ML20136H580

Answer Opposing Licensee 851105 Petition for Review of ALAB-819 Re Medical Svcs for Onsite Contaminated Injured Individuals.Certificate of Svc Encl

ML20136H580
Person / Time
Site:	Limerick
Issue date:	11/20/1985
From:	Hodgdon A NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD)
To:	NRC COMMISSION (OCM)
References
CON-#485-270 ALAB-819, OL, NUDOCS 8511250138
Download: ML20136H580 (14)

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DOCKETED UNITED STATES OF AMERICA NUCLEAR REGULATORY COMISSION

, '85 NOV 21 A10:36 BEFORE THE COPNISSION p

• CrncE or ugm ;:,,CCCHE In the Matter of BRA Nc.8 PHILADELPHIA ELECTRIC COMPANY DocketNos.50-352)G 50-353 f

(LimerickGeneratingStation, Units 1and2)

NRC STAFF ANSWER IN OPPOSITION TO LICENSEE'S PETITION FOR REVIEW 0F ALAB-819 Ann P. Hodgdon Counsel for NRC Staff November 20, 1985 ygji $8$$ $$bb 2 G

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION i

l' BEFORE T,HE COMMISSION In the Matter of PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352 50-353 (Limerick Generating Station, Units 1 and 2)

NRC STAFF ANSWER IN OPPOSITION TO LICENSEE'S PETITION FOR REVIEW OF ALAB-819 Ann P. Hodgdon Counsel for NRC Staff November 20, 1985

i l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

, , BEFORE THE COMMISSION

, In the Matter of PHILADELPHIA ELECTRIC COMPANY Docket Nos. 50-352

) 50-353 (LimerickGeneratingStation, )

Units 1 and 2) )

NRC STAFF ANSWER IN OPPOSITION TO LICENSEE'S PETITION FOR REVIEW 0F ALAB-819 I. INTRODUCTION On November 5, 1985, Licensee Philadelphia Electric Company filed a petition pursuant to 10 C.F.R. 6 2.786 requesting the Commission to take review of an issue decided in ALAB-819 concerning medical services for onsitecontaminatedinjuredindividuals.1/ In ALAB-819, the Appeal Board decided all appeals from the Atomic Safety and Licensing Board's Second Partial Initial Decision 2/ in favor of the Applicant, except for one issue concerning the adequacy of backup medical services for onsite work-ers contaminated and injured in a radiological emergency, on~which the Appeal Board reversed and remanded to the Licensing Board for further proceedings. ALAB-819 at 49.

For the reasons discussed below, the NRC staff opposes the Licensee's

. petition and urges that it be denied.

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-1/ PhiladelphiaElectricCompany((LimerickGeneratingStation, Units 1 and 2), ALAB-819, 22 NRC October 22,1985).

2/ LBP-84-31, 20 NRC 446 (1984),

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II. BACKGROUND 4

The Comission's emergency planning regulations require that arrange-

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ments be made for medical services for onsite contaminated injured individuals. 10C.F.R.950.47(b)(12).Section IV.E of Appendix E to 10 C.F.R. Part 50 describes the emergency equipment, facilities and ar-rangements for which "[a]dequate" provisions must be made. Two items are relevant to the pending petition:

6. Arrangements for transportation of contaminated injured individuals from the site to specifically identified treatment facilities outside the site boundary;

7. Arrangements for treatment of individuals injured in support of licensed activities on the site at treatment facilities outside the site boundary.

In addition, Planning Standard L.1, set forth in NUREG-0654, 3/ addresses the type of arrangements that would satisfy these criteria. These ar-rangements should include " local and backup hospital and medical services having the capability for evaluation of radiation exposure and uptake, including assurance that persons providing these services are adequately prepared to handle contaminated individuals." NUREG-0654, Rev. I at 69.

Intervenor Limerick Ecology Action's (LEA) Contention VIII-12(a) alleged, in relevant part, that PEC0's onsite plans failed to demonstrate that adequate arrangements had been made or would be made for medical services for contaminated injured individuals onsite, as required by 10 C.F.R. I 50.47(b)(12) in that

. . . The plans contain an agreement with Pottstown Memorial Hospital, a facility only two miles from the site, to provide 3/ Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, NUREG-0654; FEMA-REP-1 Rev. 1.

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emergency treatment to contaminated patients. In a general emergency, the hospital will be required to evacuate its own patients, which will preclude acceptance and treatment of

. radiation victims coming from the site. The status of medi-cal support from the Hospital of University of Pennsylvania is unclear as well . . . . These are the only two hospitals

. listed in the Plan as available for medical services to on-site contaminated victims."

The majority of the Licensing Board rejected LEA's proposed finding that the Applicant should make arrangements for care of the contaminated in-jured with a hospital less vulnerable to evacuation than Pottstown but closer than the Hospital of the University of Pennsylvania, which is lo-cated at approximately forty-five minutes driving time from Limerick. See 20 NRC at 532, 1 E-63. The majority noted that although it agreed with LEA that it would be prudent to make more formal arrangements with a third hospital, it declined to require such an arrangement. 20 NRC at 536, 1 E-74 Judge Brenner, in dissent, stated the issue as "whether there are adequate arrangements for the care of the contaminated injured in a radio-logical emergency which requires the evacuation of Pottstown Memorial,"

and concluded, "I think there are not." 20 NRC at 536-37, 1 E-77.

LEA appealed from LBP-84-31. In ALAB-819, the Appeal Board indicated its agreement with Judge Brenner's dissent and remanded the issue of back-up medical services to the Licensing Board for further consideration.

ALAB-819 at 49 4/. However, the Appe.1 Board found the deficiency in the Licensee's emergency plan to be not so significant as to warrant license 4/

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On November 18, 1985, the Licensee filed with the Licensing Board its " Proposal For Resolution of Remanded Issue Regarding Licensee's Medical Arrangements for Contaminated Injured Onsite Personnel,"

pursuant to the Licensing Board's Order of October 28, 1985.

suspension pending the outcome of the remanded proceeding. ALAB-819 at 49-50.

In determining to reverse the Licensing Board's decision, in part, and to remand for further proceedings, t'he Appeal Board observed that th Licensing Board majority had not found the Hospital of the University of Pennsylvania to be adequately close to the plant (ALAB-819 at 42), but rather had reached its judgment on the basis of four other factors: , ,

1. theremotenessoftheprobabilItyofPottstownMemorialMedical Center's being unavailable,

2. the " claimed capability" of 19 other hospitals in the area to '

handle patients on anc ad hoc basis in an emergency,

3. the assumption that the staffs of Pottstown Memorial Medir;al Center, Radiation Management Corporation 5/ and the Hospital of the University of Pennsylvania would assist one another in an emergency

4. the fact that sheltering, rather than evacuation, is'~the first option in a general ^ emergency.

ALAB-819 at 42-43, citing LBP-84-31, 20 'NRC at 536.

As regards the remoteness of the probability of the need to evacuate Pottstown Memorial Medical Center, the Appeal Board ruled that the majori-ty gave it undue weight, in light of the fact that the Commission's emer-gency planning regulations require planning for remote probabilities.

ALAB-819 at 43.

!/ Radiation Management Corporation (RMC) is the Applicant's contrac-tor. Through an agreement with RMC, the Hospital of the University (FOOTNOTE CONTINUED ON NEXT PAGE) <

y Regarding the second factor, the Appeal Board found that there was no basis in the record for the majority's reliance on the mere existence of

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nineteen other hospitals in the area in the absence of arrangements with those hospitals. The Appeal Board noted in this regard that a decision subsequent to LBP-84-31, GUARD v. NRC, 753 F.2d 1144 (D.C.Cir 1985), had

,. , struck down a Commission decision on a related, though distinguishable issue, 6_/ in which reliance was placed on a mere " list" where the Commission's regulations required " arrangements." The Appeal Board quoted with approval the Court of Appeals' statement that "A provision calling for pre-event arrangements is not sensibly met by post-event prescrip-tions." ALAB-819 at 46, n.45.

On the third factor, the Appeal Board found there was no record basis f-l for the majority's assumption that mutual assistance provided by Pottstown Memorial Medical Center, Radiation Management Corporation and the Hospital of the University of Pennsylvania would militate against the need for a closer backup hospital. ALAB-819 at 47. The Appeal Board, based on its consideration of these three factors, concluded that the majority's findings were not supported by the record. Id.

s (FOOTNOTE CONTINUED FROM PREVIOUS PAGE)

. of Pennsylvania would receive contaminated injured when it could provide specialized personnel and equipment that Pottstown Memorial could not. 20 NRC at 531, 1 E-62.

-6/ . The GUARD decision concerns an offsite issue, where the instant petition concerns arrangements for onsite personnel.

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III. DISCUSSION Although the Comission has the discretion to review any decision of its subordinate boards, a petition for Comission review "will not ordi-

- i narily be granted" unless important environmental, safety, procedural, common defense, antitrust, or public policy issues are involved.

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10 C.F.R. 6 2.786(b)(4).

The Licensee asserts that the Appeal Board's decision regarding the backup hospital issue is erroneous and that it raises important questions of law and Comission policy. Petition at 1, 3. However, the Petition fails to demonstrate that such issues are, in fact, raised, and thus that Comission review is warranted.

The Licensee's argument rests on two main points: 1) that, in over-turning the Licensing Board's finding that Philadelphia Electric Company's arrangements for a backup hospital were adequate; the Appeal Board in effect established a new rule, imposing requirements in addition to those found in 10 C.F.R. Part 50 and Appere f I egarding the proximity of the backup hospital (Petition at 2); w L, f vt the Appeal Board imposed a requirement that the Comission's regulations in 10 C.F.R. 9 50.109 would o  :

not permit the Staff to impose absent a finding of a substantial and cost-justified increase in overall protection of the public safety. Peti-tion at 3-4.

The Staff does not believe that either of'these arguments has merit.

i A. The Appeal Board's ruling depends on a finding that the Licensing i Board's conclusion regarding backup medical services lacked record l support.

l The Licensee's argument that the Appeal Board's disposition of the I i

backup hospital issue is inconsistent with a number of determinations made

by the Staff in other cases concerning medical services arrangements for onsite contaminated injured individuals is based on its reading of ALAB-819 as ruling as a matter of law that a backup hospital located 45 minutes driving time from a nuclear facility is inadequate. See Peti-tion at 3, 10. However, the Licensee's reading of ALAB-819 as establish-ing a generic emergency planning standard is unwarranted. The Appeal Board reversed the Licensing Board not because the Appeal Board thought that arrangements with a backup hospital at a distance of a 45-minute drive were inadequate per se, but because the Licensing Board majority relied on unsupported assumptions in reaching a determination regarding the adequacy of PECO's arrangements for backup medical services and thus did not have a record to support its conclusion. Accordingly, the Licens-ee's argument that the Commission has uniformly approved arrangements with backup hospitals at the same or greater distances from the plant (Petition at 2) is simply irrelevant.

The Appeal Board's decision was based not on a comparison of the emergency plans for Limerick with those for other facilities, but on the record evidence of this Licensee's plans and arrangements as measured against the Commission's regulations. The six-page appendix that the Licensee has attached to its Petition, Appendix A, does show that other plants have been licensed with onsite plans incorporating arrangements with backup hospitals at greater distances than the Hospital of the Uni-versity of Pennsylvania is from Limerick. However, an argument based on l' this information is not persuasive where the decision of which review is sought is based on the insufficiency of the record before the Licensing Board rather than, as the Licensee argues, on a generic requirement re-l garding proximity.

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The Licensee's characterization of the rationale of the Appeal Board's decision notwithstanding, ALAB-819 does not have generic applica-tion to every plant in the country. (Petitionat3).

. The decision by the Appeal Board in ALAB-819 stands for the principle that a conclusion that a backup hospital meets the Comission's regulatory requirements must be based on a record that shows that there is support for the determination that arrangements for backup medical services are adequate.

B. Section 50.109(a)(3) is not applicable to ALAB-819.

The Licensee argues that the Commission's regulation in 10 C.F.R. 5 50.109(a)(3) precludes the Staff from imposing the kind of "backfit" that the Appeal Board imposed by ALAB-819 absent a determination of sub-stantial and cost-justified increase in overall protection of the public safety based on a systematic and documented analysis. 10 C.F.R. 50.109; 50 Fed. Reg. 38097 at 38112, September 20, 1985 (Petition at 3-4). This argument has many features in comon with the argument that ALAB-819 in-corporates an impermissible generic requirement. However, the Licensee is mistaken in believing that 10 C.F.R. 5 50.109(a)(3) is applicable to the Appeal Board's decision in ALAB-819. The issue before the Appeal Board was what the Licensee needed to show in order to demonstrate compliance with the regulations in 10 C.F.R. 5 50.47(b)(12). The Appeal Board deter-mined that, inasmuch as the Licensing Board majority's conclusion that the

. Licensee's arrangements for backup medical services were tainted by reli-ance on unsupported assumptions, the arrangements could not be shown to be adequate and that, therefore, additional arrangements should be made.

Such a situation is addressed in the backfit rule. Specifically, 9 50.109(a)(4) states:

Theprovisionsofparagraphs(a)(2)and(a)(3)ofthissec-tions are inapplicable and, therefore, backfit analysis is not required and the standard does not apply where the staff finds and declares, with appropriate documented evaluation for its finding . . .

(1) That a modification is necessary to bring the fa-cility into compliance with a license or the rules or orders of the Comission . . .

Had the Licensee's argument regarding backfit been raised before the Ap-peal Board, it would have had the opportunity to make the finding required by 9 50.109(a)(4) for exceptions. However, the Licensee did not raise the argument before the Appeal Board and, to the extent that the argument could have been raised, it should be precluded as a basis for a request for Comission review. 10 C.F.R. 9 2.786(b)(4)(iii).

Accordingly, the Licensee's argument concerning the Comission's recently revised backfit rule lacks merit.

IV. CONCLUSION As discussed above, the Licensee has failed to show that ALAB-819 raises an important question of law and Comission policy. Accordingly, the Commission should deny the Licensee's petition for review.

Respectfully submitted,

W L- \-

S O ed l

Ann P. Hodgdon Counsel for NRC Staff Dated at Bethesda, Marylar.d this 20th day of November, 1985

accxcita USnRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

'85 NOV 21 A10:36 BEFORE THE COMMISSION 0FFiLE OF SEm ?;

GCCMiilaG 4 SEng..

In the Matter of ) BRANCH 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 "NRC STAFF ANSWER IN OPPOSITION TO LICENSEE'S PETITION FOR REVIEW OF ALAB-819" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated by an asterisk ti, rough deposit in the Nuclear Regulatory Comission's internal mail systen, this 20th day of November,1985:

Samuel J. Chilk Herzel H. E. Plaine, Esq.

Office of the Secretary General Counsel U.S. Nuclear Regulatory Comission Office of the General Counsel Washington, D.C. 20555* U.S. Nuclear Regulatory Commission Washington, D.C. 20555*

Helen F. Hoyt, Chairperson (2) Mr. Edward G. Bauer, Jr.

Administrative Judge Vice President & General Counsel Atomic Safety and Licensing Board Panel Philadelphia Electric Company U.S. Nuclear Regulatory Comission 2301 Market Street Washington, D.C. 20555* Philadelphia, PA 19101 Dr. Richard F. Cole Troy B. Conner, Jr. , Esq.

Administrative Judge Mark J. Wetterhahn, Esq.

Atomic Safety and Licensing Board Panel Conner and Wetterhahn U.S. Nuclear Regulatory Comission 1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20555* Washington, D.C. 20006 Dr. Jerry Harbour Mr. Marvin I. Lewis Administrative Judge 6504 Bradford Terrace Atomic Safety and Licensing Board Panel Philadelphia, PA 19149 U.S. Nuclear Regulatory Comission Washington, D.C. 20555* Joseph H. White, III 15 Ardmore Avenue Mr. Frank R. Romano Ardmore, PA 19003 Air and Water Pollution Patrol 61 Forest Avenue Ambler, PA 19002 l

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t Ms. Phyllis Zitzer, President Kathryn S. Lewis, Esq.

Ms. Maureen Mulligan 1500 Municipal Services Bldg.

Limerick Ecology Action 15th and JFK Blvd.

... 762 Queen Street Philadelphia, PA 19107 Pottstown, PA 19464

'. Thomas Gerusky, Director Zori G. Ferkin Bureau of Radiation Protection Governor's Energy Council Dept. of Environmental Resources P.O. Box 8010 5th Floor, Fulton Bank Building 1625 N. Front Street Third and Locust Streets Harrisburg, PA 17105 Harrisburg, PA -17120 Spence W. Perry, Esq.

Director Associate General Counsel Pennsylvania Emergency Management Federal Emergency Management Agency Agency Room 840 Basement. Transportation & Safety 500 C Street, S.W.

Building Washington, D.C. 20472 Harrisburg, PA 17120 Robert J. Sugarman, Esq.

Robert L. Anthony Sugarman, Denworth & Hellegers Friendsoof the Earth of the 16th Floor Center Plaza Delaware Valley 101 North Broad Street 103 Vernon Lane, Box 186 Philadelphia, PA 19107 Moylan, PA 19065 James Wiggins Angus R. Love, Esq. Senior Resident Inspector l Montgomery County Legal Aid U.S. Nuclear Regulatory Commission l 107 East Main Street P.O. Box 47 Norristown, PA 19401 Sanatoga, FA 19464 l

l Charles W. Elliott, Esq. Atomic Safety and Licensing Brose & Poswistilo Board Panel l 325 N. 10 Street U.S. Nuclear Regulatory Cort..ission

! Easton, PA 18042 Washington, D.C. 20555*

Atomic Safety and Licensing Appeal David Wersan Board Panel (8)

! Consumer Advocate U.S. Nuclear Regulatory Commission Office of Attorney General Washington, D.C. 20555*

1425 Strawberry Square Harrisburg, PA 17120 Docketing and Service Section Office of the Secretary

. Jay Gutierrez U.S. Nuclear Regulatory Commission Regional Counsel Washington, D.C. 20555*

USNRC, Region I b 631 Park Avenue King of Prussia, PA 19406*

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Gregory Minor MHB Techr.ical Associates 1723 Hamilton Avenue

.: San Jose, CA 95125 Steven P. Hershey, Esq.

Community Legal Services, Inc.

5219 Chestnut Street Philadelphia, PA 19139 Timothy R. S. Campbell, Director Department of Emergency Services 14 East Biddle Street West Chester, PA 19380 tML. . o o Ann P. Hodgdon Counsel for NRC Staff I i

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