ML20235W163
| ML20235W163 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/09/1987 |
| From: | Traficonte J MASSACHUSETTS, COMMONWEALTH OF |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20235W143 | List: |
| References | |
| OL-1, NUDOCS 8710160029 | |
| Download: ML20235W163 (33) | |
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00CKETED USHRC UNITED STATES OF AMERICA 17 OCT 13 P4:26 before the NUCLEAR REGULATORY COMMISSION kgj krP1 3
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In the Matter of
)
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Docket Nos.
50-443-OL-1 PUBLIC SERVICE COMPANY OF
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50-444-OL-1 NEW HAMPSHIRE, et al.,
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(On-site Emergency
)
Planning and Safety (Seabrook Station, Units 1 and 2) )
Issues)
)
MEMORANDUM OF ATTORNEY GENERAL JAMES M. SHANNON AND SAPL IN OPPOSITION TO APPLICANTS' MOTION FOR VACATION OF STAY INTRODUCTION On September 18, 1987, the Applicants filed a document entitled Seabrook Plan for Massachusetts Communities ("SPMC")
and three days later filed a motion for vacation of the Commission's stay of the authorization of low-power operation at the Seabrook Station.
The Applicants have not demonstrated, by their filing of the SPMC, that adequate emergency planning is at least in the realm of the possible or that the SPMC is a bona fide utility plan.
Therefore, the Applicants have not met their buroen unaer 10 C.F.R.
S50.33(g), as interpreted by the Commission, and their motion to vacate the stay must be deniea.
Pursuant to the Commission's order of September 24, 8710160029 871009 PDR ADOCK 05000443 O
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9
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l' L1987 Attorney General James M.
Shannon
(" Attorney' General")-
ano the Seacoast' Antipollution. League file this memoranaum in-l (opposition to the motion for vacation of the stay.along with
'theirfanswer in opposition to the motion.
STATEMENT OF PROCEEDINGS on Octob'er 7, 1986, the on-site Licensing Board authorized the issuance of a. license allowing fuel loading and precriticality testing at Seabrook.
LBP-86-34, 24 NRC,
The Attorney General appealed the decision because the Applicants had not submitted a radiological emergency response plan for the' Massachusetts portion of the'EPZ, as required by 10 C.F.R.
S50.33(g).
The' Appeal Board affirmed the Licensing Boaro's oraer and the Attorney General sought review before the Commission.
On January 9, 1987, the Commission took review ana stayed the Director of Nuclear Reactor Regulation f rom
' authorizing low-power operations until the Commission's review was complete.
On April 8, 1987, one day before the Commission was to announce its decision on the issue, the Applicants attempted to moot the decision and engineer the lifting of the stay by filing an emergency plan it now acknowledges was only a draft Massachusetts plan earlier rejected by the Commonwealth as inadequate.
See Applicants' Motion For Vacation Of Stay at 2.
Nevertheless, on April 9, 1987, the Commission issued its A
decision.
See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-02, 25 NRC It reversed the Appeal Board, maintained.the stay and elected to consider the Applicants' motion only as one to vacate the reversal and lift the stay.
See CLI-87-02 at 2, n.1.
In so doing, the Commission expressly retained the option in Seabrook, no longer available to it in Shoreham, of denying a license for low-power operation if there were "truly insuperable obstacles to issuance of a license for operation at any substantial power level."
Id. at 6.
Therefore, the Commission decided that the filing of a Massachusetts off-site plan triggers a review "to determine whether adequate emergency planning is at least in the realm of the possible." Id. at 7.
i On June 11, 1987 the Commission held that the Applicants' April 8, 1987 filing was not a bona fide utility plan.
Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-87-03, 25 NRC at 8.
As a result, the Commission l
refused to vacate CLI-87-02 or to lift its stay.
Id. at 9.
On
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I September 18, 1987, the Applicants submitted the SPMC.
On i
September 21, 1987, they filed their Motion For Vacation Of 1
Stay.
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ARGUMENT 1/
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THE STANDARDS TO BE APPLIED TO THE SPMC In its June 11, 1987 decision-the Commission articulated the? standards.by-which the Applicants' April 8,.1987 and future filings would be judged:
As explained below, CLI-87-02 imposed two requirements:
~(1) Public Service Company of New Hampshire was to file a bona fide utility plan, and (2) (it] must demonstrate on_ summary review that adequate emergency planning is "at least in the realm of the possible."
CLI-87-03 at 5.
In its gloss on the first. requirement that any acceptable filing be a " bona fide utility plan" the Commission stated that a " utility plan is one that provides measures to be taken by the utility to compensate" for the absence of State or local participation and that it be " intended for actual implementation as a utility emergency plan."
Id. at 5, 6 (emphasis supplied).
Further, it-must reflect efforts to facilitate the absent State's participation in the event of an emergency.
Id. at 7, n. 7.
Finally, it should be the plan that the utility intends to have the Staff and F"MA review and that it intends to litigate.
Id. at 6.
1/
The argument presented here tracks the two components of the standard set out by the Commission in CLI-87-03 by which a utility plan is to be reviewed under section 50.33(g).
As indicated in his earlier filings on this issue, the Attorney General disputes the notion that a utility plan can satisfy 3
section 50.33(g).
See Attorney General James M. Shannon's l
Brief In Response To Applicants' Suggestion Of Mootness And j
Request For Vacation Of Stay at 4, n.2 (April 28, 1987).
By
[
framing the argument here in the terms of CLI-87-03, the Attorney General does not waive his position on this issue.
i 1
l n
4 The second prong of the test required by " sound policy" (CLI-87-02 at 6) is akin to the first.
Any utility plan proposed in the absence of State and local participation must demonstrate that adequate emergency planning is in the " realm of the possible" before low-power operation may begin.
- Thus, l
the utility must submit a real plan that proposes actual compensatory measures and also establish that the implementation of this plan is in the realm of the possible.
The basis for these requirements is not obscure and should be i
explicitly considered by the Commission in its application of i
these requirements to the SPMC:
it would be unsound to permit i
low-power operation in the face of fundamental uncertainty l
t concerning eventual full-power licensure.
In this regard, the Applicants continue to ignore the j
commission's underlying interpretation of the requirement for low-power operation set forth in 10 C.F.R.
50.33(g).
j Obviously, the filing of a utility plan is not merely a formal requirement with little substantive significance.
Commission 4
action in staying low-power operation in the absence of any plan in April and in the absence of a real plan in June indicates that 50.33(g) has been interpreted as a barrier to low-power operation in the absence of an affirmative showing that no " insuperable obstacles to issuance" of a full-power license exist.
CLI-87-02 at 6.
The Commission has not altered the Applicants' fortunes on a procedural whim but has insisted
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that a showing be made before low-power operation that the emergency planning problem caused by the absence of State and local participation can be solved.
Moreover, in light of the existing regulations this showing is a difficult if not impossible one.
In fact, the Commission has proposed a rule change to remedy the fact that under the existing regulations adequate emergency planning " depends on the continued cooperation of State and local governments."
52 Fed. Reg. 6980, 6981 (March 6, 1987).
In the Commission's view, the State and local governments can " veto full-power operation" by not cooperating.
Id.
In light of the Commission's own expressed view that full-power licensure can be effectively vetoed by the failure of State and local parti-iption, the requirement that adequate emergency planning based on the submitted utility plan be in the realm of the possible puts a substantial burden on the Applicants, a burden that they have yet to understand, yet alone meet.2/
2/
It remains a substantial burden even though the Commission need not now make a detailed finding concerning the SPMC's ultimate adequacy.
As noted, 50.33(g) as interpreted, establishes as a licensing requirement the finding that a utility plan can work adequately in the absence of state
)
participation.
Thus, the findina that the utility plan is in j
the realm of the possible is a fact to be found and not an j
" ineluctable conclusion" to be drawn from assumptions about
" realism."
i s
As'the; Applicants would have?it:
[t]he procedures developed, resources purchased or; contracted.for, the number of individuals-pledged to serve, the consistency with the in-place-Massachusetts Radiological Emergency-Response Plan all added.to the concept of-
" realism"
.. lead to the ineluctable-conclusion.that adequate emergency planning for
.the Massachusetts portion of the Seabrook EPZ is "at least in the realm of the possible."
Applicants' Motion for vacation of Stay, at 9.
(citation.omitted).
In fact, ascdiscussed supra, not only does the concept of realism not help the Applicants establish that the SPMC will'be the actual plan implemented at Seabrook in the event'of an accident,-but'the SPMC is so flawed as a matter of both fact i
and. law'that the necessary finding simply cannot be made.
'II..THE SPMC AS A MATTER OF FACT AND LAW CANNOT BE IMPLEME I
j l
None of the Three Modes of Operation of the SPMC Can l{
A.
Be Implemented.
identifies three modes of operation for the j
The SPMC f
Off-Site Response Organization during an emergency at of course, the focal point of the Seabrook.
Those modes are, i
plan and set forth or illustrate its purported compensatory Mode 1 contemplates that in the event of an measures.
emergency Massachusetts will implement a response and New Hampshire Yankee's ("NHY") role will be to supplement the resources of the Commonwealth and localities (with transportation equipment, other equipment, personnel and other,
I
a 0
7 4
resources,Lif necessary.)
In Mode 2, Massachusetts and its L
!1ocalities would. delegate their police-powers and authorize NHY to-respond to the emergency on their. behalf and~its response organization would undertake to do so.
In the event that
.neither Mode.1 nor Mode 2 operation emerges,-Mode 3 would be
' implemented -- NHY will provide the public with emergency information and attempti to limit the off-site consequences of the accident.
See SPMC, Plan at 3.1-1 to 3.1-3 and Figure 3.1-1.
1.
Mode 1 The' fatal problem with Mode 1 is that it does not identify,ndescribe or plan for the' actual response of the state
- and localities.
Furthermore, the SPMC fails to provide state and local officials with procedures for implementing the SPMC as an emergency plan.
The SPMC sets forth only NHY's plans and
'j does not describe'the response of Massachusetts and its l
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communities in the event of an emergency at Seabrook.
Without a plan.that details the actions of the state and localities, the Commission is not in any position to find that adequate emergency planning based on the SPMC is in the realm of the
{
possible.
Moreover,.as a-matter of law, the Applicants cannot assume
' based on " realism" that in the event Massachusetts does implement a response it will implement the Applicants' plan. -
I.
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the JAlthough, as_a result of the decision in Shoreham, Applicants ~may assume that Massachusetts and its communities will undertake a "best efforts" response to an emergency at Seabrook,3/ the Applicants are not entitled to assume what the "best efforts" response would be and, in particular, are in the absence of any procedures to not entitled to. assume, that that response would be'to guide the state and localities, Furthermore, the Applicants cannot assume implement the SPMC.
that any."best efforts" response would be adequate in itself.
Therefore, in the absence of any description of what State and local officials should or would do, the Applicants have not demonstrated that the SPMC can be implemented in the event of an emergency or that any combination of the SPMC and an ad hoc state response would provide an adequate emergency response.
~Fhe Appliiants have not assumed that Massachusetts will planning 3/
change its mind and participate in the emergencyThat assumption would be unj process'at this point.
and inappropriate.
First, Massachusetts' position on the is clear.and' unwavering.
It was reiterated on April 1987 in an affidavit of the Governor to the Commission.
subject Shannon's Brief In Response To 28, See Attorney General James M.
Applicants' Suggestion Of Mootness And Request For Vacation Of Stay, Exhibit.
Second, the Applicants are not entitled to If they were, there assume State and local participation.in filing a utility plan and the Commission's would:be no point earlier orders in this case, CLI-87-02 and CLI-87-03, would be deprived of all meaning.
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2.
Mode 2 In Mode 2, SPMC postulates that the Governor would to perform delegate his police powers to NHY and authorize it As support for this all necessary emergency actions.
remarkable notion the SPMC cites the Civil Defense Act and states:
The administrative authority of the Governor may The be delegated to the MCDA/OEP Director.
Director may subdelegate such authority as provided.
SPMC, Plan at 1.2-2.
But the Applicants either do not recognize or choose not to recognize the difference between permissible delegation of police powers to public officials or public bodies and wholly The inappropriate delegation to private persons or entities.
delegation of arthority to a private non-resident corporation proposed in the SPMC would be unlawful and without effect.
II, c.1, S 1, Article 30 of the Declaration of Rights and part Corning Glass Works 4 of the Massachusetts Constitution.
art.
- v. Ann & Hope, I n c._, 363 Mass. 409, 420-424 (1973); Arlington
- v. Board of Conciliation & Arbitration, 370 Mass. 769, 775-777 (1976); DiLoreto v.
Fireman's Fund Ins.
Co_.,
383 Mass. 243, 245-248 (1981).
Put simply, it is legally impossible for the of an accident.M SPMC to be actually implemented in the event instance, the Commission should defer to the In the first 4/
did in Shoreham on a state courts on this critical issue as it similar issue. - - - _ - _ - _ _ _.
t 1
3.
Mode 3 i
Mode 3 operation is no more than a.public announcement-
. of an accident at Seabrook.
What results-from that.
i announcement.is a completely ad hoc, unplanned response'
.That result lis the antithesis'of emergency 1 planning and its presence i;
as an option in the SPMC does nothing to show that adequate i
emergency planning is possible for the Massachusetts portion of f
the EPZ.
4 B.
Redactions'In The Plan Preclude Any Adequate Review Of The SPMC.
.The Applicants, apparently believing that this Commission's-review of.the SPMC would be entirely superficial, submitted a
- plan with critical components redacted.
Appendix C purports to j
set forth letters of agreement with bus companies and ambulance-companies for transportation services; with towing companies for transportation support services; with radio stations to i
activate the Emergency Broadcast System for the Massachusetts a
4 portion of the EPZ; and with various entities to provide medical / host facilities, congregate care centers, reception
'l centers, transfer points, staging areas, radwaste disposal, laboratory and van services.
The SPMC deletes all information that would identify those who supposedly will perform these crucial services and otherwise makes verification of the j
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critical information in these letters impossible.
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[*Q Appendix H purports to' list'the hundreds of off-site-(-
Response Organiz'ation personnel and facilities, touted by.the I
Applicants.'as more than sufficient to-compensate.for the lack of State and local government participation in-the planning
~
process.
'See SPMC, plan at 2.0-1.
Again, the name and phone numbers of these individuals and entities is redacted.
~ Appendix M purports.to set forth host facilities for schools, day care centers and nursery schools, nursing homes and other special facilities as well as reception hospitals, transportation and transportation support companies and congregate care centers.
Again, any identifying information is withheld.N The burden rests squarely on the Applicants to demonstrate that adequate emergency planning is at least in the' realm of the possible.
The Commission is obligated to make that determination after reviewing the contents of the plan.
The purposefully limited contents of the SPMC make it impossible to l
determine even in a summary fashion _whether the personnel,
)
i equipment and facilities that comprise the cornerstone of the
')
Applicants' compensatory plan have been arranged or will be available in the event of an emergency.
For that reason alone, the SPMC as submitted will not support the necessary finding.
5,j In other instances, even the form of the information is omitted, see Appendix A (unidentified map) and Appendix L I
(Ingestion Pathway Data Base), making it difficult to assess i
I the extent or even basis of the deletion.
l l i l
The Applicants' claim that the privacy of individuals and organizations needed to implement the plan (see Letter of George S. Thomas at 4, attached to Motion For Vacation) and 10 C.F.R.-52.790 justify the deletions is without merit.5!
There is ne cognizable claim of privacy, either under state or federal law, that would prohibit the disclosure of the 1
identities of those_who have volunteered or agreed to implement a radiological emergency response plan.
These individuals and organizations, if indeed they exist, have elected in effect to serve as officials, employees and entities in an emergency plan which is subject to intense public scrutiny and debate.
Moreover, the " invasion of privacy" claimed by the Applicants l
bears no resemblance to the traditional common law tort or to the statutory prescription against interference with privacy in Massachusetts.2/
6/
Moreover, this claim should be viewed in the context of the 3
Applicants' crabbed interpretation of 10 C.F.R.
50.33(g).
j Initially, the Applicants took the position, contrary to the i
plain language of the regulation, that their operating license j
need not include any emergency plan for the Massachusetts 1
portion of the EpZ.
Next, the Applicants invited the Commission to eviscerate its interpretation of section 50.33(g) by filing a plan which they knew Massachusetts would not implement and they could not implement.
That charade having
)
been rejected, the Applicants now ask the Commission to approve a plan the primary participants of which the Applicants refuse to identify even though in at least one planning scenario these unnamed parties will be exercising the police powers of the j
Commonwealth, i
1/
see Restatement (second) of Torts s es2A; M.G.L.
c.
- 214, SlB (invasion of privacy encompasses wrongs of (1) intrusions upon physical solitude; (2) unreasonable publication of private matters; (3) putting plaintiff in false position in public eye; l
and (4) appropriating element of plaintiff's personality for commercial use).
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. Finally, the' complete lack lof any cognizable claim of privacy-I
'destroysLthe: Applicants' repeated reliance, throughout the SPMC on110 C.F.R. S2.790.E/
Moreover, the fact that the Applicants have deemedLit necessary to file a completely redacted plan. presents the possibility that non-disclosure has been promised by the. Applicants.to those individuals and
-entities who have' agreed to cooperate as-a condition of that corporation.
Thus, the manifest inadequacy of a plan with no names may be only. screening the latent inadequacy of a plan whose personnel and resources will dissolve in the light (and heat) of the necessary public disclosure that the Applicants have only artificially delayed.2/
i C.
Critical Features Of The SPMC Are Deficient i
On Their Face.
i In the event of a release of radioactive material into the environment two protective actions, sheltering and evacuation, would be relied upon to limit the exposure of the general 1
l 8/
For the record, the Attorney General is aware of no motion or application filed by the Applicant pursuant to 10 C.F.R.
S2.790 seeking to withhold this information.
If the SPMC itself is-construed as making such a request, it'should be denied for the reasons set forth here.
1 9/
As noted, supra, this issue demands evidentiary treatment l
at this juncture.
The SPMC as submitted is neither bona fide
' nor in the realm of the possible if the personnel and resources are either not there or are there only as long as they remain anonymous.
Without taking evidence on this point, the Commission can only speculate as to the actual situation.
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population within the EPZ.
SPMC, Plan at 1.3-9.
Moreover, an I
essential component of any emergency plan is effective emergency notification to the populace.
See 10 C.F.R.
S50.47(b)(5).
The Applicants have not demonstrated, even on summary review, that protective actions and emergency i
notification could be accomplished in any measure sufficient to warrant a finding that adequate emergency planning is in the realm of the possible.
1.
Sheltering Notwithstanding the recognition that sheltering, under certain release scenarios, will be necessary, see SPMC, IP 2.5 at 6, the Applicants have not even attempted to show in this plan that any sheltering is available for the large summer beach population in Massachusetts in the event of an emergency at Seabrook.
Significantly, the SPMC does not identify the structures that it states could be used as shelters in the beach area, and does not append any Letters of Agreement with the owners of these facilities to indicate their existence and their availability.
In the off-site proceedings on the New Hampshire RERP presently on-going before the off-site Licensing Board, the Applicants filed direct testimony which identifies a study performed for them by Stone & Webster Engineering Corporation in March, 1986 and updated in August, 1987 as containing i
estimates of sheltering capacities at beaches in j
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b Massach"setts.
Applicants' Direct. Testimony No. 6 (Sheltering) f 1
at 25 (September'10, 1987).. Even if the Commission could 1
review that study in this proceeding, it would find it'to be seriously' deficient..The testimony of Robert L. Goble, Ortwin Renn,. Robert T.
Eckert and Victor N..Evdokimoff, filed on i
behalf of the Attorney General on'SeptemberL14,'1987, demonstrates that, far from being effective, adequate shelters do not even exist.in the relevant areas.
l Most significantly, FEMA itself has characterized as i
inadequate the sheltering option offered by the Applicants in the New Hampshire RERP, the plan on which the Applicants have 1
concentrated their efforts to create the illusion of a' viable sheltering alternative:
Therefore, using the standard guidance for the initiation and duration of radiological releases, and the current New Hampshire RERP
[ radiological emergency. response plans) including ETE (evacuation time estimate), it appears that thousands of people could be unable to leave during an accident at Seabrook involving a major. release of radioactivity without adequate shelter for as much as the entire duration of that release.
Therefore, until these issues are resolved even if all the other inadequacies and deficiencies. cited in the RAC (Regional Assistance Committee] Reviews of the New Hampshire Plans, and the. Review of the Excicise of these plans were to be corrected, FFMA would not be able to conclude that the New Hampshire State and local plans to protect the public in the event of an accident at the Seabrook Nuclear Power Plant are adequate to f
meet our regulatory standard that such plans l
" adequately protect the public health and safety
(
by providing reasonable assurance that
. appropriate protective measures can be taken I
)
i ;
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?
e off-site in the event of a radiological emergency."
(See, 44 C.F.R.
350.5(b)).
FEMA l
Pre-Filed Testimony, September 11, 1987, Attached Statement of Position at 39.
In short, the SPMC offers nothing but blind hope on the adequacy of sheltering as a protective measure.
To the extent I
i that the Applicants want the Commission to rely on their
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efforts in the New Hampshire RERP (thus obligating the Commission to review the Attorney General and FEMA's testimony l
l as well), there is no factual basis for the conclusion that I
1 adequate sheltering for the Massachusetts portion of the EPZ is I
in the realm of the possible.
l 2.
Evacuation The Applicants' assertion that the SPMC demonstrates
]
that adequate evacuation measures could be taken in the event i
i of an emergency is also suspect.
The plan refers to the i
Seabrook Station Evacuation Time Estimate (ETE) prepared in connection with the New Hampshire RERP, SPMC, Plan at 3.6-2, and collects a sampling of ETE's for Massachusetts communities based on the study, SPMC, IP 2.5 at 17.1S/
However, the information is flawed in two respects.
First, the ETE used in the SPMC appears to be comprised outdated figures.
In the litigation before the off-site 10/
Once again the Applicants invite the Commission to look to the New Hampshire RERP proceedings and once again tue Commission would be obligated to consider other pertinent information from those proceedings.
4 4
Licensing Board, the Applicants have acknowledged that based on updated estimates, the ETE for the entire EPZ for the summer
-weekend scenario should be increased by thirteen percent.
Applicants' Direct Testimony No. 7 at 4.
(October 1, 1987).
Second, the accurate ETE is far higher than the Applicants' i
recently adjusted figures -- more than 196% of the original
{
estimates.
Testimony Of Thomas J. Adler On Behalf Of The Attorney General For The commonwealth Of Massachusetts at 8-11 (September 14, 1987).
Moreover, the ETEs set forth in the NHRERP are based on the assumption that local public officials will be cooperating during an emergency.
Again, the SPMC which itself contains only a sparse indication of the efficacy of evacuation and then only by basing that option on outdated and inaccurate figures, does not demonstrate tbat adequate emergency planning is in the realm of the possible.
3.
Sirens The Applicants acknowledge that the SPMC is incomplete in another critical respect because it assumes the existence of emergency notification sirens in Newburyport, SPMC, Plan Table 3.2-3, that, in fact, do not exist.
Motion For Vacation at 7.
l The Applicants cavalierly claim that they are " confident that they can put in effect an appropriate [ technical fix)."
Id. at 7, n.1.11/
However, their burden is greater than to 11/
Applicants' " technical fix" may indeed have to encompass all local communities in the Massachusetts portion of the EPZ.
(footnote continued) _ _ _ _ _ _ _ _ _ - _ _ _ - _ _ _ -
1 4
0 speculate without any support about the future presence of important features of the plan.
Instead, they have to file a f
plan with those features in place.
See CLI-87-03 at 6 (the z
l plan must be one intended for actual implementation and to be subjected to staff and FEMA review and litigation on that basis).
They have not done so.
j D.
The Imminent Bankruptcy Of PSNH Raises Serious Questions About The Availability Of The Compensatory Measures In The SPMC.
It is widely recognized that Public Service Company of New Hampshire ("PSNH"), the lead Applicant, is'on the brink of bankruptcy.
In a September 24, 1987 filing before the New Hampshire Public Utilities Commission, PSNH stated that its (footnote continued)
The towns of West Newbury, Newbury, Amesbury, Salisbury and Merrimac have all determined that permits issued to the Applicants to maintain sirens in those towns were issued without proper legal authority and have ordered the removal of all notification sirens in those towns.
Proceedings are currently on-going in federal court to resolve whether the towns may revoke the permits and take down the sirens.
Public Service Company of New Hampshire v. Town of West Newbury, et al., Civil Action No. 87-1140-K.
To date, the federal district court in Massachusetts has denied Applicants' motions for a temporary restraining order and preliminary injunction to enjoin the removal of sirens in West Newbury.
(The towns of Newbury, Salisbury and Amesbury have all sought intervention in the West Newbury case, and the town of Merrimac is intending to intervene.)
The Court of Appeals for the First Circuit, however, has imposed a stay pending its decision on whether injunctive relief was properly denied.
The issue was argued before the First Circuit on September 14, 1987, and a decision should be issued shortly.
Also, motions to dismiss or in the alternative for summary judgment have been filed on behalf of the towns and briefed in district court. _ - - _
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"long term debt of $1,412,924,904 alone is larger than PSNH's total rate base of $619,540,000."' PSNH Supplemental Requests for Findings at 2-3, attached as Exhibit A.
The imminent bankruptcy of the utility raises potentially serious problems for'the Applicants' emergency planning efforts.
The Letters of Agreement provide an important basis for the Applicants' claim that "the NHY Off-Site Response Organization is. fully capable of implementing an adequate emergency response in the absence of State and local participation."
SPMC, Plan at 2.0-1.
Most of the letters provide for rental or other fees for use of the equipment or facilities under agreement and l
provide that the Joint Owners of Seabrook will be. responsible for indemnification and the provision of comprehensive general liability insurance for the pledging individual or entity.
See i
e.g., SPMC, Appendix C.
The more detailed form of agreement
)
which presumably will follow any letters the Applicants have l
actually obtained, provides that "the rights, obligations and liabilities of each Joint Owner with respect to this agreement shall be several, in the same proportion as its ownership j
share and shall be neither joint nor joint and several."
SPMC, Appendix C at C-109 to C-110.
Therefore, only PSNH is responsible for its 35.5% share of the obligations under contracts for equipment and facilities.
If, as PSNH acknowledges is likely, it files for protection from creditors j
under the bankruptcy laws, these contracts will likely be l
.e
'V:
1 Jo subject:to scrutiny.
The Applicants have made no attempt:to show that'the obligation.of PSNH under thesE agreements would be; assigned, Transferred or otherwise honored.
Without-that-showing, the Commission cannot find that the possibility of adequate emergencyfplanning. based on the SPMC as submitted twould' survive PSNH's bankruptcy.
E.
SPMC Is Incomplete in Essential Ways.
.As acknowledged by the Applicants, the SPMC is incomplete in five' areas.
Motion For Vacation at 6-7.
The Applicants disuiss these deficiencies as " straight-forward matters,"
i capable of " technical fixes" or as minor matters which can be addressed by additions to the plan later.
Pour of these five matters -- the ingestion pathway data base, the route maps for travel from reception centers to congregate care centers, 1
internal facility plans forLschools, hospitals and other 1
special facilities and sirons for the largest of the six 1
Massachusetts communities in the EPZ - A ! are significant safety-related matters which cannot so lightly be dismissed.
The SPMC'does not fully describe the compensatory measures upon which it relies and is not, therefore, a bona fide utility plan.
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The Applicants calculate Newburyport's population as 16,414~ permanent residents and 23,481 residents at peak times.
SPMC, Plan, Table 3.6-1.
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i III.
ALTERNATIVELY, A FULL EVIDENTIARY HEARING S_HOULD BE HELD TO DETERMINE WHETHER THE SPMC MEETS THE COMMISSION'S STANDARDS.
I The Request of Attorney General James M.
Shannon, Seacoast Anti-Pollution League, New England Coalition On Nuclea; Pollution And Town'of Hampton For Briefing Schedule And Hearing i
On Applicants' Utility Plan, dated September 2, 1987, sought a hearing on the issues raised by the SE,MC.
Judging from the Commission'a September 17, 1987 Order, it may.have understood the request as one for oral argument.
However, the Attorney General and the Interveners-sqeh a hearirh7 onNthe record with
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an oppo'rtunity to- (nhn' duce evidence should the Commission not g
reject the SPMC outright. ;s y
The.Commissisn's predods orders on the section 50.33(g) issdE, secdi.in 189(a) of the Atomic Energy Act and the circumstances of this case all! point to the need for such a
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hearing.
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, First, sectick189(a) cf the Atomic Energy Act ("Act"), 42 s
U.s/C. s?239(a), provides.tyg'tlany interested party is entitled s, s y
y to a hearinsTin any operati,ng license proceeding.
h In an's piaceeding under this chapter, for the granting, suspending, revoking, or amending of anyt.ppense c': construction permit the s
i Commis'sion shall grant a hearing upon the 8
request of any person whose interest may be 5
aff[ctedbytheproceeding.
h Moreover, )h*[hcaring on all issues me.terial to licensure {ust f
g-be held priar to the action to be taken.
Sholly v. N.R.?c.f31 t
h.2d780, 791 n.28 (D.C. Cir. 1980), vacated on other grounds, (I
495 U.S. 1194 (1983).
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e The hearings on on-site emergency planning and safety have
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sended.. The' issue of the adequacy under'10 C.F.R.
S50.33(g) of the utility plan'now before the Commission arose out of those proceedings ~.
The Commission required "the filing of a_ state, local,:or_ utility plan before any operating: license is issued, including a license confined to fuel loading or low-power testing."
CLI-87-02 at 6.
In order to meet this requirement the Applicants must file a bona fide utility plan and must demonstrate that adequate emergency planning is at least in the realm of the'possible.
Id. at 5.
Therefore, the Commission has' recognized that_these matters should have been resolved before or during-the on-site proceedings on the fuel loading and low-power licenses by the Licensing Board.
The-Attorney General and Interveners participated in those proceedings and h,
should be permitted to fully address these issues in the
[c c context of_an evidentiary hearing.dd/
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Although-he is precluded.from raising the issue here, the 1
Attorney General does not accept the validity of 10 C.F.R.
S50.47(d), the regulation that segregates most off-site emergency planning issues from the proceedings on fuel-loading i
and low-power licenses.
The' regulation is inconsistent with the_ hearing requirement in section 189(a) of the Act.
Therefore, the granting of a low-power license prior to a The hearing on all emergency planning issues violates the Act.
problems engendered by a utility plan in the absence of a State and local plan, and the resulting need for another hearing just L
H j
on the issues raised by the Commission in CLI-87-02 and CLI-87-03 provide more force to the Attorney General's argument
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that all emergency planning issues must be heard and resolved j
before ang operating license may issue.
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, :n,
Moreover, under the' Commission's orders'the inquiry here.is
'a factual one.
In order for the Applicant to meet the
. standards' set out by the Commission, some type of factual l
showing must be made-and the plan itself must.lue reviewed.
In CLI-87-02,'the. commission observed that the emergency planning
. issues in the Seabrook case might be " categorically unresolvable" and that."truly insuperable' obstacles" to the issuance of: a full-power. license might exist.
CLI-87-02 at 6.
Whether such obstacles exist involve' factual questions which, even on' summary review, must be explored on a record with the opportunity'of the parties to introduce evidence.
Finally, the' Applicants themselves have relied upon matters outside of the SPMC --'the sheltering and ETE studies in the' NHRERP.
.By doing so they have acknowledged that the issue cannot be resolved by reviewing only the four ccrners of their plan.
Other materials and evidence must be brought in and assessed.
.The-most appropriate forum for that inquiry is a full. evidentiary hearing. _ _ _ _ _ _ _ _ _ _ _ _ _ - - - - - - - - -
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CONCLUSION For all the foregoing reasons, the Applicants' Motion For Vacation Of Stay should be denied.
Alternatively, a full l
evidentiary hearing should be held on the issues raised by the Seabrook Plan for Massachusetts Communities.
Respectfully submitted, l
JAMES M.
SHANNON j
ATTORNEY GENERAL COMMONWEALTH OF MASSACHUSETTS E
fYhr S)(ephen A. Johas As'istant Attorney General
.D puty Chief ublic Protection Bureau John Traficonte Carol Sneider Assistant Attorneys General Nuclear Safety Unit Office of the Attorney General One Ashburton Place Boston, MA 02108 (617) 727-4878 Dated:
October 9, 1987 i
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THE STATE OF NEW HAMPSHIRE PUBLIC UTILITIES COMMISSION DR 87-151 Public Service Company of New Hampshire - Emergency Rates PSNH SUPPLEMENTAL REQUESTS FOR FINDINGS.
Public Service Company of New Hampshire (PSNH) petitioner in this proceeding, in accordance with the Order of the New Hampshire Supreme Court of September 2, 1987 and the Commission's Order No.
I 18,812'of September 3, 1987, hereby requests that the Commission make the following additional findings of basic facts with respect
- to the issues framed by the Court, supplementing the Requests previously submitted by PSNH September 9, 1987:
A.
As to issue (a) set forth in the Court's Order:
A-7.
Based on cash flow projections using actual data
' through August 1987 and estimated data for the remainder of 1987, by the end of 1987 PSNH's projected cash deficiency, with stringent cash conservation measures in place, is approximately
$18.6 Million.
Support for this finding is contained in Exhibit 6.
Previous requests A-1, A-2 and A-3 reflect cash deficiency data based on earlie.r estimates, without cash conservation, i.e.,
. business "in the ordinary course."
A-8.
Any additional cash resources which might be generated by failure to make interest payments during the remainder of 1987 are not appropriately considered in relation to issue (a) which
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seeks findings as to " cash required to make interest payments as they come due.
A-9.
Any additional cash resources which might be generated I
in consequence of PSNH's financial restructuring proposal are not I
appropriately considered in relation to issue (a), because there is no reasonable likelihood that the restructure transaction will be consummated by the end of 1987.
Support for this finding is contained in testimony of Robert J. Harrison, Transcript Volume 1, pages 134, 139, 148, 159 and 165, and Volume 2, page 16.
A-10.
Updating the findings or data used to set rates for PSNH in its most recent rate case will not produce a revenue addition equivalent to the emergency rate request.
Support for this finding is contained in the prefiled testimony of Sarah P. Voll, Exhibit 29, page 5.
A-ll.
Even if PSNH prevails in its appeal of the rates established in its most recent rate case, the resulting increases in revenues would not be sufficient to support PSNH's cash deficiency.
Support for this finding is contained in the prefiled testimony of Eugene F.
Sullivan, Exhibit 30, page 7.
A-12.
The underlying cause of the discrepancy between PSNH's presently allowed revenues and the revenue it claims to need is the discrepancy between the investment allowed into PSNH's rate base as restricted by the anti-CWIP law, and the amount of capitalization it must service with interest and dividend payments.
Specifically with respect to interest obligations, PSNH's long term debt of $1,412,924,904 alone is larger than m
=
+
V'.
PSNH's total rate base of $619,540,000.
Although PSNH requires 1
approximately S215,940,000 in annual revenue to service its debt
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alone, the conventional rate making formula, as restricted by the anti-CWIP law, only provides $92,559,276 as a return to all forms of PSNH's capital.
Support for this finding is contained in the prefiled testimony of Sarah P. Voll, Exhibit 29, Page 6.
'In addition to the foregoing, PSNH notes the following i
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additional support for its Request A-5 previously submitted, that i
PSNH's cash deficiency cannot be met by application of conventional rate making methods as restricted by RSA 378:30-a.
Prefiled testimony of Sarah P. Voll, Exhibit 29, Page 5, pages 7-12.
B.
As to Issue (b) set forth in the Court's Order _:
B-5.
As of September 30, 1987, the present value of PSNH's investment in seabrook Unit I as of April 30, 1979 (7 days prior to the effective date of RSA 378:30-a) and increased by AFUDC accumulated in the interim, is $573,565,032, exclusive of land, nuclear fuel and costs specific to PSNH.
i Support for this finding is contained in testimony of Bruce W. Wiggett, Transcript Volume 2, page 90.
B-5.
The information contained in PSNH's Response to Request of Commissioner Bisson, filed September 22, 1987, sets forth the amount of PSNH's investment in Seabrook Unit I at various dates, 1
exclusive of land, nuclear fuel and costs specific to PSNH, adjusted to reflect portions already placed in rate base, and 1
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further adjusted to reflect accumulated AFUDC thereon through September 30, 1987.
Respectfully submitted, Public Service Company of New Hampshire By Its Attorneys By Martin L.
G ss"'
I hereby certify that I have this day mailed a copy of the within to all parties of record.
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September 24, 1987 artin L.
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06CNETED E
UbMC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
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In.the Ma'tter of'
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PUBLIC SERVICE COMPANY OF NEW
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Docket No.(s) 50-443/444-OL~
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F (Seabrook Station,. Units 1 and 2)
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CERTIFICATE OF' SERVICE I, John Traficonte, hereby certify that_on October-9,.1987 I made service of the'within Memorandum of Attorney General James M. Shannon in l Opposition to Applicant's' Motion for Vacation of Stay, by mailing copies thereof, postage' prepaid, by first class mail, or as. indicated by an asterisk,'by; Federal Express mail, to:
- Lando W.
Zech, Jr., Chairman
- Thomas M.
Roberts, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East. West Towers Building East West Towers Building 4350. East West Highway
'4350 East West Highway ThirdLFloor Mailroom Third Floor Mailroom Bethesda,HMD 20814 Bethesda, MD 20814
- Kenneth C. Rogers, Commissioner
- Frederick M.
Bernthal, Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission East West. Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814 i
- Kenneth M.
Carr, commissioner Alan S. Rosenthal, Chairman LU.S.. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission
~ East West Towers Building East West Towers Building 4350 East West Highway 4350 East West Highway Third Floor Mailroom Third Floor Mailroom Bethesda, MD 20814 Bethesda, MD 20814 x__-_-_-__----_____--
e Gary J. Edles Howard A.
Jilber Atomic Safety & Licensing Appeal Atomic Safety & Licensing Appeal Board Board U.S. Nuclear Regulatory Commmission U.S.
Nuclear Regulatory Conntssi; East West Towers Building East West Towers Building Faird Floor Mailroom Third Floor Mailroom 4350 East West Highway 4350 East West Highway Bethesda, MD 20814 Bethesda, MD 20814 Sheldon J. Wolfe, Chairperson Ivan W. Snith, Chairperson Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
Nuclear Regulatory Commmission U.S. Nuclear Regulatoty Conmissir East West Towers Building East West Towers Building i
Third Floor Mailroom Third Floor Mailroom 4350 East West Highway 4350 East West Highway Betdesda, MD 20d14 Bethesda, MD 20814 Dr. Emmeth A.
Luebke Dr. Jerry Harbour Atomic Safety & Licensing Board Atomic Safety & Licensing Board U.S.
Nuclear Regulatory Commmission U.S.
Nuclear Regulatory Commissist East West Towers Building East West Towers Building Tnled Floor Mailroom Third Floor Mailroom 4350 East dest Highway 4350 East West Highway Betnesda, MD 20814 Bethesda, MD 20814 H.
Joseph Flynn, Esq.
Stephen E. Merrill Assistant General Counsel Attorney General Office of General Counsel George Dana Bisbee, Esq.
federal Emergency Management Assistant Attorney General Agency Office of the Attorney General 500 C Street, S.W.
25 Capitol Street Wasnington, DC 20472 Concord, NH 03301
- Docketing and Service Paul A.
Fritzsche, Esq.
U.S. Nuclear Regulatory Office of the Public Advocate Commission State House Station 112 Washington, DC.
20555 Augusta, ME 04333 i
h Rooetta C.
Pevear Diana P.
Randall 1
State Representative 70 Collins Street Town of Hampton Falls Seabrock, NH 03874 Drinkwater Road dampton Falls, NH 03844 Atomic Safety & Licensing Robert A.
Backus, Esq.
I Appeal Board Panel Backus, Meyer & Solomon U.S.
Nuclear Regulatory 116 Lowell Street Commission P.O. Box 516 l
East West Towers Building Mancheste.r, NH 03106 I
Third Floor Mailroom l
4350 East West Hignway l
l Bethesda, MD 20814 l
j i lL__ _ __.
- Sherwin E.. Turk, Esq.
' Judith H. Mizner, Esq.
Office of the Executive Legal Silvergate, Gertner, Baker Director Fine, Good E.Mizner t.
U.S.
Nuclear Regulatory Commission 88 Broad Street Tenth Floor Boston, MA 02110 7735 Old Georgetown Road Bethesda,.MD 20814
,i Atomic Safety & Licensing Jane Doughty Board Panel Seacoast Anti-Pollution. League U.S. Nuclear. Regulatory 5 Market Street Commission-Portsmouth, NH 03801 Washington, DC 20555 Paul McEachern, Esq.
J, P. Nadeau Mattnew T.-3 rock, Esq.
Board of Selectmen Shaines & McEachern 10 Central Road 25 Maplewood Avenue Rye, NH 03870 P.O.
Box 360 Portsmouth, NH 03801 Sandra Gavutis, Chairperson Calvin A.
Canney l
.aoard of Selectmen City Manager RFD 1, Box 1154 City Hall ate. 107 126 Baniel Street E.
Kingston, NH 03827 Portsmouth, NH 03801 Senator Gordon J.
Humphrey Angelo Machiros, Chairman l
U.S. Senate Board of Selectmen dasnington, DC 20510 25 High Road (Attn: Tom Burack)
Newbury, MA 10950 Senator Gordon J.
Humphrey Peter J. Matthews One Eagle Square, Suite 507 Mayor l
Concord, NH 03301 City Hall (Attn: dere Boynton)
Newburyport, MA 01950 Donald E.
Chick William Lord town tanager Board of Selectmen Town of Exeter Town Hall 10 Front Street Friend Street Exeter, NH 03833 Amesbury, MA 01913 i
Brentwood Board of Selectmen Gary W. Holmes, Esq.
I RFD Dalton Road Holmes & Ellis Brentwood, NH 03833 47 Winnacunnet Road j
Hampton, NH 03841 i
f i
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b Philip Ahrens,;Esq.
Diane Curran, Esq.
Assistant: Attorney 1 General
'Harmon:& Weiss (partment of,the Attorney General.
Suite 430 State ~ House Station'#6 Washington, DC 20009 August,<ME' 04333.
Thomas'G.;Dignan, Esq.
Richard'A. Hampe, Esq.
.R.K.. Gad III,;Esq.-
Hampe & McNicholas' Ropes &' Gray 35 Pleasant Street-
!225-Franklin Street-
' Concord, NH 03301 Boston, MA '02110 Beverly Hollingworth
, Edward A. Thomas 209'Winnacunnet Road Federal Emergency Management Hampton, NH 03842
. 442'J.W. McCormack (POCH)
Agency Boston, MA 02109 William-Armstrong.
. Michael Santosuosso,' Chairman oCivil Defense Director Board of Selectmen
' Town of Exeter Jewell Street, RFD 2
'10 3ront Street South Hampton, NH 03827 Exeter,HNH 03833 Robert Carigg,. Chairman Ann E. Goodman, Chairperson Board of Selectmen Board of Selectmen Town' Office 13-15 Newmarket Road Atlantic Avenue Durham, NH 03824 North' Hampton, NH- 03862 Charles P. Graham, Esq.
Allen Lampert.
Civil Defense Director McKay, Murphy and Graham' Town'of Brer.twood Old Post Office Square 20 Frar.914n Street 100 Main Street Exeter, NH 03833 Amesbury, MA 01913 Rep. Edward J. Markey, Chairman Gustavo A.
Linenberger, Jr.
.U.S.
House of Representatives Atomic-Safety & Licensing Board Subcommittee on Energy Conservation U.S.. Nuclear Regulatory Commission' and Power 1717 H. Street Room H2-316 Washington, DC 20814
. House Office Building Annex No. 2 Washington, DC 20515
' Attn: -Linda'Correia hn-Trafic#nte ssistant Attorney General Nuclear Safety Unit Dated:
October 9, 1987 a___--___-