ML20206D890

Responds to Aslab 860603 Order Requesting Response to Certain Questions Re ASLB Fourth Partial Initial Decision & 850612 Order.Certificate of Svc Encl

ML20206D890
Person / Time
Site:	Limerick
Issue date:	06/17/1986
From:	Mcgurren H, Rutberg J NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:
References
CON-#286-637 OL, NUDOCS 8606200404
Download: ML20206D890 (11)

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL B SD m In the Matter of )

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Pil!LADELPillA ELECTRIC COMPANY ) Docket Nos. 50-352 O L

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

NRC STAFF RESPONSE TO APPEAL BOARD ORDER DATED JUNE 3,1986 By Order dated June 3,1986, the Appeal Board directed the Phila-delphia Electric Company, the Commonwealth of Pennsylvania, the Interve-nor inmates of the State Correctional Institution of Graterford (SCIG) and the NRC staff to respond to certain questions relating to the Licensing Board's Fourth Partial Initial Decision and its Order of June 12, 1985.

The following la the Staff's response to the questions.

QUESTION 1 It !s evident that all parties concerned had, or had access to, copies of what has been referred to as " Plan 2," a somewhat complete ver-slon of the emergency plan for the Graterford facility. Is this docu-ment, however, included anywhere in the formal record of this adjudicatory proceeding? Was it introduced and admitted into evi-

dence at the hearing? Was it attached to or incorporated by refer-ence in any pleading filed by a party?

The SCIG " Plan 2" is not included in the formal record of this adju-dicatory proceeding. During the discovery process the plan was provided to the Licensing Board and made available to the parties after a protec-tive order was issued by the Licensing Board. No party to the proceed-ing offered the plan into evidence. As can be seen from the Staff's DSo7 -

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response to Question 2, the Staff does not believe that it was necessary for the Licensing Doard to have Plan 2 in the record in order to rule on the litigated contentions. During the hearing, it was necessary, in order to address some of the issues, to refer to procedures included in the plan; however, the plan itself was not attached to any of the pleadings, nor was it incorporated by reference in any pleading filed. Plan 2 is con-sidered by the Commonwealth of Pennsylvania to contain information that is highly confidential and should not be released for public use.

Tr. 20,491-493.

QUESTIO!! 2 If Plan 2 is not part of the record, does our decision in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-580, 11 NRC 227 (1980) compel vacation of LDP-SS-25.

The Appeal Board's decision in Pacific Gas and Electric Co. (Diablo Canyon Nucicar Power Plant , Units 1 and 2), ALAD-580, 11 NRC 227 (1980) does not compel vacation of LBP-85-25. In the Diablo proceeding, the LicensinC Board agreed, at the urging of the Applicant and the Staff, to consider the adequacy of Pacific Gas and Electric Company's (PGLE) physical security plan, notwithstanding the fact that because of its rul-ings on contentions there were no pending issues involving the plan.

The Board found that the PG aE security plan " compiles with all applicable NRC regulations," basing its determination on the testimony of experts and a site inspection, but not upon a review of the plan itself. M. at 229. The Appeal Board found this ruling " legally impermissible" stating,

"[w }e do not believe it possible for the Board to have found that the

security plan conforms fullf to all regulatory requirements without having at least read that plan." Id_.. at 229.

The situation in Limerick is significantly different. The Licensing Board in Limerick did not litigate the compliance of Plan 2 with all appli-cable NRC regulations regarding emergency plans. Rather, in Limerick the litigation and conclusion of the Board with regard to Plan 2 was de-fined by two contentions admitted on behalf of the Graterford inmates.

The first contention raised the issue of reasonable assurance of the emer-gency response training offered to civilian personnel who will be involved in the emergency response plans. The second contention raised the issue of reasonable assurance that the estimated time of evacuation of six-to-ten hours can be achieved. These were the only issues litigated in the pro-ceeding dealing with the Graterford inmates and it was only within this framework that the Licensing Board concluded, addressing the appropriate planning standards of N UREG-0654 / FEMA-REP-1, R ev. 1, that Plan 2 mccts the requirements of 10 C . F . R . $ 50.47, and Appendix E to 10 C.F.R. Part 50. LBP-85-25, 22 NRC 101, 116 (1985). Neither the Applicant nor the Staff urged that the Licensing Board address the over-all adequacy of Plan 2. Further, there is no indication that the Board exercised its sua sponte authority pursuant to 10 C.F.R. 6 2.760a to con-sider the overall adequacy of Plan 2. See Texas Utilities Generating Co.

(Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-24, 14 NRC 614, 615 (1981).

Moreover, the evidence adduced at the Limerick hearing supports the findings made by the Board, unlike the evidence at the cloced hearing at Diablo which the Appeal Board described as "quite limited." AL AB-580,

su pra , at 229. In addressing the two issues (training and evacuation time estimate) and appropriate planning standards of N U REG-0054 / FEM A-R EP-1, Rev. 1, the Board considered the deposition testimony of Mr. Robert L. Morris (a consultant in transportation plan-ning and traffic engineering) offered by the Intervenor, and the testimo-ny of seven witnesses produced at the hearing. These witnesses were three FEMA witnesses (Mr. James Asher and Mr. Ilichard Kinard, regard-ing the training issue; -- and Mr. Fdward Lieberman, regarding the evacuation time estimate issue 2/), two Commonwealth witnesses (Mr. Donald F. Taylor, Director of Training t.nd Education for PEMA and Mr. Charles !!. Zimmerman, Superintendent, State Correctional Institution at Graterford), one Intervenor witness, Major John Case, Field Director, Pennsylvania Prison Society, and an NRC staff witness , Dr. Thomas U rbanik.

Finally, unlike the situation in Diablo, where the security plan had not been provided to the Licensing Board, the response plan (Plan 2) for the SClO was provided to the Licensing Doard and made available to the other parties under a protective order. Protective Order, March 20, 1985. In fact, Plan 2 was reviewed by the Intervenor, and the witness J,/ With regard to the training issue the FEMA witnesses concluded that there is reasonable assurance that emergency response training will be offered to evilipn bus and ambulance drivers supporting the SCIG radiological emergency response plan. Testimony of Asher and Kinnard, ff. Tr. 20,995 at 2: Kinnard, Tr. 20,997-98: Asher, Tr. 21,003-04.

2/ With regard to the evacuation time estimate issue FEMA's expert wit-ness testified that the revised evacuation time estimates for the SCIO are reasonable and somewhtit conservative. Testimony of Edward Lieberman, ff. Tr. 20,956 at 8 9

l sponsored by the Intervenor testified that he had examined the plan and had not found any appropriate procedures missing. Deposition of

$1ajor John Cace, ff. Tr. 20,930 at 31 and 50. Moreover, at the prehear-ing conference held on hiarch 22, 1985, Counsel for the Inmates stated that, "ll]nitially we were very pleased to see the plan virtually in its entirely. . . So with ret;ard to the issue of disclosure, I do believe that we tire satisfied. . . ." Tr. 10,612-13.

Thus, neither of the litigated contentions required the Licensing Board to rule on the adequacy of the entire plan , and the Licensing Board's finding with respect to the two contentions was fully supported by the evidentiary record. Accordingly, it was not necessary for the SCIG Plan i to be included in the formal record of this proceeding.

For these reasons the Staff believes that the Diablo decision does not compel vacation of LBP-85-25.

QUESTION 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 27 Although the plan is not in the record, the protective order is still in effect and should preclude reference to any part of the plan in a pub-lished opinion beyond that which was permitted to be disclosed at the two prehearing conferences and at the hearing. The protective order was issued at the request of the Commonwealth of Pennsylvania to protect the disclosure of certain types of information and a determination to release any riore information than is already in the record wouid be inconsistent with the Commonwealth's request. Tr. 20,491-493.

r QUESTION 4 If the protective order is still in effect, need it continue to be? (We note in this regard that the transcripts of Licensing Board confer-ences held on February 27 and March 22, 1985 -- during which Plan 2 was discussed -- were made public by the Doard's March 27, 1985, .Meraorandum cnd Order (unpublished).)

As indicated in our response to Question 3 the Staff believes that it is appropriate to continue the protective order in effect. The fact that the prehearin6 conferences held on February 27 and March 22,1985 were initially treated us in, camera proceedings and then made public does not change the need for the protective order. These two prehearing confer-ences were initially M camera in anticipation that parts of the SCIG re-sponse plan that the Cominonwealth of Pennsylvania would not want to be rande public, would be discussed at the hearing. Ilowever, af ter the pre-hearing conferences, the Commenwealth was provided the opportunity to indicate whether it would object to the transcripts being made public based upon information that was discussed during the conference.

Tr. 20,714-715. The Commonwealth indicated that it did not object to the transcripts of the conferences being made public but did not indicate that this position would apply to anything other than the two conferences.

Tr. 20,715 and letter dated March 25, 1985 to Helen F. Iloyt from Theodore G. Otto, Ill.

QUESTION 5 .

Does any party now have in its possession copies of Plan 27 The Staff does not have have a copy of the plan. FEMA has a copy of the full plan that it utilized in connection with its review.

_7-QUESTION 6 in ruling on the admissibility of contentions -- assuming arguendo that ilouston Lighting and Power Co. (Allens Creek Nuclear Generat-inC Station, Unit 2), ALAD-590,11 NRC 542 (19E0), does not other-wise prohibit it --

can a Board properly rely on the unsworn "testinaony" of a " witness" at a transcribed " conference"? See, e.g. , Tr. 00,607, 20,629-31, 20,672.

At the contention stage of a proceeding where the Licensing Doard is not addressing the merits of the issues raised but is only ruling on the admissibility of the proffered contentions, neither the Commission's regu-lations (10 C.F.R. 5 2.714) nor practice has required sworn testimony to support or oppose a contention . As the Appeal Board stated in Ilouston Lighting and Power Co. (Allens Creek Nuclear Generating Sta-tion, Unit 2), ALAD-590,11 NRC 541 (1980), with respect to an interve-nor satisfying the requirements of 10 C.F.R. S 2.714, the intervenor need only ". . . state his reasons (l.c., the basis) for his contention".

M . at 548. In that case the Appeal Board found that a simple reference to a Federal Energy Administratiott report - and the intervenor's assertions were sufficient alone to satisfy the NRC pleading requirements.

Id. , at 548, 49. Thus, assertions of counsel in arguing whether the req-utsite bases and specificity exist would likewise not be sworn.

We further note that the Commission stated in 1978 when abolishing the need that intervenors set forth the requisite basis and specificity in an cffidavit that such affidavits are not necessary at this early stage of the proceeding. The Commission stated:

As proposed, the requirement that an affidavit accompany petitions to intervene is also abolished. Experience has 3/ Project Independence Report, issued November 1974.

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i shown that such affidavits do not serve a useful purpose at  !

this early stage in licensing proceedings. ,

43 Fed. Reg.17,798 (April 26,1978).

For these reasons, it is the Staff position that in ruling on the admissibility of contentions, assuming arguendo that Allens Creek, ALAB-590, supra, does not otherwise prohibit it, a Board may properly rely on unsworn statements made at a prehearing conference in determin-ing whether contentions meet the basis and specificity requirement of 10 C.F.R. I 2.714. In this case, the Staff has already indicated that it believes that the determinations made by the Licensing Board in connec-tion with the rejected contentions dealt with the issues of basis and spec-ificity and did not go to the resolution of the proposed contentions on the merits . See, 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.

QUESTION 7 With respect to the stated exhibits, we request the parties to identi-fy 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.

With respect to the exhibits referred to in the Appeal Board's Or-der: Inmates Exhibits 2, 3 and 5 were admitted into evidence at Tr.

21,084 and Applicant's Exhibit 1 was admitted at Tr. 20,796. One addi-

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_g tional exhibit was identified as Commonwealth Exhibit G-1 at Tr. 20,848 and was withdrawn at Tr. 21,086.

Respectfully subnitted, Jo y th

+ erg Asbs ant Oilef He ing Counsel i

g r.ry .". McGurren Couns'M for NRC Staff Dated at Bethesda, Maryland this 17th dey of June,1986

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UNITED STATES OF AMERICA h M8thh UUCLEAR REGULATORY COMMISSION "gtr$hgsid'

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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL DO in the Matter of )

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PillLADELPillA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Lincrick Generating Gtaticn, )

ll nit; I and 2) )

CERTIFICATE OF SERVICE I her.eby certify that copies of "NRC STAFF RESPONSE TO APPEAL BOARD ORDER DATl:11 JI;NE 3,198C" 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 ncterlak throuch deposit in the Nuclear Regulatory Commission's internal mail system, this 17th day of June,1986:

!!cici. F. I!oyt, Choirperson (2) Mr. Edward G. Dauer, Jr.

Administrative Judr;c Vice President a General Counsel Atemic Safet;' t.no Licensing Board Panel Philadelphia Electric Company U.S. Nuclear llegulatory Commission 0301 Market Street Washington, D.C. 10555' Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr., Ecq.

Administrative Judge Mark J. Wetterhahn, Esq.

Atomic Snfety and Licensing Dourd Panel Conner and Wetterhahn U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.

hashington, D.C. 00555* Washington, D.C. 20006 Dr. Jerry liarbour Ms. Phyllis Zitzer, President Aon.inistrative Judge Ms. Maureen Mulligan Atomic Safety and LicensinC Board Panel Limerick Ecology Action U.S. Muclear ReCulatory Commission 761 Queen Street Washington, D.C. 20G55' Pottatown, PA 19404 Mr. Frank R. Romano 1:athryn S. Lewis, Esq.

Air und Kater Pollution Patrol 1500 Municipal Services Bldg.

61 Forest Avenue 15th and JFK Blvd.

Ambler, PA 19002 Philadelphia, PA 10107 Thomas Gerusky, Director Darry M. I!artman Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Duilding 300 N. 2nd Street Third and Locust Streets  !!arrisburg, PA 17105 liarrisburg, PA 17120

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Spence W. Perry, Esq.

Director Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Uasement, Transpcrtation L Safety 500 C Street, S.W.

Duilding Washington, D.C. 20472 I*arrisburg, PA 17120 Robert L. Anthony Gene Kelly Frier.ds of the Earth of the Senior Resident Inspector Delt.uarc Valley U.S. Nuclear Regulatory Commission -

103 Vernon Lane, Box 166 P.O. Box 47 Moylan, PA 19065 Sanatoga, PA 19464 Atcmic Safety and Licensing Timothy R. S. Campbell, Director I;oard Panel Department of Emergency Services U.S. !*uclu.r Regulatory Commis.sien 14 East Biddle Street Wshington, D.C. 20555* West Chester, PA 19380 Atomic Safety and Licensing Appeal David Wersan Board Panel (C)

Consumer Advocate U.S. Nuclear Regulatory Commission Office of Attorney General Washington, D.C. 20555*

1425 Strawberry Square liarrisburg, PA 17120 Docketing and Service Section Office of the Secretary Jay Gutierre:: U.S. Nuclear Regulatory Commission liegional Counsel Washington, D.C. 20555*

L'SNitC, Region 1 631 Park Avenue King of I' russia, PA 15406 Angus R. Love, Esq.

14ontgomery County Legal Aid Theodore G. Otto, III 107 East Main Street Chief Counsel dorristown, PA 19401 Pennsylvania Dept. of Corrections P. O. Box 598 Camp Hill, Pennsylvania 17011

's\ Q W Jo Rutbdtg ' '

As at Chief !!enrin g Counsel