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Answer Opposing Graterford Prisoners 850215 Emergency Planning Contentions.Only Litigable Contention Already Decided.Intervenor Should Be Dismissed from Proceeding. Certificate of Svc Encl
	ML20100G324
Person / Time
Site:	Limerick
Issue date:	04/04/1985
From:	Rader R; CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	; Atomic Safety and Licensing Board Panel
References
	CON-#285-411 OL, NUDOCS 8504080206
	Download: ML20100G324 (20)
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i TC J Aitc UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 83 APR -5 A;; ;;9 1

Before the Atomic Safety and Licensings Mard S

00cib[ng l fay' In the Matter of

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BRANCH

)

gv Philadelphia Electric Company

)

Docket Nos. 50-352

)

50-353 6 (Limerick Generating Station,

)

.~ % _

Units 1 and 2)

)

APPLICANT'S ANSWER TO PROPOSED EMERGENCY PLANNING CONTENTIONS OF THE GRATERFORD PRISONERS Preliminary Statement In a Memorandum and Order dated February 5, 1985, the presiding Atomic Safety and Licensing Board

(" Licensing' Board" or

" Board")

ruled that the Graterford Prisoners

("intervenor")

must file any contention based upon the Graterford emergency plan no later than February 18, 1985.1/

1/

Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Docket Nos.~50-352 and 50-353,

" Memorandum and Order Regarding Graterford Prison" (February 5, 1985) (slip op. at 3).

At that time, the Board denied the motion of the Graterford Prisoners for full disclosure of the. Graterford evacuation plan.

Interlocutory. appeal of that ruling has been denied.

Limerick, supra, ALAB Memorandum and Order (February i

12, 1985).

On February 21,

1985, the Graterford Prisoners filed a

petition for review with the Commission.

Stibsequently, however, the Pennsylvania Department of Corrections substantially eliminated the deletions from the disclosed version of the plan.

On March 18, 1985, intervenor's counsel and retained expert reviewed the newly disclosed version of the plan.

At the prehearing (Footnote Continued) 8504080206 850 PDR ADOCK 05000 52 3

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Accordingly, on February 15,

1985, intervenor filed its proposed contentions.

At a prehearing conference on February 27, 1985, the Board ruled that answers to the contentions would await further review by intervenor's counsel and its retained expert of a

less sanitized version of the Graterford evacuation plan to be made available by the Pennsylvania Department of Corrections. !

At a subsequent prehearing conference on March 22, 1985, intervenor's counsel stated that, in view of the fuller disclosure afforded his client, most of the proposed contentions would be dropped.

At that time, however, counsel attempted to amend his petition for intervention by adding yet other contentions not previously pleaded.

The sole remaining contention timely filed by inter-venor relates to the adequacy of medical services to handle contaminated / injured individuals in the event of a radio-logical emergency at the Limerick Generating Station

(" Limerick").

That contention presents no factual dispute i

as to what arrangements are in place.

The legal issue, (Footnote Continued) conference' on March 22,

1985, counsel stated his complete satisfaction with the level of detail disclosed under the new version (Tr. 20612-13, 20658).

He also stated his intention to withdraw the petition for full disclosure pending before the Commission (Tr.

20613).

2_/

See note 1, supra.

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4.

i.e.,

the adequacy of accreditat' ion by the Joint Committee on Hospital Accreditation ("JCHA") to assure a hospital's capability to treat contaminated / injured individuals, has already been decided in favor of the Applicant by this Board in its Second Partial Initial Decision, discussed below.

The additional, late contentions orally pleaded by the Graterford Prisoners at the prehearing conference do not meet the standards for admitting untimely contentions under 10 C.F.R.

S2.714 (a) (1) (i)-(v) and also lack specificity and i

bases as required by 10 C.F.R. S2.714(b).

Accordingly, each of the proposed contentions should be denied.

Inasmuch as intervenor has failed to raise a single litigable con-tention, it should be dismissed as a party from the proceed-ing.

Argument I.

The Proposed Contention on Medical Capabilities Constitutes An Impermissible Lateral Challenge To The Previous Findings Of The Licensing Board And Is Otherwise Without Merit.

j As noted, the Board carefully reviewed each of the pleaded contentions with counsel for the Graterford Prison-ers at the March 22 prehearing conference and determined that each of them, with one exception, was being dropped as a result of counsel's satisfaction with planning provisions i

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respecting those issues (Tr. 20677-91).S The only remain-ing contention asserts that

"[t]here is no reasonable assurance that medical services will be provided to indi-viduals contaminated by radiation."d/

On its

face, the proposed contention is entirely lacking in specificity.

There is no discussion of the provisions in Annex E,

Appendix 13, regarding medical and 4

3/

Counsel for the Graterford Prisoners stated his desire to see the FEMA evaluation of the tabletop exercise on March 7, 1985 (Tr. 20622).

That document was furnished to the Board and parties by the NRC Staff on April 2, 1985 pursuant. to its commitment at the prehearing conference (Tr. 20623).

The FEMA evaluation resulted in FEMA's resolution of the previous Category A

deficiency and, as further stated in the March 27, 1985 memorandum from Richard W.

Krimm, Office of Natural and Technological Hazards

Programs, FEMA, to Edward L.

Jordan, Office of Inspection and Enforcement, NRC, "the Graterford authorities adequately demonstrated an understanding of the emergency response procedures and the ability to adequately implement them."

With regard to the concern of counsel for the Graterford Prisoners for bus driver training (Tr.

20637), counsel stated that he would be satisfied with a representation that bus driver training provided to other companies for evacuation of the EPZ would also be provided to companies which would assist in evacuating Graterford Prison (Tr. 20687, 20690).

Applicant hereby represents that the' services of its consultant, Energy Consultants, which has been providing such training within the Limerick EPZ, will be made available for this purpose.

4/

Proposed Contentions of the Graterford Inmates With 4

Regard to the Evacuation Plan at 8 (February 15, 1985).

As a basis, the proposed contention cites 10 C.F.R.

S50.47 (b) (12), which simply states:

" Arrangements are made for medical services for contaminated injured individuals."

a.

health support in the Commonwealth for radiological emer-l' gencies, nor.any' demonstration that existing procedures and i

resources are inadequate to treat contaminated injured i

j.

members of the public, including Graterford prisoners.

In the context of plans for contamina'ted injured onsite l

workers ' at Limerick, this Board has previously held that i

considerable planning is in place to-provide medical services for. contaminated injured individuals.5_/

The Board l

has'found that there are 20 hospitals within the EPZ capable l

of providing radiation exposure / contamination treatment.6_/

Outside the

EPZ, the Hospital of the University of 5

1 Pennsylvania

(" HUP")

and other hospitals would be l.

available.1/

Intervenor has not disputed the representation

^

i by t:te Department of Corrections that agreements already l

exist between hospitals and support correctional

+

I j

institutions in the area where Graterford prisoners would be I

relocated (Tr. 20619-20).

1 At the 'prehearing conference, intervenor's counsel j

narrowed the focus of the proposed contention to assert that there should be another designated hospital whose capacity 4

.for handling contaminated injured individuals had been i

]

reviewed ~and found acceptable (Tr.

20616-18).

Counsel 5/

Limerick, supra, LBP-84-31, 20 NRC 446, 531-34 (1984).

6/

Id. at 535.

i 7/

Id. at 531-36.

3

stated that he was unwilling to rely upon the previous findings by this Board that JCHA accreditation is sufficient to reasonably assure the capacity to treat contaminated injured individuals (Tr. 20667-70).8_/

In its Second Partial Initial Decision, this Board held that JCHA accreditation provides reasonable assurance of a hospital's capacity to treat contaminated injured persons.

The Board stated:

Neither the Applicant nor RMC have made arrangements with any of these hospitals [other than Pottstown Memorial or HUP] to receive contaminated injured from the plant, but the Applicant argues that, even so, none of these hospitals would refuse to accept a c'ontaminated injured patient, for al1 of them are accredited by the principal national accrediting organization, the Joint Committee on Hospital Accreditation (JCHA).

The JCHA requires that each accredited hospital have some plans for treating contaminated injured patients.

Regarding the availability of other hospitals in the highly unlikely event 8/

At the prehearing conference on March 22, 1985, Mr.

Love stated that this particular concern would be satisfied by an affidavit from Dr. Linnemann as to the capability of the hospital which routinely provides treatment to Graterford prisoners to handle contaminated / injured individuals (Tr. 20720).

Attached is the affidavit of Dr. Linnemann, which states that he has personally reviewed the capability of Montgomery County Hospital in Norristown, Pennsylvania for handling contaminated / injured patients and has determined that

" Montgomery County Hospital has adequate facilities,

plans, procedures and trained staff to handle contaminated and injured patients."

Affidavit of Roger E.

Linnemann, M.D.

at 14 (April 4, 1985).

I

i.

that Pottstown Memorial is evacuated, the County Radiological Emergency Response Plans (RERPs) show that there are twenty hospitals in the three county risk areas listed with radiation expo-sure/ contamination treatment capability (Montgomery County - 12, Berks County -

3, Chester County - 5).

While the Board has no detailed knowledge of the specif-ic abilities and training of the emer-gency medical service personnel at these potential alternative receiving hos-pitals, who might handle " contaminated injured,"

it is not unreasonable to assume that they are adequately pre-pared.

It may also be reasonably assumed that in the event of a hospital evacuation, trained personnel and some equipment would travel to the receiving hospital and provide assistance.9/

There is no dispute regarding hospital accreditation.

Intervenor acknowledges that each of the hospitals to which prisoners would be transported if contaminated and injured has been accredited by the JCHA (Tr. 20620).

The sample agreements with hospitals provided by the Department of Corrections clearly indicate JCHA accreditation.E!

In

essence, the proposed contention amounts to a

collateral challenge to the Board's prior ruling that JCHA accreditation provides reasonable assurance of a hospital's capability to treat contaminated injured individuals.

The previous ruling represents the law of the case and may not 9_/

Limerick, supra, LBP-84-31, 20 NRC 446, 534-35 (1984).

10,/

See

Response

of the Commonwealth of Pennsylvania, Department of Corrections to Requests for Information Raised at the February 27, 1985 Atomic Safety and Licensing Board Conference (March 15, 1985) (Exh. F).

9

i be overturned absent a very strong showing. b Even if it were permissible to challenge those findings, intervenor has not shown the requisite specificity and bases for doing so._2/

l II.

The New Contentions Raised by the Graterford Prisoners are Late-Filed Absent Good Cause and Without Merit.

At the time of the March 22, 1985 prehearing

)

conference, counsel for the Graterford Prisoners orally sought to add new issues not pleaded in the written I

11/

Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units.1 and 2), ALAB-781,' 20 NRC 819, 8'24 4

I (1984); Diablo Canyon, supra, ALAB-592, 11 NRC 746, 754 (1980); Public Service Company of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 1

i NRC 253, 259-60 (1978); Cleveland Electric Illuminating Company (Perry Nuclear Power Plant, Units 1

2),

LBP-83-18, 17 NRC 501, 504-05 (1983); Perry, supra, 1

LBP-82-117, 16 NRC 1955, 1956 (1982); Cincinnati Gas &

j Electric Company (Wm.

H.

Zimmer Nuclear Power Station, Unit 1), LBP-82-68, 16 NRC 741, 746 n.2 (1982).

I The situation here is similar to that in seabrook,

{

where the Appeal Board affirmed denial of a late-filed petition for intervention which sought to raise a

j single contention previously decided against an admitted intervonor in the same proceeding.

While

{

noting that the issue had been raised and litigated by another intervenor, the Licensing Board ruled:

"There 4

j is no reason to suppose, however, that the Board would have decided it any differently had it considered (petitioner's] claim rather than (the intervenor's]."

Public-Service Company of New Ham; shire (Seabrook Station, Units 1 and 2), ALAB-758, 19 1RC 7, 11 (1984).

l 12/- 10 C.F.R. 52.714(b).

See generally Diablo Canyon, supta, CLI-84-14, 20 NRC~785, 286 (:.984); Duke Power Company (Catawba Nuclear Station, Units 1

and 2),

ALAB-687, 16 NRC 460, 466 (1982), rev'd in part on l

other grounds, CLI-83-19, 17 NRC 1041 (1983).

l f

4

contentions filed on February 15, 1985.

The Board correctly ruled that this unjustified attempt to expand the proposed impe/

contentions is rmissible.

Intervenor's newly stated

" concerns" are lat.e without good cause and do not meet the other requirements of 10 C.F.R.

S2. 714 (a) (1) for late contentions.

Moreover, they also lack the requisite specificity and bases.

As a threshold matter, no newly proposed contention as such has been submitted.N/

Even if the Board nonetheless construes the " concerns" orally expressed by counsel for the Graterford Prisoners as adequately pleaded late contentions,

.they do not satisfy NRC requirements.

Those concerns were described as a desire to have further input into the plans from the union representing Graterford Prison guards (Tr.

20624);

the possibility of

" panic" or "some kind of a t

stampede to the front door" upon notification to the inmates of a radiological emergency (Tr.

20655);

notification of off-duty prison personnel (Tr. 20626-27); and an evacuation time estimate for the Graterford prisoners (Tr. 20641).EI 13/

It is well established that a licensing board does not have a duty to assist an intervenor in formalizing or rewording its contentions.

Commonwealth Edison Company (Zion Station, Units 1 & 2), ALAB-226, 8 AEC 381, 406 (1974).

14/

At the prehearing conference, counsel for the Graterford Prisoners attempted to lump these various concerns under Contention J, which takes issue with the adequacy of the " general concept of evacuation" in the (Footnote Continued)

The assertion that these concerns resulted from the review of the more fully disclosed Graterford evacuation plan by intervenor's counsel is untenable.

Intervenor has wholly failed to show that any of its concerns is addressed to a portion of the newly disclosed version of the plan or other document which was previously unavailable to intervenor's counsel and expert consultant when its written contentions were filed. b (Footnote Continued)

Graterford plan to provide for the safety and security of inmates and Graterford personnel during an evacuation.

See Proposed Contentions of the Graterford Inmates with Regard to the Evacuation Plan at 9

(February 15, 1985).

Clearly, this kind of shotgun contention is unacceptably vague and does not, in any event, encompass any of the matters raised by counsel for the Graterford Prisoners (Tr. 20691).

Accordingly, proposed Contention J provides no independent basis for litigating the issues discussed above.

15/

Thus, it cannot be seriously contended that intervenor's counsel learned for the first time in reviewing the more fully disclosed plan that prison guards would be used to implement the Graterford plan.

If the Graterford Prisoners believe that input from the guards' union is essential, they could have so asserted from the outset.

Similarly, it was well understood by the Graterford Prisoners that arrangements with bus providers had been made to evacuate the Graterford prisoners.

See Proposed Contentions of the Graterford Inmates at 3-4 (February 15, 1985);

Memorandum in Support of Motion by Graterford Prisoners, Exh.

B (December 17, 1984)

(stating that 90 buses would be required to evacuate the prison).

Intervenor therefore had sufficient information to assert that bus drivers should be treated as " emergency workers. "

Likewise, intervenor has always known that notification of support personnel, such as bus drivers and prison

guards, would be necessary in an actual emergency.

Finally, the concern regarding the up to ten-hour estimated evacuation time for Graterford is clearly (Footnote Continued)

- 11'-

Although the more fully disclosed version of the Graterford plan was unavailable at the time the contentions were pleaded, "the institutional unavailability o'f a licens-ing-related. document does not establish good cause for

{

filing a contention late if information was publicly avail-able early enough to provide the basis for the timely filing I

of that contention."EI The principles which underlie the Commission's rules for filing contentions

" require i

intervenors to diligently uncover and apply all publicly l

available information to the prompt formulation of con-tentions."N!

i Intervenor has failed-to cite a single provision of the I

newly disclosed version of the Graterford plan upon which it relies.

The Board correctly rejected counsel's argument that new issues were justified. simply because the most l

]

recently disclosed version was longer than the first version l

(Tr. 20640).

Accordingly, intervenor has failed to satisfy l

the first and foremost prong of the five-factor test.for i

I (Footnote Continued) belated.

This information has been available for years and was cited by intervenor months ago.

See Memorandum in Support of Motion, Exh. B (December 17 7 984).

1_6)

Catawba, supra, CLI-83-19, 17 NRC 1041, 1045.

17/

Id. at 1048.

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. O admitting late contentions because it has not established

" good cause" for its lateness.E!

Nor has intervenor addressed, much less satisfied, the remaining four of five factors under 10 C.F.R.

S2. 714 (a) (1),

hs to the second factor, other means exist to protect the inmates' interests.

For example, their counsel or represen-tative could comment on Limerick emergency plans at the public hearing required under 44 C.F.R.

S350.10.

On the third factor, intervenor has not shown that it can assist in developing a sound record.

To the contrary, the generalized concerns expressed by intervenor are entirely lacking in detail.

It has not complied with the' requirement of Grand Gulf that "[w] hen a petitioner addresses this criterion it should set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony."El 18/

Even several weeks lateness at this juncture is critical.

As the Appeal Board stated in the WPPSS

case, "the true importance of the tardiness will generally hinge upon the posture of 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).

19/

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

See also WPPSS, supra, ALAB-747, 18 NRC at 1177; Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1),

ALAB-743, 18 NRC 387, 399 j

(1983).

While intervenor has retained an expert in prison security

matters, its consultant has not demonstrated any expertise in the areas of bus driver (Footnote Continued)

Regarding the fourth factor, intervenor's interest will be adequately represented by the NRC Staff, FEMA and PEMA.

The final factor, whether the late contentions will broaden the issues and delay the proceeding, weighs very heavily against intervenor.

Inasmuch as all other con-tentions have been decided or litigated, the proceeding would be at an end if the Board denies the one remaining timely contention.

And even though it is sufficient to show that admission of the late contentions would delay the proceeding,El admitting late contentions would likely delay issuance of a

license and operation of Limerick itself.

Thus, all five factors weigh against admitting any late contentions.

The three most critical factors, lack of

" good cause," no significant contribution to the record and delay of the proceeding, b especially dictate that no late issues or " concerns" be interjected.

The proposed late contentions expressed as additional

" concerns" of intervenor further lack specificity and basis.

(Footnote Continued) training, offsite notifications, protective actions or evacuation time estimates.

j 20/

Detroit Edison Company (Enrico Fermi Atomic Power Plant, Unit 2), ALAB-707, 16 NRC 1760, 1766 (1982),

citing, Fermi, supra, LBP-82-96, 16 NRC 1408, 1434 (1982); Shoreham, supra, LBP-83-30, 17 NRC 1132, 1146 (1983).

2_1,/

See South Carolina Flectric and Gas Company (Virgil C.

Summer Nuclear Station, Unit 1), ALAB-642, 13 NRC 881, 895 (1981).

l t

o O There is no regulatory requirement that support organization individuals or their unions have an opportunity to provide input into the planning process.

What intervenor proposes is purely a procedural m(.chanism; no substantive deficiency in planning has been allegedb No basis has been shown to question the workability of the call-down system for obtaining off-duty prison guards in an emergency.23/

Concern over the potential for a prison riot when inmates learn of a

radiological emergency involves no

]

litigable issue.

Intervenor's reliance upon the Waterford decision is misplaced.

The Board determined that "although

.there will be som.e hysteria an.d, spontaneous evacuation, these reactions will not interfere with the evacuation j

scheme."

The Board further concluded "that public i

22/

As the Board pointed out, neither the guards nor their union are parties to this proceeding (Tr. 20624-25).

Intervenor lacks standing to represent any interests of the guards because standing constitutes a personal stake in the outcome of the proceeding.

Transnuclear, Inc., CLI-77-24, 6 NRC 525, 531 (1977).

In any event, intervenor has shown no basis for litigating whether guards should have input into the planning process or even that the guards desire input.

2_3/

There has not even been a threshold showing that, at the early stages of plan implementation, the plan is dependent upon a

particular number of guards not already on duty.

No basis has been demonstrated for litigating the adequacy of the commercial telephone system to notify off-duty personnel, many of whom live outside the EPZ (Tr.

20630, 20672).

As the Board observed, the same system will be used within the EPZ to notify county and municipal emergency workers (Tr.

20629).

l l

i

. i overreaction to a nuclear accident is likely to be minimized provided the guidance in NUREG-0654 is followed" and that "no additional measures need be taken to cope with the public's anxiety. "MI Prison authorities must be prepared to handle potential disturbances for any number of reasons, all of. which are a great deal less problematical than a i

radiological emergency.

No basis has been shown to litigate i

the adequacy of security measures already in place _ to prevent or settle any such disturbances.

Lastly, although an evacuation of the Graterford Prison i

will take somewhat longer than the general public for i

security reasons, there is no time mandated by regulation within which an evacuation must be accomplished.EI An i

i evacuation time estimate study includes a distribution of i

evacuation times to account for varying preparation and t

i 24/

Louisiana Power and Light (Waterford Steam Electric

~

Station, Unit 3), LBP-82-100,~16 NRC 1550, 1562 '(1982),

aff'd, ALAB-732, 17 NRC 1076 (1983).

The Board's j

holding, which in fact states that no panic would adversely affect emergency planning implementation, does not even relate to prison evacuation.

Rather, i

that portion of the decision does not reflect any anticipated problem with evacuating inmates from the local prison.

16 NRC at-1566.

I 25/

(Tr. 20643-44).

See generally Zimmer, supra,'ALAB-727, 17 NRC

760, 770 (1983);

Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1 I

and 2), LBP-84-29B, 20 NRC 389, 419 (1984).

ML20100G324

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