ML20205T441

Motion Supporting Util 860520 Motions for Summary Disposition of Offsite Emergency Planning Contentions

ML20205T441
Person / Time
Site:	Seabrook
Issue date:	06/11/1986
From:	Sherwin Turk NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20205T438	List: ML20205T436 ML20205T441 ML20205T453 ML20205T458 ML20205T463
References
OL, NUDOCS 8606130212
Download: ML20205T441 (8)

Text

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UNITED STATES OF AMERICA i bg'iA .

NUCLEAR REGULATORY COMMISSION 'd I

REFORE TIIE ATOMIC SAFETY AND LICENSING BOARD 4.}

In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 OL NEW II AMPSHIRE, et _al. _

) 50-444 OL (Seabrook Station, Units 1 and 2) )

NRC STAFF'S ANSWER TO MOTIONS FOR

SUMMARY

DISPOSITION OF OFF-SITE EMERGENCY PLANNING CONTENTIONS On May 20, 1986, ten motions were filed by the Applicants, seeking summary disposition of various offsite emergency planning contentions; O 1/ These are:

(1) " Applicants' Motion for Summary Disposition of Kensington Contention No. 6 and South Hampton Contentions Nos. I and 3";

(2) " Applicants' Motion for Summary Disposition of NECNP Contention No. RERP-3 and SAPL Contention No.14";

(3) " Applicants' Motion for Summary Disposition of Rye Contention i No. 2";

(4) " Applicants' Motion for Summary Disposition of NECNP Contention No. RERP-2";

(5) " Applicants' Motion for Summary Disposition of Kensington Contention No. 7 and NECNP Contention No. RERP-12";

(6) " Applicants' Motion for Partial Summary Disposition of South Hampton Contention No. 8, NECNP Contention NIILP-4 and SAPL Contentions 18 and 25";

(FOOTNOTE CONTINUED ON NEXT PAGE) l 8606130212 860611 PDR ADOCK 05000443 Q PDR

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on the same date , two additional motions for summary disposition were 2/ In particular, these motions filed by the State of New Ilampshire.

seek summry disposition, in whole or in part, of 22 emergency planning ~~ T contentions admitted for litigation by the Licensing Board's Orders of April 1 and 29,1986.

The NRC Staff hereby files its response to the Applicants and State's motions. For the reasons more fully set forth below and in the attached affidavits, 3_/ the Staff submits that there are no genuine issues as to any fact material to eight (8) of +.he subject contentions and, as to those contentions, summary disposition is appropriate as a matter of law.

As to all other contentions, however, the Staff submits that the motions for summary disposition should be deferred at this time or, in the alternative, should be denied.

(FOOTNOTE CONTINUED FPOM PREVIOUS PAGE)

(7) " Applicants' Motion for Summary Disposition of SAPL Contention No. 5 and NECNP Contention RERP-10";

(8) " Applicants' Motion for Summary Disposition of SAPL Contention No. 7";

(9) " Applicants' Motion for Summary Disposition of NECNP Contention No. NIILP-3 and SAPL Contention No.17"; and (10) " Applicants' Motion for Summary Disposition of Kensington i Contentions Nos. 2 and 10".

-2/ These are: (1) "The State of New Hampshire's Motion for Summary Disposition of Contention Kensington 4"; and (2) "The State of New Hampshire's Motion for Summary Disposition of the llampton Falls Contention No.1".

-3/ The Staff has attached hereto the following documents upon which this Answer relies: " Affidavit of Edward A. Thomas on Kensington (FOOTNOTE CONTINUED ON NEXT PAGE)

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DISCUSSION A. Legah Principles Underlying Summary Disposition ' -~ 7 Pursuant to 10 C.F.R. I 2.749 of the Commission's Rules of Practice, summary disposition is available to a party in NRC proceedings as to all or any part of the matters involved in the proceeding, as follows:

(d) The presiding officer shall render the decision

' sought if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file ,

together with the statements of the parties and the affidavits , if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law ....

The Commission's summary disposition rule is analogous to Rule 56 of the Federal Rules of Civil Procedure, governing motions for summary judg-ment, and Federal court decisions interpreting Rule 56 may be relied upon in NRC proceedings for the interpretation of 10 C.F.R. I 2.749. See, e.g., Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 217 (1974).

Under both Rule 56 and 10 C.F.R. I 2.749, the party seeking summary judgment has been held to have the burden of proof, viz., the burden of demonstrating the absence of a genuine issue as to any material fact. Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-443, 6 NRC 741, 753 (1977), citing Adickes v.

Kress & Co. , 398 U.S.144,157 (1970). The proponent of the motion for (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

Contentions 2, 7 and 10, SAPL Contentions 5 and 14, and NECNP Contentions RERP-3, RERP-10, and RERP-12"; and " Affidavit of Edward A. Thomas."

, summary disposition must meet its burden of proof even if the party opposing the motion fails to present evidentiary material to the contrary.

Perry, sirpra, 6 NRC at 754. On the other hand, where a properly ~~ I supported motion for summary dispo sition has been made, a party opposing the motion may not rest upon the mere allegations of its contention or answer. 10 C.F.R. I 2.749(b); Virginia Electric and Power Co. (North Anna Nuclear Power Station , Units 1 and 2),

ALAB-584, 11 NRC 451, 453 (1980). Rather, pursuant to 10 C.F.R. 5 2.749(b), the party opposing summary disposition must present specific material facts showing there is no genuine issue to be heard:

(b) ... When a motion for summary decision is made and supported ... a party opposing the motion may not rest upon the mere allegations or denials of his answer; his answer . .. must set forth specific facts showing that there is a genuine issue of fact. If no such answer is filed, the decision sought, if appro-priate, shall be rendered.

Finally, in this regard, all material facts set forth in the statement filed by the moving party in support of its motion for summary disposition "will be deemed to be admitted unless controverted by the statement l

required to be served by the opposing party." 10 C.F.R. I 2.749(a). b l

Monotheless, where a party opposing the motion is as yet unable .to i

Pursuant to 10 C.F.R. I 2.749(a), answers to motions for summary

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disposition are to be filed within 20 days after service of the motion; and responses to "new facts and arguments presented in any state-ment filed in support of the motion" are to be filed within ten days l after service thereof. In deciding a motion for summary disposition, l "the record is to be viewed in the light most favorable to the party opposing the motion." Gulf States Utilities Co. (River Bend Station, Units 1 and 2), LBP-75-10, 1 NRC 246, 248 (1975); Public Service l

Co. of New Hampshire (Seabrook Station , Units 1 and 2),

LDP-71-36, 7 AEC 877, 879 (1974).

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present facts to justify his opposition, 10 C.F.R. I 2.749(c) provides that the Licensing Board may deny the motion or may order that the motion beMeferred: ~~ T (c) Should it appear from the affidavits of a party opposing the niotion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition , the presiding officer may refuse the appil-cation for summary decision or may order a continuance to parmit affidavits to be obtained or make such other onb as is appropriate and a determina*fon to that effr- shall be made a matter of record.

See North Anna, supra, 11 NRC at 4ti6; Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), LBP-79-34,10 NRC 828, 857 (1979).

In a Statement of Policy issued in 1981, the Commission underlined the avaliability of summary disposition in appropriate cases, as a means of expediting the hearing process. In Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Rg. 28,533 (May 27, 1981), the Commission stated as follows:

In exercising its authority to regulate the course of a hearing , the boards should encourage the parties to invoke the summary disposition procedure on issues where there is no genuine issue of material fact so -

that evidentiary hearing time is not unnecessarily devoted to such issues.

46 Fed. Rg. at 28,535. Similarly, the Appeal Board has s'.ated that the summary disposition rule provides "an efficacious means of avoiding unnecessary and possibly time consuming hearings on demonstrably insubstantial is sues . " Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-590,11 NRC 542, 550 (1980).

As the Appeal Board further noted, a hearing on each issue raised "is not inevitable," but " wholly depends upon the ability of the intervenors to demonstrate the existence of a genuine issue of material fact. . . .

Philadelphia Electric Co. (Peach Bottom Atomic Power Station , Units 2 and 3), ALAB-654, 14 NRC (1981). A party cannot avoid summary

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disposition "'on the mere hope that at trial he will be able to discredit ~~ T movant's evidence,'" nor may a party "'go to trial on the vague supposition that something may turn up . '" Gulf States Utilities Co.

(River Bend Station, Units 1 and 2), LDP-75-10,1 NRC 246, 248 (1975),

quoting G Moore's Federal Practice I 56.15[3] and [4].

B. The State and Applicants' Motions The Applicants and the State of New Hampshire hr.ve filed motions for summary disposition of 11 offsite emergency planning contentions admitted by the Licensing Board's Orders of April 1 and 29,1986. These contentions raised various concerns as to the adequacy of the New Hampshire radiological emergency response plans for the Seabrook nuclear power plant.

As set forth in the attached affidavits of Edward A. Thomas, the Federal Emergency Management Agency (FEMA) and the Regional Assistance Committee (RAC) have evaluated and reviewed the radiological emergency response plans submitted by the State of New Hampshire, as well as the compensatory plan and the revisions to the plans which have been submitted by the State. In addition, FEMA has conducted and evaluated an exercise of the New Hampshire radiological emergency response plans, held on February 26, 1986.

Based upon FEMA and the RAC's review of the New Hampshire radio-logical emergency response plans, the State's compensatory plan and the revisions to the plans which have been submitted, as well as the exercise 4

held on February 26, 1986, it is concluded that, as to eight of the subject contentions and the matters embraced by those contentions, the New hiampshire radiological emergency response plans appear to' be ~7 adequate and no issues of material fact remain to be litigated. These contentions are as follows:

SAPL Contention 5 and NECNP Contention RERP-10 (Radiation Field Monitoring); ,

SAPL Contention 14 and NECNP Contention RERP-3 (French Language Information and Communications);

I:ensington Contentions 2 and 10 (Kensington Communications); and Kensington Contention 7 and NECNP Contention RERP-12 (Radioprotective Drugs). ,

As to the remaining contentions for which summary disposition has been sought by the Applicants and/or State of New Hampshire, the review conducted by FEMA and the RAC has identified certain unresolved issues of fact within the scope of those contentions. Certain of the unresolved matters which have been identified to date are set forth in the attached "A ffidavit of Edward A. Thomas." As to those contentions, it is th?

Staff and FEMA's position that summary disposition is inappropriate at this time. In addition, as to one contention (Kensington Contention 4),

FEMA's review is continuing and FEMA is unable to state at this time whether any issues of material fact remain to be litigated within the scope of the contention; as to this contention, it is the Staff and FEMA's position that summarv disposition should be deferred at present or denied, pursuant to 10 C.F.R. I 2.740(c).

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CONCLUSIDN, For the reasons more fully s et forth above and in the attached affidavits,= the Licensing Board should grant the motions for summary ~~ T disposition of Kensington Contentions 2, 7, and 10; NECNP Contentions llERP-3, RERP-10, and RERP-12; and SAPL Contentions 5 anti 14. As to all other contentions , the motions for summary disposition should be deferred 01 denied at this time.

Respectfully submitted.

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hv b Sherwin E. Turk Deputy Assistant Chief Hearing Counsel Dated at Bethesda, Maryland this lith day of June,1986 l

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