ML20072E956

Petition for Review of ASLAP 830602 Decision Affirming ASLB 821029 Decision Authorizing Issuance of full-power Ol.Monroe County Does Not Have Radiological Emergency Response Plan & Will Not Implement Draft.Certificate of Svc Encl

ML20072E956
Person / Time
Site:	Fermi
Issue date:	06/22/1983
From:	Minock J CITIZENS FOR ENERGY & EMPLOYMENT, MINOCK, J.
To:	NRC COMMISSION (OCM)
References
NUDOCS 8306270218
Download: ML20072E956 (8)

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$Y UNITED STATES OF RIERICA NUCLEAP REGUI#IORY COMISSION e Q A.

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, In the Matter of: ."#Jc ' 1 ".

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C THE DITPDIT EDISON CCt1PANY, et al. Docket No. 50-341 i

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.. s 5l l INTERVENOR CEE'S PETITION EUR REVIEW .

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. 4 Citizens For Eh:ployment and Energy (CEE), the Intervenors, hereby request that the Camission review and reverse the decision of the Apoeal

. Board of June 2,1983 pursuant to 10 CFR 2.786.

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i i I. SGI1ARY OF APPEAL BOARD DECISION i I

a On June 2,1983, the Atanic Safety and Licensing Board affirmed the , i l

Octobe.r ,?.9, 1982 decision of the Licensing Board which authorized the l

' l issuance of a full power license. 'The Appeal Board considered all three l l

issues raised by the Intervenor/ Petitioner Citizens For Employment and  !

t Energy (CEE) and rejected all three argments. The first issue was Monroe County's lack of Radiological Emergency Response Plan. That issue was f

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presented to the Appeal Board both through the County's earlier appeal of a j

,- denial by the Licensing Board of a late Petition to Intervene, which the  :

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h Appeal Board referred to the Director of Maclear Reactor Regulation to treat ll as a petition under 10 CFR 2.206 (ALAB 707,16 NRC ~, Dec. 21,1982) , and .

t through renoranda which were supplied to the Appeal Board at their request i i t I during oral argunent (AIAB 730, June .2,1983, slip opinion p.7, fn. 5) . The {

l i Appeal Board decided that Monroe County need not have a RERP before the h

N.; issuance of an operating license. Slip Opinion, 2-17. f h 8306270218 830622 PDR ADOCK 05000341

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The second issue was whether CEE had waived its right to litigate the

[ issue of emergency planning before the Licensing. Board.

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That issue was raised before the Licensing h

s I, Board with CEE's ini.ial Contention 8 which the Licensing Board dismissed in

! part on January 2,1979, LBP 79-1, 9 NRC 73, 80-81 (1979) , and also in u

h CEE's Motion To Reopen the Record before the Licensing Board which was filed on September 4, 1982, in response to the County's Petition to Intervene and was' denied in the Initial Decision, LBP 8 2-96, 16 NBC _ , October 29, 1982. .t

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The Fa mal Board held that CEE should have raised the issue of defects in '

1 the County plan sooner. Slip Opinion, pp. 2-17. ,

I The final issue involved the remaining sentence of Contention 8, whether j

a subdivision close to the plant could be evacuated in an mergency. That issue was litigated at the adjudicatory hearing before the Licensing Board l r

,, and raised before the Appeal Board on the record. The Appeal Board held thatf 9

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the Licensing Board's findings regarding Stony Point were not in error.

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Slip Opinion, 18-25.

II. THE DECISION OF 'IHE APPEAL BOARD IM ERRONECUS A. Lack of a County Emergency Plan

It is clear that Monroe County does not have an RERP and will not s

impleent the draft version which has been developed. The County's Petition

; to Intervener filed August 27, 1981, the materials subnitted to the NRR +

d under 10 CFR 2.206, and the memoranda subnitted to the Appeal Board after [

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oral argument all reflect that Monroe County is of the opinion that it cannoti and will not implement the draft version of emergency plan. The letter of 1

1 March 18, 1983, from John Eckert, the Director of the County Office of Civil Preparedness, to Mr. Westover, Chairman of the County Board of Ccmnissioners, _

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l states that only after the State of Michigan agrees to changes in its

" Basic Plan" will the County rewrite all of the local annexes to the plan.

M The State has refused to make those changes in a letter of April 8, 1983, frcm 1:

State Police Lt. James M. Tyler to Mr. Nestover.

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'! The Carmission thus has before it a unicue case where prior to the h

[' issuance of a license it is urquestionably aware that the local body of J.

[ -government will not implement an emergency evacuation plan. The criteria I i i of 10 CFR 50.47 clearly cannot be met with regard.to this plant, and the  !

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decision of the Appeal Board to the contrary is erroneous. The Appeal Board !

t apparently hopes that the ' stalemate will be resolved in tine for the license, l i

but ccmpletely ignores the lack of a local plan and relegates the heart of {

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-the issue to a footnote, p. 7 fn. 5. Operating licenses cannot be granted .

on hopes alone, however well-intentioned, i

B. CEE Did Raise the Issue of Emergency Planning In A Timely Fashion. ,

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In its Amended Petition to Intervene of Decarber 4,1978, at p, 4, CEE's I Contention 8 raised the broad issue of emergency planning. The Contention i

read as follows: l l

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. 8. Emergency plans and procedures have not been adequately  !

developed or entirely conceived with respect to an accident which could require inmehliate evacuations of entire towns l within a 100-mile radius of the Fenni 2 plant, including  :

. Detroit. In particular, CEE is concerned over whether ,

there is a feasible escape route for the residents of the '

Stoney Pointe area which is adjacent to the Fermi 2 site. i The only road leading to and frcm the area, Pointe Aux  !

Peaux. lies very close to the reactor site. In case of i an accident the residents would have to travel towards the accident before they could move aware from it.

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On January 2,1979 the Licensing Board struck all of Contention 8, except the portion related to Stoney Point, because it was "too broadly written and not supported by any information which would warrant a conclusion

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

In a prehearing conference over two years later, in July, 1981, CEE's

-- prior attorney said in a discussion of Contention 8 (Tr. 20i3):

Speaking on behalf of the Intervenor, the  !

' l contention that was submitted is very soecific.  !

y; . . . We have major reservations about the l p g plicant's energency evacuation plans. We '

I can deal with that in other forums. We are  :

l- not going to try to expand our contentions. }

i (Emphases added). t t l l

i f Both the Licensing Board and the Appeal Board interpreted this ambiguous !

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! renark to be an irrevocable waiver of CEE's right to ever litigate energency i I- i

. planning. That interpretation does not withstand scrutiny for two reasons.

i First of all, the remark was at best ambiguous and could as well be read to mean that CEE would appeal the January 2, 1979 decision. Ca mission rules do not permit interlocutory appeals, so CEE had no choice but to await the Initial Decision before apoealing the striking of Contention 8. The lapse

.of u me was no fault of CEE's. Secondly, the remark preceded the release

! of the draft plan by at least four nonths, hhile the contention may have been subject to striking in part for lack of specificity, the first part of ,

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'I the contention was correct and should have been admitted, namely that there  :

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h was no energency plan. Ironically, that is still true. The findings of the li i >

6! Licensing Board and the Appeal Board to the contrary are ridiculously I erroneous.

! The Appeal Board also that found that CEE's Fotion to Reopen of Y Septenber 4, 1982, was untimely. The Board found that CEE was inexcusably c .

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y late because, as a party, it could have formed contentions on energency i

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b planning between the release of the plan in Noverber,1981, and the adjudicatory hearing in March, 1982. That view of the facts ignores that the i basis for the flotion to Peopen was the new and significant information that the County could not implement the draft plan. The Appeal Board found that n

the County was inexcusably late in denying its apoeal on the Petition to y Intervene , AIAB 707, suora, and that CEE c3uld also be charged with the

'. County's lateness. However, the County's Petition-to Intervene reflects 1 l  !

[ that its decision that it could not implement. the plan was based on the r

] County's particular knowledge of its own resources and capabilities,

[p sorrething which is not evident fran a review of the plan itself but only [

. .1 through the County's self-assessment. CEE should not be charced with the i i

1 County's lateness in reaching.that conclusion. The fact that one CEE member, '

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! Frank Kuron, becane a County Carmissioner during the pendency of the Licensing i i Board proceedings should not charge CEE's with the County's lateness. It makes no more sense to assume that a steelworker v4e is a nerber of a part ,

i time. small, rural county Board oversees the day to day operations of  !.

county departnents than to assume that every member of Congress pays  !

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attention to or understands the day to day operations of the NRC. The County's late conclusion that it could and would not implement the draft I I

plan was new and significant information which should have resulted in I granting CEE's fbtion to Reopen.

Furthergere, the effect of the decision is to unfairly preclude litigation of offsite energency planning in the adjudicatory hearing process !

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{;j - simply because the plans are late in developing. Congress did not intend to limit the right of the public to litigate health and safety issues under

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the Atanic Energy Act. The Act unequivocally requires that in any proceedingi l  !

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[ for the issuance of a license, the Cm mission must grant a hearing to any J

party whose interest may be affected by the proceeding. 42 U.S. 2239(a) .

L Under long-established Ccrmission practice, those hearings must be fonnal yg

!. adjudications in conformance with the Administrative Procedure Act. Siegel v.

I Atcnic Enercy Camission, 400 F.2d 778, 784 (D.C. Cir. ,1968) . The scope

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U g of-the hearing can be avoided only where "there are no material facts in ,

dispute". Public Service Ccznoany of New Hanpshire v. FERC, 600 F.2d 944, .

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~ [ 955 (D.C. Cir.,1979) . The sufficiency of offsite mergency planning is *

. highly relevant to the determination which raust be made before a license can f-issue that such a license will not be inimical to the public health and safety. 42 U.S.C. 2113(d) . The evaluation of off-site plans involves kt material factual issues which intervenors are entitled to dispute under

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l the Administrative Procedure Act. 'Iherefore, to withdraw off-site planning

'4 frca licensing adjudications and allow their resolution by the Staff, as .

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-this decision pernits, would constitute a blatant violation of Section 189a and the Administrative Procedure Act, and would deny CEE due process in the litgation of license conditions. Moreover, licensing boards may not delegate j contested matters to the Staff for posthearing resolution. See Public t

Service Cczmany of Indiana (Marble Hill Nuclear Generating Station, Unit -

No.1) , ALAB-461, 7 NBC 313, 318 (1978) ; Metropolitan Edision Co. (Three j et 4 Mile Island Units -1 and 2), LBP-81-59,14 NRC 1211 (1981) . The decision l

. li - l I in effect allows a full power license to be issued by the Staff, in violation;

, g J of the Ccrmission's requirment that. licensing boards l.

D 1 i resolve [ contested licensing issues] openly and on the record after giving the parties

. . . an opportunity to ccrment or otherwise a be hard.

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{ Cleveland Electric Illtrninating Co. (Perry Nuclear Power Plant, Units 1 and

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

1 yi CEE therefore respectfully requests that the Camtission grantits Petition

.o y for Beview, review the decisions of the Appeal Board and Licensing Board, and l 0 .

. rcmand the case to the Licensing Board for an adjudicatory hearing on the i;

• b adequacy of tbnroe County's emergency plan at such time as the plan _ is approved and susceptible to the fomulation of specific contentions.

. Pespectfully subnitted,

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/JOHNR.MINOCK(P24626) 1500 Buhl Building Detroit, Michigan 48226 313/963-1700 t

Dated: June 22, 1983 s

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UNITED STATES OF MERICA .

I, NUCLEAR REGUIATOPY CQMISSIOJ -

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BEFORE 'IHE COBMISSIGJ c ,,

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In the Matter of ,

i THE DEI'ROIT EDISGJ CO. Docket No. 50-341

.. (Enrico Fermi Atarpic Paer Plant,

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Unit 2) '

u2:nnCATE OF SERVICE' t

I hereby certify that cooies of CEE's Petition for Review in tlw above  !

. captioined proceeding have been served on the following by deposit in the

, United States mail, first class, this 22d day of June,- 1983-s Paul Braunlich, Esq. Harry Voight, Esq.

10 East First St. IeBoeuf, Imb, Iaiby, & McRae  ;

Monroe, MI 48161 1333 New Hanpshire Ave.

Washington, DC 20555

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Docketing and Service Section  ;

i Office of the Secretary Colleen Woodhead l l

U.S. Nuclear Regulatory Ccmnission Office of the Executive Iagal Director i I- Washington, DC 20555 U.S. Nuclear Regulatory Ca mission  !

Washington, DC 20555 Peter Marquardt, Esc.

Detroit Edison Co. l 2000 Second Ave.  !

-Detroit, MI 48226 i I  :

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John R. Minock  :

1500 Buhl Building l

[ Detroit, Michigan 48226 [

313-963-1700 t e

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