ML20199C946

Responds to Appeal Board 860603 Order Requesting Further Info on Events Surrounding Fourth Partial Initial Decision. Certificate of Svc Encl

ML20199C946
Person / Time
Site:	Limerick
Issue date:	06/16/1986
From:	Otto T PENNSYLVANIA, COMMONWEALTH OF
To:	Edles G, Gotchy R, Kohl C Atomic Safety and Licensing Board Panel
References
CON-#286-604 OL, NUDOCS 8606180421
Download: ML20199C946 (13)

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. GLEN JFFFES-ERSKIND DERAMUS Commissioner Deputy Commissioner el*

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PENNSYLVANIA DEPARTMENT OF CORRECTIONS

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June 16,1986 Ms. Christine N. Kohl, Chairman Mr. Gary J. Edles Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.

20555-Washington, D.C. 20555 Dr. Reginald L. Gotchy Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C. 20555 In the Matter of Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2)

Docket Nos. 50-352 and 50-353 d(

RE: Response to Atomic Safety and Licensing Appeal Board Order of June 3,1986.

Dear Board Members:

This letter is in response to the June 3,1986 Order of the Atomic Safety and Licensing Appeal Board requesting the parties to provide further information regarding the events surrounding thE Fourth Partial Initial Decision. The Commonwealth hereby provides its response to the questions in the Order.

1.

It is our understanding that " Plan 2" was never included in the formal record of the adjudicatory proceeding.

It was not introduced or admitted into 8606180421 860616 PDR ADOCK 05000352 G

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• At:mic S:fcty cnd Liesnsing Appe:1 Board June 16,1986 Page 2 evidence at the hearing, nor was it attached or incorporated by reference in any pleading filed by the Commonwealth.

A more sanitized version of the Graterford Radiological Emerency Response Plan was provided to counsel for Graterford inmates and was attached to his Motion for Full Disclosure dated December 20, 1984.

2.

The case sub Judice is distinguishable from the case of Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-580,11 NRC 227 (1980). In the Diablo Canyon case, the Atomic Safety and Licensing Board never looked at the security plan for the power plant.

Additionally, an intervenor on the issue of the adequacy of the security plan was not permitted to see the plan nor was his expert.

Additionally, both the applicant and the staff urged the Board to review the security plan in that case.

In our case, all parties and the Licensing Board had opportunities to review Plan 2 of the Graterford Radiological Emergency Response Plan.

Counsel for the Graterford inmates, as well as their expert witness Major John Case, were given an opportunity to review Plan 2 on March 18, 1985. Additionally, copies of Plan 2 were available a.t the conference held with all parties present on March 22, 1985. As the Appeal Board notes in its June 3,1986 Order in 'this case, the Licensing Board had two copies of Plan 2 which it returned on April 12, 1985. Judge Hoyt requested a copy of Plan 2 on May 24, 1985, which was provided to her by the Commonwealth on May 30, 1985 and was received by her office on June 3,1985. (Attached hereto as Exhibits A, B and C respectively are copies of Judge Hoyt's letter to the

'Ato im c SIisty and Licensing Appez! Bo:rd June 16,1986 Page 3 Commonwealth requesting a copy of Plan 2, a copy of the transmittal letter for Plan 2 and a copy of the postal receipt indicating that Plan 2 had been received). Therefore, it is clear that, in sharp contrast of the Diablo Canyon case, all parties and the Licensing Board had access to and reviewed Plan 2.

Another significant difference between our case and the Diablo Canyon case is that no contentions were admitted in the Diablo Canyon case, whereas the Graterford inmates were successful in litigating contentions. Thus, it was entirely appropriate in the Diablo Canyon case for the Appeal Board to hold that since there was essentially no record with regard to the adequacy of the security plan, that the decision by the Licensing Board that the plan was adequate must fall.

In our case, there were three days of hearings during which the Licensing Board heard testimony and received exhibits into evidence. The testimony and exhibits received by the Licensing Board provide an adequate record to support their decision in LBP-85-25.

For the above reasons, the Commonwealth does not believe that the absence of Plan 2 as part of the record compels the vacation of LBP-85-25.

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j 3.

Although Plan 2 is not in the record, we believe that the Licensing Board's March 20,1985 Protective Order is still in effect and would preclude any references in a published opinion to specific parts of Plan 2.

As the Appeal Board may discern by reviewing its own copies of Plan 2, there are only minimal deletions in the Plan and the Commonwealth of Pennsylvania, j

Department of Corrections, considers Plan 2, as any emergency plan, highly i

j confidential.

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At::mic S:fety cnd Licensing Appesi Bo:rd June 16,1986 Page 4 4.

The Protective Order covering Plan 2 needs to continue. As was discussed above, Plan 2 is a substantially complete version of. the Graterford Radiological Emergency Response Plan. The release of any information in this Plan without consulation with the Pennsylvania Department of Corrections could have a substantial negative impact on our ability to implement the Plan should a nuclear incident occur. The transcripts of the February 27 and March 22, 1985 conferences were reviewed by the Department for any references to confidential information. Due to the topics of discussion at the conferences and the fact that no confidential information was revealed, it was our opinion that the conferences could be made public.

5.

It is our understanding that no party has in its possession a copy of Plan 2.

6.

The Commonwealth argues that it is entirely appropriate for the Licensing Board to have relied upon information provided to it at a transcribed conference, particularly due to the fact that the information was contained in pleadings filed by the parties.

The case of In the Matter of Public Service Company of Oklahoma, Associated Electric Cooperative, Inc., Western Farmers Electric Cooperative, Inc., (Black Fox Station, Units 1 and 2) ALAB-

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505, 8 NRC 527 (1978) made it very clear that counsel appearing before the l

Nuclear Regulatory Commission adjudicatory tribunals have a " manifest and iron clad obligation of candor" Black Fox Station, Units 1 and 2 iA at 532.

Additionally, the information upon which the Board relied was provided by Commissioner Glen R. Jeffes, the highest ranking officer in the Pennsylvania i

Department of Corrections. If the intervenor or any other party contested the information made available at the transcribed conferences, they were r--,

'A?cmic S:fsty and Liesnsing Appeal Board June 16,1986 Page 5 given the opportunity to raise an objection prior to the hearings held in this matter.

This is a substantially different set of facts than what took place in the Houston' Lighting and Power Company case referred to in the Appeal Board's Order of June 3,1986. In the flouston Lighting and Power Company case, the Licensing Board denied contentions of an intervenor, not for the reason of lack of specificity or bases, but because it disagreed with the facts raised.

In our case, the Licensing Board denied certain contentions raised by the inmates not as a result of any factual disagreements but based on the fact that the proposed contentions lack specificity or bases.

7.

Although unidentified, Inmates' Exhibit I was first discussed at Tr. 20772.

It was rejected by the Licensing Board at Tr. 20776 and the document was ultimately identified as Inmates' Exhibit 1 at Tr. 20784-5. The rejection of this exhibit by the Board was confirmed at Tr. 21085.

With regard to I

Inmates' Exhibits 2, 3 and 5, it was the understanding of the counsel for the Commonwealth that unless we notified the Board that the documents were inaccurate or somehow incorrect, the documents 'would be admitted Tr.

21085-6. Thus, by not communicating to the Board any deficiencies in the documents', it was our understanding that the documents would be admitted.

Inmates' Exhibit 4, which was received by counsel for the Commonwealth on July 15,1985, was identified at Tr. 20826 and withdrawn by counsel for the inmates at Tr. 21084. Applicant Exhibit I was offered at Tr. 20795, admitted

"At:mic S;;fsty cnd Lle:nsing Appeal Board

' June 16,1986 Page 6 at 20795-6, and fully identified at Tr. 20889-90.The Commonwealth is not aware of any other exhibits that were offered at the hearing.

Please do not hesitate to contact me if any further information can be provided.

Very truly yours, e,

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eodore G. Otto, III Counsel for Commonwealth of Pennsylvania (717) 975-4864 TGO:Je ec:

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May 24, 1985 Theodore'G. Otto, III, Esq.

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Dear Mr. Otto:

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j The Licerising Board requires one copy of the " Plan 2" defsion o'f the Radiological Emergency Response Plan for the Graterford facility for use in our consideration of the Inmates contentions thereon.

Please transmit this as soon as possible)under procedures appropriate to our Protective Order issued March 20, 1985, whic remains in ef edt.

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PENNSYLVANIA DEPARTMENT OF CORRECTIONS P. O. BOX 698 CAMP HILL. PENNSYLVANIA 17011 (717)787-7480 May 30,1985 The Honorable Helen F. Hoyt Chairperson CERTTFIED MAIL U.S. Nuclear Regulatory Commission RETURN RECELPT REQUESTED Atomic Safety and Licensing Board Panel Washington, D.C.

20555 RE: Radiological Emergency Response Plan

Dear Ms. Iloyt:

Enclosed please find a copy of Plan 2, per your request of May 24, 1985.

Very. truly, yours,

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9 UNITED STATES OF AMERICA O

4x NUCLEAR REGULATORY COMMISSION N

_ ' Before the Atomic Safety and Licensing Appeal Boaf N

In the Matter of Philadelphia Electric Company Docket No. 50-352 ER E y,ngq 7

50-353 (Limerick Generating Station, Units 1 and 2) y CERTIFICATE OF SERVICE s

I hereby certify that copies of the Commonwealth's letter in response to the Atomic Safety and Licensing Appeal Board Order of June 3,1986 in the captioned matter, have been served upon the following by deposit in the United States mail this 16th day of June 1986, except as indicated otherwise:

• Christine N. Kohl, Esquire Dr. Richard F. Cole i

Chairman Atomic Safety and Atomic Safety and Licensing Board Licensing Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Gary J. Edles Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i

l Washington, D.C. 20555 l

• Dr. Reginald L. Gotchy Atomic Safety and Liceps,ing l

Atomic Safety and Licensing Appeal Board l

Appeal Board U.S. Nu'elear Regulatory Comnrission l

U.S. Nuclear Regulatory Commission Washington, D.C. 20555 l

Washington, D.C. 20555 Helen F. Hoyt, Esquire Docketing and Service Section Chairperson Atomic Safety and Office of the Secretary Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 i

Washington, D.C. 20555 Ann P. Hodgdon, Esquire Angus Love, Esquire Counsel for NRC Staff 107 East Main Street Office of Executive Legal Director Norristown, Pennsylvania 19401 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

• Federal Express

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Atomic Safety and Licensing Robert J. Sugarman, Esquire Board Panel Sugarman, Denworth & Hellegers U.S. Nuclear Regulatory Commission 16th Floor, Center Plaza Washington, D.C. 20555 101 N. Broad Street Philadelphia, Pennsylvania 19107 Philadelphia Electric Company Director, Pennsylvania ATTN: Edward G. Bauer, Jr.

Emergency Management Agency Vice President &

Basement, Transportation and General Counsel Safety Building 2301 Market Street Harrisburg, Pennsylvania 17120 Philadelphia, Pennsylvania 19101

- Martha W. Bush, Esquire Mr. Frank R. Romano Kathryn S. Lewis, Esquire 61 Forest Avenue

. City of Philadelphia Ambler, Pennsylvania 19002 Municipal Services Bldg.

15th. and JFK Blvd.

Philadelphia, Pennsylvania 19107 Mr. Robert L. Anthony Spence W. Perry, Esquire Friends of the Earth of the Associate General Counsel Delaware Valley Federal Emergency Management Agency 106 Vernon Lane, Box 186 500 C. Street, S.W., Room 840 Moylan, Pennsylvania 19065 Washington, D.C. 20472 Miss Phyllit Zitzer Thomas Gerusky, Director Limerick Ecology Action Bureau of Radiation Protection P.O. Box 761 Department of Environmental Resources 762 Queen Street 5th Floor, Fulton Bank Building Pottstown, Pennsylvania 19464 Third and Locust Streets Harrisburg, Pennsylvania 17120 Jay M. Gutierrez, Esquire James Wiggins U.S. Nuclear Regulatory Commission Senior Resident inspector Region i U.S. Nuclear Regulatory Commission 631 Park Avenue P.O. Box 47

' King *of Prussia, Pennsylvania 19406 Sanatoga, Pennsylvania,19464 Timothy R. S. Campbell Barry Hartman Director Deputy General Counsel Department of Emergency Services Office of General Counsel 14 East Biddle Street.

Harristown 2,17th Floor West Chester, Pennsylvania 19380 Harrisburg, Pennsylvania 17120 k-.________._______

Mr. Ralph Hippert Troy B. Conner, Jr., Esquire Pennsylvania Emergency Conner & Wetterhahn, P.C.

Manangement Agency Suite 1050 B151 - Transportation and 1747 Pennsylvania Avenue N.W.

Safety Building Washington, D.C. 20006 Harrisburg, Pennsylvania 17120 Charles W. Elliott, Esquire 325 North Tenth Street Easton, Pennsylvania 18042

. (f 44 odore G. Otto, Ill' ' '

hief Counsel Pennsylvania Department of Corrections P.O. Box 598 Camp 11111, Pe,nnsylvania (717) 975-4864 8

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