ML20023B732
| ML20023B732 | |
| Person / Time | |
|---|---|
| Site: | Fermi  |
| Issue date: | 05/04/1983 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| NUDOCS 8305060188 | |
| Download: ML20023B732 (78) | |
Text
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ORIGINAL
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O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION o '
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Iti the matter of:
DETROIT EDISON COMPANY Docket No. 50-341 (Enrico Fermi Atomic Power Plant, Unit 2)
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i-A Location:
Bdthesda, Md.
Pages:
-1
- 76 Date:
May 4, 1983
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- AYLoE ASSOCIATES i
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UNITED STATES OF AMERICA O
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2 NUCLEAR REGULATORY COMMISSION 3
BEFORE THE ATOMIC SAFETY & LICENSING APPEAL 4
BOARD 5
- - - - - - - - - - - - - - - - - - - -x 0
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In the matter of:
7 DETROIT EDISON COMPANY
- Docket No. 50-341 8
(Enrico Fermi Atomic Power j
Plant, Unit 2) 9 1
- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x 10 11 Fifth Floor Hearing Room East-West Towers 12 4350 East-West Highway Bethesda, Maryland Wednesday, May 4, 1983 15 Oral Argument in the above-entitled case 3
10 convened a t 2 : 00 p.m., pursuant to notice.
0 17 o
BEFORE:
1 I8 i
STEPHEN F.
EILPERIN, Chairman, Atomic Safety & Licensing Appeal Board.
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THOMAS S. MOORE, Member, I
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r Atomic Safety & Licensing Appeal Board.
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21 REGINALD GOTCHY, Member, Atomic Safety & Licensing Appeal Board.
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.1 APPEARANCES:
2 On behalf of the Licensee:
3 Harry H. Voigt, Esq.
4 LeBoeuf, Lamb, Leiby & MacRae 1333 New Hampshire, N.W.
5 Washington, D.C.
20036 6
-and-7 Peter A. Marquardt, Esq.
Bruce Maters, Esq.
8 Legal Department Detroit Edison 9
2000 Second Avenue Detroit, Michigan 48226 10 11 On behalf of the NRC Staff:
12 Colleen P. Woodhead, Esq.
Office of the Executive Legal Director
(~N 13 U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 14 h
15 On behalf of Intervenor Citizens for Employment 5
& Energy:
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John R. Minock, Esq.
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17 1500 Buhl Building i
i Detroit, Michigan 48226 l
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Oral Argument by Mr. Minock, on-behalf of Intervenor 4
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Oral ~ Argument by Mr. Voigt, on behalf of Licensee 36 i
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6 Oral Argument by Ms. Woodhead, i
on behalf of the NRC Staff-51 7
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Rebuttal Argument by Mr. Minock, 66 on behalf of Intervenor i
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1 PROCEEDINGS
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2 JUDGE EILPERIN:
Good afternoon, ladies and 3
gentlemen.
My name is Stephen Eilperin. I am cnairman of 4
this Appeal Board. With me today on my left is Dr. Reginalc 5
Gotchy, and on my right Mr. Thomas Moore, the other members 6
of the board.
7 he are here to hear argument on Intervenors a
Citizens for Employment and Energy's appeal from the 9
Licensing Board's October 29, 1982, initial decision.
45 10 minutes has been allotted to each side for argument.
11 Ana with that, I think I would like counsel to 12 introduce themselves for the record, beginning with Ms.
13 Woodhead.
14 MS. WOODdEAD:
Good afternoon, Appeal Board O
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15 members.
I am Coleen P.
Woodhead, counsel for the 16 Regulatory Commission staff in this prdbeeding.
17 JUDGE EILPERIN:
Thank you, Ms. Woodhead.
18 MR. VOIGT:
My name is Harry H.
Voigt. I 19 represent the applicants in this proceeding.
I am with the 20 law firm of LeBoeuf, Lamb, Leiby and MacRae, Washington, 21 D.C.
Appearing with me today are my associates R. Charles 22 Landgraf and Peter A.
Marquardt, and Bruce Maters, who are 23 attorneys with the Detroit Edison Company in Detroit.
24 JUDGE EILPERIN:
Thank you, Mr. Voigt.
25 Mr. Minock.
TAYLOE ASSO CIA T ES 16 2 5 I Str e e t, N. W. - S uit e 10 0 4 W ashington, D.C. 20006 (202) 293-3950
ORAL ARGUMENT ON BEHALF OF INTERVENOR 4
1 MR. MINOCK:
I am John R.
Minock, a lawyer for f%
(_)
2 the Intervenors.
I am a solo practitioner in Detroit.
3 JUDGE EILPERIN:
Thank you, Mr. Minock.
4 Am I correct that the staff and the applicants 5
nave agreed upon a division of time, 25 minutes for the 6
applicants and 20 minutes for the staff?
7 MR. VOIGr:
That is correct.
8 JUDGE EILPERIN:
Mr. MinocK, you can begin your
]
9 argument if you lixe.
You might want to tell us how much 10 time, if any, you wish to reserve for rebuttal.
11 MR. MINOCK: That was the first question I had of 12 the Board.
I would like to reserve-some time if I coula. I 13 would like to pace that as I go.
I do not anticipate I am 14 going to use the whole 45 minutes today. If you will please 1
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15 excuse me, I may seem to be spending a lot of time speaking 16 from notes. I am a criminal defense lawyer and a solo 17 practitioner.
I aon't normally nandle civil or id administrative hearings, and I may not be as quick ou my i
19 feer or as glib as persons who make a living dealing with i
zu regulations that are involved here do -- are able to be.
21 Consequently, I am doing something that I don't 22 want to do when arguing to an appellate court; that is, 23 rely on my notes.
And on the otner hand, I am not going to 24 waste your time by rehashing my brief.
25 I am in receipt of the Order in which this
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TAYLDE ASSO CI A T ES i
162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
5 1
Appeal Board instructed us to address the significance of O(_,/
2 tne lack of a county plan, and I will attempt to do that 3
within the confines, I think, of what the record here 4
presents. I am -- unless otherwise directed by the Board, I 5
am not really ready to aadress the larger issue of who can 6
present a plan, an emergency evacuation plan for approval 7
if the State or local doesn't.
That is an issue I e
understand tnat the Commission is wrestling with now.
I do 9
not think it is presented on this record yet.
10 It seems to me there are two issues here, and I 11 think the case really boils down to one of procedural due 12 process ano fairness.
It seems to me the primary question 13 before the Board is the rignt of Intervenors to litigate 14 the adequacy of emergency plans.
.s 1)
Second ana related issue that is based upon the 16 evidence that is on the record of this case is the 17 Licensing board error as far as the findings regarding la evacuation of Stony Pointe are concerned.
19 As I pointed out, the County has not yet 20 approveu a plan.
That is inoicated oy their position to 21 intervene, whicn is in the record of this case, or at least 22 I think could easily be incorporated by reference.
It has 23 been before the Appeal Board once in another decision.
24 JUDGE SILPERIN:
There is a plan that has been 25 drawn up.
There is a stack of paper with a name on it. It O(,)
TAYLOE ASSO CIA TES 162 5 1 Street, N. W. - Suite 100 4 W ashington, D.C. 20006 (202) 293-3950
i 6
1 says " Monroe County Plan," or words to that effect.
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2 MR. MINOCK:
I could not get a Monroe County 3
official to touch that.
4 JUDGE EILPERIN:
Why don't you, if you would, i
5 explain how that draft plan was formulated.
6 MR. MINOCK:
You have to understand I came into 7
the case I believe in late August or early September 1982, e
long after tne adjuaicatory hearings and all of the 9
preliminary Conferences ans orders Were over with.
I am 10 unfamiliar with the history of tne development of that plan 11 except sketchily.
1 12 I have been informed that a private consultant 13 prepared the plan, the consulting firm left or was O
discharged from preparation of the plan, and the County 14 ss 15 somehow picked it up after that and worked together with 16 FEMA and the State Police.
17 JUDGE EILPERIN:
Is any of this a part of the 18 record in tnis case?
19 MR. MINOCK:
As far as I am aware, no.
4 20 JUDGE EILPERIN:
It is your unoerstanding that 21 the plan was drafted by a consulting firm and then Monroe 22 County did in fact work with FEMA on it?
23 MR. MINOCK: The involvement with FEMA is unclear 24 to me, not on the record here.
25 JUDGE EILPERIN: Who is Monroe County? Who are we TAYLDE ASSO CIA T ES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950 i
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2 MR. MINOCK: That is another question. I know Mr.
3 Eckert, who is the director of the County Office of Civil 4
Preparedness, was the one who worked with FEMA.
- However, 5
for purposes of this argument, under State law I believe 6
the chairman of the County Board or the County Board of 7
Commissioners themselves are the ones who have tne final e
responsibility for the County annexes to the emergency 9
plan.
10 JUDGE EILPERIN:
What Michigan law is that?
11 MR. MINOCK: Michigan Emergency Preparedness Act, l
12 Michigan Compiled Laws 30.403 and following, especially 409 l
1; and 410.
14 JUDGE EILPERIN:
That gives hte approval rights
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15 to the Boaro of County Commissioners or to the chairman?
J 16 MR. MINOCK: Either or. I suppose the Board could 17 approve a chairperson signing off on it.
18 JUDGE EILPERIN:
Is that State law peculiar to 19 nuclear power plants?
20 MR. MINOCK:
No. That is part of general 21 Emergency Preparedness Act.
22 My point is that at least on this record the 23 petition to intervene with the County filed essentially 24 says, we cannot implement this plan; and that should be an 25 indication to the board, this Board, that there is not a i
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TAYLDE ASSO CI A T ES 1625 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
8 1
plan.
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2 JUDGE EILPERIN:
There was a FEMA exercise of a 3
plan in this case.
4 MR. MINOCK:
That's right. There was a FEMA 5
exercise of a plan.
The plan by that point, I should add, 6
had been submitted to FEMA for informal review, I believe 7
it Was submitted in November of
'81.
8 JUDGE MOORE:
And the County participated?
9 MR. MINOCK:
In the drill, yes.
10 JUDGE EILPERIN:
Who submitted to FEMA for 11 informal review?
12 MR. MINOCK:
The State Police.
13
, JUDGE EILPERIN:
Is there a letter in the record 14 that reflects tnat?
- \\-
15 MR. MINOCK:
I am not sure where in the record 16 that appears.
17 JUDGE MOORE:
Is the FEMA critique of that drill 18 in tne record? Has there been a FEMA critique in the record 19 of the drill?
20 MR. MINOCK:
I believe there has. I do not know 21 if it is a part of the record.
22 JUDGE EILPERIN:
How did the State Police get a 23 copy of the Monroe County plan for submittal to FEMA?
24 MR. MINOCK:
The Emergency Preparedness Act in 25 Michigan Jivides responsibilities between the State and
(_j TAYLOE ASSO CI A T ES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
9 1
local level, and the State Police are the ones, the
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2 Emergency Services Division of the State Police have been 3
delegated the authority by the Governor to take care of the 4
State end of the plan.
Ana I assume the State ultimately 5
has tne responsiblity of forwarding that to the appropriate 6
Federal agencies.
7 JUDGE EILPERIN: You are not aware of anything in a
tne record which indicates that some official from Monroe 9
County authorized the State Police to forward the plan to 10 FEMA, the draft plan to FEMA?
11 MR. MINOCK: I am not aware of anything. I do not 12 have documents in the files that I have that indicates 13
- that, 14 JUDGE EILPERIN:
Wouldn't Monroe County's f-
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15 participation in the exercise of the plan indicate some 16 acquiescence in it?
17 MR. MINOCK:
I suppose it would. The point is la that -- ano it is something I am going to touch on in a bit l
19
-- the Licensing Board and this Board essentially have 20 decided tnat the County was late.
My position is that the l
l 21 Intervenors are in a different posture and we weren't late.
22 J0DGE EILPERIN:
As to what issues?
23 MR. MINOCK:
As to our earlier motion to reopen 24 the record as well as to the question of snether there was 25 a plan that should have been litigated earlier than this.
1
( )
TAYLOE ASSO CI A T ES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
10 1
Perhaps if I move on with my argument, I will get to where
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2 I think your questions are headed.
3 JUDGE EILPERIN:
I am interested in how the plan 4
was developed and what form the County's disapproval and 5
nonapproval of the plan took.
6 MR. MINOCK: Once I give you an overview of where 7
I am going, I intend later in my argument to give a a
chronology that I think is supported by the record.
9 Now, if this Board is not satisfied that the 10 position to intervene I think indicates that the County has 11 not approved and has withdrawn its acquiescence in the 12 plan, that tne Boara should consider taking additional 13 evidence on that point.
la I think the staff probably has a responsibility
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15 to inform you of the recent meetings between FEMA and s
16 representatives of the State Police and the County on that.
17 Tnere was a meeting in early April of this la year, which is not the sucject of this record, obviously.
19 The County memorialized that in a letter to the State 20 Police saying that we will, if you consider changing 21 certain aspects of the State end of the plan, we will begin 22 the process of rewriting all of the local annexes.
23 JUDGE EILPERIN:
Were you invitec to that 24 meeting?
25 MR. MINOCK:
No. It was strictly between the s(j T A YL OE ASSO CIA TES 162 5 I Stre et, N. W. - Suite 100 4 w ashington, D.C. 20006 (202) 293-3950
11 1
State Police and FEMA and I believe the County director of 2
Civil Preparedness and the chair of the County Board.
3 JUDGE EILPERIN:
How did you find out what the 4
discussion was?
5 MR. MINOCK: I received a copy of the letter from 6
a citizen of Monroe County, who got it from the Office 7
of Civil Preparedness.
I 8
JUDGE GOTCHY:
NRC staff was not there?
9 MR. MINOCK:
As far as I know. It was f.#[
10 represented as a FEMA work.
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TAYLOE ASSO CI A T ES 162 5 I Street, N. W. - Suite 10 0 4 i
W ashington, D.C. 20006 (202) 293-3950 L
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i As far as the significance of the plan, as far as
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2 the other issues go, first of.all, you obviously cannot 3
litigate a plan that's not available.
As a consequence, 4
I think the CEE motion to reopen should not have been denied.
I 5
We have been caught, I think, in a procedural Catch-22; 6
that is, there was an original Contention 8 filed back in 7
1978 which the licensing board struck down and said was --
8 essentially, they said it was not specific enough or there
- 9 was not a basis for it.
I will touch on that in a moment, 10 but we tried to raise the issue in the very beginning and 11 were shut down, and then we tried to raise the issue again 12 after the county withdrew from the planning process and-we 13 were rejected there again.
4 14 MR. GOTCHY:
At the time that Contention 8 was 4
5 15 framed, were there any emergency plans available, be they
$j 16 county, state or --
l 17 MR. MINOCK:
No, that was exactly the next point I
18 I was going to get to.
The licensing board took that i
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19 Contention 8 which admittedly was very broad -- it was broad E
M on one hand and specific in a couple of other senses, and they
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21 struck the first sentence.
The first sentence -- perhaps 7
l 22 I should read it.
i 23 JUDGE EILPERIN:
The first sentence dealt with 24 emergency planning up to a radius of about 100 miles. Isn't
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2 that plainly outside the Commission's regulations?
The u
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Commission's regulations say there is supposed to be an
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2 emergency planning zone of about 10 miles, and the precise 3
dimensions of the zone are to take into consideration matters 4
of geography, matters of local jurisdiction, things such 5
as that.
6 MR. MINOCK:
The Commission rules vere undergoing 7
a change.
There was in the requirement of LPZ a short 8
radius at that time.
Secondly, this was right around the 9
time.of TMI-2.
I think it was actually a little bit before i
10 the accident there, and the Commission changed to a 10/50.
i 11 JUDGE EILPERIN:
Aren't we supposed to apply the
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12 law in effect at the time we render our decision?
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Yes.
I know the licensing board does
.D 14 not have to do the Intervenor's work and write their conten-h 15 tions for them and beat an otherwise inadmissible contention 2
h 16 into admissible shape, but what the licensing board was 8
17 twofold.
The first sentence had two parts to it.
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18 The first part was, the plans have not been 5
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And then the second part involved how far the
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' plans would have to cover.
The licensing board instead i
i 21 struck the whole first sentence.
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l 22 It seems to me that even if the 100-mile radius 23 striking was correct, the striking of the lack of that portion 24 of the contention, which I think was specific enough for j
2 litigation -- that was, the plans have not been adequately
BW2,sy3 I
developed and they hadn't at that point.
' 2 JUDGE EILPERIN:
It says, "not been adequately 3
developed with respect to an accident which could require 4
immediate evacuation of entire towns within the 100-mile 5
radius of the Enrico Fermi plant, including Detroit."
That 6
can be read as saying -- as tying the two thoughts together, 7
and the plan is deficient in the sense that it does not make 8
provision for evacuation up through 100 miles.
9 MR. MINOCK:
Even so, that would certainly include 10 the LPZ radius, or the 10/50 radii.
'll JUDGE EILPERIN: Are you familiar with our 12 Catawba decision?
I 13 MR. MINOCK:
I read it a few months ago in pre-
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14 paring for this, but I don't have it at my fingertips.
Was 15 that the institutionality decision?
l 16 JUDGE EILPERIN:
Yes, it's essentially a decision 1
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17 that says if there is not an emergency plan available, 1
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18 obviously Intervenor cannot, in formulating its contentions, 19 contest the adequacy of the plan at that time.
At the time
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f 20 the plan does become available, that is the occasion for
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21 submitting the contention as to it.
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f 22 MR. MINOCK:
I suppose that's right, but what 23 about the circumstance where it's arguable whether the plan i
24 is available, even by the time of the adjudicatory hearing?
l 25 If it's not available at the time of the adjudicatory hearing, i
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it seems to me that a contention that says there is no plan 2
is valid and it wins on its face.
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JUDGE EILPERIN: When was the adjudicatory hearing 4
in this case?
5 MR. MINOCK:
Early March, 1982.
6 JUDGE EILPERIN:
Early March of 1982.
Okay.
And 7
when was the document that is called Monroe County Emergency 8
Plan -- when was that document available?
Before or after 9
that?
10 MR. MINOCK:
Edison says it was available in 11 April of 1982.
I don't believe the Intervenors got it 12 until after I was already in the case.
Why they didn't get 13 it until then, I don't know.
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14 JUDGE EILPERIN:' But it'did 5xist.
h 15 MR. MINOCK:
It existed prior to that and was
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16 submitted to FEMA for informal review in December of 1981.
17 JUDGE EILPERIN: And was the subject of an exercise i
18 in February of 1982.
And doesn't your argument depend on i
19
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whether that draft plan, or however one wants to characterize E
l 20 it, whether that's essentially a plan that the Commission
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21 can take cognizance of?
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22 MR. MINOCK:
No, that's one argument.
It's one 23 issue, that's correct, but it's not the only one, and from 24 our perspective I don't think it's the strongest one.
We 25 have got an unusual time sequence here where the plans are
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1 still in limbo now and it's one year after the adjudicatory
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2 hearing is completed. That's no fault of the Intervenors.
3 Even if you consider the plan to be institutionally available 4
as of November 1981 -- and I question that because I'm not 5
I think the licensing board in Duke Power, which was reversed 6
by the appeal board there, had a valid point, and that is 7
when in the planning process do you have to frame your con-8 tentions so that they are not just merely anticipatory or 9
speculative.
10 JUDGE EILPERIN:
But if something is the subject 11 of an exercise a month before there's a hearing on emergency 12 planning, one could reasonably infer that -- what people are
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13 exercising and what some people may be exercised about is a
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15 MR. MINOCK:
Isn't the purpose of the exercise
$j 16 to test the plan?
i 17 MR. EILPERIN:
That's right. All I'm saying --
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18 the purpose to exercise the plan as it is, if something was 19 being tested in February before the hearing, obviously, there 8
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is a plan that's being tested.
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21 MR. MINOCK:
Obviously, there is a plan.
The i
f 22 question is if that is the one that's right for litigation.
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23 JUDGE EILPERIN:
What I'm trying to get at from 24 you is at what point did Monroe County express its disapproval, I
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Mi how was its disapproval expressed, why was it such a willing i
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1 participant in the exercise if, in fact, it was not really
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2 going along with its own plan with a question such as that?
3 MR. MINOCK:
I will address that, and I intend 4
at this point in my argument to go on with sort of a scenario 5
of how Monroe County's intervention petition developed.
6 I don't think, though, that's the only issue to 7
hone in on as far as the Intervenors are concerned.
You have 8
to remember I don't think, first of all, institutional 9
availability, November of 1981, is the key question.
u)
Secondly, even if the county was dragging its 11 feet, the Intervenors were not.
Any negligence on the 12 county's part by not raising certain issues or coming to 13 certain conclusions are not, I don't think, can be imputed to 14 us, and I will explain why.
5 15 The plan was submitted to FEMA in November 1981 by 4*
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the Michigan State Police. As I said, it had not been approved 8
17 by the county under state law.
It was just informal review i
2 un at that time.
The licensing board found there was a completed i
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up version.
In their opinion, the paragraph I cited in my brief I
l 20 made it sound as though there were -- the plan had been
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21 submitted for formal review.
5 22 JUDGE EILPERIN:
What does the state law say is i
2 23 the county approval process?
24 MR. MINOCK:
It doesn't.
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25 JUDGE EILPERIN:
It doesn't?
l
BW2,sy7 18 1
MR. MINOCK:
It gives the responsibility for 2
development and approval of those plans to the county.
3 JUDGE EILPERIN:
It says who should approve but 4
it doesn't specify what the nature of the approval is?
5 MR. MINOCK:
Not that I'm aware of.
There-may be 4
6 state regulations on-that point but I'm uncertain because 7
I have been -- somebody made a reference to that.
A repre-8 sentative of Wayne County, when I was inquiring of them, and 9
I have never found that the county -- the Chairman of the 10 County Board can sign off as well as the board.
11 JUDGE GOIGY:
Has anyone ever explained why it 12 took half a year for that submittal to get to FEMA?
13 MR. MINOCK:
No.
At least not to my satisfaction.
14 We filed a Freedom of Information request with the state 15 police to try to sort that out, and uncovered some other 2
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16 interesting things but nothing with regard to the reason for 0
5 17 that delay.
1 18 As you said, the drill was held in-February 1982.
i 19 The public hearing was held on the night of a blizzard when 8
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20 the state police told everybody to stay home and issued a l
E, 21 Red Alert.
Mr. Eckert from the county, in the transcript 1
5 fc 22 of the hearings that the Applicants gave you as an appendix 23 to their brief -- not now, but earlier in the case -- said 24 this is silly, there's nobody from the public that can get 25 here; why don't we adjourn the hearing, and the state police l
BW2,sy8 19 1
said no, we're going to go ahead with it.
f(,)
2 JUDGE EILPERIN:
What's the significance of the 3
public hearing?
Is there any sort of a requirement for 4
public hearing prior to the county's approval?
5 MR. MINOCK:
I think there is -- there has to be, 6
under the regulations or FEMA's, an opportunity for the 7
public to comment on the drill. At any rate, let me move on.
8 I don't want to spend too long sounding like I'm 9
talking for the county, because I'm not.
The county took 10 public criticisms at hearings in April and June of 1982, 11 which you have referred to Mr. Denton's office.
Initially, 12 they were rebuffed by FEMA and the Michigan State Police when 13 they said, we want you to take these things into consideration
)
14 in the record of the licensing hearing, and FEMA said no.
15 That's closed, we've already had the public hearing; that 1
{
16 was the blizzard hearing.
f 17 Ironically, there was a staff witness who testified 1
i l
18 at the licensing hearings who, on the night of the Red Alert, 5a g
said they were out cruising around following the snowplows 19 a
t g
20 to see whether the roads were clear or not.
I found that to l!
5 21 be kind of curious because they could have been ticketed by l
22 the state police or local police, if they had been on their i
23 toes.
24 At any rate, the county filed a petition to inter-25 vene after being rebuffed by FEMA and the state police.
They
BW2,sy9 20 1
filed the petition to intervene that said we cannot implement Ak,)
2 certain portions of the plan.
It's been brought to our s
3 attention through the public output that we got since the 4
blizzard hearing and the other two hearings, that the other 5
agencies were hesitant to recognize that, you know, there are 6
concerns that we're not sure we can cover, and we think 7
we ought to be allowed to raise these here and now because 8
we're getting a deaf ear elsewhere.
9 At that point, as soon as the county formulated 10 that strategy, CEE filed an answer in support of the county's 11 petition and a motion to reopen the record based on that 12 new information that the county was now withdrawing from f) the planning process and saying we cannot implement the plan 13 s_/
14 as it is written.
15 Tp3 JUDGE EILPERIN:
Had any of the matters that the 2
l 16 county brought up in terms of its inability to carry out the O
l 17 plan -- had any of those matters previously been evaluated i
{
18 by FEMA?
i i
19 MR. MINOCK:
Not to my knowledge.
And certainly, E
C 20 l-not before the adjudicatory hearing.
I think that's why 1
5 21 CEE is in a differential procedural posture than the county.
3 l
22 The licensing board and this board essentially said the 23 county dragged its feet too long and should have been on 24 top of these flaws before that.
Even if the plan was insti-
')
25
'm tutionally available to CEE in November of 1981 when it went t
-_-_m
-,. _ _ _ - - _ -, - ~, - _ - -.,.
BW3,syl0 21 I
to FEMA, it seems to me that we could assume if the county 2
says it's okay, that it is, at least on its face, adequate.
3 And when the county says we're pulling out of the planning 4
process because we don't have the resources to implement this 5
plan, that was new and significant information which should 6
have led the licensing board -- if they were now going to give the county intervenors status,at least to grant our 8
request to reopen the record and to go into those particular 8
issues.
10 The licensing board denied the motion to reopen not because it was late; they denied the motion to reopen on the basis that CEE's prior attorney had voluntarily 13 relinquished the right of CEE to ever litigate emergency
\\_/
i planning issues.
4 15 I think when you analyze the reason for denying 8
16 that motion, it's clear that it is erroneous.
They also
=
0 17 g
said there was not any showing of new and significant informa-I 2
18 5
tion.
%a I8 First of all, when I filed that motien to reopen l
20 the record, it referenced the county's petition and incor-5 I
porated it.
The county's petition was perhaps short on the 22 I
g law in the way that they argued the 2.714 criteria on lateness, 23 but the petition was expansive on the facts of why they l'
4 could not implement.
n Now, I think in that motion to reopen, in the i
..... ~, - -.. - - - - -
,__..-.-_-._.,n_-
BW3,syll 22 1
answer in support of the-county's petition to intervene, we 2
demonstrated new and significant information.
The licensing 3
board just tosses that off in their opinion and says, you 4
didn't show anything.
5 I think when we say look at all the things the 6
county is raising now, we showed lots.
7 As far as whether CEE's lawyer's statements at 8
aErehearing conference in July of 1981 constitute a 9
voluntary relinquishment, I don't think it relinquished l
l l
10 anything.
You have to understand the timeframe in which those 11 comments were made.
12 The Contention 8 was initially stricken or
('N 13 severely limited in January 1979.
The comments were made 14 in July 1981 and they are ambiguous.
i h
15 JUDGE EILPERIN:
Do you think there are factual 2j 16 matters that need to be litigated?
Or is your position that J
l f
17 you win if there is not a county plan?
Or is your position 5
l l
18 that you win if, in fact, the county cannot implement the r
i i
19 plan that exists, and, consequently, there should be a I
(
M factual hearing as to whether or not the county is right E
21 when it says it cannot implement it?
2 l
22 MR.~MINOCK:
I don' t think that's the dire: tion of my l
23 analysis.
My analysis is one -- I don't agree that the plan 24 was available in November 1981.
I don't think it was ripe j
E at that point to file contentions. Even if you decide against l
BW3,sy12 23 me on that, it seems to me that the county's pulling back i
()
from the process so late is important not simply because 2
3 they lack a plan but because the information that they could not implement the plan came so late that we cannot be held 4
a l
to have foreseen that prior to the adjudicatory hearing.
5 i
6 And that was new and significant information on which the licensing board should have granted rather than denied our 7
motion to reopen.
8 JUDGE EILPERIN:
Did the adjudicatory hearing go 9
I into the question of the county's resources to implement the 10 i
plan?
13 MR. MINOCK:
No.
12 JUDGE EILPERIN:
Why couldn't you, at the-adjudica-O 13 tory hearing?
14 h
MR. MINOCK:
It wasn't ripe then.
15 JUDGE EILPERIN: Why wasn't it ripe then?
There 16 8
had already been an exercise held.
The purpose of the exer-37 2
cise was to figure out whether, in fact, the plan or the gg r
j draf t plan in reality worked.
Why couldn't you have, at gg that point, litigated the question of how well the exercise I
20 went, what the problems were with it, what difficulties E
21 3
22 existed and things of that ilk?
9 MR. MINOCK: First of all, there's a question as i
23 i
i to whether those contentions on the exercise would have had 24 bi i
to have been -- come under the late criteria, late contention j (_)
3 i
+
,.~.- - - _. _ -___ _-- _-. -.- _ _....- ---._ _ ~_.-._.__.-__-_-_. - --. _.--
BW3,sy13 24 1
criteria.
I didn't even know if they would be admitted.
()
2 JUDGE EILPERIN:
Assuming they would have been.
t 3
MR. MINOCK:
Assuming they were, that's not the 4
issue, as I see it, because the flaws in the plan -- the i
5 county did not get down to business until after the adjudica-6 tory hearing was over, after they started to be rebuffed by 7
the state police and FEMA, and then they got all the criticisms 8
from the public and said you know, there are some problems 9
with this gan that we had not really foreseen before.
Maybe 10 they were too late for litigation like you said, maybe the l
11 only recourse they have is a 2.206 petition.
12 We're in a different position as far as that is 13 concerned.
Once the county says we cannot implement, it seems l
14 to me that is something so significant that it might well h
i 15 have changed the licensing board's view of a planning Ij 16 contention.
17 JUDGE EILPERIN: Why shouldn't you have been able 1
l 18 to find that out at the adjudicatory hearing through questions I
h 19 of county witnesses and FEMA witnesses about what had or had I
I 20 not worked during the exercise?
i i
21 MR. MINOCK:
It was not just things in the exercise 2
l 22 that the county criticized in its petition to intervene, and 23 the county probably would not have been able to come up with l
24 those reasons at the time of the adjudicatory hearing.
\\
25 JUDGE EILPERIN:
I thought we said, if I recall i
i i
BW3,syl4 25 1
our decision denying the county's petition to intervene, I 2
thought we said that is what the county was pointing out, 3
something that the county should have known years before.
4 MR. MINOCK:
Whether you have something in front 5
of you and staring you in the face and whether you react to 6
it are two different things.
I think that once the county 7
said -- the county didn't say,regardless of whether they are 8
negligent or not on that point, on whether they are late, the 9
county did not say until August 1982, we cannot implement to this plan.
And that was something that only developed over 11 a period of several months, that summer probably, from the 12 first time when the board first started to get criticisms 1-3 about the blizzard hearing from the public and scheduled 14 the later hearing.
It was only when'they got that that the 15 county snapped to.
g 16 And then they said, we cannot implement. When 0
l 17 they said we cannot implement it for all of these reasons, i
18 that is new and significant information for the Intervenor 19
{
who is a party.
Prior to that, I suppose you could say we I
r o
I 20 i were reasonably relying on the county's assertion that the 5
21 plans were adequate.
At least, from the county's regard, 7
l 22 regarding whether the county could implement them.
23 The fact that the county was participating in the 24 process up until the adjudicatory hearing --
M JUDGE EILPERIN:
You would not be challenging the
.BW3,syl5 26 adequacy of the emergency plan if the county, in fact, 1
O 2
thought it was allright?
MR. MINOCK:
No, I didn't say that.
3 JUDGE EILPERIN:
I thought you said you were 4
5 reasonably relying on the county's --
~
MR. MINOCK:
The plan may well have seeiced 6
adequate on its face. There are things that are not taken 7
into account as to whether the volunteer firemen will cooper-8
~
ate in the case of a nuclear emergency, on the mutual aid 9
facts, which they have for other emergencies.
10 It seems to me that is an issue that's not 11 12 addressed in the plan that the county became aware of after-wards.
It's one of the concerns they had, it's similar with
!O 13
'V bus drivers and other emergency personnel.
It's just one
~
14 5
15 example of the things that are not reflected on the face of i
f 16 the plan.
8 JUDGE EILPERIN:
All right. But taking'that as 17
?
18 true, nevertheless, if a plan existed back in November 1981 5
which Intervenors could discover and read, couldn't.you at i
g gg g
that point figure out that the subjects are not addressed at f,
20 5
21 all in the plan.
Consequently, as an intervenor, it is an s
22 issue you then want to raise.
2 23 MR. MINOCK:
I suppose the Applicants and staff 24 will take that position and try to tie those two things O
U 25 together.
It doesn' t seem to me that-they necessarily
. - _ ~ _ _ _ _ _ _ _, _ _ _ _ _
BW3,syl6 27 1
1 follow from each other.
2 JUDGE EILPERIN: Why not?
If something is available 3
and be looked at and analyzed, 4
MR. MINOCK:
Because the county's withdrawal from 5
the planning process and saying on the other hand, we really 6
can't do all of these things that the plan promises 7
constitutes a -- at least in response to that -- constitutes 8
a substantial change in the plan.
The county is saying we 9
won't do that, we can't do that.
That's different than the 10 plan which says we can and we will.
11 I think that -- the licensing board did not say 12 we were late.
.The licensing board said that we voluntarily
, [)-
13 relinquished our ri'ght to go into that forever'and ever by 5./
14 the comments of counsel in July 1981.
For one thing, counsel, S
/
m
}
my predecessor, said we're not going to. attempt to expand the 15 i
3 g
16
. contention in this proceeding.
We have major reservations J
0 l
17 about the Applicant's emergency evacuation plans; we can deal
.i~j 18 with that in other forums.
We're not trying to expand our I
i 19
{
contentions.
Tr
{
20 The Applicants and staff make much ado about that 21
,little comment, and I think the comment is, at best, 5
3 22 a'mbiguous.
There certainly f is not a repeated objection rule g
j 23 in federal court 6r before a federal agency that I am aware 24 of that says once you lose a motion or once a portion of a l
25 pleading is stricken, you've ot' to continue to try and rub
BW3,syl7 28 1
the face of the trial court in it everytime you go in front
(.
Iq,)
2 of them or everytime something related to that issue comes up.
3 JUDGE EILPERIN:
But the practice, at least as 4
I'm familiar with it before the licensing board, in the 5,
usual kind of case that we deal with is that you really have 6
a negotiation session about contentions, and then contentions 7
never are litigated as initially drafted.
People revise 8
them, they work with them, they discuss them, so that the 9
normal e:;pectation would be af ter you go through one of 10 those negotiating sessions and come up with an agreed upon 11 contention, if you are still unhappy with that process it 12 might be that there is a burden to say, this is all I can
/ 'N 13 get everyone to agree upon as litigable at this point.
But 14 I am preserving an objection that I, in fact, want to litigate 5
15 what I first drafted three or four months earlier.
l 16 MR. MINOCK:
I might see a contemporaneous objec-f 17 tion rule,and I think the fact that we filed the contention 1
l 18 and it was stricken satisfies that.
I don't see anywhere i
h 19 in the rules a continuous objection rule, nor do I see any-i l
M where in the rules a recognition of a sort of understanding
{
21 of standard operating procedure as the means by -- the rule 7
j 22 by which a litigation like this is litigated, is handled.
23 There is an absolute ban on interlocutory appeals 24 except on issues that are certified.
The appeal board says
[, i
\\2 25 again and again and again, we do not like interlocutory appeals
BW3,syl8 29 1
and the rules disfavor them.
Once you get the ruling on the 2
contention --
3 JUDGE EILPERIN:
This gets into the question of the 4
timing of the appeal.
This is not a question of the timing 5
of the appeal; it's about how you preserve an issue.
6 MR. MINOCK: It seems the filing of an appeal and 7
the striking by the licensing board where you do not have 8
the interlocutory appeal preserves the issue.
I think the 9
comments of my predecessor were ambiguous.
He says we can 10 deal with that in forums. What does that mean?
I don't 11 know if he was referring to FEMA, I don't know if he was 12 referring to on the state or local level, I don't know if he T
13 was referring to appealing that, the dismissal of that conten-14 tion as well as possibly the dismissal of some other conten-15 tions to this board when the time became ripe.
2 g
16 You have to understand this case was a bit unusual O
l 17 for licensing proceedings in that the time of the intervention 1
{
18 to the time of the licensing hearing was so long.
i h
19 The notice went out for intervenors in early fall E
{
20 of 1978.
The initial decision was issued four years later.
{
21 That was not our doing.
The fact that the issue did not 22 ripen before that is certainly not Intervenor's fault.
23 24 25
= -.
gn.W
]T V 30 1
JUDGE EILPERIN:
According to my watch you have
)
2 about 7 minutes of your 45 minutes remaining.
We are not 3
going to hold you strictly to it.
4 MR. MINOCK:
I understand. I want to wrap up 5
fairly quickly and listen to what my worthy opponents have 6
to say.
}
7 JUDGE EILPERIN:
Do you have anything further on a
what form, anything further that you want to say about the 9
County plan and the mechanics of how it was disapproved?
I 10 woula be happy to hear that.
11 MR. MINOCX:
I think you should consider -- if 12 there is ongoing negotiations between the County and State 13 Police and Edison -- not Edison, but rather, the County, 14 State Police, and FEMA.
You should take that into account 15 in reaching what ever conclusions you are going to draw.
16 The Licensing Board was under a complete and obviously 17 erroneous inisimpression in the finding that I cited.
18 As far as how the lack of a plan is significant 19 for Stony Pointe evacuation, just very briefly, it is 20 obvious from the context of the contention when it was 21 originally filed that it was an emergency planning l
l 22 contention.
Then at the very end of the Licensing Board 23 proceeding, one of tne Judges said, isn't this really a 24 road feasibility question and not an emergency plan or 25 evacuation issue?
l TAYLOE ASSO CIA TES 162 5 I Street, N. W. - S uit e 10 0 4 W ashington, D.C. 20006
[
(202) 293-3950
31 1
Applicant and staff said yes, and CEE said no. I
, ()
2 do not think that such a narrow reading under the context 3
for that contention could reasonably be given.
4 The reason tne Board was erroneoua in reaching 5
that conclusion, the Licensing Board, was because the 6
widesses who testified on behalf of the applicant and staf f 7
on that issue assumed an adequate evacuation plan for that e
area to fina that, yes, the road was a feasible evacuation 9
route. I think it was basically -- it was a rather glib way 10 to duck an issue and get out from under consideration of 11 the emergency planning problems there, the evacuation plar.
12 problems there.
13 And I think the Licensing Board, if they had 14 paid attention to that, would not have concluded as they 15 did tnat Stony Pointe could be feasioly evacuated along 16 that road.
17 JUDGE EILPERIN:
I am a little confused on this 18 last point.
I thought your argument was essentially about 19 the Licensing Board erred in finding that the Stony Pointe 20 Pointe Aux Peaux Road provided an adequate escape route for 21 tne residents of Stony Pointe.
(
22 MR. MINOCK: That is the position I argued in the 23 brief.
I will rely on the references to the transcript.
24 The other thing is the Licensing Board I think 25 analyzed it wrongly in saying it was not an evacuation TAYLDE ASSO CI A TES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
32 1
issue and just looked at the pavement.
()
2 JUDGS EILPERIN: That is the point. I don't quite 3
grasp what you mean.
4 MR. MINOCK:
The Licensing Board said that the 5
issue of Stony Pointe did not involve the adequacy of the 6
evacuation plan for Stony Pointe, it just involved the road 7
itself. They then analyzed that testimony from too narrow a B
perspective, that the adequacy of the evacuation plan was 9
called into contention by that question.
1 10 The point in tne transcript, which I believe is 11 on the last day near the very end of the hearing, it was 12 the first time that somebody suggested that.
It was one of 13 tne members of the Bench that suggested it.
14 CEE's lawyer expressed disbelief how the two 15 could oe logically separated.
I nad the same problem. You 16 can make pernaps a verbally rational separation of the two.
17 If I lived in Stony Pointe, you would nave a hard time la convincing me that the two did not go hand in hand.
19 JUDGE EILPERIN: There is only one road out. What 20 more is going to be litigated other than is tnere -- what 21 more is to oe litigated other than will that road serve to
- 22 get the people out.
23 MR. MINOCK:
Karning systems, adequacy of notice 24 to residents.
25 JUDGE EILPERIN: The warning system is generic to g_
TAYLOE A SSO CI A T ES 16 2 5 I Stree t, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
33 1
the entire plan.
)
2 MR. MINOCK:
If there is not a plan --
3 JUDGE EILPERIN:
That's part of the applicant's 4
responsibility, to have strens that are going to start i
5 alerting people, alerting the public.
6 MR. MINOCK:
Now, in the face of the County's 7
position, tne applicants might do well to decide to move B
on to tue next issue and submit a plan themselves.
But if 9
and when they do, I would assume that we still will have a 10 right to litigate it.
11 The problem I have with the Licensing Board 12 decision in this case is that it seems to forestall forever 13 and ever CEE's ability to go back before the Licensing 3
14 Board.
You see, this case again is screwy because you have 15 got the emergency plan still in limbo a year after, you 4
16 know, 6 months after tne initial decision has been 17 rendered.
18 We have got a right again I think to litigate I
19 under the Atomic Energy Act the issue of the adequacy of 20 tne emergency planning, because of the unusual way -- and I 21 tninn this Board recognizec it when it dia not find CEE in 22 default for not filing proposed findings of fact -- I think 23 it recognizeu tnat this case is perhaps taking some 24 unusual twists and turns along the way.
25 I think we still have a right to litigate that b
(,/
TAYLDE A 550 CI A T ES 162 5 I Street, N.W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950 l
l
..---.-,-n
34 1
issue, the adequacy of the planning. The unusual time frame C)
(,
2 makes this -- I guess it makes this case a test of the 3
principle, what happens if the Licensing Board decision is allowed to stand and then 6 months from now somebody 4
5 submits to FEMA for formal review a plan. It cannot be just 6
administratively reviewed because there is a right to 7
litigate it.
l 8
Our point is, in part, one of rightness.
We 9
should not really have been cenied a motion to reopen a 10 year ago, back in September of
'd2.
If we were correctly 11 denieu that, then the issue is not even ripe yet.
12 JUDGE EILPERIN:
Have you spoken with Monroe 13 County officials aoout what the nature of their discussions 1
I t
14 are with tne applicant and the State and what kinds of f,-_\\
%+/
15 compromises and negotiations are going around?
16 MR. MINOCK: I nave copies of correspondence with 17 me that I got that are memoranda not only of the County, la FEMA, State Police meeting cack in early April, but then 17 tne County Boara action that immediately followed that 20 meeting.
The County board sent on a list of things that 21
.ere flaws, it felt, in assigning responsibilittes by the 22 State of Micnigan to tae County, and said, unless you I
23 change certain aspects of the plan, we really will not be 24 able to implemen it; after you change tnose and after you 25 adcress those, then we will start to rewrite all of the TAYLOE ASSO CI A TES 162 5 I Street, N. W.. Suite 1004
)
W ashington, D.C. 20006 (202) 293-3950 i
35 4
1 local annexes.
2 the last information I have -- and this is 3
secondhand -- was that the State Police wrote back to a
Monroe County ar.d said, sorry, we're not changing that.
5 So Chairman of the County Board made a comment, 6
I was told, at the last meeting of the County 7
Commissioners, the last public evening meeting, which I a
think would have been last Tuesday or perhaps the week 9
before, I forget which, that while if we ever get back to 10 emergency planning, then we are going to have to look into 11 some of these issues.
12 Rignt now, what I understand is there is 13 basically a stalemate between the local government ano the 14 State Government on who is going to pick up certain costs
\\-sl 15 and responsiblities.
16 JUDGE MOCRE:
Does the State have the power to 17 pick up all of those responsibilities of the County in la Michigan?
19 MR. MINOCK:
That is a question I wouldn't try 20 ano answer, at least not without an analysis ot State law.
21 They might, under broad police power.
I am not sure that 22 they do.
There is a State-County relations issue there.
23 JUDGE EILPERIN:
Thank you.
24 MR. MINOCK:
Thank you.
25 JUDGE EILPERIN:
Mr. Voigt.
\\
Q TAYLDE ASSO CIA TES 162 5 1 Street, N. W. - Suite 100 4 W ashington, D.C. 20006 (202) 293-3950
=
ORAL ARGUMENT ON BEHALF OF APPLICANTS 36 1
1 MR. VOIGf:
I appear this afternoon on behalf of
()
2 the applicants Detroit Edison Company and Wolverine Power 3
Supply Corporation, Inc.
4 It seems to me that there are four basic issues 5
involved in this appeal. First, there is the disposition of 6
Contention 4 of CEE, which was rejected in its entirety by 7
the Licensing Board.
8 CEE has not briefed its exceptions with regard 9
to Contention 4, and I submit that it has waived its 1
10 exceptions with regard to Contention 4 and, therefore with 11 respect to the Licensing Board, is no longer contested.
12 The second issue is whether or not the Licensing 13 Board's issue concerning Contention 8 should be affirmed.
14 Witn respect to that issue, there is substantial evidence i
15 in the recora, testimony by credible qualified experts 16 sponsorea by both the applicants and the staff to support 17 the findings of the Licensing Board, and no evidence to the la contrary was offereo by the Intervenor.
19 Therefore, the Licensing Board's decision with 20 respect to Contention 8 must be upheld.
l l
21 JUDGE EILPERIN:
hhat about Mr. Minock's point 22 about the exception to the Contention was in fact preserved 23 and he coulo raise it at this point?
24 32. VOIGT: That is the thiro issue. With respect 25 to that issue, I think the record is absolutely TAYL0E ASSO CI A TES 162 5 1 Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
37 1
crystal-clear that the lawyer who then represented CEE
()
2 voluntarily relinquished that portion of the contention 3
that relates to emergency planning and elected freely and voluntarily to limit his contention to the adequacy of the 4
5 evacuation route.
6 JUDGS MOORE:
From what appears in the record, 7
can you tell me how you then draw tne conclusionthat he a
freely and voluntarily bound himself never to file a motion 9
to reopen if Significant new evidence became available that 10 might tough on the subject of emergency planning?
11 MR. VOIGt:
I do not think I have made any 12 assertion to that effect, Judge Moore.
13 JUDGE MOORE:
Then you are not contending that la any waiver of the exception bound him from subsequently
('s 1
15 filing a motion to reopen that might deal with emergency 16 planning?
17 MR. VOIGP:
I think the wora " bound" is too la strong.
I think there arrives in tne course of a licensing 19 proceeding Consicerable equities which must be weighed in 20 the balance when a very belated motion to reopen is filed.
21 JUDGE MOORE: why is it belated if tne County, as 22 CEE's counsels states, makes it plan that they could not 23 enforce what people nad reasonably been led to believe 24 previously tney could not enforce in the plan?
25 MR. VOIGT:
I do not believe the premise of that O
km,/
TAYLOE ASSO CI A T ES 1625 I Street, N. W. - S uit e 10 0 4 W ashington, D.C. 20006 (202) 293-3950
4 38 1
question.
I do not think the County has ever made it plain
)
2 that they cannot enforce of carry out their 3
responsibilities under the plan.
4 JUDGE MOORE:
Did the County, in seeking review a
by the Commission of our decision, denying -- affirming the 5
6 Licensing Board denial of their delayed intervention not 7
state to the Commission that they could not enforce the 8
County plan?
And didn't it come from the County 9
Commissioners?
10 MR. VOIGT:
That is precisely the point, Judge 11 Moore.
It did come from the County Commissioners.
But 12 under Michigan law it is the director of emergency 13 preparedness of the County who has the responsibility.
14 JUDGE MOORE:
Who does the director work for?
15 MR. VOIGT:
He works for the Commissioners, who 16 are required to appoint him.
The law requires --
17 JUDGE MOORE:
Can they fire him?
18 MR. VOIGT:
I suppose they can fire him for good
[
19 Cause.
l l
20 JUDGE EILPERIN:
What is the director's l
21 responsioility?
22 MR. VOIGr: It is his responsibility to work with 23 the State to see that the County can carry -- can plan and g$yg 24 carry out its responsibilities under the State plan.
f s/
25 TAYLDE ASSO CIA T ES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950 l
t I
BW5,syl 39 1
If you will look at the Michigan law, you will
(_,)
2 find that this is a strong state statute.
It vests most of 3
the responsibility, most of the authority at the state level.
4 It does not leave room for the kind of maneuvering that this 5
county has engaged in in the final analysis, but the negotia-6 tions are still going on and the crunch has not come yet.
7 JUDGE EILPERIN: What is the Michigan law?
What's 8
the citation to the Michigan law?
9 MR. VOIGT:
It is the Michigan Emergency Prepared-10 ness Act, the same statute --
11 JUDGE EILPERIN:
The same statute Mr. Minock cited?
12 MR. VOIGT:
Yes, we are in agreement on that.
s 13 JUDGE MOORE:
So you would contend that the state h
14 has the full cower to step in and take over any functions that i
15 lthe county may now be seeking in its draft plan?
[
16 MR. VOIGT:
Yes.
17 JUDGE MOORE: lias the state made any move to do that?
18 MR. VOIGT:
It's my understanding that the state ia 19 has been involved in a dialogue with FEMA and the county to e
Ij 20 clarify what the state can and will do.
The most recent
{
21 information that I have on the subject is that there is only l
22 one remaining difference of opinion between the county and 23 the state.
24 JUDGE MOORE:
I know it's not in the record at all, Oni 25 in anything in front of us, but what, if any, state plan exists
BW5,sy2 40 l
l l
1 with regard to this facility for such things as the ingestion 2
zone pathway?
Is that fully a state responsibility?
3 MR. VOIGT I don't think it's right to say that 4
there is a state plan for this facility.
There is a state 5
plan.
i 6
JUDGE MOORE:
That has a section that deals with l
7 this facility.
l 8
MR. VOIGT:
It has sections that deal with radio-9 logical emergencies, and then there is a county plan and 10 that has annexes in it that deal with how hospitals and 1
l 11 schools and fire trucks and everybody else respond to differ-12 ent kinds'of emergencies, including radiological emergencies.
13 The county has had a fully developed plan for 14 years.
The state, as I understand it, has a fully developed l
plan.
They held a full-scale exercise.
15 2
{
16 JUDGE EILPERIN: For Fermi are you talking about?
f 17 MR. VOIGT:
For the state.
5 l
{
18 JUDGE EILPERIN:
I'm sorry, I thought you mentioned i
=
l 19 the county.
E l
20 MR. VOIGT:
No, the county is supposed to be -- a 5
21 lot of it is devoted to Fermi because Fermi is in the county, 5
l 22 but it's not strictly a plan for Fermi.
23 In any event, I think the short answer to your 24 question is yes, the state has the legal responsibility and O
1 25 the legal authority necessary to supplant the county if push
BW5,sy3 4
l
'T 1
comes to shove.
It has not yet.
2 I want to go back, though, and talk a little bit 3
more about CEE's position with respect to emergency planning, l
4 because there is more to it than the fact that they stipulated 5
to contentions, and there's more to it than the fact that 6
their lawyer said at the prehearing conference that they 7
were not going to pursue emergency planning before the i
8 licensing board.
9 There was also a question that arose at that 10 prehearing conference concerning the scheduling of the 11 hearing, and the licensing board indicated a willingness 12 and, indeed, a desire to have the hearing in December of 13 1981.
I4 But then they said well, wait a minute, that will 15 predate the full-scale exercise of the emergency plan.
Can 16 we go ahead and have the hearing before the emergency plan i
O l
17 has been tested?
l 3
l 18 Each of the parties spoke to that.
There was a
19
,i unanimous agreement that Contention 8 was separate and i
l f
20 apart from the emergency plan and that there was no reason
{
21 why the board could not go ahead and complete its hearing and, f
22 if necessary, its decision on Contention 8.
23 l
JUDGE GOTCHY:
Contention 8 as modified by the 24 board, not the original contention.
l M
MR. VOIGT:
No, sir, Contention 8 as stipulated to 1
l 2
BW5,sy4 42 1
by the parties.
The board modification in my submission 2
vanished, because the parties subsequently sat down around 3
a conference table and agreed on what Contention 8 was going 4
to say.
5 JUDGE GOTCHY:
That was agreeing to taking out 6
the first sentence that referred to emergency plans and 7
procedures?
8 MR. VOIGT:
I don't think you can read it that way, 8
Dr. Gotchy.
10 JUDGE GOTCHY:
I can read the original contention 11 which' clearly ties the first sentence in with the rest of the 12 contention, and when the first sentence is removed there's
)
no further words remaining in the contention that deal with I4 emergency plans and procedures.
7 e
15
{
MR. VOIGT:
I agree with that.
I'm trying to make the point that it is not a simple thing here that they put 0
17 e
in the contention.
The licensing board struck part of it, and m
18
{
we then went to hearing with what was left.
There was a i
19 g
process of negotiation and compromise by which the contentions, 2
t l
i the wording of the contentions was agreed to and stipulated to, r
E 21 I was asked -- because the composition of the board l
had changed during the process, I was asked by the licensing 22 23 board at the final prehearing conference whether there was 4
s any further disagreement or need for discussion concerning l
25 those contentions that had been stipulated to. And I said i
BW5,sy5 43 1
absolutely not, we agreed to them and we are going to live 2
with them.
3 JUDGE EILPERIN:
What about Mr. Minock's general 4
position that all of that antidates Monroe County's disavowal 5
of the plan, and once that happens, CEE should be able at 6
that juncture to come and litigate whether the now limbo-like 7
plan is capable of being implemented?
-l 8
MR. VOIGT:
First of all, I don't agree that 8
i-Monroe County has disavowed the plan.
Secondly, I do not 10 agree it is in limbo.
It's actively being considered and 11 revised in some respects.
12 But what I'm saying to you, again, is there is a 13 clear persistent prolonged record by this organization that 14 they don't want to litigate emergency planning, that their 15 concern is over the evacuaticn route, notwithstanding the 2
[
16 fact that the plan has been publicly available for over the II year, notwiths tanding the f act that the full-scale exercise 2
f 18 has been held.
They go to hearing.
We finish the hearing, 19 l
we submit our proposed findings and conclusions. They default.
E JUDGE EILPERIN:
Maybe they are perfectly content 21 and happy so long as Monroe County thinks everything will
{
22 work out.
But lo and behold, Monroe County says we don't 23 think things will work out.
At that point, CEE has some 24 concerns.
It seems to me it's going back to the question 25 that Judge Moore asked earlier, which is does that initial
BWS,sy6 44 1
stipulation forever preclude CEE from raising issues of 2
the adequacy of the emergency plan, or the adequacy of its 3
implementation, despite whatever new information might arise 4
later on.
5 MR. VOIGT:
I can only reiterate the answer I gave 6
before, Judge Eilperin.
It's not the stipulating standing 7
alone, it's not a black and white case of preclusion. It is 8
a question of balancing the equities, and I put it to you that 9
in this case, the equities are overwhelmingly against 10 reopening the record.
11 JUDGE MOORE:
Let's move off equities a moment.
12 Doesn't the second part of deciding whether the licensing board f}
13 was correct in denying the motion to reopen boil down to the
%/
14 question of who speaks for Monroe County?
Is that a fair 15 way of stating the question?
$j 16 MR. VOIGT:
I think that is an important problem.
17 JUDGE MOORE:
And that, I presume from your
{
18 previous answer, is a question of Michigan law.
19 MR. VOIGT:
Who speaks for the county.
E f
M JUDGE MOORE:
Yes.
{
21 MR. VOIGT:
That is clearly a question of Michigan i
3 l
l 22 law.
23 JUDGE MOORE:
It's your contention that the i
24 emergency planning director has statutory status independent 9
M of the county commissioners?
Is that correct?
BW5,sy7 45 1
MR. VOIGT:
That is clearly correct, I believe.
\\_)
2 JUDGE MOORE:
And only the emergency planning 3
director of the county can speak for the county where 4
emergency planning is concerned?
5 MR. VOIGT:
I did not say that and that is not 6
correct.
7 JUDGE MOORE:
Who speaks for the county in that 8
regard?
9 MR. VOIGT:
The county has to have an emergency 10 planning director, and the emergency planning director has 11 to prepare a plan.
12 MR. VOIGT:
The law is not clear in my submission
(N 13 as to exactly what the role of the county commissioners is.
14 JUDGE MOORE:
Who appropriates the money to make 15 sure that the firemen do what they are supposed to do and 2j 16 the police do what they're supposed to do, and the people in O
17 the health department who are responsible for radiological i
{
18 aspects of it do what they have to do?
Is that the county 19
{
commissioners or the emergency planning director?
E C
E MR. VOIGT:
That would come out of the county 5
21 budget.
Whether or not it would be appropriated I'm not 7
l 22 certain.
23 The fourth issue in this appeal is CEE's complaint 24 that Monroe County has not finally approved an emergency plan.
7_)
t M
It's our position that whether or not Monroe County has
BWS,sy8 46 1
finally approved an emergency plan is irrelevant and i
2 immaterial on this appeal.
Again, the parties agreed, and 3
the record is clear, Contention 8 did not involve emergency 1
4 plans.
5 JUDGE EILPERIN:
You're telling us it doesn't
{
6 matter whether there is an emergency plan or there is not an 7'
emergency plan, whether there's a final one, a draf t one i
8 or a non-existence one.
CEE simply cannot, at this juncture,
}
8 raise anything about, any question about the existence of
}
10 the emergency plan.
11 MR. VOIGT:
No.
I am telling you that whether or i
12 not there is an emergency plan and whether or not it is final 13 or draft is irrelevant with respect to what the licensing 1
I4 board decided on the merits.
j 15 Contention 8 is totally and wholly independent 3
g 16 from the existence or non-existence of an emergency plan.
O II
{
The licensing board did not make any findings, either 3
'8 principal or subsidiary, that had to do with an emergency plan.
2 I8 The only reference by the licensing board in the merits part t
O of its initial decision to an emergency plan is in paragraph SC 21 where they were talking about whether or not the highway j
22 could be cleared if an accident occurred in the same time-23 frame that evacuation might be necessary.
24 JUDGE EILPERIN:
All of this is true because the f
F M
board denied CEE's motion to reopen?
i I
4
-r-
-,.--y.
-,..,,,w,.. -, -,, -
,em...-y.,
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BW5,sy9 47 1
MR. VOIGT:
No, sir.
The licensing board expressly Ak-,)
2 found in Paragraph 50 that they did not need to look at the 3
emergency plan or to rely upon the emergency plan in order to 4
find -- in order to dispose of Contention 8 and in order to 5
find that the Pointe Aux Peaux Road was a satisfactory evacua-6 tion route.
I put that to you as a separate issue; that has 7
nothing to do with whether or not they were going to permit 8
Monroe County to reopen.
9 JUDGE EILPERIN: Forgetting for a moment what you 10 think are the issues in the case, what do you contend is the 11 plan in the case, and what do you contend is its status?
12 MR. VOIGT:
The Monroe County plan is under con-()
tinuing review between the state, the county and FEMA.
That 13 14 is its status.
ej As far as this appeal board is concerned, its 15 3
l 16 status is that it has been referred to the Director of Nuclear o
(
{
Reactor Regulation and it has nothing to do with this appeal.
17 18 JUDGE MOORE:
Who has responsibility for plowing 19 the road in the event of inclement weather?
E 20 MR. VOIGT:
The ultimate responsibility?
The j
21 state police.
22 e
JUDGE MOORE:
Do the state police run snowplows?
23 MR. VOIGT:
The state police can run snowplows 24 and the governor can send the National Guard in there.
Both
(
25 i
of those are very clear from the statute.
l l
BWS,sy10 48 I
JUDGE MOORE:
In the event of an accident on this 2
road, who would respond to see that traffic flow was maintainec ?
i 3
Is that the state police, or is that a
county authority 4
of some kind?
5 MR. VOIGT:
The state police are -- and the 6
director of the state police is -- the primary agency of the 7
governor to respond at the state level.
Now, I would assume 8
that if there was an accident and there was a county or 9
local police car in the vicinity, they would respond to it, 10 like civilized people.
If, for some reason, the county was i
11 unwilling or unable to respond, the state police would move 12 in as quickly as they could.
13
(
JUDGE EILPERIN:
Forgetting the fact that there 14 is a nuclear power plant near Stony Point, who clears the 15 road when it snows?
2 8
16 0
17 i
e 3
is r!
i 19 I
%)
2 E
21 i
a 5
l 22 23 l
24 25 l
LB 1 49 1
MR. VOIGT: I believe the county does.
h N,/
2 JUDGE MOORE:
Is not, necessarily then, the m
3 county plan implemented in the cuestion of whether that 4
is an adequate evacuation route, at least as to considering the 5
effects of inclement weather on the adequac y of that evacua-4 6
tion route.
7 MR. VOIGT:
No, sir.
The issue of whether the 8
evacuation route is adequate is a question of fact.
One i
9 of the factual issues which you suggest is can a wrecked t
to vehicle be removed in a timely fashion, or can a snowplow 11 be run down there in a timely fashion.
12 The answers to those questions does not depend 13 on the existence or non-existence of the plan as the 14 licensing board found, and it surely does not depend on U5 whether Monroe County is willing to carry out its statutory 3
}
16 responsibilities under Michigan of the law because if O
17 Monroe County doesn't, the state will.
I f
18 JUDGE EILPERIN:
Did these Commission regulations i
H3 require the existence of the county plan?
E h
N MR. VOIGT:
No sir.
The commission regulations 5
21 require a finding by FEMA that there is reasonable assurance t
l 22 of adequate off-site emergency planning.
23 JUDGE EILPERIN:
There is no reference to state 24 and local governments?
l O 25 MR. VOIGT:
There is a reference to state and local i
l I
k
50 1
I LB 2 1
governments, but I do not read that as saying you must have a plan from this county.
If the state takes over the 3
planning process by state law I think it is perfectly clear 4
that FEMA can make the findings and this commission can and I
5 should accept and agree with that.
I 6
JUDGE EILPERIN:
What is the remaining issue in 2
7 the continuing negotiations between the state and FEMA i
and Monroe County?
f 9
MR. VOIGT:
I'm going to read a portion of a FEMA 1
i 10 memo, which has a stamped date on it of April 20, 1983, 4
I "At a meeting March 1, 1983, requested by Monroe County l
and involving FEMA Region Five,-state and Monroe County 13 representatives, the Monroe County Board Chairman limited
-l 14 i
discussion to one concern only.
This concern, that the 3
15 county lacks sufficient funds or expertise to undertake 8
16 recovery and reentry operations, can be identified as an 8
17 g
assertion made to the ASLAB and is discussed in attachment a
18
[
three of this memorandum.
As stated in the attachment, t
19 the state and county'are workina to resolve this one 8
N i
remai'ni'ng concern."
21 d
JUDGE EILPERIN:
Why don't you submit that under 22 S
the Board Notification Rules and serve Mr. Minock a copy 23 of that, i
24 g
MR. VOIGT:
I will be happy to do that.
/
3 s,
Unless there are further specific auestions from i
1
~
51 LB 3 1
the members of the Board, I think I have touched the points b
2 that I believe are pertinent.
4 3
JUDGE EILPERIN:
Thank you, Mr. Voigt.
4 Ms. Woodhead.
5 ORAL ARGUMENT 6
BY COLLEEN P.
WOODHEAD, ESQ.
7 ON BEHALF OF NUCLEAR REGULATORY CO50tISSION STAFF l
8 MS. WOODHEAD:
I would like to begin by answering 8
the specific question asked in the appeal boards order 10 concerning the significance of the status of the Monroe 11 County Emergency Plan.
12 In staff's view, the status of the plan is not i
13 significant to the Licensing Board's decision on contention 14 eight because that contention raised one narrow issue for 15 decision, and this issue concerned only the 3
l 16 possible risk concerning the location of the evacuation 0
17 route.
It is not relevant to the Monroe County plan as 18 far as its status is concerned, although of course, the I8 Board and parties did assume, because of the Commission's E
{
20 regulation that adequate sufficient off-site emergency I
plans would exist and be in pla m and approved by FEftA and 22 the Nuclear Regulatory Commission orior to issuance of the 23 operating license for Fermi 2.
I question the characteri-24 S
zation of CEE counsel of the Monroe County emeroency plan Y
25 t
as no plan.
52 LB 4 1
I have not seen any evidence from the county on i
2 record or off record, nor from PEMA or NRC staff that there 3
is no plan or that the county suggests that there is no 4
I believe the record is clear that a draft 5
plan was in existence prior to hearing and was the basis 6
for off-site purposes of a full-scale exercise and although 7
this plan has been revised since then, I don't believe that 8
there is any question that a plan does exist in whatever 9
status.
10 The question of evaluation of the emergency plans 11 did indeed arise at the pre-hearing conference in 1981 12 as described by Detroit-Edison counsel previously.
At that
[~'\\
13 point it was a concern of the Board and the carties that b
14 the emergency plans were not complete and therefore neither 15 FEt1A nor NRC staff's review of these plang and evaluation g
16 of these plans were complete and that the evaluation by 0
l 17 the staff would be delayed and that has possibly delayed I
i l
18 hearings.
I h
19 There was a great deal of discussion of this matter Y
l 20 on the record at pre-hearing conference and in particular f
21 it should be noted during this conference that CEE, for three l
22 years, had a pending contention before the Board concerning 2
emergency plans styled as Paragraph 9 at that point, since 24 it had not been ruled on by the Licensing Board.
O 25 The reason it had not been ruled on in 1979 by
/
53 j
LB 5 1
the Licensing Board, as it did on Contention Eight was 2
because it concerned off-site emergency plans and because 3
they were not in place, the Licensing Board and later by 1
4 stipulation of Detroit-Edison and NRC staff and CEE counsel 5
deferred ruling on that until such time as the emergency 6
plans wer e in place so that the contention could be supp-7 lemented, clarified, and or corrected to address the completed 8
emergency plans.at the pre-hearing conference in 1981, 9
where the pending emergency plans and the incomplete review to of the plans by FEMA and NRC was discussed, CEE counsel j
11 withdrew this Paragraph 9, which was directly related to 12 off-site emergency plan facilities, namely medical facilities 13 and adequacy of police personnel.
O 14 JUDGE EILPERIN:
You're saying at that point there m
j 15 was an emergency olan in place and CEE made a conscious I
[
16 decision not to litigate it?
8 17 MS. WOODHEAD:
I n 1981 there was, at the pre-
?
18 hearing conference, there was an emergency plan in draft I
i j
19 form before FEMA.
20 JUDGE EILPERIN:
When in 1981 was the pre-hearing i
f 21 conference?
22 MS, WOODHEAD:
July of 1981.
i 2
23 An important matter to notice is that CEE represen-24 tative at the July 1918 hearing was a resident of Stony Pointe 25 Michigan, who later, I believe, that year was elected to the i
- ~
54 LB 6 1
Board of Monroe County Commissioners.and he subsecuently 2
appeared at hearings.
3 Another important fact;on the record is that the 4
limited appearance time before hearing, the Monroe County '
5 Civil Preparedness Director stated that they were distressed
~
6 at the characterization, I believe ih the Detrdit-Edison 7
testimony, the pre-trial testimony, which they had seen 8
prior to hearing.
The characterization of the Monroe County 9
plan as final and they wished to advise the' Licensing Board 10 at that point that the plan was not final, that it~was under 11 revision, that there were questions raised about it.
But in 12 argument against CEE's position that;only after the;close l
13 record, did CEE have any information about whether inadequa-14 cies might exist in the Monroe County plan.
h 15 I would like to point out that the CEE. witness
[
16 was at hearing, that was a member at that time f the Monroe 8
17 County Board of Commissioners and had every. reason.to know 2
3 18 whatever deficiencies might exist inthe plan or'whate'ver
'I h
19 questions concerned the Board.
E
{
20 JUDGE MOORE:
How do you respond to CEE's argument
{
21 that when the Board of County Conmissioners. indicated in some 7
22 form that they could not carry out'the provisions of the 23 draft county plan, that that was significant new evidence 24 that should have persuaded'the Licensing Board to grant their O
25 motion to reopen?
I
55 LB 7 1
i e'
1 MS. WOODHEAD:
I believe that the position of the
/
b
,2 county was that they did not realize themselves that they 3
could not implement their plan in certain aspects until a
. public meeting concerning these full-scale emergency 4
~ exercise was held during which residents of the county 5
j,
, 6 raised concerns about adequate facilities, etc.
7 It soems to me that the county commissioners are 8
In a better position to know the number of buses, the overall 4
9
/.-amount of facilities than th'e average resident of the county,
[
~ 10 who,may Nnow his immediate burrounding, but perhaps not bo
.i 11 aware as the county commissioners reasonably should have
.12 been aware of the facilities available and the personnel 15 f available inthe' county.
14 JUDGE EILPERIN:
I was not clear whether it was h
15 a witness or a representative of CEE, that had become a 2
a
[
16 '
member of the Monroe County Board of Commissioners.
17 MS. WOODHEAD:
I believe he became a member of the 1
j-18 Board in 19.81.
I must clarify,that at pre-hearing conference
}
19 in 1981 Mr. Kuron was a representative for CEE, who explained I
20 Contention Eight for the Board and parties.
He subsequently i
T 21 also became a CEE witness on Contention Eight and Contention
- -- g.
I 22 Four.
So to clarify the situation, he was both.
M JUDGE EILPERIN:
He later became a member of the 24 Monroe County Board of Commissioners?
w s
s
' JM MS..WOODHEAD:
Yes, I believe it was the same year
. ~ -
k g
-m~ - - - - - - -
p
~,.
m-
- .g-i.---w
--,9--
56 LB 8 1
although I'm not sure about the month.
I believe it was in 2
1981 that he became a member of the Board of Commissioners.
3 JUDGE EILPERIN:
If there is that identity of 4
interest between CEE and at least one Monroe County Commission 4er, 5
why shouldn't CEE be in the same position as Monroe County in 6
terms of the sort of knowledge we should deem it to have 7
about whether or not the plan is, in fact, capable of 8
implementation?
9 MS. WOODHEAD:
I do not believe in that one 10 respect that I would differentiate between the two.
It seems 11 to me that whatever defects might have been the concern 12 of the Board of Commissioners in August of 1982, long after
(
13 close of the record, should have been apoarent to the b
14 Board of Commissioners who had been working with at least 15 one draft of the plan and had seen the plan in effect to some
}
16 extent during the full-scale exercise.
O y
17 That is the most appropriate time to critique 3
f plans and that is certainly what frPh does, after full-scale I8 i
f exercises is to critique tP-ti'*ttes of the officials i
5 20
- r involved and to point out derects m the plan itself, what-21 ever problems exist in the plans, or the implementation of them should become apparent during the full-scale exercise.
22 23 That is indeed the very purpose of these exercises.
24 25 5
-e-4we a----g
.>, ra 7
1 57 1
JUDGE EILPERIN:
Did those exercises indeed test 2
all elements of the plan?
I believe they did not.
3 MS. WOODnEAD: I oo not believe they did test all 4
elements, and they did not attempt to evacuate the public.
5 JUDGE EILPERIN:
So there were some aspects of 6
the plan that were not tested during that exercise?
7 MS. WOODHEAD:
That is quite true.
8 To proceed beyond the discussion and limitation 9
and definition, perhaps is a better Word, of what exactly la Contention 6 raised at the prehearing conference.
The CEE 11 witness who was a member of the Board of Commissioners, as 12 I stated, clearly described the contention exactly the same 13 in his written testimony at hearing in April of 1982 as he f,
la did at the prehearing conference to discuss the proposed
/
15 contentions in 1979.
16 It clearly concerned the adequacy of the road in 17 light of its location to serve as an evacuation route. The le fact that CEE declined to ask that the Board and parties 19 wait for hearing until the emergency plans were finalized 20 points out very clearly, in staff's opinion, that 21 Contention 8 did not raise emergency plan issues.
22 ahether or not CEE had good cause to raise an 23 emergency plan issue is a question which I believe the 24 evidence is also clear on; namely, the Commission's new 25 emergency plan rules, regulations which are in effect now O
TAYLDE ASSO CI A T ES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
58 1
became effective in 1980.
)
2 So CEE has had opportunity for several years in 3
different ways to raise emergency planning contentions if 4
it so wish'ed.
5 Beyond that, CEE has been aware, because of its 6
member who is a member of the County Board of 7
Commissioners, of the day-to-day developments, problems, i
e and concerns about the Monroe County plan.
The allegation by CEE and also the County that 9
10 they had no knowledge prior to summer of
'82, long after 11 the record was closed in this proceeding, that there 12 problems in facilities and personnel in Monroe County 13 simply is unreasonable.
14 JUDGE MOORE: When was the first public statement 15 by the County Commissioners that they had insufficient 16 resources to execute the County plan?
17 MS. WOODdEAD:
The first one that I am aware of 18 that even implied that there was a concern by the County 19 was the limited appearance prior to hearing, March 31, 20 1982, in Monroe.
His statement really, though, did not 21 indicate so much a concern of inadequate facilities or 22 inability to effect emergency plan, but more to make the 23 point, as I recall, before the Board that the plan was not i
24 final, that it was still in a state of revision and 25 corrections, ano it was important at that point for the
?
TAYLOE ASSO CI A TES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 4
(202) 293-3950
59 1
Board to know that,-in his opinion.
()
2 But the one item, as I recall, that he mentioned 3
was the fact that the warning system, which I believe 4
Detoit Edison intends to install around the plant, had not 5
been installed, nor had the County approved the warning 6
system.
And they objected to a discussion of the warning 7
system during hearing, as if it had been approved by the 8
County and would necessarily be installed.
9 I am not aware of any specific concerns raised 10 by the County about the Monroe County emergency plan itself 11 until the County's petition in August of 1982 after close 12 of record.
There may have been some; I just simply am not 13 aware of it.
14 The meeting which Detroit Edison's counsel N-15 referenced that was held in Battle Creek, Michigan, in FEMA 16 Region V, did concern Monroe County questions about its 17 emergency plan.
And by discussion with FEMA, it appears la that they have revised their plan.
And as pointed out by 19 Mr. Voigt, it is at this point in time, as I understand it, 20 near maybe not offiical approval, but it is one which seems 21 to satisfy the County much more than the previous one.
22 But in any event, regardless of the status of 23 the plan as far as approval or disapproval or final or 24 draft version of tne plan, the Licensing Board decision has l
25 no reference to tnat and did not rely on that. The l
TAYLDE ASSO CIA T ES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
60 1
testimony presented was not necessary to -- it was not O)
(,,
2 necessary during the hearing to reference the County plan.
3 And indeed it did not.
4 The Licensing Board decision maxes clear in 5
paragraph 50 that the decision is not based in any way on 6
the contents of the Monroe County plan.
7 JUDGE MOORE:
Did the Licensing Board have the a
State plan in front of it when it made its decision?
9 MS. WOODHEAD:
As far as I know, the Licensing 10 Board had neither the State nor the County plan at its 11 disposal.
12 JUDGE MOORE: If, as Mr. Voigt suggests, that the 13 State can step in and do what the County might refuse to 14 do, how can the Licensing Board properly make judgment as
,-s
-I 15 to whether the road in questionis a proper evacuation route 16 without one or the other or both of those plans in front of 17 it?
18 MS. WOODHEAD: Because the answer to the question 19 raised in Concention 8 requires an evaluation of the road zu itself, and an estimate of any unusual traffic management 21 problems.
22 JUDGE MOORE:
Is weather and who plows snow and 23 who takes care of accidents part and parcel of that 24 judgment?
And don't those necessarily implement the State 25 and County plan as to who is responsible for doing that in
_,/
TAYLOE ASSO CI A T ES 162 5 I S tr e e t, N. W. - S uit e 10 0 4 W ashington, D.C. 20006 (202) 293-3950
61 1
an emergency?
O
\\,/
2 MS. WOODHEAD:
I do not believe that who plows 3
roads or who clears roads in the event of an evacuation --
4 JUDGE GOTCHY:
What traffic control, what about 5
traffic control during an evacuation?
6 MS. WOODdEAD:
Certainly, it is assumed that 7
there will be a suf ficient emergency plan in effect. But to e
ask who will actually provide the police, whether it be the 9
City of Monroe or the County officials or the State Police 10 is not necessary to answer the limited narrow question of 11 Contention 8.
One simply asks whether there is anything 12 unusual in traffic management problems other than routine 13 normal traffic management by police to assess the 14 teasibility of this road to be used as an evacuationroute.
15 It is certainly assumed that the police will assist and aid 16 in evacuating the traffic from the area.
a 17 But as pointed out by the staff's witness from 18 the Office of Emergency Preparedness, the primary 19 consideration when evaluating a route whicn could be usea 20 for evacuation is whether it limits or eliminates the 21 option of evacuation for a certain residential area.
22 JUbGE GOTCHY:
Was there a questionabout what 23 would happen if the employees leaving the plant were to 24 turn south ana run into the traffic coming out of Pointe 25 Aux Peaux Road?
TAYLOE ASSO CI A T ES 16 2 5 I Stre e t, N. W. - S uit e 10 0 4 W ashington, D.C. 20006 (202) 293-3950
--r-. - - -.,. _~
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i 62 1
MS. WOODHEAD:
I believe the question was raised
)
2 by the staff's traffic management consultant.
He did 3
postulate a very-worst-case possibility during which the 4
plant traffic evacuated at exactly the same point in time 5
tnat the residents of Stony Pointe.
o It was pointed out during the hearing that this 7
would be highly improbable because the plant personnel a
would be evacuated very quickly by the plant management, 9
simply for etficiency, and would be more capable of 10 evacuating quickly simply because families take more time 11 to collect belongings and other family members.
12 So the staff celieved that its evaluation of the 13 traffic management problems was under the most adverse 14 situation possibly imagined.
It would be highly unlikely 15 that such an event would ever occur.
16 JUDGE MOORE:
In evaluating the adequacy of 17 evacuation routes, does the staff always limit its le evaluation to a few only of the physical location of a 19 route, and does not consider such things as how that 20 integrates with who is going to plow snow and manage f
21 accidents and traffic control?
Is that their standard 22 procedure?
23 MS. WOODHEAO:
The local geography and local 1
24 weather patterns are important factors to be considered.
(
25 JUDGE MOCRE: But you only consider the snow, not l
l l
l TAYLDE ASSO CI A T ES I
162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
63 1
the snow removal?
%)
2 MS. WOODhEAD:
The normal procedures within the s.
3 area are some evidence as to how adverse weather could be 4
accommodated.
Staff's witness did address this very fact 5
and statec that the difference in evacuating time during 6
heavy snowfall would be whatever would be necessary to 7
clear the roads of snow.
8 And concurrently or perhaps subsequently staff's 9
witness from Emergency Preparedness Division pointed out 10 that there are many circumstances which coula occur which 11 might be adverse to efficient evacuation.
And this was one 12 thing that would be considered, among many others, in 13 making a decision as to the most appropriate protective 14 action to take at that point in time.
-s 15 I.ould like to repeat what Staff's witness 16 pointec out about evaluating roads to be used for 17 evacuation routes.
The significant considerations is 18 whether there is anything in geography or weather patterns, 19 anything at all, that would eliminate or limit the 4
20 availability of tnat road for use as an evacuation route.
21 And of course, in Michigan it is well <nown they have heavy 22 snowfalls. This would be a consideration in evaluating that 23 route.
But that, of course, encompasses the whole State of 24 Micnigan.
It is not peculiar to that road.
25 JUDGE EILPERIN:
Did Monroe County ever claim O
~ k,/
TAYLOC ASSO CIA TES 16 2 5 I S tre e t, N. W. - S uit e 10 0 4 W ashington, D.C. 20006 (202) 293-3950 1
-,.,-,--,---,---n
64 1
that it could not plow Pointe Aux Peaux Road, that it just
'N 2
did not have the resources to do that?
3 MS. WOODHEAD:
There has been no allegation. In 4
fact, curing the emergency exercise, one of the heaviest 5
snowstorms Michigan has had recently occurred, and Monroe 6
County kept the roads clear quite adequately.
This is on 7
the record from the staff witness who was there at the a
time.
9 JUDGE EILPERIN: I think you have about used your 10 time, if you want to sum up, Ms. Woodhead.
11 MS. WOODHEAD:
In short summary, the staff 12 submits that the narrow issue raised by Contention 8, as 13 explained by CEE, was decided on the basis of competent 14 uncontradicted expert evidence concerning the comparative
's /
15 systems traffic management and protective actions available 16 as appropriate curing radiological emergencies.
17 CEE aid agree prior to hearing that emergency la plans were beyond the scope of the issue in the contention, 19 and the Licensing Board made clear that its decision did 20 not include any matters related to emergency plans.
CEE 21 withdrew its proposed emergency planning contention at the 22 prehearing conference in 1981 in spite or ample opportunity 23 to supplement tne contention for a period of 3 years.
24 The portion of the original Contention 8 25 rejected by the Board lacAs sufficient basis for admission T A YL DE A SSO CIA T ES 162 5 I Street, N. W. - Suite 1004 W ashington, D.C. 20006 (202) 293-3950
65 1
then and it does now.
There is no merit, in staff's view, 2
to any matter raised by CEE on appeal.
Thank you.
3 JUDGE EILPERIN:
Thank you, Ms. Woodhead.
4 Mr. Minock, your time is expired, but you can 5
certainly have a few moments for reasonably short rebuttal.
6 And I would lixe you to acdress, if you would, any rebuttal 7
why CCE should not be in the same position as Monroe County 8
in terms of raising new matters about the adequacy of the 9
plan, given the fact tnat.Mr. Kuron, the CEE representative 10 and witness at the hearing, has been a Monroe County 7
11 Commissioner since January of
'81.
jf 12 1
4 13 14 15
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j 16 i
i 17 i
18 19 2J t
21 i
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23 i
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TAYLOE ASSO CIA T ES 162 5 I Street, N. W. - Suite 1004 j
W ashington, D.C. 20006 i
j (202) 293-3950 t
BW8,syl 66 1
MR. MINOCK:
I am going to violate the rules on t,, j 2
rebuttal. I'm just going to try to answer some of the 3
questions that you had for Mr. Voigt er Ms. Woodhead.
4 ORAL ARGUMENT ON BEHALF OF INTERVENOR 5
MR. MINOCK:
First of all, Mr. Voigt said the 6
county coordinators got responsibility under state law 7
outside of the county commission and maybe can act indepen-8 dently of them, so maybe Mr.Eckert speaks for the county 9
instead of the board.
10 That is wrong under state ~1aw, Section -- Michigan 11 compiled law, Section 30.409(1) states in part, "The County 12 Board of Commissioners of each county shall appoint a county
/i 13 coordinator..." -- which refers to -- this is the Emergency
(
)
x_/
14 Prepardness Act.
They talked elsewhere about what a coordin-15 ator is.
"The County coordinator shall act for and at the 3j 16 direction of the County Board of Commissioners or county f
17 executive" --you can have either form of government in 3
18 Michigan -- "in the coordination of all matters pertaining r
I i
19 to emergency services and disaster preparedness and recovery e
ij 20 assistance w? thin the county."
{
21 It seems to me in answer to your question, Judge 7
f 22 Moore, it is clear who the boss is.
23 JUDGE EILPERIN:
He is the agent for the county.
24 MR. MINOCK: Right.
Furthermore, Section 14 of
(~'s x -)
25 that came act says, "Each county shall nave the power and
oj BW8,sy2 e
i 1
authority (C) to direct and coordinate the development of 2
disaster plans and programs in accordance with the policies 3
and plans established by the appropriate federal and stage i
4 agencies."
5 Final authority in county government in Michigan 6
rests with the county executive or county board.
He is 7
simply a department head who serves at their pleasure.
The 8
Director of Civil Preparedness.
9 JUDGE EILPERIN:
I would appreciate it if you 10 would serve on the parties and the board the complete text 11 of the Michigan emergency preparedness law.
12 MR. MINOCK:
All right.
Mr. Marquardt who is 4
13 here from Detroit Edison probably has that in his library 14 there.
h 15 JUDGE EILPERIN:
If the Applicant would not mind I
l l
16 performing that task, we would appreciate it.
I o
l 17 MR. VOIGT:
I have to write you one letter 3
l 18 anyhow.
I might as well send both documents with it.
g-i 19 JUDGE EILPERIN:
Thank you, Mr. Voigt.
E i
j M
MR. MINOCK:
I do not mean to be penurious about i
21 this.
The Applicant argued that because we stipulated that 5
l 22 back in, I think it was March of 1979, to Contention 8 as T
l 23 written, that removed any ever.
Again, I don't know how 24 many times trial counsel is supposed to try and rub the face O
2 of the trial court once he has received an adverse ruling i
)
68 BW8,sy3 I
on the point, but the way I have tried cases, when you (3
t
/
2 A/
receive an adverse ruling you do what you have to do at that 3
time in your j udgment to preserve the record, and you go on.
4 If he is trying, for example, a civil case and 5
you say you have a civil complaint for a tort and there 6
are three possible theories, and you lose a summary judgment 7
motion on one of them and you are the plaintiff, you don't 8
keep going back and arguing the first theory that has been 9
dismissed over and over.
It's not ripe to raise until the 10 is over with and then maybe you have an appeal.
case 1
11 l
JUDGE EILPERIN:
The answer to that question depends 12 on how you read the record as to what the parties agree to.
[)
MR. MINOCK:
Right. And further on that point, in n
14 answer to what Ms. Woodhead said about that as well as the I
A 15 !
' Applicant, the course of conduct that they refe rred to pre-2j 16 dates the county disavowal of the plan.
8 17 t
f JUDGE EILPERIN:
That will bring you to the s
18
[
} question I asked at the beginning.
Why is CEE in any different 19 j position than Monroe County?
5 I
M a
i MR. MINOCK: First of all, you have to understand f_
Monroe County is not a big urban county; it is a suburban 22 i county.
It is a relatively small rural county with not that 1
23 big a staff.
It is certainly not like Suffolk County on Long 24 gg Island.
It does not have a full-tier legislator that is a
(
}
N' 25 parallel of state government.
It is a small county with
BW8,sy4 69 1
a group of part-time commissioners, and I think you also
\\msl 2
cannot ignore the fact that Mr. Kuron testified in the rest 3
of this hearing.
It is clear Mr. Kuron is a retired steel 4
worker.
5 Now, I don't know what it is -- the innuendo that 6
is being imputed to CEE because of what Mr. Kuron should have 7
known.
That is unclear to me.
I think it is not fair --
8 JUDGE EILPERIN:
We rendered a decision earlier on 9
that the matters that Monroe County sought to raise about 10 the -- what they termed their inability to implement the 11 emergency pled came too late to be the subject of the adjudica-12 tory hearing.
Those subjects were the kinds of things that
()
l the county should hav e been aware of f ar, far earlier.
13
'\\ /
I4 l And the question that occurs to me is if Mr. Kuron, I
a f
15 I who was the CEE representative and witness, was also a member
}
16 of the Monroe County Commissioners since January of 1981, why 17 should he and CEE not also have been aware of those matters i
f 18 and raised them at a far earlier point?
i 19
{
MR. MINOCK:
Two reasons.
First of all, as you i
l 2
remember, you had Mr. Eckert at the beginning of the
{
21 adjudicatory hearing saying we're still having problems 7
l 22 working the kinks out of this plan essentially, and it is 23 not final.
24 There's nothing on this record to impute -- other l
\\-
M than the fact that he is a member of a part-time county l
l
BW8,sy5 ll 70 I
commission -- to impute to him that all of the knowledge of
,m k_,
2 the county office of civil preparedness has regarding the 3
flaws in the plan.
4 JUDGE EILPERIN:
But you just got through reading 5
to us the Michigan emergency preparedness law, which 6
essentially says that that director works with the county 7
board of commissioners.
There certainly is no -- isn't it 8
to be expected that a fellow like Mr. Kuron who is interested 9
enough in the subject of emergency planning to have been a 10 witness in this case, to have been the representative of 11 CEE, would have made some inquiry of the Director of 12 Emergency Prepardness about how things were going?
13 I
'S (a) j MR. MINOCK: If you assume that Mr. Kuron received
{
14 an accurate answer to that, and if you assume that Mr. Kuron 15 understood the significance of that answer, which I do not 2
l 16 think is necessarily founded on this record, still the time 17 i of the adjudicatory hearing -- the only thing that Mr. Eckert 18 is saying is that there are still problems, and the plan is 19
{
not in final form yet.
Ij 20 I don't know how the Applicants can argue based on
{
21 that that it is institutionally available for CEE on one hand 7
j 22 i but Kuron should have known about how all these problems were l
23 going to get sorted out on the other hand.
Those developments 24 all came later.
('-~}
25 JUDGE EILPERIN: What new information, other than
BW8,sy6 71 1
the fact that there was a public meeting --
(~)
( j 2
MR. MINOCK:
Two public meetings.
3 JUDGE EILPERIN: Two public meetings critical of 4
the plan in various respects, what other information was 5
there?
What is the new and significant information?
6 MR. MINOCK:
For one thing, the County Director of 7
Emergency Preparedness maintains that the passing on of a 8
lot of expensive and extensive responsibilities was not in 9
the original draft plan.
Somebody stuck that in.
10 Their feeling is they have been finessed, and 11 somewhere along the line they stuck in a page that passed a 12 lot of responsibilities back down to them.
They said it
(}
13
' never was in the draf t plan.
A/
14 JUDGE EILPERIN:
Where is that in the record?
15 MR. MINOCK:
It is not in the record.
$j 16 JUDGE MOORE:
Is this part of your motion to 0
l 17 reopen?
I
{
18 MR. MINOCK:
No.
I did not want to bring him i
19 l out on Front Street on that.
g 20 JUDGE GOTCHY:
Should we regard the absence of any 21 emergency plangs anyone's emergency plan, state, county or f
22 Applicant's, in this record as some indication that CEE, 23 along with the other parties, agreed at a very early stage 24 not to pursue emergency planning issues?
(
M MR. MINOCK:
Once again, I do not see how the
7.2 i
BW8,sy7 statement by CEE's counsel that we're not seeking to expand 7_
I 2
\\/
contentions can be read to bar forever and forever the right 3
to raise the issues.
4 I think there is a substantial change in the 5
status of things when you have at least a county making a 6
prima facie showing that this plan will work,we're relying on it, we're still working out the kinks, but here at the 8
adjudicatory plan we have a plan, we're still working on it.
9 And later on, the county says, we have looked at this closer 10 and we really cannot implement it.
11 I still do not see how the county's negligence 12 can be imputed through Mr. Kuron, if you find the county was r~
(N)
! negligent to CEE as a whole.
CEE is in a different posture.
13 i
x-14 l We already had party status.
And when the county --
the
\\
n 15 change is not just the flaws in the plan that the county 3
2 16 5
discovered.
The change is tne county said we cannet implement 3
l
I g
it.
And that gives it, I think, a different flavor than the 2
18
[
county's simply dragging their feet.
l l
Even if you think Mr. Kuron should have been i
I I
0 quizzing Mr. Eckert during that year when he was on the r
21 county commission, I am not sure he would not rather, instead, j
rely on a department head rather than grill him.
But if you 22 23 assume that he should have been grilling him, the decision of 24 rg the county board and the specifics they laid out still were
(
)
\\_/
25 not made public until the summer of 1982.
BW8,sy8 73 i
As far as CEE is concerned, the first public y
O) statement by the board regarding their withdrawal from i
(
2 3
Participation in the planning process was when they authorized 4
4 their lawyer to file a petition to intervene.
+
5 I have a couple of other very brief points.
Mr.
6 Voigt suggested the licensing board did not make a finding I
7 on a plan.
The licensing board did, in fact, say in Para-8 graph 63 of the decision, the county has a completed version 9
of the plan that has been sent to FEMA for review, and the j
H) rest of the context of the paragraph indicates they were under 11 the impression that it was sent for formal review.
i 12 The fact that the plan is still under review now l
I think is only further support for our position that it is 13 14 still a changing document, and it is changing not just in
)
15 some small ways that you might expect in an emergency plan to j
n; change over time, but in some very significant fashion, 8
which renders it institutionally unavailable for litigation.
17
?
s pg As a matter of fact, Mr. Voigt said he's-going to e
i g
19 submit something to you from FEMA which is a memo of that I
20 meeting, infamous as it may be, with the state police, FEMA
=
i 21 and Monroe County representatives at Battle Creek on March 1, 1983.
I'm sorry, I said April.
It was March.
22 23 FEMA apparently said everything h really a cost l
24 question.
The correspondence -- internal correspondence 25 within the county and to the state police belie their i
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interpretation, that interpretation of the meeting, as i
2 theirs.
3 JUDGE EILPERIN:
If you have that internal B
4 correspondence, we would appreciate your serving that~on us 5
and the parties.
6 MR. MINOCK:
I will.
I The only point I wanted to make before I tell you 8
I'm going to serve you with it is that the number of consider-1 I
9 ations the county has told the state are prerequisites to 10 their beginning to rewrite all of the local annexes are 11 numbered A through L.
It is not just one; it is not just i
12 who is going to pick up the tab.
13 As far as the question of whether NRC or FEMA I4 regs require a local plan as an absolute prerequisite, as i
15 Mr. Voigt suggested, no, I think the answer is yes.
Senator
- j 16 Simpson a couple of weeks ago was grilling members of the 4
II Commission on FEMA about whether the regs requiring that were f.
possibly in conflict with one interpretation that could be I8 j
I f
[
given the authorization act.
I don't think that issue is I9 5
r ripe here for you to consider, but my answer would be yes,
[.
the regs require local participation, an d for good reason.
21 The good reason is that ultimately, if the state 23 and locals say we are not going to implement a plan -- for i
l 24 example, if they came to a head someplace and they said we 1
25 cannot evacuate, we will not have a plant, then obviously,
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there is a state-federal issue there that does not arise r
y s_,)
2 here over whether the utility can ever perform local govern-3 mental functions.
4 I do not think we get that far in this case.
I 5
think this case can be resolved primarily around the issues 6
I have pointed out regarding the motion to reopen.
I don't 7
think our drafting of the hospital contention is of any 8
significance at all.
I don't think that just because we 9
bail out of the contention on the availability of hospital 10 beds, as the staff suggests, that that has any relation at 11 all to the larger generic issue of the adequacy of the plan.
12 That h; one very, very small segment of that.
~
13
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The transcript reveals we did not do that, because N.s I4 l we did not have a witness to back up the contention.
l 5
15
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17 0
2 i
i 19 Ej 20 21 m
22 23 24
[N./
25
76 1
JUDGE EILPERIN: I tning you are beginning to get 2
outside of matters that were raised by other parties.
3 MR. MINOCK:
I do not want to go any further a
except to ask if you nave any questions.
5 (No response.)
6 MR. MINCCK:
Thank you very much for hearing me 7
out.
8 JUDGE EILPERIN:
Thank you.
9 Ihank you very much, lacies and gentlemen.
10
(,i h e r e u p o n, at 3:52 p.m.,
the oral argument in 11 tne above-entitleo matter was adjourned.)
12 13 14 g
15 16 17 18 19 i
20 l
21 22 23 24
(
25 TAYLDE ASSO CI A T ES 162 5 I Street, N. w. - S uit e 1004 W ashington, D.C. 20006 (202) 293-3950
CERTIFICATE OF PROCEEDI.GS
!\\
This is to certify that the attached proceedings before the 3
NRC COMMISSION 4
In the matter of: Detroit Edison Co. Fermi Atomic Power 3
Date of Proceeding:
May 4, 1983 s
i Place of Proceeding:
Bethesda,,,Md. _
7 were held as herein appears, and that this is the original g
transcript for the file of the Commission.
9 10 Barbara Whitlock Official Reporter - Typed 12 g,
1
}-
4{
'i3
~. -
~
Of ficiad Reporter - Signature 34 i
15 i
16 17 18 I
I9 20 21 22 1
23 2A fd 23 TAYLOE ASSOCIATES REGISTERED PROFESSIONAL REPORTERS NORFOLK, VIRGINIA t
.