ML20055D899

Memorandum & Order.* Requests That Parties Respond to Listed Questions Re Atty General of Commonwealth of Ma Appeal from ASLB 891109 Partial Initial Decision in Proceeding by 900713.W/Certificate of Svc.Served on 900622

ML20055D899
Person / Time
Site:	Seabrook
Issue date:	06/22/1990
From:	Hagins E NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
To:	NEW ENGLAND COALITION ON NUCLEAR POLLUTION, NRC OFFICE OF THE GENERAL COUNSEL (OGC), PUBLIC SERVICE CO. OF NEW HAMPSHIRE
References
CON-#390-10546 ALAB-932, OL, NUDOCS 9007100128
Download: ML20055D899 (14)

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o 00t:KEkE0 UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING APPEAL BOT JLN 22 All 55 -

Administrative Judges:

vt ice cr ??CREuP' G. Paul Bollwerk, III, Chairman June 22,T199.03*:""

Alan S. Rosenthal '

Howard A. Wilber ,

JUN 2 21990

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In the Matter ofl ) ,

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, ~et al. ) 50-444-OL

) (Offsite' Emergency (Seabrook Station, Units 1 ) Planning Issues) and 2)- )

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MEMORANDUM AND ORDER

1. We have under submission the appeal of the Attorney General-of Mascachusetts (MassAG) from the-Licensing Board's November 9, 1989 partial initial decision in this operating license proceeding involving the Seabrook nuclear power station.1 One of the issues presented by that appeal concerns the role assigned to teachers in the Seabrook Plan for Massachusetts Communities (hereinafter Massachusetts emergency response plan). Specifically, in the event of a radiological emergency at Seabrook while schools within the Massachusetts portion of the station's plume exposure pathway emergency planning zone (EPZ) are in session, under the Massachusetts plan the teachers at those 1 See LBP-89-32, 30 NRC 375 (1989).

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2 schools are expected to accompany their students on buses to a host school facility located at Holy Cross College in Worcester, Massachusetts -- a distance of at least sixty miles from the communities in which the schools are situated.2 The MassAG questions, inter alia, the Licensing Board's disposition, in an earlier interlocutory order, of his contention that the teachers would not fulfill a bus escort assignment.3 A similar role conflict issue arose in connection with the emergency response planning iar the New Hampshire portion of the Seabrook EPZ, which contemplates that teachers in schools located within that area likewise would acccmpany their students on school buses to the reception centers that would be the students' destination in the event 2 At the April 18, 1990 oral argument, applicants' counsel referred to the sixty-mile distance (App. Tr. 96) and our examination of a standard road atlas confirms that figure and also indicates that some of the schools are at a still greater distance from Worcester.

3 See Licensing Board's July 22, 1988 Memorandum and Order - Part I (unpublished) at 71-75, rejecting at the threshold MassAG's Contention No. 47 insofar as it raised the claim that, because of role conflict, the teachers would not be prepared to escort the students to a reception center or host facility. At the time, it appears that the Massachusetts emergency response plan contemplated the use The college of a facility other than Holy Cross College.

was substituted at a later date.

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3 of an evacuation necessitated by a radiological emergency.4 Discounting the testimony of thirteen New Hampshire teachers that, in such an event, they (and a substantial number of other New Hampshire teachers as well) would promptly leave ,

i their students without performing any of their assigned duties, the Licensing Board reached the conclusion that

"[s]chool teachers and school of ficials, as a group, will not abandon their pupils in the event of a radiological emergency at Seabrook. 5 on the intervenors' appeal from that conclusion, we recently held in ALAD-932 that, "at least insofar as teachers are performing duties corresponding to those they generally undertake in connection with their normal duties and responsibilities," the Licensing Board correctly determined that " teacher role abandonment does not pose a substantial barrier to an adequate emergency response" under the New Hampshire plan.6 On this score, we drew a distinction between the teachers' performance of such functions as " accounting for and supervising the children 4 Indeed, that consideration undergirded the Licensing Board's refusal to allow the role conflict issue to be litigated with respect to the Massachusetts emergency response plan. See infra p. 5.

5 LBP-88-32, 28 NRC 667, 749 (1988).

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31 NRC , (May 31, 1990) (slip opinion at 55).

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and assuring their safe boarding of evacuation buses" --

responsibilities that we believe " correspond sufficiently to their usual duties" -- and the discharge of bus escort i functions.7 The latter role, we noted, "may necessitate the teachers' traveling for indefinite periods of time considerable distances from their school and very likely their homes and familirn."8 In addition, "if a teacher embarks on a bus for the potentially lengthy trip to a reception center, the teacher's opportunity to engage in -

action designed to alleviate ' role strain' (e.g., calling home to check upon family members) could be severely hampered, if not foreclosed, thereby adding to the possibility that role abandonment might occur."9 We went on, however, to decide in ALAB-932 that it was  ;

not necessary to pursue that concern. This was because there was record evidence that the provisions in the New Hampshire emergency response plan for teacher escorts on evacuation buses were not required for the safety of the school children involved. That conclusion on the part of State planning officials, we observed, apparently rested upon their "not unreasonable judgment that bus drivers will 7

Id. at (slip opinion at 59-60).

9 Id. at (slip opinion at 60-61).

9 l Id. at (slip opinion at 61).

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5 be able to transport the students safely to reception centers, where the students will be cared for and supervised by the personnel already assigned to staff the centers until such time as they are reunited with their parents or guardians."10 Given this consideration, we saw no purpose in pursuing further whether teachers could be expected to fulfill the bus escort roles assigned to them under the New Hampshire plan.II I

2. The Licensing Board's principal justification for precluding litigation of the teacher role abandonment matter in the context of the Massachusetts emergency response plan was that human behavior issues had been fully explored in >

the phase of the proceeding concerned with the New Hampshire plan. 2 There appear, however, to be factual differences pertaining to the operation of the two plans that might well i have a bearing upon the likelihood that Massachusetts 10 (slip opinion at 62-63).

Id. at II (slip opinion at 63). We did suggest Id. at that, "so as not to mislead those involved in or relying upon emergency response efforts by school personnel, State planners may wish to revise the plan to reflect their judgment about the precatory nature of teacher participation as escorts on student buses." Id. at n.161 (slip opinion at 63 n.161).

I See Licensing Board's July 22, 1988 Memorandum and Order - Part I (unpublished) at 72-73. For this reason, no evidence was adduced that was directed specifically to the issue of role abandonment on the part of Massachusetts teachers.

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teachers would fulfill their assigned bus escort roles, as well as upon the necessaty that such roles be fulfilled by those teachers.

To begin with, the minimum sixty-mile distance between the Massachusetts. schools within the EPZ end Holy Cross College in Worcester (the host facility for those schools) is approximately twice the maximum distance between the New Hampshire schools and the reception centers to which their students are to be evacuated.I3 In this circumstance, the concern expressed in ALAB-932 respecting whether New Hampshire teachers would be prepared to travel "for ,

indefinite periods of time considerable distances from their school and very likely their homes and families"I4 would seem, if anything, to have a greater foundation when the ,

likely course of conduct of Massachusetts teachers is at issue.

13 Each of the four designated New Hampshire reception centers (located in Manchester, Dover, Salem, and Rochester) is to receive students (along with other members of the public) from specified communities within the New Hampshire portion of the EPZ. According to a standard road atlas, the students transported from Stratham to the Manchester center will travel'about thirty miles. Most of the other students will traverse considerably shorter distances. For example, Greenland appears to be no more than ten miles by road from Dover, where the Greenland students are to be received.

I See supra note 8 and accompanying text.

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Accordingly, it may be particularly significant in the evaluation of the Massachusetts emergency response plan whether, as was testified and found to be the case in New Hampshire, it is not necessary for the teachers to accompany their students to the prescribed evacuation destination.

Although, at oral argument, applicants' counsel assured us that the teachers are "no more needed in Massachusetts than they are in New Hampshire,"15 our attention was not directed to any evidence of record supporting that assertion.

Moreover, counsel's elaboration on the assertion -- that d

" Massachusetts children can ride just as easily as New 1 Hampshire children without teachers.16 -- does not come to grips with the central questions whether the American Red Cross, which we understand is to operate the school host facility at Holy Cross College, will have adequate available staff to ensure, in the absence of teachers, that the students "will be cared for and supervised . . . until such time as they are reunited with their parents or guardians."17 The affirmative answer that New Hampshire state planning officials gave to that question within the l _

15 App. Tr. 95 (April 18, 1990).

16 Ibid.

I See supra note 10 and accompanying text.

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8 framework of New Hampshire school evacuation does not perforce hold true for Massachusetts. The New Hampshire portion of the Seabrook EPZ does contain a significantly larger number of students in schools and children in day-care centers (including nurseries) than the more than 10,000 youngsters now to be found in schools and day-care / nursery 9 But, as earlier facilities in the Massachusetts EPZ.

noted, the New Hampshire plan calls for evacuation of these individuals to a total of four reception centers.19 For this reason, it may well be that no singic New Hampshire location will receive more than the number of students and day-care children that will be dispatched to Holy Cross Cv11ege -- the single Massachusetts facility that is to receive that segment of the population.

More important, however, the record discloses that the New Hampshire Department of Health and Human Services will allocate in excess of 400 individuals to staff that state's 18 According to the very latest available figures,

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supplied by Ted C. Feigenbaum, an official of the principal

!. applicant, with his May 2, 1990 letter to the Commission on the subject of the First Quarter 1990 update to Appendices H and M of the Massachusetts emergency response plan, the Massachusetts the EPZ have aschools and day-care total population / nursery of 10,692 (facilitiessome, including within l but not all, staff personnel). In 1987, the comparable ,

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figure for the New Hampshire portion of the EPZ (excluding staff) was 16,325. See Applicants' Direct Testimony No. 2 l

j (Special Needs/ Transportation) , fol. Tr. 4228, at 12, 9 See supra note 13.  !

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reception centers.20 With such a large contingent of state employees, proper supervision of the students at the centers should be readily achievable. Moreover, there is the real possibility that, should the need arise, the aid of adult For, in contrast to Holy Cross evacuees could be enlisted.

College, which will receive only students and still younger children, the New Hampshire reception centers will serve all ]

evacuees from that state's portion of the EPZ, including but ]

l not restricted to students and those in day-care and nursery facilities.

3. The foregoing considerations, taken in conjunction with ALAB-932, bring certain questions to the fore in connection with the role conflict issue now at hand.

Because ALAB-932 was issued after the briefing and oral argument on the appeals concerned with the Massachusetts emergency response plan, we think it appropriate to provide the parties with an opportunity to address the following questions in supplemental memoranda

a. Is there existing evidence of record on the matter of the capability of the American Red Cross, in the absence I of accompanying teachers, to care for and supervise at the Holy Cross College in excess of 10,000 students and day-l l

l 20 See Applicants' Exhibit 1-A.

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10 care / nursery children until such time as they are reunited with their parents and guardians? If so, what is the nature of the evidence and does it support a finding that such ,

capability exists?

b. If there is no or insuf ficient evidence of record i to establish that it is unnecessary for Massachusetts teachers to serve as bus escorts, how should we deal with the concerns expressed in ALAB-932 with respect to the likelihood that teachers will accept such a role? Should we put those concerns to one side and, if so, on what basis?

If those concerns cannot properly be disregarded, should we ramand the proceeding to the Licensing Board with instructions to explore further the question of the resources to be available at Ifoly Cross College (i.e.,

whether those resources will be sufficient to obviate the presence of teachers at the f acility) ? Or, alternatively, should we direct the applicants to supplement the Red Cross-supplied personnel at Holy Cross College with sufficient individuals, perhaps from within their own Massachusetts emergency response organization, to ensure the proper care and supervision of the students?

Because the applicants and the NRC staff both

! affirmatively support the Licensing Board's resolution of l

the teacher role abandonment issue, we are calling upon those parties to respond first to the above questions.

Their memoranda shall be filed and served on or before July

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13, 1990. The reply of the MassAG shall be filed end served on or before August 6, 1990. No filing shall exceed twenty pages in length without prior leave of this Board.21 It is so ORDERED. P FOR THE APPEAL BOARD u k= J

' Eleanor E. FagRns Secretary to te ,

Appeal Board 21 We note that, in its "immediate effectiveness" decision concerned with LBP-89-32, the Commission expressed the view that school children can be evacuated to Holy Cross College without teachers on the buses. See CLI-90-3, 31 NRC 219, 254 (1990). The Rules of Practice specifically provide, however, that, unless the Commission otherwise so directs (and it did not do so here), we may not attach "any weight" to statements contained in immediateIn effectiveness addition, the determinations. See 10 C.F.R. S 2.764 (g) .

commission rested its belief upon its earlier conclusion (31 NRC at 235) that there was no need for the participation of New Hampshire teachers as bus escorts. But that conclusion was in turn founded upon the testimony of the New Hampshire Director of Emergency Management. Ibid. Apart from the fact that the Director was not addressing school evacuation in Massachusetts, as we have observed, the situation in the two states is not identical.

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UNITED STATES OF AMERICA NUCLEAR RESULATORY COMM186!ON l

In the Matter of 1 '

i l PUBLIC SERVICE COMPANY OF NEW l Docket No.(s) 50-443/444-OL i

HAMPSHIRE, ET AL. I  :

(Seabrook Station, Units 1 and 2) l J l

l I CERTIFICATE OF SERVICE 1 hereby certify that copies of the foregoing AB MEMORANDUM AND ORDER - 6/22 have been served upon the following persons by U.S. asil, first classi except '

as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712.

Administrative Judge Administrative Judge G. Paul Bollwerk, !!! Thomas S. Moore, Chairman Atomic Safety and Licensing Appeal Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 00555 Administrative Judge Howard A. Wilber Administrative Law Judge Atomic Safety and Licensing Appeal Ivan W. Smith, Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Robert R. Pierce, Esquire Richard F. Cole Atomic Safety and Licensing Board Atoele Safety and Licensing Board U.S. Nuclear Requlatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Administrative Judge Administrative Judge Alan S. Rosenthal Kenneth A. McColles Atomic Safety and Licensing Board 1107 West Knapp Street U.S. Nuclear Regulatory Commission Stillwater, OK 74075 Washington, DC 20555 Edwin J. Reis, Esc. Mitti A. Young Office of the General Counsel Attorney p U.S. Nuclear Regulatory Commission Office of the Seneral Counsel Washington, DC 20555 U.S. Nuclear Regulatory Commission Washington, DC 20555 i

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Docket No.(s)50-443/444-OL Al MEMORANDUM AND ORDER - 6/22 4

)

. Diane Curran, Esq. Theses 6. Dignan, Jr. Esq.

Harmon, Curran & Tousley Ropes 6 Bray 2001 S Street N.W., Suite 430 One International Place Washington, DC 20009 Boston, MA 02110 Robert A. Backus, Esq. Paul McEachern, Esq.

Backus, Meyer & Solomon thatnes & McEachern 116 Lowel! Street 25 Maplewood Avenue, P.O. Box 360 Manchester, NH 03106 Portsmouth, NH 03801 Gary W. Holmes, Esc. Judith H. Mirner, Esq.

Heless & Ells Counsel for West *Newbury -

47 Winnacunnet Road 79 State Street Hampton, NH 03042 Newburyport, MA 01950 Barbara J. Saint Andrei Esq.

Suzanne P. Egan Counsel for Asesbury, Newburyport City Solicitor b Salisbury Lagoulis, Hill-Wilton and Rotondi Kopelman and Paige, P.C.

79 State Street 101 Arch Street Newburyport, MA 01950 Boston, MA 02110 Jane Doughty, Director Seacoast Anti-Pollution League Ashed N. Asirian, Esq.

5 Market Street 145 South Main Street, P.O. Box 30 Portsmouth, NH 03801 Bradford, MA 01030 l

George Iverson, Director George W. Watson, Esq.

N. H. Office of Emergency Management Federal Energency Management Agency State House Office Park South 500 C Street, S.W.

107 Pleasant Street Washington, DC 20472 Concord,, NH 03301 Jack Dolan George D. Bisbee, Esq.

L Federal Emergency Management Agency Assistant Attornay General 442 J.W. McCormack (POCH) Office of the Attorney General Boston, MA 02109 25 Capitol Street Concord, NH 03301

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4 Docket No.(s)50-443/444-OL AS MEMORANDUM AND ORDER - 6/22 I

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Suzanne Breiseth John Traficonte, Esq. '

Board of Selecteen Chief, Nuclear Safety Unit Town of Hampton Falls Office of the Attorney 6eneral Drinkwater Road One Ashburt';n Place, 19th Floor ,

Hampton Falls, NH 03B44  !

Boston, MA 02108 '

Peter J..Branni Esq. Allen Laspert l Assistant Attorney General Civil Defense Director Office of the Attorney General Town of Brentwood State House Station, 06 20 Franklin Street Augusta, ME 04333 Exeter, NH 03033 William Armstrong Anne ' Goodman, Chairman Civil Defense Director Board of Selectmen Town of Exeter 13-15 Newmarket Road 10 Front Street Durham, NH 03024 .

Exeter, NH 03033 R. Scott Hill-Whilton, Esq.

Michael Santosuosso, Chairman Lagoulis, Hill-Whilton & Rotondi Board of Selectmen 79 State Street South Hampton, NH 03B27 Newburyport,, MA 01950 Stanley W. Knowles, Chairman Norman C. Katner Board of Selectmen Superintendent of Schools P.O. Box 710 School Administrative Unit No. 21 North Hampton, NH 03862 Alumni Drive Hampton, NH 03042 Sandra F. Mitchell The Honorable Civil Defense Director Gordon J. Humphrey Town of Kensington ATTN: Janet Coit Box 10, RR1 United States Senate East Kingston, NH 03027 Washington, DC 20510 Dated at Rockville, Md. this -

22 day of June 1990 Offici i ~ i hi~ S e c r il a r ~y~ oi"I hi~ C o$ aiiii ~e n

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