ML20137U890

Motion for Summary Disposition of Joint Intervenors Contention EP-7 (Emergency Planning in State of Sc).No Genuine Issue of Matl Fact Exists & Util Entitled to Favorable Decision

ML20137U890
Person / Time
Site:	Vogtle
Issue date:	02/10/1986
From:	Joiner J GEORGIA POWER CO., TROUTMANSANDERS (FORMERLY TROUTMAN, SANDERS, LOCKERMA
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20137U894	List: ML20137U890 ML20137U902 ML20137U922
References
CON-#186-084, CON-#186-84 OL, NUDOCS 8602190366
Download: ML20137U890 (8)

Text

^gg kg February 10, 1986 000KETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 FEB 14 #0:46 BEFORE THE ATOMIC SAFETY AND LICENSING BOqlCE Of Si c . 3.c -

MCMEi m A Mt<vif.l.

BRANCH In the Matter of )

)

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

) 50-425 (Vogtle Electric Generating )

Plant, Units 1 and 2) )

APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF JOINT INTERVENORS' CONTENTION EP-7 (EMERGENCY PLANNING IN SOUTH CAROLINA)

Pursuant to 10 C.F.R. S 2.749, the Applicants hereby move the Atomic Safety and Licensing Board (" Board") for summary disposition in Applicants' favor of Joint Inter-I venors' Contention EP-7. As grounds for this motion, ,

Applicants state that no genuine issue of material fact exists to be heard with respect to Contention EP-7 and that Applicants are entitled to a decision in their favor on that contention as a matter of law.

In support of this motion for summary disposition of Contention EP-7, Applicant rely upon:

(1) Applicants' Statement of Material Facts as to Which No Genuine Issue Exists to Be Heard Regard-ing Contention EP-7; (2) Affidavit of Jean M. DiLuzio on Contention EP-7; and B602190366 860210 '

i PDR ADOCM 05000424 O PDR l)Sc3

4 .

(3) All the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties.

I. Background As set forth in Joint Intervenors' Revised Contention Relating to Emergency Response, filed on June 24, 1985, Contention EP-7 alleged:

Applicants claim that the Depar' ment of Energy (Savannah River Plant Operations Office, Aiken, South Carolina) will provide radiological assistance (advice and emer-gency action essential for the control of immediate hazards to health and safety) in the event of an emergency at Vogtle. It fails to add.ress the possibility that an emergency situ'ation_(for example, an earth-quake) which threatens the safe operation of Vogtle might also endanger operations at Savannah River Plant. In this event, not i' only would Department of Energy Offices be prevented from providing aid to Vogtle, other federal, state and local assistance resources would be divided between the two

( sites. Applicants do not ' address the impacts of simultaneous evacuation from both plants, or overload of medical facilities and emergency vehicles in the event of ,

injury to persons by the operation of both  !

i plants. Nor do Applicants adequately dis-cuss coordination of activities of Georgia and South Carolina's agencies.

l Id. at 5.

In its Memorandum and Order of August 12, 1985 (Order i

of August 12, 1985), the Board admitted Contention EP-7.

The primary concern expressed by the Board was that the l

planning materials submitted by the Applicants lacked information about emergency planning for that part of the Vogtle emergency planning zones within South Carolina.

Based upon its analysis of the information before it, the

T i-i Board concluded that the emergency planning materials pro- .

vided by the Applicants were incomplete and that Conten-j~ tion EP-7'was admissible. (Order of August 12, 1985 at

i. 33-34.)

L

In response to a Motion for Reconsideration and Clari-j fication filed by the Applicants, the Board issued a Memo-

)

j randum and Order on October 1, 1985 (Order of October 1, i

1985) that providedca further explanation of its prior i ruling admitting Contention EP-7. The Board again empha-

' sized the lack of planning materials for that portion of

the VEGP plume EPZ lying within South Carolina and con-cluded that "the litigable issue extant in Ep-7 is Appli-

)

j cants' alleged failure to provide an emergency response plan for the VEGP which encompasses that part of the plume

EPZ within South Carolina." (Order of October 1, 1985 at j

l' 8.) Having.found that more information concerning emer-gency planning in South Carolina was needed, the Board

, ruled that once the Applicants provided such addition,al i

i information, the Intervenors would have thirty days to submit proposed contentions. Id.

II. Legal Standards for Summary Disposition The admission of a contention for adjudication in a licensing proceeding under the standards enunciated in 10 C.F.R. S 2.714 does not constitute an evaluation of the merits of that contention. Instead, such a ruling I - reflects merely the determination that the contention ,

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satisfies the criteria of specificity, asserted basis, and relevance. The admission of a contention also'does not dictate that a hearing be held on the issues raised. Sec-tion 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 proceeding to a hearing.

That section provides that "[a]ny party to a proceed-ing 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:

i The presiding officer shall render the deci-sion sought if the filings in the proceed-ings, depositions, answers to interrogato-l ries, and admissions on file, together with i the statements of the parties and the affi-davits, if any, show that there is no genu-

! ine issue of fact and that the moving party is entitled to a decision ~as a matter of law.

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

The standards governing summary disposition motions in an NRC licensing proceeding are quite similar to the stan-l dards applied by federal district courts to summary judg-i i ment motions under Rule 56 of the Federal Rules of Civil Procedure. Alabama Power Company (Joseph M. Farley Nuc-lear Plant, Units 1 and 2), ALAD-182, 7 A.E.C. 210, 217 l (1974); Tennessee Valley Authority (Hartsville Nuclear

Plant, Units lA, 2A, 1B and 28), ALAB-554, 10 N.R.C. 15, 20 n.17 (1979). Where, as here, a motion for summary dis-position is properly supported pursuant to the NRC'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 dispositio.1 on the basis of guesses or suspicions, or on the hope that at the hearing the mov-ant's evidence may be discredited or that "something may turn up." Gulf States Utilities Company (River Bend Sta-tion, 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 remains. 10 C.F.R.

$ 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 evi-dentiary material or an affidavit explaining why it is impractical to do so. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),'LDP-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 en-couraged the use of the summary disposition process where the proponent of a contention cannot establish that a genuine issue exists so that evidentiary heating 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 Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-90, 11 N.R.C. 542, 550 (1980) ("[T]he Sec-tion 2.749 summary disposition procedures provide in real-ity as well as in theory, an efficacious means of avoiding unnecessary and possibly time-consuming hearings on demon-strably insubstantial issues.")

In the case of contested offsite emergency planning issues, a special reason warrants giving the summary dis-position process the diligent effort required to scruti-nize the parties' pleadings and eliminate all matters as to which there is no genuine issue to be heard. The ex-penditure 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 proceeding, but also the nu'merous non-party State and local agency personnel (and perhaps representatives of private response organizations) whose participation would be required.

III. Argument As made clear by the Board in its Order of October 1, 1985, the sole focus of Contention EP-7 is upon the avail-ability of emergency response plans for that part of the VEGP plume EPZ within South Carolina. In South Carolina, the plume EPZ encompasses parts of Aiken County, Allendale County, and Barnwell County with most of that area falling within the boundaries of the U.S. Department of Energy's Savannah River Plant facility. Affidavit of Jean M.

6-

DiLuzio on Contention EP-7 at 43. On February 5, 1986, the Applicants provided to the Board and the other parties copies of site specific emergency response plans developed for emergencies arising at VEGP by the State of South Carolina, Aiken County, Allendale County, Barnwell County, and the U.S. Department of Energy's Savannah River Opera-tions Office. Id. at 44. These plans establish the framework within which the different governmental authori-ties having jurisdiction over the areas in South Carolina within the'VEGP plume EPZ would respond to an emergency at VEGP. Id.

Because the " litigable issue extant in EP-7 is Appli-cants' alleged failure to provide an emergency response plan for the VEGP which encompasses that part of the plume EPZ in South Carolina" (Order of October 1, 1985 at 8),

the Applicants' submission of these emergency plans to the Board and the other parties on February 5, 1986 resolves that contention. Under the Board's Order of October 1, 1985, any challenge by the Intervenors to the substance of these emetgency plans must be made within 30 days there-after (March 7, 1986) in the form of specific proposed contentions with statements of bases. Id. Thus, the availability of emergency response plans for those por-tions of the VEGP plume EPZ in South Carolina satisfies the only issue raised by Contention EP-7, as defined by the Board, and warrants the granting of summary disposi-tion in favor of the Applicants on Contention EP-7.

IV. Conclusion Because no genuine issue of material fact remains to be heard concerning the availability of emergency response plans for that part of the VEGP plume EpZ within South Carolina, the Applicants respectfully request the Board to grant their motion for summary disposition of Contention EP-7.

Respectfully submitted,

,WO =

James E. Joiner, P.C.

' charles W.L4hitney Kevin C. Greene Hugh'M. Davenport TROUTMAN,t SANDERS, LOCKERMAN

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

Bruce W. 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 Counsel for Applicants Dated: February 10, 1986.