ML20207P944
| ML20207P944 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 01/12/1987 |
| From: | Otto T PENNSYLVANIA, COMMONWEALTH OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20207P936 | List: |
| References | |
| OL, NUDOCS 8701200445 | |
| Download: ML20207P944 (12) | |
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a i DOLMETED USNRC UNITED STATES OF AMERICA-NUCLEAR REGULATORY COMMISSION 87 Jg u P2.06 Before the Atomic Safety and Licensing Appeal Board gp77 - -
In the Matter of
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Philadelphia Electric Company )' D'ocket Nos. 50-352 A
) 50-353- 0 C .
-(Limerick Generating Station, )
Units 1 and 2) )
COMMONWEALTH'S BRIEF IN OPPOSITION TO APPEAL BY GRATERFORD INMATES OF THE SUPPLEMENT TO THE FOURTH PARTIAL INITIAL DECISION Preliminary Statement By Order dated August 28,' 1986, the Atomic Safety and Licensing Appeal Board
(" Appeal Board") held that the Atomic Safety and Licensing Board (" Licensing Board")
abused its discretion in not admitting the manpower mobilization contention proposed by the Graterford inmates.1 Due to other commitments by th'e Licensing Board members, and in an effort to expeditiously resolve this remaining contention, the Licensing Board ordered a hearing on this matter to be held on September 22, 1986. After receiving testimony regarding.the manpower mobilization contention, the Licensing Board issued a supplement to its fourth partial initial decision holding that there was reasonable assurance that arrangements are in place at the State Correctional Institution at Graterford for the notification and mobilization of off-duty corrections officers in the event of a radiological emergency at the Limerick Generating Station.2 The Licensing Board also held that the previous evacuation time estimates made for the evacuation 1.- Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2),
ALAB-845, 24 NRC ( August ~28,1986).
- 2. 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) at 24 (Supplement to Fourth Partial Initial Decision).
r- 8701200445 870112
[ PDR ADOCK 05000352 i O PDR i
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- e of the institution were reasonable and compatible with the notification and mobilization arrangements.3 The Licensing Board concluded that there was a " reasonable assurance that adequate protective measures for the Graterford inmates can and will be taken in the event of a radiological emergency".4 On November 21, 1986, the Graterford inmates filed a notice of appeal from the decision of the Licensing Board.
ARGUMENT
- 1. There Is Reasonable Assurance That the Call-Up System Used By the State Correctional Institution at Graterford Will Provide Sufficient Manpower to Evacuate the Institution in the Event of an Incident at the Limerick Generating Station.
The contention remanded to the Licensing Board alleged 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 CorrectionalInstitute (sic) at Graterford will achieve its designated purpose".5 The Appeal Board noted that
"[t]he contention clearly raises an issue that can be a proper subject for litigation in an operating license proceeding-the adequacy of the communication system to be used in the event of an emergency".6 The clear focus of the inmates' contention was on the alleged inadequacies in the local, commercial telephone network on which the call-up system relied.
Superintendent Charles H. Zimmerman of the State Correctional Institution at Graterford testified during the hearing on September 22, 1986, regarding the inmates' contention. He testified that the Graterford institution has in place a call-up system to call in additional manpower which is used on a regular basis.7 This call-up procedure
- 3. Supplement to Fourth Partial Initial Decision at 3.
- 4. Supplement to Fourth Partial Initial Decision at 24.
- 5. Inmates' Proposed Revised Contentions (May 13,1985) at 2.
- 6. ALAB-845 at 8.
- 7. T.R. 21454, 21474, 21493.
is contained in the institution's emergency plan that is used generally during institutional emergencies.8 The Radiological Emergency Response Plan (RERP) was developed to specifically address the procedures to be used during an incident at the Limerick Generating Station. Since a call-up procedure (which consisted of call-up sheets) already existed in the institution's general emergency plan, a specific call-up procedure was not included in the RERP for an incident at the Limerick Generating Station.9 ,
Superintendent Zimmerman also testified as to alternate methods of contacting and mobilizing manpower if the commercial phone system at the institution failed or ,
dial tone delays were.being experienced. One option would be to bring in additional staff on the buses coming in from the support institutions.10 Another option would be to have the telephone calls originate from the Department of Corrections' Central Office in Harrisburg.Il if telephone service to the Central Office in Harrisburg was not available from the institution, the Pennsylvania State Police hotline could be used to contact the Limerick Pennsylvania State Police to radio the Harrisburg State Police to notify the Department's Central Office to make the phone calls.12 Another option would be to use the institution's radio system to contact other agencies such as the news media or the Montgomery County Emergency Radio System to have broadcasts requesting officers to report to the institution.13
- 8. T.R. 21454; 21474.
T.R. 21566. Even though at the time of the hearing, the call-up system was not 9.
l technically a part of the RERP for the Graterford institution, as ordered by Judge Hoyt
! on September 22, 1986, the call-up system has been formally added to the Graterford l
RERP. This action has been confirmed via a letter from Chief Counsel Theodore G.
Otto,111 to Judge Hoyt on October 1,1986, and served on all parties. The system used by the institution to call up additional manpower has proven itself to be reliable. T.R.
21454, 21462-3, 21474. Even though the call-up system for the Graterford institution l has always proven itself to be reliable, the Department has proceeded to request Class A or Priority telephone lines, which improve one's ability to receive a dial tone. T.R.
21393, 21458.
I 10. T.R. 21461-2,
- 11. T.R. 21461. Since the Department of Corrections' Central Office maintains copies of the institution emergency plans for all institutions, the Central Office would have the call-up sheets and phone numbers for the officers who needed to be called.
- 12. Id.
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Richard A. Buell, District Manager, Network Technical Services for Bell Telephone Company of Pennsylvania, provided the Licensing Board with evidence as to how the commercial telephone system works. lie established that telephone service is provided based on a historical measurement.14 A specific group of Bell Telephone employes monitor the demands placed or to be placed on a telephone system.15 The telephone service is engineered to provide a dial tone during the busiest hour to ,
ninety-seven percent (97%) of their customers within three (3) seconds.16 Mr. Buell confirmed that the Graterford institution had ten (10) telephone lines that were switched at the Collegeville Central Office.17 He also confirmed that there were another ten (10) lines from the Graterford institution that went through the Collegeville Central Office to be switched in a Philadelphia Central Office.18 These ten (10) telephone lines are a part of the Commonwealth's telephone network. These telephone lines would not be affected by an overload at the Collegeville Central Office.19 The direct telephone line to the Pennsylvania State Police from the Graterford institution, which is not switched at all, was also confirmed by Mr. Buell.20 This line would work regardless of the load on the telephone system.21 He acknowledged that there could be other lines from the Graterford institution to the Collegeville Central Office that he could not identify.22 Mr. James R. Asher of the Federal Emergency Management Agency (FEMA) testified that he was unaware of any nuclear power plant which does not utilize commercial lines as a means of notifying off-duty, emergency workers.23 He further
- 13. T.R. 21460-1.
- 14. T.R. 21389.
- 15. T.R. 21390.
- 16. T.R. 21393.
- 17. T.R. 21390.
- 18. T.R. 21391.
- 19. T.R. 21392.
- 20. T.R. 21391.
- 21. Id.
- 22. T.R. 2139 2.
- 23. T.R. 21554.
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testified that based on his hearing Superintendent Zimmerman, as well as his knowledge regarding the Graterford RERP, he was satisfied that there is a reasonable assurance in the event of a radiological emergency at Limerick that off-duty guards needed to implement the plan can and would be notified.24 Mr. Asher also testified that FEMA uses commercial telephone lines to notify its off-duty personnel of an emergency and to his knowledge, there has never been an instance in which FEMA has been unable to ,
notify its personnel.25 II. Changes In RERP's Do Not Require Advance Notice or Approval.
In their appeal,' the inmates claim that the Department of Corrections altered its RERP "without notice to opponents or authorization from the appropriate agencies".26 it is not entirely clear to which agencies the inmates are referring, but it appears they mean the Pennsylvania Emergency Management Agency (PEMA) and FEMA. Noticeably absent from the inmates' brief is any authority for their position. There is not one reference to any regulation or decision to support this allegedly absolute rule. One
- 24. T.R. 21554-5.
- 25. T.R. 21557.
- 26. Inmates' Brief at 2 and 6 (December 9,1986). The Department of Corrections specifically denies that changes were made to the RERP. The inmates' allegations regarding the change in concept of evacuation and the change in amount of manpower necessary to evacuate the institution are made of whole cloth. The inmates' medical records are still being moved contemporaneously with the inmates (See RERP Plan 2, Attachment G, E-1-G-2). To " prove" the changes in manpower, the inmates compare Superintendent Zimmerman's " worst case scenario" manpower estimate of 300 (T.R.
20,842) with a number much closer to that needed to evacuate according to the plan (15% of total staff or 95. T.R. 21496-7). Superintendent Zimmerman's estimate of 300 is about one-half of the total complement of the entire institution. This allows the other half of the complement off so that if the institution has to work on twelve-hour shifts during an extended major incident, relief officers will be available from the institutional complement. As for the call-up system, it still uses the commercial telephone lines that were the major concerns of counsel for the inmates. T.R. 21492.
The allegation of the inmates' counsel that the Department of Corrections changed the plan to " circumvent" the prior testimony of Mr. Brown is unfounded (See, generally, Inmates' Brief at 11). Clearly, the officer's home telephones are still a major part of the plan since some officers will need to be called at home. This will be true whether the call originates from the institution or another officer's home.
- I{
reason for this lack of authority is because the inmates' argument is contrary to the applicable regulations and decisions. An analogous issue has been decided by this Appeal Board in these proceedings.
The Limerick Ecology Action (LEA) group was challenging the Licensing Board's Third Partial Initial Decision. The focus of one of their issues was that the RERP's for various counties had not even been submitted to PEMA, much less approved ,
by it. Since PEM A is the conduit for transmitting RERP's to FEM A, the RERP's were also not submitted to FEMA at the time of the hearing.
In ruling on the Licensing Board's decision, this Appeal Board held that "[t]he basic plans, albeit evolving, are adequate and could be implemented now if necessary".27 Clearly the focus at the Licensing Board proceeding was whether the plan provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.
In the Zimmer28 proceedings, a licensing board decided that final approval by FEMA of a RERP was not necessary before making a licensing decision. In reviewing this decision, the Appeal Board held that NRC regulations contemplate a " licensing decision based on the best available current information on emergency preparedness".29 This case clearly rejects the notion that prior notice and approval are necessary for changes to a RERP.
A review of 10 C.F.R. 9 50.47 lends no support for the inmates' position.
Neither does NUREG-0654.
To the extent that the inmates claim some sort of procedural foul due to the claimed lack of notice, they also miss the mark. To prevail on such a claim, they must show actual prejudice.
- 27. ALAB-836 at 508.
- 28. Cincinnati Gas and Electric Company (Wm. H. Zimmer Nuclear Power Station, Unit No.1), ALAB-727,17 NRC 760 (1983).
- 29. ALAB-727 at 775. ,
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Earlier in these proceedings, this Appeal Board reviewed a claimed procedural error in that the Licensing Board did not allow LEA any cross-examination on the plans for additional traffic control. In rejecting their claim, the Appeal Board held that LEA "has failed to explain exactly what relevant information it would have sought to elicit by such cross-examination, or to show how it has been prejudiced".30 Although the inmates go to great lengths in their attempt to prove that ,
changes took place in the RERP, they never allege, much less prove, any actual prejudice.
The closest they come to alleging actual prejudice is their statement that the testimony produced at the hearing was "self-serving".31 It is hornbook law that the fact that testimony is self-serving does not preclude its introauction into evidence. Without any proof of actual prejudice, the inmates' claims, even if believed, have no merit.
An additional reason to reject the inmates' claims regarding any lack of notice or prior approval is that they are waived. At no time prior to or during the hearing did counsel for the inmates raise any objection to the testimony on the basis of surprise. " 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 agency's attention when, if in fact they were defects, they would have been correctable...'"32 Had inmates' counsel truly been surprised and had he made a timely objection, the Licensing Board could have cured any prejudice. By waiting until this late date to raise the claim, it is waived by failing to make a timely objection.
- 30. ALAB-836 at 495.
- 31. Inmates' Brief, Pages 11 through 12.
- 32. Duke Power Company (Catawba Nuclear Station, Units 1 and 2), ALAB-355, 4 NRC 397, 411 Note 46 (1976).
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8 111. The Inmates Received a Fair and Impartial Hearing As Guaranteed By 10 C.F.R. 2.718.
As in previous appeals, the inmates include their " history" in an attempt to support their claim of not receiving a fair and impartial hearing.33 This Appeal Board has already rejected their claims for the events preceding the remand for hearing on the manpower mobilization issue.34 Since these claims have already been rejected, and ,
in the interest of brevity, only the claims relating to the remand hearing will be addressed. The inmates offer three (3) generalized examples of how the hearing was not fair and impartial.
One example is the expedited hearing schedule. A telephone conference on September 3,1986 by the Licensing Board informed all parties that the hearing on the remanded contention would be held on September 22, 1986. The members of the Licensing Board had previous commitments into 1987, which precluded a hearing later in 1986.
The inmates alleged no actual prejudice due to the expedited schedule. It appears they are asking this Appeal Board to find that an , expedited schedule is a per se violation of their right to a fair and impartial hearing. Such a rule is clearly not supported by law.-
As early as 1981, the Nuclear Regulatory Commission acknowledged the authority of licensing boards to expedite the hearing process.35 Techniques were offered
, by the Commission to assist the licensing boards in expediting the hearing process while 1
j still providing a fair and impartial hearing. One of the techniques suggested, voluntary discovery, was used during the hearing process in question. Counsel for the inmates
, was voluntarily provided information regarding the call-up system and incidents where l
- 33. Graterford Inmates' Brief at 3 through 5.
- 34. ALAB-845 at 50.
l 35. See, generally, Statement of Policy on Conduct of Licensing Proceedings, CLI l 8,13 NRC 452 (1981); See also,10 C.F.R. 0 2.711(a) and 2.754(a).
the power failed at the State Correctional Institution at Graterford.36 The inmates were also provided with information about the Commonwealth witnesses on September 12, 1986.37 The prompt resolution of this remaining contention allowed the inmates at the State Correctional Institution at Graterford and the citizens who live around the institution to be reassured that the Graterford RERP provided a reasonable assurance that adequate protective measures for the Graterford inmates could and would be taken ,
in the event of a radiological emergency.38 The inmates have not alleged that they would have presented their case any differently given more time nor could they in good faith. The issue to be heard was not overly complex and was very narrow. Throughout these proceedings, the inmates had already identified Mr. Brown as an alleged expert who supported their position regarding the adequacy of the commercial telephone system. The inmates did not request further hearing time, nor did they request a continuance at the end of the hearing to present further testimony. Having not objected at the hearing, they should not be permitted to raise these issues for the first time on appeal.
The inmates allege that the Licensing Board's refusal to hear testimony or to allow discovery regarding the Three Mile Island (TMI) incident as evidence of their failure to receive a fair and impartial hearing. They claim, in their brief, that the TMI incident is "an excellent source of information as to how emergency personnel would be notified in the event of an emergency".39 This is certainly not the case.
- 36. In fact, even though the inmates' request for information on the power failures was received on the last business day before the hearing, the Department provided counsel for the inmates multiple copies of the documents he sought prior to the hearing.
- 37. All parties were to exchange witness lists on September 12, 1986, as per the Order of the Licensing Board.
- 38. Of course, if the Licensing Board ruled otherwise, changes could have been made to the RERP to correct any deficiencies noted by the Licensing Board, thus benefiting both the inmates as well as the citizens surrounding the institution.
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- 39. Inmates' Brief, Page 7.
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e The 1979 incident at TMl took place prior to the changes in planning which occurred as a result of it.40 The telephone system in place at the time of the incident was an antiquated step-by-step system.41 The telephone system in the Collegeville area will be a state of the art 5 ESS system.42 Additionally, the State Correctional Institution at Camp Hill is outside the ten-mile EPZ for the TMI generating facility, while the State Correctional Institution at Graterford is within the ten-mile EPZ for ,
the Limerick Generating Station.
Due to the significant differences between the two situations, the testimony offered and the discovery sought on the TMI incident was found to be i. relevant.43 The last example the inmates raise is the alleged unauthorized changes in the RERP. This issue has been addressed previously in this brief and for the reasons state above, their claim is without merit and offers no support for a finding of a denial-of a fair and impartial hearing.
The inmates' argument regarding the lack of a fair and impartial hearing is further weakened by their inaction in seeking the disqualification of the Licensing Board. If, in' fact, they truly believed the Licensing Board would not provide them a
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fair and impartial hearing, they could have sought the disqualification of the Licensing Board pursuant to 10 C.F.R. I 2.704(c).
- 40. C LI-81-8.
- 41. T.R. 21533.
- 42. T.R. 21406-7.
- 43. Pursuant to 10 C.F.R. I 2.743(c), the Licensing Board has the responsibility to only permit relevant, material and reliable evidence, which is not unduly repetitious.
o CONCLUSION For the reasons discussed above, the Commonwealth of Pennsylvania, Department of Corrections respectfully requests this Appeal Board to affirm the decision of the Licensing Board in its Supplement to the Fourth Partial Initial Decision Relating to the Romanded Contention Regarding Manpower Mobilization at the State Correctional ,
Institution at Graterford.
Respectfully submitted,
/
5 IThief eodore G. Otto,111 Counsel Department of Corrections Commonwealth of Pennsylvania P. O. Box 598 Camp Hill, Pennsylvania 17011 Dated: January 12, 1987 -
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ceu.Eit:
y ulim CERTIFICATE OF SERVICE
'87 JAN 14 P2 :07 I hereby certify that I have this day served a true and copy of the foregoing document upon the following by U.S. Mail, postage pre-paid, ahssed,as- foll$ws:
BR AEw Atomic Safety and Licensing Docketing and Service Section ,
Appeal Board Panel Office of the Secretary U.S. NRC U.S. NRC Washington, DC 20555 Washington, DC 20555 Helen F. Hoyt Benjamin H. Vogler, Esquire Administrative Judge Counsel for NRC Staff Atomic Safety and Licensing Office of the Executive Legal Director Board U.S. NRC Washington, DC 20555 Washington, DC 20555 Dr. Richard F. Cole Angus R. Love, Esquire Administrative Judge Montgomery County Legal Aid Atomic Safety and Licensing 107 East Main Street Board Norristown, PA 19401 U.S. NRC Washington, DC 20555 Dr. Jerry Harbour John L. Patten, Director Administrative Judge Pennsylvania Emergency Management Atomic Safety and Licensing Agency Board B-151 Transportation and Safety U.S. NRC Building Washington, DC 20555 Harrisburg, PA 17120 Troy B. Conner Joseph Rutberg, Equire Conner and Wetterhahn, P.C. Office of General Counsel 1747 Pennsylvania Avenue Federal Emergency Management Agency Washington, DC 20006 500 C. Street, S.W., Room 840 Washington, DC 20472
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E ET odore G. Ott6,111 hief Counsel Pennsylvania Department of Corrections Dated: January 12, 1987