ML20104A249

Motion for Summary Disposition of Contention J Re Emergency Action Levels.No Genuine Issue of Matl Facts Exists & Applicant Entitled to Favorable Decision

ML20104A249
Person / Time
Site:	Perry
Issue date:	01/30/1985
From:	Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20104A253	List: ML20104A249 ML20104A265 ML20104A276
References
CON-#185-330 OL, NUDOCS 8502010178
Download: ML20104A249 (6)

Text

{{#Wiki_filter:Jn:3g .4- ,  ; January 30, 1985 8 EN KETED o nc UNITED STATES OF AMERICA J 31 R2:03 NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD [. f In.the Matter of )

                                                      )

THE CLEVELAND ELECTRIC ) Docket Nos. 50-44004 ILLUMINATING COMPANY ) 50-4410c

                                                      )

(Perry Nuclear Power Plant, )

            . Units 1 and 2)                          )

APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF' CONTENTION J The Cleveland Electric Illuminating Company, Duquesne

            . Light Company, Ohio Edison _ Company, Pennsylvania Power Company, and The Toledo Edison Company (" Applicants") hereby move the Atomic Safety and Licensing-Board (" Board"), pursuant.to 10 C.F.R. S_2.749, for summary disposition in Applicants' favor of
            . Contention    J.. As discussed herein, there is no genuine issue as to any fact material-to Contention J, and; Applicants are'en-titled to a decision-in'their favor on Contention J as a matter
            -of. law.-

This motion-is supported byr.- l.-- ~" Applicants'_ Statement of Material Facts As To Which

                   -There~Is1No Genuine Issue To Be Heard On Contention-J";

2. " Affidavit of Daniel D. Hulbert~on Contention J"

        -            ("Hulb~ert Affidavit");'and

3. Section'II.A of " Applicants' Motion For Summary Dis-

                   -position of_ Issue 14"_(January. 14, 1985) (articulating the legal' standards _ applicable to a motion for summary.

disposition). 8502010178 950130 PDR ADOCK 05000440 l

k. . o . PDR .

33

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  ~i                                                                                                       g I. PROCEDURAL BACKGROUND                                  -
   '~

t Prior to th'e availability of.offsite emergency plans for

                -the plume' exposure pathway emergency planning zone ("EPZ") for                           ;

the PerryfNuclear Power Plant, the Board admitted a very broad emergency planning contention, Issue 1: Applicants' emergency evacuation plans do not demonstrate that they provide reason-able assurance.that adequate protective measures can and will be: taken in the event of an emergency. See LBP-81-24, 14 N.R.C. 175, 189 (1981), as modified by LBP-81-35, 14 N.R.C. 682, 686 (1981). The Board subsequently noted that the words " State and local" should be substituted

              -for the word " Applicants'" in the wording of the contention.

See LBP-84-28,.20 N.R.C. 129, 130 n.1 (1984). After well-developed offsite plans had been publicly

                ~available for some' time, Applicants (with the support of the LStaff) moved for a Board order requiring the particularization off.the broad contention.- The Board ~ granted Applicants' motion,
              ~ directing Intervenor to "specify in a written filing the spe-
              !cific inadequacies alleged to exist in the draft local and State. emergency: plans *~* *."           See LBP-84-28, 20 N.R.C.'at 132.

Contention J was in'itially_ advanced in " Sunflower Alli-ance's Particularized Objections To Proposed Emergency Plans In

                            ~

Support of Issue No..I" (August 20, 1984). Over the opposition of. Applicants-and the Staff,'the Board admitted a form of'that

                  . content' ion. :As admitted-by the Board,l/ Contention J alleges:

4 ajbF -Thel Board expressly rejected-all-allegations'of the pro-posed contention which are not included in the contention as framed: by the Board. See January.10, 1985 Memorandum

                         .and. Order; at    5..

a

 .(

Emergency' action level indicators are in-complete in Applicant's emersency plan. ,

     " Memorandum and Order (Admissibility of Contentions on Emergen-                                        '

cy Plans and-Motion To Dismiss)" (January 10, 1985), at 6. As the Board has noted, discovery on emergency planning issues in.this proceeding has been completed. See January 10, f 1985 Memorandum and Order, at 5. Further, the schedule pro-posed by_ Applicants establishes February 5, 1985 as the last day for filing summary disposition motions. See January 18, 1985' Letter, Counsel for Applicants to Licensing Board. Ac-cordingly, the instant motion is timely, and Contention J is ripe for summary disposition. II. GOVERNING LEGAL STANDARDS A.- Summary Disposition Section II.A of " Applicants' Motion For Summary Disposi-tion of Issue 14" (January 14, 1985) sets forth the legal stan-

    'dards applicable to a motion for summary disposition.                   The dis-cussion there'is fully applicable to this Motion'and is incorporated.by reference herein.

B.- Substantive Law The Commission's emergency planning regulations, at 10 C.F.R; 5 50.47(b)(4), require, in relevant part, that: 3-

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f-4- , I ' [a] standard emergency * *

• action level scheme, the bases of which in-clude facility system and effluent  ;

,~      .

parameters, is in use by the nuclear  !: facility licensee * * *. The Commission's regulations further provide: The means to be used for determining the magnitude of and for continually assessing the impact of the release of radioactive materials shall be de-

          ,                                                           scribed, including emergency action levels * * *.

The' emergency action levels shall be based on in plant conditions and in-strumentation in addition to onsite and offsite monitoring.

                                  . 10 C.F.R. Part 50, Appendix E, 5 IV.B.

Elsewhere,' the regulations note:

                                                                   -Emergency action levels (based not only on onsite and offsite radiation monitorning'information.but also on readings from a number of sensors that indicate a potential emergency, such
                                                                  - 'as the pressure in containment and the
                                   ,                                  response of the EmergencyLCore Cooling                        '
    .                                                               . System)cfor notification of offsite agencies shall'be described.
                                  ' 10 C.F.R. Part 50, Appendix E, S IV.C.

iTheLapplicable planning' standard is further-addressed by'

                                  - NUREG-0654/ FEMA-REP-1, " Criteria'For' Preparation and Evaluation

' O - of Ra'diological Emergency Response Plans and Preparedness In

             '                                            ~

Support of1 Nuclear. Power. Plants" (Rev. 1, November:1980).-  !

NUREG-0654; Criterion'D.11 specifies that:

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An * *'* emergency action level scheme I as set'forth in Appendix 1 [of NUREG-0654] must be established by the licensee. The specific instruments,

                               ~ parameters or equipment status shall be shown for establishing each emer-gency. class, in the in-plant emergency procedures. The plan shall identify the. parameter values and equipment status for each emergency class.

Criterion D.2 fOrther specifies: The initiating conditions shall in-clude the example conditions found in

                              ' Appendix l-and all postulated acci-
                              -dents in the Final Safety Analysis Re-

_ port (FSAR)'for the nuclear facility. 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 J should be granted.      Conten-tion'J asserts that Emergency Action Level ("EAL") indications
     ,      . in the PerryfEmergency Plan ~are incomplete. As shown in Mr.
            'Hulbert's affidavit, of-the_200 individual EAL indications in Revision 13 of,the. Plan, 13 were "inc'omplete."    Hulbert Affida-vit, 1 4._   TheyLwere incomplete because the detailed technical data lneeded to' determine theLmissing value was not available-m when Revision'3 was issued.       Id. However, in each of_these 13 instances, comparable values were specified-in the'EAL.        Id.,

J [1 5.. ? values ~for each of-the 13 " missing"_ cases have now been

           ~ developed-and willibe included in= Revision 4 to the Plan. -IS.,
           '1'6._'Thus, all EAL's in Revision 3 had values associated with-1 themland the 13 " missing": values have subsequently been
            ~ determined..
                                               ~ '

4 IV. CONCLUSION

         -Because there is no genuine issue of material fact to be heard on the issue of the " missing" EAL values, Applicants' Mo-tion For-Summary Disposition of Contention J should be granted.

Respectfully submitted,

                                          '(_1      ,

D' 4 f' Jay 2 Sflberg, P.C. SHA P WTMAN, POTTS&TRbWBRIDGE 180 M street, N.W. Washington, D.C. 20036 (202) 822-1000 counsel for Applicants

   . DATED:  January 30, 1985

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