ML20084Q894

Answer Opposing Commonwealth of PA 840430 Objections & Request for Reconsideration Re Special Prehearing Conference Order Ruling on Admissibility of Offsite Emergency Planning Contentions.Certificate of Svc Encl

ML20084Q894
Person / Time
Site:	Limerick
Issue date:	05/18/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
OL, NUDOCS 8405210575
Download: ML20084Q894 (8)

Text

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'84 MAY 21 All:33 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,_I...-,T_.,-...

.. ac zwe C01:n.TWi & SEfW-Before the Atomic Safety and Licensing BoardANCH In the Matter of )

Philadelphia Electric Company Docket Nos. 50-352 0L

) 50-353 OL-(Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S ANSWER TO " OBJECTIONS AND REQUEST FOR RECONSIDERATION BY THE COMMONWEALTH OF PENNSYLVANIA REGARDING SPECIAL PREHEARING CONFERENCE ORDER RULING ON ADMISSIBILITY OF OFFSITE EMERGENCY PLANNING CONTENTIONS" On April 30, 1984, the Commonwealth of Pennsylvania filed its objections to the Special Prehearing Conference Order issued by the presiding Atomic Safety and Licensing Board (" Licensing Board" or " Board") ruling on the admis-sibility of of fsite emergency planning contentions.1I The Commonwealth sought reconsideration of the Board's holding which denied the admission of Commonwealth-1 in part, ruling that "the Limerick emergency plans need not include arrange-ments for the procurement and distribution of permanent record dosimeters."2/

-1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 NRC (April 20, 1984)..

2/ Id. (slip op. at 22).

8405210575 840518 PDR ADOCK 05000352 4 0 PM _

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i The Commonwealth raises essentially two points. First, it suggests, erroneously in Applicant's view, that the Board utilized principles of res judicata_/3 in applying the findings in the Three Mile Island proceeding.O The Licens-ing Board, in fact, merely stated that the Commonwealth's plans for distribution and use of dosimetry during an emergency have not materially changed since that proceed-

! ing.5_/ Thus, the Board did'not find that the Commonwealth

was collaterally estopped from relitigating the issue of predistribution of permanent record dosimetry ("TLD's") . -

-3/ Objections and Request for Reconsideration by the Commonwealth of Pennsylvania at 8 n.1 (April 30, 1984) i

(" Commonwealth Objections").

-4/ Metropolitan Edison Company (Three Mile Island, Unit

1), ALAB-698, 16 NRC 1290 (1982).

f

-5/ The Commonwealth acknowledges such in stating that "the thrust [of its Plan] regarding need for and proper use

. of each type of dosimeter is not materially different."

2 Commonwealth Objections at 3-4.

-6/ Even so, it is noted that other' Boards have utilized collateral estoppel to deny relitigation of the same matters by parties not in privity with the parties to the first case. See, e.g., Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1& 2), LBP-81-24, 14 NRC 175, 199-201 (1981). The use

, of " offensive" collateral estoppel has particular merit

! where the party against which it is invoked, analogous to the Commonwealth here, has already had its day in court. See Parklane Hosiery Company, Inc. v. Shore, 439 U.S. 322 (1979). The Supreme Court has continued to expand the principle of collateral estoppel to

! effect equitable results. United States v. Stauffer Chemical Co., U.S. , 104 S. Ct. 575 (January 10, 1984). In Applicant's view, therefore, the Board would have been justified in applying collateral estoppel to preclude relitigation of the TLD issue.

r

On the other hand, it was certainly proper for the Board to be guided by the existing Three Mile Island record and directly applicable rulings, involving the very same Plan and TLD issue, in determining whether the Commonwealth had demonstrated the requisite " basis" under 10 C.F.R.

S2. 714 (b) for litigating that issue. The Licensing Board was not required to consider the use of TLD's in the ab-stract and effectively ignore the Appeal Board's previous rulings, which carefully analyzed the Commonwealth's con-cerns in the context of the same Plan applicable to Limerick.

The other argument raised by the Commonwealth is that the Appeal Board in the Three Mile Island proceeding did not have an adequate record on the need for predistribution of TLD's. To the contrary, the decision in ALAB-698 reflects a full record on the matters of concern to the Commonwealth and even some agreement by the Appeal Board with those concerns. Nonetheless, the Appeal Board held, as the Licensing Board has noted, that "there are no formal regu-lations regarding the number or type of dosimeters to be distributed, or when they should be distributed,"1 and that the distribution of self-reading dosimetry "is suffi-cient to assure reasonable protection for emergency workers" 7/ ALAB-698, supra, 16 NRC 1294, 1296.

under the Commonwealth's emergency planning.8_/ In particu-i lar, the Appeal Board held that self-reading dosimetry would be sufficient for emergency planning purposes except "where emergency workers receive unexpected or unplanned life-threatening radiation exposures beyond the 200 roentgen range of the self-reading dosimeters. "- The Appeal Board further noted that, under the Commonwealth's planning, emergency workers would be deactivated whenever their dosimetry indicates an exposure of 25 rem or greater, such that TLD's would be unnecessary for the safety of emergency workers.EI Thus, despite the Commonwealth's assertion that the i virtues of TLD's were "not fully explored on the record" of the Three Mile Island proceeding,E! it has not advanced any factual " basis" for relitigating the issue here. The

! Appeal Board in Three Mile Island recognized, as the Common-wealth asserts, that TLD's "would facilitate more accurate permanent recordkeeping, as well as diagnosis in special -

cases," and recommended that provision for TLD's be made.12/

8/ Id. at 1299.

9/ Id. at 1300.

10/ Id. at 1301.

M/ Commonwealth objections at 5.

-12/ ALAB-698, supra, 16 FRC at 1301. It should be noted that the Applicant and the Pennsylvania Emergency (Footnote Continued) l l

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j Nonetheless, the Appeal Board determined, as a legal matter, that predistribution of TLD's could not be required for licensing where the use of self-reading dosimetry under the Commonwealth's emergency planning is sufficient to afford reasonable protection to emergency workers. The Licensing Board in the instant case correctly held that this decision compels the same result here.

Respectfully submitted, CONNER & WETTERHAHN Tn s . wp<./ %%

Troy B. Conner, Jr.

Robert M. Rader May 18, 1984 i

(Footnote Continued)

Management Agency are currently negotiating -

arrangements to provide self-reading dosimetry and TLD's for emergency workers but have not yet reached a final agreement on this matter.

i Y

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to

' Objections and Request for Reconsideration by the Commonwealth of Pennsylvania Regarding Special Prehearing Conference Order Ruling on Admissibility of Offsite Emergency Planning Contentions,'" in the captioned matter have been served upon the following by deposit in the United States mail this 18th day of May, 1984:

1 Lawrence Brenner, Esq. (2) Atomic Safety and Licensing Atomic Safety and Licensing Appeal. Panel Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Docketing and Service Section Dr. Richard F. Cole Office of the Secretary Atemic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C.- 20555 Ann P. Hodgdon, Esq.

Counsel for NRC Staff Office Dr. Peter A. Morris of the Executive Atomic Safety and Legal Director Licensing-Board U.S. Nuclear Regulatory

U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Hand Delivery

s Atomic Safety and Licensing Angus Love, Esq.

Board Panel 107 East Main Street U.S. Nuclear Regulatory Norristown, PA 19401 Commission Washington, D.C. 20555 Robert J. Sugarman, Esq.

Sugarman, Denworth &

Philadelphia Electric Company Hellegers ATTN: Edward G. Bauer, Jr.- 16th Floor, Center Plaza Vice President & 101 North Broad Street General Counsel Philadelphia, PA 19107 2301. Market Street Philadelphia, PA 19101 Director, Pennsylvania ,

Emergency Management Agency Mr. Frank,R. Romano Basement, Transportation 61 Forest Avenue' and Safety Building Ambler, Pennsylvania 1900.2 Harrisburg, PA 17120 Mr. Robert L. Anthony- Martha W. Bush, Esq.

Friends of the Earth of Kathryn S. Lewis, Esq.

the Delaware Valley City of Philadelphia 106 Vernon' Lane, Box 186 Municipal Services Bldg.

Moylan, Pennsylvania 19065 15th and JFK Blvd.

Philadelphia, PA 19107

• • Limerick Ecology Action P.O. Box 761 762 Queen Street Spence W. Perry, Esq.

Pottstown, PA 19464 Associate General Counsel Federal Emergency

• • Charles W. Elliott, Esq. Management Agency Brose and Postwistilo 500 C Street, S.W., Rm. 840 1101 Building Washington, DC 20472 lith & Northampton Streets Easton, PA 18042 . Thomas Gerusky, Director Bureau of Radiation

• • Zori G. Ferkin, Esq. Protection Assistant Counsel Department of Environmental Commonwealth of Pennsylvania Resources Governor's Energy Council 5th Floor, Fulton Bank Bldg.

1625 N. Front Street. Third and Locust Streets Harrisburg, PA 17102 Harrisburg, PA 17120 Jay M. Gutierrez, Esq.

U.S. Nuclear-Regulatory l

Commission

! P.O. Boxi47-l 'Sanatoga,'PA 19464 l

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• Federal .Expre'ss v

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James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Nils N. l'ichols i

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