ML20148Q993

Supplemental Memorandum of Atty General,Jm Shannon,In Support of Motion to Admit late-filed Contention & Reopen Record.* W/Certificate of Svc

ML20148Q993
Person / Time
Site:	Seabrook
Issue date:	01/28/1988
From:	Jonas S MASSACHUSETTS, COMMONWEALTH OF
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
Shared Package
ML20148Q971	List: ML20148Q993
References
OL-1, NUDOCS 8802020022
Download: ML20148Q993 (12)

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3 DOCKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 30 as 29 P3 ATOMIC SAFETY AND LICENSING APPEAL gp W orEiW W' 00C O G " "U I' Administrative Judges: P #' *'

Alan S. Pcsenthal, Chairman Howard A. Wilber

)

IN THE MATTER OF ) Docket Nos.

) 50-443-OL-1 PUBLIC SERVICE COMPANY OF ) 50-443-OL-1 NEW HAMPSHIRE )

) (On-Site Emergency (SEABROOK STATION, UNITS 1 and 2) ) Planning and Safety

) Issues)

January 28, 1988 SUPPLEMENTAL MEMORANDUM OF ATTORNEY GENERAL JAMES M. SHANNON IN SUPPORT OF MOTION TO ADMIT LATE-FILED CONTENTION AND REOPEN THE RECORD I. INTRODUCTION On November 13, 1988, Massachusetts Attorney General James M. Shannon ("Attorney General") filed a contention and motion to admit the contention and to reopen the record addressing the City of Newburyport's dismantling and removal of emergency notification sirens. On January 7, 1988, the Attorney General filed similar papers with respect to the dismantling and removal of all the remaining emergency notification sirens within the Massachusetts portion of the EPZ. The Applicants 8802020022gy$0 43 PDR ADOCK pgg G

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then represented to the-towns within the EPZ and subsequently acknowledged to this Board.that they would no longer rely on ,

pole-mounted sirens to satisfy their burden of demonstrating  ;

that means exist to provide early notification and clear instruction to the Massachusetts population within the EPZ.

Notwithstanding that they have not revealed an alternative system, the Applicants ask this Board not to reopen the record and base that request on a misstatement of the facts underlying the removal of the sirens and a misapprehension about the law of estoppel and the criteria for reopening the record in NRC proceedings.

l II. ARGUMENT A. The Actions At Issue Were Taken By The Selectmen Of The Various Communitiesi/ In Response To A Federal Court Order.

l On December 16, 1987, the United States Court of Appeals for the First Circuit ruled that PSNH was unlikely to prevail on the merits of its lawsuit against the Town of West Newbury,

't Massachusetts, challenging the town's attempt to remove the sirens located in it. Public Service Co. of New Hampshire v.

Town of West Newbury, F.2d (No. 87-1395) (1st Cir.

4 December 16, 1987). In 1984, PSNH had applied for and received

!' 1/ The January 7, 1988 Contention of the Attorney General also 3

raises the removal of the Applicants' siren from the Salisbury Beach State Reservation. The removal resulted from the nonrenewal of New Hampshire Yankee's Special Use Permit by the Massachusetts Department of Environmental Management. See Exhibits 2 and 3 to January 7, 1988 Contention.

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permits from the Town's BcTrd of Selectmen to install the poles. In March, 1987, the Selectmen determined that they had granted the permit without statutory authority and ordered PSNH to remove the poles. Id. slip. op. at 2. When PSNH refused, the Board held a public hearing, at which PSNH presented its arguments, and reviewed the utility's post-hearing submission.

The Board then reaffirmed its earlier order. Id. slip, oo, at 2.

After examining the purported statutory authority for the permits, M.G.L. c. 166, SS21, 22 (governing construction of transmission lines and associated facilities) and other potential statutory authority, M.G.L. c. 40, S3 (governing towns' holding, leasing and conveying of property), the First l Circuit concluded that the Selectmen probably had issued the permits without the requisite authority. Id. slip, op. at 7-11. Therefore, the Court affirmed the District Court's denial of a preliminary injunction againnt removal of the sirens sought by PSNH. Id. slip. op. at 12.

The First Circuit's decision was followed by votes of the Boards of Selectmen of West Newbury and the other Massachusetts communities (which had issued the permits under the same, apparent authority) to instruct PSNH to remove the sirens within their respective towns. See letters attached as Exhibit 1 to January 7, 1988 Contention. The opposition of these communities to the licensing of Seabrook Station is well understood. However, the towns determined, and the First 3-

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n Circuit agreed, that .

they probably had no authority to permit the installation of the sirens in the first_ place. That determination was made by the towns, not by the Commonwealth, its agencies, or the Attorney General.

The Applicants' characterization of the towns' actions as part of a systematic plot orchestrated by the Commonwealth and r its agencies to destroy the early notification system reveals a misunderstanding of applicable law as well as of relevant fact.

Generally, the Home Rule Amendment to the Massachusetts Constitution grants cities and towns broad municipal powers, largely independent of the state government. Mass. Const, amend, art. 89, art. 2, S1 ("It is the intention of this article to reaffirm the customary and traditional liberties of the people with respect to the conduct of their local govern-ment and to grant and confirm to the people of every city and town the right of self-government in local matters . . .").

See Board of Appeals of Hanover v. Housing Appeals Committee, 363 Mass. 339, 358 (1973) ("Municipalities are now [after the 1966 enactment of the Home Rule Amendment] free to exercise any

power and functions excepting those denied to them by their own charters or reserved to the State by S7, which the Legislature i has the power to confer on them , . . "). Those powers include full legislative authority, subject to control by the state legislature.2/

g Bloom v. Worcester, 363 Mass. 136, 150, n.9 2/ The Applicants have made no claim that the Massachusetts Tegislature notification is part of any "conspiracy" to destroy the early system.

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I (1973) (quoting from 1966 Senate Doc. No. 846 at 18).

Moreover, Chapter 166 of the Massachusetts General Laws, under which PSNH initially received its siren permits, sets forth a two-tiered procedure, which preserves the distinction between municipal activity on the one hand and state activity on: the other, for obtaining permission to construct transmission lines. Under section 22, the company first petitions the Board of Selectmen of the town where the construction is proposed to take place. If the petition is denied, the company may petition the Commonwealth's Department of Public Utilities for the approval the municipality refused or neglected to give.

The independence of the towns from the various state executive officials the Applicants point to is, therefore, well-established as a matter of Massachusetts law.

B. The Commonwealth should Not Be Precluded For Seeking A Reopening Of The Record.

The Applicants' "estoppel" or "waiver" argument, candidly acknowledged by them to be a "novel one in NRC jurisprudence,"

should be rejected.

First, the activities of the towns were not the activities of the Commonwealth. In any event, they were fully consistent with, and perhaps even mandated by state law.2/

Second, it is clear from Heckler v. Community Health 3/ For these reasons, the Applicants' far-fetched analogy of the towns' decisions to the action of a trespasser and vandal in a nuclear power plant (Applicants' Answer at 6) merits no serious response, i

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Services of Crawford County, Inc., 467 U.S. 51, 61-63 (1987),

that a private party cannot base an estoppel on a government's See invalid extension of a privilege to that private party.

~~id.

at 60 ("it is well settled that the Government may not be Holahan v.

estopped on the same terms as any other litigant.");

Medford, 394 Mass. 186, 191 (1985) ("In general, we are

' reluctant to apply principles of estoppel to public entities where to do so would negate requirements of law intended to protect the public interest'."); Gamache v. Mayor of North Adams, 17 Mass. App. 291, 294 (1983) ("Generally, the doctrine of estoppel is not applied against the government in the exercise of its public duties, or against the enforcement of a statute.").

Third, the Applicants' argument that there should be no evidentiary hearing, since to do so would "reward" the Commonwealth for its claimed misdeeds, only obscures the Applicants' -own failure to meet NRC and FEMA regulations and guidelines.

It is the Applicants' responsibility, not the intervenors' responsibility, to establish an early notification They have not done system that can withstand legal scrutiny.

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C. The Criteria For Reopening Are Met.

The Applicants conclude that in order for a determination to be made on the reopening criteria this Board should delay I

its ruling on the motion to reopen until a new warning system They reach that l

has been proposed. Applicants' Answer at 11.

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conclusion by' arguing that the Licensing Board could not have reached a different result had this evidence been proffered because no appropriate contentions were before it. But, of course, no contentions were filed with the Licensing Board on the issue because the sirens had not been removed at that time. The only sensible way to apply the materially different result criterion here is to assume that the Licensing Board would have had jurisdiction to hear the evidence by virtue of the filing of appropriate contentions. The Applicants' reading would create the anomaly that new evidence so extensive and potentially serious as to require new contentions would be a weaker candidate for reopening than new evidence that relates only to an existing contention.

The Applicants' argument is merely another plea for more -

time to create a new notification system and to postpone indefinitely a necessary reopening of the record. Once again, the Applicants attempt to turn NRC procedure on its head.

Their failure to provide any information on this critical safety system is not a reason to keep a now deficient record closed. Rather, it is an entirely sufficient reason to reopen 1

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4' the record'and postpone low-power operation until the issue is fully resolved.AI JAMES M. SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS

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Stephen A.,Jonas Assistant Attorney General Deputy Chief Public Protection Bureau One Ashburton Place Boston, MA.02138 (617) 727-4878 DATED: January 28, 1988 4/ The Applicants have ignored the Attorney General's request at page 3 of his January 7, 1988 Contention "that this Board issue an order" that a low-power license not issue unless and until the Applicants have demonstrated compliance with section 50.47(b)(5). Applicants' Answer at 2. Contrary to the Applicants' claim, such an order would not be premature once the record is reopened. This Board has already found that the off-site notification system is "within the ambit of on-site emergency planning." ALAB-679 at n.4.

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'J5HR0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 18 sMN 29 P3 :52 ATOMIC SAFETY AND LICENSING APPEAL BOARQF H S . .- .

Administrative Judges: it .-

Alan s. Rosenthal, Chairman-Howard A. Wilber

)

IN THE MATTER OF ) Docket Nos.

) 50-443-OL-1 PUBLIC SERVICE COMPANY OF NEW ) 50-444-OL-1 HAMPSHIRE, ET.AL. ) (On-Site Emergency STATION, UNITS 1 and 2) ) Planning and Safety

) Issues)

)

January 28, 1988 CERTIFICATE OF SERVICE I, Stephen A. Jonas, hereby certify that on' January 28, 1988 I made service of the within document by mailing copies thereof, postage prepaid, by first class mail, or as indicated by an asterisk, hand delivered, or as indicated by double asterisk by Federal Express mail, or as indicated by a triple asterisk by telecopier, to:

Ivan Smiths Chairman Gustave A. Linenberger, Jr.

Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commissi Commission East West Towers Building l East West Towers Building 4350 East West Highway 4350 East West Highway Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 L

l Bethesda, MD 20814 Dr. Jerry Harbour **Sherwin E. Turk, Esq.

Atomic Safety & Licensing Board Office of the Executive Legal U.S. Nuclear Regulatory Director l

Commission U.S. Nuclear Regulatory Commissi East West Towers Building Tenth Floor 4350 East West Highway 7735 Old Georgetown Road Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD -20814

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H. Joseph Flynn,_Esq. Stephen E. Merrill

' Assistant General Counsel Attorney General Office of. General Counsel George Dana Bisbee Federal. Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street,.S.W. 25 Capitol Street Washington, DC 20472 Concord, NH 03301

• • Docketing and Service Paul A. Fritzsche, Esq.

U.S. Nuclear Regulatory Office of the Public Advocate Commission State-House Station 112 Washington, DC. 20555 Augusta, ME 04333 Roberta C. Pevear Diana P. Randall State Representative 70 Collins Street Town of Hampton Falls Seabrook, NH 03874 Drinkwater Road Hampton Falls, NH 03844

• • • Atomic Safety & Licensing Robert A. Backus, Esq.

Appeal Board Panel Backus, Meyer & Solomon U.S. Nuclear Regulatory 116 Lowell Street

. Commission P.O. Box 516 Washington, DC 20555 Manchester, NH 03106 Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution League U.S. Nuclear Regulatory 5 Market Street Commission Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq. J. P. Nadeau Matthew T. Brock, Esq. Board of Selectmen Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A. Canney

Board of Selectmen City Manager j RFD 1, Box 1154 City Hall Route 107 126 Daniel Street East Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Angelo Machiros, Chairman U.S. Senate Board of Selectmen

! Washington, DC 20510 25 High Road Attn: Tom Burack Newbury, MA 10950 l Senator Gordon J. Humphrey Peter J. Matthews l 1 Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall

( Attn: Herb Boynton Newburyport, MA 01950 l

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4 Donald E. Chick William Lord Town Manager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 Brentwood Board of Selectmen _ Gary W. Holmes, Esq.

RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road Hampton, NH 03841 Philip Ahrens, Esq. Diane Curran, Esq.

Assistant Attorney General Harmon & Weiss Department of the Attorney Suite 430 General 2001 S Street, N.W.

State House Station #6 Washington, DC 20009 Augusta, ME 04333

• Thomas G. Dignan, Esq. Richard A. Hampe, Esq.

George H. Lewald, Esq. Hampe & McNicholas Ropes & Gray 35 Pleasant Street 225 Franklin Street Concord, NH 03301 Boston, MA 02110 Beverly Hollingworth Edward A. Thomas 209 Winnacunnet Road Federal Emergency Management Hampton, NH 03842 Agency 442 J.W. McCormack (POCH)

Boston, MA 02109

, William Armstrong Michael Santosuosso, Chairman l Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2

10 Front Street South Hampton, NH 03827 I

Exeter, NH 03833 Robert Carrigg, Chairman Anne E. Goodman, Chairperson l Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 l Allen Lampert Sheldon J. Wolfe, Chairperson Civil Defense Director Atomic Safety and Licensing Town of Brentwood Board Panel i 20 Franklin Street U.S. Nuclear Regulatory Commission l Exeter, NH 03833 Washington, DC 20555 l

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f Dr. Emmeth A. Luebke Charles P. Graham, Esq.

Atomic Safety & Licensing Board McKay, Murphy & Graham U.S. . Nuclear Regulatory Old Post Office Square Commission 100 Main Street East West Towers Building Amesbury, MA 01913 4350 East West Highway Third Floor Mailroom Bethesda, MD 20814 Judith H. Mizner, Esq. **Howard A. Wilber Silvergate, Gertner, Baker, Atomic Safety & Licensing Fine, Good & Mizner Appeal Board 88 Broad Street U.S. Nuclear Regulatory Commission Boston, MA 02110 East West Towers Building Third Floor Mailroom 4350 East West Highway Bethesda, MD 20814 Rep. Edward J. Markey, Chairman ** Alan S. Rosenthal, Chairman U.S. House of Representatives Atomic Safety & Licensing Subco.nmittee on Energy Appeal Board Conservation and Power U.S. Nuclear Regulatory Commission Room H2-316 East West Towers Building.

House Office Building Third Floor Mailroom Annex No. 2 4350 East West Highway Washington, DC 20515 Bethesda, MD 20814 Attn: Linda Correia

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Steph'en A. J,an a s Assistant Attorney General Deputy Chief Public Protection Bureau Department of the Attorney General One Ashburton Place Boston, MA 02108-1698

! (617) 727-4878 l

DATED: January 28, 1988 i

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