ML20197E095
| ML20197E095 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/18/1988 |
| From: | Berry G NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| CON-#288-6395 OL-1, NUDOCS 8806080078 | |
| Download: ML20197E095 (9) | |
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.i UNITED ST ATES OF AMERIC A
'88 MAY 24 Pl2:18 i
NUCLE AR REGUL ATORY COMMISSION
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BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOIEd
.- I In the Matter of Docket Nos. S0-443 OL-01
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PUBLIC SERVICE COMP ANY OF S0-444 OL-01 (On-site Emergency ) Planning NEW H AMPSHIRE, et al.
and Safety Issues (Seabrook Station Units 1 and 2) l NRC ST AFF RESPONSE TO M ASSACHUSETTS ATTORNEY GENER AL JAMES M. SH A NNON'S SUPPLEMENT TO W AIVER PETITION Gregory Alan Berry Counsel for N R C Staff May 18, 1980
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i UNITED ST ATES OF AMERIC A NUCLEAR REGUL ATORY COMMISSION 1
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket Nos. 50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 UL-01 (On-site Emergency) Planning NEW H AMPSHIRE, et al.
and Safety Issues (Seabrook Station Units 1 and 2) r t
NRC ST AFF RESPONSE TO M ASSACHUSETTS ATTORNEY GENER AL i
JAMES M. SH ANNON'S SUPPLEMENT TO WAIVER PETITION B
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Gregory Alan Berry Counsel for N R C Staf:'
t May 18,1988 i
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4 UNITFD STATES OF AMERICA NUCLEAR REGULATORY COMMISSION r
s BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of I
Docket (47..
50-443 OL-01 PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW HANPSHIRE, et al.
On-site Emergency Planning and Safety Issues (Seabrook Station Units 1 and 2)
)
NRC STAFF RESPONSE TO MASSACPUSETTS ATTORNEY GENERAL JAMES M. SHANNON'S SUPPLEMENT TO WAIVER PETITION On May 13, 1988, the Attorney General for the Commonwealth of Massachusetts filed a "Supplement To [His] Petition Under 10 C.F.R. 5 2.758 For A Waiver Of Or Exception From The Public Utility Exemption From The Pequirement Of A Demonstration Of Financial Qualification Review." According to the Attorney General, the purpose of the instant filing is to bring to the Appeal Board't ittention additional information j
"which bears on the likelihood that adequate funding will be available to assure the safe operation and/or deconmissioning of the Seabrook plant."
l Id. at 2.
Although the instant filing is not permitted under the Commission's rules, (see 10 C.F.R. I 2.758), the Staff does not oppose the Attorney General's request that this supplemental information be included in the recer6. The Staff notes, however, that for the reasons stated in its
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. 4 brief 1/, the information pro'fered by the Attorney General is not sufficient to make out a prima facie case that application of the Coninission's financial qualification regulations would not serve their intended purpose.
The matters set forth in the Attorney General's supplement are conjectural and do not show that Publ,c Service Company of New Hampshire (PShH) would be barred from recouping the costs of operating the Seabrook Station through the rate making process in the event the facility is authorized to operate at full power.' Thus there is not any basis for granting a waiver of or exception from the public utility exemption to the Commission's financial qualification rules 2/ and the supplemental information offered by the Attorney General does not satisfy the requirements of 10 C.F.R. f 2.758.
The Attorney General's petition must be denied.
The Attorney General's submittal indicates that PSNH's Third Mortgage Bordholders have petitioned the Bankruptcy Court for an order directing PSNH to pay them all interest due and owing.
See Supplement at 4-5.
According to the Attorney General, should such an order issue, PSNH would 1/
See NRC Staff Responses To SAPL Response To Appeal Board Memorandum And Order Of January 29, 1988 Regarding Financial Qualification Rule And Massachusetts Attorney General James M. Shannon's Petition Under 10 C.F.R. 6 2.758 For A Waiver Of Or An Exception From The Public Utility Exemption From The Pequirement Of A Demonstration Of Financial Ovalification (March 29, 1988) (hereinafter "Staff Brief").
~2/
dee "Elimination Of Review Of Financial Qualification Of Electric Utilities In Operating License Reviews And Hearings For Nuclear Power Plants," 49 Fed. Reg. 35747, 35751 (September 12,1984)("an exception... might be appropriate where a threshold showing is made that, in a particular case, the local public utility commission will not allow the total cost of operating the facility to be recovered through rates"). The Attorney General has not even attempted to make this showing.
1 be unable to contribute its pro rata share of the maintenance costs of the Seabrook Station.
Id. at 5.
Even if true, this claim has no present significance. As indicated in the Supplement, this matter is pending and the Bankruptcy Court has not issued any order requiring the payment of interest to PSNH's Third Mortgage Bondholders, rather than payment of the costs and expenses of preserving the estate and complying with laws to protect the public health and safety.
See 11 U.S.C. 99 503(b)(1)(A),
507(a)(1), 362(b)(4) and (5); 28 U.S.C. 9 959(b).' Thus, there is no showing of a restriction on PSNH's ability to continue to contribute its pro rata share of the maintenance costs of the Seabrook Station. 3/
The Attorney General states that PSNH has petitioned the Bankruptcy Court to extend the deadline for its submission of a reorganization plan.
Id. at 5-6.
This is not decisionally relevant. The 'ttorney General does not explain how the requirements of 10 C.F.R. 9 2.758 would be satisfied if the Bankruptcy Court were to grant the requested extension.
As the Staff explained in its March 29, 1988 brief, the Attorney General has not carried his burden of showing that funds will not be available to maintain or operate the Seabrook Station in the event that the facility is authorized to operate at full power or that sufficient funds would not be available under the regular rate setting provisions of
~3/
For this reason the Attorney General's assertion that none of the Seabrook co-applicants "has indicated a willingness to assume or make up PSNH's share of the expenses of the Seabrook plant," Supplement at 3, is a matter of no consequence. Additionallly, the possible negative salvage value of Seabrook Station should low power operations commence might be an appropriate consideration for the Bankruptcy Court (which is concerned with the preservation of the assets of an estate), but it has no direct bearing on whether low pcwer operation should be authorized by the Corrmission.
l 1 l New Hampshire law should Seabrook be licensed.
Staff Brief at 13.
Nor has the Attorney General pointed to any facts or actions by the Bankruptcy Court which preclude the expenditure of funds to maintain (or shut down) the Seabrook Station. As the Staff pointed out previously, the filing of a bankruptcy petition does not relieve a debtor of its obligation to maintain its property in accord with laws intended to protect public health and safety.
See Id. at 17, n.20.
The Attorney General's supplement does not, any more than prior Interven'or petitions, warrant certification to the Commission of the question whcther the financial qualification rules should be waived in this proceeding.
For the foregoing reasons, the Attorney General's request to supplement his petition should be granted, but the petition should be denied.
Re eftfullysubmitted, i
Gregory Ahn Bqrry g -
Counsel fhr NRL Staff 1(
Dated at Rockville, Maryland this 18th day of May 1988 e
o 00LKE TED o
-UNITED ST ATES OF AMERIC A NUCLEAR REGUL ATORY COMMISSION
'88 MAY 24 Pl2:18 BEFORE THE ATOMIC S AFETY AND LICENSING APPE AL BO Ak[gg In the Matter of Docket Nos. 50-443 OL-01
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PUBLIC SERVICE COMPANY OF 50-444 OL-01 NEW H AMPSHIRE, et al.
On-site Emergency Planning and Safety Issues (Seabrook Station, Units 1 and 2)
CERTIFIC ATE OF SERVICE I hereby certify that copies of "N R C ST AF F R ESPO N SE T O M AS5 AC H USET TS ATTORNEY GENERAL JAMES M.
SH AN NO N'S SUPPLEMENT TO W AIVE R P E TITIO N" in the above-captioned proceeding have been served on the following by deposit in the U nited States mail, first class or, as indicated by an asterisk, by deposit in the Nuclear Regulatory Commission's internal mail system, this 18th day of May 1988.
Sheldon J. Wolfe, Esq., C hairman*
Atomic Safety and Licensing Administrative Judge Board
- Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, DC 20555 Dr. Jerry Harbour
- Docketing and Service Section*
Administrative Judge Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D C 20555 Washington, D C 20555 Dr. Emmeth A. Luebke Thomas G.
- Dignan, Jr.,
Esq.
Administrative Judge Robert K. Gad, III, Esq.
4515 Willard Avenue Ropes & Gray Chevy Chase, Maryland 20815 225 Franklin Street Boston, M A 02110 Atomic Safety and Licensing H. J. Flynn, Esq.
Appeal Panel
- Assistant General Counsel U.S. Nuclear Regulatory Commission FMeral Emergency Management Agency Washington, DC 20555 500 C Street, SW Washington, D C 20472 l
Philip Ahren, Esq.
Calvin A. Canney Assistant Attorney General City Hall Office of the Attorney General 126 Daniel Street State House Station Portsmouth, N H 03801 Augusta, ME 04333 Mr. Angie hachiros, Chairman Carol S. Sneider, Esq.
Board of Selectmen Assistant Attorney General 25 High Road Office of the Attorney General Newbury, M A 09150 One Ashburton Place,19th Floor Boston, M A 02108 George Dana Bisbee, Esq.
Allen Lampert Assistant Attorney General Civil Defense Director Office of the Attorney General Tow.' of Brentwood 25 Capitol Street 20 Franklin Concord, NH 03301 Exeter, NH 03833 Elly n R. Weiss, Es q.
William Armstrong Diane Curran, Esq.
Civil Defense Director Harmon & Weiss Town of Exeter 2001 S Street, N W 10 Front Street Suite 430 Exeter, N H 03833 Washington, D C 20009 Robert A. Backus, Esq.
Gary W. Holmes, Esq.
Backus, Meyer & Solomon Holmes & Ellis 116 Lowell Street 47 Winnacunnet Road Manchester, N H 03106 Hampton, N H 03842 Paul McEachern, Esq.
J. P. Nadeau Matthew T. Brock, Esq.
Board of Selectmen Shaines & McEachern 10 Central Street 25 Maplewood Avenue Rye, NH 03870 P.O. Box 360 Portsmouth, N H 03801 Judith H. Mizner, Esq.
Charles P. Graham, Esq.
Silverglate, Gertner, Baker, McKay, Murphy & Graham Fine & Good 100 Main Street 88 Board Street Amesbury, M A 01913 Boston, M A 02110 Sandra Gavutis, Chairman Robert Carrigg, Chairman Board of Selectmen Board of Selectmen R F D #1, B ox 1154 Town Office Kensington, N H 03827 Atlantic Avenue North Hampton, N H 03870 William S. Lord Peter J. Matthews, Mayor Board of Selectmen City Hall Town Hall - Friend Street Newburyport, MN 09150 Amesbury, M A 01913 1
. o Mrs. Anne E. Goodman, Chairman Michael Santosuosso, Chairman Board of Selectmen' Board of Selectmen 13-15 Newmarket Road South Hampton, N H 03827 Durham, NH 03824 Hon. Gordon J. Humphrey Ashod N. Amirian, Esq.
United States Senate Town Counsel for Merrimac 531 Hart Senate Office Building 376 Main Street Washington, D C 20510 Haverhill, M A 08130 i
f 04tw {$n Gregory Alb 1 Ber y c
Counsel for NRCl itaff g
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