ML20128K099

Response to Applicant Renewed Motion for Exemption from 10CFR50.47(a) & (B) Requirements.Deference of Consideration of Renewed Motion Recommended Based on Listed Reasons. Certificate of Svc Encl

ML20128K099
Person / Time
Site:	Limerick
Issue date:	07/05/1985
From:	Hodgdon A, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	Atomic Safety and Licensing Board Panel
References
CON-#385-741 OL, NUDOCS 8507100478
Download: ML20128K099 (10)

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i July 5, 1985 -

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BOCKETED csuc BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

'85 JJL -9 All :37 In the Matter of )

) 0FFICE OF SECRt_its! :

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-3520L 00CKETpG e. SERvn 50-353 cRMCH

)

(Limerick Generating Station, )

Units 1 and 2) )

NRC STAFF RESPONSE TO APPLICANT'S RENEWED MOTION FOR AN EXEMPTION FROM THE REQUIREMENTS OF 10 C.F.R. 5 50.47(a) AND (b)

1. INTRODUCTION Gr. June 20, 1985, Philadelphia Electric Company filed a renewed motion pursuant to 10 C.F.R. 55 50.12(a) and 50.47(c)(1) for an exemption from the requirements of 10 C.F.R. 5 50.47(a) and (b) to permit operation of the Limerick Generating Station at power levels greater than Si, of rated power prior to the completion of the litigation of contentions regarding the adequacy of emergency planning and preparedness for the State Correctional Institution at Graterford (SCIG). For the reasons aiscussed below, the Staff submits that, while the Licensing Board could properly consider the present exemption request at this time, the better course would be for the Board to defer consideration of that request until testimony has been filed by the parties to this proceeding addressing Intervenor',s two pending emergency planning contentions. Upon sub-mission of*such testimony, the Licensing Board will have a more complete 8507100478 850705 PDR ADOCK 05000352 9 PM O

a factual record upon which to consider the exemption request than currently exists.

s II. BACKGROUND On February 7, 1985, Applicant filed a " Motion for Exemption From the Requirements of 10 C.F.R. 9 50.47(a) and (b) As They Relate To the Necessity of Atomic Safety and Licensing Board Consideration of Evacua-tion Provisions of the Emergency Plans for the State Correctional Insti-tution of Graterford." On May 9, 1985, the Licensing Board granted the motion but did not implement its Order, pending receipt of comments from the part;ies. On May 24, 1985, after reviewing the comments of the par-ties, it issued a " Board's Order Implementing Its Grant of Applicant's MotionforExemptionfromRequirementsof10C.F.R.550.47(a)and(b) for a Period of Time Contentions of Graterford Inmates Are Considered By the Board". Intervenor Graterford Inmates appealed the May 24th Order and the Appeal Board in ALAB-809 vacated the two orders of the Licensing Board.1/ In ALAB-809, the Appeal Board held that the Licensing Board had erred in failing to evaluate Applicant's exemption request against thestandardsof10C.F.R.650.12(a)aswellasthoseof950.47(c)(1).

The Appeal Board also held that the Licensing Board had acted improperly in granting the motion prior to determining whether there were any con-tentions proposed by the Graterford inmates that were admissible. The Appeal Board further indicated that now that the Licensing Board has

-1/

.(Limerick Generating Station, Units 1 PhiladelphiaElectricCompany(June and 2), ALAB-809, 21 NRC 17,1985).

. l l

ruled on the revised contentions and determined that two parts of the proposed contention are admissible, it can properly consider the Appli-cant's exemption request in the context of the two litigable issues.

III. DISCUSSION A. The Staff's bases for its opposition to the motion of February 7 The hRC staff opposed the Applicant's motion of February 7,1985 on ,

I two bases: (1) that the motion was premature in that no contentions of the Graterford Inmates had been admitted for litigation at the time the Applicant filed the motion U and (2) that the motion was premature in that there was no indication in the record that FEMA had either reviewed or evaluated the plan for the Graterford Prison.

The Staff's first objection is now no longer applicable as two con-tentions advanced by the Graterford Inmates have been admitted for litigation and the Licensing Board now has a specific basis against which to consider the criteria of 95 50.12(a) and 50.47(c)(1). E As regards the Staff's second objection, that the motion was premature because FEMA had not reviewed or evaluated the SCIG plan, the Staff noted in its " Additional Views", filed April 1,1985, that this objection was resolved by FEMA's observation and evaluation of the March 7, 1985 emergency 2/ As the Appeal Board stated in ALAB-809, the Graterford Inmates' contentions were not yet admitted at the time the Licensing Board granted the motion. The motion was granted in an order of May 24, 1985 and the contentions were admitted in an order of June 12, 1985.

3/ As indicated above, it is noted in ALAB-809 that the Licensing Board can now properly consider the Applicant's exemption request in the context of the two litigable issues. ALAB-809, slip op at 15-16.

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planning remedial exercise. The Staff also expressed in its " Additional Views" the opinion that the Licensing Board would be in a position to consider the Applicant's exemption request if and when the Board determined that the Graterford Inmates had proffered an admissible contention. This Board, by its Order of June 12, 1985 admitted two contentions proffered by the Intervenors, one relating to the adequacy of the training of bus and amublance drivers, and the other concerning evacuation time estimates.

B. 10C.F.R.650.47(c)(1)'sdisjunctivecriteria~forexem from the specific requirements of 10 C.F.R. 6 50.47(b) ptions In ALAB-809, the Appeal Board stated that it was proper for the Licensing Board to apply the criteria of 10 C.F.R. 9 50.47(c)(1) in order to determine whether the Applicant has met the standards for an exemption from the specific requirements of 10 C.F.R. 9 50.47(b)(1)-(16). ,Id. slip op. at 9. Section 50.47(c)(1) provides:

Failuretomeettheapplicable[emergencyplanning] standards set forth in paragraph (b) of this section may result in the Conmission declining to issue an operating license; however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have .been or will be taken promptly, or that there are other compelling reasons to permit plant operation.

Thus, the three disjunctive factors to be considered under this regulation are (1) the significance of the plan's deficiencies, (2) the adequacy and promptnessofinterimcompensatingactionsand(3)theexistenceofother compelling reasons for plant operation.

1. As noted above, the Licensing Board has admitted two parts of the bases bf the Inmates' contentions for litigation. The first part relates to the adequacy of the training for civilian bus and ambulance

drivers. In this regard the Staff notes that the Applicant has already agreed to provide the same training to civilian bus providers for Graterford as that given to the other bus providers in the EPZ. Appli-cant's Answer to Proposed Emergency Planning Contentions of the Graterford Prisoners, at 4, April 4,1985.

In addition, both the Commonwealth of Pennsylvania and the Applicant have independently agreed to provide any additional training found to be required by the Licensing Board. Applicant's Answer to Pro-posed Emergency Planning Contentions, April 4,1985; Response of the Commonwealth of Pennsylvania, Department of Corrections to Request for Information, Exhibits A-D, March 15, 1985. Staff notes that written assurances have been made that buses and ambulances will be provided to evacuate the Graterford inmates in the event of an emergency. Response of the Commonwealth of Pennsylvania, Department of Corrections, March 15, 1985. Therefore, in Staff's view, the alleged lack of training for ci-vilian bus and ambulance drivers does not appear to constitute a "significant" deficiency in the Graterford plan. In addition, it now appears that interim compensating actions have been or will be taken with respect to any alleged deficiency.

In view of the foregoing and given the fact that Applicant's exmption request is intended to apply only during the Licensing Board's consideration of the Inmates' admitted contentions, it appears to the Staff that there may well be a sufficient basis to conclude that some or all of the*triteria of 50.47(c)(1) have been met in this regard.

2. With respect to Intervenor's contention concerning the evacua-tion time estimate, the Graterford Inmates contend that the six to ten

hour evacuation time estimate given in the Commonwealth's plan for the prison is not valid. However, the Applicant maintains that, even assuming l arguendo that the evacuation time estimate will have to be adjusted as the result of the hearing on this contention, such a deficiency would not be significant in the overall context of the emergency plan. Applicant's Renewed Motion For An Exemption at 11-12.

I In commenting on the purpose of evacuation time estimates and their role in emergency planning, the Licensing Board noted:

The primary purpose of evacuation time estimates is to serve as a tool in the protective action decision-making process by providing a framework within which decision-makers can incor-porate input on evacuation characteristics and traffic flows

! dt the time of an actual emergency. As such, pursuant to fiUREG-0654, time estimates are intended to be representative and reasonable so that any protective action decision based

, on those estimates would reflect realistic conditions. An overly conservative estimate could result in an inappropriate decision. Klimm, Tr. 13,871, 13,908, 17,046. philadelphia Electric Company (Limerick Generating Station, Units 1 and 2)

LBP-85-14, 21 hRC at31-32,(1985).

In view of the foregoing, a reasonable and representative time estimate is required so that the emergency planning decision-makers can determine the proper course of action to pursue in the event of a radiological emergency at Limerick. In the context of the present case, the Staff has previously noted its belief that this issue does not appear to be significant. M For these reasons, many of which are also set forth in the Applicant's renewed motion, the Staff believes that a favorable finding may be reached under

'~

y NRC Staff's Additional Views on Applicant's Motion --- for Exemption From the Requirements of 10 C.F.R., 6 50.47(a) and (b),

April 1,1985.

50.47(c)(1) with regard to the concerns relating to the evacuation time estimates for the Graterford Prison.

C. The requirements of 10 C.F.R. 6 50.12(a) regarding exemptions from the requirements of 10 C.F.R. Part 50 With regard to Applicant's request for an exemption from the appli-cable emergency planning regulations under 10 CFR 5 50.12(a), the Staff similarly believes that the renewed motion for an exemption likewise may well provide a sufficient basis for concluding that the requirements of the Regulation - that the exemption is (i) authorized by law. (ii) will not endanger life, property or the common defense and security and (iii) is in the public interest - can be tret. Specifically, as discussed above, the Intervenor's concerns regarding the adequacy of training appear to be resolved or readily susceptible to prompt resolution, given the commitments of the Applicant in this regard. See p. 5. supra. Similarly, with respect to the adequacy of the evacuation time estimates, the emergency planning exercise conducted at the Graterford Prison on March 7,1985 and the sub-sequent favorable review of this exercise by the Federal Emergency Manage-ment Agency would appear to suggest that a basis can be articulated for the granting of an exemption under 6 50.12(a) as to this concern. And under the terms of the Appeal Board's decision in ALAB-809, this Board could properly consider the present renewed request at this time and upon the existing documentation.

However, as the Staff has previously indicated, a hearing will be held on the,Intervenor's two emergency planning concerns - training and evacuation' time estimates - on July 15, 1985, and testimony addressing these issues will be filed by the parties within three days. Thus, given

the fact that within a very limited period of time the factual basis upon which the Board can rely in reaching any decision on the requested exemp-tion will be substantially enhanced, the Staff strongly believes that the Board should defer consideration of the present request until the testimony of the parties has been filed and -- if necessary or helpful -- the spon-sors of the testimony have been examined.

IV. CONCLUSION For the reasons set forth above, the Staff suggests that this Board defer consideration of the Applicant's renewed motion for an exemption under both 9 50.47(c)(1) and 5 50.12(a) until after the testimony regarding Intervenor's two acmitted contentions has been filed.

Respectfully submitted,

~

h AkN Ann P. Hodgdon

, Counsel for NRC Sta f qwr .

e-jamin H. Vogler_ #

unsel for NRC Staff )

Dated at Bethesda, Maryland this 5th day of July, 1985 O

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DCUixE0 US N BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) M 4 All :37

)

PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 .

(Limerick Generating Station, 50-353 0Friciorsc"$'vh 00CHETM a s SRAncy ' -

Units 1 and 2)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPLICANT'S RENEWED MOTION FOR AN EXEMPTION FROM THE REQUIREMENTS OF 10 C.F.R. 5 50.47(a)

AND (b)' 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 Commission's internal mail system, this 5th day of July, 1985:

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

Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Commission 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. Nuc. lear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555* Washington, D.C. 20006 Dr. Jerry Harbour Mr. Marvin I. Lewis Administrative Judge 6504 Bradford Terrace Atomic Safety and Licensing Board Panel Philadelphia, PA 19149 U.S. Nuclear Regulatory Commission Washington, D.C. 20555* Juseph H. White III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003 Air and Water Pollution Patrol 61 Forest Avenue Ambler, PA" 19002 Kathryn S. Lewis, Esq.

1500 Municipal Services Bldg.

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

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

, Thomas Gerusky, Director Zori G. Ferkin Bureau of Radiation 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 Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Easement, Transportation 8 Safety 500 C Street, S.W.

i Building Washington, D.C. 20472 Harrisburg, PA 17120 Robert J. Sugarman, Esq.

Robert L. Anthony Sugarmin, Denworth & Hellegers Friends of the Earth of the 16th Floor Center Plaza Delaware Valley 101 North Broad Street 103 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, PA 19C65 James Wiggins Angus R. Love, Esq. Senior Resident Inspector

, Montgomery County Legal Aid U.S. Nuclear Regulatory Comission 107 East Main Street P.O. Box 47 Norristown, PA 19401 Sanatoga, PA 19464 Charles W. Elliott, Esq. Atomic Safety and Licensing Brose & Poswistilo Ecard Panel 325 H. 10 Street U.S. Nuclear Regulatory Commission Easton, PA 18042 Washington, D.C. 20555*

Atomic Safety and Licensing Appeal David Wersan Board Panel (5)

Consumer Advocate U.S. Nuclear Regulatory Comission Office of Attorney General ,

Washington, D.C. 20555*

1425 Strawberry Square Harrisburg, PA 17120 Docketing and Service Section Office of the Secretary Jay Gutierrez U.S. Nuclear Regulatory Comission Regional Counsel Washington, D.C. 20555*

USNRC, Region I 631 Park Avenue Gregory Minor King of Prussia, PA 19406 MHB Technical Associates 1723 Hamilton Avenue Steven P. IIershey, Esq. San Jose, CA 95125 Comunity Legal Services, Inc.

5219 Chestnut Street Timothy R. S. Campbell, Director Philadelphla,PA 19139 Department of Emergency Services l

• 14 East Biddle Street West Chester, PA 19380 W .

M Ann P. Hodgdon f Counsel for NRC Staff Ll

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