ML20207N623
| ML20207N623 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 01/09/1987 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2163 OL, NUDOCS 8701140321 | |
| Download: ML20207N623 (34) | |
Text
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COLKETED USNRC UNITED STATES OF AMERICA
'8T JAN 12 'P4 :25 NUCLEAR REGULATORY COMMISSION GFF;1,,.,
Occsc Before the Atomic Safety and Licensing Appeal' Board:l.'-
Christine N.' Kohl, Chairman Howard A. Wilbur Gary J.
Edles In the Matter of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352 -Ob
)
50-353-CL (Limerick Generating Station,
)
Units 1 and 2)
)
LICENSEE'S BRIEF Ill OPPOSITION TO APPEAL BY GRATERFORD INMATES OF THE SUPPLEMENT TO THE FOURTH PARTIAL INITIAL DECISION Troy B. Conner, Jr.
-Robert M.
Rader Nils N. Nichols Conner & Wetterhahn, P.C.
Suite 1050 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Counsel for the Licensee Philadelphia Electric Company of Counsel:
Edward G.
Bauer, Jr.
Eugene J. Bradley 2301 Market Street Philadelphia, Pennsylvania 19101 8701140321 870109 PDR ADOCK 05000352 O
])J'd Ib
- j-i TABLE OF CONTENTS Page Preliminary Statement 1
2 Argument I.
The Department Of Corrections Was Not Required To Give Notice Or Obtain Authorization Before Revising Its Emergency Plan for Graterford.
2 II.
The Inmates Received A Fair And Impartial Hearing.
9 III.
The Graterford Plan Provides Reasonable Assurance That Sufficient Staff Will Be Available To Evacuate The Institution.
16 Conclusion 26
a O
TABLE OF CITATIONS Page Cases Conway v. Chemical Leaman Tank Lines, Inc.,
687 F.2d 108 (5th Cir. 1982) 7 Martel Mills Corp. v. NLRB,.ll4 F.2d 624 (4th Cir. 1940) 15 United States v. Shaughnessy, 116 F.
Supp.
745 (S.D.N.Y.
1953), aff'd, 220 F.2d 537 (2d Cir.), cert. denied, 350 U.S. 847 (1955) 15 NRC Issuances Cincinnati Gas & Electric Company (Wm. H.
Zimmer Nuclear Power Station, Unit No.
- 1), ALAB-727, 17 NRC 760 (1983) 8, 24 Duke Power Company (Wm.
B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453 (1982) 15 Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397 (1976) 7 Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2), ALAB-335, 3 NRC 830 (1976) 7 Northern Indiana Public Service Company (Bailly Eenerating Station, Nuclear 1),
ALAB-303, 2 NRC 858 (1975) 12 Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2)
CLI-86-18, 24 NRC (October 10, 1986) 16 ALAB-857, 25 NRC (January 2, 1987) 10 ALAB-845, 24 NRC (August 28, 1986) 1, 2,
10 ALAB-836, 23 NRC 479 (1986) 6
- ii -
.o Page
" Supplement To The Fourth Partial Initial Decision Relating To The Remanded Contention Regarding Manpower Mob 3~.zation At The State Correctional Institution at Graterford" (November 10, 1986) passim ASLB " Order" (September 4, 1986) 9 ASLB " Order" (June 12, 1985), reconsideration denied, " Order" (July 2, 1985) 2 LBP-85-14, 21 NRC 1219 (1985) 4 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452 (1981) 10 Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, & 2B), ALAB-463, 7 NRC 341 (1978) 7 NRC Regulations 10 C.F.R. 550. 47 (b) (10) 8 10 C.F.R.
S50. 47 (b) (16) 4 10 C.F.R. Part 50, Appendix E, Section IV.G 4
Miscellaneous Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Ntclear Power i
Plants, NUREG-0654/ FEMA-REP-1 (Rev.
1, 1980) 4, 8
Letter from Theodore G. Otto, III, Chief l
Counsel, Pennsylvania Department of Corrections to Helen F.
Hoyt, Chairperson, Atomic Safety and Licensing Board, NRC (October 1, 1986) 6 Letter from Robert M.
Rader, counsel for Licensee, to William R. Clements, Chief, Docketing and Service Branch (June 25, 1986) 16 i
i
- lii -
l l
Page
" Report of the President's Commission on the Accident at Three Mile Island, The Need for Change: The Legacy of TMI" (October 1979) 26 "Three Mile Island: A Report to the Commissioners and to the Public" (January 1980) 26 8
4 l
l
- iv -
e UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
Philadelphia Electric Company
)
Docket Nos. 50-352
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
LICENSEE'S BRIEF IN OPPOSITION TO APPEAL BY GRATERFORD INMATES OF THE SUPPLEMENT TO THE FOURTH PARTIAL INITIAL DECISION Preliminary Statement On November 21, 1986, intervenor inmates of the State Correctional Institution at Graterford ("Graterford") filed a notice of appeal from the decision of the Atomic Safety and Licensing Board
(" Licensing Board") dated November 10, 1986,1I which resulted from the remand ordered by the Atomic Safety and Licensing Appeal Board
(" Appeal Board")
in ALAB-845.
In ALAB-845, the Appeal Board affirmed the Licensing Board's Fourth
- PID, relating to emergency planning for 1/
Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),
" Supplement to the Fourth Partial Initial Decision Relating to the Remanded Contention Regarding Manpower Mobilization at the State Correctional Institution at Graterford" (November 10, 1986)
(" Fourth PID Supplement").
2/
Limerick, ALAB-845, 24 NRC (August 28, 1986).
Graterford,1/ except for the Licensing Board's rejection of a contention concerning manpower mobilization.4/
This issue was remanded for a hearing.
In the Fourth PID Supplement, the Licensing Board found that arrangements for notifying and mobilizing off-duty correctional officers at Graterford meet regulatory requirements and provide reasonable assurance that adequate protective measures for the Graterford inmates can and will be taken in the event of a radiological emergency at the Limerick Generating Station
(" Limerick"). !
Argument I.
The Department Of Corrections Was Not Required To Give Notice Or Obtain Authorization Before Revising Its Emergency Plan For Graterford The Graterford inmates' principal argument on appeal relates to the Department's decision to contact off-duty correctional officers directly from the institution rather 3/
This included an earlier decision rejecting other proposed contentions.
See Limerick, " Order" (June 12, 1985), reconsideration denied, " Order" (July 2, 1985).
4/
The Graterford inmates' contention relating to manpower mobilization alleges that "[t]here is no reasonable assurance that the call up system to be utilized in the event of a nuclear emergency in order to mobilize the entire work force of the State Correctional (Institution] at Graterford will achieve its designated purpose."
ALAB-845 at 4.
5_/
Fourth PID Supplement at 7,
24 (November 10, 1986).
The Licensing Board also found that its previous decision on evacuation time estimates for Graterford (Footnote Continued)
than by means of a
" pyramid" system of calls from the phones.O The inmates assert that this officers' home decision was impermissible because the change was made "without notice to opponents or authorization from the appropriate agencies."1/
The inmates also complain of the change in manpower necessary to implement the plan.
This argument has no merit and should be rejected.
Nothing in the Commission's regulations or the planning guidance in NUREG-0654 I requires a governmental unit or other entity to obtain prior approval of changes to its emergency plan from the
- NRC, the Federal Emergency Management Agency
(" FEMA") or the State planning agency, in (Footnote Continued)
~Id.
at 7, 22.
The Graterford inmates was unaffected.
do not challenge tliat conclusion on appeal.
6/
The Licensing Board described the change as folicws:
Although the capacity exists to utilize a " pyramid" system of notifica-tion by which off-duty administrative and management staff notify each other in turn over their residential phones, Graterford authorities have found it more practical and efficient to notify their correctional officer staff direct-ly from a centralized control center within the institution.
Fourth PID Supplement at 11 (November 10, 1986).
7/
Graterford Inmates' Brief at 2, 6 (December 9, 1986).
8/
Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654/ FEMA-REP-1 (Rev.
1, 1980).
_4_
this case, the Pennsylvania Emergency Management Agency
("PEMA").
Energency planning is a dynamic, ongoing process by which plans are amended whenever the responsible agency or jurisdiction determines a need for revisions.
Thus, the Commission's regulations and planning guid-ance in NUREG-0654 state that plans shall be reviewed and updated periodically,1/ but nowhere state that plan changes require advance approval by any planning or regulatory authority before the change is adopted.
The plans for the counties, municipalities and school districts within the Limerick emergency planning zone
("EPZ")
approved by the Commission in this proceeding, for example, call for review and revision of plans at least annually and in some cases semi-annually, even after the plans have been formally adopted and promulgated.10/
The plans themselves contain no requirement that future changes be approved in advance of adoption.
Nor is it necessary that plans, much less any changes, be approved by FEMA before a licensing board can make the necessary finding that the plan is adequate to protect the public health and safety in the event of a radiological emergency.
A licensing board may rely upon other evidence 9/
See 10 C.F.R.
$50. 4 7 (b) (16) and Part 30, Appendix E,
~
Section IV.G, NUREG-0654, Criteria P.4 and 5.
1_0,/
Limerick, LBP-85-14, 21 NRC 1219, 1373 (1985).
_5 adduced at hearing apart from FEMA's conclusions to make the reasonable assurance finding required by 10 C.F.R. 550.47.El For the same reason, plan changes need not be approved by the responsible State planning agency (here, PEMA) before the changes become effective.
The Licensing Board could determine the adequacy of the Graterford emergency plan, including any changes, before those changes had been re-viewed and approved by PEMA.b!
Nonetheless, PEMA
-11/
See Fourth PID Supplement at 21-22 (November 10, 1986).
As the Licensing Board stated below:
(T]he Board has had extensive testimony on this narrow issue and therefore has an adequate record upon which to base its evidentiary conclusions.
M reiterate the views expressed in our earlier decision that FEMA's evaluation of offsite emergency planning exercises and its testimony during hearings provides only part of the evidence comprising the record.
Limerick, supra, LBP-85-14, 21 NRC at 1229.
Aside from FEMA's corroborative testimony, the evidence adduced at hearing is sufficient to establish that the Commission's regulatory requirements and guidance criteria have been met for notification and mobilization of off-duty correctional officers at Graterford.
M.
(emphasis added).
Even though it was not a
condition precedent to the Board's finding of reasonable assurance, FEMA testified that the call-up provisions currently in effect at Graterford are adequate.
M. at 21.
M/
By comparison, in upholding the Licensing Board's (Footnote Continued) 3n e
m ey,-
y
,y-,,-+------,---,-r
--.,m
subsequently reviewed the change in notifying off-duty correctional officers, approved the change and forwarded it to FEMA for review.E!
The inmates also claim that, as an intervenor and party to the case, they were not alerted to changes in the plans regarding the means to notify off-duty correctional officers and the number of of f-duty of f a.cers needed to implement the plan.
This argument has no merit because the inmates lodged no objection at the hearing to the testimony of the Graterford Superintendent discussing these changes.
Having failed to object or move to strike at the hearing, the inmates may not object on appeal.14/
(Footnote Continued) approval of the county, municipal and school district offsite plans for Limerick, the Appeal Board noted that PEMA had not, at that time, received the plans for its final review and submittal to FEMA.
- Limerick, ALAB-836, 23 NRC 479, 508 (1986).
13/
Lotter from Theodcre G.
- Otto, III, Chief Counsel,
~~
Pennsylvania Department of Corrections to Helen F.
Hoyt, Chairperson, Atomic Safety and Licensing Board, NRC (October 1, 1986).
At the hearing, the Graterford Superintendent testified that the change had not yet been formally incorporated into the Graterford emergency plan.
The Licensing Board required this action to bc undertaken, which was confirmed by Mr.
Otto's letter of October 1, 1986.
1_4,/
As the Appeal 3oard stated in Catawba:
4 Principles of equity and fairness do not permit a party to " remain mute and await the outcome of an agency's decision
- and, if it is unfavorable, attack it on the ground of asserted procedural defects not called to the (Footnote Continued)
I
Moreover, even assuming, as claimed, that the Depart-ment of Corrections did not provide timely notice of-these changes to the inmates, the record fails to demonstrate that the inmates were in any way prejudiced.
When the Graterford Superintendent testified as to these changes, the inmates' counsel did not claim surprise and requent an opportunity to obtain rebuttal testimony, nor did he claim that his cross-examination of the Superintendent was impaired.15I (Footnote Continued) agency's attention when, if in fact they were
- defects, they would have been correctable Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 411 n.46 (1976).
See also Tennessee Valley Authority (Hartsville Nuclear Plant, Units lA, 2A, 1B, & 2B), ALAB-463, 7 NRC 341, 362 n.90 (1978);
Florida Power Light Company (St.
Lucie Nuclear Power Plant, Unit No. 2), ALAB-335, 3 NRC 830, 842 n.26 (1976).
15/
Under federal jurisprudence, a
request for a
new hearing as a result of surprise is granted only on the most compelling circumstances.
The basic standard has been explained by the Fifth Circuit Court of Appeals in Conway v.
Chemical Leaman Tank Lines, Inc.,
687 F.2d 108, 111-12 (5th Cir. 1982), as follows:
The surprise.
. must be " inconsistent with substantial justice" in order to justify a grant of a new trial.
Fed.
R.Civ.P.
61.
The district court is therefore entitled to grant a new trial only if the admission of the surprise testimony actually prejudiced the plaintiffs' case.
This Court has limited reversable error from unfair surprise to situations where a
completely new issue is suddenly raised or a
previously unidentified expert witness is suddenly called to testify.
[ Citation omitted.]
[ Footnote omitted.]
y To the contrary, the Graterford Superintendent had been properly identified as a witness and the scope of his testimony was known to the inmates in advance of the hear-ing.
The plan changes to which the Superintendent testified did not present any new issues and, therefore, did not deny the inmates a
fair hearing.
Those changes were fully litigated at the hearing and further hearings could contrib-ute nothing more to the record.
Even on appeal, the inmates have not specified what, if any, further evidence they would adduce.
Finally, the inmates contend that the purpose of the call-up system has been altered because various institution records will not be evacuated.EI Licensee disagrees that there has been any " change" in the plan as regards institu-tion records, but the allegation is frivolous in any event.
No basis has been shown in the Commission's regulations or NUREG-0654 to require that any records be removed from Graterford in the event of an evacuation.
To state the obvious, evacuation as a protective action is intended to minimize human exposure to radiation pathways and thereby maximize dose savings, not collect records.EI g/
Graterford Inmates' Brief at 2 (December 9, 1986).
J7/
10 C.F.R.
S
- 50. 4 7 (b) (10) ;
NUREG-0654, Criterion J; Cincinnati Gas Electric Company (Wm.
H.
Zimmer Nuclear Power Station, Unit No.
- 1), ALAB-727, 17 NRC 760, 765, 770 (1983).
Nonetheless, Licensee believes (Footnote Continued)
~
_9-II.
The Inmates Received A Fair And Impartial Hearing After ALAB-845 was issued on August 28,
- 1986, the Licensing Board convened a conference call on September 3, 1986 to schedule a hearing on the remanded issue.
The Board stated' that the schedules of the Board members would not permit a hearing on the remand issue until 1987, unless it were convened promptly.
- Also, there were limits on the availability of a hearing room.
Therefore, the Board set a hearing date of September 22, 1986.18/
The Licensing Board further stated that no prefiled testimony would be required; that witness lists would be exchanged no later than Septem-ber 12, 1986; and that discovery could begin immediately.1SI The inmates claim they were denied a fair and impartial hearing because an expedited schedule for hearing was established.2p/
In ALAB-845,
- however, the Appeal Board (Footnote Continued) that the plan does, in fact, provide for the removal of certain inmate records, including medical records.
18/
See Fourth PID Supplement at 6 n.4 (November 10, 1986);
Tr. 21373-74.
19/
Limerick, " Order" (September 4, 1986).
20/
The inmates recount at length the procedural history of this proceeding as a basis for their claim that they did not receive a fair and impartial hearing.
As the Appeal Board found in addressing the same rehashing of events on appeal from the Fourth PID, "[t]he matters about which (the inmates]
- complain, however, were eventually resolved in their favor, and thus provide no basis for the instant appeal."
ALAB-845 at 46 n.31.
(Footnote Continued)
rejected an identical claim by the inmates on appeal from the Fourth PID, holding:
Where the ' circumstances warrant it, the Commission's regulations clearly permit the adjudicatory boards to shorten the time otherwise authorized for each of the matters about which the inmates complain.
- See, e.g.,
10 C.F.R.
SS2.711(a), 2.754(a).
See also State-ment of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453 (1981). 2J/
In general, the orderly completion of licensing cases "at an expeditious pace, consistent with the demands of fairness," E favors a prompt resolution of remand issues.
In this case, the manpower mobilization issue was the last piece of_ unfinished business in emergency planning hearings for Limerick.
It was in the interest of the NRC and other planning agencies, the Licensee and certainly the inmates themselves to determine as soon as practicable whether (Footnote Continued)
Moreover, the inmates' attempt to impugn the integrity of the Licensing Board is wholly without merit.
The inmates received a full and fair evidentiary hearing on all contentions found admissible.
Similar to the Appeal Board's recent holding in another context of this proceeding, the portions of the record cited by the inmates "do not support [their] characterizations or reflect any bias by the Chairman."
- Limerick, ALAB-857, 25 NRC (slip op. at 13-14)
(January 2,
1987).
And, as the Appeal Board also stated earlier, the inmates' charges of bias cannot be squared with their failure to seek disqualification of the Licensing Board or any member thereof.
ALAB-845 at 46 n.31.
2l/
ALAB-845 at 49.
2_2)
Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453 (1981).
a.
adequate means exists to notify off-duty correctional officers in the event of an evacuation of Graterford.E!
All three members of the Licensing Board had prior commit-ments in other proceedings and could not be available for hearing until January 1987 at the earliest.EI Given the alternative of waiting at least several months, it was judicious and well within the discretion of the Licensing Board to hold the hearing on an expedited basis.
In contrast, the inmates have made no showing that additional time was necessary to prepare for a hearing or that the hearing schedule otherwise prejudiced them.
During the conference call of September 3,
- 1986, the inmates' counsel stated a perfunctory objection to the expedited hearing (Tr. 21373), but offered no real justification for delay.
On appeal, the inmates simply reiterate the same generalized claim.
In ALAB-845, the Appeal Board rejected similarly unamplified arguments that the timing of the hearing had a
been unfair.
The Appeal Board found, as is the case here, that "despite their generalized claims of unfairness, the M/
The appeals of three parties, including the Graterford inmates, to the Third Circuit Court of Appeals from licensing actions on Limerick have been held in abeyance pending final agency action on all contested issues.
See Martin v. NRC, No. 85-3444 (3d Cir. August 15, 1985) (order granting motion to consolidate).
M/
See note 18, supra and accompanying text.
inmates provide no evidence in their brief of specific harm."EI The Commission has long held that "to establish reversible error arising from curtailment of discovery procedures, a party must demonstrate that the action made it impossible to obtain crucial evidence, and implicit in such showing is proof that more diligent discovery was impossi-ble."
The inmates have not met this test.
They have not stated what discovery they were precluded from pursuing or what further evidence they would have adduced at the hearing if more time had been allowed.
Neither at the hearing nor on appeal have the inmates made any proffer of witnesses, including the general line of their testimony, which they could not present at the hearing below or would present at a new hearing.
In fact, despite extraordinarily short notice, the Chairman of the Licensing Board issued all subpoenas the inmates requested for its witnesses.
The inmates' next complain that the Licensing Board declined to subpoena records from Bell Telephone of Pennsylvania and the Department of Corrections "as to how those organizations responded to the Three Mile Island 25/
ALAB-845 at 49.
26/
Northern Indiana Public Service Company (Bailly Generating Station, Nuclear 1), ALAB-303, 2 NRC 858, 869 (1975).
. o accident in 1979."El The inmates' subpoena request, dated September 16, 1986, was not received by the Licensing Board until Friday, September 19,
- 1986, the last working day before the hearing on Monday, September 22, 1986.2_8,/
The inmates did not show, and the Board had no reason to believe, that either Bell Telephone or the Department of Corrections maintained any readily retrievable category of documents relating to the Three Mile Island accident.
It is exist.EI The highly unlikely that such documents even Board did not abuse its discretion in declining to require Bell Telephone, not a party to the proceeding, to sift through voluminous records in search of probably non-existent information responsive to this vaguely worded 2J/
Graterford Inmates' Brief at 7 (December 9, 1986).
-28/
Tr.
21383-84,21417-18.
Licensee, and presumably the other parties to the proceeding, were never served with this request, which was denied by the Licensing Board in a conference call on September 19, 1986.
2J/
Obviously, Bell Telephone does not have any hard
" record" of telephone line congestion because circuit overloading results from an inability to complete calls.
One Bell Telephone witness testified, for example, that there is no way to tell whether delay in obtaining a dial tone or delay in completing a call after obtaining a dial tone is the major reason for circuit overloading (Buell, Tr.
21444).
For that
- reason, the only available knowledge of circuit overloading, and the only evidence adduced at the hearing, is anecdotal (e.g.,
Buell, Tr. 21419, 21427; Brown, Tr. 21518, 21529; Miller, Tr. 21540-41).
1 request.EI In any event, no prejudice has been shown inasmuch as an AT&T employee testified on this point.UI The inmates also complain that the Licensing Board improperly limited the testimony of Richard Buell, a Bell Telephone employee, to exclude his hearsay knowledge of circuit overloading during the Three Mile Island accident.E To the
- contrary, the Licensing Board's evidentiary ruling was sound.E/
While hearsay evidence is 30)
As regards the Department of Corrections, it is unclear what information the inmates sought.
It was never established that the Department of Corrections took any action with regard to the Three Mile Island accident.
The State Correctional Institution at Camp Hill, the nearest to the Three Mile Island plant, is outside its EPZ.
Nonetheless, if the inmates desired more information, they could have subpoenaed Mr. Jeffes, the Commissioner of the Department of Corrections, who had voluntarily provided considerable information on the details and procedures for implementing the Graterford emergency plan.
For example, Mr. Jeffes attended the prehearing conference on February 27, 1985 and responded to a number of questions raised by counsel for the inmates.
-31/
Significantly, none of the witnesses testified that there exists any documentation of circuit overloadinq during the Three Mile Island accident or any other emergency.
See note 29, supra.
M/
Graterford Inmates' Brief at 7 (December 9, 1986).
M/
When asked whether he had "any familiarity with the Three Mile Island accident scenario in 1979 and how the telephone service responded to that event," Mr. Buell
- replied, "I
don't have any personal knowledge.
I was not involved.
Therefore, I don't have any personal knowledge of what happened" (Buell, Tr.
21414).
Mr.
Buell had only indirect knowledge from another Bell Telephone employee.
I_d.
generally' admissible in NRC proceedings,U! the. courts have held that administrative agencies may reject hearsay evidence if it appears that direct-evidence from the original declarant himself was conveniently available.EI Because counsel for the inmates discussed Mr. Buell's testimony _with him prior to the hearing (Tr. 21415), he knew that Mr.
Buell lacked personal knowledge of circuit overloading during the Three Mile Island accident, but knew the identity of the ' Bell employee who did have personal knowledge.3_6,/
Accordingly, the Licensing Board did not abuse its discretion in excluding hearsay testimony which the original declarant could just as easily have been subpoenaed to of fer.
In any event, any error in excluding this testimony was harmless because Mr.
- Brown, an AT&T employee subpoenaed by the inmates, did testify on this point (Brown, Tr. 21529, 21533-34).
On appeal, the inmates do not claim that any further, probative evidence would have been added by Mr. Buell's testimony.
~
4
-34/
Duke Power Company (Wm.
B.
McQuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 477 (1982).
35/
Martel Mills Corp. v. NLRB, 114 F.2d 624, 629 (4th Cir.
1940); United States v.
Shaughnessy, 116 F.
Supp. 745, 750-51 (S.D.N.Y.
1953), aff'd, 220 F.2d 537 (2d Cir. ),
cert. denied, 350 U.S. 847 (1955).
36/
It is noted that counsel for the inmates wrote the Department's counsel on September 12, 1986, stating his intention to discuss these very matters with Mr. Buell (Tr. 21420).
The inmates' final assertion of unfairness is that Mr.
- Rader, counsel for the-Licensee, made certain ex parte filings with the Licensing Board.E This claim is also without merit.
If the inmates are referring to ' a monograph authored by Mr. Rader which the Washington Legal Foundation submitted to the NRC in May 1986, the Commission has already rejected the claim.E Insofar as the inmates allege that pro-nuclear trade publications have been filed ex parte with the Board, counsel for Licensee long ago denied this frivo-lous accusation.E/
Moreover, the inmates failed to raise either claim of prejudice before the Licensing Board, which bars consideration on appeal.E III.
The Graterford Plan Provides Reasonable Assurance That Sufficient Staff Will Be Available To Evacuate The Institution The inmates contend that the system for notifying off-duty personnel at Graterford is inadequate.
Primarily, the inmates argue that "the phone system is engineered to provide good service on a normal busy hour" and is not designed to cope with service demands during manmade or E/
Graterford Inmates' Brief at 8 (December 9, 1986).
M/
Limerick, CLI-86-18, 24 NRC (October 10, 1986).
39/
See letter from Robert M.
Rader, counsel for Licensee,
~
to William R.
Clements, Chief, Docketing and Service Branch (June 25, 1986).
g/
See note 14, supra.
e ~
r-
,e-,,
w.
- \\
_ 17 _
natural disasters.S/
While correct, this assertion totally ignores the evidence adduced at hearing and the Licensing Board's findings of reasoltatsle assurance that sufficient staff will be available to evacuate Graterford if necessary.
First, there is no reason to believe that the phone systems in other Bell Telephone regions are engineered any differently than in Pennsylvania, i.e.,
designed to offer greater service than necessary for the busy hour of the busy season and thus provide a dial tone to 97 percent of all users within three seconds.SI Mr. Asher, the FEMA witness, who is familiar with emergency response plans for other nuclear power plants throughout the
- country, including organizational chains of command and the means of notifying off-duty emergency
- workers, testified that other plans utilize the commercial telephone system in the same manner as Graterford.
In fact, Mr. Asher is unaware of any offsite plans 'for a
nuclear power plant which do not utilize workers.EI commercial lines to notify off-duty emergency l
Thus, the engineered capabilities of the commercial lines l-l g/
Graterford Inmates' Brief at 12 (December 9, 1986).
l R/
Fourth PID Supplement at 13 (November 10, 1986).
The telephone central offices in the Graterford and i
contiguous areas currently utilize state-of-the-art I
equipment or will be upgraded in the near future with j
this equipment.
Id.
43/
Id. at 23.
l
1 18 -
used at Graterford are the same as those found adequate for notifying off-duty personnel at other licensed plants.
- Second, the inmates speculate at length as to the number of correctional officers who might not be reached in an emergency, but simply have not come to grips with two elementary facts:
first, only'a small percentage of staff must be reached at all; second, no off-duty officers must be notified except during the nighttime shift, when phone usage is so minimal as to be incomparable to other times.EI Specifically, additional manpower would be needed to effect an evacuation at Graterford only on the 10:00 p.m.
to 6:00 a.m. shift when the inmates are already locked down in their cells.
Even during this period of minimum staffing, only fifteen percent of the off-duty staff, or less than 100
- officers, would be required to supplement the on-duty complement for an evacuation.EI
- Third, the Department of Corrections will notify off-duty officers at the alert stage of an emergency upon notification by PEMA.E!
This provides additional assurance that off-duty officers can be reached because the general public w.uld certainly not have been advised of an emergency.
At that juncture, telephone lines would not be I
44/
Id. at 16.
45/
Id. at 8-9.
46/
Id. at 10.
.a----cr.
7
_ 19 _
0 overly burdened.
Even in a rapidly developing scenario which proceeded immediately to a sounding of the sirens at the general emergency
- stage, off-duty personnel would understand that they are required to report to the prison.E
- Fourth, even if there were some delay in reaching off-duty officers at Graterford, the Department of Cor-rections could send of ficers from other State institutions which are supplying buses for an evacuation.
All or most of the additional staff necessary to carry out an evacuation at Graterford could be obtained from staff arriving from other institutions on the buses supplied to evacuate the inmates.
Loading and unloading inmates on buses from one institution to another is a routine assignment for these officers. EI 47/
Id.
The Licensing Board found that:
While these areas within the EPZ would have the greatest potential for telephone overloading, if such were to occur during an emergency at Limerick, the areas also are those covered by the emergency notification siren system.
- Thus, those Graterford employees from these areas, and not already on duty, would receive timely notification along with the general public, in the event of a fast-breaking emergency at Limerick, even if not notified at the alert stage.
M. at 18, 48/
Id. at 17-18.
- Finally, adequate procedures and resources exist by which off-duty officers can be contacted by telephone to report during an emergency.
Under this system, Graterford authorities can notify their staff by phone directly from a centralized control center within the institution.EI There are a total of 66 telephone lines at Graterford.
Five of these are private or direct lines, one of which is a hot line to the Pennsylvania State Police.
Ten other lines are part of the Commonwealth telephone network, a system which is utilized by departments and agencies of the Commonwealth for official business.
These lines are switched at Philadelphia and therefore would be unaffected by overloaded circuits at the Collegeville central office, which serves Graterford, unless particular calls were rerouted back to that office or other offices experiencing circuit overloading.NI Another means to enhance telephone line availability in an emergency involves the use of priority service for designated subscribers.
Under this system, certain lines are made available to priority customers by computerized scanning of all lines available for service.b/
The Graterford Superintendent stated his intention to obtain 49/
Id. at 10-11.
50/
Id. at 15-16.
l 51/
Id. at 14.
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l
such
- service, which would facilitate reaching off-duty officers over congested circuits.EI Additionally, Graterford has a combined law enforcement assistant network, or " CLEAN" machine, which could be used to notify the Department of Corrections office in Harrisburg to make telephone calls to support personnel.EI Graterford also has a radio system which could be used to contact Montgomery County emergency officials and other agencies.E The inmates erroneously contend that State officials whose assistance might be requested to notify off-duty officers do not know staff names and phone numbers.EI Superintendent Zimmerman testified that the Department of Corrections in Harrisburg has a
complete copy of the Graterford plan which contains the names and phone numbers of persons to be contacted and could make the necessary phone calls
('.immerman, Tr.
21461).
Moreover, as noted, Graterford could radio Montgomery County to request the news l
52/
Id.
at 17.
Priority service assists the user in obtaining a dial tone, but not in completing a call.
All switching systems are
- designed, however, to complete calls which have been dialed prior to attempting to originate a new call.
I_d. at 15.
M/
The CLEAN machine provides Graterford with the capacity to notify the central office, other law enforcement agencies and all other institutions simultaneously.
Id. at 11-12.
54/
Id. at 17.
55/
Graterfcrd Inmates' Brief at 13 (December 9, 1986).
1
media or the Emergency Broadcast Systems to make a public announcement for off-duty correctional officers to report.E The inmates contend that the ten Commonwealth network lines would be unreliable because incoming calls switched from Philadelphia would not reach off-duty staff in the Limerick area where lines would be congested.E/
This argument has no merit.
The Licensing Board found that, of the 628 total Graterford staff, only 110 officers reside in areas served by the Collegeville central office, which serves Graterford.E Further, only 257 reside within areas which may be inside the Limerick EPZ.E!
Seventy-two Graterford employees live at distances from the institution such that their estimated response time equals or exceeds 56/
Fourth PID Supplement at 17 (November 10, 1986).
E/
Graterford Inmates' Brief at 13 (December 9,
1986).
The inmates state that Richard Buell, an employee of Bell Telephone who was called as a
Commonwealth
-witness, did not " acknowledge" the workability of the Graterford call-up system.
This misrepresents the record.
The witness merely stated that he was unfamiliar with the Graterford manpower mobilization plan (Buell, Tr. 21429).
M/
Fourth PID Supplement at 16 (November 10, 1986).
59/
Id.
at 18.
The inmates utilize a
figure of 230 Graterford personnel living within the EPZ, compared to a figure of 257 used by the Licensing Board.
As noted
- above, correctional officers who live within the Limerick EPZ
- would, by virtue of the Emergency Broadcast System and other broadcast media, have timely notification of an emergency at Limerick, even if not personally notified.
l
- e two hours.
Even discounting those 257 staff who live in the EPZ and the 72 whose estimated response time equals or exceeds two hours, a pool of 299 staff exists from areas outside the EPZ from which to draw the less than 100 personnel required to augment on-duty staff.60/
The inmates would discount the availability of another 137 individuals living in areas allegedly in close proximity to the EPZ.61/
Consequently, the inmates contend that only 211 Graterford officers would be available in the event of an emergency._2,/
No basis exists for excluding from consid-6 eration the 137 personnel who live outside the EPZ.
The Licensing Board found:
[T]he residential areas under consid-eration outside the Limerick EPZ are sufficiently dispersed from the plant and each other that telephone circuit overloading in an emergency at Limerick would not delay notification of such personnel, if at
- all, for any i
60/
Id. at 18-19.
l I
61/
Graterford Inmates' Brief at 13-14 (December 9, 1986).
i
-62/
Id.
at 14.
It is unclear whether the inmates are Entending that some or all of these officers must be discounted because of their estimated response times.
The inmates assert that a majority of the 211 live in Philadelphia and will need 1
- hour, 15 minutes to arrive.
Id.
As is clear from the evacuation time l
estimate pTeviously approved by the Licensing Board at hearing and the Appeal Board on
- appeal, off-duty personnel are expected to report from one to two hours following notification.
- Further, the loading of inmates onto buses cannot commence until the buses have arrived, which will occur from about two to four hours into implementation of the plan (Zimmerman, ff. Tr.
i l
20763 at 9).
l
a unacceptable duration.
In
- all, the number of staff residing outside the Limerick EPZ who would be unaffected by congested telephone service at the time of an emergency, and have reasonable response times, far exceeds the maximum of fifteen percent of all off-duty guards necessary for an evacuation.6J/
The inmates did not adduce any evidence to the con-trary.
In any event, the inmates implicitly concede, even by their most conservative estimate of 211 personnel who would be reachable by phone, that at least a 2:1 ratio (211 versus less than 100) would exist between immediately notifiable staff and the maximum complement of officers needed to augment on-duty staff in an emergency.64/
In general, the inmates' arguments are based upon two fundamental assumptions which cannot withstand analysis.
The first is that all off-duty Graterford personnel must be contacted and must report immediately.
As discussed above, the previously approved evacuation time estimates for Q/
Fourth PID Supplement at 19 (November 10, 1986)
(citations omitted).
M/
The inmates also rely on Cincinnati Gas & Electric Company (Wm.
H..Zimmer Nuclear Power Station, Unit No.
1),
ALAB-727, 17 NRC 760 (1983).
See Graterford Inmates' Brief at 14-15 (December 9, 1986).
The Appeal Board discussed Zimmer in ALAB-845 as a basis for allowing litigation of the inmates' contention on guard mobilization.
ALAB-845 at 8 n.7.
Having now litigated the issue, however, the inmates have not shown any similarity between the plans and capabilities for notifying bus drivers in Zimmer and notifying Graterford correctional officers in the instant case.
Hence, the inmates have not shown why Zimmer is any longer relevant to their claims.
q
4 Graterford incorporate a range of reporting times from one to -two ' hours upon notification.
Even if some off-duty-officers.were to report later, the ability to implement the plan would. not be adversely af fected.
Bringing the inmates
~from the cells and loading them onto buses will take about five hours and will not even commence until the first bus has arrived at Graterford, about two hours into the emergen-cy (Zimmerman, ff. Tr. 20763 at p. 9).
Second, the inmates wrongly assume that difficulty in contacting off-duty guards because of overloaded circuits means ~that they cannot be notified.
Even if circuits are overloaded, telephone calls are generated and completed within - the capability of the - system.
Some calls are de-layed, but others get through.
Eventually, all callers are served.N
- Indeed, the inmates' principal witness tes-tified
- that, to his knowledge, the longest delay ever experienced in completing calls during emergency conditions was only up to half an hour.
One delay occurred during the Three Mile Island
- accident, before enhanced emergency planning procedures like those for Limerick were in place.
Another occurred during extreme storm conditions which created equipment problems contributing to the delay.66/
1 g/
Fourth PID Supplement at 16-17 (November 10, 1986).
66/
Id.
at 19-21.
Significantly, the witness did not testify that there was difficulty or delay in (Footnote Continued)
1
' Comparing the number of available off-duty Graterford staff with the maximum number needed, and considering the time frame for completing an evacuation of the. institution, it.is evident that a delay of one-half hour in notifying some personnel would be insignificant.
- Moreover, the various communication systems and priorities available to the Department of Corrections, but not the general public, greatly reduce the risk of any such delay.
Conclusion For the reasons discussed above, the Licensing Board's findings of fact and conclusions of law in its Fourth PID Supplement are supported by substantial, reliable and probative evidence.
There is no basis for any finding of factual or legal error.
The decision of the Licensing Board should therefore be affirmed in all respects.
Respectfully submitted, CONNER & WETTERHAHN, P.C.
r btQ '
4) L rid $.,
Troy nner, Jr.
/
Robert M. Rader Nils N.
Nichols Counsel for the Licensee January 9, 1987 (Footnote Continued) contacting emergency officials or workers during the Three Mile Island emergency.
Licensee's review of the two principal reports on the Three Mile Island accident likewise reveals no such problem.
See " Report of the President's Commission on the Accident at Three Mile
- Island, The Need for Change:
The Legacy of TMI" (October 1979); "Three Mile Island:
A Report to the Commissioners and to the Public" (January 1980).
l e
D0tBEIK UNITED STATES OF AMERICA UMIPC NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal'0bahh In the Matter of
)
6FFtd U* EV/o[h[-
)
00C6ET m L '
Philadelphia Electric Company
)
Docket Nos. 50-352'RAU"
)
50-353 (Limerick Generating Station,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Brief in Opposition to Appeal by Graterford Inmates of the Supplement to the Fourth Partial Initial Decision," dated January 9,
1987 in the captioned matter, have been served ' upon the following by deposit in.the United States mail this 9th day of January, 1987:
Christine N. Kohl, Esq.
Dr. Richard F. Cole Chairman Atomic Safety and Atomic Safety and Licensing Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Dr. Jerry Harbour Gary J. Edles Atomic Safety and Licensing Atomic Safety and Licensing Board U.S. Nuclear Appeal Board Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Atomic Safety and Licensing Howard A. Wilbur Appeal Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C.
20555 Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary Helen F. Hoyt, Esq.
U.S. Nuclear Regulatory Chairperson Commission Atomic Safety and Licensing Washington, D.C.
20555 Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
q Benjamin H. Vogler, Esq.
Angus Love, Esq.
Counsel for NRC Staff 107 East Main Street Office of the General Norristown, PA 19401 Counsel U.S. Nuclear Regulatory Robert J.
Sugarman, Esq.
Commission Sugarman, Denworth &
Washington, D.C.
20555 Hellegers 16th Floor, Center Plaza Atomic Safety and Licensing 101 N. Broad Street Board Panel Philadelphia, PA 19107 U.S. Nuclear Regulatory Commission Director, Pennsylvania Washington, D.C.
20555 Emergency Management Agency Basement, Transportation Philadelphia Electric Company and Safety Building ATTN:
Edward G. Bauer, Jr.
Harrisburg, PA 17120 Vice President &
General Counsel Kathryn S. Lewis, Esq.
2301 Market Street City of Philadelphia Philadelphia, PA 19101 Municipal Services Bldg.
15th and JFK Blvd.
Mr. Frank R.
Romano Philadelphia, PA 19107 61 Forest Avenue Ambler, Pennsylvania 19002 Spence'W. Perry, Esq.
General Counsel Mr. Robert L. Anthony Friends Federal Emergency of the Earth of Management Agency the Delaware Valley 500 C Street, S.W.,
Rm. 840 106 Vernon Lane, Box 186 Washington, DC 20472 Moylan, Pennsylvania 19065 Thomas Gerusky, Director Miss Maureen Mulligan Limerick Bureau of Radiation Ecology Action P.O.
Box 761 Protection 762 Queen Street Pottstown, PA Department of Environmental 19464 Resources 5th Floor, Fulton Bank Bldg.
Charles W.
Elliott, Esq.
Third and Locust Streets 325 N.
10th Street Harrisburg, PA 17120 Easton, PA 18042 Gene Kelly Jay M.
Gutierrez, Esq.
Senior Resident Inspector U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission P.O.
Box 47 Region I Sanatoga, PA 19464 631 Park Avenue King of Prussia, PA 19406
s Mark L. Goodwin, Esq.
Pennsylvania Emergency Management Agency P. O. Box 3321 Harrisburg, PA 17105-3321 Timothy R.S. Campbell Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Mr. Ralph Hippert Pennsylvania Emergency Management Agency B151 - Transportation Safety Building Harrisburg, PA 17120 Theodore G.
Otto, Esq.
Department of Corrections Office of Chief Counsel P.O. Box 598 Lisburn Road Camp Hill, PA 17011 I
l l
t l
l
\\.
Nils N.
Nichols
_- _