ML20064N813

Brief Appealing ASLB 821029 Initial Decision.Monroe County Has Not Adopted Emergency Evacuation Plan.Board Findings on Contention 8 Erroneous & Should Be Reversed.Certificate of Svc Encl

ML20064N813
Person / Time
Site:	Fermi
Issue date:	02/09/1983
From:	Minock J CITIZENS FOR ENERGY & EMPLOYMENT
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8302160343
Download: ML20064N813 (11)

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- s 1 UNITED STATES OF KERICA NUCLEAR REGULKIORY COK4ISSION DCLffi,ED BEEORE THE A'IGiIC SAFEIY AND IlCENSING APPEAL BOARD

'83 FEB 15 A!0:11 In the Matter of )

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THE DEI'ROIT EDISON CD1PANY, et al. ) Docket to. 50-341'_.

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(Enrico Fermi Atmic_ Power Plant, )

Unit 2) )

CEE'S BRIEF ON APPEAL Citizens For Employment and Energy was admitted as a intervenor in this proceedings on January 2, 1979. CEE participated in an adjudicatory hearing before the Licensing Board on March 31, April 1, and April 2, 1982. The Initial Decision was issued on October 29, 1982. CES timely appealed that Decision and filed Exceptions to the Initial Decision on Noverrber 8,1982.

d I. Monroe County Has Not Adopted An Emercency Evacuation Plan. -

Monroe County sought leave to intervene on these pt - M ngs and was denied ,

that permission by the Licensing Board on October 29, 1982. CEE's Answer supported the County. The County's intervention pctition was related to a number of  ?

emergency planning probl e s outside of the County's control. The decision of the

' Licensing Board was affinned in part and modified by the Appeal Board on Deceber <

31, 1982. The Appeal Board referred the County's petition to the irector of Nuclear Reactor Regulation to be treated as a 10 E R 2.206 petition.

In its appeal, the County pointed out that the Licensing board was in error when it found in the Initial Decision, paragraph 63, p. 40, that the County has "a cmpleted version of the plan." A draft version of the plan 1

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's a was suhritted to FDR in Novenber of 1981, for informal review. The Comty has never adopted a final version of the p' tan. However, in a letter dated March 22, 1982, but not received by FDR until September 15, 1982, the Michigan State Police requested formal review of the plan by FDR. 47 Federal Pegister 47321, October 25, 1982. In violation of Michigan law, FCIA 30.401 ff., the State Police forwarded the plan as though it had been approved by the County. On the contrary, the County has not done so to this date.

If the Appeal Board has any doubts about this question, verification can be obtained fran the County.

The significance of this error in the Licensing Board's Initial Decision will be discussed infra.

II. The Licensing Board Erroneously Struec CEE'S Contentien Relating 'Ib Emergency Planning And Evacuation.

In its Amended Petition to Intervene, CEE's Contention #8 raised the broad issue of erergency planning. The Contention read as follows:

8. Emergency plans and procedures have not been adequately developed or entirely conceived with respect to an accident which could require inmediate evacuations of entire towns within a 100-mile radius of the Fermi 2 plant, including Detroit. In particular, CEE is concerned over whether there is a feasible escape route for the residents of the Stony Pointe area which is adjacent to the Fermi 2 site. The only road leading to and fran the area, Pointe Aux Peauz, lies very close to the reactor site. In case of an accident the residents would have to travel towards the accident before they could move away fran it.

On January 2, 1979 the Licensing Board struck all of Contention #8, except t.he, portion related to Stony Point, because it was "too broadly written and not supported by any information which would warrant a conclusion that such plans i -

are necessary." 9 NRC 73, 80-81 (1979) .

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In the Initial Decision, paragrapho 80-81, pp. 49-50, the Board said, in answering CEE's Motion to Reopen the Record, that CEE had voluntarily relinquished its right to litigate Contention #8. In light of the Board's adverse ruling on January 2, 1979, the fact that CEE did not seek to resurrect the broad issue of emergency planning in the stipulated contentions of March 5, 1979 or in the second prehearing conference on July 22, 1981, does not lead to the conclusion that CEE relirquished anything. CEE was simply abiding by the Board's ruling of January 2, 1979. That ruling was not appealable in an interlocutory manner, and could only le appealed after the issuance of the Initial Decision. 10 CFR 2.730(f); 2.760; 2.762. Pennsylvania Power and Light Canoany, ALAB-641,13 NRC 550 (1981); Cincinnati Gas and Electric Co., ALAB 633,13 NRC 94 (1981) . The ruling disrcissing most of Contention #8 was erroneous.

Generally, reasoncble specificity is required of intervenors' contentions.

10 CFR 2.714(b) . However, the adequacy of off-site emergency plans for units of local goverment are appropriate issues for a Licensing Board adjudicatory hearing. 10 CFR 50.47(a) . Since the energency evacuation plans were not yet written, it was error for the Board to severely limit Contention #8. Instead, the Board should have allowed the contention conditionally, subject to further clarificationwhen the off-site plans were written.

In Duke Power Ccmocny, LBP 82-16, 15 NRC 566 (1982), another Licensing Board

faced this very same issue. Instead of outright dismissal of the contentions there, the Board admitted conditic.nally. As the Board said in rejecting the Applicants' and Staff's argtraents regarding specificity

Apparently in recognition of the unfairness in such a squeeze play, it has not been uncmmon for licensing boards to admit vague contentions conditionally, sub-ject to later specification, or to defer rulings on scme contentions until the necessary documentation is available. 15 NRC at 572.

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• i" The Board went on to explain a number of reasons why spzcificity in these circumstances, before an off-site plan was even written, was unreasonable.

There are several practical reasons to reject this argument. In the first place, it is very difficult to express concrete concerns about m ergency planning in the abstract, without reference to specific s er-gency plans. It is probably a waste of time for all concerned, including this Board, for intervenors to develope ' concerns' that mergency planners, working independently, may be fully addressing. The sensible approach is for a potential intervenor first to study proposed mergency plans, and then to decide whether he finds flaws in Gem which he may wish to contest.

Moreover, for;ing intervenors to shoot in the dark may encourage fabricadon of artificial, frivolous and perhaps even spurious contentions, because by necessity they a e based on little more than imag-ination. 15 NRC at 573.

The Board also found that precluding off-site emergency planning issues frm the adjudicatory hearing process would violate the Atmic Energy Act. Congress did not intend to limit the right of the public to litigate health and safety issues under the Atmic Energy Act. The Act unequivocally requires that in any proceeding for the issuance of a license, the Ccmnission must grant a hearing to l any party whose interest may be affected by the proceeding. 42 U.S.C. 2239 (a) .

! Under long-established Ccmnission practice, those hearings must be formal adjudica-tions in conformance with the Administrative Procedure Act. Siegel v. Atmic a

Energy Ccmnission, 400 F.2d 778, 784 (D.C. Cir. ,1968) . The scope of the hearing l

offered must include "all relevant matters" [Siegel, supra, at 785], and a hearing can be avoided only where "there are no material facts in dispute." Public Service Cmpany of New Hampshire v. FERC 600 F.2d 944, 955 (D.C. Cir., 1979). The suffi-l l ciency of offsite mergency planning is highly relevant to thedeterminationwhich must be made before a license can issue that such a license will not be irdmical l

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to the public health and safety. 42 U.S.C. 2113(d) . The evaluation of off-site plans involves material factual issues which intervenors are entitled to dispute under the Administrative Procedure Act. Therefore, to withdraw off-site plannin frm licensing adjudications and allow their resolution by the Staff, as this decision permits, would constitute a h3atant violation of 5189a and the Admini-strative Procedure Act, and would deny CEE due process in the litigation of lice-conditions. Moreover, licensing boards may not delegate contested matters to th Staff for posthearing resolution. See Public Service Cmpany of Indiana (Marble Hill Nuclear Generating Station, Unit No.1), AIAB-461, 7 NRC 313, 318 (1978);

Metropolitan Edison Co. (Three Mile Island Units 1 and 2), LBP-81-59,14 NRC 12 (1981). The decision in effect allows a full power license to be issued by the Staff, in violation of the ccnmission's requirment that licensing boards resolve [ contested licensing issues] openly and on the record after giving the parties . . . an oppor-tunity to cument or otherwise be hard.

Cleveland Electric Illuttinating Co. (Perry Nuclear Power Plant, Units 1 and 2),

IAAB-298, 2 NRC 730, 736-7 (1976) .

Here, as in Duke Power, CEE Contention #8 relating to off-site planning sho; have been admitted conditional 3v and the hearing on it deferred until such time i

, Monroe County adopts a plan. Since the County has not yet done so, the issue is t

• not even ripe for hearing. Such a bifurcated adjudicatory hearing is not an un-l reasonable burden on the Licensing Board or the parties in light of the signific.

of safety planning issues and the right to litigate th m. The Boards could simp hold tne record open on off-site planni g until the plan was produced and decide any other issues in the meantime. See also Union of Concerned Scientists Petiti r

1 j For Ralemaking Re: 10 CFR 50.47, 47 FR 51889, Novmber M,1982, and supporting doctnentation.

The decision of the Licensing Board of January 2, 1979, dismissing CEE's 2

contention #8 should be reversed, and 's. case should be renanded to the Licensing Board for a hearing on off-site emyancy planning issues to be held after Monroe County approves a plan.

III. The Liceruing Board Erred In Finding That 'Ihere Was A Feasible Escape ibute For The Residents of Stony Point.

In Paragraphs 41-57, pp. 25-37, of the Initial Decision, the Licensing Board detailed the testimony regarding the evacuation of Stony Point. CEE took exceptions, Numbers 16-24, to those findings. As the Board said at Paragraph 41, p.24:

The parties viewed this Contention as alleging that Pointe Aux Peaux Road is not an adequate evacuation route for the residents of Stony Point. There was no dispute as to whether Pointe Aux Peaux Road lies close to the reactor - it clearly does - or whether it is the sole evacuation route frm Stony Point - it clearly is - or whether in using the Road the residents of Stony Point would be forced to move toward j the reactor before moving away frm the reactor - they

. clearly would. The sole issue was whether, given these l fact , the road is a feasible evacuation route.

The Board found that nothing about Pointe Aux Peaux Road itself made it unique so that it was infeasible as an evacuation route. Paragraphs 49-50, pp. 30-31. The l Board discounted the significances of accidents or weather. .Id. The Board also found that evacuation along the road could be accmplished within 1 to 2h hours a

which was reasonable. Faragraphs 44-48, pp. 25-30. The Board also found that travelling on the direction of the reactor did not render the evacuation route .

infeasible. Paragraph 57, pp. 36-37.

The finding that Stony Point could be evacuated within 2 hours2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> was erroneous.

Pointe Aux Peaux Road is the only way in and out of Stony Point. An accident blocking the road would bring the evacuation Lo a halt for*as long'as it'took to clear it.

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There are no alternate routes. The Applicant's witnesses, Ms. Madsen and Mr. Kanen, relied upon the Monroe County Emergency Plan as the basis for their conclusion that an accident would not block the road for long. Tr. 420-423.

However, in its findings the Board concluded that mergency evacuation plan issues were outside the sccpe of the contention. How this could be so when the witnesses, whose conclusions the Board accepted, relied on a plan in draft fom escapes a rational analysis. The witnesses did not consider the availability of police and equipnent in reaching their conclusions.about the time needed for evacuation, but relied upon the adequacy of the County's plan. (Tr. 423-424).

As was pointed out above, the plan is only in draft fom and if full cf probles, scme of which the County noted in its intervention pleadings.

If only one lane was blocked, the route becmes inadequate because workers returning hme, vehicles to transport handicapped persons and those without trans-partation cannot enter Stony Point. For Pointe Aux Peaux Road to be considered

" feasible" it must be available to traffic leaving and entering Stony Point. A simple road repair closing one lane would render the Pointe Aux Peaux Road not feasible for evacuation.

Workers returning to Stony Point to secure their hmes and evacuate their families, buses to transport those without private vehicles and special transport for the handica,oped becmes significant for another reason. To insure a timely evacuation with the 2 hour2.314815e-5 days <br />5.555556e-4 hours <br />3.306878e-6 weeks <br />7.61e-7 months <br /> limit accepted by Board, it would be necessary to l

establish the time needed for the workers to return hme, buses to enter Stony Point and handicapped persons safely transported. The Padsen and Kanen testimony failed to take all of these factors into their studies of time estimates, r

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Kanen states that no dmographics have been done to establish where residients are m ployed p. 420. Madsen states she has no knowledge of handicapped persons in Stony Point. P. 409. Kanen also shows no knowledge of handicapped persons (p. 413). Kanen estimates that 50 to 70 per.ple would need public transportation in order to evacuate (p. 413) . Yet there is no estilrate of the time frame necessary to provide this transportation.

The Staff's witnesses, Mr. Urbanek and Mr. Kantor echoed the reasonableness of the 21s hours tire estimate. Mr. Urbanek considered the proble of weather, but like the other witnesses did so inadequately. Urbanek. ff. Tr. 533. None of the witnesses estimated the possible additional delays due to r*M visibilitt,r and %e increased likelihood of accidents in heavy rain, snow, or fog. With only one road in and out, the signficance of those probles is magnified greatly, at least for the citizens of Stony Point if not for Edison and Staff. Ironically, on the night of the public hearing on the controlled exercise of the ~ draft plan, February 3,1982, there was a snowstonn. The State Police, who conducted the hearing and refused the County's request to adjourn it, i:.unically also issued a " red alert", ordering all but mergency vehicles off the roads. Situations like that would wreak havoc on the rosy evacuation time estimates the Board l

erroneously adopted.

In addition, the residents of Stony Point most travel in the direction of the reactor in ordar to evacuate. Id., Paragraph 51, p. 31. As the Appeals Board l

said in Southern California Edison Capany, AIAB-248, 8 AEC,957, 963 (1974):

It strains credulity to expect that people will drive f closer to a reactor in order to escape fran an emer-gency generated by the reactor. In the veracular, it ,

might appear to the that they were jumping fran the frying pan into the fire.

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Mr. Kantor testified that travelling in the direction of the reactor would not significantly increase an evacuee's radiation dose. (Tr. 559) . The Board found hoever that under certain circumstances travel in the direction of the reactor could increase the dose. Paragraph 54, p. 33. The Board found that risk to be negligible because it found a lw probability for the occurrence, and because the increase in dosage was still within co-called " safe limits".

Paragraphs 55-56, pp. 35-36. Those finding are based on two erroneous assumptions.

First of all, the accidents postulated by the witnesses and the Board were within the range that would ensure that the releases were controlled by the utility.

(TR 450-451) . Secondly, the accident postulated is characterized as " serious."

Paragraph 55, p. 35, but definitely not a worst case scenario.

The Board had great difficulmy accepting the conclusions of the Applicant's witnesses. (TR. 519-520; 524). Given sone of the questions fran the Board and answers given by Mr. Hungerford, this is not very surprising. See, e.g., TR. 492-497. Just what changed the Boar 2's minds about the problen of dose calculations is unclear, for the only witnesses who testified subsequently were those of the Staff, and their prirrary reacsurance on this point was that the Stony Point situation was rat unique. (TR. 548).

The Staff witnesses, Mr. Kantor and Mr. Anthony, relied in their testimony on the adequacy of the draft County plan, according to Staff counsel. (TR. 520).

How the Board can logically accept the conclusions of witnesses who in turn rely on their assessment of the adequacy of the draft CLunty plan which the County does not feel is adequate in many respects is beyoM analysis. The Boani's finding that there is a feasible escape route for Stony Po#nt presupposes an adequate local plan. That plan has not been finalized, and t'w Board's conclusion is therefore prenature. In addition, the Board's acceptance of the optimistic time  ;

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estimates for evacuation of Stony Point was erroneous which in turn costa serious doubt u p the does calculations. The findings of the Licensing Board on CEE Contention #8 are erroneous and s?mld be reversed.

Respectfully subnitted, 1

SH 4 ohn R. Finock Attorney for CEE 1500 Buhl Building Detroit, Michigan 48226 (313) 963-1700 Dated: February 9, 1983 l

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- ; ,o UNITED STATES OF ANERICA NUCLEAR REGULA'IORY CCLMISSION

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A'IQ4IC SAE'IY A'JD LICENSING APPEAL BOARD Adtninist<:ative Judges: '83 FEB 15 A10:11 Stephen F. Eilperin, Chainnan Thcmas S. ? bore d. .. : l . . a . :. r. r .

Dr. Reginald L. Gotchy """ M[E

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In the Matter of )

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'IHE DE7I'ROIT EDISON COMPANY ) . Docket No. 50-341 OL

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(Enrico Fenni Atmoc Power Plant, )

Unit 2) )

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CERPIFICATE OF SERVICE I hereby certify that copies of CEE's Brief On Appeal in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, this 9th day of February, 1983:

Harry H. Voight, Esq. Stephen F. Eilperin, Esq., Chairperson Ie Boeuf, Iamb, Ierby & McRae Atcmic Safety and Licensing Appeal Board 1333 New Hampshire Ave., N.W. U.S. Nuclear Regulatory Ccmnission Washington, D.C. 20036 Washington, D.C. 20555 Colleen Woodhead, Esq. Thcznas S. Moore, Esq.

Office of the Executive legal Director Atcmic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Ccmnission U.S. Nuclear Regulatory Camission Washington, D.C. 20555 Washington, D.C. 20555

• Paul Braunlich, Esq. Dr. Reginald L. Gotchy _

10 East First Street Atanic Safe'y and Licensing Apperl Board l

1 Monroe, Michgian 48161 U.S. Nuclear Regulatory Ccmniss. T l Washington, D.C. 0555 Peter Marglardt, Esq.

Detroit Edison Ccmpany .

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2000 Secord Avenue Detroit, Michigan 48226 BY: .b !M J R. MINOCK, Ecc, l Dockating and Service Secticn ttorney for CEE

Office of the Secretary 1500 Buhl Building, Detroit, MI 48226 U.S. Nuclear Regulatory Ccmnission (313) 963-1700 ,

Washington, D.C. 20555

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