ML20214A930

Licensee Opposition to Petition by Graterford Inmates for Review of ALAB-863.* Review Opposed on Grounds That Inmate Petition Failed to Show ALAB-863 Erroneous or Justify Claims of Prejudice.Certificate of Svc Encl

ML20214A930
Person / Time
Site:	Limerick
Issue date:	05/14/1987
From:	Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC
To:	NRC COMMISSION (OCM)
References
CON-#287-3480 ALAB-863, OL, NUDOCS 8705200010
Download: ML20214A930 (10)

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DOCKETED USNRC UNITED STATES OF AMERICA '87 mY 15 P3 i44 NUCLEAR REGULA'IORY CX2NISSION CFFIC ~ - '

00Cht iitw ik'4 .

Before the Ccamission Li . la '

In the Matter of )

)

Philadelphia Electric Ccmpany ) Docket Nos. 50-352 J 4,

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

LICENSEE'S OPPOSITION 'IO PETITION BY THE GRATERN RD INMATES m R REVIEW OF ALAB-863 Preliminary Statement on May 1, 1097, the Graterford inmates petitioned the Ccmnission for review of ALAB-863, dated April 17,1987.1I In ALAB-863, the Atcmic Safety and Licensing Appeal Bc,ard (" Appeal Board") affinrad a decision by the Atcmic Safety and Licensing Board (" Licensing Board") which determined that adequate arrangements exist for notifying and nobilizing off-duty correctional officers of the State Correctional Institution at Graterford in the event of a radiological emergency at the Limerick Generating Station (" Limerick") . -

Pursuant to 10 C.F.R. S2.786Ib) (3), Licensee Philadelphia Electric Ccmpany (" Licensee") opposes the request by the Graterford inmates on

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1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) , AIAB-863, 25 NPC (April 17, 1987). A cover letter indicated service on April 20, 1987.

2/ See Limerick, LBP-86-38, 24 NBC (Novmber 10, 1986).

DOh o 52 PDR ()b

8 the grounds that they have failed to show that AIAB-863 is erroneous with respect to any inportant question of fact, law or Ccamission policy. We inmates have sinply recited their allegations of incorrect evidentiary rulings, which are insufficient to justify the Ccmmission's attention. Weir claims of prejudice on the part of the presiding officer are wholly unfounded and are essentially based on claims of adverse rulings.

Argument

. The inmates' due process claims boil down to their disagreenent with the expedited hearing schedule established by the Licensing Board.

Yet, the inmates have not cited concrete evidence of any discovery they were precluded from pursuing or any evidence they could otherwise have presented at the hearing if nore time had been allowed. Neither at the hearing nor on appeal have the inmates identified any witness, including the general line of his testimony, which they could not have presented at the hearing below because of schedule constraints. Accordingly, any error in expediting the hearing was harmless, as the Appeal Board correctlyfound.E Indeed, Licensee believes that the Licensing Board did not abuse its discretion in expediting the hearing as it did. During the 3/ ALAB-863 at 6. In an earlier decision, the Appeal Board found that "despite their generalized claims of unfairness, the inmates provide no evidence in their brief of specific harm." Limerick, AIAB-845, 24 NRC 220, 251 (1986) . The Ccomission has held that "to 4-establish reversible error arising frca curtailment of discovery procedures, a party must denonstrate that the action made it impossible to obtain crucial evidence," which the inmates failed to show here. Northern Indiana Public Service Ccunpany (Bailly Generating Station, Nuclear 1) , AIAB-303, 2 NFC 858, 869 (1975) .

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conference call of September 3,1986, the imates' counsel stated, at best, a perfunctory objection to the expedited hearing, but offered no real justification for delay (Tr. 21373) . On appeal, the imates sinply reiterated the same generalized claim. In short, the Licensing Board correctly recognized that there was very little discovery or other hearing preparation necessary to resolve this very limited contention, which was the last piece of unfinished business in emergency planning hearings for Linerick. It was in the interest of the NBC and affected planning agencies, the Licensee and certainly the irmates themselves to determine as soon as practicable whether adequate means exist to notify off-duty correctional officers in the event of an evacuation of Graterford.b Being advised of no significant. discovery yet to cmplete and rightly anticipating little preparation necessary to cmplete the one-day hearing, the Licensing Board was fully justified, and certainly did not abuse its discretion, in scheduling the hearing forthwith for a prompt resolution of the sole reand issue.N The Licensing Board's decision to act with dispatch is emparable to the same course of action dictated by earlier remands ordered by the Appeal Board. In the school bus driver remand in ALAB-836, the Appeal 4_/ It is also noted that 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. , October 2, 1985) (order granting motion to consolidate).

5/ The Commission has in fact encouraged the orderly empletion of licensing cases "at an expeditious pace, consistent with the demands of fairness." Statenent of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453 (1981).

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e Board found that the operating license for Limerick need not be suspend-ed if the hearing were prmptly conducted.6_/ 'Ihe Appeal Board stated its expectation that hearings could be empleted during the sumer recess, such that school children would not be theoretically at risk during any period when an evacuation of schools might have been necessary. By contrast, there was no hiatus in the need for adequate plans to protect the Graterford inmates while the Limerick plant was operating. Accordingly, the Licensing Board justifiably sought a prmpt conclusion to the guard notification remand issue. The fact that "the inmates . . . did not seek expedition"U is not dispositive and did not create error in the scheduling.

The inmates also emplain of an evidentiary ruling limiting cross-examination of a Bell Telephone witness which attempted to elicit hearsay testimony as to telephone service during the Three Mile Island accident. While Licensm believes that the Licensing Board did not abuse its discretion in excluding this evidence,8_/ the Appeal Board ccrrectly ruled that operation of the camercial telephone system during the Three Mile Island accident was " essentially imaterial to the 6_/

Limerick, ALAB-836, 23 NRC 479, 520 (1986) .

7/ ALAB-863 at 5.

8_/

It is true that hearsay is generally admissible in NRC proceedings, but the courts have held that administrative agencies may reject hearsay evidence if it appears that direct evidence frm the original declarant himself was conveniently available. E.g.,

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). Hence, a presiding officer is not obliged to accept hearsay evidence under any and all circumstances.

ultimate disposition of the inmates' contention."9/ -

The Appeal Board therefore held that the inmates had failed to " identify any specific harm occasioned by the Licensing Board rulings . . . ." E I The inmates also assert that " unauthorized changes" in the Graterford emergency plan were made "without proper notice."N As the Appeal Board correctly found, however, the imates' counsel made little effort to determine whether any changes had been made in the plan. For exanple, no deposition of knowledgeable, identified witnesses was sought with respect to the reand issue. The record does not show that the inmates even atterrpted to obtain information as to any change in manpow-er needs by informal request. Hence, the inmates failed to demonstrate that the mere change in manpower numbers in any way inpaired their ability to prepare for the hearing.

Moreover, the inmates did not claim surprise at the hearing when Superintendent Zinmennan testified as to manpower needs to inplement the plan. The failure to object at that time forecloses the inmates' appeal.N Finally, the inmates failed to specify on appeal what, if 9/ AIAB-863 at 10.

g/ Id. (emphasis in original) . The Appeal Board similarly disposed of

' tee irunates' carplaint that the presiding officer denied a subpoena of Bell Telephone records pertaining to service during the Three Mile Island accident.

H/ Graterford Inmat.es' Petition for Review at 7-8, 12/ AIAB-863 at 14-15. See also Duke Power Ccripany (Catawba Nuclear Station, Units 1 and 2) , AIAB-355, 4 NPC 397, 411 n.46 (1976)

(equity and fairness do not permit a party to remain mute c;n asserted procedural defects and later appeal a decision if unfavorable).

o any, further evidence they would have adduced as a result of the Super-intendent's testimony on manpower needs.13/

Aside frcm their procedural claims, the inmates failed to produce any evidence at all that Superintendent Zimnerman's manpower estimates "cmpranised the entire plan" or were made in bad faith.E# Finally, the inmates cite no legal basis to contend that "the changes made in the plan were without authorization."E! The Appeal Board correctly held that changes in an energency plan do not require prior approval by the NRC, the Federal Emergency Management Agency or other planning organiza-tions.E

-13/ The inmates point out an earlier statement by the Ccmnissioner of the Pennsylvania Bureau of Corrections that "all (Graterford]

personnel . . . would be utilized in order to effect the evacuation of the institution." Graterford Inmates' Petition for Paview at 8.

It must be stressed that the Comnissioner merely stated that all off-duty guards would be called up. The testimony by the Superintendent, and the crucial issue before the Licensing Board, pertained only to the number of guards necessary to implement the plan in conjunction with the on-duty work force. ALAB-863 at 18-19.

-14/ Graterford Inmates' Petition for Review at 9. Contrary to the inmates' statenent, Superintendent Zimnerman did not testify that evacuating Graterford would require less than 100 people. Id.

d That merely represents the maximum number of off-duty guards who would have to be called in to supplement on-duty guards during the nighttime shift. ALAB-863 at 19.

M/ Graterford Inmates' Petition for Review at 10.

16/ AIAB-863 at 13-14. Licensee further notes that the Cmmission's regulations and NUREG-0654 essentially require only that plans shall be reviewed and updated periodically, but nowhere provide that plan changes require advance approval by any planning or regulatory authority. See 10 C.F.R. 550.47 (b) (16) and Part 50, Appendix E,Section IV.G; NUPEG-0654, Criteria P.4 and 5.

7 conclusion For the reasons discussed above, the Graterford inmates have shown no inportant question of fact, law or policy which the Comnission should i-review. Its petition should therefore be denied.

Respectfully subnitted, CONNER & WETTERHAHN, P.C.

G1 E. Cm-a. g .

Troy . r, Jr.

Robert M. Rader Counsel for the Licensee l.

May 14, 1987 4

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1 DOLMETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION OfflCE & H Ar. th-In the Matter of ) 00CHL}t'g . ! Pvicf.

)

Philadelphia Electric Company ) Docket Nos. 50-352

) 50-353 (Limerick Generating Station, )

2 - Units 1~and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Opposition to Petition by the Graterford Inmates for Review of ALAB-863" dated May 14, 1987 in the captioned matter have been served upon the following by deposit in the United States mail this 14th day of May, 1987:

Samuel J. Chilk, Secretary Kenneth Carr, commissioner Office of the Secretary U.S. Nuclear Regulatory i

U.S. Nuclear Regulatory Commission

! Commission Washington, D.C. 20555 i Washington, D.C. 20555

< Christine N. Kohl, Chairman Lando W. Zech, Jr. Atomic Safety and Licensing Chairman U.S. Nuclear Appeal Board Regulatory U.S. Nuclear Regulatory Commission Washington, Commission D.C. 20555 Washington, D.C. 20555 Thomas M. Roberts, Howard A. Wilber commissioner Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board

. Commission U.S. Nuclear Regulatory i Washington, D.C. 20555 Commission Washington, D.C. 20555 James K. Asselstine,

Commissioner Gary J. Edles

! U.S. Nuclear Regulatory Atomic Safety and Licensing

, Commission Appeal Board

, Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Frederick M. Bernthal, Washington, D.C. 20555 Commissioner U.S. Nuclear Regulatory 1 Commission Washington, D.C. 20555 i

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Helen F. Hoyt, Esq. Atomic Safety and Licensing Chairperson Appeal Panel  ;

Atomic Safety and U.S. Nuclear Regulatory Licensing Board U.S. Commission Nuclear Regulatory Washington, D.C. 20555 Commission

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Washington, D.C. 20555 Docketing and Service Section Office of the Secretary Dr. Richard F. Cole U.S. Nuclear Regulatory 5 Atomic Safety and Commission Licensing Board Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Benjamin H. Vogler, Esq.

Washington, D.C. 20555 Counsel for NRC Staff Office of the General Dr. Jerry Harbour Counsel Atomic Safety and U.S. Nuclear Regulatory Licensing Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission

Washington, D.C. 20555 Angus Love, Esq.

107 East Main Street Atomic Safety and Licensing Norristown, PA 19401 e Board Panel U.S. Nuclear Regulatory Robert J. Sugarman, Esq.

Commission Sugarman & Hellegers

Washington, D.C. 20555 16th Floor, Center Plaza 101 North Broad Street Philadelphia Electric Company Philadelphia, PA 19107 ATTN

Edward G. Bauer, Jr.

Vice President & Director, Pennsylvania ,

General Counsel Emergency Management Agency 2301 Market Street Basement, Transportation Philadelphia, PA 19101 and Safety Building Harrisburg, PA 17120 Mr. Frank R. Romano 61 r'orest Avenue Kathryn S. Lewis, Esq.

Ambler, Pennsylvania 19002 City of Philadelphia Municipal Services Bldg.

i Mr. Robert L. Anthony 15th and JFK Blvd.

Friends of the Earth of Philadelphia, PA 19107 the Delaware Valley i 106 Vernon Lane, Box 186 i Moylan, Pennsylvania 19065

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o Charles W'. Elliott, Esq. Spence W. Perry, Esq.

325 N. 10th Street General Counsel Easton, PA 18042 Federal Emergency Management Agency Maureen Mulligan 500 C Street, S.W., Rm. 840 Limerick Ecology Action Washington, DC 20472 P.O. Box 761 762 Queen Street Thomas Gerusky, Director Pottstown, PA 19464 Bureau of Radiation Protection Mark Goodwin, Esq. Department of Environmental Philadelphia Emergency Resources Management Agency 5th Floor, Fulton Bank Bldg.

P. O. Box 3321 Third and Locust Streets Harrisburg, PA 17105-3321 Harrisburg, PA 17120 Jay M. Gutierrez, Esq. Gene Kelly U.S. Nuclear Regulatory Senior Resident Inspector Commission U.S. Nucl ;r Regulatory 631 Park Avenue Commission King of Prussia, PA 19406 P. O. Box 47 Sanatoga, PA 19464 Timothy R.S. Campbell Director Mr. Ralph Hippert Department of Emergency Pennsylvania Emergency Services Management Agency 14 East Biddle Street B151 - Transportation West Chester, PA 19380 Safety Building Harrisburg, PA 17120 Theodore G. Otto, Esq.

Department of Corrections John R. McKinstry, Esq.

Office of Chief Counsel Commonwealth of Pennsylvania P.O. Box 598 Department of Environmental Lisburn Road Resources Camp Hill, PA 17011 505 Executive House P. O. Box 2357 e Harrisburg, PA 17120

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Robert M. Rader -

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