ML20056A365

NRC Staff Response to Aslab Memorandum & Order of 900717.* Advises That NRC Maintains Earlier Position That School Host Facility at Holy Cross College Will Not Be Staffed by American Red Cross.W/Certificate of Svc

ML20056A365
Person / Time
Site:	Seabrook
Issue date:	07/25/1990
From:	Chan E NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
CON-#390-10666 ALAB-730, ALAB-732, ALAB-808, CLI-86-11, OL, NUDOCS 9008070129
Download: ML20056A365 (12)

Text

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/066fo I0thLTED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION

% JUL 26 All:36 BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD

$0ChSiSORANei!

GShv#f[

i In the Matter of )

) Docket Nos. 50 443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, g1 al. ) Off site Emergency Planning

)

'(Seabrook Station, Units 1 and 2) )

NRC STAFF RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF JULY 17,1990 E'aine I. Chan Counsel for NRC Staff 4

July 25,1990

88o X860 388?n'a g PDR DS<7

UNITED STATES OF AMERICA i NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD l

In the Matter of )

) Docket Nos,50-443 OL PUBLIC SERVICE COMPANY OF ) 50-444 OL NEW HAMPSHIRE, el al, .) Off site Emergency Planning-

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

NRC STAFF RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF JULY 17.1990 I, INTRODUCTION In its July 17,1990 Memorandum and Order the Appeal Board requested that the Applicants and NRC Staff advise the Appeal Board in a supplemental memorandum on the following questions, 1, Does it appear iu the record that the . SPMC and the- -

November 30,1988 LOA between Holy Cross College and the l lead applicant were amended 'in -respects relevant to the matter of ARC involvement in the operation of the School Host Facility? If so, when (according to the record) did those amendments occur and what (according to the record) does the SPMC and the LOA now provide with respect to the responsibility for the superintendence and staffing of the School' Host Facility?

2. If the record does not establish that the SPMC and the November 1988 LOA have been amended in relevant part, how should the previously noted provisions of those documents be reconciled with the present position of the applicants and staff that we erroneously. assumed in -our June. 22 memorandum and order that the ARC "is to' operate the school host facility at Holy Cross College"? In' this connection, as it appears in the SPMC, what was the intended meaning of the phrase "will- provide staff to operate"?

Further, as found in the LOA, what'was the intended meaning of the phreses "under the direction of College officials in i conjunction with the American Red Cross" and, with specific

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L l 2-reference to the temporary shelter function of the School

~ Host Facility, "under the auspices" of the American Red Cross"? If ' direction" and " auspices were intended for LOA purposes to have some special meaning that would exclude ARC involvement in the operation and staffing of the School Host Facility, where in the record is that special meaning explained?  !

Memorandum and Order, July 17,1990 at 5 6. As set forth below, the Staff maintains- ,

its position that the American Red Cross has no role at the School Host Facility.

II. DISCUSSION l A. The record does not contain amendments to the SPMC and the November 30,1988 LOA because arrangements with Holy Cross College were not finalized befoie the record closed.

The amendment of the SPMC to delete the role of the American Red Cross

(" ARC") at the School Host Facility was not made a part of the evidentiary record of the proceeding below. However, the record of the proceeding clearly shows that the parties understood that the SPMC would be revised so that the ARC would not be designated to provide resources at the School Host Facility. The proceedings below were conducted on the predicate that the ARC would not be relied upon to provide resources to school host facilities. Both examination by Intervenor's counsel (Greer, Tr.

21328 29) at the hearing and Massachusetts Attorney General's ("MassAG") proposed findings'show that the parties to the proceeding below clearly understood that the ARC would not provide staffing or respond at the School Host Facility. -

Applicants' prefiled testimony explained that school faculty and day care / nursery school staff arriving at the School Host Facility would be expected to supervise children

' h1assachusetts Attorney General James M. Shannon's Proposed Findings of Fact, Rulings of Law, and Conclusions With Respect to the Seabrook Plan for Afassachusetts Communities and the Exercise Contentions, ("MassAG Proposed Fdg.") August 14,'1989 at 8.1.66.D.

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until they are released to the custody of their parents or guardians, or transferred to an ARC-operated congregate care center. Applicants' Rebuttal No. 6, ff. Tr. 21049, at 25

("Appls. Reb. No. 6").2 That testimony delineated the various categories of facilities which would assist evacuees during an emergency and noted that evacuees arriving at reception centers would be directed to a " School Host Facility or Congregate Care Center " Id. at 60. As to these two facilities, Applicants stated that activities at the School Host Facility "will be coordinated by ORO personnel" and that Congregate Care Centers "are operated by the American Red Cross to provide sleeping and feeding arrangements." /d. at 60-61.

The record below does not contain changes to the SPMC and letters of agreement

("LOAs") deleting the role of the ARC at the School Host Facility at Holy Cross College. Those amendments did not become part of the record because arrangements for the use of the large college campus as a School Host Facility were not finalized and negotiations concerning the facility were not. complete. See Sinclair, Tr. 21329 30; Licensees' Response to Appeal Board Memorandum and Order of July 17,1990, dated July 19,1990, (" July 19 Response") at 110.3 Applicants' prefiled testimony, however, 2

The record further shows that other resources were being considered to provide aid in caring for children at Holy Cross College, including the staff and students at that college and evacuated high school students who could assist in caring for young children.

Tr. 21329 30, 21,322-23, 1

3

l. Licensees admit that while the November 1988 LOA, inadvertently, has not been revised, the School Host Facility support plan for Holy Cross College which became effective in October 1989 (Licensees' Response to Appeal Board Memorandum and Order of June 22, 1990, dated July 11, 1990, Affidavit of Anthony M. Callendrello, Attachment D, " Massachusetts School Host Facility Plan, College of the Holy Cross,

)

Worcester, Massachusetts," dated 10/2/89)is the controlling document. July 19 Response at 8-10. The Staff agrees.

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did indicate that a School Host Facility had been designated in Worcester, MA and that ,

a a subsequent amendment to the SPMC would document the designation. Appls. Reb.

No. 6 at 65. In addition, cross-examination by counsel for the MassAG revealed that i

Holy Cross College was being changed from a congregate care facility to the Schoo! ,

Host Facility. Tr. 21328 30; Tr. 22680-81.

p Finally, the MassAG's proposed findings ,

recognized that Applicants *do not plan to have the Red Cross respond to the school host facility." MassAG Proposed Finding 8.1.66.D.

B. Revisions to the SPMC Provide ARC Staffing for the Congregate Care Facilities Only The Appeal Board's second question asks "how should the previously noted provisions (of the SPMC and the LOA) be reconciled with the present position of the applicants and staff that [the Appeal Board) erroneously assumed . . . that the ARC 'is to operate the School Host Facility at Holy Cross CollegeT " As stated, the evidence at the hearing indicated that those documents were being amended so as not to provide a role for the ARC at the School Host Facility. Thus, there is no need to reconcile the earlier documents with the scheme for the care of evacuated children litigated in this proceeding.

The task is to assure that the documents are amended to reflect this scheme and see that adequate provision is made for evacuated children.'

The ultimate question is not whether the ARC will staff the School Host Facility, but whether the plan provisions with respect to school children provide " reasonable

. assurance that adequate protective measures can and will be taken in the event of a 4

' The Appeal Board in its Order of July 17,1990, also asked what was the meaning of phrases in the LOA referring to the ARC. As we have indicated, litigation below was conducted on the predicate that the ARC was not relied upon to provide aid at the-School Host Facility. Appls. Reb. No. 6 at 60 61; Tr. 21328-30; MassAG Proposed Fdg.

8.1.66.D.

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i radiological emergency" persuant to 10 C.F.R. I 50.47(a)(1). ORO personnel, as i supplemented by volunteers such as school teaching staff who may choose to continue supervising children at the facility,s and the "best efforts" response of state and local officials in an actual emergency6 should be adjudged adequate to provide sufficient 5

Appls. Reb. No. 6 at 25.

6 10 C.F.R. 6 50.47(c)(1)(iii). The Commission in amending 10 C.F.R. I 50.47(c) '

to specifically encompass instances where state or local governments declined to participate in emergency planning stated:

In this rule, the Commission adheres to the

" realism doctrine," enunciated in its 1986 decision in Long Island Lighting Co. (Shoreham Nuclear .

Power Station, Unit 1), CL18613,24 NRC 22, which holds that in an actual emergency, state and local governmental authorities will act to protect their citizenry, and that it is appropriate for the NRC to take account of that self evident fact in evaluating the adequacy of a utility's emergency plan. The NRC's realism doctrine is grounded squarely in common sense. As the Commission stated in LILCO, even where state and local officials " deny they ever would or could cooperate with [a utility) either before or even during an accident," the NRC " simply l cannot accept these statements at face value."

l 24 NRC 22,29 fn.9. It would be irrational for l anyone to suppose that in a real radiological l emergency, state and local public officials would

refuse to do what they have always done in the l

event of emergencies of all kinds: do their best  !

to help protect the affected public.

? .

The presiding Licensing Board should not hesitate to reject any claim that state and local

, officials will refuse to act to safeguard the health and safety, of the public in the event of an actual emergency. In actual emergencies, state, local, and federal officials have invariably done (continued...)

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6-personnel to supervise and care for children at Holy Cross College in the event of a radiological emergency.

The Commission has emphasized the predictive nature of emergency planning _

findings. Statement of Consideration on Emergency Planning and Preparedness, (10 C.F.R. 6 50.47(a)(1)), 47 Fed. Reg. 30232 30235 (July 13,1982); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), CLI 86-11, 23 NRC 577, 581 (1986). The Appeal Board has recognized that emergency response plans need not be in final form in order for conclusions to be reached that they will provide reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency. Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

ALAB 808,21 NRC 1595,1601 (1985); Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit 2, ALAB 730,_17 NRC 1057,1066 (1983). What is required is that a plan be sufficiently developed to permit a board to make its " reasonable assurance" finding.

Id. As we- have detailed, the record clearly reflected that distinct staffing provisions were to be made for the designated School Host Facility in order to predicate a finding i

of reasonable assurance that adequate provisions can and will be taken to care for the l

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, their utmost to protect the citizenry, as two hundred years of American history amply demonstrates.

Statement of Consideration on Amenaments to 10 C.F.R. 6 50.47(c)(1), 52 Fed. Reg. 42078,42082,42085 (Nov. 3,1987); see also Marsachusetts v. United Sm/es,856 F.2d 378, 383 (1st Cir.1988). Holy Cross College is in Worcester, Man nsetts, a major L metropolitan area in that state.

7.

I children at the School Host Facility.'

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The Staffs earlier statements that the ARC had no role at the School Host i

Facility were made with the knowledge that Applicants' testimony stated the SPMC would be amended to reflect the new arrant,ements with the school host facility. - Appls.

Reb. No. 6 at 65. The Staff also assumed, pursuant to Applicants' commitment, that any references in the SPMC, the implementing procedures and facility support plans regarding the revised facility arrangements, including staffing, would be amended to reflect the final agreement. See Louisiana Power & Light Co. (Waterford Steam Electric Station, Unit 3), ALAB 732,17 NRC 1076,1103 04,1106 07 (1983). As Ucensees have stated in their July 19 Response, those revisions have been substantially implemented.-

l III. CONCLUSION 1

For the reasons discussed above, the NRC Staff maintains its earlier position that the School Host Facility at Holy Cross College will not be staffed by the ARC. While i

the version of the SPMC that was received into evidence does not reflect plan revisions to that effect, the record of the proceeding shows that the SPMC was to be revised to i

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' In note 4 in its Order of July 17,1990, at p. 4, the Appeal Board pointed to an inconsistency between the Ucensing Board's finding in LBP 89 32, 30 NRC 375, 552 (1989) and the Ucensees' and NRC Staffs assertion that the ARC is not expected at

' Holy Cross College. The Licensing Board was correct in that there are two Congregate Care Centers for special needs to be staffed by the ARC. These are the facilities at the Shriners Auditorium in Wilmington, Massachusetts and the back-up facility in Westboro, Massachusetts. However, the facility at Holy Cross College was not to be staffed by the ARC. Appls. Reb. No. 6 at 60-61; Tr. 21328 30.

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change Holy Cross College from a congregate care facility to a School Host Facility and not to set out a role for the ARC at that facility.

Respectfully submitted,

~

N. _. .

l Elaine I. Chan ,

Counsel for NRC Staff Dated at Rockville, Maryland this 25th day of July,1990 ,

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9

e DNP UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 9 g 26 g) G6 L^* BEFORE THE ATOMIC SAFETY AND LICENSING APPEAIShdNbi -

w gum l

In'the Matter of )

) Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF ) 50444 OL NEW HAMPSHIRE,11 al. ) Off site Emergency Planning  !

) .

(Seabrook Station, )

Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO APPEAL BOARD MEMORANDUM AND ORDER OF JULY 17,1990" 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, by deposit in the Nuclear Regulatory Commission's internal mail i

tystem, or as ' indicated by double asterisks, by facsimile transmission, or as indicated by triple asterisks, by express mail, this 25th day of July,1990:

Ivan W. Smith, Chairman (2)' Thomas G. Dignan,-Jr., Esq."

Administrative Judge - Robert K. Gad, III, Esq, Atomic Safety and Licensing Ropes & Gray Board One International Place '

U.S. Nuclear Regulatory Boston, MA 02110-2624 Commission Washington, DC 20555 Peter Brann, Esq.

- Assistant Attorney General Richard F. Cole

• Office of the Attorney General-Administrative Judge State House Station 6.

Atomic Safety and Licensing Augusta, ME- 04333 Board U.S. Nuclear Regulatory Diane Curran, Esq."

Commission Harmon, Curran &-Tousley Washington, DC 20555 2001 S Street, NW

• Suite 430' Kenneth A. McCollom"' Washington, DC 20009' Administrative Judge 1107 West Knapp Street John Traficonte, Esq."

Stillwater, OK 74705 Assistant Attorney General Office of the Attorney General One Ashburton Place,19th Floor Boston, MA 02108 w .m - =

l l

2-

. John P. Arnold Allen Lampert Attorney General .l Civil Defense Director  !

George Dana Bisbee Town of Brentwood Assistant Attorney General .20 Franklin Street Office of the Attorney General Exeter, NH 03833 -

25 Capitol Street Concord, NH 03301 William Armstrong 1

Civil Defense Director t

Robert A. Backus, Esq. Town of Exeter i Backus, Meyer & Solomon 10 Front Street l 116 I_owell Street Exeter, NH 03833 Manchester, NH 03106 l

Gary W. Holmes, Esq.

HJ. Flynn, Esq. Holmes & Ellis Assistant General Counsel 47 Winnacunnet Road Federal Emergency Management Hampton, NH .03842 Agency 500 C Street, SW Barbara J. Saint Andre, Esq.

Washington, DC 20472 Kopelman and Paige, P.C.

Counsel for Amesbury, Jack Dolan Newburyport & Salisbury Federal Emergency Management _ 101 Arch Street Agency Boston, MA 02110

( Region I l J.W. McCormack Post Office & Judith H. Mizner, Esq.

Courthouse Building, Room 442 Counsel for West Newbury Boston, MA 02109 79 State Street .

Newburyport, MA 01950 Paul McEachern, Esq.

Shaines & McEachern Robert Carrigg, Chairman 25 Maplewood Avenue Board of Selectmen P.O. Box 360 Town Office Portsmouth, NH 03801 Atlantic Avenue North Hampton, NHL 03862

George Hahn, Esq.

Attorney for the Examiner Mrs. Anne E. Goodman, Chairman Hahn & Hesson Board of Selectmen-350 5th Ave., Suite 3700 1315 Newmarket Road New York, NY 10118 Durham, NH 03824 R. Scott Hill Whilton, Esq. Hon. Gordon J. Humphrey

. I.agoulis, Hill-Whilton United States Senate

& Rotondi 531 Hart Senate Office Bldg.

79 State Street Washington, DC 20510 Newburyport, MA 01950

Y

.- 3 Richard R. Donovan Jane Doherty, Director Federal Emergency Management Seacoast Anti Pollution league Agency 5 Market Street

. Federal Regional Center Portsmouth, NH 03801 130 228th Street, SW Bothell, WA 98021 9796 Robert R. Pierce, Esq.*

Atomic Safety and Licensing Peter J. Matthews, Mavor

' Board Panel City Hall U.S. Nuclear Regulatory Newburyport, MA 01950 Commission Washington, DC 20555 Michael Santosuosso, Chairman Board of Selectmen Atomic Safety and Licensing South Hampton, NH 03827 Appeal Panel (6)"

U.S. Nuclear Regulatory Ashod N. Amirian, Esq. Commission Town Counsel for Merrimac Washington, DC 20555' 145 South Main Street P.O. Box 38 Atomic Safety and Licensing Bradford, MA 01835 Board Panel (1)*

U.S. Nuclear Regulatory Suzanne Breiseth Commission Board of Selectmen Washington, DC 20555 Town of Hampton Falls Drinkwater Road Office of the Secretary (2)* l Hampton Falls, NH 03844 U.S. Nuclear Regulatory Commission George Iverson, Director Washington, DC 20555 ,

NH Office of Emergency Attn: Docketing and Service '

Management Section State House Office Park South 107 Pleasant Street Concord, NH 03301 4

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Elaine 1. Chan Counsel for NRC Staff 4

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