ML20056B206

Response of Intervenors to Appeal Board Memoranda & Orders of 900622 & 0717.* Matter Should Be Remanded to Licensing Board Since No Evidence to Establish Assurance That Care for School Children at Holy Cross Adequate.W/Certificate of Svc

ML20056B206
Person / Time
Site:	Seabrook
Issue date:	08/07/1990
From:	Backus R, Curran D, Traficonte J BACKUS, MEYER & SOLOMON, HARMON, CURRAN, SPIELBERG & EISENBERG, LLP., MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20056B193	List: ML20056B192 ML20056B206
References
OL, NUDOCS 9008150198
Download: ML20056B206 (14)

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NUCLEAR REGUIATORY COMMISSION ATOMIC SAFETY AND LICE} SING APPEX90 BeUDie7 PS :39 Before Administrative Judges

, . 7. nT, g . -,7, vi G. Paul Bollwerk III,-Chairman -

Alan S. Rosenthal: ,

Howard A. Wilber-

)

In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, EI AL. )

)

(Seabrook Station, Units 1 and 2) ) August 7, 1990

)

RESPONSE OF THE INTERVENORS TO THE APPEAL BOARD MEMORANDA AND ORDERS OF JUNE 22, 1990 AND Jt'LY 17, 1990  ;

l t INTRODUCTION In its Memorandum and Order of June 22, 1990, this Appeal' Board correctly noted that as a factual matter there.are 4 certain differences in the emergency planning provisions pertaining to school children under the Seabrook Plan for 1

Massachusetts Communities ("SPMC") and the New Hampshire

-nadiological Emergency Response Plan ("NHRERP"). .There are at' ,

least four critical distinctions between the SPMC and NHRERP.

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i First, the SPMC School Host Facility at Holy Cross College in Worcester, Massachusetts is located a substantial distance from the Massachusetts Emergency Planning Zone l

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("EPZ").. By the Licensees' own estimate it will take  ;

approximately an hour and a quarter to an hour and a half to- ,

travel from the EPZ to the School Host Facility in Worcester.

(Tr.21320). Second, while the NHRERP calls for the evacuation of school children to four separate centers, the SPMC locates all school and day-care children from the Massachusetts EPZ at one facility, Holy Cross. The third distinction is that the k NHRERP provides for both the presence of 400 response perstnnel from the New Hampshire Department of Health and Human Services and the Red' Cross to staff the New Hampshire conters while the  !.

SPMC relies solely on accompanying teachers to take care of the children at' Holy Cross. The fourth difference is that while the four centers in New Hampshire will have adult evacuees ,

present, there will be no adult evacuees at Holy Cross.

In its Order dated July.22, 1988, the Licensing Board l

l rejected the Bases N, Q, R, S.1, and U of MAG Contention 47.

The Licensing Board rejected Bases N, Q, R, S. 1 on the ground that those Bases had already been genvrically litigated-in the hearings on the'NHRERP and thus, the record on those issues was closed. Order of July 22, 1988 at 71-73. The Licensing Board q

held that in order to present evidence on those issues, the Massachusetts Attorney General (Mass AG") would have to meet the. standards for reopening a closed record. Order of July 22, 1988 at.72. The Licensing Board rejected consideration of the issues pertaining to Massacousetts school children without considering that the provisions for school children under the N.

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SPMc differed substantially for provisions for school children under the NHRERP as noted above. Furthermore, in making its -

ruling, the Licensing Board overlooked two other factors: i

1) had the Mass AG attempted to introducs evidence concerning Massachusetts school children in the New-Hampshire proceeding it would have been excluded as irrelevant to the issue of how the NMRERP provided for New Hampshire children; 2) the Mass AG could not have raised issues portaining to-Massachusetts teachers under the SPMC in the NKRERP proceeding because the filing deadline for contentions-on the NHRERP preceded the '

development of the SPMC.

In ALAB-932, 31 RRC (May 31, 1990), this Board upheld the findings of the Licensing Board pertaining to school children under the NHRERP. However, in doing no_this Board i distinguished between relying upon teachers to oversee the boarding of children onto evacuation buses and relying upon teachers-to travel " considerable distances from their school and very likely from their homes and families."

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

In ALAB-932, this Board relied on an independent ground as a basis for assurance that school children would be sufficiently provided for whilo on route during an evacuation. That ground was that " bus-drivers will be able to transport the students safely to reception centers, where the students will be cared for and supervised by the l personnel already assigned to staff the contars until such time as they are reunited with their parents or guardians." Id.

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The factual distinctions at ___ (slip opinion at 62-63)..

~between the SPMC and NHRERP preclude such assurance under the SPMC. Furthermore, as discussed below tho -existing evidence of record on the matter of the capability of the American Red-Cross, or other compensatory measures, does not provide for reasonable assurance that school children will~ be adequately supervised and provided for at Holy Cross College.

DISCUSSION The short answer to the first question posed by this Board in its Memorandum and Order of June 22, 1990 is that there is no evidence of record on the capability of the American Red

' Cross to care for and supervise the children at Holy Cross College.. As the Licensees and Staff point out in their responses, the Red Cross will not be called upon to respond to I lioly Cross College. Under the SPMC, the Red Cross' is called E .upon to provide staffing and provisions at congregate care centers. However, the SpMC does not look to the Red Cross'to respond to the School Host Facility at Holy Cross College.

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=This Board's confusion on this point that was apparent in its Order of June 22, 1990 and led to the supplemental Order.of July 17, 1990 has been addressed by the Licensees and Staff in their responses dated July 19, 1990 and July 25, 1990 respectively. The confusion appears attributable to there-being two letters of agreement with Holy Cross College, one dated February 1, 1988 ("The Congregate Care, LOA") and one dated November 30, 1988 ("The School Host Facility LOA").

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. j Under the version of the SPMC that was litigated and introduced into evidence below Massachusetts school children were originally to go to Shriner's Auditorium, the Special ,

Population Facility. The Licensees later changed the l l

designation of Holy Cross Col.lege from that of a Congregate ,

l Care Center to being the School Host Facility. Apparently, )

when the Licensees' contracting personnel marked up the l Congregate Care LOA to make Holy Crose .nto

the School Host ,

1 Facility, references to the Red Cross were not edited out. )

While it is understandable that this Board might have been confused by that editorial error, the Licensees and Staff are correct in the representations made in their filings that at l

the time of the hearings on the SPMC, the Mass.AG understood that the Red Cross was not to be called upon to staff or provide for children at the School Host Facility. (Tr.

21322-21323, 21328-21330) In Mass AG's Proposed Findings L 8.1.66A through 8.1.66E the adequacy of that arrang9 ment was questioned. The short answer to this~ Board's ' first question is l

that there is no evidence of record that anyone other than 1

. teachers or other school staff Will be looked to under the SPMC to care for school and day-care children. There is no evidence L

I of. record on the capability of the American Red Cross to provide such care.

In response to the'second question posed by this Board in 1'

f its Memorandum dated June 22, 1990, the Licensees and Staff suggest that'the concerns raised by this Board in ALAB-932 j

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should be set aside for the following reasons: (1) it-does not make any difference that teachers will be called'upon to go i

considerably ' further under the SPMC than under the NHRERP; (2) the record and the hearings on the NHRERp support the-notion that teachers can be relied upon to continue to care for children; (3) the " realism" doctrine allows for the presumption that teachers can be relied upon to care for children at Holy Cross; and (4) additionally, the Staff apparently relies upon a ,

FEMA review of Holy Cross ac the School Host -Facility that- took place after the close of the record on the SPMC. None of these rationalizations for ignoring the concerns of ALAB-932 withstand scrutiny.

The Licensees and Staff suggest that this Board can ignore the fact that Holy Cross College is an hour and a half from the EPZ on the ground that the Mass AG did not submit any evidence that the longer distance- of lioly Cross f rom the EPZ (in contrast to congregate care centers in New Hampshire) would have any impact on the response of teachers in an emergency.

This argument totally ignores the fact that under the July.22, 1S88 Order of the Licensing Board the Mass AG was completely precluded from introducing ang evidence on teacher behavior.

The Licensees go so far as to-suggest that the intervonors-

.could have filed a late filed contention when IIoly Cross was named as the School Host Facility after November 1988. It is patently absurd to argue that the Licensing Board would have entertained such a contention under the higher late-filed l

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' contention standard-.when it had previously rejected all such issues'in its July 22,-1988 Order. Any evidence that the Mass AG could have introduced on the issue of whather teachers would accompany and stay with children at Holy Cross would have been encompassed under Basis R of MAG 47. Basis R states:

"There is no reasonable ass _urance that _guf ficient teachers,-

or other school thaff. will volunteer on an ad hoc basis to. ,

accomnanY and nunervise the-_ students on evacuation buses, at the Recention Center. and at the Host Special Facility.

ORO Bus Drivers, Route Guides, and other ORO staffers are ,

inadeouate substitutes. Many of the students themselves will simply-not.get on a strange bus driven by a stranger unless a familiar and trusted person rides along with them." (Emphasis added.)

By rejecting tho above quoted Basis, the Licensing Board precluded the Mass AG from submitting any evidence on the issue at hand.

Nor is the record that was introduced in the New Hanpshire .

proceeding adequate to deal with the issue. The Licensees and the Staf'f rely upon the testimony of Mr. Moyer, a New Hampsnire L teacher,-and Dr. Miloti in tho'New Hampshire hearings. Neither piece of testimony is compelling as to the adequacy of the SPMC provisions pertaining to the School Host Facility. Both' witnessos were at best directing their rc:arke to the willingness of teachers to stay for the relatively short amount of time that it would take to load school children onto busses and perhaps, to accompany them to the four congregate care conters in New Hampshire. Neither Dr. Mileti nor Mr. Moyer were addressing their remarks to the likelihood of teachers staying on as the care providers for children at a host 7 -

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' facility. By the Licensees' own calculation, teachers might well be called upon to remain at-Holy Cross for in the range of thirteen and a half. hours. That thirteen-and a half hours is 3

in addition to the amount of time that the teachers would be sitting on the bus prior to reaching the boundry of the EPZ. ,

(Tr. 21319-21323.) It is certainly. reasonable to postulato l

that Massachusetts teachers, upon hearing that they would be required to remain with students to the reception centers and then further across the state to Holy Cross College, would be 1

reluctant to get on an evacuation-bus. Accompanying school )

i children under the SPMC would offectively cut off a teacher for an extended period from contact with his or her family. The l testimony.on the response of teachers under the NHRERP simply does not address the issue of whether teachers could be counted on to remain at the SPMC's School Host Facility because that f was not an issue under the NHRERP.

Both the Licensees and Staff also, point to the " realism"

-doctrine as assurance that teachers will remain at Holy Cross to care for students. That reliance is misplaced for two R reusons. First, it assumes that teacheru who are employed by towns;and school' districts will recognize themselves es employees of the state and respond to a directive of the Governor. Even if one: assumes that the opinion expressed in >

Attachment B to the Calondrello Affidavit is correct, thoro is no evidence that the teachers in-the Massachusetts EPZ are

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1 aware of that opinion or would act in accordance with-it.1/

secondly,leven if one could count upon the " realism" doctrine for assurance that oublic school teachers would accompany and- l stay with school children, the " realism" doctrine ha:n no  ;

applicability to the private school childran and thousands of l day-care children who would also be transported and held at ,

Holy Cross College. The " realism" doctrine is only applicable to public entities. It is inapplicable to the dozens of private day-care facilities in the Massachusetts EPZ. -

The NRC Staff also referencos a review by Richard Donovan of. FEMA of Holy Cross College and the STMC Support Plan Holy Cross Host Facility Activation and Operation Plan ("Sp HFFS 1")

as support for the view that the concerns of ALAB-932 can be ignored. It is clear from the record below that any review that Richard' Donovan did of Holy Cross as a Host School Facility took place after the close of the record on the SPMC.

When FEMA did its original review of Holy Cross it was as a Congregate Care Center. FEMA's finding of adequacy as to Holy-Cross as a Congregate Care Center was the only finding of  !

record in the hearings on the SPMC. .

When FEMA did its original review of Holy Cross, there was no plan or agreement to use Holy Cross as the School Host Facility. (Tr. 21342, 21345.) The School Host Facility LOA 1/ Neither the Calondrello affidavit nor its attachments were part of the record below. ]

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-designating Holy _ Cross College as the' School Host Facility was not signed until November of 1988, long after FEMA did its review of the SPMC's congregate care centers and the Special Population Facility at Shriners Auditorium. Furthernore, the plans that the NRC Staff refer to at page 5 - 6 of its July .3, 1 1990 memorandum reference SPMC Appendix M Revision 1.A. The version of SPMC Appendix M that was litigated in the proceedings below was Revision O. It is at best unclear from the Staff's Memorandum of July 13, 1990, and tho_ Donovan affidavit attached thereto, when Donovan did his review of Holy- I Cross as the School Host Facility or when the supplemental plans were adopted or incorporated. The effective.date of Revision 0 of the SP HFFS 1 is 12/26/89 or roughly six months .

after the close of the record on the SPMC. Certainly, there-is no indication that the SP HFFS 1 or the review referenced in the-DoncVan affidavit were encompassed by the record below.or I

considered by the Licensing Board, i

CONCLUSTON Thus, since there does not appear to be any evidence of 1

l record to establish that there is roasonable' assurance that there are adequate provisions t - the care of school children at Holy Cross, this Board should .emand the matter to the l

l Licensing Board. This issue cannot be properly disregarded under this Board's rationale in ALAB-932. Nor is it reasonable l

to direct the Licensees to simply supplement personnel at Holy Cross. It is clear from the affidavit of Anthony Calendrol;o 10 -

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attached to.the Licensees' July 11, 1990 response that they would simply amend the SPMC to designate route guides to stay on at Holy cross college to care for children. That response to the staffing problem at Holy Cross College is totally inadequate because of the second shift staffing problems for -

route, guides under the SPMC previously noted in Mass AG's appeal to this Board.

Roupectfully submitted, COMMONWEALTH OF MASSACHUSETTS NEW ENGIAND COALITION ON JAMES.M. SHANNON NUCLEAR POWER ATTORNEY GENERAL

'.h'Q \,in M b T !f*k Diano Curran, Esq. L J. >

g n Traficohte Harmon,- Curran, & Towsley e lef, Nuclear Safety Unit Suite 430 One Ashburton Place 2001 S Street, N.W. Boston, MA 02108 .

Washington, DC 20008. (617) 727-2200 SEACOAST ANTI-POLLUTION i LEAGUE'

(, A- At- Vb1 Robert Backus, Esq. Ad Backus, Maytr,=& Solomon 116 Lowell Street P.O. Box 516  ;

Manchester, NH 03106 l 1

l Dated: August 7, 1990 l l

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'w :ar.nte U)NhC UNITED STATEE OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC ' SAFETY AND LICINSING APPEAL BOARD' Before Administrative Judgest ((c M ijiij{Ay BRANc5!

G. Paul-Bollwerk III, Chairman Alan S. Ro.senthal Howard A. Wilbor l

1

)

In the Matter of ) Docket Nos. 50-443-OL

) 50-444-OL PUBLIC SERVICE COMPANY )

OF NEW HAMPSHIRE, LT g. )

)

(Scabrook Station, Units 1 and 2) ) August 7, 1990 ,

I

)

i CERTIFICATE OF SERVICE l I, John Traficonte, hereby certify that on August 7, 1990, I  ?

.made service of the enclosed RESPONSE OF THE INTERVENORS TO THE APPEAL BOARD MEMORANDA AND ORDERS OF JUNE 22,-1990 AND JULY 17, 1990 by telefax as indicated by (*) and by first class mail to:

Ivan W. Smith, Chairman Kenneth A. McCollom Atomic Safoty & Licensing Board 1107 W. Knapp St. '

U.S... Nuclear Regulatory Commission Stillwater, OK 74075

, East' West Towers Building.

4350 Ear". West Highway Bethesda,.MD 20814 J

Dr. Richard F. Cole Robert R. Pierce, Esq.

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East' West Towers. Building East West Towers Building 4350 East West Highway- 4350 East West Highway LBethesda, MD 20814 Bethesda, MD 20814.

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• Docketing and Service

• Thomas G. Dignan. Jr.1/ )

U.S. Nuclear Regulatory Commission Ropes & Gray 1 Washington, DC 20555 One International Place H

-Boston, MA 02110 1

• Mitzi A -Young, Esq. Philip Ahrens, Esq. l E Edwin J. Reis, Esq. Assistant Attorney General j U.S. Nuclear Regulatory Commission Department of the Attorney General )

Office of the General Councal Augusta, ME 04333 1 11555 Rockville Pike, 15th Floor Rockville, MD 20852 l

M'. Joseph Flynn, Esq. Atomic Safety & Licensing Assistant General Counsel Appeal Board Office of General Counsel U.S. Nuclear Regulatory Commission ,

Federal Emergency Management . Washington, DC 20555 l Agency  ;

500 C Street, S.W.

Washington, DC 20472 Robert A. Backus, Esq. Atomic Safoty & Licensing Board Backus, Meyer & Solomon U.S. Nuclear Regulatory Commission 116 Lowell Stroet Washington, DC 20555 .

P.O. Box 516 l Manchester, NH 03106 Jane Doughty Diane Curran, Esq.

Seacoast Anti-Pollution Leaguo Harmon, Curran & Towsley Five Market' Street Suite 430 Portsmouth, NH 03801 2001'S Street, N.W.

Washington, DC 20008 Barbara.St. Andre, Esq. Judith Mizner, Esq.

~Kopelman & Paige, P.C. 79 State Street 77 Franklin Street Second Floor Boston, MA 02110 Newburyport, MA 01950 Charles P. Graham, Esq. R. Scott Hill-Whilton, Esq.

Murphy & Graham Lagoulis, Hill-Whilton & Rotondi  !

33 Low Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950 Ashed N. Amirian, Esq. Sonator Gordon J. Humphrey 145 South Main-Stroot U.S. Sonate P.O. Box 38 Washington, DC 20510

'Bradford, MA 01835 (Attn: Tom Burack)

Senator Gordon J. Humphrey John P. Arnold, Attorney General one Eagle Square, Suite 507 office of the Attorney General Concord, NH 03301 25 Capitol Stroot (Attn: Herb Boynton) Concord, NH 03301 1/ Hand delivery was made on August 8, 1990 by 10!00am

'n6 Paul McEachern, Esq.

Shaines & McEachern 25 Maplewood Avenue, Portsmouth, NH 03801

• G. Paul Bollwerk, chairman

• Alan S. Rosenthal Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board, 5th FL. Appeal Board, 5th TL.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission >

Bethesda, MD 20814 Bethesda, MD 20814

• Howard A. Wilber Jack Dolan Atomic Safety & Licensing Toderal Emergency Management Agency Appeal Board, 5th FL. Region i U.S. Nuclear Regulatory Commission J.W. McCormack Post Office &

Bethesda, MD 20814 Courthouse Building, Room 442 Boston, MA 02109 George Iverson, Director N.H. Office of Emergency Manaqoment State House Office Park South 107 Pleasant Street Concord, NH 03301 l

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Respectfully submitted, JAMES M. SIIANNON ATTqRNEY GENERAL l i

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. ~ f IV lbf ,(

John Trafichnto

,Adsistant Attorney Gonoral .

/ Ahief, Nuclear Safety Unit l

/ Department of the Attorney General 1 One Ashburton Place Boston, MA 02108 (617) 727-2200 l I

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Dated: August 7, 1990 l

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