ML20214A949

NRC Staff Answer in Opposition to Petition for Review of Inmates of State Correctional Inst at Graterford.* Inmates Failed to Establish That Issues Raised Re ALAB-863 Warrant Review.Commission Should Deny Review.W/Certificate of Svc

ML20214A949
Person / Time
Site:	Limerick
Issue date:	05/18/1987
From:	Rutberg J, Vogler B NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC COMMISSION (OCM)
References
CON-#287-3452 ALAB-863, OL, NUDOCS 8705200018
Download: ML20214A949 (12)

Text

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't J UNITED STATES OF AMERICA _

. NUCLEAR REGULATORY COMMISSION '87 MAY 18 P3 :44

.' *- BEFORE THE COMMISSION .p,-

4 pa Y ',' . In the Matter of )

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PHILADELPIIIA ELECTRIC COMPANY ) Docket Nos. 50-352 OL

, ) 50-353 OL ,

(Limerick Generating Station, )

Units 1 and 2) )

NRC STAFF ANSWER IN OPPOSITION TO THE PETITION FOR REVIEW OF THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT ORATERFORD Joseph Rutberg Deputy Assistant General Counsel 7

Benjamin H. Vogler Senior Supervisory Trial Attorney May 18,1987 8705200018 870518 PDR ADOCK 05000352 G PDR i 50 3 (

a . .

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2 *' BEFORE THE COMMISSION

, In the Matter of )

)

PHILADELPIIIA ELECTRIC CN1PANY ) Docket Nos. 50-352 OL

) 50-353 OL *

(Limerick Generating Station. )

Units 1 and 2) )

k NRC STAFF ANSWER IN OPPOSITION TO THE PETITION FOR REVIEW OF THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD Joseph Rutberg

.* Deputy Assistant General Counsel

'/ %

Benjamin H. Vogler

~

Senior Supervisory Trial Attorney May 18,1987

(.

4

i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2 *~ BEFORE THE COMMISSION

. In the Matter of )

)

PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352 OL

) 50-353 OL -

(Limerick Generating Station, )

Urdts 1 and 2) )

NRC STAFF ANSWER IN OPPOSITION TO THE PETITION FOR REVIEW OF THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD I. INTRODUCTION On May 1, 1987, the Inmates of the State Correctional Institute at Graterford (Inmates) filed a timely " Petition for Review" (Petition) of ALAB-863. II In ALAB-863, the Appeal Board decided the appeal from the Atomic Safety and Licensing Board's supplement to its Fourth Partial Initial Decision dealing with manpower mobilization at the State Correctional Institute at Graterford, Pennsylvania. U The Appeal Board affirmed the Licensing Board's decision that there is reasonable assurance that adequate protective measures for the Inmates can and will be taken.

ALAB-863 at 3. The Inmates seek Commission review of the decision of both the Atomic Safety and Licensing Board and that of the Atomic Safety and Licensing Appeal Board in order to determine if reasonable 1/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), ALAB-863, 25 NRC (April 17,1987).

2/ Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LBP-86-38, 24 NRC (November 10, 1986)

l l

I assurances have been provided that sufficient manpower will be mobilized

> so that an effective evacuation of the State Correctional Institute at ,

J *-

Petition at 2. 3/

Graterford can take place." For the reasons that ,

i follow, the NRC staff opposes the Inmates' petition and urges that it be denied.

II. BACKGROUND The Appeal Board noted that the Licensing Board, in the Fourth PID, concluded that the arrangements for notifying an'd mobilizing aff-duty correctional offleers at the State Correctional Institution at Graterford (SCIG) in the event of a radiological emergency at Limerick

meet the pertinent regulatory requirements and " provide reasonable

., assurance that adequate protective measures for the Graterford inmates can and will be taken." ALAB-863 at 2. Before the Appeal Board, the Inmates argued that: (1) they had been denied a fair and impartial hearing, (2) substantial and unauthorized charges had been made to the call-up system; and, (3) the RERP is not adequate to assure an orderly evacuation of the SCIG. See, ALAB-863 at 3.

The Appeal Board specifically addressed these argumer,ts. With

. regard to the scheduling of the hearing, the Appeal Board concluded that 3_/ The Inmates state that they incorporate in their pleading the brief they filed with the Appeal Board on December 9, 1986. The Commission's regulations set forth the format that may be utilized in a request for Commission review. 10 C.F.R. 5 2.786. To require consideration of briefs that were filed before other tribunals would be inconsistent with the letter as well as the spirit of 10 C.F.R.

I 2.786. Accordingly, the Staff limits its response to arguments made in the Petition.

, . . . , _ . , , , . _ _ , - . _ . . . . . _ - ..- -, _ __ m

i while they had serious misgivings concerning the abbreviatephearing schedule, ,the Inmates do not claim or show how the were prejudiced or  !

that they may have suffered some specific harm as a result of the

. abbreviated schedule. ALAB-863 at 6. With regard to the arguments concerning certain rulings made by the Licensing Board at the hearing, the Appeal Board concluded that while some of the procedural rulings made by the Licensing Board may have been erroneous, they do not provide a basis for reversal because the Inmates again have not shown any specific harm that resulted from the ASLB ruling. ALAB-863 at10.$I The Appeal Board determined that changes made to the RERP during the hearing process without the prior approval of FEMA or other interested agencies was not prohibited. ALAB-863 at 14. Furthermore, the Appeal Board noted that the changes in the RERP raised by the Inmates were neither extraordinary nor contrary to the Inmates' previously expressed concerns. ALAB-863 at 15. The Appeal Board stated that the changes in the plan had led to the very result implicitly sought by the Inmates, i.e., less reliance on calls made from off-duty employees' homes over the nublic telephone network. ALAB-863 at 3.

1/ Other procedural arguments made by the Inmates concerning the Licensing Board were also rejected by the Appeal Board. These arguments included: (1) permitting the Pennsylvania Department of Corrections to make changes in the RERP at the hearing (Held: not improper to make changes in the RERP at the hearing); (2) alleged ex parte communications with Licensee's counsel (Held: the Inmates I were unable to substantiate their claim); and (3) reference to "past treatment" iss.ues (Held: "past treatment" was considered and resolved in earlier decisions by the Appeal Board) . ALAB-863 at 11-12.

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Finally, the Appeal Board concluded that there is reasonable assurance that, in ,the event of a radiological emergency, sufficient off-duty employees can be timely mobilized to evacuate SCIG by reliance on the public telephone network and various backup means of communications.

ALAB-863 at 20-21. .

TTT. DISCUSSION Although the Commission has the discretion to review any decision of its subordinate boards, a petition for Commission review "will not ordinarily be granted" unless important safety , environmental, procedural, common defense, antitrust or public policy issues are implicated. 10 C.F.R. I 2.786(b)(4). Further, a petition for review will not be granted unless it appears that the Appeal Board resolved a factual matter contrary to the resolution of that same issue by the Licensing Board. 10 C.F.R. I 2.786(b)(4)(ii). A review of the issues raised by the Inmates reveals that, when measured against the standards set forth in 10 C.F.R. I 2.786, they do not warrant the exercise of the Commission's discretion to grant review.

The Inmates' position is that during the course of the remanded

- proceeding, actions were taken by the Licensing Board that resulted in a denial of a fair and impartial hearing and a decision that was not supported by the record. Petition at 2. The Inmates do not specifically take issue with the Appeal Board's logic or record citations reaching its ultimate determination that there is reasonable assurance that the RERP for the SCIG, as modified during the course of the remanded proceeding, provides the requisite reasonable assurance that in the event of a

.I radiological emergency at Limerick, sufficient off-duty employees can be timely spob,ilized to evacuate to the SCIG. ALAB-863 at 20. Nor do they provide any insight into the injury that they may have suffered as a

. result of the rulings by the Licensing Board and the Appeal Board in light of the finding that the modified plan places less reliance on the public telephone network and requires fewer off-duty personnel. In addition, the Appeal Board found that any call-up that would be 1

necessary would occur during the " alert" stage of an emergency before the public is notitled and that there are changes in the plan that also provide that key staff member will have pagers for immediate notification.

I S_ee, ALAB-863 at 16-20. Thus, the Inmates position is not that there is an inadequate record to support the decision, rather their argument in essence is that the expedited schedule deprived them of a meaningful opportunity to present their case, thus depriving them of a fair hearing.

Parties that believe that they are being denied a fair and impartial hearing by a Licensing Board do not have to wait for an injury to occur, but can seek appellate relief. Houston Light and Power Company (South Texas Project, Units 1 and 2), ALAB-637, 13 NRC 367 (1981). While interlocutory review of rulings are generally precluded, 5,/ the Appeal Board has exercised its discretionary power to review interlocutory rulings dealing with scheduling matters through use of directed certification when there is a clear showing that the schedule deprives the complaining party of its right to procedural due process. ALAB-637, supra. See also Public Service Company of Indiana (Marble 11111 Nuclear 5_/ See 10 C.F.R. I 2.30(f).

Generating Station, Units 1 and 2), ALAB-584,11 NRC 451, 467 (1980).

Ilowever, ,in, those instances where a party determines not to seek seek _

interlocutory review of a scheduling ruling, but determines to proceed to

. a hearing and pursue any relief it desires on appeal after a decision, that party must do more than make general allegations of unfairness, it must explain precisely what injury it suffered as a result of the rulings.

Poston Edison Company (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461 (1985). Having made the determination to proceed to a hearing, the Inmates should not be allowed to await a result and then determine whether to raise issues that were previously available but were not pursued without establishing how thay have been injured.

The Inmates have presented what they believe to be a " laundry list" of Licensing Board abuses which, in their opinion, have resulted in a denial to them of a fair hearing. However, as the Appeal Board points out, the Inmates fail to state how they have been injured by these rulings. ALAB-863 at 3, 6 and 10. The Inmates have not indicated what evidence that is relevant and material to the issues in this remanded proceeding they have been precluded from pursuing. 0- It appears that the Inmates major concern is not so much that the modified plan is 6_/ The Inmates assert that they were prevented from obtaining and presenting evidence dealing with the experience of the telehone company during the TMI incident. Petition at 5 7. However, the record reflects that Mr. Richard Brown, a witness called by the Inmates, testified about the experience of the telephone company during the TMI incident. He stated that while there were dial tone delays , he was unable to state even roughly the proportion of all subscribers that had such an experience and furthermore, the equipment at the Middletown office at the time of the TMI incident was antiquated switching equipment. Brown, Tr. 21,529, 21,533 34.

unworkable, but that the changes in the plan were unauthorized. Petition at 7 .' . This argument was dealt with fully by the Appeal Board.

ALAB-863 at 12-14. The Appeal Board concluded that a plan can be

- changed during the hearing process without prior approval by FEMA and

) other interested entities. ALAB-863 at 14. The Inmates present no persuasive argument to the contrary and therefore this argument does not provide a basis for Commission review.

Finally, it is noted that in requesting the Commission to review ALAB-863, the Inmates have not requested the Commission to either l

remand or open the record of this proceeding to take additional evidence l as would be necessary if the Inmates were deprived a fair opportunity to present its case. Rather, they have requested the Commission to review the decisions of the Licensing Board and the Appeal Board "to determine if reasonable assurances have been provided that sufficient manpower will be mobilized so that an effective evacuation of the State Correctional Institute can take place." Petition at 2. .'.. . ated earlier, the Inmates have not taken issue with the evidence relied on by the Appeal Board in reaching a reasonable assurance determination. The Inmates have neither shown nor attempted to show that the review of ALAB-863 was warranted because important environmental, safety, procedural, common defense, antitrust or public policy issues are involved, as required by the Commission's regulations. In C.F.R. I 2.786(b)(4)(1).

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 i

ALAB-863 involve important questions of law, fact or policy warranting Commission review. Accordingly, the Commission should deny the Inmates petition for review.

. Respectfully subnitted, e

J ph Rutberg (

De ty Assistant General Counsel iW f l $

sur n H. Vogler L Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 18th day of May,.1987 S

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USNHC UNITED STATES OF AMERICA '87' liAY 18 P3 :44 NUCLEAR REGULATORY COMMISSION

'~

. BEFORE THE COMMISSION OFFid W t .e-DOCKET E t. .Pdu

BRANC"

- In the Matter of )

)

PIIILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352 OL *

) 50-353 OL (Limerick Generating Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE _

I hereby certify that copies of "NRC STAFF ANSWER IN OPPOSITION TO THE PETITION FOR REVIEW OF THE INMATES OF THE STATE CORRECTIONAL INSTITUTE AT GRATERFORD" in the above-captioned proceeding have been served on the foLwing by deposit in the United States mail, first class, or as indicated by an esterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of May, 1987 :

- 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 Helen F. Hoyt, Chairperson (2) Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President a 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 i . 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

6.t Forest Avenue Law Department, City of Philadelphia Ambler, PA 19002 One P ading Center t

1101 Market Street, 5th Floor Philadelphia, PA 19107

~2-Thomas Gerusky, Director Barry M. Hartman Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Flodr,Yulton Bank Building 300 N. 2nd Street Third and Locust Streets Harrisburg, PA 17105 i Harrisburg, PA 17120 Director Spence W. Perry, Esq.

Pennsylvarda Emergency Management General Counsel Agency _

Federal Emergency Management Agency Basemcnt, Transportation & Safety Room 840 Building 500 C Street, S.W.

Harrisburg, PA 17120 Washington, D.C. 20472 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 U.S. Nuclear Regulatory Commission 14 East Biddle Street Washington, D.C. 20555* West Chester, PA 19380 Davis rersan Atomic Safety and Licensing Appeal Consumcw Advocate Board Panel Office of Attorney General U.S. Nuclear Regulatory Commission 1425 Strawberry Square Washington , D.C. 20555*

Harrisburg, PA 17120 .

Docketing and Service Section Jay Gutierrez Office of the Secretary Regional Counsel U.S. Nuclear Regulatory Commission USNRC, Region I Washington, D.C. 20555*

631 Park Avenue King of Prussia, PA 19406* John R. McKinstry Assistant Counsel Theodore G. Otto, III Commonwealth of Pennsylvania Chief Counsel

. 505 Executive House

. Pennsylvania Dept. of Corrections P. O. Box 2357 Harrisburg, PA 17120 P. O. Box 598 Camp Hill, PA 17011 n J Rutberg D Assistant Geners 1 Counsel

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