ML20128A564

Answers 850624 Exceptions Requesting Reconsideration of Intervenor Proposed Contentions Filed by Graterford Prisoners Re Board 850612 Order.Order Should Be Reaffirmed. Certificate of Svc Encl

ML20128A564
Person / Time
Site:	Limerick
Issue date:	06/28/1985
From:	Rader R CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-639 OL, NUDOCS 8507020718
Download: ML20128A564 (16)

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i 00LKETED i UNITED STATES OF AMERICA USMC F NUCLEAR REGULATORY COMMISSION I '85 JUL -1 A11:01 Before the Atomic Safety and Licensing Board 0FFICE OF $ELi<tTAs -

00CKFitNG & SERVif.l.

In the Matter of ) BRANCH ,

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Philadelphia Electric Company ) Docket Nos. 50-352 /

) 50-353 CL

( (Limerick Generating Station, ) l Units 1 and 2) )

APPLICANT'S ANSWER TO " EXCEPTIONS" TO THE LICENSING BOARD'S ORDER OF JUNE 12, 1985  !

FILED BY THE GRATERFORD PRISONERS  !

Preliminary Statement ,

In.an Order dated June 12, 1985, the presiding Atomic Safety and Licensing Board (" Licensing Board" or " Board")

i admitted two contentions proposed by the Graterford Prison- .

era and denied six others.1/ On June 24, 1985, the Graterford Prisoners ("intervenor") served " exceptions" to the June 12 Order, which in substance requested reconsideration of the remainder of intervenor's proposed l contentions.

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~1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) , " Order Admitting Certain ,

j Revised Contentions of the Graterford Inmates and l Denying Others" (June 12, 1985).

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E Contrary to intervenor's insinuation of prejudice on the part of the Licensing Board,- I the Board carefully considered each of the proposed contentions in light of the requirements of 10 C.F.R. S50.47 and applicable planning guidance in NUREG-0654. It properly found that certain contentions lacked the requisite specificity and bases required under 10 C.F.R. S2.714(b). The Board did not overreach into the merits of the denied contentions, but merely determined that they failed to set forth cognizable issues with sufficient specificity and proper bases.

As the Commission stated in Shoreham,

"[wlell-established principles of administrative regularity

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2/ Specifically, intervenor contends that "the Board has prejudged their revised contentions and not allowed the contentions which were denied to stand on their own merit." Exceptions to the Board's Order of June 12, 1985 at 2 (June 24, 1985). Similarly, intervenor also alleges that the Board "has not undertaken a de novo review of the inmates' contentions." M. at 1.

Apparently, intervenor believes that the Board should have disregarded its prior legal holdings on the same issues presented. To the contrary, the Board properly adhered to those rulings as the law of the case. This is entirely consistent with the romand requirements of ALAB-806, which merely required that an opportunity be granted to intervenor to reviso its contentions in light of the newly available, uncensored version of the Graterford plan. ALAB-806 did not require the Licensing Board to ignore its prior holdings applying the legal standards of specificity and bases under 10 C.F.R. S2. 714 (b) and emergency planning requirements under 10 C.F.R. 550.47 to the very same contentions just because they had been resubmitted.

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f require a movant to provide a strong factual showing in support of a motion for reconsideration . . . . "3_/ In this instance, intervenor has made no such strong showing, but has simply restated its arguments for admitting the proposed contentions denied by the Board. Accordingly, the Board should reaffirm the denial of those contentions for the reasons previously stated in its June 12 Order as discussed below.

Argument A. Manpower Mobilization. Intervenor's two issues relating to the adequacy of procedures for notifying off-duty security pers,onnel essentially allege, that a specialized back-up notification system is necessary because commercial telephone lines will be overburdened in an emergency and therefore unreliable. The only new point raised by intervenor is the decision in Zimmer, where the Licensing Board found that the overloading of commercial telephone circuits would result in their unavailability for official use to contact school officials and personnel.O The result in Zimmer, however, turned upon the necessity for planning officials to initiate protective

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3/ Long Island Lighting Company (Shoreham Nuclear Power Station, Unit 1), " Order" (June 8, 1984).

~4/ Cincinnati Gas & Electric Company (Wm. H. Zimmer Nuclear Power Station, Unit No. 1), LBP-82-48, 15 NRC 1549, 1570, 1592-93 (1982), a f f'd g mod. , ALAB-727, 17 NRC 760 (1983).

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l actions for school children within the 15-minute period within which the responsible government officials must be able to notify the general public of an emergency. The i Appeal Board therefore held that it is highly unlikely that all telephone notifications to school officials and i

personnel could be notified "during that brief (15 minutes]

j interval" if commercial telephone circuits were

overloaded.5_/ [

The findings in Zimmer as to school notifications provide no basis for litigating the notification of off-duty i

Graterford security personnel. The situation as to i Graterford guards is vastly different because -

4 l (1) Intervenor does not dispute that adequatt prison  !

security is on duty at all times. As intervenor l I

has itself noted, security personnel mbat be on f i

duty in sufficient numbers to respond to prisoner

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lockdowns, disturbances or other problems; [

(2) Evacuation of the Graterford inmates, if deemed the appropriate protective action, will not be initiated within the same time frame as for the '

i general public, such as the school children in 1

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i 5/ Zimmer, supra, ALAB-727, 17 NRC at 771. -

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Zimmer; rather, it will be several hours before any evacuation can be implemented;b (3) The notifications at issue in Zimmer pertained to the EPZ; here, by contrast, a substantial number of the telephone notifications would be made outside the EPZ (Jeffes, Tr. 20630, 20672);

(4) Even if commercial lines were unavailable, Graterford officials can contact State Police over a dedicated line (Jef fes , Tr. 20672), which can complete notification of off-duty personnel by any means necessary, including dispatch of a unit to

, the guard's home (Jeffos, Tr. 20627);

(5) Any off-duty personnel in the EPZ sould' be sufficiently alerted by the sirens and Emergency Broadcast System information to a situation 6/ Although intervonor has challonged the accuracy of the time estimate for evacuation, it has not questioned whether an evacuation can occur soonor, but rather, "whether the plan (i.e., ovacuation) can be accomplished in the estimated time frame (of 6 to 10 hour1.157407e-4 days <br />0.00278 hours <br />1.653439e-5 weeks <br />3.805e-6 months <br />s]." Proposed Revised Contentions of the Gratorford Inmaton with Regard to the Radiological Emergency Responso Plan at 13 (May 13, 1985). For the same reason, no proper basis is allogod for this proposed contention in the testimony of Mr. Brown, an Upper Providence Township Supervisor, who testiflod in the evidentiary hoaring on of fsito omorgoney planning as to the possibility of ovorburdened commercial tolophone linos in the EPZ. Soo Limerick, _suprn, -

LDP-85-14, 21 NRC (May 2, 1986) (slip op. at 271) .

Tho nood for prompt notification and mobilization of township Emorgency Operations Contor personnel cannot be equated with the nood for off-duty prison guards at j Graterford.

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requiring them to contact responsible authorities and/or report for duty if contact cannot be made.

Here again, a nearly instantaneous response is not required to implement the plan.

In any event, the,re is no requirement under the Com-mission's regulations or NRC/ FEMA planning guidance for other than commercial telephone communications as a means of notifying personnel such as off-duty prison guards, as this Board hes held.1/ As the Board also held, the requireirants of 10 C .F. R. 550. 47 (b) (6) and NUREG-0654, Criterion F are inapposite to intervenor's assertions because those pro-visions apply to , emergency response organizations' which ,

jnitiate response actions for the protection of others beyond the organization rather than support organizations which implement their own plans.8/ -

Moreover, even if applicable, NUREG-0654, Criterion F.1.e simply states that plans shall include " provision for alerting or activating emergency personnel in each response

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7 Limerick, supra, " Order Admitting Certain Revised Contentions of the Graterford Inmates and Denying Others" at 3 (June 12, 1985).

R/ Id. at 4. In that respect, the Graterford facility is no different than any other institution for which NUREG-0654 requires that plans include "lmleans for protecting those persons whose mobility may be impaired due to such factors as institutional or other confinement." NUREG-0654, Criterion J.10.d. Such organizations are clearly not " response" organizations within the meaning of NUREG-0654.

organization." A network of sequential or " cascade" I commercial telephone calls meets this standard. The Licensing Board in Diablo Canyon considered the adequacy of a similar notification procedure and held:

NUREG-0654 does not prohibit cascade or sequential warning systems for the notification of individual emergency workers. _

The County emerg.:ncy plan includ_es a cascade plan for telephone notification which will reach into every element of the response organization.

The plan generally specifies that i organizations upon receiving an noti-fication will in turn notify key person-nel using prioritized call lists.9/

B. Planning Input from the Prison Guards' Union. In i

addition to the reasons for denying this contention as stated by the Board,10,/ ' the contention should be denied as an unauthorized reformulation of the old version. It now appears that intervenor is attempting to redraft its t

allegations to assert a need for guard training. Thus, it ,

asserts that "(alnyone who is obligated to take a risk, s I

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Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-82-70, 16 NRC 756, 813 (1982), aff'd, ALA11-781, 20 NRC 819 (1984) (emphasis ,

added). Nor doel the definition of " principal organizations" in NUREG-0654, Appendix 5 lend any weight to intervenor's arguments. As intervenor itself notes, the NUREG-0654 planning guidance cautions

, against reliance upon such labels in determining '

functional requirements.

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10f Limerick, n up ra_ , " Order Admitting Certain Revised I Contentions of the Graterford Inmates and Dunying

others" at 5 (June 12,1985) . l

should be adequately informed."N/ To argue, as intervenor does, that this translates into a right that guards "should >

also be given sufficient opportunity to provide input into f the (planning] process"N/ is a non sequitur. Intervenor I has still failed to show any regulatory basis for this requirement inasmuch as the union as such has no planning or emergency response function, as the Board correctly held.

Admission of intervenor's proposed contention is not bolstered by the facti that two union representatives I testified in the offsite emergency planning hearing. The standard for admitting contentions with specificity and bases under 10 C.F.R. $2.714 is different from the standard j

, for ndmitt'ing relevant, material and reliable evidence under i 10 C.F.R. 52.743(c).N /

. t C. Med1 cal Services. Intervenor asserts that the Licensing Board implicitly used an improper standard in i

denying this contention. To the contrary, intervenor has [

confused the legal requirements for obtaining admission of ,

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-11/ Exceptions to the Board's order of June 12, 1985 at 6 (June 24,1985) (emphasis added).

12/ Id.

13 / As the Board is aware, intervenor's counsel has not  !

proposed to present the testimony of any prison guard i on either of the admitted contentions. See Transcript of Telephone Conference call (June 17, T Rb) (8-10).

• Nor has intervenor specified any guard testimony it would have prof fered on any other contention denied by the Board. ,

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O an intervenor's contentions under 10 C.F.R. 52.714 with the Applicant's burden of proof in prevailing upon admitted contentions in licensing proceedings under 10 C.F.R. S2.732.

Indeed, the concept of " burden of proof," which relates to prevailing on the evidence on its face, is immaterial to the admission of contentions.

In admitting or denying contentions, a licensing board decides matters of law, i.e., whether the contention raises a litigable issue with sufficient specificity and bases. It is, of course, improper for a licensing board to consider the merits of the contention by weighing evidence, as intervenor acknowledges.

In this instance, the Doard did not state or imply "that it is the inmate's [ sic] burden to prove the inadequacy of the (medical] facilities in question."M/

Rather, the Doard simply found that intervonor's bare allegation of a lack of sufficient " capacity" was too vague to provide the requisite specificity and bases for admission of the proposed contention.EI Particularly in view of the detailed record as to the medical resources and services which would be available in the event of a radiological

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14/ Exceptions to the Doard's Order of June 12, 1985 at 7-8 (June 24, 1985).

~15/ Intervonor has raised no issue as to Applicant's complianco with the Commission's Statement of Policy on Emergency Planning Standard 10 C.F.R. 50. 4 7 (b) (12) , 50 Fed. Reg. 20892 (May 21, 1985).

emergency at Limerick,EI the Board rightly expected a fair degree of specificity in the allegations of any deficiency.

As the Board correctly held, this was not forthcoming in the proposed contention.

D. Simulated Evacuation Plan Exercise. Citing NUREG-0654, Criterion N.3.e, intervenor alleges that it has

" justified the requirement for inclusion of possible scenarios in the table top exercise" at Graterford on March 7, 1985.EI As described in the FEMA evaluation, the exercise indisputably depicted a scenario of an accident at l

1 Limerick which involved an appropriate scenario, i.e.,

, notification that an alert had been declared at Limerick, regarding 'an incident requiring offsite emerge'ncy responses.EI Intervenor fails to specify how the depicted scenario was deficient or, in terms of the precise planning guidance of Criterion N.3.e, which aspects of possible scenarios relevant to Graterford planning were allegedly 4

16/ See generally Applicant's Answer to Proposed Revised Contentions of the Graterford Prisoners at 10-12 (May 22, 1985).

t 17/ Exceptions to the Board's Order of June 12, 1985 at 9

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(June 24, 1985).

~18/ See Memorandum from Richard W. Krimm, Assistant .

Associate Director, Office of Natural and Technological Hazards Programs, FEMA to Edward L. Jordan, Director, Division of Emergency Preparedness and Engineering Response, Office of Inspection and Enforcement, NRC (March 27, 1985) (attaching FEMA evaluation).

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i missing.19/ In any event, an exercise of offsite

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capabilities need ncit ', consider every possible onsite

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- scenario, but must only "simulats an emergency that results 4 . t,, .

En loffsite radiolo)/jc'al releases which would require resp dse by offsite aut orities."El

, The Board's denial of this proposed contention did not, 3

'a s intervenor asserts, violate the holding in Union of a>, i Concerned Scientists.v. NRC, 735 F.2d 1437 (D.C. Cir. 1984).

Th t decision did nc affect the Commission's standards

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under 10 C.F.R. S2.714hfor admitting contentions, but simply

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held that parties must be. granted an opport' unity to submit Ls a contentiores}f relating to the conductsof emergen.cy exercises

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prior to licensing.21/ -,

Such an opportunity has in fact been afforded to this intervenor. Likewise, the " rebuttable

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rule regarding the consideration of FEMA

<s' findings in NRC licensing proceedings under 10 C.F.R.

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M/' It should be Freadily apparent that most of the items under Criterion N.3.e apply principally, if not exclusively, to an onsite emergency exercise.

Moreover, intervenor ' cannot point to anything in the

\ TEMA evaluation gitself,or- any related NRC/ FEMA document

!which criticipes the exercise scenario.

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20/ ITUREG-0654, Criterion N.1.a. As stated in the regulations, exercisehiare required "to evaluate major portions of emergency response capabilities." 10 C.F.R. 550'.47 (b) (14) . See , also 10 C.F.R. Part 50, Appendix E . IY'. f .

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,21/ See Emergency Planning and Preparedness, 50 Fed. Reg. 19323 (May 8, 1985).

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S50.47 (a) (2) is inapplicable to the standards for admitting contentions. b E. Panic Factor. Applicant supports the Board's reasoning in previously denying this proposed contention.

Additionally, it notes that the possibility of " panic" at Graterford is necessarily a non-litigable issue because it involves highly speculative and problematical actions by the inmates. As a regulatory agency, neither the NRC nor its adjudicatory boards are institutionally equipped to resolve any hypothetical concern regarding the possibility of

" panic" at Graterford, which intervenor theorizes might lead to some disturbance. As a practical . matter, ,there is noth'ing of value the NRC can add by second-guessing prison officials as to what security measures should be taken in an emergency.

Moreover, intervenor has utterly failed to relate the alleged " panic" factor to any planning concept or requirement under 10 C.F.R. S50.47 or NUREG-0654. Even assuming the very improbable situation that the inmates successfully prevent authorities from implementing the

-22/ In stating that FEMA found the Graterford exercise to be successful, the Board was simply noting that intervenor had failed to specify any deficiency in the j

exercise to support its proposed contention. Limerick, supra, " Order Admitting Certain Revised Contentions of the Graterford Inmates and Denying Others" at 11 (June I

12, 1985). Thus, it is still unclear what, if any, findings of FEMA intervenor wishes to " rebut."

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. appropriate protective action in an emergency by their disruptive actions, there is very little the NRC or any other agency can do about it. Accordingly, the Board correctly found that no litigable issue has been presented.

Conclusion For the reasons discussed above, Applicant submits that the Licensing Board should reaffirm its Order insofar as it denied the proposed contentions for which intervenor has sought reconsideration.

Respectfully submitted, CONNER & WETTERHAHN, P.C.

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Troy B. Conner, Jr.

Robert M. Rader Counsel for Applicant June 28, 1985 i

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00LKETED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION

'85 J1 -1 M1 :01 In the Matter of )

) 0FFICe ne c:co -

Philadelphia Electric Company ) DocketNpxx[Gd5:2[p$-

) 96ASSG (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Answer to

' Exceptions' to the Licensing Board's Order of June 12, 1985 filed by the Graterford Prisoners" dated June 28, 1985 in the captioned matter have been served upon the following by hand delivery.or by deposit in the United States mail this 28th day of June, 1985:

Helen F. Hoyt, Esq. Atomic Safety and Licensing Chai~rperson 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

• Hand Delivery

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 John L. Patten, Director Pennsylvania Emergency Mr. Frank R. Romano Management Agency 61 Forest Avenue Room B-151

Ambler, Pennsylvania 19002 Transportation and Safety Building Mr. Robert L. Anthony Harrisburg, PA 17120 Friends of the Earth in 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.

'harles W. Elliott,'Esq.-

C JPhiladelphia, PA' 19'107 325 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 j Commission 631 Park Avenue King of Prussia, PA 19406

James Wiggins Senior Resident Inspector U.S. Nuclear Regulatory Commission P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell, Esq.

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 Theodore G. Otto, Esq.

Department of Corrections Office of Chief Cou'nsel .

P.O. Box 598 Lisburn Road Camp Hill, PA 17011 N*

Robert M. Rader '

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