ML20236C338
| ML20236C338 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/09/1989 |
| From: | Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8262 LBP-89-08, LBP-89-8, OL, NUDOCS 8903220089 | |
| Download: ML20236C338 (26) | |
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March 9, 1989 l
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UNITED STATES OF AMERICA Of f'll! -
NUCLEAR REGULATORY COMMISSION UCC"i ~y,d[ W' before the l
ATOMIC SAFETY AND LICENSING APPEAL BOARD
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL OF NEW HAMPSHIRE, 31 A1
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50-444-OL
)
i (Seabrook Station, Units 1
)
(Offsite Emergency.
l and 2)
)
Planning Issues)
)
APPLICANTS' P.ESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION FOR DIRECTED CERTIFICATION OF IEP-89-8 Thomas G.
Dignan, Jr.
George H.
Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook Ropes t Gray One International Place Boston, MA 02110-2624 (617) 951-7000 Counsel for Appilcants l
8903220089 % 0hDR 4
43 PDR ADOCK O
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.t TABLE OF CONTENTS i
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STATEMENT OF PRIOR PROCEEDINGS AND FACTS 1
ARGUMENT.
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I.
THE MOTION DOES NOT SATISFY THE PROCEDURAL REQUIREMENTS FOR DIRECTED CERTIFICATION 5
II.
THE LICENSING BOARD DID NOT ERR IN FINDING THE DELEGATION OF AUTHORITY LAWFUL.
9 A.
The Licensing Board's Analysis of
" Administrative Authority" 9
B.
" Cooperate" versus " Delegate" 13 C.
Authority "over persons" and Delegation.
14 D.
The Status of the Delegatee.
17 CONCLUSION 19
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TABLE OF AUTHORITIES Cases:
Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-805, 21 NRC 596 (1985) 8 Consumers Power Co. (Midland Plant, Units 1 and 2),
ALAB-382, 5 NRC 603 (1977) 6 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-768, 19 NRC 988 (1984) 8 Houston Lichtina & Power Co. (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309 (1981) 6 Houston Lichtina & Power Co. (South Texas Project, Units 1 and 2), ALAB-608, 12 NRC 168 (1980) 6 i
Kansas Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), ALAB-3 27, 3 NRC 408 (1976) 8 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406 (1978) 6 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NRC 697 (1978) 6 Public Service Comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB-405, 5 NRC 1190 (1977) 6 Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), ALAB-734, 18 NRC 11 (1983) 6 Public Service Company of New Hamoshire (Seabiook Station, Units 1 and 2), LBP-89-8, 29 NRC (February 16, 1989) 1-5, 10-13, 15, 16, 18
-lii-w-_________
1=
F I'L-l L
l-l Public Service Comoany of New Hamoshire (Seabrook Station, Units 1 and 2), Memorandum and Order, (February 13, 1989) (unpublished)
'4 South Carolina Electric & Gas Co. (Virgil C.
Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140 (1981) 6 Vircinia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371 1
(1983) 6 Statutes:
Mass. Civil Defense Act, 1950 Mass. Acts 639, j
SS 4, 5,
7, 8
4, 9-11, 13-16 l
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1 March 9, 1989 UNITED STATES OF' AMERICA l
NUCLEAR REGULATORY COMMISSION before the ATOMIC SAFETY AND LICENSING APPEAL BOARD i
l
)
In the Matter of
)
)
PUBLIC SERVICE COMPANY
)
Docket Nos. 50-443-OL OF NEW HAMPSHIRE, At al.
)
50-444-OL
)
(Seabrook Station,. Units 1
)
(Offsite Emergency and 2)
)
Planning Issues)
)
APPLICANTS' RESPONSE TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION FOR DIRECTED CERTIFICATION OF LBP-89-8 STATEMENT OF PRIOR PR p enINGS AND FACTS l
This matter comes before the Appeal Board on a Motion for Directed Certification of a decision of the Licensing Board granting summary disposition with respect to certain contentions herein.1 By certain contentions filed and reordered before the Licensing Board in this operating license proceeding, the Attorney General of The Commonwealth of Massachusetts (MAG) 1 Public Service Ce.noany of New Hamoshire (Seabrook Station, Units 1 and 2), LBP-89-8, 29 NRC (February 16, 1989), hereafter referred to as LBP-89-8 and cited to the slip opinion.
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l placed in issue the question of whether the Governor of the Commonwealth of Massachusetts had legal authority to delegate
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to the Seabrook offsite response organization (ORO) the powers necessary for ORO to implement, in full, what is known as Mode 2 of the Seabrook Plan for Massachusetts Communities (SPMC).2 SPMC is a utility sponsored radiological emergency response plan for the portion of the Seabrook Station Plume Emergency Planning Zone (EPZ) which is located within the I
Commonwealth of Massachusetts.
The SPMC is necessitated to compensate for the refusal of the Commonwealth of Massachusetts to cooperate in emergency planning for Seabrook Station.3 Mode 2 of SPMC is a mode in which all that the f
Commonwealth need do is delegate certain authority to ORO, which, if necessary, then proceeds to implement the emergency plan and take the necessary protective actions without any further assistance from the Commonwealth.4 This is to be contrasted with Mode 1, where it is contemplated that the l
Commonwealth would run and staff the entire emergency response itself with SPMC supplying personnel and resources 2
Egg Joint Interveners' Contention Nos. 44A & 44B reproduced in their entirety as Exhibit 1 to Mgmorandum of the Massachusetts Attorney General in Succort of his February 27, 1989 Motion for Directed Certification of LBP-89-8 (hereafter referred to as " MAG's Brief" and cited " MAG DI.").
3 LBP-89-8 at 2.
4 LBP-89-8 at 3.
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i as requested and with the Standby Mode in which the ORO will standby and monitor the Commonwealth and local response.5 In the overall modal framework, there exist a whole spectrum of
" mode scenarios" between pure " Mode 1" and pure " Mode 2.n6 For example, the Commonwealth could elect to run and staff f
part of the response itself and have ORO run and staff the balance; the Commonwealth could elect to run SPMC itself using ORO Staff.
The basic theory is that if Applicants can demonstrate that pure " Mode 2" is adequate and implementable, any other response which has the assistance and direction of the Commonwealth, in whole or in part, would be even more so because it can be assumed that the commonwealth would not choose to follow any path which lessens the protection afforded its citizens and inhabitants.
On October 7, 1988, the Applicants moved for summary disposition of the relevant contentions.7 MAG replied.8 5
yg, 6
Id.
7 Acolicants' Motion for Summary Disposition of Joint Intervenor Contentions 44A and 44B (October 7, 1988).
This motion and the original memorandum in support thereof are reproduced as Exhibit 5 to MAG EI.
8 Answer of the Massachusetts Attorney General in i
Oooosition to Acolicants' Motion for Summary I
Disposition of Joint Intervenor Contentions 44A and AiB (Nov.
7, 1988).
This reply is reproduced as Exhibit 6 to MAG DI.
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After further briefing,9 and preliminary notification of the result thereof,10 the Licensing Board issued the decis' ion here at issue granting summary disposition with respect to l
what has come to be known as the " legal authority' issue."
After describing the above-referenced attributes of SPMC and the contentions, the Licensing Board first noted'that:
"[t]he SPMC depends upon the Massachusetts Civil Defense Act (CDA), 1950 Mass. Acts 639, for the authority that the Governor may delegate to the ORO the seven activities contemplated by the plan."11 After discussing the several sections of the CDA, the Licensing Board went on to state that:
"We accept the Civil Defense Act at face value.
We assume, as we must, that it 9
Aeolicants' Resoonse to " Answer of the Massachusetts Attorney General in Oncosition to Aeolicants' Motion for Su===rv Disposition of Joint Intervanor Contentions 44A and 44B"
(" Answer")
(Nov. 30, 1988), reproduced as Exhibit 7 to M&G HI.; Reclv of Massachusetts Attorney General to the Aeolicants' Response to Answer of Massachusetts Attorney General in Oncomition to Aeolicants' Motion for Summary Disposition of JI 44A and 44B (Dec. 28, 1988), reproduced in eart as Exhibit 8 to H&G RI.; NRC Staff's Resoonse to Aeolicants' Motion i
for Summary Disposition of Joint Intervanor Contentions 44A and 44B (Nov. 21, 1989).
10 Public Service Comoany of New Hamnshire (Seabrook Station, Units 1 and 2), Unpublished Memorandum and l
Order (Advance Notice of Ruling on Summary l
Disposition of Joint Intervenor Contentions 44A and l
44B) (Feb. 13, 1989).
11 LBP-89-8 at 5. l
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comports with the Massachusetts Constitution; that the Legislature did not improperly delegate, transfer or abandon any of its powers; and that the Governor can do everything the Acts says he can do."12 Proceeding from this premise, the Licensing Board read the CDA provision as conferring extraordinary powers upon the Governor during times of public peril and, in particular, conferring upon the Governor the power to make the necessary delegations of authority to ORO in order to assure the implementation of Mode 2 of SPMC.13 The Licensing Board went on to reject arguments concerning ultra vires, arguments as to who holds the power i
of delegation, and suggestions that the legal authority issue could be wholly avoided by resort to the " realism rule."
It l
1s in the foregoing posture that this matter comes before this Appeal Board.
ARGUMENT I.
THE MOTION DOES NOT SATISFY THE PROCEDURAL REQUIREMENTS FOR DIRECTED CERTIFICATION.
Directed certification "is to be resorted to only in 12 LBP-89-8 at 11.
13 LBP-89-8 at 11-19.,
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' exceptional circumstances',"14 and is granted by Appeal Boards "most sparingly.n15 The mere fact that error below may have occurred does not mean that directed. certification should be granted.16 -The general rule for the grant of I
directed certification has been articulated thus:
"Almost without exception in recent times, we have undertaken discretionary interlocutory review only where the ruling below either (1) threatened the party adversely affected by it with immediate and serious irreparable impact i
which, as a practical matter, could not be alleviated by later appeal or (2) affected the basic structure of the proceeding in a pervasive or unusual manner."l' 14 1
Consumers Power Co. (Midland Plant, Units 1 and 2),
A LAB-3 8 2, 5 NRC 603 (1977).
i 15 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NRC 697, 698 (1978); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-504, 8 NRC 406, 410 (1978).
16 Vircinia Electric and Power Co. (North Anna Power Station, Units 1 and 2), ALAB-741, 18 NRC 371, 374 i
& n.4 (1983) ; Enhaic Service Company of New Hamoshire (Seabroo.: Station, Units 1 and 2), ALAB-734, 18 NRC 11, 15 (1983); Houston Lichtina & Power C2x (Allens Creek Nuclear Generating Station, Unit No. 1), ALAB-635, 13 NRC 309, 310-11 (1981).
17 Public Service comoany of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977) (footnote omitted).
- Accord, g.g., South Carolina Electric & Gas Co.
(Virgil C. Summer Nuclear Station, Unit 1), ALAB-663, 14 NRC 1140, 1162 (1981) ; Houston Lichtina &
Power Co. (South Texas Project, Units 1 and 2),
A LAB-6 0 8, 12 NRC 168, 170 (1980).
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i MAG, however, places no reliance upon the first of the above-articulated tests for the grant of directed certification, confining himself, instead, to a brief attempt at showing that the Licensing Board's decision "will affect the proceeding in a pervasive or unusual manner."18 As we i
understand MAG's argument in support of this proposition, it i
is that the Board's ruling has made it easier for the I
Applicants to prove the adequacy and implementability of Mode 2 and more difficult for MAG to prevail on the contrary proposition.
However, this hardly amounts to "(affecting]
the proceeding in a pervasive or unusual manner."
This becomes clear if one considers what the effect would have been had the ruling of the Licensing Board gone the'other way.
Then presumably MAG, at the upcoming hearing, would argue, with a fair chance of success, that Applicants are precluded from proving the adequacy or implementability of Mode 2 because of the lack of legal authority to permit ORO execution of Mode 2.
Had this been the case, the holding would have indeed affected the proceeding in a pervasive manner.
If this Appeal Board later reversed, then it would be necessary (if Mode 1 had not been held adequate and implementable) to remand for further hearings on the adequacy and implementability of Mode 2.
The ruling which has been I
j 10 MAG Hr. at 6-8. _ _ _ _ _ _ _ _
4-made does not limit the trial of anything.
MAG will have a
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full opportunity to traverse, as a factual matter,'the proposition that Mode 2 is adequate and implementable; pure Mode 1 can also be tried out; if it turns out that the Licensing Board was wrong in its ruling, it is unlikely that any remand would be necessary by virtue of that fact because the consequences which flow from such a reversal are legal in nature.
This being the case it is difficult to see how the proposition can be sustained that the decision is one which J
affects the proceeding in a pervasive or unusual manner.
From the foregoing it is clear that the decision is not one which will lead to delay and increased litigation expense (which, in and of itself is generally not sufficient to Q
support the grant of directed certification);19 and the decision is clearly not one which "must be reviewed now or i
not at all.n20 l
l MAG seems to argue that the decision has the effect of
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granting the Applicants a rebuttable presumption whereas otherwise none would exist.
MAG simply is ignoring the fact 19
- ERA, A.E.,
Cleveland Electric Illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB-805, 21 NRC 596, 600 & n.16 (1985) ; Duke Power Co.
1 (Catawba Nuclear Station, Units 1 and 2), ALAB-768, 19 NRC 988, 992 (1984).
20 Kansa.s Gas & Electric Co. (Wolf Creek Nuclear Generating Station, Unit No. 1), ALAB-327, 3 NRC 408, 413 (1976).
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'that by virtue of the FEMA findings, Applicants will have a rebuttable presumption in their favor no matter what mode or method is being tried out.
The FEMA finding of adequacy and implementability is across the board in this case.
In short, there is no showing here that the decision at issue will l
unusually or pervasively affect the proceeding. Like any I
number of rulings made in the course of an NRC hearing, it has a potential for being later found to be in error.
- But, if this were all that had to be shown, interlocutory review l
in NRC proceedings would become essentially a matter of right 1
l rather than an extraordinary, and infrequently granted, remedy.
II.
THE LICENSING BOARD DID NOT ERR IN FINDING'THE I
DELEGATION OF AUTHORITY LAWFUL.
Prescinding from the foregoing, as will be demonstrated i
below, MAG is wrong on the merits.
A.
The Licensing Board's Analysis of
" Administrative Authority" As noted above, after providing background to the controversy and summarizing those areas not in dispute, the Licensing Board began its discussion by examining Section 4 of CDA.21 In the ensuing discussion, the Licensing Board 21 That section states that the Governor ".
. may delegate any administrative authority vested in him under this act 1950 Mass. Acts 639.
s-i observed that included within the awesome power conferred by provisions of Section 7 of the CDA was the authority to i
suspend certain statutes and to alter legislative regulations.22 The Licensing Board reflecting on this delegation remarked:
.(W]ere it not for the conclusive presumption that the CDA does not contravene the separation of powers under the Massachusetts Constitution, we might i
conclude that the Legislature transferred to the Governor emergency legislative authority in the CDA..In any event, the Legislature may have intended to proscribe any subdelegation of powers legislative in character.23 From this discussion, MAG has attempted to fashion an argument that the Licensing Board somehow admitted "that the line it draws between executive authority and legislative l
authority does not correspond with the proper interpretation of the CDA."24 The Licensing Board made no such admission.
The Board never concluded, in the first instance, that the Legislature delegated to the Governor any legislative powers.
In fact, the Licensing Board was quite clear that the Legislature could not have delegated those powers.25 The 22 LBP-89-8 at 14.
23 14, 24 MAG Br. at 10.
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LBP-89-8 at 14.
Nor did the Legislature delegate i
to the Governor those powers.
While the Governor is given the authority to suspend statutes, and I
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conclusive presumption of CDA's constitutionality, it noted, prevents reading into the Act a Legislative transfer of j
legislative authority to the Governor.26 The Licensing Board simply observed that certain of the powers conferred were legislative in character.27 Given this fact, it opined that the Legislature may have sought to limit the Governor's l
ability to subdelegate powers which were legislative in character as distinguished from the administrative authority conferred by Section 4.28 Contrary to MAG's assertion that the Licensing Board's analysis was " based on a different footing than that on which Applicants stood,"29 the Licensing Board concluded that it
" tend [ed) to believe that the Applicants have the better i
i argument.n30 Rather than being on a different footing, the Licensing Board's analysis provided an additional reason why I
Applicants' interpretation of the Act is the preferable thus is, in a literal sense, making law, in actual fact he is merely implementing the detail of the overall legislative policy that certain laws may need to be suspended in times of emergency.
The legislature has set the policy - certain laws should be suspended in times of an emergency.
]
26 yg, 27 yg, 28 74, 29 MAG Br. at 9 n.10.
30 LBP-89-8 at 15. __ ___ -_
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reading.
The two analyses are neither mutually exclusive nor 1
i inconsistent.
In fact, both analyses dovetail quite nicely with each other.
The Licensing Board based its decision, not on its discussion of the Legislature's distinction between legislative and administrative authority, nor on Applicants',
but on both views taken together in light of the guidance provided by other provisions of the Act in reading the Act as a whole.31 MAG attempts to turn the Licensing Board's discussion of "these other provisions" of the Act into a defensive ploy to support its analysis, while interesting, is transparently disingenuous.
Cor,trary to MAG's assertion, the Licensing Board did not have " sufficient doubt about its analysis of the only express reference in the CDA to a subdelegation of authority by the Governor to search further for support."32 Rather than seeking to support its position, the Licensing Board following the time-honored rule of statutory j
construction, looked to the entire statute to determine l
whether MAG's or Applicants' interpretation made more sense.
As is obviously apparent, reading the Act as a whole demonstrates that the Governor has the legal authority to subdelegate those powers necessary to implement the SPMC.
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31 Id.
32 MAQ DI. at 11.
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" cooperate" versus " Delegate" The Licensing Board also directed its attention to the provisions of Section 4 of the CDA which authorizes the Governor to "co-operate" with " private agencies."33 In an attempt to nead off the logical implication of the language in this section, MAG argues that "a legislatively intended limitation on the scope of the subdelegability of emergency powers delegated to the Governor should not be lightly disregarded without clear and unambiguous language."34 This argument misses the mark.
It is predicated on the fiction that there is a clear limitation on the Governor's ability to I
subdelegate that the Licensing Board has somehow disregarded.
MAG not only has the cart before the horse, but there is no such clear limitation.
In fact, the legislative context shows otherwise.
The Licensing Board merely explored whether, in the first instance, there was a limitation on the Governor's ability to subdelegate emergency powers..
Applicants argued, and the Licensing Board correctly concurred, that no such limitation exists.
MAG's discussion of the distinction between "co-operate" and " delegate" is equally uninstructive.
MAG's igig 33 LBP-89-8 at 15.
34 MAq gr. at 11. - _ _ - _ _ _
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1 dixit that "'co-operate' does not ' subsume' ' delegate,en35 adds little to his argument.
There are many ways that a party may "co-operate" with another party.
For example, a party that agrees not to interfere with another party and stands aside may well cooperate with that party just as much as a party that agrees to provide active assistance.
Similarly, cooperation may consist of an authorization or delegation to empower another party to do certain acts.
The fact that the Legislature chose to use the word
" delegate" in the very same section it used " cooperate" is of little moment.
As discussed, cooperation is a broad term.
In choosing the word " cooperate" the contextual content of the Act makes clear that the Legislature was consciously broadening the Governor's options rather than narrowing them.
The broad powers given by the Legislature to the Governor demonstrate the reasonableness of this interpretation.
The Governor was given an extraordinary flexibility to. deal with emergency situations, the scope of which need not be prescribed in advance.
C.
Authority "over persons" and Delegation The Licensing Board found further support for Applicants' position in other sections of the CDA that 35 Id. at 12. -. _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - _ _ _
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" contemplate a role for private entities."36 In this context the Board first noted that Section 7 granted to the Governor all authority over persons that the Legislature may confer upon the Governor.
While the express term " delegate" was not employed the Board reasoned that it was included in the power conferred.
Moreover, whether the power conferred be by way of assistance, delegation or command the debate the Board held is semantical.
In challenge to the Board's characterization of the distinction, MAG sought to draw between, providing assistance, being the delegatee or under command as semantical MAG begins by portraying the Board's reasoning as "somewhat at sea."
Next, drawing on the Board's concluding sentence of its discussion of CDA, Sections 5, 7,
8:
" Simply put,it is not rational to believe that during any.
(disaster) the governor may not and would not delegate, command, direct or cooperate with private i
agencies.
in defense of Massachusetts citizens.",37 MAG concludes with the declaration that the " Board's analysis essentially collapses."38 The Board's analysis thus turned aside, and the distinctions restored, MAG states that "[t]he short answer is that the utility plan at issue has itself i
36 LBP-89-8 at 16-17, 1.g., CDA Sections 5 and 8.
37 LBP-89-8 at 19, 38 MAG Hr. at 13. _____________-__A
determined the role the governments are to play in ' generally follow (ing)' that plan."39 MAG's short answer is no answer at all.
The question is whether the CDA permits the Governor to empower the ORO with the authority necessary to implement the SPMC in order to protect the citizens of the Commonwealth of Massachusetts in the event of an emergency.
The answer is found in the CDA which permits such authorization or delegation.
MAG's only other argument in support of his position on this subject interestingly is found in the unsupported statement that "it is simply not reasonable to interpret the authority granted to the Governor 'over persons' as including the authority to subdelegate emergency powers to those persons.n40 This statement, in this context, demonstrates that MAG failed to grasp, or chose not to acknowledge, the significance of those sections of the Act that " contemplate a role for private entities."41 For example, under Section 8 of CDA, the Governor may issue instructions to " persons" in exercising the powers of the Act.
By definition, once the Governor issues instructions to persons he is in effect delegating to those persons the power to carry out those 39 Ig, 40 Id. at 14.
41 LBP-89-8 at 16. l
instructions.
MAG's analysis, or rather, lack of analysis, clearly demonstrates who is at sea.
The Legislature, in granting the Governor the power to conduct an emergency response, has granted the Governor the power to effectuate the legislative policy.
In so granting the Governor this power, the Legislature permitted the Governor to subdelegate his power in order that he would be 4
able to meet any of a number of unforseen events that could occur in an emergency.
To do otherwise would effectively tie the Governor's hands.
Any argument that the Legislature intended to limit the Governor's authority, given the extraordinary power that the Act grants to the Governor, is simply not credible.42 D.
The Status of the Delegatee MAG argues that the Licensing Board ignored the legal issues involved with respect to the Joint Intervenor Contention 44A's assertion that "the delegation, even if otherwise lawful, to a foreign corporation not licensed to do business [is] not permitted."43 Quite to the contrary, the Licensing Board stated three separate reasons why the 42 Given the purpose of the CDA, Mass. AG's belated argument that "it is the very scope and extent of this ' executive authority' that indicates that the subdelegable ' administrative authority' should be distinguished from it," Mag. Hr. at 10, rings hollow.
43 12(a Br. at 14. l
4.
Attorney General's argument was no more than an " immaterial and hyper-technical quibble."44 MAG also argues that the Licensing Board should not have dismissed the ultra vires issue.45 Apparently, MAG feels that he should not be found in default on this issue because Applicants failed to address an unarticulated basis the substance of which only MAG knows.46 MAG had ample opportunity to clarify this issue after it should have become apparent to MAG that Applicants had a different understanding.
Just as with the phantom basis to the ultra Eirga issue, the logic behind MAG's argument escapes the Applicants.
44 LBP-89-8 at 20.
Mass. AG conveniently left the first four words of the sentence that he quotes from the Licensing Board's decision:
"For the foregoing reasons, the Board has little patience.
45 MAG Hr. at 34 n.20.
46 Id.
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CONCLUSION For the foregoing reasons, the motion for directed certification should be denied.
Respectfully submitted, N '
- M///d 7 Thoma's 6. Digan$ Jr.
George H. Lewald Kathryn A. Selleck Jeffrey P. Trout Jay Bradford Smith Geoffrey C.
Cook Ropes & Gray One International Place Boston, MA 02110-2624 (617) 951-7000 counsel for Applicants l
he If
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p CERTIFICATE OF SERVICE Eg HAR 13 P4 :08-I, Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on March 9, 4989 I.
made service of the within document by' depositing [copfes,,n,
gnkt thereof with Federal Express, prepaid, for deliver 't6 (or,&
where indicated, by depositing in the United Stater mail, first class postage paid, addressed to):
Alan S. Rosenthal, Chairman Howard A. Wilber Atomic Safety and Licensing Atomic Safety and Licensing Appeal Panel Appeal Panel U.S. Nuclear Regulatory U.S. Nuclear' Regulatory Commission Commission East West Towers Building East West Towers Building 4350 East West Highway 4350 East. West Highway Bethesda, MD 20814 Bethesda, MD 20814
-Thomas S.
Moore Robert Carrigg, Chairman Atomic Safety and Licensing Board of Selectmen Appeal Panel Town Office U.S.
Nuclear Regulatory Atlantic Avenue Commission North Hampton, NH 03862 East West. Towers Building 4350 East West Highway Bethesda, MD-20814 Administrative Judge Ivan W.
Diane Curran, Esquire Smith, Chairman, Atomic Safety Andrea C..Ferster, Esquire and Licensing Board Harmon, Curran & Tousley U.S.. Nuclear Regulatory Suite 430 Commission 2001 S Street, N.W.
East West Towers Building Washington, DC 20009 4350 East West Highway Bethesda, MD 20814 Administrative Judge Richard F. Cole John P. Arnold Atomic Safety and Licensing Board Attorney General-U.S.
Nuclear Regulatory Commission George Dana Bisbee East West Towers. Building Assistant Attorney General 4350 East West Highway Office of the Attorney General Bethesda, MD 20814 25 Capitol Street Concord, NH 03301-6397 Administrative Judge K=nneth A.
Sherwin E. Turk, Esquire McCollom Office of General Counsel 1107 West Knapp Street U.S. Nuclear Regulatory Stillwater, OK 74075 Commission One White Flint North, 15th Fl.
11555 Rockville Pike Rockville, MD 20852
l Adjudicatory File Robert A.
Backus, Esquire Atomic Safety and Licensing 116 Lowell Street Board Panel Docket (2 copies)
P.O.
Box 516 U.S.
Nuclear Regulatory Manchester, NH 03105 Commission East West Towers Building 4350 East West Highway Bethesda, MD 20814
- Atomic Safety and Licensing Mr. J.
P.
Nadeau Appeal Board Selectmen's Office U.S. Nuclear Regulatory 10 Central Road Commission Rye, NH 03870 Washington, DC 20555 Philip Ahrens, Esquire John Traficonte, Esquire Assistant Attorney General Assistant Attorney General Department of the Attorney Department of the Attorney General General Augusta, ME 04333 One Ashburton Place, 19th Flr.
Boston, MA 02108 Paul McEachern, Esquire Mr. Calvin A. Canney Shaines & McEachern City Manager 25 Maplewood Avenue City Hall P.O.
Box 360 126 Daniel Street Portsmouth, NH 03801 Portsmouth, NH 03801 Mrs. Sandra Gavutis R.
Scott Hill-Whilton, Esquire Chairman, Board of Selectmen Lagoulis, Hill-Whilton &
RFD 1 - Box 1154 Rotondi Route 107 79 State Street Kensington, NH 03827 Newburyport, MA 01950
- Senator Gordon J. Humphrey Leonard Kopelman, Esquire U.S. Senate Kopelman & Paige, P.C.
Washington, DC 20510 77 Franklin Street (Attn:
Tom Burack)
Boston, MA 02110
- Senator Gordon J. Humphrey Mr. William S.
Lord One Eagle Square, Suite 507 Board of Selectmen Concord, NH 03301 Town Hall - Friend Street (Attn:
Herb Boynton)
Amesbury, MA 01913
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3 Mr. Thomas F.
Powers, III Charles P. Graham, Esquire Town Manager Murphy and Graham Town of Exeter 33 Low Street 10 Front Street Newburyport, MA 01950 Exeter, NH 03833
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H. Joseph Flynn, Esquire Richard A. Hampe, Esquire office of' General Counsel Hampe and McNicholas Federal Emergency Management 35 Pleasant Street Agency Concord, NH 03301 500 C Street, S.W.
Washington, DC 20472 L
Gary W.
Holmes, Esquire Judith H. Mizner, Esquire Holmes & Ells 79 State Street, 2nd Floor i
47 Winnacunnet Road Newburyport, MA 01950 p
Hampton, NH 03842 Mr. Richard R.
Donovan Ashod N. Amirian, Esquire Federal Emergency Management 145 South Main Street Agency P.O.
Box 38 Federal Regional Center Bradford, MA 01835 130 228th Street, S.W.
Bothell, Washington 98021-9796 James H. Carpenter, Alternate Robert R. Pierce, Esquire Technical Member Atomic Safety and Licensing Atomic Safety and Licensing Board Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory East West Towers Building Commission 4350 East West Highway East West Towers Building Bethesda, MD 20814 4350 East West Highway Bethesda, MD 20814
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.s Thenras Mgnan, Jr.
(*= Ordinary U.S. First Class Mail.)
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