ML20248H200
| ML20248H200 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 04/11/1989 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | MASSACHUSETTS, COMMONWEALTH OF |
| References | |
| CON-#289-8424 OL, NUDOCS 8904140114 | |
| Download: ML20248H200 (10) | |
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['OLKETEC U WRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 89 APR 11 All:40 ATOMIC SAFETY AND LICENSING APPEAL BOARD w
Administrative Judges:
UUN ', ' j Alan S. Rosenthal, Chairman April 11, 1989 Thomas S. Moore Howard A. Wilber SER'/ED APR 11 }989 In the Matter of
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PUBLIC SERVICE COMPANY OF
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Docket Nos. 50-443-OL-1 NEW HAMPSHIRE, et al.
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50-444-OL-1
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(Offsite Emergency (Seabrook Station, Units 1
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Planning)
I and 2)
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MEMORANDUM AND ORDER We have before us the Massachusetts Attorney General's February 27, 1989, motion for directed certification of the Licensing Board's interlocutory ruling granting the summary disposition motion of Public Service Company of New Hampshire, et al.,
(applicants) on joint intervenor contentions 44A and 44B.2 Both contentions challenge the underlying assumption of the applicants' emergency response plan that the Governor of Massachusetts has the legal authority to delegate certain of his powers in a radiological emergency to the applicants' emergency response 1
Subsequently, on March 1, 1989, the Attorney General filed a memorandum in support of his bare bones motion.
2 LBP-89-8, 29 NRC (February 16, 1989).
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2 organization, the New Hampshire Yankee Offsite Response Organization (ORO).
The applicants developed their own utility plan, the Seabrook Plan for the Massachusetts Communities (SPMC),
after the Commonwealth of Massachusetts and certain local governments in the Massachusetts portion of the Seabrook plume exposure pathway emergency planning zone refused to participate in emergency planning for the plant.
In the event of a radiological emergency at the nuclear facility, the SPMC provides for several alternative responses by the ORO, each dependent upon tne actions of the state and local governments.
For example, under what is called the standby mode, the ORO merely monitors the state and local response.
Under mode 1, upon the request of the state and local governments, the ORO makes its resources available to thone governments to aid them in their emergency response.
Under mode 2, the ORO takes full control and implements the utility emergency plan without governmental assistance upon the Commonwealth's delegation of certain authority to the ORO.
The SPMC also anticipates a number of other responses between modes 1 and 2 that combine various elements of both but, in each instance, the Commonwealth determines the appropriate response.
The Licensing Board admitted joint intervenor contentions 44A and 44B as appropriate rebuttal to the presumption contained in the Commission's emergency planning
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rules.3 In pertinent part, those regulations provide that in circumstances where state and local governments refuse to participate in emergency planning "it may be presumed that in the event of an actual radiological emergency state and local officials would generally follow the utility plan.4 Both contentions assert that the Governor of Massachusetts lacks the authority to delegate certain enumerated essential police powers to the ORO such as the authority to direct traffic and block roads.
Hence, the contentions claim that mode 2 of the ORO cannot be implemented and the presumption contained in the Commission's emergency planning rules cannot be relied upon.
In granting the applicants' motion for summary disposition of joint intervenor contentions 44A and 44B, the Licensing Board looked to the Massachusetts Civil Defense Act and, after canvassing its provisions, held that seven activities specified in the SPMC can be delegated by the Governor to the ORO.
The Attorncy General asks that we direct certification of the Licensing Board's ruling and reverse its grant of summary disposition.
He argues that See Memorandum and Order - Part I (Ruling on Contentions on the Seabrook Plan For Massachusetts Communities) (July 22, 1988) at 26-27, 111-12 (unpublished).
10 C.F.R. S 50.47 (c) (1) (iii) (B).
See Mass. Ann. Laws ch. 31 SS 1-8.
4 the Licensing Board's interpretation of the Massachusetts Civil Defense Act is simply wrong.
The applicants and the NRC staff oppose directed certification 4.
In considering motions for directed certification, we have repeatedly pointed out that " interlocutory appellate review of licensing board orders is disfavored and will be undertaken as a discretionary matter only in the most compelling circumstances..6 A party seeking such review must make a " clear and convincing showing"7 that the challenged ruling either "(1) threatents] the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated by a later appeal or (2) affect {s] the basic structure of the proceeding in a pervasive or unusual manner."O The Attorney General here relies on only the second prong of this standard.
With regard to that criterion, we have indicated that it is not to be read expansively and that it takes much more to meet than a mere order "that has some discernible bearing 6 Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Unita 2 and 3), ALAB-742, 18 NRC 380, 383 (1983) (footnotes omitted).
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0 Public Service Co. of Indiana (Marble Hill Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1192 (1977).
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l upon the future course of a proceeding."'
Ar, we have I
pointed out in this proceeding, the fact that a licensing 10 board ruling may be in error or that future litigation may be required does not justify our review of that ruling by directed certification.11 Indeed, in a related context, we have held that i
in the hbsence
. of a potential of truly exceptional delay or expense, the risk that a licensing board'c interlocutory ruling may l
cventually be found to have been erroneous, and that because of the error further proceedings may
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have to be held, is one which must be assumed l
that board and the parties to the proceeding.ygy 4
In attempting to meet this criterion, the Attorney General first asserts, without more, that the Licensing Board's ruling, in combination with the fact that the Board has attached presumptive validity to the Federal Emergency Management Agency's (FEMA) review of the SPMC, has had the effect of substantively determining the form of the governments' response at the time of an emergency.
- Second, the Attorney General argues -- again without elaboration --
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_Palo Verde, 18 NRC at 383.
10 ALAB-734, 18 NRC 11, 15 (1983).
11 ALAB-737, 18 NRC 168, 176 n.12 (1983).
12 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-805, 21 NRC 596, 600 (1985) quoting from Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-116, 6 AEC 258, 259 (1973).
5 upon the future course of a proceeding."9 As we have pointed out in this proceeding, the fact that a licensing 0
board ruling may be in error or that future litigation may be required does not justify our review of that ruling by directed certification.11 Indeed, in a related context, we have held that in the absence
. of a potential of truly exceptional delay or expense, the risk that a licensing board's interlocutory ruling may eventually be found to have been erroneous, and that because of the error further proceedings may have to be held, is one which must be assumed that board and the parties to the proceeding.ygy In attempting to meet this criterion, the Attorney General first asserts, without mure, that the Licensing Board's ruling, in combination with the fact that the Board has attached presumptive validity to the Federal Emergency Management Agency's (FEMA) review of the SPMC, has had the effect of substantively determining the form of the governments' response at the time of an emergency.
- Second, the Attorney General argues -- again without elaboration --
9 Palo Verde, 18 NRC at 383.
O ALAB-734, 18 NRC 11, 15 (1983).
ALAB-737, 18 NRC 168, 176 n.12 (1983).
1 Cleveland Electric Illuminating Co. (Perry Nuclear Power Plant, Units 1 and 2), ALAB-805, 21'NPC 596, 600 (1985) quoting from Commonwee.lth Edison Co. (Zion Station, Units 1 and 2), ALAB-116, 6 AEC 258, 259 (1973).
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that the Board's ruling has the procedural effect of placing upon the interveners the burden of rebutting the FEMA finding that the SPMC is' adequate and will be generally followed by the nonparticipating governments in an emergency.
Thus, according to the Attorney General, the Licensing Board's ruling has a pervasive and unusual affect
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on the basic. structure of the proceeding.13 Contrary to the Attorney _ General's assertions, we cannot conclude that the Licensing Board's ruling, even if erroneous, affects the basic structure of the proceeding in a pervasive or unusual manner.
Indeed, the Attorney General's arguments are so abbreviated and the impacts he alleges so obscure, that he has not made the " clear and j
i convincing showing" required in order to prevail on a directed certification motion.14 First, as we read the Licensing Board's decision, it does not appear to limit the trial of any factual issues and the Attorney General will have the opportunity to challenge factually the adequacy and impicmentability of the SPMC.
In granting summary disposition, the Licensing Board decided only the legal issue of whether Massachusetts law permitted the Governor to 13 Memorandum of the Massachusetts Attorney General in Support of his February 27, 1989 Motion for Directed Certification (March 1, 1989) at 6-7.
14 Palo Verde, 18 NRC at 383.
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7 delegate certain powers to the ORO in an emergency.
The Board specifically did not determine what response the Governor would select in an emergency.
Second, regardless of the assumpt.4ons FEMA employed in reviewing the SPMC or the outcome of that review, the Commission's regulations 1
i provide that the FEMA finding "will constitut6 a rebuttal presumption on questions of adequacy and implementation capability."16 Hence, it is the Commission's regulations, I
not the challenged Licensing Board ruling, that has set the basic structure of this part of the proceeding and we do not understand the Board's ruling to have altered it.
For the foregoing reasons, the Attorney General's motion for directed certification is denied.
It is so ORDERED.
FOR THE APPEAL BOARD B'arbara A. Tompkins Secretary to the Appeal Board 15 LEP-89-8, 29 NRC at (slip opinion at 24).
16 10 C.F.R. S 50.47 (a) (2).
l Dockot No.(s)S0-443/444-OL AB MEMORANDUM AND~0RDER - 4/11 1
1 Diane Curran, Esa.
. Thomas 6. Dignan, Jr., Esq.
Harmon, Curran & Tousley Ropes & Gray 2001 S Street. N.W., Suite 430 One International Place l
Washington, DC 20009 Boston, MA 02110 l
Robert A. Backus, Esq.
Paul McEachern, Esq.
Backus, Meyer & Solomon Shaines & McEachern 116 Lowell Street 25 Maplewood Avenue, P.O. Box 360 l
Manchester, NH 03106 Portsmouth, NH 03801 1
Gary W. Holmes, Esc.
Judith H. Mizner Holmes & Ells Silverglate, Gernter, Baker, Fine.
47 Winnacunnet Road Good and Hitzner Hampton, NH 03042 BB Broad Street Boston, MA 02110 l
Charles P. Graham, Esa.
Jane Doherty McKay, Murphy and Graham Seacoast Anti-Pollution League 100 Main Street 5 Market Street Amesbury, MA 01913 Portsmouth, NH 03801 Leonard Kopelman, Esq.
Ashed N. Amirian, Esq.
Kapelman and Paige,.P.C.
376 Main Street 77 Franklin Street Haverhill, MA 01830 Boston, MA 02110 George W. Watson, Esq.
Edward A. Thomas Federal Emergency Management Agency Federal Emergency Management Agency 500 C Street, S.W.
442 J.W. McCormack (POCH)
Washington, DC 20472 Boston, MA 02109 t
George D. Bisbee, Esq.
Suzanne Breiveth Assistant Attorney General Board of Selectmen Office of the Attorney General Town of Hampton Falls 25 Capitol Street Drinkwater Road C'_ncor d, NH 03301 Hamptoit Falls, NH 03844 i
Docket No.is)50-443/444-OL AB MEMORANDUM AND ORDER - 4/11 i
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John Traficonte, Esq.
Peter J. Brann, Esq.
Chief, Nuclear' Safety Unit Assistant Attorney General i
Office of the Attorney General Office of the Attorney General One Ashburton Place, 19th Floor State House Station, #6 I
Boston, MA 02108 Augusta, ME 04333 The Honorable Edward J. Markey, Chairran Richard A. Hampe, Esq.
i ATTN Linda Correia Hampe & McNicholas l
l Subcommittee on Energy Conservation and 35 Pleasant Street Power Concord, NH 03301 House Committee on Energy and Commerce Washington, DC 20515 J. P. Nadeau Allen Lasport Board of Selectmen Civil Def ense Director 10 Central Street Town of Brentwood Rye, NH 03870 20 Franklin Street Exeter, NH 03933 l
William Armstrong Sandra Gavutis, Chairman I
Civil Defense Director Board of Selectmen Town of Exeter RFD #1 Box 1154 10 Front Street Kensington, NH 03827 Exeter, NH 03833 Calvin A. Canney Anne Goodman, Chairman City Manager Board of Selectman l
City Hall 13-15 Newmarket Road I
126 Daniel Street Durham, NH 03824 l
Portsmouth, NH 03801 William 6. Lord Peter J. Matthews Board of Selectmen Mayor of Newburyport Town Hall - Friend Street City Hall 1
Amesbury, MA 01913 Newburyport, MA 01950 R. Scott Hill-Whilton, Esquire Michael Santosuosso, Chairman L agoulis, Hill-Whilton & McGuire Board of Selectmen 79 State Street South Hampton, NH 03827 Newburyport,, MA 01950
Docket No.(s)90-443/444-OL AB NEMORANDUM AND ORDER - 4/11 Stanley W. Knowles, Chairman Norman C. Katner Board of Selectmen Superintendent of Schools P.O. Box 710 School Administrative Unit No. 21 North Hampton, NH 03862 Aluent Drive Hampton,_NH 03842 Bandra F. Mitchell The Honorable
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Civil Def ense Director Gordon J. Humphrey i
Town of Kensington ATTN Janet Colt Box 10, RR1 United States' Senate-(
East Kingston, NH 03027 Washington, DC 20510 l
i Dated at Rockville, Md. this 11 day of April 1989
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Off e of the Secretary of the Cossission i
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