ML20210J416

Response Opposing Graterford Inmates 860911 Petition Re Adequacy of Manpower Mobilization of Radiological Emergency Response Plan.Certificate of Svc Encl

ML20210J416
Person / Time
Site:	Limerick
Issue date:	09/29/1986
From:	Rutberg J, Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#486-912 ALAB-845, OL, NUDOCS 8610010139
Download: ML20210J416 (15)

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00CMETED USNRC UNITED STATES OF AMERICA _ . , .

NUCLEAR REGULATORY COMMISSION *86 SEP 30 A11:23

- BEFORE THE COMMISSION QFif"E,e~"c.

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In the Matter of )

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PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352-4>

) 50-353,et (Limerick Generating Station, )

Units 1 and 2) )

NRC STAFF ANSWER IN OPPOSITION TO THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD'S PETITION FOR REVIEW OF ALAB-845 I

Joseph Rutberg Deputy Assistant General Counsel

- Benjamin H. Vogler j

Senior Supervisory Trial Attorney l'

September 29, 1986 8610010139 860929 PDR ADOCK 05000352 G PDR DSb7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of )

)

PHILADELPHIA ELECTRIC COMPANY )- Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

NRC STWFF ANSWER IN OPPOSITION TO THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD'S PETITION FOR REVIEW OF ALAB-845 l

Joseph Rutberg Deputy Assistant General Counsel Benjamin H. Vogler Senior Supervisory Trial Attorney September 29, 1986

UNITED STATES OF- AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

, In the Matter of )

)

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generat.ng Station, )

Units 1 and 2) )

NRC STAFF ANSWER IN OPPOSITION TO THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD'S PETITION FOR REVIEW OF ALAB-845 I. INTRODUCTION On September 11, 1986, the Inmates of the State Correctional Institute at Graterford (Inmates) filed a " Petition for Review" of ALAB-845.1 In ALAB-845, the Appeal Board decided the appeals from the Atomic Safety and Licensing Board's Fourth Partial Initial Decision - and the Licensing Board's earlier rejection of certain of the Inmates' proffered contentions. E All issues were decided in favor of the Licensee except for the rejection of the Inmates' proposed contention dealing with manpower mobilization at the State Correctional Institute at Graterford (SCIG). This contention was remanded to the Licensing Board for further consideration. ALAB-845 at 4. The In-1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-845, 24 NRC ( August 28, 1986). The Inmates had previously filed a Notice of Appeal on September 5,1986, which was withdrawn upon the filing of the instant petition.

-2/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LPB-85-25, 22 NRC 101 (1985).

-3/ Licensing Board Order of June 12,1985 / unpublished), reconsidera-tion denied, Licensing Board Ordar of July 2,1985 (unpublished).

2-mates are requesting Commission review of ALAB-845 in all respects except for the remanded contention and a contention dealing with medical services.

For the reasons set forth below, the NRC staff opposes the Inmates' petition

- and urges that it be denied.

II. BACKGROUND In ALAB-845, the Appeal Board dealt with the adequacy of the emergency plan for the SCIG. The Inmates had proposed a single contention with eight subparts alleging generally that there was a lack of reasonable assurance that the radiological emergency response plan (RERP) for the SCIG would protect them and the prison staff in the event of a nuclear emergency at Limerick. ALAB-845 at 2. The eight subparts were treated as 4

separate contentions; two were accepted for litigation I and the rest were denied. -

The Appeal Board sustained the two Licensing Board decisions in all

'but one respect. ALAB-845 at 4. The decision reversed the Licensing l

Board's rejection of the Inmates' contention concerning manpower mobiliza-l tion, admitted the contention, and remanded the matter to the the Licensing Board for further action. Id.

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. 4/ One contention dealt with the training for civilian emergency workers (bus drivers) to be utilized in the event of an evacuation of the SCIG due to a nuclear emergency at Limerick and the other con-cerned the estimated time of evacuation of the SCIG.

5_/ The rejected contentions dealt with manpower mobilization, input from the union representing the correctional officers, medical services to be provided in the event of an accident at Limerick, the simulated evacuation plan exercise for the SCIG, and the potential for panic in l

the event of the need to evacuate the SCIG.

The Appeal Board, in ALAB-845, first addressed the Licensing Board's treatment of the rejected contentions. It found that the Inmates had failed

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to provide a basis for their allegation that the SCIG correctional officers

, were not adequately informed about their duties during an emergency at Lim-erick and that further consultation with the union was therefore . required.

ALAB-845 at 16. The Appeal Board also affirmed the Licensing Board's de-cision rejecting the Inmates' contention dealing with the simulated evacuation because the proposed contention was lacking in basis and specificity.

ALAB-845 at 23. Finally, with respect to the last rejected contention raised in this petition, the Appeal Board found that the Licensing Board was cor-rect in rejecting the Inmates' contention raising the issue of panic in the event of an evacuation of the SCIG because it also lacked a specific basis.

ALAB-845 at 27.

In dealing with the first of the two litigated contentions, whether train-

{ ing would be offered to civilian bus drivers participating in an evacuation, the Appeal Board affirmed the Licensing Board's determination that training would be offered and based upon the record would be accepted by the civil-fan bus drivers. ALAB-845 at 34. The Appeal Board also held that the ef-forts by the Inmates to modify their contention on appeal to include the issue as to whether the training would be offered and received was being raised far too late in the proceeding. ALAB-845 at 31. The contention as admitted was limited to the issue of whether training would be offered.

However, the ppeal Board found that the record and the decision were not silent on the question of whether the training would, in fact, be provided to the drivers and could not disagree with the Licensing Board's conclusion that training would be offered and accepted. ALAB-845 at 33-34.

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The other litigated contention dealt with the evacuation . time estimate

(ETE) for the SCIG. The Appeal Board affirmed the Licensing Board and found that there was no merit to any of the arguments raised by the Inmates 6,/

, in connection with this aspect of their appeal. ALAB-845 at 36-43.

Specifically, the Appeal Board concluded that the Inmates' argument that the fact that there had been three ETE's and that there were differences be-tween them established that they were all unreliable was without merit.

ALAB-845 at 37. The Board found that the ETE that was considered at the hearing included the various components of an evacuation that would be uti-lized at the SCIG. ALAB-845 at 38. Furthermore, the Appeal Board also add'ressed several other specific questions raised by the Inmates with respect to the ETE and determined that a review of the record did not support their arguments. ALAB-845 at 38-43.

Finally, the Appeal Board addressed the arguments raised by the In-mates concerning the fairness of the hearing. With respect to each issue raised by the Inmates, the Appeal Board concluded that the examples cited

by the Inmates did not support their position. ALAB-845 at 50.

III. DISCUSSION Although the Commission has the discretion to review any decision of its subordinate boards, a petition for Commission review of matters of law and policy "will not ordinarily be granted" unless important environmental, safe-i 6/ It should be noted that although the Appeal Board affirmed the Li-censing Board decision with respect to the ETE, it directed that, in connection with the remanded contention dealing with manpower mobi-lization, the Licensing Board should determine what effect, if any, the resolution of that issue had on the ETE. ALAB-845 at 41.

ty, procedural, common defense, antitrust or public policy issues are in-volved. (10 C.F.R. I 2.786(b)(4)(1). Similarly, petitions for review of

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matters of fact will not be granted unless the Appeal Board has resolved a factual' issue necessary for a decision in a clearly erroneous manner contrary

f. .

to the resolution of that same issue by the Licensing Board. 10 C.F.R.

t 5 2.786(b)(4)(ii). The arguments made by the Inmates, in their petition, do not meet these standards and thus Commission review is not warranted.

The general thrust of the Inmates' position with respect to the litigated contentions is that they are unhappy that the Licensing Board and the Ap-j peal Board gave greater weight to the testimony of the witnesses who ap-peared on behalf of the other parties than to the testimony of the witnesses i

who testified favorably to their position. While such a position is under-standable, it does not establish that Commission review is warranted. As to I

the rejected contentions, the Inmates failed to set forth with sufficient speci-ficity the basis for these contentions and have not established that the re-jection of the contentions raises issues warranting Commission review.

A. Litigated Contentions

a. Bus Driver Training In their brief, the Inmates appear to assert that a contention dif-ferent from that which was litigated by the parties in this proceeding should have been considered. Petition at 6. The Inmates state that their concern lies with the use of civilian bus drivers and the reliability of such drivers to perform during an emergency. In their petition they request that the Com-mission give "some assurance that these individuals can be counted upon to l participate in an evacuation in the event of an accident at the Limerick Gen-erating Station." Petition at 2-3. However, that was not the issue they I

raised before Licensing Board or the Appeal Board. Below , the Inmates

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requested. the Appeal Board to find that "no reasonable assurances have been offered that civilians will be trained in radiological emergency respon-siveness." Brief of the Intervenors Graterford Inmates , August 14, 1985, at 25. However, the proposed contention that was accepted by the Licensing Board and litigated, dealt with the concern that there was no reasonable d

assurance that training would be offered to civilian personnel. U That i contention was litigated before the Licensing Board and it was the decision dealing with that contention that the Appeal Board affirmed in ALAB-845. b The record supports the conclusions reached by the Licensing and Appeal Boards on the issue of training being offered. In fact, Inmates do not question those decisions. Thus, the record is clear that the contention that was litigated is indeed the contention raised by the Inmates.

Nothing presented by the Inmates suggests that the issue of bus driver training warrants Commission review pursuant to 10 C.F.R. I 2.786.

I b. Estimated Time of Evacuation The Appeal Board affirmed the Licensing Board's determination that the Estimated Time of Evacuation prepared for the SCIG was reasonable and in compliance with the NRC's regulations and guidance. ALAB-845 at'36-43. The thrust of the Inmates' argument is that the Licensing Board and the Appeal Board relied upon the testimony of the wrong witnesses.

-7/ Proposed Revised Contentions of the Graterford Inmates with Regard to the Radiological Response Plan, May 13, 1985, at 6.

8/ Inmates assertion that the Appeal Board has determined that an offer of training is sufficient to guarantee the reliability of the use of civilian personnel in the event of an evacuation is a i mischaracterization of ALAB-845. See, Petition at 3. The Appeal j Board was dealing with the accepted contention and its conclusion 1

affirmed the decision of the Licensing Board that training would be offered. ALAB-845, at 35.

9I Petition at 6-9. However, Messrs. Lieberman, - Zimmerman, Urbanik ,

Asher and Kinnard, all of whom testified in connection with the ETE, were knowledgeable and credible witnesses and the record fully supports their

. testimony and the conclusions reached by the Licensing Board and the Ap-peal Board based on this testimony.

The Inmates also assert that because three ETE's were developed for the SCIG and because they were developed, according _ to the Inmates, without coordination, the ETE was incorrect. Petition at 7. While it is true that during the course of this proceeding reference has been made to three different ETE's, only one was offered at the hearing. ALAB-845 at 38. In addition, the Inmates had the opportunity to examine the ETE, present testi-mony and cross examine the proponents of the accepted ETE. Nevertheless, they have failed to establish that it is not reasonable and appropriate. The record clearly supports the ETE that was reviewed at the hearing. The existence of earlier time estimates does not change this conclusion.

1 The Inmates have failed to establish that the issue they raise in connection with the ETE warrants Commission review pursuant to 10 C.F.R.

l 5 2.786.

-9/

It should be noted that Mr. Lieberman's testimony was very clear, to l the point and was relied upon by the Licensing Board (e.g.

l LBP-85-25, Findings 48-53, 22 NRC at 115) and the Appeal Board (e.g. ALAB-845 at 40). Furthermore, the Inmates' statement that

', utilizing Mr. Lieberman's time frame for the arrival of busses at the SCIG would mean that they would be traveling at speeds in excess of 90 miles an hour is incorrect. Petition at 8. Such a conclusion as-sumes that all busses would be travelling from at least 190 miles.

i Such a conclusion is not supported by the record. Mr. Lieberman's prefiled testimony clearly indicates the range of distances that buss-l es woulrl travel is from 90 miles to 192 miles and that the travel time from the depot to the SCIG ranged from approximately two hours to (FOOTNOTE CONTINUED ON NEXT PAGE)

c. Rejected Contentions The Inmates request the Commission to review the denial by the Licensing Board and the subsequent affirmation by the Appeal Board of three contentions proposed by the Inmates. Petition at 9-10. None of the contentions raise issues warranting Commission review.

The first rejected contention deals with the Inmates' concern that there is no reasonah.e assurance that the correctional officers union (AFSCME) is aware of the Department of Corrections' concept of operations and its rela-tionship to the total evacuation effort. ALAB-845 at 15. The AFSCME is not an emergency response organization under the terms of NUREG-0654,Section II, Criterion A. Since the AFSCME does not have an assigned emer-gency response function covered by law or regulation it is not required to be consulted in developing an emergency plan. The contention was rejected by the Licensing Board because the Inmates provided no basis for question-ing the correctional officers' ability to perform their duties during an emer-gency at Limerick. The Appeal Board correctly affirmed this decision.

ALAB-845 at 16.

The second contention deals with the simulated evacuation plan j exercise for the SCIG. In this contention the Inmates argue that there is no reasonable assurance that the table top exercise of the evacuation plan con-

, ducted on March 7,1985 was adequate in terms of 10 C.F.R. 8 50.47(b)(14).

1 Proposed Revised . Contentions at 15. However, this regulation does not re-(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) four hours in good weather (average speed approx. 48 mph from 192 miles) and from two and a half hours to six hours for inclement weather (average speed approx. 32 mph from 192 miles). Lieberman ,

ff. Tr. 20,956, at 4.

quire that every activity identified in NUREG-0654, Criterion N, be included

, in every exercise. As the Appeal Board noted, Criterion .N is sufficiently flexible to permit substantial variation in the scenarios played out during an

. emergency exercise. ALAB-845 at 24. The Inmates before the Appeal Board and in .their petition to - the Commission have not provided the necessary specificity as to why the exercise did not comply with 10 C.F.R.

I 50.47(b)(14). Reference in their Petition (Petition, at 10) to the identifi-cation of specific personnel and the fact that there was activity at the Camp Hill office of the Department of Corrections do not come close to providing the type of specificity contemplated by our regulations. See, 10 C.F.R.

I 2.714.

The last denied contention being raised in this matter asserts that there is no reasonable assurance that the Radiological Emergnecy Response Plan (RERP) for the SCIG will prevent a spontaneous evacuation of either the guards or inmates during an emergency at Limerick. Proposed Revised Contentions at 16. However, the Inmates provide no specific basis to sup-port this contention nor do they attempt to explain why the RERP will not provide the very protection against panic that seems to concern the Inmates.

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! Accordingly, for the reasons set forth above, the rejected conten-tions being raised by the Inmates in their petition do not present the type of issues that warrants Commission review. 10 C.F.R. 5 2.786(b) .

d. Fairness of the Hearing l

The Inmates also raise in their petition the question of a fair hear-ing. Petition at 11. They make no effort to explain why the Appeal Board was wrong in rejecting their arguments or why the Commission should now consider them. They do, however, raise before the Commission the question of the funding of intervenors, an argument that was not raised befort. the l

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Appeal Board. Petition at 12. In raising this issue, they acknowledge that the Commission does not provide funding for intervenors and, thus, there is no issue for the Commission to now consider.

IV. CONCLUSION For the reasons set forth above, the Inmates have failed to establish that the issues they raise before the Commission in connection with ALAB-845 involve important questions of law, fact or policy warranting Com-mission review. Accordingly, the Commission should deny the Inmates peti-tion for review.

Respectfully sutmitted, seph Rutberg Deputy Assistant General Counsel

%/N .

r i 3 Benjamin H. Vogler Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 29th day of Septeuber,1986 1

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00LKETED UNITED STATES OF AMERICA 4 NUCLEAR REGULATORY COMMISSION

, BEFORE THE COMMISSION OFFICE Or nie ;;;y

- In the Matter of ) Tg <m

)

PHILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD'S PETITION FOR REVIEW OF ALAB-845" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or ar indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 29th day of September,1986:

Samuel J. Chilk Angus R. Love. Esq.

Office of the Secretary Montgomery County Legal Aid U.S. Nuclear Regulatory Commission 107 East Main Street Washington, D.C. 20555* Norristown, PA 19401 IIelen F. Hoyt, Chairperson (2) Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President & General Counsel Atomic Safety and ' Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Commission 2301 Market Street Washington, D.C. 20555* Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr. , Esq.

Administrative Judge Mark J. Wetterhahn, Esq.

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

Washington, D.C. 20555* Washington, D.C. 20006

Dr. Jerry Harbour Ms. Phyllis Zitzer, President Administrative Judge Ms. Maureen Mulligan Atomic Safety and Licensing Board Panel Limerick Ecology Action U.S. Nuclear Regulatory Commission 762 Queen Street

! Washington, D.C. 20555* Pottstown, PA 19464 Mr. Frank R. Romano Charles E. Rainey, Jr. , Esq.

Air and Water Pollution Patrol Chief Assistant City Solicitor 61 Forest Avenue Law Department, City of Philadelphia Ambler, PA 19002 One Reading Center 1101 Market Street, 5th Floor Philadelphia, PA 19107 Thomas Gerusky, Director Barry M. Hartman Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Building 300 N. 2nd Street Third and Locust Streets Harrisburg, PA 17105 Harrisburg, PA 17120 Spence W. Perry, Esq.

Director General Counsel Peansylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Basement, Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 Harrisburg, PA 17120 i

Robert L. Anthony Gene Kelly

, Friends of the Earth of the Senior Resident Inspector Delaware Valley U.S. Nuclear Regulatory Commission 103 Vernon Lane, Box 186 P.O. Box 47 Moylan, PA 19065 Sanatoga, PA 19464 Atomic Safety and Licensing Timothy R. S. Campbell, Director Board Panel Department of Emergency Services j U.S. Nuclear Regulatory Commission 14 East Biddle Street

Washington, D.*C. 20555* West Chester, PA 19380 Atomic Safety and Licensing Appeal

David Wersan Board Panel (8)

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

, 1425 Strawberry Square Harrisburg, PA.17120 Docketing and Service Section Office of the Secretary

, . Jay Gutierrez U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555*

USNRC, Region I 631 Park Avenue King of Prussia, PA 19406

Theodore G. Otto, III Chief Counsel Pennsylvania Dept. of Corrections

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P. O. Box 598 Camp Hill, PA 17011 k

Jos IKptutberg De yMssistant General Counsel 9

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