ML20112J904

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Motion for Summary Disposition of Eddleman Contention 213-A Re Emergency Plan Conformance w/NUREG-0654.No Genuine Issue of Matl Fact Exists & Applicants Entitled to Favorable Decision.Certificate of Svc Encl
ML20112J904
Person / Time
Site: Harris Duke Energy icon.png
Issue date: 01/14/1985
From: Gaukler P
CAROLINA POWER & LIGHT CO., NORTH CAROLINA MUNICIPAL POWER AGENCIES, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:
Atomic Safety and Licensing Board Panel
Shared Package
ML20112J843 List:
References
RTR-NUREG-0654, RTR-NUREG-654 OL, NUDOCS 8501180419
Download: ML20112J904 (14)
v • d • e


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Og (p0 January 14,g'1985 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION , ,

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bEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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)

CAROLINA POWER & LIGHT COMPANY )

and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF EDDLEMAN 213-a Carolina Power & Light Company and North Carolina Eastern Municipal Power Agency (" Applicants") hereby move the Atomic Safety and Licensing Board (" Board"), pursuant to 10 C.F.R. 5 2.749, for summary disposition in Applicants' favor of Eddleman Contention 213-a.- As discussed herein, there is no genuine issue as to any fact material to Eddleman Contention 213-a and Applicants are entitled to a decision in their favor on Eddleman Contention 213-a as a matter of law.

This motion is supported by:

1. " Applicants' Statement Of Material Facts As To Which There Is No Genuine Issue To Be Heard On Eddleman 213-a;
2. " Affidavit Of Jesse T. Pugh, III In Support Of Applicants' Motion For Summary Disposition Of Eddleman 213-a" ("Pugh Affidavit"); and 8501180419 850114 PDR ADOCK 05000400 g PDR

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3. " Applicants' Memorandum Of Law In Support Of Motions For Summary Disposition Of Emergency Planning Contentions," (filed October 8, 1984).

I. PROCEDURAL BACKGROUND Eddleman Contention 213-a was initially advanced in " Wells Eddleman's Contentions on the Emergency Plan (2d Set)"

(April 12, 1984). Eddleman 213-a was admitted as a contention in this proceeding in the Board's " Memorandum and Order (Final Set of Rulings on Admissibility of Offsite Emergency Planning Contentions, Ruling on Petition for Waiver of Need for Power Rule, and Notice of Upcoming Telephone Conference Call)," LBP-84-29B, 20 N.R.C. 389, 408-409 (1984). In its August 3, 1984 Order, the Board did not specify the precise wording of Eddleman 213-a. The Applicants, Mr. Eddleman, and the NRC Staff then entered into a stipulation codifying certain admit-ted contentions. See " Joint Stipulation Codifying Certain Ad-mitted Contentions" (October 12, 1984).1/ As stipulated by the parties, Eddleman 213-a reads:

l 1/ In their " Joint Motion for Approval of Stipulation Codi-lying Certain Admitted Contentions" (October 12, 1984), the ap-plicants, Mr. Eddleman, and the NRC Staff requested Board Sp-

, proval of the wording of Eddleman 213-a. On December 6, 1984, the Board granted the Joint Motion of the parties. See " Order Approving Joint Stipulation Codifying Certain Admitted Conten-tions" (December 6, 1984).

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Either each off-site ERP should contain an appendix which conforms to evaluation criterion II.P.7 of NUREG-0654 or it should be demonstrated that such an appendix is unnecessary because its

+

functions are performed in some other way by the present form of the plans.

Applicants have served one set of interrogatories and re-quest for production of documents on Mr. Eddleman on the sub-4 ject of Eddleman 213-a. See " Applicants' Emergency Planning Interrogatories and Request for Production of Documents to In-l tervenor Wells Eddleman (Second Set)" (October 5, 1984), at 7-8. " Wells Eddleman's Response to Applicants' 2d Set of Emer-gency Planning Interrogatories" was filed October 30, 1984.

Mr. Eddleman has served two sets of interrogatories on the Ap-

plicants on the subject of Eddleman 213-a. See " Wells l Eddleman's General Interrogatories to the Applicants Carolina Power & Light, et al. (llth Set)" (August 31, 1984), at 10-11, and "Second Round Interrogatories on 213-a to Applicants /

Emergency Response Personnel and Request for Production of Doc-uments" (December 3, 1984). " Applicants' Response to Wells I

Eddleman's General Interrogatories to Applicants (llth Set)"

was filed October 1, 1984, and " Applicants' Supplemental Re-sponses to Wells Eddleman's General Interrogatories to Appli-cants (llth Set)" were filed November 26, 1984.2/ " Applicants' l

2/ Pursuant to an agreement between Applicants and

.Mr. Eddleman, Applicants extended their time to respond to Mr. Eddleman's eleventh set of interrogatories due to the delay caused by Hurricane Diana. This agreement allowed Mr. Eddleman additional time to file a second round of interrogatories on the contention.

Response to Wells Eddleman's Second Round Interrogatories on 213-a to Applicants / Emergency Response Personnel and Request for Production of Documents" was filed December 21, 1984.

Mr. Eddleman has served two sets of interrogatories on the NRC Staff and FEMA on the subject of Eddleman 213-a. See " Wells Eddleman's Interrogatories to NRC Staff and FEMA (6th Set)"

(August 31, 1984), at 5-6, and " Wells Eddleman's General Inter-rogatories and Interrogatories and Request for Production of Documents to FEMA /NRC Staff" (October 8, 1984), at 2. " FEMA Response to Interrogatories dated August 31, 1984 Propounded by Wells Eddleman" was filed September 28, 1984, and "NRC Staff and FEMA Response to Wells Eddleman's General Interrogatories, Interrogatories and Request for Production of Documents dated October 8, 1984" was filed October 25, 1984. The NRC Staff /

FEMA did not file any discovery request on the subject of Eddleman 213-a. Discovery on this contention is now completed.

Eddleman Contention 213-a is classified as an emergency planning contention to be addressed in the hearings scheduled to commence June 18, 1985. Written direct testimony on the contention is scheduled to be filed June 3, 1985. Further, the Board and the parties have established January 14, 1985 as the last day for filing summary disposition motions on this conten-tion. Thus, the instant motion is timely, and Eddleman Conten-tion 213-a is ripe for summary disposition.

II. GOVERNING LEGAL STANDARDS A. Summary Disposition

" Applicants' Memorandum of Law In Support of Motions For Summary Disposition of Emergency Planning Contentions," filed October 8, 1984, is fully applicable to this Motion and is in-corporated by reference herein.

B. Substantive Law Subsection 16 of the Commission's emergency planning stan-dards, 10 C.F.R. S 50.47(b), requires that:

Responsibilities for plan development and re-view and for distribution of emergency plans are established, and planners are properly trained.

10 C.F.R. S 50.47(b)(16). Criteria and guidance for reviewing the adequacy of an emergency response plan under this standard are addressed in II.P of NUREG-0654/ FEMA-REP-1, Criteria for 4

Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants (Rev. 1 November 1980) (hereinafter cited as "NUREG-0654").

The specific criterion at issue in this contention, II.P.7 of NUREG-0654, provides in full as follows:

Each plan shall contain as an appendix listing, by title, procedures required to imple-ment the plan. The listing shall include the sec-tion (s) of the plan to be implemented by each pro-cedure.

NUREG-0654 at 79.

1 III. ARGUMENT ,

l Applying the Commission's summary disposition standards to the facts of this case, it is clear that the instant motion for summary disposition of Eddleman Contention 213-a should be granted. As recognized by the Board in its order of August 3, 1984, the remaining issues presented by Eddleman 213-a are very narrow. As admitted by the Board, neither the adequacy of any procedure to implement the Plan nor the adequacy of the Plan itself in the absence of any specific procedure is placed in issue by Eddleman 213-a. LBP-84-29B, 20 N.R.C. 389, 408.

Rather, the issues raised by Eddleman 213-a are solely limited to whether the Plan contains an appendix in accordance with II.P.7 and, if not, whether the purposes of II.P.7 are satisfied in some other way by the present form of the Plan.

As it is currently constituted, the Shearon Harris Emer-gency Response Plan ("ERP") contains appendices satisfying the requirements of criterion II.P.7. The Plan is divided into five parts, Parts 1-5. Part 1 sets forth the State's responsi-bility and involvement for emergency planning and response for Shearon Harris. Parts 2 through 5 set forth the responsibility and involvement for emergency planning and response for Chatham, Harnett, Lee and Wake Counties, respectively. See ERP and Pugh Aff. 1 4. Attachment 2 for each Part of the ERP lists by title various other State and county plans as well as State and county standard operating procedures to be used in the

x implementation of the Plan by the State and each of the four counties, respectively. Pugh Aff. 1 4. For example, Attach-ment 2 to Part 1 lists the plans and standard operating proce-dures supporting the State's involvement in the Shearon Harris ERP as set forth in Part 1. Pugh Aff. 1 4.2/ Likewise, Attachment 2 for Parts 2 through 5 sets forth the respective county precedures and plans supporting the counties' in-volvement in the Shearon Harris ERP as set forth in Parts 2 through 5, respectively. Id.1/

Thus, the Plan for the State and each county does contain an appendix (labelled here as an attachment) listing procedures and other plans that are used in implementing the Shearon Harris ERP. This is the precise listing of procedures called for by the first sentence of II.P.7. Indeed, FEMA, responsible for reviewing compliance of offsite ERPs with NUREG-0654, in its review has found this listing in Attachment 2 to each Part of the Plan to satisfy the requirement of II.P.7 to list by title the procedures required to implement the Plan.E/

3/ For example, the Attachment lists State procedures such as the " SERT /ECO Support Staff Organization and Standard Operating Procedure" and supporting State plans, such as the " Southern Mutual Radiation Assistance Plan." Part 1, Attachment 2 of the ERP.

4/ For example, Attachment 2 for Part 5 lists various stan-dard operating procedures (" SOPS") and plans for Wake County supporting Wake County's involvement in the Shearon Harris ERP, such as the " Wake County Evacuation Plan for Schools" and the SOP for the " Emergency Operations Center, as well as the gener-al " Standard Operating Procedures (SOP) for Wake County."

5/ See " FEMA Response to Interrogatories Dated August 31, 1984, Propounded by Wells Eddleman," Answer to Interrogatory (Continued Next Page)

LP Moreover, wholly apart from the procedures already listed and already found sufficient by FEMA, the State and counties are presently developing additional standard operating proce-dures (" SOPS") to aid in the implementation of the ERP for the i Shearon Harris facility. Pugh Aff. 1 7. A list of additional county standard operating procedures in support of the Shearon Harris ERP currently under development is set forth in Attach-ment B to the Pugh Affidavit.f/ As is apparent from this list, t

the procedures under development are detailed and extensive.

They include SOPS for shelter management, warning and notifica-tion of the public, special transportation, radiological moni-toring, decontamination and the like, staging areas for medical

and rescue resources, traffic and roadblock control, and

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training. Upon their completion, the' State intends to have the b

Shearon Harris Emergency Response Plan amended to include these new procedures as part of the implementing procedures currently identified and set forth in Attachment 2 of the various Parts of the Emergency Response Plan. Pugh Aff. 1 7.

1 (Continued) l 213-A-1(a) (September 28, 1984); " FEMA Staff Response to Wells Eddleman's General Interrogatory and Request for Production of Documents Dated October 8, 1984," Answer to Interrogatory 213-A-5(a), page 3 (October 25, 1984.)

6/ Since the Board admitted Eddleman Contention 213-a, the State has already amended the Plan to add a list of State pro-cedures and plans used in implementing the ERP at Attachment 2

, to Part 1. This list was added to the Plan in the September 3, 1984 revision. See lines in right-hand margin of the Attach-ment.

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. I Thus, the requirement of the first sentence of II.P.7 issatisfied. As recognized by FEMA, the respective plans for the State and counties do currently contain appendices that list procedures to be used in the Plan's implementation. Further-more, extensive additional procedures are under development and will be added to those lists. It is irrelevant that some of those procedures to be used in implementing the Plans are not yet in final form and listed in the respective appendices. As made clear by the Board in admitting Eddleman 213-a, the issue is not the content or sufficiency of any procedure, but rather the simple question of whether the Plan contains an appendix listing the procedures that the State and counties will use in implementing the Plan.2/ Each Plan contains such a listing of currently established procedures, and upon completion of those additional procedures under development, the Plan will be amended to list those procedures as well. Thus, the Plan cur-rently conforms, and prospectively will conform, to the first i

sentence of criterion II.P.7.

The second requirement of II.P.7 (that the listing identi-fy the section(s) of the Plan being implemented by each proce-dure) is also satisfied here. As the Plan is currently consti-tuted, while the Attachments do not list the section(s) being implemented, the title of each supporting SOP or plan listed 7/ As noted by the Board, "[t]he mechanical details imple-menting procedures consist of are almost never suitable for litigation." 20 N.R.C. at 408.

a does indicate the se_ction(s) of the ERP'that each supporting procedure or_ plan implements. For example, the title of the standard operating procedure labelled " Emergency Operations Center" listed in Attachment 2 to the respective county plans indicates that this procedure is used to implement those sec-tions of the respective county plans concerning the operation of the county emergency operations centers. See Part 2, III.C, Part 3, III.C, Part 4, III.C and Part 5, III.C of the ERP.

Similarly, the other titles of the listed procedures indicate the sections of the Plan being implemented.8/

Moreover, when the State amends Attachment 2 for the re-spective Parts of the Plan to add the new procedures currently under development, it will, at the same time, amend the Attach-ments to include more explicitly the section(s) of the Plan that each procedure, both those presently listed and those being added, are intended to implement. Pugh Aff. 11 7-8. Ac-cordingly, at that point in time, there will be no doubt that the Plan conforms to the requirement of the second sentence of II.P.7.

8/ As explained in the affidavit of Jesse T. Pugh, Director of the Division of Emergency Management of the North Carolina Department of Crime Control and Public Safety, the general SOPS identified in the Attachments (i.e. " State Emergency Response

< Team Standing Operating Procedures," Part I, Attachment 2 and the " Standard Operating Procedures (SOP)" for Chatham, Lee and Wake counties, Parts 2, 4 & 5, Attachment 2) consist of a sin-gle document for each organization which sets forth generally applicable procedures to be used by that organization in emergencies generally. As such, these procedures provide addi-tional detail for implementing the ERP as a whole.

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Thus, the ERP does, and will, contain appendices that con-form to evaluation criterion II.P.7. Each Part of the Shearon Harris ERP contains an Attachment listing the implementing plans and SOPS of the State and counties respectively. Addi-tionally, these lists will be amended to list numerous new ad-ditional SOPS as well as to list the section(s) of the Plan that each of the procedures is intended to implement. Accord-ingly, both the requirements and purposes of evaluation crite-rion II.P.7 are satisfied.

IV. CONCLUSION For the reasons set forth above, the Board should grant Applicants' Motion for Summary Disposition of Eddleman 213-a. ,

Respectfully submitted, Thomas A. Baxter, P.C. '

Paul A. Gaukler SHAW, PITTMAN, POTTS & TROWBRIDGE 1800 M Street, N.W.

Washington, D.C. 20036 (202) 822-1000 and Richard E. Jones Dale E. Hollar CAROLINA POWER & LIGHT COMPANY P.O. Box 1551 Raleigh, North Carolina 27602 (919) 836-7707 Counsel for Applicants Dated: January 14, 1985 t

_. _ . . . . . _ . _ - _ _ . , , , . . _ . _ , . _ . _ . . _ . ,_ __ n. _,,__,_ _ -__

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J3,\'f" Januar 14, 1983 dW 77 p; 37 Crqs , _

UNITED STATES OF AMERICA C0 KD!g.[5EGh:;M g gy SE+vfi ~

NUCLEAR REGULATORY COMMISSION -

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of. )

)

CAROLINA POWER E LIGHT COMPANY )

I and NORTH CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY )

)

(Shearon Harris Nuclear Power )

Plant) )

! CERTIFICATE OF SERVICE I hereby certify that copies of " Applicants' Motion For Summary Disposition of Eddleman 213-a," " Applicants' Statement-of Material Facts As To Which There Is No Genuine Issue To Be Heard On Eddleman 213-a," " Affidavit of Jesse T. Pugh, III in Support of Applicants' Motion for Summary Disposition of Eddleman 213-a" were served this 14 day of January,-1985, by deposit in the U.S. mail, first class, postage prepaid, upon l the parties listed on the attached Service List.

l On Dated: /~~~/Y- b

? l n n January 14,'lf(50

'65 ay n g UNITED STATES OF AMERICA gg NUCLEAR REGULATORY COMMISSION C0d[ry_f'IMtit; yy&"&V.f t BEFORE THE ATOMIC SAFETY AND LICENSING BOARD l 4

In the Matter of )

)

CAROLINA POWER & LIGHT COMPANY )

and NOR'.?H CAROLINA EASTERN ) Docket No. 50-400 OL MUNICIPAL POWER AGENCY ) '

)

i -(Shearon Harris Nuclear Power Plant))

l SERVICE LIST 4

James,L. Kelley, Esquire John D. Runkle, Esquire if Atomic Safety and Licensing Board Conservation Council of U.S. Nuclear Regulatory Commission North Carolina Washington, D.C. 20555 307 Granville Road  ;

Chapel Hill, NC 27514

Mr. Glenn O. Bright M. Travis Payne, Esquire Atomic Safety and Licensing Board Edelstein and Payne U6S. Nuclear Regulatory Commission P.'O. Box 12607 r Wishington, D.C. 20555 Raleigh, NC 27605

'Dr. James H. Carpenter Dr. Richard D. Wilson l Atomic Safety and Licensing Board 729 Hunter Street U.S. Nuclear Regulatory Commission Apex, NC 27502  ;

Washington, D.C. 20555 Charleri A. Barth, Esquire Mr. Wells Eddleman Janice E. Moore, Esquire 718-A Iredell Street Office of Execntive Legal Director Durham, NC 27705 U.S. Nuclear Regulatory Commission j

Washington, D.C. 20555 l

l Docketing and Service Section Richard E. Jones, Esquire l Office of the Secretary Vice President and l U.S. Nuclear Regulatory Commission Senior Counsel Washington, D.C. 20555 Carolina Power & Light Company P.O. Box 1551 Raleigh, NC 27602 i

l

Mr. Daniel F. Read, President Dr. Linda W. Little CHANGE Governor's Waste Management Board P.O. Box 2151 513 Albermarle Building Raleigh, NC 27602 325 North Salisbury Street Raleigh, North Carolina 27611 Cradley W. Jones, Esquire Steven F. Crockett, Esq.

U.S. Nuclear Regulatory Commission Atomic Savety and Region II Licensing Board Panel 101 Marietta Street U.S. Nuclear Regulatory Commission Atlanta, Georgia 30303 Washington, D.C. 20555 Mr. Robert P. Gruber Administrative Judge Harry Foreman Executive Director Box 395 Mayo Public Staff - NCUC University of Minnesota Past Office Box 991 Minneapolis, Minnesota 55455 Raleigh, North Carolina 27602 t

Spence W. Perry, Esquire Steven Rochlis, Esq.

Arsociate General Counsel Regional Counsel PEMA FEMA 500 C Street, S.W., Suite 480 1371 Peachtree Street, N.E.

Washington, D.C. 20740 Atlanta, Georgia 30309 i

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