ML20206T820

NRC Staff Answer to Motions for Summary Disposition of Offsite Emergency Planning Contentions.* Based on FEMA Review,State of Nh Radiological Emergency Response Plans Adequate.Motion Should Be Granted

ML20206T820
Person / Time
Site:	Seabrook
Issue date:	04/15/1987
From:	Chan E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20206T825	List: ML20206T820 ML20206T897 ML20206T970
References
CON-#287-3194 OL, NUDOCS 8704230252
Download: ML20206T820 (12)

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, 00LKETED April 151'11987 UNITED STATES OF AMERICA NUCIEAR REGULATORY COMMISSION '87 APR 21 P2:08 BEFORE THE ATOMIC SAFETY AND LICENSING MDMr; hYh bd BFAhCH In the Matter of )

) Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, et al. ) Off-site Emergency Planning

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(Seabrook Station, Units 1 and 2 )

NRC STAFF'S ANSWER TO MOTIONS FOR

SUMMARY

DISPOSITION OF OFF-SITE EMERGENCY PLANNING CONTENTIONS On March 25, 1987, thirty motions were filed by the Applicants seeking summary disposition of various off-site emergency planning contentions; 1 on the same date, two additional motions for summary 1/

. (1) " Applicant's Motion for Summary Disposition NECNP Contention NHLP-4";

l i (2) " Applicants' Motion for Summary Disposition of Town of Kensington Revised Contention 2";

(3) "Applicaints' Motion for Summary Disposition of South Hampton (TOSH) Contention No. 6";

(4) " Motion for Summary Disposition of Town of Hampton Falls (TOliF) Contention 4";

(5) " Applicants' Motion for Summary Disposition of Revised Town of Kensington (TOK) Contention 10";

(6) " Applicants' Motion for Summary Disposition of Seacoast Anti-Pollution League Contentions Nos. 7 and 33";

(7) " Applicants' Motion for Summary Disposition of Town of Hampton Revised Contention IV";

(FOOTNOTE CONTINUED ON NEXT PAGE) 8704230252 870415 3 A DR ADOCK 0500 01

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1 disposition were filed by the Town of Hampton and Attorney General (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

(8) " Applicants' Motion for Summary Disposition (TOH VI)

(9) " Applicants' Mction for Summary Disposition of Town of Kensington (TOK) Contention 1";

(10) " Applicants' Motion for Summary Disposition on Seacoast Anti-Pollution League Redrafted Contention No.15";

(11) " Applicants' Motion for Summary Disposition of Town of South

Hampton's (TOSH) Contention 2";

(12) " Motion for Summary Disposition on New England Coalition on Nuclear Pollution Contention No. NHLP-2";

(13) " Applicants' Motion for Summary Disposition Town of Hampton Falls (TOHF) Contention 2";

(14) " Applicants' Motion for Summary Disposition of NECNP RERP-2";

(15) " Applicants' Motion for Summary Disposition SAPL Reasserted Contention 8";

(16) " Applicants' Motion for Summary Dicposition on SAPL Rearserted Contention 8A";

(17) " Motion for Summary Disposition of NECNP Contention NHLP-6";

(18) " Applicants' Motion for Summary Disposition of Town of South l

Hampton Contention No. 8";

(19) " Applicants' Motion for Summary Disposition of Seacoast Anti-l Pollution League Contention No.18";

(20) " Applicant's Motion for Summary Disposition on Town of South Hampton Contention No.1";

(21) " Applicants' Motion for Summary Disposition of Seacoast Anti-Pollution League Contention No. 25";

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l Shannon of Massachusetts. 2_/ In particular, these motions seek summary disposition, in whole or in part, of 32 emergency planning contentions admitted for litigation by the Licensing Board Orders of April 1,1986 and February 18, 1987. 3_/

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(22) " Applicants' Motion for Summary on Seacoast Anti-Pollution League Contention No. 34";

(23) " Applicants' Motion for Summary Disposition on Seacoast Anti-Pollution League Contention No. 37";

(24) " Applicants' Motion for Summary Disposition on Town of Kensington Revised Contention 6";

(25) " Applicants' Motion for Summary Disposition on Town of South Hampton Contention No. 3";

(26) " Applicants' Motion for Summary Disposition on Seacoast Anti-Pollution League Contention No. 31 (SAPL-31)";

(27) " Applicants' Motion for Summary Disposition on Town of Hampton Contention No. III";

(28) " Applicants' Motion for Summary Disposition of Rye Contention 2";

(29) " Applicants' Motion for Summary Disposition on NECNP Contention RERP-8, SAPL Contention No.16, and Town of Hampton Contention VIII"; and (30) " Motion fer Summary Disposition (TOK-4)".

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These are: (1) " Town of Hampton's Motion for Summary Disposition; and (2) " Attorney General Shannon's Motion for Partial Summary Disposition on Town of Hampton Revised Contention VIII and SAPL Contention 16".

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Although some motions for summary disposition were denied by the  :

Board in a telephone conference call on April 13, 1987, the Staff nevertheless addresses the issues raised in all of the motions for summary disposition for which FEMA findings are required, (FOOTNOTE CONTINUED ON NEXT PAGE)

e The NRC Staff hereby files it response to the Applicants' and Staff's motions. For the reasons more fully set for.th below and in the attached affidavits, O there are no genuine issues of material fact on seven of the subject contentions and summary disposition is appropriate for those contentions. The motions for summary disposition on the other contentions should be denied, because FEMA has not at this time made findings - reouired by the Commission's regulations - that the relevant parts of the emergency plans are adequate.

DISCUSSION A. Legal Principles Underlying Summary Disposition Pursuant to 10 C.F.R. 6 2.749(d) of the Commission's Rules of Practice, summary disposition is available to a party in NRC proceedings on all or any part of the matters involved in the proceeding. It provides:

The presiding officer shall render the decision sought if the filings in the proceeding, depositions, answers to interrogatories, and the 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 (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) particularly to detail where FEMA believes additional information is needed. In this manner it responds to the request of the Licensing Board to set out aress where additional information is needed for FEMA to complete its review.

4/ The Staff has attached hereto the following documents upon which )

this Answer relies: " Affidavit of Edward A. Thomas in Support of i Certain Motions for Summary Disposition" and " Affidavit of Edward A. Thomas in Opposition to Certain Motions for Summary ,

Disposition". )

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, . - i and that the moving party is entitled to a decision as a matter of law. . . . .

The proponent of the motion for summary disposition must meet its burden even if the party opposing the motion fails to present evidentiary material to the contrary. Cleveland Electric Illuminating Co. .(Perry Nuclear s Power Plant, Unit 1 and 2), ALAB-443, 6 NRC 741, 753 (1977), citing Adickes v. Kress & Co. , 398 U.S. 144, 157 (1970). Perry, supra, 6 NRC at 754.

On the other hand, where a properly supported motion for summary disposition 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 Oectric and Power Co. (North Anna Nuclear Power Stelion, Units 1 and 2), ALAB-584,11 NRC 451, 453 (1980). Rather, pursuant to 5 10 C.F.R. I 2.749(b), the party opposing summary disposition must ordinarily present specific material facts showing there is no genuine issue to be heard:

. . . 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 appropriate, shall be rendered.

Nonetheless, where a party opposing the motion is not yet able to present i facts to justify his opposition, 10 C.F.R. I 2.749(c) provides that the

Licensing Board may deny the motion or order that the motion be deferred

Should it appear from the affidavits of a party opposing the motion that he cannot, for reasons stated, present by affidavit facts essential to justify his opposition, the presiding officer may refuse the application for summary disposition or '

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i may order a continuance to permit affidavits to be obtained or make such order as is appropriate and a determination to that effect shall be made a matter of record.

See North Anna, supra, 11 NRC at 466; Metropolitan Edison Co. (Three

?!ile 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 availability 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. RS. 28533 (May 27,1981), the Commis-sion 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.

4 46 Fed. Rg . 38535.

B. The Commission's Regulations Provide that NRC Findings on

! Off-Site Emergency Plans Will be Based Upon the Findings and Determinations of the Federal Emergency Management Agency 4

In making required findings on the adequacy of any emergency plan with respect to any nuclear power plant, the Commission's regulations provide a detailed scheme of cooperation between the NRC and the Federal Emergency Management Agency (FEMA). b In particular, the regulations

5) The Commission's regulations specifically provide:

[N]o operating license for a nuclear power reactor will be issued unless a finding is made by NRC

that there is reasonable assurance that adequate l l

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provide that the NRC is required to base its findings, in part, on initial FEMA " findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented. . . ." EI Thus appropriate findings by FEMA are necessary for the NRC to determine that no issue of material fact exists which would impede the grant of summary disposition on issues i relating to State and local emergency plans.

The Commission's regulation which requires FEMA findings as a predicate to an NEC determination on off-site emergency planning is

. based on a December 7, 1979 Presidential Directive in which FEMA was ordered to "take the lead in off-site planning and response" with respect f

I (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) protective measures can and will be taken in the

! event of a radiological emergency.

I 10 C.F.R. I 50.47(a)(1) .

y/_ 10 C.F.R. I 50.47(a)(2) specifically provides:

The NRC will base its findings on a review of the Federal Emergency Management Agency (FEMA) l findings and determinations as to whether State and local emergency plans are adequate and whether there is reasonable assurance that they can be implemented, and on the NRC assessment as

! to whether the applicant's onsite emergency plans are adequate and whether there is reasonable

assurance that they can be implemented. A FEMA i finding will primarily be based on a review of the plans. Any other information already available to FEMA may be considered in assessing whether there is reasonable assurance that the plans can be implemented. In any NRC licensing proceeding, a FEMA finding will constitute a rebuttable presumption on questions of adequacy and implementation capability, i

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to potential accidental off-site radiological releases. See Memorandum of Understanding Between FEMA and NRC ("MO U") , 50 Fed h.15485 (April 18,1985). This directive required FEMA: i

[tlo make findings and determinations as to whether off-site emergency plans are adequate and can be implemented ... [F]indings and determinations on the current status of emergency planning and preparedness around particular siter

. . . will be provided by FEMA for use as needed in the NRC licensing process.

MOU, 50 Fed. M.15485. -

! While this regulatory scheme contemplates that FEMA will "take the lead" and provide the initial determination of the adequacy of off-site emergency plan, the Commission's regulations also provide that NRC has responsibility for reviewing FEMA's determinations and making any final determinations as to the adequacy of such plans. 10 C.F.R.

I 50.47(s)(1)-(2). To ensure the necessary interagency cooperation, FEMA and NRC first entered into a Memorandum of Understanding on January 14, 1980. 45 Fed. Rg . 5847. The MOU has been twice revised to reflect the evolving relationship between FEMA and NRC, but the 4

general principles have remained the same: FEMA is charged with (1) coordinating all Federal planning for the off-site impact of radiological 4

cmergencies , (2) taking the lead for assessing off-site radiological emergency response plans and preparedness, (3) making findings and

) determinations as the adequacy and capability of implementing off-site plans , and (4) communicating those findings and determinations to the NRC, 45 Fed. Rg . 82713 (December 16, 1980); 50 Fed. M . 15485 (April 18, 1985). The NRC, on the other hand, reviews those FEMA findings and determinations in conjunction with the NRC on-site findings e

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for the purpose of making determinations on the overall state of emergency preparedness. These overall findings and determinations are used by NRC to make radiological health and safety decisions in the issuance of licences. According to the MOU, "[t]his delineation of responsibilities avoids duplicative efforts by NRC Staff in off-site preparedness matters." MOU, 50 Fed. Rg.15485.

The MOU provides that in making any initial findings based on a I

review of currently available off-site plans, FEMA is to assess whether such plans are adequate against the standards and criteria of NUREG-0654 / FEMA-REP-1, and pending an exercise, whether there is reasonable assurance that the plans can be implemented. Specifically, the MOU provides that the finding will indicate one of the following conditions:

(1) Plans are adequate and there is reasonable assurance that they can be implemented with only limited or no corrections needed; (2) plans are adequate, but before a determination can be made as to whether they can be implemented, corrections

.i must be made to the plans or supporting measures must be demonstrated (e.g., adequacy and maintenance of procedures, training resources, staffing levels and qualifications , and equipment adeousey); or (3) plans are adequate and cannot

• be implemented until they are revised to correct deficiencies noted in the Federal review.

MOU, 50 Fed. Rg.15485.

If in FEMA's view, the plans that are available are not complete or not ready for review, FEMA is obligated to provide NRC with a status

! report " delineating milestones for preparation of the plan by the off-site authorities as well as FEMA's actions to assist in timely development and review of such plans." Id.

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, 6 The MOU further provides that in an interim finding on i

preparedness, FEMA will indicate one of the following conditions:

(1) There is reasonable assurance that the plans are adequate and can be implemented as demonstrated in an exercise; (2) there are deficiencies that may adversely affect public health and safety that must be corrected in order to provide reasonable assurance that the plans can be implemented; or (3) FEMA is undecided and will provide a schedule of actions leading to a decision.

MOU, 50 Fed. Rg.15485.

Therefore, under the scheme of the 10 C.F.R. I 50.47(a) and the underlying ?!emorandum of Understanding between FEMA and the NRC FEMA findings on State or local off-site emergency planning are a necessary predicate to an NRC determination that those off-site plans are adequate and can be implemented.

C. The Applicants', Town of Hampton's and Attorney General Shannon's Motions The Applicants, Town of Hampton and Attorney General Shannon

! have filed motions for summary disposition of 32 off-site emergency planning contentions admitted by the Licensing Board's Orders of April 1 1986 and February 18, 1987. These contentions raised various concerns

, as to the adequacy of the New Hampshire radiological emergency response plans for the Seabrook Station.

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

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A 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 the FEMA review of the New Hampshire radiological emergency response plans , the State's compensatory plan and the revisions to the plans which have been submitted, as well as the exercise held on February 26, 1966, it is concluded that, as to seven of the subject contentions and the matters embraced by those contentions, the New Hampshire radiological emergency response plans appear to be adequate to FEMA and no issues of material fact remain to be litigated.

These contentions are as follows:

1. The Applicant's Motion for Summary Disposition Regarding Town of Kensington Contention 2;

2. The Applicant's Motion for Summary Disposition Regarding Town of Kensington Contention 4;

3. The Applicant's Motion for Summary Dispcsition Regarding Town of Kensington Contention 10;

4. The Applicant's Motion for Summary Disposition Regarding Town of South Hampton Contention 1;

5. The Applicant's Motion for Summary Disposition Regarding Town of South Ilampton Contention 6;

6. The Applicant's Motion for Summary Disposition Regarding Town of Hampton Falls Contention 4;

7. The Applicant's Motion for Summary Disposition Regarding NECNP Contention RERP-2:

The motions for summary disposition on the other contentions should be denied. FEMA has identified unresolved issues of fact within the scope of those contentions. Pertinent unresolved matters which have been identified to date are set forth in the attached " Affidavit of Edward A. Thomas in Opposition to Certain Motions for Summary Disposition."

since FEMA is unable at this time to make the required findings of fact required by 10 C.F.F . I 50.47(a)(2), on the adequacy of the relevant aspects of the Seabrook Station Emergency Off-Site Plan ,

summary disposition of these contentions cannot now be granted.

CONCLUSION For the reasons more fully et forth above and in the attached affidavits of Edward A. Thoma o , 'he Licensing Board should grant the motions for summary disposition of Town of Kensington Contentions 2, 4 and 10; Town of South Hampton Contentions 1 and 6; Town of Hampton Falls Contention 4 and NECNP Contention RERP-2. As to all the remaining contentions, the motions for summary disposition should be denied.

Respectfully submitted, m ~

Elaine I. Chan Counsel for NRC Staff Dated at Bethesda, Maryland this 15th day of April,1987 i

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