ML20134C645

Brief Requesting Review of Fourth Partial Initial Decision ASLBP 81-465-07 OL & ASLB 850612 Order Re Inmate Offsite Emergency Planning Contentions.Certificate of Svc Encl

ML20134C645
Person / Time
Site:	Limerick
Issue date:	08/16/1985
From:	Love A GRATERFORD INMATES, MONTGOMERY COUNTY LEGAL AID SERVICE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#385-248 81-465-07-OL, 81-465-7-OL, OL, NUDOCS 8508160388
Download: ML20134C645 (42)

Text

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ON 1-l i

! DOLEETED UNITED STATES OF N1 ERICA UShRC

<j NUCLEAR REGULATORY COWIISSIOi 1 85 E 16 A10:43 j Before the Atcznic Safety and Licensing Appeal Board GFFICE OF SEC8tlA?'

0006Eiins & SEFVI j IN TIE MATTER OF  : BRANCH i

' PHILADELPHIA ELECTRIC COMPANY  :

(Limerick Generating Station Units 1 and 2)  : Nos. 50-352 and 50-353 d i

BRIEF OF TIE INTERVENOR GRATEREORD INMATES l'

]I. INTRODUCTIO1 0

The inmates of the State Correctional Institute at Graterford, jPennsylvania, intervenors in the above-captioned operating license proceeding,

lhereby submit their Brief pursuant to their Notice of Appeal filed with this

]BoardonJuly 25, 1985. This Brief seeks the review of two recently issued

[ decisions. Initially, the inmates seek a review of the Fourth Partial Initial il dDecision on offsite emergency planning contentions relating to Graterford, which H

!;was docketed as ASLBP No. 61-465-07 OL and served on July 22, 1985. This i!

, decision dismissed two issues regarding the State Correctional Institute at j!Graterford._ These issues involved the estimated time of evacuation and training i for civilian employees. The Brief will also address an earlier order of the i

• Atomic Safety and Licensing Board which was issued on June 12, 1985 and was entitled Order Admitting Certain Revised Contentions of the Graterford Inmates I

and Denying Others. The inmates note that they sought an earlier review of this decision by way of their exceptions filed to that decision with the Licensing

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f i Board on June 24, 1985. Said exceptions were denied by the Licensing Board's

' order of July 2,1985. The inmates subsequently appealed to this Board on July 3

'j ll, .1985. Said appeal was declared to be interlocutory and dismissed by this Board on July 15, 1985. The Appeal Board noted, "Whether the Licensing Board q erred in rejecting one or more of the inmates' contentions can be raised on lappeal from the Board's final order." (See p.1, Memorandum and Order, July 15, 1

11985.) The inmates contend that said prior appeal is now ripe when combined jwith the Fourth Partial Initial Decision of the Licensing Board. Thus, the d

] inmates bring to the Appeal Board's attention' the two issues which were I

I hlitigated and denied and five of the six previously proposed bases for tMir a

hcontention that the Radiological Emergency Response Plan for Graterford is u

" inadequate. The inmates argue that when- these two decisions are merged and reviewed that their rights to a fair and impartial tribunal, their right to a Pl decision based upon the weight of the evidence, and certain procedural rights

[havebeendenied.

II. HISTORY OF INTERVENTION BY I'IMATES OF 'INE STATE CORRECTIONAL INSTI'IUI'E AT GRATERNRD q Although the history of the intervenor Graterford inmates has been recited

many times, the inmates believe that it is important to their overall appeal i

that the history be cited once again to show the many hurdles that have been

[placed before the inmates in this licensing proceeding.

The Graterford inmates filed a petition with the Board to intervene in nthese proceedings on September 18, 1981. The Licensing Board ordered a i

supplemental memorandum to be filed by the inmates per their order of October l

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j14,1981. In response to said order, the inmates provided 19 affidavits of

[ long-term residents at the State Correctional Institute at Graterford. On June i

l1,1982, the inmates were admitted as a party to this proceeding via the Board's i

jspecialprehearingconferenceorder. No further action occurred with respect to 1

!this matter until April 20, 1984 when the Board ordered the contentions based upon the Radiological Emergency Response Plan for the State Correctional

Institute at Graterford would be filed by the Graterford inmates twenty days 6after they received the plan. Despite numerous assurances from the Comnonwealth

! that the plan would soon be forthcoming, it was not received until December

!13,1984, over three years after the inmates' initial filing. The plan that was

)provided on that date was a " sanitized" version of the real plan and will be u

yheretoforereferredtoasPlan1. Plan 1 was approximately 26 pages in length

.I and contained much censorship which was withheld by the Bureau of Correctiond ifor " security" reasons. The inmates reviewed said plan with counsel and wittl

}l their expert, Major John Case, Field Director of the Pennsylvania Prison aSociety. After said review, it was determined that further disclosure was On December 20,

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.necessary in order to frame the contentions of the inmates.

!1984, counsel for the inmates filed a Motion for Order Regairing Full Disclosure l by the Pennsylvania Emergency Management Agency of the Evacuation Plan for the q

? State Correctional Institute at Graterford. In essence, the inmates sought the H

] right to have their attorney and expert review the contentions of the entire plan under the auspices of a protective order from the court. The Board heard 0

ji oral argument on these motions on January 29, 1985 and dismissed the inmates' a

! request _ for further disclosure. .The Licensing. Board did so despite

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l l acknowledging the inadequacies of Plan 1. (See Tr. 20,432, 20,468, 20,47e, and d20,640.)

K The inmates requested a stay of their obligation to file contentions within twenty days ,of receipt of the plan. Said stay was rejected by the Board via an j oral ruling on January 29, 1985 and confirmed in a written order issued February 1

15, 1985 and directing the inmates to file their contentions no later than iFebruary 18, 1985. The inmates then filed an appeal'with this Board on February i 8,1985 and filed their contentions per the Board's order based upon Plan 1 on February 15, 1985. On February 12, 1985', this, Board issued a memorandum and j order which dismissed the inmates' petition as premature, but observed that the 0

]disclosureissuescouldberesolvedthroughcompromiseandtheuseofprotective jordersinthehandlingofsensitivebutdisclosablematerial.

h (See Appeal Board.

P SMemorandum and Order of February 12, 1985 unpublished.) A compromise was h

reached and finally on March 18, 1985, under a protective order issued by the

$ Licensing Board, the Commonwealth provided counsel for the inmates and their expert, Major John Case, with a copy of Plan 2. Plan 2, which was over 80 pages in length, satisfied the concerns of the inmates with respect to the disclosure

[ issue. Four days later, on March 22, 1985, the inmates sought to revise their

.; original contentions based upon the additional information available to them through their review of Plan 2. The Licensing Board repeatedly denied the jinmates'requesttomakerevisions. (See Tr. 20,640, 20,657 through 20,661, q20,674 through 20,675, 20,691 through 20,697 and 20,702 through 20,706. ) On fApril 12, 1985, the Licensing Board dismissed the Graterford inmates as a party to the licensing procedure. In their ruling, the Board stated that the i

contentions of February 15th were insufficiently specific and that the inmates 1

?had failed to meet the criteria for filing late filed contentions. The inmates I

appealed this decision, which was subsequently reversed by the Appeal Board, on

i j!4ay1,1985. The Appeal Board noted that the Licensing Board's refusal to allow w

!lthe inmates to respecify the bases for their contentions in light of the 1

additional information available in Plan 2 was arbitrary. (See p. 8 of Atomic j safety and Licensing Appeal Board Decision of May 1,1985.) It further noted

i j that, "The Board's unexplained reversal of its previously consistent view that

'i q the Graterford inmates must be accorded a reasonable opportunity to reshape h

]their contentions once an adequate form of the prison emergency plan was I

released -- is plainly arbitrary." (See p. 10, supra.) The Appeal Board f further noted that the Licensing Board had been unduly critical of the inmates' counsel for failure to attend all hearings withe respect to emergency planning.

(See Footnote 32, supra.) The Appeal Board also noted that any delays in this hproceeding cannot be laid at the feet of the Graterford inmates. (See p. 16, isupra.) Finally, the inmates were given until May 15, 1985 to submit their revised emergency planning contentions.

As the inmates prepared their contentions for filing per the Appeal Board's I

horder, the Licensing Board granted the applicant's request for an exemption from h

j the Graterford issues on May 9, 1985. Once again the Licensing Board had i

thwarted the inmates' attempts to provide input in the licensing process. The inmt tes' attorney was once again forced to appeal the granting of the exemption and at the same time submit the revised contentions, per the Appeal Board's order of May 1, 1985. Said revised contentions were submitted on May 13, 1985.

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The- appeal taken by the inmates with respect to the exemption grant was

, q addressed by the Nuclear Regulatory Comission during an open meeting on June

'i l 11,.1985.- The NRC declined to make effective the Licensing Board's order which ,

i htogether with a prior order, authorized the director, Nuclear Reactor  ;

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$ NRegulation to issue'to the applicant Philadelphia Electric Conpany, a full power

]l.

j operating license for the Limerick Generating Station. The Commission found 1

jthat, "Important questions regarding the hearing rights of the inmates of the t

d

(> State Correctional Institute at Graterford, Pennsylvania, have not yet been l j iresolved." (See p. 2, Memorandum and Order, CLI-85-ll, June 11, 1985.) On hJune12,1985, the Atomic Safety and Licensing Board issued an order entitled

, )

Order Admitting Certain Revised Contentions of the Graterford Inmates and j

(1 1

a Denying Others. In said order, the Licensing Board accepted two of the eight frevised contentions of- the inmates. These two issues involved the methodology I l uor the lack thereof in develognent of an estimated time of evacuation and the

!i j [ training which is to be provided - to the civilian employees- who will be P

fparticipating in the evacuatiion. The inmates appealed five of the six rejected b

' issues which are. hereby merged with the accepted and litigated contentions for ,

{  : consideration by this Appeal Panel.  ;

The inmates have recited this history so that the Appeal Board will-be

! Ol jaware of the many hurdles that have faced the Graterford inmates in their

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fattempttoprovideinput'intothelicensingprocess. These hurdles were in many h . .

7 finstances created by a hostile Licensing Board that made many prejudicial l.Statements : against the inmates throughout the licensing procedure.

":I They ,

1 repeatedly questioned the motives.and the resources of the Graterford inmates. i 4

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(See Order Granting Applicant's Motion for Exemption from Requirements of 10 CFP

,.', 50.47(a) and ~(b) for a-Period of Time any Potential Contentions of Remaining I; - k

-hPartyareConsideredbytheBoard,May9,1985.)

In said order, the Board a

h states, "Unless the inmates are using . judicial process for an end to which the i :l .

yBoard is not privy..." (See p. 3, supra.) The Licensing Board also stated

. !j q that, "We find little, if any, indication of a . desire to assist in developing 4-l- pthisrecord,"whenreferringtotheinmates'participationinthedevelopmentof a .

j jasound-record.' '(See Memorandum and Order on Graterford Prisoners' Proposed r

,_ cContentions, Atomic Safety and Licensing Board, April 12, 1985 Order at p. 11.)

i

[ Il

!In addition' to questioning the motivation of the inmates and their expert, the j pBoard noted on several prior occasions that they considered the issues raised by i

the inmates to be insignificant. (See Order Granting Applicant's Motion for Exemption from Requirements of 10 CFR 50.47(a) and (b)_ for a Period of Time any il dPotential Contentions of Remaining Party are Considered- by the Board, May 9, h1985,- and Memorandum and Order on Graterford Prisoners' Proposed Contentions, i-t lApril 12, 1985.)~ The sum total- of these two documents. resulted in the -inmates' l

concerns being dismissed on two separate _ occasions by the-Licensing Board. Only i

after intervention by the Appeal Board was the Licensing Board forced to face

i

Ithese. issues directly. . The inmates take except lon to the' Licensing Board's dcharcterization of their motives and of the merits of their contentions. - The r ,

Linmates note; that two. experts have testified on behalf of.the inmates,- Major i

John Case, Field Director- of .the Pennsylvania Prison Society, and Robert L.

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Morris,la traffic control expert. Furthermore, the_ inmates point to this Board's conmient that any delays could not be laid at theEfeet of the Graterford

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ll inmates. ~ Thus, the Appeal Board must keep in mind the inherent hostility of i this Licensing Board when reviewing the two decisions that are the bases for (

dthisappeal.

'i j III. LEX 3AL ARGUMENT

i A. Standard for Reyiew 4

The appropriate standard for review with respect to the admissibility of

contentions can be found in 10 CFR 2.714(a) 1. The five factors cited include,

. (1) good cause, if any, for failure to file on time; (2) the availability of other means whereby the petitioner's interesti will,be protected; (3) the- extent to which petitioner's participation may reasonably be expected to assist.in hdevelopingasoundrecord; (4) the extent to which petitioner's interest will 3

d be represented by existing parties, and (5) the extent to which petitioner's 4

participation will broaden the issues or delay the proceeding. (See 10 CFR q2.714(a) 1. A contention must also satisfy the criteria of 10 CFR 2.714(b),

'i Owhich holds that "The petitioner shall file a . supplement to his Petition to D

" Intervene which must include a list of the contentions which petitioners seek t

j to have litigated in the matter, and the bases for each contention set forth with: reasonable specificity." Initially, the Licensing Board ruled that the jintervenoc Graterford inmates had failed to achieve the necessary balance with c

Prespect to the five factors of.10 CFR 2.714(a) 1. (See Memorandum and Order on II 4Graterford Prisoners' Proposed Contentions,~ April 12, 1985 ruling by the Atomic Safety and Licensing Board.) Said review was reversed by the Appeals Council in

,its May 1,1985 order which stated that the factors weighed in the favor of the inmates. (See Decision of Atomic Safety and Licensing Appeal Board, May 1, 1985, at 18.)

The inmates' one contention reads, "There is no reasonable assurance that

'the Radiological Emergency Response Plan for the State Correctional Institute at i

Graterford will protect the staff and inmates at said institution in the event of a nuclear emergency at the Limerick Generating Station." (See Proposed Revised Contentions of the Graterford Inmates, May 13,1985.) In the Licensing Board's initial rejection of six of the eight contentions on June 12, 1985, they state that they will review the eight bases for said contention in order to

determine whether they meet the reasonable specificity requirement of 10 CFR 2.714(b). (See Order Admitting Certain Revised Contentions of the Graterford LInmates and Denying Others, June 12, 1985 at 2.) Thus, the standard for review

]0 with respect to the five of the six initially rejected bases is specificity.

IThis was reiterated by the Appeal Board in their May 1,1985 decision when they

jindicated that the Graterford prisoners' refiled contentions should be submitted

to the Licensing Board who will " determine only whether the contentions have

" adequate bases and specificity," at p. 18 supra. This test of reasonable specificity has been affirmed in subsequent court decisions. (See Contnonwealth Edison Comoany (Byron Nuclear Power Station, Units 1 and 2), LDP-80-30,12 hPC 683, 686 (1980); Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2), LEP-84-18, 19 NBC 1020, 1028 (1984).) It has further been held that a contention must be rejected where: (1) it constitutes an attack on

applicable statutory requirements; (2) it challenges the basic structure of the

[ Commission's regulatory process, or is an attack on the regulations; (3) it is L

[nothingmorethanageneralizationtcgardingtheintervenor'sparticularviewof I

what the applicable policies ought to be; (4) it seeks to raise an issue which

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g is not proper for adjudication in the proceeding or does not apply to the d facility in question; or (5) it raises an issue which is not concrete. (See L Philadelphia Electric Company (Peach Bottom Atomic Power Station, Units 2 and di d3),ALAB-216,8AEC13,20through 21, (1974), and 10 CFR 2.758(a).) The i, purpose for the basis requirement of 10 CFR 2.714(b) is (a) to assure that the 4

l hearing process is not improperly invoked because the subject sought to be put

.in issue suffers from any of the infirmities set forth in Peach Bottom, supra,

at 20 through 21; (b) to establish sufficient foundation to warrant further inquiry into the subject matter; and (c) to put the other party sufficiently on c notice "so that they will know at least generally what they will have to defend against or oppose."

With respect to the five of the six bases for the contention which were

initially rejected, the inmates point out that at the pleading stage of a proceeding, petitioners need only identify the reasons for each contention.

't i Houston Lighting and Power Company ( Alan's Creek Nuclear Generating Station, l

[ Unit 1) ALAB-590, 11 NRC 542, 548 (1980).) Furthermore, the basis stated for

each contention need not " detail the evidence which will be offered in support c of each contention." Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2) ALAB-130, 6 AEC 423, 426 (1973) . Accordingly, in examining contentiens and the bases thereof, a Licensing Board may not reach the

[ substantive merits of these contentions. Alabama Power Company (Joseph M.

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,Farley Nuclear Plant, Units 1 and 2) ALAB-182, 7 AEC 210, 216 through 217 0

[(1974). The inmates therefore note that this is the applicable standard with "which to judge five of the six rejected bases for their contentions. The two I

other bases which have been the subject of litigation should be judged upon the 1

j record made during the hearings and the decision should be based on the weight 1 .

lof the evidence contained in said record.

d i

B. The Graterford Inmates' Five Bases for their Contention which was Rejected by the Licensing Board in its Order of April 12, 1985 Do Meet the Reasonable Specificity Standard of 10 CFR 2.714(b).

The inmates contend that the five bases for their contention have been

, stated with reasonable specificity so as to meet t.he aforementioned standard of review. The five bases which will be discussed are: manpower mobilization, input of the correctional officers, medical services, simulated evacuation plan 4

! exercise, and the panic factor.

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D d

j 1. Manpower Mobilization The inmates take exception to the Board's ruling that the use of comercial telephone line call-up system necessary to mobilize the institution's manpower would be adequate in an emergency. The inmates also take exception to

. the Licensing Board's rejection of the inmates' allegation that there exists a

, necessity for a back up system to the call-up system currently utilized to i

qmobilizethemanpowernecessarytoconducttheevacuation. The inmates draw the s

e l

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Appeal Board's attention to the matter of Cincinnati Gas & Electric Co. etal i

(William H. Zimer Nuclear Plant Station, Unit Number 1) Docket No. 50-358; 17 i

NRC 760 1983. In this case, the Atomic Safety and Licensing Appeal Panel re-l viewed the adequacy of the offsite emergency planning of the applicant. At page

768, the opinion states, "The Board reasoned (and applicants concede) that dur-ing an emergency the comercial telephone circuits, including those serving the schools, likely would become overloaded as a result of heavy public usage and thus be unavailable for official use." 15 NIC AT 1570, 1592 through 1593; Tr.

6542. It is the inmates' understanding of the proposed call-up system that one individual using comercial phone lines would be instructed to call ten indi-

i hviduals and inform them that they must report to work imediately. These ten individuals would in turn call ten additional individuals until all such per-

sonnel would be notified and mobilized. The inmates fail to understand the

rationale of the Board when it states that the prison has five dedicated tele-phone lines and a direct connection with the Pennsylvania State Police. The inmates believe that this misses the point of the call-up system which would be relying on people's private lines and not the institutional telephone system.

The Board has also erred in its factual analysis of this issue in that the State Correctional Institute at Graterford only has one dedicated phone line with which it utilizes to contact the Pennsylvania State Police. Furthermore, the institution has four commercial telephone lines upon which it will attempt to o

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d; initiate the call-up system. See Comonwealth Response to Proposed Revised Con-tentions of Graterford Inmates, page 4. Such a discrepancy in the Board's view ilof the facts and the facts as they actually are further points out the need for 1

lla hearing on this issue in order to determine what exactly are the capabilities 1

of the State Correctional Institute at Graterford with respect to this issue.

dThe inmates also point out, as previously cited, the testimony of Rick Brown, (which appears in the transcript on pages 18,226, 18,149 and 18,133, at which l time he discusses a realistic likelihood that the comercial phone lines would be overburdened as they were during the flood of 1972. The inmates further jpoint out that Mr. Brown is a communications technician with American Telephone

]and Telegraph and is therefore qualified to speak to the capabilities of the phone system in the Graterford facility.

The inmates also take issue with the Board's rejection of the inmates' contention that a back up system is necessary to insure prompt communication

?between all persons mobilized in the event of a nuclear emergency. The inmates specifically contest the Board's conclusion that SCIG is not a principal Lresponse organization and therefore does .1ot warrant the planning standards as outlined in 10 CFR 50.47(b)6 and its NUREG-0654 implementing Criterian II F.1.

The Board has held that these regulations do not apply to Graterford, thus Graterford does not have to have an alternative to the commercial telephone clines. The rationale utilized by the Board is that the State Correctional J

iInstitute at Graterford is not a principal response organization meriting such I

0 consideration, but is in fact a support organization under the Comonwealth's i

Radiological Emergency Response Plan. The inmates point to the NUREG-0654

b Appendix 5 entitled Glossary, which defines what category various organizations jshouldbeincludedtherein. The definition for principal organizations reads as d

jfollows: " Federal, state, or local agencies or departments or executive offices and nuclear utilities (licensees) having major or lead roles in emergency l planning and preparedness." The inmates contend that the State Correctional

' Institute at Graterford could be defined as a principal or suborganization and

! that such distinctions are arbitrary. NUREG 0654 warns against making specific designations and suggests that the various parties involved in emergency iplans and preparedness define the particuslar roles, functions and i

cresponsibilities. It is the inmates' contention that an institution such as jGraterford which is in essence a city behind walls should be given serious

. consideration for an alternative comunications back up in light of the inherent j difficulty in evacuating such an institution and the significant population at il jissue. For these reasons, the inmates respectfully request the Appeal Board to 1 reinstate these two issues with respect to the mobilization of manpower necessary to complete an effective response to a radiological emergency at the Limerick Generating Station.

2. Inout of the Correctional Officers (AFSME)

The inmates contend that there is no reasonable assurance that the l correctional officers union is aware of the Bureau of Corrections concept of c

d operations and its relationship to the tctal effort. The Licensing Board has d ruled that there is no basis for such an assertion and they have denied the h

1 inmates' request for participation in some form or other of the guards' union.

1, The inmates draw the Appeal Board's attention to the I

l

i testimony of FEMA witnesses Asher and Cunard from earlier testimony which is

! located at Tr. 20210, at which time the following principle was expanded upon.

Anyone who is obligated to take a risk, should be adequately informed. This is the gist of Mr. Asher and Mr. Cunard's testimony on behalf of FEMA and goes to the heart o'f the inmates' contention that the guards' union is instrumental in

' the implementation of an effective response and thus should be adequately

informed of the risks inherent in such an operation. As the plan points out,

{ the correctional officers will have a major role in a protective response to a snuclear emergency. They will be the primary sotirce for the evacuation of the b

Hinmates from the institution. They will be called upon to conduct a lock down b

l of the entire institution, to assist in the loading of the buses and vans, and

will provide the necessary security during the evacuation. Therefore, their froleintheplanningprocessissignificant.

a Based upon the aforementioned

principle that those deeply involved in such an operation should also be given

[ sufficient opportunity to provide input into the process and this can only be done upon being informed adequately of their role in the operation.

a J The inmates also point out that in prior contentions litigated before the

. Licensing Board, two union representatives were allowed to testify. Mr. Tauss Ltestified regarding the bus drivers' participation in the evacuation of the Eschool children. Mr. Tauss is a union representative of the SEPTA organization.

II Furthermore, Mr. Morabito, who represents PSEA, was also allowed to testify as H

Lto the effectiveness of his union in the emergency response planning. The U

tinmates contend that they should not be held to a lesser standard than previous il fintervenorshavebeengiven. The Board's denial of input from the guards' union

C is clearly a higher standard of admissibility than was granted for Limerick

!!EcologyActionorFriendsoftheEarthcontentions. While it is understandable

.i i that the Board is trying to expedite this matter as soon as possible, the t

iinmates point out that the current delays were no fault of their own and thus i

yshould not be penalized by the use of a higher standard than similar j

nintervenors. In support of this assertion, the inmates refer to the decision of the Atomic Safety and Licensing Appeal Board of May 1,1985, docketed ALAB-806, which states on page 16 "...Any delay likely to result at this stage cannot be ilaid at the feet of the Graterford inmates." Thus, the inmates contend that

'the Board's rejection of input from the correctional officers' union af ter iallowing input on prior contentions regarding the roles of the unionized personnel, is inconsistent and in effect penalizing the inmates for something that they could not avoid.

3. Medical Services The inmates take exception to the Board's ruling that rejects their contention based upon adequacy of medical services. The exception that the Jinmates raise deals with procedural matters in the handling of contentions under the guidelines of 10 CFR 50.47 and NUREG 0654. It is the inmates' contention

'that the applicant must carry the burden initially in proving that reasonable assurances exist that adequate medical services will be provided to those lcontaminated and/or injured individuals in the event of a nuclear emergency at fLimerick Generating Station. See Consumers Power Company (Big Rock Point i:

DPlant) 16 NRC 1096 (1982). A reading of the Board's opinion dismissing this a

I contention seems to indicate that it is the inmate's burden to prove the l

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inadequacy of the facilities in question. On page 7 of the Board's decision 1

4 admitting certain revised contentions of the Graterford inmates and denying U others, they state, "We are left in the dark as to what capacity it is that the L inmates have in mind". This is an example of the Board's putting the cart before the horse and shif ting the burden upon the inmates to prove the

! inadequacy of the medical facilities as opposed to the correct standard of the 1

lapplicantprovingtheadequacyofsuch.

The inmates also contend that any discussions regarding the merits of said fclaimsarepremature. The inmates cite as a basis for this statement Alabama L

l

'! Power Company (Joseph M. Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC

, li l 210, 216 through 217 (1974); Philadelphia Electric Company (Peach Bottom Atomic Pcwer Station, Units 2 and 3) ALAB-216, 8 AEC 13, at 20 (1974); and j ,

l

} Houston Lighting and Power Company (Alan's Creek Nuclear Generating Station, Unit 1) ALAB-590,11 NRC 542, at 547 through 549 (1980). Thus, the inmates I f contend that the Board has overstepped their authority and shifted the burden inappropriately upon the inmates instead of the applicant.

4. Simulated Evacuation Plan Exercise The inmates take exception to the Board's rejection that there is no

! reasonable assurance that the table top exercise of the evacuation plan lconducted on March 7,1985 was adequate in terms of 10 CFR 50.47(b)14. As part

',of the rationale explaining their decision to deny this particular contention, h

b the Board states that the inmates failed to " justify any requirement for

[ inclusion of possible scenarios from NUREG-0654, Criterian N 3". The inmates l

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draw the Appeal Board's attention to the aforementioned criterian N and further

directs the Appeal Board's attention to the subcategory E, which reads, "A

. narrative summary describing the conduct of the exercises or drills to include

such things as simulated casualties, offsite fire department assistance, rescue of personnel, use of protective clothing, deployment of radiological monitoring

teams, and public information activities." To the right of this evaluation

' criteria is a graph which depicts the applicability and cross reference to

plans. Under the category of Licensee, state, and local, an X appears which indicates to the inmates that this particular requirement of a narrative sumary

[should be included in the conduct of drills and exercises as contemplated by 10 jCFR 50.47(b)l4. Thus, the inmates contend that they have justified the qrequirement for inclusion of possible scenarios in the table top exercise.

LThus, they believe the plan is deficient in this respect.

The inmates further point out that the Board's rejection of this contention fails to take into account new guidelines promulgated by the Nuclear Regulatory

.Ccanission on Wednesday, May 8,1985, appearing in the Federal Register, Volume

-50, Number 89. See also Union of Concerned Scientists vs. NRC, 735 F.2d 1437

- (D.C. Circuit 1984) . This case vacated a prior NRC 1982 amendment (47 FR 30232, July 13, 1982) to its emergency planning and preparation regulations which fatated that emergency preparedness exercises were part of the operational 1

finspection process and thus not required for any initial licensing hearing or li fdecision. The ruling in the aforementioned case held that " Congress did not 0

i grant the comission discretion to remove so material an issue as the results of offsite emergency preparedness for required Section 189(a) hearings." See Jnion of concerned Scientists vs. NRC supra at 1451. Thus, the inmates contend that the Board has failed to apply this new more appropriate standard as b l d it stated that the inmates' contention lacked a regulatory basis. See Order il 4 Admitting Certain Revised Contentions of the Graterford Inmates and Denying 1

]Others,ASLBPNo. 81-465-07 OL page 11. The inmates respectfully request that

, s

]the Appeal Board overturn this decision in light of the newly promulgated 3

iregulations.

1 While the inmates do not dispute the fact that the drill was found to be 1

(adequate by FEMA, pursuant to 50.47(b)l4, they do point out that such a finding i 9 ijby FEMA that plans are adequate and capableof being implemented is entitled to ja rebuttable presumption in NRC licensing proceedings. See 10 CFR 50.47(a)2 and h

i jgenerallyFEMA/NRCMemorandumofUnderstanding,45 FED. REG.Sec.2713, December i q hl6,1984 and Southern California Edison Company et al(San Onofre Nuclear h

pGenerating Station, Unit 1 and 2) ALAB-690,16 NRC 127 at 349 (1982).

Therefore, the Board's assertion that "according to FEMA it is successful", see iOrder Admitting Certain Revised Contentions of the Graterford Inmates and 1 b '

i k(Denying Others, page 11, is inaccurate. The inmates respectfully request the

!!right to rebut the findings of FENA especially in light of the new regulation I

cited previously. Thus, the inmates contend that this issue should be more 4

' fully litigated.

, , 5. Panic Factor i

.j The inmates once again contend that the Board has put the proverbial l cart before the horse with respect to the panic issue. The inmates in their proposed revised contentions documented several previous disturbances at the  ;

I

' State Correctional Institute at Graterford that caused considerable concern, e

t 4 ._ ___ . - _ _ . - . . _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ -

.- t i

-l l

I monetary expense, anxiety, and manpower mobilization. These similar situationa

, should not be rejected out of hand by this Board. Those instances will show the

] difficulty that the Department of Corrections faces when confronted with such ientgencies and will indicate the responses available to the institution in the 4

event of such an emergency. Therefore, the inmates contend that they have provided sufficient evidence of the potential for panic necessary to create a

. specific basis for this contention.

The inmates draw the Appeal Board's attention to the Board's statements on

, page 15 of their decision adnitting certain contentions and denying others, in

which they state, "We assume (a) the guards will do their duty; and (b) that the inmates will be restrained from evacuating spontaneously." The inmates contend that such statements represent conclusions of law which can only be made after a '

! full hearing on the issue. The inmates, as mentioned in the previous section, 1 claim that the Licensing Board cannot now judge the merits of their claims.

Clearly, such statenents as the guards will do their duty and the inmates will be restrained from evacuating spontaneously, draw the conclusions far in advance

of a proper evidentuary foundation being provided. Thus, the inmates contend

[that the rejection of their contention is premature.

i

.i i

9

. - _ - _ - - _ _ _ _ _ - _ _--____ _ lli- _

l l

C. The Radiological Emergency Response Plan for the State Correctional h Institute at Graterford Fails to Provide a Reasonable Assurance that it

'l Civilian Personnel Involved in the Plan Will De Sufficiently Trained j So As To Carry Out Their Assigned Responsibilities in the Event of a h Nuclear Emergency at the Limerick Generating Station.

The Radiological Emergency Response Plan for the State Correctional

$I nstitute at Graterford relies upon the use of certain civilian personnel.

LThese civilians will be utilized to complement the manpower necessary to

conduct an evacuation of the prison in the' event ,of a nuclear emergency at the

i. Limerick Generating Station. These civilians will be used to drive the buses S

l,which will transport the inmates from SCIG to a relocation site. They will be 4

h ijcoming from as far away as 190 miles and will be employees of private bus h

{ companies. Other civilians will be used to drive the ambulances which will transport sick and/or injured ' individuals to hospitals equipped to deal with such problems. Due to the fact that such civilian enployees could be expected

!:to remain in the ten mile EPZ for up to ten hours after a nuclear emergency has ibeen declared, training in basic radiological principles will be offered to

/,these civilians. The issue which was brought before the Licensing Board during Lthe hearings of July 15, 1985 involves the training the civilian employees will 4 (: undergo. Planning Standard 0 of NUREG 0654 calls for radiological emergency II

[ response training to be provided to those who may be called on to assist in an P' emergency. Subsection 0.1 provides that "each organization shall assure the g

!erainingofappropriateindividuals."In this matter, the organization that has

! bean charged with this responsibility is the Pennsylvania Emergency Management c

+

, \

t .

e f

Agency, also known as PEMA. (See Taylor Tr. 20,856.) Thus,'the issue becomes i  ! .whether PEMA can provide a reasonable assurance that radiological emergency I response' training will'be provided to the civilian personnel which will be

• l ,

utilized in the evacuation of Graterford.

p The inmates contend that PEMA has failed to neet its burden of providing a

[ reasonable assurance that such training will be gDren to civilian employees. To 4

i date, one letter, which in attached as Exhibl.t ','.". was'sent to six bus driver conpaniEs on April 4,1985. The sending of this' letter represents the only i

! . 1 , 1

] affirmative action that has been taken with respect to this issue. To date, n  !

l.

there has been absolutely no response of any kind from any of the potencial' bus  !

provider companies. The inmates contend that this lack of a response is

{jindicative of tneir allegation that said training will not it; fact occur. In i y , i I; support of their contention, the inmates offered the expert testimony of Major '

d LJohn Case, who is currently the Field Director of the Pennsylvania Prison hSociety. Major Case spent 22 years in the United States Marine Corps where he  ;

i V

achieved the rank of major. He also was the warden and director of the Bucks j

[lCountyeDeparbnent of Corrections for 12 Major Case testified that_there years. #

. hl exists a need for a fir.ancial incentive to encourage these civilian bus dr l

f)to take the training offered. (See Case deposition, pp. 40 through 41 and Tr.

L20,951 and 20,938 through 20,939.) PEMA, through the testimony of Don Taylor,  :

l i

' stated that.he could not address the issue of whether financial incentives will l

2 be used to encourage participation of bus. drivers. (See Taylor Tr. 20,863 l .

through 20,864.) A PEMA witness stated that activation was not a concern with 4

I respect to Ltraining of civilian personnel. (See Asher Tr. 21,001.) Mr. Taylor 1  :

a

'% d t

, (

j further stated that the fact that the civilian personnel will be utilized to

! evacuate a maximum security prison makes absolutely no difference to him or to

] the type of training that will be offered. (See Taylor Tr. 20,860.) rir. Taylor also testified that to date no training has been offered to civilian ambulance

! drivers. (See Taylor Tr. 20,879.) He also stated that there was no need to

! offer the bus drivers training in inmate custody aM control. (See Taylor Tr.

, j20,860.) It is the inmates' contention that PEMA and FDW are only concerned with the offer of training aM are unconcerned as to whether the training will occur. The inmates contend that the Criterian,0 of NUREG 0654 calls for an Lassurance that said training will in fact be given. As was previously

[ mentioned, each organization is charged with assuring the training of

t appropriate individuals. (See Asher/Kinard Tr. 20,995.)

i-It does not state that J

each organization shall assure that training of appropriate individuals will be offered. Given the dangercus nature of their assigned responsibilities, i.e. ,

evacuation of a maximum security prison during a nuclear emergency, and offer of trainire is insufficient. There must be some assurance that said offer will be accepted. To date, there has been none.

It is the inmates' contention that FEMA is charged with the responsibility of providirg a reasonable assurance that the' civilian personnel will receive adequate training with respect to radiological emergency responsiveness. (See 10 CFR 50.47(a).) FEl%'s closing remarks indicated, however, a concern only as

to the offer of training and not the assurance that the appropriate individuals O

puldbetrained. (See Hirsh Tr. 21,017.) PEMA is the organization responsible

! Eor the training of such individuals. (See Asher/Kinard Tr. 20,995.) The

f l

i i

inmates contend that the burden falls upon PEMA and FEMA to prove that j j reasonable assurances exists th'at such training will occur. (See Consumert j

flPower Company (Big Rock Point Plant) 16 NRC 1096 (1982).) Major Case, wher j asked what information he has to indicate there would be a lack of cooperatior

? of bus drivers by NRC staff counsel, stated "I have no information to indicate there would be a' lack of cooperation of bus drivers. The only information I

have is 'a lack of information as to what training would be provided, and q

therefore on that, I base an assumption that the bus drivers would be I uncooperative." (See Tr. 2.0,951 through 20,952.) . Major Case went on to state,

{ "I have heard nothing to indicate that - I have heard nothing or read nothing to indicate that the private bus drivers would have a reason to cooperate. The d

testimony of Mr. Taylor indicates that letters were written to six different bus q companies and he has received no response. It would seem to me, in my j experience, as a troop leader, as a leader of men; men motivated by various

] things; compassion, love of their fellow man, patriotism, and monetary reward.

.None of which has been indicated to me that the bus drivers have been given any n reason to think that it would be within their best interests to move to J

!Graterford arx! move the inmates." (See Tr. 20,951.) The inmates contend, based

!i upon this testimony, that a reasonable assurance that training will occur has

yet to be provided and that PEMA and FEMA have failed to carry their burden with lrespect to this issue.

i PEMA has suggested that it will make attempts in the future to encourage l the bus companies to get involved in the tra'ining that has been offered. (See i! ,

llTaylor Tr. 20,856, 20,863, 20,877.) Mr. Taylor has also stated that it is his I

1

l. g

l l h belief that the training is not essential to the civilians' ability to function

! L during a nuclear emergency. (See Taylor Tr. 20,874.) In doing so, he has

]substitutedhisjudgmentfortheplanningCriterianOofNUREG0654. The j inmates point out that if Mr. Taylor does not believe in the necessity for

.i

,  : training, how can he be expected to encourage the dricers to participate in I

such. Thus, the inmates have serious reservations about any future efforts by

,PEMA to encourage drivers to participate in said training. For these reasons, ithe inmates respectfully request that this Appeal Board rule that no reasonable assurances have been offered that civilians will be trained in radiological emergency responsiveness.

4 ll D. There is No Reasonable Assurance that the Methodology Utilized 0

,! to Ccrmile the Estimated Time of Evacuation is Sufficiently u

Reliable so as to be Utilized as a Decision Making Tool During il y a Nuclear Emergency.

d lj NUREG 0654 Appendix 4, states the need the compiling an estimated time j of evacuation for everyone within the ten mile emergency planning zone 6

asurrounding a nuclear power plant. Appendix 4 goes on to discuss the methodology jwhichshouldbeutilizedinobtainingtheestimatedtimeofevacuation. It also e

b states that special facility populations should be considered on an institution by institution basis. (See NUREG 0654 Appendix 4, paragraph II C. pp. 4-3. )

0 Thus, an individual ETE must be developed for each such special facility

! population. The Licensing Board has stated "that it is clearly reasonable to j i  !

l require preparation of a separate evacuation time estimate, which the l

~

Pennsylvi.nia authorities have done and will rely upon for taking appropriate 4

_ _ - _...J

l i

J protective actions." (See Order Admitting Certain Revised Contentions of the

I jGraterford Inmates and Denying Others, at p.10, June 12,1985.) The Board q.

ifurther ruled that it admits "only that portion of these intervenors'

allegations that deal with the sufficiency of the methodology used to arrive at 3 the six to -ten- hour evacuation time. Whether the six to ten hour estimate is in the'~ plan or not, does not require litigation. Reading of the plan will reveal lits presence or absence. If absent, it will be inserted." (See Order Admitting f.Certain Revised Contentions of the Graterford Inmates and Denying Others, supra at p. 9.) The issue before the Board was whether the methodology utilized to jcmpile the ETE was sufficient so as to provide an adequate basis for planning jappropriate protective actions for Graterford personnel. After hearings on this

i jiissue, the inmates' objections to the methodology presented by Superintendent U

jjZimmermanarethreefold. Initially, Superintendent Zimerman's ETE differed 9

from Comissioner Jeffes' ETE. A third ETE, which was offered some four years h

.ago, provided a third estimated time frame. The inmates contend that the idiscrepancies that exist within the thr' e e different time estimates establish a (prima facie case as to the unreliability of each and every ETE that has been

!, compiled. The second objection to the methodology of the ETE concerns the many potential hazards that incoming and outgoing transportation and manpower

[mobilizationvehicleswillbeconfrontedwithwhenattemptingtocarryouttheir fassigned responsibilities. The third concern involves the inmates' response to ii (the emergency within the prison wall's and what, if any, training they will l9 receive prior to the granting of a full power license.

II l

T

i 4

At the start of Superintendent Zimerman's testimony, the inmates' counsel J

l attempted to introduce a document which was identified as Graterford Inmates 1

q Exhibit No.1, which indicated that an estimated time of evacuation study was J

l subnitted in July of 1980 which indicated that the evacuation time estimate for J

li SCIG was five hours and thirty minutes under daylight conditions only. (See GI dNo. 1 and Tr. 20,891.) The Licensing Board rejected this information and g refused to allow the exhibit to be entered into the record. A second estimated 0

i time of evacuation was developed by the Commissioner of the Department of

~

Corrections, Glen Jeffes. Comissioner Jeffes' ETE was six to ten hours 'before Ot he last prisoner is ready to leave. (See Zimerman Tr. 20,770 and Tr. 20,769, i

i and Applicant's First Exemption Request 1/31/85 Affidavit of E. Robert Schmidt

!I h and Jeffrey Kaiser, paragraph 13. ) Superintendent Charles Zimmerman of the II ll State Correctional Institute at Graterford, developed an independent analysis of

i 3

the ETE and came up with a figure of eight to ten hours. (See Zimmerman Tr.

120,768 through 20,769.) Superintendent Zimerman also testified that he was not

involved in the compiling of the Jeffes' ETE. (See Zimerman Tr. 20,769. ) The jplan itself fails to give any estimated time of evacuation. (See Zimerman Tr.

20,770.) Major John Case testified that Superintendent Zimerman's eight to ten

]hourestimateisbaseduponidealconditions. (See Case Tr. 20,935.) Major iCase also stated that his opinion was that the overall ETE could just as easily a

be twelve to twenty hours. (See Case deposition, p. 54.) The inmates contend

].

hthat the submission of three different ETE's and the complete lack of li hcoordination between the various individuals who comprised the three ETE's

" suggests that any of the three ETE's is unreliable. The lack of coordination and cooperation between Superintendent Zimerman and Comissioner Jeffes further points out a major potential flaw in any emergency radiological response 1l planning if a nuclear emergency were to occur at the Limerick Generating Station. As has been previously stated, the goal of developing an estimated i

time of evacuation is to provide a reliable tool for decision makers when ll.iresponding to a nuclear emergency. The inmates point out that Skippack P

1 jTownship,inwhichSCIGislocated,hasrefusedtoapproveanemergencyresponse 1

hplan due to their unsatisfied concerns regarding the prison evacuation plans.

n i

ll(See Board's Third Partial Decision, No. 658',~p. 293 and Giamo Tr. 19,073.

I With respect to the individual components of the overall estimated time of evacuation, the inmates would like to point out the following. It has been estimated by Superintendent Zimerman that it will take two to four hours for the vehicles necessary to conduct the evacuation to arrive at SCIG under normal conditions. (See Zimerman Tr. 20,803. ) These vehicles will be coming from 1 distances up to 190 miles away. (See Zimerman Tr. 20,803.) Superintendent 11 Zimmerman based his two to four hour estimate upon assurances from the ll

Department of Corrections that the buses would be there in that time period.

L U(See Zimerman Tr. 20,846.) It is further Superintendent Zimmerman's opinion Fthat any problems that could be caused by the corresponding public evacuation d

i have not been considered in this ET. E. (See Zimmerman Tr. 20,804.) He stated that the corresponding public evacuation from the EPZ will not effect the h

4

iincoming vehicles at all. (See Zimerman Tr. 20,803.) He further stated that li ihe u

has no training in traffic engineering. (See Zimerman Tr. 20,766.) The

--'l hinmates presented the testimony of Robert Morris, a traffic control expert, who I

__.___________________m____ ___m_____

! seriously questioned whether the buses could arrive at SCIG from a distance of 1

.190 miles within four hours. (See Morris deposition, p. 78. ) It is also Mr.

JMorris' belief that road capacities would be seriously diminished in the event of_an evacuation of the general public. (See Morris deposition, p. 42 and 79.)

Mr. Morris also testified that accidents are bound to happen during the public's evacuation, further diminishing roadway capacities for incoming vehicles. (See Morris deposition, p. 42 and 79.) He stated that there is a potential for panic

. on the highways by members of the general public who could use shoulder lanes

-designated for emergency vehicles, or ingress routes if the normal routes of

. egress are blocked. (See Morris deposition, p. 42 and 79.) Radioactive fallout and wind conditions could close particular corridors or series of roads, further impeding entry and exit. (See Morris deposition, p. 60.) He also stated that the road capacity on the incoming routes, which the buses will use during entry,

.may be zero due to accidents, panic factor, and would certainly be less than 50 miles an hour. (See Morris deposition, p. 78, 79.) Mr. Morris further stated that in his opinion, a reliable ETE would take into account records of accidents on the roadways, the potential for panic, meteorological conditions of the region, and the potential for a corridor closing due to a radioactive release and prevailing winds. (See Morris deposition, p. 42 through 44.) A balancing of this testimony would irdicate that Mr. Morris' estimates are more reliable than those offered by the Department of Corrections through Superintendent Zinnerman.

The inmates make the same argument with respect to the issue of manpower i

q

' mobilization. Superintendent Zinnerman has stated that ha expects the manpower,

~ . . _ . . . . . . - ..

s .

y. ( .

f 6 4

1.e. the enployees at SCIG, to be mobi'lized within a one to two hout time frame. l

jf(SeeZimmermanTr.20,808.) .

The method to be utilized in activating the

[ manpower is' a call-up system. The call-up system has never been tested during an emergency which also involved the surrounding community, and is based upon j  !! reliance of J the . commercial telephone lines. (See Zinnerman Tr. 20,809.) 'Ihe c .

liinmates have presented . testimony that the comnercial. telephones may not be able 1  :

,  ; to . respond to the call-up system needs. (See Morris deposition, p. 80.) Prior a

l l!estimonyinthisproceedingindicated,thattherewasadial.tonedelayofupto t

i 3 , thirty ' minutes in duration during. the floods resulting from Hurricane Agnes in

. 1972. (See Brown Tr.18,226.)- A previous Licensing Board has reasoned that i "during an energency the comnercial telephone circuits, . including those serving j the schools, likely would'become overloaded as a result of heavy public usage i

! [and thus be unavailable for personal use." (Cincinnati Gas and Electric J i i  ; Company, 'et al' (William H. Ziinner ' Nuclear Power Station, ' Unit 1)' Docket No.

1 .

150-358; 17 NIIC 760 (1983).) ~ For these. reasons, the inmates believe that the I Coranonwealth, through the Department: of Corrections,. has failed to meet its p

g gb urden,of providing a reasonable assurance that bus drivers and correspondingly

. [their buses, will arrive within' the .two to four hour . time frame suggested at i H

!SCIG and that the manpower can be mobilized within the one to two hour time 4 3

$rame suggested by Superintendent Zinnerman.

With respect to the components of the estimated time-of evacuation which

will occur within .the walls of the State Correctional Institute at Graterford, 1

j- ,the inmates point out the following. Superintendent Zinnerman testified that a lockdown of the institution in the event of a nuclear emergency can be achieved I.

i I

N

. 9

within thirty minutes. (See Zimerman Tr. 20,779.) Superintendent Zimerman i!

j also testified that a lockdown under normal circumstances takes thirty minutes.

4 il(See Zimmerman Tr. 20,783.) Major John Case testified that without proper J

] inmate training and orientation, a lockdown could take up to four hours. (See 3

9 Case deposition, p. 28.) The inmates provided documentation as to prior jlockdown situations at SCIG in order to prove their claim as to the a

junreliability of Superintendent Zimmerman's thirty minute lockdown time

estimate. A power failure which occurred on Septe ber 12, 1983 resulted in a lockdown time of four to six hours. (See Zimerman Tr. 20,781 and Graterford

, Inmates Exhibit No. 2.) A second power failure, which occurred on February 23, D

[1984, resulted in a lockdown time of two hours. (See Zimmerman Tr. 20,800.)

ISuperintendent Zimerman reasoned that the lack of emergency lighting caused the iadditional time delay. However, another lockdown which occurred during the h

hostage selge of October 1981, could not be completed for over two hours due to small groups of inmates not returning to their cells because there was no i

functioning loudspeaker to comunicate instructions. (See Zimerman Tr. 20,788

)

[andGraterfordInmatesExhibitNo.3.) The inmates contend that these prior

instances, when combined with the expert testimony of Major Case, indicate a i

[much longer time frame than the usual thirty minutes and should be considered.

Superintendent Zimmerman stated that he will add an addendum to an inmate handbook offering the inmates knowledge of the evacuation process. This idea il pas developed in the past few weeks after Major Case suggested in his deposition l

d,on July 1,1985 that it would be good policy to orientate the inmates as to the nature of the evacuation process. (See Zimerman Tr. 20,834 and Case deposition

p. 28.) Major Case also testified that it would be good policy to have the

)

h inmates participate in a drill to test preparedness. (See Case Tr. 20,943.)

1

, llThis policy would have a much greater impact than Superintendent Zimmerman's i

jplanned addendum for the inmate handbook for the following reasons. The iilliteracy rate at SCIG is approximately 60%. Another 10% of the population is lSpanishspeaking. The inmate handbook is not read to individuals upon iorientation. For these reasons, the inmates contend that the proposed addendum i by Superintendent Zimerman will be inadequate to achieve the desired result.

1 Finally, the inmates point out that .the population estimate utilized to

[developtheplanwas2,450 inmates. The population has already risen to 2,500.

it d(See.Zimmerman Tr. 20,837.) Achissions to the state prison system have risen 4

!!38%between1979and1982. (See Zimmerman Tr. 20,829 and Graterford Inmates

l kExhibit No. 5.) SCIG has plans for an additional 500 cell facility to be 9

sconstructedby1988. (See Zimmerman Tr. 20,830.) The inmates contend that prior population increases are expected to contisme and to run well ahead of

' additional capacity. (See Graterford Inmates Exhibit No. 5, p. 3. ) Despite hthis information, Superintendent Zimerman testified that he expects no further Wincreases in the population at SCIG, even when the new 500 cell facility is opened. (See Zimmerman Tr. 20,830.) The inmates find such assertions hard to obelieve. With an addition of 500 cells and with the projected growth rates of qthe Graterford Inmates Exhibit No. 5, an increase has already occurred and will 0[ continue to occur, rendering much of the current plan inadequate. For these

,ireasons, the ~ inmates contend that the methodology utilized in the development of 0

the estimated time of evacuation is inconsistent and inadequate to provide a 4

. . - - . . - - ~. .- . ._

a t o.-

reasonable assurance that the ETE can be relied upon in the decision makina *

] process.

E.. The Inmates Fail to Receive Their Right to a Fair and q Inpartial Tribunal as Guaranteed by 10 CFR 2.718.

a f The inmates contend that they were denied their right to a fair anc

. Impartial hearing according' to law. The basis for their contention that they y are entitled to such a hearing can be found at 10 CFR 2.718. Thi,s section which

!  ! recites the power of the presiding officer states, "A presiding officer has the 4

, duty to coMuct a fair and impartial hearing accorping to law...". The inmates L

{ p also cite the Fifth and Fourteenth Amendments of the United States Constitution d

l

}

which guarantee due process rights to the individual, including the right to a i i j t fair'and impartial tribunal. (See Wolff v. McDonn_ ell. ,418 U.S. 539, 94 S.Ct.

1 l2963 (674); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593 (1972).; Rhodes

1v. Robinson, 612 F.2d 766, 773 (3d Cir.1979); ' Edwards v. White 501 F.Supp. 8 i

j j (MD PA 1979), and Powell v. Ward, 487 F.Supp. 917 (SD NY 1980).) The inmates a

l hereby incorporate by reference Section II. Procedural History of this Brief.

JAs the Procedural History indicates, the inmates have faced many hurdles' in

[their_ attempt to present testimony that the Radiological Emergency Response

!! Plan for Graterford fails to provide a reasonable assurance as to their safety.

(Despite entering the case in September of 1981, no action on the issue occurred 1 lj Suntil over three years later on December 14, 1984, when the first version of the

. N Radiological Emergency Response Plan was made available to inmates' counsel.

7 From that point on, the inmates had to take three . appeals of Licensing Board i

[ decisions in order to obtain the hearing rights granted to them under the l'

1

regulations of 10 CFR 50.47 and 10 CFR 2.714. The initial appeal concerned the issue of disclosure. Despite assertions by the chairman of the Licensing Board as to the unintelligible nature of Plan 1, requests for further disclosure were j rejected sunnarily. (See Tr. 20,432, 20,468, 20,474, 20,640 and Board's Oral i

Ruling of January 29,1985 at Tr. 20,479 through 20,481.) After a successful j resolution of the disclosure issue, the inmates were once again met by a hostile i, Licensing Board that refused to allow the inmates to revise their ccotentions 4 based upon the new information available in Plan 2. (See Licensing Board 4

'l Memorandum and Order of April 12, 1985, p. 4,, note 4 and note 15.) The 1

Licensing Board further suggested in the same document that such agencies as the i

i. Pennsylvania Emergency Management Agency and the Department of Corrections had I

! sufficient familiarity with the inmates so as to represent their interests in ijthis proceeding. (See Licensing Board Memorandum and Order of April 12, supra 4

!at 12.) The inmates take exception to the characterization that their

' custodians will, in fact, be sensitive to their safety concerns in the event of i

[anuclearemergency. It is the inmates' contention that they themselves are the r

!best representatives of their interests. They note, as did the Appeal Boerd,

that the relationship between the inmates and the Department of Corrections is

[ essentially an adversarial one. (See Decision of the Atomic Safety and Licensing Appeal Board, May 1, 1985, at 16.) The order of April 12, 1985 i

dismissing the innates as a party to the proceeding necessitated a second appeal 1

which was successful as the Atomic Safety and Licensing Appeal Board reinstated I

a the inmates in its order of May 1, 1985 and gave them fifteen days to file their I

revised contentions. Just as the inmates were readying the final draft of these I

,s.

refiled contentions, the Licensing Board once again thwarted their efforts by granting the applicant an exemption from the Graterford issue in order tc l achieve full power status at the earliest opportunity. As noted previously, the Licensing Board characterized any deficiencies in the plan as " insignificant".

t

j. Clearly, the expressed opinions with respect to the issues before them prior to h the appropriate time and prior to listening to the testimony provided by iinmates' experts. The inmates once again appealed this decision and once again Il

]were successful as the Nuclear Regulatory Commission in its order of June 11, 1985, stated its concern with respect to the "he4 ring rights of the Graterford finmates". Only after this directive from the Nuclear Regulatory Commission itself did the Licensing Board admit two portions of the eight revised f

i contentions. The inmates contend that the Licensing Board rejected their stronger issues in favor of an issue which could be easily expedited at the hearing level.

L

i With respect to the hearings of July 15, 1985, the inmates again contend r

that they were denied their right to a fair and impartial tribunal. Initially, Ithe inmates point to the Licensing Board's issuance of a subpoena for a

{ potential witness, Robert Morris, of the Graterford inmates, despite being told

that Mr. Morris had yet to make a decision as to whether he would testify and if

.he did decide he would be available on July 3,1985 for a possible deposition.

c hThe applicant expressed a concern that one of their attorneys had a prior

'i

' commitment with the Delaware River Water Basin and thus said date was

[l unavailable. Despite assurances by inmates' counsel that the witness would be

'available prior to the expiration of the time period for conducting depositions 6

,,and filing pretrial testimony, the Licensing Board issued the subpoena. Further evidence of the lack of impartiality by the Licensing Board can be found in Tr.

1

! 20,809 through 20,811, when the Licensing Board solicited an objection from the

! Governor's Energy Council and sustained said objection despite the reluctance of s

ijsaid counsel to object. The matter at issue was the call-up system previously 1 discussed in this brief. Superintendent Zimerman testified that the manpower jmobilization could be achieved in one to two hours. The triggering mechanism for the manpower mobilization was the telephone call-up system. When asked to i

Lexplain the call-up system, Chairman Hoyt interrupted the proceeding and urged lthatanobjectionbemade. She then continued to persist in her insist.ence that no discussions would be made with respect to the call-up system, despite the l

j fact that Superintendent Zimmerman had put its viability in issue on the record.

I IThe inmates contend that a review of the entire proceeding to date indicates an i

g inherent hostility on the part of the Licensing Board to the inmates, their (counsel and to each and every issue they have brought before this Court.

Without the help of the appellate process and cooperation among parties, with jthe exception of the applicant, this matter would still at best be in the early J

(stages of developing a sound record.

h

] The inmates also note that numerous procedural guarantees of Chapter 10 of lIthe Code of Federal Regulations were denied by the Licensing Board to the inmate fintervenors. 10 CFR 7.443 regarding evidence, subsection (b) states that copies

[of proposed written testiraony should be served on other parties at least fifteen e

days in advance of the hearings. In this instance, the inmates were given a I

' eadline d of July 8,1985 to offer proposed testimony, seven days prior to the 1

I i

l

- J

,o.-o 1

4 dbeginningofthehearings. The expedited schedule further hindered the inmates' a

il

'iability to conduct limited discovery prior to the hearings. The inmates cite 10 j CFR 2.740 with respect to the discovery rules. The inmates note that they did I

. request information regarding seven prior lockdown situations at the State

cCorrectional Institute at Graterford and only received documents pertaining to hone said incident. Due to the expedited schedule, dictated by the Licensing

?

!! Board, the inmates had no opportunity to exercise their rights to compel discovery under 10 CFR 2.740(f). The inmates also, contend that the Licensing t

hBoard failed to pay heed.to the mandate of 10 CFR 2.735 regarding the burden of proof which should fall upon the applicant or the proponent of an order.

Finally, the inmates note that 10 CFR 2.745, Proposed Findings of Fact and ll Conclusions of Law, indicates that a party shall have thirty days af ter the d

] record is closed to file Proposed Findings of Fact and Conclusions of Law. The h

18, 1985, lnl Licensing Board indicated in its initial telephone conference of June

lwhich was memorialized by an order of June 19, 1985, that arguments and findings a

fwould be given at the close of the hearings. When the hearings did in fact

[close, the inmates were given approximately 23 hours2.662037e-4 days <br />0.00639 hours <br />3.80291e-5 weeks <br />8.7515e-6 months <br /> to submit said Findings of

]FactandConclusionsofLaw. The inmates' counsel did so as instructed, 46 Dhowever, objects to this expedited schedule and claims that said decision is further evidence of the partiality of the Licensing Board and of their primary concern to dispose of the Graterford inmates in any way possible, f.

4

IV. CONCLUSION Over the past several years, the inmates have attempted to bring to j the attention of the Nuclear Regulatory Commission their concerns as to their if safety in the event of a nuclear emergency at the Limerick Generating Station.

Their efforts initially were met with three years of silence. After this three jyearperiod,theyhavebeenconfrontedwithsixmonthsofproceduralmaneuvering

i daimed at denying them their rights to a hearing as lawful intervenors in the j

jabove-captioned licensing process. Only after a directive was issued by the d

1 Nuclear Regulatory Conmission did the inmates receive a limited opportunity to 1

l gput forth their issues with respect to safety. The inmates' issues were l bolstered by the efforts of two volunteer experts, Major John Case, Field l

8lDirectorofthePennsylvaniaPrisonSocietyandRobertMorris,atrafficcontrol j

l n l , expert from Potomac, Maryland. The hearing opportunities that were afforded the l jinmates represented a cursory review of the issues put forth by the inmate

'intervenor. The inmates rely upon common sense and legal precedent in their Iassertion that the Department of Corrections has failed to provide a reasonable i assurance that civilians will be trained properly for this most difficult task.

l The inmates further contend that the methodology presented by Superintendent Zimmerman as to the estimated time of evacuation conflicts with two prior l estimates, delegates authority for certain portions of the plan to persons who

did not testify, and bases his assumptions upon ideal conditions. Due to the

unique nature of this issue, which involves the juxtapositioning of a maximum security state prison with a nuclear power facility, the inmates contend that a icursoryreviewisinadequate. The inmates further request that this Appeal Board review this matter in its entirety; that this Appeal Board give serious I consideration to the contentions that were previously rejected, and to give the l

qweight it is due to the expert testimony provided by the inmates' experts.

l The inmates note that there are many parties involved in this proceeding.

]The inmates also note that many of these parties have vested interest in the

! outcome of this issue. These interests are separate and apart from the only interest which should be the basis for the decision making process, which can

, be found at 10 CFR 50.47, which requires that a reasonable assurance be provided as to the health and safety of the public prior to the issuance of a full power ilicense. The inmates note that the applicant has already spent 7.23 billion

, dollars in construction of the Limerick facility and is anxious to recoup their d

investment at the earliest possible time. The Commonwealth of Pennsylvania, Governor's Energy Council, and the Department of Corrections all had hand in f the developnent of the Radiological Emergency Response Plan for Graterford and thus cannut be expected to render an impartial view as to the particulars of their plan. The Federal Emergency Management Agency, as stated in their closing argument, is only concerned that an offer of training be made. The Pennsylvania Emergency stanagement Agency was also inextricably involved in the development of the emcegency plans. The Licensing Board that sat in judgment of these issues has a track record of hostility to the inmates' concerns and could not be expected to perform their assigned duty of providing an impartial a

tribunal. For these reasons, the inmates turn to this Appeal Council and 4

request that a decision be entered in their favor with respect to the coven il issues that they have brought before the Nuclear Regulatory Commission.

l Res vtfully sutznitt 1

JAA hNC1)S H. INE, 1 - 1 Attorn 1or I tes%,SCIG I

W _

I l

PENNSYLVANIA EMERGENCY MANAGEMENT AGENCY OJ[:,{, P.O. DOX 3321 3

• *

• HARRISBURG, PENNSYLVANI A 1710$-3321 ,

THIS LETTER IS ONE SENT TO ALL BUS COMPANIES PROVIDING THE DEPARTMENT OF CORRECTIONS WITl! BUSES.

.E Centlemen:

Some of your employees may be involved in driving buses carrying inmates from the State Correctional Institution at Graterford in the event

• of an accident at the nuclear generating plant located in Limerick, Montgomery County. Because of this possibility, these drivers may want to take some training regarding the proper use of dosimetry.

The Pennsylvania Emergency Management Agency (PEMA) hereby offers to you and your employees a 2-hour course explaining the proper use of dosimetry. We are prepared to conduct this course at a location and time to be selected by you and your employees. We ask only that you coordinate this scheduling with us to avoid any conflicts with our regular schedule of activities.

You may write to me at the address listed above, or you may telephone me at 717-783-8150.

With kind regards, I am Sincerely, Donald F. Taylor Director Office of Training and Education DFTitjl (Tel 717-783-8150)

Exhibit "A" 3

. . o

UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION i

3 Before the Atomic Safety and Licensing Appe fhOard l

lIntheMatterof  : '85 AUG 16 Al0:44 lPHILADELPHIA ELECTRIC COMPANY  :

CFr'^ierstun w 00 .dthG & SEBVKf i,(Limerick Generating Station ilRANCH 4

Units 1 and 2)  : Nos. 50-352 and 50-353 0

1 j CERTIFICATE OF SERVICE l

t .i I, Angus R. Love, attorney for the Inmates at the State 1

~ Correctional Institute at Graterford, hereby certify that a true l and correct copy of the BRIEF OF THE INTERVENOR GRATERFORD INMATES a

!!was mailed to the following list by fitst class ma11, postage ll ij prepaid on August 14, 1985.

4 4

4 q Administrative Judge Helen F. Ibyt Martha W. Bush, Esquire Atomic Safety & Licensing Board Municipal Services Building

' U.S. Nuclear Regulatory Comission 15th & JFK Blvd.

" Washington, D.C. 20555 Philadelphia, PA 19107 Administrative Judge Jerry liarbour Atomic Safety & Licensing Appeal d

Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, D.C. 20555 Washington, D.C. 20555 Administrative Judge Richard F. Cole Robert W. Sugarman, Esquire Atcnnic Safety & Licensing Board Sugarman, Denworth & liellegers

! U.S. Nuclear Regulatory Comission 16th F1, Center Plaza Washington, D.C. 20555 101 N. Broad St.

p Philadelphia, PA 19107 jAnnP.Ilodgdon, Esquire i Counsel for NRC Staff Docket & Service Station u Office of Executive Legal Director U.S. Nuc1 car Regulatory Comission U.S. Nuc1 car Regulatory Comission Washingtc*n, D.C. 20555

[; Washington,D.C.20555 (3 copies) l

,o s i hr. Robert L. Anthony '1heodore G. Otto, III, Esq.

103 Vernon Iane, Box 1% Dept. of Corrections q Moylan, PA 19065 Office of Chief counsel P.O. Box 598

] David Wersan, Esquire Camp Hill, PA 17011

Asst. Consumer Advocate Office of Consumer Advocate Troy B. conner, Jr., Esq.

1425 Strawberry Square Conner & Wettehahn Harrisburg, PA 17120 1747 Penna. Ave, NW Suite 1050 Washington, D.C. 20006 Atomic Safety & Licensing Board Panel U.S. Nuclear Regulatory Cannission Jay M. Cutierrez, Esq.

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

Region 1 Frank Romano 631 Park Avenue 61 Forest Avenue King of Prussia, PA 19406 Ambler, PA 19002 Phyllis Zitzer

! Zori G. Ferkin, Esquire Limerick Ecology Action Governor's Energy Council P.O. Box 761 P.O. Box 8010 762 Queen St.

1625 N. Front Street Pottstown, PA 19464 y Harrisburg, PA 17105 Charles W. Elliott, Esq.

Mr. Thomas Gerusky, Director Counsel for Limerick Ecology i Bureau of Radiation Protection Action

Dept. of Environmental Resources 325 N. 10th St.

Fulton Bank Building, 5th F1. Easton, PA 18042 Third and locust Streets Harrisburg, PA 17120 Eugene J. Bridley, Esq.

Counsel for Philadelphia Electric

.~ Spence W. Perry, Esquire 2301 Market St.

Associate General Counsel Philadelphia, PA 19101 FEMA, Room 840 500 Cr Street, SW Edw. G. Fauer, Jr.

Washington, D.C. 20472 VP and Cancral Counsel Philade'phia Electric Co.

James Wiggins 2301 Mr.rket St.

Sr. ResidetTT Inspector Philadelphia, PA 19101 U.S. Nucicar Regulatory Comission P.O. Box 47 Steven P. Hershey, Esq.

Sanatoga, PA 19464 Comunity Legal Services

5219 Chestnut St.

Timothy R.S. Campbell, Director Philadelphia, PA 19139 0 Dept. of Dnergency Services 14 EastBiddle Street g West Chester, PA 19380 f j L

Director, Penna. Emergency Management Agency Basanent, Transportation & Safety Bldg.

/ n,,a At@7 Ff. WU ESQyIRE \

M

, Harrisburg, PA 17120 Montgomery hu,nty Legal Aid Counsel fo inmates, SCIG l