCK 05000424 3so3 o
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j (3) all filings in this proceeding, depositions, and an-s swers to interrogatories, together with the statements of the parties.
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I.
Background
l l
As initially proposed by Joint Intervenors, Contention j
l EP-1 alleged generally:
j Applicants fail to show that each principal response organization has the staff to re-I spond and to augment its initial response on a continuous basis, as required by i
The thrust of Joint Intervenors' concern was specified in 4
subpart (a) of EP-1, which asserted:
Applicants rely upon the Burke County Emer-gency Management Agency to coordinate emer-gency planning and operation activities.
j Applicants fail to note, however, that Burke County has no full-time emergency i
manager or office.
i j
Contention EP-2(b) further alleged:
i
[T]he Acting Director of Emergency Manage-ment of Richmond County, Pam Smith, states that she occasionally has difficulty con-tacting emergency personnel in Burke County due to the lack of a full-time emergency planner.
l See " Joint Intervenors' Revised Contention Relating To Emergen-cy Response" (June 24, 1985), at 2-3.
I In its August 12, 1985 " Memorandum and Order (Ruling On 1
Joint Intervenors' Proposed Contentions On Emergency Planning)"
(" August 12 Order"), the Board noted:
r j 4 l
l
i We consider the allegation [of EP-2(b)]
regarding communications difficulties be-tween the emergency planning Directors of Richmond and Burke counties to be more of a basis for the Contention EP-1 and Subcontention EP-1(a) than a contention in itself, and we treat it as such.
August 12 Order, at 7.
Focusing on NUREG-0654, Criterion F.1.a, which requires (in relevant part) "24-hour per day man-ning of communications links that initiate emergency response actions," the Board observed that Applicants had indicated that the telephone number of the Burke County Sheriff's Department had been designated as an alternate to that of the Burke County Emergency Operations Center ("EOC") for initial emergency noti-fication.
August 12 Order, at 8.
The Board expressed concern as to:
- precisely what the responsibility of the Sheriff Department is in the event that the Director of emergency planning or the EOC itself cannot be contacted via the Emergency Notification Net (ENN) and how that responsibility is to be discharged.
August 12 Order, at 9 (emphasis supplied).
The Board therefore admitted EP-1/EP-1(a)/EP-2(b) to the extent that " Applicants must demonstrate either that the EOC is staffed continuously or, in the alternative, that the procedure to be followed by the Sheriff Department can initiate an emergency response in a timely and efficient fashion."
August 12 Order, at 10.
- Thus, the gravamen of EP-1/EP-1(a)/EP-2(b), as admitted, is the 24-hour staffing of the Burke County ENN link. l
6 Since the admission of Joint Intervenors' Contention EP-1/EP-1(a)/EP-2(b), the parties have undertaken discovery re-lated to that contention.
The written discovery pursued by the parties has consisted of:
" Applicants' First Set of Interrogatories and Requests For Production of Documents on Emergency Planning Contentions" (September 20, 1985), at 5-8,37, 38; "NRC Staff's Emergency Planning Interroga-tories To Joint Intervenors Campaign For A Prosperous Georgia (CPG) and Georgians Against Nuclear Energy (CANE)" (October 7, 1985), at 4-6; "Intervenors' First Set of Interrogatories and Requests To Produce Relating To Emer-gency Planning" (October 15, 1985), at 4; "Intervenors' Response to Applicants' First Set of Interrogatories and Requests To Pro-duce Concerning Emergency Response Conten-tions" (October 28, 1985), at 1-2;
" Applicants' Response To Intervenors' First Set of Interrogatories and Requests For Production of Documents on Emergency Plan-ning Contentions" (November 13, 1985), at 19-24;
" Applicants' Second Set of Interrogatories and Requests For Production of Documents on l
Emergency Planning Contentions" (November 15, 1985), at 5-7; "Intervenors' Response to Applicants' Sec-ond Set of Discovery Relating to Emergency Response" (January 5, 1986), at 1; and "Intervenors' Response To NRC Staff's In-terrogatories Relating To Emergency Plan-ning" (January 24, 1986), at 1-2.
On January 6, 1986, Applicants deposed Mr. Seymour Shaye, whom.
Joint Intervenors had indicated would testify on the subject of emergency planning.
"Intervenors' Response To Applicants' First Set of Interrogatories and Requests to Produce Concerning Emergency Response Contentions" (October 28, 1985), at Response to Interrogatory G-5(a).
II.
Legal Standards for Sunmary Discosition The admission of a contention for adjudication in a li-censing proceeding under the standards enunciated in 10 C.F.R.
$ 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 raay 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. $ 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-ceeding, depositions, answers to interroga-tories, 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. $ 2.749(d).
The standards governing summary disposition motions in an NRC licensing proceeding are quite similar to the stundards ap-plied by federal district courts to summary judgment motions under Rule 56 of the Federal Rules of Civil Procedure.
Alabama 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.
Rather, an opposing party must set forth specific facts showing that a genuine issue of fact exists.
10 C.F.R.
$ 2.749(b).
Where the movant has made a proper showing for summary disposi-tion and has supported his motion by affidavit, the opposing party must proffer countering evidentiary material or an affi-davit 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.
Xress & Co., 398 U.S.
144, 160-61 (1970).
.?
?
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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 Proceedings, CLI-81-8, 13 N.R.C.
452, 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.")
In the case of contested offsite emergency planning issues, there is special reason to give the summary disposition process the diligent effort required to scrutinize the parties' pleadings and eliminate all matters as to which there is no genuine issue to be heard.
The expenditure of hearing time on truly baseless allegations would be contrary to not only the interests of the public at large and the parties to the pro-ceeding, but also the numerous non-party State and local agency personnel (and perhaps representatives of private response or-ganizations) whose participation would be required.
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 Contention EP-1/EP-1(a)/EP-2(b) should be granted.
Joint Intervenors' assertions that difficulty can be expected in notifying Burke County of an emergency at Vogtle simply have no basis in fact.
Indeed, as explained below, each of the four redundant means which might be used to notify Burke County of a Vogtle emergency is staffed 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day, 365 days per year, in full compliance with NUREG-0654 Criterion F.1.a, which provides for (in relevant part) "24-hour per day manning of communications links that initiate emergency re-sponse actions."
The primary means for notification to Burke County of a Vogtle emergency is the Emergency Notification Network ("ENN"),
a dedicated telephone network linking offsite emergency re-sponse officials with Plant Vogtle.
As first back-up to the ENN, Burke County could be notified via commercial phone lines using a specific emergency number at the Burke County Emergency Operations Center ("EOC").
The second back-up means of notifi-cation would be the Burke County Emergency Management Agency
("EMA") radio network.
Bryant Affidavit at 14.
A receiver for each of these three means of notification -- the ENN, the EOC emergency number, and the Burke County EMA radio network --
will be located on the central dispatcher's console in the new Burke County EOC.
Burke County will staff the central dis-patcher's position on a 24-hour-per-day basis.
Thus, each of the three above-identified communications systems will be staffed on a 24-hour-per-day basis, and the use of any of them would place Plant Vogtle in direct contact with the Burke Coun-ty EOC.
Bryant Affidavit at 15.
The fourth (third back-up) means of emergency notification to Burke County from Plant Vogtle is via commercial phone lines to a specific emergency number for the Burke County Sheriff's Department.
That phone is located on the Sheriff's Dis-patcher's console, which is also staffed on a 24-hour-per-day basis.
Pursuant to procedure,l/ the Sheriff's Dispatcher would then advise the central dispatcher (in the EOC) of the notifi-cation from Plant Vogtle, sending a member of the Sheriff's staff to hand deliver the message if necessary.
Bryant Affida-vit at 16.
Thus, the Sheriff's Office has no role in the initiation of Burke County response to an emergency at Vogtle.
Instead, the role of the Sheriff's Office is limited to re-laying notification to the County EOC -- and even that role (as third back-up) is a very remote one.
Regardless of which of the four means is used to notify Burke County of an emergency, the procedure for initiation of Burke County emergency response is the same -- and it does not involve the Sheriff.
Upon notification of an emergency at Plant Vogtle (via any of the identified means), the central 1/
This level of detail is properly included in procedures rather than emergency plans.
As NUREG-0654 notes (at page 29),
"the plans should be kept as concise as possible."
.g.
I dispatcher's procedure directs the central dispatcher to con-tact one of the following persons in succession:
EMA Direc-tor,2/ first Deputy EMA Director, second Deputy EMA Director, EMA Operations Officer, and EMA Training Officer.
The EMA Di-rector, or any of the listed designated alternates, has tne au-thority to initiate Burke County's emergency response.
This line of succession was specifically developed to assure the 24-hour-per-day availability of an official with the authority to respond to an emergency at Plant Vogtle.
Bryant Affidavit at 17.
In summary, there is assurance that Burke County adequate-ly provides for "24-hour per day manning of communications links that initiate emergency response actions."
In response to the Board's concerns, Applicants have demonstrated conclu-sively "that the EOC [specifically, the central dispatcher's console, including the ENN] is staffed continuously."
See August 12 Order, at 10.
Moreover, when Applicants directed Joint Intervenors' at-tention to a full description of the Burke County central dis-patching system, Joint Intervenors were unable to identify ei-ther any system changes or other actions asserted to be necessary to provide for 24 hour2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> per day manning of Burke 2/
Contrary to Joint Intervenors' assertions in EP-1(a), Mr.
Bryant has served since 1984 as the first full-time Director of the Burke County Emergency Management Agency.
Bryant Affidavit at 11; Bryant Affidavit at Exhibit A. i
E b
County emergency notification links.
See "Intervenors' Re-sponse To Applicants' Second Set of Discovery Relating To Emer-gency Response" (January 5, 1986), at Responses to Interrogato-ries EP-1(a)-16 through EP-1(a)-21.
Joint Intervenors cannot avoid summary disposition of EP-1/EP-1(a)/EP-2(b) on the basis l
of mere speculation that the concerns expressed in the conten-tion will not be resolved by the 24-hour staffing of the cen-tral dispatching system (as well as the Sheriff's Dispatcher's i
position).
Nor can Joint Intervenors avoid summary disposition on the basis of guesses or suspicions, 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-lo, 1 N.R.C.
246, 248 (1975).
Joint Intervenors' personal skepticisms alone are sim-l l
ply insufficient to invoke a hearing under the Commission's Rules of Practice.
I.
f i
h i
l IV.
Conclusion Because there is no genuine issue of material fact to be heard on the issue of the 24-hour staffing of the Burke County EOC (specifically, the central dispatcher's console, including the ENN), Applicants respectfully request that the Board grant their motion for summary disposition of Contention EP-1/EP-1(a)/EP-2(b).
l Respectfully submitted, t
S&
1 P
J-Bt'uce -N.
Churchill, P.C.
Delissa A.
Ridgway David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 822-1000 James E. Joiner, P.C.
Charles W. Whitney Kevin C. Greene Hugh M. Davenport TROUTMAN, SANDERS, LOCKERMAN
& ASHMORE 1400 Candler Building Atlanta, Georgia 30043 (404) 658-8000 Counsel for Applicants y
Dated:
Jar.'fary 31, 1986 l i