ML20196F789
| ML20196F789 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 11/30/1988 |
| From: | James Smith PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML20196F794 | List: |
| References | |
| CON-#488-7626 OL, NUDOCS 8812140126 | |
| Download: ML20196F789 (2) | |
Text
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Nbe e
30, 1988 wi UNITED STATES OF AMERICA ;', y l' #-
l NUCLEAR REGULATORY COMMISSION l
before the ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
7
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL NEW HAMPSHIRE, et al.
)
50-444-OL
)
i (Seabrook Station, Units 1 and 2)
)
(Off-site Emergency
)
Planning Issues) i I
i I
APPLICANT'S MOTION FOR LEAVE TO FILE APPLICANTS' "RESPONSE TO ANSWER OF THE I
MASSACHUSETTS ATTORNEY GENERAL IN OPPOSITION TO APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION OF JOINT INTERVENOR CONTENTIONS 44A AND 44B" On October 7, 1988, Applicants submitted "Applicants' l
l Motion for Summary Disposition of Joint Intervenor Contentions 44A and 44B" ("Motion").
On November 7,
- 1988, l
I Mass AG filed his "Answer of the Massachusetts Attorney i
General in Opposition to Applicants' Motion for Summary i
Disposition of Joint Intervenor contentions 44A and 44B i
("Answer").
Applicants hereby move this Board for leave to file the attached "Response to Answer of the Massachusetts Attorney General in Opposition to Applicants' Motion for l
i 8812140126Ogh43 PDR ADOCK O PDR G
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Summary Disposition of Joint Intervenor Contentions 44A and 44B" ("Response").
Applicants recognize that ordinarily a party has no right of reply to a motion for summary disposition.
- However, the unique circumstances surrounding Applicants' Motion warrant an exception to this rule.
Such a reply was contemplated by this Board.
Prehearing Conference, 8/4/88, Tr. 14703.
The Board recognized that Applicants were required to file their Motion without the benefit of knowing in advance dass AG's entire legal argument.
If denied the opportunity to fully address Mass AG's argument, Applicants l
would be prejudiced.
As anticipated, Mass AG has raised l
t arguments not foreseen at the time Applicants' filed their I
Motion.
Moreover, through discovery, Applicants subsequently l
obtained a document supporting their position and rebutting one of Mass AG's arguments.
Applicants need an opportunity l
t to respond to these arguments.
t i
L By their attorneys j
jW ha A/^#
I Thoma's G.
DiThan, Jr.
I George H. Lewald Kathryn A. Selleck
[
Jeffrey P. Trout
[
Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 (617)423-6100 I
'k l
0 November 30, 1988 I
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMM7,SSION l
before the ATOMIC SAFETY AND LICENSING BOARD I
)
l In the Matter of
)
i
)
I PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443aOL l
NEW HAMP3 HIRE, et al.
)
50-444-OL l
)
(Seabrook Station, Units 1 and 2)
)
(Off-site Emergency J
)
Planning Issues)
[
)
i l
APPLICANTS' RESPONSE TO l
"ANSWER OF THE MASSACHUSETFS ATIORNEY GENERAL IN i
l OPPOSITION TO APPLICANTS' MOTION FOR SUMNARY DISPOSITION
{
l OF JOINT INTERVENOR CONTENTIONS 44A AND 44B" f"ANSWER")
l l
l I.
Background
j 1
i on October 7, 1988, Applicants submitted for Board i
consideration "Applicants' Motion for Summary Disposition of Joint Intervenor Contentions 44A and 44B" ("Motion").
"Applicants' Memorandum in Support of Motion for Summary Dispesition of Joint Intervenor Contentions 44A and 44B" I
("Memorandum") filed therewith demonstrates that as a matter of law there are no legal impediments to the conference of governmental authority requisite to implement the SPMC.
It I
j I
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I examines and refutes each of the impediments that Mass AG postulated in hire several contention bases that would prevent l
the NHY ORO from acquiring the authority to implement the l
l SPMC in the event of an emergency, on November 7,
- 1988,
'4 ass l
AG responded to the Applicants filing with an "Answer of the l
Massachusetts Attorney General in opposition to Applicants' Motion for Summary Disposition of Joint Intervenor Contentions 44A and 44B" ("Answer").
That Answer, however, incorrectly characterizes the authority that the legislature 1
l of the commonwealth of Massachusetts ("Legislature") may vest l
in the Governor, the authority actually vested in the l
Governor, the authority that the Legislature permitted the l
l Governor to delegate and the authority necessary for the NHY l
ORO to implement the SPMC.
These mischaracterizations greatly obfuscate the matter of legal authority delegation and seek to frame issues where there are none.
In order to pierce through the confusion the Answer would wrought upon us, it is necessary to begin with an understanding of the authority required to implement the SPMC.
First and foremost the plan does not call for the Governor to delegate to the NHY ORO all of the state's police power.
Nor does it call for the Governor to delegate to the NHY ORO all of the powers granted to him by the Legislature in enacting the CDA.
Rather, the plan simply calls for the Governor to authorize the NHY ORO in a very limited sense to I 1 I
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implement the SPMC to respond to a specific emergency at Seabrook Station and thus assist the state to the extent the I
t commonwealth, because of its unwillingness to plan, is unable to respond on is own.
It does not call for NHY ORO authority l
j to administer or to enforce the criminal law or police
(
regulations.
I' sing the format of Mass AG's Answer point by l
point to avoid 'arther confusion, this Response will reaffirm as a matter of law that the Governor may lawfully delegate to l
the NHY ORO the authority needed to implement the SPMC.
[
II. Argument A.
The Legislature's Police Power - Powers That The l
Legislature May Delegate Mass AG's Argument begins with a discussion of the Legislature's police power and the Legislature's ability to delegate those powers.
Not surprisingly, Mass AG correctly l
observes that the power to make laws for the protection of l
I the public health and safety is a legislative power.1 Mass j
AG goes on to assert that "(v) hen the legislature assigns the responsibility to innlement a legislative policy to other component parts of government -- such as a policy calling for l
1 a high level, coordinated governmental response to an
(
l
"(T)he police power, the power vested in the i
legislature by the constitution, to make, ordain and
[
establish all manner of wholesome and reasonable laws, t
statutes and ordinances, either with penalties or without l
as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same.
Commonwealth I
- v. Alger, 61 Mass. (7 Cush.) 53, 85 (1851).
i
d 1
emergency -- it has ' delegated' police powers to those component parts."
Answer at 9.
Applying this principle to the CDA, Mass AG concludes that "the legislature has
' delegated to the Governor' in the CDA authority to exercise certain police powers."
Idi Mass AG elaborates on this l
l statement in a footnote.
He states that "'(p)olice powers' l
l are delegated by the legislature to public officials or l
l political subdivisions" and that "(d)elegation of ' police l
l powers' is logically distinct from a delegation of ' law-t I
making' powers."
Answer at 9 n. 12.
These statements need clarification.
i In Boston Elevated Railvav v. Connonwealth, 310 Mass.
528, 39 N.E.2d 87 (1942) the Massachusetts Supreme Judicial Court observed that "(i)t is not unusual to describe the police power as 'the right to enact lawe in the interests of l
the public health, the public safety, the public morals and the general welfare."
Id2 at 552, 107.
That case considered whether granting to a private
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company 4.s irrevocable contract to operata ; -trict railway
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l ancanted to an improper abandonment of the commonwealth's police power.
The court made it clear that "(t]he police power herein referred to, however, though of broad scope, has a narrower signification than the police power in its i
comprehensive signification - as the term ' police power' is sometimes used
' embracing in substance the whole field of I l 1
i
t State authority.'"
Id2 at $53, 108.
The court concluded that "the principle that the police power cannot be bargained away does not wholly preclude the Legislature from dealing with public rights by contract so as to prevent subsequent legislative action in violation of such a contract."
i Trom this case it is clear that the Legislature is not permitted to abandon its "police power" as used in its broader sense of making laws and determining policy.
The Legislature, however, may vest in others "police power" as
(
used in its narrower sense of dealing with and the carrying l
out of public rights.
L This distinction between those powers that the j
Legislature may delegate and those that it must retain has been made repeatedly.
As stated in Applicants Memorandum, I
the Justices of the Supreme Judicial
' Wrt. in their coinion of the Justices, 328 Mass. 674, 105 h.1' 565 (1952),
I I
observe that the "principle that the legislative power cannot be delegated is not, however, applied in all instances with absolute literal inflexibility.
one qualification is that j
where the Legislature by statute lays down a general policy l
to be pursued it may delegate the working out of details to' j
I some officer or commission, whose acts in pursuance of the general plan, although legislative in character, are valid."
145 at 676, 566.
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B.
The CDA and the Legislative Scheme - The Authority Vested in the Governor and his Ability to Delegate that Authority Mass AG next discusses the CDA and the legislative scheme.
If the distinction between those powers that the Legislature may delegate and those that it may not is kept in i
mind, it is readily apparent that Mass AG's :haracterization l
of the CDA is to be rejected.
ll 1
Mass AG's argument centers on the use of the word l
3 "administrative" before authority.
Mass AG states "Clearly, the legislature intended to identify a subset of i
the powers and authority granted to the Governor -- labelled j
' administrative authority' -- and permit him to delegate those powers."
Answer at 19.
Mass AG finds "support for this interpretation of the scope of the Governor's delegable ' administrative authority
- under the CDA" in the legislative history of the statute, 12e., a draft copy of the Act, appended to his Answer as Exhibit 2.
In particular, Mass AG points to the interlineation of the words "any administrative" between the words "may delegate" and "authority".
Mass AG claims that this "indicates a legislative intent to distinguish between those powers and authority which the Governor may subdelegate and those he must retain."
Answer at 20-21.
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1 As a preliminary matter, the interlineation of the words j
i "any administrative" in the Report of the bill of the Committee on Military Af fairs and Public Safety even if s
attributed a discrete meaning carries little weight.
(
)
"(L)egislative history and legislative intent do not mean the
[
]
same thing."
Sutherland Stat const. I 48.01 (4th ed.).
The
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teras are not coextensive.
There is no indication as to
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I t
j how, when or by whom these words were added.
Based solely on j
t i
I the Committee's Report of the bill, it would be impossible to f
I 1
establish whether the insertion was a conscious decision on a
j the ra-t of the Committee.
Consequently, any significance l
that "ass AG attributes to the fact that these words occur as i
an interlineation in order to distinguish them from the 4
i powers that must be retained is aisplaced.
Indeed, it would seem that "this is a case for applying the canon of i
construction of the wag who said, when the legislative j
history is doubtful, go to the statute."
creenwood v. Unitqd Etates, 350 U.S. 366, 374 (1956).
1 1
Section 4 of the CDA states, in relevant part, that the 1
Governor "may delegate any administrative authority vested in 1950 Mass. Acts 639 at 5 4.
The j
him under this Act words "any administrative" do not constitute a diminution of j
the power of the Governor to delegate to a subset of authority such as running an office.
The Legislature, by using the word "administrative" was simply more succinctly I
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describing the authority it delegated to the Governor.
In I
particular, "administrative authority" describes the, limit of the authority that the Legislature may permissibly delegate l
l to the Governor in the first instance, i.e.,
the working out j
of the details of legislative policy.
3.gg Oninion of the f
t Justices, 302 Mass. 605, 615-19, 19 N.E.2d 807, 814-15
[
(1939)(using word "administrative" in distinguishing between legislative power and that conferred on the executive).
In t
the context of the CDA, the "administrative authority" l
delegated to the Governor is the authority to implement or execute the legislative policy of protecting the citizens of
)
I the commonwealth in the event of an emergency.
l Administrative, in other words, is descriptive, it is not a modifier.
Mass AG characterizes "the Applicants' argument that the Governor is permitted to subdelegate to private persons the powers delagated to him in the CDA.
(as)
.a j
reductio ad absurdum," Ansver at 22, i.e.,
that "those powers f
I reach to the constitucional limits of the legislature's I
emergency authority."
Based on this, he concludes that j
"[t]he permission to subdelegate ' administrative authority' set forth in section 4 should not be interpreted as authority j
to subdelegate any and all emergency powers delegated to the l
Governor under the CDA to any one at all including private f
persons."
I.
t
.f k
0 Again, Mass AG's argument fails to appreciate the well led distinction between those police powers that tha sgislature may delegate and those that it may not.
The powers delegated to the Governor do not "reach the constitutional limits of the legislature's amargency authority."
Id2 The Legislature has only vested in the Governor what could be termed its administrative authority, i.e., the working out of the details of the legislative policy to protect the citizens of the Commonwealth in the event of an emergency.
The Governor, in turn, may delegate s'1ch "administrative authority" to private persons.
Of interest here is the declaration of the Governor of the Commonwealth at the time the CDA's life was made indefinite.
The Preamble to Executive Order No. 272, dated June 23, 1955, states:
2 WHEREAS, Acts of 1950, Chaptor 639, Section 8, authorizes the Governor to exercise any power, authority or discretion conferred on him be any provision of said Chapter 639 which requires preparation in anticipation of a declaration of a state emerqency through such department or agency of the Comn~ )avealth or its political subdivisions, or thrcugh such person, as he may direct, and to prescribe regulations governing the conduct of such depattment, sgoncy or person in so acting; and 2
When Applicants filed their Motion they were unaware of this Executive Order.
Only '.arough subsequent discovery of Mass AG did Applicants become aware of this document.
Consequently, Applicants did not include this argument in their Memorandum.
1 l t
WHEREAS, the probable conditions in a state of emergency declared because of enemy attack, sabotage or other hostile action, would permit effective exercise of certain emer?'9ncy powers conferred upon the Govarner only by the exercise of such powers through vcrious departments or agencies of the Commonwealth or its political subdivisions or through various persons....
From this it is clear beyond peradventure that the chief executive charged with carrying out the legislative will anticipated delegation to private parties of the full scope of any power, authority or discretion conferred on him unde-the CDA by the Legislature.
Mass AG finally contends that "(p)rior emergency powers legislation had not distinguished between those powers which the governor could delegate and those -hat he could not."
Idz at 21.
Mass AG cites the commonwealth sefense Act of 1917 (1917 Mass. Acts J42) as an example of such legislation.
Mass AG goes on to argue that, unlike the CDA, "the earlier war-time emergency powers legislation permitted the Governor to subdelegate any and all of his powers to any cerson."
- ewer at 21 (emphasis in original).
From this he concludes that "it is clear that the words 'any administrative' added to section 4 of the CDA in 1950 were intended as words of limitation on the Governor's capacity to s'obdelegate."
Idt Clearly Mass AG has singled out a difference without i
distinction.
There is no distinction between "any and all of (the Govsrnor's) powers" and the Governor's "administrative authority."
The argument is an empty one.,
a i
Mass AG raises several subsidiary arguments that, while adding more measures of confusion, fail to establish that the a
Governor could not legally follow the utility plan.
For example, Mass AG alleges that Applicants' reliance on cases i
upholding delegations of authority by the legislature to I
private persons is misplaced.
He argues that "a a
Aghdelegation by a public official of discretionary police powers delegated to him by the legislature is entirely l
distinct from the legislature itself expressly delegating certain limited law-making powers to private persons."
Answer at 11.
In making this argument, Mass AG fails to acknowledge i
that, while not directly delegating to private persons the l
responsibility of implementing the legislative policy, the Legislature permitted this to be done indirectly.
The legislature has delegated to the Governor the authority to implement the legislative policy of the protection of the citizens of the C3mmonwealth.
The Legislature has also expressly permitted the Governor to delegate the "administrative authority" to implement this legislative policy.
Mass AG has cited no cases stating that the Governor cannot delegate power vested in him, where tha legislature expressly allowed for such aelegation.
Moreover, the CDA does not prohibit subdelegation to private parties.
In fact, the CDA contenplates private involvement - the Governor may "co-operate with... private agencies."
1950 Mass. Acts 639 at 5 4.
As the case law cited in Applicants' Memorandum makes clear, the Legislature may delegate to a pr!vate person the implementation of details of a legislative policy.
Mass AG goes on the argue that (ijn fact, if any public official to whom authority has been delegated can delegate that authority to private persons without express authorization to do so in the statute initially delegating authority to him, then the exception to the general rule of 'nondelegation of powers' swallows that rule.
Answer at 11.
Mass AG cites the Ooinion of the_dpstices, 328 Mass. 674, 105 N.E.2d 565 (1952), for the general rule of "nondelegation of powers."
However, as discussed, this opinion acknowledges one qualification to the general rule:
Where the Legislature by statute lays down a general policy to be pursued, it may delegate the working out of details to some officer or commission.3 Id2 at 676.
The Legislature has expressly authorized the delegation of powers vested in the Governor.
It is difficult to see how an authorized subdelegation to work out the details of a legislative policy could swallow the general rule that the Legislature cannot "abandon" its powers any more than if there is no subdelegation.
The fact that there is a subdelegation or 3
Moreover, Mass AG cites no case to support the above proposition or the proposition implied therein and stated explicitly elsewhere that "any delegation or subdelegation of discretionary authority to a private person requires express language."
Answer at 11. _
that the subdelegation is to a private party does not expand the boundary of the qualification, and thus cannot "swallow the rule."
The only way that the exception to the general rule of "nundelegation" of powers could "swa. low the rule" would be if the delegatee of the powers were to subdelegate the power without authorization from the Legislature.
In such a case, however, it would be the subdelegation that would violate the general rule because the subdelegator would not have the authority to delegate the powers of the initial delegator.
C.
Delegation Versus Assistance - The Authority Needed by the NHY ORO to Implement the SPMC Mass AG's argument, under the subsection entitled "Delegation Versus Assistance," is at least a semantical one.
It nevertheless demonstrates Mass AG's own misreading of the authority that is required for the NHY ORO to implement the SPMC.
Mass AG contends that Applicants' argument that "there is ample precedent for the legislature to delegate or authorize the delegation of authority to private persons in times of emergency," Memorandum at 9, is a "non-starter because not one of the statutes cited involves a delegation of authority."
Answer at 23.
Mass AG goes on to state that
"(i)nstead, these statutes, as well as many others, simply permit private persons, by contract or otherwise, to assist public officials and agencies in meeting their statutory obligations."
1d2 Mass. AG fails to show how a statute that permits cities and towns to contract out, for example, fire fighting services to private persons does not involve a delegation of authority to these individuals.
Mass AG appears to be equating "delegation" with the granting of "police powers" as that term is used in its broadest sense of policy / law-making.
The SPMC does not call for, nor does it need, such authority.
To use the words of Mass AG, the SPMC only requires the authority to assist the Governor in meeting his statutory obligations.
To the extent the state needs assistance, the Governor may delegate to the NHY ORO the authority to provide it.
D.
Procedural Context Before it addresses the Motion, Mass AG's Answer claims that there are several issues "encompassed by Joint Intervenor 44A and 44B" that "have not been put in issue by the Applicants."
Answer at 4.
Applicants contend that each i
of these issues have been addressed, either explicitly, or implicitly by their motion.
These will be considered here in turn.
First, Mass AG argues that MAG 6 "presented the issue of who could make such a delegation (of ' police powar=')
assuming it were lawful."
Id3 Mass AG apparently contends l
that Applicants have not addressed the issue because, "the Applicants by affidavit or otherwise have not sought to clarify the plan."
Idz Once it is established that the Governor may subdelegate the authority vested in him by the Legislature, this issue disappears.
Gj/en the fact that the Governor may delegate his authority, this could include authorizing a "designee,"
the Director of the MCDA/OEP, the Director's senior duty officer, and the duty officer who happens to be at Framingham EOC at the time to subdelegate that authority to the NHY ORO.
Second, Mass AG observes that "Joint Intervenor 44A unequivocally asserts that the activities contemplated by the SPMC are ' ultra vires under the laws of New Hampshire and Massachusetts.'"
Idz Mass AG then argues that "the Applicants present not a single word of argument in support of their conclusory assertion (that the activities envisioned for PSNH, NHY and/or the N)' ' ORO are not ultra vires)."
Id2 Contrary to Mass AG's assertion, Applicants have addressed this matter in respect of Basis C, the only basis going to the question of whether the Applicants' activities are ultra vires under the laws of New Hampshire and Massachusetts.
Egg Memorandum at 11-15.
Applicants cannot be expected to anticipate additional, unarticulated bases, particularly when one of the bases arguably goes to the point raised in the contention.
To the extent Mass AG has an i
additional basis, he has not met his burden of proceeding j
with the evidence in support c,.' that additional assertion.
Mass AG fina.ly argues that "the issues presented in Joint Intervenor 44A and 44B concerning (whether a foreign corporation that had formed and maintained an emergency response organization could be a proper) recipient of a delegation of police power as contemplated by the SPMC is simply not joined in the Applicants' present motion."
Answer at 8.
This argument merely asserts that Applicants have not joined Basis C because Applicants' arguments have not disposed of that basis.
Applicants disagree.
Applicants contend that their motion summarily disposes of all issues in that Basis.
Consequently, Applicants stand by their previous filing.
In a footnote Mass AG argues:
(T]he Applicants fail to grasp the significance of the fact that PSNH is a foreign corporation not qualified to do business in Massachusetts.
The contention challenges the contemplated delegation of authority on the grounds that the recipient is an inappropriate one, inter alia, because PSNH cannot to business in the Commonwealth.
Thus, the fact that enforcement of Chapter 181 requires affirmative action by the Commonwealth is irrelevant.
l As a matter of law, a delegation of police power, even if it t are otherwise lawful would not be permitted to a foreign corporation not qualified to do business in Massachusetts.
Id2 at 7 n.
- 9. I r
^l Mass AG has failed to satisfy his burden of proceeding with.the evidence in support of this Basis.
Mass AG, other than his own ipse dixit, has offered no evidence that, as c matter of law, a delegation of police power wculd not be permitted to a foreign corporation not qualified to do business in Massachusetts.
Applicants, in their motion, have demonstrated that PSNH, and more particularly NHY ORO, may, indeed, act in the Commonwealth.
Memorandum at 11-15.
What Mass AG has lost sight of in raising the specter of Chapter 181 proscription is that the business to be done us. der the SPMC in the event of a radiological emergency is not PSHH's nor NHY ORO's but that of the Commonwealth.
E.
Statement of Material Facts Not in Dispute Mass AG. states that "Applicants' (statement of)
' material facts' (not in dispute) for the most part are actually very disputed statements of law."
Answer at 3 n.3.
What Mass AG fails to recognize by so stating is that the
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issue he joins is not with the "material facts" but with the statements of law.
Overlooking this, he goes on to state that "(ijn the absence of an appropriate statement of material facts, the factual averments in the contentions should be assumed to be undisputed for the purposes of deciding this motion."
Id.
But, giving effect to their legal bases being established, the material facts concluded i '
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i therefrom, as set forth in Applicants' statement, are appropriate to the allowance of the motion.
Mass AG asserts that Applicants have "not challenged by affidavit or otherwise the specific allegations set out in these contentions regarding the scope of authority that would have to be delegated if the SPMC were to be successfully implemented."4 Answer at 2.
In Basis A.2, Mass AG asserts that the NHY ORO requires twelve additional powers beyond those listed in IP 2.14, Attachment 7 in order to successfully implement the SPMC.
Mass AG, however, has provided no factual basis in support of these bald assertions.
At most, these allegations are unsupported legal conclusicns predicated on a redraft of the Plan in a way that is conceptually acceptable to Mass AG to be carried out with to:al abdication of governmental responsibility.
In an attempt to show that the Governor cannot legally delegate authority to the NHY ORO to implement than the SPMC, Mass AG has conceptualized a plan that would require absolute governmental authority.
Unsupported "straw men" should not be allowed, in their own right, to impede summary disposition of an entirely distinct issue.
Mass AG, however, if he is to litigate, must litigate the SPMC.
Applicants have 4
As a preliminary matter, Mass AG's statement that the specific allegations are set out in the contentions is incorrect.
Mass AG's "allegationo" are set out as bases, not as contentions.
demonstrated that the authority required for successful implementation of the SPMC may be permissibly delegated by the Governor.
III. Conclusion Mass AG, in his Answer, fails to appreciate the nature of the authority needed to implement the SPMC and the Governor's ability te delegate that authority to the NHY ORO.
Pursuant to the CDA, the Legislature has permissibly vested in the Gcvernor the authority to implement the legislative policy of protecting the citizens of the Cor.monwealth in timos of emergency.
To facilitate this, the Legislature permitted the Governor to dalegate the full range of this authority.
The SPMC, however, only calls for the Governor to authorize the NHY ORO to implement its plan to respond to a specific emergency at Seabrook Station and thus assist the State to the extent the State, because of its unwillingness to plan, is unable to respond.
The CDA clearly contemplates delegation of this type of authority to a private party such as the NHY ORO.
Respectfully submitted A*f Thomds G.
Dibnan, Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Ropes & Gray 225 Franklin Street Boston, MA 02110 (617)423-6100 Counsel for Aeolicants O
u.m: p
,CERTIFLQATE OF SERVICE
'E6 DEC -5 A10:06 I, Jay Bradford Smith, one of the attorneys for the Applicants herein, hereby certify that on November. 3,0,, 1988, I made service of the within document by depositingscopies thereof with Federal Express, prepaid, for delivery to (or, where indicated, by depositing in ths United States mail, first class postage paid, addressed to):
Administrative Judge Ivan W. Smith Robert Carrigg, Chairman Chairman, Atomic Safety and Board of Selectmen Licensing Board Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03861 East West Towers Building 4350 East West Highway Bethesda, MD 20814 Judge Gustave A.
Linenberger Diane Curran, Esquite Atomic Safety and Licensing Andrea C.
Ferster, Esquire Board Panel Harmon, Curran & tousley U.S.
Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.
East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Dr. Jerry Harbour Stephen E. Merrill Atomic Safety and Licensing Attorney General Board Panel George Dana Bisbee U.S. Nuclear Regulatory Assistant Attorney General Commission Office of the Attorney General East West Towers Building 25 Capitol Street 4350 East West Highway concord, NH 03301-6397 Bethesda, MD 20814 Adjudicatory File Sherwin E. Turk, Esquire Atomic Safety and Licensing Office of General Counsel Board Panel Docket (2 copies)
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission East West Towers Building One White Flint North, 15th Fl.
4350 East West Highway 11555 Rockville Pike Bethesda, MD 20814 Rockville, MD 20852
- Atomic Safety and Licensing Robert A. Backus, Esquire I
Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.
O.
Box 516 Commission Manchester, NH 03105 Washington, DC 20555 u
I e
l Philip Ahrens, Esquire Mr. J.
P. Nadeau Assistant Attorney General Selectmen's Office Department of the Attorney 10 Central Road General Rye, NH 03870 Augusta, ME 04333 Faul McEachern, Esquire cerol S. Sneider, Z3 quire Matthew T.
Brock, Esquire 7 sistant Attorney General Shaines & McEachern Espartment of the Attorney 25 Maplewood Avenue General P.O.
Box 360 One Ashburton Place, ;9tn Fl.
Portsmouth, NH 03801 Boston, MA 02108 Mrs. Sandra Gavutis Mr. Calvin A. Canney Chairman, Board of Selectmen City Manager RFD 1 - Box 1154 City Hall Route 107 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
- Senator Gordon J. Humphrey R. Scott Hill-Whilton, Esquiro U.S. Senate Lagoulis, Clark, Hill-Washington, DC 20510 Whilton & McGuire (Attn:
Tom Burack) 79 State Street Newburyport, MA 01950
- Senator Gordon J. Humphrey Leonard Kopelman, Esquire One Eagle Square, Suite 507 Kopelman & Paige, P.C.
Concord, NH 03301 77 Franklin Street (Attn:
Herb Boynton)
Boston, MA 02110 Mr. Thomas F. Powers, III Mr. William S.
Lord Board of Selectmen Town Managar Town of Exeter Town Hall - Friend Street 10 Front Street Amesbury, MA 01913 Exeter, NH 03833 H. Joseph Flynn, Esquire Charles P. Graham, Esquire Office of General Counsel Murphy and Graham Federal Emergency Management 33 Low Street Agency Newburyport, MA 01950 500 C Street, S.W.
Washington, DC 20472 Gary W. Holmes, Esquire Richard A. Hampe, Esquire Holmes & Ells Hampe and McNicholas 47 Winnacunnet Road 35 Pleasant Street Hampton, NH 03841 Concord, NH 03301 v
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Mr. Richard R. Donovan Judith H. Mizner, Esquire Federal Emergency Management 79 State Street. 2nd Floor Agency Newburyport, MA 01950 Federal Regional Center 130 228th Street, S.W.
Bothell, Washington 98021-9796 Ashod N. Amirian, Esquire 145 South Main Street P.O.
Box 38 Bradford, MA 01835 Robert R.
Pierce, Zsquire John H. Frye, III, Alternato Atomic Safety and Licensing Chairman Board Panel Atomic Safety and Licensing U.S. Nuclear Regulatory Board Panel Commission U.S. Nuclear Regulatory East West Towers Building Commission 4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD 20814 James H. Carpenter, Alternate Technical Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
-.-/ 444 Jay Bkadford Smith i
(*= Ordinary U.S. First Class Mail)
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