ML20207S602
| ML20207S602 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/13/1987 |
| From: | Bisbee G NEW HAMPSHIRE, STATE OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#187-2816 OL, NUDOCS 8703200085 | |
| Download: ML20207S602 (9) | |
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2EF/6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIk[RC ED ATOMIC SAFETY AND LICENSING APPEAL BOARD
'87 MN118 A10 :42 Administrative Judges:
Alan S. Rosenthal, Chairman
[0CMET NG f arch 13, 1987 Gary J.
Edles BRANcq Howard A. Wilber
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY OF
)
Docket Nos. 50-443-OL N E W H A M P S H I R E, _E _T _A _L.
)
50-444-OL
)
(Seabrook Station, Units 1
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(Offsite Emergency Planning) and 2)
)
)
BRIEF OF THE STATE OF NEW HAMPSHIRE IN RESPONSE TO APPEAL OF U.S.
SENATOR GORDON J.
HUMPHREY On February 27, 1987, U.S.
Senator Gordon J.
Humphrey appealed the denial by the Licensihg Board of his petition for leave to participate in this proceeding under 10 C.F.R. Section 2.715(c).
In response to the filing of that appeal, the Appeals Board issued an Order on March 4, 1987, in which it solicited the views of the State of New Hampshire and its Attorney General on two issues raised in the
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appeal of Senator Humphrey.
The State of New Hampshire, through the Office of the Attorney General, responds herein to Senator Humphrey's appeal and the Appeals Board's Order.
Senator Humphrey sought the Licensing Board's leave to participate in the Seabrook operating license proceeding under the provisions of 10 C.F.R.
S2.715(c) in a pleading dated January 8, 1987.
The State of New Hampshire responded to that Petition on January 21, 1987, indicating to the Licensing Board that while 8703200005 B70313 DR ADOCK 0500 3
O O Senator Humphrey may not " technical.'.y qualify as a ' representative of an interested State' as that term hae been interpreted by the Licensing Board," the State of New Himpshire did not object to the Senator's participation in the licensing proceeding.1 What the State's response sought to clarify is that the representation of the State of New Hampshire qua state has been and will continue to be conducted by the Office of the Attorney General.
However, the State has no objection to the participation of Senator Humphrey in his capacity as a U.S.
Senator in any capacity allowable under the NRC regulations.
The issue presented by this appeal is not whether Senator Humphrey represents New Hampshire as a state governmental entity.
As the discussion below of New Hampshire law indicates--in response to this Board's March 4 Orde.r, it is the Attorney General who is authorized, inter alia, to represent New Hampshire as a state governmental entity in all civil legal proceedings, including federal regulatory proceedings such as the case at hand.
Consequently, the question raised by this appeal is whether in addition to the Attorney l
General's representation in this matter of the State qua state, may a l
United States Senator qualify as a " representative of an interested l
state" under 10 C.F.R.
Section 2.715(c) where, as the Senator has l
l 1 esponse of the State of New Hampshire to Petition of U.S.
R j
l Senator Gordon J.
Humphrey for Permission to Participate as a State Representative in the Atomic Safety and Licensing Board Proceeding Pursuant to 10 C.F.R. 2.715(c) (January 21, 1987) at 2.
l l
o-
, asserted, he intends to participate in this proceeding "in accordance with his official duties and the interests of his constituents. 2 That the Attorney General is the chief legal officer of the State of New Hampshire and has, as such, is alone responsible for representing the State's interests in litigation is established by New Hampshire statute and common law.
The New Hampshire Legislature has set forth the duties and responsibilities of the Attorney General' in two separate chapters of the New Hampshire Revised Statutes Annotated (hereinafter referred to as "RSA").
RSA Ch. 7 sets forth the general duties of the Attorney General, which include the responsibility for "all criminal and civil causes in the Supreme Court in which the State is interested" and "the general supervision over the State departments, commissions, boards, bureaus, and officers, to the end that they perform the duties according to law."
RSA 7:6; RSA 7:8.
In 1985 the Legislature reorganized the Office of the Attorney General into a Department of Justice under the direction and control of the Attorney General.
RSA 21-M:2,I.
The duties assigned to the new Department of Justice were then enumerated, in pertinent part, as follows:
The department of justice, through its officials, shall have all the powers and duties enumerated by statute and implied from the common law and shall be responsible for the following general functions:
2
.S.
Senator Gordon J.
Humphrey Brief in Support of Appeal of U
Licensing Board of February 11, 1987 Denying His Leave to Participate Under 10 C.F.R. 2.715(c) (February 27, 1987) at 4.
3 The position of the attorney general is established in Article 2, Part 46 of the New Hampshire Constitution, i
)
. (a) advising'and representing the State and its executive branch agencies in all civil legal matters RSA 21-M:2,II (Supp. 1986).4 The Supreme Court of the State of New Hampshire has consistently upheld the authority of the Attorney General as the state's legal officer to conduct the state's litigation.
Opinion of the Justices, 117 N.H.
393, 396, 373 A.2d 647, 649 (1977) ("(I]n entering into a consent decree the attorney general was acting within the limits of.
his broad authority to manage the state's litigation and to make any disposition of the case which he deems is in the state's best interest"); State v. Swift, 101 N.H.
340, 342-343, 143 A.2d 114, 116 (1958) ("The powers of the Attorney General are broad and numerous.
Some are of the common law, and many are specified by statute.
The specific statutory duties.in no way detract from his powers and duties at common law.").
In addition, Courts in other states have specifically held that the authority of the attorney general to represent the state in the legal proceedings is not only broad, but exclusive.
Connecticut Commission on Special Revenue v. Connecticut Freedom of Information commission, 174 Conn. 308, 316, 387 A.2d 533, 537-538 (1978);
Environmental Protection Agency v. Pollution Control Board, 69 Ill.
2d 394, 398-399, 372 N.E.2d 50,51 (1978); Secretary Administration Finance v.
Attorney General, 367 Mass. 154, 162-163, 326 N.E.2d 334, 336 (1975).
In New Hampshire,RSA 7:9 highlights the exclusivity of 4A copy of all cited New Hampshire statutes is attached hereto.
o
.. the Attorney General's authority to represent the state in legal proceedings by providing that the Governor and Executive Council may require the Attorney General to appear in any action or proceeding.
This is the only New Hampshire statute that allows any state entity other than the Attorney General to direct the State's participation in legal proceedings.
The state's position in any such proceeding, however, is still determined by the Attorney General.
See Opinion of the Justices, 110 N.H.
26, 129, 259 A.2d 660 (1958).
The Attorney General is unaware of any legal authority that undermines his position as the exclusive representative of the state as a governmental entity in civil matters such as proceedings before this' Board.
New Hampshire statutory and common law do not touch upon I'
the authority of a United States senator.
The United States Constitution establishes the membership and duties of the United States Senate, which together with the House of Representatives carries out the legislative powers under that constitution.
U.S.
Const. Art.
I, S1 and S3.-
Furthermore, courts in various jurisdictions in various settings have held that members of Congress are federal, not state, officials.
Lamar v.
United States, 241 U.S.
103, 112-113 (1916); Preston v.
Edmondson, 263 F.Supp. 370, 372 (M.D.
Okla. 1967); State, ex. rel. Carroll v.
Becker, 329 Mo. 501, 509, 45 S.W.2d 533, 536 (1932).
The above discussion reflects the New Hampshire Attorney General's position on the issue of his exclusive responsibility to represent the State of New Hampshire in this proceeding.
That discussion, however, does not dispose entirely of the issue before
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.. this Board; namely, whether a United States senator, while not representing his state qua state before the Board, may nevertheless qualify as a " representative of an interested state" under 10 C.F.R.
Section 2.715(c).
The New Hampshire Attorney General in the proceedings below indicated that the limited treatment of this question by other Licensing Boards would indicate that Senator Humphrey would not so qualify.5 Based on that prior authority, as amplified by the Licensing Board's decision of February 12, 1987, in the instant case, the position of the New Hampshire Attorney General remains unchanged.
The New Hampshire Attorney General, nevertheless, remains unopposed to Senator Humphrey's participation in this proceeding in his official capacity on behalf of his constituents under Section 2.715(c) if the Appeals Board so allows, or under Section 2.714(a).
Respectfully submitted, THE STATE OF NEU HAMPSHIRE STEPHEN E.
MERRILL ATTORNEY GF ERAL k
I cu Dated:
March 13, 1987 By George Dana'Bisbee NJ Senior Assistant Attorney General Environmental Protection Bureau Office of the Attorney General 25 Capitol Street Concord, NH 03301-6397 Telephone (603) 271-3679 5 esponse of the State of New Hampshire (January 21, 1987) at R
2.
t bi
CERTIFICATE OF SERVICE DOLMETrn U3NRC I, George Dana Bisbee, hereby certify that on the 13th day of March, I made service of the within Brief of the State o6 N)>v Hamp$p :
shire In
- 1986, Response to Notice of Appeal of U.S. Senator Gordon J. %m &d9 42 mailing copies thereof, postage prepaid, to:
OFFICE OF :-i q ;ns.
00CMETING A SERVICf^
Alan S. Rosenthal, Chairman Gary J. Edles BRANCH Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Appeal Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Howard A. Wilber Atomic Safety and Licensing Appeal Atomic Safety and Licensing Board Panel Appeal Board U.S.
Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Administrative Judge Helen Hoyt Administrative Judge Sheldon J.
Chairperson Wolfe, Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Panel Board Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Dr. Emmeth A.
Luebke Dr. Jerry Harbour Atomic Safety and Licensing Atomic Safety ana Licensing Board Panel Board Panel U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, DC 20555 Washington, DC 20555 Philip Ahrens, Esquire Thomas J.
- Dignan, Jr.,
Esquire Deputy Attorney General R.
K.
Gad, III, Esquire Department of the Attorney General Ropes & Gray State House Station 6 225 Franklin Street Augusta, ME 04333 Boston, MA 02110 Carol S. Sneider, Esquire Sherwin E.
Turk, Esquire Assistant Attorney General Deputy Assistant Chief Department of the Attorney General Hearing Counsel One Ashburton Place, 19th Floor Office of the Executive Counsel Boston, MA 02108 Director U.S.
Nuclear Regulatory Commission Washington, DC 20555
. Ms. Diana P. Randall 70 Collins Street Seabrook, NH 03874 Robert A. Backus, Esquire Backus, Meyer & Solomon Diane Curran, Esquire 116 Lowell Street Harmon & Weiss P.
O.
Box 516 20001 S Street, N.W.
Manchester, NH 03105 Suite 430 Washington, DC 20009 Chairperson Board of Selectmen Jane Doughty Town of South Hampton 5 Market Street East Kingston, NH 03827 Portsmouth, NH 03801 Paul McEachern, Esquire Matthew T. Brock, Esquire J.
P. Nadeau, Esquire Shaines & McEachern Selectmen's Office 25 Maplewood Avenue 10 Central Road P. O. Box 360 Rye, NH 03870 Portsmouth, NH 03801 Mr. Calvin A.
Canney Ms. Roberta C.
Pevear City Manager
.The Town of Hampton Falls City Hall Drinkwater Road 125 Daniel Street Hampton Falls, NH 03844 Portsmouth, NH 03801 Mrs. Sandra Gavutis Mr. Angie Machiros The Town of Kensington Cnairman of the RFD 1, Box 1154 (Route 107)
Board of Selectmen Kensington, NH 03827 Town of Newbury Newbury, MA 01950 Senator Gordon J.
Humphrey Mr. Richard E.
Sullivan U.S. Senate Mayor Washington, DC 20510 City Hall (Attn:
Tom Burack)
Newburyport, MA 01950 Senator Gordon J. Humphrey William S.
Lord i
1 Pillsbury Street Board of Selectmen Concord, NH 03301 Town Hall (Attn:
Herb Boynton)
Friend Street Amesbury, MA 01913 l
Charles P.
Graham, Esquire Judith H. Mizner, Esquire McKay, Murphy'and Graham Silverglate, Gertner, Baker, 100 Main Street Fine, Good, and Mizner i
Amesbury, MA 01913 88 Broad Street Boston, MA 02110 i
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. Mr. Thomas Powers Brentwood Board of Selectmen Town Manager RFD Dalton Road
- Town of Exeter Brentwood, NH 03833 10 Front Street Exeter,.NH 03833 Gary W.
Holmes, Esquire Holmes & Ells H. Joseph Flynn 47 Winnacunnet Road Assistant General Counsel Hampton, NH 03841 Office of General Counsel Federal Emergency Management Richard A.
Hampe, Esquire Agency Hampe & McNicholas 500 C Street, S.W.
35 Pleasant Street Washington, DC 20472 Concora, NH 03301 Mr.-Ed Thomas Mr. Robert Carrigg, Chairman FEMA, Region I Board of Selectmen John W. McCormack Post Office Town Office and Court House Atlantic Avenue Post Office Square North Hampton, Nh 03862 Boston, MA- 02109 cs George Dbna BisbedJ '
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