ML20127L553

Motion for Reconsideration of ASLB 850612 Order Denying Certain Revised Contentions.Aslb Did Not Undertake De Novo Review of Contentions as Evidenced by Prior Reviews of Similar Issues.Certificate of Svc Encl

ML20127L553
Person / Time
Site:	Limerick
Issue date:	06/24/1985
From:	Love A GRATERFORD INMATES, LOVE, A.R.
To:	Atomic Safety and Licensing Board Panel
References
CON-#285-598 OL, NUDOCS 8506280055
Download: ML20127L553 (14)

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BOCKETED l UNITED STATES OF AMERICA USNRC i NUCLEAR REGULAIORY COMMISSION f

I Before the Atomic Safety and Licensing Board '85 JUN 27 A10 :30,

! In the Matter of  : OFFICE OF SECREU,b  !

00CdETING & SERVlf.i.~ l PHILADELPHIA ELECIRIC 00MPANY  :

BRANCH (Limerick Generating Station, Units 1 and 2)  : Docket Nos. 50-352, 50-3530L.

i, EXCEPTIONS TO THE BOARD'S ORDER OF JUNE 12, 1985 l

I. INTRODUCTION i

! The Graterford inmates, through their attorney, Angus R. Love, hereby file!

exceptions to the Atomic Safety and Licensing Board's Order of June 12, 1985!

l admitting certain revised contentions of the Graterford inmates and denying; i

others. As the Board noted, the Graterford inmates participation and; contentions have been the subject of numerous reviews in this proceeding, thus:

I we will not burden the Board with a review of the prior activities in thisj matter. The purpose of this motion is to state the inmates' position with!

' i respect to the denial of their contentions which were filed with this Board perf the order of the Atomic Safety and Licensing Appeal Panel on May 13, 1985.

The inmates note that this Licensing Board has not undertaken a de novo review of the inmates' contentions as evidenced by their prior reviews of ~

similar issues and their prior statements regarding those issues and also' l

certain coments in the present order which are being brought into question. In:

the Licensing Board's order of May 9,1985, which was docketed as ASLBP No.!

81-465-07 OL entitled, Order Granting Applicant's Motion for Exemption from' 8506280055 850624 PDR ADOCK 05000352 g PDR 94 )

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l Requirement of 10 CFR 50.47(a) and (b) for a Period of Time Any Potential.

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Contentions of Remaining Party Are Considered by the Board, the Board stated "The deficiencies in the plans are not significant." See page 5, part (1). The Boardfurthergoesoninpage6oftheiropiniontostate,"Itisaclearl l

- reflection that any deficiencies presently known are not of a significant i nature." The inmates contend that the Board has prejudged their revised;

! I contentions and not allowed the contentions which were denied to stand on thei qown merit. The order also states that there may be some ulterior motive of the ,

' inmates in pursuing their legally enforceabl'e right to file conteritions based o l d upon their status as intervenors in the licensing process. The inmates draw Il J

. attention to the coment on page 3 of the aforementioned order which states, i

l "Unless the inmates are using judicial process for an end to which the Board is'

. not privy. . .". The inmates contend that such statements raise serious questions i

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!; regarding the impartiality of the Licensing Board and their ability to conduct a l

li de novo review of the revised contentions that have been submitted af ter thej i

1. issuance of the aforementioned order.

II. THE EXCEPTIONS 'IO THE DENIAL OF 'IEE INMATES' REVISED COtTIENTIONS i A. Manpower Mobilization

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'Ihe inmates take exception to the Board's ruling that the use of

!I tj comercial telephone line call-up system necessary to mobilize the institution's manpower would be adequate in an emergency. The inmates also take exception to I

the Licensing Board's rejection of the inmates' allegation that there exists a l

l necessity for a back up system to the call-up system currently utilized toi mobilize the manpower necessary to conduct the evacuation. The inmates draw the!

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1 Board's attention to the matter of Cincinnati Gas and Electric Company, et al! .

I (William H. Zimmer Nuclear Plant Station, Unit Number 1) Docket No. 50-358; 17j l .

! NRC 760 1983. In this case, the Atomic Safety and Licensing Appeal Panel' i

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'l l reviewed the adequacy of the offsite emergency planning of the applicant. At!

9 page 768, the opinion states, "The Board reasoned (and applicants concede) tha

[;during an emergency the comercial telephone circuits, including those serving' it i ll the schools, likely would become overloaded as a result of heavy public usage a

and thus be unavailable for official use. This is significant because the, I i

!! telephone calls needed to alert the various segments of the school systems of.

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the emergency might not be completed before the requirement of public I

notification took effect." 15 NRC at 1570,1592 through 1593; Tr. 6542. It is ji the inmates' understanding of the proposed call-up system that one individual'

[ using commercial phone lines would be instructed to call ten individuals and' inform them that they must report to work imediately. These ten individuals

?would in turn call ten additional individuals until all such personnel would be i

i notified and mobilized. The inmates fail to understand the rationale of the:  ;

I t Board when it states that the prison has five dedicated telephone lines and a!

O direct connection with the Pennsylvania State Police. The inmates believe that:

Il p this misses the point of the call-up system which would be relying on people's; private lines and not the institutional telephone system. TheBoardhasalsol erred in its factual analysis of this issue in that tha State Correctional;l l Institute at Graterford only has one dedicated phone line with which it utilizes a

r 11 to contact the Pennsylvania State Police. Furthermore, the institution has four commercial telephone lines upon which it will attempt to initiate the call-up system. See Comonwealth Response to Proposed Revised Contentions of Graterford:

Inmates, page 4. Such a discrepancy in the Board's view of the facts and the facts as they actually are further points out the need for a hearing on thisl' issue in order to determine what exactly are the capabilities of the State Correctional Institute at Graterford with respect to this issue. The inmates!

also point out, as previously cited, the testimony of Rick Brown, which appears i in the transcript on pages 18,226, 18,149 and 18,133, at which time he discusses lI j a realistic likelihood that the commercial phone lines would be overburdened as l they were during the flood of 1972. The inmates further point out that Mr.

Brown is a communications technician with American Telephone and Telegraph and l is therfore qualified to speak to the capabilities of the phone system in the l Graterford facility.

The inmates also take issue with the Board's rejection of the inmates' contention that a back up system is necessary to insure prompt communication between all persons mobilized in the event of a nuclear emergency. The inmates specifically contest the Board's conclusion that SCIG is not a principal l response organization and therefore does not warrant the planning standards as; outlined in 10 CFR 50.47(b)6 and its NUREG-0654 implementing Criterian II F.1. .

iThe Board has held that these regulations do not apply to Graterford, thusj Graterford does not have to have an alternative to the commercial telephone; lines. The rationale utilized by the Board is that the State Correctional.

Inttitute at Graterford is not a principal response organization meriting such:1 I

consideration, but is in fact a support organization under the Commonwealth'sj Radiological Emergency Response Plan. TheinmatespointtotheNUREG-0654!

l Appendix 5 entitled Glossary, which defines what category various organizations, I

should be included therein. The definition for principal organizations reads as I

follows: " Federal, state, or local agencies or departments or executive offices!

and nuclear utilities (licensees) having major or lead roles in emergency, i

planning and preparedness." The inmates contend that the State Correctional, Institute at Graterford could be defined as a principal or suborganization and' that such distinctions are arbitrary. The NUREGS warn against making specific' l  !

' designations and suggests that the various parties involved in emergency plans and preparedness define the particular roles, functions and.

responsibilities. It is the inmates' contention that an institution such as!

l Graterford which is in essence a city behind walls should be given serious l consideration for an alternative comunications back up in light of the inherent {

difficulty in evacuating such an institution and the significant population at!

issue. For these reasons, the inmates respectfully request the Board to reconsider these two issues with respect to the mobilization of manpower l necessary to complete an effective response to a radiological emergency at the>

l Limerick Generating Station.

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B. Input of the Correctional Officers (AFSME) ,

Y The inmates contend that there is no reasonable assurance t correctional officers union is aware of the Bureau of Corrections concept of' operations and its relationship to the total ef fort. The Licensing Board has, I

ruled that there is no basis for such an assertion and they have denied the I inmates' request for participation in some form or other of the guards' enion.

The inmates draw the Board's attention in thesn exceptions which are taken to the initial decision, to the testimony of FEMA witnesses Asher and Cunard front l

, earlier testimony which is located at Tr. 20210, at which time the following' l

principle was expanded upon. Anyone who is obligated to take a risk, should be.

adequately informed. This is the gist of Mr. Asher and Mr. Cunard's testimony l i i

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on behalf of FEMA and goes to the heart of the inmates' contention that the; I

guards'unionisinstrumentalintheimplementationofaneffectiveresponseand! '

ll thus should be adequately informed of the risks inherent in such an operation.

I' j As the plan points out, the correctional officers will have a major role in a; l

They will be the primary source forl llprotectiveresponsetoanuclearemergency. l the evacuation of the inmates from the institution. They will be called upon to conduct a lock down of the entire institution, to assist in the loading of thel i

4, buses and vans, and will provide the necessary security during the evacuation. l;

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f,lTherefore, their role in the planning process is significant. Based upon the!

O aforementioned principle that those deeply involved in such an operation should I

also be given sufficient opportunity to provide input into the process and this:

can only be done upon being informed adequately of their role in the operation. ,

i The inmates also point out that in prior contentions litigated before this' l

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Licensing Board, two union representatives were allowed to testify. Mr. Tauss; h testified regarding the bus drivers' participation in the evacuation of the; I

I school children. Mr. Tauss is a union representative of the SEPTA organization.

Furthermore, Mr. Morabito, who represents PSEA, was also allowed to testify as to the effectiveness of his union in the emergency response planning. The inmates contend that they should not be held to a lesser standard than previous intervenors have been given. The Board's denial of input from the guards' union is clearly a higher standard of admissibility than was granted for Limerick; I

Ecology Action or Friends of the Earth contentions. While it is understandable' i

that the Board is trying to expedite this matter as soon as possible, the[

inmates point out that the current delays were no fault of their own and thus' I

should not be penalized by the use of a higher standard than similar' intervenors. In support of this assertion, the inmates refer to the decision of; i

the Atomic Safety and Licensing Appeal Board of May 1,1985, docketed ALAD-806,;

t which states on page 16 "...Any delay likely to result at this stage cannot be' laid at the feet of the Graterford inmats's." Thus, the inmates' contend that' the Board's rejection of input from the correctional officers' union af ter; allowing input on prior contentions regarding the roles of the unionized personnel, is inconsistent and in effect penalizing the inmates for something i that they could not avoid.  !

l C. Medical Services I

The inmates take exception to the Board's ruling that rejects their contention based upon adequacy of medical services. The exception that the; inmates raise deals with procedural matters in the handling of contentions under the guidelines of 10 CFR 50.47 and NUREG 0654. It is the inmates' contention that the applicant must carry the burden initially in proving that reasonable I

l i assurances exist that adequate medical services will be provided to those. t contaminated and/or injured individuals :n the event of a nuclear i.:ergency at Limerick Generating Station. See Consumers Power Company (Big Rock Point Plant) 16 NRC 1096 (1982). A reading of the Board's opinion dismissing this contention seems to indicate that it is the inmate's burden to prove the,I i

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'l inadequacy of the facilities in question. On page 7 of the Board's decision; admitting certain revised contentions of the Graterford inmates and denying others, they state, "We are left in the dark as to what capacity it is that the:

inmates have in mind". This is an example of the Board's putting the cart before the horse and shifting the burden upon the inmates to prove the inadequacy of the medical facilities as opposed to the correct standard of the applicant proving the adequacy of such.

The inmates also contend that any discussions regarding the merits of said' I claims are premature. The inmates cite &s a basis for this statement Alabama Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC l210,216 through 217 (1974);

Philadelphia Electric Company (Peach Bottom l Atomic Power Station, Units 2 and 3) ALAB-216, 8 AEC 13, at 20 (1974); and Houston Lighting and Power Company ( Alan's Creek Nuclear Generating Station, Unit 1) ALAB-590,11 NRC 542, at 547 through 549 (1980). Thus, the inmates contend that the Board has overstepped their authority and shifted the burden.

inappropriately upon the inmates instead of the applicant.

D. Simulated Evacuation Plan Exercise The inmates take exception to the Board's rejection that there is no reasonable assurance that the table top exercise of the evacuation plan l

} conducted on March 7,1985 was adequate in terms of 10 CFR 50.47(b)l4. As part of the rationale explaining their decision to deny this particular contention,j ,

the Board states that the inmates failed to " justify any requirement for; l inclusion of possible scenarios from NUREG-0654, Criterian N 3". The inmates!

i draw the Board's attention to the aforementioned criterian N and further directs'

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the Board's attention to subcategory E, which reads, "A narrative summary' describing the conduct of the exercises or drills to include such things as

! simulated casualties, offsite fire department assistance, rescue of personnel,i I

use of protective clothing, deployment of radiological monitoring teams, and; i

public information activities." Totherightofthisevaluationcriteriaisali graph which depicts the applicability and cross reference to plans. Under the!

I category of Licensee, state, and local, an X appears which indicates to the t

] inmates that this particular requirement of a narrative summary should be

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included in the conduct of drills and exercises as contemplated by 10 CFR; i

50.47(b)l4. Thus, the inmates contend that they have justified the requirement for inclusion of possible scenarios in the table top exercise. Thus,theyl I

believe the plan is deficient in this respect.

I The inmates further point out that the Board's rejection of this contention i

fails to take into account new guidelines promulgated by the Nuclear Regulatory; 6

Commission on Wednesday, May 8,1985, appearing in the Federal Register, Volume ~

50, Number 89. See also Union of Concerned Scientists vs. NRC, 735 F.2d 1437f (D.C. Circuit 1984). This case vacated a prior NRC 1982 amendment (47 FR 30232,!.

i July 13, 1982) to its emergency planning and preparation regulations which i

h stated that emergency preparedness exercises were part of the operational y

,1 inspection process and thus not required for any initial licensing hearing or ,

decision. The ruling in the aforementioned case held that " Congress did not; I

' grant the conmission discretion to remove so material an issue as the results of' l

offsite emergency preparedness for required Section 189(a) hearings." See:

Union of Concerned Scientists vs. NRC supra at 1451. Thus, the inmates

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. 1 contend that the Board has failed to apply this new more appropriate standard as' it stated that the inmates' contention lacked a regulatory basis. See Order.

i Admitting Certain Revised Contentions of the Graterford Inmates and Denying; l

Others, ASLBP No. 81-465-07 OL page 11. The inmates respectfully request that i

the Board reconsider their decision in light of the newly promulgated l r regulations. l i

i While the inmates do not dispute the fact that the drill was found to bel adequate by FEMA, pursuant to 50.47(b)l4, they do point out that such a finding

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by FEMA that plans are adequate and capable of being implemented is entitled to, a rebuttable presumption in NRC licensing proceedings. See 10 CFR 50.47(a)2 and generally FEMA /NRC Memorandum of Understanding, 45 FED. REG. Sec. 2713, Decemberi 16, 1984 and Southern California Edison Company et al(San Onofre Nuclear Generating Station, Unit 1 and 2) ALAB-690, 16 NRC 127 at 349 (1982).

i Therefore, the Board's assertion that "according to FEMA it is successful", see Order Admitting Certain Revised Contentions of the Graterford Inmates and Denying Others, page 11, is inaccurate. The inmates respectfully request the right to rebut the findings of FEMA especially in light of the new regulation l cited previously. Thus, the inmates contend that this issue should be nore fully litigated. l E. Panic Factor ,

i The inmates once again contend that the Board has put the proverbial I

cart before the horse with respect to the panic issue. The inmates in their I

proposed revised contentions documented several previous disturbances at the State Correctional Institute at Graterford that caused considerable concern) I monetary expense, anxidty, and manpower mobilization. These similar situations; should not be rejected out of hand by this Board. Theseinstanceswillshowthef l difficulty that the Department of Corrections faces when confronted with such '

i emergencies and will indicate the responses available to the institution in the' t

event of such an emergency. Therefore, the inmates contend that they have; i

provided sufficient evidence of the potential for panic necessary to create a:

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specific basis for this contention. i The inmates draw the Board's attention to their. statements on page 15 off I

1.their decision admitting certain contentions and denying others, in which they:

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state, "We assume (a) the guards will do their duty; and (b) that the inmates:

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! will be restrained from evacuating spontaneously." The inmates contend that!

such statements represent conclusions of law which can only be made after a full hearing on this hearing. The inmates, as mentioned in the previous section,.,

claim that the Licensing Board cannot now judge the merits of their claims.

Clearly, such statements as the guards will do tneir duty and the inmates willl be restrained from evacuating spontaneously, draw conclusions far in advance of!

I a proper evidentuary foundation being provided. Thus, the inmates contend that!i the rejection of their contention is premeture.

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r III. CONCLUSION For the aforementioned reasons, the Inmates take exception to the Board's:

ruling admitting certain contentions and denying others, and respectfully, request that the Board reconsider its prior decision in light of the coment's i

! herein. The inmates are' attempting to expedite this matter as quickly as l possible despite the fact that any delays in this process cannot be laid at I

their feet. In order to do so, the inmates request that the Board reconsider l l i

]their original decision based upon the coments herein so that all matters which i'

ll i raise significant issues can be addressed as expeditiously as possible.

Respectfully submi ed,

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%NGUS R.,/IOVE,%QU1RE l Attorn for Inmates, SCIG i

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION D gETEO gC t >

I Before the Atomic Safety and Licensing Board  !'

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'85 JUN 27 A10:3O

! In the Matter of  : GFFICE OF SECHtiAo si 00CKET!NG & SEi<vic! -

NCH PHILADELPHIA ELECTRIC COMPANY  :

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(Limerick Generating Station, f Units 1 and 2)  : NOS. 50-352 and 50-353  ;

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ll CERTIFICATE OF SERVICE l c , .

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i I, Angus R. Love, attorney for the Inmates at the State l hCorrectionalInstituteatGraterford, hereby certify that a true i

i' i and accurate copy of the EXCEPTIONS TO THE BOARD'S ORDER OF

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!. JUNE 12, 1985, was mailed to the following list by first class i h ,

!i mail, postage prepaid, on June 24, 1985.

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d Administrative Judge Helen F. Hoyt Sartha W. Bush, Esquire i 1 Atomic Safety & Licensing Board Municipal Services Building  ;

U.S. Nuclear Regulatory Comission 15th & JFK Blvd. l yl l

Washington,D.C.20555 Philadelphia, PA 19107 9

i; Administrative Judge Jerry Harbour Atomic Safety & Licensing l i; Atomic Safety'& Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Cmmission p! Washington,D.C.20555 Washington, D.C. 20555 .

Administrative Judge Richard F. Cole Robert J. Sugarman, Esquire Atomic Safety & Licensing Board Sugarman, Denworth & Hellegers U.S. Nuclear Regulatory Commission 16th F1. Center Plaza Washington, D.C. 20555 101 N. Broad Street Philadelphia, PA 19107 l,AnnP.Hodgdon, Esquire Counsel for NRC Staff Docket & Service Section Office of the Executive Legal Director U.S. Nuclear Regulatory Cmmission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 (3 copies)

WEashington, D.C. 20555

o Mr. Robert L. Anthony 'Iheodore G. Otto, III, Esq.

103 Vernon Lane, Box 186 Department of Corrections Moylan, PA 19065 office of Chief Counsel i P.O. Box 598 David Wersan, Esquire Camp Hill, PA 17011 l Asst. Consumer Advocate Office of Consumer Advocate Troy B. Conner, Jr., Esquire i 1425 Strawberry Square Conner & Wettehahn .

Harrisburg, PA 17120 1747 Penna. Ave, NW Suite 1050  !

Washington, D.C. 20006 Atomic Safety & Licensing Board Panel ,

U.S. Nuclear Regulatory Comission Jay M. Gutierrez, Esquire i Washington, D.C. 20555 U.S. Nuclear Regulatory Comission j Region 1 '

Frank Romano 631 Park Avenue '

!! 61 Forest Avenue King of Prussia, PA 19406 ll Ambler, PA 19002 ,

!l Phyllis Zitzer Zori G. Ferkin, Esquire Limerick Ecology Action

[ Governor's Energy Council P.O. Box 761

I P.O. Box 8010 762 Queen Street 1625 N. Front Street Pottstown, PA 19464 ,

Harrisburg, PA 17105 '

!! Charles W.Elliott, Esquire f Mr. Thomas Gerusky, Director Counsel for Limerick Ecology Action c Bureau of Radiation Protection 325 N.10th Street  !

Dept. of Environmental Resources Easton, PA 18042 l Fulton Bank Building, 5th F1. '

! Third and Locust Streets Eugene J. Bradley, Esquire  !

h Harrisburg, PA 17120 Counsel for Philadelphia Electric 2301 Market Street Spence W. Perry, Esquire Philadelphia, PA 19101 Associate General Counsel

, FEMA, Room 840 Edward G. Bauer, Jr. '

500 Cr Street, SW V.P. and General Counsel  :

Washington D.C. 20472 Philadelphia Electrip Company 2301 Market Street  !

James Wiggins Philaelphia, PA 19101 i g Senior Resident Inspector s U.S. Nuclear Regulatory Commission Steven P. Hershey, Esquire P.O. Box 47 Comunity Legal Services, Inc. '

Sanatoga, PA19464 5219 Chestnut Street Philadelphia, PA 19139 Timothy R.S. Campbell, Director Dept. of Emergency Services 14 East Biddle Street 0 i West Chester, PA 19380 l - l Director, 1.Lu M l ANGUS R.' UIRE Penna. Emergency Management Agency Montg LOVE,E@LegalAid y County Basement, Transportation & Safety Bldg. Couns fdr Inmates, SCIG Harrisburg, PA 17120 j