ML20138A462
| ML20138A462 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/06/1986 |
| From: | Ridgway D GEORGIA POWER CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20138A465 | List: |
| References | |
| CON-#186-370 OL, NUDOCS 8603140261 | |
| Download: ML20138A462 (14) | |
Text
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March 6 O
UNITED STATES OF AMERICA Dggt:0 NUCLEAR REGULATORY COMMISSION r !"
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 3
g.3 P
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In the Matter of
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GEORGIA POWER COMPANY, et al.
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Docket Nos. 50-424 g
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50-425 (Vogtle Electric Generating Plant, )
Units 1 and 2)
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APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVENORS' CONTENTION EP-4 (IDENTIFICATION OF EXISTING HOSPITALS FOR l
TREATMENT OF CONTAMINATED INJURED INDIVIDUALS)
Pursuant to 10 C.F.R.
$ 2.749, Applicants hereby move the Atomic Safety and Licensing Board (" Board") for summary dispo-1 sition in Applicants' favor of Joint Intervenors' Contention EP-4.
Applicants base this motion on the grounds that no genu-ine issue exists to be heard as to any material fact with respect to Contention EP-4 and that Applicants are entitled to a decision in their favor as a matter of law on this conten-l tion.
In support of this motion for summary disposition of Con-tention EP-4, Applicants rely upon:
l l
(1)
" Applicants' Statement of Material Facts as to Which No Genuine Issue Exists to Be Heard Regarding Contention EP-4";
1 (2)
" Affidavit of Jean M. DiLuzio on Contention EP-4,"
l dated March 6, 1986 ("DiLuzio Affidavit");
B603140261 9 PDR ADOCK 0 py4 t
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(3)
" Affidavit of Richard L. Bryant on Contention EP-4,"
dated March 6, 1586 ("Bryant Affidavit");
(4)
" Affidavit of Billy J. Clack on Contention EP-4,"
dated March 6, 1986 (" Clack Affidavit");
9 (5)
" Affidavit of Bobby R. Maunay on Contention EP-4,"
dated March 6, 1986 ("Mauney Affidavit");
(6)
" Affidavit of Harold W. Awbrey on Contention EP-4,"
dated March 6, 1986 ("Awbrey Affidavit");
i (7)
" Affidavit of Herman E. Wald on Contention EP-4,"
dated March 6, 1986 ("Wald Affidavit");
(8)
" Affidavit of Anthony Wynn on Contention EP-4," dated l
March 6, 1986 ("Wynn Affidavit");
l (9)
" Affidavit of Kevin P. Twine on Contention EP-4,"
dated March 6, 1986 (" Twine Affidavit"); and (10) all filings in this proceeding, depositions, and an-swers to interrogatories, together with the statements of the parties.
I.
Background
As initially proposed by Joint Intervenors, Contention EP-4 asserted that there were insufficient facilities (alleged-ly four Burke County ambulances, and the Burke County Hospital)
"to service a large number of injured in the event of a fairly l
serious radiological accident or of an accident external to the plant which results in injury to the plant, such as an l L----
earthquake or a nuclear attack, where non-plant related injur-ies will also be rampant."
See " Joint Intervenors' Revised Contention Relating To Emergency Response" (June 24, 1985),
at 4.
In its August 12, 1985 " Memorandum and Order (Ruling On Joint Intervenors' Proposed Contentions On Emergency Planning)"
(" August 12 Order"), the Board rejected Joint Intervenors' pos-tulated scenarios (i.e., earthquake end nuclear attack), on the grounds that, inter alia, Commission regulations and case law do not require the consideration of such events in nuclear l
emergency planning.
See August 12 Order, at 26-27.
The Board
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further noted that -- contrary to Joint Intervenors' represen-l l
tations -- the emergency plans provided for four sources of am-bulance services, and for the availability of three hospitals (not one of each, as the proposed contention suggested).
See August 12 Order, at 26.
However, the Board found that the propcsed contention was admissible in part, to the limited extent consistent with the Commission's ruling in Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), CLI-83-10, 17 N.R.C. 528 (1983), the partial reversal of the San Onofre decision in GUARD v. NRC, 753 F.2d 1144 (D.C. Cir. 1985), and the Commission's Statement of Policy on Emergency Planning Standard 10 CFR 50.47(b)(12), 50 Fed. Reg. 20892 (May 21, 1985).
August 12 Order, at 22-23. --
fe To the extent the proposed contention goes beyond the matter of whether the plans identify the medical facilities capable of treating the injured and contaminated it is f
nonlitigable and rejected.
August 12 Order, at 24.
t Specifically, the Board observed that "the plan fails to identify treatment facilities for those contaminated injured l
individuals who would come from within the plume EPZ located in l
l South Carolina."
August 12 Order, at 24.
The Board further held The plan's naming of the hospitals that are I
available in Georgia to treat injured and l
contaminated individuals is sufficiently i
confusing so that the matter is litigable.
The differing information as to the hospitals in the plans makes for a confus-ing situation as to identifying the hospi-tals that are to be available to treat in-jured and contaminated individuals.
August 12 Order, at 25-26.
Accordingly, the Board admitted the following as Contention EP-4:
l The offsite emergency response plans for Plant Vogtle do not meet the requirements l
of 10 CFR 50.47(b)(12) as to arrangements made for medical services for contaminated j
injured individuals whose condition results from a radiological emergency at VEGP, be-cause the plans do not adequately identify medical service facilities capable of treating contaminated injured individuals.
See August 12 Order, at 27.
Since the admission of Joint Intervenors' Contention EP-4, the parties have undertaken discovery related to that conten-tion.
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 17-18, 41-42; "NRC Staff's Emergency Planning Interroga-tories To Joint Intervenors Campaign For A Prosperous Georgia (CPG) and Georgians l
Against Nuclear Energy (GANE)" (October 7, 1985), at 9; "Intervenors' First Set of Interrogatories and Requests To Produce Relating To Emer-gency Planning" (October 15, 1985), at 5; l
"Intervenors' Response to Applicants' First l
Set of Interrogatories and Requests To Pro-duce Concerning Emergency Response Conten-tions" (October 28, 1985) ("Intervenors' 10/28/85 Responses"), at 6; i
" Applicants' Response To Intervenors' First Set of Interrogatories and Requests For Production of Documents on Emergency Plan-ning Contentions" (November 13, 1985), at 35-37;
" Applicants' Second Set of Interrogatories and Roquests For Production of Documents on Emergency Planning Contentions" (November 15, 1985), at 9-10; "Intervenors' Response to Applicants' Sec-ond Set of Discovery Relating to Emergency Response" (January 5, 1986) ("Intervenors 1/5/86 Responses"), at 2; and "Intervenors' Response To NRC Staff's In-terrogatories Relating To Emergency Plan-ning" (January 24, 1986), at 3.
On January 6, 1986, Applicants deposed Mr. Seymour Shaye, whom Joint Intervenors had indicated would testify on the subject of emergency planning.
Intervenors' 10/28/85 Responses, at i
Response G-5(a).
' i
i II.
Legal Standards for Summary Disposition l
The admission of a contention for adjudication in a 11-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-j 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 proceecing summary disposition of an admitted contention without proceeo-i f
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.
$ 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 cf law.
10 C.F.R. $ 2.749(d).
l 1
l 1 l
F.
The standards governing summary disposition motions in an NRC licensing proceeding are quite similar to the standards applied 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); Tunnessee Valley Authority (Hartsville Nuclear Plant, Units 1A, 2A, 1B and 2B), ALAB-554, l
10 N.R.C. 15, 20 n.17 (1979).
Where, as here, a motion for l
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. l 2.749(b).
Where the movant has made a proper showing for summary disposi-tion and has supported his motion by affidavit, the opposing l
party must proffer countering evidentiary material or an affi-j davit explaining why it is impractical to do so.
Public l
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 I
of a contention cannot establish that a genuine issue exists, so that evidentiary hearing time is not unnecessarily devoted l
to such issuen.
Statement of Policy on Conduct of Licensing -- -
I.
Proceedings, CLI-81-8, 13 N.R.C. 452, 457 (1981); see also Houston Lighting *and Power Co. (/.llens 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 demonctrably I
insubstantial issues.")
l In the case of contested offsite emergency planning l
issues, there is special reason to give the summary disposition process ths 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 i
truly baseless allegations would be contrary to not only the interests of the public at large and the parties to the pro-l ceeding, but also the numerous ncn-party State and local agency personnel (.nnd perhaps representatives of private response or-l ganizations) whose participation would be required.
l III.
Argument Applying the Commission's summary disposition standards to the facts of this case, it is clear that the instant motion for i
summary disposition of Contention EP-4 should be granted.
As discussed below, all emergency plans for the Vogtle plume expo-sure pathway Emergency Planning Zone ("EPZ") adequately identi-l fy medical facilities capable of treating contaminated injured
' persons.
i
.g.
l i
Applicants' onsite emergency plan for Plant Vogtle is i
properly addressed to the identification of medical facilities I
for the treatment of contaminated injured individuals from the i
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Plant Vogtle site.
The "Vogtle Electric Generating Plant Unit l-
'l and Unit 2 Emergency Plan" ("Vogtle Plan") identifies Humana t
l Hospital (in Augusta, Georgia) as the primary hospital to be used by Applicants for treatment of contaminated injured indi-viduals from the Plant Vogtle site, with Burke County Hospital 1
(in Waynesboro, Georgia) as a back-up facility.
DiLuzio Affi-davit at 1 3.
In contrast, the emergency plans of the State of Georgia l
and Burke County must identify medical facilities for the l
treatment of contaminated injured members of the general public i
i in Georgia.
" Annex D, Plant Vogtle, to The Georgia Ra-I l
diological Emergency Plan"
(" Georgia Plan") identifies Burke l
County Hospital as the primary medical facility for any members l
of the general public in Georgia who might be contaminated and injured, with Humana Hospital as a back-up facility.1/
In ad-dition, the Georgia Plan provides that any victim of a ra-diological accident at Vogtle who requires care that cannot be provided at either Burke County Hospital or Humana Hospital can I
1 1/
Thus, there is no inconsistency between the onsite and offsite plans vis-a-vis the designation of primary facilities; the plans simply address different populations, with planning coordinated to designate one facility as primary for onsite victims, and another facility as primary for offsite victims.
i l l i
be treated at Oak Ridge Hospital of the Methodist Church (in Oak Ridge, Tennessee).
Clack Affidavit at 11 3-5.
To elimi-l nate any potential confusion, the Georgia Plan is being revised to delete reference to Burke County Hospital and Humana Hospi-l tal as facilities for the care of individuals who are injured but not contaminated.
Clack Affidavit at 11 3-4.
The " Burke County Emergency Management Agency Radiological l
l Emergency Plan for Nuclear Incidents / Accidents Involving Vogtle Electric Generating Plant" (" Burke County Plan") is being amended to be completely consistent with the Georgia Plan.
Thus, as revised, the Burke County Plan -- like the Georgia Plan -- will identify Burke County Hospital as the primary med-l ical facility for the treatment of any members of the general l
l public in Georgia who might be contaminated and injured, with Humana Hospital listed as a back-up facility.
In addition, i
like the Georgia Plan, the revised Burke County Plan will pro-vide that any victim of a Vogtle emergency who requires care l
l that cannot be provided at either Burke County Hospital or Hu-mana Hospital can be treated at Oak Ridge Hospital of the Meth-l l
odist Church.
Bryant Affidavit at 11 3-5.
These clarifica-l tions of the Georgia Plan and the Burke County Plan, discussed l
l above, eliminate the potential for confusion noted in the i
l Board's August 12 Order.
See August 12 Order, at 25-26.
i l
The Board's August 12 Order also expressed concern about the identification of medical facilities for the treatment of i
< t 1
any contaminated injured individuals in the South Carolina por-tion of the Vogtle EPZ.
See August 12 Order, at 24.
The "Vogtle Electric Generating Plant Response Guide, SR 402.1"
("SRP Response Guide") identifies the Savannah River Plant
("5RP") Medical Building and the Dwight D. Eisenhower Army Med-ical Center (at Fort Gordon, South Carolina) as the medical fa-l cilities in the vicinity of Plant Vogtle for the treatment of any SRP transients or employees who might be contaminated and l
injured as a result of an accident at Plant Vogtle.2/
Twine l
Affidavit at 1 3.
Further, the "Vogtle Electric Generating Plant Site Specific Radiological Emergency Response Plan, Part f
7, SCORERP" (" South Carolina Plan") and the Vogtle-specific emergency plans for Aiken, Allendale, and Barnwell Counties 3/
j all consistently identify Aiken Community Hospital (in Aiken, South Carolina) and Humana Hospital (in Augusta, Georgia) as the medical facilities for the troatment of any other members of the general public in South Carolina who might be l
l 2/
The SRP Response Guide also provides that additional ra-diological medical support can be obtained through the Radia-tion Emergency Action Center and Training Site (" REACTS") in Oak Ridge, Tennessee.
Twine Affidavit at 1 4.
l 3/
" Annex Q, Part 2, Fixed Nuclear Facility (FNF) Ra-diological Emergency Response Plan (RERP) To The Aiken County Emergency Operations Plan (EOP)"; " Annex Q, Part 2, Fixed Nuclear Facility (FNF) Radiological Emergency Response Plan (RERP) To The Allendale County Emergency Operations Plan (EOP)"; and " Annex Q, Psrt 2, Fixed Nuclear Facility (FNF) Ra-l diological Emergency Response Plan (RERP) To The Barnwell Coun-ty Emergency operations Plan (EOP)."
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contaminated and injured as a result of an accident at Plant Vogtle.
WynnAfhidavitat13;MaunayAffidavit-t 1 3; Awbrey i
Affidavit at 1 3; Wald Affidavit at 1 3.
Thus, medical facili-ties have been identified for the treatment of any contaminated l
injured individuals in the South Carolina portion of the Vogtle EPZ.
In summary, all Vogtle-specific emergency response plans
-- both onsite and offsite -- identify medical facilities for the treatment of contaminated injured individuals.
DiLuzio Af-l fidavit at 1 5; Clack Affidavit at 1 6; Bryant Affidavit at l
1 6; Wynn Affidavit at 1 4; Mauney Affidavit at 1 4; Awbrey Af-fidavit at 1 4; Wald Affidavit at 1 4; Twine Affidavit at 1 5.
Joint Intervenors have failed to identify any medical facili-ties in the Vogtle vicinity which have the capability to treat contaminated injured individuals but which are not included in l
the plans.
See Intervenors' 10/28/85 Responses at Response l
Joint Intervenors have asserted that some of the identi-fled facilities " lack the capability to treat contaminated l
l individuals," which apparently means that they believe those facilities could not " treat the number of contaminated victims of a severe accident at Plant Vogtle."
See Intervenors' 10/28/85 Responses at Responses EP-4-2, EP-4-3, EP-4-4; Inter-venors' 1/5/86 Responses at Responses EP-4-8, EP-4-9 (emphasis supplied).
But, as the Board here has noted, the Commission l -
n-has expressly precluded litigation of the capacity of the medi-cal facilities for the treatment of the contaminated injured.
See August 12 Order at 21-22, 26-27.
Moreover, to the extent that Joint Intervenors contend that the identified medical facilities lack the technical capa-bility to treat contaminated injured individuals, any such al-legations are flatly disproven by the affidavits acccmpanying this motion.
Due to the extensive nuclear operations at the SRP site, the SRP Medical Building has a special Decontamina-tion and Treatment Unit dedicated to the treatment of contami-nated injured persons; and REACTS is a U.S. Departmant of I
Energy-operated facility which is a national center for the ob-l servation, assessment and treatment of radiation patients, including the contaminated injured.
Twine Affidavit at 4.
l Similarly, Burke County Hospital, Humana Hospital, Oak Ridge Hospital, Aiken Community Hospital and Eisenhower Army Medical Center are all accredited by the Joint Commission for Accred-I itation of Hospitals, which requires approved procedures for treatment of contaminated injured individuals.
DiLuzio Affida-vit at 5 4; Clack Affidavit at 1 S.
Joint Intervenors cannot avoid summary disposition of EP-4 on the basis of mere speculation that the identified medical facilities lack the capability to trent contaminated injured individuals.
Nor can Intervenors avoid summary disposition on the basis of guesses or suspicions, or on the hope that at the -
I o
hearing Applicants' evidence may be discredited or that "some-thing may turn up."
See Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 N.R.C. 246, 248 (1975).
Joint Intervenors' personal skepticisms will not suffice to in-voke a hearing under the Commission's Rules of Practice.
IV.
Conclusion Because there is no genuine issue of material fact to be heard on the issue of the identification of hospitals for the treatment of contaminated injured individuals, Applicants respectfully request that the Board grant their motion for sum-mary disposition of Contention EP-4.
Respectfully submitted,
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hEM Br'uce W. Church 11F, P9C.
Delissa A. Ridgway David R. Lewis SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.
Washington, D.C.
20036 (202) 022-1000 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 Dated:
March 6, 1986 l l
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