ML20133F491

Response to Graterford Inmates 850725 & Air & Water Pollution Patrol 850726 Appeals from Appeal Board 850612 Order & Fourth Partial Initial Decision.W/Certificate of Svc

ML20133F491
Person / Time
Site:	Limerick
Issue date:	10/08/1985
From:	Hassell D, Mcgurren H NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#485-718 OL, NUDOCS 8510110063
Download: ML20133F491 (57)

Text

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J UNITED STATES OF AMERICA D{, 7jg NUCLEAR REGULATORY COMMISSION

- BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL @AIO['T g p, In the Matter of )

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Docket Nos. 50-352 bh[h{]ffCFCW iq k.uSERVir!

v PHILADELPHIA ELECTRIC COMPANY )

) 50-353 (Limerick Generating Station, ) {

Units 1 and 2) )

NRC STAFF BRIEF IN RESPONSE TO GRATERFORD INMATES' AND AWPP'S APPEALS FROM THE LICENSING BOARD'S ORDER OF JUNE 12, 1985 AND THE FOURTH PARTIAL INITIAL DECISION Donald F. Hassell Counsel for NRC Staff Henry J. McGurren Counsel for NRC Staff October 8, 1985 -

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TABLE OF CONTENTS page TABLE OF AUTHORITIES ............................................. iii I. STATEMENT OF THE CASE ....................................... 1 A. INTRODUCTION ........................................... 1 B. BACKGROUND AND REFERENCE TO RULINGS .................... 3 II. STATEMENT OF ISSUES ......................................... 10, 11 III. ARGUMENT .................................................... 11 A. The Licensing Board Properly Denied the Admission of Certain Revised Contentions of the Graterford Inmates ................................................ 11

1. Manpower Mobilization ............................. 11

2. Input of the Correctional Officers Union (AFSME) .. 16

3. Medical Services .................................. 18

4. Simulated Evacuation Plan Exercises ............... 21

5. Panic Factor ...................................... 25 B. The Licensing Board Properly Found That There Is Reasonable Assurance That Training Will Bc Offered To Civilian Bus And Ambulance Drivers Who Will Assist In Implementing The Graterford Plan ................................................... 26

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C- There Is Reasonable Assurance That The Methodology i

Of The Estimated Time Of Evacuation For The Graterford Prison Is Reliable ..................................... 32

1. Discrepancies In Evacuation Time Estimates ........ 33

2. Potential Hazards Confronting Vehicles Used In i

Evacuation And Manpower Mobilization . . . . . . . . . . . . . . 36

3. Inmate Response And Training ...................... 41 D. The Graterford Inmates Received A Fair And Impartial Hearing ................................................ 44

.. E. AWPP Has Standing To Appeal The Fourth Partial Initial Decision ............................................... 46 i

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j IV. CONCLUSION .................................................. 48 l

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TABLE OF AUTHORITIES CASES: page Guard v. NRC, 753 F.2d 1144 (D.C. Cir 1985)....................... 20 i

j_ Union of Concerned Scientists v. NRC, 735 F2d 1437 (D.C. Cir. 1984) 24 ADMINISTRATIVE DECISIONS:

Cincinnati Gas and Electric Co., et al., (William H. Zimmer Nuclear Plant Station, Unit 1), ALAB 760 (1983) ................ 12, 13 Consumers Power Company (Big Rock Plant), LBP-82-77, 16 NRC 1096 (1982) ......................................................... 27 Houston Lighting and Power Company (Allen's Creek Nuclear Generating

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7 Station), ALAB-590, 11 NRC 542 (1980) .......................... 18, 19 Houston Lighting and Power Company (Allen's Creek Nuclear Generating Station), ALAB-582, 11 NRC 239 (1980) .......................... 17, 24 In the Matter of Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), Fourth Partial Initial Decision on Offsite Emergency Planning Contentions Relating to Graterford, LBP-85-25, 22 NRC-101 (1985) ................................... 2, 10, 26, 28, 29, 30, 31, 32, 35, 36, 37, 38, 39, 40, 41, 43, 45

• In the Matter of Philadelphia Electric Co. (Limerick Greerating Station, Units 1 and 2), Memorandum and Order,-(unpublished)

(July 15, 1985) ................................................ 2 In the Matter of Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), Order Admitting Certain Revised Contentions of the Graterford Inmates and Denying Others, (unpublished)(June 12, 1985) .................................. 1, 10, 12, 16, 17, 19, 20, 20, 22, 25

- In the Matter of Philadelphia Electric Co. (Limerick Generating

. Station, Units 1 and 2), LBP-85-14, 21 NRC 1219 (1985) ......... 25, 39, 46 Northern Indiana Public Service Company (Bailey Generating Station, Nuclear-1), 8 AEC.244 (1974) .......................... 44, 46

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4 ADMINISTRATIVE DECISIONS: (CONTINUED) page Philadelphia Electric Company (Limerick Generating Station.

Units 1 and 2), ALAB-809, 21 NRC 1605 (1985) ................... 44 i

Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-806, 21 NRC 1183 (1985) ...................

9, 44 Philadelphia Electric Company (Limerick Generating Station, j Units 1 and 2), Order, (unpublished) (April 23, 1985) .......... 8 i

Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum and Order on Graterford Prisoners' i j Proposed Contentions, (unpublished) (April 12, 1985) ........... 7, 18 Philadelphia Electric Company (Limerick Generating Station,

Units 1 and 2), Memorandum and Order (0pening Transcript of

{ February 27, 1985 in Camera Conference on Graterford RERP)

(unpublished) (March 27, 1985) ................................. 6

' Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Protective Order (unpublished) (March 20,1985). 7 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum and Order (Conference On Graterford Maximum Security Facility) (unpublished) (March 15,1985)....... 6 Philadelphia Electric Company (Limerick Generating Station,

. Units 1 and 2), Memorandum and Order (Conference on Full i Disclosure of Evacuation Plan for the Graterford Maximum Security Facility) (unpublished) (February 19, 1985) ........... 6

, Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum and Order (unpublished)

(February 12, 1985) ............................................ 5 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum and Order Regarding Gratertord Prison, j (unpublished), (February 5, 1985) .............................. 5 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-31, 20 NRC 446 (1984) ................... 20 Philadelphia Electric Company (Limerick Generating Station, i

Units 1 and 2), LBP-84-18, 19 NRC 1020 (1984) .................. 3 Philadelphia Electric Com any (Limerick Generating Station, Units 1 and 2)-IR- - TA, 15 NRC 1423 (1982) ................. 3 i

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-v-ADMINISTRATIVE DECISIONS: (CONTINUED) page Philade_lphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) ...................... 19 Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179 (1978) . 45 Southern California Edison Company, et al. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346 (1983) 16 REGULATIONS:

10 C.F.R. % 2.704 ................................................ 45 10 C.F.R. % 2.714(b) ............................................. 11 10 C.F.R. % 2.718 ................................................ 45 10 C.F.R. G 2.743(c) ............................................. 33, 34 10 C.F.R. % 2.758 ................................................ 38, 43 10 C.F.R. 6 2.760a ............................................... 32 10 C.F.R. % 2.762(c) ............................................. 3 10 C.F.R. % 50.47 .:.............................................. 39 10 C.r.R. 9 50.47(a)(2) .......................................... 24 10 C.F.R. 9 50.47(b)(6) .......................................... 14 10 C.F.R. 9 50.4)(b)(12) ......................................... 20 10 C.F.R. % 50.47(b)(14) ......................................... 21, 22 44 C.F.R. Part 350 ............................................... 39 10 C.F.R. Part 50, Appendix E .................................... 22, 23 25, 39, 43 MISCELLANE0US:

NUREG 0654, FEMA-REP-1, Rev.1 Criteria for Preparation and Evaluations 14, 15, 17, of Radiological Emergency Response plans and Preparedness in Support 21, 22, 23, of Nuclear Power Plants (November 1980) 29, 30, 31, 37

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MISCELLANE0US: (CONTINUED) g Statement of Policy on Emergency Planning Standard 10 C.F.R. 6 50.47(b)(12), 50 Fed. Reg. 20892, (May 21, 1985) ... 20

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of )

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

) 50-353 (LimerickGeneratingStation, )

' Units l'and 2) )

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NRC STAFF BRIEF IN RESPONSE TO GRATERFORD INMATES' AND AWPP'S APPEALS'FROM THE LICENSING BOARD'S ORDER OF JUNE 12, 1985 AND THE FOURTH PARTIAL INITIAL DECISION

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I. STATEME' N T OF THE CASE A. Introduction 4

On June 12, 1985, the Atomic Safety and Licensing Board issued an order that admitted certain revised contentions of the inmates of the State Cor- ,

rectional Institution at Graterford, Pennsylvania ("Graterford Inmates" or

" Inmates") and denibd others. In the Matter of Philadelphia Electric Co.

l (Limerick Generating Station, Units 1 and 2). Order Admitting Certain Revised Contentions Of The Graterford Inmates And Denying Others (unpublished), slip op. (June 12,1985). On July 2, 1985, the Licensing Board issued an order

, that denied reconsideration of its June 12, 1985 Order, which had been sought in exceptions. filed by the Graterford Inmates 1/ (represented by Mr. Angus R.

Love). On July 11, 1985, the Graterford Inmates appealed the Licensing 1/ " Exceptions To The Board's Order of June 12, 1985" (June 24, 1985).

1 Board's July 2, 1985 Order reaffirming its Order of June 12, 1985. 2_/ The Appeal Board issued a Memorandum and Order denying the Graterford Inmates' l * .

appeal of July 11, 1985 as interlocutory and noting that the issue of wheth-er the Licensing Board erred in rejecting contentions could be raised on appeal from the Board's final order. In the Matter of Philadelphia Electric o

_C_o.. (Limerick Generating Station, Units 1 and 2), Memorandum and Order, (un-published), slip op. (July 15,1985). On July 22, 1985, the Licensing Board issued its Fourth Partial Initial Decision ("PID") for the Limerick Generating Station, Units 1 and 2 on offsite emergency planning contentions concerning the State Correctional Institution at Graterford ("Graterford" or " Grater-ford Prison"). That decision disposed of the remaining two Graterford issues in favor of the Applicant (Philadelphia Electric Company). In the Matter i of Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

Fourth Partial Initial Decision On Offsite Emergency Planning Contentions Relating To Graterford, LBP-85-25, 22 NRC 101 (1985). On July 25, 1985, the Graterford Inmates filed their notice of appeal of that PID, which incor-f porated by reference, their appeal of July 11, 1985. On July 26, 1985, the f

Air and Water Pollution Patrol ("AWPP"), represented by Mr. Romano, filed a

,' notice of appeal from the PID along with its brief on the merits. / On j July 31, 1985, Friends of the Earth ("F0E"), represented by Mr. Robert

! Anthony, filed its notice of appeal from the Board's PID but did not sub-2_/ " Notice of Appeal" (June 11,1985).

-3/ " Notice Of Appeal By Air and Water Pollution Patrol / Romano RE 'The Fourth Partial Initial Decision (On Offsite Emergency Planning Con-tentions Relating To Graterford)'" (July 26,1985)("AWPP's Appeal").

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sequently file a brief in support of its appeal. On August 14, 1985, the Graterford Inmates filed their brief in support of their appeal of the PID. SI Pu'rsuant to 10 C.F.R. 5 2.762(c), the NRC staff hereby files its brief in response to the Graterford Inmates' and AWPP's appeal. For the reasons I set forth below, the NRC staff opposes both appeals. .

B. Background and Reference to Rulings On September 18, 1981, the Philadelphia Chapter of the National Lawyers' Guild (Guild) sought to intervene in this proceeding on behalf of certain inmates at the Graterford Prison. In response to an Order by the Board dated October 14, 1981, the Guild filed a Supplemental Memorandum in support of its petition to intervene. The Board's Special Prehearing Conference Order of. June 1,1982 admitted the Graterford Inmates as a party to this proceeding.E/ On April 20, 1984, the Board issued an order acknowledging that the Graterford Inmates were unable to present contentions during the prehearing conference since the emergency plan for the State Correctional Institution at Graterford (SCIG) was not available and granting the Grater-ford Inmates twenty days from the tin,e they receive the plan to submit any contentions based upon the plan. 5/

4/ "Brief Of The Intervenor Graterford Inmates" (August 14,1985)("In-mates Brief").

-5/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-82-43A, 15 NRC 1423, 1442-47 (1982),

6/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-84-18, 19 NRC 1020, 1029-30 (1984). ,

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On December 13, 1984, the Commonwealth of Pennsylvania (Commonwealth) provided to the Graterford Inmates' counsel a " sanitized" copy of the Penn-sylvania Bureau of Correction Radiological Emergency Response Plan for the Graterford prison (Plan 1), which had certain information deleted for secu-rity reasons. The Graterford Inmates then filed a motion 1/ requesting the Licensing Board to require full disclosure of the emergency response plan for SCIG. The Applicant, the Commonwealth and the NRC staff filed responses generally opposing full disclosure. El On January 29, 1985, the Licensing Board heard oral argument on the Graterford Inmates' motion for full disclosure of the SCIG plan. The Board denied the Graterford Inmates motion for full disclosure of the plan and permitted them twenty days in which to file contentions based on the " sani-tized" version of the plan (Plan 1). It also denied Graterford Inmates' 1/ Motion for Order Requiring Full Disclosure by Pennsylvania Emergency Management Agency of the Evacuation Plan for State Correctional Institute at Graterford (filed December 20,1984).

g/ Applicant's Response to Graterford Inmates Motion for an Order Re-quiring Full Disclosure by PEMA on the Evacuation Plan for the State Correctional Institute At Graterford (December 28,1984); 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 Meriorandum in Support of Said Response (December 31,1984); Memorandum in Support of Response of the Commonwealth of Pennsylvania to Graterford Inmates' December 20, 1984 Motion (January 18,1985);[NRCStaff]AnswertoMotionofthe Inmates of the State Correctional Institute at Graterford for Full Disclosure of the Evacuation Plan for State Correctional Institute at Graterford (January 2, 1985).

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! motion for a stay of the Board's decision denying the motion pending appeal. 9/

On February 8,1985, the Graterford Inmates filed a " Notice of Appeal" E/,

which w'as dismissed without prejudice by the Appeal Board. The Appeal Board i indicated that at the time the Graterford Inmates' sought review by the Appeal Board they had not yet exhausted their options before the Licensing Board, 1

including the filir.g of their contentions. Memorandum and Order at 2 l (February 12,1985).

On February 15, 1985, the Graterford Inmates filed contentions based on f the " sanitized" plan (Plan 1) NI and on February 21, 1985, they filed a peti- ,

tion for Commission review of the Appeal Board's February 12, 1985 Memorandun-and Order. The NRC staff and the Applicant filed answers, which opposed the Graterford Inmates' petition for Coninission review. El On March 26, 1985, the b

Conmission completed all action on the Graterford Inmates' February 21, 1985 i

j I 9/ See, Tr. 20,479-81; Tr. 20,842; Philadelphia Electric Company (Lim- l erick Generating Station, Units 1 and 2), Memorandum And Order Re-

! garding Graterford Prison (unpublished), slip op. at 3 (February 5, 1985).

! 1,0/ Although the inmates styled their filing before the Appeal Board a  !

4 " Notice of Appeal," the Appeal Board construed it as a petition for i directed certification. Philadelphia Electric Cortpany (Limerick -

1 Generating Station, Units 1 and 2), Memorandum And Order (unpub- [

lished), slip op at 1-2, 4, (February 12,1985).

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11/- Proposed Contentions Of The Graterford Inmates With Regard To The EvacuationPlan(February 15, 1985) (" Proposed Contentions"). ,

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12/ NRC Staff's Answer In Opposition To Intervenor Graterford Inmates' i i Petition For Review Of Appeal Board Order Dismissing Petition For j 4 Directed Certification (March 8,1985); Applicant's Answer To  ;

Graterford Prisoners' Petition For Review (March 8,1985).  ;

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petition for review by allowing the time for review of the Appeal Board's l February 12, 1985 order to expire. EI Th'e Licensing Board scheduled an in camera " conference on full disclo-sure" of the emergency plan for the Graterford Facility that was held on February 27, 1985. EI The Commonwealth of Pennsylvania Department of Correc-l tions filed its response to the Graterford Inmates' request for information that was raised during the February 27, 1985 conference. EI Also, the Licen-sing Board scheduled another M camera session, which was held on March 22, 1985, to review the progress that had been made in resolving the dispute concerning disclosure of information between the Commonwealth and the Graterford Inmates. EI On March 18, 1985, the Comonwealth provided Mr. Love

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-13/ See, Letter from Samuel Chilk, Secretary of the Comission to Aligus R. Love (April 23,1985).

-14/ Memorandum and Order (Conference on Full Disclosure of Evacuation Plan for the Graterford Maximum Security Facility) (unpublished) slip op. (February 19, 1985); Tr. 20,484-606.

-15/ Response Of The Commonwealth Of Pennsylvania Department Of Correc-tions To Requests For Information Raised At The February 27, 1985 Atomic Safety And Licensing Board Conference, attached to letter to the Docketing and Service Section, Office of the Secretary, U.S.

N.R.C., dated March 15, 1985.

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16/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Memorandum And Order (Conference On Graterford Maximum Secu-rity Facility), (unpublished), slip op. (March 15,1985);

Tr. 20,490, 20,610. Subsequently, the Licensing Board ruled that the transcript of the February 27, 1985 in camera conference be opened and confirmed its oral ruling that tfie transcript of the March 25, 1985 in camera session would not be scaled. See, Phila-delphia ElectriFCompany (Limerick Generating Station, UiiTts 1 and 2), Memorandum and Order (0pening Transcript of February 27, 1985 In Camera Conference on Graterford RERP) (unpublished), slip op. a F2~,-(FiWeh 27, 1985).

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and his expert a copy for examination under the Board's protective order El of the new version of the emergency plan (Plan 2) for the SCIG, which was virtual'ly the entire plan. Tr. 20,612-13.

l During the March 22, 1985 conference, counsel for the Graterford In-mates' withdrew one of the three proposed contentions and determined that i

most of the bases supporting the contentions had been satisfactorily re-  !

solved. (Tr.20,677-91). At this conference, the Licensing Board granted j the parties an opportunity to respond to the Graterford Inmates' contentions ,

f not withdrawn during the conference. Tr. 20,697-98. The Applicant and the f i

Comonwealth filed answers opposing the admission of the Graterford Inmates'  ;

proposed contentions. El The NRC staff filed a response opposing the admission of certain issues and not objecting to the admission of other issues. EI [

Subsequently, the Licensing Board issued a Memorandum and Order that I rejected the Graterford inmates' remaining proposed contentions and dis- [

missed the Graterford inmates as a party to this proceeding. El The Grater- f ford Inmates filed with the Comission a Supplemental Petition For Review  ;

Of Appeal Board Order Dismissing Petition For Directed Certifb:ation, which j 17/ Philadelphia Electric Company (Limerick Generating Station, Units 1 .

and2),ProtectiveOrder(unpublished)slipop.(March 20,1985).

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18/ Applicant's Answer To Proposed Emergency Planning Contentions Of The Graterford Prisoners (April 4,1985); Answer Of The Comanwealth Of Pennsylvania To Proposed Contentions Of The Graterford Inmates With  !

RegardToTheEvacuationPlan(April 4,1985).

19/ NRC Staff Response To Graterford Prisoners Proposed Contentions l

(April 5, 1985).

2_0f Philadelphia Electric Company (Limerick Generating Station, Units 1 j and2),MemorandumAndOrderOnGraterfordPrisonersProposedCon-  !

tentions (unpublished), slip op, at 16, (April 12, 1985). l t

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took issue with the Licensing Board's decision of April 12, 1985. El This Supplemental Petition, which was improperly filed before the Commission, was redirected to the Appeal Board for consideration by Order of the Secretary of the Commission. EI On April 18, 1985, the Graterford Inmates filed their notice of appeal seeking review of the Licensing Buard's April 12, 1985 decision. EI On April 23, 1985, the Appeal Board issued an order indicating that they would consider all of the Graterford Inmates' arguments on appeal re-lated to their energency planning contentions. 2_4/ The Commonwealth filed its response to the appeal urging that the Graterford Inmates Notice of Appeal and Supplemental Petition be denied. EI On April 30, 1985, briefs opposing the Graterford inmates' Notice of Appeal and Supplemental Petition were filed by the NRC staff and the Applicant. El On May 1, 1985, the Appeal

~~21/ Intervenor Graterford Inmates' Supplemental Petition For Review Of Appeal Board Order Dismissing Petition For Directed Certification (April 16,1985) (" Supplemental Petition").

22/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Order (unpublished) slip op. (April 23,1985).

-23/ Notice of Appeal From The Licensing Board's Memorandum And Order On Graterford Prisoners' Proposed Contentions (April 18,1985)(" Notice ofAppeal").

--24/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), Order (unpublished) slip op, at 1 (April 23,1985).

~~25/ Response Of The Commonwealth of Pennsylvania To The April 18, 1985 Appeal 8y The Graterford inmates And April 16, 1985 Supplemental Petition Of Graterford Inmates (April 29,1985).

26/ NRC Staf f Brief in Response To "Intervenor Graterford inmates' Sup-plemental Petition For Review Of Appeal Board Order Dismissing reti-(f00iNOTE CONTINUED ON NEXT PAGE)

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l Board issued ALAB-806, which reversed the Licensing Board's April 12, 1985 decision dismissing the Graterford Inmates' proposed contentions and denying the Gra'terford Inmates request to submit revised contentions. 2_7/ The Appeal

. Board found that the Licensing Board's refusal to permit the Graterford i l Inmates to refile their contentions and respecify their bases based on the second version of the SCIG plan was arbitrary. El Further, the Appeal Board held, contrary to the Licensing Board, that the balance of the five factors i in 10 C.F.R. Q 2.714(a)(1) weighed overwhelmingly in the Inmates favor. E/

Consequently, the Appeal Board reinstated the Graterford Inmates as a party to this proceeding, provided them an opportunity to file revised emergency [

! planning contentions by no later than May 15, 1985 and directed the Licensing i

Board to determine only whether the refiled contentions have adequate bases and specificity. E/

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(F00Ttt0TECONTINUEDFROMPREVIOUSPAGE) f l

tion For Directed Certification" And

• Notice Of Appeal From The l l Licensing Board's Memorandum And Order On Graterford Prisoners' ,

l ProposedContentions"(April 30,1985); Applicant's Brief in Opposi- i tion To Graterford Prisoners' Appeal Of The Atomic Safety And Li-censing Board's Order Denying its Contentions And Applicant's Answer Tu Graterford Prisoners' Supplemental Petition For Review (April 30, 1985).

27 / Philadelphia Electric Cortpany (Limerick Generating Station, Units 1 and2),ALAB-806,21NRC1103,1193(1965). .

28/ Id. at 1108, 29/ Id. at 1193.

30/ Id at 1193-94.

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On May 13, 1985, the Graterford Inmates filed their proposed revised  !

contentions concerning the SCIG plan. El The Applicant and the Comonwealth filed r'esponses opposing the admission of the proposed revised contentions. EI i

The NRC staff filed its response opposing the admission of certain issues  !

and not objecting to the admission of other issues. El On June 12, 1985, the ,

Licensing Board issued an order admitting two issues of the Graterford Inmates' revised contentions, and denying others for lack of specificity or  !

bases. U/

After a hearing, the Licensing Board issued its Fourth Partial Initial  !

l Decision disposing of the two admitted Graterford Inmates contentions in favor of the Applicant and authorizing the issuance of a full-power operat-ing license. Limerick,22NRC101(1985). The Graterford Inmates and AWPP filed briefs in support of their appeals of the Board's P!D. The Applicant i

and Commonwealth filed their briefs in response to appeals of the Graterford inmates and AWPP on September 18 and 23, 1985, respectively.

11. STATEMENT OF ISSUES  !

l A. Whether The Licensing Board Properly Denied The Admission Of Certain Revised Contentions Of The Graterford Inmates.

31/ ProposedRevisedContentions(May 13,1985).

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32 Applicant's Answer To Proposed Revised Contentions Of The Graterford Prisoners (May 22,1985); Comonwealth Response To Proposed Revised Contentions Of The Graterford innates (May 24,1985).

-33/ NRC Staff Response To The Proposed Revised Contentions Of The Graterford Inmates With Regard To The Padiological Emergency Re-sponse Plan (June 3, 1985).

34 / Order Admitting Certain Revised Contentions Of The Graterford In-  !

mates And Denying Others, slip op. (June 12,1985), i

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B. Whether There is Reasonable Assurance That Training Will Be Offered To Civilian Bus And Ambulance Drivers Involved in The Emergency Response Plan for Graterford.

C. Whether Therc Is Reasonable Assurance That The Methodology Of The Esti-mated Time Of Evacuation for The Graterford Prison is Reliable.

D. Whether the Graterford Inmates Received A Fair And Impartial Hearing.

E. Whether AWPP Lacks Standing To Appeal The Fourth Partial Initial Decision.

111. ARGUMENT A. The Licensing Board Properly Denied the Admission Of Certain Revised Contentions Of The Graterford Inmates The Inmates argue that five of the six bases asserted for their con-tentionEEI and rejected by the Licensing Board have been stated with reason-able specificity satisfying the standard of 10 C.F.R. I 2.714(b). Inmates Brief at 8-11. The specific arguments asserted by the inmates with respect to each of the five bases are addressed below.

1. fjanpowerfobilization The inmates contend that there is no reasonable assurance that the call up system to be utilized in the event of a nuclear emergency in order to mobilize the entire work force of the State Correctional Institute at Graterford (SClG) will achieve its designated purpose in light of its depen-35/ The single general contention proffered by the inmates provides:

There is no reasonabit assurance that the Radiological Emergency Response Plan. for the State Correctional Institute at Graterford will protect the staff and in-mates at said institution in the event of a nuclear emergency at the Limerick Generating Station.

dence on commercial telephone lines E/. The Inmates state as a second concern their belief that "a viable back-up system" is needed "[i]n light of the potential for havoc" with regard to the connercial phone lines. EI in rejecting admission of the Inmates concern regarding the use of comarcrcial telephone lines, the Licensing Board indicated: (1)thatthere is no prohibition in NRC or FEMA emergency planning requirements or guidance l against use of commercial telephone lines, (2) that the unavailability of consnercial telephone lines in an actual emergency would not delay activation of necessary E0C personnel E/ (3) that the prison staff is in a much better l notification position than the local E0C personnel and will be notified by five dedicated telephone lines including a direct connection with the Penn-l sylvania State P. (4) that should there be a problem with concercial l

l telephone lines tt . tate Police will act as back-up to conduct notification ,

l l of off-duty personnel. Order Admitting Certain Revised Contentions of the Graterford Inmates and Denying Others, (June 12,1985),at3[ hereinafter "LicensingBoardOrder").

The Inmates take exception to the Board's ruling based upon:

(1) the decision Cincinnati Gas _ and, Electric Co. et al. (William H. Zimmer NuclearPlantStation,UnitNo.1),ALAD-727,17NRC760,768(1983) for the proposition that during an emergency, commercial telephone circuits "'likely l 36/ See " Proposed Revised Contentions Of The Graterford Innates With

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EiardToTheRadiologicalEnergencyPesponsePlan"),datedMay13, 1985 at 2 [hereinaf ter cited as Revised Contentions r

i H/ Revised Contentions at 3.

! 38/ The Board cited its Third Partial Initial Occision finding 612

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1 (p. 271) in support of this statement.

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j would become overloaded as a result of heavy public usage and thus be un-l availabic for official use'", (2) the assertion that the Board was in error l

concerning the number of dedicated telephone lines possessed by SCIG (the inmates assert SCIG has only one dedicated line), and (3) the testimony of Mr. Brown indicating that the commercial lines would likely be " overburdened as they were during the flood of 1972". Inmates Brief at 12,13; Notice of Appeal at 5-7.

The Inmates have failed to support their exception to the Licens-ing Board's decision regarding the commercial telephone lines. As the Board

! noted, there is no prohibition in the NRC or FEMA emergency planning re-quirements or guidance against the use of concercial telephone lines to notify emergency personnel. Licensing Board Order at 3. Further, the In-mates have failed to show or allege that the SCIG experienced any difficulty in notifying its of f-duty personnel by comercial telephone during the Agnes flood of 1972 or that difficulty in notification of off-duty personnel would result due to specified similarities between the notification plan for SC!G and the plan involved in the cited Zimmer decision. Moreover, coninercial i telephone lines available to SClG cmployees are only one component of the connunications capability available to SCIG for notifying its off-du y per-l sonnel should that become necessary. Mr. Glenn Jeffes, Conmissioner cf the Pennsylvania Department of Corrections, has indicated that the Pennsylvania l State Police are the primary backup and if commercial telephone lines were unavailable the State Police can be reached over the dedicated line to con-I duct notification of off-duty personnel. Tr. 20,627, 20,629; gpq Licensing Board Order at 3. Thus, it is inmaterial whether there is more than one i

dedicated line at Graterford. Accordingly, the Inmates have failed to set

l I

i

. t forth a reasonably specific basis as to why the communications capability available to SCIG is either inadequate or deficient, as measured against the i Comiss' ion s emergency planning requirements or guidance, to effectuate notification of off-duty personnel who may be needed during a radiological (

l emergency. Consequently, the Board correctly rejected this basis as a  !

contention.

The Inmates also take exception to the Board's rejection of their ,

argument that a back-up system is necessary to insure prompt communication f

between all persons to be mobilized in the event of a nuclear emergency.

Inmates Brief at 3. The inmates' exception concerns the term " principal i response organization" of 10 C.F.R. 6 50.47(b)(6) El and Criterion !!.F.1. t of NUREG-0654 Inmates Brief at 13; Notice of Appeal at 7. The Inmates assert the Board committed error in finding that SCIG is not a " principal response organization" but rather a support organization under the Comon-wealth's radiologica,1 emergency response plan. See Licensing Board Order at 4 The Inmates', position is without merit. Citing the NUREG-0654 defini-tionof" Principal (organizations)",theInmatesstatethattheSCIG"could j be defined as a principal or suborganization and that such distinctions are

(

I 39/ 10C.F.R.650.47(b)(6)provides:

t Provisions exist for prompt comunications among princi- -

pal response organizations to energency personnel and to the public. [

4 e

1 \

i

[

j arbitrary." b Inmates Brief at 14; Notice of Appeal at 8. The Board was not arbitrary in finding that SCIG was not a principal response organiza-tion. 'As the Licensing Board correctly explained, the NUREG-0654 provisions for prompt connunications among principal response orginizations to emergency personnel and to the public has been understood to mean those emergency response organizations that " initiate response actions". See, NUREG-0654,

!!.F.1.a.; Licensing Board Order at 4. Furthermore, the Board correctly l stated: "Under the Commonwealth's radiological emergency response plan, the Department of Corrections is designated a support organization". Licensing Board Order at 4, see Commonwealth of Pennsylvania Disaster Operations Plan, l

Annex E, Fixed Nuclear Facility Incidents, at E-38. The Inmates argue that l

SCIG should be treated as a principal response organization since it is "in essence a city behind walls". In dealing with the question of what is a l principal response organization, the Appeal Board, held that the City of San Juan Capistrano was .not a " principal response organization" that must fulfill l

l 40/ NUREG-0654 (Appendix 5) defines the terms " Principal" and "Sub" as follows:

Mincipal (organizations):

, Federal, State, local agencies or departments or execu-tive offices and nuclear utilities (licensee) having mgor or lead roles in emergency planning and preparedness.

Sub (organizations):

l Myorganizationsuchasagencies, departments, offices l

or local jurisdictions having a supportive role to the principal or lead organization (s) in emergency planning l and preparedness.

l l

l l

detailed emergency planning requirements, even though it contained about one-half the population of the plume EPZ. S/ The Appeal Board reasoned that in orde'r to be considered a principal response organization the entity must have a major or lead role in emergency planning or preparedness. S/ Clearly, the SCIG does not have such a role under the Comonwealth's emergency response scheme. Thus, the Licensing Board was correct in not considering the Depart-nent of Corrections a principal response organization for this proceeding.

Consequently, the Board was correct in concluding that the NUREG-0654 provi-sion calling for a telephone link and alternate does not apply to the Grater-ford Plan. Licensing Board Order at 4

2. Input _Of The_ Correctional Officers Union (AFSME) N/

The Inmates claim that the Board erred in finding that there was no basis for the Inmates' assertion that "there is no reasonable assurance that the correctional officers union is aware of the Bureau of Corrections concept of operations and its relationship to the total effort." Inmates Brief at 14; Notice.of Appeal at 8. In support of their argument, the In-mates assert that because the correctional officers "have a major role in a protective response to a nuclear emergency", they should have an impact into the process "upon being informed adequately of their role in the operation."

Inmates Brief at 15; Notice of Appeal at 9.

4,J/ Southern California Edison Company, et al. (San Onofre Nuclear Gen-erating Station, Units 2 and 3), ALAli 7f7,17 NRC 346, 377 (1983).

42/ Id.

43/ The inmates state that the correctional officers are organized under

~

the banner of the American Federation of State, County and Municipal Employees (ATSME). See Revised Contentions at 4.

i l

l i

1

The Licensing Board correctly rejected this basis as support for the general contention. There is no requirement under the Commission's emer-gency planning regulations or guidance that the correction officer's union, AFSME, must review and have input in order to comply with the Commission regulations. AFSME is not an emergency response organization under the terms of NUREG-0654,Section II, Criterion A because it does not have any assigned emergency response role within the Emergency Planning Zone for Limerick and does not have any emergency response function covered by law, regulation or executive orders, thus a particular input by the correctional officers union is not required. See Licensing Board Order at 5. Accord-ingly, this basis fails to provide sufficient specificity to indicate any inadequacy or deficiency in the SCIG plan as it relates to emergency plan-ning requirements or guidance.

Furthermore, in support of their argument that the Board committed error the Inmates rely, for the first time on appeal, on the testimony of FEMA witnesses Asher and Kinard for the proposition that those who take a risk should be info'rmed (Inmates Brief at 15; Notice of Appeal at 9) as well as the fact that union representatives have been allowed to testify previously on behalf of other intervenors (Inmates Brief at 15, 16; Notice ofAppealat9,10). These matters were not presented to the Board below and accordingly are not appropriate for consideration on appeal. See t

!i_o_uston_ Lightig and Power Company (Allens Creek Nuclear Generating Station),

ALAB-582, 11 NRC 239, 242 (1980). Nevertheless, the referenced FEMA testi-mony fails to support the Inmates' position since as a statement of personal

i. '

! opinion El it does not show any inadequacy in the SCIG plan as it relates to f

! emergency planning requirements or guidance. The Board did not commit error because' union representatives have testified previously with respect to a i

different contention as acknowledged by the Inmates. Inmates Brief at 15; i

{ Uotice of Appeal at 9. The Inmates failure to present a basis with suffi- l

cient specificity is the reason why AFSME will not be able to testify in this proceeding, not that there is some institutional reason why AFSME is not i testifying. Accordingly, the inmates' appeal on this issue should be denied.

J

3. Medical Services l l The Inmates assert error concerning the Board's rejection of the  !

medical services basis as support for its contention on the grounds that the i  !

l Board discussed the merits and incorrectly shifted the burden upon the In- i

mates to prove "the inadequacy of the medical facilities as opposed to the  !

i j correct standard of the applicant proving the adequacy of such". Inmates l Brief at 16,17; Not. ice of Appeal at 10,11. j l The Inmates have misinterpreted the Board's ruling with regard to i a

l the asserted medical services basis. The Board was not addressing the mer-Its of the asserted basis or designating burden of proof. Rather, the Board consistent with the legal principles governing the admission of contentions  ;

j was ruling en the asserted basis. The Board recognized that the focus at the i

" contentions" phase of a proceeding is with the " reasons" stated as basis i

and not the merits of the contention. See Board Order April 12,1985(un-l published) at 7 (citing Houston I.ighting and Power Co. (Allens Creek Nuclear i l

1 j M/ Mr. Asher testified at Tr. 20,210: "In my personal opinion, anyone who is obligated to take a risk should be adequately inforned". ,

I i

1

Generating Station, Unit 1), ALAB-590, 11 NRC 542, 548 (1980) and Phila-delphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

ALAB-216, 8 AEC 13, at 20) referenced in footnote 3, Licensing Board Order at 2. However, the Board further stated:

Nevertheless, the basis for contentions must be suffi-ciently detailed and specific (a) to demonstrate that the issues raised are admissible and further inquiry into the matter is warranted; and (b) to put the parties on notice as to what they will have to defend against or oppose. This is especially important at the operating license stage, where a hearing is not mandatory, to assure that an asserted contention raises an issue which clearly is open to adjudication.

Cincinnati Gas & Electric Co. (William H. Zimmer Nuclear PowerStation),ALAB-305,3NRC8,12(1976); Gulf States Utilities Co. (River Bend, Units 1 and 2), ALAB-183, 7 AEC222,226(1974); River Bend, ALAB-444, 6 NRC 760, 768-69(1977); Byron, supra, at 689.

Id. at 8.

The Staff submits that the Licensing Board rejected the Inmates' medical services basis not on the ground of merit or failure to meet their

" burden of proof" bdt due to the lack of the requisite specificity. The Inmates assert that there is a failure to ascertain hospital capacity; how-ever, the Board stated "[t]here is no requirement that each hospital handle a specific number of contaminated, injured persons." Licensing Board Order at 7. It was in the absence of this specificity that the Board stated that

"[w]e are left in the dark as to what capacity it is that the Inmates have in mind." Id. As to the asserted lack of provisions for transportation to the medical facility and radiation monitoring in the ambulance, the Board correctly found that there was an " absence of reasonable specific basis" or a failure to "show or indicate any deficiency in the Graterford Plan 2".

Licensing Board Order at 7.

The inmates also claimed that the Department of Corrections has not provided a back-up facility to Montgomery Hospital. However, the Board found s'pecificity lacking because the Department of Corrections has entered into agreements with several hospitals that provide medical services that

. comply with the Joint Conunission of Accreditation of Hospitals (JCAH) stan-dard for treating radioactively contaminated individuals El and the Board in its Second Partial Initial found this accreditation acceptable. 5/ Accordingly, as the Board noted, the Inmates' claim fails to set forth "a reasonably spe-c.ific basis that provides sufficient foundation warranting further inquiry into this accreditation." El Licensing Board Order at 8.

The Inmates' final concern (failure of Department of Corrections to designate a primary and back-up facility to treat contaminated, injured 45/ See, Response Of The Conrnonwealth Of Pennsylvania, Department of E rections To Requests For Info wation Raised At The February 27, 1985 Atomic Safety And Licensing Board Conference (March 15,1985) at 5. Exhibits F, G; and see Tr. 20,665-69.

46/ SeePhiladelph'iaElectricCo.(LimerickGeneratingStation, Units 1 and2),LBP-84-31,20NRC446,531-36(1984).

47/ The Staff notes that the Consnission in its " Statement of Policy on Emergency Planning Standard 10 C.F.R. I 50.47(b)(12)", 50 Fed. Reg.

20,892-94, dated May ?1, 1985, has stated that until it issues new regulations dealing with medical services as dictated by Guard v.

NRC, 753 F.2d 1144 (D.C. Cir. 1985) the existing interpretation of W C.F.R. 6 50.47(b)(12) shall be followed. Pursuant to the policy statement, it is sufficient for a licensee to prepare a list of area hospitals capable of treating contaninated injured individuals, and for the licensee to conirit itself to comply with the Coninission's upcoming response to the decision in Guard v. NRC, 753 F.2d 1144 (D.C. Cir. 1985) in order for a LicensTng Board to conclude that no hearing would be warranted on this issue. In this case the Licensee has made such a conunitment. Letter from Shields L. Daltroff, Vice.

President, Electric Production Philadelphia Electric Company to Dr. Walter R. Butler, Chief, Licensin Licensing,U.S.N.R.C.(May 31,1985)gBranchNo.2,Divisionof .

l i

individuals at the relocation centers) was also rejected on the grounds of inadequate basis. As the Board stated "[t]here is no regulatory require-ment" for such designation of a primary and back-up facility. M. Further, the Board stated that the Inmates have not identified any " reasons" for such planning. M.

In sum, the Licensing Board properly rejected Inmates' concerns t about medical services on the ground nf lack of specificity of bases and not I on the ground of either " burden of proof" or the merits of the concern stated, i 4 Simulated Evacuation Plan Exercises i The Inmates argue that there is no reasonable assurance that the table top exercise conducted for the SCIG was adequate in terms of 10 C.F.R.

I50.47(b)(14). Inmates Brief at 17. They rely on NUREG-0654 II.N.3e S/

t to support their argument that the exercise was inadequate. Inmates Brief at 17,18; Notice of Appeal at 11,12. The Board rejected this basis of the l contention because,.as the Board stated: L (1)itlacksregulatorybasis;(2)itdidnotspecify ,

any deficiency in the scenarios used in the tabletop exercise or justify any requirement for inclusion of possible scenarios from NUREG-0654, Criterion N.3; and (3) petitioner did not identify any reason it believed FEMA's confirmation of the validity of the tabletop exercise was invalid or faulty.

I 48/ NUREG-0654, Criterion !!.N3e provides:

A narrative summary describing the conduct of the exer- l cises or drills to include such things as simulated casualties, offsite fire department assistance, rescue of personnel, use of protective clothing, deployment of ,

radiological monitoring teams, and public information activities; . . . . .

w..

_ - - - - . - ~ . - - . - . - - . - - - - . _ - _ . .

The March 7, 1985 tabletop exercise was a remedial exer-cise to correct deficiencies previously found by FEMA, per 6 50.47(b)(14). According to FEMA, it was

, successful.

Licensing Board Order at 11.

t The Staff submits that the reasons stated by the Board for rejec-tion of the asserted basis are correct. There is no regulatory requirement  :

that the simulated activities identified in NUREG-0654, Criterion N.3.e.

have to be included in every exercise scenario. Section50.47(b)(14)re-quires the conduct of periodic exercises "to evaluate major portions of emergency response capabilities" (emphasis supplied). NUREG-0654, II.N.1.b.

calls for scenarios to be " varied from year to year such that all major elements of the plans and preparedness organizations are tested within a  !

five-year period." Moreover, as the Board noted, the exercise conducted at j SCIG on March 7,1985 was a " remedial exercise." $ The Conunission's emergency planning regulations define the degree of participation required for a "re-red 4t' u ercise." Under Appendix E to 10 C.F.R. Part 50, the " participation f in remedial exercises must be suf ficient to show that appropriate corrective j measures have been taken regarding the elements of the plan not properly  !

tested in the previous exercises." 10 C.F.R. Part 50, Appendix E, IV.F.4. j This is precisely what has taken place for the remedial exercise at the SCIG.

FEMA found, as part of a Category A deficiency, that the SCIG had not demon-  !

strated "the means for dealing with mobility impaired . . . individuals." $_ce FEMA Exhibit E-4, Exercise Evaluation Report for the July 25, 1984 Exercise }

l 49/ See Memorandum from Richard W. Krimm, FEMA to Edward L. Jordan, NRC,  !

~~~

ifit'ed March 27, 1985.  !

t

at p.136 (Septen.ber 25,1984). FEMA also noted that the SCIG had not fully participated in the exercise. Id. As FEMA has indicated, a remedial exercise was con' ducted at SCIG on March 7,1985 to demonstrate that part of the Cate-gory A deficiency had been corrected. $/ Furthennore, "[t]he exercise was con-ducted to more fully exercise the emergency response procedures at the State Correctional Institution, Graterford, including simulated evacuation of in-mates." OI Thus, the " remedial exercise" scenario at the SCIG on March 7, 1985 was tailored to show whether appropriate corrective measures had been taken for those elements of the plan not properly tested during the July 25, 1984 l exercise, as required by Appendix E.IV.F.4, 10 C. .R. Part 50. FEMA has eval-uated the " remedial exercise" conducted on March 7, 1985 and found that "the Graterford authorities adequately demonstrated an understanding of the emergency response procedures and the ability to adequately implement them." SI Conse-quently, the Commission's emergency planning regulations have been fully j corplied with. The Inmates have failed to provide any reason or basis for why the remedial exercise should have included any of the matters in NUREG-0654, Criterion N.3.e. as corrective measures for elements of the SCIG plan

! not tested during the July 25, 1984 exercise. There is no requirement that a

" remedial exercise" must include the elements set forth in NUREG-0654, Cri-terion N.3.e. Accordirgly, the Board correctly rejected the Inmates' basis, f

50/ Id.

51/ Id.

52/ Id.

l l The Inmates also raise an argument in support of their exception that had not been raised below. El They argue that the Board, in rejecting the basis,liad not followed the decision of Union of Concerned Scientists v. NRC, 735 F.2d 1437,1451 (D.C. Cir.1984) as well as the Comission's rule change responding to the Decision. See 50 Fed. Reg. 19323, May 8, 1985. Inmates Brief at 18,19; Notice of Appeal at 12,13. Even if this argument had been made to the Board below El it does not support the Inmates' exception. The l Union of Concerned Scientists' case is simply not apposite. The case involved an amendment to a Comission rule (10 C.F.R. $ 50.47(a)(2)) that provided that emergency planning exercises are not required for any initial licensing hearing or decision. El The Court held that Congress did not grant the Comission discretion to remove so material an issue as the results of offsite emergency preparedness from the required Section 189(a) hearings." See 735 F 2d at 1451.

However, in the instant case, as noted above, the emergency plan has been tested in exercises and the results of such exercises have been the subject 53/ See In the Matter of Houston Lighting and Power Company (Allen's

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CreekNuclearGeneratingStation, Unit 1),11NRC239;242(1980).

Where the Appeal Board concluded that it would not be justified in overturning a ruling of the Licensing Board on the basis of asser-tions of fact which could have been, but were not, presented to the Licensing Board.

M/ The effect of the rule change is that the results of pre-licensing emergency preparedness exercise may be subject to litigation before the Licensing Board.

M/ The Amendmont added the following provision:

Emergency preparedness exercises . . . are part of the operational inspection process and are not required for any initial Itcensing decision.

of the Limerick proceeding. See Third Partial Initial Decision. El The Inmates have simply failed to show that the exercise did not meet the applicable require'ments of 10 C.F.R. Part 50. E l

5. Panic Factor I The grounds for the Inmates' exception concerning their " panic factor" basis is that the Board's rejection " represents conclusions of law which can only be made after a full hearing." Inmates Brief at 20; Notice I

of Appeal at 14 While it is true that the Board stated that it assumed that the guards will do their duty and inmates will be restrained from evac-uating spontaneously, the reason for the Board's rejection of the bases is that the Inmates fail to cite any deficiency in the SCIG emergency plan or 1

any failure in security procedures caused by implementation of the SCIG plan that would allow the " panic factor" to cause spontaneous evacuation of the prison guards or the potential escape of the prisoners. As the Board stat-ed: "[t]hereisnoprovisionoftheGraterfordPlanoranydocumentinthis proceeding that suggests the Department of Corrections authorities could not handle potential disturbances." Licensing Scard Order at 12. In support of its basis the Inmates only cite overcrowding and several instances of distur-56/

- In the Matter of Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219 (May 2, 1985).

57/ The inmates also assert the right to rebut FEMA Findings citing 10 C.F.R. G 50.47(a)(2) and Southern California Edison Co. et al.

(San Onofre Nuclear Generating Station, Unit 1 and 2), ALABZ9616 NRC 127 at 349 (1982), however, they have failed to show how this argument relates to the "new regulation" or supports their excep-tion. See inmates Brief at 19.

bance. 5_8/ As the Staff noted earlier in response to this basis, in the Inmates' originally proposed contentions, which is equally applicable here, the Inmates have fa'iled to allege that any of the prior incidents involved panic on the part of prisoners or the public. E In sum, the Licensing Board correctly rejected this basis for lack of specificity with regard to assertion of deficiencies in the SCIG emergency plan or particular security procedures.

B. The Licensing Board Properly Found That There is Reasonable Assurance That Training Will Be Offered To Civilian Bus And Ambulance Drivers Who Will Assist In Implementing The Graterford Plan In the context of the issues raised by the Inmates on appeal, the Staff submits that a review of the Licensing Board's disposition of the training issue does not warrant any corrective action by the Appeal Board. Accord-ingly, the Appeal Board should reject Inmates' and AWPP's arguments on the training issue (Inmates Brief at 21-25; AWPP Notice of Appeal at 1-3) and affirm the result reached by the Board below.

In its fourth Partial Decision, the Licensing Board determined that it had reasonable assurance that training will be offered and accepted by bus and ambulance providers. 22 NRC 108. Further, the Board found, based on the record, that the training to be provided by the Pennsylvania Emergency Management Agency (PEHA) is as comprehensive as the training offered to the i

school bus drivers. Id. These determinations by the Licensing Board were

-58/ See the " Proposed Revised Contentions Of The Graterford inmates With Regard To The Radiological Emergency Response Plan", dated May 13, 1985 at 17-19.

59/ NRC Staff Response To Graterford Prisoners Proposed Contentions (April 5, 1985) at 19.

L__

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based on substantial evidence of record and the Inmates and AWPP have failed to demonstrate otherwise.

In' challenging the Licensing Board's reasonable assurance finding on the training issue, the inmates assert that the RERP for Graterford fails to provide " reasonable assurance that civilian personnel involved in the plan will be suf ficiently trained so as to carry out their assigned responsibili-ties in the event of a nuclear emergency at the Limerick Generating Station."

Inmates Brief at 21. AWPP raises essentially the same argument. AWPP Notice of Appeal at 1-2. Specifically, they argue that PEMA and FEMA have failed to meet their burden of providing reasonable assurance that radiological 1

emergency response training will be received by civilian bus and ambulance I drivers b ecause b (1) there has been no response to PEMA's April 4, 1985 letter to bus providers offering training, (2) their expert, Major John Case, testified that a need exists for financial incentives to encourage civilian bus drivers to take the training offered, and (3) NUREG-0654,.11.0. calls for an assurance that training will in fact be given. Inmates Brief at 21-25; AWPP Notice of Appeal at 2. However, these arguments are not well founded.

At the outset, the Staff observes that the issue the inmates have raised on appeal, i.e., whether the civilian bus drivers and ambulance will infactreceivetraining(InmatesBriefat 21-22,24), was not a part of the training issue admitted for litigation. 53 , Order Admitting Certain Re-60/ The Inmates' reliance on the Big Rock case (Consumers Power Company

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(Big Rock Point Plant), LBP-82-77, 16 NRC 1096 (1982)) for the prop-osition that.PEMA and FEMA have the burden of proving that such reasonable assurance exists is misplaced. The Licensing Board in Big Rock made clear that the Applicant, not FEMA, has the burden of proof on such an issue. See B_iL oe.k,R 16 NRC 1099.

vised Contentions Of The Graterford Inmates, Appendix at 1-2 (June 12,1985).

A careful review of the training issue as admitted by the Licensing Board and as ' proposed by the Inmates clearly shows that the focus of the concern was (1) whether training would be offered, and (2) whether the training would be as comprehensive as the training offered to school bus drivers.

Id; see also, Proposed Revised Contentions Of The Graterford Inmates With Regard To The Radiological Emergency Response Plan (May 13, 1985) at 6-8.

The Inmates neither challenged nor objected below to the Licensing Board's decision admitting the training issue as proposed by the Inmates nor have they done so on appeal. Furthermore, they made no attempt to have the con-tention amended. Consequently, the Appeal Board should reject this issue on appeal as an untimely and impermissible attempt to revise the admitted contention as it relates to training.

Nevertheless, the Staff submits that the Graterford Inmates issue on appeal amounts to a. challenge to the Licensing Board's finding of reasonable assurance that training will be offered and accepted by bus and ambulance drivers (See, 22 NRC 108). This Board finding was amply supported by the record developed in this proceeding. The record shows that on April 4, 1985, Mr. Donald Taylor, Director of Training and Education for PEMA, which is the agency responsible for training the drivers, wrote each of the bus companies who would transport Graterford prisoners during an evacuation and offered dosimetry and decontamination training at no expense to drivers who would be involved. 22 NRC 104-105. The Licensing Board recognized that no responses had been received from the bus companies. Id. However, the record !

shows that Mr. Taylor had committed to visit personally each of the bus l companies and ambulance companies in July or August of 1985 to' urge them to

\

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take a'dvantage of this training. [d. Further, ambulance providers were to be offered training in the same manner as bus companies. Id. at 105. More-over, any training sessions conducted for bus and ambulance drivers will be scheduled in a place and at a time convenient to the drivers. Id. All of this evidence of record was uncontradicted. Additionally, Mr. Taylor testi-fied that based on his experience with other ambulance drivers that they would likely accept the training. Taylor, Tr. 20,868. Thus, Inmates' argument that there is no reasonable assurance that training will occur because of a lack of response to the April 4,1985 letter is not supported by the record.

With respect to Inmates' contention that there is no reasonable assur-ance that training will occur because their expert, Major John Case, testi-fied that there is a need for financial incentives to encourage bus drivers to take the training offered (Inmates Brief at 22), the record demonstrates ,

that the Licensing Board did not commit error in failing to rely on that testimony as precluding a finding of reasonable assurance. The Board di-rectly addressed and evaluated Major Case's testimony on financial incentives in the context of the whole record. First, the Licensing Board correctly noted that notwithstanding Major Case's belief that incentives should be offered to civiliar, bus drivers, he expressed no basis for believing that '

civilian bus drivers would not accept training. 22 NRC 106. This finding was clearly supported by the record. See Case Testimony, ff. Tr. 20,930 at 5; Case Deposition, ff. Tr. 20,930 at 43-44; Case, Tr. 20,939; Tr. 20,951.

Second, as the Board correctly observed, the record shows that there is nothing in NUREG-0654/ FEMA-Rep.-1, Rev. I that requires that financial in-centives be provided to anyone receiving training. 22 NRC 107. Moreover, l the Board was confronted with the testimony of PEMA's Director of Training j

1

. . 1 j

and Education that he does not believe the bus and ambulance drivers will not accept training because of the absence of financial incentives. Id. In addition, Mr. Taylor testified that they have a process for addressing reim-bursement of bus company employees should financial incentives become an issue. Taylor, Tr. 20,863-64. Confronted with such a record, the Staff submits that the Licensing Board was correct in finding reasonable assurance that training would be accepted given the absence of any reliable and material evidence demonstrating the need for such financial incentives in this case.

Inmates also contend that NUREG-0654, I1.0. calls for an assurance that training will in fact be given. Inmates Brief at 23, 25. NUREG-0654, FEMA-REP-1, Rev. 1, 11.0. (November 1980) provides: " Radiological emergency response training is provided to those who may be called on to assist in an emergency." There is no dispute that training had not taken place prior to 4 the evidentiary hearing. While the issue of compliance with this provision of NUREG-0654 was not a part of the admitted contention in this case, and therefore was not directly at issue, the record establishes, nevertheless, that there is reasonable assurance that training will be given to the bus and ambulance drivers. As noted earlier, the training is being offered at no expense to the drivers and will be scheduled in a place and at a time convenient to the drivers. 22 NRC 104-05. Furthermore, based on the fact that (1) the offered training has been provided at other sites in Pennsyl-t vania, (2) the information provided by PEMA to FEMA on how training will be offered to the drivers supporting the evacuation of the SCIG, which included the plan of instruction, and (3) the assurances of PEMA and Mr. Taylor that personal contact will be made with the bus and ambulance companies, FEMA testified that it determined that there is reasonable assurance that radio-

logical emergency response training will be given to these drivers. Kinard, Tr. 20,997; Asher, Tr. 21,003-04; 22 NRC 107-08. The factual bases for FEMA's' determination were uncontradicted by the evidence of record. Conse-quently, the record in this proceeding adequately supports the assurance called for by NUREG-0654, 11.0. That assurance has not been undermined, as suggested by Inmates (Inmates Brief at 24-25), by Mr. Taylor's testimony that the bus and ambulance drivers' ability to function during and evacua-tion would not be " lessened" if the drivers did not have training. Taylor, Tr. 20,874. This testimony is consistent with the record developed in this case. In FEMA's judgment, as experts in emergency planning, emergency re-sponse training should be tailored to the individual's expected duty in respending to an emergency. Kinard, Tr. 21,000; 22 NRC 106. Both PEMA and FEMA understood that the bus and ambulance dri. vers' role is limited to driv-ing the bus or ambulance during an evacuation of Graterford. 22 NRC 106.

. Thus, the FEMA witnesses also agreed that drivers could perform their func-tion witnout training. Id. at 107. Furthennore, the record establishcd that there is no necessity for training in inmate custody and control since the Department of Corrections will provide the staff necessary to ensure control i of the inmates. I_d. at 106. This evidence was undisputed. Consequently, there is no probative evidence of record that supports Inmates' argument that fir. Taylor will not pursue his professional commitment to personally contact the bus companies to encourage them to participate in the training to be provided by PEMA simply because the drivers' ability to function is not impaired without training.

Moreover, this record demonstrates, based on expert testimony, that whether the drivers receive training is not a " serious safety" issue that I

warranted the exercise of the Licensing Board's sua sponte authority (see 10 C.F.R. Q 2.760a) since the record clearly established that their ability ,

tofunc'tiobwillnotbeimpairedwithoutthetraining. As the Licensing Board correctly stated

"

. . .'the drivers would not be expected to do more than what they do in carrying out their routine work assignments, i.e.,

drive a bus or ambulance [ citation omitted]". 22 NRC 107. Furthermore, the record shows that if necessary, drivers could be quickly instructed in the use of dosimetry at the time of an actual emergency before carrying out their assignments. Id. at 108.

Finally, contrary to AWPP's general claims regarding the nature of training, the Licensing Board found reasonable assurance that the training to be offered by PEMA is as comprehensive as the training offered to school bus drivers based on the uncontradicted expert testimony of PEMA's Director of Training and Education. See, 22 NRC 105-06, 108.

Accordingly, the Appeal Board should reject the appellants' arguments about training as being without merit.

i

, C. There Is Reasonable Assurance That The Methodology Of The Estimated Time Of Evacuation For The Graterford Prison Is Reliable In arguing that there is no reasonable assurance that the methodology utilized to compile the estimated time of evacuation (ETE) is sufficiently reliable to be used as a decision making tool for a radiological emergency, the Inmates raise three principal objections. Inmates' Brief at 25-26.

First, Inmates contend that there is a prima facie case that each ETE is unreliable since discrepancies exist within three different time estimates developed for SCIG. Id. at 26. Second, they allege that the methodology of the ETE is objectionable because of potential hazards that will confront the

, . - _ . _ . _ . . - - . _ . - - - _ - .. ._ .- _= , -. -

4

" incoming and outgoing transportation and manpower mobilization vehicles" in carrying out their assigned responsibilities. Id. Third, they allege they are concerned about "the inmates' response to an emergency within the prison walls and what, if any, training they will receive prior to the granting of a full power license. Id.

i j 1. Discrepancies In Evacuation Time Estimates In support of its argument that discrepancies between the ETE renders them unreliable, Inmates note (1) the Licensing Board's rejection of an exhibit proffered by Inmates (Graterford Exhibit 1) showing an ETE for SCIG of five hours and thirty minutes during daylight hours, (2) the lack of coordination between Commissioner of Department of Corrections (Glen Jeffes),

who developed an ETE of six-to-ten hours, and Superintendent of SCIG (Charles Zimmerman), who developed an ETE of eight-to-ten hours, and (3) the testimony of Major John Case that the revised ETE of eight-to-ten hours is based on ideal conditions and that overall ETE could be twelve-to-twenty hours.

Inmates' Brief at 27.

The record demonstrates that Inmates' argument is unsound for several reasons and thus should be rejected. With respect to the Board's rejection of Graterford Exhibit 1, the Staff submits that the Inmates' have failed to show that the Board's ruling was incorrect. Under the Commis- 1 i

sion's rules of practice governing the admissibility of evidence, "[o]nly relevant, material, and reliable evidence which is not unduly repetitions will be admitted * * *". See 10 C.F.R. 5 2.743(c). The Board properly rejected the admission of Graterford Exhibit 1 as not relevant to the issues to be litigated since the document contained an ETE that had been prepared i

over four years ago, which was prior to the development of the Emergency l

Planning Zone (EPZ), and entirely new ETE's had been developed. Tr. 20,772-77; 20,891. The Inmates fail to explain on appeal how this ruling was in error. 'The Appeal Board should reject this reason since it does not provide support for the Inmates argument. Moreover, based on the record of this proceeding, the Licensing Board ruling was consistent with the Comission's rule governing the admissibility of evidence. See, 10 C.F.R. 5 2.743.

Next, the Inmates have failed to explain how any lack of coordina-tion between Commissioner Jeffes development of an ETE of six-to-ten hours and Superintendent Zimmerman's development of a revised ETE of eight-to-ten hours shows that the current ETE for Graterford is unreliable. Inmates' Brief at 27. The mere allegation that it is unreliable because of the lack of such coordination does not make the revised ETE for Graterford unreliable.

Several months prior to the hearing, Commissioner Jeffes developed an ETE of six-to-ten hours for the SCIG. Zimmerman, ff. Tr. 20,763 at 2; Tr. 20,678.

Subsequently, Superintendent Zimmerman and the Bureau of Corrections undertook an independent analysis of the components and time needed to complete an evacuation of Grateford. 22 NRC 110. In doing this, they worked with staff at Graterferd on site and developed an ETE based on past experiences as to how long it takes to secure, prepare for evacuation and ultimately evacuate the institution. Zimmerman, ff. Tr. 20,763 at 2. As the record shows, this analysis resulted in a revised ETE for Graterford of eight-to-ten hour which is within the range of and consistent with the six-to-ter, hour ETE developed by Commissioner Jeffes. I d_. Contrary to Inmates' claims (Inmates' Brief at 27), Superintendent Zimmerman testified that af ter developing the eight-to-ten hour ETE he reviewed it with Commissioner Jeffes. Zimmennan, ff.

Tr. 20,763 at 3. For these reasons, the Appeal Board should reject as with-

E 1 .

i .

out merit Inmates' claim that the revised ETE of eight-to-ten hours is dnre-1 liable because of a lack of coordination between Commissioner Jeffes and

. ~.

Superintendent Zimmerman.

Additionally, Inmates reliance on Major John Case's testimony that a~

the revised ETE of eight-to-ten hours is based on ideal conditions and that the evacuation could easily take twelve-to-twenty hours (Inmates Brief at 27) does not support their argument that the ETE for Graterford is unre-liable because of alleged discrepancies. As the Licensing Board found, Major John Case acknowledged that it is possible to achieve the tasks iden-tified in the revised ETE for Graterford within the eight-to-ten hour time frame. 22 NRC 115. Furthermore, based on a careful analysis of the assump-tions and methodology underlying the eight-to-ten hour ETE for Graterford, J ,

FEMA's expert in traffic engineering and transportation planning concluded that that ETE is reasonable and conservative. Id. More importantly, the record specifically.shows that (1) the eight-to-ten hour ETE was developed i

based, among other things, on " previous experience with other emergencies",

l.

and (2) specifically accounted for potential interference between the ve-hicles used for evacuating Graterford and the evacuating traffic of the general public. Zimmerman, ff. Tr. 20,763 at 3; Tr. 20,803-04; Tr. 20,815; 1

Tr. 20,844-45, 22 NRC 110, 114. This was undisputed. Thus, the revised ETE is not based on ideal conditions. Consequently, the record establishes that I Inmates'argumentisnotpersuasive.51/

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61/ Moreover, Inmates provide no explanation of how their reference to

the status of Shippack Township's lack of approvci of an emergency (F0OTNOTE CONTINUED ON NEXT PAGE) 1, J

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t 2. Potential Hazards Confronting Vehicles Used In Evacuation And Manpower Mobilization i - With respect to its argument that the ETE methodology is unreliable, Inmates assert that there are "many potential hazards that incoming and outgoing transportation and manpower mobilization vehicles will be confronted with when attempting to carry out their assigned responsibilities". Inmates 3 Brief at 26. In support of this argument, the Inmates challenge the relia-

! bility of vehicle arrival time of two-to-four hours derived by Mr. Zimerman i citing the deposition testimony of Mr. Morris who opined that "a reliable ETE would take into account records of accidents on the roadways, the potential ,

i for panic, meteorological conditions of the region, and the potential for a corridor closing due to a radioactive release and prevailing winds." Inmates 1

Brief at 28-29.

I Superintendent Zimerman testified that the two-to-four hour vehicle l arrival time estimate is based on actual experience transporting inmates involving regularly' travelled routes under all types of weather and traffic i

conditions. Zimerhan, Tr. 20,802-03; Tr. 20,845-46; 22 NRC 111. Further, i i he testified that the vehicle arrival time estimate of four-to-six hours for i

adverse conditions includes heavy snow. Zimerman, Tr. 20,801; Tr. 20,808.

Thus, Superintendent Zimerman's estimate was based on actual site specific conditions. Moreover, contrary to Inmates' suggestion, not all vehicles (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) response plan relates to the Inmates argument on appeal. Nonethe- '

less, the record establishes that the development of the Graterford plan was coordinated with PEMA to ensure that routes were selected to avoid having evacuating traffic of the public interfering with vehi-cles travelling to Graterford. 22 NRC 114.

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would be coming from a distance of 190 miles. Inmates Brief at 28-29; i Zimmerman, Tr. 20,801-02. The farthest distance any vehicle would have to travel'isk90 miles. Zimerman, ff. Tr. 20,763 at 8; Tr. 20,801-02. Fur-i thermore, contrary to inmates' claim (Inmates Brief at 28), Superintendent i

Zimerman testified, as the Licensing Board found, that the revised ETE for

! Graterford had accounted for potential interference between the vehicles

! used for evacuating Graterford and the evacuating traffic of tha general public. Zimerman, Tr. 20,803-804; Tr. 20,815; Tr. 20,844 645; 22 NRC 114.

f The Licensing Board was entirely correct in not relying upon the testimony of Mr. Morris concerning worst case situations since it lacked probative value. As the Board noted, Mr. Morris stated he was not familiar with NUREG-0654 or any other emergency planning regulations for nuclear power plants, and he did not think it necessary. 22 NRC 115. However, NUREG-0654, Appendix 4 is the Comission's guidance which governs the preparation of evacuation time estimates for special facilities such as the SCIG. 22 NRC 109; Urbanik, Tr. 20,980. Moreover, as the Licensing Board stated:

Dr. Thoma's Urbanik one of the principal authors of Appendix 4, NUREG-0654, explained that Appendix 4, NUREG-0654, did not intend evacuation time estimates for special facilities to include analysis of worst-l case scenarios (Urbanik, Tr. 20,976,20,979-80). Rather

Appendix 4, NUREG-0654, intended such estimates for l l special facilities to provide some data points from which decisionmakers can make decisions (id.). Further, the intent of Appendix 4, NUREG-0654, is Tor evacuation l time estimates to present representative evacuation

! times for fair and adverse weather conditions which can be used b decisionmakers (Urbanik, Tr. 20,976-77, 20,979-80 .

The primary purpose of evacuation time estimates is to serve as a tool in the protective action decisionmaking process by providing a framework within which decision- 1 makers can incorporate input on evacuation characteris- i l tics and traffic flows at the time of an actual emergency.

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As such, pursuant to NUREG-0654, time estimates are in-tended 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.

Urbanik, Tr. 20,979-80.

22 NRC 109. Thus, the record demonstrates that the Commission's guidance for implementing its emergency planning regulations does not contemplate the inclusion of of the types of conditions identified by Mr. Morris that can result in inappropriate decision making. Therefore, the Board properly ruled that Mr. Morris' testimony lacked probative value on the issue in this case given his stated unfamiliarity with the Commission's requirements and

guidance, and belief that a consideration of such is unnecessary (Morris Depositicn, ff. Tr. 21,013 at 38-39, 49).

i AWPP argues that the consideration of " adverse weather" under NUREG-0654, Appendix 4 did not include a 1985 winter involving blizzard blocked roads in the Limerick area so that NUREG-0654 estimates are neither representative nor reasonable. AWPP Notice of Appeal at 3-4. Given that the record establis'hes through undisputed expert testimony that such a con-dition is not an appropriate matter to be considered in developing an ETE under the Commission's emergency planning regulations and guidance (22 NRC 109), AWPP's argument amounts to a challenge to the application of a Commission's regulation. As such AWPP has failed to make the showing re-quired under 10 C.F.R. 6 2.758. Furthermore, AWPP has failed to show, based on the record of this proceeding, that the methodology used in the revised ETE for Graterford either does not comply with the Commission's regulations or guidance, or was otherwise improperly developed.

f

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Inmates also argue that there is no reasonable assurance that the manpower can be mobilized within the one-to-two hour time frame estimated by Superin endent Zimmerman since the call-up system to be used in activating the manpower has never been tested during an emergency involving the surrounding community and the system relies on commercial telephone lines that may not be able to respond. Inmates Brief at 29-30. For support of their argument, Inmates cite the deposition testimony of Mr.

Morris concerning whether the telephone system would respond and the prior testimony of a township supervisor, Mr. Brown, concerning a dial tone delay during the Hurricane Agnes floods in 1972. I_d. at 30. The Staff submits that the Inmates' arguments are unsound for several reasons. There is no proscription against the use of commercial telephone lines for a call-up system contained in either the Commission's or FEMA's emergency planning requirements or guidance. See, 10 C.F.R. i 50.47; 10 C.F.R. Part 50, Appendix E; NUREG-0654, FEMA-REP-1, Rev. 1 (November 1980); 44 C.F.R.

6 350. Moreover, the deposition testimony of Mr. Morris about whether the telephone systems are adequate is of very little evidentiary value since it lacked any basis and amounted to speculation on his part. Morris Deposition, ff. Tr. 21,013 at 60, 80-81. Furthermore, the Licensing Board specifically addressed and resolved the concern raised by Mr. Brown in the Third Partial Initial Decision. See, P_hiladelphia Electric Co. (Limerick Generating Station, Units 1 and 2), LBP-85-14, 21 NRC 1219, 1387-88 (1985).

In addition, the Staff submits that the record amply supports the Board's finding that the methodology for the revised ETE of eight-to-ten hours was based on reasonable assumptions as it relates to the arrival time of off-duty personnel. See, 22 NRC 110-113. Based on the testimony of

Superintendent Zimmerman, the Board correctly found that the estimates for arrival of off-duty personnel of one-to-two hours maximum under average conditions. 22 NRC 111. This estimate was based upon (1) SCIG experience over the past several years involving emergency situations showing that off-duty personnel will arrive within one-to-two hours after notification; (2) Superintendent Zimerman's experience in the development of emergency plan at the State Correctional Institutions at Huntington, Camp Hill, and the State Regional Correctional Facility at Mercer; and (3) tests conducted twice a year of Graterford's nonradiological emergency plan that require demonstration of call-up system, which establish that off-duty personnel will arrive within one-to-two hours. 22 NRC 111-113. Also, Superintendent Zimerman testified that in past emergencies involving the call-up system off-duty personnel began arriving imediately because of their various loca-tions, including some within a mile of Graterford. Zimerman, Tr. 20,840.

The record shows that not all off-duty personnel are required to imolement the SCIG evacuation plan. 22 NRC 113. Indeed, Superintendent Zimerman testified that the majority of SCIG personnel needed for an evacuation of Graterford would already be on site, depending on the time of day. Zimerman, Tr. 20,840. A total of approximately 300 SCIG personnel are on site during the working day. Id. Furthermore, not all off-duty personnel are required to implec.ent the SCIG evacuation plan. 22 NRC 113. The maximum number of SCIG personnel that might have to be called in for an evacuation of Grater-ford is approximately 300 people. Zimerman, Tr. 20,841-42; 22 NRC 113.

Based on these reasons, the Appeal Board should reject Inmates' argument regarding the manpower mobilization as without merit. The record establishes that the Licensing Board had ample support for its finding of a

i I -

l .  !

i one-to-two hour estimated arrival time for off-duty personnel under average  !

i j conditions.  :

} 3. Inmate Response And Training Under the revised ETE of eight-to-10 hours, Superintendent l

I Zimmerman, based on previous experience with other emergencies and the day-t l

to-day operation of the Graterford prison, estimated that it would take l i l

! approximately 30 minutes to lockdown the institution. Zimmerman Testimony, j l ff. Tr. 20,763 at 3. Inmates argue that the lockdown time estimate of 30

minutes is unreliable. Inmates Brief at 31. In support of their argument.

Inmates' point to three prior incidents at Graterford where the lockdown f times amounted to hours and Major Case's testimony that without proper train-

) ing and orientation a lockdown could take up to four hours. Further, Inmates  !

i

! argue that Superintendent Zimmerman's proposed addendum to the Inmate Handbook j is inadequate based on the illiteracy rate of the prison population, the number j of Spanish speaking; inmates, and Major Case's testimony that it would be i

! good policy to have, inmates participate in a drill to test preparedness.  !

Inmates Brief at 32. The Staff submits that the record in this proceeding

demonstrates that Inmates' arguments are not well founded.

With respect to the three incidents involving lockdown tire amount-l ing to hours, the Licensing Board specifically addressed this evidence. 22 4

i NRC 113. As the Board correctly explained: i The. evidence showed, however, that those longer time-  !

. frames for lockdowns had occurred primarily during power s outages before the installation and use of an emergency lighting system in 1984 [citationomitted). Since that t time, partial power losses have occurred, but have never ,

! interfered with prison operations, including lockdowns, l which have never taken more than 30 minutes [ citation >

omitted).

[

i i

Id. In fact, Superintendent Zimmerman testified that since installation of the emergency lighting system in 1984, the SCIG has conducted lockdowns during power f'ailures within 15 minutes. Zimmerman, Tr. 20,849-50. Furthermore, Superintendent Zimmerman testified that an addendum to the Inmate Handbook

~

explaining what to do to assist in the evacuation will be issued to inmates, i

Zimmerman Testimony, ff. Tr. 20,763 at 4; Tr. 20,834. Based on SCIG's past experience, Superintendent Zimmerman also testified that inmates cooperate ,

with the Graterford staff when the inmates know it is for their own safety.

Zimmerman Testimony, ff. Tr. 20,763 at 3. Inmates' expert witness, Major Case, agreed that this has been his experience in dealing with inmates.

Case, Tr. 20,938. After becoming aware of this testimony by Superintendent Zimmerman concerning the prior incidents and the addendum to the Inmate

Handbook, Major Case changed his testimony about the lockdown time estimate i

of 30 minutes being unrealistic, and testified that it is realistic and can be achieved. Case, Tr. 20,945-46.

]

With regard to Inmates' alleged inadequacy of the addendum to the 1

Inmate Handbook (Inmates Brief at 32), the record does not support such a pro-

position. Indeed, Inmates own expert testified, after hearing Superintendent Zimmerman's testimony describing the addendum, that the addendum is a "very

]

goed addition to the handbook". Case, Tr. 20,938. Furthermore, Inmates' statistics regarding the illiteracy rate of the Graterford prison population i and the Spanish speaking population are not a part of the evidentiary record of this proceeding. Consequently, the Appeal Board should reject Inmates' i

! attempt to bolster its argument on appeal through extra-record material.

i

]

Furthermore, Inmates' argument that inmate drills are appropriate to test I

to test preparedness as a matter of good policy does not render the 30 minute l

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, lockdown time estimate inadequate. Moreover, the Commission's emergency planning regulations specifically do not require such public participation.

See 10 C.F.R. Part 50, Appendix E.IV.F.1. Thus, Inmates' argument amounts to a challenge to the Commission's regulations and must satisfy the requirements of 10 C.F.R. 6 2.758, which they have failed to do.

Finally, Inmates' argue that the methodology used in the ETE for Graterford is inadequate because (1) the prison population is 50 inmates l 1

greater than the prison population number used in the ETE, and (2) SCIG has

plans for constructing an additional 500 cell facility by 1988, which I

suggests an ir. crease in the Graterford prison population. Inmates Brief at 32. With respect to the approximately 50 additional inmates, Superinten-

) dent Zimmerman testified that that would not effect the ETE of eight-to-ten hours because it would result in one additional vehicle. Zimmerman, Tr. 20,837-38. Superintendent Zimmerman also explained that the prison popu-j lation estimate for 5CIG would be about the same as the current figure or

, , 1 "maybe a little more" since they are atter.;pting to keep the Graterford popu-  ;

i lation at minimal growth levels with the support of the Department of Cor-

{ rectiors and the Commissioner of Corrections. Zimmerman, Tr. 20,830-31.

Inmates have provided no evidence showing that Superintendent Zimmerman's ,

4 testimony that further increases in the SCIG population are not expected is incorrect. In addition, Superintendent Zimmerman testified that any growth in the SCIG population would be met at the same time with growth in SCIG staff and support facilities. Zimmerman, Tr. 20,831; 22 NRC 115. Thus, the Inmates have not demonstrated that the revised ETE of eight-to-ten hours is ir. adequate due to population increases at Graterford.

i b

- 44 Accordingly, based on the foregoing reasons, the Appeal Board P should reject the Inmates' arguments concerning the revised ETE for Graterford because'thhrecordestablishesthatthereisreasonableassurancethatthe methodology of the Graterford ETE is reliable.

D. The Graterford Inmates Received A Fair And Impartial Hearing Inmates assert that they were denied a fair and impartial hearing by the Licensing Board. Inmates Brief at 33. In support of this assertion, Inmates cite several unfavorable rulings by the Licensing Board. M. at 33-35. However, Inmates' argument is unconvincing. It is well established that the mere fact that a Licensing Board issued a number of unfavorable or even incorrect rulings concerning a party is not evidence of bias. See, Northern Indiana Public Service Ccmpany (Bailey Generating Station, Nuclear-1),

8AEC244,246(1974). Moreover, each of the matters complained of by the Inmates were addressed by either the Comission or the Appeal Board and corrective actions yere taken to protect the Inmates hearing rights. See, Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),

CLI-85-11, 21 NRC 1585 (1985); Limerick, ALAB-806, 21 NRC 1183 (1985);

I Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), i ALAB-809,21NRC1605(1985). Indeed the Inmates acknowledge as much in their brief. Inmates Brief at 33-35. Consequently, the Inmates have failed to denonstrate that the rulings of concern resulted in prejudice to its hearing rights. '

Inmates' claim that the Board denied them a fair hearing because it issued a subpoena for a potential witness, Mr. Morris, is without merit.

The Licer ing Board issued the subpoena for the reasons set forth in counsel

, r i

i

s

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for Applicant's June 28, 1985 letter to the Board. More importantly, the full deposition of Mr. Morris was admitted in evidence in this proceeding.

\ ~ .

See, Tr. 21,013. Furthennore, the Licensing Board specifically addressed the substantive concerns raised by Mr. Morris. See, 22 NRC 115. Thus, the Inmates have not shown how the issuance of a subpoena by the Licensing Board denied them a fair hearing. In addition Inmates' claim that the Licensing Board solicited an objection from the Commonwealth's counsel is not supported by the record. See, Tr. 20,809-811.

Finally, Inmates claim that the expedited hearing schedule, including i

the filing of prefiled testimony and proposed findings of fact, is further evidence of the lack of impartiality by the Licensing Board. Inmates Brief at 36-37. These claims by Inmates are without merit since the record estab-lishes that the Inmates agreed to this expedited schedule prior to the be-l ginning of discovery. See, Tr. 20,722-747. Moreover, the Inmates have

. failed to demonstrate that the Licensing Board has abused the " broad discre-

tion to shppe the course of the proceedings" delegated to it by regulation.

i

See,10 C.F.R 6 2.718; Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-459, 7 NRC 179, 188 (1978).

i As the Appeal Board stated: "[a] party is entitled to a fair hearing, not a l perfect one . . . ." Id. at 189. Furthermore, the Inmates have failed to move any member of the Licensing Board to disqualify himself because of this j alleged bias or partiality as required under the Commission's rules of prac-I tice. See, 10 C.F.R. 5 2.704. Thus, this matter is not properly before the i Appeal Board. In addition, the Appeal Board has long ago held that a par- ,

l ty's failure to raise a question of bias of a Licensing Board as soon as the information becomes unavailable giving rise to such a claim amounts to a ,

l 1

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waiver of the disqualification objection. See, Bailey. 8 AEC 244, 246-47.

There the Appeal Board stated: "It is too late to wait until appeal before raising'suhhcontentions....". Id. at 247.

Accordingly, Inmates' arguments that it did not receive a fair and im-partial hearing are without merit and should be rejected by the Appeal Board.

E. AWPP Has Standing To Appeal The Fourth Partial Initial Decision In ALAB-814, the Appeal Board stated that it expected the parties to address Anthony /F0E's right to appeal in their briefs on the merits of the l

l Fourth PID since it appeared that Anthony /F0E were not participants in the  !

l Graterford proceeding. Philadelphia Electric Company,(Limerick Generating Station, Units 1 and 2), ALAB-814, NRC (slip op. at 7 fn. 5),

(August 13,1985). However, as noted earlier, Anthony /F0E did not file a brief in support of its notice of appeal. Nevertheless, AWPP, who did file a brief in support of its notice of appeal, did not participate in the I

Graterford proceedipg. Thus, the AWPP's appeal appears to raise the same i

issue that the Appeal Board expected parties to address for Anthony /F0E.

l Hence, the Staff has addressed below the question of AWPP's right to appeal. i

, Although AKPP was admitted as a party to the Limerick proceeding on several contentions several years ago AWPP was not admitted as a party with respect to the emergency planning issues litigated in this case. See, Limerick, l

Third Partial. Initial Decision, LBP-85-14, 21 NRC 1219, 1226-27 (1985).  !

Furthermore, the record clearly establishes and there is no dispute that AWPP did not participate in the litigation of either contention concerning l emergency planning and preparedness for Graterford. However, in Prairic ,

l l Island, ALAB-244, the App?al. Board specifically rejected an argument that an I i l

- , - < - - , , .a.-- . .-n. - ,-,-. ,---e m - ~, , . - - - - - . y,n-, ew-- e.,m. -

.wn,e-n.-- - - , -,--n..-- -za

4 9 A j l i appellant must show that he has sustained "some discernible injury" as a consequence of the Licensing Board rulings under ati:ack. Northern States i - .

Power Company (Prairie Island Nuclear Generating Plaat, Units 1 and 2),

ALAB-244, 8 AEC 857, 863 n 9 (1974), reconsideration denied, ALAB-252, 8 I AEC 1175, aff'd., CLI-75-1, 1 NRC 1 (1975). In rejecting that argument the Appeal Board stated:

We do not agree, however, that such injury can be established by an intervenor only with regard to rulings on his conten-

] tions. Irrespective of who raised the issue, an intervenor might be aggrieved, e_.3., by a finding contrary to the weight of the evidence, that an applicant was technically qualified to operate a nuclear plant - at least if that finding (in conjunction with others) were to lead to the licensing of the

facility. And the same can be said of any other findings which contributed to an ultimate result different from that

advocated by the intervenor, t

Id. This is essentially the same situation that confronts this Appeal Board i

since the Fourth Partial Initial Decision was the actual decision that au- ,

7 thorized full power cperation of Limerick Generating Station, Unit 1, which is an ultimate result that AWPP had opposed. In ALAB-244, the Appeal Board held that:

i

. . . in placing certain specified issues into controversy ,

, himself, an intervenor should not be taken as waiving the

, right to insist that all other issues coming before the Board (within the ambit of his interest as established by his inter-I vention petition) be decided in conformity with the evidence of record and applicable principles of law - no matter what the genesis of those issues or the source of the evidence. l Id. at 863. Accordingly, the Staff is of the view that AWPP has the right to appeal. However, AWPP's appeal should be rejected for failure to file proposed findings of fact and conclusions after having had an opportunity to i do so. See, Memorandum and Order - Graterford Contentions and Hearing Sche-dule (slip op.) (June 18, 1985); Tr. 21,015-16. This is precisely the result 4

4 I

4 6

reached by the Appeal Board in Prairie Island, ALAB-244, when confronted with this situation. See, Prairie Island, 8 AEC 864. Nevertheless, the Staffw'oulbarguethatregardlessoftheAppealBoard'sdispositionofthis issue AWPP's appeal is without merit as we noted above.

IV. CONCLUSION Based on the foregoing reasons, the Appeal Board should reject the Graterford Inmates' and AWPP's appeals.

Respectfully submitted, Donald F. Hassell Counsel for NRC Staff Henry . Gurren Counsel for NRC Staff Dated at Bethesda, Maryland this 8th day of October,1985

l UNITED STATES OF AMERICA  ;

NUCLEAR REGULATORY COMMISSION

.BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD j In the Matter of )

)

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352

{ ) 50-353

(Limerick Generating Station, )

l Units 1 and 2) )

2 CERTIF_ICATE OF SERVICE I hereby certify that copies of "NRC STAFF BP,lEF IN RESPONSE TO GRATERFORD INMATES' AND AWPP'S APPEALS FROM THE LICENSING BOARD'S ORDER OF JUNE 12, 1985 (ANDTHEFOURTHPARTIALINITIAL DECISION" 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 i Regulatory Commission's internal mail system, this 8th day of October, 1985:

j- Helen F. Hoyt, Chairperson (2) Mr. Edward G. Bauer, Jr. i i Administrative Judge Vice President & General Counsel  !

Atomic Safety and Licensing Board Panel Philadelphia Electric Company i U.S. Nuclear Regulatory Commission 2301 Market Street 1

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 Wetterbahn

. U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555* Washington, D.C. 20006 1

i Dr. Jerry Harbour Mr. Marvin I. Lewis l

Administrative Judge 6504 Bradford Terrace i Atomic Safety and Licensing Board Panel Philadelphia, PA 19149 j U.S. Nuclear Regulatory Commission i Washington, D.C. 20555* Joseph H. White, III l 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003  !

t Air and Water' Pollution Patrol 61 Forest Avenue Ambler, PA 19002 Kathryn S. Lewis, Esq.

i .

1500 Municipal Services Bldg.  !

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

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

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 a'nd L'ocust 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. Sugannan, Esq.

Robert L. Anthony Sugannan, 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 horristown, 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 Commission Easton, PA 18042 Washington, D.C. 20555*

2 Atomic Safety and Licensing Appeal David Wersan I BoardPanel(8)

Consumer Advocate U.S. Nuclear Regulatory Commission 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 Comunity Legal Services, Inc.

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

/

ub '. v t

DonaN F. Hassell ~

< Counsel for NRC Staff

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