ML20235W201
| ML20235W201 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/09/1987 |
| From: | Power M BACKUS, MEYER & SOLOMON, SEACOAST ANTI-POLLUTION LEAGUE |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#487-4591 OL-1, NUDOCS 8710160056 | |
| Download: ML20235W201 (11) | |
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NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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Public Service Company
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Docket No. 50-443
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Onsite Emergency Planning (Seabrook Station, Unit 1)
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& Technical Issues SEACOAST ANTI-POLLUTION LEAGUE'S RESPONSE TO APPLICANTS' MOTION FOR VACATION OF STAY Introduction On September 24, 1987, the commission by Order established a briefing schedule for responding to the Applicants' " Motion for Vacation of Stay" dated September 21, 1987.
Due to the fact that counsel for the Seacoast Anti-Pollution League (SAPL), has since that time been fully engaged in preparing for, and now litigating, the issue of the adequacy of the New Hampshire Emergency Response Plans before the ASLB, SAPL is unable at this time to provide a full response to the Applicants' Motion for Vacation of Stay.
Accordingly, SAPL in this brief response, does the following:
1.
Joins in the response filed by the New England Coalition on Nuclear Pollution and the Commonwealth of Massachusetts, and fully adopts the argument and positions taken by those parties.
2.
Respectfully requests that the Commission grant extra time to SAPL, and extend the response period to October 16.
SAPL could more fully respond by October 16, since the ASLB hearings 8710160056 871009 PDR ADDCK 05000443 0
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l are in recess for the week ending on that date.
Should the Commission grant.SAPL an opportunity to file a further pleading by October 16, SAPL would have no objection to an extension of time for the NRC staff to reply to the SAPL brief.
Backaround SAPL relies on the background statement to this matter made by the New England Coalition on Nuclear Pollution, in their response to the Applicants' Motion for Vacation of Stay.
In addition, SAPL would note that, as of October 15, 1987, it is a virtual certainty that Public Service Company of New Hampshire, the holder of the operating license issued by the Commission, now l
limited to fuel loading only, Public Service Company of New l
Hampshire will be in default on a S37 million debt payment.
SAPL understands that there may be 30 day grace period on this interest payment, which PSNH has declared it does not intend to i
make, after which period PSNH may be placed in involuntary bankruptcy by any three creditors holding more than $5,000 of debt, as to which payment has not been made.
Summary of Reasons SAPL Asserts for Not Lifting the Concission's Stav Not having an opportunity to brief this matter, SAPL will simply here set out the reasons why the license holder for Seabrook, Public Service Company of New Hamsphire, should not be allowed to undertake nuclear operation at the facility, and which distinguishes the situation at Seabrook from that faced by the Commission in Shoreham, when an authorized low power operation went on line in the summer of 1985.
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Impending Bankruptcy of PSNH As noted.above, PSNH has declared that it is almost certain that it will not make a major debt service payment on October 15.
(see attached front'page article from the October 8, 1987, l
Manchester Union Leader).
It is highly foreseeable that, even before the Commission can rule on the Applicants' Motion for Vacation of Stay, PSNH will have filed a voluntary Petition for Reorganization under the Federal Bankruptcy Act.
In that event, the commission will be faced with an unprecedented situation, with numerous questions, and which the Commission did not have to face in regard to the i
Shoreham low power authorization.
i Among the questions that will arise are the issue of whether or not'a' bankruptcy court would have to authorize a decision by h
either PSNH, as debtor in possession, or by a trustee, to undertake nuclear operation.
Under the Bankruptcy Code, a debtor in possession may certainly continue to engage in matters which are in the ordinary course of business, but undertaking to start nuclear fission operations at a nuclear plant is clearly not a decision in the ordinary course of business.
In addition, it is clear that nuclear operation, if it were
.not followed by commercial operation, may have the effect of rendering a major asset of the bankrupt a negative asset.
At least, it is SAPL's understanding, the initiation of the fission process would reduce the value of the fuel which otherwise might be sold for the benefit of the bankrupt estate.
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l Low power operation, by a bankrupt, if not eventually l
.followed by commercial operation, would create serious and l
unresolved problems as to who would bear the liability for costs I
associated with such operation, for any necessary decontamination i
I or shut down procedures should the facility not continue on to higher levels of power operation.
None of these questions have ever been addressed by the Commission, or by other public authorities which would have an appropriate concern about this i
matter, such as the rate setting authority in New Hampshire, the l
New Hampshire Public Utilities Commission.
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Unavailability of Siren Notification i
Under the Commission's rules, it is clear that a compliant notification system for the plume emergency planning zone is
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s required.
At the present time, the alerting
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l system for the city of Newburyport, the second largest community within the entire plume EPZ, has either been physically removed by removal of the poles and sirens, or disconnected.
The Applicants have fi. led an affidavit suggesting that they have an aircraft 1
which can be on stand-by duty in the city of Newburyport, but whether or not this aircraft could provide an adequate warning system in a city area, given the number of aircraft that may pass over the city ordinarily, given any possible minimum altitude restrictions that may apply, has not been established.
The existance of an operational alerting and warning system for the city of Newburyport is therefore, as a practical and legal matter, nonexistent.
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' In. addition, on October 7, the New Hampshire Supreme Court heard arguments on the appeal from a Superior Court decision made by a Justice of the Rockingham County Superior Court in New Hampshire which held that the sirens erected in two of the New Hampshire towns within the EPZ, Rye and Hampton Falls, was illegal because it was without statutory' authority. Should the decision of the Superior Court be upheld, the notification and alerting system 1
in those two communities will also be promptly removed.
In short, the requirements of regulations for having in place an alerting system have not been met, and no authorization to initiate nuclear operation should be given.
3.
The Plan Filed by the Utility on Behalf of Massachusetts Utilities is Not Bona Fide,.and Does Not Establish that Emergency Planning is Indeed Within the " Realm of the Possible, as Set Forth in CLI-87-02."
SAPL has been unable, on its own, to review the so-called utility plan submitted by the Applicants on September 18, due to the commitment to litigation on the New Hampshire Emergency Plans, but does commend to the Commission's attention the comments of the Town of Amesbury on the deficiencies in that plan, and in particular the fact that the-plan, in numerous cases, requires the utility-provide emergency vehicles, claimed to be available, go back toward the reactor to pick up citizens before exiting the
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zone.
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. 4.
Lack of a Valid Licensing Board Decision Authorizing Low Power Operation As pointed out by NECNP, the Appeal Board, in ALAB 875, issued on October 1, 1987, found the Licensing Board decision authorizing low power operation deficient in certain respects, and has remanded this matter to the Licensing Board for further consideration.
The Commission should not vacate the stay in view of the lack, at the present time, of a valid ASLB decision authorizing low power operation.
Although the Appeal Board appears to have allowed some leeway to the ASLB to consider whether or not it could reauthorize low power operation, notwith-standing the remand on certain issues, and after giving the parties an opportunity to comment on the issue, SAPL respectfully suggests that in view of the remand, as well as the other issues involved in this case, the commission in the exercise of pursuing a " sound policy," should maintain the stay on low power operation.
5.
No Reasonable Assurance from the New Hampshire Radiological Emergency Response Plan At the present time, litigation is on-going on the New Hampshire Radiological Emergency Response Plans for the approximately two-thirds of the plume EPZ which is in New Hampshire.
As to those plans, the Federal Emergency Management Agency has been unable to make a finding that they provide an adequate level of protection to the citizens within the EPZ.
FEMA's findings on the adequacy of emergency plans is, of course, entitled to particular weight, since under 50.47 (a) (2), it l
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constitutes a rebuttable presumption.
In the case of the Seabrook EPZ New Hampshire Plans, FEMA has stated its position that even if all other deficiencies found in the plans were corrected, it would still be unable to find that the plans provide adequate protection.
The FEMA statement of position is as follows:
"Therefore, using the standard guidance for the initiation and duration of radiological releases, and the current New l
Hampshire RERP including ETE, it appears that thousands of people could be unable to leave during an accident at Sea-brook 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 other inadequacies and deficiencies cited in the RAC Re-views of the New Hampshire Plans, and the review of the the exercise of the plans were to be corrected, FEMA 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 meet our regulatory standard that such plans ' adequately protect the public health and safety of thereby providing reasonable j
assurance that appropriate protective measures can be taken off-site in the even of a radiological emergency.'"
Respectfully submitted, 3
Seacoast Anti-Pollution League By its Attorneys BACKUS, MEYER & SOLOMON Dated: October 9, 1987 lUMLO C llW - c., /~~?g Robert A. Backus//
116 Lowell Street Manchester, NH 03105 603-668-7272
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CERTIFICATE OF GERVICE
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I hereby. certify-that a copy of the above and foregoing
- " Seacoast' Anti-Pollution League's Response to Applicants' i
Motion for vacation of Stay" was sent this date, first class mail,
' postage pr'epaid.to all the names on the attached service list and federal expressed to those name with an asterisk.
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Robert A. Backus 1
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MANCHESTER UNION LEADER OCTOBER 8, 1987 PSNH Defau t On Debt Looms By WENDY MITMAN operates commercially.
ed during the current rate in-CONCORD (AP) - Public Also on Wednesday, PUC crease hearings on an alterna-
' Service Co. of New Hampshire Chairman Vincent lacopino tive bailout plan.
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management will recornmend said the panel is considering The alternative plan was pro-to its board of directors that it broadening the scope of the posed by Consolidated Utilities default on a $37 million interest hearings by combining the rate and Communications Inc. of payment due next week, a utili-request with review of the debt New York, a consortium of:
ty official said yesterday.
restructuring plan which had bondholders which claims to been slated to begin on Oct.14.
own or control enough Public I
Charles Bayless, the compa-The commission then set a Service bonds to defeat the ny's financial vice president' Monday deadline for all parties company's debt restructuring told the New Hampshire Public in the case to submit comments plan. CUC has until Monday to Utilities Commission that the on consolidating the two issues. file tes'i nouy on its proposal.
board has the option of reject-The commission suggested CUC Chairman Martin Whit-ing the recommendation when combining the cases after PUC man told The Union Leader his it meets Tuesday.
staff lawyer Martin Rothfelder company now controls more Bayless offered no predic-said testimony may be present-PSNil Page 22 tions on creditors' reactions if
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the company dofaults on the Oct.15 payment. However, the company has said possible non-payment might prompt credi-tors to take the company to bankruptcy court.
The PUC is holding hearings on a 15 percent emergency rate hike request which the compa-ny says it needs to avoid filing for bankruptcy protection from its creditors. The utility also says it needs to restructure $1.1 billion of its debt to remain sol-
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vent.
The company is strapped by its $2.1 billion investment in the Seabrook nuclear plant. State flaw bars it from recovering for
. Its investment until the plant
t Commucajrom roge o than $175 million of a total of Bayless seid the company
$325 million in Public Service hasn't offered investors any mortgage bonds, or more than scen:rios of life under bank-50 percent of the company's ruptcy.
third. mortgage debt. When the "The bankritptcy of a public t.
CUC plan was luitially unveiled utility is so uncertain,,. we about three weeks ago, Whit can tell them options they may man said, the firm owned only have but I don't think anybody
$70 million of that category of knows what will happen...
bonds.
I've heard the whole gamut of In an interview, Whitman what may happen," he said, said PSNH's plan is " dead in "I
know from talking to the water. We have no intention creditor groups that they would of exchanging our bonds or let want to come in full steam and ting their plan go forward."
increase rates... I think you Third. mortgage bondholders would see a lot of pressure and could be key to the success of a lot less concern for the cus.
the company's proposal-16mers" under bankruptcy, he Public Service has already rejected CUC's bailout plan, said.
Bayless said the 15 percent saying the utility has little increase "is fairly naake or room to negotiate.
brea k."
Utility lawyer Martin Gross "You can take bites out of it said the company might run here and bites out ofit there but out of money in the time it every bite you take will add up takes regulators to consider the sooner or later," Bayless said.
CUC plan.
Also during Wednesday's "At.y effort to prolong these. hearings, Francis Jeffries, proceedings is an effort I have president and chief executive to be concerned about," Gross officer of Duff and Phelps Inc.,
said.
a Chicago. based investment re.
Consumer Advocate Michael search firm, said unless Public l Holmes countered that while Service gets the rate increase, "naste may help Mr. Gross and it will be out of money in De-his client... it certainly im. cember, even with strict cost-peri's the ratepayer."
cutting.
Iacopino said the commission Considering the CUC plan has to hear any information would take so long that Public that may help it decide both Service would still need the matters.
rate increase to survive, he The CUC plan would freeze said.
rates for three years and place Staff writer John Distaso j
Yublic Service's 36 percent in contributed to this report.
terest in Seabrook into a new,i separate company to help al-leviate the company's financial burden. CUC is also willing to invest as much as $100 million to reorganize the utility.
.CUC lawyer Elias Farrah j
said the group wants a witness l
to testify on the plan to elabo.
I rate on it and to clarify other witnesses' testimony.
Bayless said it's unclear whether the company's res-l tructuring plan will succeed without CUC support.
"We are actively looking at that to determine if we need the third. mortgage bondholders to go along.
obviously as u company we would have n lot I
more cash and would be a lot more comfortable if they did.
But we have not determined if it would be fatal to the plan if they did not," Bayless said.
The company is looking at a closing date for the plan of as i
late as April 1, "but certainly.
we would like to have it before that," he said.
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' CERTIFICATE OF SERVICE AND SERVICE' LIST-~
i Thomas Dignan, Esq. *
' Asst.Gn.Cnsl.
i
-Joseph ~ Flynndgmt. - Agcy.
Fed. Emerg, Ivan Smith-Ropes & Gray 500 C.St. So. West
. Atomic Safety & Lic Brd.
225 Franklin St.
Boston, MA 02110 Washington, DC 20472
.USNRC _
20555 Washington, DC.
Office of Selectmen Dr. Jerry Harbour l*
Docketing & Serv. Sec
' To@ of Hampton Falls Admin. Judge Of fice of the. Secreta:
Hamptu Falls, NH 03844 Atomic Safety & Lic Brd.
,USNRC USNRC-Washington, DC 20555 Washington, DC 20555
- Sherwin E. Turk,; Esq.- *'
Dr. Gustave' A. Linenberger
- Jane Doughty SAPL Office of Exec. Legl. Dr.
Admin Judge USNRC' Atomic Safety & Lic. Brd.
5 Market Street Washington, D.C.
20555 USNRC Portsmouth, NH 03801 Washington, DC. 20555 Phillip Ahrens, Esq.
Paul McEachern, Esq.-
Ceorge Dana Bisbee, Esq.
Asst. Atty. General Matthew Brock, Esq-Attorney Generalf s OF:
State' House, Sta. #6 25 Maplewood Ave.
State of New Hampshir.
Augusta, ME 04333 P.O. Box 360 Concord, NH 03301 Portsmouth, NH 03S01~
Carol Sneider, Esq., Asst.AG Diane Curran, Esq.
William S. Lord One Ashburton Place, Harmon, Weiss Board of Selectmen 19th Floor.
20001 S Street NW Suite 430 Town Hall-Friend St.
Boston,.MA. 02108 Washingcon, DC 20009
. Amesbury, MA 01913 Richard A. Hampe. Esq.
Maynard Young, Chaiman Sandra Ccvutis New Hampshire Civil Delense Board of Selectmen Town of Kensington Agency.
10 Central Road Box 1154 Hampe & McNicholas-Rye, NH 03870 East Kingston, N.H.
03E bnb N fd b3301' Edward Thomas Mr. Robert Harrison-Judith H. Minner, Esc.
Pres, & Chief Exec. Office Silverglate, Gertner,'.
FBIA Baker, Fine, Gcod & Mizner 442 J.W. McConmck (POCH)
PSCO 88 Broad Street Boston, MA 02109 P.O. Box 330 Manchester, NH 03105 j
Boston, MA 02110 l
Roberta Pevear l
l State Rep.-Town of Ha::pt Falls Drinkwater Road Hanpton Falls, NF 03844 Atomic Safety and Licensing Board Panel U.S. NRC Washington, D.C.
20555 I
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