ML20199A474

Answer of Montaup Electric Co to Motion of Nepco for Leave to Intervene & Petition for Summary Relief Or,In Alternative,For Hearing.* Nepco 990104 Motion Should Be Denied for Reasons Stated.With Certificate of Svc

ML20199A474
Person / Time
Site:	Seabrook
Issue date:	01/12/1999
From:	Dignan T MONTAUP ELECTRIC CO., ROPES & GRAY
To:	NRC COMMISSION (OCM)
References
CON-#199-19889 LA, NUDOCS 9901130041
Download: ML20199A474 (10)

Text

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UNITED STATES OF AMERICA.

9 JAN 12 P4 :22 before the NUCLEAR REGULATORY COMMISSION

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In the Matter of

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North Atlantic Energy Service

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Docket No. 50443 Corporation, et al.,

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(License No. NPF-86)

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(Seabrook Station, Unit No.1)

)

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ANSWER OF MONTAUP ELECTRIC COMPANY TO MOTION OF NEW ENGLAND POWER COMPANY FOR LEAVE TO INTERVENE AND PETITION FOR

SUMMARY

RELIEF OR, IN THE ALTERNATIVE, FOR A HEARING INTRODUCTION Under date of September 29,1998, North Atlantic Energy Service Corporation and Montaup Electric Company (Montaup) filed with this Conunission a " License Transfer Application Requesting Consent for Transfer of Montaup Electric Company's Interest in Operating License NPF-86 for Seabrook Station Unit No.1.to Little Bay Power Corporation" (Application). The Application was for the transfer by Montaup ofits 2.9% interest in Seabrook Station, Unit No.1 (Seabrook) to Little Bay Power Corporation (Little Bay), a wholly-owned subsidiary of Bay Corp. Holdings, Ltd. which, through another wholly 4wned i

2, Application at 2.

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subsidiary, Great Bay Power Corporation, already is the owner of '.2.1% of Seabroolf. On l

December 14,1998, this Commission caused to be published in the Federal Register a " Notice of Consideration of Transfer of Facility Operating License and Issuance of Conforming Amendment, and Opportunity for a Hearing" in the above-captioned docket.' Inter alia, the notice provided an opportunity for hearing pursuant to 10 C.F.R. 2, Subpart M.

. Under date of January 4,1999, New England Power Company (NEP) completed the filing and service' of a document styled as a " Motion... for Leave to Intervene, and Petition for Summary Relief or, in the Alternative, for a Hearing" (The Motion). Herein, Montaup replies to The Motion and for the reasons set out below urges that it be.dgnitd.

ARGUMENT i

The recently adopted regulations creating the streamlined process for approval of l

license transfers sets forth particularized requirements for all hearing requests and intervention ~-

petitions and the criteria under which this Commission will evaluate same.8 Each such petition, inter alia, must, under 10 C.F.R. { 2.1306(b):

2Anplication at 1.

563 Fed. Reg. 66301 (Dec.14,1998).

' 'NEP's filing was initiated on December 31,1998. However, the original filing

'"inadvertendy omitted" an " attached affidavit." See, letter, Berlin to Hoyle (Jan. 4,1999).

As a result, the complete filing and service did not take place until Jan. 4,1999. Id. For

(

reasons known only to NEP, service was made on a now non-extant Atomic Safety and Licensing Board which had been appointed in another Seabrook proceeding, See, 63 Fed. Reg.

l 49137:(Sept.14,1998), and the former parties to that other proceeding, which has since been i

terminated by virtue of the withdrawal of the application which gave rise to it. See,63 Fed.

Reg. 6%84 (Dec.17,1998).

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- 10 C.F.R. Ii 2.1306,2.1308.

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"(2) Set forth the issues sought to be raised and (i) Demonstrate that such issues are within the scope of the proceeding on the license transfer application, (ii) Demonstrate that such issues are relevant to the findings the NRC must make to grant the application for license transfer, (iii) Provide a concise statement.of the alleged facts or expert opinions which support the petitioner's position on the issues and on which the petitioner, intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issues, and

'(iv) Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact;"

And 10 C.F.R. I 2.1308(a) provides that in determining whether to grant a petition to intervene or hearing request, the Commission will consider, inter alia:

... whether the relief requested is within the Commission's authority,"'

and, "[w)hether the issues sought to be litigated are-(i) Within the scope of the proceeding; (ii)' Relevant to the findings the Commission must make to act on the application for license transfer; (iii) Appropriate for litigation in the proceeding;

-(iv) Adequately supported by the statements, allegation:, and documentation required by i 2.1306(b)(2)(iii) and (iv)."'

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'10 C.F.R. f 2.1308(a)(3).

710 C.F.R. I 2.1308(a)(4).

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' Careful analysis reveals that The Motion at bar, on its face, meets virtually none of the above-quoted requirements.

l Stripped of rhetoric, the NEP filing essentially recites that the transferee here involved, Little Bay, is not an electric utility; will, pursuant to the " prepayment" option provided for in the rehlations,s put aside $11,800,000 for decommissioning purposes;' and that Montaup's j

i aliquot share of the decommissioning costs projected in 1998 dollars to be incurred in 2026 is

$14,200,000. On these facts, and these facts alone, NEP claims tie e is an issue of whether i

decommissioning costs have been adequately prepaid."

l The language of the applicable regulations makes clear that decommissioning costs need not be payed in full, in advance, in order to satisfy the regulations. A sufficient prepaid j

amourit set aside which can be projected to earn over the operating life of the facility sufficient income on the basis of reasonable projections to cover decommissioning at the end of the license period is sufficient to satisfy the regulations. The pertinent regulation,10 C.F.R.

d

[810 C.F.R. i 50.75(e)(1)(i)

' ' Affidavit of Jame3 S. Robinson attached to the Motion at T 8, p.3.

oy,

"In conclusory terms, NEP also alludes to an issue of whether Little Bay will be able to cover ' perating costs. However, NEP sets forth no assertions based on fact (as opposed to o

speculation) which would tend to contravene the facts set forth in the Application, Applicatinn at 8-9,: which demonstrate that the contemplated transferee clearly will have funds to pay for j

five years of operating costs as contemplated by 10 C.F.R. } 50.33(f)(2).

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'l 50.75(e)(1)(i), as last amended, 63 Fed. Reg. 57236 (Oct. 27,1998), specifically provides t

th"t:

I "A licensee may take credit for projected earnings on the prepaid l

decommissioning trust funds using up to a 2 percent annual real l

l i

rate of return from the time of future funds' collection through the projected decommissioning period. This includes the periods of safe storage, final dismantlement, and license termina-i don,...."

l Monta'up has assumed an even lower, and, therefore, more conservative, real rate of interest of 1.73 % to be applied to the $11,800,000 over expected operating life in order to cover its aliquo' share of $14,200,000. ' It has long been the law that an applicant before this L

t Commission need only meet the requirements of the regulations as they exist." Clearly, Montaup has satisfied the present regulations.

. In short, the entire NEP Petition amounts to an attack on the regulations. NEP wants stricter rules applied to this transfer than appear in 10 C.F.R. i 50.75. Yet, NEP has not complied with the requirements of 10 C.F.R. I 2.1329, which sets out the rules for seeking a waiver of a rule or regulation in Subpart M proceedings. Doubtless, The Mot.lon is not cast as such because NEP is fully aware that it would be unable to carry the day in demonstrating the existence of the " sole ground" for such a waiver, viz. that application of the regulations at issue in the' case at bar would not serve the purpose for which they were adopted.8' 2Apphcatisn at 3.

" Maine Yankee Atomic Power Company (Maine Yankee Atomic Power Station),

ALAB-161,6 AEC 1003 (1973), af)frmed, Citizensfor Safe Power v. NRC, 524 F.2d 1291 l

(D.C. !Cir.1975).

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'10 C.F.R. i 2.1329(b).

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JAN.12.1999 4:22?M R0FES L GRAY-N0.4225

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NEP has launched an attack on the regulations based in part on a theory that NRC regulations require absolute certainty with respect to the future -la certainty that future costs will bh covered. The standard under the Atomic Energy Act has never been one of certainty -

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rather!it is one of reasonable assurance" - and reasonable assurance is demonstrated by

- compliance with the regulations as they stand. The Motion of NEP should be demed.

J By its attorneys l

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. Tifon(sg)pn: Jr.

Ropes R Gray One International Place Boston, MA 02110-2624 I

i (617) 951-7511 3

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Datedf Janury 12,.1999 i

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l " Yankee Atomic Electric Company (Yankee Nuclear Power Station), CLI-96-7, 43

. NRC 235, 262 (1996).

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_ JAN:12.19994:22N 10?E5 1 GRAY NO.42H-

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' CERTIFICATE OF SERVICE l

' I, Thomas G. Dignan, Jr., one of the attorneys for Montaup Electric Company, hereby certify that on January 12, '1999, I made service of the within document in confornuty with

' U.S.N.R.C. Regulations upon the following persons:

Annette L. Vetti-Cook Lillian M. Cuoco, Esquire

. Secret'ary of the Commission Senior Nuclear Counsel U.S. Nuclear Regulatory Commission Northeast Utilities Service Company Washington, DC 20555-001 P.O. Box 270

'(Attn:!Rulemakings and Adjudications Hartford, CT 06141 FAX: (860) 665-5504 Staff);

FAX::(301) 415-1101 David A. Repka, Esquire Karen' D. Cyr, Esquire Winston & Strawn

. General Counsel 1400 L Street, N.W.

U.S. Nucle: legulatory Commission Washington, DC 20005 Washin FAX: (202) 371-5950

FAX:I ~gton, C 20555 (301) 415-3086 Gerald Charnoff, Esquire Edward Berlin, Esquire -

Shaw, Pitman, Potts & Trowbridge Swidler Berlin Sherreff Friedman 2300 N Street, N.W.

3000 K Street N.W., Suite 300 Washington, DC 20037 Washington, DC 20007 FAX:- (202) 6634007 s

FAX:j (202) 424-7504 Mr. Frank Getman, Jr.

John F. Sherman, Esquire Great Bay Power Corporation Associate General Counsel 20 International Drive, Suite 301 New England Power Company Portsmouth, NH 03801-6809 25 Research Drive (Mail Only)

Westborough, MA 01582 FAX:! (508) 389-2463 Barton Z. Cowan, Esquire Eckert Seamans Cherin & Mellott, LLC B

600 Grant Street,44th Floor Pittsburgh, PA 15219 FAX: (412).566-6099 i

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JAR 12.1999 4:20PM 20?E5 1 GRAY NO.4236 P. 3/11 o,

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o DOCKETED USNPC UNITED STATES OF AMERICA -

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9 JAN 12 P4 :22 NUCLEAR REGULATORY COMMISSION Cfr.

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. In the Matter of

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North: Atlantic Energy Service

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Docket No. 50-443

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(License No. NPF-86)

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(Seabrook Station, Unit No.1)

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NOTICE OF APPEARANCE i-I Name:

Thomas G. Dignan, Jr.

1 Address:

Ropes & Gray One International Place Boston, MA 02110-2624 E-mail:'

tdignan@ropesgray.com Telepdone: -(617) 951-7511 FAX:

(617) 951-7050 L

. Party:

Montaup Electric Company Admissions: Commonwealth of Massachusetts L

Supreme Court of the United States l

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' United States Courts of Appeal for the First, Second, Seventh and D.C. Circuits L

United States District Courts for the Districts of Massachusett and Rhode Island u

United States Tax Court i.

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7 Thonny. Dignanf7E

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. Dated:! Janaury 12,1999 4

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lJAN.12.1999 4:20?M E0 PES & GEAY NO,4236 P, 4/11 l

CERTIFICATE OF SERVICE i-

,I, Thomas G. Dignan, Jr., one of the attorneys for Montaup Electric Company, hereby l

certify' that on January 12,1999, I made service of the within document in conformity with i

- U.S.N.R.C. Regulations upon the following persons:

Annette L. Vetti-Cook Lillian M. Cuoco, Esquire Secretary of the Commission Senior Nuclear Counsel U.S. Nuclear Regulatory Commission Northeast Utilities Service Company Washington, DC 20555-001 P.O. Box 270 l

(Attn::Rulemakings and Adjudications Hartford, CT 06141 Staff) ;

FAX: (860) 665-5504 FAX: (301) 415-1101 David A. Repka, Esquire f

Karen:D. Cyr, Esquire Winston & Strawn j

' General Counsel 1400 L Street, N.W.

U.S. Nuclear Regulatorv Commission Washington, DC 20005 Washington, DC 20555 FAX: (202) 371-5950 FAX:, (301) 415-3086 Gerald Charnoff, Esquire Edward Berlin, Esquire Shaw, Pitman, Potts & Trowbridge Swidler Berlin Sherreff Friedman 2300 N Street, N.W.

3000 K Street N.W., Suite 300 Washington, DC 20037 Washington, DC 20007 FAX: (202) 663-8007 FAX: (202) 424-7504 Mr. Frank Gennan, Jr.

John F. Sherman, Esquire Great Bay Power Corporation Associate General Counsel 20 International Drive, Suite 301 New England Power Company Portsmouth, NH 03801-6809 325 Research Drive (Mail Only)

Westborough, NIA 01582 FAX: (508) 389-2463 Barton Z. Cowan, Esquire Eckert Seamans Cherin & Mellott, LLC 600 Grant Street,44th Floor Pittsburgh, PA 15219 i

FAX: (412) 566-6099 f.

T!fo^ mas G. Dignan, Jr.

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JAR 12.1999 4:19?M RO?!S & GEAY N0.4235 F. 2/11 Ropes & GRAY ONE INTERNATIONAL PLACE oNc rnANxuN souAnt BOSTON, MASSACHUSETT5 OEllO-a624 isoi a statet. N. w.

sm oo E so KENNEDT LAltA (617)954 7000 F7loVl@E NCE. 7Ll caso2

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,.Ax: (617) 951-7050 (zoa) eas*asco (4ot) esa a 4400 WRfrER'S DIRECT DIAL NUMSER: (617) 95 l*7$ i i gng,,,,,

. FAX: (401) 455 440s WRrrER'S E. MAIL ADDRESS: TDIGNAN@ROFESGRAY.COM January 12,1999~

VIA FACSIMHR AND REGUI AR MAH.

Annetic L. Vetti-Cook

. Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-001 ATTN: Rulemakings and Adjudications Staff i

l. :: North Atlantic Energy Service Corporation, et al.

Docket No. 50-443 (License No. NPF-86) 1

Dear Ms. Vetti-Cook:

1 Enclosed herewith for filing in the above-entitled matter, please fm' d the original and two copies of Answer of Montaup Electric Company to Motion of New England Power Company for Leave to Intervene and Petition for Summary' Relief or, in the Alternative, for a Hearing" and my appearance in this matter.

1 Very trul

ours, A

Thomas G. Dignan, Jr.

TGD:k. dr:usamm Enclosures ^

cc: Service List i

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