ML20202G196

Comments & Request for Evidentiary Hearing on Util Proposal for Resolution of Remanded School Bus Driver Issue for Oj Roberts & Spring-Ford Area School Districts.Withdrawal of Appearance Encl

ML20202G196
Person / Time
Site:	Limerick
Issue date:	07/10/1986
From:	Stone D LIMERICK ECOLOGY ACTION, INC.
To:
References
CON-#386-961 OL, NUDOCS 8607150323
Download: ML20202G196 (5)

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UNITED STATES OF AMERICA L (f NUCLEAR REOULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICErg b Eb ^"

USNRC In the Matter of ) . -

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~86 JUL 14 A10:30 PHILADELPHIA ELECTRIC COMPANY) Docket Nos.~ 352 OL

) 50-353 OL (Limerick Generating Station,) hfhf[ ' ' ',[

Units 1 and 2) ) BRi-i;>

LIMERICK ECOLOGY ACTION'S COMMENTS AND REQUEST FOR A EVIDENTIARY HEARING ON PHILADELPHIA ELECTRIC COMPANY'S PROPOSAL FOR RESOLUTION OF THE REMANDED SCHOOL BUS DRIVER ISSUE 1 FOR THE OWEN J. ROBERTS AND SPRING-FORD AREA SCHOOL DISTRICTS Limerick Ecology Action, Inc. (LEA) hereby responds to Philadelphia Electric Company's filings of June 16, June 19, June 26, and June 27, 1986 which comprise " Licensee s Proposal for the Resolution of the Remanded Issue Regardinq the Availability of School Bus Drivers for the Owen J. Roberts and Spring-Ford School Districts".

LEA objects to any " resolution" of the remanded issue which is made solely on the basis of the " Licensee's Proposal" and written comments thereon. The Atomic Energy Act and the Administrative Procedure Act afford LEA the absolute right to an adjudicatory hearing, with the attendant right to require that witnesses be sworn, and be subject to cross-examination.

Licensee's Proposal fails to provide for any adjudicatory hearing, falls to require that the record upon which a decision will be made is an adjudicatory record of sworn testimony, and fails to provide upon the tor cross-examination or discovery. Any decision based solely

" Licensee's Proposal", and written comments thereon, woul d vi ol ate the Atomic Energy Act and the Administrative Procedure Act.

To put this matter in context, LEA refers to the Appeal Board's conclusions "that the Licensing Board's finding of reasonable assurance of a sufficient number of bus drivers willing to respond during an emergency at Limerick is not adequately supported by the record, insofar as the Spring-Ford and Owen J. Roberts School Districts are concerned. Accordingly, we reverse the Board's decision in that respect. This action necessarily assurance finding that serves as a basis for vitiates the reasonable the operattnq license already issued to the Limerick facility." (ALAB 836, p.72) 8607150323 860710

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"Thus, insofar as the Spring-Ford and Owen J. Roberts School Districts are concerned, driver surveys raise a legitimate question ,

whether there is reasonable assurance that an adequate number of drivers would respond in an emergency. The Licensing Board did not

! give adequate weight to the largely negative results of these surveys, and there is little else in the record on which to base a reasonable assurance finding." (ALAB 836, p.60-70) Further, the 1 Appeal Board stated....."the Board's concern with how many drivers i stated that they would ngt respond, and with the lack of effort to encourage a positive response, has effectively and improperly shifted i the burden of proof on this issue from PECO to LEA....."that means i

that PECO was obligated to produce affirmative evidence of an l adequate number of available drivers from some source, once the j survey results substantially clouded that matter with doubt." (ALAB j 836 p.67-68) i I

In view of the Appeal Board findings, the record in this proceeding, and based on a careful review of Licensee's respchses, i LEA remains convinced

) controversy.

that the remanded issue is still a matter of Philadelphia Electric's proposal, even i in its most recent revised form (6/27/86)

LEA believes that the Atomic Energy Act and does not resolve the remanded issue.

Procedure Act require the Administrative

! the Licensing Board to consider evidence to

satisfy the applicable requirements. Any proposal must be subject to l LEA's examination by cross-examination of a sponsoring witness.

Without a sponsoring witness, this Board may not even consider

{ Licensee's Proposal. The documents submitted must be authenticated, I and LEA objects to their receipt into evidence without an j adjudicatory hearing.

.] As the Licensee itself admits in its various filings, its efforts to enlist and relatively recent, provide buses driver volunteers is something and consequently is clearly a matter that has not previously been litigated before

have not been addressed by the Licensee. this Board. Numerous other issues

' For example, there is <

insufficient information to would be transported to determine the locations of how the volunteer bus drivers the buses they would actually drive. There is no provision written into the plans that the buses would be at these areas. The Licensee simply states that the PECo bus drivers will report to Exton and shall....."thence be t

transported to the various schools in the Owen J. Roberts School 1

Districts to drive the buses" and for Montgomery County, the drivers k would assemble at the Berwyn Transportation Center transportation for similiar i to the Spring-Ford Schools. (p. 3, proposed j stipulation, 6/27/86) i i

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l One issue raised by this proposal is the matter of transporting these drivers in a timely manner to the schools. But the more important issue is how the buses these volunteers are supposed to drive actually get to the schools in the first place, or in the alternative, how the volunteer drivers are to determine the location of the buses and arrive where ever that may be in a timely fashion.

The testimony of Superintendent Roy C. Claypool indicates that many of the Owen J. Roberts School Bus Drivers routinely drive their buses home. (See TR 15,922-925) Is it proposed that the PECO volunteer bus drivers would go out and find the homes of the drivers not able to drive in an emergency? Is there a procedure to ensure that the keys will be available? (See TR 15,923) Are these arrangements acceptable to the bus company owners.....specifically the Gross and Custer Bus Comp ani es and the responsible school districts? If not, will the Governor declare an emergency and comandeer the buses? These are but a few examples of some of the issues that remain unaddressed by Licensee's Proposal.

In reviweing this matter further, LEA notes that the Appeal Board has found that " provider response is not necessarily a reliable predictor of driver response". (ALAB-836,p.65) In addition, the Licensing Board correctly notes that driver participation is to be voluntary, not a mandatory condition of continued employment with the bus company. (LEP-85-14 21 NRC at 1321) Similarly, LEA cannot accept PECO's unexamined assertion that it will provide X number of its employees to be used as bus drivers. Licensee makes no claim that it will require its employees to provide bus driver services as a condition of continued employment. Thus, LEA has the right to question whether or not the volunteers PECO is claiming to make avail abl e actually do exist, will in fact be able to and qualified to drive a bus, and are available in emergency circumstances without conflict from, job, family, or other emergency response responsibilities.

As with the private bus companies, PECO as a bus driver provider cannot reasonably assure by its mere proposed stipulation that a certain number of its employees will volunteer to complete training, and be qualified to do so before the September school session resumes. Part and parcel of any individual's quali.fications  :

to drive a bus transporting school children is a sati sf actory dri ving i record and background check. For instance, no person with certain alcohol significant related or drunk driving offenses, any drug abuse history, or '

medical problems would be qualified to drive school children. PECO's proposal to provide vol unt eer s with an eventual j Class 4 license cannot bypass the prevalent standards a school i j district or bus company applies to its drivers, even under ordinary I

day-to-day circumstances. Licensee's assertion that its employee i driver volunteer will in fact meet the demonstrated bus driver i shortfall has not been established on the record.

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l Further, it is clear that PEMA considers the PECO proposal an "immediate solution and not a 1ong term resolution to the matter of bus driver availability at the two school districts". (PEMA Answer 6/30/86)

This proviso implies that PECO's proposed plan is not as complete or long-term as the resolution that PEMA apparently envisions to come later. LEA has the right to insist upon an ad.ludication of not only the short-term solution, but al50 the 1onq-term solution which 1e to -fol1ow, the nature of which LEA at this point can not even ascertain. Is PECO's immediate solution somehow so inadequate or impractical a _; it stands so that a replacement long-term resol uti on must still be found?

LEA is particularly concerned about PECO's reliance on the statements et the Chester and Montgomery County Emeroency Management Coordinatcrs to respond to tne remanded issue. The repeated assertion by the EMC's that there is not, nor has there ever been a driver short-fall, f all s to reeoond to the concerns raised by the Appeal Board which have been demonstrated on the record in this proceeding.

GOOdESTS 00_TUE TIMEl;INESS DE_ LEA J_SESEO((5E Licensee's June lo, 1986 Proposal and Stipulation were sent by First Class Mall to LEA on June 16, 1986, and were received by LEA on June 20th. Di m to the fact that the Proposed Stipulation referred to 3 documents that LEA did not have in its possession, LEA contacted Mr. Troy Connsr's rit* ice and requested that these documents be supplied to LEA by E .c l: r . Mell The specific items requested were referred to on page 3 of tn- eru m ed o/16/86 Stipulation and included: "the Nov. 15. 1985 proposal", the response to the aropo sal " , and "the affidavit of Col.

Relph Hippert" On June 27, 1906, L.E A received a letter from Troy Conner to the Licensina Board, dated June 26, 1906 that explained that the November 15, 1985 t ypographi cal error In the drafL Stipulation should be chanced to retlect the June IS, 1986 propocal. The June 26 letter made no reference to ens other changen in the Licensee's proposal. In Monday June 30, Maur een Mulliaan contacted Mr. Troy Conner to determine whether LEA would be receiving tne r equested documents relating to the proposed St i p> ;1 4 tion. Mr. Conner indicated that there was no affidavit from Mr.

Hippcr t, reiterated the typographical error, and that there were no other majcr changes. He informed Ms. Mulligan that a corrected copy of the Stipulation had been sent to LEs for its consideration.

On Tuesday. Juls 1, 19G6, a neighbor delivered a copy of a Federal Express package from Mr. 1roy Conner containing a letter dated June 27, 1986 including Licensee 3 revi sed proposal and Stipulation. It had appearantly been left rie t door on June 30th while the LEA office was left uv t a f f ed +or - 0 ini per l od ut time. LEA consiaer s Liceiisee's further odificati:n- to its proposal to be significant and hat spent ccnsidersble time reviowing the changes, discussina the matter witn the school d19trict of1 1cial as well as again reviewing the record in this proceeding, priur to ibmitiing these comments to the Licensing Board and t!w p <w t i r- s . For all et the above stated reasons, LEA believes that it has r+spended in a t t m ._. ) manner as prescribed by the AGLD Order of 5/22/be, 18) UR Section 2.710 and 2.749. In the event that the board dettdec to treat Licensee's f11Inos as n Motion for Summary Disposition, LEP r e qi t e =, t s that these commentu be considered as Its response.

Respec t i ul l y subm1tted, July 10 1986 David tone and Maureen Mulligan Copies 2'h c L L 5 2 2 N -

ha e been served on all parties to this proceedinq by deposit in the United States Mail, first cl ass postage prepaid, this 10th day of July 1986 (after 5:00 pm)

1 DolnETEc USNi>C

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ggy ,, ,

BEFORE THE ATOMIC SAFETY AND LICEN9It B ' I In the Matter of )

y PHILADELPHIA ELECTRIC COMPANY, ) Docket No. 50-352 )

) 50-353 (Limerick Generating Station, )

Units 1 and 2) )

_______________________________)

911HDBAWOL_OE_GEEE@ BON.CE Notice in the is above hereby alven that the undersigned withdraws her appearance will continue captioned to represent proceeding. David Stone and Maureen Mulligan Limerick Ecology Action, Inc. on all matters pertaining to off-site emergency proceeding.

planning for this Ecology Action, Charles Inc.

Elliott shall also continue to represent Limerick In matters relating to the Second Partial Initial Deci si on and pending appeals.

Service and to of all documents Charles Elliott, should continue to LEA at the office address Emergency Esq. in Easton. In the event that Off-Site Plannina matters require telephone conversations, LEA's representatives can be contacted at the following daytime phone numbers:

Maureen Mulligan (215) 923-6865 Duvid Stone (215) 495-6031 Respectfully submitted, July 10, 1986 t/Y

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l'l,[()p,}fffw Phyl[s Zitrer Limerick Ecology Action, Inc.

P.O. Box 761 Pottstown, Pa. 19464 I

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