ML20214G627

Commonwealth of PA Opposition to Graterford Inmates Petition for Review of ALAB-863.* Graterford Inmates Failed to Prove That Aslab Decision Erroneous W/Respect to Important Question of Fact,Policy or Law.W/Certificate of Svc

ML20214G627
Person / Time
Site:	Limerick
Issue date:	05/19/1987
From:	Otto T PENNSYLVANIA, COMMONWEALTH OF
To:	NRC COMMISSION (OCM)
References
CON-#287-3501 ALAB-863, OL, NUDOCS 8705270126
Download: ML20214G627 (10)

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DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission UF G ',': ^

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in the Matter of:

PillLADELPHIA ELECTRIC COMPANY N os.

50-352,0 0-(Limerick Generating Station, 50-353 Units 1 and 2)

COMMONWEALTH OF PENNSYLVANIA'S OPPOSITION TO TtlE GRATERFORD INM ATES' PETITION FOR REVIEW OF ALAB-863 Preliminary Statement j

in ALAB-845, the Appeal Board affirmed the Licensing Board's Fourth Partial Initial Decision (PID), relating to emergency planning for the State CorrectionalInstitution at Graterford (SCI-Graterford), except for the Licensing Board's rejection of the inmates' contention concerning manpower mobilization.1 The Appeal Board remanded this contention for a hearing.

After discovery and a hearing, the Licensing Board found that arrangements for notifying and mobilizing off-duty corrections officers at SCI-Graterford provided a reasonable assurance that adequate protective measures for the Graterford inmates can and will be taken in the event of a radiological emergency at the Limerick Generating Station.2 The Licensing Board was also directed by the Appeal Board to review its previous decision on the estimated time of evacuation. The Licensing Board found that its previous decision was unaffected.3 Counsel for the inmates appealed the Fourth PID to the Atomic Safety and Licensing Appeal Board, in 1.

The Graterford inmates' contention alleged that "there 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 Correctional Institute (sic) at Graterford will achieve its designated purpose" ALAB-845 at 4.

2.

Supplement to Fourth PID at 7, 24 (November 10, 1986).

3.

Id. at 7, 22.

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-a ALAB-863, the Appeal Board affirmed the' Licensing Board decision in its-Supplement L

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f to the Fourth PID.

. Argument ;

The'Graterford ~ inmates have failed to prove' that the Appeal Board's decision is :

erroneous 'with respect to an-important question of fact, law or policy as required bya

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'10 C.F.R.; 2.786(b).

The Graterford inmates have' petitioned for review 'of the Appeal. Board's ' decision -

in~ ALAB-863. This decision contained a careful, detailed. examination of the proceedings J

conducted as a result of a remand for a hearing on the manpower mobilization contention.

To date, a hearing ?has been conducted on the contention and ' a ' decision has-been t rendered.-by the Atomic Safety and Licensing Board. The Atomic Safety. Licensing and Appeal Board has affirmed that decision and it is presently the burden of the Graterford inmates' to show why additional review should be exercised. Review by the Commission

. ' not as of right, but based on a standard clearly stated in the Code of Federal.

is.

Regulations. Under 10 C.F.R. 2.786(b)(1), the Graterford inmates have the burden of-proving that the' Atomic Safety and Licensing Appeal Board's decision is erroneous with respect to an important question of fact, law or policy. With regard to issues of fact, the Code of Federal-Regulations provides that review "will not be-granted unless it

. appears that.the Atomic Safety and Licensing Appeal Board has: resolved a factual issue necessary for. decision in a clearly erroneous manner contrary to the resolution of that i

same issue by the Atomic Safety and Licensing Board".4 With regard to issues of law or policy, a petition for review should not be granted unless it appears the case " involves

^

an important matter that could significantly affect the environment, the public health and safety or the common defense and security, constitutes an important anti-trust n

4.

10 C.F.R. 2.786(b)(4)(ii).

question, involves an important procedural issue or otherwise raises important questions of public policy".5 Counsel for the Graterford inmates has virtually ignored these standards and has done nothing more than restate arguments that have been properly rejected by the Appeal Board.6 When one reviews the inmates' petition, it is clear they have failed to meet the required standards.

The only factual determination challenged at all in the inmates' Petition for Review concerns the number of staff necessary to evacuate SCI-Graterford.

Three pages of the inmates' brief before the Appeal Board addressed this issue.7 The Appeal Board correctly found that any change in the number of off-duty staff that needed to be called in represented "an appropriate refinement in testimony".8 It was also noted that Superintendent Zimmerman's testimony was the first to be "specifically directed...

to the inmates newly admitted manpower mobilization contention, and thus, we would expect it to be more precise and reliable".9 In their petition, the inmates do not address how the Appeal Board's decision is an erroneous factual determination. This is because the decision by the Appeal Board is correct and supported by the record.

Thus, the Graterford inmates have clearly not met the standard for review of any factual errors.

5.

10 C.F.R. 5 2.786(b)(4)(i).

6.

This position is supported by the attempt by the Graterford inmates to incorporate by reference in their Petition for Review the Brief of the Graterford Inmates filed before the Atomic Safety and Licensing Appeal Board, dated December 9,1986. (See Petition for Review, Page 2).

The Commonwealth of Pennsylvania objects to any attempt to incorporate this brief by reference.

7.

Brief of Graterford inmates dated December 9,1986 at 9-11, inclusive.

8.

ALAB-863 at 16.

9. & at 17.

Turning to the law or policy portion of the standards for a Petition for Review, the inmates have failed to prove how the Appeal Board made an error as to an important question of law'or policy. The Graterford inmates' issues will be addressed in the same order as presented in their Petition for Review.

First, the Graterford inmates complain regarding the expedited hearing schedule.

Although it is obvious, it is still significant to note that all other parties suffered under the same burden caused by an expedited schedule. Since the remaining issue to be heard focused squarely on the operation of the SCI-Graterford, the Commonwealth of Pennsylvania, Department of Corrections had the primary responsibility to prepare testimony as to the adequacy of its manpower mobilization process. The process itself is not overly complex and was one of which counsel for the Graterford inmates was already aware.

Although the Graterford inmates had already identified at least one expert witness in corrections (Major John Case), they failed to use Mr. Case at the hearing.10 Additionally, counsel for the Graterford inmates is very familiar with the State Correctional Institution at Graterford, as he is counsel of record for a class action conditions of confinement case before the United States District Court for the Eastern District of Pennsylvania.11 No attempts were made by counsel for the inmates to depose Superintendent Zimmerman or any other staff member of the Graterford institution.12 Although the Appeal Board determined that there was no justification for the schedule, the inmates have failed to indicate how they were harmed.

No

10. It is significant to note that the Graterford inmates do not claim any impossibility of using Major Case due to a scheduling problem or general unavailability. This type of specific actual harm is necessary to support a claim of prejudice.

11. Ilassine, et al. v. Jef fes, et al., 84-0696.

12. Again, there is no allegation that an attempt to depose these individuals was made but thwarted by the expedited hearing procedure.

_4

I information was or has been provided as to what discovery or testimony was precluded by the time constraints.13 l'he' inmates' petition for review contains no showing of how the Appeal Board was erroneous in its decision-making. Thus, this argument should not provide a basis for review.

The next issues raised by the Graterford inmates concern procedural decisions made by the Licensing Board.

The Licensing Board denied a subpoena regarding information from the Three Mile Island incident in 1979.

Attempts to cross-examine Richard A. Buell, District Manager of the Network Technical Services for Bell of Pennsylvania, on the subject of the Three Mile Island incident were also denied. In their petition, the inmates go to great lengths to reargue their position that these rulings were in error. They totally ignore the fact that the Appeal Board found these rulings to be erroneous but do not provide a basis for reversal.14 The Appeal Board held that as a result o' the testimony regarding the manpower mobilization issue, it was now apparent that fewer off-duty State Correctional Institution at Graterford employes than originally contemplated would have to be called in during an emergency.15 Additionally, the testimony indicated that the manpower mobilization system is not entirely dependent upon the commercial telephone network and, in fact, several back-up means of communication exist.16 In fact, the Appeal Board found that the operation of the comraercial telephone network during the TMI accident was essentially immaterial to the ultimate disposition of the inmates' contention.17 Again, the Appeal Board noted

13. ALAB-863 at 6.

This is true even though the Graterford inmates clearly had notice of the standard since a similar claim was rejected on the same grounds by the Appeal Board in ALAB-845. The Appeal Board specifically held, in that decision, that since the inmates had shown no harm, no relief was appropriate. ALAB-845 at 49-50.

14. ALAB-863 at 10.

15. Id.

16. 15

17. _Id7 5-L

that the inmates did not identify any " specific (emphasis in the original) harm occasioned by the Licensina Board rulings to which they object".18 In their Petition for Review, the inmates utterly failed to indicate how the Appeal Board's decision was erroneous. Thus, these procedural issues do not support review of the Appeal Board's decision by the Commission.

The last issue of law or policy raised by the ir a,ates concerns allegations that there were unauthorized changes made to the Radiologic'al Emergency Resg,onse Plan for the Graterford institution. The same issues raised by the Graterford inmates in their Petition for Review have already been addressed by the Appeal Board and are found to be without merit.

The most significant problem with the inmates' argument is that the inmates did not claim surprise nor in any way object to the testimony of witness Charles 11.

Zimmerman, Superintendent of the State Correctional Institution at Graterford, when he testified at the hearing about the changes in the plan.19 The Appeal Board properly held that since they failed to object and claim surprise at the hearing, the inmates were foreclosed from challenging this now on appeal.20 The Appeal Board also correctly noted that the inmates' cross-examination of Superintendent Zimmerman and the development of the record in this regard appeared to have been unimpeded.21 In their Petition for Review, the inmates again failed to make any showing as to how the Appeal Board's decision on this issue was erroneous. Thus, this issue should not provide a basis for review.

18. Id.

19. 5ec, e.g., T.R. 21,251-54; 21,468-69; 21,473-74; 21,492-93; 21,496-97.

20. See Florida Power & Light Company (St. Lucie Nuclear Power Plant, Unit No. 2),

ALAB-335, 3 N RC 830, 842 n. 26 (1976).

21. ALAB-863 at Page 15..

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' Conclusion

- For the reasons discussed above, the Commonwealth of Pennsylvania, Department-of Corrections would ask this Honorable Commission to decline review of the Atomic -

Safety and ~ Licensing Appeal Board's decision in ALAB-863.

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Respectfully submitted,

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'f)dodore G. Otto, !!I Chief Counsel Pennsylvania Department of Corrections P. O. Box 598 Camp Hill, Pennsylvania 17011' (717) 975-4864 Dated: May 19,1987

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~00CHETED

. UNITED STATES OF AMERICA

.USNRC NUCLEAR -REGULATORY COMMISSION.

'87 MAY 20. P6 :22 ~

Before the ' Commission OFFICE Opi. Aruy 00CKEfmG W!BV;0f IM NCH In the Matter of:

PHILADELPHIA ELECTRIC COMPANY,

' Docket Nos.

50-352, 00

-(Limerick Generating Station, 50-353 Units 1 and 2)

CERTIFICATE OF. SERVICE l hereby certify that copies of the " Commonwealth of Pennsylvania's Opposition to the Graterford Inmates' Petition for Review of ALAB-863 in the. captioned matter have been served upon the following by depositing in the United States Mail this 19th-day of May,1987, except as indicated:

Samuel J. Chilk, Secretary Christine N. Kohl, Chairman Office of the Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.C.

20555 U.S. Nuclear Regulatory Commission -

Washington, D.C.

20555 Lando W. Zech, Jr.

Chairman,- U.S. Nuclear Regulatory Howard A. Wilber Commission.

Atomic Safety 'and Licensing Washington, D.C.

20555 Appeal Board U.S. Nuclear Regulatory Commission Thomas M. Roberts, Commissioner Washington, D.C.

20555

.U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Gary J. Edles Atomic Safety and Licensing James K. Asselstine, Commissioner Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.

20555 Washington, D.C.

20555 Frederick M. Bernthal, Commissioner Helen F. Hoyt, Esquire U.S. Nuclear Regulatory Commission Chairperson W ashington, D.C.

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

20555 U.S. Nuclear Regulatory Commission Washington, D.C.

20555

. s y

Dr. Richard F. Cole Angus Love, Esquire Atomic Safety and Licensing Board 107 East Main Street

.U.S. Nuclear Regulatory Commission Norristown, Pennsylvania 19401 Washington, D.C.

20555 Robert J. Sugarman, Esquire

Dr. Jerry liarbour Sugarman & Hellegers Atomic Safety and Licensing Board 16th Floor, Center Plaza U.S. Nuclear Regulatory Commission 101 North Broad Street Washington, D.C.

20555-Philadelphia, Pennsylvania ' 19107 Benjamin H. Vogler, Esquire Director, Pennsylvania Emergency Counsel for NRC Staff Management Agency Office of Executive Legal Director B-151 Transportation & Safety Building U. S. Nuclear Regulatory Commission Harrisburg, Pennsylvania 17120 Washington, D.C.

20555 Kathryn S. Lewis, Esquire Atomic Safety and Licensing Board Panel City of Philadelphia U.S. Nuclear Regulatory Commission Municipal Services Building.

Wshington, D.C.

20555 15th _ and JFK Building Philadelphia, Pennsylvania 19107 Troy B. Connar, Jr.

Conner & Wetterhahn, P.C.

Charles W. Elliott, Esquire Suite 1050 Counsel for Limerick Ecology Action 1747 Pennsylvania Avenue, N.W.

325 North 10th Street Washington, D.C.

20006 Easton, Pennsylvania 18042 Edward G. Bauer, Jr.

Maureen Mulligan Vice President and General Counsel Limerick Ecology Action Philadelphia Electric Company P. O. Box 761 2301 Market Street 762 Queen Street Philadelphia, Pennsylvania 19101 Pottstown, Pennsylvania 19464 Mr. Frank R. Romano Mark Goodwin, Esquire 61 Forest Avenue Pennsylvania Emergency Management Ambler, Pennsylvania 19002 Agency P. O. Box 3321 Mr. Robert L. Anthony llarrisburg, Pennsylvania 17105-3321 Friends of the Earth of Delaware Valley 106 Vernon Lane, Box 186 Jay M. Gutierrez, Esquire Moylan, Pennsylvania 19065 U.S. Nuclear Regulatory Commission 631 Park Avenue Atomic Safety and Licensing King of Prussia, Pennsylvania 19406 Appeal Board U.S. Nuclear Regulatory Commission Timothy R.S. Campbell, Director Washington, D.C.

20555 Department of Emergency Services 14 East Biddle Street

• Docketing and Service Section West Chester, Pennsylvania 19380 Office of the Secretary U.S. tiuclear Regulatory Commission Washington, D.C.

20555 _-

Spence W. Perry, Esquire Gene Kelly General Counsel Senior Resident inspector Federal Emergency Management Agency U.S. Nuclear Regulatory Commission Room 840, 500 C Street, S.W.

P. O. Box 47 Washington, D.C.

20472 Sanatoga, Pennsylvania 19464 Thomas Gerusky, Director Mr. Ralph Hippert Bureau of Radiation Protection Pennsylvania Emergency Management Department of Environmental Resources Agency 5th Floor, Fulton Bank Building B151 Transportation & Safety Building Third and Locust Streets liarrisburg, Pennsylvania 17120 l

liarrisburg, Pennsylvania 17120 John R. McKinstry, Esquire David Wersan, Esquire Department of Environmental Resources Asst. Consumer Advocate 505 Executive flouse Office of Consumer Advocate P. O. Box 2357 1425 Strawberry Square liarrisburg, Pennsylvania 17120 flarrisburg, Pennsylvania 17120

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T od' ore G. Otto,111 hief Counsel Pennsylvania Department of Corrections P. O. Box 598 Camp 11i11, Pennsylvania 17011 l

(717) 975-4864 Federal Express Mail

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