ML20203L944
| ML20203L944 | |
| Person / Time | |
|---|---|
| Site: | Limerick, San Onofre  |
| Issue date: | 08/28/1986 |
| From: | Shoemaker C NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#386-533 ALAB-845, LBP-85-25, OL, NUDOCS 8609020077 | |
| Download: ML20203L944 (55) | |
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h COLMEILD U3NEC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 16 Am 29 A10:34 ATOMIC SAFETY AND LICENSING APPEAL BOARD OfflCL OF sh.u;Asv Administrative Judges: 00CHEig.EPVCf.
g C Christine N. Kohl, Chairman August 28, 1986 Gary J. Edles (ALAB-845)
Dr. Reginald L. Gotchy gg
)
In the-Matter of )
)
PHILADELPHIA ELECTRIC COMPANY ) Docket Nos. 50-352 OL
) 50-353 OL (Limerick Generating Station, )
Units 1 and 2) )
)
Angus R. Love, Norristovn, Pennsylvania, for intervenors, inmates of the State Correctional Institution at Graterford, Pennsylvania.
Frank R. Romano, Ambler, Pennsylvania, for intervenor Air and Water Pollution Patrol.
Robert M. Rader, Washington, D.C. (with whom Troy B.
Conner, Jr., and Nils N. Nichols, Washington, D.C.,
were on the brief), for applicant Philadelphia Electric Company.
Zori G. Ferkin, Harrisburg, Pennsylvania (with whom Theodore G. Otto, III, Harrisburg, Pennsylvania, was
. on the brief), for the Commonwealth of Pennsylvania.
Joseph Rutberg (Donald F. Hassell and Henry J. McGurren on the brief) for the Nuclear Regulatory Commission.
DECISION The appeals now before us concern the last issue to be
' resolved in thic operating license proceeding -- the adequacy of the emergency plan for the State Correctional 8609020077 860828 PDR ADOCK 05000362 G PDR
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IhstituElon at Graterford, Pennsylvania (SCIG).1 A group of inmates _ petitioned to intervene and submitted one contention generally asserting a lack of reasonable assurance that the radiological. emergency response plan (RERP) for SCIG would protect them and the prison staff in the event of a nuclear emergency at Limerick. The contention, however, had eight subparts, two of which were admitted by the Licensing Board for litigation. Licensing Board Order of June 12, 1985 l
(unpublished) , reconsideration denied, Licensing Board Order of July 2, 1985 (unpublished) . After the hearing on these two issues (concerning the training for civilian emergency workers, such as bus drivers, and the estimated time of evacuation for SCIG), the Board issued its fourth partial
- initial decision. It concluded that, insofar as these two i
contested issues are concerned, the SCIG emergency plan 1
SCIG is located in Skippack Township, approximately eight miles from the Limerick nuclear power plant, and is within the facility's plume exposure pathway emergency planning zone (EPZ). See Commonwealth Exh. E-9 (PEMA Evacuation Plan Map). See generally 10 C.F.R. S 50.47 (c) (2) and Long Island Lightinc Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-E32, 23 NRC 135, 143-45 (1986),
review pending, CLI-86-11, 23 NRC , (June 6, 1986)
(slip opinion at 2), for a discussion oT the EPZ concept.
Other offsite emergency planning issues involving Limerick were addressed in ALAB-836, 23 NRC 479 (1986), review declined, Commission Order of July 24, 1986 (unpublished).
2 efforts to participate The background of the inmater in this proceeding is set out in ALa-806, 21 NRC 1183 (1985). See also ALAB-809, 21 NRC 1605, vacated as mcot, CLI-85-16, 22 NRC 459 (1985).
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I meets all pertinent NRC regulatory requirements and guidance. Consequently, the Board authorized the Director of the Office of Nuclear Reactor Regulation (NRR) to issue a full-power. operating license for Limerick. LBP-85-25, 22 NRC 101, 116 (1985).3 The inmates appeal the Licensing Board's fourth partial initial decision, as well as the Board's earlier rejection of five parts of their contention.4 Although it did not participate in this phase of the Limerick operating license proceeding, another intervenor, Air and Water Pollution Patrol (AWPP) , also appeals the Board's decision.
Applicant Philadelphia Electric Company (PECo), the Commonwealth of Pennsylvania, and the NRC staff each urge 3 The Commission made the Licensing Board's decision "immediately effective," and the full-power license for j
Limerick was issued on August 8, 1985. CLI-85-15, 22 NRC i 184 (1985). We denied subsequent requests for a stay, as l did the Commission and the U.S. Court of Appeals for the Third Circuit. ALAB-814, 22 NRC 191 (1985); Commission i
order of October 10, 1985 (unpublished); Limerick Ecology Action, Inc. v. NRC, No. 85-3431 ( 3'd Cir. Aug. 21, 1985).
4 The inmates do not challenge the Licensing Board's exclusion of the remaining sixth part of their contention, which concerns the monitoring of radioactivity. See Licensing Board Order of June 12 at 10.
5 Still another joint intervenor from different phases l
of this proceeding, Robert L. Anthony / Friends of the Earth
( Anthony / FOE) , filed an appeal from the Board's fourth partial initial decision on July 31, 1985. Because Anthony / FOE did not file a brief in support of this appeal, however, they are in default and their appeal is dismissed.
See ALAB-836, 23 NRC at 485 n.2.
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affirmance. As explained below, we affirm the two Licensing Board decisions here at issue in all but one respect: the Board's rejection of the inmates' contention concerning manpower mobilization is reversed, the contention is admitted, and this matter is remanded to the Licensing Board for further action consistent with the Commission's Rules of Practice and this opinion. In addition, we dismiss AWPP's appeal.
I. Rejected Contentions A. Manpcwer Mobilization The inmates' contention alleges that "[t]here is no reasonable assurance that the call up system to be utilized in the event of a nuclear emergency in order to mobilize the entire work force of the State Correctional Institute [ sic) at Graterford will achieve its designated purpose."
Proposed Revised Contentions (May 13, 1985) at 2. The basis for the contention notes that SCIG employees are to be
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mobilized through a pyramiding system in which one employee telephones ten others and so on until all persons are notified. This system could fail, according to the contention, if the commercial telephone lines become overburdened and thus unavailable. In this connection, the inmates refer to the testimony of Richard T. Brown (Chairman of the Lower Providence Township Board of Supervisors) in an earlier phase of this case, suggesting that the local telephone network had been impaired during a past emergency.
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The inmates claim that, in light of the possible dis :uption f
of commercial telephone lines, a backup or alternative system is necessary. They cite 10 C.F.R. SS 50.47 (b) (5) ,
1
- 50. 47 (b) (6) , and I'URZG-0654/ FEMA-REP-1, Rev. 1, " Criteria for Preparation and Evaluation of Radiological Emergency Response Plana and Preparedness in Support of Nuclear Power 1
[
Plants" (1180) .[hereaf ter, "NUREG-0654"] , Criteria E and F,
! in support of this argument. Irroposed Revised Contentions l at 2-4.
The Licensing Board concluded that the basis for this i contention lacks the specificity required by 10 C.F.R. S
- 2. 714 (b) . It observed that the NRC and Federal Emergency Management Agency (FEMA) requirements and guidance do not prohibit the use of commercial telephone lines for radiological emergency-related activities. Noting that it had earlier disposed of Mr. Brown's concerns about the l
commercial telephone system, the Board found that, in the "unlikely" event of a problem with these lines, "five
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i l dedicated telr. phone lines including a direct connection with the Pennsylvania State Police" (who would notify off-duty SCIG personnel) are available. Licensing Board Order of June 12 at 3. The Board also found that the inmates did not reasonably specify that procedures for notification of emergency personnel have not been established in accordance with 10 C.F.R. S 50.47 (b) (5) . Lastly, the Board concluded that the inmates misinterpreted and misapplied 10 C.F.R. S l
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l 1510. 47 (b) (6) and NUREG-0654, Criterion F; i.e., these provisions relate to communications among " principal l response organizations" to emergency personnel and the public, whereas SCIG is a " support organization." Id. at 4.
On appeal, the inmates begin.by observing that the adequacy of commercial telephone circuits during an 4
emergency has been litigated in another NRC licensing I
proceeding, Cincinnati Gas & Electric Co. (Mn. H. Zimmer Nuclear Power Station, Unit No. 1) , ALAB-727, 17 NRC 760 (1983). The inmates also argue that the Licensing Board's l
- reasoning and references to dedicated telephone lines.at 4 SCIG "miss[] the point of the call-up system which would be relying on people's private lines and not the institutional telephone system." Brief of the Intervenor Graterford Inmates (Aug. 14, 1985) [hereafter, " Inmates' Brief"] at 12.6 They cite again to Mr. Brown's testimony concerning 1
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6 The inmates further point out that the Board made a factual error, inasmuch as SCIG has only one " dedicated" telephone line with a direct link to the State Police, and four other commercial lines that would be used to initiate I the call-up system. Inmates' Brief at 12-13. The Board's June 12 order does not define what it means by " dedicated" line or cite to the record source of its information;
- indeed, the transcript of the prehearing conference at which .
this matter was discussed is somewhat unclear as well. See
- Tr. 20,627-30, 20,672. The Commonwealth Response to j Proposed Revised Contentions (May 24, 1985) at 4, however, supports the inmates' statement of the facts and can obviously be regarded as accurately describing the telephone system at SCIG.
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7 the capabilities of the commercial telephone lines, noting that Mr. Brown is an AT&T communications technician. The inmates also challenge the Board's conclusions that SCIG is not a principal response organization under 10 C.F.R. S
- 50. 47 (b) (6) and thus is not required to have a backup communications system. Id. at.13-14.
The Commission's Rules of Practice, 10 C.F.R. S
- 2. 714 (b) , require intervenors to set forth "the bases for each contention . . . with reasonable specificity" (emphasis added). There is no easy formula for determining what are
" basis" and " reasonable specificity." As we observed a dozen years ago, such judgment.must be exercised case-by-case, with the underlying purposes of this requirement in mind. One such purpose "is to help assure at the pleading stage that the hearing process is not l
improperly invoked -- for example, by challenging statutory requirements or "the basic structure of the Commission's regulatory process." Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (footnote omitted), modified on other grounds, CLI-74-32, 8 AEC 217 (1974). Other purposes are to put the parties on notice of what issues they will have to defend or oppose, and to assure the issues raised are appropriate for litigation in the particular proceeding. Id. at 20-21. In exercising the " considerable amount of discretion" it has in l
determining the admissibility of a contention, however, a
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board'must be careful not to reach the merits. Id. at 21, 20; Houston Lighting and Power Co. (Allens Creek Nuclear Generating Station, Unit 1) , ALAB-590, 11 NRC 542, 547-49 (1980).
Although the Licensing Board was fully aware of these principles, it abused its discretion in applying them to the inmates' manpower mobilization contention. See Licensing
' Board Order of June 12 at 2; Licensing Board Memorandum and Order of April 12, 1985 (unpublished) at 6-9, reversed on other grounds, ALAB-806, 21 NRC 1183 (1985). The contention clearly raises an issue that can be a proper subject for litigation in an operating license proceeding -- the adequacy of the communications system to be used in the event of an emergency. 10 C.F.R. S 50.47 (b) (5) requires 7 Indeed, as the inmates point out, a similar contention was admitted and litigated in Zimmer, 17 NRC at 771-72. See also ALAB-836, 23 NRC at 510-11. The staff 1 argues, however, that the inmates have not shown l communication problems akin to those in Zimmer. NRC Staff Brief (Oct. 8, 1985) at 13. But that argument is off the mark because in Zimmer those communication problems were j demonstrated at a hearing -- an opportunity denied to the i inmates here.
PECo also tries to distinguish Zimmer. It asserts that the off-duty SCIG personnel need not be notified as quickly as the school personnel involved in Zimmer. Licensee's Brief (Sept. 18, 1985) at 23-24. That may well be true, but the issue the inmates' contention raises is the adequacy of the SCIG call-up system to achieve "its designated purpose."
Proposed Revised Contentions at 2. The availability of more time for notification does not necessarily render this notification system adequate for its intended use. l l
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9 the establishment of procedures "for notification of emergency personnel by all organizations" (emphasis added),
See also NUREG-0654 at 43 (Crit'erion E.2) . Implicit in this standard -- which must be met as part of the overall
" reasonable assurance" finding' required by 10 C.F.R. S.
50.47 (a) (1) -- is that such notification procedures should be adequate to serve their intended purpose, i.e., eventual mobilization of necessary emergency workers.8 Because the inmates' contention questions whether the SCIG radiological emergency response plan complies with this pertinent NRC regulation, it raises an issue amenable to admission.9 8 The Licensing Board's observation that the use of commercial telephone lines is not prohibited is unresponsive to the issue raised by the inmates. See Licensing Board Order of June 12 at 3. The same can be said with regard to PECo's argument that a network of sequential telephone calls has been approved in other cases. See Licensee's Brief at 20-21. We agree that 10 C.F.R. S 50.47 (b) (5) does not specify or prohibit any particular method of notification.
Some notion of-adequacy, however, must be read into the section. (ALAB-836, 23 NRC at 510 n.53, was not intended to suggest otherwise.) For, if notification procedures only need be " established," an emergency plan that specifies the use of smoke signals or semaphore to notify emergency workers would suffice. Cf. Long Island Lighting Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-86-13, 24 NRC
, (July 24, 1986) (slip opinion at 16) (specific emergency planning measures not explicitly mentioned in regulations may nevertheless be required for reasonable assurance).
9 The Licensing Board, however, correctly concluded that 10 C.F.R. S 50.47 (b) (6) and NUREG-0654, Criterion F (upon which the inmates also rely), do not apply here. See Licensing Board Order of June 12 at 4. Section 50.47 (b) (6)
(Footnote Continued)
10 Moreover, by their explicit references to the pyramiding call-up system for mobilizing off-duty SCIG personnel and to the asserted inadequacies in the local commercial telephone network on which that system relies, the inmates have not only put the other parties on notice of exactly what they seek to litigate, they have also raised an issue specific to this case. Despite the Licensing Board's effort to minimize its significance or relevance here, the inmates' reference to Mr. Brown's earlier testimony, certainly establishes a basis for questioning the adequacy of the commercial telephone system.10 Mr. Brown -- who, as noted above, is both Chairman of the Board of Supervisors of i
i (Footnote Continued) concerns " prompt communications among principal response organizations to emergency personnel and to the public." A principal response organization has a major or lead role in emergency planning and preparedness. NUREG-0654 at 5-1.
For example, the Pennsylvania Emergency Management Agency (PEMA) is such an organization: its business is planning for and aiding other organizational units (e.g. , schools, hospitals, prisons) during emergencies. SCIG, on the other hand, is a support organization with largely reactive emergency responsibilities limited to its own needs rather than those of others. See Southern California Edison Co.
(San Onofre Nuclear Generating Station, Units 2 and 3),
ALAB-717, 17 NRC 346, 377-78 (1983) , aff'd, Carstens v. NRC, 742 F.2d 1546 (D.C. Cir. 1984), cert, denied, U.S. ,
105 S.Ct. 2675 (1985).
10 Although the inmates failed to cite the specific pages of the transcript where the pertinent portions of Mr.
Brown's testimony could be found, they identified it by date (January 14, 1985), and neither the Board nor the parties appear to have had any difficulty locating the precise pages. See Proposed Revised Contentions at 2-3.
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Lower Providence Township and a communications technician for AT&T -- testified that, based on his experience during I
emergencies, switching problems could overload the public telephone system in certain areas of his township. Tr.
18,133, 18,149-52.I1 As it pointed out, the Licensing Board 4
" disposed of" Mr. Brown's concerns in its third partial initial decision. Licensing Board Order of June 12 at 3.
But the immediate issue there involved notification of an unidentified number of township Emergency Operations Center personnel, which the Board determined (after hearing) could ,
be accomplished without sole reliance on the. commercial telephone system. LBP-85-14, 21 NRC 1219, 1387-88 (1985).
See also ALAB-836, 23 NRC at 510-11. The overall adequacy of the public telephone network in the area relevant to the inmates' contention was not directly addressed, nor was Mr.
Brown's testimony about deficiencies in the switching system j
actually refuted.12 i
11 Lower Providence Township is adjacent to Skippack l
Township, where SCIG is located. See supra note 1.
l 12 The Board's characterization of the alleged I communications problem as "unlikely" is therefore not p supported in the record. See Licensing Board Order of June 12 at 3. Although the Board did not rely on it as a ground for its decision, PECo and the Commonwealth stressed at oral j argument that off-duty personnel are to be notified at the i " alert" stage (see ALAB-836, 23 NRC at 490 n.13), implying
- that the commercial telephone system would not likely be
- overburdened at that time. App. Tr. 60, 74-75. But this (Footnote Continued)
12 The inmates also correctly argue that the Board's discussion of SCIG's direct (i.e., dedicated) line to the State Police misses the point of their contention. See supra pp. 5, 6 & note 6. As they noted in their Proposed Revised Contentions at 2, the pyramiding call-up system for mobilizing off-duty SCIG employees relies on the use of the commercial telephone system, i.e., the private telephones in
'these employees' homes.1 If this communications network breaks down, even if the State Police can be contacted via the dedicated.line, there is no indication by what means "the State Police will act as a back up to conduct notification of off duty personnel." Licensing Board Order of June 12 at 3.14 (Footnote Continued) asserted effect on the communication system is speculation and does not take account of a fast developing accident scenario. It is also somewhat inconsistent with PECo's argument, discussed at supra note 7, that off-duty personnel are notified later, rather than earlier, in an emergency.
In any event, this is the sort of " merits" issue that cannot be properly resolved at the contention stage. See supra pp.
7-8.
13 This system was discussed later at the hearing on another issue. See Tr. 20,809. As many as 300 off-duty SCIG employees might have to be notified by this means. Tr.
20,840-42.
14 It is difficult to understand how, during an emergency when it has other responsibilities as well, the State Police would notify, without reliable telephone service over an uncertain area, up to 300 SCIG employees (see su?ra note 13) who live throughout a relatively wide geograp.11c area extending beyond the EPZ. See Tr. 20,630, (Footnote Continued)
13 Thus, the inmates' manpower mobilization contention clearly meets the basis and specificity requirements of 10 C.F.R. S 2.714 (b) . This is particularly evident from a comparison of this contention with those properly excluded in this and other proceedings. See, e.g., Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-84-14. 20 NRC 285, 286 (1984) (contentions failed to specify particular structures or Lystems for which it was claimed the quality assurance program was insufficient);
ALAB-804, 21 NRC 587, 591-94 (1985) (failure to explain what contention sought to litigate and to identify clearly the studies or other documents upon which contention was ostensibly based). We therefore reverse the Licensing Board's Order of June 12 insofar as it rejected this contention. The contention is admitted and this matter is remanded to the Board for further action consistent with the Commission's Rules of Practice and this opinion. See infra
- p. 41.
With this reversal and remand, however, we are once again faced with determining the effect of this action on-(Footnote Continued) 20,672. See also ALAB-836, 23 NRC at 495 (other State Police responsibilities during emergency evacuation). It is also not apparent from the record before ua how guards from other institutions would be notified and mobilized to help at SCIG if the commercial telephone system is overloaded.
See CLI-85-15, 22 NRC at 186.
14 i PECo's outstanding operating license. See supra note 3. On two earlier occasions, it was similarly necessary to reverse j
and remand a few emergdncy planning matters to the Licensing 3oard for further action. In both cases we determined that interim license suspension was not warranted under 10 C.F.R.
S 50.47 (c) (1) . ALAB-836, 23 NRC at 520; ALAB-819, 22 NRC
! 681, 715-16 (1985), review declined, CLI-86-5, 23 NRC 125 (1986). That section of the Commission's emergency planning i regulations provides: ,
! Failure to meet the applicable standards set torth in . . . section [50.47(b)] may result in
,' the Commission ['s] declining to issue an operating licenser however, the applicant will have an opportunity to demonstrate to the satisfaction of the Commission that deficiencies in the plans are not significant for the plant in question, that adequate interim compensating actions have been or
' will be taken promptly, or that there are other compelling reasons to permit plant operation.
l The issue now at hand provides even less cause for license suspension than the issues remanded in ALAB-836 and .
4 ALAB-819. The latter decisions concerned emergency planning i deficiencies that were demonstrated on the record following admission of contentions and that nullified the " reasonable assurance" finding required by 10 C.F.R. S 50. 47 (a) (1) . In I
this instance, however, there has been no showing yet of a
"[f]ailure to meet the applicable standard []" -- i.e. , 10 C.F.R. S 50.47 (b) (5) -- or of an actual deficiency in the SCIG emergency plan. Some means to notify off-duty SCIG personnel in an emergency does exist; it is only the
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adequacy of this notification in the event of an overload of i
! the telephone network that is in question. Further, security personnel are'obviously.on duty at SCIG at all times; the individuals to be mobilized by the pyramiding I call-up system are solely those extra off-duty personnel necessary to effect a faster evacuation of the facility. In i these circumstances, we conclude that, if any deficiency in l
the SCIG emergency plan exists, it is not so significant as to warrant license suspension pending remedial action.
Compare Shoreham, supra note 8, 24 NRC at __, (slip opinion at 10-11).
I i B. Input of Correctional Officers (AFSCME)
The inmates contend that "[t]here is no reasonable assurance that the correctional officers union is aware of the Bureau of Corrections concept of operations and its i relationship to the total effort." Proposed Revised Contentions at 4. The inmates stress the crucial role of
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I the guards in the SCIG emergency plan and argue that these
! individuals must therefore be well informed as to their duties.' The inmates request that officials of the union representing the SCIG guards, the American Federation of State, County, and Municipal Employees (AFSCME), testify l
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about their understanding of how the plan is to be l
implemented. The Licensing Board, however, rejected the l.
contention, finding no NRC requirement for consideration',of
16 a union's role under an emergency plan. Licensing Board Order of June 12 at 5.
On appeal, the inmates refer to testimony given during an earlier phase of this proceeding to support the admission of this contention. First, they cite the statement of a FEMA witness (James R. Asher at Tr. 20,210) that "anyone who is obligated to take a risk should be adequately informed."
Thus, the inmates argue that they should be afforded the opportunity to explore, during a hearing, how well informed the guards are as to their emergency duties. Second, the inmates point out that other union representatives were permitted to testify about their members' participation in evacuation operations in the event of an emergency at Limerick. By denying testimony from the SCIG guards' union, the Licensing Board -- in the inmates' view -- has subjected their contention to a higher standard than that applied to the contentions of other intervenors in this proceeding.
Inmates' Brief at 14-16.
The inmates' claims are easily dismissed. We do not quarrel with the general notion that any participant in an emergency response activity should be adequately informed as to the nature of his or her responsibilities. The contention in question, however, provides no basis whatsoever for doubting that the correctional officers at SCIG are adequately informed about their duties during,an emergency at Limerick. Compare supra pp. 8-13. The
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commission's regulations require such ba, sis to be supplied in the contention -- not developed at a hearing, as the inmates seek. See 10 C.F.R. S 2. 714 (b) . As for the testimony of certain union officials given in connection with other intervenors' contentions, the inmates overlook a key distinction: those contentions satisfied the commission's basis and specificity requirements (unlike here) and therefore were admitted for litigation. See i
LBP-85-14, 21 NRC at 1289, 1319. Similarly, the union
) testimony regarding those contentions was permitted because it met the Commission's standard for the admissibility of all evidence in licensing proceedings, 10 C.F.R. S 2.743(c). ;
The admission of that testimony in no way signifies that any testimony offered by a union official -- irrespective of its i
relevance, materiality, reliability, and other Commission requirements -- must likewise be permitted, as the inmates apparently believe.15 1 -
l Finally, the inmates rely on this testimony from earlier parts of the record for the first time on appeal.
15 on the other hand, to the extent the Licensing Board suggests that no contention questioning the response of public employee union members during an emergency could ever be admitted, the Board is incorrect. See Licensing Board Order of June 12 at 5. If such a contention were reasonably spccific and a basis for doubting these employees' participation were supplied, the contention would, of course, satisfy the Commission's standards for admission.
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We have repeatedlyi stressed in this very proceeding that, in keeping with court practice, arguments and issues not raised before the Board below cannot properly be pressed initially on appeal. ALAB-836, 23 NRC at 496 n.28.
C. Medical Services The inmates claim that "[t]here is no reasonable assurance that adequate medical services will be provided to those contaminated and/or injured individuals in the event of a nuclear emergency at [ Limerick]." Proposed Revised Contentions at 9.16 They refer to an affidavit from Dr.
Roger E. Linnemann (PECo's expert consultant on the treatment of the contaminated injuted) and chiefly complain
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that it does not address the adequacy of the capacity of Montgomery Hospital for treating contaminated injured persons. Ibid.17 j The Licensing Board, however, concluded that the contention lacked " reasonable specific basis." Licensing
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Board Order of June 12 at 7. Noting that there is no 16 For a discussion of the meaning of " contaminated injured," see ALAB-819, 22 NRC at 711 n.39. The particular regulation pertinent to this contention is 10 C.F.R. S 50.47 (b) (12) , which requires "[alrrange'ments [to be] made for medical services for contaminated injured individuals."
17 Montgomery Hospital apparently is the facility that routinely treats SCIG inmates. See Applicant's Answer to Proposed Emergency Planning Contentions (Apr. 4, 1985)
[hereafter, " Applicant's Answer") at 6 n.8; Licensee's Brief at 29.
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. requirement that each hospital handle a specific number of
- individuals, the Board thus did not understand "what I
capacity it is that the inmates have in mind."
Ibid. It also explained that the extent of detail vel non in Dr.
Linnemann's affidavit does not provide a basis for litigation. The inmates now briefly complain that the Board has effectively and improperly addressed the merits of their contention by shifting the burden of proving the inadequacy 4 of the medical facilities to them, rather than requiring PECo to demonstrate their adequacy. Inmates' Brief at 16-17.
We disagree. The Board did not expect the inmates to l
" prove" their case on medical services at this stage;
! instead, it simply -- and properly -- required the inmates to meet their limited burden of supplying basis and
- specificity for their contention. See ALAB-804, 21 NRC at 592. The Commission earlier expressed its belief that "the
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number of individuals both onsite and offsite who may become contaminated and injured is expected to be very few."
S,outhern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3) , CLI-83-10, 17 NRC 528, 535 (1983), rev'd in part on other grounds, GUARD v. NRC, 753 F. 2d 1144 - (D.C. Cir. 1985) . Thus, it was incumbent upon the inmates to do more than just voice generalized concerns about the capacity of Montgomery Hospitals they should have supplied a good reason for doubting Montgomery Hospital's
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20 ability to handle the expected "few" contaminated injured persons from SCIG.
The inmates' criticism of the Linnemann affidavit is both unjustified and unavailing to their cause. Dr.
Linnemann's affidavit was attached to PECo's response to an earlier set of contentions (not at issue here) proffered by.
- the inmates. See Applicant's Answer, supra note 17.
Because that version of the contention on medical services was extremely cryptic, Dr. Linnemann's affidavit i
understandably did not address in detail every discrete i element of the treatment capability of Montgomery Hospital, particularly those matters not explicitly identified by the inmates as areas of concern. See Proposed Contentions of the Graterford Inmates (Feb. 15, 1985) [hereafter, " Original contentions") at 8. The inmates cannot reasonably or fairly find a basis for their later contention in an omission from an affidavit intended to respond to a different document.
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In any event, Dr. Linnemann unequivocally concluded that
" Montgomery County [ sic] Hospital has adequate facilities, plans, procedures and trained staff.to handle contaminated and injured patients." Applicant's Answer, Affidavit of Roger E. Linnemann, M.D., at 3.18 See also Licensee's 18 Dr. Linnemann is Associate Professor of Clinical i
Radiology at the University of Pennsylvania School of l
(Footnote Continued) I l
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21 Proposal for Resolution of Remanded Issue (Nov. 18, 1985),
Attachment (Nov. 15, 1985, letter from president of Montgomery Hospital agreeing "to respond to PECO requests to provide hospital treatment for victims of radiological accidents, including [but apparently not limited to]
contaminated individuals from the Limerick Generating Station"). The inmates have failed to specify and explain why, in view of these facts, they still doubt the adequacy of Montgomery Hospital. The Licensing Board therefore correctly rejected the inmates' medical services contention.I' (Footnote Continued)
Medicine. See Professional Qualifications', Roger E.
Linnemann, M.D., fol.: Tr. 9772.
19 Before the Licensing Board, the inmates raised -
several other prguments in connection with this contention.
Because they do not pursue them on appeal, we need not nddress them here. We also need not address PECo's argument
-concerning the Commission's " Statement of Policy on
. . Emergency Planning Standard 10 CFR 50.47 (b) (12) ," 50 Fed.
Reg. 20,892 (1935). The Commission adopted that statement as an interim response to the court's remand in GUARD, supra
- p. 19. It pertains to those situations where actual deficiencies in medical arrangements have been identified and a question thus has arisen as to the propriety of license issuance pursuant to 10 C.F.R. S 50.47 (c) (1) (see supra p. 14), notwithstanding the deficiency. By contrast, the inmates' medical services contention lacks'even the basis and specificity required for admission, and the I circumstanceu that would trigger application of the Policy Statement therefore do not pertain.
One matter, however, does warrant our attention. The Licensing Board essentially concluded, as it had in an i
earlier decision concerning a similar argument by another
! (Footnote Continued)
22 D. Simulated Evacuation Plan Exercise 10 C.F.R. S 50.47 (b) (14) requires "[pleriodic exercises . . . to evaluate major portions of emergency response capabilities, periodic drills . . . to develop and maintain key skills," and the correction of identified deficiencies (emphasis added). The inmates contend that there is no reasonable assurance of the ati.equacy, under this regulation, of a " table top" evacuation exorcise conducted for SCIG on March 7, 1985. In particular, they claim that the exercise was deficient because it assertedly did not include certain elements or scenarios listed in NUREG-0654, Criterion'N.3.e.20 Proposed Revised Contentions at 15-16.
The Licensing Board rejected this contention on the ground that it lacks basis and specificity. The Board noted (Footnote Continued) party, that a hospital accredited by the Joint Committee on Hospital Accreditation (JCHA) is necessarily adequate for purposes of 10 C.F.R. S 50.47 (b) (12) . Licensing Board Order of June 12 at 8. Subsequently, in ALAB-819, 22 NRC at 713-14 & n.44, we rejected that reasoning in the Board's earlier decision. The Board's comment on the effect of JCHA accreditation, however, is harmless error, given our agreement with the Board that the inmates' contention lacked basis and specificity in any event. Moreover, Dr.
Linnemann's affidavit (see supra p. 20) provides more information than the mere fact of JCHA accreditation.
Finally, we note that the inmates did not argue in their brief on appeal (as did the intervenor in ALAB-819, 22 NRC at 711-15) that an adequate backup hospital is also needed.
20 For example, simulated casualties, offsite fire department assistance, rescue of personnel, use of protective clothing, deployment of radiological monitoring teams, and public information activities.
23 that the inmates did not either identify any deficiencies in the scenarios used or justify inclusion of those others listed in NUREG-0654, Criterion N.3.e. Nor, in the Board's view, did they give any reason for disputing FEMA's finding that this was a successful remedial exercise. Licensing Board Order of June 12 at 11.
On appeal, the inmates argue that all the justification they need for inclusion of the elenents specified in NUREG-0654, Criterion N.3.e., is found in the criterion itself. They.also argue that Union of Concerned Scientists
- v. NRC, 735 F.2d 1437 (D.C. Cir. 1984), cert, denied, U.S. , 105 S. Ct. 815 (1985) [hereafter, "UCS"),
precludes the removal from licensing hearings of issues concerning the adequacy of emergency preparedness exercises.
They note that FEMA findings under the Commission's regulations are only " rebuttable presumptions" (see 10 C.F.R. S 50.47 (a) (2)) and request the right to rebut at a
~
hearing FEMA's finding of adequacy in connection with the March 7, 1985, exercise. Inmates' Brief at 17-19. ,
The Licensing Board correctly rejected the inmates' contention for lack of basis and specificity. In the first 21 The inmates do not pursue on appeal the argument advanced and rejected below, regarding this contention, that the SCIG emergency plan is deficient for failure to mention by name any SCIG employee involved in the decisionmaking process. See Licensing Board Order of June 12 at 11
24 i
place, as we have explained previously, NUREG-0654 " simply serve [s] as guidance for the staff's review [of emergency plans] and [does) not prescribe regulatory requirements."
ALAB-819, 22 NRC at 710. Further, Critericn N.3.e. itself provides that exercises or drills include "such things as simulated casualties," etc. (emphasis added), indicating that the elements listed are to serve only as examples.
Criterion N.1.b. states that "[t]he scenario should be varied from year to year such that all major elements of the plans and preparedness organizations are tested within a five-year period." Thus, even if NUREG-0654 set j
" requirements," Criterion N is sufficiently flexible to permit' substantial variation in the scenarios played out during emergency exercises. Therefore, co'ntrary to the inmates' belief, satisfaction of the basis and specificity requirements of 10 C.F.R. S 2.714 (b) requires more than the mere invocation of NUREG-0654, Criterion N. Once again, the inmates were obliged, but failed, to identify the particular deficiencies they perceived in the March 7 exercise.
The FEMA report on the exercise described the activities of the approximately five-hour period during which a simulated evacuation of the inmates took place. It noted that the results were "very positive" except in two Category B (i.e., of lesser importance) areas. The exercise involved testing of certain elements of the communications system and coordination among emergency teams, including
25 SCIG, Bureau of Corrections, &nd PEMA personnel. Vehicle loading teams were assembled, and inmate and medical records and food were packed. SCIG was instructed to issue potassium iodide (KI) and dosimetry. An advance team was dispatched to a relocation center, and a lockdown of the inmates (see infra p. 41), preceding simulated evacuation, was effected. See Letter from D.F. Hassell to Licensing Board (Apr. 2, 1985), Enclosure (FEMA Memorandum of March 14, 1985).22 The exercise thus successfully simulated the
" major" elements of an emergency evacuation. See 10 C.F.R.
S 50.47 (b) (14) . In order to litigate the matter, it was not unreasonable for the Licensing Board to have expected the inmates to explain "with reasonable specificity" (10 C.F.R.
S 2.714 (b)) why, despite the FEMA report and the requirements of section 50.47 (b) (14) , the March 7 exercise was nonetheless deficient.
The inmates correctly note that FEMA findings are only
~
rebuttable presumptions in NRC proceedings. But before a party can exercise its right to challenge a FEMA finding at a hearing, it must, of course, proffer a centention that satisfies the basis and specificity requirements for admissible contentions. Similarly, the UCS decision, 735 The inmates, of course, had this FEMA report at the time they prepared their Proposed Revised Contentions.
- - - ~ . - _ . . . - . . .
26 >
F.2d 1437, does not support the inmates' arguments. There the court overturned a former Commission rule that prohibited the litigation of the results of emergency ,
preparedness exercises. But here the Licensing Board excluded the inmates' contention for lack of basis and specificity, not because of the NRC rule already overturned in UCS. Further, nothing in the UCS decision suggests that ,
it was intended to override the fundamental Commission prerequisites for the adjudication of contentions.
E. Panic The inmates contend that there is no reasonable assurance that the SCIG emergency plan will prevent panic by
- the guards or inmates. They refer to several factors that assertedly warrant special consideration of the potential for panic and disruption during an emergency at Limerick.
SCIG is a maximum security penal institution, housing f
approximately 2500 inmates in space designed for 2000.
~
overcrowding taxes the resources of the facility and makes-control of the prison population more difficult. Several escape, hostage, and riot incidents since 1980 serve as evidence of the potential for disruption. Proposed Revised, l Contentions at 16-19.
The Licensing Board rejected this contention essentially for lack of a specific basis. It found nothing in the SCIG emergency plan or elsewhere to suggest that the authorities could not handle any such disturbances. The
27 Board explicitly assumed that the guards would perform their duties and that the inmates would therefore be controlled.
Licensing Board Order 6f June 12 at 12. On appeal, the inmates take particular exception to these assumptions; in their view, these are conclusions on the merits that can be reached only after a hearing. They also argue that the incidents they cite provide a suffIicient basis for the contention. Inmates' Brief at 19-20.
We agree with the Licensing Board that this contention lacks a sufficiently specific basis to warrant its admission. To be sure, the various incidents to which the 1
i inmates refer show a potential for disruption. But such disturbances are not unexpected in a prison environment, and SCIG personnel are trained and required to cope with them as a matter of course. More important, however, the SCIG emergency plan expressly recognizes and addresses the special security needs of the facility in the event of a radiological emergency at Linerick, as well as possible stresses.on the inmates and the workforce. See, e.g.,
Pennsylvania Bureau of Currection Radiological Emergency Response Plan, Appendix E, Annex 1 (Oct. 26, 1984)
[hereafter, "SCIG Plan"), at E-1-8, E-1-A-1 to E-1-A-3,
)
l 1
28 E-1-B-2, E-1-D-1 to E-1-D-2.23 In view of this special attention in the plan itself, the iumates were obliged to explain more precisely *why the plan is nevertheless inadequate for the prevention and control of a panic situation; the mere recitation of past disturbances at SCIG
-- none of which is alleged to have resulted in the type of panic situation contemplated by the inmates' contention --
is not enough to establish a basis for hearing on this issue.
Similarly, the Board's " assumptions" concerning the guards' performance of their duties and the restraint of the
- inmates were not improper or unfounded. For them to have succeeded in gaining the admission of their contention, the inmates should have supplied a colorable reason for believing that the guards would or could not restrain the inmates in a manner that would permit implementation of the plan. In the absence of such a reason, the Board's
~
assumptions are logical.24 Because the SCIG Plan is still subject to a protective order issued by the Licensing Board on March 20, 1985, our discussion of any portion of the plan is necessarily cryptic. See infra note 30.
24 The Licensing Board correctly observed that the inmates essentially seek to make their contention more specific through the discovery process, " contrary to the requirement that it be sufficiently specific at the outset."
Licensing Board Order of June 12 at 12. See supra pp.
(Footnote Continued)
29 II. Litigated Contentions
)
A. Training One of the two inmate contentions admitted and )
litigated concerns the training for civilian personnel (e.g., bus and ambulance dEivers) to be used to evacuate l SCIG in case of an emergency at Limerick. As proffered and l admitted, the contention reads in pertinent part: "There is !
no reasonable assurance that emergency response training )
will be offered to civilian personnel who will be involved l in the emergency response plans . . . ." Proposed Revised i Contentions at 6 (emphasis added). The basis for the contention is a two-part criticism of the means by which PEMA is to offer this training -- i.e., a letter,from Donald F. Taylor, Director of PEMA's Office of Training and Education, to all bus companies providing service to the.
t Bureau of Corrections. See Answer of the Commonwealth of Pennsylvania (Apr. 4, 1985), Exhibit B. The inmates first l
assert that this letter does not " guarantee that the employees will ever receive any notice of the opportunity to avail themselves of this training program." Proposed Revised Contentions at 7. Second, they contend that the training offered by PEMA to the bus drivers involved in an (Footnote Continued)
( 16-17. See also 10 C.F.R. S 2.740 (b) (1) (discovery begins only after the identification of the matters in controversy
-- i.e., the admission of contentions).
{
30 evacuation of SCIG is not as comprehensive as that offered to bus drivers used for school evacuations. Ibid. See also Licensing Board Order of June 12, Appendix at 1-2.
After a hearing on this matter, the Licensing Board found that "[rleasonable efforts are being made to offer training to civilian personnel who would be involved in an evacuation of Graterford." LBP-85-25, 22 NRC at 104. It relied on not only the PEMA letter criticized in the inmates' contention, but also Mr. Taylor's commitment to follow up his letters with personal visits to the bus and ambulance companies, urging them to participate in PEMA training activities. The Board noted that training sessions would be scheduled at times and locations convenient for the drivers and that refresher courses would be available annually. Id. at 104-05, 108. The Board also considered
- the nature of the training and concluded that it is
- essentially the same as that offered school bus drivers, including an overview of basic radiological principles and tristruction on the use of dosimetry. Id. at 105-06, 108.
The Board stressed, however, that the bus and ambulance drivers would be expected simply to drive their vehicles and would not be responsible for inmate custody..and control.
Id. at 106, 107.
In their brief on appeal, the inmates complain that the evidence adduced at the hearing and the Board's decision are l wrongly concerned only with the offer of training and not 1
i i
l
31 with whether the drivers will actually receive the training.
They note that, as of the date of the hearing, PEMA had received no responses to its offer of driver training. The inmates also refer to the testimony of their own witness, Major John D. Case (a former prison warden) , that financial incentives are needed to encourage driver participation in the courses. Inmates' Brief at 21-25.25 It is not surprising that the evidence and Licensing Board decision focus on the issue of whether training is or will be offered to the civilian drivers, for that is precisely the issue the inmates' contention, as admitted by the Board, unequivocally raises. See Licensing Board Order of June 12, Appendix at 1-2. Whether the inmates actually intended all along to litigate the issue of the drivers' receipt of training, or whether they have simply seized on an issue they believe to be more likely to succeed on appeal, is not clear. But in either case, it is far too l
~
late at this juncture to recast their contention. As we l
, have stated twice before in similar circumstances in this proceeding, intervenors are "' bound by the literal terms'"
of their own contentions. ALAB-836, 23 NRC at 505 (citing j ALAB-819, 22 NRC at 709).
5 The inmates make no arguments in connection with the nature and scope of the driver training. They also do not (Footnote Continued)
32 It is particularly reasonable here to bind the inmates
~
'l to their own words because they had a second opportunity to formulate their contentions., See ALAB-806, 21 NRC 1183.
The original version of this contention alleged no reasonable assurance that the drivers will " receive" any emergency response training. Original contentions.at 8. In the later version of the contention now at issue, however, the inmates changed " receive" to "will be offered" and specifically complained, in addition, that the PEMA letter is " inadequate . . . notice of the opportunity (for drivers]
to avail themselves of this training program." Proposed Revised Contentions at 6, 7. Given the plain meaning of these words and the surrounding circumstances, it was thus not unreasonable for the Licensing Board and the parties to focus the hearing on the offer of training rather than its j
receipt.26 (Footnote Continued) directly challenge the Board's conclusion that reasonable efforts are being undertaken to " offer" training to the drivers.
6 The inmates' contention does refer to 10 C.F.R. S 50.47 (b) (15) , which requires radiological emergency response training to be "provided to those who may be called on to assist in an emergency" (emphasis added). Proposed Revised
[ Contentions at 8. But the inmates go on to contend (ibid.)
that emergency personnel "should be given the opportunity to receive the training" -- bringing the focus of their concern back to the offer and notice of training, not its actual receipt. In any event, the inmates did not object to the Licensing Board when it failed to include this material in (Footnote Continued)
~.
33 That is not to say that the record and decision are silent on the matter of whether training will, in fact, be provided to the drivers. Despite the inherent limitations in the wording of the inmates' contention, the Licensing Board nonetheless addressed Major Case's testimony regarding the asserted need for financial incentives to assure driver acceptance of training. The Board, however, found that Major Case had supplied no reasons for his " belief."
LBP-85-25, 22 NRC at 106-07. It also indicated that Mr.
Taylor holds a contrary belief on this subject and pointed out that the overall standard for emergency planning is
"' reasonable assurance,'" not a "' guarantee.'" Id. at 107.
The Board accordingly concluded that there is " reasonable assurance that training will be offered and accepted by bus and ambulance providers." Id. at 108 (emphasis added).
In their attempt to show that the Board's conclusion is unwarranted, the inmates rely on Major Case's testimony
~
about the need for a financial inducement. See Statement of Major John D. Case, fol. Tr. 20,930, at 5 (pages unnumbered); Deposition of John D. Case, fol. Tr. 20,930, at 40-42; Tr. 20,938-39, 20,951-52. Major Case's view on this matter is not as baseless as the Licensing Board suggests.
(Footnote Continued) the restatement of the contention at the time of its admission, and it is too late to do so now. See Licensing Board Order of June 12, Appendix at 1-2.
34 See LBP-85-25, 22 URC at 106-07. His experience in training corrections officers and in the Marine Corps has led him to conclude that civilian employees usually need some type of monetary incentive to attend courses. He also suggested, however, that if such training was offered during duty hours, or off-duty at premium pay, his concerns would be alletiated. Case Deposition, fol. Tr._20,930, at 40-42. On the other hand, Mr. Taylor (representing PEMA) testified that, based on his experience in emergency preparedness
' training, he had no real reason to doubt that drivers would participate in the training, even without a financial incentive. Tr. 20,868, 20,869. He also stressed that the training sessions would be conducted at times and places l convenient for the drivers. Testimony of Donald F. Taylor, i
l fol. Tr. 20,856, at 4. Further, he suggested under cross-examination that, if financial incentives become an issue, reimbursement is not foreclosed and could be explored
~
through various channels, including PECo. Tr. 20,864. The FEMA witnesses testified that, even though training had not yet been provided to any drivers at the time of the hearing, there was no indication that drivers would not ultimately f participate in the program. Tr. 20,997, 21,004, 21,006.
Because of the wording of the inmates' contention, the record on this matter is necessarily limited. But, on j balance, we cannot conclude that the Licensing Board's determination is unsupported or unreasonable. We therefore 1
l l
\
i l
35 3
affirm the Board's decision insofar as it concerns the ,
inmates' civilian driver training contention.
B. Estimated Time of Evacuation The Commission's emergency planning regulations require an evacuation time estimate (ETE) for "various sectors and distances within the plume exposure pathway [ emergency planning zone] for transient and permanent populations." 10 C.F.R. Part 50, Appendix E, S IV. No particular time limits 1
are established for an evacuation; rather, the analysis is intended to reflect a realistic time for completing an i evacuation. Thus, by using the ETE, emergency coordinators
! can then decide what protective actions (e.g. , sheltering or evacuation) are warranted in the circumstances, if a radiological emergency occurs. ALAB-836, 23 NRC at 486, 491. See also NUREG-0654,' Appendix 4.
When the inmates prepared their contentions, the e
then-current Bureau of Corrections estimate of the time
~
needed for evacuation of SCIG was six to ten hours. See l Applicant's Motion for Exemption (Feb. 7, 1985) , Af fidavit i
i of E. Robert Schmidt and Geoffrey D. Kaiser at 7. The l
! inmates' contention asserted that there is no reasonable l
assurance that an evacuation of SCIG could be achieved within this time frame. Proposed Revised Contentions at 11.
l The inmates ra'ised questions about the adequacy of the methodology used to derive the ETE. They also called particular attention to NUREG-0654, Appendix 4 at 4-3, which
d 36 states that ETEs for special faciliti fopulations (such as a ,
, prison) "shall usually be done on an institution-by-institution basis." Proposed Revised Contentions at 12.
The Licensing Board devoted the major part of the i
hearing and its decision to the consideration of the l inmates' ETE contention. The Board noted at the outset that the ci::-to-ten hour ETE, developed by Bureau of Corrections Commissioner Glen Jeffes, was revised by SCIG Superintendent Charles H. Zimmerman. The revised ETE is eight-to-ten hours and is reflected on a " flow chart," showing vehicle arrival and loading times, off-duty personnel mobilization times, and the completion of evacuation. See Testimony of Charles H. Zimmerman, fol. Tr. 20,763, Flow Chart. The Board
! reviewed the methodology and different elements of the revised ETE, found the estimate reasonable, and concluded that it is in compliance with the NRC's regulations and guidance. LBP-85-25, 22 NRC at 109-16. The inmates, however, disagree and pursue numerous arguments on appeal concerning the methodology and reliability of the ETE. We I
address their claims seriatim.
- 1. The inmates complain that there have been three different ETEs prepared for SCIG by different persons, and The inmates also complained that the SCIG Plan itself contained no mention of the ETE. Proposed Revised Contentions at 11-13. See infra pp. 43-46.
, -~
. . . . . _ - . - . . . . . = . . . - . . - . - . - - . . - .. -
37 that the discrepancies among the three " establish a prima facie case as to the unreliability of WEch Mnd evdry" one.
Inmates' Brief at 26. *They add that this shows a lack of coordination and cooperation between the relevant emergency response organization 2 and constitutes a flaw in the planning process. Id. at 27-28. The first ETE, prepared in 1980 by the Commissioner of Corrections, estimated an evacuation time of five and one-half hours.28 The second is the six-to-ten hour estimate by Commissioner Jeffes in early 1985 (see supra p. 35) , and the third is Superintendent Zimmerman's eight-to-ten hour ETE embodied in the flow chart submitted with his testimony at the hearing.
The inmates' arguments with regard to the three ETEs are without merit. ,The existence of differences among them is not unexpected, given the five-year period between the I -
This time estimate is shown on Inmates Exhibit 1, a i
~
one-page excerpt from a preliminary ETE prepared for PECo in July 1980 by NUS Corporation. The Licensing Board rejected the exhibit on the ground that it was not germain to the issues being litigated. See Tr. 20,772-77, 21,084-85. The i
' only basis on which the Board could have properly rejected l the exhibit, however, was that it is " unduly repetitious."
l See 10 C.F.R. S 2.743 (c) . The entire NUS preliminary ETE was already admitted into evidence at an earlier stage of this proceeding as Applicant Exhibit 32 (Limerick Emergency Plan), Appendix H. See Tr. 20,891. The fact that the information contained in the exhibit may be superseded by more current information elsewhere in the record does not deprive it of its status as evidence of record. Nor does it preclude the inmates from referring to the preliminary ETE, or raising legitimate questions about which ETE is meant to apply. See Tr. 20,774.
38 first and the last ETE and the fact that little or no serious emergency planning had begun yet in 1980. As more
- information became available, the estimate was refined --
precisely the process contemplated by the Commission's emergency planning regulatior.s. Indeed, only the last version prepared by Superintendent Zimmerman can truly be considered an analysis of the evacuation time for SCIG: it is the only ETE tendered as such and the only one that separately (albeit briefly) shows the various components of an evacuation (vehicle arrival, vehicle loading, etc. ) .
Moreover, as Superi'ntendent of SCIG, Mr. Zimmerman is obviously in the better position from which to make the most accurate estimate of the time needed to evacuate his facility. Nonetheless -- despite the inmates' protestations to the contrary -- Superintendent Zimmerman did in fact confer with Commissioner Jeffes on the final version of the ETE. See Zimmerman, fol. Tr. 20,763, at 2-3.
~
- 2. The inmates challenge the ETE itself on several grounds. Citing the testimony of Major case and the deposition of Robert L. Morris, the inmates' transportation and traffic engineering consultant, they claim that the eight-to-ten hour revised ETE is based on ideal conditions and overlooks traffic congestion caused by panic, public evacuation, and highways that may be closed due to meteorological conditions and radioactive fallout. The inmates specifically criticize Superintendent Zimmerman's
s 39 two-to-four hour estimate of the time for the evacuation vehicles to arrive at SCIG, noting that the Superintendent has no training in traffic engineering. Inmates' Brief at 26, 27, 28-29. .
The inmates are incorrect in their view that the ETE is ,
based on ideal conditions. To be sure, it does not (and 4 should not) reflect a " worst case" scenario. As the Licensing Board explained and the record demonstrates, time estimates are intended to be representative and reasonable so that any protective action decision based on those estimates would reflect realistic conditions. An overly conservative estimate could result in an insppropriate decision.
LBP-85-25, 22 NRC at 109. On the other hand, an 2TE should
"[take] account of a wide range of seasonal, weather, and i other conditions." ALAB-836, 23 NRC at 491. See NUREG-0654, Appendix 4. Superintendent Zimmerman's ETE does just that: in addition to the two-to-four hour estimated vehicle arrival time, the ETE explicitly increases this time to four-to-six hours under " adverse conditions." Zimmerman, fol. Tr. 20,763, Flow Chart. See Tr. 20,803, 20,808.
Moreover, incoming vehicles will be' moving in the opposite direction and on largely different routes from the general public evacuation. Tr. 20,803-05, 20,815-16, 20,844-45.
Traffic congestion is therefore not expected to be a major factor with regard to vehicle arrival time.
,.,y , _-.m , - . _ . _ , . . - , .
40 The inmates' criticism of the ETE on the ground that Superintendent Zimmerman is not an expert in traffic engineering is without merit. In the first place, Major Case essentially conceded the value of the Superintendent's firsthand knowledge of the mechanics of the plan and the operations of SCIG. Case Statement, fol. Tr. 20,930, at 4.
More important, the inmates completely ignore the fact that PEMA's witness, Edward B. Lieberman -- an expert consultant in traffic engineering and the development of evacuation plans for nuclear power facilities -- thoroughly analyzed Superintendent Zimmerman's time estimates and found them "certainly reasonable and somewhat conservative." FEMA Testimony of Edward Lieberman, fol. Tr. 20,956, at 8. See also id. at 4-8. On the other hand, Mr. Morris (for the inmates) has performed no comparable, close analysis of the ETE, simply stating that factors like panic and meteorological conditions should be considered. See Deposition of Robert L. Morris, fol. Tr. 21,013, at 42-44,
~
60, 78-79 (cited in the Inmates' Brief at 29). Although the inmates refer to "Mr. Morris' estimates" as "more reliable,"
nowhere are those estimates revealed. Inmates' Brief at 29.
Indeed, Mr. Morris has never done any traffic flow analysis in connection with the evacuation plan for a nuclear plant and is not familiar with NUREG-0654. Morris Deposition, d
fol. Tr. 21,013, at 43, 33-34.
j
.i
41 -
The inmates next challenge the estimate of one-to-two hours for mobilization of necessary off-duty personnel. See Zimmerman, fol. Tr. 20,763, Flow Chart. The heart of their argument is that this estimate depends on the pyramiding call-up system used for mobilizing the off-duty SCIG staff
-- the adequacy of which the inmates unsuccessfully sought to litigate. Inmates' Brief at 29-30. Because we have determined hc.re that the inmates were wrongly denied admission of their manpower mobilization contention (see supra pp. 4-13), the reliability of this part of the ETE is necessarily in question. The manpower mobilization contention, however, may well be eventually resolved on the merits in favor of PECo, or in a manner that would not alter or conflict with the ETE. In this connection, we note that the Superintendent's estimate already includes an adjustment for adverse conditions, increasing the time for mobilizing off-duty personnel to two-to-three hours. Zimmerman, fol.
~
Tr. 20,763, Flow Chart. We therefore direct the Licensing Board and the parties, in the course of their consideration on remand of the inmates' manpower mobilization contention, to determine what effect, if any, the resolution of that issue has on the ETE.
The inmates also criticize Superintendent Zimmerman's estimate of 30 minutes to achieve a "lockdown" of SCIG --
i.e., a return of all inmates to their cells to prepare for evacuation. The inmates cite Major Case's estimate of up to l
I I
- 42 four hours and refer to several past incidents involving power failures and hostage situations where it took hours to complete lockdowns. -Inmates' Brief at 30-31. But as the Licensing Board found and the record establishes, those incidents occurred befor+ the installation of a backup emergency lighting system at SCIG in 1984. Since that time, lockdowns have taken less than 30 minutes, even during partial power failures. LBP-85-25, 22 NRC at 113. The Board also pointed out that the lockdown time is not "a critical path item" because it will occur during the two-to-four hour vehicle mobilization time. Id. at 114.
Moreover, Superintendent Zimmerman testified that, based on his experience, the inmates cooperate and thereby shorten the lockdown time when they recognize the procedure is for their own benefit, as would be the case in an emergency evacuation. Tr. 20,782, 20,842. As a result of this testimony, Major Case reconsidered his earlier four-hour
~
lockdown estimate and pronounced the Superintendent's 30-minute estimate " realistic," assuming inmate cooperation.
Tr. 20,946-47.29
' In this connection, Superintendent Zimmerman testified that an addendum to the inmate handbook would be issued, describing emergency evacuation procedures. Tr.
20,833-34. Major Case agreed that this is a "very good" idea. Tr. 20,938. The inmates now argue for the first time on appeal that the addendum is inadequate because of the (Footnote Continued)
e
- O 43 Finally ^, the inmates contend that the ETE is unreliable because it assumes 2450 inmates at SCIG, whereas the population has already risen to 2500 and, in their view, is likely to increase. Inmates' Brief at 32. The inmates, however, overlook the Licensing Board's disposition of this argument, which we conclude is fully in accord with the record. The Board found thet any increase in inmate population will be met by a corresponding increase in staff and support facilities. Thus, it would have no effect on the estimated eight-to-ten hour evacuation time. LBP-85-25, 22 NRC at 115. See Tr. 20,830-33.
- 3. Although the inmates no longer pursue it on appeal, one final matter of " form" remains of concern to us.
The inmates' contention complains that the ETE is not specifically mentioned or included in the SCIG Plan itself.
Proposed Revised Contenti~ons at 11, 13; Licensing Board Order of June 12, Appendix at 3. The Licensing Board
~
stated:
(Footnote Continued) high illiteracy rate and Spanish-speaking population at SCIG. They urge, instead, an emergency drill for the inmates. Inmates' Brief at 31-32.
As we state at supra pp. 17-18, arguments cannot be properly raised for the first time on appeal. Moreover, the points the inmates raise here are welil beyond the scope of the ETE contention, with no effort to satisfy the Commission's prerequisites for reopening the record for hearing on a new, but late contention. See ALAB-828, 23 NRC 13, 17 (1986).
44 whether the . . . estimate is in the plan, or not, does not require litigation. Reading of the pl&n will reveal its presence or absence. If absent, it will be inserted.
Licensing Board Order of June 12 at 9. The Board subsequently concluded, however, that there is nothing in the Commission's emergency planning requirements or guidance that requires the estimated time for evacuating a special facili+.y, such as the SCIG, to be included in the radiological emergency response plan for that special facility (see 10 C.F.R. S 50.47; Appendix E, 10 C.F.R. Part T57 NUREG-0654/ FEMA-REP-1, Rev.
1 (November 1980).
LBP- 8 5--25 , 22 NRC at 115 (emphasis added). The Board's finding is, technically accurate. The Commission's regulations, however, unquestionably require the ETE for SCIG to be included in applicant PECo's emergency plan. See 10 C.F.R. Part 50, Appendix E, S IV (" Content of Emergency l
Plans"). See also 10 C.F.R. S 50. 47 (b) (10) ; NUREG-0654, Criterion'J.8. The Commission has already directed this action, and we assume that it has been taken. See
~
CLI-85-15, 22 NRC at 188.
Despite the lack of a specific regulation prescribing it, the ETE necessarily must be readily available (logically as an addendum to the RERP) to all those decisionmakers whom the ETE is to aid in deciding what protective actions to order. See supra p. 35. In the case of SCIG, the Commissioner of Corrections is the only official who can order an evacuation (based on a PEMA recommendation) . SCIG
7 3
. t .
- 45 O
Plan at E-1-6, E-1-10, E-1-ll. We lack the authority to order the Commonwealth's Bureau of Corrections or PEMA to -
' incorporate the ETE for SCIG in the emergency plan for that .
O We are somewhat uncomfortable in citing to the SCIG Plan, not only because it is protected information ,(see ;
supra note 23) , but also because -- surprisingly -- it was never introduced into evidence or otherwise incorporated into the record of this proceeding. (The protected nature of the plan could easily have been preserved by according it "in camera" status.) We expressed our concerns in this
- regard in our Order of June 3, 1986 (unpublished), at 1-2 l (citing Pacific Gas and Electric Co. (Diablo Canyon Nuclear ,
! Power Plant, Units 1 and 2), ALAB-580, 11 NRC 227 (1980)),
i and asked the parties to comment. In Diablo Canyon, the Licensing Board concluded that the plant's security plan (a protected document, like the SCIG emergency plan here) complied with the NRC's regulations -- despite the fact that the plan was not evidence of record and had never been examined by the Board. We vacated the Board's decision, 3 essentially on the ground that the Board's findings were
" empty . . . in-the absence of essential evidence." Id. at 230.
In response to our orded, PECo, the staff, and the Commonwealth argue that Diablo Canyon is distinguishable in several respects; the inmates take no position. Given the lack of genuine dispute among the parties about this matter, a lengthy discussion of the similarities of, and differences between, Diablo Canyon and this proceeding is not warranted or necessary. We note, however, that, while the Licensing
! Board's ultimate conclusion here (as in Diablo Canyon) is
- that the SCIG Plan meets all pertinent regulatory
- requirements, that conclusion is explicitly limited to "the issues in controversy before us." LBP-85-25, 22 NRC at 116.
i As the parties point out, the issues litigated did not require scrutiny of the contents of the SCIG Plan itself, but rather involved matters peripheral to or missing from
- it. Moreover, the evidence adduced at the hearing was more
?
than the conclusionary opinions of secondary sources, on which the Licensing Board in Diablo Canyon had relied. See 11 NRC at 229. In the circumstances, despite our discomfort with this omission, no one has been prejudiced and no useful 4
purpose would be served by taking steps at this late stage to effect formal inclusion of the SCIG Plan in the record.
t i <
s , ,
46 i facility, but we strongly urge them to undertake this minimal task. This can only enhance the decisionmaking process, as the'NRC's regulations contemplate. It is also particularly important here, where the pertinent ETE was prepared by someone other than the Corrections Commissioner or a PEMA official (i.e., Superintendent Zimmerman).
III. Fairness of the Hearing The inmates' concluding' arguments are directed to the conduct of this proceeding. They claim that they have been denied their right to a fair and impartial hearing, as
. guaranteed not only by the Commission's own regulations (see 10 C.F.R. S 2.718), but also by the U.S. Constitution.
Inmates' Brief at 33. The inmates offer three examples of how their rights in this regard have assertedly been denied or prejudiced.31
~
31 The inmates introduce their argument with a recitation of the various obstacles they had to overcome to
, participate in this case. Inmates' Brief at 33-35. The matters about which they complain, however, were eventually resolved in their favor, and thus provide no basis for the instant appeal. See generally ALAB-806, 21 NRC 1183; ALAB-809, 21 NRC 1605.
t We note, in this regard, that, despite the inmates' charge that the Licensing Board was biased against.them, at no time did they seek the disqualification of the Board or any member thereof. See 10 C.F.R. S 2.704 (c) . See also Public Service Co. of New Hampshire (Seabrock Station, Units 1 and 2), ALAB-749, 18 NRC 1195, 1198-99 (1983) (motions for disqualification must be filed as soon as possible after ostensible grounds for such action arise).
I
l 47 1
First, they refer to the Licensing Board's issuance, upon the request of PECo's counsel, of a subpoena directing the inmates' witness, Mr. Morris, to appear for a deposition. The gist of the inmates' complaint is that, although the Board was allegedly aware that Mr. Morris would be available, if at all, only on July 3, 1985, the Board 1
nonetheless directed him to appear on July 2. Id. at 35-36; Licensing Board Subpoena to Robert L. Morris (June 28, 1985); Letter to Judge H. Hoyt from A.R. Love (June 28, 2
1985). The inmates' argument is frivolous. They offer no explanation of how they have been harmed,32 nor could they:
the subpoena for July 2 was withdrawn and Mr. Morris was i
deposed on his date of preference, July 3. See Licensee's Brief at 40; Morris Deposition, fol. Tr. 21,013, at 1.33 In any event, to preserve a claim like this for appeal, a party is obliged to seek relief first from the Licensing Board by moving to quash the subpoena (see 10 C.F.R. S 2.720(f)) --
~
action that the inmates failed to take here.
32 Apparently, Mr. Morris was offended by being served with a subpoena. See Tr. 20,899-900.
As a further ind? cation of the lack of harm to the inmates, the other parties and the Licensing Board agreed to
- admit the Morris deposition into evidence on behalf of the inmates, even though Mr. Morris did not appear at the l hearing. LBP-85-25, 22 NRC at 103.
r w . - ,- - - - - - - - + . - . - - - - - .. - - - - *e--e -wg-.,,,-v . - - - , - - - -s---,----v-t----3----*,.-w-'r
48 Citing Tr. 20,809-11, the inmates next contend that the
^
Licensing Board improperly solicited and then sustained an objection from the Com'onwealth to certain cross-examination by the inmates' counsel. Inmates' Brief at 36. The transcript, however, simply does not support the inmates' characterization of the events reported. Nor do we see any improper interference by the Licensing Board in this particular exchange. The Board essentially interrupted Superintendent Zimmerman when his answer strayed into the area of manpower mobilization -- which the Board had earlier, albeit incorrectly, excluded from litigation -- and then entertained (rather than invited) objections to the questioning by the Commonwealth's counsel. This action is implicitly, if not explicitly, within the Board's authority "to take appropriate action to avoid delay," to " receive evidence," to "[r]egulate the course of the hearing," and to
"[e]xamine witnesses." 10 C.F.R. S 2.718. See also 10 C.F.R. S 2.757.
The inmates' last due process challenge is directed at the expedited schedule for this proceeding. Specifically, they object to the abbreviated time for discovery and for
49 N
submitting ~prefiled testimony and proposed findings of fact and conclusions of law. Inmates' Brief at 36-37.34 Where the circumstances warrant it, the Commission's regulations clearly permit the adjudicatory boards to shorten the time otherwise authorized for each of the matters about which the inmates complain. See, e.g., 10 C.F.R. SS 2.711(a), 2.754 (a) . See also Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 453 (1981). Here, the inmates' contentions did not become ~
ripe for litigation until quite late in the proceeding.
Although this was not the fault of the inmates, the Licensing Board nonetheless properly recognized the need to expedite the proceeding, given the completed status of the plant. The Commission and this Appeal Board also encouraged the Licensing Board to act promptly on all matters raised,by r
l the inmates. See CLI-85-11, 21 NRC 1585, 1586 (1985);
ALAB-809, supra note 2, 21 NRC at 1614-15; ALAB-806, 21 NRC at 1186, 1193-94. Expedition, of course, should not be at the expense of fairness. But despite their generalized claims of' unfairness, the inmates provide no evidence in their brief of specific harm. Indeed, all the parties were 34 The inmates also contend that the Board shifted the burden of proof from the applicant to them, in violation of>
10 C.F.R. S 2.732, but they provide no specifics to support this charge. See Inmates' Brief at 37.
i------ -- _ . _ . . . . . . . . _ . . . . . , . . . . _ . _ _ _ . _ _ _ . , _ _ _ _ _ _ _ _ ,____ _ _ _ .
1 50 subject to the same time constraints, and the inmates agreed with the schedule at the time the Licensing Board proposed it. See Tr. 20,729, 20,741-42. See also Tr. 20,899. It is
[ thus too late now to complain about it. Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2) , ALAB-813, 22 NRC 1
59, 74 & n.69 (1985).
In sum, the examples cited by the inmates do not support their charges on appeal of alleged unfairness and partiality by the Licensing Board.
IV. AWPP's Appeal AWPP also appeals the Licensing Board's decisions in connection with the SCIG emergency plan. Although it was l
4 an intervenor in another phase of this operating license proceeding, AWPP did not participate in any aspect of the i litigation involving the Graterford inmates. It filed no j contentions or any other pleadings in this regard, and its i
representative did not participate in any of the conferences or hearings held by the Licensing Board. Indeed, until now, l
l 35 AWPP misdirected its " Notice of Appeal" (dated July 26, 1985) to the Licensing Board. In our Order of August 1, t
1985 (unpublished) at 1, we treated the appeal as properly filed and observed that the Notice of Appeal was also AWPP's
. brief on the merits. Despite being thus put on notice of our determination to treat AWPP's filing as a brief, PECo has failed to respond to the brief and is therefore in default insofar as AWPP's appeal is concerned. See 10 C.F.R. S 2.707. Both the staff and the Commonwealth, however, have complied with the Rules of Practice and addressed AWPP's arguments.
A
-,,---y. , , , , , , , - , . , -
,------nar,n,,--wg r m.- ,. ,,, - - - ,,,--e e,-
51 AWPP had expressed no interest in any aspect of emergency planning, limiting its concerns to aircraft carburetor icing caused by cooling tower emissions and quality assurance.
See ALAB-819, 22 NRC at 716-30. See also Petition for Intervention (Sept. 3, 1981); Supplemental Petition of Coordinated Intervenors (Nov. 24, 1981); LBP-62-43A, 15 NRC 1423, 1519-20 (1982); LBP-84-18, 19 NRC 1020 (1984). Nowf at the eleventh hour, AWPP seeks to pursue a variety of AWPP confusing claims in connection witn the SCIG Plan.
fails for several reasons, and its appeal is therefore dismissed.
Only aggrieved partie,s may appeal decisions adverse to them. Virginia Electric and Power Ca. (North Anna Power Station, Units 1 and 2) , ALAB-790, 20 NRC 1450, 1453 (1984).
A party cannot be legally " aggrieved" for the purpose of appealing an adverse decision if it did not meaningfully participate in the process that led to the objectionable decision. As we stated in Pacific Gas and Electric Co.
Units 1 and 2),
(Diablo Canyon Nuclear Power Plant, ALAB-583, 11 NRC 447, 448 (1980), "(aln administrative i
hearing would be a meaningless charade if those with ample opportunity to participate were allowed to stand idly by and then, neverthele'ss, demand a replay when they do not like the result." See also id. at 448-49. Cf. Carolina Power I
l and Light Co. (Shearon Harris Nuclear Power Plant) ,
ALAB-837, 23 NRC 525, 542-43 n.58 (1986) ("intervenors have f
i
_ _ . _ . , , . ~ . - , . . _ , - . . _ . , _ . _ _ . _ _
52 no standing to press before us a possible grievance of another party to the proceeding who is not represented by tne intervenors").
The staff argues, however, that "AWPP has the right to appeal," relying on our decision in Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and
- 2) , ALAB-2 4 4, 8 AEC 857 (1974) , reconsideration denied, ALAB-252, 8 AEC 1175, aff'd, CLI-75-1, 1 NRC 1 (1975). NRC Staff Brief, supra note 7, at 47. The staff has given that decision too broad a reading. In Prairie Island, we held that in placing certain specified issues into controversy himself, an intervenor should not be taken as waiving the right to insist that all other issues coming before the Board (within the ambit of his interest as established by his intervention petition) be decided in conformity with the evidence of record and applicable principles of law -- no matter what the genesis of those issues or the source of the evidence.
6 The staff goes on to urge that we nevertheless reject AWPP's brief "for failure to file proposed findings of fact and conclusions after having had an opportunity to do so." NRC Staff Brief at 47. We do not agree that this would be a proper basis for rejecting AWPP's appeal. The Licensing Board did not " order" the filing of proposed findings of fact and concluslons of law under 10 C.F.R. S 2.754; rather, such filings were optional. See Licensing Board Memorandum and Order of June 18, 1985 (unpublished),
at 3; Tr. 20,741, 21,014-16. In Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2) , ALAB-7 09, 17 NRC 17 j (1983), we held that, unless a licensing board orders the submission of proposed findings and conclusions, a party failing to do so is free to pursue on appeal all issues in which it participated below.
l.
53 8 AEC at 863 (emphasis added). See also id. at 863 n.9
("[i]rrespective of who raised the issue, an intervenor might be aggrieved . . . by a finding contrary to the weight of the evidence" on that issue [ emphasis added]), 870 n.19
("as we have endeavored to make clear, the entire discussion in this opinion of intervenor participational rights likewise presupposes the existence of the requisite interest in the outcome of the particular issue being considered").
Thus, whether an intervenor has the right to pursue a particular issue on appeal is a function of the level of interest expressed by the intervenor in such issue throughout the course of the proceeding.37 Applying that rule here,,we have no hesitation in concluding that AWPP has failed to demonstrate the requisite interest -- indeed, any interest whatsoever -- in emergency planning for SCIG so as to legitimize its appeal. See supra p. 50.
AWPP also raises matters beyond the scope of the
~
inmates' contentions (e.g. , the adequacy of the number of vehicles to be used for evacuating SCIG and the possible threat to the public safety from a prison riot during an evacuation). Such issues, of course, could not be raised by 1
37 The Commission recently proposed an even stricter rule, which would limit an intervenor to raising issues on appeal that it placed or sought to place in controversy. 51 Fed. Reg. 247765, 24,368, 24,372 (1986).
i I
i 54 i
i any party for the first time on appeal. See supra pp.
17-18. As for the arguments that seemingly relate to issues
! otherwise suitable for
- appellate consideration (e.g. , the reliability of the ETE and the offer of civilian driver training), we have treated those portions of AWPP's filing as an amicus brief. Thus, we have taken AWPP's views on those subjects into account in the course of our consideration of the inmates' brief.38 38 Despite the obvious defects in AWPP's appeal, we accepted its brief for filing (see supra note 35) and allotted it time for oral argument. Order of October 24, 1985 (unpublished) , at 1 Because of the repeated tardiness of several participants (most notably, AWPP's representative) throughout this entire operating license proceeding (before both the Licensing Board and us) , we noted our expectation that all the parties' representatives be on time for the oral argument and indicated that
"[a} nyone who is late will not be permitted to argue." Id.
i at 2 (emphasis in original). For the convenience of the'-~
out-of-state parties, we scheduled the argument to-take place in the afternoon and, as is our practice, we directed each party to notify the Board Secretary as to who would appear on its behalf. Ibid.
We received no response from AWPP to this latter directive, and, when the oral argument began at the scheduled hour, not surprisingly, AWPP's representative was not present, whereas all others were. We took note of that fact and gave the time previously allotted to AWPP for oral argument to the inmates' counsel. App. Tr. 3. AWPP's representative arrived later and accordingly was advised by the Board Chairman (speaking on behalf of the entire Board) that, under the terms of our October 24 Order, he would not be allowed to participate. App. Tr. 46-47.
Oral argument is a matter solely within our discretion.
10 C.F.R. S 2.763; 10 C.F.R. Part 2, Appendix A, S IX(e) .
Thus, we can obviously set reasonable ground rules for (Footnote Continued)
__ _ _ _ . _ _ . _ _~ _ _ _ _ _ _ _ _ _ _ . _ _ . . _ . . . _ .
a s, e 55 The Licensing Board's Order of June 12, 1985, and its fourth partial initial decision, LBP-85-25, are affirmed in part; to the extent they exclude the inmates' manpower mobilization contention, they are reversed, the contention is admitted, and this matter is remanded to the Licensing Board for further action consistent with this opinion.
AWPP's appeal, dated July 26, 1985, is dismissed.
It is so ORDERED.
FOR THE APPEAL BOARD O. wA C. J n Shoemaker Secre ary to the Appeal Board (Footnote Continued) participation, such as requiring the parties' representatives to be on time. Any claim by AWPP that it was wrongly denied its "right" to oral argument is therefore wholly without merit. This is particularly so, given that AWPP had no appeal rights in this phase of the case in the first place.
- - - - - _ - _ _ _ . _ _ _ _ _ _ _ _ _ _ . _ _ . _]