ML20084F077

Comments on Commission 840426 Meeting Re Policy Statement on Financial Qualifications Pending Completion of Ongoing Rulemaking.Admission of Financial Qualifications Contentions Into Proceedings Unnecessary

ML20084F077
Person / Time
Site:	Seabrook
Issue date:	05/01/1984
From:	Dignan T PUBLIC SERVICE CO. OF NEW HAMPSHIRE, ROPES & GRAY
To:	Gilinsky V, Palladino N, Roberts T NRC COMMISSION (OCM)
References
OL, NUDOCS 8405030111
Download: ML20084F077 (3)

Text

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000hETtnG & SEevn i May 1, 1984 BRANCH i

Nunzio J. Palladino, Chairman U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, DC 20555 Commissioner Victor Gilinsky U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, DC 20555 Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, DC 20555 Commissioner James K. Asselstine U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, DC 20555 Commissioner Frederick M. Bernthal U.S. Nuclear Regulatory Commission 1717 H Street, N.W.

Washington, DC 20555 Re: Public Service Company of New Hampshire, et al.

Docket Nos. 50-443 and 50-444 C L Gentlemen:

We are advised that at the public meeting of the Commissionen April 26, 1984, there was a discussion regarding a policy statement on financial qualifications pending completion of the ongoing rulemaking. We are.

advised that the Commission discussed a draft policy statement, which was not made available to the public, which would, in effect, reinstate the pre-1982 financial ,

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& GRAY Nunzio J. Palladino, Chairman May 1, 1984 qualifications rules, at least until such time as the now pending rulemaking on the subject was completed.

We are further advised by persons who were in attendance that a reasonable interpretation of the discussion had at the meeting was that the Commission intended to issue guidance to Licensing Boards to the effect that such Botrds should admit contentions regarding financial qualifications

. in pending operating license proceedings if such contentions had been rejected on the basis of the rule which was the subject at bar in New England Coalition on Nuclear Pollution

v. NRC, No. 82-1581, (D.C. Cir., Feb. 7, 1984).

On the assumption that the above-described decision has not yet been made final, we should like to offer the following comments with respect to this matter on behalf of the holders of the construction permit for the Seabrook Station in Seabrook, New Hampshire:

A reading of the Court's decision in NECNP v. NRC,

. supra, reveals that the Court deliberately chose not to

" vacate" the rule under consideration but rather satisfied itself with a remand of the rule for further proceedings consistent with the opinion. It is to be noted that the Court found that the rule under consideration was invalid only on the basis that it was not accompanied by an adequate statement of bases 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 generally. Slip Op. at 9. And a fair reading of the opinion indicates that the Court did not even address the question of whether the rule was invalid insofar as it eliminated financial qualifications as an issue in operating license proceedings as opposed to construction permit proceedings. Indeed, all of the Court's dissatisfaction with the rule is expressed in terms of financial difficulties during construction.

A remand of the above-described decision "for further proceedings consistent with this opinion" clearly contemplates the holding of a new rulemaking proceeding in order possibly to modify the rule and, in any event, to assure that whatever rule is forthcoming is accompanied by ,

an adequate statement of bases and purpose. This Commission L__________________----_

. Ro pes & G RAY

~

Nunzio J. Palladino, Chairman May 1, 1984 has long held that when any generic issues are under consideration in rulemaking, they should not be made the subject of inquiry in individual licensing proceedings pending the completion of rulemaking. See Potomac Electric Power Co. (Douglas Point Station, Units 1 and 2), ALAB-218, 8 AEC 79, 85 (1974); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), ALAB-655,.14 NRC 799, 816 (1981). Nothing in the Court's decision or its refusal to stay the mandate can be read as requiring the Commission to depart from this usual practice. Indeed, the Court's intent would appear to be quite the opposite in light of the penultimate sentence in its opinion quoted from a prior decision:

"Where agency action must be set aside as invalid, but the agency is still legally free to pursue a valid course of action, a reviewing court will ordinarily remand to enable the agency to enter a new order after remedying the defects that vitiated the original action" (emphasis added). ,

This is hardly the language of a Court which was commanding or even contemplating the immediate disruption of every ongoing operating license. proceeding in the agency.

In short, there is no need for admission of financial qualifications contentions into individual licensing proceedings prior to the completion of the ongoing rulemaking.

Very truly yours,

)

Thomas G. Dignan, Jr.

Applicants' Counsel TGD,Jr:kdr cc: All parties

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