ML20207S598
| ML20207S598 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/16/1987 |
| From: | Sherwin Turk NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2820 OL, NUDOCS 8703200081 | |
| Download: ML20207S598 (11) | |
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DOCKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 87 MAR 18 P4 :24 BEFORE TIIE ATOMIC SAFETY AND LICENSING APPEALCFOARD
In the Matter of
)
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
)
50-444 OL NEW HAMPSIIIRE, e M.
)
Off-site Emergency Planning
)
(Seabrook Station, Units 1 and 2
)
NRC STAFF'S BRIEF IN RESPONSE TO APPEAL OF U.S. SENATOR GORDON J. HUMPHREY FROM THE DENIAL OF HIS 10 C.F.R. I 2.715(c) PETITION Sherwin E. Turk Supervisory Senior Trial Attorney March 16,1987 8703200081 870316 DR ADOCK 0500 3
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March 16, 1987 i
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMf.IISSION DEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of
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Docket Nos. 50-443 OL PUDLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSIIIRE, et al.
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Off-site Emergency Planning
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Issues (Seabrook Station, Units 1 and 2
)
NRC STAFF'S BRIEF IN RESPONSE TO APPEAL OF U.S. SENATOR GORDON J. HUMPIIREY FROM THE DENIAL OF HIS 10 C.F.R. I 2.715(c) PETITION On February 27, 1987, U. S. Senator Gordon J. Humphrey filed an appeal M from the Licensing Board's February 11, 1987 Order b denying his petition to participate in this proceeding as the representative of an 3I interested State under 10 C.F.R.
I 2.715(c). -
For the reasons set l
forth below, the NRC Staff (" Staff") submits that the Licensing Board's Order is consistent with established agency practice as well as with the intent of the regulation, and should be affirmed.
-1/
Senator Ilumphrey filed a " Notice of Appeal" and a supporting brief, captioned "U.S.
Senator Gordon J.
Humphrey Brief in Support of Appeal of Licensing Board Order of February 11, 1987 Denying His Leave to Participate Under 10 CFR 2.715(c)" (hereinafter referred to as " App. Dr.").
-2/
" Memorandum and Order (Ruling on Petition of U.S. Senator Gordon J.
Humphrey for Status as a Participant Pursuant to 10 CFR 2.715(c)," dated February 11, 1987.
-3/
" Petition of U.S.
Senator Gordon J.
Humphrey for Permission to Participate as a State Representative in the Atomic Safety and Licensing Board Proceedings Pursuant to 10 CFR 2.715(c)," filed January 8,1987.
t.
ARGUMENT In his appeal, Senator Humphrey asserts that, "for the purposes of 2.715(c), he is a State governmental unit as he singly occupies an office
... of statewide jurisdiction."
(App. Br. at 3).
Further, he asserts that he was not elected solely to represent his constituents through " vote casting and committee activity" within the U.S. Senate, but that he "has en affirmative obligation to protect 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."
(Id.).
Accordingly, he asserts that his participation in this proceeding under 10 C.F.R.
I 2.715(c) "is in accordance with his official duties and the interest of his constituents on the issue of nuclear power utilization in New Hampshire. "
(Id.).
Finally, Senator Ilumphrey asserts that 10 C.F.R.
I 2.715(c) permits participation by more than one representative of an interested State, and that the New Hampshire Attorney General's participation on behalf of the State does not preclude the Senator's simultaneous representation of the State in the proceeding (Id. at 5-7).
The Staff does not challenge the Senator's description of his offical duties, and his assertion that his participation in this proceeding would fall within the scope of those dutics. O Nor does the Staff challenge the d
4/
Two Licensing Board decisions have reached differing conclusions as to whether elected officials may participate in NRC proceedings within the scope of their official duties.
Compare Consolidated Edison Company of New York (Indian Point, Unit No. 2), LDP-82-25, 15 NRC 715, 725-26 (1982TTmember of county legislature was elected i
i (FOOTNOTE CONTINUED ON NEXT PAGE)
1,
Senator's assertion that otbcr elected officials, such as mayors, gov-ernors, county executives, and agency administrators may participate in Commission proceedings as representatives under 10 C.F.R.
I 2.715(c)
(App. Br. at 3); 5_/ or that more than one governmental unit or repre-sentative may appear on behalf of a State under 10 C.F.R. I 2.715(c). It does not automatically follow, however, that the Senator is entitled to participate in a Commission proceeerg as the representative of an interested State within the scope of 10 C.F.R. I 2.715(c).
The question as to whether a member of Congress may participate in NRC adjudicatory proceedings as the representative of an interested State under 9 2.715(c) is largely one of first impression; the issue is discussed in only one published NEC decision, where it was briefly mentioned in (FOOTNOTE CONTINUED FROM PREVIOUS PAGE to represent his constituents in the legislature, and could not i
represent them in NRC proceedings under I 2.715(c)),
with i
General Electric Co. (GE Test Reactor, Vallecitos Nuclear Center),
LBP-79-28, 10 NRC 578, 582-83 (1979) (Congressman's intervention under I 2.714 found to be within the scope of his offical duties, based on his good faith belief that he was representing his constituents' interests in a matter of public interest).
5_/
10 C.F.R. I 2.715(c) provides as follows:
The presiding officer will afford representatives of an 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 parti-c! pants may also file proposed findings and exceptions pursuant to II 2.754 and 2.762 and petitions for review by the Commission pursuant to 5 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.
I t.
dictum.
See General Electric Co. (GE Test Reactor, Vallecitos Nuclear Center).
LB P-79-28, 10 NRC
- 578, 582 (1979).
- There, a
U.S.
Congressman had petitioned to intervene under 10 C.F.R.
I 2.714, and the Poard tersely stated, in dictum, that 5 2.715(c) "does not apply to Congressmen";
the Board provided no further explanation of this b
See also, Consolidated Edison Company of New York statement.
(Indian Point, Unit No. 2), LBP-82-25, 15 NRC 715, 725-26 (1982) (an elected County legislator was found to have been elected solely to represent his constituents in the County legislature, and was not i
permitted to represent them in an NRC proceeding under 10 C.F.R.
f 2.715(c)).
These decisions appear to interpret correctly the intent of f 2.715(c).
The language of 10 C.F.R.
I 2.715(c) is silent concerning the question of who may qualify as the representative of an interested State.
The rule merely states that
"[t]he presiding officer will afford representatives of an interested State, county, municipality, and/or agencies thereof, a reasonable opportunity to participate An examination of the rule's apparent purpose, however, reveals that it probably was not intended to afford U.S. Senators and Congressmen an l
opportunity to participate in N.R.C. proceedings as " representatives of l
an interested State."
t 6/
In response to the Senator's petition before the Licensing Board, the
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l Staff noted that his participation under 10 C. F. P..
5 2.715(c)
" appears to be inconsistent with certain language in [the Vallecitos decision], but the Staff nonetheless "[did] not object to Senator Humphrey's participation in the Seabrook offsite emergency planning i
(FCOTNOTE CONTINUED ON NEXT PAGE) l l
' i e
In 1959, Congress amended the Atomic Energy Act, with the purpose of fostering cooperation between the Atomic Energy Commission and the various State governments.
As part of these amendments, Congress adopted Section 274(1) of the A ct, which directed the Commission to.
" afford reasonable opportunity for State representatives to offer evidence, interrogate witnesses, and advise the Commission as to the application 4
without requiring such representatives to take a position for or against the grsating of the application. "
42 U.S.C.A.
I 2021(1) (1982). O Pursuant to its authority under Section 161 of the Act, the AEC subsequently adopted I 2.715(c), the language of which followed the language of Section 274(1) of the Act. b In view of the close similarity between the language of 5 2.715(c) l l
and Section 274(1) of the Atomic Energy Act, it seems likely that the (FOOTNOTE CONTINUED FROM PREVIOUS PAGE proceeding under 10 C.F.R. I 2.715(c)".
"NRC Staff's Response to Petition of U.S. Senator Gordon J. Humphrey to Participate Under 10 C.F.R. I 2.715(c)," dated January 29, 1987, at 1, 2.
7/
See Atomic Energy Act of 1954, as amended, I 274(1); and S. Rept.
~
Mir, 86th Cong., 1st Sess., reprinted in 1959 U.S.
Code Cong. &
Ad. News 2872, 2875, 2883.
See also Hearings Before the Joint Committee on Atomic Energy, 86th Cong.,
1st Sess.
(1959),
" Federal-State Relationships in the Atomic Energy Field" (Comments of AEC General Counsel Lowenstein), et 312 (1959).
8/
See 27 Fed. Reg. 377 (Jan.13,1962), adopting various procedural
~
rule changes without explanation, based upon an AEC report on the agency's regulatory program, dated February 1,
1961.
Section 274(1) is not enumerated among the legislative enactments listed as authorizing the Commission's adoption of I 2.715(c).
See Statement of Authority preceding 10 C.F.R Part 2.
Notwithstanding - the omission of Section 274(1) from the Statement of Authority, the
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language of 5 2.715(c) closely parallels the language of Section 274(1), suggesting that the Commission's purpose in adopting this rule was to implement Section 274(1) of the Act.
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1 3 '
i Commission's adoption of I 2.715(c) was intended to implement Congress' intent, in Section 274(1), to foster cooperation between the AEC and the j
various State governments. EI In our view, neither the amendments to f
the Atomic Energy Act nor the AEC's subsequent adoption of I 2.715(c) was intended to afford additional participatory rights to members of Congress, apart from their right to participate -- in the Senate or the House of Representatives -- in Congressional oversight and control of l
Commission activities. EI For this reason, the Staff agrees with the Licensing Board's statement in Vallecitos that 10 C.F.R. I 2.715(c) "does not apply to Congressmen". E Accordingly, the Staff opposes Senator Humphrey's appeal from the denial of his petition to participate in this proceeding under 10 C.F.R.
I 2.715(c) as the representative of an interested State.
9/
The NRC amended Section 2.715(c) in 1978, pursuant to its authority under Section 161 of the Atomic Energy Act, to include counties, cities, and agencies of State, county and city governments; see 43 Fed. Reg. 17798,17799 (April 26,1978).
-10/ Of course, members of Congress are also able to file limited appearance statements under 10 C.F.R. I 2.715(a), and to intervene as parties under 10 C.F.R. I 2.714.
-11/ In addition, the' Statement of Consideration (43 Fed. Reg. 17798, 17799 (1978)) indicates that I 2.715(c) was intended to permit participation by governmental units rather than by officials in their own right:
"this type of cooperation could be extended to other units of government" (emphasis added).
~ - -.
. 6 CONCLUSION For the reasons set forth above, the Staff opposes Senator Humphrey's appeal and recommends that it be denied.
Respectfully submitted, Sherwin E. Turk Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 16th day of March,1987 e
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00CKETED USNRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
',87 MAR 18 P4 :24 BFFORE TITE ATOMIC SAFETY AND LICENSING APPEAkhb hth shNd on e.GH In the Matter of
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Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF
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50-444 OL NEW HAMPSHIRE, eM.
)
Off-site Emergency Planning
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(Seabrook Station, Units 1 and 2
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S BRIEF IN RESPONSE TO APPEAL OF U.S. SENATOR GORDON J. HUMPHREY FROM THE DENIAL OF HIS 10 C.F.R. I 2.715(c) PETITION" 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 Commission's internal mail system, this 16th day of hiarch,1987.
Helen Hoyt, Esq., Chairman
- Gustave A. Linenberger, Jr.*
Administrative Judge Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Dr. Jerry Harbour
- Ms. Carol Sneider, Esq.
Administrative Judge Assistant Attorney General Atomic Safety and Licensing Board Office of the Attorney General U.S. Nuclear Regulatory Commission One Ashburton Place,19th Floor Washington, DC 20555 Boston, MA 02108 Beverly IIoningworth Richard A. Hampe, Esq.
200 Winnacunnet Road New Hampshire Civil Defense Agency Hampton, NH 03842 107 Pleasant Street Concord, NH 03301 Sandra Gavutis, Chairman Calvin A. Canney, City Manager Board of Selectmen City IIall RFD 1 Box 1154 126 Daniel Street Kensington, NH 03827 Portsmouth, NH 03801
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Stcphen E. Merrill Paul McEachern, Esq.
Attorney General Matthew T. Brock, Esq.
George Dana Disbee Shaines a McEachern Assistant Attorney General 25 Maplewood Avenue Ofnce of the Attorney General P.O. Box 360 25 Capitol Street Portsmouth, NH 03801 Concord, NH 03301 Roberta C. Pevear Angie Machiros, Chairman State Representative Board of Selectmen Town of Hampton Falls 25 Iligh Road Drinkwater Road Newbury, MA 09150 Hampton Falls, NH 03844 Allen Lampert Mr. Robert J. Harrison Civil Defense Director President and Chief Executive Officer Town of Brentwood Public Service Co. of New Hampshire 20 Franklin Street P.O. Box 330 Exeter, NH 03833 Manchester, NH 03105 Charles P. Graham, Esq.
Robert A. Backus, Esq.
McKay, Murphy and Graham Backus, Meyer a Solomon 100 Main Street 116 Lowell Street Amesbury, MA 01913 Manchester, NH 03106 Diane Curran, Esq.
Philip Ahren, Esq.
Harmon a Weiss Assistant Attorney General 2001 S Street, NW Office of the Attorney General Suite 430 State House Station #6 Washington, DC 20009 Augusta, ME 04333 Edward A. Thomas.
Thomas G. Dignan Jr., Esq.
Federal Emergency Management Agency Ropes a Gray 442 J.W. McCormack (POCH) 225 Franklin Street Boston, MA 02109 Boston, MA 02110 l
H.J. Flynn, Esq.
William Armstrong Assistant General Counsel Civil Defense Director Fedcral Emergency Management Agency Town of Exeter 500 C Street, SW 10 Front Street Washington, DC 20472 Exeter, NH 03833 l
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Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel
- Board
- U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555
Jane Doughty Docketing and Service Section*
Scacoast Anti-Pollution League Office of the Secretary 5 ffarket Street U.S. Nuclear Regulatory Commission Portsmouth, NH 03801 Washington, DC 20555 Maynard L. Young, Chairman William S. Lord Board of Selectmen Board of Selectmen 10 Central Road Town IIall - Friend Street South Hampton, NH 03287 Amesbury, MA 01913 Michael Santosuosso, Chairman Peter J. Matthews, Mayor Board of Selectmen City Hall South Hampton, MII 03287 Newburyport, MN 09150 Mr. Robert Carrigg, Chairman Judith H. Mizner, Esq.
Board of Selectmen Silverglate, Gertner, Baker Town Office Fine and Good Atlantic Avenue 88 Broad Street North Hampton, NH 03862 Boston, MA 02110 R. K. Gad III, Esq.
Mrs. Anne E. Goodman, Chairman Ropes & Gray Board of Selectmen 225 Franklin Street 13-15 Newmarket Road Boston, MN 02110 Durham, NH 03824 Gary W. Holmes, Esq.
Honorable Gordon J. Humphrey Holmes & Ellis United States Senate 47 Winnacunnet Road 531 Hart Senate Building Hampton, nil 03842 Washington, DC 20510 Wt Sherwin E. Turk Counsel for NRC Staff 0
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