ML20207Q325
| ML20207Q325 | |
| Person / Time | |
|---|---|
| Site: | Perry  |
| Issue date: | 01/20/1987 |
| From: | Silberg J CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20207Q326 | List: |
| References | |
| CON-#187-2272 2.206, NUDOCS 8701270166 | |
| Download: ML20207Q325 (25) | |
Text
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'7b DCLKETED I "3tWC January, 0,jg7 g .34 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cygg7 _ .
00Ct.: T7M{ l-Before The Director, Office Of Inspection And Enforcement ""
In the Matter of )
)
CLEVELAND ELECTRIC ) Docket No. 50-440 ILLUMINATING CO., ET AL. ) (10 C.F.R. I 2.206)
)
(Perry Nuclear Power Plant, )
Unit 1) )
LICENSEES' RESPONSE.TO $ 2.206 PETITION OF SUNFLOWER ALLIANCE I. Introduction .
On November 7, 1986, "Intervenors [ sic] Sunflower Alliance's Motion To Reopen the Record and To Submit New Contentions or Alternatively For Applicant To Show Cause Why Its Licenses Should Not Be Modified or Denied" (" Motion") was mailed to the Commis-sion.1/ In its Motion, the Sunflower Alliance, Inc. ("Sunflow-er") first requests that the Commission " reopen the record on the emergency planning contention" in the Perry operating license proceeding. However, the time for Commission review of the record in the operating license hearings expired on September 29, 1/ Although the Certificate of Service indicates that service i was made on Licensees' counsel, neither Licensees nor their coun-sel ever received service from Sunflower.
8701270166 B70120 PDR 0 ADOCK 05000440 PDR TJSo3
F 1986, and the Commission voted to authorize issuance of the oper-ating license on November 7, 1986. Pursuant to that vote, the NRC Staff issued Operating License No. NPF-58 to The Cleveland Electric Illuminating Company ("CEI"), Duquesne Light Company, Ohio Edison Company, Pennsylvania Power & Light Company, and The Toledo Edison Company (" Licensees") on November 13, 1986 -- one day before Sunflower's Motion was received by the NRC. Thus, there is no forum where the evidentiary record could be reopened.
In the alternative, Sunflower invokes section 2.206 of the Commission's regulations to request the initiation of enforcement proceedings to require Licensees "to show cause why [the] pro-posed operating license conditions should not be modified, or the license denied in its entirety." While the precise relief which Sunflower seeks has been mooted by the Commission's vote and the issuance of the Perry full power operating license, the Motion could be considered as a request for modification or revocation of that license. Accordingly, Licensees respond herein to Sun-flower's Motion.
II. Standards for Initiation of Show Cause Proceeding Section 2.206 of the Commission's regulations provides a mechanism by which members of the public may request initiation of an enforcement action to modify, suspend, or revoke a license, j or to take other appropriate action. In addition, section 2.206 l
l vests authority in the director of the appropriate NRC office to l
p-decide whether to institute an enforcement action by the issuance of a show cause order. The only criterion set forth in the rule itself for judging the sufficiency of a petition is the require-ment that "[t]he request * *
- specify the action requested and set forth the facts that constitute the basis for the request."
10 C.F.R. $ 2.206(a).
The apparent reason for the absence of a more specific stan-dard in the regulation is that the decision to institute an en-forcement action is not an adjudicative one, but rather a matter of " prosecutorial" discretion. See Consolidated Edison Co. of New York (Indian Point Units 1, 2, and 3), CLI-75-8, 2 N.R.C.
173, 175 (1975). Nevertheless, the Commission has in previous decisions provided guidance delimiting the exercise of this dis-cretion.
In Indian Point, supra, the Commission affirmed a Director's decision denying a $ 2.206 petition. The Commission there ob-served that "a show cause order would have been required had [the Director] reached the conclusion that substantial health or safe-ty issues had been raised. * ** [A] mere dispute over factual issues does not suffice." Indian Point, supra, 2 N.R.C. at 176 &
n.2.2/ This standard has been acknowledged in dicta by the D.C.
2/ The directors have adhered to the " substantial health and safety issues" test. See e.g., Philadelphia Electric Co. (Limer-ick Generating Station, Units 1 and 2), DD-85-ll, 22 N.R.C. 149, 152 (1985); Washington Public Power Supply System (WPPSS Nuclear Project No. 2), DD-84-7, 19 N.R.C. 899, 923 (1984).
p
. l l
and Seventh Circuits. Lorion v. NRC, 712 F.2d 1472, 1475 (D.C.
Cir. 1983), rev'd on other grounds sub nom., Florida Power &
Light Co. v. Lorion, 105 S. Ct. 1598, 1601 (1985), on remand sub nom., Lorion v. NRC, 785 F.2d 1038, 1041 (D.C. Cir. 1986);
Rockford League of Women Voters v. NRC, 679 F.2d 1218, 1222 (7th Cir. 1982).
The Commission reiterated the " substantial health and safety issues" standard in Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), CLI-78-7, 7 N.R.C. 429, 433 (1978) (D.C. Cir. 1979), aff'd sub nom., Porter County Chapter v.
NRC, 606 F.2d 1363 (D.C. Cir. 1979). In that case, the Commis-sion also rejected a claim that the Director erred in failing to permit petitioner to comment on, respond to, or cross-examine the views of the NRC Staff:
[The Director] is not required to accord pre-sumptive validity to every assertion of fact, irrespective of its degree of substantiation, or to convene an adjudicatory proceeding in order to determine whether an adjudicatory proceeding is warranted. Rather, his role at this prelimi-nary stage is to obtain and access the in-formation he believes necessary to make that de-termination. Provided he does not abuse his discretion, he is free to rely on a variety of sources of information, including staff analyses of generic issues, documents issued by other agencies, and the comments of the licensee on the factual allegations.
Id. at 432-33. Accord, Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), DD-86-4, 23 N.R.C.
211, 222 (1986) (citing Bailly).
F 4
The " substantial health and safety issues" test requires that a petitioner do more than merely state its disapproval of NRC policy or its belief that the accused utility may be found in violation of the Commission's regulations. Instead, a petitioner must advance evidence of violations of significance sufficient to pose a threat to public health and safety. Thus, in Limerick, supra, 22 N.R.C. at 166, the Director determined that the peti-tieners' showing of a trend of operator errors did not demon-strate a significant safety problem. Declining to issue a show cause order, the Director noted:
Isolated deficiencies in the licensee's program
- *
- do not necessarily undermine the program to such an extent as to give rise to a signifi-cant safety concern. What is required, when a violation is identified, is a careful assessment as to the significance of the violation, its cause, and the corrective action taken to pre-clude recurrence.
Id. at 161-62 (footnote omitted). Measured against this stan-dard, the Motion here must fail. Sunflower has failed to proffer evidence of even one violation of the Commission's regulations; certainly there is no evidence of a substantial health and safety issue to warrant the initiation of an enforcement proceeding l against Licensee.
l III. The Propriety of the Forum
- As a basis for enforcement action, Sunflower focuses on l
l emergency preparedness issues, including (a) the readiness of F
Geauga County reception / congregate care centers, (b) the legal effect of letters of agreement with school districts, (c) the effect of a recent union resolution on bus driver response in a Perry emergency, and (d) the capability of Ashtabula County Medi-cal Center to treat contaminated injured persons, and plans for evacuation of that facility. While Licensees below rebut each of Sunflower's substantive allegations, the Director need not reach the merits of those issues. Rather, there are independent proce-dural grounds for the denial of Sunflower's Motion.
It is beyond cavil that a section 2.206 petition cannot be used to challenge the Commission's regulations. See Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), DD-86-13, 24 N.R.C. (October 15, 1986) (slip op at 13), and cases cited there. But Sunflower's concern about the evacuation of Ashtabula County Medical Center, well outside the EPZ is a direct challenge to the adequacy of the size of the EPZ as set forth in the regulations. See 10 C.F.R. S 50.47(c)(2); 10 C.F.R. Part 50, Appendix E, 6 I n.l. The Director therefore cannot entertain that issue.
It is also " firmly established that ' parties must be pre-vented from using 10 C.F.R. 5 2.206 procedures as a vehicle for reconsideration of issues previously decided, or for avoiding an existing forum in which they more logically should be presented.'" General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Units 1 and 2), CLI-85-4, 21 N.R.C. 561, F
563 (1985), quoting Consolidated Edison Co. of New York (Indian Point, Units 1, 2 and 3), CLI-75-8, 2 N.R.C. 173, 177 (1975)
(other citations omitted). Thus, Sunflower's challenge here to the capabilities of the Ashtabula County Medical Center is barred by its litigation of the same claims before the Licensing Board below. See Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), LBP-85-35, 22 N.R.C. 514, 523-25, 564-66 (1985), aff'd, ALAB-841, 24 N.R.C. (July 25, 1986).
Similarly, Sunflower might have timely raised its other three issues before the Appeal Board or the Commission. The local school superintendent's letter which serves as a basis for Sunflower's challenge to the legality of letters of agreement is dated July 14, 1986 -- months before either the expiration of the time for Commission review of this case or the Commission's vote on the full power operating license -- and, indeed, even before the issuance of the Appeal Board's decision on emergency planning issues. Further, the " survey" of reception / congregate care cen-ters on which Sunflower relies could have been conducted at any time since the development of the plans. And, in any event, it was conducted this summer; the " Affidavit of Theresa M. Burling" on that subject (which is attached to the Motion) was executed on August 20, 1986 -- again, well before either the expiration of the time for Commission review of this case or the Commission's vote on the full power license for Perry. Even the union resolu-tion -- if it were to be raised at all -- ought to have been
F raised before the Commission prior to its vote on the full power license. Indeed, a similar union resolution (adopted one week after the resolution on which Sunflower relies) was cited as a basis for two section 2.206 petitions which were filed against Davis-Besse about two weeks before Sunflower filed its Motion.
These delays cannot be countenanced.
Sunflower knew -- or should have known -- that Commission action on Perry's full power license was imminent. Yet Sunflower did not seek to raise these issues in a timely manner before the Appeal Board or the Commission. It cannot in a dilatory fashion do so now before the Director. In short, the matters raised in Sunflower's Motion are not properly before the Director. Accord-ingly, the Motion should be summarily denied.
IV. Response To Sunflower s Allegations As discussed more fully below, all of the emergency planning issues raised in Sunflower's Motion lack basis in fact or law; certainly they do not demonstrate the existence of a substantial health or safety issue. Under applicable legal standards, Sun-flower has simply failed to establish any basis for the issuance of a show cause order or any other relief pursuant to 10 C.F.R.
$ 2.206. Accordingly, even should the Director reach the merits of Sunflower's allegations, Sunflower's Motion must be denied.
F.
- a. Geauga County Reception / Congregate Care Centers Sunflower first challenges the readiness of reception /
congregate care centers in Geauga County, relying upon a summer 1986 survey which a Mrs. Theresa Burling " helped to conduct."
Affidavit of Theresa M. Burling (" Burling Affidavit"), 1 2.3/
That survey purportedly determined "[t] hat 3 of the 7 * * *
[ school systems surveyed] do not have food, clothing, cots or bedding stored at the schools" and that some of the schools have not been contacted by appropriate authorities concerning the schools' use as reception / congregate care centers in a ra-diological emergency. It is also alleged that some 12,891 evacuees from the Perry EPZ "are proposed to be housed" in these centers. See Motion e.t 1-2; Burling Affidavit. These allega-tions are without merit.
While it is true that the ten reception / congregate care cen-ters in Geauga County have a combined capacity of 12,891 evacuees, those centers are not expected to accommodate that num-ber of people. Geauga County Plan,4/ Appendix 26; " Affidavit of Daniel D. Hulbert" ("Hulbert Affidavit"), 13. Of the t
3/ Ms. Burling is identified only as "an adult resident of Geauga County, Ohio and not under any disability." Burling Affi-davit, 1 1. There is no indication that Ms. Burling holds any official position in either the Geauga County school system or Geauga County government.
i l 4/ "Geauga County Radiological Emergency Response Plan" (March
! 1986).
.g.
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f'- [
approximately 90,000 persons in the Perry EPZ, only about 2,000 live in Geauga County. Thus, there is excess capacity in the Geauga County centers, as there is in the centers in Ashtabula and Lake Counties as well. Geauga County Plan, 6 A.4; Hulbert Affidavit, 13. For planning purposes, it has been assumed that up to 18,000 persons (20% of 90,000) may use a care center and perhaps need some public assistance with the " food, clothing, cots * * * [and] bedding" about which Sunflower is concerned.
This is consistent with past experience in a broad range of natu-ral and technological disasters. Hulbert Affidavit, 1 3. See FEMA Guidance on NUREG-0654/ FEMA-REP-1 Evaluation Criterion J.12 i
(December 24, 1985); Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 N.R.C. 1211, 1652-53 (1981); Duke Power Co. (Catawba Nuclear Station, Units 1 and 2),
LBP-84-37, 20 N.R.C. 933, 956 (1984); Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), LBP-85-31, 22 N.R.C.
- 410, 421 (1985). The ten primary centers and the 23 secondary centers in Lake, Ashtabula and Geauga Counties have a combined capacity of 36,272 persons -- more than FEMA's conservatively projected need. Hulbert Affidavit, 13.
I Sunflower's concerns about the availability of supplies such as food, clothing, cots and bedding are similarly lacking in basis. There is no requirement that these supplies be permanent-ly stored at the centers for use in the event of an emergency.
As FEMA noted in its observation of Geauga County's activities in the most recent exercise at Perry:
F The American Red Cross by agreement with the County will provide cots, blankets and other items * *
- at the care centers. The school food supply in addition to local purchases would be utilized for feeding purposes.
FEMA Report on 4/15/86 Exercise (July 14, 1986), at 42; Geauga County Plan, Appendix 6 (letter of agreement with Red Cross);
Hulbert Affidavit, 1 4. These provisions are reflected in the Standard Operating Procedure developed by the Red Cross for use in operation of Geauga County reception / congregate care centers.
In addition, the emergency public information brochure dissemi-nated annually throughout the EPZ reminds residents to pack extra clothing and bedding if they are asked to evacuate. Hulbert Af-fidavit, 1 4. These provisions are comparable to measures taken for other plants across the country, and demonstrate full compli-ance with the Commission's regulations. See, e.g., Catawba, supra, 20 N.R.C. at 954-55.
Sunflower's criticisms of contacts with school authorities are also far wide of the mark. Ms. Burling has failed to explain how she determined that no one in each of five school administra-tions had been contacted. Indeed, the Burling Affidavit does not even identify the five school systems which allegedly have :t been contacted.
In any event, arrangements have been made for the use of the designated schools as reception / congregate care centers in the event of a radiological emergency at Perry. All schools desig-nated as reception / congregate care centers have Standard F
Operating Procedures (" SOPS") for emergency operations. The SOP for Kent State University-Geauga Campus is signed by the Adminis-trator, and letters of agreement have been obtained for the use of Geauga County school facilities and equipment in the event of an emergency at Perry. This documentation is included in the Geauga County Plan. Geauga County Plan, Appendix 6; Hulbert Af-fidavit, 1 5. Further, two of the Geauga County centers --
Berkshire High School and West Geauga High Center -- have actual-ly been used in exercises. See FEMA Report on 11/28/84 Exercise (January 18, 1985), at 42. Finally, the Superintendent of the Geauga County Schools serves as a member of the County EOC staff, to direct school district operations in the event of a ra-diological emergency at Perry. Geauga County Plan, S B.3; Hulbert Affidavit, 1 5. These provisions belie Sunflower's im-plication that designated reception / care facilities might be unavailable in an emergency. Accordingly, Sunflower's concerns about reception / congregate care centers in Geauga County provide no basis for enforcement action against Licensees.
- b. Legal Effect of Letters of Agreement for School Resources Asserting that the Licensing Board below required Licensees to procure " written agreements or commitments of facilities, per-sonnel and equipment" from " nearby school districts," Sunflower next argues that "some or all of the commitment / agreement docu-ments on file" are " legally ineffective and/or nullities."
Motion at 2.
F While commitments for other ochool resources have in fact been obtained, the record is clear that the condition imposed by the Licensing Board was limited to "[1]etters of agreement * *
- for the supply of buses for evacuation purposes." See Cleveland Electric Illuminacing Co., LBP-85-35, 22 N.R.C. 514, 588 (1985).
Sunflower has similarly mischaracterized the July 14, 1986 letter of a local school superintendent. While Sunflower alleges that the July 14, 1986 letter " formally withdrew" a prior letter of commitment, a review of the July 14, 1986 letter (which is attached to Sunflower's Motion) indicates that it is limited to a statement of the superintendent's legal authority. This reading of the July 14, 1986 letter is confirmed by the superintendent's July 18, 1986 letter of clarification to CEI. There is no indi-cation whatsoever on the face of either letter that the school district would refuse to provide resources in the event of a ra-diological emergency; and Sunflower provides no evidence to sup-port such an implication. Indeed, the school district at issue has recently reaffirmed its willingness to assist in an emergen-cy. Hulbert Affidavit, V 6.
Sunflower's reservations about the legal effect of the vari-ous letters of agreement are also not well-taken. Such letters of agreement are not required to be legally enforceable. "Rath-er, the purpose of the agreement [s] is to reasonably determine and confirm the available resources and to assure that the pro-viders are capable of providing those resources." Philadelphia p- .
Electric Co. (Limerick Generating Station, Units 1 and 2),
LBP-85-14, 21 N.R.C. 1219, 1273 (1985). Thus, Sunflower's con-cerns about the enforceability of letters of agreement does not support the institution of "show cause" proceedings in this case.
- c. Effect of OAPSE Resolution on Bus Driver Response Relying upon a non-binding October 13, 1986 resolution adopted by the Ohio Association of Public School Employees
("OAPSE"), Sunflower contends that the emergency plans have been
" stripped" of bus drivers "most of whom would have a very person-al familiarity with evacuation routes." Motion at 2. Sunflower attributes too much significance to the OAPSE resolution.
The subject of human response to an emergency is one of the most litigated issues in NRC licensing hearings. NRC case law recognizes that, in actual emergencies, people conform to pro-social behavior patterns and assume their roles under the emer-gency plan, even when they have earlier asserted that they would not do so. See, e.g., Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70, 16 N.R.C. 756, 825 (1982) (characterizing as " unreliable" people's statements about their likely behavior under stress while being interviewed under unstressed conditions); Consolidated Edison Co. of New York (Indian Point, Unit No. 2), LBP-83-68, 18 N.R.C. 811, 958 (1983)
(in actual emergency, people behave in pro-social manner and in accord with roles under plan, despite earlier assertions to the contrary).
o.
. The historical record of emergency response in thousands of natural and technological disasters conclusively demonstrates that emergency workers (both paid and volunteer) perform their assigned functions even in the face of imminent life-threatening situations. See Indian Point, supra, 18 N.R.C. at 957-59 (relying on FEMA testimony that past experience demonsrates that emergency workers fulfill their duties); Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1), LBP-81-59, 14 N.R.C. 1211, 1487 (1981) (noting FEMA testimony that, based on previous disaster experience, emergency workers can be expected to " perform their emergency functions regardless of conflicting demands"); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), Docket No. 50-<00 OL, " Memorandum and Order (Ruling on Remaining Summary Disposition Motions)" (April 24, 1985).
Accord, Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2), DD-84-11, 19 N.R.C. 1108, 1114-18 (1984) (relying on NRC re-view of disaster literature, as well as FEMA and NRC experience that volunteer emergency workers willingly respond to actual emergencies involving toxic and hazardous materials).
Indeed, the Director of the Office of Inspection and En-forcement recently rejected a petition which sought suspension of a plant's operating license on the ground that emergency workers might refuse to respond in a radiological emergency. The Direc-tor there determined:
F There is a large body of empirical data based on actual behavior of people which shows that those who have definite organizational responsibil-ities in an emergency and who have a clear idea of their emergency roles do, in fact, perform their emergency assignments * * * . Research conducted by the Disaster Research Center of Ohio State University, based on a study of more than 100 disasters and over 6,000 interviews with personnel in emergency organizations who participated in a variety of emergency situa-tions, concluded that emergency role abandonment did not occur and personnel not reporting for duty were too few to adversely affect the func-tioning of emergency organizations. This re-search is also in accord with the experience of officials of the Federal Emergency Management Agency. *** [T]he preponderance of credible evidence establishes that volunteer emergency workers who are trained and clearly understand their emergency roles respond in a timely fashion to perform their assigned duties.
See Commonwealth Edison Co. (LaSalle Nuclear Station), Docket Nos. 50-373 and 50-374, Letter to D. Cassell and R. Guild, from Director, Office of Inspection and Enforcement (August 6, 1986),
Enclosure 1 at 8-9.
Evidence developed in the Perry operating license proceeding is to the same effect. See " Applicants' Motion For Summary Dis-position of Contention Q" (February 5, 1985), at 6-8, and attached " Affidavit of Dennis S. Mileti on Contention Q," 11 2-15 (bus drivers who know of their emergency roles will respond in emergencies, even when they have earlier asserted they would not do so). Accord, "NRC Staff Response To Applicant's Motions For Summary Disposition of Emergency Planning Issues" (February 25, 1985), at 24-26.
e As the Director of Nuclear Reactor Regulation has noted, training is one measure which can help to assure the participa-tion and effectiveness of emergency workers. Fermi, supra, 19 N.R.C. at 1116. To that end, a radiological emergency prepared-ness program has been provided for bus drivers and transportation supervisors with roles in the Perry emergency plans. This pro-gram includes lesson plans, student hand-outs, and audio-visual aids, and covers topics such as plan overview, bus drivers' role in emergency response, basic radiation principles (including the use of dosimetry), and radiation health effects. The program compares favorably with those offered to bus drivers at other i plants across the country. Hulbert Affidavit, 1 7. The local bus drivers' continued participation in this ongoing training program is the best evidence of their support for Perry emergency planning. Bus driver training commenced in 1984, with initial training for personnel in all school districts in Lake, Ashtabula, and Geauga Counties with roles in emergency response completed in 1985. Annual training is now in progress, and is expected to be completed in the first quarter of 1987. Hulbert Affidavit, V 8. As in Fermi, this training program provides fur-ther accurance of bus driver response in the event of an emergen-cy. Compare Fermi, supra, 19 N.R.C. at 1117.
In short, based on historical experience in thousands of natural and technological disasters around the world, there is reasonable assurance that local bus drivers would perform their t.
assigned functions in the event of an emergency at Perry. The special radiological emergency preparedness training program re-
~
inforces this assurance. Accordingly, the OAPSE resolution does not warrant enforcement action. -
- d. Ashtabula County Medical Center Finally, Sunflower charges that "[t]he equipment, personnel and facilities at Ashtabula County Medical Center" would not be adequate for the treatment of radiological victims in the event of an accident at Perry. Motion at 2-3. However, as discussed above, Sunflower litigated this issue exhaustively in the Ferry operating license hearings -- and lost. See generally Perry, supra, 22 N.R.C. 514, 523-25, 564-66 (1985). Nothing in the Mo-tion casts any doubt on the Licensing Board's determination.
The Licensing Board placed great reliance on the testimony of Dr. Roger Linnemann.5/ Based on his personal visits to the Ashtabula County Medical Center ("ACMC"), Dr. Linnemann has de-termined that, like the other local hospitals listed in the plans, ACMC has adequate equipment, facilities, and supplies for the treatment of radiological accident victims. These include:
5/ Dr. Linnemann is Vice Chairman and Chief Medical Officer of Radiation Management Consultants ("RMC"). He also serves as Clinical Associate Professor of Radiology at the University of Pennsylvania School of Medicine, and as Visiting Associate Pro-fessor of Clinical Radiology at Northwestern University Medical School. See " Applicants' Direct Testimony of Roger E. Linnemann on Issue No. 1 -- Contention P," ff. Tr. 2980 ("Linnemann"), at 1-2.
p a radiation emergency area designated as part of the emergency room; survey instrumentation for detection of contamination; dosimetry to record doses to hospital personnel; floor coverings; coveralls for attendant personnel; and other supplies. Tr.
2981-84, 3007, 3016, 3025 (Linnemann).
~
Dr. Linnemann further testified that -- as of Spring 1985 --
ACMC staff had received 16 hours1.851852e-4 days <br />0.00444 hours <br />2.645503e-5 weeks <br />6.088e-6 months <br /> of training provided by the State, as well as an additional 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> provided by RMC. The topics of the training included the biological effects of ionizing radiation, personnel protective actions, use of emergen-cy room equipment and supplies for the contaminated patient, con-tamination control techniques, and decontamination and bioassay procedures. Linnemann at 5; Tr. 3010-13 (Linnemann); Hulbert Af-fidavit, 1 9. Indeed, ACMC is presently developing an inhouse radiological emergency management training capability; and addi-tional training for ACMC emergency room personnel, to be con-ducted by RMC, is scheduled for February 19 and 20, 1987.
Hulbert Affidavit, 1 9.
ACMC staff demonstrated their competence and the adequacy of their facilities and equipment in the November 1984 exercise at Perry. FEMA there observed:
The Emergency Room staff were equipped with and demonstrated effective training in the use of gelger counter survey meters, TLDs and self reading dosimeters. *** The staff * *
- ac-cepted the incoming injured and contaminated pa-tient and went through the procedures for moni-toring, handling, decontamination and treatment of the patient. Additionally they demonstrated k
r t
procedures for hospital staff Emergency room dress, the issuance of dosimetry * * * , [and]
the disposal of contaminated clothing and equip-ment and were aware of their responsibilities.
FEMA Report on 11/28/84 Exercise (January 18, 1985), at 58.
Accord, Id. at 12.
FEMA recently reaffirmed the adequacy of ACMC, in the April 1986 Perry exercise:
[T]he hospital has the necessary equipment to adequately treat contaminated patients * * *
[ including equipment acquired since the November 1984 exercise, such as] waste water collection containers, faucet hoses, and a whole-body wash tray. Other improvements to the facility * *
- include non-absorbent paint in the treatment room, grounded faucets, grounded electrical out-lets in the room, and increased lighting in the hallway leading to the treatment room.
FEMA Report on 4/15/86 Exercise (July 14, 1986), at 38. Accord, Id. at 7-8.
Sunflower's challenge to ACMC's accreditation from the Joint Commission on Accreditation of Hospitals ("JCAH") also has no basis in fact. Motion at 2-3. ACMC continues to be JCAH-accredited, which requires comprehensive procedures for the emer-gency management of radiological accident victims. Hulbert Affi-davit, 1 9. See FEMA Guidance Memorandum MS-1 (November 13, 1986), at 2 (JCAH accreditation assures capability to treat con-l taminated injured persons). Further, as the Perry Licensing l
Board noted, ACMC holds an NRC license which requires that it have the capability to treat contaminated injured persons.
l Perry, supra, 22 N.R.C. at 524-25, 565. Sunflower's criticisms of ACMC are simply unsupportable.
I i !
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F, Sunflower further contends that there is " inadequate prepa-ration for ambulance transport" of contaminated injured patients from ACMC (allegedly "just beyond the ten mile EPZ")s/ to other medical facilities in the event that evacuation of ACMC should be necessary. Motion at 3. The short answer to this argument, as discussed above, is that it constitutes a direct challenge to the Commission's regulations, which provide for a 10-mile EPZ. See 10 C.F.R. $ 50.47(c)(2) and 10 C.F.R. Part 50, Appendix E, $I n.1. Planning for the evacuation of hospitals located outside the EPZ is not lequired. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-85-12, 21 N.R.C. 644, 829 (1985). But, in any event, ambulance personnel have demonstrated the capability to transport contaminated injured persons. In its observation of Ashtabula County activities in the November 1984 exercise, FEMA noted with approval:
The ambulance crew was completely suited in pro-tective clothing and they used their instruments and dosimetry equipment correctly. Once the pa-tient had been given first aid he was placed on the ambulance cot, wrapped in disposable blan-kets and removed from the area. The ambulance crew demonstrated prior training in the area of handling contaminated patients.
FEMA Report on 11/28/84 Exercise (January 18, 1985), at 59.
Accord, id. at 12. Thus Sunflower'c concerns about ambulance ca-pabilities are as baseless as its concerns about ACMC. Both g/ In fact, ACMC is located approximately 18.5 miles from the Perry plant.
l
A issues lack merit and clearly do not support the institut$on of the "show cause" proceedings sought by Sunflower.
V. Conclusion Sunflower has attempted to use section 2.206 procedures to reconsider issues decided by the Licensing Board, to raise issues before the Director that (if raised at all) should have been raised before the Appeal Board or the Commission, and to chal-lenge the Commission's regulations. Moreover, none of the four identified concerns presents a significant health and safety issue.2/
Indeed, the Hulbert Affidavit here and the evidentiary record developed before the Licensing Board compel the conclusion that Perry emergency planning meets or exceeds all applicable emergency planning regulations, and is adequate to protect public health and safety. In a September 5, 1986 meeting, the Director of FEMA's Technological Hazards Division advised the Commission that emergency preparedness for the Perry area "far exceeds the 2/ Even if a potentially significant issue had been identified, enforcement action would be taken only after (1) the Commission found that there was no reasonable assurance that adequate pro-tective measures could be taken in an emergency, and (2) four months elapsed without corrective action. See 10 C.F.R.
S 50.54(s)(2)(ii). Plainly, the facts of this case provide no basis for such a Commission finding.
basic requirements that the NRC and FEMA have jointly laid down."
Tr. 81. Accordingly, Sunflower's Petition must be denied.
Respectfully submitted, h O / W L an>>
Jay E. 'Silberg'r TFCV d Delissa A. Ridgway SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000 Counsel for Licensees Dated: January 20, 1987
)
t DXETU UNITED STATES OF AMERICA ' n ,NH NUCLEAR REGULATORY COMMISSION Before The Director, Office Of Inspection And Enfor81mdn23 A11 :34
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A" 00CEW L. i"11f f In the Matter of ) BL At:Cu
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CLEVELAND. ELECTRIC ) Docket No. 50-440 ILLUMINATING CO., ET AL. ) (10 C.F.R. $ 2.206)
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(Perry Nuclear Power Plant, )
Unit 1) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensees' Response To
$ 2.206 Petition of Sunflower Alliance" were served this 20th day of January, 1987, by deposit in the U.S. mail, first class, post-age prepaid, to all those listed on the attached Service List.
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Delisna'A. Kidgw'akf ()
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UNITED STATES OF AM$RICA NUCLEAR REGULATORY COMMISSION Before The Director, Office Of Inspection And Enforcement In the Matter of )
)
CLEVELAND ELECTRIC ) Docket No. 50-440 ILLUMINATING CO., ET AL. ) (10 C.F.R. $ 2.206)
)
(Perry Nuclear Power Plant, )
Unit 1) )
SERVICE LIST James Taylor, Director Office of Inspection and Enforcement Nuclear Regulatory Commission Washington, D.C. 20555 Terry J. Lodge, Esq.
618 N. Michigan Street Suite 105 Toledo, Ohio 43624 James Lieberman, Esq.
Office of General Counsel Nuclear Regulatory Commission Washington, D.C. 20555 Richard K. Hoefling, Esq.
l Office of General Counsel Nuclear Regulatory Commission Washington, D.C. 20555 Docketing and Service Branch Office of the Secretary Nuclear Regulatory Commission Washington, D.C. 20555 l
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