ML20101L161

Applicant Response to Graterford Inmates Motion for Order Requiring Full Disclosure by PA Emergency Mgt Agency of Evacuation Plan for State Correctional Inst at Graterford. Certificate of Svc Encl

ML20101L161
Person / Time
Site:	Limerick
Issue date:	12/28/1984
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
CON-#185-870 OL, NUDOCS 8501020150
Download: ML20101L161 (8)

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Before the Atomic Safety and LicensingTBoard r -

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In the Matter of )

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Philadelphia Electric Company ) Docket Nos. 50-352 6L

) 50-353 U C-(Limerick Generating Station, )

Units 1 and 2) )

APPLICANT'S RESPONSE TO GRATERFORD INMATES MOTION FOR AN ORDER REQUIRING FULL DISCLOSURE BY PEMA OF THE EVACUATION PLAN FOR THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD On December 20, 1984, counsel for the inmates of the State Correctional Institute at Graterford ("Graterford")

who are intervenors in the captioned proceeding moved the Atomic Safety and Licensing Board (" Licensing Board") to require full disclosure by the Pennsylvania Emergency Management Agency ("PEMA") of the evacuation plan for Graterford.1! As justification, the motion states that the Licensing Board's April 20, 1984 Special Prehearing Confer-ence Order had granted the inmates 20 days to submit con-tentions upon receipt of the evacuation plan for the insti-tution. It further alleged that on December 14, 1984, 1/ Motion for Order Requiring Full Disclosure by Pennsylvania Emergency Management Agency of the Evacuation Plan for State Correctional Institute at Graterford and Memorandum in Support of Motion.

Oh OkOhh8 eBR DS63

t counsel for the inmates received an unclassified copy of the Pennsylvania Bureau of Corrections' Radiological Emergency Response Plan.- Counsel stated that "[u]pon review of said document, it became obvious that major portions of said plan have been removed. The remaining portions made little or no sense, giving counsel an inadequate basis from which to form contentions pursuant to the Board's Order of April 20, 1984."2I The motion asks for the issuance of a protective order allowing counsel and any recognized experts to review the entire plan under appropriate, but undefined conditions.

The motion also requests that the 20 day time period allowed for the filing of the contentions not begin until such disclosure has been permitted.O Applicant opposes the requested relief. It is beyond question that the Graterford Emergency Response Plan falls within the requirements of 10 C.F.R. S2.740(c) as a document which should be the subject of a protective order. That position is supported by the affidavits which accompanied the submission of the Graterford plan and is apparently not contested by counsel for the inmates. The question 2_/ A copy of the plan as received by counsel for the Graterford inmates was attached to the pleading. Other parties had only received the transmittal letter and affidavits.

3/ Graterford Prisoners' Motion at 2.

4/ Id. at 3.

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t remaining is whether an unexpurgated copy of the plan should be released and, if so, what conditions should be imposed on release to counsel for interested parties and their experts.

In Duke Power Company (Catawba Nuclear Station, Units 1 and 2), LBP-82-16, 15 NRC 566, 590 (1982), the Atomic Safety and Licensing Board rejected an applicant's argument that an intervenor must frame a sufficiently specific contention on information available to it in the public record despite the fact that no information about the plan is available.5_/

The Board then permitted the intervenor access to the security plan in order to permit it to write the contention:

Because an intervenor cannot reasonably be required to advance specific contentions about a security plan he has never seen, and because Palmetto has expressed a formal interest in the Catawba plan, we believe we could at this juncture order the Applicants to grant Palmetto access to that plan. We could now find that disclosure of the plans is "necessary to a proper decision in the proceeding." 10 CFR 2. 744 (e) , as recently amended, 46 Fed. Reg. 51718, 51723.

However, the Board conditioned its disclosure order on the intervenor having obtained the services of a qualified security plan expert.

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5/ This case discusses the release of the security plan for the facility. Applicant submits that because of the parallels regarding the consequences of the information contained therein such a plan and the plan for Graterford prison should be treated similarly.

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In a subsequent order,5/ the Board agreed with the arguments of the Staff and applicants that both expert assistance and a protective order are prerequisites to access to a security plan. The intervenor had not obtained a security expert. It therefore denied access to the plan to intervenor.

Thus, Applicant submits that before the question is reached as to whether access should be granted to attorney.

for Graterford inmates, an inquiry must be made as to whether a qualified expert has been retained by counsel.

The Board must specifically approve this expert's creden-tials to testify with regard to the particular problems of evacuation of prisoners from Graterford. The Board should therefore order that within 5 days counsel for the Graterford inmates submit the name and professional quali-fications of any proposed expert such that the Board can make a determination as to whether the individual is 1/ Catawba, supra, Memorandum and Order (Overruling Objections Following Prehearing Conference, Denying Requests for Referral to the Appeal Board, and Addressing Certain Related Questions) (July 8, 1982)

(slip op. at 14).

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qualified.1I At that ' point, it may ' determine whether 10 C.F.R. 52.744 requires access to the security plan.8/

Respectfully submitted, CONNER'& WETTERHAHN, P.C.

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CtW/ -

Troy nner, Jr.

Counsel for the Applicant December 28, 1984 7/ Such a short time. period is not unreasonable.

Presumably, an expert has been retained to assist in writing the contentions. The requirement to prepare contentions regarding the Graterford plan has been known for a number of months.

' 8_/ If access is granted, a protective order similar to that in NRC proceedings involving security matters would be warranted. See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and

2) , ALAB-600, 12 NRC 3, 14-17 (1980). In accordance with Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-410, 5 NRC 1398, 1404 (1977), access should be given only to those portions of the plan which are relevant to evacuation of the inmates.

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

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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 Response to Graterford Inmates Motion for an Order Requiring Full Disclosure by PEMA of the Evacuation Plan for the State Correctional Institute at Graterford," dated December 28, 1984 in the captioned matter have been served upon the following by deposit in the United States mail this 28th day of December 1984:

Helen F. Hoyt, Esq. Atomic Safety and Licensing Chairperson Appeal Panel Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketing and Service Section Dr. Richard F. Cole U.S. Nuclear Regulatory Atomic Safety and Commission Licensing Board Washington, D.C. 20555

U.S. Nuclear Regulatory Commission Ann P. Hodgdon, Esq.

Washington, D.C. 20555 Counsel for NRC Staff Office of the Executive Dr. Jerry Harbour Legal Director Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 i

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T 2-r 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 Mr. Frank R. Romano Agency 61 Forest Avenue Basement, Transportation Ambler, Pennsylvania 19002 and Safety Building Harrisburg, PA 17120 Mr. Robert L. Anthony Friends of the Earth in Martha W. Bush, Esq.

the Delaware Valley Kathryn S. Lewis, Esq.

106 Vernon Lane, Box 186 City of Philadelphia Moylan, PA 19065 Municipal Services Bldg.

15th and JFK Blvd.

Charles W. Elliott, Esq. Philadelphia, PA 19107 325 N. 10th Street Easton, PA 18064 Spence W. Perry, Esq. <

Associate General Counsel Miss Phyllis Zitzer Federal Emergency Limerick Ecology Action Management Agency P.O. Box 761 500 C Street, S.W.

762 Queen Street Room 840 Pottstown, PA 19464 Washington, DC 20472 Zori G. Ferkin, Esq. Thomas Gerusky, Director Assistant Counsel Bureau of Radiation Commonwealth of Pennsylvania Protection Governor's Energy Council Department of Environmental 1625 N. Front Street Resources Harrisburg, PA 17102 5th Floor Fulton Bank Bldg.

Jay M. Gutierrez, Esq. Third and Locust Streets U.S. Nuclear Regulatory Harrisburg, PA 17120 Commission 631 Park Avenue King of Prussia, PA 19406 L

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-i 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 Mr. Ralph Hippert Pennsylvania Emergency Management Agency B151 - Transportation and Safety Building Harrisburg, PA 17120

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Mark J. Wetterhahn l

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