ML20133L955

Memorandum of Law Requesting Issuance of Stay of ASLB Fourth Partial Initial Decision LBP-85-25 Pending Resolution of Appeal Per 10CFR2.788.Certificate of Svc Encl

ML20133L955
Person / Time
Site:	Limerick
Issue date:	08/12/1985
From:	Love A GRATERFORD INMATES
To:	NRC COMMISSION (OCM)
Shared Package
ML20133L941	List: ML20133L938 ML20133L955
References
LBP-85-25, OL, NUDOCS 8508120784
Download: ML20133L955 (14)

Text

000 METED

,, UNITED STATES OF AMERICA US?tPC NUCLEAR REGULA'IORY COtt!ISSION T5 fib 12 N0'g fI COff4ISSIONERS: g ,q , e c ~ r '

• l -

! Nunzio J. Palladino, Chairman y Thcznas M. Roberts

i James K. Asselstine Frederick M. Bernthal

1) Lando W. Zech, Jr.

U N,In the flatter of NPilILADELPilIA ELECTRIC COMPANY  :

d 1(Limerick Generating Station, g,

!i Units 1 and 2)

I

Nos. 50-352 and 50-353 6 V I MEMORANDUt'l OF LAW l

LI. IttrRODUcrION g

The inmates of the State Correctional Institute at Gratorford, Pennsylvania, through their attorney, Angus R. Love, hereby request this lionorable Court to issue a stay of tho Atomic Safety and Licensing Board's Fourth Initial Partial Decision LBP-85-25, July 22, 1985. On July 25, 1985 tho ll inmates filed a Notico of Appeal of the Licensing Board's decision with the Atomic Safety and Licensing Appeal Board. In their Notico of Appeal they requented that all proceedings bo stayed pending resolution of the appeal. The

, ' appeal filed by the inmates involves five bacon for contentions which woro

lrojected by the Atomic Safety and Licensing Board in their order of June 12 i

1985 ontitled, Order Admitting Cortain Rovined Contentions of _the Gratorford

! $52 PDR

_. - __ _ _ . _ _ ~

l Inmates and Denying Others. The appeal also involves t.wo additional bases for l g the inmates' contention which were fully litigated during the week of July j15, 1985. The essence of the appeal contends that the five previously rejected

contentions should have been admitted, and that the two litigated and rejected

contentions were rejected contrary to the weight of the evidence presented at ,

.the hearings. The inmates further contended in their appeal that the Atomic

! Safety and Licensing Board failed to provide a fair and impartial tribunal as ,

.lmandatedby10CFR2.718. The Appeal Board sumarily denied the request for a

' stay in its order of August 1,1985. The. inmates now pursue an appeal of the y .

, denial of the stay pursuant to 10 CFR 2.762.

hII. A STAY OF 'INE EDURIH PARTIAL INITIAL DECISION SHOULD BE GRANTED 0

h BECAUSE 'INE GRATEREORD INMATES HAVE SATISFIED 'IEE REQUIREMENTS OF d

10 CFR 2.788.

[

In order for a stay order to be issued by the Nuclear Regulatory Comission jthecriteriasetforthin10CFR2.788mustbesatisfied. The Graterford b

linmates' initial request for a stay to the Atomic Safety and Licensing Board l Lwas sumarily denied for failure to address the stay criteria of the previously imentioned regulation. The inmates hereby address the stay requirements of 10

,CFR 2.788 and request that a stay be issued. (See Public Service Com any of l Indiana (!!arble Hill Nuclear Generating Station, Units 1 and 2), ALAB-493, 8 l P l

(NaC253,270 through 271 (1978).) An intervenor may file an application for a

, stay of the offectiveness of a decision within ten days of service of said i

I Idecision. (See 10 CFR 2.788(a).) The inmates were notified of the Fourth l L I (Initial Partial Decision on July 22, 1985. On July 25, 1985, the inmates filed l

?

~2"

a Notice of Appeal and a Request for a Stay before the Atomic Safety and i

] Licensing Board, thereby satisfying the ten day requirement of both 10 CFR 2.788 a

land 10 CFR 2.762. On August 1,1985, the Atomic Safety and Licensing Appeal Board issued an order sumarily denying the inmates' request for a stay of the lFourth Partial Initial Decision. The inmates hereby request the Nuclear

Regulatory Comission to review the denial of the stay pursuant to their powers under 10 CFR 2.762. The inmates have thereby satisfied the initial time frame i

within which to appeal a stay order.

J In determining whether to grant or deny an application for a stay, the Comission will consider:

! 1. whether the moving party has made a strong showing that it is j likely to prevail on the merits;

2. whether the party will be irreparably injured unless a stay is granted;

3. whether the granting of a stay would harm other parties; and,

4. where the public interest lies.

(See 10 C.F.R. 2.788(e).)

The inmates contend that they meet the four above-mentioned criteria, warranting

< the issuance of a stay by the Nuclear Regulatory Comission.

A. The moving party has made a strong showing that it is likely to prevail on the merits.

The inmates filed a petition to intervene in the above-captioned matter jinSeptemberof1981. Said petition, af ter a supplemental filing, was granted I in June of 1982 as the Atomic Safety and Licensing Board accorded the inmates 9

1 intervenor status pursuant to 10 CFR 2.714. No further action took place until jDecember 14, 1984 when the Graterford inmates' attorney received the Radiological Emergency Response Plan for the State Correctional Institute at lqGraterford. Said plan had been " sanitized" and heavily censored. The plan was 27 pages in length and included approximately 50% deletions. On January 28, 0

]1985, the Atomic Safety and Licensing Board denied the inmates' request for

additional disclosure and ordered that their contentions be filed within fifteen

]

]daysofthatdate. The inmates' request for a stay was also denied at that

! time. The inmates then filed their contentions pursuant to the Board's order i

yand took a corresponding appeal to the Atomic Safety and Licensing Board with 0

prespecttotheissueoffurtherdisclosure. At the Appeal Board's suggestion, a I

compromise was worked out which enabled the inmates' attorney and their expert, l Major John Case, to review virtually the entire plan on March 18, 1985, under

,the aucpices of a protective order of the court. At that time, the inmates then sought to revise their previously filed contentions at a meeting held in i

Harrisburg on March 22, 1985 with all participants in attendance. The Licensing d

l; Board once again thwarced the inmates' efforts to raise safety considerations in L

this licensing proceeding by denying their right to restyle their contentions.

1

[ Shortly thereaf ter, the Licensing Board issued an order dismissing the fGraterford inmates from the proceeding. The inmates filed an appeal of their If

[ldismissal, which was reversed by the Atomic Safety and Licensing Appeal Board's ilorderofMay1,1985. Said decision ordered the inmates reinstated as intervenors and gave them until May 15, 1985 in which to file their proposed lrevisedcontentions. Once again, the Licensing Board side-stepped this issue by i

their granting of the applicant's Motion for an Exemption from the Requirements

!of 10 CFR 50.47(a) and (b) as the Relate to the Contentions of the Graterford jInmates. Thus, the inmates, having been involved in the proceeding for over

! three years, awaiting an opportunity to provide input into this inportant issue, i

! were once again met with a hostile Licensing Board who effectively thwarted 1

their input once again. The inmates appealed this Board's decision granting the j exemption and once again were successful in their efforts as the Nuclear Regulatory Commission refused to finalize the granting of an exemption and li ordered the Licensing Board to respect the hearing rights of the Graterford i

l ' inmates. (See Memorandum and Order of the Nuclear Regulatory Corm 11ssion, June 11,1985, CLI-85-11, and the Decision of the Atomic Safety and Licensing Appeal Board of June 17,1985 ALAB-809.) The inmates filed their revised contentions I

on May 15, 1985. On June 13, 1985, the Licensing Board admitted two of the l

eight contentions in its order entitled Admitting Certain Revised Contentions i

'of the Graterford Inmates and Denying Others. The inmates have filed an appeal i

,for five of the six rejected contentions and litigated the two admitted I

, contentions during hearings held on July 15, 1985. During those hearings, the inmates presented expert testimony from Major John Case, Field Director of the i

h

!  ; Pennsylvania Prison Society, and Robert L. Morris, a traffic control expert. It I

s the inmates' contention that the Licensing Board prematurely rejected five of the six initial contentions and failed to properly weigh the evidence in its rejection of the two litigated contentions. This matter is currently pending 1

! review before the Atomic Safety and Licensing Appeal Board.

j o The inmates contend that the Licensing Board's history of dealing with this l

4 issue indicates an inherent prejudice and hostility to this issue. The i Licensing Board has attempted to divert the inmates from presenting their

! contentions at every possible opportunity. They have done so despite agreements I

on the record that the inmates' position had considerable justification. (See Footnote 20 of the Decision of the Atomic Safety and Licensing Appeal Board, May l 1, 1985.)

i The Licensing Board has also twice ruled that the inmates' jIcontentions are insignificant. (See Board's Order of May 9, 1985, granting the l

l applicant's Request for an Exemption from the Graterford Issues at p. 3, and the i

Board's Order of April 12, 1985 dismissing the Graterford inmates as a party to Othisproceeding.) The inmates point out in sumary that they have had to appeal 0

l the Licensing Board's decisions on three separate occasions in order to present their contentions, and have been successful on all three occasions in achieving the relief requested.

I

! While the issues before the Atomic Safety and Licensing Appeal Board are I

1many and complex, the inmates would like to point out one issue which is I

' illustrative of their efforts to litigate safety concerns with respect to the

, Radiological Emergency Response Plan for Graterford. The issue to which the j inmates draw the Commission's attention involves the use of call up system to

[ mobilize the manpower necessary to conduct an evacuation from the prison, hInitially, the inmates contended that the use of the comercial telephone lines F

[in the event of a nuclear emergency at the Limerick Generating Station was d

l unreliable. The Board rejected this contention in its first review of the proposed contentions on April 12, 1985. The inmates then pointed out prior i

testimony from an AT&T technician by the name of Rick Brown, who is also a

, supervisor for Lower Providence Township, Pennsylvania, who stated that dial tone delays took up to thirty minutes during the floods caused by Hurricare i

1

Agnes in 1972. (See Tr.18,226,18,149 and 18,133.) During discussions about I

! this issue at the March 22, 1985 conference in Harrisburg, Pennsylvania, the Department of Corrections indicated that it had four commercial telephone lines

! and one dedicated phone line with a direct connection to the Pennsylvania State Police. (See also Commonwealth Response to Proposed Revised Contentions of I

lGraterford Inmates, p. 4.) When the Licensing Board rejected the inmates' contention in their April 12, 1985 order, they indicated that the prison had five dedicated telephone lines and a direct connection with the Pennsylvania State Police. In a subsequent filing, the inmates pointed out this factual error to the Licensing Board and further bolstered their argument with prior i

precedent with respect to the use of comercial telephone lines during a nuclear

'emerg?ncy. The inmates drew the Board's attention to the matter of Cincinnati jGas and Electric Company, et al, (William H. Zimer Nuclear Power Plant, Unit il

[1), Docket No. 50-358; 17 NRC 760 (1983).) In this case, the Atomic Safety and IV l; Licensing Appeal Panel, while reviewing the adequacy of offsite emergency ll

] planning, stated "The Board reasoned (and the applicant concedes) that during an I

emergency the commercial telephone circuits, including those serving the schools, likely would become overburdened as a result of heavy public usage and thus be unavailable for public use." (See Cincinnati Gas and Electric

Company, supra at 786.) Despite the additional arguments, the Licensing Board i,once again rejected this rationale in their order of June 12,1985 entitled, Order Admitting Certain Revised Contentions of the Graterford Inmates and

-7_____.

, Denying Others. During the hearings held on July 15, 1985, Superintendent ti Zimerman of the State Correctional Institute at Graterford, when testifying with respect to the manpower mobilization component of the estimated time of

! evacuation, stated that a call up system utilizing the commercial phone lines jjwould effect the manpower mobilization component. (See Tr. 20,808.) When d

!' inmates' counsel attempted to inquire further with respect to the call up 1

! system, Chairman Hoyt solicited an objection and when unsatisfied, sustained a o

i qualified objection arx3 refused to allow any further discussion with respect to this issue. (See Tr. 20,809 through 20,811.) 'The inmates further bolstered I

! their claim as to the unreliability of the comercial telephone lines through i

lithe testimony of their expert, Robert L. Morris, who was concerned that 4

l commercial telephone lines may be unable to respond to the call up system needs. (See Morris deposition, p. 80.) Despite all of the evidence subnitted I

bregarding the unreliability of the commercial telephone lines, the Licensing i

Board once again ruled in its issuance of its Fourth Partial Initial Decision on July 12, 1985, that this issue was unworthy of any further consideration. The d

l inmates believe that they have more than carried their burden with respect to ii

!!this issue, however, an inherent prejudice and partiality on the part of the lI

Licensing Board has prevented justice from being done. It is for these reasons

'that the inmates believe they have made a strong showing that they will likely 3 prevail on the merits of the issues currently pending before the Atomic Safety I

and Licensing Appeal Panel.

I!

B. The Party will be Irreparably Injured unless a Stay is Granted.

In accordance with 10 CFR 50.47, the applicant, through the cooperation i

with the Federal Emergency Management Agency and the Pennsylvania Emergency llManagement Agency must provide a reasonable assurance that adequate protective i

[ measures can and will be taken in the event of a radiological emergency. The I

inmates point out the unique nature of the issue currently before the court.

jFor the first time in history, a nuclear power plant has within its 10 mile EPZ 4

pamaximumsecuritystatecorrectionalfacility. According to the mandate of the

[cUnited States Congress, in the implementation o,f 10 CFR 50.47, the applicant hthrough the various respective agencies must prove that it can evacuate everyone lithinthe10mileradiusofthenuclearpowerplant.

w The evacuation of a Fl maximum security state penal facility represents a challenge to em i

il Iplanners. Rather than accept this challenge, the Atomic Safety and Licensing h

! Board has made every attempt to divert the inmates and their contentions with h

" respect to this issue. (See Procedural History in previous section.) If a full I

power license is issued prior to resolution of the many outstanding issues, the

?

[ health and safety of the inmates, staff and public alike may be in danger. The a

inmates point to the issue with respect to civilian bus driver training as u

ifurther evidence of this contention. To date, one two-paragraph form letter has been sent by the Pennsylvania Emergency Management Agency to six bus providers i

located as far as 190 miles away from the State Correctional Institute at h

Graterford. Said letter was mailed on April 4, 1985 and has received no l

, response whatsoever. The Licensing Board has ruled that this is sufficient to o

kuarantee that training of said civilian personnel will in fact occur. Common sense dictates otherwise. If an accident were to happen in the near future, the bus drivers, if available at all, would be untrained and therefore unable to conduct their responsibilities in the evacuation plan. No alternatives have i been suggested if the bus drivers fail to participate. This represents one of i

many issues, such as the commercial phone lines discussed in the previous i

h section, which must be resolved in order for the evacuation plan to work i

!! effectively. The inmates therefore contend there is a substantial likelihood 4

1 lj that they will suffer irreparable injury unless a stay is granted.

N C. Granting of the Stay Would Not Harm Any Other Parties.

3 Despite the numerous arguments of the applicant Philadelphia Electric

Company that they have a considerable investment at stake, the inmates contend

! that haste makes waste. This old cliche has never been more suitable than for i

the current issue before the Court. The applicant announced its intention to begin construction of the Limerick facility in 1968 and estimated the overall cost of said project to be 289 million dollars. Today, some seventeen years later, the estimates have risen to 7.23 billion dollars. At stake, as we have b

j seen in the TMI accident of 1979, is the health and safety of the inmates and L

f general public alike surrounding the Limerick generating facility. The dangers n

jassociated with nuclear energy are well known. In order to fulfill the mandate 9

]given to the Nuclear Regulatory Commission by the United States Congress in promulgating the emergency planning requirements of 10 CFR 50.47, it is necessary to provide a reasonable assurance that adequate safety measures will be taken. The inmates vigorously oppose any and all attempts to speed up the process in order to alleviate the applicant's poor planning and financial burden. With respect to the other parties in the proceeding, a thoughtful, well developed radiological emergency response plan for the State Correctional Institute at Graterford is in everyone's best interest. The inmates' concerns are obvious. The prison's concerns are likewise obvious. The public's concern that an evacuation of individuals who have been sentenced to lengthy terms in a

~

penal' facility is equally obvious. Given the potential for havoc if an i

.l evacuation of the prison goes awry, a workable plan is a must for all concerned.

D. Where the Public Interest Lies l

Much has been made in previous filings of the applicant's financial I

condition and its desire to obtain a full power license. The inmates would like to point out that the applicant has yet to resolve a major concern with respect to obtaining sufficient water in order to operate said plant at maximum capacity. The applicant is also anxious to pass the financial burden of the Limerick facility from its stockholders to its rate payers. The issuance of a full power license will enable the applicant to shift said burden. With the tremendous expenditure that has currently been made, i.e., 7.23 billion dollars, there will be a significant increase in electricity rates throughout the Delaware Valley upon issuance of said license. This increase in electric rates l

l will further burden the economic comunity of the Delaware Valley. Such burdens

, on the businesses in our area will also put additional pressures upon employment opportunities in the Delaware Valley. 'Ihe inmates contend that the increase in electric rates coupled with the potential for danger from a nuclear accident outweigh the applicant's financial concerns and dictate that the public I

interest is not the applicant's interest in this issue. The inmates note that l .

q the Point Pleasant Pump Station referendum in Bucks County is a statement of the l public in opposition to the applicant's interests. The inmates further note that a similar referendum is currently being pursued in the County of Montgomery 1

l and request that the conmission stay all proceedings until such a referendum can

" determine once and for all the public interest in this issue.

dIII. CONCLUSION h

For the aforementioned reasons, the inmates respectfully request this i,

'! Honorable Commission to enter a stay of the' Licensing Board's Fourth Partial n

ilInitial Decision until all matters can be resolved on appeal.

il it il Respectfully subnitted, l

i g

l Aa ANGUS R.

x

, 'ES/UIM h Attorne r Inmates, SCIG a i i il e

t

'l I!

d l

I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMiISSION D ' S C "E" T E n In the Matter of  : '85 AUG 12 A10 :45 PHILADELPHIA ELECTRIC COMPANY  :

C F F U. : h. v . ' ,

(Limerick Generating Station, $NCi

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Units 1 and 2)  : NOS. 50-352 and 50-353 CERTIFICATE OF SERVICE I, Angus R, Love, attorney for, the inmates at the State j Correctional Institute at Graterford, hereby certify that a true and correct copy of the NOTICE OF APPEAL REGARDING DENIAL OF

, STAY, accompanied by the MEMORANDUM OF LAW, was mailed to the following list on Thursday, August 8, 1985, by first class mail, postage prepaid.

Administrative Judge Helen F. Hoyt Martha W. Bush, Esquire Atomic Safety & Licensing Board Municipal Services Building U.S. Nuclear Regulatory Cannission 15th & JFK Blvd.

Washington, D.C. 20555 Philadelphia, PA 19107 Administrative Judge Jerry Harbour Atanic Safety & Licensingi j Atomic Safety & Licensing Board Appeal Board Panel i U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Conmission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Richard F. Cole Robert W. Sugarman, Esquire Atomic Safety & Licensing Board Sugarman, Denworth & Hellegers U.S. Nuclear Regulatory Commission 16th F1, Center Plaza Washington, D.C. 20555 101 N. Broad Street Philadelphia, PA 19107 Ann P. Hodgdon, Esquire Counsel for NRC Staff Docket & Service Station Office of the Executive Legal Director U.S. Nuclear Regulatory Conmission U.S. Nuclear Regulatory Cmmission Washington, D.C. 20555 Washington, D.C. 20555 (3 copies)

O Mr. Robert L. Anthony Theodore G. Otto, III, Esquire 103 Vernon Lane, Box 186 Dept. of Corrections Moylan, PA 19065 Office of Chief Counsel P.O. Box 598 David Wersan, Esquire Camp Hill, PA 17011 Asst. Consumer Advocate Office of Consumer dvocate Troy B. Conner,Jr., Esquire 1425 Strawberry Square Conner & Wettehahn Harrisburg, PA 17120 1747 Penna. Ave, NW Suite 1050 Washington, D.C. 20006 Atomic Safety & Licvensing Board Panel U.S. Nuclear Regulatory Conmission Jay M. gutierrez, Escuire

. Washington, D.C. 20555 U.S. Nuclear Regulatory Camission l Region 1 Frank Romano 631 Park Avenue.._...

61 Forest Avenue King of_ Prussia, PA 19406 j Ambler, PA 19002  ;

3 Phyllis Zitzer Zori G. Ferkin, Esquire Limerick Ecology Action Governor's Energy Council P.O. Box 761 P.O. box 8010 762 Queen Street 1625 N. Front Street Pottstown, PA119464 Harrisburg, PA 17105 Charles W. Elliott, Esgiure l Mr. Ihmas Gerusky, Director Counsel for Limerick Ecology Action Bureau of Radiation Protection 325 N. 10th St.

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

3rd and Locust Sts. Eugene J. Bradley, Esquire Harrisburg, PA 17120 Counsel for Philadelphia Electric 2301 Market Street Spence W. Perry, Esquire Philadelphia, PA 19101 Associate General Counsel FEMA, Roorr. 840 Edward G. Bauer, Jr.

500 GT Street, SW VP and General Counsel WEashington, D.C. 20472 Philadelphia Electric Company 2301 Market Street James Wiggins Philadelphia, PA 19101 Sr. Resident Inspector U.S. Nuclear Regulatory Commission Steven P. Hershey, Esquire P.O. Box 47 Cmmunity Legal Services, Inc.

Sanatoga, PA 19464 5219 Chestnut St.

Philadelphia, PA 19139 Timothy R.S. Campbell, Director Dept. of Emergency Services 14 East Biddle Street l West Chester, PA 19380 1 Directo, N N ANGUS R. NE, ESQUIRE '

Penna. Emergency Management Agency Montg y County Legal Aid Basement, Transportation & Safety Bldg. Counse f - Inmates, SCIG Harrisburg, PA 17120