ML20206D652
| ML20206D652 | |
| Person / Time | |
|---|---|
| Site: | Limerick  |
| Issue date: | 06/16/1986 |
| From: | Conner T CONNER & WETTERHAHN, PECO ENERGY CO., (FORMERLY PHILADELPHIA ELECTRIC |
| To: | |
| References | |
| CON-#286-624 OL, NUDOCS 8606200133 | |
| Download: ML20206D652 (22) | |
Text
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D2nr 9 Y Mia f cNITED STinS OF AMERICA NUCLEAR REGULA'IORY COMISSION
'k*
\ k* e,m D Before the Atcmic Safety and Licensing Appeal Board In the Matter of )
Philadelphia Electric Catpany
)
DocketNos.50-352{
50-353 (Limerick Generating Station, )
Units 1 and 2) )
LICENSEE'S RESPONSE 'IO 'IHE APPEAL BOARD'S ORDER OF JUNE 3,1986 REGARDING THE STATE OF 'IEE RECORD ON ENERGENCY PLANNING EOR GRATEREORD Preliminary Statement In an Order dated June 3, 1986, the presiding Atmic Safety and Licensing Appeal Board (" Appeal Board") requested the views of the parties regarding the state of the record in this prwing as it relates to emergency planning and preparedness for inmates at the State Correctional Institution at Graterford ("Graterford").1! The Appeal Board's inquiry pertains to two such contentions litigated before the Atmic Safety and Licensing Board (" Licensing Board") - and other contentions which were denied by the Licensing Board prior to the hearing.1 1/ Philadelphia Electric Carpany (Limerick Generating Station, Units 1 and 2) , " Order" (June 3,1986) .
2/ The Licensing Board's decision was the Fourth Partial Initial Decision ("PID") in this proceeding. Limerick, supr_a_, LBP-85-25, 22 NBC 101 (1985) .
3/ Limerick, ra, " Order Admitting Certain Revised Contentions of the Grater o Inmates and Denying Others" (June 12, 1985).
8606200133 8606'16' PDR ADDCK 00000352 O PDR
s
-g-For the reasons discussed, Licensee Philadelphia Electric Capany
(" Licensee") submits that no procedural irregularity has occurred.
There has been no caission frm the record of decision which precludes the Appeal Board frm deciding the pending appeals or which would require the Appeal Board to consider or formally receive any ex-tra-record matter. Licensee now addresses each of the Appeal Board's questions seriatim.
Question 1
- 1. It is evident that all parties concerned had, or had access to, copies of what has been referred to as " Plan 2," a smewhat emplete version of the einergency plan for the Graterford facility. Is this document, however, included anywhere in the formal record of this adjudicatory proceeding? Was it introduced and admitted into evidence at the hear-ing? Was it attached to or incorporated by refer-ence in any pleading filed by a party?
What the Licensing Board and parties have referred to as " Plan 2" is not a part of the record in the adjudicatory proceeding. No party sought to introduce Plan 2 as an exhibit at the hearing, nor has any party attached Plan 2 to any pleading or incorporated it by reference.
The record contains, of course, testimony by several witnesses as well as representations by the responsible Ccmnonwealth officials at prehear-ing conferences regarding "the plan," but, to our knowledge, no party has ever incorporated a specific provision of Plan 2 in a pleading or by testimony.
Question 2
- 2. If Plan 2 is not part of the record, does our decision in Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2) ,
ALAB-580, 11 NPC 227 (1980), ccupel vacation of LBP-85-25? See also note 1, infra.
- ~
The absence of Plan- 2 from the record below does not in any way invalidate the Fourth PID. First, the contents of Plan 2 are irrelevant to either admitted contention. 'Ihe Board's findings on those con-tantions were based upon the testimony of knowledgeable Camonwealth officials and other expert witnesses sponsored by the Nuclear Regulatory
! Ccenission ("NBC") and the Federal Dnergency Management Agency ("FINA") .
Second, the Appeal Board's decision in Diablo Canyon is inapposite because of crucial differences between a plant's security' plan and offsite energency planning and preparedness. Third, the decision in Diablo Canyon preceded more recent Cm mission decisions which expressly preclude a board frce conducting a sua sponte review, which appears to have been undertaken in that case, without adequate justification.
A. Plan 2 is Irrelevant.
No party, including the Graterford inmates, has ever claimed that i
Plan 2 or any portion thereof must be made a part of the record for the Licensing Board to make findings on any admitted contention or in deciding the admissibility of any proposed contention. Nor has any party suggested a need for the Licensing Board to review Plan 2 or any portion thereof sua sponte pursuant to 10 C.F.R. 52.760a.
It will be recalled that counsel for the irnates and their expert witness were pemitted to review Plan 2, a virtually unsanitized version of the Graterford emergency plan (Tr. 20612-13), prior to the hearing.
'Ihe imates' counsel stated canplete satisfaction with the degree of disclosure afforded by Plan 2 (IcVe, Tr. 20612-13, 20658, 20697). He expressed no need to obtain future access to Plan 2 or to introduce it
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, _ - _ _._ ., _em_. , _ _ , . , - , , , . , - _ _ _ . ,
/
into evidence at any subsequent hearing (Tr. 20712-14).5/ Mus, no party has been prejudiced, or even claims prejudice, because Plan 2 was not received in evidence or otherwise made a part of the' record.
In its Order of June 12, 1985, the Licensing Board admitted tw contentions. Ore alleged a lack of reasonable assurance that emergency response training will be offered to civilian bus and ambulance drivers.
We other challenged the methodology utilized by the Department cf Corrections in calculating evacuation time estimates for Graterford.5 2e Board's firdings in its Fourth PID on these contentions did not require reliance upon Plan 2.
The scurce of reasonable assurance that bus driver training would be provided was not the plan, but rather the .testimcny of Mr. Donald Taylor, Director of Trainintj and Education for the Pennsylvania Dnergen-cy Management Agency ("PDW) , who has personally overs'een driver training, including preparation of the plan .of instruction.5/' It is t
c' 4_/ Although Licensee's counsel requested a copy of the plan for use in preparing for a possible hearing, the request was not. pursued because it became evident that the plan was ' irrelevant to the litigation. As explained in response .to Question 4 infra, 'the discussion of the unsanitized plan at tFe prehearing conferences on February 27 and March 22, 1985 was expressly considered and approved for public disclosure by counsel for the" Pennsylvania Department of Corrections (Otto, Tr. 20711-12).
l 5/ See Limerick, supra, " Order Admitting Certain Revised Contentions of the Graterfcrd Inmates and Denying Others" (June 12, 1985) (slip op, at Appendix, pp.1-3) .
f/ Limerick, supra, LBP-85'-25, 22 NBC at 104-08. 2e Board also i relied upon testimony by FDR planning experts that training would be offered, but that drivers could cenplete their assignments l
without training because they were only being asked to perform their routine duties. Id. at 107-08.
i
custmary not to burden the basic " plan" with such detail. As the Appeal Board is aware, correspondence between planning agencies and support organizations (such as bus empanies), training manuals and other like documents are not incorporated into offsite emergency plans, but rather are separately filed by the responsible planning agency.E Inasnuch as Plan 2 did not discuss the details for assuring bus driver training, there was no need to offer it in evidence on the contention.
The other contention related to the preparation of evacuation tine estimates for Graterford. Here, too, Plan 2 was irrelevant. The Cmmission's regulations and planning guidance in NUREG-0654 make it clear that evacuation time estimates are separate and distinct frca the plan or plans which the estimates support. Hence, the Licensing Board correctly relied upon testimony by Graterford Superintendent Charles Zinmerman and by the NRC and FDR expert consultants, Dr. 'Ihmas Urbanik and Edward Lieberman, in determining the reasonableness of the Graterford estimates. Plan 2 as such was sinply not at issue.E
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7/ See, e .c '. , Limerick, supra, LBP-85-14, 21 NBC 1219, 1315-18, 1349-50 L1985) , aff'd in part, AIAB-836, 23 NBC (May 7,1986) .
8/ Thus, the text of 10 C.F.R. Part 50, Appendix E, Section IV states that in addition to subnitting offsite emergency response plans, an applicant "shall also provide an analysis of the time required to evacuate and for taking other protective actions for various sectors and distances within the plume exposure pathway EPZ for transient and permanent populations." (Enphasis added.)
NUREG-0654, Appendix 4 explains the content and format for the separately prepared " evacuation times assessment study."
9/ In its Conclusions of Law, the Board stated that "with respect to the issues in controversy before us ... [t]he SCIG energency response plan meets the requirements" of the regulations and the criteria of NUREG-0654. Limerick, supra, LBP-85-25, 22 hT at 116.
(Fcotnote Continued)
o Nor was there any reason to incorporate Plan 2 into the record with regard to the imates' denied contentions. Rather than creating any error of mission, the Board, the irnates and other parties acted cmmendably in avoiding the unnecessary emplications which would have resulted from including protected prison security information in the record.1_0f Certain provisions of Plan 2 were cited by the Board and parties in discussing the admissibility of the inmates' contentions and the willingness of the inmates to withdraw certain contentionM during the prehearing conference on March 22, 1985, but no party has (Footnote Continued)
Licensee does not believe that the Board's mere reference to the "SCIG plan" with respect to the two admitted contentions intended to suggest either that the plan per se was relevant to the contentions or that the Board had independently reviewed the plan in deciding the contentions or for any other purpose. Fairly interpreted, "SCIG plan" sinply means " emergency planning and preparedness for Graterford."
10/ In the Diablo Canyon proceeding itself, the Appeal Board encouraged voluntary accamodation by the parties to narrow the scope of security plan disclosure necessary to litigate the intervenor's contentions. See Diablo Canyon, supra, AIAB-410, 5 NBC 1398,1405
, (1977). Licensee recognizes that disclosure of sensitive information is generally permitted on the assmption that protective orders will be obeyed, and that "there has never been a breach of an NBC protective order that seriously threatened the 1 confidentiality of the information revealed under that order."
Cmmorrmalth Edison Cmpany (Byron Nuclear Power Station, Units 1 and 2), ALAB-735, 18 NBC 19, 25 (1983). Nonetheless, the Appeal Board has recognized that even an intervenor's "well-meant actions" might inadvertently lead it to violate a protective order, Houston Lighting & Power Cmpany (South Texas Project, Units 1 and 2) ,
AIAB-639,13 NBC 469, 477 (1981) , and that an inadvertent violation of a protective order may result frm a misunderstanding of its requirements, Diablo Canyon, supra, ALAB " Memorandum and Order" (December 30, 1980), aff'd, CLI " Order" (February 20, 1981).
1}f E.g., dosimetry and KI for bus drivers (Tr. 20636-37, 20682);
sheltering (Tr. 20649-50, 20691); inmate notification (Tr.
20650-54, 20682).
questioned the accuracy of those statments.E Nor has any party claimed that other provisions of Plan 2 are pertinent to the admissibil-ity of the denied contentions. Accordingly, Plan 2 was irrelevant to the Fourth PID and the Order of June 12, 1985 denying the imates other contentions.
B. Offsite Emergency Plans are not Probative as to Certain Offsite Emergency Planning Contentions.
Plan 2 is quite unlike the plant security plan at issue in Diablo Canyon. When an intervenor has challenged the adequacy of a plant's physical protection fra external threats, the plant security plan is the basic document relevant to those contentions. Offsite mergency planning, however, is different. Unlike a physical security plan, an offsite emergency plan is not a cmposite cmpilation of all essential elements of offsite emergency planning and preparedness. Thus, there are a variety of challenges which can be made to the adequacy of offsite emergency planning and preparedness which do not necessarily question the adequacy of offsite plans or require their receipt into evidence.
Contentions challenging the accuracy of evacuation time estimates and availability of training for offsite support personnel, as discussed above, are two prime exanples. Other possibilities include contentions related to the public information brochure, letters of agreement between 12f The Board and parties were provided copies of Plan 2 for reference at the prehearing conference upon execution of the affidavit of nondisclosure (Tr. 20610-12). 'Ihose copies were collected frmt the parties (but not the Board) at the end of the conference (Otto, Tr.
20712). Therefore, any staterent about Plan 2 was easily verifiable at the time by counsel for the parties and the Board.
planring agencies and offsite support organizations, siren coverage, exercises and drills and any number of other matters covered by imple-menting procedures but not the plans themselves. Such contentions might involva testinony which incidentally refers to "the plan" or portions of a plan, but this does not create a legal requirenent that a board review the plan itself.EI In fact, in the Fermi prWing, the Appeal Board sustained findings against an intervenor on its evacuation contention, notwithstanding its claim on appeal that offsite plans had not been finalized, nuch less reviewed by the Licensing Board.EI 13,/ Offsite emergency planning hearings in the Big Rock proceeding, for instance, involved a number of these issues. See Consumers Power Ca pany (Big Rock Point Plant), LBP-82-77, 16 NRC 1096 (1982).
While the Licensing Board in that case referred to a plan at certain points, it does not appear that any offsite plan was offered in evidence or relied upon by the Board in making its findings. Rather, the Board relied upon the testimony of the responsible public officials. In the Vogtle pr W ing, the Licensing Board reviewed otfsite plans as a basis for dismissing a contention that no energency plan existed for the plant's plume exposure emergency planning zone, but took care to point out that its review "did not extend, however, to the merits of the contents of those documents," Georgia Power Ccanpany (Vogtle Electric l Generating Plant, Units 1 and 2), " Memorandum and Order" (March 6, 1986) (slip op. at 4).
M/ Detroit Edison Ccanpany (Enrico Fermi Atcmic Power Plant, Unit 2),
l-LBP-82-96, 16 NBC 1408, 1422-29 (1982), aff'd, AIAB-730, 17 NRC i 1057 (1983). Thus, the Appeal Board rejected the intervenor's l
" central argument .. . that the Monroe County emergency plan is j not yet ccanplete" by pointing out that allegations as to "the j plan's inadequacy and incmpleteness" that intervenor and the
' County itself as a late-filing intervenor sought to raise (road conditions, effect of winter weather, available buses and emergency workers) could have been raised earlier, irrespective of the status of the county plan itself. ALAB-730, 17 NBC at 1064-65. The denial of Monroe County's late petition was separately affirmed in l Fermi, supra, AIAB-707,16 NBC 1760 (1982) .
i Finally, the Appeal Board in Diablo Canyon noted " apparent discrep-ancies" between testimony at the hearing and the physical security plan itself.E Although the Appeal Board has not yet empleted its review, it has not cited - and no party has cited - any such " discrepancy" with regard to the Fourth PID or the Order of June 12, 1985.
C. Review of Plan 2 Beyond Contested Issues would be Unjustified Sua sponte Action.
While the foregoing considerations are wholly dispositive of this issue, Licensee questions the continuing validity of the Diablo Canyon precedent insofar as it suggests that it may be necessary or even proper for a board to review a " plan" beyond the confines required to rule upon an intervenor's contentions. 'Ihe Appeal Board has not stated any
) intention to conduct a sua sponte review, but since it has cited Diablo Canyon as a potential basis for reversal, it is necessary to address that aspect of the case.
In Diablo Canyon, it appears that the Licensing Board denied the intervenor's security plan contentions,-but nonetheless conducted an in camera hearing as to the adequacy of plant security "at the urging of both the Applicant and the Staff." N On appeal, the Appeal Board held that the failure of the Licensing Board to review the Diablo Canyon plant security plan was fatal to the Board's " finding of regulatory cmpliance."b The Appeal Board in Diablo Canyon correctly pointed out 15/ Id. at 229.
16/ Id. at 228.
17/ Id. at 229.
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the difference between contested issues and those uncontested issues which qualify for sua sponte review, but failed to apply the cited standard under 10 C.F.R. S2.760a. The Board sinply stated that, in sme cases, the adequacy of a plant security plan "can" qualify for sua sponte review and reiterated that "the applicant and the staff both urged that the Board" do so.E Since the Diablo Canyon precedent, the Cmmission has clarified the jurisdiction of its boards in raising uncontested issues sua sponte.
For exanple, the Cmmission's ruling in the Comanche Peak proceeding makes it clear that a licensing board may not conduct a hearing based upon an intervenor's admitted contentions if the intervenor has been dismissed, absent a proper invocation of the board's sua sponte authori-ty.19/ Apropos the Diablo Canyon precedent, prior admission of con-tentions relating to the plant security plan appears to have been the only reason the Licensing Board in that case was led to conduct a hearing on the security plan, even after the intervenor had been barred frm participation. As a general proposition, however, the Cmmission held in Cmanche Peak that the " mere acceptance of a contention does not justify a board to assume that a serious safety, environmental, or canon defense and security matter exists or otherwise relieve it of the 18/ Id. at 229-30. Certainly, the fact that the parties advocate sua smnte review is a legitimate factor to consider, but ultimately tw Board itself must make the required finding. The parties cannot by their consent expand a board's adjudicatory powers under 10 C.F.R. 52.760a.
M/ Texas Utilities Generating Cmpany (Cmanche Peak Steam Electric Station, Units 1 and 2) , CLI-81-36,14 NIC 1111 (1981) .
i obligation under 10 CFR 2.760a to affirmatively determine that such a j matterexists."20/
More recently, the Camission reiterated in the Perry proceeding that "[bloards have the authority to examine issues not placed in controversy by the parties only where specific facts are brought to their attention indicating that there is a serious safety, environ-mental, or camon defense and security matter."E! Accordingly, the Licensing Board in the instant case had no authority to consider emer-gency planning issues for Graterford beyond the proposed contentions.
Because review of Plan 2 was not required for the disposition of those contentions, it was unnecessary for the Board to examine Plan 2 in its entirety, receive it in evidence or otherwise make it a part of the record.
Questions 3, 4 and 5
- 3. If Plan 2 is in the record, is the Licensing Board's March 20, 1985, protective order still in effect, so as to preclude any references in a published opinion to specific parts of Plan 2?
- 4. If the protective order is still in effect, need it continue to be? (We note in this regard that'the transcripts of Licensing Board conferences held on February 27 and March 22, 1985 - during which Plan 2 was discussed - were made public by the Board's March 27, 1985, Memorandum and Order (unpublished) .)
20/ Id. at 1114.
M/ Cleveland Electric Illuminating Cmpany (Perry Nuclear Power Plant, Units 1 and 2) , CLI-86-07, 23 NBC (April 18,1986) (slip op.
at 3 n.1) . It is clear frcm other orders that the Cmmission takes an exacting view of the requirements for sua sponte action by a licensing board. See, 4e. . , Comnonwealth Edison Cmpany (Braidwood Station Units 1 and 2), Order" (March 20,1986) (slip op. at 9; l (Footnote Continued)
- 5. Does any party now have in its possession copies of Plan 2?
Neither Licensee nor its counsel has possession of a copy of Plan
- 2. Licensee's counsel who attended the prehearing conference on March 22, 1985 reviewed Plan 2 at that time and signed the affidavit of nondisclosure, but did not retain possession of the copy furnished him.
To our knowledge, no other party was permitted to retain a copy.
Nonetheless, Licensee believes that the Protective Order entered by the Licensing Board on March 20, 1985 continues to be in effect and should renain in effect.
Counsel for the Department of Corrections considered those excerpts of Plan 2 which were discussed at the prehearing conference on March 22, 1985 and determined that their public disclosure would not cmprmise prison security.22/ 1.hether any further disclosure might cmpr mise security can only be answered by responsible officials of the Department of Corrections. Because the Fourth PID does not refer to specific -
provisions of Plan 2, it may be unnecessary for the Appeal Board to do so in its fortheming decision. If the Appeal Board finds that refer-ence to Plan 2 is necessary, however, clearance should be obtained frm the Department of Corrections or the custmary procedures should be followed for the rendering of a decision containing protected informa-tion.
l (Fovluote Continued)
Duke Power Cmpany (Catawba Nuclear Station, Units 1 and 2) ,
" Order" (June 8,1984) .
-22/ If for no other reason, the protective order must continue in effect to retain the prohibition against disclosure by counsel and the imates' consultant who reviewed Plan 2.
Question 6
- 6. S e Licensing Board's June 12 Order ruling on the irunates' contentions contains a number of statements of " fact" for which there are no cita-tions. The sources of these statements apparently are the pleadings of certain parties, which in turn cite to the transcripts of the February 27 and March 22 conferences. In ruling on the Mssibility of contentions - assuming arguendo that Houston Lighting and Power Co. (Allens Creek Nuclear Gen-erating Station, Unit 2) , ALAB-590, 11 NRC 542 (1980), does not otherwise prohibit it - can a board properly rely on the unsworn " testimony" of a
" witness" at a transcribed " conference"? See, e.g.,
Tr. 20,627, 20,629-31, 20,672.
Wis question relates to rulings by the Licensing Board in denying several contentions proposed by the Graterford irunates. In its Order of June 12, 1985, the Licensing Board denied six contentions proposed by the inmates relating to mobilization of guards, input by guards into emergency planning, medical services for contaminated / injured inmates, radiological monitoring, the exercise of the Graterford plan on March 7, 1985 and the potential for a spontaneous evacuation on the part of the guards or inmates.EI The Appeal Board has asked the parties to cmment upon the propriety of relying upon certain representations by Glen R.
Jeffes, the Cmmissioner of the Pennsylvania Department of Corrections, to the Board and parties at the prehearing conference of March 22, 1985 in ruling on the admissibility of the inmates' proposed contentions.E 23/ Limerick, supra, " Order Admitting Certain Revised Contentions of the Graterford Inmates and Denying Others" (June 12, 1985). The inmates did not appeal denial of their proposed contention on radiological monitoring.
M/ Licensee notes that statements were also made by Theodore Otto, counsel for the Department, John Patten, PD1A Director, and Ralph (Footnote Continued)
In Licensee's view, the factual representations by the head of the responsible Cmmonwealth agency at the prehearing conference - rep-resentations not challenged by the irnates at that tim or on appeal -
merely filled the interstices of the existing prehearing record. In the course of any proceeding, a board canonly relies upon the represen-tations of the parties on matters peculiarly within their knowledge.
Often, those representations are made by counsel for the parties, but it is not at all unusual for a representation to be made by another rep-resentative, such as the ranking official of a State agency, as was the case here with Cm missioner Jeffes.
Adjudicatory boards depend and rely upon such representations because of the self-evident desirability of avoiding hearings over undisputed facts. In this instance, there was no point in having a hearing, to use the Appeal Board's sanple transcript citations, just to find out how many telephones are available to mobilize the Graterford guards. Nonetheless, it is clear that a party has the right to dispute such representations. The inmates, represented by counsel at all times, did not contest any statement by Cmmissioner Jeffes regarding the capacity of the Department's telephone system or any other matter.
Moreover, Cm missioner Jeffes' statenents, although unsworn, are (Footnote Continued)
Hippert, a PENA Deputy Director, at the prehearing conference on March 22, 1985. Reviewing the transcript, however, we do not believe that any statement by those individuals was cited by the parties and relied upon by the Licensing Board as a basis for denying scue of the inmates' contentions. Nevertheless, Licensee's discussion of the representations by Cmmissioner Jeffes would apply equally to the Department's counsel and the two ranking PDE officials.
reliable and credible because he obviously had official access to accurate infomation, he knew that the prehearing conference was being recorded by an official stenographer, he knew that his statements would be subject to scrutiny by counsel for the imates and other counsel present and he understood that the Board would rely upon his statements in reaching its decision.
The representations by Comissioner Jeffes are indistinguishable frm similar factual statements made by a party and relied upon by boards in other cases. Such representations often relate to the nature of the facility and its intended mode of operation,EI or other matters bearing upon a party's entitiment to its requested relief.EI It is quite clear that any misrepresentation to a board may entail extremely 27 /
onerous consequences.
It is because boards rely upon such representations that demanding standards exist for full disclosure and accuracy. Decisions which enunciate this principle frequently speak of counsel's " manifest and iron-clad obligation of candor,"2_8/ but the obligation applies with
-25/ See, e.g., Cmanche Peak, supra, LBP-84-55, 20 NBC 1646,1681 n.18 (1984); Metropolitan Edison Cmpany (Three Mile Island Nuclear Station, Unit No. 1) , LBP-81-59, 14 NRC 1211, 1415 n.150 (1981);
Niagara Mohawk Power Corporation (Nine Mile Point Nuclear Station, Unit 2) , AIAB-264,1 NRC 347, 356 (1975) .
26/ See, e.g. , Braidwood, supra, LBP-85-40, 22 NBC 759, 762 (1985) .
2_7,/
7 Regents of the University of California (UCLA Research Reactor),
LBP-84-22,19 NRC 1383 (1984) .
M/ Public Service Carpany of Oklahma (Black Fox Station, Units 1 and
- 2) , AIAB-505, 8 NBC 527, 532 (1978) .
equal force to any representative of a party who addresses a board. As the Appeal Board stated in the Midland proceeding:
Insofar as the integrity of the proceeding or the good faith of the parties is concerned, there is no parallel between zealous advocacy in support of an arguable legal position and, e.g., the withholding of relevant factual information. We note that in the latter regard we fully expect both clients and lawyers to adhere to the highest standards.29/9 Therefore, adjudicatory boards have properly insisted that "[w] hen making factual representations, counsel may not make errors."30/ The same may be said of any other representative of a party who makes a factual representation to a board. Licensee therefore sees no error in the Board's reliance upon factual representations by Cm missioner Jeffes at the prehearing conference, especially where those statements have never been disputed by any party.
Question 7
- 7. The Licensing Board failed to list (as an attachment to LBP-85-25) the exhibits offered at the
-29/ Consumers Power Cmpany (Midland Plant, Units 1 and 2), ALAB-691, 16 NBC 897, 919 (1982), quoting Midland, supra, ALAB-458, 7 NRC 155, 172 n.64 (1978) (emphasis added) . In declining to review AIAB-691, the Cmmission warned " parties and their attorneys that when they engage in conduct which skirts close to the line of improper conduct, they are running a grave risk of serious sanction if they cross that line. Midland, supra, CLI-83-2, 17 NBC 69, 70 (1983).
-30/ Kerr-McGee Chemical Corporation (Kress Creek Decontamination),
IEP-85-48, 22 NBC 843, 847 (1985). The decision in Allens Creek cited by the Appeal Board is inapposite because accepting the factual representations by a Cmmonwealth official is not the same l
as adopting a party's factual argument that an intervenor's proposed contention is so lacking in merit that it is unworthy of a hearing. None of the factual representations relevant to the Appeal Board's inquiry here has been disputed, unlike the controversy in Allens Creek over whether the proposed contention had an adequate factual " basis."
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hearing in this part of the proceeding, and the transcripts are confusing. And, once again, neither we nor the Ccumission's Secretary was provided with copies of any of the exhibits. See AIAB-836, 23 NBC
, n.3 (May 7, 1986) (slip opinion at 2 n.3). Licensing Board Judge Cole, however, has preserved and provided us with the following exhib-its:
Inmates Tr.
Exh. 1 "4.1 Graterford Prison" 20,772, 20,785 (p. 4-3)
Exh. 2 - Menorandum frca Caison 20,785 to Vaughn, et al.
(September 12, 1983)
(2 pages)
Exh. 3 "The Report of the 20,786 Governor's Panel to Investigate the Recent Hostage Incident at Graterford State Correctional Institution" (August 1982) , pp. 4-5.
Exh. 4 - Letter fran A.R. IcVe to 20,826 T.G. Otto, III (July 8, 1985) (2 pages)
Exh. 5 "A Strategy to Alleviate 20,848 Overcrowding in Pennsylvania's Prisons and Jails" (February 12, 1985) (pp. 2, 34, 36)
Applicant Exh.1 - Ietter frcm T.G. Otto, III, 20,890, to A.R. IcVe (June 27, 1985) 20,795-97 (2 pages)
We request the parties to identify which (if any) of these exhibits, in addition to Applicant's Exh.1, was actually admitted into evidence. If there are.
any other exhibits that were offered at this hear-ing, the parties are also to advise us of that fact and to provide the pertinent citations to the transcript, indicating where these exhibits were identified, admitted, or rejected.
l
Graterford Inmates Exh. 1, a one-page excerpt frm an outdated draft evacuation time estimate study which had been prepared for Limerick in 1980, was identified at Tr. 20785 and rejected by the Board at Tr. 21085. Graterford Inmates Exhs. 2 and 3, which related, respec-tively, to a power failure and a hostage incident at Graterford, were identified at Tr. 20785 and Tr. 20786 and provisionally admitted at Tr.
21085, subject to verification by the Ccamonwealth's counsel as to the accuracy and correctness of those exhibits. Likewise, Graterford Inmates Exh. 5, an excerpt frm a document relating to prison overcrowd-ing, was identified at Tr. 20828 and provisionally admitted into evi-dence at Tr. 21085, subject to verification by counsel for the Ccamon-wealth. Verification was to occur within 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> after the close of the hearing on July 17,1985 (Tr. 21085) . Counsel for Licensee does not know if this verification was provided, but assumes that the absence of any objection was tantamount to acquiescence by the Ccamonwealth.
Finally, Graterford Inmates Exh. 4, which related to a discovery dis-pute, was identified at Tr. 20826, but was withdrawn by counsel for the inmates at Tr. 21084.
With regard to other exhibits, the Comonwealth of Pennsylvania identified Ccomonwealth Exh. 1 at Tr. 20846-48. It consisted of the front page of the report previously identified as Graterford Inmates Exh. 5 and was withdrawn at Tr. 21086. The only other exhibit iden-tified during the hearing was Applicant's Exh.1, a letter frca counsel for the Comonwealth of Pennsylvania to counsel for Graterford inmates
_ 19 _
which furnished information relating to evacuation time estimate method-ology. As the Appeal Board stated, it was admitted into evidence at Tr.
20797.
Respectfully subnitted, CONNER & WEITERHAHN, P.C.
~T% o. % , T<. Ndd Troy B. Conner, Jr.
Robert M. Rader Nils N. Nichols Counsel for Licensee June 16, 1986 l
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O UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
Philadelphia Electric Company ) Docket Nos. 50-352
) 50-353 (Limerick Generating Station, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of " Licensee's Response to the Appeal Board's Order of June 3, 1986 Regarding the State of the Record on Emergency Planning for Graterford," dated June 16, 1986 in the captioned matter, have been served upon the following by deposit in the United States mail this 16th day of June, 1986:
Christine N. Kohl, Esq. Dr. Richard F. Cole Chairman Atomic Safety and Atomic Safety and Licensing Licensing Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Jerry Harbour Gary J. Edles Atomic Safety and Licensing Atomic Safety and Licensing Board U.S. Nuclear Appeal Board Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Dr. Reginald L. Gotchy Appeal Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Docketing and Service Section Office of the Secretary Helen F. Hoyt, Esq. U.S. Nuclear Regulatory Chairperson Commission Atomic Safety and Licensing Washington, D.C. 20555 Board U.S. Nuclear Regulatory Commission
- Washington, D.C. 20555 l
-s 1' I Benjamin H. Vogler, Esq. Angus Love, Esq. I
. Counsel for NRC Staff Office 107 East Main Street of the Executive Norristown, PA 19401 Legal Director
_i U.S. Nuclear Regulatory Robert J. Sugarman, Esq.
Commission Sugarman, Denworth &
Washington, D.C. 20555 Hellegers 16th Floor, Center Plaza Atomic Safety and Licensing 101 N. Broad Street Board Panel Philadelphia, PA 19107 U.S. Nuclear Regulatory Commission Director, Pennsylvania Washington, D.C. 20555 Emergency Management Agency Basement, Transportation ,
Philadelphia Electric Company and Safety Building ATTH: Edward G. Bauer, Jr. Harrisburg, PA 17120 Vice President &
General Counsel Kathryn S. Lewis, Esq. City 2301 Market Street of Philadelphia Municipal Philadelphia, PA 19101 Services Bldg. 15th and JFK Blvd. Philadelphia, PA Mr. Frank R. Romano 19107 61 Forest Avenue Ambler, Pennsylvania 19002 Spence W. Perry, Esq.
Associate General Counsel Mr. Robert L. Anthony Federal Emergency Friends of the' Earth of Management Agency 4 the Delaware Valley 500 C Street, S.W., Rm. 840 106 Vernon Lane, Box 186 Washington, DC 20472 Moylan, Pennsylvania 19065 l Thomas Gerusky, Director Miss Phyllis Zitzer Bureau of Radiation Limerick Ecology Action Protection P.O. Box 761 Department of Environmental i 762 Queen Street Resources Pottstown, PA 19464 5th Floor, Fulton Bank Bldg.
Third and Locust Streets Charles W. Elliott, Esq. Harrisburg, PA 17120 325 N. 10th Street Easton, PA 18042 James Wiggins
- Senior Resident Inspector l Jay M. Gutierrez, Esq. U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission P.O. Box 47 Region I Sanatoga, PA 19464 631 Park Avenue King of Prussia, PA 19406 l
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r.
O Mark L. Goodwin,.Esq.
Office of General Counsel Commonwealth of Pennsylvania P.O. Box 11775 Harrisburg, PA- 17108 Timothy R.S. Campbell
- Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 Mr. Ralph Hippert Pennsylvania Emergency Management Agency B151 - Transportation Safety Building Harrisburg, PA 17120 Theodore G. Otto, Esq.
Department of Corrections Office of Chief Counsel P.O. Box 598 Lisburn Road Camp Hill, PA 17011 i
0 N
Nils N. Nichols l
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