ML20093D633

Answer Opposing Limerick Ecology Action (Lea) Deferred Offsite Emergency Planning Contentions.Lea Respecified Contentions Should Be Denied.Certificate of Svc Encl

ML20093D633
Person / Time
Site:	Limerick
Issue date:	10/09/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
CON-#484-402 OL, NUDOCS 8410110324
Download: ML20093D633 (17)

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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION -84 DCT 10 A;;q Before the Atomic Safety and Licensing Board' (J ncg.e 3 .

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_In the Matter of )

)

Philadelphia Electric Company ) Docket Nos. 50-352 bb (Limerick Generating Station,

) 50-353.d C

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Units 1 and 2) )

APPLICANT'S ANSWER TO LIMERICK ECOLOGY ACTION'S

" DEFERRED" OFFSITE EMERGENCY PLANNING CONTENTIONS Prdliminary Statement In its Special Prehearing Conference Order, dated April 20, 1984, the presiding Atomic Safety and Licensing Board

(" Licensing Board" or " Board") admitted, denied or deferred its ruling upon various contentions proposed by a number of parties, principally Limerick Ecology Action (" LEA"),

. relating to offsite emergency planning.1_/- In particular, the Licensing Board deferred its ruling upon proposed Contentions LEA-1 through LEA-6 and LEA-23.2/

Essentially, LEA-1 through LEA-4 alleged that the offsite plans were incomplete, while LEA-5 and LEA-6 alleged s

1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 NRC 1020 (1984).

2/ -Proposed Contentions City-1 through City-12 were also deferred,-but have been handled separately and do not pertain to the proposed contentions tiled by LEA to which the instant answer responds.

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,ol that various letters-of agreement had not yet been formally entered; The Board determined that the plans at that time were too incomplete to permit-either denial or admission of LEA-1 throu'gh LEA-4.d! As to LEA-5_ and LEA-6, the Board

-ruled that it was unclear "whether the lack of mention of -

letters 'of agreement at certain places in the plans is significant,"4/~ therefore deferring those contentions as

-well.

As_ to _ LEA-23, which challenged the adequacy of an outdated --evacuation time estimates study, the Board noted

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- that a new- study would soon be available. It therefore directed: LEA'.to address itself to the new study as soon as it became available'.

On each of the" proposed contentions for which the Board deferred its ruling, it directed that the parties shall exchange and discuss changes to ' the status quo and file appropriate proposals for further consideration by_ the Board',. as it becomes appropriate to do so."- For the 3

./ Limerick, supra, LBP-84-18, 19 NRC at 1043-44.

4/ Id. at 1046.

5/ Id. at 1065.

6/ Id. In a subsequent order dated August 15, 1984, the Board . mandated " specification by LEA of its deferred contentions," including reports of any settlements, and

, required an answer by other parties to be filed by October.9,_1984. Limerick, supra, " Order Establishing Schedule ' for Offsite . Emergency Planning Issues" at 4 (August 15, 1984).

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1. ,t reasons ' discussed more ' fully .below, Applicant opposes the

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admission of the deferred. contentions.

Argument In its answer to the deferred contentions as originally

-proposed, A'pplicant took the position that none of the

" contentions' constitutes a litigable matter. In Applicant's view, the principles enunciated in the' Commission's emergen-'

4cy -planning regulations, prescriptive guidance such as

.- NUREG-0654 and NRC adjudication decisions do not require the

- boards to: immerse themselves in the level ot-local planning detail .or the . formalization of letters of agreement which the contentions ~ raised. In essence, Applicant noted that-the' Commission.has-determined that the.very-detailed infor-

. mation-alleged by LEA to'be missing from the plans need not be in existence so' long as' the basic plans themselves

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support a conclusion that'the state of emergency prepared-

-ness provides reasonable assurance that adequate protective

- measures ~ can and . will be taken in the event of a radio-logical emergency.

Accordingly, ' Applicant took - the position, and still asserts, that the mere recitation or particular "unm9t needs" or letters of agreement not yet formalized fails to show any . deficiencies in the basic plans. Thus, LEA-1 through LEA-6 remain inad.nissible for the reasons previously stated. For the sake ot. brevity, Applicant hereby

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incorpora'tes that portion - of its previous answer to these contentions.1 In addition to its basic legal objections previously stated, Applicant further objects to the admission of the

'respecified, deferred contentions as discussed below.

LEA-1. .The first item of this contention is wholly lacking in~ basis. It does not even purport to discuss the assignment or county buses to meet overall needs as dis-cussedin the county . plans in Annex I. Moreover, this aspect of the contention clearly exceeds the scope of LEA-1 as originally filed, which contended that responsibilities outlined in the . plans have not yet been assigned because plans have not yet been adopted.8_/ Availability of trans-portation resources was not a part of this contention.E The second item raises the lack of . participation by certain~ municipalities in the June 25, 1984 joint exercise for Limerick. . Although LEA fails to note that a supple-mental exercise has been planned for non-participating municipalities,'the mere fact that 100 percent participation 2/ See Applicant's Answer to Offsite Emergency Planning Contentions Proposed by Limerick Ecology Action, et al.

at 3-19 (February 13, 1984).

8/ Limerick, supra, LBP-84-18, 19 NRC at 1041.

9_/ The contention also interjects, for the first time, the Commonwealth's scheme of government. LEA gives no basis for its implicit challenge to the approach taken by the plans in fulfilling unmet needs by passing them onto the counties.

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has not occurred in such an exercise has never been deemed by FEMA or the NRC as a reason for invalidating the basic plans.. In Diablo Canyon, for example, the Licensing Board rejected a similar assertion.10/ Again, this item exceeds 1 the scope of the original contention.

l In the-third item, LEA again asserts that the various governmental entities have not formally adopted their plans.

The mere fact that these jurisdictions will not approve the

. plans until submitted and reviewed in final form, which has been known and understood by the planners and authorities all along, presents no obstacle to their acceptance. No litigable-issue has been raised by this allegation.

M/ The Board held:

Section N of NUREG-0654 suggests that the scenario for emergency- exercises should be changed trom year to year such that all major elements _of the plans and preparedness organizations are tested within a five-year period. We, therefore, -do not take the lack or participation or several cities within the State BEPZ in the-fi.- exercise to be a serious defect in C:: lanning for that exercise. We have noted that some' cities' SOP's were not complete at the time of the exercise but were expected to be completed within the following year. We think it advisable for cities in the State BEPZ to take part in exercises in future years; however, we conclude that this is within the jurisdiction of the- State to direct.

(Finding 312)

Pacific Gas and Electric Company (Diablo Canyon Nuclear (Footnote Continued)

The fourth item of this contention alleges certain

" alternative planning approaches" under consideration by certain jurisdictions. This particular item is entirely lacking in specificity and bases. Because LEA has not identified these " alternatives" allegedly under consid-eration, its contention remains problematical. Moreover, LEA has failed to join any litigable issue. It does not assert that any " alternatives" fail to meet planning stan-d dards under NUREG-0654, only that they would not automat-ically provide reasonable assurance. This item is far too speculative for admission, particularly at this late date.

LEA-2 and LEA-3. LEA-2 as respecified is basically a compilation of unmet municipal staffing needs as of April 1984. LEA-3 is unchanged except for an updating letter.

These contentions invalidly seek to litigate operational details of the plans and is not litigable for the reasons previously stated.

LEA-4 and LEA-6. These contentions have been with-drawn.

LEA-5. This contention is also unchanged, except that LEA has specified the various kinds of formalized agreements it asserts to be necessary from support organizations and personnel. The mere listing of support organization (Footnote Continued)

Power Plant, Units 1 and 2), LBP-82-70, 16 NRC 756, 790 (1982), vacated in part on other grounds, ALAB-776, 19 NRC (June 29, 1984).

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personnelt by -LEA . does not provide any further basis for 7 - a'dmitting this.. contention. This contention is therefore 4

, ] improper for the reasons previously stated. >

~ Moreover, the respecified contention fails to address

-theLeurrent plans, which incorporate a number of the agree-

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ments,-either-physically or by reference,.which LEA lists as W ~ (a) through (f) .11/ -

Moreover, LEA has not established that -

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agreements. tor particula'r services are even appropriate. b W

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11/: -Thus,'as regards transportation providers, LEA fails to

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note-Lthe transportation agreements provided in the

:Berks County plan,- Annex T,-App. T-23 through T-27 and the. Montgomery' County plan, Annex T, pages T-1 and T-2.

Chester . County. is .in ' the process of reducing oral commitments to writing. .Nor has LEA addressed the host

. school agreements contained in the Berks County plan, Annex :.T , App . . T-2 8 , T-29 a n d T - 3 1 '. The Montgomery ECounty plan states in Annex T, page T-3, that . these agreements are on tile in the - Office _ of Emergency.

Preparedness.

Similarly,_suchLagreements'are on flie in the' offices D

. of the school districts in Chester County. All of

-these agreements are substantially the same and commit the providerst . to' furnish basically the same: support upon request. -AT the August 30 meeting with LEA on its contentions, LEA was advised that written agreements had been obtained for 17 of the 20 schools and school districts Lin the EPZ.- As noted, several of these agreements were already in the planning documents ,

-previously provided to LEA.

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For - example ,- NUREG-0654 does not require ' letters of agreement with individual ~ radio operators (RACES and ARES personnel) , and LEA has not alleged any basis for requiring formalized agreement with such individuals

, who have committed to providing their services. In en particular, LEA alleges nothing in the recent FEMA Exercise Evaluation Report for the July 25, 1984 joint exercise at Limerick-to show that municipal and county EOC's lacked adequated RACES and ARES personnel.

(Footnote Continued)

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g. Agreements regardigg deccintamination centers' and mas's care. .

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centers involve only . the provision of building space. ,

N None'of the " human response" concerns of LEA is applicable n 7, to~such; agreements.cince these facilitinsiwill be manned by 1 1 f

emergency personnel.14/ s . .

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LEA-23. Unlike the othdr! deferred contentions, which

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.were based upon evolving plans, thisbecntention was 4 pred-

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-icate'd upon.a single docurdent which was avai1able , to the

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Board ' and parties. shortly af ter- the Board's ruitrig on the ,

i ~f deterral of this contention., Specifically,,' the respecifiedi 'l y' .t contention challenge,s the adequacy of the f Evacuat cn Time p n i y (Footnote Continued)

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} LEA has made no " showing that the eristing? oral

• agreements ' with local radio stations for" Smergency broadcast .c6verage are inadequate. . By their very -('

. nature and -licensing commitments, radio stations are clearlyJ. committed' to broadcast . publicly needed information{ir} ;an emergency. '

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As to towingqservices, the list or tow truck operators * '

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. In'the resocree manuals or the three counties are so extensive th'a't - it has not been ' deemed ' necessary to enter ,.into particular. agreements. LEA ' has given no

. reason why the; existing agreements for snow removal Y between municipalities and private contractors, along

$ ;[^ with .the. support which 'would be provided by, PennDOT, '

would be. inadequate. This responsibility is. discussed in Section II.E .'2'.k (2) of the municipal plans.

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M/ See, e.g.,. -Berks County plan, Annex T,. A'pp . T-10

.through T-20, and App. T-30. . *4 W

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14/4 )Indeed, the mass care centers would; be manned by the

~ [ Red' Cross. The Board denied ahcontentiodispecifically raising this organization's Ies'ponsibilit.ies at mass care centers. Limerick, supra , : 'L3P-8 4-18, 19 NRC at 1046. Ii }

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r-v 3 , Estimates ~ Study prepared for Applicant by HMM Associates,

-Inc., which was provided to the Board and parties in May 1984. . It cannot 'be overemphasized that evacuation time

,  ; estimates are not expected to be literally correct inasmuch A as they serve only as guidance to authorities for protective action' decision-making.EI -

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9, In ' deferring- its ruling upon this particular con-tention, the' Board stated its expectation that the partic-ipating parties and Board would receive a copy of the new study "as soon as possible after it becomes available."El On that basis, therefore, LEA could reasonably have been expected to file a contention raising any new matters _

specific to the new Study at least within several weeks following its receipt. .Instead, LEA has waited four months, just prior to the filing of testimony and the start of the hearing.

As the Commission reiterated in Catawba, a licensing board may not accept a proposed late contention unless it tinds that, on balance, the five factors enumerated in 10 C.F.R. 52.714 (a) (1) (i)-(v) weigh in intervenor's favor.E!

%tfr<!O ' .M / See NUREG-0654, Criteria J.10.1 and m.

, 16/-- ' Limerick, supra, LBP-84-18, 19 NRC at 1065.

-17/ Duke Power Company (Catawba Nuclear Station, Units 1 and 2) , CLI-83-19, 17 NRC 1041 (1983). LEA-23 as E"y ~ '

respecified clearly differs in substance from the original submission, which challenged the adequacy of (Footnote Continued) 9

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7 "k5 LEA-has clearly failed to show " good cause" for its lateness Tin proposing a new1 contention at this late juncture.E The failure 'of- LEA to establish good cause for its

-lat'en' esse heavily . outweighs any other showing that - LEA

'(Footnote Continued) the prior . PennDOT -Study. Because it is a wholly new,

- proposed. ' contention , and not merely a rewording of an old contention, it' must satisfy - the requirements for late-filed contentions.

18f LEA's failure t'o timelyJsubmit a proposed contention on

. .a document which Applicant turnished .it . for that very purpose. is a patent ~ ' violation of its " ironclad obligation ~ to examine the publicly available

documentary material pertaining to .the facility in.

question ~ with sufficient care 'to enable it to uncover

.any information.that could serve as the foundation for~

a specific contention' . " Catawba,- supra, ALAB-687, 16 NRC 460, 468 (1982), rev'd on other grounds,-CLI-83-19, 17 NRC 1041 (1983).

-The'AppealiBoard-has held that "the true importance-ot

-the tardiness will generally hinge upon the posture ot the . proceeding at the- -time the petition surfaces."

Washington Public Power Supply System (WPPSS' Nuclear Project -No. 3), . ALAB-747, 18 NRC 1167, 1173-- (1983)'.

The Appeal Board found in that case that,~in the less critical- situation' where the proceeding had just commenced, "even a four-month unjustified delay in

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seeking intervention is- not to be ignored."

.(emphasis in~ original).

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-19/ At the outset of its submission, LEA recites the procedural' history of .the case as it pertains to

-.offsite emergency. planning from its perspective. While F fpurporting to discuss the criteria for late-filed contentions under.the Catawba test, it falls to address

. LEA-23 (or -any .other contention)- in particular.-

t Certainly, ' LEA . did not need to await receipt of the report by FEMA and its Regional Assistance Committee, Region ~III, on the Limerick July 25, 1984 exercise. As the Board ~ .is well '~ aware , the Limerick exercise, like other exercises conducted for nuclear power plants, did not' ' involve any actual evacuation of the emergency planning zone by the general populace.

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could make on the - remaining - factors. Nevertheless, those factors nonetheless do not favor admission of the proposed contentions. As to the second and fourth factors, LEA can

-protect.its interests by pursuing its concerns, as it has in the past , directly with responsible officials of PEMA and FEMA. .In particular, FEMA regulations expressly provide for participation by the public in open meetings on the

. plans.E :

On .the third factor, LEA has not complied with the requirement.of Grand Gulf that-it identify its prospective

-witnesses - and summarize their proposed testimony.E! As to the fifth factor, admission of this late contention, which is .'in substance quite different from - any of the other admitted or proposed, deferred contentions, will broaden issues and delay'the proceeding.EI M /. See 40 C.F'.R. S350.10. In any event, the second and fourth factors - are entitled to less weight than the other three. South Carolina - Electric and Gas Company (Virgil C. Summer-Nuclear Station, Unit 1) , ALAB-642, 13~NRC-881, 895 (1981).

21/ Mississippi' Power & Light Company (Grand Gulf Nuclear Station, Units-1 and 2) , ALAB-704, 16 NRC 1725, 1730 (1982).

M/ Applicant . notes that under this criterion, the dispositive consideration is delay-of the proceeding, not delay of the' operation of the facility. See L

Detroit' Edison Company (Enrico Fermi Atomic Power Plant,. Unit 2) , ALAB-707, 16 NRC 1760, 1766, citing Fermi, supra, LBP-82-96, 16-NRC 1408, 1434 (1982); Long Island Lighting Company (Shoreham Nuclear Power

. Station, Unit 1), LBP-83-30, 17 NRC~1132, 1146 (1983).

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In addition to its failure to satisfy the late-filing

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criteria, LEA has failed to provide any basis for its six specitied parts to LEA-23. In item 1, LEA shows no basis for challenging the Study's statement that up to one hour may be required to commence school evacuation. As explained at page 5-5'of.the Study, such underlying assumptions were based upon discussions with knowledgeable PEMA and county personnel. Item 2 is a general challenge to the Study's methodology,_which asserts without any basis that ' " [il t is not-clear" that the Study meets the methodology criterion of NUREG-0654. The mere recitation of the planning standard without any reference to the Study's explanation of its methodology and assumptions in Section 2 fails to join any

. issue.EI As to ' the third item, the Commission has determined that the eftects of seismic events on emergency planning need not be considered.El As to the fourth item, challeng-ing the Study's statement that roadway capacity will be reduced 20 percent by rain and 30 percent by snowstorms, LEA apparently confuses roadway capacity with actual usage of the roads'. LEA has not shown any basis for-litigating the M/ As explained at pages 1-1 and 1-2 of the Study, the overall methodology utilized, including the NETVAC computer simulation 'model, was also used in preparing the Evacuation Time Estimates Study for Susquehanna.

M / .Diablo Canyon, supra, CLI-84-12, 20 NRC (August 10, 1984).

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validity; o'f these factors of 20 and 30 percent, which were

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reviewed with ~:PEMA and-the. counties to ensure their appli--

.cability.to local conditions.

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The fifth item,_ relating to the time required'.for route alerting', ~once again- reasserts a previously rejected is- .

2 sue. 5/ 1 LEA ~ cannot ' circumvent ~ the exclusion of this issue

.by' attempting to_ raise _it in the context of-this Study. In

the sixth item, LEA _ asserts that - _ unidentified ~ 1980 census datNW is more reliable than data obtained from a recent

. area ' survey' by the counties to determine unmet transporta-

. tion needs. LEA has shown no_ basis for asserting that the.

_ much more recent data is_ less . reliable. Moreover, many households which did not report' automobile ownership would not- necessarily have_. an . unmet transportation need -- because such persons-might rely upon' friends or~ neighbors in obtain-

.ing' transportation it needed. . In.any event, LEA has failed

,to, demonstrate any basis linking'the time for evacuating the

-populace ;.from the EPZ with; the number of transporta-tion-dependent. individuals.

25/' Limerick, supra, " Memorandum and Order Ruling on Reworded and Respecified Offsite Emergency Planning

.. Contentions" at 16 ' (September 24, 1984).

2_6/ LEA does not specify whether 'the data pertains

nationwide-or'to the Limerick vicinity.

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Conclusion

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For - the reasons discussed above and in ' Applicant's -

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- original answer to earlier versions of these contentions,

_ LEA's respecified contentions should be denied.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

Troy B. Conner, Jr.

Robert M. Rader Counsel for the Applicant

- October 9, 1984 4

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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 I1hereby certify that copies of " Applicant's Answer to Limerick Ecology Action's ' Deferred' Offsite Emergency

-Planning _ Contentions," dated October 9, 1984 in the captioned matter have been served upon the following by

. deposit-in the United' States' mail this 9th day of October,

-1984:

• Helen F..Hoyt,: Chairperson 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 ot the Secretary

. Atomic 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

• Dr. : Jerry Harbour Office ot'the Executive Atomic Safety and Legal Director Licensing Board U.S.-Nuclear Regulatory U.S. Nuclear Regulatory- Commission Washington, D.C.

Commission. 20555 Washington, D.C. 20555

• l Hand Delivery d

. - . . .,- ,e, _m- - . .. , - .w,- - m-,,.....-.,-__,.._e,- , . , .m u ..r-

1 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 19002 Harrisburg, PA 17120 RMr. 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 Charles W. Elliott, Esq.

Brose and Postwistilo

• Spence W. Perry, Esq.

1101 Building Associate General Counsel lith & Northampton Streets Federal Emergency Easton, PA 18042 Management Agency 500 C Street, S.W., Rm. 840

• • Phyllis Zitzer, Esq. Washington, DC 20472 Limerick Ecology Action P.O. Box 761 Thomas Gerusky, Director 762 Queen Street Bureau of Radiation Pottstown, PA 19464 Protection Department of Environmental

• • Zori'G. Ferkin, Esq. Resources Assistant Counsel 5th Floor,~Fulton Bank Bldg.

Commonwealth of Pennsylvania Third and Locust Streets Governor's Energy Counc11 Harrisburg, PA 17120 1625 N. Front Street Harrisburg, PA -17102 Jay M. Gutierrez, Esq.

U.S. Nuclear Regulatory Commission 631 Park Avenue King of Prussia, PA 19406

• Hand Delivery

• • Federal Express

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s 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 k ~

Robert M. Raddr