ML20212C956
| ML20212C956 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 02/27/1987 |
| From: | Humphrey G SENATE |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML20212C895 | List: |
| References | |
| OL, NUDOCS 8703040032 | |
| Download: ML20212C956 (10) | |
Text
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,y UNITED STATES OF AMERICA
- X U :_.
NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSINGAPPEALBgpRg.,
Before Administrative Judges:
Alan S.
Rosenthal, Chairman Gary J.
Edles Howard A.
Wilbur
)
In the natter of
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Docket Nos. 50-443-OL PUBLIC SERVICE COMPANY OF
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50-444-OL NEW HAMPSHIRE, et al.
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Off-site Emergency
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Planning Issues (Seabrook Station, Units 1 and 2)
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)
February 27, 1987
______________)
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)
U.S.
Senator Gordon J.
Humphrey submits this brief in support of his appeal of the Atomic Safety and Licensing Board's February 11 Order.
STATEMENT OF PROCEEDTNGS On January 8,
- 1987, U.S.
Senator Gordon J.
Humphrey filed a petition, pursuant to 10 CFR 2.715(c), to participate in all proceedings and events in the matter of PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE, et al.
Responses to Senator Humphrey's petition were filed by the Attorney Gonoral of the Stato of Now Hampshiro, the Applicant, and the Nuclear Regulatory Connission (NRC) Staff.
8703040032 B70227 PDR ADOCK 05000443 G
e Although the Attorrey General objected to Senator Humphrey's participation under 10 CFR 2.715(c) on the grounds that the Attorney General is participating in this proceeding as the State's sole representative, he did not otherwise object to Senator Humphrey's participation in this proceeding.
The Applicant objected to Senator Humphrey's participation under 10 CFR 2.715(c) as a matter of law and suggested that the-Senator file a late-filed petition to intervene or participate through means of a limited appearance.
The NRC Staff also recommended other methods of participation but did not object to Senator Humphrey's participation under 10 CFR 2.715(c).
On February 11, the Board issued a Memorandum and Order denying Senator Humphrey participation under 10 CFR 2.715(c) stating that Section 2.715(c) "does not confer status on an individual who holds office in one of the named units of government."
Senator Humphrey appeals the Board 's decision of February 11, 1987.
ARGUMENT A.
The Licensing Board Erred in its Decision to Deny Petitioner Status Under 10 CFR Section 2.715(c) to Participate as a Representative of an Interested State in the Atomic Safety and Licensing Board Proceedings in the Matter of Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2).
1.
Petitioner's Status as a statewide, elected, federal Officeholder in a " governmental unit" for the purposes of Section 2.715(c).
e
- l l ~ Petitioner argues that for the purposes of 2.715(c), he is a State governmental unit as he singly occupies an office (constitutionally mandated to be one of two) of statewide jurisdiction.
Petitioner further argues that a restrictive interpretation of " governmental unit" would necessitate excluding all participation under 2.715(c) except that of the President, Governors, Mayors, County Executives, and Agency Administrators, all of which are singular offices.
This restrictive interpretation would not only deny Petitioner's application, but would defeat the intent of the section and conflict with the recent practice and policy of the Board to have broad participation under 2.715(c).
This notion is also supported by the applicable comments:
Section 2.715(c) of the Commission's Rules of Practice permit interested States to participate in NRC licensing proceedings without taking a position with respect to the issues.
Pursuant to section 161 of the Atomic Energy Act, which grants broad discretionary authority to the Commission to obtain infornation, make investigations or hold hearings as it deems necessary, this tvoe of cocoeration could be extended to other units of covernnent which also have an interest in the licensing oroceedinn. [ emphasis supplied]
43 Fed. Reg. 81 (1978) (to be codified at 10 C.F.P.
Section 2.715(c) (proposed April 26, 1978).
Petitioner was not elected to the U.S.
Senate by his constituents, as held in Consolidated Edison Conrany of "eu 12ER (Indian Point, Unit No. 2), LBP-82-15, 15 NRC 715, 725-26 (1982), and as embraced by the Licensing Board in its February 11, 1987 Memorandum and Order, "to solely represent
e
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-4 them in that-body." ' Vote casting and committee activity are only a part.of the representation of New Hampshire in the U.S.
Senate.
Petitioner has an affirmative obligation to-protect the interests of his state as to all natters, 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.
While Petitioner agrees with the Board and NRC Staff that there is no substantive holding in the CE Test Reactor case, he'also observes that it concerned issues and provisions dif ferent from the instant case.
But in support of his status as a governmental unit, Petitioner draws the Board's attention to its analysis in General Electric Conranv, (GE Test Reactor, Vallecitos Nuclear Center),
Nuclear Reg. Rep. (CCH) 30,422 (October 29, 1979):
It is not for us to conform a congressman's activities to a consensus of his constituency or to otherwise intrude upon a legislator's prerogative to decide what is in the public interest in performing his official duties.
We think it sufficient that the Congressman believe in good faith that he is repre-senting the best interests of his constituents in a matter of public interest, which we accept as the case here, for us to determine that he is acting within the scope of his official duties...
at 422.03 Accordingly, Petitioner submits that his participation under 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.
t '2.
The Intent of Section 2.715(c)-is that a Nunber of Petitioning Government Representatives of an Interested State are to be Af forded an Opportunity for Participation and Petitioner's Status is not Barred by the Participation of the. State Attorney General.
Section 2.715(c) of the Commission's regulations reads, in pertinent part:
The presiding officer will afford representatives of an interested Stato, county, municipality, and/or agencies thereof, a reasonable opportunity to parti-cipate and to introduce evidence, interrogate witnesses, and advise the Commission without requiring the repre-sentative to take a position with respect to the issue.
10 C.F.F. Sec.2.715(c).
It is axiomatic that in construing provisions of law, words are to be given their ordinary, contemporary, common meaning.
Perrin v.
United States 444 U.S. 37 (1979).
It is clear that, in contrast with the language.of 2.715(a), this language ("will afford") is candatory.
Petitioner does not 4
assert that he has an absolute right to participate.
However, Petitioner does submit that this subsection contemplates the participation of a multitude of representatives holding diverse views.
The term
" representatives" is plural, thus reflecting the intent to
. allow the participation of a number of representatives of an interested State.
Petitioner does not challenge the status or participation of the State Attorney General in the l'
above-captioned proceedings.
Petitioner claims that he should be admitted under the same standard to supplement the
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.s Attorney General's representation of an interested State.
The Office of the Attorney General of'the State of Hew Hampshire is an appointed one=in which the holder serves by nomination of the Governor and Executive Council.
Petitioner assumes that the Attorney General's participation is with the knowledge and authorization of the Governor.
Petitioner submits that the Attorney General's participation as "the State's sole. representative" is a da facto characterization, and not~da.luca.
In the. consolidated Ed case, supra, the Board recognized that it is not limited to the designation of a sole state representative.
!!o re o ve r, the Board described and documented the longstanding policy and practice of both the Atomic Energy Commission and the Nuclear Regulatory Connission to admit different state representatives on the ground that they bring different points of view to proceedings.
Petitioner also notes that all nine applicants seeking 2.715(c) status were granted the same by the Board under an expansive interpretation of that provision.
The Attorney General's office has acknowledged Petitioner's status as the senior Senator and the dif fe rence in the respective jurisdictional responsibilities.
Sam Response of the State of New Hampshire to Petition of U.S.
Senator Gordon J. Humphrey for Permission to Participate, etc., dated January 21, 1987.
Petitioner, as the State's highest representative to federal office, can represent the
'O.
... State's interest from a different vantage point than can the Attorney. General.
Petitioner urges that he be admitted under 2.715(c) in conformance with the intent, practice and policy described herein, so as to effectively maximize the protection of New Hampshire's interest along with the Attorney General and other qualifying governmental units.
Respectfully sabmitted, GORDON J.
HUM PH R EY, USS i
j
= = _ - -. -
Gordon J.
Hunphrey Pro Se 531 Hart Senate Office Building Washington, DC 20510 (202) 224-2841 Dated:
February 27, 1987 I
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UNITED STATES OF AMERICA 87 SF -2 P4 :16 NUCLEAR REGULATORY COMMISSION
- BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD n
In the Matter of PUBLIC SERVICE COMPANY'0F DOCKET NOS. 50-443 OL NEW HAMPSHIRE, et al.
50-444 OL (Seabrook Station, Units 1 and 2)
CERTIFICATE OF SERVICE t
I hereby' certify that copies of Notice of Appeal and supporting brief in the above-captioned proceeding have been served on the following by deposit in the United States mail on the 27th day of February, 1987.
Alan S.
Posenthal, Chairman Gary J.
Edles Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West. Towers Bldg East West Touers Bldg Third Floor Mailroom Third Floor Mailroom 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Howard A. Wilber Sheldon J. Wolfe, Chairman Atomic Safety & Licensing Atomic Safety & Licensing Appeal Board Appeal Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission East West Towers Bldg East West Towers Bldg Third Floor Mailroom Third Floor Mailroom 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Helen Hoyt, Esq., Chairman Atomic Safety & Licensing Administrative Judge Board Panel Atomic Safety and Licensing Board U.S.
Nuclear Regulatory U.S.
Nuclear Regulatory Commission Commission Washington, D.C.
20555 East West Towers Building Fourth Floor Docketing and Service 4350 East West Highway U.S.
Nuclear Regulatory Bethesda, MD 20814 Commission Washington, D.C.
20555 Dr. Jerry Harbour Administrative Judge Mrs. Anne E.
Goodman Atomic Safety and Licensing Board Board of Selectmen U.S.
Nuclear Regulatory Comm 13-15 Newmarket Road Washington DC 20555 Durham, NH 03842
'k, William S.
Lord, Selectman Dr. Emmeth A.
Luebke Town Hall Administrative Judge Friend Street.
Atomic Safety and Licensing Board Amesbury, MA 01913 U.' S. Nuclear Regulatory Commission Jane Doughty
(
Washington, D.C.
20555 Seacoast Anti-Pollution League Atomic Safety and Licensing Board 5 Market Street Panel Portsmouth, NH 03801-U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 3
Rep. Roberta Pevear Carol S.
Sneider, Esq.
Drinkwater Road Assistant Attorney General Hampton Falls, NH 03844 Department of the Attorney i
General Philip Ahrens, Esq.
One Ashburton Place
. Assistant Attorney General 19th Floor l
Office of the Attorney General Boston, MA 02108 State House Station 6 Stanley W.
Knowles Augusta, ME 04333 Board of Selectmen P.O. Box 710 Thomas G.
Dignan, Esq.
North Hampton, NH 03826 H.K.
Gad II, Esq.
Ropes & Gray J.P.
Nadeau, Selectman 225 Franklin Street Town of Rye Boston, MA 02110 155 Washington Road Rye, NH 03870 Robert A.
Backus, Esq.
Backus, Meyer & Solomon Richard - E.
Sullivan, Mayor l
111 Lowell Street City Hall 1
Manchester, fiH 03105 Newburyport, MA 01950 a
Robert G.
Perlis, Esq.
Alfred V.
Sargent, Chron.
Sherwin E.
Turk, Esq.
Boa rd of Selectmen Office of the Executive Legal Town of Salisbury,hA 01950 2
Director U.S.
Nuclear Regulatory Diane Curran, Esq.
Commission Harmon & Ueiss 4
Tenth Floor 2001 S Street, NU 77350ld Georgetown Road Suite 430 Bethesda, MD 20814 Washington, DC 20009-1125 Michael Santosuosso, Chren Mr. Angie Machicos, Chairman Board of Selectmen i
Board of Selectmen Jewell Street j
Newbury, MA 01950 RFD 2 South Hampton, NH 03842 i
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H. Joseph Flynn, Esq.
Office of General Counsel Allen Lampert Federal Emergency Management Civil. Defense Director Agency Town of Brentwood 500 C Street, SW Exeter, NH 03833 Washington, D.C.
20472 Richard A. Hampe, Esq.
George Dana Bisbee, Esq.
Hampe and !!cNicholas Stephen E.
Merrill, Esq.
35 Pleasant Street Office of the Attorney General Concord, !!H 03301 State House Annex Concord, NH 03301 Gary W.
Holnes, Esq.
Edward A.
Thomas Holmes & Ellis Federal Emergency ifanage-47 Winnacunnet Road ment Agency Hampton, NH 03842 442 J.W.
McCormack (POCH)
Boston, MA 02109 Wil34am Armstrong Civil Defense Director Sandra Gavutis 10 Front Street Town of Kensington Exeter, NH 03833 RFD 1, Box 1154 East Kensington, NH 03827 Calvin A.
Canney City Manager Ch a rl e s P.
Graham, ESq.
City Hall tictay, Murphy & Graham i
126 Daniel Street 100 flain Street Portsmouth, !!H 03801 Anesbury, MA 01913 i
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