ML20059N889
| ML20059N889 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/09/1990 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#490-10901 ALAB-937, OL, NUDOCS 9010190104 | |
| Download: ML20059N889 (16) | |
Text
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Octoberg ,g 9 g p3 33 i UNITED STATES OF AMERICA i U ncf 0F SECRf1Miv j before the 00CKlimu A SLkVICL i bHANCH l NUCLEAR REGULATORY COMMISSION l 1
In the Matter of i
PUBLIC SERVICE COMPANY Docket Nos. 50-443-OL l OF NEW HAMPSHIRE, 3.t al. 50-444-OL (Seabrook Station, Units 1 (Offsite Emergency .,
and 2) Planning and Safety ;
Issues) i
. i 5
LICENSEE 8' PETITION FOR REVIEW OF ALAB-937 j The Decision Below In ALAB-937,1 the Appeal Board overturned a decision of the Licensing Board2 issued over two years ago that precluded the Attorney General of Massachusetts (MAG) from re-litigating, in ,
the second, or "SPMC phase," of this proceeding, the issue of whether teachers would respond to assignments under an emergency :
plan to escort children on buses and care for them until picked ,
up by their parents. The basis for the Licensing Board's ruling was that the issue of the responsiveness of teachers had, along 1Public Service Comoany of New Hamoshira (Seabrook Station,
! Units 1 and 2), ALAB-937, NRC (Sept. 18, 1990),
hereinafter cited as ALAB-937 and to the slip opinion.
2ASLB Memorandum and Order (Unoublished) July 22, 1988 at 71-73.
APP 937.53 9010190104 90 goo 9 gDR ADOCK 05000443 PDR g
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l with myriad other human behavior issues, been litigated in the first, or "NHRERP phase," of this proceeding. The decision reversing the Licensir.g Board and requiring still further l
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adjudication in this lengthy proceeding, was based upon three rulings: 1) that the Licensing Board erren in holding that l litigating this issue for a second time was :tnnecessary, for the 1
( reason that the Appeal Board viewed the situations ir v' :
Hampshire and Massachusetts as dissimilar; 2) that the record as to the role of teachers and who would care for the children-absent the teachers was in " disarray;"3 and 3) that 'he; commission's " realism" rule applied only to " persons in leadership positions"' and not to rank and file employees of the
! state or local governments. As seen below, each of these rulings is erroneous.
Where Matters Raised Below ,
All matters were raised by the parties in briefs below or by the Appeal Board gna sconte.
Why the Rulinas Were Erroneous
- 1. The Licensing Board Ruling Excluding the Issue. In L ruling that the Licensing Board improperly excluded Basis R of 1
l MAG Contention 47 as an issue for litigation, the Appeal Board
- l I does not appear to have rejected the basic tenent followed by the I Licensing Board of not allowing the same issue to be litigated 3
ALAB-937 at 14.
'ALAB-937 at 25.
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twice in the proceeding. However, the Appeal Board held that the 4
'l Licensing Board erred, noting thati l "At the very inception of our inquiry, it appeared to us (as it did to MassAG) that there were factual differences pertaining to the operation of the two emergency response plans that might well have a bearing upon the <
likelihood that Massachusetts (as distinguished from New Hampshire) teachers would fulfill their assigned bus escort roles +
as well as upon the necess befulfilledbyteachers."[tythatsuchroles The Appeal Board went on to articulate two differences: (1) the fact that a 60-mile bus ride is involved to Holy Cross College, j the SPMC school host facility, as opposed to shorter distances in i New Hampahire,' and (2) the alleged lack of supervision of the children at Holy Cross if teachers failed to respond.7 The rub ;
is that these reasons are not MAG's, but the Appeal Board's. As ;
pointed out in ALAB-937, at the time the contention, clothed as a basis, was rejected, Holy Cross was not the facility to host i school children. Thus, the particularized argument could not j have been made then as the Appeal Board makes it now.a Indeed, f l :
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5 ALAB-937 at 7 (emphasis supplied).
'ALAB-937 at 7-8, quoting a prior Appeal Board memorandum.
7 ALAB-937 at 8-9.
'Of course, the Appeal Board can raise matters gna sconte, but if it does it must follow the rule laid down in Comanche Peak l
l- for doing so; Texas Utilities Generatina Co. (Comanche Peak Steam Electric Generating Station, Units 1 and 2), CLI-81-24, 14 NRC 614 (1981); Texas Utilities Generatina Co. (Comanche Peak Steam l Electric Generating Station, Units 1 and 2), LBP-81-23, 14 NRC 159 (1981); it has not done so here.
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the original basis as filed,' MAG's reply," and the transcript of the prehearing conference held to give the Intervenors an !
opportunity to argue one more time that the rulings in the Licensing Board's July 22, 1988 Memorandum ruling on contentions were erroneous," all fail to reveal any articulated specific factual distinction between the Massachusetts and New Hampshire situations which would undergird a claim for a second litigation of the willingness of teachers to respond to a duty to take care ;
of children. Moreover, even in MAG's brief before the Appeal [
Board where this issue was argued," when he was fully aware that !
Holy Cross was the host facility to be used for all children," I
' Quoted in ALAB-937 at 18.
"Egolv of Massachusetts Attorney General to the Responses of the NRC Staff and the Aeolicants to Contentions 7 throuah 83 ,
Filed by the Massachusetts Attorney General (June 22, 1988) at 34-35. .
"II. 14282-15705 (Aug. 3-4, 1990). ;
"Brief of Massachusetts Attorney General in Succort of his Aeoeal of LBP-89-32 at 34-35.
"The Appeal Board states in ALAB-937, that:
"(T]he intervenors (including the MassAG) explicitly now agree that 'the SPMC does not look to the. Red Cross to respond to t.he School Host Facility at Holy Cross Ccellege. '"
ALAB-937 at 14 citing The Resoonse of the Intervenors to the l Aeoeal Board Memoranda and Orders of June 22, 1990 and July 17. >
1990 (Aug. 7, 1990) at 4. ALAB-937 at 14 n.29. The Appeal Board chose not to quote further from that same document %nerein the Intervenors also stated:
"(T)he Licensees and Staff are correct in the representations made in their filings that at the time of the hearinas on the SPMC. the MassAG understood that the Red Cross was not
r he still did not put forth these distance and lack of adult supervision arguments now advanced gun sconte by the Appeal Board. Indeed, even at oral argument, these differences were championed only by the Appeal Board." It goes without saying that these allegedly critical differences were never stated to the Licensing Board before it made its ruling on July 22, 1988, nor thereafter, in any form, much less the necessary motion-to ,
reconsider and/or offer of a late-filed contention.
The other difference between the New Hampshire and Massachusetts situation which the Appeal Board references in its' ,
decision is the fact that, unlike the case of New Hampshire, The commonwealth of Massachusetts refused to plan and, thus, the SPMC was a utility plan." The Appeal Board surmises that because SPMC "was issued in the teeth of the insistence of high-level Massachusetts officials that a satisfactory response to a -
Seabrook emergency is simply not achievable,"" this fact alone, "might have some influence on the choice of Massachusetts teachers between accompanying I
their students to a School Host Facility (whether at Holy Cross College or elsewhere) and lookina out for the interests of their to be called uoon to staff or orovide for children at the School Host facility."
Resoonse of the Intervenors to the Acceal Board Memoranda and Orders of June 22. 1990 and July 17, 1990 (Aug. 7, 1990) at 5.
"Transcriot of Oral ArauMED1 (April 18, 1990) at 95-96, 99, 101. 131, 135. MAG did not even necessarily agree on the record that the argument had merit. Egg id. at 387.
"ALAB-937 at 21-22.
"ALAB-937 at 21.
{
own childgen (or other family members) instead."
To be sure, MAG articulated this general proposition at various times in the case. However, like the Appeal Board, he did not advance any basis for believing that teachers would abandon children if the plan was a utility plan but would not do so if it was a state plan. To say that adults will decide whether or not to refuse to accompany children on a bus on the basis of whether the plan that is being carried out is or is not government-sponsored is unconvincing. It is understandable that a decision to go or refuse to go could be influenced by a teacher's desire to look after his or her family, but not by who currently sponsors the plan. knd the issue of whether teachers would refuse to .espond in numbers aufficient to prevent execution of the plan got a thorough airing in the New Hampshire pS.ase of the hearings.
The distinctions drawn between Massachusetts and New Hampshire by the Appeal Board which underlie its ruling in ALAB-937 simply are baseless,
- 2. The " disarray" of the Record. At the outset it should be noted that the approximately nine pages of ALAB-937 devoted alternatively to justifying the Appeal Board's misconception of the record as to the role of the American Red Cross (ARC) at Holy Cross and excoriating the Applicants and Staff for allegedly YALAB-937 at 22.
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misleading that body,'8 actually do nothing to uphold the legal ruling made in the case. The ruling throwing out Basis R was correct or incorrect when made." Therefore, whether or not the Appeal Board was later misled has no role in overruling that Licensing Bosrd decision as a matter of legal analysis.
While we accept, as we must, the Appeal Board's view that it was undt. a misunderstanding as to the role of ARC at Holy Cross, we must confess to some surprise at this because at least one member of the Appeal Board, at oral argument, indicated a correct understanding:
" JUDGE ROSENTHAL: . . . . As I understand it, insofar as the Commonwealth of Massachusetts is concerned, with that portion of the EPZ that is in the Commonwealth, there's no question that it is expected that the school faculty and day-care and nursery schools' staff will go to the school host facility with the evacuated students and will continue to supervise them until the children are released to the custody of parents or guardians or transferred to a concrecate care centor operated bv the American Red Cross.
"Now I draw that from Appliegnt's (sic) re-buttal testimony No. 6 -
'8ALAB-937 at 9-18.
"It should be kept in mind that the contention which the Appeal Board remanded originated as " Basis R" in a statement of basis. There was no further " basis" stated for the contention and thus no factual assertion, as required by Commission regulations, 10 C.F.R. 5 2.714, for supposing that teacher behavior would be influenced by the sponsorship or authorship of the plan. Thus, as a matter of law, this " Basis R" could not qualify for admission as a contention.
20 Anneal Board Tr. (Apr. 18, 1990) at 92 (emphasis added).
In ALAB-937, the Appeal Board suggests that it was led into misconception by a remark of Applicants' Counsel in oral argument. ALAB-937 at 11. This is the statement in full l
In any event, the Appeal Board (and perhaps the Licensing Board)21 stood alone in a state of misconception. As is clear from their own papers'i none of the parties were under any such l nisunderstanding at trial." This being the case it is difficult j to see how any reversible error can result from the " disarray" theory. Furthermore, we leave to the Commission the issue of whether the testimony is not clear. It is reproduced as an 1
Appendix hereto, and it demonstrates that it was talking to the future change that would be made in the SPMC. Thus, it was fully J consistent with-the SPMC in evidence, and the LOA relied on by context:
"Again I will fall back to the Commission position. I don't know of any reason why you can't put the children on a bus with a route guide and a bus driver and take them there ,
and it'll make a little more work for the Red Cross at the other end but move them out -- i if you don't believe the teacher will stay."
Acceal Board Tr. (Apr. 18, 1990) at 99. However, when the Licensees suggested in their response to the Appeal Board's June 22, 1990 order that this statement might have been what had misled the Appeal Board, the Appeal Board in its July 17, 1990 Memorandum and order stated flatly that Licensees' Counsel's statement was-n21 the basis of its misconception. Anoeal Board Memorandum and Order (July 17. 1990), unpublished at 2.
tilt is not clear that the Licensing Board was under a misunderstanding. Paragraph 9.14 of the Initial Decision (LBP-89-32) refers to "two dedicated Congregate Care Centers for
- special needs populations" which are " generally administered by ARC." This is literally a true statement because the Shriners' Auditorium and the Westboro facility (Eng 19.15 at p. 553) are congregate care centers anticipated to be staffed by ARC.
22 Egg note 13, supra.
"The staff may have been at the appellote level, but nothing it filed or said at trial indicated that it was under any misapprehension. ,
L the Appeal Board by virtue of that fact alone, and it made
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-f perfectly clear that ARC would not be running the Holy Cross facility.
- 3. The Ruling as to Realism. The Appeal Board holds that the realism doctrine does not apply to rank and file in government, but only to those "in leadership positions." This ruling is insupportable. To say that realism applies only to the Governor, or his civil Defense Director, but not the thousands of State employees he may need in an emergency, is to render the realism doctrine meaningless. The Commission cannot have meant that realism was to stop at the State House or the Mayor's Office. As to the Private and Parochial School teacher argument, even if they do not respond and, instead, abandoned their charges, which they will not, there will be more than enough public school teachers to handle the job.
CONCLUSIL4 The status of the Record and the reality of the world is as follows: There is no evidence of teachers abandoning their children in time of emergency anywhere in the United States at any time. Tr. 3967, 3969, 6625-26. Licensees' witness, Dr.
Mileti, testified to his expert opinion that most teachers would respond in an emergency. Aco. Dir. No. 7, ff. Tr. 5622 at 126-
- 27. MAG's own experts put in data confirming that opinion.
Ziecler et al. Dir., ff. Tr. 7849 at 49. Further, FEMA has approved the plan, thus giving a rebuttable presumption in favor of teacher response. If, as the Appeal Board portends, 10,000
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children show up at the College of the Holy Cross, in Worcester, Massachusetts, without teachers, they will be well out of radiological danger, and they will not find an abandoned campus.
It is a certainty that if the Jesuits and their staff, not to mentioned assigned ORO staff, cannot provide custodial care for them, the Governor of the Commonwealth will send in trained l l
personnel who can (for example, teachers from Worcester, (Massachusetts' second largest city) who will have no families in danger). In short, we are about to extend litigation of Seabrook i j
Into its nineteenth year for an issue which involves no substance
! in the real world or safety significance in the hypothetical one.
The Commission should review and reverse this unsupported and i
insupportable decision.
Respectfully submitted, Thomas G. Dignan, Jr.
George H. Lewald Kathryn Selleck Shea Jeffrey P. Trout i Ropes & Gray One International Place '
Boston, MA 02110-2624 (617) 951-7000 counsel for Licensees l
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APPENDIX
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The following appears at page 25 of Applicants' Rebuttal No.
1 6:
"It is expected that school faculty and day care / nursery school staff arriving at the i School Host Facility with evacuated ,
students / children will continue to supervise them until the children are released to tl.e custody of parents or guardians, or i transferred to a Congregate Care Center operated by the American Red Cross."
At pages 60-61 of that same testimony appears:
"The SPMC provides for several categories of facilities which assist evacuees during an i emergency. By definition, these categories include. .
" Host Hospitals' located outside the EPZ which '
are designated as relocation facilities for the patients from EPZ hospitals and for those EPZ nursing home patients and special needs individuals who require continuing medical y services . Reception Centers ?here evacuees are directed initially for registration, monitoring and, if necessary, decontamination. From the Reception Centers, evacuees will be directed to a School Host Center or Congregate Care Center.
"A School Host Center where all public and private school students and Day Care Center and Nursery school evacuees are taken on a short-term basis until they are reunited with their parents or guardians. Activities will be coordinated by ORO cersonnel.
"f&DREfaate Care Centers where EPZ evacuees can be accommodated for an extended period of time. Such facilities are ooerated by the American Red Cross to provide sleeping and feeding arrangements." (Emphases added.)
At page 65 of that same piece of testimony, the following appears:
" Concurrent with the efforts in the fall of 1988 to update the SPMC data regarding special populations, as well as the-continuing efforts to develop additional supporting resources, NHY planners modified and expanded the concept of dedicated Host Facilities for these categories of inaividuals.
"The revised concept involves assigning the public and private school populations, including day care center and nursery schools, to a single, dedicated School Host center. The remaining special populations, including nursing home patients and staff, special facility residents and staff, and special needs individuals, will be assigned to a dedicated Congregate Care Facility.
"A subsecuent amendment to the SPMC will_,
reflect that a School Host Center has been desionated in Worcester. MA and that Shriners' Auditorium in Wilmington, MA will be utilized as the primary Congregate Care Conter for other evacuating EPZ special populations." (Emphasis supplied.)
l CLCAEiED I U$NRC !
1 CERTIFICATE OF SERVICE 30 DCT 10 P3:33 i I, Thomas G. I Licensees herein, Dignan,Jr.,oneoftheattorneys,[9f0 hereby certify that on October 9,$,for.th,e
,21 SEs,d@Y !
service of the within document by depositing copies there{hn sl'th' ,
Federal Express, prepaid, for delivery to (or where indicated, by J depositing in the United States mail, first class postage paid, I addressed to) the individuals listed below:
Kenneth M. Carr, Chairman Thomas M. Roberts, Commissioner U.S. Nuclear Regulatory U.S. Nuclear Regulatory i Commission Commission l One White Flint North One White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 Forrest J. Remick, Commissioner James R. Curtiss, Commissioner j U.S. Nuclear Regulatory U.S. Nuclear Regulatory commission Commission One White Flint North- One White Flint North 4 11555 Rockville Pike 11555 Rockville' Pike {
Rockville, MD 20852 Rockville, MD 20852 Kenneth C. Rogers, Commissioner William C. Parler, Esquire !
U.S. Nuclear Regulatory General Counsel ;
commission Office of the General Counsel i One White Flint North One White Flint North l 11555 Rockville Pike 11555 Rockville Pike Rockville, MD 20852 Rockville, MD 20852 l G. Paul Bollwerk, III, Chairman Mr. Howard A. Wilber i Atomic Safety and Licensing Atomic Safety and Licensing ]
i- Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commis-lon s Fifth Floor Fifth Floor 4350 East-West Highway 4350 East-West Highway Bethesda, MD 20814 Bethesda, MD 20814 Alan S. Rosenthal, Esquire Mr. Thomas S. Moore !
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel
} U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Fifth Floor Fifth Floor 4350 East-West Highway 4350 East-West Highway l
Bethesda, MD 20814 Bethesda, MD 20814 l
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Administrative Judge Ivan Smith Administrative Judge Kenneth A. i Chairman, Atomic Safety and McCollom +
Licensing Board 1107 West Knapp Street U.S. Nuclear Regulatory
- Stillwater, OK 74075 Commission East West Towers Building ,
4350 East West Highway i Bethesda, MD 20814 {
Administrative Judge Richard F. H. Joseph Flynn, Esquire ,
Cole, Atomic Safety and Office of General Counsel Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Agency Commission 500 C Street, S.W.
East West Towers Building Washington, DC 20472 4350 East West Highway Bethesda, MD 20814 Mr. Richard R. Donovan Diane Curran, Esquire Federal Emergency Management Andrea C. Ferster, Esquire Agency Harmon, Curran & Tousley Federal Regional Center Suite 430 130 228th Street, S.W. 2001 S Street, N.W.
Bothell, WA 98021-9796 Washington, DC 20009 Robert R. Pierce, Esquire George Dana Bisbee, Esquire Atomic Safety and Licensing Associate Attorney General Board Office of the Attorney General U.S. Nuclear Regulatory 25 Capitol Street Commission Concord, NH 03301-6397 Eest West Towere Building 4350 East West Highway Bethesda, MD 20814 Adjudicatory File Mitzi A. Young, Esquire f
Atomic Safety and Licensing Edwin J. Reis, Esquire Board Panel Docket (2 copies) Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory
( Commission Ctsmission ,
East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852 1'
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- Atomic Safsty and Licensing Robert A. Backus, Esquire Appeal Panel Backus, Meyer & Solomon ;
U.S. . Nuclear Regulatory 116 Lowell Street ;
Commission P.O. Box 516 '
Mail Stop EWW-529 Manchester, NH 03105 j Washington, DC 20555 4 Philip Ahrens, Esquire Suzanne P. Egan, City Solicitor Assistant Attorney General Lagoulis, Hill-Whilton &
Department of the Attorney Rotondi General 79 State Street Augusta, ME 04333 Newburyport, MA 01950 i l
Paul McEachern, Esquire Stephen A. Jonas, Esquire Shaines & McEachern Leslie Greer, Esquire j g Maplewood Avenue Matthew Brock, Esquire ;
P.O. Box 360 Massachusetts Attorney General Portsmouth, NH 03801 Ona Ashburton Place Boston, MA 02108 ]
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquiro U.S. Senate Lagoulis, Hill-Whilton &
Washington, DC 20510 Rotondi (Attn: Tom Burack) is Otate Street 01950 Newburyport, MA t
- Senator Gordon J. Humphrey Barbara J. Saint Andre, Esquire One Eagle Square, Suite 507 Kopelman and Paige, P.C. ;
i Concord, NH 03301 101 Arch Street (Attn: Herb Boynton) Boston, MA 92110 l
Ashod N. Amirlan, Esquire Judith H. Mizner, Esquire l 145 South Main Street 79 State Street, 2nd. Floor ,
P.O. Box 38 Newburyport, MA '1950 . ,
Bradford, MA 01835 Gary W. Holmes, Esquire Marjorie Nordi..ger, Esquire Holmes &'Bils Office of the G9neral Counsel 47 Winnacunnet Road One White Flint North 11555 Rockville P.ke
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Hampton, NH 03842 Rockville, MD 20802 Mr. Jack Dolan Federal Emergency Mant.gement
-Agency - Region I ;
J.W. McCormack Post Office &
Courthouse Building, Room 442 Boston, MA 0210G George Ive rson, Director N.H. Of fic e of Emergency Management State Hous e Office Park South 107 Pleast.nt Street Concord, .4H 03301 c'-
Thomas G'. Dignan, Jr.