ML20206S909
| ML20206S909 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 04/17/1987 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | GRATERFORD INMATES |
| References | |
| CON-#287-3157 ALAB-863, LBP-86-38, OL, NUDOCS 8704230074 | |
| Download: ML20206S909 (26) | |
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00CKETED USNRC UNITED STATES OF AMERICA
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NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOA g 3
g 00CKETING & SERViCf.
Administrative Judges:
BRANCH Christine N.
Kohl, Chairman April 17, 1987 Gary J. Edles (ALAB-863)
Howard A. Wilber SERVED APR 201983
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In the Matter of
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PHILADELPHIA ELECTRIC COMPANY )
Docket Nos. 50-352 OL i
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50-353 OL (Limerick Generating Station, )
j Units 1 and 2)
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Angus R.
Love, Norristown, Pennsylvania, for inte rvenors, inmates of the State correctional Institution at Graterford, Pennsylvania.
Troy B. Conner, Jr.,
Robert M.
Rader, and Nils N.
Nichols, Washington, D.C.,
for applicant Philadelphia Electric Company.
Theodore G. Otto, III, Camp Hill, Pennsylvania, for the Pennsylvania Department of Corrections.
Benjamin H. Vogler for the Nuclear Regulatory Commission staff.
DECISION In ALAB-845, 24 NRC 220, 229-33 (1986), we concluded that the Licensing Board had erred in excluding from litigation in this operating license proceeding a contention submitted by a group of inmates at the State Correctional Institution at Graterford, Pennsylvania (SCIG).
The 1 SCIG is located within the 10-mile plume exposure (Footnote Continued) 8704230074 870417 PDR ADOCK 05000352 l
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2 contention questioned the adequacy of the " call-up" system to be used to mobilize the SCIG workforce in the event of a radiological emergency at Limerick necessitating evacuation of SCIG.
See note 9, infra.
The inmates were concerned that the commercial telephone network on which the call-up system relies might become overburdened as it had in past nonradiological emergencies in the area.
We determined that this contention met the basis and specificity requirements of 10 C.F.R. S 2.714 (b) and remanded the matter for further proceedings before the Licensing Board.
That Board accordingly held a hearing and, after receiving testimony from witnesses appearing on behalf of the Pennsylvania Department of Corrections, the inmates, and the Federal Emergency Management Agency (FEMA), it concluded that the arrangements for notifying and mobilizing off-duty SCIG correctional officers in the event of a radiological emergency meet the pertinent regulatory requirements and
" provide reasonable assurance that adequate protective measures for the Graterford inmates can and will be taken."
(Footnote Continued) pathway emergency planning zone (EPZ) for the Limerick nuclear generating station.
ALAB-845, 24 NRC at 228 n.1.
The Commission declined review of ALAB-845.
See Notice from the Secretary (November 13, 1986).
- ------ J
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LBP-86-38, 24 NRC (November 10, 1986) (slip opinion 24).2 at The inmates appeal once again, raising three principal arguments.
First, they claim that they did not receive a fair and impartial hearing.
Second, the inmates complain that the Department of Corrections made substantial, unauthorized changes in the call-up system without notice to them.
Finally, they argue that, even with these alterations in the SCIG radiological emergency response plan (RERP), the manpower mobilization system is not adequate to assure an orderly evacuation of the facility.
The inmates seek a reversal of the Licensing Board's decision and remand to a dif ferent board for a new hearing.
See Brief of Graterford Inmates (December 9, 1986) [hereafter, " Inmates' Brief").
Applicant Philadelphia Electric Company (PECo), the Department of Corrections, and the NRC staff all oppose the appeal.
As explained below, the inmates' appeal fails to establish reversible error, and thus we affirm the Licensing Board's decision.
2 The Commission's regulations require a finding of
" reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency" before the issuance of a full-power operating license.
10 C.F.R. S 50.47 (a) (1).
This finding is made on the basis of how well the pertinent onsite and offsite emergency plans meet 16 standards set forth in 10 C.F.R. S 50.47 (b).
The standard involved here, 10 C.F.R.
S 50.47 (b) (5), concerns (Footnote Continued)
4 A.
Fairness of the Hearing 1.
The inmates complain at the outset that the hearing following the remand ordered in ALAB-845 was unfairly expedited by the Licensing Board.
They note that there was only a total of two and one-half weeks between the Board's scheduling order and the hearing date (including just one week for discovery).
The inmates point out that such expedition was particularly unnecessary inasmuch as the Limerick facility was already licensed and operating.
We are ordinarily reluctant to second-guess a licensing board on scheduling matters, and we entertain appeals on such issues only to ensure that due process has been afforded to a complaining party.
Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-813, 22 NRC 59, 74 (1985).
Because the Licensing Board abbreviated the usual schedule for hearing and prehearing activity so severely and the need for such expedition was doubtful, a legitimate due process question is raised here.
Our decision in ALAB-845 remanding the inmates' manpower mobilization contention was served on Friday, August 29, 1986.
Five days later (following the Labor Day weekend), the Board held a telephone conference call with (Footnote Continued) the adequacy of procedures for notification of emergency personnel.
See ALAB-845, 24 NRC at 231.
5 the parties, during which it ordered discovery to begin immediately and witness lists to be exchanged by September 12.
The Board also scheduled the hearing for completion in one day, September 22 -- less than a month after the remand.
Licensing Board Order of September 4, 1986 (unpublished).
The principal reason given by the Board for expediting this matter was that "the schedules of the Board members for other hearings would not permit a hearing for this remand issue until next year" and that this matter should be resolved promptly.
LBP-86-38, 24 NRC at n.4 (slip opinion at 6 n.4).
See c.lso Tr. 21,356, 21,373-75.
We find no justification for the schedule established by the Board on remand.
There is no apparent reason -- and the Board gives none -- why this matter had to be resolved "as quickly as possible."
Tr. 21,375.
Remands, in general (especially in the final stages of a proceeding), should of course be addressed promptly and not be allowed to languish.
But as the inmates point out, the Limerick plant was already fully licensed and operating and PECo thus could not be heard to complain about economic and other losses occasioned by adjudicatory delays.
The only party " harmed" by delay would be the inmates, but they did not seek expedition.
Moreover, unlike in prior remands involving the Limerick facility, we found no cause to order expedited proceedings on the SCIG manpower mobilization issue.
Compare ALAB-836, 23 NRC 479, 520 (1986); ALAB-819, 22 NRC 681, 716 (1985),
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6 review declined, CLI-86-5, 23 NRC 125 (1986); ALAB-809, 21 NRC 1605, 1615, vacated as moot, CLI-85-16, 22 NRC 459 (1985); ALAB-806, 21 NRC 1183, 1193-94 (1985).
Instead, we expected that the proceeding on remand would follow the usual course and schedule contemplated by the Commission's Rules of Practice.
See ALAB-845, 24 NRC at 233.
But while the inmates noted their objections to the expedited schedule to the Licensing Board (Tr. 21,373), they do not claim or show us how they have been thereby prejudiced.
In respon=e tn tha inmata=' aarlier complaint =
about an expedited schedule in this proceeding (albeit one not so truncated as here), we stressed the need for a showing of " specific harm" resulting from such action.
i ALAB-845, 24 NRC at 251.
For example, the inmates fail to tell us what discovery or testimony essential to their case was precluded by the time constraints in the schedule I
imposed by the Board.
See Inmates' Brief at 4-5.
See also infra note 5.
Thus, despite our serious misgivings about l
the Licensing Board's severely abbreviated hearing schedule, i
we are obliged to find it " harmless error," providing no l
legal ground for reversal.
See Cleveland Electric l
Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2),
ALAB-841, 24 NRC 64, 95, reconsideration denied, ALAB-844, l
24 NRC 216 (1986); Catawba, 22 NRC at 74.
I 2.
The inmates also argue that the Licensing Board l
unfairly restricted the substantive scope of certain of l
7 their discovery requests and cross-examination during the hearing.
Specifically, they contend that the Board improperly refused to issue subpoenas directed to Bell Telephone Company of Pennsylvania and the Department of Corrections for documents concerning how those organizations responded during the 1979 accident at Three Mile Island (TMI).
The inmates also complain that the Board sustained PECo's objections to the inmates' attempt to cross-examine Richard A. Buell, District Manager of Network Technical Service: for Penncylvenic Ec11, en thct ec=c cubject.
In j
the inmates' view, because the TMI accident occurred within Pennsylvania (where Limerick and SCIG are located) and
" involved the same telephone lines," the information they attempted to obtain was " extremely relevant" to the SCIG manpower mobilization issue.
Inmates' Brief at 7.
Our efforts to address the inmates' argument in this regard have been hampered because the Licensing Board neglected to memorialize its denial of the involved subpoena requests.
PECo and the NRC staff, however, have directed I
our attention to pertinent portions of the hearing transcript where this matter was later discussed.
The 3 Licensing board denials of discovery requests and the i
like are often prime candidates for later appeal by aggrieved parties.
It should go without saying that we therefore expect the boards to create and to preserve the record of any such action.
8 Licensing Board apparently refused to issue the subpoenas for the TMI response records because these requests were
" vague" and "overproductive."
See Tr. 21,417.4 The Board disallowed the inmates' cross-examination of Mr. Buell on the subject of Bell Telephone's response to TMI essentially on the ground of hearsay; i.e., Mr. Buell had no personal knowledge of the matter, and the inmates could have obtained the information elsewhere but did not.
See Tr. 21,414-20.
In its decision, the Board noted that another witness (nichard T. Drown, a local official and communications i
{
technician who testified on behalf of the inmates) had testified briefly about dial tone delays during the TMI l
emergency.
But the Board was " unable to translate this limited information into specific projections of the severity, duration or geographical extent of any circuit l
l overloading that might result from an emergency at Limerick."
LBP-86-38, 24 NRC at (slip opinion at 21).
l There are several legal infirmities in the Board's I
l handling of this matter.
First, under the Commission's Rules of Practice, subpoenas are to be issued upon a showing I
of only " general relevance."
10 C.F.R. S 2.720 (a).
The general relevance of records of possible telephone service 4 The Board did not indicate that it refused to issue
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the subpoenas on the ground of untimeliness.
9 failures, during a past radiological emergency in a relatively nearby area, to the inmates' contention challenging the adequacy of the telephone-based call-up system at SCIG is patent.
Indeed, the Board apparently did not question the general relevance of the information sought, only its volume.
Tr. 21,417-18.
Second, where general relevance has been shown, there is no provision in the Rules of Practice for the Board's sua sponte refusal to issue the subpoenas; rather, a board may quash an already lasued subpoena "[o]n motion" of the person or entity against whom discovery is sought.
10 C.F.R. S 2.720 (f).
As for the Board's exclusion of Mr. Buell's hearsay testimony, the Board overlooked our long established rule that hearsay is generally admissible in NRC proceedings.
See ALAB-836, 23 NRC at 509 n.52 (rejecting intervenor complaints about hearsay by PECo witnesses in another phase of this proceeding), and cases cited; Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 411-12 (1976).
There is also an unfortunate irony in the Board's rulings.
The Board clearly believed that, prior to the hearing, the inmates should have attempted to obtain from those with firsthand knowledge the very information they sought to elicit from Mr. Buell at the hearing.
Tr. 21,419, 21,420, 21,426.
In its decision, the Board also commented on the " limited information" produced on this subject.
10 LBP-86-38, 24 NRC at (slip opinion at 21).
Yet the inmates' attempts to obtain more information were thwarted by the Board's improper denial of the subpoenas.
See Tr.
21,416.5 The Eoard's erroneous procedural rulings, however, once again do not provide a basis for reversal.
As the Board found and we discuss below, fewer off-duty SCIG employees than originally contemplated would have to be called in during an emergency, and the timing and means of their mobilization have been altered.
The record also shows that, l
in any event, the SCIG call-up system is not entirely dependent upon the commercial telephone network, as it appeared previously; several backup means of communication exist.
These changes make the operation of the commercial telephone network during the TMI accident essentially immaterial to the ultimate disposition of the inmates' contention.
Thus, the inmates cannot -- indeed, do not --
identify any specific harm occasioned by the Licensing Board rulings to which they object here.6 5 The inmates do not claim (as they might well have),
however, that the severe time constraints on discovery also prevented them from pursuing this matter more doggedly.
6 It is also worth noting that the inmates were not entirely foreclosed from pursuing the TMI response matter.
They were permitted to question their witness, Mr. Brown, about it.
Tr. 21,529.
Moreover, it is significant that, on (Footnote Continued)
11 3.
The inmates also list several other ways in which they were assertedly denied a fair hearing.
They argue that the Licensing Board demonstrated its lack of impartiality by allowing the Department of Corrections to make changes in the RERP without notice or approval.
Inmates' Brief at 6.
On the substantive marits of this issue, however, we conclude infra pp. 12-15 that it was not improper for the j
Department to make these changes.
It follows that the Licensing Board's allowance of the testimony in this regard cannot be considered improper or unfair to the in=atec.
The inmates also claim that PECo's counsel, with
" regularity," submitted ex parte filings to the Licensing Board Chairman, who " appeared to accept said documents enthusiastically and graciously thanked him for his concern."
Inmates' Brief at 8.
But the inmates' total failure to substantiate this charge with any citations or examples precludes giving it any serious attention.7 (Footnote Continued) cross-examination by PECo's counsel, Mr. Brown stated that the equipment in use near TMI at the time of the accident was an "old technology," and that the longest delay in obtaining a dial tone during that emergency was about 30 minutes.
Tr. 21,533-34.
7 PEco mentions a Washington Legal Foundation (WLF) working paper on emergency planning, authored by one of PECo's counsel and sent by WLF last year to the Commission and various NRC officials, including the Chairman of the Appeal Panel.
See Licensee's Brief (January 9,1987) at 16.
We do not know if the WLF sent this paper to any Licensing (Footnote Continued) l 4
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12 Lastly, the inmates refer to the "past treatment" of their issues in this proceeding.
Id. at 7, 3-4.
We are well aware of the obstacles the inmates have encountered in their attempt to participate as legitimate intervenors.
See ALAB-806, 21 NRC 1183; ALAB-809, 21 NRC 1605.
Nor can we ignore the procedural shortcuts taken by the Licensing Board after our last remand in ALAB-845.
But as we noted in that decision, the inmates sought redress for their earlier grievances and prevailed.
ALAB-845, 24 NRC at 250 n.31.
As for the additional hurdles encountered on remand of the manpower mobilization contention, the inmates simply have failed to make out a case of reversible error.
See supra pp. 6, 10.
B.
Changes in the Plan The inmates next argue that the Department of Corrections has made changes in the RERP Uithout proper authorization or notice, and that the revised plan thus cannot provide the basis needed for the " reasonable assurance" finding.
See supra note 2.
The changes specifically noted by the inmates are a decrease in the 1
(Footnote Continued)
Board member.
In 'any event, in response to other
- intervenors ' requests for certain sanctions against PECo and its counsel, both the Commission and we determined that no l
remedial or punitive action was warranted.
See CLI-86-18, 24 NRC (October 16, 1986), vacating on other grounds ALAB-840,.24 NRC 54 (1986).
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13 number of off-duty employees who would have to be mobilized in the event of an evacuation of SCIG; less reliance on the commercial telephone network for manpower mobilization; and no provision for removal or transfer, with the inmates, of their medical records.
Inmates' Brief at 8-11.
The inmates' claims, however, are without merit.
The inmates do not cite any support for their view that
" changes in the plan cannot be made.
. without approval from FEMA and PEMA [the Pennsylvania Emergency Management Agency)."
Id. at 10.8 Nor are we aware of any such limitation.
To the contrary, we have held many times in this proceeding and elsewhere that, while the overall concept and essential elements must be described, a plan need not be formally approved by the pertinent organizations or even final before a reasonable assurance finding can be made.
- See, e.g.,
ALAB-836, 23 NRC at 506, 508; Cincinnati 0 The inmates also complain that the changes were not l
documented in the plan itself.
Inmates' Brief at 10.
In response to the Licensing Board's direction (Tr. 21,563-66),
l however, the system now in use at SCIG for mobilizing i
l off-duty officers during an emergency has been incorporated i
into the RERP.
Letter from Theodore G. Otto, III, to Helen F. Hoyt (October 1, 1986); LBP-86-38, 24 NRC at (slip opinion at 22).
See generally ALAB-845, 24 NRC at 249 (emergency planning information should be readily available to those officials who must decide what protective actions to take); NUREG-0654/ FEMA-REP-1, Rev.
1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants" (1980) at 29
(" plans should make clear what is to be done in an emergency, how it is to be done and by whom").
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14 Gas & Electric Co. (Mn H.
Zimmer Nuclear Power Station, Unit No. 1), ALAB-727, 17 NRC 760, 770 (1983).
A fortiori, a plan can be changed during the hearing process without the prior approval of FEMA and other interested entities.
The inmates' argument about their lack of notice of the changes in the RERP is likewise unavailing.
The inmates' counsel did attempt during the prehearing conference call to ascertain whether the Department of Corrections contemplated any modifications in the call-up system, as it had been described during an earlier phase of the proceeding.9 He received no clearcut answer, possibly because the conference occurred so soon after the issuance of ALAB-845 that the Department of Corrections had not yet had an opportunity to determine what its response to the remanded issue would be.
See Tr. 21,356-61, 21,369.
There is no indication in the record, however, that the inmates made any effort during the albeit brief discovery period to get a more definitive answer on this subject from Department of Corrections personnel.
Further, when Charles H. Zimmerman, Superintendent of SCIG, testified at the hearing about the changes in the plan, the inmates did not claim " surprise" 9 Under this procedure, "SCIG employees [would] be mobilized through a pyramiding system in which one employee telephones ten others [from his or her home] and so on until all persons are notified."
ALAB-845, 24 NRC at 229.
15 and object to the testimony.
- See, e.g., Tr. 21,451-54, 21,468-69, 21,473-74, 21,492-93, 21,496-97.
They are therefore foreclosed from challenging this now on appeal.
See Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-335, 3 NRC 830, 842 n.26 (1976).
Moreover, the inmates once again allege no specific harm as a result of the lack of notice of the changes in the plan.
Indeed, the inmates' cross-examination of Superintendent Zimmerman and development of the record in this regard appear to have been unimpeded.
- See, e.g., Tr. 21,473-74, 21,492-93, 21,496-99.
Finally, it is worth noting that the changes in the plan that are the subject of the inmates' complaint are neither extraordinary nor contrary to the inmates' expressed 10 concerns.
For instance, Superintendent Zimmerman testified that the pyramid call-up system that was originally described in this proceeding (see supra note 9) is, in fact, only partially used.
That is, off-duty 10 The Department of Corrections, in fact, " denies" that any real " changes" have been made to the RERP.
Commonwealth's Brief (January 12, 1987) at 5 n.26.
At least as to the movement of medical records, this certainly appears true.
The Department states unequivocally that
"[t]he inmates' medical records are still being moved contemporaneously with the inmates [ citation omitted]."
Ibid.
In any event, this particular matter was not raised previously on appeal (and perhaps not before the Licensing Board either) and thus is beyond the scope of the remand in ALAB-845 and the instant appeal.
16 administrative and higher-level management personnel would help in the mobilization by telephoning one another from their homes.
The staff on duty at SCIG, however, would contact off-duty nonmanagement personnel directly from SCIG, using not only commercial telephone lines but also several other means of communication, including 10 additional lines that are part of the commonwealth's separate telephone network for its state agencies.
Tr. 21,454-59, 21,473; Commonwealth Exhibit 1; LBP-86-38, 24 NRC at (slip opinion at 10-12).
Thus, this change in the plan has led to the very result implicitly sought by the inmates' contention less reliance on calls made from off-duty employees' homes via a potentially overburdened public telephone network.ll The change in the number of off-duty employees that would have to be mobilized simply represents an appropriate i
refinement in the testimony.
To be sure, the record i
l previously showed that the number of off-duty employees that l
would need to be mobilized to evacuate SCIG in an emergency was a maximum of 300.
See ALAB-845, 24 NRC at 233 n.13 (citing Tr. 20,840-42).
Superintendent Zimmerman's testimony now is that no additional staff would have to be 11 The inmates' arguments concerning the adequacy of the call-up system as revised are discussed infra pp. 17-21.
17 called in during the day, and fewer than 100 officers would have to be mobilized during the night-shift.
Tr.
21,495-500.
The earlier estimate was somewhat ambiguous (due to the Department's reluctance to reveal the number of guards on each shift) and was given for a different purpose in connection with another issue.
Superintendent Zimmerman's testimony here, on the other hand, is specifically directed for the first time to the inmates' newly admitted manpower mobilization contention, and thus we would expect it to be more precise and reliable.
In any event, the inmates do not directly attack this more recent manpower estimate as inadequate to evacuate SCIG in an emergency.
The inmates' complaints about the lack of notice and prior approval of the changes in the RERP are therefore unconvincing.
C.
Adequacy of the Call-up Procedures In their final argument, the inmates contend that, even with the modifications in the RERP described above, the system for mobilizing the off-duty SCIG workforce in the event of a radiological emergency is still flawed and does not provide the requisite reasonable assurance.
They stress that the local telephone system, which remains an integral part of the call-up procedure, is not designed for service during natural or manmade disasters.
The inmates note that many of SCIG's employees live within or near the Limerick EPZ (see supra note 1), where the telephone lines are most
18 likely to be overburdened in an emergency.
Testimony shows that the availability of 10 additional lines in the Commonwealth's separate telephone network for outgoing calls would not necessarily overcome the congestion anticipated at the point of receipt of the call.
As for the several back-up systems mentioned at the hearing, the inmates assert that Superintendent Zimmerman did not sufficiently explain how these systems would actually mobilize the manpower necessary to evacuate SCIG.
In particular, they clain that the State Police and other organizations that have a backup role in the mobilization process do not have the addresses and telephone numbers of the individuals who would have to be contacted.
Inmates' Brief at 12-15.
The inmates correctly point out that the telephone system is engineered for normal, rather than disaster, service,12 and that, despite the availability of discrete lines for making outgoing calls from SCIG, some employees may experience difficulty in receiving calls at their homes if a public emergency were to occur.
See Tr. 21,421-23, l
l 21,428-29.
The inmates, however, overlook several important facts.
First, as noted above, Superintendent Zimmerman I
12 " Normal" service, however, is defined as the capability to provide a dial tone within three seconds to 97 percent of the customers during a " busy hour" of a " busy day" in winter.
Tr. 21,393, 21,424, 21,431-32.
19 testified that, in the event of an evacuation of SCIG, fewer l
than 100 off-duty employees would have to be called in to supplement the on-duty workforce and only during the 3
night-shift.
Tr. 21,469, 21,495-97.
He testified further that preparations for evacuation (including mobilization of personnel) would begin at the " alert" stage (Tr. 21,469, 21,506) -- which, in most accident scenarios, occurs well before a " general emergency" is announced to the public and before the corresponding strain on the telephone network would be expected to begin.
See 10 C.F.R. Part 50, Appendix E, S IV.C; Tr. 21,560.
Moreover, even if the telephone system was. overburdened at the same time as mobilization of off-duty SCIG employees was under way, the testimony of the inmates' own witness, Mr. Brown, suggests that there is no reason to expect lengthy delays.
See Tr. 21,534.
Perhaps most important, however, several means of backup communication exist.
SCIG has a hotline to the State Police, an emergency radio system, a " CLEAN machine" (a teletype form of communication with state and local law enforcement agencies), and pagers for key staff members.14 13 The inmates' arithmetic concerning the total SCIG workforce (Inmates' Brief at 14) ignores the fact that a substantial number of guards are on duty and thus available to aid in an evacuation at all times.
14 The Department of Corrections also plans to upgrade (Footnote Continued) l
20 Each of these means (as well as the 10 additional Commonwealth trunk lines switched through Philadelphia) could be used to notify off-duty SCIG personnel through the State Police or the Department of Corrections' central office in Harrisburg, or to mobilize correctional officers at other Commonwealth institutions to aid in an evacuation.
See Tr. 21,459, 21,460-62, 21,470; commonwealth Exhibit 1; LBP-86-38, 24 NRC at (slip opinion at 17-18).
The inmates' point that Superintendent Zimmerman did not adequately explain how the backup systems would work is not well taken; the cited portions of the transcript show otherwise.
Further, the Department of Corrections notes that the State Police, after notification from SCIG over the hotline, could contact the Department's central office in Harrisburg, which has the necessary call-up sheets (including SCIG officers' telephone numbers) and could thus mobilize the necessary staff from there.
Commonwealth's Brief at 3 & n.11.
See also Tr. 21,461.
We are therefore persuaded that there is reasonable assurance that, in the event of a radiological emergency, sufficient off-duty employees can be timely mobilized to evacuate SCIG by (Footnote Continued) its telephone service to " priority" or " Class A," which improves the ability to get a dial tone.
Tr. 21,458, 21,464.
See LBP-86-38, 24 NRC at (slip opinion at 14-15, 17).
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21 reliance on the public telephone network and various backup means of communication.
Compare Metropolitan Edison Co.
(Three Mile Island Nuclear Station, Unit No. 1), ALAB-697, 16 NRC 1265, 1269-72 (1982).
LBP-86-38 is affirmed.
It is so ORDERED.
FOR THE APPEAL BOARD E, b -h_ N-4 C. JQn Shoemaker Secretary to the Appeal Board The concurring opinion of Ms. Kohl follows infra pp.
22-26.
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22 Ms. Kohl, concurring:
I agree with virtually-all of the discussion in the majority opinion and the result.
I take issue only with my colleagues' silence on a point that, while not outcome-determinative, is very troubling in terms of the inmates' " fairness" complaint about the Licensing Board's extremely expedited schedule.
As the majority notes, the Licensing Board's principal reason for expediting this matter was the prior commitments of all three Board members to hearings in two other specified proceedings (Seabrook and Braidwood).
According to the Board, September 22, 1986, was the only date until January 1987 on which the hearing on the inmates' contention could be held.
See LBP-86-38, 24 NRC at n.4 (slip opinion at 6 n.4); Tr. 21,356, 21,373-75.1 Ordinarily, such statements would be accepted at face value.
But the I The Board Chairman stated:
[ September 22] is the only available date [for]
i the members of this Board, who had other prior commitments on their dockets.
Judge Harbour in Seabrook, Judge Cole in the Breakwood (sic] case.
I have them in Seabrook.
That is the only date on which we could all agree we could stand to have the hearing.
And when I say that that is the only date, I'm talking about that's the only date i
between now [ September 3, 1986] and probably sometime in January, 1987.
Tr. 21,373-74.
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23 severely and unnecessarily shortened discovery period (one week) and hearing schedule (one day), along with the implausible circumstance that the Board could convene on only one day during a four-month period, justify closer than usual scrutiny here in response to the inmates' claim of unfairness.2 Contrary to the impression given, the hearing schedules of the Licensing Board members in the two other proceedings identified by the Board did not preclude a more typical schedule here.
At the time of the Board's conference call and scheduling order (September 3 and 4,1986), only one Board member was scheduled for (and actually later participated in) lengthy hearings during the last four months of 1986.3 This left the Board with several feasible 2 It should also be stressed that the manpower mobilization issue we remanded in ALAB-845 had never been explored at any hearing because the Licensing Board originally rejected it.
Thus, this is not a case where a remand was necessary simply to " clean up" a few items in connection with a contention that had already been subject t
to substantial litigation.
L Public Commission records (Board assignment notices, l
prior scheduling orders, hearing transcripts, and subsequent Board issuances) show the following.
See, e.g.,
Public Service Co. of New Hampshire (Seabrook Station, Units 1 and i
- 2), Docket Nos. 50-443-OL and 50-444-OL, Licensing Board Order of July 11, 1986 (unpublished);
-id., Docket Nos.
50-443-OL-1 and 50-444-OL-1, Licensing Board Order of August 20, 1986 (unpublished).
Judge Cole participated in many weeks of hearings during the fall of 1986 in connectior. with the Braidwood proceeding.
On the other hand, Judge Harbour l
(Footnote Continued) 1
e 24 and not infrequently used options.
The two remaining Board members constituted a quorum and could have held the hearing later in the fall, allowing more time for discovery and the usual procedures such as prefiled direct testimony.
See 10 C.F.R. S 2.721 (d).
The third member either could have declined to participate in the ultimate decision or could have decided the case on the basis of his review of the transcript and written filings.
The option most often employed when such scheduling conflicts arise, however, is reconstitution of the Board pursuant to 10 C.F.R.
S 2.704 (d).
See Suffolk County and State of New York Motion to Rescind Reconstitution of Board [Long Island Lighting Co.] (Shoreham Nuclear Power Station, Unit 1), LBP-86-37A, 24 NRC
& n.2 (November 7, 1986) (slip opinion at 5-6 & n.2) (licensing boards reconstituted 15 times in last I
l (Footnote Continued) was scheduled for, and participated in, only a few days of hearings from September 29 to October 3, 1986, for the Seabrook plant.
In another part of the Seabrook proceeding, l
over which Judge Hoyt presides, no hearings were scheduled for, or conducted during, the last four months of 1986.
Compare Tr. 21,373-74.
Further, no major decision in these or any other proceeding was issued by any of the Limerick Licensing Board members during this period.
l
25 two fiscal years).4 The notion that September 22 was the one and only day on which the hearing could be held (Tr.
21,373-75) was therefore simply not correct.5 Where a party is entitled to a hearing, as here, a board should make a diligent effort to establish a reasonable schedule for discovery and the hearing itself.
In order to accomplish the Commission's dual objectives of "an efficient hearing" that " moves along at an expeditious pace, consistent with the demands of fairness," such a schedule should primarily preserve a party's due process rights and, secondarily, accommodate the legitimate conflicts of the board members and other parties.
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453 (1981).
By failing even to consider the readily available options discussed above, the Licensing Board here effectively and arbitrarily reversed these 4 This option (reconstitution) was thus available even if all three Board members had been fully committed to other proceedings during the latter part of 1986.
5 The Board also implied that September 22 was the only day on which a room for the hearing could be obtained in Philadelphia.
Tr. 21,374.
No mention of other possible locations closer to the plant site was made, however.
4 26 l
priorities.6 Because the inmates have not demonstrated any i
4 actual harm resulting from the Board's schedule, however, I must reluctantly agree with the majority that there is no legal ground for reversal.
6 While my colleagues " find no justification for the schedule established by the Board" and " expected that the proceeding on remand would follow the usual course and schedule contemplated by the Commission's Rules of Practice," they do not indicate what the Board should have done in the circumstances.
See supra pp.
5, 6.
Employing one of the options I have set forth above would have minimized any delay while fully preserving the inmates' hearing rights.
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