ML20080R603

Answer to Seacoast Anti-Pollution League (Sapl) 820420 Motion for Reconsideration of Denial of Sapl Supplemental Contention 5.Motion Should Be Denied on Merits as Sapl Has Stated No Adequate Basis.Certificate of Svc Encl

ML20080R603
Person / Time
Site:	Seabrook
Issue date:	02/24/1984
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8402280350
Download: ML20080R603 (10)

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DOCKETED USFPC T4 FEB 27 A10:11 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION [0 E ] '/ '

BRANC4 before the ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of )

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PUBLIC SERVICE COMPANY OF ) Docket Nos. 50-443 NEW HAMPSHIRE, et al. ) 50-444

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(Seabrook Station, Units 1 and 2 )

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. APPLICANTS' ANSWER TO SAPL MOTION FOR RECONSIDERATION OF DENIAL OF SAPL SUPPLEMENTAL CONTENTION No. 5 STATEMENT OF THE CASE On April 20, 1982, the intervenor Seacoast Anti-Pollution League (SAPL) filed its " Supplement to the Petition for Leave to Intervene and Darther Statement of Contentions" (SAPL Supp.). Contention No. 5 set out in the Supplement was:

"The lead applicant, and certain other applicants, including-United Illuminating and Bangor Hydro, cannot demonstrate reasonable assurance that they are financially qualified 8402280350 840224 PDR ADOCK 05000443 9 PDR C

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to meet the costs of operating and decommissioning the proposed facility'."

As to United Illuminating Co. (UI) and Bangor +

Hydroelectric Co. (Bangor Hydro), SAPL set forth no basis except a cryptic footnote which invited the reader to "see New England Business Review, February 12, 1982". With respect to the " lead applicant", Public Service company of New Hampshire (PSNH), SAPL put forth the following statement of basis: ,

"The basis for these contentions is set forth in the report of the New Hampshire Public Utilities Commission, dated January 11, 1982, in DR 81-87, and in the NHPUC's March 24, 1982 Report in DF 82-83. In these reports the NHPUC clearly found Public Service Company of New Hampshire financially unqualified to

, continue the existing project, and in fact stated that if conditions did not improve within six months of its first order, that it would prohibit the use of any further financing authorization for construction of Unit 2. By its Order of March 24th, the NHPUC found that conditions had deteriorated, and conditioned its approval for the issuance of 3,000,000 additional shares of common stock upon a commitment that the proceedings not be used for new commitments for Unit 2, other than work on th'e liner of the containment.

The NHPUC further found that the problem facing Public Service Company of New Hampshire was not lack of rate relief, which it had readily been granted, but inadequate cash l flow, which was beyond the power of the Commission to remedy by allowing ever higher rates of return." SAPL Supp. at 4-5.

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o This Board rejected this contention on the basis of the then recent amendment to the Commission's Regulations, 47 Fed.

Reg. 13750 (1982) amending 10 CFR S 50.33(f)(1), by prohibiting litigation of Financial Qualifications in Operating License proceedings. Public Service Company of New Hampshire (Seabrook Station, Units 1 & 2), LBP-82-76, 16 NRC 1029, 1083 (1982).

On February 7, 1984, the United States Court of Appeals issued its decision on the Petition for Review taken to that court seeking to overturn the amendment to the Regulations relied upon by this Board in rejecting SAPL's Financial Qualifications contention. New England Coalition on Nuclear Pollution v. NRC, F.2d , No. 82-1581 (D.C. Cir. Feb.

7, 1984). In that decision, the Court found that the amendment to the Regulations was not accompanied by an

' adequate statement of basis and purpose as required by the Administrative Procedure Act, 5 U.S.C. $ 553(c). The Court specifically'did not hold that the Commission was legally disabled from adopting a regulation doing away with proof of Financial Qualifications in nuclear power plant licensing proceedings, Slip Op. at 9,'and confined the relief afforded y to a remand of the rule to the Commission "for further

proceedings consistent with.this opinion". In addition, a reading of the opinion, Slip Op. 6-9, appears to indicate E ~

that the Statement of Basis and Purpose was found by the Court to be inadequate only insofar as it supposedly justified eliminating Financial Qualifications considerations in construction permit as opposed to operating license proceedings.

On February 10, 1984, SAPL filed the motion at bar requesting this Board to reconsider its prior rejection of the contention in light of the above-described decision of the United States Court of Appeals. No additional bases are alleged for the contention although SAPL purports to reserve the right to " amend its Contention 5 in the event that the Board requires current evidence of reaffirmation of the basis" Motion at 2.

It is in'the foregoing posture that this matter comes before the Board.

ARGUMENT I. THE MOTION IS PREMATURE As indicated above the Court of Appeals found no legal bar to the adoption of a regulation which would preclude consideration of Financial Qualifications in NRC licensing proceedings. Furthermore, all that the Court has done is to remand the rule to the Commission for further proceedings.

As of this writing there are at least four courses of action open to the Commission other than permitting, at this

time, Financial Qualifications to be litigated in individual Operating License proceedings. These include: (1) Seeking Supreme' Court review; (2) Rewriting the Statement of Basis and Purpose to obviate the Court's objections; (3)

Interpreting the decision, as we submit it should be, as not affecting Operating Licensing aspects of the Regulation; and (4) Reactivating the old, or commencing a new, rulemaking proceeding-which would have the effect of removing the generic issue under consideration from individual licensing proceedings, see Potomac Electric Power Co. (Dougins Point Station, Units 1 & 2), ALAB-218, 8 AEC 79, 85 (1974);

Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655, 14 NRC 799, 816 (1981).

Furthermore, if past precedent is followed, the Commission may well put out written guidance on this matter.

In any event, all of the foregoing makes clear that the motion at this time is premature and should be denied as such.

II. THE MOTION SHOULD BE DENIED ON i THE MERITS BECAUSE SAPL HAS STATED NO ADEQUATE BASIS FOR l

THE CONTENTION We have quoted above the entire statement of basis which

'SAPL has put forward for the contention. In essence what SAPL is saying is that the basis for the contention is the i

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NHPUC's (and in the ' case of UI and Bangor Hydro, New England Business Review's) views that PSNH, and possibly UI and

_ Bangor Hydro, do not have the ability to come up with funds to' construct the Seabrook. facility. None of the sources referenced purport to argue (or even deal with the concept)

.dsat, _ assuming- the facility is built, these companies cennot come up with the funds-to operate (and decommission) the facility. This is not surprising-because if Seabrook 1 and 2 are finished,.there is no problem-in finding funds to operate the' station.

The issue of whether PSNH can ob'tain the funds to construct Seabrook is not an issue which is litigable before this Operating License Board. This is so first, because the Commission did not. delegate to this Boerd authority to deal with this or any other Construction Permit issue and,

. second, because PSNH's Financial Qualifications to construct l

! Seabrook'were-litigated in detail at the Construction Permit stage and that matter is now res adjudicata so far as SAPL i is concerned. Public Service Company of New Hampshire

-(Seabrook Station, Units 1 & 2), LBP-76-26, 3 NRC 857, 867-

68,.916-19'(1976); id., ALAB-422, 6 NRC 33, 73-82 (1977);

, id. CLI-78-1, '7 NRC 1,?8023; New England Coalition on

. Nuclear' Pollution v. NRC, 582 F.2d 87, 92-93 (1st Cir.

1978).

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CONCLUSION The motiion should be denied as premature; if the Board reaches'the merits of the contention, it should be excluded.

Respectfully submitted, "4' -

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Thomas G. Dignan, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, MA 02110 (617) 423-6100 Dated: February 24, 1984 t

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CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on February 24, 1984, I_made service of the within document by mailing copies ,

thereof,_ postage prepaid, to:

Helen Hoyt, Chairperson Ms. Diana P. Randall Atomic Safety and Licensing 70 Collins Street Board Panel Seabrook, NH 03874 U.S. Nuclear Regulatory Commission Washington, DC 20555 Dr. Emmeth A. Luebke William S. Jordan, III, Esquire Atomic Safety and Licensing Harmon & Weiss Board Panel 1725 I Street, N.W.

U.S. Nuclear Regulatory Suite 506 Commission Washington, DC 20006 Washington, DC -20555 Dr. Jerry Harbour G. Dana Bisbee, Esquire Atomic-Safety and Licensing Assistant-Attorney General Board Panel Office of the Attorney General U.S. Nuclear Regulatory -208 State House Annex Commission Concord, NH 03301 Washington, DC 20555 Atomic Safety and Licensing -Robert G. Perlis, Esquire Board Panel Office of the Executive Legal U.S. Nuclear Regulatory Director Commission U.S. Nuclear Regulatory Washington, DC _ 20555 Commission Washington, DC 20555 Atomic Safety and Licensing Robert A. Backus, Esquire Appeal Board Panel 116 Lowell Street U.S. Nuclear Regulatory P.O. Box 516 Commission Manchester, NH 03105 Washington, DC 20555 Philip Ahrens, Esquire . Anne Verge,. Chairperson Assistant Attorney General Board of Selectmen Department of the Attorney Town Hall

-General South Hampton, NH 03827

- Augusta,-ME 04333 9

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Charles ~ Cross, Esquire JoAnn Shotwell, Esquire Shaines, Madrigan & McEachern Assistant Attorney General 25 Maplewood Avenue Department of the Attorney General P. O. Box 366 One Ashburton Place, 19th Floor Portsmouth, NH- 03842 Boston, MA 02108 Ms. Roberta C. Pevear Mr. Patrick J. McKeon Assistant Attorney General Selectmen's Office the Town of Hampton Falls 10 Central Road Drinkwater Road Rye, NH 03870 Hampton Falls, NH 03844 Mrs. Sandra Gavutis Mr. Calvin A. Canney Assistant Attorney General City Manager the Town of Kensington City Hall ,

RED 1 126 Daniel Street East Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J. Humphrey Mr. Angie Machiros U.S. Senate Chairman of the Washington, DC 20510 Board of Selectmen (Attn: Tom Burack) Town of Newbury Newbury, MA 01950 Senator Gordon J. Humphrey Mr. Richard E. Sullivan 1 Pillsbury Street Mayor Concord, NH 03301 City Hall (Attn: Herb Boynton) Newburyport, MA 01950

.Mr. Donald E. Chick. Town Manager's Office Town Manager Town Hall

>- Town of Exeter Friend Street

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10 Front Street Amesbury, MA 01913

-Exeter, NH 03833 Brian P. Cassidy', Esquire Brentwood Board of Selcctmen Regional Counsel RED Dalton Road Federal Emergency Management Brentwood, NH 03833 Agency - Region I 442 POCH Boston, MA 02109

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Gary W. Holmes,_ Esquire

' Holmes & Ells 247 Winnacunnet Road Hampton, NH 03841-4,.

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Thomas G. Dignan, Jr.

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