ML20127K090

Comments on ASLB 850509 Order Granting Util Exemption from 10CFR50.47(a) & (B) Re Evacuation Provisions of Emergency Plan for Graterford State Correctional Inst.Criteria for Exemption Met.Certificate of Svc Encl

ML20127K090
Person / Time
Site:	Limerick
Issue date:	05/20/1985
From:	Hassell D NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#285-089, CON-#285-89 OL, NUDOCS 8505220038
Download: ML20127K090 (9)

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'May 20, 1985 f- UNITED STATES OF AMERICA .-

NUCLEAR REGULATORY COMMISSION ,

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00f}TED In the Matter of-j '85 My 21 g g

-PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 0 '

50-353OL. QFFt:~

CcxEr GF 3CCRaur y

.( Limerick Generating Station, tC*

Units 1 and 2)

O NRC STAFF COMMENTS ON THE LICENSING BOARD'S MAY 9, 1985 ORDER GRANTING APPLICANT-AN EXEMPTION I. INTRODUCTION ,

~ On February 7, 1985, the Philadelphia Electric Company (Applicant),

pursuant to 10 C.F.R. 9 50.12, filed a motion before the Licensing Board seeking an exemption from the requirements of 10 C.F.R. 5 50.47(a) and (b) as they relate to the necessity of the Board to consider evacua-tion provisions of the emergency plan for the State Correctional Institu-tionatGraterford(SCIG)(Applicant'sMotion).Il On March 13, 1985, the Graterford Prisoners (Mr. Love) filed its answer opposing the Appli-cant's motion. 2/ On March 15, 1985, answers ppposing the Applicant's -

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1/ Applicant's Motion For Exemption From The Requirements Of 10 C.F.R.

l 50.47(a) and (b) As They Relate To The Necessity Of Atomic Safety And Licensing Board Consideration Of Evacuation Provisions Of The

. Emergency Plans For The State Correctional Institution Of Graterford (February 7, 1985).

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Graterford Inmates' Motion In Opposition To Applicant's Motion For Exemption From The Requirements Of 10 C.F.R. 9 50.47(a) and (b) As (FOOTNOTE CONTINUED ON NEXT PAGE)

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. motion were filed by Air and Water Pollution Patrol (Mr. Romano) and

_J- Friends of the Earth (Mr. Anthony).1/ On March 18, 1985, the NRC staff' filed its answer,-indicating that it was inappropriate to consider grant-ingtheexemptionatthattime.S/ Also, on March 18, 1985, the Commonwealth of Pennsylvania filed its answer indicating that it-did not supporttheApplicant'smotion.El During the March 22, 1985 conference on the Graterford matter, the

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' Licensing Board provided the parties an opportunity to take additional positions or update their prior responses on Applicant's motion for an exemption. Tr. 20,672-74. The Board established a filing date of April 1, 1985. Tr. 20,673. On March 26, 1985, the Graterford Prisoners (Mr. Love) filed a supplemental motion in opposition to the Applicant's

.(FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

.They Relate To The Necessity Of Atomic Safety And Licensing Board Consideration Of Evacuation Provisions Of The Emergency plans For The State Correctional Institution Of Graterford (March 13,1985).

3/ Letter from Mr. Romano, Chairman, Air & Water Pollution Patrol to the Licensing Board, dated March 15, 1985; Anthony /F0E Motion In -

Opposition To PEC0's Motion For Exemption From 10 C.F.R. 6 50.47 Provisions For Emergency and Evacuation Planning For Graterford Prisoners And Staff (March 15,1985).

4/ NRC Staff Response To Applicant's Motion Dated February 7, 1985 For Exemption From The Requirements Of 10 C.F.R. 6 50.47(a) and (b)

(March'18,1985).

5/ Commonwealth Of Pennsylvania Response To Applicant's Motion For Exemption From the Requirements of 10 C.F.R. 6 50.47(a) and (b) As They Relate To The Necessity Of Atomic Safety And Licensing Board Consideration Of Evacuation Provisions Of The Emergency Plans For The State Correctional Institution Of Graterford (March 18,1985).

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3-request for' an exemption, k On March 27, 1985, F0E ($r. Anthony) filed

_. r lan additional statement in opposition to- Applicant's request for an exemption.1/ .On April 1,1985, the Applicant filed a reply En i support'of its request for exemption and the NRC staff filed additional

. views'on Applicant's-request for exemption. U On May 9, ~1985, the Licensing Board issued an Order granting the Applicant's motion for exemption from the requirements of 10 C.F.R. 6 5,0'.47(a) and (b) for a period of time for the Board to consider any cpotential contentions I0/ of the Graterford Prisoners. E l Parties opposing the issuance of that Order were provided an opportunity to sub- ,

mit comments within 10 days from the date of the Order.12/ On May-14, .

6/ Supplem' ental Motion Of The Graterford Inmates In Opposition To The

u. Applicant's Request For An Exemption Under 10 C.F.R. 5 50.12(a) and (b) (March 26,1985).

'- Z/~ Additional Statement In Opposition To PECO's Motion To Exempt Graterford Prison From Requirements Of 10 C.F.R. 5.50.47 on Emergen-cy Planning, By R. L. Anthony /F0E (March 27,1985).

8_/ Applicant's Reply In Support Of Its Request For Exemption From The Requirements Of 10 C.F.R. 6 50.47(a) and (b) Relating To The Graterford Emergency Plan (April 1,1985).

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9 NRC Staff Additional Views On Applicant's Motion 1985 For Exemption-From The Requirements Of 10 C.F.R.Dated 6 50.47(a February)7, and' (b) (April 1,1985).

10/ The Staff would note that on May 13, 1985, the Graterford Prisoners filed proposed revised contentions.

H/ Philadelphia Electric Company-(Limerick Generating Station, Units 1 and 2), Order Granting Applicant's Motion For Exemption from Re-quirement of 10 C.F.R. 9 50.47(a) and (b) for a Period of Time Any Potential Contentions of Remaining Party Are Considered by the Board (unpublished), slip op., (May 9, 1985).

12/ Id. at 8.

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4-1985, the Staff was informed by the Board Chairman that comments from

__ . l e 4 parties not opposing' the Order would be considered if submitted within

~ the: time period established by the Order. Accordingly, the Staff hereby in 'provides its. comments on the Board's May 9, 1985 Order granting the Ap-

.plicant an exemption..

.II.- DISCUSSION

'The. Staff is of the view that 10 C.F.R. 5 50.47(c)'(1) does provide the Licensing Board authority to grant the Applicant an exemption from the Commission's emergency planning requirements provided the standards

- 1of Section 50.47(c)(1) have been satisfied. (See, 44 Fed. Reg. 75167-71; In the~ Matter of-Union of Concerned Scientists, DPRM-83-1, 17 NRC 719, 726 (1983)). S/ While the Staff finds it unnecessary to address the ques-tion of whether 10 C.F.R. 9 50.47(c)(1) requires all' three criteria to be met before an exemption may be granted, El the Staff agrees with the Licensing Board that based on the record in this case each of the three criteriaunderSection50.47(c)(1)hasbeensatisfied. However, the

' Staff submits that there is an additional reason for determining that the

- first criterion (i.e., " deficiencies in the plans are not significant") -

i H/ Indeed, the Commission recently observed that its " regulations specifically contemplated certain equitable exceptions, of a limited duration, from the requirements of 50.47(b)", and cited 50.47(c)(1)forthisauthority. Statement of Policy on Emergency Planning Standard 10 C.F.R. 50.47(b)(12) (May 16,1985).

14/ See, the Commission's recent Statement of Policy on Emergency

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) Tanning Standard 10 C.F.R. 50.47(b)(12) (May 16, 1985) at 6-10,

' where only two of the three criteria under 50.47(c) are addressed.

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, a,; has'been satisfied. :The Pennsylvania Emergency Manager 5ent Agency'(PEMA) f has evaluated and prepared a report of the March 7,1985 exercise of the' SCIG plan. - PEMA _found that the Department of Corrections emergency s'taffs are knowledgeable about the plan and_ procedures to be implemented, and that there are satisfactory and adequate communications in place. El Based Lon that report, the Director of PEMA concluded .that the Department

of Corrections' staff did an outstanding job in demonstrating its capability _to evacuate the Graterford inmates if that became necessary. E I-In its May 9.-1985 Order, the Board states the following: "[W]ith

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th'e grant of this exemption, any final impediment to the issuance of a full power license has been removed." Order at 8. The Staff has no disagreement with this statement to the extent it is limited solely to

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' matte'rs pending before the Licensing Board, particularly since FEMA has not yet provided the NRC staff its report on the schedule for resolving certain deficiencies identified in FEMA's supplemental interim finding on

.offsite emergency preparedness for the Limerick Generating Station. E The Third Partial-Initial Decision On-Offsite Emergency Planning provides tha.t it " disposes of those remaining issues [offsite emergency -

planning' contentions] in favor of Applicant except for any issue which 1_5/

5 'See, Letter from John L. Patten, Director, Pennsylvania Emergency Management Agency to Glen-R. Jeffes, Acting Secretary, Department of Corrections, dated March-13, 1085, with Enclosures.

1_6/ E 17/ See,- Enclosures to Letter from D. F. Hassell, Counsel for the NRC Staff to the Licensing Board, dated April 16, 1985.

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may arise from the inmates of the -State Correctional Institution at

__?; Graterford [ citation'omitted]". (See, In the Matter of Philadelphia Electric-Co. (Limerick Generating Station, Units 1 and 2) LBP-85-14, Lslip op. at il,'(May 2,1985).- Further, the Order clause explicitly im-

_ poses two conditions that are to be satisfied " prior-to operation above 5% rated power". .Id. at 304-05. However, neither the Order clause nor

any other portion of the decision explicitly authorizes the Director of Nuclear Reactor Regulation to issue a full-power operating license con-sistent with the Board's decision. The absence of such explicit author-ization appears to have been consistent with the fact that any potential issues related to the Graterford inmates'were unresolved at the time the Board's Third Partial Initial ~ Decision was issued. In its May 9, 1985 10rder granting an exemption from the requirements of 10 C.F.R. 5 50.47(a) and (b) during the period the Board considers any additional contentions involving the Graterford inmates, the Licensing Board stated "[w]ith the -

grant of this exemption, any final impediment to the issuance of a full power-license has been removed." Order at 8. In view of this action by the Board, it woul' appear to Staff that the Board fully intends to au-

'E thorize the Director of Nuclear Reactor Regulation to issue a full power -

license consistent with the Board's decisions in this case. f cf.

. , 10C.F.R.El2.760,2.760a,2.764(f),50.57. This seems particularly appropriate since the subject matter of this. operating license proceeding is whether to issue a full power operating license for the operation of-the' Limerick Generating Station, Units 1 and 2 (See, 46 Fed. Reg. 42557).

Consequently, the Staff would suggest that the Board adopt the following language.for such an authorization:

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+ It is_ Ordered. in accordance with the Atomic Energ'y ' Act of '

1954, as amended, and the Commission's regulations, and based .

_. f- on (1) the findings and conclusions set forth in the Third Partial Initial Decision On Offsite Emergency Planning, (2).the Boards' Order of May 9 -1985, [and (3) any Board

,0rder issued subsequent to the May 9,1985 Order) that the Director of Nuclear Reactor Regulation is authorized to issue a full-power operating license for the Limerick Generating

-Station,- Units 1 and 2, consistent with the Board's decisions in-this case.and upon making requisite findings with respect to matters not embraced in the Third Partial Initial Decision On Offsite Emergency Planning.

III. CONCLUSION Accordingly, the Staff would urge that its comments be given favor-able consideration by the Licensing Board in making any further decision on this' matter.

Respectfully submitted.

(

w SL 7 Donald F. Hasse 1 Counsel for NRC Staff Dated at Bethesda, Maryland this 20th day of May, 1985 D

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ,

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 00f. METED USNRC

- In'the Matter of

- PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 85 MM 21 40:25 50-353 (Limerick Generating Station, ) 0FflCE OF SECREfAss Units-1and2) ) 00C iggERVICf.

CERTIFICATE OF SERVICE

. I hereby certify that copies of "NRC STAFF COMMENTS ON THE LICENSING BOARD'S MAY 9, 1985 ORDER GRANTING APPLICANT AN EXEMPTION" in the above-captioned proceeding have been served on_the following by deposit in the United States

- mail', first class, or as indicated by an asterisk through deposit in the Nuclear Regulatory Comission's internal mail system, this '20th day of May, 1985:

HelenF.Hoyt, Chairperson (2) Mr. Edward G. Bauer, Jr.

t. Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Comission .2301 Market Street Washington, D.C. 20555* Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr., Esq.

Administrative Judge Mark J. Wetterhahn, Esq.

Atomic Safety and Licensing Board Panel Conner and Wetterhahn U.S. Nuclear Regulatory Comission 1747 Fennsylvania Avenue, N.W.

Washington, D.C.- 20555* Washington, D.C. 20006 Dr. Jerry Harbour Mr. Marvin I. Lewis -

. Administrative Judge 6504 Bradford Terrece Atomic Safety and Licensing Board Panel Philadelphia, PA 19149 U.S. Nuclear Regulatory Comission

. Washington, D.C. 20555* Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003

- Air and Water Pollution Patrol 61 Forest Avenue Martha W. Bush, Esq.

Ambler, PA 19002 Kathryn S. Lewis, Esq.

1500 Municipal Services Bldg.

Ms. Phyllis Zitzer, President 15th and JFK Blvd.

Ms. Maureen Mulligan Philadelphia, PA 19107 Limerick Ecology Action 762 Queen Street Pottstown, PA 19464

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't Thomas Gerusky, Director Zori G. Ferkin

-Bureau of-Radiaticn Protection Governor's Energy Council .

Dept. of Environmental Resources P.O. Box 8010

-5th Floor, Fulton Bank Building 1625 N.. Front Street-Third and Locust Streets Harrisburg, PA - 17105 -

Harrisburg, PA 17120 -

Spence W. Perry,'Esq.

Director Associate General Counsel

Pen'nsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Basement, Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 Harrisburg, PA 17120

, . Robert J. Sugarman, Esq.

Robert L. Anthony Sugarman, Denworth & Hellegers Friends ot'the Earth of the. 16th Floor Center Plaza Delaware Valley 101 North Broad Street 103 Vernon. Lane, Box 186 Philadelphia, PA 19107-Moylan, PA 19065 James Wiggins Angus R. Love, Esq. _

Senior Resident Inspector .

' Montgomery County Legal Aid U.S. Nuclear Regulatory Connission 107 East Main Street P.O. Box 47 Norristown, PA 19401 Sanatoga, PA 19464

1. - Charles W. Elliott, Esq. Atomic Safety and Licensing Brose & Poswistilo Board Panel 325 N. 10 Street U.S. Nuclear Regulatory Commission Easton, PA 18042 Washington, D.C. 20555*

Atomic Safety and Licensing Appeal David Wersan Board Panel Consumer Advocate U.S. Nuclear Regulatory Commission

-Office of Attorney General Washington, D.C. 20555*

1425 Strawberry Square Harrisburg, PA 17120 Docketitig'and Service Section Office of the Secretary -

-Jay Gutierrez U.S. Nucieer Regulatory Commission Regionsl' Counsel Washington, D.C. 20555*'

USitRC, Region I 631 Park Avenue Gregory Minor King cf Prt.ssia, PA 19406 MHB Technical Associates 1723 Hamilton Avenue

. Steven P. Hershey, Esq. San Jose,-CA 95125' Comunity Legal Services, Inc.

~5219 Chestnut Street Timothy R. S. Campbell, Director Philadelphia, PA 19139 Department of Emergency Services 14 East Biddle Street e,st Chester, PA 19380 i

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cw M Donald F. Hassbil '

Counsel for NRC Staff

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