ML20062M025

Response Supporting NRC 811116 Motion for Summary Disposition of Contention 5.No Genuine Issue of Matl Fact Exists

ML20062M025
Person / Time
Site:	Fermi
Issue date:	12/11/1981
From:	Voigt H DETROIT EDISON CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20062M028	List: ML20062M025 ML20062M047
References
NUDOCS 8112170047
Download: ML20062M025 (7)

Text

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. ... o 00CMETED C%RC UNITED STATES OF AMERICA NUCLEAR REGULATORY COf0!ISSION

~61 EC 14 P4:24 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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THE DETROIT EDISON CO!!PANY, ) Docket No. 50-341 g

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g et g. ) (Operating License) J *-

(Enrico Fermi Atomic Power

) R-Plant, Unit No. 2) ) .'. ghyp '

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"%p APPLICANTS' RESPONSE IN SUPPORT OF STAFF

??OTION FOR SUf41ARY DISPOSITION OF COMTENTION 5 /

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Pursuant to S 2.749(a) 'o f the Nuclear Regulatory Commission's Rules of Practice, the applicants for the operating license for the Enrico Fermi Atomic Power Plant, Unit No. 2 (" Fermi 2"), The Detroit Edison Company, Northern Michigan Electric Cooperative, Tnc., and Wolverine Electric Coooerative, Inc. (collectively "Apolicants"), hereby respond in support of the NRC Staff Motion for Summary Disposition of Contention 5 (" Staff Motion"), which was filed November 16, 1981. Contention 5 has bee- advanced by the sole intervenor in this proceeding, citizens for Employment and Energy ("CEE"). In supoort of the Staff Motion, Aoplicants will show bv affidavit and discussion that summary disposition should be granted as a matter of law.

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I.

S_ummary of Position v

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Contention 5, which is set out.in the Staff Motion

-at 6, essentially ' alleges- that. remotely read- radiation monitors at the Fermi-2 site' boundary and on Lake Erie are required to provide compliance with Part 20 and Part 50, Appendix I, of _the Commission's regulations conc .ning radiological monitoring. However, as the Staff Motion makes

clear, these regulations simply do not require remotely read radiation monitors either at the site ' boundary or of fsite.

Nor, as the expert affidavits of the Staff and Applicants show,-is a remote-reading monitor systen either needed or any more effective in determining radiation levels offsite than the existing system. Moreover, based upon CEE's responses to Apolicants' interrogatories, it is beyond doubt that the contention is merely the unsupportable opinion of CEF and does not rest on any issue of fact.

II.

Legal Standard for Summary Discosition It is not necessary to repeat the- Staff's statement of the well-established standards for summary diseosition. However, it should be noted that summary disposition of demonstrablv insubstantial contentions is not only permissible, 10 C.F.R. S 2.749, but the preferred and efficacious means of handling such issues. Houston Lichting

and Power Co. (Allen's Creek Nuclear Nuclear Generating Station, Unit 1), ALAB-590, 11 NRC 542, 550 (1990). Indeed, au the Staff Motion points out, in a recent Statement of Policy the Cormission encouraged licensing boards and parties to licensing proceedings to invoke the summary disposition procedure on matters where there is no issue of material fact. Statement of Policy on Conduct of Licensing Proceedinas, 46 Fed. Reg. 28533, 28535 (May 27, 1981).

In this proceeding, even when viewed in the most favorable light, CEE has utterlv failed to show that any genuine issue exists as to Contention 5. It would be useless, unfair to the other parties, and contrary to the public interest to devote additional resources to hearing on a contention that is so clearly a soeculative opinion and contrary to all the evidence. According1v, the Board should summarily dispose of Contention 5 on the cleadings.

Philadelohia Electria Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-654 (Sept. 11, 1981).

III.

Lack of Genuine Issues of f~aterial Fact Applicants concur with the Statement of Material Facts as to which No Genuine Issue Exists submitted with the Staff Motion. Moreover, it has recentedly been made clear that CEE does not have any evidence with which to controvert these facts or otherwise supoort its conclusorv opinion.

. .. . ton' March 27, _1979 Applicants served CEE'with a set

,0f_ ' interrogatories pursuant to' 10 C.F.R. S 2.' 7 4 0b and the March 21,11979 Order of this Board.- Interrocatory 5 of that set requested the following:

With respect.to Contention 5, identify each (a) spe'cific provision of 10 C.F.R. Part 20 and 10 C.F.R. Part 50 to which CEE contends the radiation.

monitoring system will not conform during plant operation; and (b) specific provision of Applicants' emergency plan which CEE contends Applicants could not implement as a result of the deficiencies alleged.

CEE's resconse to this interrogatory on Julv 6, 1979 suggested that its contention was nothing more than unsupported opinion:

10 C. F. R. - part 20 and 10 C.F.R. Part 50 set general criteria for radiation monitoring systems.

CEE_ contends that the lack of provision for:

oantinuous monitoring that can be read remotely does not conform with the general criteria. CEE needs to review applicant's site qmergency plan to respond to (b).

Followirg this response, Apolicants moved on July 19, 1979 to compel further response from CEE because in an earlier stage of the proceeding CEE had suggested it possessed "more i information" on Contention 5. Transcript at 173. In i response to the motion to compel, CEE in e f fect confirmed its lack.of any genuine issues relating to the Commission's radiation monitoring requirements:

We reiterate our previous response in that_ 10 C.F.R. Part 20 and _10 C.F.R. Part 50 set general criteria for monitoring systems. We feel that the lack of-a continuous monitoring system on the lake and at- the site boundarv does not meet the requirenents of these two regulations.

- Specifically, . the presence of a water intake for

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_ , . s. I the city of Monroe very close to the plant, makes it: critical that' Applicant- know at all times

-whether there are. unacceptable radiation levels on or in the lake so that city authorities can be notified immediately. Secondly, as- we have pointed- out in another contention, Applicants' site evacuation plan will force certain residents

1. 1eeing _ from an accident at the plant to- come closer to the site boundary in order to escape.

. CEE 's . Response: - to Applicants' Motion to Compel Discovery (Augusty 2, 1979), at 2. (emphasis in original).

CEE failed to- -identify how, as contended, Applicants'- radiation surveillance and monitoring plan violated Commission regulations.- Although CEE expressed concern with the Monroe municipal water intake and an evacuation route, CEE has never attempted to show that_the many monitoring and sampling stations and systems in the plant :and offsite are insufficient to give adequate information about normal or accidental emissions. Although Applicants have made their emergency plan and all revisions thereto available to CEE, CEE has never given any further response to Applicants' interrogatories. See 10 C. F . R.

S 2. 740 (e) . Nor had CEE even hinted at how stationary remotely read monitors would meet its concerns or what additional benefits would be achieved with such monitors.

To the contrary, the expert opinion of Dr. Wayne Meinke submitted with the Staff Motion, as well as the conclusions of Applicants' own consultant discussed below, show that Applicants' comprehensive monitoring system is adequate and that little, if any, additional benefit could be expected from a en tly, remotely read monitoring system.

, ,c 6-IV.

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Relative. Merits of Monitoring'Svstems Dr. Wayne. Meinke, the' Staff affiant whose responsibility' it- is . . to review Fermi 2 radiological:

monitoring systems, shows that .. the system' installed at the Fermi 2 site ~and surrounding area is sufficient to determine n'ornal and accidental radiation. levels offsite and to comply

'with the Commission's regulations in Part 20 and'Part 50.

The attached affidavit of Gerald R. Davidcon, a ohyscist emploved by. Sargent & Lundy and retained by Applicants, reinforces Dr. Meinke's conclusions. -Dr.

Davidson points out that there are no major advantages to remote monitoring with regard to projection of dose rates at distant locations. Furthermore, there are serious deficiencies with continuous, remotelv readable monitors

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that have been widely recognized by both government and industry panels. He shows that both'the Federal Interagency-Task Force on Offsite Emergency Instrumentation for Nuclear-.

Incidents and the National Environmental Studies Proiect of the Atomic Industrial Forum do not recommend stationary, remotely read monitoring systems. Finally, Dr. Davidson's affidavit-confirms that such difficulties and unreliability would exist . for

• both land and lake-based remote monitoring devices.

The weight of t his authority, and the utter lack of anv evidence to the contrary from CEE, demonstrates that

Applicants' : radiological' environmental monitoring systems compiv with Commission's regulations, and-that remotely read monitors . are costly,. unreliable ' and ~ would add little, i f.

any, benefit.to Applicants' Lability to monitor or:resoond to radiation releases.-

Conclusion For the foregoing reasons, Applicants submit that.

the Staff Motion ' for summary disposition of Contention 5 should be granted as a matter of law.

Respectfully-submitted, LeBOEUF, LAMB, LEIBY & MacRAE By AAfys/ 6l(.

'HargH. Voigtj 1333 New Hamoshire Avenue, N.W.

L. Charles-Landgraf Suite 1100 Washington, D.C. 20036 Peter A. Marquardt (202) 457-7500 Bruce R. Maters 2000 Second Avenue Attorneys for Applicants Detroit, Michigan December 11, 1981 4 -