ML20082R583

Response Opposing State of CT Div of Consumer Council 831026 Request to Deny Renewal of Cp.Contentions Do Not Address Issue of CP Delay Justification.Certificate of Svc Encl

ML20082R583
Person / Time
Site:	Seabrook
Issue date:	12/09/1983
From:	Dignan T, Gad R PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	NRC COMMISSION (OCM)
References
NUDOCS 8312130224
Download: ML20082R583 (6)

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Filsd: Dactmbar 9, 1983

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'83 DEC 12 P12:04 UNITED STATES OF AMERICA cer'S CF ?. RJiT' . ,

c;g;; ; y.s v NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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In the Matter of )

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

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(Seabrook Station, Units 1 & 2) )

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APPLICANTS' RESPONSE TO " REQUEST OF CONNECTICUT DIVISION OF CONSUMER COUNCIL TO DENY RENEWAL OF CONSTRUCTION PERMIT FOR SEABROOK UNIT 2" Under date of October 26, 1983, the " Connecticut Division of Consumer Counsel" apparently filed, with the Commission, a document entitled " Request of Connecticut Division of Consumer Counsel to Deny Renewal of Construction Permit for Seabrook 2."2 Since 1

According to the pleading, copies were mailed to the " Atomic Safety and Licensing Board Service List" on October 26, 1983. Counsel for the Applicants received no such service. Nor was service upon the Licensing 8312130224 831209 PDR ADOCK 05000443 G

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there is presently pend,ng before the Commission an application for extension of the Seabrook construction permits for both units,2 we presume that this pleading should properly be construed to be a request for a hearing and petition for leave to intervene.

For the reasons set forth herein, the Applicants say that the petition for hearing should be denied.

Pages 2 and 3 of the Consumers Counsel pleading set forth the contentions that the pleaders advance as the reasons why the extension of the construction permit for Seabrook 2 ought to be ' denied. Each of these contentions relates to need for power, economics of power, alternative fuel use, cost of construction, Board and parties before it appropriate, since the Licensing Board in the operating license proceeding has not been commissioned with ruling on any requests for hearing in connection with the construction permit extension application.

2 Technically, the pending application is for amendment of the "last date for completion" provisions of the construction permits. See 10 CFR S 50.55(b).

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9 construction schedule, and financial qualifications.

Taken together, these contentions relate to only two issues that are ever litigable in NRC hearings: (i) the so-called "need for power" issue, which is an element of the NEPA cost / benefit balance in construction permit (but not operating license) proceedings, and (2) the

" financial qualifications" issue, which arises under the Commission's health and safety jurisdiction (to the extent provided in the regulations).8 Neither of these issues is relevant to a construction permit extension Case.

In Washington Public Power Supply System (WPPSS Nuclear Projects Nos. 1 and 2), CLI-82-29, 16 NRC 1221 (October 15, 1982), the Commission reviewed these very questions. It determined that the Atomic Energy Act does not contemplate litigation of anything other than issues directly related to AEA $ 185 and 10 CFR

$ 50.55(b):

3 Since the Applicants are all electric utilities, and since Seabrook is a facility described in 10 CFR 5 50.22, no requirement of " financial qualification" applies to the construction permit 10 CFR S (f).

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"[W]e discern no intent on the part of Congress to require the periodic relitigation of health, safety, or environmental questions in agency adjudications between the time a construction permit is granted and the time the facility i,s authorized to operate. Rather, interested persons have been legislatively afforded a particular opportunity to raise such issues in the context of a proceeding in which the agency determines whether an operating license will be granted. . . .

Consistency with the congressionally mandated two-step licensing process suggests a construction of section 185 that limits the scope of litigable issues with regard to the extension of a construction permit. . . .

"We believe that the most ' common sense' approach to the interpretation of section 185 and 10 CFR S 50.55 is that the scope of a construction permit extension proceeding is limited to direct challenges to the permit holder's asserted reasons that show ' good cause' justification for the delay. The avenue afforded for the expression of health, safety, and environmental concerns in any pending operating license proceeding, or in the absence of such a proceeding, in a petition under 10 CFR S 2.206 would be exclusive despite the pendency of a construction permit extension request."

16 NRC at 1228-29.

Since none of the contentions set forth in the Consumers Counsel pleading address the issue of justification for delay in construction, the request for a hearing and petition raises no litigable issue

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under section 50.55(b) and should, therefore, be denied.

Respectfully submitted, r k ',-

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Thomas G. Dignan, Jr.

R. K. Gad III Ropes & Gray 225 Franklin Street Boston, Massachusetts 02110 Telephone: 423-6100 Dated: December 9, 1983 r

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't CERTIFICATE OF SERVICE I, Thomas G. Dignan, Jr., one of the attorneys for the Applicants herein, hereby certify that on December 9, 1983, I made service of the within " APPLICANTS' RESPONSE TO " REQUEST OF CONNECTICUT DIVISION OF CONSUMER COUNCIL TO DENY RENEWAL OF CONSTRUCTION PERMIT FOR SEABROOK UNIT 2 " by mailing copies thereof, postage prepaid, to:

Barry Zitser, Esquire Valerie Bryan, Esquire Division of Consumer Counsel One Central Park Plaza New Britain, Connecticut 06051 Roy P. Lessy, Jr., Esquire William F. Patterson, Jr.

Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, DC 20555

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7tiomas G. Jr.