ML20092K870
| ML20092K870 | |
| Person / Time | |
|---|---|
| Site: | Shoreham File:Long Island Lighting Company icon.png |
| Issue date: | 02/20/1992 |
| From: | Mcgranery J DOW, LOHNES & ALBERTSON, SCIENTISTS & ENGINEERS FOR SECURE ENERGY, SHOREHAM-WADING RIVER CENTRAL SCHOOL DISTRICT, NY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#192-12600 OLA-3, NUDOCS 9202260048 | |
| Download: ML20092K870 (44) | |
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<,ptiLP i UNITED STATES OF AMERICA ' "U M L NUCLEAR REGUIATORY COMMISSION l mEr0Rr THE COMMISSION '92 RB 20 P4!49 q c nit #V r
'ffo, In the Matter of lDockhdho;gx,tM1 t t40632 2-0!A-3
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IANG IS!AND LIGHTING COMPANY ) ;
) (Application for '
(Shoreham Nuclear Power Station, License Transfer)
Unit 1) l r
t PETITIONERS' OPPOSITION TO NUCLEAR REGULATORY COMMISSION STAFF RECOMMENDATION FOR APPROVAL OF LICENSE TRANSFER Petitioners Shoreham-Wading River Central School r District (" School District") and Scientists and Engineers for Secure Energy, Inc. ("SEg ") oppose the Nuclear Regulatory Commission Staff (" Staff") recommendation for the Nuclear Regulatory Commission ("NRC" or " Commission") to approve the issuance of the Shoreham-Nuclear Power Station ("Shoreham")
license transfer to the Long Island Power Authority ("LIPA") as presented in SECY-92-041, subject: Shcreham Nuclear Power Station L'icense Transfer (February 6, 1992) ("SECY-92-041") for reasons previously presented to the Staff, the Atomic Safety and .j Licensing Board and the Commission itself, and for the reasone additionally set forth herein.
Initially, Petitioners note the legal fragility of several of the Staff's premises for recommending license transfer. First, the Staff recommends transfer of nothing more than a possession only license (" POL") to LIPA. However, the 1
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I validity of that NRC license is currently under review by the f U.S. court of Appeals for the District of columbia circuit where oral argument was held on February 7, 1992 (and a decision is f expected shortly) and in the hearing process before this commission. If the court should vacate that licensing action on the basir, of anyone of the several Atomic Energy Act ("AEA") or i National ?.nvironmental Policy Act ("HEPA") violations asserted by l Petitioners or the codsission's licensing process should result in denial of the POL, the Commission would find itself with LIPA as a surely unqualified reactor operating licensee. Eta SECY-92-041 at 2.
Second, another necessary premise of the Staff recommendation is the. adequacy of the decommissioning funding assurance provisions approved by exemption to this commission's rules. SECY-92-041 at 3-4. However, that exemption and its accompanying environmental assessment are currently being <
challenged by Petitioners in the United States court of Appeals for the Second circuit where briefing will be completed by March i 31, 1992 and oral argument is scheduled for the end of April 1992 or shortly thereafter, only a little over two months from now.
Third, the Staff recommendation is most-fundamentally premised upon the availability of the Sholly Procedures. SEcy-92-041 at 4 (". . . nothing in the submissions of the Petitioners affects the proposed no significant hazards consideration determination."). However, as petitioners have previously l
pointed out, the Sho11y Procedures are only available for h
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approval of (a) " amendments" to (b) " operating licenses." Egg 42 U.S.C. I 2239(a)(2)(A) (1988). A license transfer is not an
" amendment to a license" and a " possession only license" obviously is not an " operating license." Est 42 U.S.C. I 2239 (a) (1) (1988) (treating " amending" and " transfer" as distinct actions). The use of the Sholly Procedures require that the action hath be an amendment and that it affect an operating license. If either condition is absent, the Sho11y Procedures are not available. Here hath conditions are absent.
Fourth, until the Commission has made a final decision on whether to approve, modify or reject the proposed decommissioning plan (SECY-92-041 at 5-6), it would be premature to approve a transfer of Shoreham to LIPA because LIPA is allowed only to decommission Shoreham as a matter of New York State law.
Ems How York Public Authorities IAv li 1020-t & 1010-h subd. 9 (McKinney's 1991). Transfer prior to approval of a decommissioning plan could foreclose the Commission's discretion to reject decommissioning and, thus, would be arbitrary, capricious and an abuse of discretion under the Atomic Energy Act
("AEA") and would constitute an impermissible segmentation of the NRC's National Environmental Policy Act ("NEPA")
responsibilities.
Fifth, the Staff is asking this Commission to implicitly make a finding of New York State Law that LIPA continues to exist. SECY-92-041 at 5. Such a determination is clearly beyond the competence cf the Staff to advise on and the
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Commission to determine, and equally as clearly is within the power and the burden of the applicant LIPA to provide the Commission at the threshold of demonstrating its suitability to become a Commission licensee. As Petitioners have previously noted, the commission should be extraordinarily vary of LIPA's demonstrated reluctance to pursue the obvious, necessary and relatively simple action in state court to resolve this issue.1' 1/ The materials previously submitted to the Commission by LIPA demonstrate that Public Authorities Law i 2020 was intended to automatically terminate any Authority or Commission which was not a " going concern" at the end of five years after its authorization. LIPA is clearly not a " going concern."
Although LIPA referred to the appropriate section of the State Commission's report, it missed the point. Temporary State Commission on Coordination of State Activities, Staf f Recort on Public Authorities Under New York State, 100-09 (March 21, 1956).
That report focused on the need for the Authority to have become a " going concern" by the end of five years: "Obviously there is no purpose in the State permitting the indefinite continuation of an authority merely because it owes theIfState or a local the authority is not government for monies advanced to it.
actually operative, it will produce no revenue and will in all likelihood have no way of repaying such advances." Id. at 105.
It is almost too obvious to state that LIPA produces "no revenue and will in all likelihood have no way of repaying such advances." The question as to LIPA's continued existence cannot be answered merely by an inquiry into whether it has some sort of liabilities but requires a broader inquiry into the issue of whether it ' ,d "States
-4 going concern." It is not.
Supreme Court first acknowledged the The Un.
concept of " going concern" in several utility ratemaking cases.
Eig., Des Moines Gas Co. v. City of Don Moines, 238 U.S. 153, 165 (1915) (stating existence of such quality was "self-evident").
In Los Anaeles Gas & Electric Carp. v. Railroad comm'n of Cal.,
the Court classified this quality in an ongoing businens as
" going value" and distinguished it from goodwill as follows:
illhere is an element _of value in an assembled and established clant. doina kMEIDals and earnina monev. over one not thus advancedt#1 this element of value is "a prooerty richt" which should be considered "in determining the value of the property (continued...)
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1/ (... continued) upon which the owner has a right to make a fair return". . . . The coina value thus recognized is not to be confused with good wil1[]. . . . The concept of going value
. does not give license to mere speculationi it calls for consideration of the history and circumstances of the particular enterprise, and attempts at precise definition have been avoided.
Los Anceles Gas & Electric Coro. v. Railroad Comm'n of Cal., 289 U.S. 287, 313 (1P33) (emphasis added, citations omitted); 332 alun 38 C.J.S. cas i 33 (discussing going value in context of '
utility rate setting).
Host tax cases use the term " going concern" value to describe "the additional element of value Lthat) attaches to property by reason of its existence as an untearal cart of a going concern." Egg yGS Core. v. Commissioner, 68 T.C. 563, 591 (1977) (emphasis added); accord UFE. Inc. v. Commissioner, 92 T.C. 1314, 1323 (1989); Banc One Coro. v. Commissioner, 84 T.C.
476 (1985); Black Industries v. Commissioner, 38 T.C.M. (CCll) 242, 253 (1979)# ERA A112 Cross, 209-4th T.M., Purchase Price Allocations and Amortization of Intangibles, at A-19 (referring to this definition of " going concern" value as " classic definition"). " Going concern" value is the " amount of enhanced value associated with assets because those assets are combined in an on-going business." Egg Goodman v. United _ Stat 13, 81-1 USTC 1 9375, at C7,009, 87,012 (E.D. Mich. 1981) (citing Northern Natural cas Co., 470 F.2d at 1109). As such, " going concern" value usually refers to "the ability of (an) acquired business to generate sales without any interruption because of (a) take-over." Winn-Dixie Montoonerv. Inc. v. United sta(11, 444 F.2d 677, 685 n.12 (5th Cir. 1971); accord UFE. Inc., 92 T.C. at 1323; Illinois cereal Mills. Inc. v. Cornisgioner, 46 T.C.H. (CCH) 1001, 1023 (1983), pff'd, 789 F.2d 1234 (7 th Cir. 1986) , gart.
ARD124, 107 S. Ct. 600 (1986); Coroutina & sof tware. Inc. v.
gommissioner, 64 T.C. 223, 234 n.10 (1975).
The Tax Court listed six factors that one considers in determining whether " going concern" value exists. In essence, these factors address whether a business has the requisite continuity of function discussed in Winn-Dixie Montaomerv. Inc.
These include whether there exists (a) a network of regular customers, (b) an experienced staff, (c) an established routine for supplying a product or service, (d) a product ready for salo, (e) equipment ready for immediate use, and (f) continuation of a longstanding business under the same or similar name and in the same community. Tona v. Commitgioner, 40 T.C.H. (CCH) 689, 720 (1984), cart. denied, 108 S. Ct. 159 (1987); 33g Concord control, (continued...)
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Given these compounded uncertainties and for the additional reasons expressed below, Petitioners suggest that it would be arbitrary, capricious and an abuse of discretion in violation of the Administrative Procedure Act as well as inconsistent with the public health and safety and the national defense and security in violation of the AEA and also violative of the requirements of NEPA for the Commission to approve the Staff recommendation in SECY-92-041 (at least at this time).
Rather than accepting the Staff's invitation to put a brick roof on this house of cards, the Commission should return the natter to the Staff to await Staff resolution of those issues within its competence, LIPA resolution of those issues within it capability and obligations, Atomic Safety and Licensing Board resolution of the pending petitions, and judicial resolution of those matters punding in the courts. There is simply no reason to rush headlong into a decision based on such uncertain premises.u 1/
Inc. v.(... continued) 80-1 USTC 1 9248 (6th Cir. 1980); computina Commissioner,
& Software. Inc , 64 T.C. at 235l AAA 1112 Cross, 209-4th T.M.,
Purchase Price Allocations and Amortization of Intangibles, at A-19 (p oting ESD2). LIPA possesses DQt A A i ncie gns of the attributes of a " going concern."
2/ These five uncertainties are really " bundles" of uncertainties where anyone of a number of subsidiary issues could result in judicial voiding of the Commission's order. However, even if one treats each one of these " bundles" as a single event and considers the likelihood of each " bundle" surviving judicial review as being 75%, the likelihood of all five bundles surviving judicial review (without addrepsing the other issues discussed herein) is less than 25% (0.75 = 0.237). To achieve(continued...) even a 50%
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1 THE ENVIRONMENTAL ASSESSMENT VICIATES THE CONN!ss10N's NEPA RFEPONSIBILITIEB. l t
The staff provides an environmental assessment ("EA") !
i of only se tart linta as an attachment to SECY-92-041 without !
l having sought the participation of any Federal or state agency or _ l 1
the public, without having provided a draft finding of no significant impact-("PON81"), without publishing such a draft in j the Federal Resister,-without allowing 30 days for comment upon such draft finding and without allowing the final FONSI to be made at the conclusion of tie hearing process. Egg 10 C.F.R. 65- -j 51.33(b) (ii) & (c) and 51.34 (b) (1991). That EA openly admits that the staff "did not consult other agencies or persons." EA at 3.
Issuance of this EA would be a total violation of the !
i NRC's obligations as to the content and procedure for issuance of an EA under NEPA and_the_CEQ and NRC regulations issued pursuant
'thereto. 3432, _ sierra club v.-Modal, 848 F.2d 1068, 1092-97 ,
_(10th Cir. 1988). i First, both the CEQ and NRC regulations recognise that tAs EA must _contain a " list of agencies and persons consulted" 40 -
-C.F.R. I 1508.9(b) (CEQ) ; 10 C.F.R. I 51.30(a) (2) (1991) (NRC).
i This is recognition of the obligation to consult which is stated "The agency shall involve clearly in the CEQ regulations:
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likelihood of judicial affirmation on all five bundles, the
. individual likelihood of affirmance would have exceed 121 t
., -.u .-- _ - . . , - _ . _ . . . . - . . . _ . . . . . - . . . _ - . ~ . , . . . . _ . . . _ _ . , , . . . . _ ..-,u._-.---..
i environmental agencies, applicants, and the public, to the extent practicable, in preparing assessments . . . ." 40 C.F.R. I 1501.4 (b) ! 131 1112 40 C.F.R. 55 1506.2 & 1506.6; Fritiofson v.
Alexander, 772 F.2d 1225, 1236 (5th Cir. 1985) ("Before preparing an EA (the agency) must consult with other federal agencies.").
The NRC's own regulations also explicitly recognize this obligation at east in the context of a draft FONSI. 10 C.F.R. I 51.122 (1991); 133 glgR, Forty Most Asked Questions Concerning CEQ's National Environmental Policy Act Regulations, 46 Fed. Reg. 18026, 18030 (March 23, 1981) (" Forty Questions").
The NRC regulations recognize that the EA must contain a "brief discussion" of "the need for the proposed action",
" alternatives as required by 6 102(2)(E) of NEPA", and the
" environmental impacts of the proposed action." 10 C.F.R. I
- 51. 30 (a) (1) (1991). The CEQ's regulations further describe the document as "a concise public document" w,'dch will "(b)riefly provide sufficient evidence und analysis for determining whether to prepare an environmental impact statement or a finding of no significant impact." 40 C.F.R. I 1508.9 (a) (1) . The CEQ has determined that the concept of a "brief" or " concise public document" indicates that "the length of EAs (should be) not more than approximately 10-15 pages . . . to avoid undue length, the EA may incorporate by reference background data to support its concise discussion of the proposal and relevant issues." Forty Questions, 46 Fed. Reg. at 18037, cols 1 & 2. The CEQ further recognizes that " lengthy EAs (are appropriate) in unusual cases
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. . . . in mosh cases, however, a lengthy EA indicates that an EIS is needed." Id. None of this guidance sanctions the conclusory EA of 39 lines proffered by the Staff without reference to Any environmental document except for a mere mention of the " Final Environmental Statement for the Shoreham Huclear Power Station." EA at 3. " Simple, conclusory statements of 'no impact' are not enough to fulfill an agency's duty under NEPA."
Foundation on Economic Trends v. Heckler, 756 F.2d 143, 154 (D.C.
Cir. 1985).
Further, in discussing the "need for the proposed action" the Staff refers only to an Agreement betw sen New York State and LILCO. Such an agreement does not demonstrate any "need" binding on this Commission. Also, given the pendency of the proposal pursuant to 10 C.F.R. 5 50.82, it is at least disingenuous to state that there "will be no physical changes to the Shoreham facility associated with this amendment . . . .
EA at 2 (emphasis added). And the fact that SECY-92-041 and its attachments are replete with references to the pending decommissioning proposal demonstrates that the scope of the NEPA review is being illegally seguented. 40 C.F.R. 5 1508.25.
The EA is also inadequate in limiting its consideration I
to the " direct environmental impacts of LIPA activities under the license transfer." Id. (emphasis added)! ERA 40 C.F.R. 5 1508.8 l-i (definition of "effectu") adopted at 10 C.F.R. $ 51.14(b) (1991).
The EA is also incorrect in concluding "that this l
action would result in no radiological or non-radiological I
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environmental impact" since LIPA is constrained by its charter to decommission shoreham, which activity will have both reattlogical and non-radiological effects. cumulative impacts must be addressed. 40 C.F.R. i 1508.7.
Even within its own terms, the EA is incorrect in concluding that there would be no " radiological . . .
environmental impact" since the proposed technical specifications, among other things, would significantly reduce the degree of NRC supervision ated monitoring of activities at Shoreham relegating such activities to LIPA, an organization without any prior experience in NRC activities. E.g., Proposed Safety Evaluation at 1 3.2.11. Such lessening of NRC supervision w
will cause a p.RI En decrease in assurance of the public health and safety and a concomitant increase in the public's radiological risks from the conduct of activities at Shoreham.
Also, the conclusion that "any alternatives to the amendment will have either no environmental impact or greater environmental impact" is not only totally unsupported by any intelligible discussion or reference, but also unsupportable.
Foundation on Economic Trends, 756 F.2d at 154. For example, if one accepts the fact that the only justification for the license transfer is the existence of the proposal to decommission, consideration of this amendment implicitly requires a consideration of the impacts of decommissioning Shoreham before it has reached the end of its useful life by virtue of age or accident. Those impacts are quite significant for the
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l socioeconomic and other environmental interests of Petitioner as well as all persons on Long and those whom they represent, Island. Sie, n , New York State Public Service Commission Cases 90-E-1185 & 91-G-0112, Opinion No. 91-25 (November 26, (Attachment 1).
1991) (Commissioner James McFarland, dissenting) ity, Such direct and indirect impacts include impacts on airility qualof traffic, transportation accidente, employment, the reliab the LILCO electric generating system, the availability of l
Shoreham as a useful resource for the future if not immediate y, {
etc.
Moreover, as to the " alternative use of resources," the ld be mere reference to the " Final Environmental Statement" wou inadequate even if that document were current rather than 15 Much has changed on Long Island, in the United years old.
There needs to be States, and in the world in the last 15 years. f a fresh examination of the need for power, alternative sources o and power, the issues of global warming, the greenhouse effect, Air air pollution (especially due to the evolution of the clean 40 C.F.R. 5 Act), as well as other matters referred to above.
And the required discussion of mitigation measures is 1508.8.
totally absent. 40 C.F.R. $ 1508.20.
TME FONSI IS INADEOUATE AND ILLEGAL.
The FONSI is a final FONSI without the preparation of a h
draft FONSI and opportunity for comment required pursuant to t e 10 C.F.R. 55 NRC and CEQ regulations in these circumstances.
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_. _ _. - - . _ __ ~ _ _ . - _ . . . _ . .- _ _ _ _ . .
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51.33 & 51.34; 40 C.F.R. I 1501.4 (e) (2) . CEQ'has defined the circumstances requiring a draft FONSI as being not only when the
" nature of the proposed action is one without precedent," but also where the " proposal is a borderline case" or " unusual case,"
"a new kind of action," or " precedent setting case" or "when their is either scientific or public controversy over the proposal." 40 Questions, 46 Fed. Reg. at 18037 col. 3. The proposal in question here meets not only one but at least six of those seven standards which require indeoendentiv a draft FONSI and an opportunity for public comment,, pursuant to both KRC and CEQ regulations.
And further, this is an instance where the proposed action is subject to a-hearing under the regulations in subpart G of Part 2 of the Commission's regulations, thus requiring "the appropriate NRC Staff-Director (to) prepara a crocosed finding-of no significant impact which may be subject to modification as result or review and decision as appropriate to the nature and scope of the proceeding." 10 C.F.R. l 51.34(b) (emphasis added).
In other words, independent of the other NRC and CEQ regulations requiring a draft FONSI and opportunity for public comment rati.tr than the Staff final FONSI, NRC Section 51.34 explicitly forecloses the option for a final FONSI in a proposal subject to l
hearing, such as this one. Egg, e.a.., Lona Island Lichtina Co.
(Shoreham Nuclear Power Station, Unit 1), CLI-91-04, 33 NRC 233, 236 & n.1 (April 3, 1991) ; Vermont Yankee Nuclear Power Coro.
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(Vermont Yankee Nuclear Power Station), LBP-88-26, 28 NRC 440 (October 11, 1988).
LTPA IS NOT FINANCIALLY OUALTFIED.
The Staff addresses LIPA's financial qualifications briefly in the SECY Paper (SECY-92-041 at 3-4) and somewhat greater detail in the Proposed Safety Evaluation at 1 3.1.4. The Staff premises its assurance of LIPA's financial qualifications on the New York Public Service Commission's approval Of the Site Cooperation and Reimbursement Agreement (" Reimbursement Agreement"), and an April 11, 1991 letter providing, in the Staff's characterization "the PSC's commitment . . . to allow recovery of Shoreham-related costs . . . . " SECY-92-041 at 3.
However, things are not quite so simple as they may seem.
First, LIPA and LILCO have candidly admitted to the Staff that the NYPSC can revoke its approval of the Reimbursement Agreement at any time. Transcript of Meeting Between NRC and LILCO/LIPA/NYPA at 137 (February 13, 1991). Second, the Reimbursement Agreement is an 82 page contract, in which, among other things, LILCO agrees to reimburse LIPA oniv for those portions of LIPA's salaries devoted to Shoreham, and only for those LIPA " administrative and general costs that are directiv related to Shoreham." Reimbursement Agreement at 1 3.9. Thus, LIPA has n2 source for funds to cover its salary, general and administrative expenses which are D21 "directly related to Shoreham." In past years the amount of LIPA salary, general and
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administrative expenses "directly related to Shoreham" has ranged from 12.6% to 42.8% of total annual LIPA expenditures for salary, general and administrative costs.F The Staff does nah address any means of LIPA providing for the balance of 60%-90% of those costs. Of course, one method would be by a radical reduction of LIPA's staff. However, if such a reduction were to take place, it is doubtful that the Staff could maintain its position that LIPA has adequate " management qualifications."
And while the Reimbursement Agreement states that LILCO "will provide assurance (either by cash payment, letter of credit, surety bond, or other method acceptable to the NRC or other governmental entity) that sufficient funds will be or are available to fund payment of LILCO costs in connection with the St.oreha=~related activities." (Reimbursement Agreement 1 3.12),
2/ For example, in the year ended March 31, 1991, LIPA had
$778,857 of payroll general and administrative costs (" management costs") which $445,381 were nnt reimbursable as directly related to Shoreham or 57.2% of its total such costs. Appendix to Joint Supplemental Petition in the License Transfer Proceeding at 70 (November 18, 1991). For that year, it also had an additional
$824,370 of consulting costs which were n2n-reimbursable by LILCO. Id. In the year ended March 31, 1990, LIPA received reimbursement for current year management costs attributable to Shoreham of $370,061 and for " prior years" management costs attributable to Shoreham of $595,018. However, its total consultant salary and general and administrative for that year were $1,338,656. Id. at 41. Thus, only 27.6% of LIPA's management costs were recoupable from LILCO as cost directly related Shoreham in 1990. In the year ended March 31, And, 1989, in the LIPA's management costs were $1,948,693. Id. at 30.
period from its conception through March 31, 1988 LIPA had management expenses of $7,153,002. Id. at 20. If one treats the reimbursement for " prior years" received in 1990 and 1991
($595,018 and $549,544, respectively) as being for 1988 and 1989, their sum ($1,144,562) constitutes only 12211 of the total LIPA management costs for those periods. Id. at 30.
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such assurance is D21 offered with respect to " funds for the cost reimbursement fund and the LIPA reimbursement fund."
Reimbursement Agreement at 1 3.11.
Also, the letter of April 11, 1991 which the Staff reliad on is D2t a letter from the Commission itself or any Commissioner, but from the PSC General Counsel which refers to a decommissioning " current cost estimate of approximately $186 million, sprnad over a 27-month period." This is hardly a commitment by the NYPSC. And to the extent that it may be possible to rely on the General Counsol's assurances, which Petitioners submits is not possible, this is a very carefully circumscribed assurance, especially considering that the decommissioning plan has not yet been approved and, therefore, its cost cannot be reasonably ascertained.
Finally, in the recently concluded Public Service Commission proceeding referred to above, LIPA actually attacked aspects of LILCo's proposed recovery of decommissioning costs incurred and to be incurred, as well as a wide range of other proposals with the overall objective of reducing LILCo's income and hence its financial health and ability to pay for decommissioning.M The Commission simply cannot have ccnfidence 1/ The commission should also be aware that Mr. Richard M.
Kessel is not only the Chairman of LIPA, but is also Executive Director of theMr.
New York State Consumer Protection Board Kessel has hath LIPA *qd the NYSCPB attacking
("NYSCPB"). An example of Mr.
LILCO in NYSPSC ratemaking proceedingw.
Kessel's attacks on LILCO while " wearing both hats" is the attachef direct testimony (Attachment 2) which Mr. Kessel seeks (continued...)
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I in an arrangement were it cannot be assured of LIPA's ability to support itself and where LIPA relies on LILCO but vigorously attacks LILCO's claims in ratemaking proceedings. While LIPA is biting the hand that feeds it before the New York PSC, LIPA is assuring this Commission that it is a healthy hand.
The Commission cannot have any confidence in the assurances offered by LIPA and the Staff.
THE PROPOSED SAFETY EVALUATION IS ALSO INADEOUATE IN OTHER RESPECTS.
For example, it proffers a conclusion that the " lines of authority . .
. for the maintenance of Shoreham in its pres 9nt condition and for the eventual decommissioning of the plant are However, acceptable." Proposed Safety Evaluation at 1 3.1.5(2).
it does not discuss those " lines of authority." In fact, the lines of authority are in conflict with LIPA and the New York Power Authority ("NYPA") allowed to proceed by mutual veto.
Second, while the proposed safety evaluation makes many findings relating to the " eventual decommissioning of the plant," it pretends in other sections that the proposed license transfer is not related to decommissioning. E2at, Proposed Safety Evaluation at p.17. Moreover, the " discussion" of LIPA's management and technical qualifications is at most conclusory without giving the A/
to have(...the continued) NYSPSC reduce the rate adjustments sought by LILCO (including adjustments related to decommissioning) by $157.3 million.
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1 Commission sufficient factual information on which to base an independent judgment.
In addition, the Staff would require the Commission to prejudge Petitioners' petition to intervene and request for hearing before that petition has been supplemented and filled out in the hearing process. Egg Proposed Safety Evaluatien at 15-19.
Finally, the bare assertion that "the State of New York was contacted about the proposed license transfer. The State had no comments." does not allow the Commission to make an independent judgment as to whether the appropriate state institutions and agencies were in fact contacted. Egg Proposed Safety Evaluation at p.19.
A SIMPLIFIED ADMINISTRATIVE STAY TO ALLOW JUDICIAL CONSIDERATION OF A STAY PENDING JUDICIAL REVIEW MAY BE APPROPRIATE.
In their motion for stay, the School District and SE2 sought a stay of license transfer pending completion of hearings before the Commission and, regardless of whether the Commission granted that stay, sought an administrative stay for a period of time after the issuance of any final order in this proceeding to allow Petitioners to seek a judicial stay pending judicial review of such final order. Motion for Stav of License Transfer Pendina Final Order on Petition to Intervene and Recuest for Hearina and for Additional or Alternative Stav at 1-2 & n.1 (December 17, 1991). The administrative stay sought Jas identical to the stay
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previously granted by the Commission in the possession only license proceeding, that is, a stay of ten working days after the date of publication of-the final order in the Federal Register to allow for the filing of a petition of review and stay request in the appropriate court, and an additional stay of ten working days (for a total of 20 working days) in the event Petitioners did file such petition and motion within the allowed time to allow for its orderly consideration by the court. Id.
In opposing Petitioners' principal motion for stay, LIPA expli; ltly said that it did "not object to Petitioners' suggestion concerning timing provisions related to judicial review," referencing Petitioners' footnote 1. Oooesition of the 4
LQDa Island Power Authority to-Motion for Stav of License Transfer'and to Succestion of Mootness, at 20 n.17 (December 30, 1991). In~its opposition to Petitioners' notion, the Long Island LightingTCompany ("LILCo") similarly stated that it did "not
- object to a reasonable administrative stay upon-the license transfer amendment being: issued" without any indication that the particular stay suggested by Petitioners was unreasonable gI that another period of time was more reasonable. LILCo's conosition
-to Petitioners' Recuest for Stav and Succestion of Mootness, at 2 (December 30, 1991). And finally, the Staff represented that it did "not object to an administrative stay.on transfer when issued -
to enable 1 Petitioners to seek a-judicial stay. Such action was f taken in CLI-91-8, 33 NRC 4 61, 470-71 (1991), with respect to issuance of the POL." NRC Staff Response to Petitioners' Motion l ~.
for Stav and Succestion of Mootness, at 8 n.17. Since the Staff had explicit reference to the Commission's precedent for granting the precise form and period of stay requested by Petitioners without suggestion of modification, this can only be read as consent to the stay requested.
However, this was not the and of the matter. On January 31, 1992, counsel for LILCO and LIPA presented a joint letter to the Commission which in effect tried to revoke their prior consent to the stay requested by Petitioners and suggested a stay of "no longer than a total of 12 calendar days; 5 days for SWR /SE2 to request a stay, and the balance of time for response and decision by the Court. The goal would be to permit the license transfer to take effect, unless stayed by the Court of Appeals, by late February." LILCO/LIPA Letter to NRC commissioners at 2-3 (January 31, 1992) (footnote omitted).
And then two weeks later on February 14, 1992, LILCO and LIPA submitted yet another joint letter to the Commissioners now urging that "the Commission's approval be granted and made effective durine the month of February" regardless of what time Petitioners might have to seek a judicial stay or what time the court might have to reasonably consider such a stay. LILCO/LTPA Joint Letter to NRC commissioners at 1 (February 14, 1992). The basis for this second urgent request is (a) an alleged interpretation of New York State law (b) by School District counsel (c) appearing in a newspaper (d) which interpretation i
. -e--
LILCO and LIPA avowedly reiect ("LILCO and LIPA dispute this assertion"). '14. at 1-2.
The basis urged for precipitous action by this Commission by LILCO and LIPA must be rejected for four reasons.
First and foremost, the Commission is forbidden to consider economics in the conduct of its responsibilities under the Atomic Energy Act. Egg, 3,,,g.,, Power Reactor DeveloDment Co. v.
International-Union, 367 U.S. 396, 415, 81 S.Ct. 1529, 1538-39 (1961); Union of Concerned Scientists v. U.S.N.R.C., 824 F.2d_108-(D.C. Cir. 1987). Second, it is specious for LILCO and LIPA ;
counsel to urge the Commission to act on the basis of a legal theory which those counsel believe to be invalid. Third, both letters indicate that the lion's share of the taxes in question are for the benefit of the County of Suffolk and the Town of Brookhaven; assuming that those jurisdictions require a fixed amount-of tax income, it should be a matter of indifference to their citizens whether they pay that amount indirectly through their electric rates or directly by increased county and-town tax rates. And fourth, since those jurisdictions bear the burdens of Shoreham, why shouldn't they have the normally expected benefits?
In any event, counsel for LILCO and LIPA point to no circumstance that did not exist on December 30, 1991, when they originally gave consent to the administrative stay requested by Petitioners. They should not now be allowed to change their position now.
L.
However, LILCO and LIPA are not the only ones who hLve changed their position. Although the Staff originally consented to the form and length of stay requested by Petitioners, the proposed license amendment package (attached to SECY-92-041) indicates that the Staff now would prefer that the stay "*acome effective within thirty (30) days from date of issuance.
Proposed Amendment to Facility Operating License at 1 3. The Staff provides no rationale for this change.F However, since 30 calendar days is roughly equivalent to 20 working days, Petitioners would find the Staff recommendation basically acceptable with one modification. The modification relates to assurance of notice to the public (including Petitioners) of issuance of any final order and the Commission's rationale therefore. Petitioners suggest that the 30 days should not start to run either (a) until after 5 days after mailing of the Commission's decision to all parties, similar to the normal allowance made for notice pursuant to the Commission's rules (10 C.F.P. $ 2.710), or (b) until after notice of the decision is published in the Federal Recister, that is, the same starting point as the precedent in the possession only license proceeding indicates. Petitioners suggest that such formal notice requirements are very important under the Administrative Procedure Act, as this Commission has been instructed by the 1/ The SECY Paper itself does not even disclose this change of position and the relevant footnote may be somewhat misleading.
SECY-92-041 at 5.
Courts of Appeals previously. h , Public Citizen v.
U.S.N.R.c.,-901 F.2d-147, 153:(1990).-
CONCLUSION WHEREFORE,-Petitioners School District and SE2 ,
respectfully urge the Commission to reject the Staff's recommendation in SECY-92-041 and romand the matter for consideration in the normal licensing proceeding structure for tl:e reasons stated above, and to allow a stay of 20 working days or 30 calendar. days after adequate notice.of any final order in this matter has.been. furnished to the public (including Petitioners).
Respectfully submitted t
February 20, 1992 ;. _ ** > s ; ..
James P. McGranary,/A,r;.-
DOW, IDHNES & ALBERT 50N Suite 500 1255 Twenty-Third Street, N.W.
Washington,-D.C. 20037 (202)1857-2929 Counsel for Petitioners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.
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ATTACHMENT 1
' ,r E s - t o s z. : 44 LEW3S 3 GREER, P.C. P.06 9 2 Tue STATE OF NEW YORK PUBLIC SERVICE COMMISSION OPINION Ho 91- 25 CASE 90-E-1185 - Proceeding on Motion of the connission as to the Rates, Charges, Rules and Regulations of Long Island Lighting Company for Electric service.
CASE 91-G-0112 - Proceeding on Motion of the Cor.nission'as to the Rates, Charges, Rules and Regulations of Long Island Lighting company for Gas service.
s D
OPINION AND ORDER DETERMINING REVENUE REQUIREMENT AND RATE DESIGN U g . .
Issued and Effectivet Nover.ber 26, 1991
p o-se-92 TuE 15: 17 Lgy1s & GREER, P.C. P.OG y
STATE OF NEW YORK PUBLIC SERVICE COMMISSION CASE 90-E-1185 - Proceeding on Motion of the Commission as to the Rates, Charges, Rules and Regulations of Long Island Lighting Company for Electric Service.
COMMISSIONER JAMES T. McTARLAND, dissenting:
I dissent from yet another in this decade-long schedule of electric rate increases developed by this Commission for the Long 1sland Lighting Company. This $73 million (4.1$t) increar.e reinforces the dubious distinction LILCO ratepayers have of paying the highest electric utility rates in the continental United States. And they are gaining on the ratepayers in Alaska and Hawall.
Sad to say, this 3__ year rate increase (4.1% and 4% in the second and third years) is just the first of 4.5% to 5%
" target" rate increases scheduled for the next 8 years, beginning December 1, 1991.
Part of these increases are to pay LILCO what it would have earned if Shoreham had opened. In addition, $47.3 million in earnings on the Shoreham investment were " deferred". Over the eight year period, LILCO will continue to receive the targeted rate increases with the deferred amounts kicking into rates as
" silent increases" from 1994 till 1999. The pain goes on. It
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Fba ' q will go on for d'0 years
- well into the next century, unta1 the 84.038 billion Shoreham asset is fully adepreci e .1 td This was all programmed in the settlement s ed on foi t Long Island ratepayers through the efforts of G overnor Mario M.-
Cuoso and Richard Kessel,.his Executive Di rector of the Consumer
- Protection-Board (some consumer protection...),
both of whom were vigorously aided and abetted in their close sh -
oreham sea) by all of this Commission,.this writer excepted f
s 4 It is worth remembering that when Shoreham nally had fi received its license from the Nuclear Regulatory C ommission, the Governor had not yet gotten LILCO to accept hi proposal. s settlement The plant and its personnel had been fully evalu t a ed and tested and the operation was then ready to go full
-steam ahead. An approved _ evacuation plan for- the the ten mile s plant was also-in place.
So, LILCO was really within a hair's breadth of opening-this nuclear power plant Furthermore, its 809MW capacity was sorely needed to avert an ene Island. rgy crisis on the One would have thought that at:this-juncture , the Governor' and Suffolk~ County and the PSC would have th -
rown'in the towel and ceased their efforts to win approval of the G overnor's 1
constructing the Shoreham nuclear power plant.$4,038 b (See Footnote 4).
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Settirment-Agreement.2 Instead, this Commission, determined to deliver Shoreham to the Governor at any cost, desperately kept pressuring LILCO to settle, by first-delaying and then denying the' modest rate increases sorely needed by the company just to keep operating.
When the Commission reached a point when it could legally delay no further, a modest bit of rate relief was finally granted. But it was accompanied by an ominous condition: "open Shoreham and this small rate increase is revoked."
7' aced with the reality that it would literally be out of cash in a matter of months, too little time within which to litigate the legality of the Commission's unprecedented high handedness, LILCO meekly signed the agreement to close Shoreham.
A dark day indeed for Long Island.
As a longtime observer of the governmental scene in New York State, I have never seen a more disappointing failure of responsible government at all levels than was involved in this politically inspired campaign to close Shoreham.
A completed, ready-to-go power plant whose energy was badly needed was going to be closed, not because it was unsafe,3
- 2. An agreement the Legislature constantly refused to endorse.
- 3. There was never a finding or even any allegation in any of the proceedings of this Commission or in any of the reports and recommendations of the ALJ that shoreham was not a safe facility.
rou- a-o,; Tua su: av Luwav S ' k ' ' '- ' -
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not because it was expensive 4 but because it was politically expedient to do so. Its closure satisfied a Governor looking t o politically cash-in on a national anti-nuclear mentality, and mollify some very vocal individuals, whose principal motivation was that they were simply vengeful and venomous toward LILCO and ,
its management. This state of mind apparently grew out of enormous antagonism as a consequence of Hurricane Gloria, together with years of what some customers perceived to be company arrogance and incompetence.
There was also a small but very vocal minority of Long Islanders who were scared to death of nuclear power, as well as individuals and organizations, both in and out of government whose pnlitical agenda included opposition to an expansion of nuclear power.
It satisfied a PSC majority eager to do the Governor's will as well as accommodate their own views.
And it satisfied LILc0 and its stockholders, of course. The latter had been
- 4. It has been reasonably estimated that the continued opposition by the Governor in Suffolk County'to licensing of shoreham delayed a resolution of the Company s finances for such a long period of time that it added $1.3 billion in unnecessary interest to the cost of the plant. Also, Suffolk County billed its beleaguered taxpayers at least $25 million for its legal costs in promoting opposition to Shoreham's licensing. This it joint opposition, it should be noted, was only terminated when was determined by the NRC not to be in good faith because the parties had concealed the report of an earlier satisfactory evacuation plan.
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- 1 5-without dividends for 6 years.
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The settlement' generously and speedily remedied that.
Unheard from,-unfortunately, were the essentially unrepresented ratepayers who have to pay the price for this monumental felly._ And what a price to' pay 1 ,
In addition.to paying the booked value of $4 billion for- ,
the plant, the ratepayers also are paying-for the loss of 809MW of electric generation capacity and the_ cost of substitute power. ,
This cost many-more millions. In order to ensure adequate electricity' supplies, LILCo contracted to purchase off-Island power at rates almost twice what it would have cost if shoreham l had come.on line. _They also had to pay for iraediate ,
expenditures;of hundreds of millions of dollars to implement energy efficiency, conservation and energy demand control initistives needed to avoid brownouts, blackouts and shortages.
They financed the payment of almost $300 million in dividends due .
preferred stockholders. Additionally, instead of getting the energy from the plant for 40_ years,- they will be paying an estimated $200+ million for its-premature decoraissioningt-They_also pay untold _suma-for the adverse effect on the Long Island economy caused by the record breaking, uncompetitive utility rates and-they lost the taxes or in-lieu of taxes 1the plant-would have generated. These are the "externalities" of the Shoreham closing.
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. .s. yy Those who continue to take credit for the ' peace"
' brought about by.the settlement neglect to mention these and the other awesome burdens the Agreement placed on Long Islanders now and for generations to come.
The consequences of the Agreement were also to deny Long Islanders, then and now almost totally dependent on fossil fuel generation, the benefits of energy independence. With a nuclear powered Shoreham, they would have enjoyed an alternate fuel, they would have had some insurance and insulation against the effects of fluctuating oil prices, and oil politics, shoreham also would have averted the air pollution and global warming caused by LILco's exclusive use of fossil fuels for generating energy.
It did not have to be that way. If the Governor, this Commission, and the Legislature would have followed my repeated advice and suggestions, the New York Power Authority (NYPA) could have taken over and operated Shoreham. Long Islanders would have enjoyed the benefit of-the economies afforded by NYPA ownership and operation. It was the only area of the state not to directly
-enjoy those advantages. The Governor controlled NYPA. He could-have at least directed NYPA to update a Shoreham-takeover.
scenario that I understand'had been developed unher previous NYPA leadership. My requests were ignored.
However, with NYPA exploiting its tax-exempt financinq strengths and its innovative financing techniques, Long Islanders would now be enjoying competitive electric energy rates instead
ggg_30_co Tus 30:02 LOWIO S' 0"EC"* "*
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4 of confiscatory ones. Low priced NYPA energy could be advertised as an economic advantage for all Long Islanders. That would i.
9 certainly be a help in these difficult times for that area's economy.
I But no, that would have possibly derailed the single-minded objective of bringing down Shoreham and almost bringing down LILCO in the process. It was, in a word, government at its worst.
With respect to this rate proceeding itself, I object to and dissent from the payment of an up to 20 basis point financial incentive to LILCO for carrying out energy conservation and efficiency initiatives. Given the area's energy situation, the company should be pursuing these objectives without the need for expensive financial inducements. Given the record breaking rates this Settlement has spawned, the rate-payer deserves a break.
Similarly, I disagree with and dissent from the granting of a 50-50 sharing by the company with the ratepayers of any earnings in excess of the allowed rate of return. The ratepayers and the Long Island economy should not be made to endure yet another hit in the nature of a reward to the company for properly managing its operations.
I also dissent from the establishment of a " revenue
~
decoupling mechanism".It is a financial safety net for the company if its earnings are less than projected. Such a provision removes the incentive for the company to more l
[ -. . . . . . . . . . .
, ~ . - . . ~ ~ - -
LEW2O C. GREER, P.C. P ggo-to .
8-efficiently manage. Furthermore, it denies the ratepayers the benefit of revenues from whatever additional sales of elect ricith could be expected in a declining economy, and with custocers shifting from electricity to gas. This is another "externality" '
produced by the notion that all increased energy sales are counter productive.
I mus.t comment on the heavy financial burden on the ratepayers of these rate proceedings. Both the Department and the utility sustained millions of dollars in expenses. I believe a review is in order to determine how costs of these proceedings can be drastically reduced and their effectiveness maintained.
The three year plan might help. So would eliminating the Long Island Power Authority (LIPA) as a statutory intervenor.5 Tne consumer Protection Board (CPB) is already authorized to par ticipate and does so with increasing competence and credibility, I might add. Why should we have the duplication.
especially with Mr. Kessel heading up both the CPB and LIPA agencies? And if it isn't duplication, why should we have the obvious conflict?
Every effort should also be made to eliminate the duplicative (or triplicative) and costly participation of
- 5. This would save money to Long Islanders as taxpayers as well as ratepayers because they finance LIPA's activities. LIPA could still intervene on matters in which it had a specific interest i
, F C D - 1 O'- T C ~ T T V E: ~iO32O t.CHUU U QRJUUR j Q,g, \
e Attorney General (AG) staff. The CP3-has-direct statutory responsibility for intervening in PSC proceedings. Why the AG too? How bad does the State budget have to be before action is taken to save the taxpayers LIPA's and AG's cost of redundant intervention? Do we need three watchdogs? (Or four, counting the Trial Staf f of the Department of Public Service?) Can we afford t.bem?
It is to be remembered that utility ratepayers pay for each and every cent of the cost incurred by the utilities, the PSC Staf f and the CPB, as well as this Commission in these proceedings. The taxpayers foot the bill for LIPA and the Attorney-General's involvement but the ratepayers are charged foi the expense-of giving notice to them and other marginally for the expenses involved in mailing, necessary intervenors receiving, reading, processing, circulating and otherwise handling all the correspondence, including briefs; to say nothing of accommodating their testimony, cross-examination, motions, appeals, etc. Perhaps the Division of the Budget or the Legislative Commission on Expenditure Review should document the cost of these proceedings. Enormous savings can be made by making them less unwisidy, while at the same time protecting and promoting more efficiently the interests of all the parties,
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primarily the ratepayers, the payers of last resort.
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20: 20 'EW2o & GREERe P*C. P. 16 10 -
CONCLUSION While I shall continue to vigorously participate in LILCO proceedings in the interests of contributing to the '
,o promotionandprotectiop,b,fthe',inte(estsoftheratepayersand f . dhM'ddla i,
t he par ties , I f eel c}o$f'.t ed nevertheless, nstra to voice my continued dismay, disappointment and protest against the consequences of the Shoraham Settlement. I view this as an economic tragedy for Long Island and as one of the most insidious failures of responsible government in New York I have ever seen.
11/22/91
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~~ . _ _ - _ . _ - --- - - - - - - . _ - _ _ _ _ _ _
,,7, l RICHARD M. RESSEL !
I'lanse state your name, title and business address.
1 0 .el l I am sweestive -Directat' 3 A. My nape is . Richard M. Nessel. ' '.18 l 3
tha New Yoth State Consumer Protection Board (CFP;- j I am also Chairmar et 4.
Hrnadway, New York, New York 10007. !
<*1'.y ihe Long Island Fewer Authority (LIFA), 200 carden F S *ay Garden City, ' Mew York 11530.
A summary 'it f
6 l'I ns a ,
l credentitis is prelented in Exhibit _(RMK-1). :
7 1 8 !
0, what is the purpose of your testimony? I 9 ti14 10_ _A.- I am recommending (1) reduction of LILCO's proposeil l
21 mtition (5.04) rate increase in December 1991 to_564 mlIlt*
rejection of LILCo's roguest i4 f
=12 f.' W4) and (2)
Io 13 mit horisation to- book $108~ 81111on in addition of chat < low t+ l Iha I
.mber 1991 - November 1992_ rate year -that won 11 14 By eliminatImt I c8:1 let, ,d from ratopsyers in future years. ,
15 l nnw -deferred charges, the two additional years of i st" il f
17 luuresses proposed by LILc0 -- 1999 and 2000 -- vout.1 lie. -f t
18 averted. -i s
~
-19 Commission (NRC) has indlesteiil l
- rliv. Nuclear Regulatory 20 U. i itos f 21 concern'that LILCO have sufficient revenues for mainto i 213 s '
Do the cps and decommissioning Shoreham.-
22 mot h3 rorommendations meet the NRC's concerns?
Y+ n .
The reductions in LILCO's proposed rates recommi.n.t.Jt 24 A. l 25
-liy the cps and LIPA correct overestimates of certain ciiin Af ter account in.:
! -25 and eliminate other non-essential items. i 9144543315 PAGE.003-ero - eo *op-ta.mn
_ _ _ .)
O 9 .. .
RICHARD H. KES$tL Ior 1
Ior our adjustment, LILCO will have adequate revenu<m ... .
financing its operations 2
providing utility service, f 81'8 '
3 ressonable cost, and satisfying its obligations to tho 4 to maintain and decommission shoreham.
5 "8'81 The cps and LIPA testimonies focus only on the Decembi.:
5 O.
- November 1992 rate year rather than the three year let taal 7
3 (oocomber 1991 - November 1994) discussed in LILC 9
why are you taking this approach?
A A. It is premature to set rates now through November 19"4.
10 t.hree year plan was appropriate in 1989, when LILCO taie"I a la financial emergency. That is no longer the case. In ' iH9, 12 thn was below investment grade o n.f f.f l,CO 's dond rating 13 14 entnpany had not paid preferred or common stock diviifatus i tur five years. Since then, LILCO has regained its invant ennnt 15 16 yrade rating, paid both current and accrued preferre.1
- os k rim a ,
dividends, and resumed paying common stock dividends.
17 18 t.lio situation today is far difforent than in 1989.
19 20 v. Are your recommendations consistent with the LILCO rats : lan i- ne<nt 21 specified by the Commission in opinion No. 89-8, 22 April 13, 19897 Yes. LILCO was not
- guaranteed' any specific rate in i. ann
~
23 A. .i i.. li . e 24 (following the first three years of the sett.lement i In fact, LILC0 munt !ully
- 1. ate plan.
25 the Commission's 2
9144543315 PAGE.004 F E B 19 ' 92 14:31 .-. . .. -- - _ . . .
truse a _cocan, . . . . ,
orn-to-,w wrn nossa RICHARD M. Ets$th l Clearly, L1 Leo fain '
juntify any rate increase it requests. t 1
inst. justified its proposala in t.his case. l 2
The edjustmente presented by 2.8the CPS percent . .ittand 1.!P 3
' t.1LCO's rate hike retguest from 3 percent to a more yo.tru 4
'lemonstrate that LILCO's proposal for adding tw l 3 rranted. I of increases to the PSC's rate plan is unwa '
6 I d d by the Cl'Il in 1 7 .
Please summarise the adjustments recoronen e 8 Q.
p t.f rA. 157.3 million.
They 'te.
The CPS and LIFA adjustments total $
40 A. i numarised An the following tables >
11
$50.3 m611ti.o 12 inirloction in projected 13 14 Iun1 costs $34 0 mtition 15 staduction in proposed profit 15 eilowance frem 12 2 percent 17 in 11.1 percent ~
'$19 2 mii1n.n 18
- 19 Heduction in pr6jected ,
20 21 pioperty taxes $16.0 miiiu.n 22 nomoval of charges related ,
23 4
. 24 in unbilled revenues -
$12.2 miiI'on j- 25 pclw tir,$n in renearch and t' 26 etovelopment expenses and 27 ut 111ty organisation does
. 28 4 4.6 miti:.~i 27 30 Parloction in insurance costs $21 0 ml!l...n 31 other adjustments '
32 in 33- $157.3 ini ' 1 34-TOTAL 35 36 flow should these adjustments be applied? lie 37 0, should be applied firs
- and LIPA adjustments 38 A. The CPB 3
rwwvmeuga C# AGE.005
_ e=,. - - - - - - - - - -
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-__n e e u n l A J F ~~e,;;;G u u u nro eme ,so-en won RICHARD M. EESSEL ***"'t"-
f new deferred charges LILC88 eif f eet the 5;M million o t ye' e s ",
1 to book (- tM December 1971 - November 1992 ra e 3
with the remaining 849 3 million used toAccordinoty, reduce f.ti.wn 3
$114 anillion rate hike request.
4 proposed d be held t.t. %4. t S
L1 Leo's December 1971 deterred rateratepayer increase e hnt et"* woul i at tilen (2 8 percent) and no new November 17N' i nt n - l 8
would be recorded in the December 19pl -
7-8 yast.
9 ll of the cl'h omt ,
What would you propose in the event not a 40 -0 letPA adjustment are adopted? tlas 11 that were to happen,
~
I would recommend limitinti 12 A. If llion (3.M) amt m ling ;
13 December 1Pf1=and rate increase to $69 LIPA _ adjustments mi te offson mw l the remaining CP3 j
'14 deferred charges projected by LfLco. ,
15
.sf il propose if the -tot.il would what you '
0 Conversely, based im i 18a 17 the Commission, adopted by it adjustments t of Isildlu l 19 presentat' ions of the CPS and LIPA, the Departmen; survice staf f and the commission's own finding 20 B and LIPA7
_edjustments recommended by the CP am 21' I would recommend the same procedure. '
-* A.
In that event, Accorehni ty, 22 for the cps and LIPA adjustments. mw 23 proposing first to offset - tie, ,
the ' adjustments would be applied 24 he Decembai I ri t .
deferred charges LILCO seeks to book-for t 25 4 '
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,q,.3o-on_w RICHARD H. KESSEL the remainder uced to ro tie ..
14evember 1992 rate year, with 1 increase. .
ihe proposed December 1991 rate 2
3 g,
ones this complete your testirnony?
4 A. T R
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- _... h Exhibit _ (RMK)
. s
}l .
, Richard M. Kessel Director a i vr>
[ Mr. Kessel has been the CP3's ' Executive He also serves as Chairman of the Long 2nl.S
/
January 1984.
',I, Pows r Authority. k University in in")
', Mr. Esssel received a B.A. from New Yor bia University.
and an M.A. in Political Science from Colum than n Mr. Kessel has been a censuner advocate seversi rate cases and v.us for m .
He has testified in issue a pot hay doendt..
inst rumant al in convincing the Commission totest.ier ny
' statement regarding the introduction of economic impa in rata proceedings. l has participate..!
An the CP3's Executive Director, Mr. Kesse reenant a In negotiations which resulted l in 17 rate settlernent ag phone cornpanies.
wit h Hr w York State electric, gas and te e t
e
'4 0
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UNITED STATES OF AMERICA 't NUCLEAR REGUIATORY COMMISSION BEFORE THE COMMISSION Y2 FW 20 P4 A9
, a s u i m si uo w <
I DockiA't
)(A h1ab tNA50-322-01A-3 a ', 'l F v lII In the Matter of 3 a
14NG ISIAND LIGHTING COMPANY 3
) (Application for (Shoreham Nuclear Power Station, ) License Transfer)
Unit 1) )
)
CERTIFICATE OF SEBylCE I hereby certify that copies of the Petitioners' opposition to Nuclear Regulatory Commission Staff Recommendation for Approval of License Transfer in the above-captioned preceeding have been served on the following by hand, telecopy, or first-class mail, postage prepaid (as indicated below) on this 20th day of February, 1992:
Chairman Ivan Salin Commissioner Forrest J. Remick U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission one White Flint North one White Flint North I 11555 Rockville Pike 11555 Rochville Pike Rockville, Maryland 20852 Rockville, Maryland 20852 (Hand) (Hand)
Commissioner Kenneth C. Rogers Commissioner James R. Curtiss U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission one White Flint North one White Flint North 11555 Rockville Pike 11555 Rockville Pike Rockville, Maryland 20852 Rockville, Maryland 20852 (Hand) (Hand)
Commissioner E. Gail de Planque Thomas S. Moore, Chairman U.S. Nuclear Regulatory Commission Administrative Judge one White Flint North Atomic Safety & Licensing Board 11555 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, Maryland 20852 Washington, D.C. 20555 (Hand) (Mail)
Jerry R. Kline George A. Ferguson Administrative Judge Administrative Judge Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 5307 Al Jones Drive (Hall) Shady Side, Maryland 20764 (Mail) i 1
<%*a Edwin J. Reis, Esq. W. Taylor Reveley, III, Esq.
Mitti A. Young, Esq. Donald P. Irwin, Esq.
Office of the General Counsel Hunton & Williams U.S. Nuclear Regulatory Commission Riverfront Plata, East Tower one White Flint North 951 East Byrd Street 11555 Rockville Pike Richmond, Virginia 23219-4074 Rockville, Maryland 20852 (Telecopy)
(Hand)
Samuel A. Cherniak, Esq. Carl R. Schenker, Jr. , Esq. <
NYS Department of Law O'Helveny & Myers Bureau of Consumer Frauds 555 13th Street, N.W.
and Protection Washington, D.C. 20004 120 Broadway (Telecopy)
New York, New York 10271 (Telecopy)
Nicholas S. Reynolds, Esq. Stanley B. Klimberg, Esq.
David A. Repka, Esq. Executive Director &
Winston & Strawn General Counsel 1400 L Street, N.W. Long Island Power Authority Washington, D.C. 20005 200 Garden City Plata, Suite 201 (Telecopy) Garden City, New York 11530 (Mail)
Charles E. Mullins, Esq.
office of the General Counsel U.S. Nuclear Regulatory Commission one White Flint North 11555 Rockville Pike Rockville, Maryland 20852 (Hand) r
.y u . ww ,3% .
Japp's P. McGranary, (V//
Coensel for the PetiM6ners Shoreham-Wading River Central School District and Scientists and Engineers for Secure Energy, Inc.