ML20129H832
| ML20129H832 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 12/13/1984 |
| From: | Ferkin Z PENNSYLVANIA, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20129H806 | List:
|
| References | |
| FOIA-85-304 NUDOCS 8507200474 | |
| Download: ML20129H832 (4) | |
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O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Defore the Atomic Safety and Licensing Board In the Matter of Philadelphia Electric Company
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) Docke t Hos. 50-352 (Limerick Generating Station, 1
50-353 Units 1 and 2) J Request for Nondisclosure of Confidential Information to counselBy letter fordated the today, the Communucalth iu providing intervonor-Graterford inmates an Radiological Emergency Responsu Plan preparedunclassified for , response by the State Correctional Institution of Graterfecd to incidents at the Limerick Generating Station. * ~
Pursuant to Section 2.790 of the,Cummisslun's regulations it is hereby requested that the following information be withheld from public disclosure: Attachment
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B (support facilities), Attachmon (training, preparedness measures, t C, andAtexercises),
tachment E Attachment at Graterford),FAttachment (return to G the(Radiological State Correctional responseInstitution procedures), Attachment li, Attachment I Attachment J, and Attachment K as well as references regar, ding relocation sites, number of inmates and their classification level.
It is the position the information sought of the Bureau of Correction that security breach if released to betowithheld could individuals and result in a The attached affidavitorganizations other than on a strict "need to know" basis.
from the Bureau explains the basis for concern particular. with rgard to the Graterford facility in Pennsylvania Emergency Management Agency (PEMA), which in turn mal:Ing this plan available for review by counsci for the Graturford inmatus.
Graterford In viewfacility, of the maximum security nature of the the emergency responso ~ plan is highly sensitive and should be accorded protection from disclosure .
along Section Under the same' 2.790lines as an applicant's site security plan, security plans are "(d) of the Commission's regulations, deemed to be (protected) commercial or financial information." Like an applicant's security system, access in and out of the Graterford facility is
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8507200474 850517 PDR FOIA EXHIBIT "E" ABEL85-304 PDR
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controlled, mechanisms are i n place to detect unauthorized access and/or egres s f rom tiie facility, and the facility maintains 10 C.F.R. 73.45, a security organization, including guards. See 73,46.
inmates Thehereformprovides of the plan providad to counsel for the relevant information regarding emergency response by the Graterford facility and is in accordance with the guidelines for release of a security plan outlined in Pacific Gas'and Electric,C_omp_any.(Diablo Canyon Nuclear Power Pfant, Units 1 and 2 1398 (1977). By the same token, release o. ALAB-410, 5 ilRC f the information contrary to the public interest in protection fromdirectly in the Graterford plan described above would be a
security breach of the Graterford facility.
Respectfully subaitted, V E ,, ,,
(richbeA.
.o r i G. Ferhin Assistant Counsel-Governor's Energy..Couqcil Dated: December 13, 190 tl
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of Philadelphia Electric Company Docket Nos. 50-352-50-353 (Limerick Generating Station, Units 1 and 2)
Request for Nondisclosure of Confidential Information By letter dated today, the Commonwealth is providing to counsel for the intervenor-Graterford inmates an unclassified copy of the Pennsylvania Bureau of Correction, Radiological Emergency Response Plan prepared for response by the State Correctional Institution of Graterford to incidents at the Limerick Generating Station.
Pursuant to Section 2.790 of the Commission's
' regulations it is hereby requested that the following information be withheld from public disclosure: Attachment 8 (support facilities), Attachment C, Attachment E
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(tratnT5g, preparedness measures, and eTercises), ~-
Attachme~nt t ( r e fu r n To-~t h e'$~t a t e C o r r e c t i o n a l Institution
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a t G r a t e r f o r d ) ,'A tTa~c1m e n t G ( R a~d i o l o g i c a l r e s p o nTe ~
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procedur~es), A t t a ch m diit H ~~~A ft a c h me'n t ~ !~~~Att~achment J, and
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A t t a c hmmtt ~lCFwe Wa s [re f e re_n ce's 'r e g a r'd i n g r_e l o c a t i o~n' '
fitis, number of inmates _and_their classification levei.
It is the position of the Bureau of Correction that the information sought to be withheld could result in a security breach if released to individuals and organizations other than on a strict "need to know" basis.
The attached affidavit from the Bureau explains the basis for concern with rgard to the Graterford facility in particular. The Bureau has made this position known to the Pennsylvania Emergency Management Agency (PEMA), which is in turn making this plan available for review by counsel for,the Graterford inmates.
In view of the maximum security nature of the -
Graterford facility, the emergency response plan is highly ;
sensitive and should be accorded protection from disclosure along~the same lines as an applicant's site security plan. '
Under Section 2.790(d) of the Commission's regulations, security plans are " deemed to be [ protected] commercial or financial information." Like an applicant's security system, access in and out of the Graterford facility is O
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3 controlled, mechanisms are in place to detect unauthorized access and/or. egress from the facility, and the facility '
maintains a security organization, including guards. See 10 C.F.R. 73.45, 73.46.
The form of the plan provided to counsel for the -
inmates here provides relevant information regarding emergency response by the Graterford facility and is in accordance with the guidelines for release of a security plan outlined in Pacific Gas and Electric Company.(Diablo
- Canyon Nuclear Power Plant, Units 1 and 2, ALAB-410, 5 NRC 1398 (1977). By the same token, release of the information in the Graterford plan described above would be directly contrary to the public interest in protection from a security breach of the Graterford facility.
Respectfully submitted, we ori G. Ferkin Assistant Counsel Governor's Energy Council Dated: December 13, 1984 ~ '
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,b._ _. , MONTGOMERY COUNTY LEGAL A!D SERVICE 4
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1 MAIN OFFICE E. A STREET POTTSTOWN OmCE NORR!STOWN. EN YL NIA 19401 -
POTTSTO N. PENN V NIA 19464 (215)326 8280 PLEASE REPLY TO: Norristown -
February 8, 1985 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 RE: x In the Matter of PHILADELPHIA ELECTRIC COMPANY Limerick Generating Stations Units 1 and 2/ Nos. 50=352 and 50-353
Dear Sir / Madam:
'N Enclosed please find our Notice of Appeal in reference to the above-captioned mattar. , _ , ,
Sincerely, Angus R. Love, . Esquire Encl.
cc: With Encl. -
Helen F. Hoyt Dr., Richard F. Cole -
Dr. Jerry Harbour Troy B. Conner, Jr., Esq.
Director, Penna. Emerg. . _
Management Agency harles W. Elliott, Esq.
/AtomicSafety& Licensing Appeal Board Panel Atomic Safety & Licensing Board Panel Rest of Service List without encl.
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- eocketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Cc=n.
Washington, D.C. 20555
. Gregory Minor
- K4B Technical Associates ~
1723 H=~4lton Avenue San Jose', CA 95126 Timothy R.S. Ca=pbell, Director Depa rtment of. Emergency Services 14 East Biddle Street West Chester, PA 19380
(** Received original) t A%vs R W GUS K. LOVE, ESQUIRE Mont ery County Legal Aid ,
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 3efore'The Atomic Safety and Licensing Acpeal Panel In the Matter of : -
PHILADELPHIA ELECTRIC COMPANY :
Limerick Generating Stations :
Units 1 and 2 NOS. 50-352 and 50-353 x
NOTICE OF APPEAL I. INTRODUCTION On Septe=ber 18, 1981, the inmates at the State Correc-tional Institute at Graterford filed a Petition to Intervene in the above-captioned matter. On November 16, 1983, the Nuclear Regulatory Co==ission staff issued a response to said petition indicating that the in=ates do have standing to intervene in this matter.
On April 20, 1984, in a special. pre-hearing order the Licensing Board granted the inmates twenty days to submit their contentions upon receipt of an evacuation plan for the State Correctional Institute at Graterford. Said inmates were concerned about guaranteeing their safety in the event of an incident at the Limerick facility. On December 14, 1984, counsel for inmates received a sanitized version of the Pennsylvania Bureau of Cor-rection Radiological Emergency Response Plan, a copy of which is ,
attached as Exhibit "A". After review of said plan the inmates b '
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filed a Motion for order requiring full disclosure of the' plan under a. protective order of the Court. They further requested that the twenty-day tine period for filing their contentions not begin until full disclosure of the plan is permitted under the appropriate circumstances.
On January 29, 1985, a hearing was held on the inmates request for disclosure of the unsanitized version before the Licensing Board, Judge Hoyt presiding. At that time, Chairman Hoyt denied the inmates request to review said plan under a protective order or in any other way, and ordered the inmates to subnit their contentions based upon the sanitized version of the plan within twenty days. They further denied inmates counsel's request for a stay of the twenty days pending an appeal of that decision to the Atomic Safety and Licensing Appeal Panel.
II. The Anneal Board Should Allow this Interlocutory Acc~eal
, because the Licensing Board's Ruling was Based on an Erroneous Legal Standard, 10 CFR 2.790(a) and Said Ruling Affects the Basic Structure of the Proceedines in a Pervasive or Unusual Manner and Threatens the Petitioner with I==ediate and Serious Irrecarable I=cact, which as a Practical Matter, could not be Alleviated by a Later Acoeal.
In order to allow an interlocutory appeal, our courts have indicated that a ruling must not only be legally erroneous but it must also affect the basis structure of the proceedings in l
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a pervasive or unusual manner, or threaten the petitioner with ic=ediate or irreparable impact which, as a practical matter, could not be alleviated by a later appeal. Public Service Company of Indiana (Marble Hill Nuclear Generating Station Units 1 and 2),
ALA3-405,5 NRC 1190, 1192 (1977). Thus, in order for the Licens-ing Appeal Board to accept an appeal on a matter that is inter-locutory and not final, these two conditions must be met. In the above-captioned catter, the inmates contend that both criteria are satisfied. s With regard to the contention that the panel utilized a legally erroneous standard, the inmates draw the attention of the Appeals Board to 10 CFR 32.790(a), which states that a balancing test should be utilized when determining the rights of an inter-venor to review sensitive information under a protective order of the Court. Said balancing test should weigh the interests of the
" person... urging non-disclosure and the public interest in dis-closure". 10 CFR $2.790(a) and Pacific Gas and Electric Comoany (Diablo Canycn Nuclear Power Plant Units 1 and 2) 5 NRC 1398 (1977).
This case involved the release of the site security plans to interested intervenors. Said Court ruled that the applicants request for nondisclosure was outweighed by the public interest in disclosure and allowed for the intervenors to review portions of the plan under the protective ceder of the court.
While the case before us deals with the evacuation plan of a
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1 prison and not the -site security plan of a nuclear facility, it '
is a case of first impression and the inmates contend that by analogy the standards utilized for site security plan are adequate in order to formulate a legal argument for their request for full disclosure of the Bureau of Corrections evacuation plan. Chair-man Hoyt, in making her ruling denying the in=ates access to the unsanitized evacuation plan cited erroneously the standard men-tiened in the Pacific Gas and Electric case. Chairman Hoyt balanced the inmates request for further disclosure against the
,public's fear that said disclosure would harm the safety of the public at large.
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Clearly, this represents an erroneous reading of 10 CFR 2.790(a) and the Pacific Gas and Electric case. The correct balancing requires the interests of the individual urging nondisclosure, i.e. P.E.M.A.
or the applicant vs. the public's interest in disclosure, i.e. the Graterford inmates'as intervenors.
Thus, the Licensing Board has misconstrued the balancing test und failed to apply the appropriate legal standard in its decision making process that resulted in the inmates being denied the op-portunity to inspect the evacuation plan under a protective. order or any other way.
The second factor that =ust be proven in order to allow an interlocutory appeal involves the intervanors position given the ruling of the Licensing Board. The intervenors contend the denial of access to the unsanitized version of the evacuation
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plan causes an it=ediate and serious irreparable impact upon their ability to form valid contentions in this licensing process.
Initially, the inmates contend that the unsanitized version of the plan is so overly censored as it is virtually uncomprehensible ,
and thus it is virtually i=possible for them to form a reasonable contention based upon the information given. See Exhibit "N,'
sanitized version of the plan attached.
Inmates contend that their safety and well being may not be protected under the cuzren evacuation plan.
A review of the sanicized version of the plan reveals little details about the workings of the plan itself.
The deletions from said plan are so pervasive that it is unreasonable to force the intervenors to file their contention based upon such limited infor=ation.
In=ates further centend that their retention of John Case, a warden of the Bucks County Prison for fifteen years and a member of the United States Marine Corps for twenty-one years, during which he received a top secret Q classification, should have been sufficient to alleviate the fears of the appli-cant and P.E.M.A. as to the confidentiality of such a review under the protective order of the court.
1 Deputy Commissioner Erskine I
DeRamus testified that he has known Mr. Case for over fifteen years and that he considers him to be a trustworthy individual.
He further testified that he would have no problem with Mr. Case reviewing said plan under a protective order of the court. Thus, -
the persons wishing to keep said p'lan classified presented em =-----.-em .sm.,, , - . .
witnesses on their behalf that supported the inmates' cantention their review by their expert under a protective order would be confidential with no fear of disclosure to said inmates.
Furthermore, Judge Hoyt commenting on the sanitized version admitted that certain portio.ns were unreadable. As evi-dence of the overly broad nature .of the censorship of this plan the intervenor in=ates referred to page E-1-7 which states under Section G, "The SCIG infirmary has a capacity for (blank) patients."
In support of the inmates' contention that the censor-ship was so broad that it included information already within the public domain, they offer Exhibit "3" attached, a copy of the December 1984 and January 1985 edition of Graterfriends, a publi-cation of cormunity and in= ate volunteers which is circulated throughout the Graterford community within and outside the walls.
Page 10 has an article entitled "SCIG Infirmary Pleases Admini-s rater," authored by Jorn Gauher, a community volunteer at SCIG.
The third to last paragraph begins, "The extended care or recovery unit has a 25-bed capacity broken into four wards." This illustrates the overly broad concept of censorship untilized by the Bureau of Corrections in sanitizing the evacuation plan. It further illustrates the inco=prehensible nature of the saniticed product.
It has been the inmates' concention throughout that full disclosure of the plan is necessary in order for them to file 6- I
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valid contentions. The inmates, upon request of Chairman Hoyt, approached their expert, John Case, and asked of him what addi-tional infor=ation in the plan he would require in order to make a valid judg=ent regarding the viability of such. Mr. Case re-sponded and the inmates responded accordingly in their supple-mental motion, that the whole plan was necessary in order to determine the viability of such. Inmates counsel, in response to the same question from Judge Hoyt, listed several specific.s concerns, including the number of buses necessary to conduct such an evacuation, their availability, the routes to be taken to and from the institution, the security equipment necessary, such as handcuffs and shackles, the weapons necessary to provide safe passage, and the destination to which the inmates would be relocated. Therefore, it is the innates request that this honorable Board allow the interlocutory appeal due to the fact that the Licensing Board decision was based upon erroneous legal
. standard and that the unavailability of the unsanitized plan - ,
even under a protective court order with a recognized and trustworthy expert in the field of corrections, substantially alters their ability to form an adequate contention regarding the evacuation plan of the State Correctional Institute at Graterford. Therefore, they request that this Board overturn 6
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of the court by the inmates expert, John Case.
Respectfully submi*ted, JM M .
MGUS R. 0VE ,(, ESQUIRE Montgo=a County Legal Aid
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'8530198 12 79 89
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t UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION m
Before the Atomic Safety and Licensing Board'
. _ _ - -M In the Matter of )
)
Philadelphia Electric Company ) Docket Nos. 50-352 (Limerick Generating Station,
') 50-353
)
Units 1 and 2) )
APPLICANT'S RESPONSE TO GRATERFORD INMATES MOTION FOR AN ORDER REQUIRING FULL DISCLOSURE BY PEMA OF THE EVACUATION PLAN FOR THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD On December 20, 1984, counsel for the inmates of the State Correctional Institute at Graterford ("Graterford")
who are intervenors in the captioned proceeding ~ moved the Atomic Safety and Licensing Board (" Licensing Board") to require full disclosure by the Pennsylvania Emergency -
Management Agency ("PEMA") of the evacuation plan for Graterford.1 As justification, the motion states that the Licensing Board's April 20, 1984 Special Prehearing Confer-ence Order had granted the inmates 20 days to submit con-tentions upon receipt of the evacuation plan for the insti-tution. It further alleged that on December 14, 1984, 1/ Motion for Order Requiring Full Disclosure by Pennsylvania Emergency Management Agency of the Evacuation Plan for State Correctional Institute at Graterford and Memorandum in Support of Motion.
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counsel for the inmates received an unclassified copy of the Pennsylvania Bureau of Corrections' Radiological Emergendy i
Response Plan.2,/ Counsel stated that "(u]pon review of said document, it became obvious that major portions of said plan have been removed. The remaining portions made little or no sense, giving counsel an ine.dequath basis from which to form contentions pursuant to the Board's Order of April 20, 1984."1I The motion asks for the issuance of a protective order allowing counsel and any recognized experts to review the entire plan under appropriate, but undefined conditions.
The motion also requests that the 20' day time period allowed for the fil!ng of the contentions not begin until such disclosure has been permitted.1 l Applicant opposes the requested relief. It is beyond f
question that the Graterford Emergency Response Plan falls within ~the requirements of 10 C.F.R. 52.740(c) as a document ,
l which should be the subject of a protective order. That position is supported by the affidavits which accompanied the submission of the Graterford plan and is apparently not contested by counsel for the inmates. The question 2_/ A copy of the plan as received by counsel for the Graterford inmates was attached to the pleading. Other parties had only received the transmittal letter and affidavits.
3/ Graterford Prisoners' Motion at 2. -
4/ Id. at 3.
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3-i remaining is whether an unexpurgated copy of the plan should be released and, if so, what conditions should be imposed on release to counsel for interested parties and their experts.
In Duke Power Comeanv (Catawba Nuclear Station, Units 1 and 2), LBP-82-16, 15 NRC 566, 590 (1982), the Atomic Safety and Licensing Board rejected an applicant's argument that an intervenor must frame a sufficiently specific contention on information available to it in the public record despite the fact that no information about the plan is available.b The Board then permitted the intervenor access to the security plan in order to permit it to write the contention:
Because an intervenor cannot reasonably be required to advance specific contentions about a security plan he has never seen, and because Palmetto has expressed a formal interest in the Catawba plan, we believe we could at this juncture order the Applicants to grant Palmetto access to that plan. We could now find that disclosure of the plans is "necessary to a proper decision in the proceeding." 10 CFR 2. 7'4 4 (e ) , as recently amended, 46 Fed. Reg. 51718, 51723. - ,
However, the Board conditioned its disclosure order on the intervenor having obtained the services of a qualified security plan expert.
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S/ This case discusses the release of the security plan
.'o r the facility. Applicant submits that because of the parallels regarding the consequences of the -
information contained therein such a plan and the plan l for Graterford prison should be treated similarly. I e
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In a subsequent order,6_/ the Board agreed with the arguments of the Staff and applicants that both expert assistance and a protective order are prerequisites to access to a security plan. The intervenor had not obtained a security expert. It therefore denied access to the plan to intervenor.
Thus, Applicant submits that before the question is reached as to whether access should be granted to attorney for Graterford inmates, an inquiry must be made as to whether a qualified expert has been retained by counsel.
The Board must specifically approve this expert's creden-tials to testify with regard to the particular problems of evacuation of prisoners from Graterford. The Board should therefore order that within 5 days counsel for the Graterford inmates submit the name and professional quali-fications of any proposed expert such that the Board can, ,
make a determination as to whether the individual is 6/ Catawba, supra, Memorandum and Order (Overruling Objections Following Prehearing Conference, Denying Requests for Referral to the Appeal Board, and -
Addressing Certain Related Questions) (July 8, 1982)
(slip op, at 14).
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qualified.1! 'At that point, it may determine whether 10 C.F.R. 52.744 requires access to the security plan.8/
Respectfully submitted, CONNER & WETTERHAHN, P.C.
I Troy a / . Cew s nner, Jr.
Counsel for the Applicant December 28, 1984 e
7/ Such a short time- period is not unreasonable.
Presumably, an expert has been retained to assist in writing the contentions. .The requirement to prepare contentions regarding the Graterford plan has been known for a number of months.
8_/ If access is granted, a protective order similar to '
that in NRC proceedings involving security _ matters would be -warranted. See Pacific Gas and ' Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and
- 2) , ALAB-600, 12 NRC 3, 14-17 (1980). In 'accordance with Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2) , ALAB-410, 5.NRC 1398, 1404 (1977), access should be given only to those -
portions-of the plan which are relevant to evacuation of the inmates. .
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
Philadelphia Electric Company ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Applicant's Response to Graterford Inmates Motion for an Order Requiring Full Disclosure by PEMA of the Evacuation Plan for the State Correctional Institute at Graterford," dated December 28, 1984 in the captioned matter have been served upon the following by deposit in the United States mail this 28th day of December 1984:
Helen F. Hoyt, Esq. Atomic Safety and Licensing Chairperson 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 l
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s 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 Director, Pennsylvania Emergency Management Mr. Frank R. Romano Agency ,
61 Forest Avenue Basement, Transportation Ambler, Pennsylvania 19002 and Safety Building Harrisburg, PA' 17120 Mr. Robert L. Anthony Friends of the Earth in Martha W. Bush, Esq.
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.
Charles W. Elliott, Esq. Philadelphia, PA 19107 325 N. 10th Street Easton, PA 18064 Spence W. Perry,-Esq.
Miss Phyllis Zitzer Associate General Counsel 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 Commission 631 Park Avenue King of Prussia, PA 19406 YO e
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James Wiggins Senior Resident Inspector l U.S. Nuclear Regulatorv l Commission l P.O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell 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 Mark J. Wetterhahn i
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UNTTY8 STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
$853059' BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the' Matter of PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
RESPONSE OF THE COMMONWEALTH OF PENNSYLVANIA TO GRATERFORD INMATES' DECEMBER 20, 1984 MOTION FOR FULL DISCLOSURE OF GRATERFORD RERP AND REQUEST FOR ADDITIONAL TIME TO FILE MEMORANDUM IN SUPPORT OF SAID RESPONSE On December 13, 1984, the Commonwealth made available to counsel for the intervenor-inmates at the State -
Correctional Inst'itution at Graterford an unclassified copy of the Pennsylvania Bureau of Correction, Radiological Emergency Response Plan prepared for response by the Graterford institution to incidents at the Limerick Generating Station. The Commonwealth requested that certain portions of the emergency plan be withheld from disclosure, on the basis that release of such information would be "directly contrary to the public interest in protection from a security breach of the Graterford facility."
,, By motion dated December 20, 1984, counsel for the Graterford inmates requests this Board issue a protective order " allowing counsel and any recognized experts to i review the entire plan under appropriate circumstances."
The motion requests further.that the twenty-day time period allowed for the filing of contentions based upon the ff' f bO ~ f -Q u _ . __ _
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- Graterford plan be tolled until full disclosure of the plan is permitted.
The Commonwealth opposes the motion in part.
Specifically . the Commonwealth's position is that there be no further disclosure of the Graterford emergency response plan. The Commonwealth does not take a position with regard to the running of the twenty day time period in which inmates have been directed by prior Board orders to file contentions.
The Commonwealth intends to file a memorandum in support of its response to the inmates' request for disclosure of the Graterford plan. Additional time is needed for preparation an'd filing of said memorandum, the reasons for which are set forth below. Accordingly, the Commonwealth requests that it be allowe'd until January 18, 1985 to file a memorandum in support of its response.
The radiological emergency response. plan served upon prisoners' counsel Angus Love on December 13, 1984 by the Commonwealth was developed principally by the Pennsylvania Bureau of Correction [ Bureau). Management'and control ~ of the Graterford facility is the direct responsibility of the
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Bureau.- Consequently, the response of the Commonwealth to prisoners' -motion and any other matters involving the Graterford emergency plan must of necessity. involve the-Bureau. The Board so acknowledged on this record (See Tr.
i 15,835-36). -):
The undersigned: Commonwealth counsel has been informed I that Bureau officials concerned with the.Graterford plan, due to Christmas holiday schedules and other obligations, l
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3 are not now available and will not be until after the first -
week in January. Given the time of filing of the inmates' motion, it was not possible to ascertain this information prior to the. Christmas weekend and the concomitant absence of these officials. The Commonwealth cannot respond to the matters raised in the inmates' motion without consultation with the Bureau. In view of the sensitivity of the Graterford plan (see Affidavit of Glen R. Jeffes, Acting Commissioner of Corrections ffers attached to Commonwealth Request for Non-Disclosure dated December 13, 1984), the Board is respectfully requested to grant the Commonwealth until January 18, 1985 to file its memorandum in support of its response to the Graterford inmates' motion for disclosure of the Graterford radiological emergency response plan.
Respectfully submitted,
/IZo G. Ferkin M
y Assistant Counsel Governor's Energy Council Dated: December 30, 1984 l
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) UNITED STATES OF AMERICA
] NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2)
CERTIFICATE OF SERVICE I hereby certify that copies of the " Commonwealth Response to Graterford inmates Motion" were served on the following by United States first class mail on the 31st day of December 1984:
Helen F. Hoyt Troy B. Conner, Esq.
Administrative Judge Conner and Wtterhahn, P.C.
Atomic Safety and. Licensing 1747 Pennsylvania Avenue, N.W.
Board Washington, D.C. 20006 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dr. Richard F. Cole Docketing and Service Section Administrative Judge Office of the Secretary Atomic Safety and Licensing Board ~
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 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, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Benjamin-H. Vogler, Esq.
, Appeal Panel Counsel for NRC Staff U.S. Nuclear Regulatory Commis~s ton Office of the Executive Legal Washington, D.C. 20555 . Director U.S. Nuclear Regulatory Commission Washington, D.C. 20555 I
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1 Robert L. Anthony Philadelphia Electric Company Friends of the Earth of the ATTN: Edward G. Bauer, Jr.
Delaware Valley Vice President & General Counsel P.O. Box 186 2301 Market Street 103 Vernon Lane -
Philadelphia, PA 19101 Moylan, PA 19065 Joseph H. White, III Angus Love, Esq.
15 Ardmore Avenue 101 East Main Street Ardmore, PA 19003 ,
Norristown, PA 19104
' Charles W. Elliott, Esq.
- David Wersan, Esq.
Brose and Postwistilo Assistant Consumer Advocate 325 N. 10th Street Office of Consumer Advocate Easton, PA 18042 1425 Strawberry Square Harrisburg, PA 17120
- Thomas Gerusky, Director Martha W. Bush, Esq.
Bureau of Radiation Protection Kathryn S. Lewis, Esq.
Dept. of Environmental Resources City of Philadelphia 5th Floor, Fulton Bank Building Municipal Services Building Third and Locust Streets 15th and JFK Boulevard Harrisburg, PA 17120 Philadelphia, PA 19107 Phyllis Zitzer
- Director, Pennsylvania Emergency Limerick Ecology Action Management Agency P.O. Box 761 8-151, Transportation & Safety Bldg.
Pottstown, PA 19464 Harrisburg, PA 17120 Steven P. Hershey, Esq. ** Spence W. Perry, Esq.
Community Legal Services, Inc. Associate General Counsel Law Center West Federal Emergency Mgmt. Agency 5219 Chestnut Street 500 C. Street, S.W., Rm. 840 Philadelphia, PA 19139 Washington, D.C. 20472 11 mothy R.S. Campbell Jay Gutierrez, Esq.
Director U.S. Nuclear Regulatory Dept. of Emergency Services Commission 14 East Biddle Street Region I West Chester, PA 19380 631 Park Avenue .
King of Prussia, PA 19406 d'
Zori G. Ferkin Assistant Counsel Governor's Energy Council Date: December 31, 1984 l
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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
[ BEFORE THE ATOMIC SAFETY Af4D LICENSING BOARD In the Matter of )
l )
i PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352 i
) 50-353 f (LimerickGeneratingStation, )
l Units 1 and 2) )
1
\
ANSWER TO MOTION OF THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD FOR FULL DISCLOSURE OF THE EVACUATION PLAN FOR STATE CORRECTIONAL INSTITUTE AT GRATERFORD I. INTRODUCTION On December 20, 1984, the Inmates of the State Correctional Institute at Graterford, Pennsylvania (Inmates) filed a motion before the Atomic Safety and Licensing Board requesting full disclosure of the evacuation plan for the State correctional Institute. For the reasons discussed below, the NRC staff believes that additional steps should be taken before a final decision can be made on that motion.
II. BACKGROUND In the Licensing Board's Order of April 20,1984,II the Board discussed the schedule for the filing of. contentions for the inmates of I/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 NRC 1020 (1984) Special Prehearing Conference .
Order Ruling On Admissibility of Offsite Emergency Planning Contentions.
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the State Correctional Institution at Graterford, Pennsylvania (SCIG).
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The Licensing Board acknowledged that the inmates were unable to present contentions during the prehearing conference because they had not had available to them the separate plan for the SCIG. The inmates were given twenty days after receipt of the plan to submit any contentions that they might have based upon the plan. The Licensing Board encouraged the inmates to discuss with~the Commonwealth any concerns that they had with the plan in an effort to resolve any differences.
On December 13, 1984, the Commonwealth provided to the inmates counsel a copy of the Radiological Emergency Response Plan, Appendix E, Annex 1 prepared for SCIG. Certain information' was deleted by the Commonwealth for security reasons. An explanation for the deletions was orovided in an affidavit by Glen R. Jeffes, Acting Commissioner of Corrections of the Ccmmonwealth of Pennsylvania. In response to the receipt of the plan with deletions, the inmates filed the instant motion.
Staff is not aware of any discussions that may have taken place between the inmates and representatives of the Commonwealth to resolve any differences.
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III. DISCUSSION The issue of the protection from public disclosure of certain plans and other information generally arises in NRC licensing proceedings in connection with the protection of the security plan developed for the l
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. . s nuclear facility. M However, the propriety of withholding certain information in connection with a nuclear plant security plan is on its face quite s'imilar to the issue presented by the Commonwealth and the inmates, i.e., the treatment of sensitive emergency planning information which if not properly protected could have serious consequences to the public at large.
In addressing the release of information concerning the details of a security plan, we are faced with two countervailing forces. The desire
- of the developer of a security plan to withhold as much information as possible about the plan from outside sources and the expressed need of intervenors to have as much detail about the plan as possible to assist in the development of its case. See, ALAB-410, supra. In the Limerick proceeding, the inmates seek more detail about the offsite emergency plans for their facility in order to determine whether contentions should be raised. Motion, at 3. With these countervailing forces in mind, the Appeal Board has determined that under certain circumstances and with specific protection it is appropriate to provide a security plan to third parties. Id. However, it is important to understand the circumstances surrounding the release of a security plan. -
The Appeal Board acknowledges that there may be appropriate circumstances when a plan should be released to interested parties, however, that does not mean the plan should be released in its entirety,
-21. See, -
E er_e.S., Pacific Plant, UnitsGas and 1 and 2),Electric Company ALAB-592, (Diablo 11 NRC CanyonPacific 744 (1980); NuclearGas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
ALAB-410, 5 NRC 1398 (1977).
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n or to anyone selected by the third party or that it should be released without protective safeguards. ALAB-410, at'1404. In the case of nuclear plant safeguards the Appeal Board, in ALAB-410, has provided guidance in making this determination. 'First, the Board observed that only those portions of the plan that are relevant and necessary for the litigation need be released. Secondly, as few of the " gory details" as possible need be released. Thus, a " sanitized" version of the plan may be released to the intervenor's counsel and its qualified expert, together
. with a general description of the types of information omitted from each section. Finally, no information is released unless an appropriate protective order and non-disclosure affidavits are executed. ALAB-410, at 1404. -
While the inmates suggest that they can see no analogy between the need to protect site security and the asserted need to protect from release the evacuation plan for the SCIG, 3_/ the Staff does believe that such an analogy exits in that the purpose and the need for protecting both types of information is the same. The Commonwealth has made a convincing presentation through the affidavit of the Acting Commissioner of Corrections as to why it needs to protect frcm disclosure the details -
and specifics of its evacuation plan for the SCIG. Affidavit, of Glen R. Jeffes. -
Mr. Jeffes asserts in his affidavit that the SCIG is a high security prison, with a large number of dangerous criminals who could take
-3/ We note that inmates in fact acknowledge that a protective order is appropriate under these circumstances. Motion at 3.
- . , , . 3- .~ __- + 7 c wg advantage of the classified information to assist in planning an escape.
Moreover, he asserts that relatives of inma'tes could use the classified information'to assist inmates in planning an escape. Jeffes Affidavit, at 4-5. Mr. Jeffes' qualifications, which are set forth in his affi-davit, clearly demonstrate that he has sufficient expertise in this field to support his opinions. On the other hand, the inmates present no expert opinion and rely exclusively upon the representation of counsel.
See, Coninonwealth Edison Company (Byron Nuclear Power Station, Units 1 and 2), ALAB-735, 18 NRC 19 (1983). 4/ -
The Commonwealth also argues that it cannot reveal additional infor-mation, even under a protective, because of exper'iences that it has had where " attorneys have, or have been suspected of, divulging to inmates materials almost as sensitive as this plan. Jeffes Affidavit, at 5. Thus, they claim that there is a reasonable suspicion that, even though they are given assurances by an attorney for the inmates that the plan will not be divulged, that it will be divulged to the inmates in some form or another. Jeffes affidavit, at 5. The Appeal Board has addressed this very srme argument and has found that once it is determined that a " sanitized" version of the plan is available and an appropriate protective order is ~
issued with a signed non-disclosure affidavit there must be a specific 4/ In Byron, the Appeal Board stated in rejecting an effort by the Staff to protect from disclosure certain information that, "The difficulty with this line of argument is that it is advanced by Staff counsel, entirely unsupported by the affidavit of any NRC '
official actually responsible for the conduct of either inspections !
or investigations." Likewise, the inmates have presented no '
affidavit of an expert knowledgeable in the evacuation of prisoners.
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. I and factual basis for precluding the attorney and a qualified expert
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from reviewing the plans. 5_/ In connection with the pending matter no showing has been made that the attorney for the inmates will not comply with an appropriate protective order and nondisclosure affidavit.
Accordingly, the Staff believes that the inmates have not made an adequate showing supported by the affidavits of experts establishing that it needs specific information beyond that which the Commonwealth has made available. On the other hand, the Comruonwealth has provided a " sanitized"-
version of its plan of the SCIG and has supported its exclusions by an expert in the field. We suggest that in keeping with the directions of this Licensing Board in.its April 20, 1984 orde'r'and consistent with the guidance of the Appeal Board, the inmates should be required to specify the information they need, based on expert opinion, which is beyond that provided in the " sanitized" version. By providing this type of infor-mation, the inmates will place this Licensing Board in a position to rule on specific concerns as opposed to the present motion which seeks the entire plan. In the event that the inmates show that they are entitled to additional information beyond that already provided by the Coninont:ealth then the Licensing Board should issue an appropriate protective order ~
and any authorized person who seeks to review the classified information should execute a nondisclosure affidavit.
.-5/ Pacific Gas and Electric Co. (Diablo Canyon,. Units I and 2),
ALAB-592, 11 NRC 744 (1980); Pacific Gas and Electric Co. (Diablo Canyon, Units 1 and 2), CLI-80-24, 11 NRC 775 (1980); see also, ALAB-735, supra. (disclosure of sensitive material pursuant to a ,
- protective order provides protection of the disclosure of such information on the assumption that protective orders will be obeyed). -
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IV. CONCLUSION 4
Based o'n the foregoing, the NRC staff submits that the Licensing 1
Board should require the-inmates to follow the steps outlined above before finally ruling on their motion.
Respectfully submitted,
\'
L Jpge Rutberg .
A'stistant Chief Hearing Counsel
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na d F. HassellJ unsel for NRC Staff Dated in Bethesda, Maryland
,this 2nd day of January 1985 O
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-e UNITED STATES OF AMEP.ICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)'
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352
) 50-353 (LimerickGeneratingStation, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " ANSWER TO MOTION OF THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD FOR ' FULL DISCLOSURE OF THE EVACUATION PLAN FOR STATE CORRECTIONAL INSTITUTE AT GRATERFORD" 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,' or as indicated by a double asterisk by hand-delivery, this 2nd day of January 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 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 Pennsylvania Avenue, N.W.
Washington, D.C. 20555** Washington, D.C. ?'006 J 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 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 ' litter, President -
15th and JFK Blvd.
Ms. Maureen Mulligan Philadelphia, PA 19107 Limerick Ecology Action 762 Queen Street Pottstown, PA 19464 o"
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Thoma.S 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 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 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 19065 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 Board Panel 325 N. 10 Street U.S. Nuclear Regulatory Comission Easton, PA 18042 Washington, D.C. 20555*
Atomic Safety and Licensing Appeal David Wersaa Board Panel 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. Hershey, Esq. San Jose, CA 95125 Community Legal Services, Inc.
52'I9 Chestnut Street Timothy R. S. Campbell, Director Philadelphia, PA 19139 Department of Emergency Services 14 East Biddle Street -
West Chester, PA 19380
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JosephhRutberg ) l AssistMt Chief Hearing Counsel v
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UNITED STATES OF AMERICA
) NUCLEAR REGULATORY ~ COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )
)
'Eh'iladelphia Electric ) Docket Nos. 50-352, Company ) 50=353 ,
)
! - (Limerick Generating )
Station, Units 1 )
and 2) )
MEMORANDUM IN-SUPPORT OF RESPONSE OF THE COMMONWEALTH OF PENNSYLVANIA TO j GRATERFORD INMATES' DECEMBER 20, 1984 MOTION I
I. Introduction On December 30, 1984, the Commonwealth filed its
.. (
response to the Graterford inmates December 20, 1984 motion for full disclosure of the Graterford radiological emergency response plan. In that response, the Commonwealth requested until January 18, 1985 to file a Memorandum in
~
suoport of its response.
The Applicant and the NRC Staff each filed-responses to the Graterford inmates" motion. Both Applicant and NRC Staff questioned the relief requested by the inmates and recommended further action be takcn prior to a Board ruling on the motion. In particular, the NRC Staff reocnigzed that the protection to be accorded an evacuation plan for a maximum security correctional institution is, in fact, analogous to the extent of protection required by
.NRC regulation for a site security plan. Such regulations, however, and case law which interprets these rules allow ,,l c) 0 /} j[ '
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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 l
l that this Board take the following discussion into 1
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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 defere.n'ce 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-ra'nging 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.
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441 U.S. at 547-48. An example of the defer.ence accorded prison officials may be found in Bell where the Court was asked to find that the strip search policy of the particular bureau of prisons involved was an illegal search and seizure. The prison bureau in this case required that "I"'n mates expose their body cavities for visual' inspection I as part of a strip search conducted after every contact
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visit with a person from outside the institution. Even though there was only one instance in the history of i
j the institution in question where contraband was actually found during such a search, the corrections officials had testified that the cavity searches were necessary not only ,
todiscoverweapons,drugsandotNercontrabandthatmight
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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 institut).onal~ 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 i
found the specific regulations at-issue.too restrictive, '
it approved the censorship of prisoner mail where a " regulation e
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l authorizing mail censorship furthers one or more of the substantial governmental interests of security, order and rehabilitation" and limited First Amendment freedoms "no greater than necessary or essential to the protection
-o# the particular governmental interest involved." 416 4
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 j defer:
- prison administrators are responsible for
- i maintaining internal order and discipline, for securing their institutions against unauthorized access or escape, and for ,
rehabilitating, to the ektent 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 l 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 j 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 i (1977); Pell v. Procunier, 417 U.S. 817 (1974); Meachum v.
4 Fano, 427 U.S. 215 (1976); Cruz v. Beto, 405 U.S. 319 (1972).
i The common thread which runs through the rulings cited l and discussed above'is that corrections is a highly specialized profession, and even the U.S. Supreme Court will not intrude into the corrections area unless it finds a clear .
- v iolation of the constitutional rights of inmates. For example, w_ _ - -
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even where the most fundamental right as freedom from unreasonable search and seizure is involved, the Court will permit even a highly intrusive search so long as there is justification based on the corrections professional's judgment of the need for security and order in the institution.
While the officials of the Pennsylvania Bureau of Correction do not claim to be experts in the development of evacuation plans relating to nuclear incidents, the Bureau in fact has more experience in this particular area than any one organization or individual. The Bureau has of necessity had to plan for the evacuation of its State Correctional Institution at Camp Hill in response to the Three Mile Island nuclear l'ncident. 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 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. Jeffes Affidavit at 5. Consistent with the rulings of the U.S.
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Supreme Court with regard to the opinions and policies of corrections officials, this Board should defer to the policy of the Pennsylvania Bureau of Correction and the opinion of Commissioner Jeffes with regard to the need.for the
,,s_trictest 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,
, L fp Wj Zori G. Ferkir.
[ / Assistant Counael
'\/ Governor's Energy Council ~
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Theod re J. O Assistant Counsel o
ML Bureau of Correction Dated; January 18, 1985 .
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COMMONWEALTH OF PENNSYLVAf4A GOVERNOR'S ENERGY COUNCIL P.O. BOX Solo 1625 N. FRONT STREET HARRISBURG, PENNSYLVANIA 17105 OFFICE OF
- 852M2 December 13, 1984 "" ' E5 Angus R. Love, Esq.
Montgomery County Legal Aid 107 East Main Street Norristown, Pennsylvania 19401 Re: Limerick Nuclear Generating Station, Docket Nos.
50-352, 50-353
Dear Mr. Love:
In accordance with the Licensing Board's Orders dated April 20 and August 15, 1984 in the above-captioned proceeding, the Commonwealth hereby transmits to you a copy of the Pennsylvania Bureau of Correction, Radiological Emergency Response Plan, Appendix E, Annex 1 prepared for
'the response by the State Correctional Institution at Graterford to incidents at the Limerick Generating Station.
Certain information has been deleted from this copy of '
the Graterford plan for security reasons. Please note the attached request for nondisclosure of confidential information and attached affidavits.
If you have any questions regarding the information provided here, please donJt hesitate, to call.
Very truly yours, s - - < &
Zori G. Ferkin Assistant Counsel (717-783-0225)
ZGF:ww Attachments FOT._.;5 I -M4% I Enclosure .
cc w/o enclosure: Service List Theodore G. Otto, Esq.
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UNITED STATES OF AMERICA
) NUCLEAR REGULATORY COMMISSION BEFORE THE-ATOMIC SAFETY AND LICENSING BOARD In the Matter of Philadelphia Electric Company Docket Nos. 50-352 (Limerict Generating Station, 50-353 Units 1 and 2) .
{
AFFIDAVIT OF RALPH J. HIPPERT I, Ralph Hippert, being duly sworn, state as follows:
- 1. At present I am the Deputy Director, Office of Plans and Preparedness, Pennsylvania Emergency Management Agency.
- 2. I have read the Pennsylvania Bureau of Correction, Radiological Emergency Response Plan, Annex 1, Appendix E dated October 26, 1984, including the Request to withhold portions of the foregoing Plan from public disclosure.
3 I hereby certify that the statements and matters set forth therein are true and correct to the best of my knowledge. j Ralp 1ppert, Deputy Director l Office of Plans and Preparedness Pennsylvania Emergency Management Agency Subscribed and Sworn to before me this l O day of December 1984 f % % hn ' m brd' Notagy Public .
JUUA M. BOOK. NOTARY PUBUC My Commission hpires July 13. 1937
. My' commission expires: Harrisburg. PA Dauphia Cousy I
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