ML20210C101

Petition for Review.* Review of Aslab 870417 Decision ALAB-836 Requested to Determine If Reasonable Assurances Given That Sufficient Manpower Will Be Mobilized in Event of Evacuation.Certificate of Svc Encl

ML20210C101
Person / Time
Site:	Limerick
Issue date:	05/04/1987
From:	Love A GRATERFORD INMATES, MONTGOMERY COUNTY LEGAL AID SERVICE
To:	NRC COMMISSION (OCM)
References
CON-#287-3302 ALAB-836, OL, NUDOCS 8705060081
Download: ML20210C101 (12)

Text

33d2-DOCKETED USHRC UNITED STATES OF AMERICA *gj g 4 q ,

NUCLEhn REGULATORY COMMISSION CFfiZ _ r , +

y in the Matter of:  : M I'"':.c_ -

PHILADELPHIA ELECTRIC COMPANY  :

(Limerick Generating Station, Units 1 and 2)  : NOS. 50-352, 50-353 " b PETITION FOR REVIEW I. INTRODUCTION The Inmates of the Stat'e Correctional Institute at Graterford through their attorney, dngu's R. Love, Esquire, hereby petition this Honorable Commission for review of a decision issued by the Atomic Safety and Licensing Appeal Board on April 17, 1987,

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identified as ALAB-836. Said decision involved a-prior remand by the Atomic Safety and"Licen::ing Appeal Board, which was characterized as a Supplement to the Fourth Partial Initial Decision. The issue which was subject to the remand, involved the Manpower Mobilization Component of the Radiological Emergency Response Plan for the State Correctional Institute at Graterford.

Initially, the Licensing Board had rejected the inmates' con-tention regarding manpower mobilization. The Appeal Board reversed that rejection, stating that the inmates had met the standard for admission of a contention and ordered hearings regarding the merits of the contention. The hearing before the Atomic Safety and Licensing Board was held on September 26, 1986.

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On November 10, 1986, the Atomic Safety and Licensing Board stated that there was a reasonable assurance that the call-up system utilized to mobilize manpower would achieve its desig-nated purpose of notifying off-duty personnel. The inmates appealed this decision to the Atomic Safety and Licensing Appeal Board on December 9, 1986.

They now request that the Nuclear Regulatory Commission review the decision of both the Atomic Safety and Licensing Board and that of the Atomic Safety and Licensing Appeal Board inuorder to determine if reasonable n assurances have been provided.that sufficient manpower will be mobilized so that an effective evacuation of the State Correc-tional Institute at Craterford can take place. I incorporate by reference, the Brief of the Graterford Inmates filed before the Atomic Safety and Licensing Appeal Board, dated December 9 ,

1986.

For the following reasons, the inmates claim they have not been provided with a reasonable assurance of the workability of the plan nor have they been given a fair opportunity to present their opposition to-the plan.

This Petition for Review is filed pursuant to 10 CFR 2.786(b)1. Copies of ALAB-863 were received by inmates' counsel on April 23, 1987 The document noted that it had been served on April 20, 1987.

II. LEGAL ARGUMENT A.

Procedural irregularities before the Atomic Safety and Licensing Board denied the inmates due process of law.

The Fifth and Fourteenth Amendments of the United States Constitution call for due process of law prior to the

taking of any life, liberty, or property. Procedures that comply with due process vary according to the particular circumstances of each case. Rochin v. California, 342 U.S. 165 (1952). Pro-cedures adequate to determine a welfare claim may not be adequate to try a felony case. See Goldberg v. Kelly, 397 U.S.

254 (1970); and Duncan v. Louisiana, 391 U.S. 145 (1976). Pro-cedures described by the Fifth and Fourteenth Amendments have been said to be essential to " restore faith that society is run for the many, not for the few, and that fair dealings rather than caprice will govern the affairs of men." See Morrissey v. -

Brewer, 408 U.S. 471, 499 (Douglas, J. dissenting) (1971). Such procedures have been designed as a safeguard against " patently arbitrary or discriminatory government action." Wieman v.

Updegraff, 344 U.S. 183, 192 (1952). The caselaw through the years does not detail every procedure to be utilized in every particular instance. It does, however, indicate certain basic requirements if a procedure is deemed to be adequate. The right to notice has been recognized as central to procedural fairness.

There must be sufficient notice to all parties of the pendency of the proceedings, enabling them to prepare for it. Convey v.

Somers, 351 U.S. 141 (1968). An impartial tribunal is another basic concept of procedural due process. A hearing must be held before an impartial tribunal in order to comply with procedural fairness. See Armstrong v. Manzo, 340 U.S. 545, 552 (1965).

The right to confront and cross-examine witnesses has also been

recognized as a basic requirement of due_ process. Pointer v.

Texas, 380 U.S. 400 (1965). And finally, the right to a reasoned decision based upon the record has also been recognized as fundamental to due process procedures. See Wichita RR and Light Company v. PUC, 260 U.S. 48 (1972). The Graterford inmates contend that these basic tenets.<of procedural due process were

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not observed by,the Licensing Board. Although many of their.

arguments have-been given serious consideration in the decision 1

of the Atomic Safety and Licensing Board ALAB-863, th~e Board claims that no prejudice resulted and thus affirmed the decision. The. inmates contend that the Appeal Board's'compart-mentalization of the various arguments successfully allude'd a J

showing of prejudice. The inmates contend, however, that if k

i the matter is looked at as a whole, with the'various short-4 comings viewed in combination, that fundamental due process requirements have not been observed. Therefore, they request t .

this' Honorable Commission to review the record and determine if j the inmates have been given proper notice, an opportunity to be j heard, and a hearing before an impartial. tribunal: Initially,

.the inmates point to the expedited hearing schedule that they were forced to comply with by the Licensing Board. On September 4, 1986, the Licensing Board held a conference call pursuant to L

the remand of ALAB-845. At that time, the Board informed all I

- parties that the schedule would be expedited due to conflicts that Board members had with other hearings. See Tr.21-356, 4

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21-373-75. The inmates' counsel objected to the expedited hearings and sought the normal time frame suggested by 10 CFR subpart G/ Rules of General Applicability. Over the objection of inmates' counsel, the Licensing Board set September 12th as the deadline for an exchange of witness lists and completion of discovery. The inmates note that the discovery provisions of 10 CFR 2.740 could not have been observed under such a short time frame. The inmates' counsel further noted that, in a show of good faith,-he had been willing to accept expedited schedules o as the Applicant had a pending application for a license at the '

Nuclear Generating' Station. In order to give consideration to ,

the Applicant, the' inmates reluctantly agreed to such an expi-dited schedule. Now that the Applicant has received the full power license for the Nuclear Generating Station at Limerick, t

'inma te s ' counsel saw no reason to expedite the proceedings any further. Said plea fell on deaf ears. As the Atomic Safety and Licensing Appeal Board noted in ALAB-863, "We find no justification for the schedule established by the Board on remand." See p. 5 ALAB-863, April 17, 1987. They continue to note that there was no apparent reason for the expedited schedule and that these conflict schedules suggested by the Boaro were, in fact, not accurate.

Despite the expedited schedule, the inmates sought the issuance of a subpoena pursuant to 10 CFR 2.720 regarding information available from the Three Mile Island nuclear

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accident in Middletown, Pennsylvania in.1979. The purpose of their request was to determine how emergency personnel _were notified at the time of that emergency. As the accident occurred l within the same jurisdiction, i.e. the Commonwealth of Penn-sylvania and involved the same telephone company, i.e. Bell of Pennsylvania, the inmates believe that such information was extremely relevant to the proceedings currently before the Atomic Safety and Licensing Board.

The inmates continue to insist that this information is the best available to achieve proper discover regarding the issue of manpower mobilization at the State Correctional Institute at Graterford during a

-nuclear emergency. The inmates also attempted to obtain records through subpoena from the Pennsylvania Department of Corrections L

on how correctional f acilities in the area of Three Mile Island responded during that emergency. Both requests were denied by the Licensing Board.

The inmates also contend that the Board which sustained PECO's objections to the inmates' attempt to cross-examine Richard A. Buell, District Manager of the Network Technical Services for Bell of Pennsylvania, on the subject of the Three Mile accident, also demonstrated partiality of the Licensing Board.

Thus, the Licensing Board successfully foreclosed any serious review of a major nuclear accident occurring within the Commonwealth of Pennsylvania.

The inmates continue to insist that there will be no better available source of information

on how to respond to a future nuclear emergency than how similar individuals have responded to prior nuclear emergencies. The Licensing Board denied the cross-examination of Mr. Buell on the subject of Bell Telephone's response to TMI on the grounds of hearsay. The inmates note that Mr. Buell was called as an expert in matters involving the phone service and thus did not need personal knowledge to discuss such activities. In doing so, the Board overlooked "our long established rule that hearsay is generally admissable in NRC proceedings. See ALAB-836, 23 NRC at 509 n. 52." See ALAB-863, p. 9, April 17, 1987.

The inmates further note that the denial of the subpoena was -

also held to.be questionable by the recent Atomic Safety and Licensing Appeal Board Decision. See p. 9, ALAB-863, April 17, 1987. As the decision goes on to point out, "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 first-hand 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 the subject. LBP-86-38, 24 NRC at (slip opinion at 21.)

Yet, the inmates' attempt to obtain more infcrmation was thwarted by the Board's improper denial of the subpoenas. See Tr. 21,416." See p. 9-10, ALAB-863, April 17, 1987.

The inmates' final contention involves unauthorized changes in the Radiological Emergency Response Plan which were done without proper notice. As notice is a fundamental concept of due process, the inmates were entitled to some sort of warning that the plan was going to be altered in a substantial fashion. Previous testimony from the Pennsylvania Department of Corrections Commissioner, Glen Jeffes, indicated that all personnel employed by the State Correctional Institute at Graterford would be utilized in order to effect the evacuation of the institution. See Tr. 20,535. The inmates' witness, Major John Case, also indicated that all personnel would be needed to complete the evacuation. See Tr. 20,533. The inmates c contend that such a serious endeavor as the evacuation of 2,500

, individuals at the state's largest maximum security facility would require all available personnel. At the time of the conference call regarding the scheduling of the hearing, Theodore Otto, counsel for the Pennsylvania Department of Corrections, indicated that there would be no further changes in the plan. Counsel for inmates questioned this as it appeared that the previous plan had been called into question by Atomic Safety and Licensing Appeal Board Decision ALAB-845. Thus, the inmates were surprised to hear that major alterations had been undertaken in the brief period between the conference call of September 4, 1986 and the hearing on September 22, 1986. The inmates continue to insist that the only reason said changes were made was in order to clear the last hurdle regarding final approval of their Radiological Emergency Response Plan. Un-fortunately, in their attempt to alter the fact pattern to

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i guarantee a favorable result, they have compromised the entire plan. Superintendent Zimmerman's suggestion that less than 100 people can. safely evacuate the institution is at considerable odds with the opinions of his superior, Commissioner Glen Jeffes and the inmates' expert, Major John Case. Superintendent 1 Zimmerman further altered the plan with regard to whether or not records would be accompanying the inmates during the evacuation.

His testimony even contradicted his prior statements with regard to the number of personnel necessary to conduct the evacuation.

! The inmates also note that said changes were not reflected in the covergsheet. embodied in the plan for changes to be documented.*

This led to-the. conclusion that said changes were merely ad hoc planning in order to satisfy the Atomic Safety and Licensing Board. The Appeal Board's suggestion that the inmates did not claim, surprise when told of these changes and thus, were:not prejudiced by said changes, fails to look at the record of the Atomic Safety and Licensing Board's handling of this issue.

From the very beginning, they have exhibited an inherent hostility to this issue as reflected by the record of these proceedings.- The inmates have been constantly surprised' thrc:ghout the hearing to find that the chairman of the Atomic Safety and Licensing Board appeared to be under the employ of the nuclear power industry. She relished accepting pro-nuclear documents from PECO counsel, Robert Rader, on several occasions.

To claim surprise before Helen H$yt would be redundant. It is for these reasons that we continue to question the impartiality

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of the Licensing Board.

The inmates. continue to contend that the changes made

, in the plan were without authorization and thus should not be given serious consideration unless all aspects of..the plan are subject to reevaluation in light of the changes. . Thus, it is the inmates' contention that they have failed to receive due process of law as guaranteed by the United Sta'tes Constitution.

This conclusion is based upon the expedited hearing scheduled

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that failed to provide them proper notice. The denial of the subpoenas denied them an effective opportunity to be heard.

l; ,, , The limitation of. cross-examinat. ion with regard to the-Three Mile Island incident denied them the opportunity to confront and cross-examine witnesses. The unauthorized changes in the plan without proper notice failed to give them an adequate opportunity 7r to prepare properly for the hearing. These irregularities in sum constitute their claim that the Atomic Safety-and Licensing Board was an impartial tribunal who was more interested in expediting the entire matter than to guarantee that a reasonable assurance that the Radiological Emergency Response Plan-for the State Correctional Institute at Graterford has been shown.

Respectfully submitted, f' '

/ J-l

'h LA GUS RV LOVE,fESQUIRE ~

/f\ ^ 4 Attorny}forIhmates, SCIG

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D00KETED USNHC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 17 MAY -4 P3 :01 In the Matter of -

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PHILADELPHIA ELECTRIC COMPANY 0FFE d' /$'/$[

00CMETE BRANCH (Limerick Generating Station, Units 1 and 2)  : NOS. 50-352, 50-353 M CERTIFICATE OF SERVICE I, Angus R. Love, Esquire, attorney for the Inmates at the State Correctional Institute at Graterford, hereby certify ~

that a true and correct copy of the PETITION FOR REVIEW, was mailed via first class, postage prepaid mail to the Service L'ist below, on May 1, 1987.

Administrative Judge Helen F. Hoyt Robert W. Sugarman, Esquire Atomic Safety & Licensing Board Sugarman, Denworth & Hellegers U.S. Nuclear Regulatory Ccanission 16th F1. , Center Plaza ""

Washington, D.C. 20555 101 N. Broad Street Philadelphia, PA 19107 Administrative Judge Jerry Harbour Atomic Safety & Licensing Board Docket & Service Station U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 (3 copies)

Ann P. Hodgdon, Esquire Counsel for NRC Staff Mr. Robert L. Anthony Office of Executive Legal Director 103 Vernon Lane, Box 186 U.S. Nuclear Regulatory Comission Moylan, PA 19065 .

Washington, D.C. 20555 David Wersan, Esquire Martha W. Bush, Esquire Asst. Consumer Advocate Municipal Services Bldg. Office of Consumer Advocate 15th & JFK Blvd. 1425 Strawberry Square Philadelphia, PA 19107 Harrisburg, PA17120 Atcmic Safety & Licensing Atomic Safety & Licensing Board Appeal Board Panel Panel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Ccmnission Washington, D.C. 20555 Washington, D.C. 20555

Frank Romano Jay M. Gutierrez, Esquire 61 Forest Avenue U.S. Nuclear Regulatory Conmission Ambler, PA 19002 Region 1 631 Park Avenue Zori G. Ferkin, Esquire King of Prussia, PA19406 Governor's Energy Council P.O. Box 8010 Phyllis Zitzer 1625 N. Frcnt Street Limerick Ecology Action Harrisburg, PA17105 P.O. Box 1761 762 Queen Street Mr. Thomas Gerusky, Director Pottstown, PA 19464 Bureau of Radiation Protection Dept. of Environmental Resources Charles W. Elliott, Esquire Fulton Bank Bldg. 5th F1. Counsel for Limerick Ecology Third & Locust Sts. Action Harrisburg, PA 17120 325 N. 10th Street Easton, PA 18042 Spence W. Perry, Esquire Associate General Counsel Eugene J. Bradley, Esquire FDtA Room 840 Counsel for Philadelphia Electric 500 CT St., SW 2301 Market Street Washington, D.C. 20472 _ Philadelphia, PA 19101 '

James Wiggins Edward G. Bauer, Jr.

Sr. Resident Inspector V.P. and Geners.1 Counsel U.S. Nuclear Regulatory Comm. Philadelphia Electric Company P.O. Box 47 2301 Market Street Sanatoga, PA 19464 Philadelphia, PA 19101 Timothy R.S. Campbell, Director Steven P. Hershey, Esquire Dept. of Emergency Services Conmunity Legal Services -

14 East Biddle Street 5219 Chestnut Street West Chester, PA 19380 Philadelphia, PA 19139 Director Penna. Emergency Management Agency -

Basement, Transportation Bldg. ,

Harrisburg, PA 17120  ; '

Arthur E. Gowran /

U.S. Dept. of Justice /

Appellate Section Land Division

/ ' LW w\ #

VE, ESQUIRE \J

/l, ANGUS"R. N 10th and Penna. Ave. NW Counsel fo Inmates, SCIG Washington, D.C. 20530 Montgane'ry ! ounty Legal AID Theodore G. Otto, III, Esq. L)&E.fainStreet Norristown,' PA 19401 Dept. of Corrections (215) 275 5400 Office of Chief Counsel P.O. Box 598 Camp Hil1, PA 17011 Troy B. Conner, Jr., Esq.

Conner & Wetthehan 1747 Penna. Ave, NW, Suite 1050 )

Washington, D.C. 20006