ML20151S045
| ML20151S045 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/09/1988 |
| From: | Traficonte J, Weiss E HARMON & WEISS, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#388-6898 OL, NUDOCS 8808150039 | |
| Download: ML20151S045 (8) | |
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DOCKETED USNRC 1
UNITED STATES OF AMERICA
- E0 ME 10 A10:31 NUCLEAR REGULATORY COMMISSION ypm c: -
r, Before Administrative Judges:
Occi[ j h.' ~, :.w..' E Ivan W.
Smith, Chairperson EF : he Gustave A.
Linenberger, Jr.
Dr. Jerry Harbour
)
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In the Matter of
)
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Docket Nos.
PUBLIC SERVICE COMPANY OF NEW
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50-443-444-OL HAMPSHIRE, ET AL.
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(Off-site EP)
(Seabrook Station, Units 1 and 2),
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August 9, 1988
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MASSACHUSETTS ATTORNEY GENERAL'S AND NECNP'S OPPOSITION TO APPLICANTS' MOTION FOR REFERRAL, OR IN THE ALTERNATIVE, CROSS MOTION FOR REFERRAL The Applicants have sought referral by this Board to the Appeal Board of two issues arising from the July 22, 1988 Memorandum and Order admitting certain contentions.
The two issues are:
- 1) whether the permissive presumption set forth in the new emergency planning rule can be rebutted in the absence of a state or local plan; and 2) whether legal impediments rooted in state law constitute a permissible form of rebuttal to this permissive presumption.
The Massachusetts Attorney General ("Mass AG") and New England Coalition on Nuclear Pollution ("NECNP") oppose this motion on the following grounds:
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- 1) The Board's rulings do not raise significant legal questions on which Commission guidance is needed.
As set forth at length in the Mass AG's memorandum of law (in reply to the responses of the Applicants and Staff to the Mass AG's first six contentions), the permissive presumption in the new rule is rebuttable even if the non-participating governments do not proffer an alternative plan.
Further, if state law forbids the delegation of authority contemplated by a utility plan, then this fact would rebut any presumption that the governments would follow that utility plan by delegating such authority.
- 2) This Board's determination of these two entwined issues is simply not in conflict with the Licensing Board's decision in Lgna Island Lichtina Company (Shoreham Nuclear power Station, Unit 1), LBp-88-9, 27 NRC (1980).
First, that Board faced the issue of the "rebuttability" of the presumption in a context in which it had fully litigated for a period of years the adequacy of the utility plan.
Thus, that Board's determination of this issue was heavily fact-based and fact-specific.
Second, the Shoreham Board in rejecting an i
i alleged lack of legal authority as a rebuttal to the presumption, decided that issue in the specific context of New York law.
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If this Board does decide to refer its rulings on the proper interpretation of the new emergency planning rule to the Appeal Board, the Intervenors request that the third facet of that interpretation also be reviewed at this point.
The Board ruled that the best efforts assumption functions as a
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limitation on the evidence that non-participating governments may proffer to rebut a presumption that they would follow the utility plan:
Bearing in mind that we must presume tnat the governments will exercise their best efforts in a radiological emergency, a contention alleging that the best response would be ad han can prevail only if such a response is better than j
following the SpMC or some other plan.
July 22 Order at 20.
This interpretation:
- 1) reads far too much into the "best efforts" assumption;
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- 2) creates an objective "reasonable government standard" of conduct which rejects evidence a priori of a proposed i
l government response if that response is not the "best" as determined and measured well in advance of an actual emergency; 1
- 3) ignores the actual empirical response that the relevant i
i governments indeed would make; and
- 4) overlooks the artificially restricted response and role i
left to the governments by the utility plan at issue in this
- case, i.e.
the SpMC posits that the governments would delegate complete authority to the ORO and not themselves take concrete response actions.
Respectfully submitted, l
JAMES M.
SHANN0d ATTORNEY GENERAL i
4 By:
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n Traficonth sistant Attorney General uclear Safety Unit Department of the Attorney General One Ashburton place Boston, MA 02108 (617) 727-2200 3-
i NEW ENGLAND COALITION ON NUCLEAR POLLUTION UA/ [A Ellyn'Wtliss,1sq.
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By:
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Harmon b Weiss Suite 430 2002 S Street, N.W.
Washington, DC 20009 (202) 328-3500 Dated:
August 9, 1988 f
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00LKEIE0 U9IRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Ea AtB 10 A10:31 0FF W,
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In the Matter of
)
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PUBLIC SERVICE COMPANY OF
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Docket No.(s)
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50-443/444-OL (Seabrook Station, Units 1 and 2)
)
(Off-site EP)
)
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CERTIFICATE OF SERVICE I,
John Traficonte, hereby certify that on August 9, 1988, I made
.id service of the within Massachusetts Attorney General's and NECNP's Opposition to Applicants' Motion for Referral, or in the Alternative, Cross Motion for Referral, by first class mail or Federal Express as indicated by [*],
to:
Ivan Smith, Chairman Gustave A.
Linenberger, Jr.
Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Dr. Jerry Harbour Sherwin E. Turk, Esq.
Atomic Safety & Licensing Board U.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Office of General Counsel Commission 15th Floor East W,st Towers Building 11555 Rockville Pike 4350 Eist West Highway Rockville, MD 20852 Bethesla, MD 20814 i
1
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 Advoc6te Commission State House Station 112 Washington, DC.
20555 Augusta, ME 04333 Roberta C.
Pevear Diana P.
F'ndall 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 Matthew T.
Brock. Esq.
J.
P. Nadeau Shaines & McEachern Board of Selectmen 25 Maplewood Avenue 10 Central Road P.O.
Box 360 Rye, NH 03870 Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A. Canney Board of Selectmen City Manager RFD 1, Box 1154 City Hall Rte. 107 126 Daniel Street E.
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 Senator Gordon J.
Humphrey Edward G. Molin 1 Eagle Square, Suite 507 Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton)
Newburyport, MA 01950
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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.
Ellyn Weiss, 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.
Ropes & Gray Hampe & McNicholas 225 Franklin Street 35 Pleasant Street Boston, MA 02110 Concord, NH 03301 Beverly Hollingworth Ashod N. Amirian, Esq.
209 Winnacunnet Road 376 Main Street Hampton, NH 03842 Haverhill, MA 01830 William Armstrong Michael Santosuosso, Chairman Civil Defense Director Board of Selectmen Town of Exeter Jewell Street, RFD 2 10 Front Street South Hampton, NH 03827 Exeter, NH 03833 Robert Carrigg, Chairman Anne E.
Goodman, Chairperson Board of Selectmen Board of Selectmen Town Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North Hampton, NH 03862 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 i
Exeter, NJ 03833 Commission Washington, DC 20555 Charles P. Graham, Esq.
Barbara St. Andre, Esq.
McKay, Murphy & Graham Kopelman & Paige, P.C.
Old Post Office Square 77 Franklin Street 100 Main Street Boston, MA 02110 Amesbury, MA 01913.
s Judith H.
Mizner, Esq.
R.
Scott Hill-Whilton, Esq.
Lagoulis, Clark, Hill-Whilton Lagoulis, Clark, Hill-Whilton
& McGuire
& McGuire 79 State Street 79 State Street Newburyport, MA 01950 Newburyport, MA 01950
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\\C Traficonte stant Attorney General lear Safety Unit Department of the Attorney General One Ashburton Place Boston, MA 02108-1698 (617) 727-2200 DATED:
August 9, 1988 I
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