ML20076K227

Answer Opposing Citizens for Employment & Energy 830622 Petition for Review of Aslab 830602 Decision ALAB-730, Affirming ASLB 821029 Initial Decision LBP-82-96 Re OL Issuance.Petition Should Be Denied.Certificate of Svc Encl

ML20076K227
Person / Time
Site:	Fermi
Issue date:	07/07/1983
From:	Voigt H DETROIT EDISON CO., LEBOEUF, LAMB, LEIBY & MACRAE
To:	NRC COMMISSION (OCM)
References
ALAB-730, ISSUANCES-OL, LBP-82-96, NUDOCS 8307080302
Download: ML20076K227 (13)

Text

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(b f hE JUL 2 7. 1983 ,  ;

Y' C: ll UNITED STATED OF AMERICA Egreg 1ce "ttthek NUCLEAR REGULATORY COMMISSION cp N- '

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BEFORE THE COMMISSION In the Matter of )

)

THE DETROIT EDISON COMPANY, et al. --

) Docket No. 50-341(OL)

)

(Enrico Fermi Atomic Power Plant, )

Unit 2) )

i APPLICANTS' ANSWER OPPOSING CEE'S PETITION FOR REVIEW Harry H. Voigt j of Counsel: L. Charles Landgraf Peter A. Marquardt LeBOEUF, LAMB, LEIBY & MacRAE Bruce R. Maters 1333 New Hampshire Ave., N.W.

THE DETROIT EDISON Suite 1100 COMPANY Washington, D.C. 20036 2000 Second Avenue (202) 457-7500 Detroit, Michigan 48226 l

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July 7, 1983 Attorneys for Applicants 8307080302 830707 PDR ADOCK 05000341 Q PDR .,

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UNITED STATED OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION i

In the Matter of )

)

THE DETROIT EDISON COMPANY, _e _t _a _l . ) Docket No. 50-341(OL)

)

(Enrico Fermi Atomic Power Plant, )

, Unit 2) )

APPLICANTS' ANSWER OPPOSING CEE'S PETICION FOR REVIEW The Detroit Edison Company (" Detroit Edison")

and Wolverine Power Supply Cooperative, Inc. (collectively, the " Applicants"), pursuant to Section 2.786(b)(3) of the Ccmmission's Rules of Practice and Procedure, hereby submit their Answer Opposing the Petition for Review, dated June 22, 1983, of Citizens for Employment and Energy ("CEE"),

the only intervenor in this proceeding. CEE's Petition seeks review of the June 2, 1983 Decision of the Atomic Safety and Licensing Appeal Board, ALAB-730, which affirmed in all respects th* Cetober 29, 1982 Initial Decision

("I.D.") of t'.4 maca c Safety and Licensing Board, LBP-82-96, l

16 NRC , autuorizing issuance of an operating license to Applicants for the Enrico Fermi Atomic Power Plant, Unit 2 (" Fermi 2").

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Introduction CEE seeks Commission review of two of the three general issues decided in ALAB-730, but its Petition grossly mischaracterizes the Appeal Board's holdings and the record evidence on both issues. First, CEE claims that the Appeal Bcard decided that Monroe County, where Fermi 2 is located, "need not have a [ Radiological Emergency Response Plan] before issuance of an operating license."

Petition at 1. The Appeal Board held no such thing. All that the Appeal Board decided was that "offsite plans need not be complete, nor finally evaluated by FEMA prior to conclusion of the adjudicatory process." ALAB-730, slip op. a t 13 (emphasis added). The Appeal Board went on to reject CEE's untimely effort, five months after hearings were concluded, to reopen the record on emergency planning.

Second, CEE objects to the Appeal Board's affirmance of the Licensing Board's finding that CEE had waived its right to raise emergency planning issues. As the Appeal Board rightly concluded, the record "is open to no interpretation other than waiver." ALAB-730 at 17.

CEE's conduct was unambiguous. Its present counsel appar-ently feels free to argue otherwise because he was not involved in the earlier phases of this proceeding. How-ever, the present CEE representative (s) have standing now only because of CEE's earlier intervention, and they do not

have the luxury of creating a new theory of the organiza-tion's interests long after those have been defined and the evidentiary hearings have concluded.

The final matter decided in ALAB-730--that the record supports the Licensing Board's finding that there is a feasible evacuation route for residents of the Stony Point area, which lies within the 10-mile plume Emergency Planning Zone (EPZ)--is not addressed in CEE's Petition.

Apparently, CEE finally has conceded that road leading away from Stony Point is an adequate route. Certainly, CEE has now waived any right to object to that conclusion. In any event, substantial evidence supports the Licensing Board's findings, and the Appeal Board properly affirmed. ALAB-730 at 18-25.

Argument I.

THE APPEAL BOARD PROPERLY CONCLUDED THAT MONROE COUNTY'S EMERGENCY PLAN WAS SUFFICIENTLY DEVELOPED TO PERMIT CEE TO FORMULATE CONTENTIONS BEFORE HEARING.

CEE's position on the state of Monroe County's emergency planning has become progressively more strident and disingenuous. CEE has moved from contending in its appeal from the Initial Decision that Monroe County had not

" formally approved" its emergency plan (CEE Brief on Exceptions at 1) to its present position that Monroe County

"does not have [a plan] and will not implement the draft version which has been developed." Petition at 2.

CEE's current statement can most charitably be characterized as a play on words. Monroe County, of course, has an emergency response plan. The record estab-lishes that Monroe County has been involved in radiological emergency planning at least since early 1980. The County itself forwarded the plan to the Michigan State Police for review and approval in November 1981. Indeed, the plan was sufficiently developed by that time to allow its evaluation by the Federal Emergency Management Agency

(" FEMA"). Moreover, Monroe County participated actively in a full-scale exercise of the plan in February 1982, two months before the hearing in this proceeding. I.D. 15 63,64. There is no evidence that Monroe County will refuse to " implement" the plan, and it is irresponsible for CEE to suggest otherwise.

The status of the Monroe County plan is relevant at this stage only to the extent CEE suggests it could not have earlier expressed its recent concerns because the plan was insufficiently developed. In ALAB-707, 16 NRC (Dec. 21, 1982), the Appeal Board upheld the Initial Decision's denial of Monroe County's attempt to intervene in this proceeding in August 1982, long after the completion of the evidentiary hearing. The Appeal Board

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ruled that Monroe County did not have good cause to defer questioning the completeness or adequacy of its emergency plan until the hearings were over, reasoning that the matters which the County sought to raise regarding the plan's alleged inadequacy and incompleteness--e.g. ,

condition of the roads in the plant vicinity, effect of winter weather, availability of buses and emergency workers--

were well within the understanding of a local government unit and could have, and should have, been raised before the hearing. ALAB-707, supra, 16 NRC at , (slip op.

at 7).b!

In ALAB-730, which is under attack here, the Appeal Board did not hold that a County emergency plan was not required. The Appeal Board merely held (1) that CEE stood in no better position than Monroe County did in the j latter's appeal, and that (2) any " lack of complete-ness" of the Monroe County plan, standing alone, did not preclude issuance of a full power operating license. CEE's mischaracterization of ALAB-730 ignores the Appeal Board's discussion of its earlier decisions in Cincinnati Gas &

Electric Co. (Wm. H. Zimmer Nuclear Power Station, Unit No.

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t j 1/ The Appeal Board nevertheless found that some of Monroe County's concerns might merit attention and referred l

l its petition to the NRR Director to treat as a 10 C.F.R.

! i 2.206 petition. The record establishes that it is under

! active consideration by NRR and FEMA, and that any deficien-cies are being addressed in a cooperative manner. See ALAB-730 at 6, n. 5.

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i 1), ALAB-727, 17 NRC (May 2, 1983) and Southern Ca3ifornia Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC (Mar. 4, 1983). "[H] earings may properly be held [and a decision on a full power operating license reached] at such time as the plans are sufficiently developed to support a conclusion that the state of emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken . . . .

Zimmer, supra, 17 NRC at (slip op. at 26). It is plain from the Commission's regulatory require-ments that offsite plans need not be complete, nor finally evaluated by FEMA, prior to conclusion of the adjudicatory process. San onofre, supra, 17 NRC at (slip op. at 65-66 & n.57); Zimmer, supra, 17 NRC at (slip op. at 25). See 47 Fed. Reg. 30232 (July 13, 1982), petition for review pending sub nom. Union of Concerned Scientists v.

NRC, No. 82-2053 (D.C. Cir., filed September 10, 1982); 45 Fed. Reg. 82713 (Dec. 16, 1980). See also 10 CFR 50.47(c)(1).

As the Appeal Board pointed out, Monroe County's

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emergency plan, whether or not " final", before the hearing had already been the subject of the emergency preparedness exercise which, under the Commission's regulations, need not even be conducted prior to an operating license decision by the adjudicatory boards. Moreover, the Monroe County plan

had also been the subject of a final FEMA finding. !

CEE's claim that Monroe County does not have a plan, and that the Appeal Board and Licensing Board thereby erred in issuing decisions favorable to the Applicants, must be rejected.

Finally, no procedural rights of CEE were violated.

CEE raised no objections to the Licensing Board's going forward with the hearing when it did. CEE had an opportunity, which it forsook, to contest whether the plan was adequate or could be implemented. ALAB-730 a t 15. Indeed, as we show below, CEE had no intention of raising the adequacy of the emergency plan as an issue until long af ter the hearings were complete.

I II.

THE APPEAL BOARD PROPERLY UPHELD THE LICENSING BOARD'S RULING THAT CEE WAIVED ANY

, RIGHT TO LITIGATE EMERGENCY PLANNING ISSUES.

The Appeal Board recounted at length the actions and statements of CEE's previous counsel, which show that CEE voluntarily relinquished in advance of the evidentiary

hearing any right to litigate emergency planning issues i other than the feasibility of the Stony Point area evacua-l tion route. ALAB-730 at 2-5, 16-18.

I As the Appeal Board further pointed out (at 17),

it is wholly inconsistent with the tenor of the record for l

2/ FEMA's report was the subject of a May 19, 1982 Board Notification that was served upon CEE. See Board Notifica-tion BN-82-50, Enclosure 1.

CEE's present counsel to contend that CEE intended to preserve for appellate review the Licensing Board's ruling 2-1/2 years earlier which struck a broadly generalized contention on inadequate emergency planning. There was no ambiguity in the statements made by CEE's counsel at the July 22, 1981 prehearing conference. Tr. 192, 193, 208.

CEE's Petition shows no reasonable alternative interpre-tation. Moreover, as the Appeal Board added, the struck portion of CEE's original contention had no basis in either the then-effective or proposed emergency planning regulations.

Even under the current rules adopted in 1980, evacuation plans must be developed only for an area within a 10-mile radius, not the 100-mile radius that CEE's original con-tention sought to put in issue. See 10 C.F.R. 50.47(b)(10)

& (c)(2)- 10 C.F.R. Part 50, Appendix E, 5I n.2.

CEE's Petition seems to suggest (at 5) that CEE was surprised by Monroe County's "reve la tion" in the la tter's untimely Motion to Intervene in August 1982 that the County considered its plan inadequate, and that this "new and significant informa tion" gave CEE a basis for its subsequent Motion to Reopen the Record. As shown above, the County was found to be inexcusably late in seeking to raise the emergency planning issues long after hearir.g.

That matter was disposed of in ALAB-707, which has become a final Commission action not open to collateral attack by CEE.

Moreover, as the Appeal Board (and the Licensing Board) found, the County's knowledge was properly imputed to CEE. The plan " deficiencies" that each sought to raise after hearing obviously were matters that either could have observed well before the hearing. More important, Frank Kuron, CEE's only witness at hearing and the organization's only apparent member throughout this proceeding (other than its series of legal counsel), has been a member of the Monroe County Board of Commissioners since January 1981--

more than a year before the hearing. The record in this proceeding shows that for more than a decade Mr. Kuron has devoted considerable efforts to opposing construction and operation of Fermi 2. His opposition to Fermi 2 appears to be the sole motivating force behind CEE. It is inconceivable that, as a Monroe County Commissioner, he would have been unaware of the County's planning with respect to a project

. of such consuming interest to him. The suggestion in CEE's Petition that imputing knowledge of the County's emergency planning to Mr. Kuron (and therefore to CEE) in 1981 or early 1982 is analogous to assuming each member of Congress is familiar with " day to day operations of the NRC" (Peti-tion at 5) is patently absurd. CEE's Motion to Reopen in September 1982, five months after hearing, on the pretext that the County's equally late attempt to intervene revealed

information new to CEE, was rank opportunism, and was properly denied by the Licensing Board and upheld by the Appeal Board.

Contrary to CEE's suggestion, no important questions of law, policy, or fact are raised by its latest pleading. CEE has had full access to the adjudicatory process, has occasioned an otherwise unnecessary hearing, and has repeatedly failed to live up to its concommitant responsibilities, as demonstrated by its bare-bones testi-mony, meager cross-examination at hearing, and failure to submit proposed findings and conclusions thereafter.

Conclusion For the foregoing reasons, CEE's Petition for Review must be denied.

Respectfully submitted, LeBOEUF, LAMB, LEIBY & MacRAE By dNt4f F(cry H. Voip Of Counsel: 1333 New Hampshire Ave., N.W.

Suite 1100 L. CHARLES LANDGRAF Washington, D.C. 20036 (202) 457-7500 PETER A. MARQUARDT BRUCE R. MATERS The Detroit Edison Attorneys for Applicants Company 2000 Second Avenue Detroit, Michigan 48226 July 7, 1983

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UNITED STATED OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

THE DETROIT EDISON COMPANY, et al. ) Docket No. 50-341(0L)

)

(Enrico Fermi Atomic Power Plant, )

Unit 2) )

CERTIFICATE OF SERVICE I hereby certify that I have this 7th day of July, 1983, served the foregoing document, entitled Appli-cants' Answer Opposing CEE's Petition for Review, by mailing copies thereof, first class mail, postage prepaid, and properly addressed, or by personal delivery where indicated, to the following persons:

Stephen F. Eilperin, Esq. Thomas S. Moore, Esq.

Chairman, Atomic Safety and Atomic Safety and Licensing Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 4350 East West Highway 4350 East West Highway Bethesda, Maryland Bethesda, Maryland (personal delivery) (personal delivery)

Dr. Reginald L. Gotchy Daniel Swanson, Esq.

Atomic Safety and Licensing Office of the Executive Appeal Board Legal Director U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission 4350 East West Highway Washington, D.C. 20555 Bethesda, Maryland (personal delivery)

(personal delivery)

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Mr. Robert J . Norwood Colleen Woodhead, Esq.

Supervisor Office of Lne Executive Frenchtown Charter Township Legal Director 2744 Vivian Road U.S. Nuclear Regulatory Monroe, Michigan 48161 Commission Washington, D.C. 20555 John Minock, Esq. (personal delivery) 305 Mapleridge Ann Arbor, Michican 48103 Secretary U.S. Nuclear Regulatory Monroe County Library System Commission Reference Department Washington, D.C. 20555 3700 South Custer Road Attn: Docket and Service Monroe, Michigan 43161 Section (orig. plus 5)

(personal delivery)

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L. Cnarles Landgraf/ p'/

LeBOEUF, LAMB, LEIBY & MacRAE Attorneys for Applicants l

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