ML20153D145

Motion for Acceptance of Addl Reply to Commission Order of 880714 Re ALAB-895 (Petition for Waiver of Rules Precluding Financial Qualification Inquiry).* Request Seeking Info on Unit 1 Financial Qualification Encl.W/Svc List

ML20153D145
Person / Time
Site:	Seabrook
Issue date:	08/26/1988
From:	Backus R BACKUS, MEYER & SOLOMON, HAMPTON, NH, MASSACHUSETTS, COMMONWEALTH OF, NEW ENGLAND COALITION ON NUCLEAR POLLUTION, SEACOAST ANTI-POLLUTION LEAGUE
To:	NRC COMMISSION (OCM)
References
CON-#388-6988 ALAB-895, OL-1, NUDOCS 8809020058
Download: ML20153D145 (12)

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~ hfh#h DOCKETED USNRC 18 AU3 30 N0:30 UNITED STATES OF AMERICA Grr";r 'e' s 7, '

UNI'_'ED STATE 5 UUCLEAR REGULATORY COMMISSION 00CaOf'j,.  ? t.

L BEFORE THE HUCLEAR REGULATORY COMMISSION

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In the Matter of )

PUBLIC SERVICE COMPANY ) Docket Nos. 50-443-OL-1 OF NEU HAliPSHIRE, et al. ) 50-444-OL-1

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(Seabrook Station, ) (Onsite Emergency Units 1 and 2)' ) Planning and Safety Issues)

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August 26, 1988

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MOTION FOR ACCEPTANCE OF ADDITIONAL REPLY TO COMMISSION ORDER OF JULY 14, 1988 REGARDING ALAB-895 (PETITION FOR WAIVER uF RULES PRECLUDING FINANCIAL OUALIFICATION INOUIRY)

NOW COME SAPL, Town of Hampton, the Massachusetts Attorney General and the New England Coalition on Nuclear Pollution, and respectfully move to be allowed to bring to the Commission's attention, in connection with its decisions in regard to the apoeal of ALAB-895 and the certified matter in that decision, the attached "Request for Financial Information" regarding Seabrook Unit 1, filed by the NRC staff under date of August .1, 1988.

l The Interrenors submit that the attached request, which seeks "detailed" information concerning the financial qualification or ability of the Seabrook owners, suggests an inconsistent position by the NRC stE #f end raises evidence sufficient to make out e

• piipp ffcJE case that, although they are public utilities, the Seabrook owners cannot be presumed to possess the financial 8809020058 880826 7 l gDR ADOCK 05000443 h

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e qualifications to assure the availability of funds to cover the costs of safe operation and permanently shutting down the plant and maintaining it in a safe condition--i.e., that the purpose of the public utility exemption from the requirement of a demonstration of financial qualification would not be served by its application here.

The staff's request for financial information belies its earlier position that there is no need for an adjudication of the financial qualification of the Seabrook owners because, "based on the present state of the record, it appears that Applicants currently have a'dequate funding to maintain and operate the Seabrook station safely at least through August 31, 1988." Staff Response to Commission Order of July 14, 1988, p. 10. In effect, the request is an admission that the staff recognizes the inappropriateness of applying the public utility exemption to the requirement of a demonstration of financial qualification: the staff is unwilling to presume without further inquiry that the Seabrook owners possess the financial qualification to assure the availability of funds to cover the costs of safe operation and permanently shutting down the plant and maintaining it in a safe condition. It does not matter that it may "appear" from "the

[then) present state of the record" that the Seabrook owners had adequate funds to continue funding "no power" operation through August 31. Rather, the question is whether a pr.ima facj; case has 2

1 been made that in the circumstances of this case, there is reason to believe that the NRC cannot presume the availability of funds to cover the costs of safe low power operation and decommissioning of the Seabrook plant. The staff's request for information itself demonstrates that the answer to that question is "yes."

Presumably the staff would argue that it is not acting inconsistently because it can contend that financial qualification need not be an issue for license authorization, but still can be a matter of staff concern in determining whether or not the staff i

should support actual license issuance.

This approadh, however, is clearly contrary to the holding in Union of Concerned Scientists v. NRC, 735 F 2d 1437 (D.C. Cir.

1984) cert denied 469 US 1132). That case clearly held that when this Commission has determined a matter is a "material issue" in a section 189(a) proceeding under the Atomic Energy Act that the resolution of the matter cannot be left solely to staff determination, but must be available for public participation through the hearing process. The Court stated:

. . . we believe Congress vested in the public, as well as the NRC staff, a role in insuring safe operation of nuclear power plants," Id. at 447.

Despite the Commission's rule change to ordinarily foreclose case by case adjudication of financial qualification, the issue of financial qualification is, and always has been, a licensing issue. The Comaission has always held that it must be able to find 3

that holders of commercial operating licenses are financially, as well as technically, qualified. (The standard has always been whether the Applicants have, or'have "reasonable assurance" of the funds for safe nuclear operation and decommissioning.) All the Commission ever did in precluding litigation of financial qualification in licensing hearings was to assume, on a generic basis, that for applicants which are regulated electric utilities the rate setting process acts as a surrogate to provide financial assurance, so that case by case adjudication became unnecessary.

That is, case by. case. adjudication became unnecessary, not because financial qualification ("reasonable assurance") was unimportant to licensing, but because it was assured by another government process for regulated electric utility applicants.

As previously argued in the appeals of ALAB-895 filed by the intervenors, and by the intervenors' prior responses to the Commission's July 14 order, that rate setting process is not available here for the reasons previously stated; the b&nkruptcy

of Public Service Company of New Hampshire, and the prohibition of the New Hampshire anti-CWIP statute against recovery from ratepayers of costs of low power operation. The staff's request for information establishes that it too finds the bankruptcy of l Public Service raises questions which must be addressed by the NRC under the Atomic Energy Act.

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In short, the NRC staff has conceded by its Request for Financial Information, that serious questions over the financial qualification of the Seabrook project exist. Since "reasonable assurance" of financial qualifications is still required by this Commission in order to issue nuclear operating licenses, and the surrogate of a "rate setting process" to assure financial qualification, particularly for low power operation, is lacking for at least some of the Seabrook owners, therefore, it is manifest that "special circumstances" exist, within the meaning of the waiver rule at 10 CPR S2.758, which require the rule to be waived insofar as it precludes adjudication of the issue of the financial qualification of the Seabrook owners to initiate nuclear operations at the facility.

Respectfully submitted, SAPL, Town of Hampton, Massachusetts Attorney General and New England Coalition on Nuclear Pollution BACKUS, MEYER & SOLOMON l - 'Q '

By: . --

l Robert A. Backus, Esquire 116 Lowell Street P.O. Box 516 Manchester, NH 03105 (603) 668-7272 5

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..ereby certify that copies of the foregoing have been forwarded by first-class mail to.all

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parties listed on the attached service list on this /. day of August, 1988.

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:;. y//sjg Ro'b6rt A. Backus, Esquire

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s ENCLOSURE REQUEST FOR FINANCIAL INFORMATION SEABROOK UNIT NO. 1 C0CKET NO. 50-443

1. Please provide detailed estimates'of (a.) the total cost to operate Seabrook Unit No. I at low power only (up to five percent power); and (b.) the total cost to permanently shut down the facility after low power operation only and to maintain it in a safe condition, should that become neces sa ry. Also provide an estimate of the cost to store and to dispose of the irradiated fuel assuming low power operation only. Describe in detail the assumptions underlying the estimates. Include assumptions as to power level, duration of operation, method of fuel storage and disposal and method of permanent shutdown and safe maintenance. In response to the above, the applicants (i.e., the joint owners) should update their response to the NRC letter dated August 17, 1987. This request for information is in addition to the reporting requirements of the NRC's decommissioning rule published in the Federal Register on June 27, 1988, (53 FR 24018).

2. Please provide a detailed statement of the sources of funds for covering total costs of low power operation and total costs of permanent shutdown of the facility and maintenance in a safe condition after a period of low power operation only. Indicate the assumptions underlying the projection of each source of funds.

3. Provide copies of the latest funding forecast approved by the joint owners. Also provide copies of the funding performance for the most recent six months.

4. Provide a detailed statement of the joint owners' plan for covering the 11.6 percent share of Seabrook costs that is no longer being paid by Massachusetts Municipal Wholesale Electric Company (MMWEC). Identify any new or prospective owner (s) or other participant (s) in the project and describe in detail the arrangements for their participation and for covering the share of costs formerly paid by MMWEC. Describe how MMWEC's

2 share of costs will be covered by the time low power operation is authorized.

(For this purpose assume that low power authorization is received after September 1,1988.)

5. Please identify any other joint owner (s) that is in default (or that is expected to be in default in the next twelve months) or in arrears on its Seabrook payments. Describe the circumstances of the default (or potential default) or the arrearage and indicate how the unpaid share is being (or will be) covered. Describe the plan for coverage of the share through low power operation up until issuance of a full power license.

(For this purpose, assume a full power license is issued in the sumer 1989.')

6. Describe the effect of bankruptcy on PSNH's ability to cover its share of Seabrook costs both currently and through a period of low power operation. .

Please sumarize any pronouncements of the Bankruptcy Court that affect PSNH's ability to pay its total share of Seabrook costs both currently and through low power operation up until issuance of a full power license.

Indicate if PSNH is up-to-date on payment of its share of costs to the project and explain how PSNH expects to continue to be up-to-date on its payments through low power operation up until issuance of a full power license. (For these purposes, assume a full power license is issued in the summer 1989.)

7. Describe the status of efforts to spin-off New Hampshire Yankee Electric Corporation as an independent company. Explain any effects on responses to the above questions if the reorganization were to be accomplished.

8. Provide the following for each joint owner:

a. Copies of the most recent published, interim financial statements (and interim report to stockholders for the investor-owned utilities).

b. Copies of the 1987 SEC Form 10-K, the most recent SEC Form 10-Q and the most recent SEC Form 8-K, for the joint owners that file these reports.

Public Service Company of Seabrook Nuclear Power Station New Hampshire cc:

Mr. Calvin A. Canney, City Manager Mr. Alfred V. Sargent, City Hall Chairman 126 Daniel Street Board of Selectmen Portsmouth, New Hampshire 03801 . Town of Salisbury, MA 01950 Board of Selectmen Senator Gordon J. Humphrey RFD Dalton Road ATTN: Tom Burack Brentwood, New Hampshire 03833 531 Hart Senate Office Building U.S. Senate Ms. Roberta C. Pevear Washington, D.C. 20510 Town of Hampton rails, New Hampshire Drinkwater Road Mr. Owen S. Durgin, Chairman Hampton Falls, New Hampshire 03844 Durham Board of Selectmen Town of Durham Mr. Guy Chichester, Chaiman Durham, New Hampshire 03824 Rye Nucl(ar Intervention Committee Jane Spector c/o Rye Town Hall Federal Energy Regulatory East Kingston, New Hampshire 03827 Commission 825 North Capital Street, NE Chairman, Board of Selectmen Room 8105 RFD 2 Washington, D. C. 20426 South Hampton, New Hampshire 03827 Mr. R. Sweeney R. Scott Hill - Whilton Three Metro Center Lagoulis, Clark, Hill-Whilton Suite 610

& McGuire Bethesda, Maryland 20814 79 State Street Newburyport, Ma. 01950 Mr. Richard Strome, Director Ms. R. Cashman, Chairman State Civil Defense Agency Board of Selectmen State Office Park South Town of Amesbury 107 Pleasant Street Town Hall Concord, New Hampshire 03301 Amesbury, Massachusetts 01913 Adjudicatory File (2)

Honorable Peter J. Matthews Atomic Safety and Licensing Board Mayor, City of Newburyport Panel Docket City Hall U.S. Nuclear Regulatory Commission Newburyport, Massachusetts 01950 Washington, D.C. 20555 Mr. Donald E. Chick, Town Manager Congressman Nicholas Mavroules Town of Exeter 73 Washington Street 10 Front Street Sa lem, Massachusetts 01970 Exeter, New Hampshire 03823

Mr. Robert J. Harrison Publ'ic Service Company of New Hampshire Seabrook Nuclear Power Station cc:

Thomas Dignan, Esq. E. Tupper Kirider Esq.

John A. Ritscher, Esq. G. Dana Bisbee, Esq.

Ropes and Gray Assistant Attorney General 225 Franklin Street . Office of Attorney General Boston, Massachusetts 02110 208 State Hosue Annex Concord, New Hampshire 03301 Mr. Bruce B. Beckley, Proiect Manager Public Service Company of New Hampshire Resident Inspector Post Office Box 330 US Nuclear Regulatory Commission Manchester, New Hampshire 03105 Post Office Box 1149 Seabrook, New Hampshire 03874 Dr. Mauray Tye, President Sun Valley Association Mr. A. M. Ebner, Project Manager 209 Sumer Street United Engineers & Constructors Haverhill, Massachusetts 08139 Post Office Box 8223 Philadelphia, Pennsylvania 19101 Robert Backus, Esq.

Backus, Meyer and Solomon Steven Oleskay, Esq.

116 Lowell Street Office of the Attorney General Manchester, New Hampshire 03106 One Ashburton Place P.O. Box 330 Diane Curran, Esq. Boston, Massachusetts 02108 Harmon and Weiss 2001 S Street, NW Carol S. Sneider, Esq.

Suite 430 Office of the Assistant Attorney General Washington, D.C. 20009 One Ashburton Place P.O. Box 330 Philip Ahren Esq. Boston, Massachusetts 02108 Assistant Attorney General State House, Station #6 D. Pierre G. Cameron, Jr. , Esq.

Augusta, Maine 04333 General Counsel Public Service Company of New Hampshire Mr. Warren Hall Post Office Box 330 Public Service Company of v Manchester, New Hampshire 03105 ,

New Hampshire Post Office Box 330 Regional Administrator, Region I Seabrook, New Hampshire 03874 U.S. Nuclear Regulatory Comission 475 Allendale Road Ms. Jane Doughty King of Prussia, Pennsylvania 19406 Seacost Anti-Pollution League 5 Market Street New Hampshire Civil Defense Agancy Portsmouth, New Hampshire 03801 107 Pleasant Stree*

Concord, New Hampsb..e 03301 Mr. Diana P. Randall 70 Collins Street Seabrook, New Hampshire 03874

SEABROOK SERVICE LIST--ONSITE COMMISSIONERS Sheldon J. Wolfe, Chairman William S. Lord, Selectuant.ggg;g. Senator Gordon J. Humphrey U.S. NRC Town Hall--Friend Street t1NhC U.S. Senate W:shington, DC 20555 Amesbury, MA 01913 Washington, DC 20510 g,g.TomBurack)

Dr. Jerry Harbour QFFICE P SICLW #

Jane Doughty 40CKEi% A Si$elWetmen of Northampton U.S. NRC SAPL BRANC" Northampton, NH 03826 Washington, DC 20555 5 Market Street Portsmouth, NH 03801 Dr. Emmeth A. Luebke Carol S. Sneider, Esquire Senator Gordon J. Humphrey 5500 Friendsh'.p Boulevard Assistant Attorney General One Eagle Square Apartment 1923N One Ashburton Place Suite 507 Chevy Chase, MD 20815 19th Floor Concord, NH 03301 Boston, MA 02108 Michael Santosuosso, Chairmt Atomic Safety & Licensing Stanley W. Knowles Board of Selectmen Board Panel Board of Selectmen Jewell Street U.S. NRC P.O. Box 710 RFD #2 W:shington, DC 20555 North Hampton, NH 03826 South Hampton, NH 03842 Atomic Safety & Licensing J.P. Nadeau Judith H. Mizner, Esquire Appeal Board Panel Town of Rye Silverglate, Gertner, et al.

U.S. NRC 155 Washington Road 88 Broad Street W:shington, DC 20555 Rye, NH 03870 Boston, MA 02110 Docketing and Service Richard E. Sullivan, Mayor Rep. Roberta C. Pevear U.S. NRC City Hall Drinkwater Road W:shington, DC 20555 Newburyport, MA 01950 Hampton Falls, NH 03844 Mrs. Anne E. Goodman Alfred V. Sargent, Chairman Phillip Ahrens, Esquire l Board of Selectmen Board of Selectmen Assistant Attorney General 13-15 New Market Road Town of Salisbury, MA 01950 State House l

Durham, NH 03842 Station f6 Augusta, ME 04333

. ., j Thomas G. Dignan, Esquira Gery W, Holmes, Esquira Alt,n S Rosinth31, Chrirman R K. G:d II, E:quir3 Holmes & Ellia U.S. NRC Ropes & Gray 47 Winnacunnent Road Washington, DC 20555 225 Franklin Street Hampton, NH 03842 Boston, MA 02110 ,

Andrea Ferster, Esquire William Armstrong Howard A. Wilber Diane Curran, Esquire Civil Defense Director U.S. NRC Harmon & Weiss 10 Front Street Washington, DC 20555 2001 "S" Street N.W. Exeter, NH 03833 Suite 430 '

W:shington, DC 20009 Gregory A. Berry, Esquire Calvin As Canney Lando W. Zech, Chairman Office of General Counsel City Manager U.S. NRC U.S. NRC City Hall Washington, DC 20555 Washington, DC 20555 126 Daniel Street Portsmouth, NH 03801 Mr. Angie Machiros, Matthew T. Brock, Esquire Kenneth C. Rogers, Chairman Shaines & McEachern Commissioner Town of Newbury P.Q. Box 360 U.S. NRC Town Hall Maplewood Ayenue Washington, DC 20555 25 High Road Portsmouth, NH 03801 Newbury, MA 01951 George' Dana Bisbee, Esquire Sandra Gavutis Kenneth M. (,arr, Commlssioni Geoffrey M. Huntington, RFD 1, Box 1154 U.S. NRC Esquire East Kensington, NH 03827 Washington, DC 20555, Office of the Attorney General State House Annex Concord, NH 03301 Allen Lampert Charles P. Graham, Esquire Thomas M. Roberts, Civil Defense Director McKay, Murphy and Graham Commissioner Town of Brentwood 100 Main Street U.S. h7C Execter, NH 03833 Amesbury, MA 01913 Washington, DC 20555 Richard A. Hampe, Esquire Frederick M. Bernthal, Hampe and McNicholas Commissioner 35 Pleasant Street U.S. NRC Concord, NH 03301 Washington, DC 20555 L_