ML20206M873

NRC Staff Response to Applicant Motion for Summary Disposition of Joint Intervenor Contentions 44A & 44B.* Efficient Conduct of Proceeding Requires That Litigation Continue Under Eralism Rule.Certificate of Svc Encl

ML20206M873
Person / Time
Site:	Seabrook
Issue date:	11/21/1988
From:	Scinto J NRC OFFICE OF THE GENERAL COUNSEL (OGC)
To:	Atomic Safety and Licensing Board Panel
References
CON-#488-7566 OL, NUDOCS 8812020044
Download: ML20206M873 (8)

Text

%dI4 11/21/88

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1. C UNITED ST ATES OF AMERIC A NUCLE AR REGUL ATORY C OMMISSION

'88 NOV 25 P3 :02 BEFORE THE ATOMIC SAFETY AND LICENSING BO ARD r

,a i

In the Matter of Docket Nos. 50-443 OL i

PUBLIC SERVICE COMPANY aF 50-444 OL.

N E W H A M P S HIR E, e_t al.

Off-site Emergency Pltnning.

h (Seabrook Station, Units 1 and 2)

)

1 N RC' ST AFF'S RESPONSE TO APPLIC ANTS' l

MOTION FOR SUMM AR Y DISPOSITION OF JOINT INTERVENOR CONTENTIONS 44A and 44B t

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i On October 7, 1988, Applicants filed a "Motion for Summary Dispo-sition of Joint Intervenor Contentions 44A and 44B" ("Motion"). These I

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two contentions challenge Applicants' legal authority to implement Mode 2 of the Seabrook Plan for Massachusetts Comunities ("SPMC"). A response in opposition to Applicants' Motion was filed by the Massachusetts Attorney General on November 7,1988.1/

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The Staff has reviewed both the Applicants' Motion and the Mass AG's I

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Response. Based upon this review, the Staff considers that the issues l

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f raised by Applicants' Motion involves complex issues of federal bankruptcy l

l and state law, neither of which was drafted with Seabrook offsite radiological emergency planning in mind.

In addition, neither Applicants f

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I 1/

"Answer of the Massachusetts Attorney General In Opposition to f

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l Applicants' Motion for Sumary Disposition of Joint Intervenor 1

Contentions 44Aand44B"(November 7,1988).

("Mass AG's Response").

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f Nk 1

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e 2-nor Mass AG appear to have discussed all apr'icable legal considerations, E 4

or the purportedly "non-delegable functions" cited in the contentions.

l sufficient to permit a proper resolution of the Motion.

The Mass AG fails to address the sweeping power of the Governor to act in an energency. The Governor has been empowered by the legislature to carry out all of the emergency functions (ether than certain military functions) necessary for the purpose of protecting the public peace, health, security, and safety in an emergency. Civil Defense Act, il 1, 4 and 5.

In ex::ution of this responsibility, the Covernor is specifically empowered to "cooperate with the federal government, and with other states and private agencies in all matters pertaining to the civil defense of the l

conoonwealth and the nation." M., 6 4 Included within these powers is l

the authority to "delegate any administrative authority vested in him under this act", M.; "to cooperate with the federal authorities and with the governors of other states in matters pertaining to the conven defense l

or to the connon welfare", Id., i 6; and "to make, amend and rescind orders, rules and regulations pertaining to civil defense", Id., i 20.

t Host significantly, the legislature has authorized the Governor to l

declare "a state of emergency", "whenever the accidental release of l

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For instance, neither party has adequately briefed the authority of

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the Massachusetts legislature or the Governor to suspend any inconsistent laws ir an emergency (see Mass AG's Response at 22 n.26). Nor have they addressed the respensibility of a debtor in possession and trustee in bankruptcy to comply with state and federal laws designed to protect the public health arc' safety.

See, e.g.,

11 U.S.C. I 362(b)(4) and (5); Midlant_i_c National Bank v.

New Jersey i

(F00TNOTE CONTINUED ON NEXT PAGE) i I

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radiation from a nuclear power slant endangers the health, safety, or property of people of the cuaronwealth", Id., 5 5, as amended November 16, 1979.

Further, the Act provides for the issuance of executive orders, general regulations or instructions to State employees, as needed for the Governor to "exercise any power, authority or discretion" conferred upon him by the Act, "either under an actual proclamation of a state of energency... or in reasonable anticipation thereof and preparation therefor."

Id., i 8.

Finally, upon declarino a "state of emergency", the Governor is empowered to exercise "any and all authority over persons and property, necessary or expedient for meeting said state of emergency, which the general court in the exercise of its constitutional authority may confer upon him."

Id., f 7.

Among the powers specifically listed in this regard is the power to suspend "the operation of any statute, rule or regulation which affects the employment of persons within the commonwealth when and at such tires as sus spension becomes necessary... to remove any interference, delay or obstruction in connection with the production processing or transportation of materials... which are necessary because of the existence of a state of emergency."

Id., i 7(k). More broadly, l

the Act provides that "[a]ny provision of any general or special law or of 1

l any rule, regulation, ordinance or by-law to the extent that such i

provision is inconsistent with any order or regulation issued or (FOOTNOTE CONTINUED FROM PREVIOUS PAGE Departrent of Environmental Resources, 474 U.S. 494, 500-04 (1986)

(trustec's object'ives rust yield to governmental interest in the l

public health and safety).

t promulgated under this act shall be inoperative while such order or last-mentioned regulation is in effect."

Id., 5 8A.

These statutory provisions clearly confer broad powers upon the Governor to use in order to provide an effective response to an emergency, including a radiological emergency.

4 The Massachusetts Attorney General cites numerous "reasons" why the Licensing Board should find the NHY-ORO powerless to receive a delegation of authority from the Governor in an emergency. Thus, he argues that the j

NHY-ORO (1) is an unincorporated private organization; (2) is the arm of a bankrupt corporation, powerless to engage in these activities outside its j

usual course of business without Bankruptcy Court approval; and (3) is the am of a foreign corporation not licensed to do business in Massachusetts.

These arguments are unconvincing as restrictions on the power of the Governor to use the services of NHY-ORO as an unicorporated private l

association or to use the services of the individual members of NHY-OR0.

On the other hand, Applicants' Motion offers no support for assuming i

that the Governor may delegate to NHY-ORO his responsibility of selecting and issuing appropriate protective action recorrendations to the public.

The Governor's ultimate decision-making responsibility in this regard is central to his designation as the public official responsible for protecting the public health and safety in an emergency, and is clearly not an "administrative" task. Similarly, it is not clear that the t

Governor nay delerate to the NHY-ORO any duties in the nature of direct riot control, inasmuch as the legislature has specifically withheld that l

task from the unpaid auxiliary police forces which the legislature f

authorized cities and towns to recruit and train.

Civil Defense Act, i

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. 911(c). Accordingly, an argunent could be made that these specific tasks, which are fundamentally coercive and confrontational in character, nay not be delegated to the NHY-ORO.

Further, although it nay be a premise of the SMPC, there is nothing in Applicants' Motion to support the second item set forth in the Applicants' Statement Of Material Facts Not In Dispute, i.e., that "NHY-ORO 3

is the delegatee of the police powers of the Commonwealth of Massachusetts."

Finally, the Staff notes that if the assertions of non-delegability in these contentions should ultinately be decided in Intervenors' favor, i

that result, by itself, would not affect the outcome 01 the proceeding.

Rather, like governmental non-participation for other reasons, the lack of legal authority for a delegation of powers would simply be another reason

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for application of the Commission's "realism rule". Thus, even if the subject contentions are accepted as correct, the focus of this proceeding would turn to the nature of the State and local governments' "best efforts" response.

For this reason, the efficient conduct of this l

proceeding requires that litigation continue to go forward under the realism rule without awaiting a definitive resolution of Contentions 44A and 44B.

Respectfu y7ubmitte 1

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I se Scinto cting Assistant General Counsel for Hearings l

i Dated at Rockville, Paryland this 21st day of November,1988 I

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UNITED STATES OF AMERICA

'M NUCLEAR REGULATORY COMMISSION BEFORE THE AT0 HIC SAFETY AND LICENSING B0f80 g 25 p3:02 In the Matter of

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1. 1 Docket Nos. 50-443 OL't PUBLIC SERVICE COMPANY OF 50 444'OL-NEW HAMPSHIRE, g al.

Off-site Emergency Planning (SeabrookStation, Units 1and2)

CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'5 RESPONSE TO APPLICANTS' MOTION FOR

SUMMARY

DISPOSITION OF JOINT INTERVENOR CONTENTIONS 44A and 44B" in the above-captioned proceeding have been served on.the following by deposit in the United States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Comission's internal mail system, this 21sth day of November 1988:

Ivan W. Smith, Chairman

• Atomic Safety and Licensing l

Administrative Judge Board Panel (1)*

Atomic Safety and Licensing Board U.S. Nuclear Regulatory Comission U.S. Nuclear Regulatory Comission Washington, DC 20555 Washington, DC 20555 Docketing and Service Section*

Gustave A. Linenberger, Jr.*

Office of the Secretary Administrative Judge U.S. Nuclear Regulatory Comission Atonic Safety and Licensing Board Washington, DC 20555 U.S. Nuclear Regulatory Comission Washington, DC 20555 Thomas G. Dignan, Jr., Esq.

Robert K. Gad, III, Esq.

Dr. Jerry Harbour

• Ropes & Gray Administrative Judge 225 Franklin Street Atomic Safety & Licensing Board Boston, MA 02110 i

U.S. Nuclear Regulatory Comission i

Washingten. DC 20555 H. J. Flyna, Esq.

(

Assistarit General Counsel j

Atonic Safety and Licensing Federa'l Emergency Panagement Agency Appeal Panel (5)*

500 C Street, S.W.

U.S. Nuclear Regulatory Comission Washington, DC 20472 Washington, DC 20555 l

l

7 Philip Ahren, Esq.

Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, NH 03801 Augusta, NE 04333 R. Scott Hill-Whilton, Esq.

Carol S. Sneider Esq.

Lagoulis, Clark, Hill-Whilton Assistant Attorney General

& McGuire Office of the Attorney General 79 State Street One Ashburton Place, 19th Floor Newburyport, MA 01950 Boston, MA 02108 Allen Lampert George Dana Bisbea, Esq.

Civil Defense Director Assistant Attorney General Town of Brentwood l

Office of the Attorney General 20 Franklin i

25 Capitol Street Exeter, NH 03833 l

Concord, NH 03?01 l

William Armstrong I

Civil Defense Director l

Diane Curran, Esq.

Town of Exeter Harmon, Curran & Tousley 10 Front Street 2001 S Street, ful Exeter, NH 03833 Suite 430 Washington, DC 20009 Gary W. Holmes, Esq.

Holmes & Ellis Robert A. Backus. Esq.

47 Winnacunnet Road Backus, Meyer & Solomon Hampton, NH 03842 116 Lowell Street Manchester, NH 03106 J. P. Nadeau Board of Selectmen Paul McEachern, Esq.

10 Central Street Matthew T. Brock, Esq.

Rye, NH 03870 Shaires & McEachern 25 Maplewood Avenue Judith H. Hizner, Esq, P.O. Box 300 Silverglate, Gertner, Baker, i

Portsmouth, flH 03801 Fine, & Good l

88 Board Street Charles P. Graham, Esq.

Boston, MA 02110 McKay, Murphy & Graham 100 Main Street Robert Carrigg, Chairman Amsbury, MA 01913 Board of Selectren Town Office Sandra Gavutis, Chairman Atlantic Avenue Board of Selectnen North Hampton, NH 03870 I

RF0 fl bix 1154 Kensington, NH 03027

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William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburypert, MN 09150 Amesbury, MA 01913 Michael Santosuosso, Chairman Mrs. Anne E. Goodman, Chairman Board of Selectmen Board of Selectnen South Hempton, NH 03827 13-15 Newmarket Re d Durham,flH 03324 Ashod N. Amirian, Esq.

Town Counsel for Merrimac Hon. Gordon J. Humphrey 376 Main Street United States Senate Haverhill, MA C8130 531 Hart Senate Office Building Washington, DC 20510 Robert R. Pierce, Esq.*

Atomic Safety and Licensing Richard R. Donovan Board Panel Federal Emergency Management Agency U.S. Nuclear Regulatory Conunission Federal Regional Center Washington, D.C.

20555 130 228th Street, S.W.

Bothell, Washington 98021-9796 ph F. Scinto '

Acting Assistant General Counsel for Hearings