ML20113F357

Memorandum in Support of Response of Commonwealth of PA to Graterford Inmates 841220 Motion for Full Disclosure of Graterford Radiological Emergency Response Plan.Motion Should Be Denied.Certificate of Svc Encl

ML20113F357
Person / Time
Site:	Limerick
Issue date:	01/18/1985
From:	Ferkin Z, Otto T PENNSYLVANIA, COMMONWEALTH OF
To:
References
CON-#185-207 OL, NUDOCS 8501230615
Download: ML20113F357 (8)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI g yy g k' Before the Atomic Safety and Lice'nsing Board CritCE~~?:cM ii <

In the Matter of ) UDEiuG 4 SON -

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Philadelphia, Electric ) Docket Nos. 50-352,O[_

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(Limerick Generating Station, Units 1

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MEMORANDUM IN SUPPORT OF RESPONSE i OF THE COMMONWEALTH OF PENNSYLVANIA TO GRATERFORD INMATES' DECEMBER 20, 1984 MOTION i

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I.- Introduction 4 On December 30, 1984, the Commonwealth filed its h response to the Graterford inmates' December 20, 1984 motion for full disclosure of the Graterford radJ ological emergency response plan. In that response, the Commu..waalth.

I requested until January 18, 1985 to file a Memorandum in suoport of its response.

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The Applicant and the NRC Staff each filed responses f

! to the Graterford inmates" motion. Both Applicant and NRC

! Staff questioned the relief requested by the' inmates and recommended further action be taken prior to a Board i-ruling on the motion. In particular, the.NRC Staff-I reocnigzed that the protection to be accorded an evacuation i

o plan for a maximum security correctional institution is, in t

fact, analogous to the extent of protection required by f .NRC regulation for a site security plan. .Such regulations,.

t however, and case law which interprets these rules allow-i SO3

? 8501230615 850118 L. PDR ADOCK 05000352 Q PDR L

. for security plan disclosure under certain conditions.

In this instance, the Commonwealth believes there should be no further disclosure of the Graterford plan, and asks that this Board take the following discussion into consideration in ruling on the inmates' motion.

II. Discussion After exhaustive legal research, it appears to the Commonwealth that the issue before this Board regarding the disclosure of an evacuation plan for a prison is a case of first impression. There are, however, numerous decisions by the United States Supreme Court which recognize the difficulty inherent in prison administration and, therefore, instruct that wide-ranging deference be accorded the decisions of prison administrators.

In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court clearly outlined its opinion as to the deference to be accorded the decisions of prison administrators. The Court said:

Prison officials must be free to take appropriate action to ensure the safety of inmates and corrections personnel and to prevent escape or unauthorized entry . . . .

Prison administrators, therefore, should be accorded wide-ranging deference in the adoption and execution of policies and practices that, in their judgment, are needed to preserve internal order and discipline and to maintain institutional security. Such considerations are particularly within the province and professional expertise of correctional officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated

. their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.

. _ . _ . . ._ _ __ _ . . ~- __ _-

l 441 U.S. at 547-48. An example of the deference accorded F

6 prison officials may be found in Bell where the Court was asked to find that the strip search policy of the b -particular. bureau of prisons involved was an illegal search and seizure. The prison bureau in this case required that

. inmates expose their body cavities for visual inspection-h, -;

as part of a strip search conducted after every contact visit with a person from outside the institution. Even C

though there was only one instance in the history of  ;

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the institution in question where contraband was actually .

f found during such a search, the ' corrections officials had testified that the cavity searches were necessary not only s

to discover weapons, drugs and other contraband that might be entering the institution but also to deter smuggling of such items into the prison. Upon balancing the need for security against the intrusion suffered by the inmates, the  :

Court upheld the strip search procedure as constitutional, in recognition of the views of the corrections professionals.

In Procunier v. Martinez, 416 U.S. 396 (1974), the Court-reviewed institutional' rules and' regulations which prohibited receipt or mailing by inmates of letters that contained language which unduly complained about. prison conditions or magnified grievances. The institution also prohibited correspondence.that was lewd, obscene, defamatory or ,

otherwise inappropriate. Although in this instance-the Court found the specific regulations at issue.too restrictive, I r l it approved the censorship of prisoner mail where a " regulation :i F

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i- authorizing mail censorship furthers one or more of the substantial governmental interests of security, order and rehabilitation" and limited First Amendment freedoms L ~

"no greater than necessary or essential to the protection of the particular governmental interest involved." 416 I U.S. at 413. In reaching its decision the Court explicitly recognized that prison administrators face great difficulties

. in execution of their duties, and courts should accordingly E defer:

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prison administrators are responsible for maintaining internal order and discipline,

• for securing their' institutions against~

unauthorized access or escape, and for rehabilitating, to the extent that human nature

'and inadequate resources allow, the inmates placed in their. custody. The herculean obstacles

• to effective discharge of these duties'are too apparent to warrant explication. Suffice it to say that the problems of-prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree... . . courts are ill-equipped to deal with the increasingly urgent problems of prison administration and reform.

Id. at 404-05. See also Hewitt v. Helms, 459 U.S. 460 (1983);

Jones v.-North Carolina Prisoners Labor Union, 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974); Meachum v.

Fano, 427 U.S. 215 (1976); Cruz v. Beto, 435 U.S. 319 (1972).

The common thread which runs through the rulings cited.

and discussed above is that corrections is a highly specialized

. profession, and even the U.S. Supreme Court will not intru'de into the corrections area unless it finds a clear

' violation of the constitutional rights of inmates. .For example,

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even where the most fundamental right as freedom from unreasonable search and seizure is involved, the Court will permit j; even a highly intrusive search so long as there is justification i based on the corrections professional's judgment of the nee,d for security and order in the institution.

While the officials of the Pennsylvania Bureau of l Correction do nottelaim to be experts in the development of evacuation plans relating to nuclear incidents, the Bureau in fact has more e'xperience in this particular b area than any one organization or individual. The Bureau has of necessity had to plan for the evacuation of its v

State Correctional Institution at Camp Hill in response to the Three Mile Island nuclear incident. The Bureau-has=

received a great deal of advice and assistance in its evacuation plan development from the Pennsylvania Emergency Management Agency (PEMA), clearly an expert organization in l' the emergency planning and evacuation response arena. Only with the knowledge and experience of the entire correctional system in the Commonwealth of Pennsylvania, knowing exactly what resources are available at each correctional institution and having experience with the particular physical plants, as well as institutional personnel, is it possible to

-develop a workable evacuation. plan. As stated in the Affidavit of Commissioner Jeffes previously provided this Board, only individuals inside the Pennsylvania Bureau of

. Correction have this expertise. Review of the plan by someone outside the Bureau would thus be futile. Jeffeu Affidavit at 5. Consistent with the rulings of the U.S.

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D k -Supreme Court with regard to the opinions and policies of corrections officials, this Board should defer to the policy e of the Pennsylvania Bureau of Correction and the opinion of Commissioner Jeffes with regard to the need for the strictest security and protectionof the Graterford plan.

III. Conclusion For the foregoing reasons and.the arguments set forth in the Commonwealth's Request for Non-Disclsoure dated December 13 and Response to the Graterford Inmates' Motion dated December 30, 1984, the Commonwealth respectfully requests this Board to deny the motion of the Graterford inmates for full disclosure of the Graterford radiological emergency response plan. The Commonwealth requests that there be no further disclosure of said plan to either inmates or their counsel. '

Respectfully submitted,

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% b [J Zori G. Ferkin Assistant Counsel Governor's,' Energy. Council-b /k/LA #

Theod re J. Otho Assistant Counsel Bureau of Correction Dated; January 18, 1985 I'

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Stati.on, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the " Memorandum in Support of the Commonwealth of Pennsylvania to Graterford Inmates' December 20, 1984 Motion were served on the following by United States first class mail on the 18th day of January 1985:

Helen F. Hoyt Docketing and Service Section Administrative Judge Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Richard F. Cole Troy B. Conner, Esq.

Administrative Judge Conner and Wetterhahn, P.C.

Atomic Safety and Licensing Board 1747 Pennsylvania Ave., N.W.

U.S. Nuclear Regulatory Commission Washington, DC 20006 Washington, DC 20555 Dr. Jerry Harbour Atomic Safety and Licensing Board Administrative Judge Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555' Benjamin H. Vogler, Esq.

Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive Legal Appeal Panel Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission '

Washington, DC 20555 Washington, DC 20555 p

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Robert L. Anthony Philadelphia Electric Company Friends of the Earth of the Attn: Edward G. Bauer, Jr.

Delaware-Valley Vice President & General Counsel P. 0. Box 186 2301 Market Street 103 Vernon Lane Philadelphia, PA 19101 Joseph H. White, III Angus Love, Esq.

15 Ardmore Avenue 101 East Main Street Ardmore, PA 19003 Norristown, PA 19104 Charles W. Elliott, Esq.

Brose and Postwistilo Phyllis Zitzer 325 N. 10th Street Limerick Ecology Action Easton, PA 18042

• P. O. Box 761 Pottstown, PA 19464 Steven P. Hershey, Esq.

• Director, Pennsylvania Emergency Community Legal Services, Inc. Management Agency Law Center West B-151, Transportation & Safety Bld{

5219 Chestnut Street Harrisburg, PA 17120 Philadelhia, PA 19139 Thomas Gerusky,' Director Martha W. Bush, Esq.

Bureau of Radiation Protection Kathryn S. Lewis, Esq.

Dept. of Environmental Resources City of Philadelphia 5th Fl., Fulton Bank Bldg. Municipal Services Bldg.

Third and Locust Streets 15th and JFK Blvd.

Harrisburg, PA 17120 Philadelphia, PA 19107 Jay M. Gutierrez, Esq. Spence W. Perry, Esq.

U.S. Nuclear Regulatory Commission Associate General Counsel Region I Federal Emergency Management Agencg 631 Park Avenue 500 C Street, SW, Rm. 840 King of Prussia, PA 19406 Washington, DC 20472 Timothy R.S. Campbell

• David Wersan, Esq.

Director Assistant Consumer Advocate Dept. of Emergency Services Office of Consumer Advocate 14 East Biddle Street 1425 Strawberry Square West Chester, PA 19380 Harrisburg, PA 17120

..:. . . . . . . .-)......W[x ori G..Ferkin saistant Counsel novernor's Energy Council Date: January 18, 1985