ML20196A870
| ML20196A870 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 06/20/1988 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20196A797 | List: |
| References | |
| OL, NUDOCS 8806300136 | |
| Download: ML20196A870 (52) | |
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! 00LKETED-J U5NRC 58 JLN 27 P4 :30 UNITED' STATES OF AMERICA "-
N_UCLEAR REGULAToCY COMMISSION pre g g;;;r,:.fJ:;
'Before Administrative Judges: OCCEb E F 'WG M- V'I #U-
Ivan W. Smith,. Chairperson Gustave A. Linenberger, Jr.
Dr. Jerry Harbour s )
)
In the' Matter of )
) Docket Nos.
PUBLIC SERVICE COMPANY OF NEW ) 50-443-444-OL HAMPSHIRE, ET AL. ) (Off-site EP)
(Seabrook Station, Units 1 and 2), ) June 20, 1988
)
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REPLY OF THE MASSACHUSETTS ATTORNEY GENERAL TO~THE RESPONSES OF THE NRC' STAFF AND THE APPLICANTS TO THE FIRST SIX CONTENTIONS FILED BY THE MASSACHUSETTS ATTORNEY GENERAL INTRODUCTION The Massachusetts Attorney General ("Mass.AG") submits this reply.to the responses by the Shaff and the Applicants to its
~ first six contentions. Because of the importance of these r
contentions to.the scope and extent of this proceeding and the
-inherent complexity of the issues raised by these contentions, this reply is submitted in the form of a memorandum of law.
The Mass AG will file in a separate pleading a reply to the responses by the Staff and the Applicants to its remaining contentions.
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-Procedural Context Resolution of the issue of the admissibility of the Mass AG's.first.six contentions requires the interpretation of the new Commission rule set forth at 10 CFR 50.47(c)(1). No controlling case law exists at all to guide this Board.'s decision.1' As a result, this Board should look to the language of the new regulation and its plain meaning, the regulatory context into which this regulation was placed, and the administrative history of its' adoption. That history, in this instance, includes the Supplementary Information published with the new rule at 52 Fed. Reg 42078-42086 (November 3, 1987), the Commission's seminal decision in Lona Island hightina Co., (Shoreham Nuclear Power Station, Unit 1),
CLI-86-13, 24 NRC 22 (1986) (hereinafter "CLI-86-13") which the new rule "amplifies and clarifies," 52 Fed. Reg. at 42084, and the statements and representations made by the Commission to the First Circuit Court of Appeals concerning the proper
,, 1/ There exists only one prior NRC decision, a Licensing Board opinion in the Shoreham case, interpleting 10 CFR 50.47(c)(1).
Licensing Board decisions are not controlling on other Boards.
Moreover, as discussed in more detail iaCta, whatever the inherent merits of that decision, it arises out of the specific procedural and decisional history of the Shoreham proceeding and is dependent upon that Licensing Board's interpretation of the law of the State of New York.
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[ interpretation of.this new rule.A#
This Board must interpret this new regulation in a specific context: at the contentions stage. Thus, as the law of the-admissibility of contentions makes clear, this Board may not reach'the merits of these contentions but must accept the well-pleaded averments as established. As a result, the issue of their admissibility is an issue of law only. This consideration is particularly relevant here because the rule contains a presumption and the contentions, in part, are designed to rebut that presumption. Obviously, the fact that the contentions set forth mere declarations or allegations which without more would not rebut the presumption is no basis for not admitting them because contentions gua contentions are limited in scope and purpose. As a consequence, to strike well-pleaded contentions that challenge the pivotal presumption in the rule, is to hold that presumption irrebuttable as a matter of law with respect to the issues presented by those contentions.
Not only must this Board, at least in the first instance, give meaning to the Commission's new rr'e and do so at a particular stage of this proceeding, bue it must also, at a fundamental level, acknowledge and reinforce the rule of law.
2/ The Supplementary Information is attached as Exhibit 1, CLI-86-13 is attached as Exhibit 2, the Brief of the Commission filed with the First Circuit as Exhibit 3, and an unofficial transcript of portions of the oral argument before the First Circuit held on June 8, 1988 is attached as Exhibit 4.
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.a Specifically, this Licensing-Board has an obligation to-interpret Commission regulations as laH. This requires a considered judgment that weighs the language and meaning of-controlling regulations, not as a litigant would, _looking to the impact of those regulations on the immediate interests of his client in a particular case, but as a'part of a coherent body of rules that must govern more than this particular case.
As the' Commission stated when it adopted the new regulation:
The rule is' generic in the sense that it is of genera 1' applicability and future effect, covering future plants as well as existing plants. . . .
It is not intended to assure the licensing of any particular plant or plants.
52 Fed. Reg. 42081, 42084.
The key to an interpretation of this regulation as law which makes it a rule of general applicability is the language of the regulation itself and the plain meaning of that language.
Outline There is an inherent logic to the first six contentions filed by the Mass AG. Rather than treat each contention separately which would result in much repetition, this memorandum will discuss two issues in detail, both of which to some extent are bound together in the analysis of any one of the first six contentions. This memorandum, in Part 1, will address these issues in the following manner:
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Issue _1: Does the naw rule apply to the litigation of the adequacy of the-SPMC and if it does:
A. Should this Board entertain the permissive presumption in that rule?-
B. If this Board would entertain that presumption, what preliminary facts must be established first on the basis of which _ne presumed fact -- that non-participating governments would "generally follow" the SPMC -- may be found?
4 C. To what extent and in what way is the presumption rebuttable? At the contention staae, what averments, if later supported by material, relevant and reliable evidence, would "rebut" the presumed fact? (Contentions 1-4)
Issun_2: Assuming this Board presumes that the non-participating governments do "generally follow" the SPMC, to what extent must this Board ac}.nowledge that Massachusetts law may and will limit the achual manner of such
~ implementation, possibly to the extent of eliminating as a viable manner of such implementation, the delegation of authority mode set forth as Mode 2 in the SPMC? (Contention 5, Basis A; Contention 6).
A. Does the new rule and the presumption preclude contentions that allege that certain methods of implementation of the SPMC would not be available as a matter of fact because they involve unlawful delegations of authority under Massachusetts law?
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B. Is State law in this regard preempted.by the new.
rule and the doctrine of "realism"7 C. Should this' Board interpret the law of Massachusetts _in the first instance or instruct the litigants to obtain a declaratory _ judgment from the courts of the Commonwealth?
In Part 2, the responses of the Staff and the Applicants to each of the six contentions will be discussed in light of the analysis presented. Finally, in Part 3, the Mass AG will present its proposal for a structure for the litigation of the SPMC.
EART_1: ANALYSIS Of_ ISSUES Issue 1: The New Rule and_the Presumotion A. Threshold Issues As.an initial matter, this Board must decide whether the Commission's new rule, 10 CFR 50.47(u)(1), applies to the adjudication of the SPMC. Sections 50.47(a) and (b) are self-executing in a way that the new rule is not; i.e., an emergency plan is automatically subject to evaluation and review under the express language of those sections, while review under 50.47(c)(1) is conditional upon an initial showing by the Applicants that the deficiencies in the plan defined as the failure of the plan to meet the 50.47(b) standards may be remedied by "adequate interim compensating actions," in this
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case specifically by a. utility plan. Further, the new rule ic i not applicable unless and until an applicant:
asEerls'that its inability to demonstrate compliance with the requirements of paragraph (b) of this section results wholly or substantially from the decision of State and/or local governments not to participate further in emergency planning . . .
50.47(c)(1) (emphasis supplied).
These two conditions precedent to application of the new rule are distinct and neither condition has been met at this juncture.1#
B. permissive Presumption Assuming that the Applicants assert for the record that they are unable to comply with the planning standards of 1/ A distinction should be drawn between the initial threshold -
determination that the new rule applies and the showing necessary to obtain a license under that rule after it is apolied. The language chosen by the Commission is quite clear on the difference between these findings: to trigger
.aDRlitatinn of the new rule, the applicant must asantt both its inability to meet the 50.47(b) standards and that that inability results "wholly or substantially" from the fact of governmental non-participation; to obtain a license under the rule, the applicant must "demonstrate [ ] to the Commission's
- satisfaction," inter alia, the same facts. From a procedural perspective, the necessary "assertions" should be in the unilateral control of the Applicants here but, as discussed infra, the "demonstration" requires a Board finding. In any case, the Applicants have not yet made the necessary assertions.
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50.47(b) and thut that inability is whc11y or substantially the result of governmental non-participation,.this Bodrd may issue an operating license if the Applicants meet its burden of demonstrating those same facts and further that:
(ii) The applicant has made a sustained, good faith effort to secure and retain the participation of the pertinent State and/or local governmental authorities, including the furnishing of copies of its amergency plan; (and that}
(iii) The applicant's ettergency plan provides reasonable assurance that public healt? cnd safety is not endangered by operation : the facility concerned. To make tnat finding, the applicant must demonstrate that, as outlined below, adequate prctective measures can and will be taken in the event of an emergoncy.
Thus, before an operating license can issue pursuant to 10 CFP 50.47(c)(1), this Board still must find that adsguate protective measures ' Can and will be taken."
Obviously, in a circumstanca in which the utility is legally unable to unilaterally itplcmant its own plan, as the Applicanti have acmitted in tne SPMC, the predictivo finding concerning what protective measures "will" be taken presents t
particular difficulties. Tne actual off-site emergency response to an accident is a function not of the the utility's paper plan, but of the actions taken by those very governments which have not participated in planning. Yet, this Board must make a specific determination enncerning what those ,
I g ove r nnient s ' responce will be. As the Commission stated when j
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s it-adopted its new rule:
[IJt is' appropriate therefore for the NRC, in evaluating the adequacy of a utility's emergency plan,.to take into accident the probable response
- ' of State and local authorities, to be determined
. on a case-by-case-basis.
52 Fed. Reg. 42084-In this context, the new rule provides a permissive presumption which this Board may entertain:
In addressing the. circumstance where applicant's inability to comply with the requirements of paragraph (b) of this section is wholly or substantially the result of non-participation of State and/or local governments, it may be presumed that in the event of an actual radiological ,
emergency State and local officials would generally follow the utility plan.
-10 CFR 50.47(c)(1)(iii).
The phrase "it may be presumed" is unambiguous and this Board should give effert to the Commission's clear intent as reflected by the pitin meaning. Licensing Boerds have the discretion to entertain this presumption or not. That the Commission intended a permissive presumption is also clear in light of the mandatory presumption set forth at 10 CFR 50.47(a)(2) which states that a FEMA finding "will constitute a rebuttable presumption" on questions of off-site planning and the mandatory assuraption in the new rule that:
the NRC will recognize the reality that in an actual emergency, State and local government officials will exercise their best efforts to protect the health and safety of the public.
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The fact that the presumption is permissive,.without more, is sufficient grounds for admitting the first six cententions filed by the Mass AG. The import of those contentions, in significant part, is that for a variety of-reasons touching on both fact and law the non-participating governments will not "generally follow" the SPMC. At this stage, this Board cannot (and should not) evaluate the weight of these allegations, but should accept the well-pleaded averments as true. It may well
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be that once 6n evidentiary record is developed on these contentions, this Board, in its discretion, will not entertain the permissive presumption. It would be totally illogical and an abuse of discretion for this Board to adopt at the outset af this. placeeding a perminsive presumption concerning what the relevant governments will do and on that basis alone strike all submitted contentions which put at issue that very governmental response.
C. Tha Loaic of a Presumption
( 1. The relationship between the basic fact and the
! presumed fact.
l' l To further understand why this Board should not strike I
contentions at this juncture based on this permissive l
A/ Whether a presumption is mandatory -- like the FEMA i presumption -- or merely permissive -- like the one at issue here -- hrs nothing to do with whether or not it is rebuttable. Egg infra.
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presumption, it is necessary to revisit the logic of
-presumptions and the applicable law. A presumption, once
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entertained, allows a fact-finder to find the "presumed
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fact"--here, that non-participating governments will "generally.
follow" the SpMC--from the "basic facts." Eag, e.a., Federal Eractice and Procedure Wright & Millrr S 5125. Obviously, the basic facts themselves must be established as an evidentiary foundation before the presumed fact can be found.E# In this case, the Commission has indicated clearly what the basic facts are which must be established before the permissive presumption may be entertained. The proponent of the presumption must show that the deficiencies in the plan are "wholly or substantially the result of non-participation of State and/or local governments." 10 CFR 50.47(c)(1)(iii). This basic
^ f a c t --i_t sall InquiLinq a de t e r mi n a t i o n by, this Bo a r d of th.e adequacy. of the SEMC but far the relevant governments non-participation--has not yet been established, and separate l contentions of the Mass AG and other Intervenors put this fact l
at issue. Without c finding of tnis basic fact, there simply is no presumption in play an'1, as a consequence, no basis for h/ The burden of going forward with evidence of the basic ;
f act n remains throughout with the proponent of the presumption. Id. at 601.
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striking the first six contentions.6/
- 2. The effect of the presumption.
At an even more elementary level, the argument of.the Staff and the Applicants that a'"presumption" affords a basis for striking contentions ignores the very nature of a presumption under NRC law. . First, it is clear that the language of the new rule unambiguously creates a presumption, and not something other than or more.than a presumption. The rule states: "it may be presumed . . . This language creates a presumption.
Moreover, this language echoes the language of 10 CFR 50.47(a)(2) by which the Commission also clearly intended to create a presumption and stands in contrast to the statement in the new rule that the NRC "will recognize the reality . . . [of a] best efforts (response)." This latter statement is intended as other than and more than a "presumption".2/ Second, the 6/ As discussed in Conten' ion 3, Basis B.l. at pages 21-23 of the' Mass AG's April 13, 1988 Contentions, there is a logical connection between the basic fact--that tne SpMC is adequate but for governmental non-participation--and the presumed fact--that those governments will follow it. In the absence of a finding of the basic fact, it would be clear abuse of discretion for this Board to entertain a permissive presumption, as it were, de bene, and on the basis ei such a totally unsupported presumed fact strike contentions which attempt to put that fact at issue.
2/ Although nothing turns on this issue, this langauge approximates judicial or administrative notice of a state of affairs which, as a consequence, is not justiciable. The Commission characterized this best efforts assumption as an "irrebuttable presumption" in its Brief to the First Circuit.
Juhibit 3 at 35.
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Commission crocted a presumption in light of its'already established procedural law of presumptions in the emergency planning erea. In the absence of any indication whatsoever by the Commission in its statement of considaration or'in-the rule itself to indicate thatEit intended to create anything-other
- than a "presubtriion" as that term had been interpreted under-NRC law, that prior interpretation should govern here. The NRC has adopted Rule 301 of the Federal Rules of Evidence which states in relevant part:
A presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on >
whom it was originally cast.
Metropolitan _ Edison Co. (Three Mile Island Nuclear Station, Unit-1), ALAB-698, 16 NRC 1290, 1298 (1982), aff's LBp-81-59, 14 NRC 1211, 1460-66 (1981). As a consequence, the plain meaning of the new rule is that if this Board entertains this presumption (after the appropriate threshold demonstration and finding) the burden of going forward with evidence to rebut or meet this presumption and the presumed fact shifts to the Mass AG and the other Intervenors. Absolutely nothing in such a shift of the burden of going forward supports the proposition i
E that this Rule 301 presumption--or anf presumption 8/ -Even non-301 presumptions that shift the burden of proof do not limit the kind or nature of evidence that can be admitted to meet that burden. One statutorily created presumption expressly limits the kind or nature of evidence admissible to rebut the-presumed fact. Section 411(c)(4) of Title IV of theFederal Coal Mine Health and Safety Act, 30 U.S.'C. S921(c)(4), states that once certain basic facts are -
established:
The Secretary (of' Labor) may rebut such presumption only by establishing that (A) such miner does not, or did not, have pneumoconiosis, or that (B) his respiratory
, or pulmonary impairment did not arise out of, or in connection with, employment in a coal mine. .
This section.was declared unconstitutional as applied to mine oper-tors contesting the payment of Black Lu:.g benefits in Turnet_Elkharn Minina Co. v. Brennan, 385 F.Supp. 424, 430 (1974) (Congress may not deprive litigant of right to rebut presumption with admissible evidence without "offending due process"). The Supreme Court reversed on the grounds that the restriction on rebuttal evidence did not run against mine operators but only against the Secretary of Labor who did not seek to have the statute set aside. Usery v. Turner Elkhorn tlining C22, 428 U.S. 1, 37 (1975). Subsequently, the Fifth Circuit found no need to decide the issue of constitutionality 1
in a case in which the statute was applied to mine operators because "the petitioner in this case was not prevented by the hearing officer frcm submitting whatever rebuttal evidence it wished to submit." United States Steel Corooration v. Grav, 588 F.2d 1022, 1026 (5th Cir. 1979). The court intimated thr the two categories of permitted rebuttal evidence matched that evidence that would otherwise be material and relevant to the presumed fact and, therefore, did not limit tne universe of otherwise admissible evidence:
The statute in plain terms does limit rebuttal .
. . . This is hardly surprising, however, because the presumption that the Secretary or mine operator seeks to rebut is the presumption that the claimant is totally disabled by pneumoconiosis as a result of his employment in the coal mines.
Ed. at 1025-26.
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-- limits the kind or nature of evidence that may.be proffered.
in attempting to meet or rebut the presumption.E#
Any material, relevant- and otherwise reliable evidence may be. proffered'to rebut a presumption. In a word, the Applicants
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and Staff cannot get there from here: although this Board may
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presume that the relevant governments will "generally follow" the utility plan,-the effect of so doing is simply to shift the
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burden of going forward to the Intervenors. It is not to foreclose those Intervenors from proffering any otherwise admissible evidence, and, mutatis mutandis, from submitting and having admitted well-pleaded contentions'which that evide5ce at 4
a latter date would come in.to support.
This r e s'il t is not only compelled by the plaire meaning of the new rule and existing law but is consistent.with the purpose of that rule as described by the Commission to the Court of Appeals for the First Circuit."1E 1/ Whether proffered evidence does successfully rebut the presumption so that the fact-finder determines that the presumed fact is not the case is a different matter, not before this Board at this juncture. As noted infra, evidence "rebutting" a presumption can go to either the basic fact, the presumed fact or both. Egg, e.g., Wright & Miller, supra S 5125, at 601-602. If the basic fact is not found then the presumption is "rebutted". If the presumed fact is not found, the presumption is also "rebutted".
10/ This interpretation is also consistent with the general purpose of Rule 301 presumptions. Generally, a presumption l shifting the burden of production is used in those i circumstances in which evidence of a fact is in the control of a party who does not have the burden of proof on that fact.
I Such a procedural device is completely different from i "irrebuttable" or "conclusive" presumptions which are not presumptions at all but instead pronouncements of substantive law. Egg, e.g., Leallle v. Dann, 544 F.2d 1, 5 n. 24 (D.C.
I Cir. 1976) (ci'ing sources).
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Citinq the complicating effects of "strategic silence" (Exhibit 3-at 37) the. Commission stated that:
The.use of a rebuttable presumption in these circumstances serves to' encourage those in control of the evidence to come forward and present~it. Without question, the presumption forecloses a state or locality from gaining anything by "standing du.nb at the bar". . . .
Brief at 40 (Exhibit 3). How a presumption _ fashioned by the Commission to "encourage those in control of the evidence to '
come forward and present it" provides a basis for striking '
contentions whose development and adjudication promise just such evidence remains a mystery which the Staff and the Applicants will have to solve.
- 3. "Rebutting" the Presumption In light of the foregoing, it should be clear that there is nothing about the "presumption" in the new rule that would support a determination at this juncture that that presumption ,
may not be rebutted by otherwise admissible evidence. Further guidance on this question is provided by: a) the meaning of the language chosen by the Commission; b) the intent of the Commission in statements supporting the new rule at the time of its adoption and before the First Circuit; and finally, c) the 1
policy issues involved in using a presumption to find facts related to public health and safety.
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- a. The Language of the flew Rule.
A distinction may be made between two sens'es of the phrase "rebut the presumption" as used'both in Rule 301 and in-the Commission's new rule. As a consequence of a Rule 301
. presumption, the burden of going forward with evidence to rebut or meet the presumption shifts. Evidence that supports a finding contrary-to the presumed fact "rebuts" or "meets" the presumption-in the sense that the opponent of the presumption has met his burden of going forward and has proffered contrary evi.dence thereby causing the presumption to fall out of the case. Importantly, however, if that evidence supports but does not compel a finding contrary to the presumed fact, the fact-finder may still find the presumed fact based on permissible inferences and other evidence. In this circumstance, the opponent has "rebutted" the presumption but the presumed fact has been found nonetheless. On the other hand, contrary avidence that outweighs those permis.=ible inferences and the proponent's other evidence also "rebuts" ot "meets" the presumption but results in a determination that the presumed fact is not the case.
This analytical distinction provides the key to che correct interpretation of the following sentence in the new rule:
However, this presumption may be rebutted by, for example, a good faith and timely proffer of an adequate and feasib'.e state and/or local radiological emergency plan that would in fact be relied upon in a radiological emergency.
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The Commission is intending to provide an example of the evidence that would outweich the residual effect of the presumption after contrary evidence is admitted, and not just merely support a finding contrary to the presumed fact. To read this language in any other way -- i.e. as an example of the evidence that would support a contrary findirg and, therefore, as some form of limitation on that evidence -- would transform a rebuttable presumption into a quasi-conclusive or irrebuttable presumption. Moreover, such a reading ignores the actual example chosen by the Commission: obviously a finding contrary to the presumed fact is more than supported by a showing that the relevant governments have formulated their own emergency plan.11/
The Commission's intent is to provide guidance to the Licensing Boards concerning the evidence necessary for an Intervenor to prevail on the presumed fact. The Commission is not prejudging the kind or nature of the evidence that may be admitted in support of a finding contrary to the presumed Ll/ That the Commission intended to set forth an example of the evidence necessary to Rrevail on the issue of the presumed fact and not limit the kind or nature of the evidence that might be proffered to contradict it is also clear from the fact that the circumstances des;ribed in the example would actually uncouple the proceeding from the new rule -- the non-participating governments would become participating governments. In light of this anomaly, the example given should not be read as a bar to otherwise admissible evidence.
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fact.
Even if this natural reading of~the language in the new-rule settir7 forth an example is rejected and the Commission is t.
held to have limited the kind and nature of the evidence that can be admitted to contradict the presumed fact, it has done so by cKample.
12/. Technically, any contrary evi.dence is sufficient to "rebut" a Rule 301 presumption. But, as noted, although the presumption falls out of the case, the fact-finder may still infet the presumed fact. The Commission is instructing the Licer. sing Boards that they may infer the presumed fact -- that the g)vernments will "generally follow" the utility plan --
even if the presumption is "rebutted" in this cer.ce, i.e. even if the opponent of the presumption meets its burden of going forward with contrary evidence. The Commission, by using this example, is indicating the quantum of evidence necessary for the Licensing Board to make a finding contrary to the presumed fact. Whether the evidence proffered by the Intervenors will or does reach that level is an issue for another day. In short, the Commission is indicating that the presumption should be interpreted as one occupying the "middle ground" between the Thayer and Morgan views of presumptions. Eee, egh JohnsoILL Callfann, 607 F.2d 1178, 1183 (6th Cir. 1979) (presumption of death after ' years' unexplained absence not rebutted without substantial evidence); United States v. Jessup, 757 F.2d 378, 384 (1st Cir. 1985) ("middle-ground" presumption mandates that fact-finder weigh amount of contrary evidence against "general facts" that led to Congressional adoption of presumption in specific factual context); United Scenic Artists v. NLRB, 762 F.2d 1027, 1033-1037 (quantum of contrary evidence can not be so high as to preempt rebuttal; standard of "extraordinary circumstances" overturned).
11/ Such a reading would be very forced. First, it ignores the preexisting interpretation of "presumptions" under NRC law. Second, the example that does exist of a rebuttable presumption that also limits the kind or nature of the evidence admissible to contradict the presumed fact, see augIA, discussion of 30 U.S.C. S 921(c)(4), uses clear and direct language: "The Secretary may rebut such presumption only by establishing that (miner does not have pneumoconiosis or ailment did not arise out of coal mine work] . . . .
Id.
(emphasis supplied) Instead of such words of limitation, the Commission choose: (1) to reaffirm that the presumption is rebuttable; (2) to provide an example. Moreover, the Commission knew how to express an intent that evidence not be admissible to rebut a presumption. With respect to the other best-efforts assumption in the new rule, the Commission stated:
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 . . . .
52 Fed. Reg. 42085 19_ _ _ _ _ _ _ _ a
As a consequence, o t he r ev idence simila r_in_ kind. _o r.._e t.t ec t to that chosen as the example should also be admissible.1A' The category or class of evidence designated by the' example should include all evidence lE' that also would establish with equivalent persuasive force that the governments will not~
implement'the utility plan. For example, evidence that the governments.are not as a matter of law permitted to follow the plan or that as a matter of fact their own ad han response would be superior to any attempt by them to implement a plan with which they are unfamiliar, would be as persuasive as the Commission's example. As a consequence, because this Boaid at this juncture cannot weigh the evidence that might be proffered in support of the disputed contentions, there is no rational basis for deciding now that evidence in support of these contentions could not be within the category of evidence 1d/ It requires no argument to see that the Commission could
, not have intended to limit the admissible evidence running to the presumed fact to only that described or covered by its chosen example. Such a reading would ignore the plain meaning of the phrase "for example" -- an example designates a class or category extensive with the chosen example. Also, as noted, the particular example chcran has the anomalous effect of making the new rule irrelevant.
15/ Evidence does not coue in discrete packages. The example in the rule is that of a governmental plan. Evidence just as compalling as to the presumed fact as the governments own plan may well entail pieces of discrete evidence, the cumulative impact of which equals the persuasive force of the single proffer of a plan.
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.O designated by the example, even if the relevant language was intended by the Commission, to some extent, to limit the universe of evidence admissible to contradict the presumed fact.
Thus, no matter how the language chosen by the Commission is interpreted -- either as an example of the quantum of contrary evidence needed to prevail on the issue of the presumed fact or as an example of the contrary evidence that is admissible -- the result provides no support for excluding contentions at the threshold.
- b. The Intent of the Commission It is also clear from Commission statements that the presumption in the new rule was intended to be rebuttable and that no otherwise admissible evidence should be excluded based on it. First, in the rule's supporting statements, the Commission made clear that the disputed issue concerning what State and local officials would actually do at the time of an emergency and its corollary, whether adequate protective measures actually would be taken, is "to be determined on a case-by-case basis" (52 Fed. Reg. 42084) in "individual fact-specific situations "(Ld. at 42082) based on the "record developed in a specific adjudication . . . . (ld, at 42081).
It is left to this Board to "judge what form the 'best efforts' of State and local officials would take . . . . (1d. at 42085). In a case in which a non-participating State or local i
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government does not contest the presumed fact,I # a Licensing Board's determination, based on the presumption alone, that the relevant government officials would follow the utility plan would have sufficient record support. However, if, as here, the relevant governmente seek to proffer evidence contrary to the presumed fact, this Board would not give effect to the Commission's intent that it indan the form of the governmental emergency respor.ce if it simply excluded all such evidence.
More recently, in answer to direct questions of the Court of Appeals for the First Circuit, the Commission made clear that the presumption is rebuttable (in the sense that evidence that would support a finding contrary to the presumed fact) is admi.ssible even in the absence of a governmental plan. During oral arguments, the following colloquy took place:
Chief Judge Campbell: Now suppose a State wanted to show that it was unrealistic to -- the presumption or whatever you want to call it was unrealistic because let us say the state authorities wouldn't be trained and perhaps wouldn't be authorized by their local laws to comply and so forth and so on. In other words, their arcument would be that it's an unrealistic presumotion that we will follow out this plan but 15/ The new rule is one of "general applicability and future effect." 52 Fed. Reg. 42081. It is not difficult to imagine a financially constrained state or local government refusing to participate in the future at an as yet unlicensed site.
However, it does not follow that such a government would contest the presumption that it would implement an otherwise adequato utility plan at the time of an emergency.
[ a
e G o_t_D era.u so_.xe_.nau ta . .p.t a n_ o.e_puno wn e u t because there are a lot of impediments in the way to our people doing it. I had the impression from your opponents that their argument was that that material would be regarded as irrelevant and would not be taken into account.
Solicitor Briggs: I think your question, Judge Campbell, really embodies two sets of considerations. One is would a statement that we will not follow a utility plan and we will basically wing it be enough to rebut the presumption, and secondly, can a state and local government . .
Chief Judge Campbell: No, my question really was very precise, I thought. I didn't say that if someone comes up and says we won't follow it. I said someone comes up and says we have a lot of raalans to show why it's unrealistic for you to expect to make this oresumption but it nas nothina to_do_with_ us_tla_v_ing_fplmu l a ted a o l a n o f our own .
My understanding was your opponents argued that that would be regarded as essentially irrelevant and is not going to the question of the presumption and I think that that's an important point because the question is, i.s _11_ wha t we c alLa_Iabu11.attle PIesumption_nI_as_Jadg.e__fltcycI_ Rut i t , is it_a ma_tter of simply burdensiftina or are we talking about sqmethina more rioid and more limitina.
Solicitor Briggs: And we are talkina about a rebuttable presumption and burdenshiftina but to answer your question there is nothing in this rule that prevents a state and local government from arguing that adequate emergency planning even with our presumed response, even assuming we would follow the utility plan, simply cannot be.
Judge Breyer: That isn't the point, l
l Solicitor Briggs: I'm sorry.
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Judge Breyer: The point is suppose they get up and they say you have presumed we will follow the utility plan.
Solicitor Brigg: : That's right.
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Judge Breyer: I will tell you right now we won't and here is why. First, the utilities haven't taken into account that those streets freeze up in the winter. Second, the utilities have not taken into account tnat the bridge is always up and in order to get the bridge down what you have to do is call some people who work unde. certain rules and we can't get them there and the third thing they haven't taken account is the laws in five towns which show that you can't call them up on the phone and therefore, the people won't be in the right place. And the fourth thing is and the fifth thing is and the sixth thing is and they show you convincingly that they will not follos the utility plan, indeed, legally they can't because of all those rules and regulations and at that point lets suppose any reasonable person, I'm assuming this hypothetically, any reasonable person would conclude they're right. They won't follow. Okay, what happens under this rule? ,
Solicitor Briggs: The rule, with all due respect to the Court's question really doesn't specifica11'/
address what is necessary to rebut the presumption.
Judge Breyer: I didn't say what was necessary.
What I s aid is, what hacoens if they show that thev ;
won't follow tne plan? Forget what's necessary to show it. I'm saying suppose they show it. EnH Mhat I read here is it says it may be presumed that they will oenerally follow the olan. However, this presumption mSy be rebutted by, for examole, and then they oive one example. Now, as I read that. I thought that's an examole for whatever reasons they come up if they show they won't follow it, then they've shown it and the cresumption ooes away. Am I right? Cause they've then said no, that isn't so, what they're worried about is that you will not allow them to show and even if they do show they won't follow the plan, the Commission will still
. grant, say that there is an adequate plan. Now, I want to know what this rule is, I mean does it or does it not allow them to rebut this?
Solicitor Briggs: It certain1v allows them to make thosc_ hind of arouments.
Judge Breyer: You mean if they make it and they shny it, do they win?
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So1icitor Briggs: I ( _t h ey_.nho W_.t h al_t hay _w i 11._.n o t . _
follow the glan. if they convincinalv show that the premunplion has no basis in fact thon it seems tn me it would be patentiv arbitrar_E_and_ capricious t_Q_apoly a c resumntinn_that_will _not be sound.
Judge Breyer: So, in othat words, vou're sayinst and I'm gaina to hold you to this in a sense, that LL_they show they will not follow the plan and t ha t 's_ shown_conv incing ly,_they_Hin .
Solicitor Briggs: But the_ question . . . that's correct.
Judge Breyer: That's correct.
Solicitor Briggs: That's correct, Your Honor. But the question is, how can thy show . . .
Judge Breyer: Well, I don't know . . .
Solicitor Briggs: . . . and that is a case-by-case question.
Judge Breyer: Well, that is a case-by-case question.
Juige Breyer: And we can take this. In your view, as simolv burden-shiftina?
Solicitor Briggs: I think that's right. And ultimately . . . and ultimately, the Court will have approved it . . .
. . A Judge Breyer: And it we say it is burden-shifting, if we take that as the assumption, then it is burden-shifting. I mean there isn't some other case going on on this issue, in some other Court which would say it wasn't burden-shifting. I mean if we say it's burden-shifting, then that's what it is.
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Solicitor Briggs: I thing . . . Yes sir, I mean this is the only challenge to the rule, and frankly what you gentlemen say about it, is, unless somebody else looks at it, is going to be what the rule is going to held to say.
Exhibit 4, pages 3-8 (emphasis supplied).
In light of these expressions of Commission intent. the presumption should be read as rebuttable by otherwise admissible evidence and the Mass AG's contentions should be admitted.12'
- c. public Safety and presumptions Finally, it would make no public policy sense to make a determination of what State and local officials would do at the time of an emergency (and as a consequence, whether adequate protective measures "will be taken") based on a presumption which was interpreted as a bar to otherwise admissible "living" evidence on this very issue. Such a reading of the new rule, urged here by the Staff and the Applicants, would contradict t'e very purposes of the emergency planning regulations, to protect the public safety, and, therefore, should be avoided.
12/ The NRC has not prevailed before the First Circuit in
,i defense of this new rule. If it does, it will be judicially estopped from interpreting this rule in a manner contrary to its representations before that Court. Egg, Ez2 Edwards v.
Antaa Life Insurance Company, 690 F.2d 595, 598-599 (6th Cir.
1982) (doctrine of judicial estoppel applies to party which has l successfully and unequivocally asserted a position in prior
! proceding; it is estopped from asserting inconsistent position j in a later proceeding in order to prevent "intentional inconsistency" and "perversion of judicial machinery").
Estoppel aside, this Board should look to the representations of the Commission in response to questions identical to the issues now before this Board for indication of Commission intent.
f IJ1ue_l: "Realism", the New Rule and the Constraints of State' Law __
A. Overview of_the' Issue The Mass AG has contended that the SPMC -- specificL11y, Mode 2 of the SPMC which posits a delegation of. authority to the.NHY-ORO - .could not be implemented because.the contemplated delegation of authority is not lawful under Massachusetts law. As a consequence, avan LL it is presumed (and found) that relevant state and local government officials will "generally follow" the SPMC, this cannot be held by this Board to me,an that they would follow it in a manner that would contravene state law.1E#
In short, implementation of the SPMC would be shaped and' limited by the~1aw of the Commonwealth. Any i edictive finding by this Board concerning what form the govern.Tental response would take should consider tne limitations imposed on that response by state law. This issue becomes particularly lH/ Contention 6 -- the legal contention -- runs to two interrelated issues: (1) if a delegation of authority as contemplated end required by the SPMC is and is is believed to be unlawful, that is fairly persuasive evidence that no presumption should be entertained that State officials will nonetheless "generally follow" the SFMC at least to the extent that it posits such delegation; and (2) even if a presumption is entertained by this Board that relevant governmental officials will "generally follow" the SPMC, it should not be presumed that in so doing they will act in a way contrary to state law. The upshot of this is that if the Mass AG prevails on the legal contention, portions of the SPMC can not form the basis of this Board's determination of the form that the governments' best efforts response will take. Not surprisingly, the Mass AG contends that those portions of the SPMC that remain "implementable" will not meet the standards of adequacy for utility plans as set forth at 10 CFR 50.47(c)(i). ,
I
w significant"in evaluating Mode 2 of the SPMC (to which Applicants appear to have pinned'their hpoes of demonstrating adequacy under 10 CFR 50.47(c)(1))_ because that mode is designed to restrict the content of the governmental response to that of a discrete delegation of authority. In other_words,-
under Mode 2, to "generally follow" t' SPM', the governments.
need.do no more than delegate'all necessary authority to the NHY-ORO. If such . legation is not legally possible then the SPMC cannot be "generally follow (ed)" in that manner, with or without the benefit.of a presumption.
In response, both the Appliants and the Staff Jtate simply that the new-rule bars litigation of this issue. The Applicants, citing an April'8, 1988 slip opinion in the Shoreham case, argue that "alleged illegality cannot overcome the presumption." Applicants' Responses to Intervenors' contentions at 11 (April 26, 1988). The cited case, however, is based on the Shoreham Licensing Board's interpretation of the law of New York and is totally inapposite to the specific issues of Massachusetts law raised by the legal contention here. Moreover, the role of state law in the context of the
' l2/ is completely doctrine of "realism" and the new rule 11/ The Commission clearly intended to incorporate the "realism" doctrine into the new rule. "The rule is cons'. stent with the approach . . . followed in a prior adjudicatory decision of the Commission (CLI-86-13]." 52 Fed. Reg. 42078.
a
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l misapprehended'by the Staff and the Applicants.AE#
D. StaF" law and "Realism" To appreciate the relevance and impact of state law on an evaluation of the adequacy-of a utility plan under 10 CFR 50.47(c)(1), it is necessary to review the "realism" doctrine as it developed in the Shoreham proceeding. In response to the submission by LILCO of a utility plan for the Shoreham site, Intervenors filed ten so-called "legal authority" contentions.
The gravamen of these contentions was that the utility plan could not be implemented in the event of an emergency because 4
the utility did not have the requisite legal authority under i
New York law to perform various actions, was not free to perform them in the absence of such authority, and, significantly, could not be delegated or authorized at the time
!' of the emergency, or otherwise, this necessary legal 4
authority. Importantly, Intervenors argued that if they 1H/ At least so it appears. Neither the Staff nor the Applicants provide any reasoned basis for their conclusory
! statement that the new rule bars the Mass AG's legal contention. To the extent that the Staff and the Applicants i' rest on the "irrebuttable" nature of the presumption (in the absence of a state plan) the Mass AG: (1) incorporates its analysis of the presumption angra; and (2) reiterates, as noted, that the legal contention runs not only to the presumed
, fact -- that the relevant governments will "generally follow" the SpMC -- but to the limited form such an effort might take under controlling state law.
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carried the day on these contentions AI' then they would prevail as well on the issue of whether adequate protective' measures "will be taken" because the utility could not and the relevant governments would not-implement any emergency plan.
In this context, LILCO marshalled, as affirmative defenses to these contentions, three arguments: (1) federal preemption of the relevant New York law that would prevent the utility from implementing its plan; (2). "realism" which would entail certain assumptions about affirmative actions taken by the non-participating governments at the time of an emergency; and (3) immateriality. Significantly, the Licensing Board held F. hat relevant New York law was not preempted by federal law governing nuclear power. Shoreham (ASLB) 21 NRC 644, 909 (1985). The Licensing Board in rejecting LILCO's preemption argument held:
We must bear in mind the cost to our federal system of transfering a State's historic police powers to a private entity. We find no evidence to suggest that Congress ever intended to allow a private utility to exercise powers that have traditionally belonged to the States. We cannot 11/ As noted infra, the questions of law raised by these contentios (utility did not have authority to perform emergency actions, was not free to so act in the absence of such authority and could not be delegated that authority) were presented to the courts of New York in declaratory judgment actions beginning in March 1984. Egg, Lona Island Liahtina Company (Shorehem Nuclear power Station, Unit 1) 21 NRC 644, 895-900 (1985) (concise procedural history of these contentions to that time). (Shoreham proceedings hereafter will be cited as Shoreham, (NRC adjudicatory board) NRC .)
i believe that so-fundamental a shift in the structure of Federal-State relations could be accomplished by the NRC Authorization Act provisions-which merely allows the NRC to consider the adequacy of a utility-sponsored emergency plan.
Id.
In affirming'the Licensing Board's holding on preemption,-the.
Appeal Board stated:
LILCO urges us to conclude that Congress-must
. have intended to override state laws in such-circumstances, lest a utility's ability.to mount its own plan be foreclosed at the threshold, rendering the util'ity plan option a nullity.
While we do not find LILCO's construction of the ;
statute implausible, an alternative reading is more reasonable--namely, that Congress intended only to make clear that a plan sponsored by a ,
i state or local government was not to be a condition for grant of a license if the utility
, could otherwise demonstrate that it had the '
wherewithal (includina any necessary authority under._the__1 aw_nf_ill_home state) to develop a 1 plan that would adequately protect the public l health and safety. Shoreham, {ALAB) 22 NRC 651, 668 (1985)(emphasis supplied).42/
To give full meaning to the Commission's "realism" doctrine and its impact on state law, it must be understood that "realism" was a LILCO position alternative to preemption. Both the Licensing Board and the Appeal Board rejected any argument that state laws restricting a utility from implementing its own plan (even by means of a delecation of state authority) were preempted. Obviously, it would fly in the face of reason, to interpret the doctrine of "realism" as somehow "preempting" state law, when LILCO's direct preemption challenge failed.
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12/ On review, the Commission did not address LILCO's preemption arguments. CLI-86-13, 24 NRC 22, 24 (1986).
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In fact, "realism" had and has a clear and distinct two-pronged meaning, although it is certainly true that in
( fferent contexts emphasis has been focused on one pre ng often to the exclusion of the other. At the outset, LILCO argued to
, the Licensing Board that it would simply not be reasonable to
- posit an inactive and inert government in the event of a radiological emergency. The intuition behind "realism" addressed precisely the argument made by the Shoreham
- Intervenors.that no protective measures would be taken because
- the utility could not and the governments would not implement the utility plan. LILCO's argument was simply that it should be assumed that the relevant governments would respond and that '
this governmental activity would seek to mitigate the negative effects of an accident and, in combination with the existence of a utility plan, the result could still meet the adequacy standard.
Importantly, LILCO made its initial presentation of this argument to the Licensing Board in August, 1984. At that point, no New York court had issued a decision on the merits of the Intervenors' claims that New York law prohibited the utility directly, or indirectly by means of delegation, from implementing its plan. 1 13/ LILCO presented its three arguments in the alternative. Not then knowing the outcome of the New York
. proceeding, LILCO in urging preemption, sought to moot that outcome. Howteer, if the New York court had determined that, i although LILCO was unilaterally unable to implement its plan, it could be delegated such authority at the time of an emergency by New York State officials pursuant to New York State Executive Law, Article 2B, then a "realism" assumption incorporating just such a govaramental delegation under emergency conditions would overcome the legal impediments to implementation just as effectively as preemption.
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" In'that posture, LILCO presented "realism" to the Licensing Board, as that Board later1 recorded, as follows:
LILCO argues that despite the fact that it may-be precluded under New York _ State law from carrying.out the activities' objected to in [the legal. contentions}, and its preemption argument is invalid, the State and= County would respond in a real emergency and this would cure any lack q1_leoal authority . . . . LILCO claims that if there were an emergency at Shoreham it would be takina emeroency response actions in coniunction with. or authorized by, covernment officials and i this covernment participation would remove any '
legal bar to a LILCO response . . . . proceeding directly to the heart of the matter, LILCO assumed that if State and County were to carticipate in an emeroency response at Shoreham. they would authorize the utility to ,
perform the functions it orocosed to carry out in an emeraency as enumerated in the (legal contentions). The realism araument is wholly predicated on the State and County authorizina LILCO to act as planned. Without such.
authorization, the realism araument vanishes.
Shoreham (ASLB) 21 NRC 644, 909-911 (1985) (emphasis
, supplied). ;
It bears repeating that LILCO made this realism argument to the Licensing Board in August, 1984. In February, 1985, the
. Supreme Court of New York (not its highest court) rendered its decision on the merits of the legal contentions finding for the
- Intervenors, and holding, inter alla, that there are no means under New York State lan by which LILCO can be vested with the authority it would need to implement the emergency response plan it proposes.
Id. at 911.2A/
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la/ The February 20, 1985 decision is unreported. This quote is from the Licensing Board summary of the opinion, Cuomo v. i kILCO, Consol. Ir' x No. 84-4615, Supreme Court of the State of ,
New York, Suffolk County. -
After the New York courts had spoken, at least in the fitut instance, the Licensing Board issued its decision (21 NRC 644
'(1985) on preemption and realism from which the above quotations summarizing the doctrine of realism as then presented by LILCO were taken. In rejecting LILCO's "realism" doctrine, the Licensing Board held:
The Supreme Court interpretation of the New York State law, which we have accepted, disposes of the realism araument. The realism araument, predicated upon LILCO beina authorized to participate in its proposed emeroency response olan. fails because Aeolicant cannot be deleaated the authority to oerform the functions enumerated in [the legal contentions). ,
Id. at 911 (emphasis supplied)21/
25/ To anticipate somewhat, in reaching this determination the Shoreham Board was presented with precisely the same legal issue as is now before this Board and its rejection of '
"realism" understood in the-sense of state delegation of necessary authority to the utility was not reversed by the Commission in CLI-86-13. Sag infra. Set out in summary that Licensing Board found: (1) state law is not preempted; (2) state law prohibits a delegation of authority even at the time of an emergency; and (3) "realism" to the extent that it is understood as the assumption that state officials will respond to an emergency by delegating authority to the utility cannot overcome the legal impediments to utility implementation of its own plan because no such delegation would be lawful under New York law. This Board faces the identical issue. As discussed in more detail infra, nothing in the Commission's new rule which codified "realism" altered this basic syllogism. Because state law is ani preempted it follows that even if a "realism" presumption is entertained that the relevant governments will "generally follow" the utility plan if that olan calls for or is premised on an unlawful deleaation of authority, the governments cannot be presumed or found to implement it. The only possible alternative is to hold that the new rule and its presumption preempts any established state law that would prohibit state officials from "generally follow (ing]" a utility plan. Such a reading of the presumption would be absolutely unsupportable.
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Not surprisingly, in presenting its "realism" arguments to the Appeal Board on review of this Licensing Board decision, LILCO refocused its "realism" intuition in the light cast by the February 1985 New York decision which foreclosed as.a matter of law any possibility that in acting at the' time of an emergency to protect the public, the relevant New York governments could be assumed to delegate authority to LILCO.
As recorded by'the Appeal Board:
LILCO continues to press its "realism" argument before us. According to LILCO, the Licensing Board erred in basing its decision on the premise that in the event of a radiological emergency "the state would simply deputize LILCO employees to carry out an emergency plan but do nothing itself." LILCO claims that its araument is "simolv that the State and County would in fact respond if a real emergency were to occur."
Shoreham, (ALAB) 22 NRC 651, 674 (1985)
(emphsasis supplied).
Recast as an argument that state and local officials will respond to an emergency and in so doing will themselves implement to an adequate degree the utility plan, "realism" was rejected by the Appeal Board. Id. at 675-676.AE' It was "realism" in this iteration that was argued to the Commission and which informed both CLI-86-13 and its codification in 10 CFR 50.47(c)(1), i.e. "realism" as an 11/ In rejecting "realism" in this iteration, the Appeal Board noted that: 1) any governmental response would be ad han and uncoordinated in advance with the utility's actions; and 2) no showing had been made that LILCO's plan was amenable to adoption by the appropriate governments at the time of an emergency. As a result, the Appeal Board noted that "there is simply no reasonable basis for assuming that the State or County could realistically step in at the last moment and execute the LILCO plan." Id. at 675-676.
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i assumption that state and local governments will respond to an emergency with their can oersonnel, and not "realism" in its earlier form as a mere delegation of authority to the utility which would circumvent legal impediments. 2#
That the Commission understood "realism" as having this substantive content is clear from CLI-86-13:
LILCO asserts that it is not prosecuting its case on a theory different from that litigated initially. At the outset of the evidentiary hearing, Applicant sought to litigate several variations of its plan, including a "principle off-site plan" involving County implementation; at the same time, Applicant noted that the plan was flexible enough to incorporate County personnel t after the onset of an emergency . . . . In essence, the (lower] Boards defined what is reasonable and feasible for Shoreham solely in terms of the nature of the site and environs without regard for the degree of possible government cooperation . . . . We assume that LILCO is prohibited from performing the State or County roles in (those areas prohibited by the legal contentions). Some of these areas, such as making decisions and recommendations to the public or protective actions, are fundamental to emergency planning. However, if Shoreham were to go into operation and there were to be a serious accident requiring consideration of protective -
actions for the public, the State and County officials would be obligated to assist, both as a ,
matter of law and as a matter of discharging their 12/ To anticipate again: it is this notion of "realism" that is codified in the new rule's presumption that state personnel will "generally follow" the utility plan. The substance of this presumption as intended by the Commission was that state person:.el would follow the utility plan on the ground, so to speak, as a way to give form to their own emergency response.
State personnel may be presumed to take emeroency actions (not ,
acts of delegating authority) that "generally" match those provided for in the actual substance of the utility plan. This assumption is completely transformed beyond any meaning and loses whatever rational basis it possessed, if instead of real actions to protect the public (presumed to match or at least not conflict with the-utility plan) its content is replaced by the single action of delegating authority to the utility.
There would have been an basis for the Commission to have made this presumption.
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public trust . . . 13/
Thus, in evaluating the LILCO plan we believe that we can reasonably assume some "best effort" State and County response in the event of an accident. We also believe that their "best effort" would utilize the LILCO plan as the best source for emergency planning information and options.
CLI-86-13, 28-31 (emphasis supplied).
That the Commission intended that "realism" be understood as an assumption about concrete emergency actions that would protect the public and not a mere act of delegation of authority by government officials is clear from the issues which it remanded for further inquiry. First, the fact of remand alone suggests that a delegation of authority was not intended by CLI-86-13.
If this had been the intent, then the Commission would have simply assumed that New York State officials would so delegate and that the LILCO plan would be implemented by LILCD ERiponnel. Second, the Commission stated:
13/ At the time of this decision (July, 1986), no appellate court in New York had yet reviewed Cuomo v. LILCO. Thus, the Commission understood that New York law as then construed prohibited a deleaation of authority to LILCO at the time of an emergency. Thus, the Commission did not intend to suggest that state and local officials would be "obligated to assist" LILCO by delegating their authority. Not only had LILCO abandoned that version of "realism" before both the Appeal Board and the Commission in light of the New York court decision in Cuomo v.
LILCO, but the Commission did ant disturb the Appeal Board's affirmance of the Licensing Board's rejection of LILCO's "preemption" argument which sought to moot the relevance of state law impediments to any form of implementation by the utility.
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Nevertheless, we are unwilling to assume, as LILCO would have us, that this kind of best-effort government response would necessarily be adequate. In point of fact, there are questions about the familiarity of State and County officials with the LILCO plan, about how much delay can be expected in alerting the public and in making decisions and recommendations on protective actions, or in making decisions and recommendations on recovery and reentry, and in achieving effective access controls.
Id. at 31.
These remanded questions point to the core notion informing the Commission's understanding of "realism": state oersonnel would take actions to protect the public and in so doing make use of the LILCO plan. Any notion tht the Commission intended that "realism" permitted the assumption of a delegation of authority (then plainly determined to be unlawful under New York law) as a "best efforts" response is completely unsupportable.
Further support for this interpretation of "realism" is found in a subsequent Appeal Board decision in Shoreham.
Shoreham, (ALAB) 24 NRC 412 (1986). In that decision, the Appeal Board reversed the Licensing Board determination in favor of the Intervenord in regard to the contention that a conflict of interest existed if LILCO emergency personnel with ties to the utility were called upon to exercise "decisional tesponsibility". The Appeal Board reasoned as follows:
(D]evelopments since the issuance of the Licensing Board's decision make it clear that the key aspect of the LILCO plan found objectionable by the Board -- i.e., the l exercise of decisional responsibility essentially by
- individuals with ties to the utility -- will not be a l
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feature _ql_any_ElaILlikely to balmRLementAd. . . . As we noted in ALAB-818 (affirming the Licensing Board's initial "realism" decision], however, New York State law prohibits private companies such as LILCO from performing certain functions in that latter category. Thus_any_pla n tha_t_might _ eve n t u a l ly receive Cammission_ approval Gust necessarily include individuals not coeratina under kILCO's aegis . . . . (I]n reversing that portion of ALAB-818 dealing with the so-called "realism" and "immateriality" issues, the Commission was prepared to assume that state and county officials would participate in emergency response on a "best effort" basis by relying on the LILCO plan as a source of emergency planning information and options. In such circumstances, individuals not affiliated with LILCO, such as state and local officials, will presumably be involved in those discretionary command and control determinations normally the province of government and which the Licensing Board found to be subject to potential conflict of interest
. . . . What seems clear from the Commission's remand, however, is that any plan ultimately approved must' involve some form of governmental participation. In the circumstances, the Intervenors' concerns over a possible conflict of interest, and the Board's determination in that regard, become largely academic.
Shorebam (ALAB) 24 NRC 412, 426-429 (1986) (emphasis supplied).
Thus, the Appeal Board clearly understood "realism" as an assumption concerning the actual emergency activities of state officials and not as a doctrine that would somehow overcome the legal impediments to any delegation of authority, precisely this analysis of CLI-86-13 was set forth by the Licensing Board on remand in September, 1987, two months before the new rule codifying "realism" was adopted. Again, LILCO sought summary disposition of the legal contentions on the basis of the "best-efforts" assumption. However, LILCO argued to the Licensing Board that "best efforts" would entail the delegation of the requisite authority to LILCO at the time of an emergency:
- .. . 4
Applicant contends that alL1 hat i t ' r}eeds from the State and_gapnty is the intangi,ble resource of leaal authority, and that.can be provided by telephone . . . . (R]ealism contemplates a partnership in which LERO would continue, with-emergency approval,-to manage the emergency response, with the State and County _providina leaal authority and whatever resources they could provide on short notice . . . . This claim (of the Applicant) that the State and County's
~
response would take the form of. authorizing LILCO-to'act for them was previously rejected by this Board in our partial initial decision on the basis of Cuomo v. LILCO . . . which holds that Applicant cannot be delegated the authority to perform the functions enumerated in (the legal contentions). Nothina in CLI-86-13 alters the Cuomo decision which so far has been upheld on apoeal . . . . Aeolicant's claim that the covernments' response will be on a basis of what has been found contrary to law is meritless.
Shoreham (ASLB), 26 NRC 201, 208 and 215 (1987)
(emphasis supplied).
In short, the "best-efforts" presumption as initially formulated by the Commission in CLI-86-13 and then incorporated into 10 CFR 50.47(c)(1) does not remove alleged or established legal impediments to implementation by a utility of its plan if the relevant state law prohibits a delegation of authority to the utility and the utility intends to implement its own plan by means of just such a delegation. A presumption that state officials will "generally follow" the utility plan does not avoid these legal obstacles Lf that plan calls for an illegal delegation of authority -- as the SPMC here is alleged to do.
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The April 8, 1988 decision, so heavily relied upon by both the Applicants and the Staff is not to the contrary. After the new rule was adopted in November, 1987,-LILCO again renewed its motion-for summary disposition on the legal contentions.
Again, the thrust of LILCO's ter. awed "realism" argument was that a best-efforts presumption would entail a delegation by the state of the requisite authority to LILCO at the time of an emergency. However, the decisive event which shaped that Board's April 8 decision was not the new rule, which standing alone would not have changed its analysis of the issues as
- presented in its September 1987 decision.AE Instead, on I.
February 17, 1988 the New York State Court of Appeals vacated 1
Cuomo v. LILCO holding that the legal isues presented, including whether the state could lawfully delegate authority to LILCO at the time of an emergency, were not ripe and, therefore, not justiciable under New York procedural law. In
- this context, viewing the merits af the legal contentions in a
! very different light, the Licensing Board held that "Intervenors, however, can no longer raise the spectre of a lack of legal authority . . . . Shoreham, (ASLB) April 8, 1988, Slip Opinion at 24 The Board stated:
12/ As noted, in its September 1987 decision the Board made clear it was applying the "best-efforts" assumption as set
, forth in CLI-86-13. The new rule, as made repeatedly clear by the Commission, incorporated that same assumption in the form of a presumption. If CLI-86-13 did not make state law irrelevant to a "best-efforts" analysis, it follows that the j new rule did not.
The Intervenors argue that the fact that State and local governments are prohibited from delegating legal authority to LILCO has been recognized in the prior decisions by the Board and has not been changed by CLI-86-13 or the new rule. This was the principal finding of the Cuomo v. LILCO decision recognized by the Board in its September 17 (1987] and October 29 (1987} Orders. The New york State Court of Appeals reversed Cuomo v. LILCO, February 17, 1988 on grounds that an advisory opinion was not a proper exercise of the state's judicial function. We did not intend, then, or now however, to convey the belief that State and County officials could not, under emergency conditions, call upon private entities to assist in performing emergency functions on a temporary basis.
And as a factual matter, it is our opinion the New York laws provide for precisely that set of circumstances.
Id. at 25.
The Shoreham Licensing Board on April 8, 1988 did ant nold that issues of legal authority are mooted by the Commission's new rule. In fact, it had held in September 1987 that the "realism" assumption of CLI-86-13, which was incorporated into that cule two months later, specifically did ant overcome or otherwise resolve state legal impediments to utility implementation of its plan by means of a delegation of authority. Instead, the Licensing Board no longer viewed New York law as an impediment to such a delegation because Cuomo v.
LILCO had been vacated.
Thus, the Applicants are helped not at all by the April 8 decision. If it is established, as alleged in Contention 6, that Massachusetts law makes unlawful an emergency delegation of authority to the NHY-ORO, then Mode 2 of the SpMC, which is premised on such an unlawful delegation, falls out of the J
7 case. And on any fair Leading of the development of the "realism" doctrine, it should. The presumption that at the time of an emergency state officials will "generally follow" a utility plan is based on the notion that those officials will take affirmative steps to protect the public, and, in the absence of contrary evidence, will use the utility plan as a map to guide those steps. Whatever weight may be ultimately attached to this inference, there is no basis for presuming that the state's emergency response will begin and end with a delegation of authority.
C. The preferred Forum In the first instance, this Board should defer to the courts or the Commonwealth for a determinaton of the state law issues presented by the Mass AG's legal contention. As the Shoreham Licensng Boord stated: "[t]he Board defers to the New York State Supreme Court in interpreting New York State law where the latter's jurisdiction and expertise lies." Shoreham (ASLB) 21 NRC 644, 899 (1985). provisions exist in the procedural law of the Commonwealth to entertain and resolve in the form of an action for declaratory judgment the issues presented here. Moreover, once the legal contention is admitted for litigation in this forum and the issues thereby become ripe for state court determination, a state court action may well be an inevitability. By deferring to the judgment of the Massachusetts courts in the first instance, this Board will avoid the possibility of inconsistent judgments.
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PART'2: RESPONSES OF THE STAFF AND ApPLICAt]I-Contention 1:
Applicants: The Applicants ignore the contention as submitted. The contention alleges that the Commonwealth will not follow the 3PMC, it explains why it will not based on issues of both fact and law and it sets forth a clear statement of what kind of response the relevant governments will make in the event of a Seabrook emergency. Evidence proffered to ;
support this contention would rebut the presumption if it were ,
to be entertained at some future point.
Staff: First, the Staff engages in some fact-finding ,
in arguing that what the Commonwealth states it will do will be "less efficacious" then following the SPMC. It is an issue of ,
fact whether an ad han response as described in Contention 1 would be less or more ef fective than an ad hnc implementation -
by state personnel of the 10 Volume SPMC. Second, the Staff moves from fact to irrelevant law reasoning rather obscurely that: 1) the contention is "premised" on a determination by Massachusetts that emergency planning is not possible at Seabrook 2) the NRC and not Massachusetts has jurisdiction over this issue, therefore; 3) the contention should not be t
admitted. This is a non-seouitur. The contention is "premised" on the more obvious claim that the SPMC will not be implemented. Finally, the Staff argues that because
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contention 1 does not set forth_which 50.47(b) standards are not met, it lacks specificity and basis. This is a' serious misreading of the contention. The contention states: "In light of this considered governmental position (not to implement the SpMC), this SpMC is irrelevant to this licensing proceeding. No emergency plan exists that meets the planning standards of S50.47(b) . . . .
The point here is that n o p l.a n exists that can or will be implemented. Obviously, if there is no plan then the (b) standards are not met.
Even if this. Board were to entertain a presumption, Contention 1 pute squarely at issue the presumed fact and evidence to support it should not'be excluded.
Contention 2:
Aeolicants: The Applicants suggest that this Board take administrative notice of the necessary facts needed to be "demonstrated" by the Applicants to trigger the application of the new rule and its permissive presumption. Not only would such action fly in the face of the express language of 10 CFR 50.47(c)(1) which requires that Applicants make such a demonstration, but it would ignore the relationship between the establishment of the "basic facts" and the employment of the presumption. Moreover, the Applicants appear to have misread the contention: they need to show mere than the fact that officials oi the Commonwealth will not participate in planning. Although administrative notice may be appropriate J
t for this fact, which is not disputed, it is totally inappropriate as to the other facts which are disputed.
Staff: First, the Staff appears to agree that'at-present there is as yet no record support for the application of-the new rule to the SpMC.
. Further, the Staff states'that this Board is to determine whether the SpMC meets the requirements of SSO.47(b) or "may be licensed under 10 CFR S 50.47(c)(1)." Of course, asserted failure to meet-the (b) standards is the precondition, as Contention 2 notes, for the applicability of the new rule.
1 Second, the Staff states as to Bases B and C that there is "no regulatory requirement that the Applicant identify how it does or does not meet the regulatory requirements of 10 CFR S 50.47." The Staff simply ignores the plain language of the new rule which states that an Applicant must assert and demonstrate that its failure to meet specific regulatory requirements is the result of the actions of others.
Third, mischaracterizing the position taken by
, Massachusetts as a "refusal to cooperate"3E' the Staff urges -
that the Applicants burden to prove it "has made a sustained,
) good faith effort to secure and retain the participation" of f the relevant governments as set forth by the new rule is met by s
l 1H/ The Staff could just as easily characterize the Applicants quixotic quest for approval of a utility emergency plan in the face of non-participating governments as a "refusal to cooperate". Query, with whom? i l i i
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the pleadings. Staff proposes that this Board infer from the non-participation by Massachusetts that the Applicants have made a "sustained good faith effort to secure and retain" that participation. Obviously, such a determination by this Board would be without record supoort.
Finally, Staff argues that the Applicant need not identify planning deficiencies in the SpMC. Again, the language of 10 CFR 50.47(c)(1) requires that the Applicants assert and demonstrate that there are such deficiencies.
This contention should be admitted. The new rule clearly requires these preliminary determinations.
Contention 3:
Applican23: Applicants appear to have misread this contention as an effort to rebut the presumption. The contention alleges that the permissive presumption should not be entertained at this juncture. Further, the contention reiterates that Massachsetts will not follow the SpMC but will respond on an ad has basis. Such a state of emergency preparedness cannot support an adequacy finding.
Staff: First, the Staff offers the interesting argument that stating reasons grounded in both fact and law as to why a permissive presumption should not be entertained is a challenge to Commission regulations. 10 CFR S 2.758(a).
Obviously, the Staff believes that the presumption is both mandatory and irrebuttable.
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Second, the Staff sets forth an analysis of the telationship between the basic facts (which it labels conditions precedent for the application of the presumption) and the presumed fact. It then asserts as an igan dixit that "may" means "will". (As noted, the Staff urged rejection of Contention 2 which puts at issue the basic facts necessary for considering the presumption.) The language chosen by the Commssion, however, clearly indicates that afinr. the basic facts are established this Board "may" entertain the presumption.
Third, the Staff argues that this Board is bound to read the word "may" as "will" because in the other best-efforts assumption in the rule -- characterized as an irrebuttable presumption by the Commission -- the word is "will". The short answer is: "will" means "will" and "may" means "may" and by using both in one rule the Commission intended to distinguish and not collapse these presumptions.
Fourth, the Staff presents an argument which the Mass AG is unable to follow. Staff's Response to Contentions at 13, first paragraph.
Finally, the Staff argues that the rule-making record justifies a reading of "will" for "may". "(I]t would be contary to the Commission's stated intent if application of the presumption were left to the discretion of adjudicatory boards
. . . . Ld. at 13-14. Yet, the stated intent of the Commisson is "may" and not "will".
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Contention 4:
Aeolicants: Applicants do not address the gravamen of 1
this contention which asserts that'because of contrary evidence on the dispositive issue of implementation no adequacy finding will be possible.
Staff: Similarly, the Staf f bases its objection cni the irrebuttable nature of the presumption. Staff's reference to financial qualification issues is a total misreading of that portion of Basis A~touching on the limited powers of debtors-in-possesion to act outside the ordinary course of business.
Contention 5:
I applicants: Applicants seriously misread this contention which does not challenge the presumption but raises i
detailed factual (as well as legal) issues concerning the adequacy of the presumed implementation of the SpMC by the Commonwealth. Such an inquiry is mandated by 10 CFR 50.47(c)(1).
Staff: First, Staff misreads this contention as an attack on the presumption. It is not. It is raising the issue of the adequacy of the "expected response." The presumption does not encompass an additional assumption that the governments' implementation of the SpMC will be adequate.
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Second, the Staff argues that any legal contention is a challenge to the regulations. tJothing is se* forth to support this assertion.
Third, the Staff _onfuses flexibility with unpredictability. The contention does not fault the SpMC because it is flexible but because its optional modes make it impossible for this Board to give any content to the notion that the relevant governments would "generally follow" the plan and thereby predict the adequacy of the response.
Finally, inexplicably, the Staff finds Basis C, which asserts that the actual implentation of the SpMC by state personnel will not constitute an adequate response, to be an attack on the presumption, which it manifestly is not.
Contention 6:
Acolicants: As if it were a mantra, the Applicants make the same response.
Staff: First, again without any reasoned basis, the Staff asserts that a challenge to the legality of a delegation of authority pursuant to a utility plan, is a challenge to the regulations.
Second, the Staff, acknowledging that a legal issue involving bankruptcy law is presented by the contention, opposes its admission on the gounds that the financial J
o qualifications issue is before the Appeal Board. This is a n2n-sequitur. Further, the Staff engages in legal argument about the meaning of bankruptcy law. Such arguments would be more appropriate in response to the issues on the merits.
PARI _1: ERQEOSED_SIRUEIURE_Qf SPMC LLTJ_ GAT 1011 TRACK 1: Preliminary issues should be determined. The adequacy of the SPMC should be litigated as a paper plan, setting aside the issue of implementation and ancillary matters. If it is determined that it is an adequate plan but for governmental non-participation then the litigation should go forward to the issue of the implementation of the SPMC.
TRACK 2: The legality of any delegation of authority must be resolved in the first instance, in the courts of Massachusetts. Depending on the outcome, very different modes of implementation of the SPMC will be possible.
TRACK 3: If this Board has determined that as a paper plan the SPMC is adequate, the issue of its implementation must then be resolved. The presumption may or may not be employed by this Board to address this issue. If it is used, then a record o
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must be developed to determine whether the Commonwealth can rebut that presumption.
Respectfully submitted, JAMES M. SHANNON ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS
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' As istant Attorney General 14dclear Safety Unit Department of the Attorney General One Ashburton Place Boston, Mn 02108 (617) 727-5575 Dated: June 20, 1988 J