ML20198L157

Order Requesting Applicant,Commission,Graterford Inmates & State of PA Response to Submitted Questions on LBP-85-25 by 860617.Exhibits Admitted Into Evidence Should Be Identified. Served on 860603

ML20198L157
Person / Time
Site:	Limerick
Issue date:	06/03/1986
From:	Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	AIR AND WATER POLLUTION PATROL, DEL-AWARE UNLIMITED, INC., KEYSTONE ALLIANCE, NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD), PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
References
CON-#286-368 LBP-85-25, OL, NUDOCS 8606040225
Download: ML20198L157 (4)

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$ il e nLl4p UNITED STATES OF AMERICA Y NUCLEAR REGULATORY COMMISSION h N D

ATOMIC SAFETY AND LICENSING APPEAL B g g Administrative Judges: A v  ??e D TA V8 G M

Christine N. Kohl, Chairman Gary J. Edles Jun

' ]V1987ll

'3 j QY -

Dr. Reginald L. Gotchy ~_

In the Matter of ) SEAN M 3 N

)

PIIILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352 OL

) 50-353 OL (Limerick Generating Station, )

Units 1 and 2) )

)

ORDER Our review of the record in this proceeding and the appeals from the Licensing Board's fourth partial initial decision, LBP-85-25, 22 NRC 101 (1985), and its Order of June 12, 1985 (unpublished), has disclosed some troubling irregularities in that record. The parties, however, may be able to shed some light on, or perhaps alleviate, our concerns. Accordingly, we direct applicant, the NRC staff, the Commonwealth of Pennsylvania, and intervenor inmates of the State Correctional Institution at Graterford to respond to the following questions by June 17, 1986.

1. It is evident that all parties concerned had, or had access to, copies of what has been referred to as " Plan 2," a somewhat complete version of the emergency plan for the Graterford facility. Is this document, however, included anywhere in the formal record of this adjudicatory proceeding? Was it introduced and admitted into evidence at 8606040225 860603 q PDR ADOCK 05000352 -

G PDR

2 the hearing? Was it attached to or incorporated by reference in any pleading filed by a party?

2. If Plan 2 is not part of the record, does our decision in Pacific Gas and Electric Co. (Diablo Canyon i Nuclear Power Plant, Units 1 and 2) , ALAB-500, 11 NRC 227 (1980), compel vacation of LBP-85-25? See also note 1, infra.

3. If Plan 2 is in the record, is the Licensing Board's March 20, 1985, protective order still in effect, so as to preclude any references in a published opinion to specific parts of Plan 2?

4. If the protective order is still in effect, need it continue to be? W e note in this regard that the

('

transcripts of Licensing Board conferences held on February

^

27 and March 22, 1985 -- during which Plan 2 was discussed

-- were made public by the Board's March 27, 1985, Memorandum and Order (unpublished).)

5. Does any party now have in its possession copies of 1

Plan 2?

1 We have three copies and continue to keep them under seal. The Licensing Board returned its two copies to counsel for the Commonwealth on April 12, 1985. Licensing i Board Memorandum and Order of April 12, 1985 (unpublished),

at 16 n.13, reversed and remanded, ALAB-806, 21 NRC 1183 (1985). It is thus not clear whether the Licensing Board regained possession of Plan 2 for use during the hearing or in rendering its decision in LBP-85-25.

l 3

6. The Licensing Board's June 12 Order ruling on the inmates' contentions contains a number of statements of

" fact" for which there are no citations. The sources of these statements apparently are the pleadings of certain parties, which in turn cite to the transcripts of the February 27 and March 22 conferences. In ruling on the admissibility of contentions -- assuming arguendo that Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 2) , ALAB-590, 11 NRC 542 (1980),

does not otherwise prohibit it -- can a board properly rely

! on the unsworn " testimony" of a " witness" at a transcribed

" conference"? See, e.g., Tr. 20,627, 20,629-31, 20,672.

i

7. The Licensing Board failed to list (as an attachment to LBP-85-25) the exhibits offered at the hearing

in this part of the proceeding, and the transcripts are

confusing. And, once again, neither we nor the Commission's Secretary was provided with copies of any of the exhibits.

See ALAB-836, 23 NRC , n.3 (May 7, 1986) (slip opinion at 2 n.3). Licensing Board Judge Cole, however, has preserved and provided us with the following exhibits:

Inmates Tr.

Exh. 1 - "4.1 Graterford Prison" 20,772, 20,785 (p. 4-3)

Exh. 2 -- Memorandum from Caison 20,785 to Vaughn, et al. (September 12, 1983) (2 pages) l' Exh. 3 - "The Report of the Governor's 20,786 Panel to Investigate the i

e 4

Recent Hostage Incident at j Graterford State Correctional Institution" (August 1982),

pp. 4-5.

Exh. 4 -- Letter from A.R. Love to 20,826 T.G. Otto, III (July 8, 1985) (2 pages)

Exh. 5 - "A Strategy to Alleviate 20,848 Overcrowding in Pennsylvania's Prisons and Jails" (February -

12, 1985) (pp. 2, 34, 36)

Applicant Exh. 1 -- Letter from T.G. Otto, III, 20,890, to A.R. Love (June 27, 1985) 20,795-97 (2 pages)

We request the parties to identify which (if any) of these exhibits, in addition to Applicant's Exh. 1, was actually admitted into evidence. If there are any other exhibits that were offered at this hearing, the parties are also to advise us of that fact and to provide the pertinent citations to the transcript, indicating where these exhibits were identified, admitted, or rejected.

It is so ORDERED.

FOR THE APPEAL BOARD

b. b%

• C. JQn Shoemaker Secretary to the Appeal Board

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