ML20127J962

Notice of Appeal Re ASLB 850509 Decision Granting Applicant Motion for Exemption from Requirements of 10CFR50.47. Requests Aslab Reverse Exemption Request & Allow Inmates Input Into Matter.Certificate of Svc Encl

ML20127J962
Person / Time
Site:	Limerick
Issue date:	05/21/1985
From:	Love A GRATERFORD INMATES, LOVE, A.R.
To:
References
CON-#285-086, CON-#285-86 NUDOCS 8505220001
Download: ML20127J962 (15)

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'85 11M 21 Ai0 :51 UNITED STATES OF AMERICA NUCLEAR REGUIA'IORY COMMISSION -

A'IOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of  :

PHILADELPHIA ELECTRIC CDMPANY  : Docket Nos. 50 1 352 0 '

50-3530 L (Limerick Generating Station,  :

Units 1 and 2 l NOTICE OF APPEAL I. INTRODUCTION The inmates of the State Correctional Institute at Graterford, through I

their attorney, hereby file a Notice of Appeal with the above-mentioned Board regarding the May 9,1985 decision of the Atomic Safety and Licensing Board granting applicant's Motion for Exemption from requirement of 10 C.F.R. 50.47 (a) and (b) for a period of time any potential contentions of remaining party are considered by the Board. The inmate intervenors were granted said status as intervenors on June 1,1982 in a special prehearing conference order of the Atomic Safety and Licensing Board. This ruling was in response to the original petition to intervene filed by the inmates on September 18, 1981. Over the

- following three years, the inmates received numerous assurances that the -

radiological emergency response plan for the State Correctional Institute at Graterford was in its final stages and ready for release. On numerous occasions they were told that' other provisions and reviews had to be made prior to the release of said plan. On December 13, 1984, the Bureau of Corrections, through 8505220001 860521 PDR ADOCK 05000352 g PDR 9

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the Comonwealth of Pennsylvania released a sanitized copy of the Bureau of Corrections Emergency Radiological Response Plan for Graterford. Said plan was some 27 pages in length and was replete with deletions. The inmates imediately moved for full disclosure under a protective order of the court. Said request was denied, as was their request for a stay on January 29,1985, by the Licensing Board. The inmates imediately filed an appeal to this Board which rejected said appeal on February 12, 1985, however, did suggest in their order that the parties attempt to work out a compromise using the auspices of a protective order. All parties met on February 27th in an attempt to work out a solution to this problem. The Comonwealth of Pennsylvania and the Bureau of Corrections finally agreed to allow inspection of a less sanitized version, heretofore referred to as Plan 2, by the inmates' counsel and their expert, Major John Case of the Pennsylvania Prison Society. Said review was conducted on March 18, 1985 under a protective order issued by the Licensing Board at the State Correctional Institute at Graterford. On March 22, 1985, another conference was held with all involved parties in Harrisburg, Pennsylvania. At that time a number of issues were resolved, however, the Licensing Board's refusal to allow the inmates to restyle the bases for their original contentions filed without review of the more comprehensive Plan 2, prevented a serious discussion of the issues. The Licensing Board then eliminated Graterford as a party to the proceedings and rejected all of their initial contentions which were filed without the benefit of the review of Plan 2. The inmates appealed this decision to this Board which ruled on May 1,1985 that the inmates were hereby reinstated into this proceeding and would be given until May 15, 1985 in which'to file their revised contentions. In the meantime, the applicant requested on February 7,1985 an exemption from the requirements regarding I

emergency planning. Just prior to the deadline for the inmates' submission of their revised contentions, the Atomic Safety and Licensing Board granted the applicant's request for an exemption frm the issues dealing with the Graterford inmates. The inmates hereby file their request contending they have yet to be given the opportunity to have meaningful input into the licensing process as i

mandated by 10 C.F.R. 50.47 (a) and (b) and thus, the exemption should not be issued.

II. A full power license should not be granted to the applicant until there has been a reasonable assurance that adequate protection to the health and safety of the general public will be provided,-pursuant to 42 U.S.C. 2232.

In order for an applicant to receive a full power license for a nuclear facility, they must comply with the requirements of 42 U.S.C. 2232. Among the many provisions encompassed in Section 2232, is the following:

...In connection with applications for licenses to operate production or utilization facilities, the applicant shall state such technical specifications, including information of the amount, kind, and source of special nuclear material required, the place of the use, the specific characteristics of the facility, and such other information as the Comission may, by rule

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or. regulation,' deem necessary in order to enable'it to o

find that the utilization or production of.special,

-nuclet.r material will be-in' accord with the connon de-fense and security.and will provide adequate protection to the health and safety of the public."

Af ter the Three Mile ' Island incident of 1979, Congress saw fit to

, promulgate addit.ional regulations regarding the licensing procedure for nuclear power plants. These regulations eventually. took the form of 10 C.F.R. 50.47 i which provides for "..'.No operating license for a nuclear power reactor will be issuedLunless a finding is made by NRC that.there is reasonable assurance that adequate protective- measures can and will be taken in the event of a radiological emergency period." (See 10 C.F.R. 50.47 (a)l) ~. On' February 7,

', 1985,: the applicant requested that the Licensing Board exenpt the applicant

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from the above-mentioned requirements as.they refer.to the contentions involving the Radiological Emergency Response Plan for the State Correctional Institute at Graterford. The basis for the applicant's request for an exemption was cited as 10 C.F.R. 50 12-(a) and (b).. The Licensing Board in granting.said exenption request has based its decision not upon the aforementioned provisions of the

applicant's request, but instead upon 10 C.F.R. 50.47 (c)'1. Due to the novelty 4

and the couplexities involved in the Graterford matter, and the tremendous

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public health and safety considerations associated with a full power operator's license, .the-inmates respectfully request that the applicant be required to 4

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completey the emergency planning mandate as it was originally conntenplated by the United States' Congress in full.

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'"It is clear .in retrospect that emergency preparedness was deficient in the pre-Three Mile Island' era.- Emergency preparedness - dealing with state and local . authorities, planning for evacuation - was a. subject with -little visibility. Had it been more visible, however, it may have revealed inattention rather than attention to nuclear. safety. Emergency preparedness was another cost effective safety measure neglected until af ter the TMI- accident." (See

" Nuclear -Safety", William Wood, American Enterprise Institute, Studies in Government Regulations, page 60. See also Mitchell Rogavin, Director, Special Inquiry Group, Three Mile Island: "A Report to the Consissioners ~and the Public, NUREG/CR-1250 (Washington, D.C., U.S. NRC) January, 1978 and the "Kemeny Report"

- Report of the President's Connission on the Accident at Three Mile Island.)

The accident at the Three Mile Island facility outside Har? '.sburg, Pennsylvania in 1979 ? revealed what the intervenors had been arguing. for years.

They contended that both the Nuclear Regulatory Consission and the Nuclear industry had been. dominated by complacent attitudes that have prevented adequate  ;

pnsideration of serious reactor safety issues. (See aforementioned' Studies. )

i On August 8,1980, the United States Congress passed Public Law 83-703, which adopted the regulations which are now published at 10 C.F.R. 50.47. Thus, the inmates contend that the provisions regarding said emergency preparedness which were promulgated in response to the TMI accident, are necessary and valid

ensiderations which must be dealt with in their entirety prior to the applicant

being permitted to go to full power at the Limerick nuclear facility. The inmates also draw the Licensing Board's attention to a recent report of the American Physical Society, which concluded that current research is not adequate to support any general reduction in source terms - estimates of the amounts of dangerous radioactive isotopes that would be released from nuclear plants in severe accidents (NW-21 February 1985 Extra). When reviewing this report, Chairman Nunnzio Paladino of the NRC, asked the APS Committee if there was enough evidence in place for some kind of emergency plan reductions.' Committee chairman, Richard Wilson, a professor at Harvard University, Boston, Massachusetts, indicated that no emergency planning changes were warranted.

(See Nucleonics Week, February 28,1985 at page 10). Thus, this study reaffirms the necessity of a full and comprehensive review of the emergency planning as dictated by 10 C.F.R. 50.47.

The inmates also draw the Appeal Board's attention to the unique and novel nature of the issue with which the applicant requests an exemption from. For the first time during the life time of the new emergency planning, a nuclear power plant has been juxtapositioned with a maximum security penal institution.

The State Correctional Institute at Graterford represents a 2,500 man maximum security facility within the jurisdiction of the Pennsylvania Department of corrections. 'Ihe prison, which was built in the 1920's, houses some of the most dangerous criminals in Pennsylvania. Included in the current population are 15 individuals who have. aceived death penalty sentencec, 400 individuals serving life terms, 31 persons serving twenty or more years,118 persons serving ten to 1

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• twenty years, and 410 persons serving five or more years. (See Pennsylvania Bureau of Corrections 1983 Annual Statistical Report.) The 2,500 man population alsoLrepresents 'an unprecedented growth period in the incarceration population

• of Pennsylvania. From 1979 to 1984, the population in the State Correctional Institute' grew from 7,851; people to 12,532 people, an increase of 60%. (See

, Report of .the Pennsylvania Comission on Crime and Delinquency's Prison and Jail Overcrowding Task' Force, February 12, 1985). Correctional experts have long recognized the, fact that a rise in' the incarcerated population results in a corresponding increase in the potential for, institutional assaults and violence.

The recent study of the Pennsylvania Commission on Crime and Delinquency regarding the overcrowding situation states that "The potential for a major incident continues to exict, and the overcrowding handicaps efforts to ' control and' manage the inmate population in our institutions. Overcrowding not only effects the management of the correctional facilities, but also places great burdens on'. available resources. - Classification procedures became a matter of space available, rather than placement in a best security and program-slot.

Staff overtimes become comonplace, compounding stress problems already associated with w .ing in a correctional facility." (See supra, Prison and 7

Jail overcrowding 'rask Force Report, February 12,=1985 at page 6.)-

7 The State Correctional Institute at Graterford also has a recent history of violent episodes. In May of.1980, an institution-wide work stoppage was conducted by the vast majority of the inmate population in response to pending W

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cut-backs in vocational and educational services. In October of 1981 four gun-wielding inmates took six civilian and numerous inmates hostages at the SCIG facility and held them four days at gun point. (See the Report of the Governor's Panel to investigate the recent hostage incident at SCIG, August, 1982, Comonwealth of Pennsylvania.) In 1983 a power failure resulted in a riot on C-Block which required the hospitalization of numerous guards and inmates

!before the situation was brought under control. In 1984, an inmate with a gun escaped _while being transported from SCIG to a court hearing in Philadelphia.

Again .in late 1984, Kathleen Martin was arrested at the front gate by SCIG personnel for possession of 11 rounds of amunition which she was attempting to smuggle into the facility. As re ently as May 16, 1985, a bomb was discovered on B-Block in SCIG and was diffused by Montgomery County Bomb Disposal Unit.

These events suggest to the inmates and their counsel that Graterford will be an exceedingly difficult institution in which to evacuate the population from.

A review of past caselaw regarding the issuance of exemptions suggests "The use of exemption authority under 10 C.F.R. 50.12 is extraordinary and is based upon a finding of exceptional circumstances, considering the equities of the situation." Long Island Lighting Company (Shoreham Nuclear Power Station, Unit

1) CLI-84-8, 19 R C 1154 at 1155, (1984). This case goes on to enunciate cer-tain principles by which exemptions should be judged. The inmates point out that the decision of the Licensing Board currently under appeal makes no mention of any of these standards, thus the inmates contend that the bases upon which the . exemption was granted fails to adhere to prior precedent regarding the granting of such exemptions. A subsequent case entitled, Mississippi Power and Light Company (Grand Gulf Nuclear Station, Units 1 and 2), CLI-84-19, 20 NRC 1055, (1984), suggests that the Long Island case not be used as a precedent on the issue of granting exemptions under subsection (a).

"The Comission notes in this regard that it has recently issued a decision which departs from past staff practices both with regard to the standards for granting exemptions and the circumstances where ex-enptions are required. . Long Island Lighting Ccxnpany (Shoreham Nuclear Power Plant, Unit 1) CLI-84-8, 19 NRC 1154 (1984). However, the Comission subsequently stated that the Shoreham decision for the near term was only to apply to the particular circumstances of that case, and that the NRC staff should develop a comprehensive ex-exemption policy as a generic matter. Thus, while this generic reexamination is underway, the staff should continue its practice of granting exemptions only after making the finding required by 10 C.F.R. 50.12 and documenting the in-formation supporting its detectination." Id. Footnote 7 at ' ,

page 1059.

The inmates point out once again that there is no mention of any such analysis in the Licensing Board's decision. Thus, the inmates contend that the Licensing Board has failed to apply the appropriate legal standard for determination of an exemption request by the applicant. The inmates also have been unable to find any precedent for the current basis for the granting of the exemptien as suggested by the Licensing Board. As the prior cases suggests, the NRC staff is obligated to develop a comprehensive exemption policy as a generic matter, therefore logic would dictate that this comprehensive exemption policy should be the basis for the granting of such and the novel suggestions of the Licensing Board do not appear to be consistent with the precedent set in the Mississippi Power and Light Company case.

The decision of the Licensing Board suggests that 10 C.F.R. 50.47 (c) 1 should be the basis for the granting of the exemption in this particular instance. The Board goes on to cite three standards with which it believes the exemption can be granted. The first standard involves giving the applicant an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question. The second criteria involves adequate interim compensating actions have been or will be taken. The third category suggests that there are other compelling reasons to permit plant operation. With regard to the first standard which allows the applicant an opportunity to demonstrate to the satisfaction of theCommission, that deficiencies in the plan are not significant, the inmates contend that this is a premature issue. Deficiencies in the plan as mentioned by the Graterford inmates are not due until May 15,1985, therefore the applicant has not yet i

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viewed. the potential' deficiencies, therefore it.cannot have an opportunity to discuss these at this time. : The Appeal Board's decision of May.1,;1985 granted the inmates until May 15th to prepare their revised contentions. To date the applicant has not had the opportunity to review these. contentions and there have been no filings since the submission of- these d~'n=nts on the 15th day of May, 1985. 'Therefore, the inmates contend that the applicant cannot do this until it reviews the revised contentions of the-. inmates. The second standard which suggests that adequate interim compensating actions have been or will be taken promptly brings about the same situation as the first category. In that the

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inmates' contentions have just recently been filed, there has been no opportunity or discussion regarding their contentions, therefore there can be no L

discussion of. adequate interim compensating actions at this time. The' third basis for, the Licensing Board decision is entitled,"Other Coupelling Reasons to Permit' Plant Operatilons". .The Licensing Board. states "The costs'ofJdelays include those associated with litigating any contention found admissible are enormous. ...the financial costs for the applicant and their rate payers are a reason, and indeed a compelling one, for granting an exemption." '(See' Atomic Safety and Licensing Board's May- 9,1985 Decision, ASLBP 81-465-07 OL at page 7.) The inmates contend that. the financial wherewithal of the Philadelphia Electric Conpany is an insufficient grounds upon which to grant an exemption.

The ' inmates draw the Board's attention to the Case 'of the Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2) ALAB-789 November 5,1984, 4

slip opinion page 5, which ' states ". . . Economic concerns are not within the

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proper scope of. issues litigated before these proceedings." If the applicant is allowed to utilize its financial condition as a basis for the granting of the exemption, the inmates request the opportunity to provide countervailing argument that the financial condition of PECO is not in the public interest and that the public interest may well have better been served without the costly and time-consuming excursion into the nuclear power industry. The inmates note that the initial estimated cost of the Limerick Generating Station was in the vicinity of one billion dollars, however, now that the plant is ready for operation the costs have risen to .approximately seven billion dollars. The inmates do not believe that the predicament that PECO has placed itself in should be a basis for the graating of such a decision as has been requested herein.

III. CX)NCLUSION In the recent decision issued by this very Board on May 1,1985, (see Philadelphia Electric Company (Limerick Generating Station, Units 1 and 2)

AIAB-608 May 1,1985 at page 16,) the Appeal Board states "Any delay likely to result at this stage cannot be laid at the feet of the Graterford inmates."

However, the Licensing Board's decision, which is the subject of this appeal, states on' page 3, that the exemption must be granted "without delay for an applicant who has been caught on the horns of others dilemna". The inmates are at a loss as to what "others dilemma" means with respect to this issue. 'Ihe inmates entered this proceeding in 1981 and waited three and one-half years 4

i N before any actions were taken Jith regard to this issue. Now that they are

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( finally. obtaining the right for a naaningful input into the licensing process, an exemption has been issued preventing their participation in the process prior to the issuance of a full power ' license as contenplated by 42 'U.S.C. 2232. The inmates believe that' the Licensing Board's posture throughout has been to avoid dealing with this most difficult and novel problem. The inmates contend that -

such issues go to the heart of the emergency planning regulations, which were promulgated after the TMI accident. To grant an exemption from such an important and potentially dangerous issue such as the evacuation of a maximum security prison is an abdication of their responsibility in the licensing process. For these reasons the inmates respectfully request that the Appeal Board reverm -the exenption request and allow the inmates input in'.o this matter in order to guarantee the health and safety of the public before the issuance of a full power license.

Respectfully subnitted, ARGUS R

.kki W IINE,/ESCU' IRE Attorn for Inmates, SCIG UNITED STATES OF AMERICA .

NUCLEAR. REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOARD

-In the Matter of  :

00tKETED PHILADELPHIA'ELECTRICcCOMPANY  : Docket N0s. 50-352 USNRC (Limerick Generating : Station, 50-353

. Units'1 and 2)  :

85 MAY 21 A10:31 CERTIFICATE OF SERVICE.

0FFICE OF SECRETAR I, Angus R. Love, attorney for the Inmates'at tSE M fC Correctional Institute at Graterford, hereby certify that a true and c 'ect copy of the NOTICE OF APPEAL was mailed to the follow-ing tist on Friday, May 17, 1985, by first class mail, postage prepaid.

Mministrative Judge Helen F.319 yt Atomic Safety & Licensing

-Atomic Safety & Licensing Board Appeal Board Panel U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission

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Washington, D.C. 20555 Washington, D.C. 20555 Mministrative Judge Jerry Harbour Robert J. Sugarman, Esquire Atomic Safety & Licensing Board Sugarman,-Denworth & Hellegers U.S. Nuclear Regulatory Comission 16th F1, Center Plaza Washington, J.C. 20555 101 N. Broad Street Philadelphia, PA 19107 Administrative Judge Richard F. Cole Atomic Safety & Licensing Board Docket & Service Section U.S. Nuclear Regulatory Comission U.S. Nuclear Rdgulatory Comission Washington, D.C. 20555 Washington, D.C. 20555 (3 copies)

Ann P. Hodgdon, Esquire Mr. Robert L. Anthony Counselfor NRC Staff 103 Vernon Lane, Box 186 Office of the Executive Legal Director Moylan, PA 19065 U.S. Nuclear Regulatory Comission Washington, D.C. 20555 David Wersan, Esquire Asst. Consumer Advocate Martha W. Bush, Esquire Office of Consumer Advocate Municipal Services Building 1425 Strawberry Square 15th & JFK Blvd. Harrisburg, PA'.17120 Philadelphia, PA 19107

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Atomic Safety & Licensing Board Panel Jay M. Gutierre.z,.: Esquire ::

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory. Conn.

~ Washington, D.C. 20555 Region 1~

631 Park Ave.

-Frank Romano King of Prussia, PA 19406

'61 Forest Avenue l

.' Ambler, PA 19002 Phyllis Zitzer I Limerick Ecology; Action '

Zori G. Ferkin, Esquire P.O. Box 761 Governor's Energy Council 762 Queen Street

.P.O. Box 8010 Bottstown, PA 19464 1625 N. Front St.

Harrisburg, PA 17105: Charles W. Elliott, Esq.

Counsel for Limerick Ecology

.Mr. Thomas Gerusky, Director Action

- Bureau of Radiation Protection 325 N. 10th St.

Dept. of Environmental Resources Easton, PA 18042 Fulton Bank Bldg., 5th F1.

Third & Iocust Sts. Eugene J.Bradley, Esq.

Harrisburg, PA 17120 Counsel'for Philadelphia-Electric Company Spence W. Perry, Esquire 2301 Market St.

Associate General Counsel- Philadelphia,.PA 19101 FDIA, Room 840 500 Cr Street, SW Edward G. Bauer, Jr.

Washington, D.C. 20472 V.P. and General Counsel Philadelphia Electric.Co.

James Wiggins 2301 tiarket St.

Sr. Resident Inspector Philadelphia,-PA 19101 U.S. Nuclear Regulatory Commission P.O. Box 47 Steven P. Hersey,= Esquire Sanatoga PA 19646 Gammunity Legal Services, Inc..

m 5219 Chestnut St.

Timothy R.S. Campbell, Director Philadelphia,.PA 19139.

Dept. of Bnergency Services 14 East.Biddle Street West Chester, PA 19380 Director Penna. Bnergency Management Agency .

Basement, Transportation & Safety Bldg.

Harrisburg, PA 17120 Theodore G. Otto, III, Esq.

Dept. of Corrections Office of Chief Couns&1 b J A /) '

P.O. Box 598 S R. /DVE, DE; Camp Hill, PA 17011 Montgon y y Legal Aid Couns or Inmates, SCIG Troy B. Conner, Jr., Esquire Conner & Wettehahn 1747 Penna. Ave, NW suite 1050 Washington, D.C. 20006