ML20205L946
| ML20205L946 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/30/1987 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | NEW HAMPSHIRE, STATE OF |
| References | |
| CON-#287-2955 ALAB-862, OL, NUDOCS 8704020230 | |
| Download: ML20205L946 (15) | |
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4 80CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION fi MAR 30 A8:52 ATOMIC SAFETY AND LICENSING APPEAL BOARD
. Administrative Judges: ch[9 ./.I"in ']".'
Alan S. Rosenthal, Chairman March 30, 1987 )
Gary J. Edles (ALAB-862) J Howard A. Wilber 3
SERVED MAR 301987 i In the Matter of )
)
PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443-OL NEW HAMPSHIRE, ET AL. ) 50-444-OL
)
(Seabrook Station, Units 1 ) (Offsite Emergency Planning) and 2) )
)
United States Senator Gordon J. Humphrey, Washington, D.C., appellant pro se.
George Dana Bisbee, Concord, New Hampshire, for the State of New Hampshire.-
Thomas G. Dignan, Jr., R.K. Gad, III, and Kathryn A.
Selleck, Boston, Massachusetts, for the applicants Public Service Company of New Hampshire, et al.
Sherwin E. Turk for the Nuclear Regulatory Commission staff.
DECISION A. Before us is the appeal of United States Senator Gordon J. Humphrey of New Hampshire from the Licensing Board's February 11, 1987 memorandum and order (unpublished) in the offsite emergency planning phase of this operating license proceeding involving the Seabrook nuclear facility.
In that order, the Board denied the Senator's petition for leave to participate in the proceeding under the provisions of 10 CFR 2.715(c) as the representative of an " interested ,
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State" (i.e., New Hampshire). The basis of the denial was that section 2.715(c) " contemplates that a government unit of a State, county, municipality or agency will be provided a forum for expression of concerns" and that the Attorney General of New Hampshire is participating in the proceeding under the section "as an agency of and on behalf of the State" and, as such, represents its interest. In this connection, the Board noted that the section does not confer status upon an individual simply because he or she holds office in one of the governmental units named in it (i.e.,
state, county, municipality or an agency thereof) .3 1 Section 2.715 is concerned generally with participation in NRC proceedings "by a person not a party."
Subsection (c) provides as follows:
The presiding officer will afford representatives of un interested State, county, municipality, and/or agencies thereof, a reasonable opportunity to participate and to introduce evidence, interrogate witnesses, and advise the Commission without requiring the representative to take a position with respect to the issue. Such participants may also file proposed findings and exceptions pursuant to SS 2.754 and 2.762 and petitions for review by the Commission pursuant to S 2.786. The presiding officer may require such representative to indicate with reasonable specificity, in advance of the hearing, the subject matters on which he desires to participate.
2 February 11, 1987 memorandum and order at 4, 5 (emphasis in original) .
3 Id. at 5.
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In his appellate papers, Senator Humphrey does not dispute that the Attorney General is participating in the proceeding as a representative of New Hampshire. But the Senator insists that, with regard to a particular
" interested State," section 2.715(c) envisions "the participation of a multitude of representatives holding diverse views."4 On this score, he stresses that the scope of his representation of New Hampshire in the United States Senate extends beyond "[v]ote casting and committee activity" and embraces the protection of the " interests of his state as to all matters, particularly those relating to the federal government, within the scope of his authority and influence, whether or not they appear to be or are affected by federal legislation."5 We are also reminded that the Senator and the Attorney General have different
" jurisdictional responsibilities," and that the former, "as the State's highest representative to federal office, can represent the State's interest from a different vantage point than can the Attorney General."6 Thus, the Senator concludes, his participation would appropriately supplement 4
U.S. Senator Gordon J. Humphrey Brief in Support of Appeal (February 27, 1987) at 5.
5 Id. at 4.
6 Id. at 6-7.
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that of the Attorney General and " effectively maximize the protection of New Hampshire's interest."
New Hampshire, the applicants, and the NRC staff have responded to the appeal. In his brief on behalf of the state, the Attorney General informs us that, under the statutory and common law of New Hampshire, he is the " chief legal officer" of the state and serves as the " exclusive representative of the state as a government entity in civil matters such as [this] proceeding."8 The Attorney General therefore is of the view that, given prior Licensing Board decisions, the Senator would not appear to qualify as a
" representative of an interested State" for section 2.715(c) purposes. Nonetheless, the Attorney General does not oppose the Senator's " participation in this proceeding in his official capacity on behalf of his constituents under Section 2.715(c) if the Appeal Board so allows, or under (10 CFR] 2.714 (a) . "9 l
Id. at 5-6, 7.
8 Brief of the State of New Hampshire in Response to Appeal of U.S. Senator Gordon J. Humphrey (March 13, 1987) at 3, 5.
Id. at 6. Section 2.714 (a) is the provision in the Rules oT Practice governing petitions for leave to intervene as a full party. Any such petition at this late date would be untimely and could be granted only on a favorable balancing of the factors specified in that section.
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4 The applicants urge affirmance of the result below on i the ground that section 2.715(c) "does not contemplate state representation in Nuclear Regulatory Commission proceedings by a member of Congress."10 They add, however, that they
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"do not oppose the Senator's participation in the proceedings by way of a late-filed petition to intervene or a limited appearance."11 For its part, the staff similarly maintains that section 2.715(c) was not intended to provide participational rights to members of Congress and, consequently, the Senator's petition was correctly denied.
B. We affirm the Licensing Board's disposition of the matter. For reasons that will appear, however, the Board ,
should nevertheless allow the Senator to present orally or in writing, as appropriate, his views as amicus curiae on any legal or factual issue presented by the pleadings of the parties or the evidentiary record.
! Applicants' Response to Petition of U.S. Senator Gordon J. Humphrey (March 16, 1987) at 2.
11 Id. at 3. The limited appearance procedure is set forth in 10 CFR 2.715(a). See also section III(b) of Appendix A to 10 CFR Part 2. Persons making limited appearances are not parties to the proceeding and have no participational rights in it beyond the offering of a written or oral statement. Further, that statement is not part of the official record of the proceeding. In the circumstances, we think it unlikely that the Senator might be satisfied with the opportunity to make a limited appearance, and therefore we reject the applicants' suggestion to that effect.
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- 1. For present purposes, we need not consider whether, as Senator Humphrey urges, the Rules of Practice permit more than one individual or entity to participate in an NRC licensing proceeding as a representative of a particular interested state. Nor is it necessary to decide whether, as the applicants and staff assert, in no circumstances can a member of Congress qualify as such a representative. For, no matter how those questions might be answered, the required result would be the same.
As previously noted, the Attorney General of New Hampshire has informed us that, under the law of that state, he has the exclusive authority to represent the state in this proceeding. We accept, as we must, that advice.
Assuredly, in the absence of a controlling contrary judicial precedent, it would be unseemly at best for a federal agency to take issue with the interpretation given by the chief legal officer of a state to the law of that jurisdiction.
In this instance, no party has directed our attention to a New Hampshire judicial decision bringing the Attorney General's interpretation into possible question.
We are equally persuaded that considerations of comity dictate that we defer to New Hampshire law on the matter of what person or persons should be deemed to speak for the state in our licensing proceedings. Section 2.715(c) was promulgated to carry out the congressional directive that, in the furtherance of cooperation between the Commission and
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the states, an opportunity be provided to the representatives of interested states to participate in the adjudication of license applications.12 It is reasonable to assume that the legislative contemplation was that the concerned state, and not this agency, would make the decision respecting who is to serve as its spokesman. Be that as it may, however, it scarcely would fulfill the stated objective of state-Commission cooperation if the NRC were to place the mantle of state representative upon the shoulders of an individual who is precluded by the law of the state from wearing it. Indeed, there appears to be no conceivable basis on which a licensing board could accept the views of an individual in such a category as reflecting the official position of a state on the issue (s) in controversy.13 12 See subsection 1. of section 274 of the Atomic Energy Act of 1954, as amended, 42 U.S.C. 2021(1). The purpose of section 274, entitled " Cooperation with States,"
is set forth in subsection a. That purpose includes the recognition of the " interests of the States in the peaceful l uses of atomic energy."
Although both the statute and, as initially promulgated, section 2.715(c) referred only to a representative of an interested state, the latter was amended in 1978 to encompass representatives of counties, municipalities and governmental agencies having an interest. <
See 43 Fed. Reg. 17,798, 17,802 (1978).
13 In Consolidated Edison Co. (Indian Point, Unit 2),
LBP-82-25, 15 NRC 715, 718-19 (1982), the Licensing Board (Footnote Continued) 4
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4 1 2. The.short of the matter thus is that New Hampshire law (as presented to us without contradiction by the.
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- Attorney General) stands in.the way of Senator Humphrey's participation in this proceeding as a representative of New Hampshire within the meaning of section 2.715(c). l l
Nonetheless, we have not overlooked the Senator's f
d observation that, by. virtue of his office, he is called upon to represent the interests of his constituents, the citizens l
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j of New Hampshire, on all matters relating to the federal n
! government. In this regard, it is likely.that, even though i
not the official spokesman for the state, the Senator could-i supply a perspective that would materially aid the Licensing Board's deliberations on the weighty and complex offsite i How i
emergency planning issues that the Board must resolve.
s this objective might be accomplished remains the question.
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} (Footnote Continued)
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admitted the New York Attorney General to that special j proceeding as a representative of the state within the meaning of section 2.715 (c) despite the claim of the i
licensee that New York law vested that responsibility in the New York State Energy Office. There is some language in the l Board's opinion that might be taken to imply a belief that.
i I state law is not controlling on the question of who is to be I deemed a state-representative for section 2.715(c) purposes.
I But in actuality (and correctly), the Indian Point result ~
rested on the fact (noted by the Board) that the licensee's interpretation of the relevant New York law was not shared by the Attorney General. Moreover, as the' Board also noted, j
j section 2.715(c) now authorizes the separate-admission of representatives of the state and of an agency thereof (such as the State Energy Office). See supra note 1.
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9 As we have seen, the Attorney General and the applicants have expressly stated that they do not oppose the Senator's participation in the proceeding on some basis, even though he does not strictly qualify as a representative of the state.14 But their suggestion that the Senator might now intervene as a party to the proceeding appears flawed.
In contrast to a representative of a governmental body who desires to participate without party status under the aegis of section 2.715(c), a person seeking leave to intervene must (whether a private citizen or a public official) provide the Licensing Board with a list of the contentions he or she wishes to litigate, together with a statement of the basis for them.15 We have been given no reason to believe that Senator Humphrey might be inclined to put forward any specific contention (s), which would necessitate
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his direct and ongoing involvement in so much of the l
evidentiary hearing as might be devoted to the j contention (s).
I What that leaves for examination is the Senator's possible participation in the proceeding as an amicus curiae. To be sure, there is no provision in the Rules of 14 The staff's brief is silent on that score.
15 10 CFR 2.714(b). In the absence of the assertion of at least one acceptable contention, intervention must be denied. Ibid.
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Practice specifically authorizing such participation on the Licensing Board level. The Rules explicitly refer only to the seeking of leave to file a brief amicus curiae (and perhaps to take part in oral argument) before an appeal 6
board or the Commission. But this consideration does not perforce preclude the granting of leave in appropriate circumstances to file briefs or memoranda amicus curiae (or to present oral argument) on issues of law or fact that still remain for Licensing Board disposition.
One rarely, if ever, encounters participation amicus i curiae in the actual trial of factual issues in an evidentiary hearing -- i.e., an amicus curiae customarily does not present witnesses of his or her own or 4
cross-examine the witnesses of the parties. This may well explain why, in focusing upon participation amicus curiae, the Commission thought solely of proceedings on the appellate level. But there is no real difference between an appellate brief amicus curiae and a brief or other submission presented to a trial tribunal that is confined to a discussion of (1) legal issues that have been presented to that tribunal by the parties; and (2) factual issues covered in the evidentiary hearing. The crucial factor is that, regardless of where it files its brief, an amicus curiae 16 See 10 CFR 2.715 (d) .
e 11 necessarily takes the proceeding as it finds it. An amicus curiae can neither inject new issues into a proceeding nor alter the content of the record developed by the parties.1 In light of the foregoing considerations, we find no insuperable barrier to allowing the Senator the same measure of participation amicus curiae before the Licensing Board as he would be free to seek were the proceeding now before us or the Commission on the merits of the emergency planning issues in controversy. Although granting such relief may be unusual in our proceedings, it is no more so than the course recently pursued by the Commission in connection with a staff briefing on a draft proposed rule in the area of emergency response planning. As the Commission Chairman noted at the outset of the briefing:
Ordinarily we do not have public participation on the deliberative process until the Commission has decided to issue a proposed rule for public comment. However, in this case the Commission has made an exception to hear from those governors and members of Congress who have requested the opportunity to present their views oggthe Staff proposal to the Commission directly 17 Indeed, it appears that participation amicus curiae on the basis discussed in the text is not an uncommon feature of federal district court practice. See, e.g., Yip
- v. Pagano, 606 F. Supp. 1566, 1567-69 (D.N.J. 1985);
American Federation of Labor v. Kahn, 472 F. Supp. 88, 91 and n.4 (D.D.C. 1979).
18 Transcript of Briefing on Consideration of Proposed Emergency Planning Rule Changes (Public Meeting) (February 24, 1987) at 3.
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12 The Commission obviously thought that the public officials in question might have something worthwhile to contribute at that early stage of its deliberative process on the proposed rule (i.e., before the draft was put out for public comment). Similarly, we think that Senator Humphrey might make a worthwhile contribution at this early stage of the deliberative process on the offsite emergency planning issues in connection with the Seabrook facility (i.e.,
before those issues reach the appellate level).
Accordingly, we authorize Senator Humphrey, if he so desires, to participate amicus curiae in the proceedings before the Licensing Board to the extent of the submission of his views, orally or in writing as appropriate, on any legal or factual issue presented by the pleadings of the parties or the evidentiary record. The Licensing Board may impose such conditions on the timing of the Senator's presentation as might be reasonable and necessary to avoid undue delay in the disposition of the issues in controversy and to ensure fairness to the parties.
An amicus curiae does not have the right to appeal an adverse decision. Should any aggrieved party take a permissible appeal to this Board from a Licensing Board
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i decision, however, the Senator may file a brief amicus l
curiae restricted to the issues raised by the appellant.19 The denial of Senator Humphrey's 10 CFR 2.715 (c) l petition is affirmed. The Licensing Board is to allow the Senator to participate as an amicus curiae in accordance with the terms of this decision.
It is so ORDERED.
FOR THE APPEAL BOARD
...> . J d _1 = K J
Farbara A. Tompkins' Secretary to the '
Appeal Board fir. Rosenthal, concurring:
Although joining fully in the Board's opinion, I am constrained to record my belief that there are two separate and distinct reasons for not taking very seriously the suggestion of the Attorney General and the applicants that, if denied participation under 10 CFR 2.715(c), the Senator might be allowed to intervene as a party under 10 CFR
- 2. 714 (a) . One of those reasons is noted in the opinion i
the Senator has provided no cause to believe that he would 19 Any such brief must be filed within the time allowed to the party whose position the brief supports. See 10 CFR 2.715(d).
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14 be inclined in any circumstance to assume the significant burdens associated with a section 2.714 (a) intervention.
The other, not similarly developed in the opinion, is perhaps of even greater moment.
An intervention petition at this juncture would be extremely tardy. Consequently, as the Board's opinion observes in passing (note 9), in order to enter the proceeding now as a party under section 2.714(a) the Senator would have to satisfy the Licensing Board that, on a balancing of the five factors ret forth in the Rules of Practice, the tardiness should be excused.1 Whether the 1
Those factors, found in 10 CFR 2.714 (a) (1) , are t (i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
Insofar as the application of the factors is concerned, section 2.714 draws no distinction between private citizens and public officials. To the contrary, the same standards govern the acceptance of all late intervention petitions, no matter who might be their sponsor.
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Senator could overcome this hurdle at such a late stage of the proceeding is problematic. This is true despite the fact that it appears from their briefs that neither the Attorney General nor the applicants would urge the Licensing Board to reject the Senator's intervention petition on lateness grounds. For it is settled that, even if all of the existing parties to a proceeding (or section 2.715(c) non-party participants) choose to waive the tardiness of an intervention petition, the Licensing Board must nevertheless review the petition in light of the five factors. If a weighing and balancing of those factors so dictates, the Board must deny the petition on its own initiative.2 Thus, even should our surmise respecting the Senator's inclination turn out to have been wrong, the reautred conclusion will likely remain the same: if the Senator is now to participate at all in this proceeding, it almost certainly must be in the capacity of an amicus curiae. I agree with my colleagues that allowing such participation on the basis outlined in the Board's opinion is both permissible and sensible.
2 See Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 NRC 461, 466 (1985).