ML20236D495
| ML20236D495 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 03/17/1989 |
| From: | Reis E NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#189-8314 LBP-89-08, LBP-89-8, OL, NUDOCS 8903230128 | |
| Download: ML20236D495 (14) | |
Text
_. _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___,
Qjlf I /;yu
'89 IER 20 P4 :06 UNITED STATES OF AMERICA P~
NUCLEAR REGULATORY COMMISSION
UW g 1
h BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, el al.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2
)
NRC STAFF'S OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION FOR DIRECTED CERTIFICATION OF LBP-89-8 Edwin J. Reis Deputy Assistant General Counsel Reactor Licensing Branch 4
March 17, 1989 l$g32kDo$f 3
7 G
[-
i l.
1 l
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, et al.
Off-site Emergency Planning (Seabrook Station,'Jnits 1 and 2
)
NRC STAFF'S OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION FOR DIRECTED CERTIFICATION OF LBP-89-8 Edwin J. Reis Deputy Assistant General Counsel Reactor Licensing Branch March 17, 1989
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL PUBLIC SERVICE COMPANY OF 50-444 OL NEW HAMPSHIRE, e_t,,al,.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2)
NRC STAFF'S OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL'S MOTION FOR DIRECTED CERTIFICATION OF LBP-89-8 INTRODUCTION The NRC Staff opposes the Massachusetts Attorney General's (MAG) motion for directed certification of LBP-89-8.1/
In LBP-89-8, dated February 16, 1989, the Licensing Board issued an interlocutory order granting summary disposition dismissing contentions JI 44A and 44B. These contentions generally raised the issue of whether the utility's emergency plan for the Massachusetts communities required an unlawful delegation of police powers by Massachusetts officials. The Board in granting summary disposition examined Massachusetts law and determined that under the Massachusetts Civil Defense Act (CDA), 1950 Mass. Acts 639, Mass. Spec. L.
C. 31, secs. 1-22, 2/ the Governor could grant administrative authority to I
I I
1/
The motion was filed on February 27, 1989 (Motion), and supplemented by a memorandum dated March 1, 1989 (Memorandum).
~
l
)
2/
This Act is attached to the MAG Memorandum as Attachment A to Exhibit 5.
l 1
I f private entities to perform the following tasks set forth in the Seabrook emergency plan for Massachusetts:
l 1.
Activation of the Public Alert and Notification System and broadcast of the EBS messages.
2.
Making recommendations for protective actions to the public.
3.
Making Ingestion Pathway Protective Action Recommendation to the public.
4.
Making recommendations for recovery and reentry to the public.
5.
Directing traffic and blocking roadways.
6.
Performing access control.
7.
Removing obstructions from roadways, including towing private vehicles without owner pennission.
The MAG argues that its motion for certification should be granted because the grant of summary disposition on the contentions affects the proceeding in a pervasive or unusual manner in addition to being legally wrong.
DISCUSSION
- 1. The Requirements for Interlocutory Review Have Not Been Satisfied The MAG seeks interlocutory review of an order granting summary disposition of two of the many contentions in this proceeding. Section 2.730(f) of the Commissions Rules of Practice, 10 C.F.R. 6 2.730(f),
provides that "no interlocutory appeal may be taken." However, in extraordinary circumstances the Appeal Board will accept petitions for interlocutory review by way of a petition for directed certification under 10 C.F.R. 6 2.718(1). This authority is exercised "most sparingly."
\\.
Pacific Gas Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-514, 8 NRC 687, 698 (1978).
It will only be granted in selected
l l
1 situations where the ruling either (1) threatens a party with immediate and serious irreparable injury which could not be alleviated by later appeal or (2) affects the basic structure of a proceeding in a pervasive or unusual manner. See e.g., Public Service Co. of New Indiana, Inc.
(Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190,1192(1977); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-762, 19 NRC 565, 568 (1984); Seabrook, supra, ALAB-889,27NRC265,269(1988). Directed certification ordinarily will not be granted on the issue of whether a contention may be litigated or 4
whether a motion for summary disposition was correctly determined. See l
e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),ALAB-838,23NRC585,592(1986); Cleveland Electric illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2) ALAB-736, 18 NRC 165, 166 (1983); Pennsylvania Power & Light Co. (Susquehanna Steam Electric Station, Units 1 and 2), ALAB-641, 13 NRC 550, 552 (1981).
The MAG does not claim that the grant of summary disposition causes immediate irreparable injury, but that the ruling has a pervasive and unusual impact on the proceeding. Memorandum at 6-8.
First, he maintains that the ruling has this affect by determining the form of the best effort response of state and local governments.
Id.. at 7.
Second, it is claimed that it has this affect by placing on interveners the burden of rebutting a Federal Management Agency finding that the emergency plan is adequate and that it will generally be followed by local governments in an actual emergency.
Id. at 8.
The grant of summary disposition creates neither of the affects claimed by MAG. The Licensing Board did not determine or purport to
t 4
determine the fortn of the localities best efforts response. The Licensing Board in granting summary disposition only ruled that under law the utility could be authorized to perform the enumerated tasks set out in the contentions. The only matter determined was that it would not be unlawful to allow the utility to perform those tasks. The Licensing Board recognized that in an actual. emergency the choice of the extent to which the Governor authorizes the off-site organization to perform the tasks
)
l involved, or to perform some tasks and not perform others, rests with the Governor. LBP 89-8 at 3, 24-25. Thus there is no foreordained determination of what form the Commonwealth's best effort response would take in an actual emergency.
Nor does the order have a " dramatic impact" on the " procedural status and evidentiary structure of the proceeding." Memorandum at 7-8.
Pursuant to 10 C.F.R. 6 50.47(a) "a FEMA finding will constitute a rebuttable presumption on questions of the adequacy and implementation capability" of an emergency plan. The burden of proof on the adequacy and l
the capability to implement an emergency plan, however, continues to rest upon the applicant. See Long Island Lighting Co. (Shoreham Nuclear Power Station), CLI-88-9, 28 NRC (Dec.1,1988), slip op. at 6.
Here where the interveners have indicated that they will introduce substantial e
evidence on the issue of the adequacy and the capability to implement the utility plan, it does not appear that the subject order will substantially
_ _ _ _ - _ - _ _ _ _ _ _ - - _ _ _ _ _ _ _ _ _ _ _ _ change the fonn or structure of the proceeding. 3/ The appellant does not detail one piece of evidence on any contentions, other than the subject i
Contentions JI 44A and 448, that will be changed by the subject ruling.
The subject order has not changed the "overall procedural and evidentiary structure of the proceeding." The structure of the proceeding which MAG complains of was not caused principally by the subject Licensing Board order, but by the Commissions regulations. The order, even if it has an affect on the burden of going forward, cannot be said to have an unusual or pervasive affect on the proceeding. The standards for directed i
certification are not met.
II. The Ruling Granting Summary Disposition of Contentions 44A and 44B Was Correct.
The Licensing Board correctly determined that under the Massachusetts Civil Defense Act the Governor of Massachusetts could have the the offsite response organization (ORO) perform certain administrative tasks under the Seabrook Plan for Massachusetts Communities (SPMC) in the event of a radiological emergency. The Board's analysis was predicated upon an 3/
To the extent the intervenor seeks to raise an issue on the weight to be given to evidence, such a matter is particularly inappropriate for
~
interlocutory appeal, as it is not possible to now determine if the evidentiary ruling would have a pervasive or unusual effect on the proceeding. See e.g., Metropolitan Edison Co. (Three Mile Island Nuclear PoweFTtation, Unit 1), ALAB-791, 20 NRC 1579,1583 (1984);
Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 2 and 3),
ALAB-314, 3 NRC 98 (1976). The fact that a ruling admitting (or giving a certain weight to evidence) may be in conflict with Commission case law, policy or regulation presents no ground for directed certification.
See Cleveland Electric illuminating Co.
(Perry Nuclear Power Plant, Units 1 and 2), ALAB, 15 NRC 1105, 1113 (1982).
1
7 l
l.
1 examination of section 4 of that Act which allows the Governor to cooperate with private agencies and delegate administrative authority granted to him under the Act, section 5 which allows the Governor to mobilize private resources, and section 7 which gives him authority over persons and property necessary to meet an emergency. LBP-89-8 at 11-19.
The Board then concluded that the broad powers in the Civil Defense Act permits the Governor to delegate administrative tasks to anyone who might help in an emergency regardless of their jural status under other Massachusetts statutes. M.at19-21.
The Massachusetts Attorney General first argues that since
" legislative authority" may or may not be delegable to private parties by the Governor, there may be no delegation of " administrative authority."
Memorandum at 10. However, the Act specifically states that the Governor "may delegate any administrative authority vested in him under this act."
CDA sec. 4.
Further, the Act allows the Governor to mobilize private resources (CDA sec. 5) and gives him "any and all authority over all 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 as supreme executive magistrate of the commonwealth and commander-in-chief of the military forces thereof...."
CDA sec. 7.
Although appellant also attempts to draw a distinction between " administrative authority" and the " executive authority" which is purportedly set out in section 7 of the Act (Memorandum at 10), no reason is given why there would be any difference between the Governor directing the ORO to perfonn the tasks in the SPMC under section 7 of the CDA or delegating the performance of thnse tasks to the OR0 under section 4 of
1 l l the CDA. This distinction absent any difference in the results provides no reason for interlocutory review.
Next it is argued that although section 4 allows the Governor to
" delegate any administrative authority" to perform the tasks here involved, he may not make that delegation to a private agency as section 4
{
l also provides that he" may co-operate with... private agencies."
Memorandum at 11-12. As the Licensing Board recognized these powers are not contradictory. LBP-89-8 at 15-16. The fact that one may cooperate with a private agency does not indicate that tasks may not also be delegated to that agency. Moreover, in view of the broad powers given to the Goverrmr throughout the Act, it would be unreasonable to suppose the the Governor could not have the ORO perform these tasks. Again no fault in the Board's reasoning or conclusion is shown.
The Massachusetts Attorney General next argues that although section 7 gives the Governor "all authority over persons and property, necessary or expedient for meeting said state of emergency", he could not delegate the OR0 authority to carry out tasks in the SPMC. Memorandum at 12-14.
As the Licensing Board reasoned there is no difference between whether the Governor orders, allows, commands or delegates the OR0 authority to carry out tasks in the SPMC. LBP-89-8 at 16-18. The role of the governments would be the same whether they ordered OR0 to carry out the plan or delegated authority to do so. 4/ As the Licensing board points out:
4/
Intervenor seems to state at 13 of its Memorandum that the Governor could only give OR0 total authority under the SPMC and could not
~
exercise his judgment in chosing the protective actions which the OR0 (F0OTNOTE CONTINUED ON NEXT PAGE)
l L
i It will be [the Governor's] call. He can either accept the advice of the OR0 as to the appropriate protective action to be recommended; he can reject that advice and make his own recommendation; he can mix the two responses; or when it is his best judgment to do so, he can defer to the expert judgment of the ORO.
If his decision is to delegate the protective action l
recommendation activity, it would be because that would be his best effort to protect the citizens of Massachusetts. Neither the SPMC nor the emergency planning rule anticipates that such a i
I delegation would be made as a matter of mere convenience.
LBP-89-8 at 24.
No error was committed by the Licensing Board in concluding that section 7, as well as section 4, of the Civil Defense Act gave the Governor authority to implement the SPMC through the OR0.
Lastly, it is argued that even if a delegation could be made to some persons and organizations it may not be made to a foreign corporation.
Memorandum at 14. No limitt. tion is shown in the Civil Defense Act upon delegating to, asking or commanding others to help in an emergency. Under section 7 and section 4 of the Act the Governor is not foreclosed from accepting aid or delegating to any organization response actions in an emergency. As the Licensing Board stated the applicant is not seeking to conduct business in Massachusetts, but to aid the Commonwealth.
LBP-89-8 at 20-21. The jural status of the ORO or its members is not pertinent to whethertheywouldbeaskedtohelpinanemergency.EI (FOOTNOTE CONTINUED FROM PREVIOUS PAGE i
is to perform. However, this is not so. As the Licensing Board found: "Neither the "[T]he state and local governments may request OR0 resources only (Mode 1), or the state will authorize the OR0 to take control and implement the SPMC (Mode 2). There can be mixed modes or a full Mode 2."
L9P-89-8 at 3.
5/
Further section 8A of the CDA provides:
(F0OTNOTE CONTINUED ON NEXT PAGE)
I-CONCLUSION The MAG motion for directed certification should be denied as the intervenor has not shown that the order dismissing Contentions JI 44A and 44B affects the proceeding in a pervasive or unusual manner or that the ruling was incorrect.
Respectfully submitted, b'
Edwin J Reis Deputy Assistant General Counsel Reactor Licensing Branch Dated at Rockville, Maryland this 17th day of March 1989 t
(FOOTNOTE CONTINUED FROM PREVT0llS PAGE I
Any provision of any general or special law or, of any rule, regulation, ordinance or by-law to the extent that such provision is inconsistent with any order or regulation issued or promulgated under this act shall by inoperative while such order or such last mentioned regulation is in effect...
l UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION l
BEFORETHEATOMICSAFETYANDLICENSINGAPPEALYOAh In the Matter of
)
- U F.
l DocketNos.50-443iOL".
W PUBLIC SERVICE COMPANY OF 50-444 OL' NEW HAMPSHIRE, et,a_l,.
Off-site Emergency Planning (Seabrook Station, Units 1 and 2
)
CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF'S OPPOSITION TO MASSACHUSETTS ATTORNEY GENERAL S MOTION FOR DIRECTED CERTIFICATION OF LBP-89-8" 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 17th day of March, 1989.
Ivan W. Smith, Chairman (2)*
H. J. Flynn, Esq.
Administrative Judge Assistant General Counsel Atomic Safety and Licensing Board Federal Emergency Management U.S. Nuclear Regulatory Commission Agency Washington, DC 20555 500 C Street, SW Washington, DC 20472 Richard F. Cole
- Administrative Judge Calvin A. Canney Atomic Safety and Licensing Board City Hall U.S. Nuclear Regulatory Commission 126 Daniel Street Washington, DC 20555 Portsmouth, NH 03801 Kenneth A. McCollom John Traficonte, Esq.
Administrative Judge Assistant Attorney General 1107 West Knapp Street Office of the Attorney General Stillwater, OK 74075 One Ashburton Place, 19th Floor Boston, MA 02108 James H. Carpenter, Alternate
- Administrative Judge Geoffrey Huntington, Esq.
Atomic Safety & Licensing Branch Assistant Attorney General U.S. Nuclear Regulatory Comnission Office of the Attorney General Washington, DC 20555 25 Capitol Street Concord, NH 03301 Philip Ahrens Esq.
Assistant Attorney General Diane Curran, Esq.
Office of the Attorney General Hamon, Curran & Tousley State House Station 2001 S Street, NW Augusta, ME 04333 Suite 430 Washington, DC 20009
_ _ _ Robert A. Backus, Esq.
Peter J. Matthews, Mayor Backus, Meyer & Solomon City Hall 116 Lowell Street Newburyport, MA 01950 Manchester, NH 03106 Mrs. Anne E. Goodman, Chairman Paul McEachern, Esq.
Board of Selectmen Shaines & McEachern 13-15 Newmarket Road 25 Maplewood Avenue Durham, NH 03824 P.O. Box 360 Portsmouth, NH 03801 Hon. Gordon J. Humphrey United States Senate Charles P. Graham, Esq.
531 Hart Senate Office Building McKay, Murphy & Graham Washington, DC 20510 100 Main Street Amesbury, MA 01913 Barbara J. Saint Andre. Esq.
Kopelman & Paige, P.C.
Sandra Gavutis, Chairman 77 Franklin Street Board of Selectmen Boston, MA 02110 RFD #1, Box 1154 Kensington, NH 03827 Michael Santosuoss'o, Chairman Board of Selectmen William S. Lord South Hampton, NH 03827 Board of Selectmen Town Hall - Friend Street Ashod N. Amirian, Esq.
Amesbury, MA 01913 Town Counsel for Merrimac 145 South Main Street R. Scott Hill-Whilton, Esq.
P.O. Box 38 Lagoulis, Clark, Hill-Whilton Bradford, MA 01835
& McGuire 79 State Street Richard R. Donovan Newburyport, MA 01950 Federal Regional Center Federal Emergency Management Agency Allen Lampert 130 228th Street, S.W.
Civil Defense Director Bothell, Washington 98021-9796 Town of Brentwood 20 Franklin Robert R. Pierce, Esq.*
Exeter, NH 03833 Atomic Safety and Licensing Board Panel William Armstrong U.S. Nuclear Regulatory Commission Civil Defense Director Washington, D.C.
20555 Town of Exeter 10 Front Street Thomas G. Dignan, Jr., Esq.
Exeter, NH 03833 Robert K. Gad, III, Esq.
Ropes & Gray Gary W. Holmes, Esq.
One International Place Holmes & Ellis Boston, MA 02110 47 Winnacunnet Road Hampton, NH 03842 l
1
. _ - _. _ _ _ _ _ _ _ _ J. P. Nadeau Ms. Suzanne Breiseth Board of Selectmen Board of Selectmen 10 Central Street Town of Hampton Falls Rye, NH 03870 Drinkwater Road Hampton Falls, NH 03844 Judith H. Mizner, Esq.
79 State Street Atomic Safety and Licensing Newburyport, MA 01950 Board (1)*
U.S. Nuclear Regulatory Commission Robert Carrigg Washington, DC 20555 Board of Selectmen Town Office Atomic Safety and Licensing Atlantic Avenue Appeal Panel (8)*
i North Hampton, NH 03862 U.S. Nuclear Regulatory Commission i
Washington, DC 20555 Ms. Elizabeth Weinhold 3 Godfrey Avenue Docketing and Service Section*
Hampton, NH 03842 Office of the Secretary U.S. Nuclear Regulatory Commission i
Washington, DC 20555 Edwin il._ K is Deputy Msistant General Counsel Reactor Licensing Branch
_ -. _ _.