ML20246E233
| ML20246E233 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 08/21/1989 |
| From: | Tompkins B NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| CON-#389-9073 ALAB-920, LBP-89-10, OL, NUDOCS 8908290043 | |
| Download: ML20246E233 (34) | |
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UNITED STATES OF AMERICA I'" -
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NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING Administrative Judges: crr. .
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Alan S. Rosenthal, Chairman -
AuguYt'. 21, 1989 Thomas S. Moore-Howard A. Wilber (AIAB-920)
In the Matter of 3 iSERVED AUG 211909
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.PUBLIC SERVICE COMPANY OF )
NEW HAMPSHIRE, ej; al. Docket Nos. 50-443-OL
) 50-444-OL (Seabrook Station, Units 1 ) (Offsite Emergency and 2) ) Planning Issues)
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John Traficente, Boston, Massachusetts (with whom Stephen A. Jonas, Boston, Massachusetts, was on the brief),
General of Massachusetts.for the intervenor James M. Shannon,' A
-Robert A. Backus, Manchester, New Hampshire, filed a brief for League. the intervenor Seacoast Anti-Pollution Thomas George G. H. Dignan, Jr., Boston, Massachusetts (with whom Lewald, Kathryn A. Selleck, Jeffrey P.
Trout, Jay Bradford Smith, Geoffrey C. Cook and ~
William Parker, Boston, Massachusetts, were on the brief),
New Hampshire, for the applicants et al. Public Service Company of Gregory Alan Berry for the Nuclear Regulatory Commisalon staff.
3 DECISION Before us are the appeals of the interveners Attorney General of Massachusetts and Seacoast Anti-Pollution League (SAPL) from the Licensing Board's March 8, 1989 memorandum and order in this operating license proceeding involving the 3!
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Seabrook nuclear facility.1 In that issuance, the Board- '- - - - - -
denied motions of the Attorney General and SAPL seek'ing-to? - -
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litigate the question of the Seabrook owners' financial ~
qualifications to operate the facility in a safe manner-in the event it receives a full-power license. --- -
More specifically, the Attorney General's motion requested a waiver, under 10 CFR 2.758, of the provisions of 10 CFR 50.33(f) and 50.57 (a) (4) , which, as amended in 1984, -
exempt an electric utility applicant for an operating license for a facility such as Seabrook from the general requirement that the financial qualifications to conduct -
safe operation be demonstrated.2 For its part, the SAPL motion, supported by the intervenor New England Coalition on Nuclear Pollution (Coalition), asserted that, insofar as operation under a full-power license is concerned, the Commission waived the application of the exemption last December in CLI-88-10 when it dealt with the financial qualifications issue in the context of a low power testing authorization.3 On this theory, SAPL simply requested the i
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49 Fed. Reg. 35,747, 35,752-53 (hereinafter referred to as the "1984 financial qualifications rule" or "1984 rule").
3 28 NRC 573 (1988), reconsideration denied, CLI-89-3, 29 NRC 234, and CLI-89-7, 29 NRC 395 (1989).
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acceptance of a late-filed contention to the effect that the applicants "have not demonstrated that they can provide j I
reasonable assurance that they either have or can obtain the necessary funds to safely operate the Seabrook plant."4 We determine first that, contrary to the position taken by the NRC staff in an April 17, 1989 motion to strike the notices of appeal, LBP-89-10 is appealable at this time insofar as it denied the Attorney General's waiver petition.
Because of its close relationship to this ruling, SAPL's challenge to LBP-89-10 now lies as well. Turning to the merits of the controversy, we reject the SAPL view respecting the effect of CLI-88-10 but conclude that that decision requires us to certify to the Commission the Attorney General's waiver petition.
I.
The question of the present appealability of LBP-89-10 is a close one. On the one hand, it is settled that, "[als a general matter, a licensing-board's action is final for appellate purposes where it either disposes of at least a major segment of the case or terminates a party's right to participate; rulings which do neither are interlocutory."5 j
[9APL's] Motion to Accept Late-Filed Contention i (January 25, 1989) at 8.
Toledo Edison Co. (Davis-Besse Nuclear Power (Footnote Continued) l m . m - -
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LBP-89-10 manifestly did not affect the right of either the Attorney General or SAPL to continue to participate in this operating license proceeding. And whether it can be said to dispose of a major (as. opposed to merely a discrete) portion of this operating license proceeding appears to be doubtful at best. The Licensing Board still has for decision a host of issues. To be sure, none of those issues is concerned with financial qualifications matters; rather, all are in the realm of the adequacy of emergency response planning.
But, standing alone, this consideration cannot serve to wrap the mantle of " major segment" around the unsuccessful endeavor of the Attorney General and SAPL to.put the financial status of the applicants in issue. Indeed, were it otherwise, it would perforce follow that immediate appealability would attach to the rejection at the threshold of any proffered contention that.had no relationship to matters previod' sly accepted for litigation. Nothing in our jurisprudence could possibly support such a result.
On the other hand, we were careful in Davis-Besse to cast the finality test announced therein in terms that made it a general, not an absolute, rule. And where the entitlement of a party to a waiver of a regulation is at (Footnote Continued)
Station), ALAB-300, 2 NRC 752, 758 (1975). With exceptions not applicable here, interlocutory appeals are prohibited.
See 10 CFR 2.730 (f) .
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- issue, we are satisfied that there is sufficient cause to f
avoid a slavish adherence to that test.
i To begin with, the procedure established by 10 CFR 2.758 for the consideration and disposition of waiver petitions is unique in many respects. It conveys the clear message that the Commission did not wish the treatment of waiver petitions to be controlled rigidly by the same rules that govern, for example, the handling on the trial and appellate level of contentions that are scrutinized for admissibility. Although the Licensing Board is usually the recipient of the waiver petition in the first instance, it is not empowered to grant it. Rather, the Board's role is confined to determining whether the petitioner has made a prima facie showing that "special circumstances with respect to the subject matter of the particular proceeding are such that application of the rule or regulation (or provision thereof) would not serve the purposes for which the rule or regulation was adopted."6 If, on the basis of the submissions before it, the Board concludes that such a showing has not been made, that is the end of the matter unless a different conclusion is reached on an appeal. If however, the Board finds that the requisite showing has been See 10 CFR 2.758 (b) .
See 10 CFR 2.75 8 (c) .
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6 made, its next step must be to certify the matter directly to the Commission. With or without the conduct of further proceedings to aid its determination, the Commission will thereupon decide for itself whether the requested waiver should be granted.8 In a real sense, then, section 2.758 creates a special procedure, separate from and ancillary to the basic licensing proceeding. That being so, it does no necessary violence to the fundamental concept of finality for appeal purposes to sanction an immediate appellate examination of a licensing board's disposition of a waiver petition filed under that section -- whether that examination is in the form of review by us of the denial of the petition or, instead, stems from a Board certification to the Commission that the prima facie showing of special circumstances has been made. And it seems to us that good sense dictates I that, irrespective of the determination arrived at by the licensing board in the particular case, all waiver questions {
i receive their definitive resolution at as early a date as I feasible. In the context of this case, we see nothing to commend an approach to appealability that would require the parties to wait until well after the ultimate initial decision on emergency response planning has issued to O
See 10 CFR 2.758 (d) .
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7 ascertain whether there should have been a' waiver-of the iinancial1 qualifications regulation in question.8 For these reasons, we entertain now the Attorney'
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General's appeal..from the. adverse Licensing Board action.on its:vaiver petition. As earlier seen,;SAPL did not file a lik . - - - - -- - - - - - - - - - - - - - - - - - - - - - - - - - - ^ " ^ - ^ - - - ~ -~^ - - - - - - ~ ^ - ' - - ~ ' ^ ^ ^ ^ ^ ^ ^ ' ^ ^ ~ ~ ~ ^ ^ ' ' ^ ^
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.s 21 an intent to file for a change in rate schedules and the !
statutory directive that any such change cannot take place for an additional 30 days after the filing has'been accomplished.40 Beyond that, the New Hampshire'Public Utilities Commission (PUC) is authorized to suspend the effectiveness of tariff changes during the pendency of an investigation.41 Although in the instance of a Seabrook rate case, such a suspension could extend for as much as 18 months,42 New Hampshire statutes establish procedures that may ameliorate the resultant regulatory delay. Under one such procedure, the utility may place the suspended new rate schedule in;effect six months after the originally proposed effective date by posting a bend to secure repayment to customers of any difference between revenues collected under that schedule and rates that'would have been collected under the rate _ schedule the Public Utilities Commission ultimately determines to be just and reasonable. 3 Under another procedure, the PUC may allow (but is not required by 40 See N.H. Code Admin. R. PUC 1603.02; N.H. Rev. Stat.
Ann. 378:3. -
4 See N.H. Rev. Stat. Ann. 378:6, I.
l . 42 See N.H. Rev. Stat. Ann. 378:6, II.
See N.H. Rev. Stat. Ann. 378:6, III.
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22 statute to do so) temporary rates to be in effect during the pendency of an investigation of a proposed rate increase.44 The foregoing makes it plain that, as a proxi' mate!"
result of the operation of the anti-CWIP stat'ute, an authorization of full-power operation is scarcely likely to be accompanied by'an immediate increase in revenues by reason oflthe receipt of such an authorization.45 There is, of course, no way of ascertaining at this juncture how long the " regulatory delay" might be. This will necessarily depend upon such factors as when (accepting New Hampshire counsel's reading of the anti-CWIP statute) the facility colmmences "providing net generation to the grid;" whether the Public Utilities Commission suspends the effectiveness of.the proposed tariff changes pending an investigation; and, if so, whether that Commission authorizes a temporary rate increase in the interim. But, whether the regulatory delay is relatively brief or extended, the fact remains that it is highly probable that, for some interval at least, Seabrook would be operating above the five percent level 44 See N.H. Rev. Stat. Ann. 378:27; Public Service Co.
of New Hampshire v. State, 102 N.H. 66, 150 A.2d 810 (1959).
The effect of the temporary rates upon the PUC's final disposition of the rate case is spelled out in N.H. Rev.
Stat. Ann. 378:29, 378:30.
45 But for the anti-CWIP statute, the Seabrook construction costs presumably would have long ago found their way into Public Service's rate base.
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23 (perhaps significantly so) with no additional revenues i flowing to Public Service attributable to the Seabrook facility itself.46 Applying CLI-88-10 to this factual setting, it is not difficult to conclude that the same "special circumstances" discerned there are equally present here: Public Service remains in a bankruptcy proceeding, the anti-CWIP statute will still have an effect upon the utility's revenues when and if a full-power authorization is forthcoming; and (insofar as we have been told) the Massachusetts Municipal Wholesale Electric Company, inter alia, continues to default on its project payments. Inasmuch as the Commission determined in CLI-88-10 that, in combination, the first two of those "special circumstances" undercut the rationale for the 1984 financial qualifications rule, we reach what the Commission deems to be the ultimate " critical issue": is there evidence of a significant safety problem warranting a 4
i wsiver of the 1984 rule?
l 40 As the Commission noted in CLI-86-10, it recognized in promulgating the 1984 rule that there "could be phase-ins and other such delays in recovery of costs of construction or operation, and that such delays did not upset the rationale that rate setting would provide adequate funds."
See supra p. 12. But, as we have also seen, the Public Service bankruptcy and the anti-CWIP statute were factorE that were not taken into account in the assessment in 1984 of the significance of regulatory delay.
4 See supra pp. 12-14.
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24 We have seen that in CLI-88-10 the Commission determined that the waiver petitions did not present a significant safety problem in the context of low-power operation. As the Commission implicitly acknowledged in confin' ag its determination to low-power operation, however, the reasons assigned for that conclusion do not have the same lack of significance for operation above the five-percent level. First, according to the Commission, the exclusive purpose of the agency's review of an applicant's financial qualifications is "to provide some added assurance i that a licensee would not, because of financial 4 I
difficulties, be under pressure to take some safety shortcuts."48 Although the Commission found that this safety purpose had no legitimacy for low-power operation I because low-powe.? testing generates no revenues to benefit !
plant owners, it acknowledged that "[s]hortcuts in safety at full power conceivably could avoid shutdowns or derating and thereby contribute to greater plant availability and revenue i from power sales."4 Here, the bankruptcy petition of Public Service (a situation that the Commission has stated i
" clearly signals that something very unusual and serious has '
occurred"), the continued effect of the New Hampshire l 48 28 NRC at 600.
49 Ibid.
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anti-CWIP statute, and the cess. cion of joint owner project
- payments in the context of full-power operation all go to- 3 thelheart of the purpose of a financial qualifications review --'i.e., safety.50 Nor can the safety rationale underlying the agency's financial qualifications review be dismissed. lightly. In adopting'the 1984 rule, while the Commission noted that a case might be made that there is no-connection.between-the agency's' financial review and safe
- plant operation, it specifically declined to foot the rule on such a' conclusion.51 Thereafter in 1987, because of this nexus between financial-health and safety, the Commission adopted a rule requiring all licensees to notify the agency upon the filing of bankruptcy petitions, and it specifically re'jected the suggestion that electric utility licensees should be exempt from the requirement.52 Thus, in the circumstances presented and under the Commission's analysis, operation above five-percent, unlike low-power test ng, potentially gives rise to a "significant safety problem" warranting waiver of the 1984 rule.
See id. at 598. -
51 49 Fed. Reg. at 35,751.
52 52 Fed. Reg. 1292-93 (1987). See also 10 CFR 50.71(b) (requiring annual financial reports and certified financial statements from commercial reactor licensees).
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26 Second, the Commission foand in CLI-88-10 that the shortfall of 3.5 million dollars needed to conduct low-power testing over a three-month period was.sufficiently small in relation to the amount already invested in Seabrook that it
" strain (ed] credibility" to suppose the applicants would jeopardize _their substantially greater investment _over such
, a sum. But, in contrast to the situation at-low power, given the amount of any shortage of funds for full-power operation caused by the cessation of project payments and the anti-CWIP statute (as well as the duration of time the plant may operate with such deficits at levels above low power), it is not incredulous that corner-cutting might take place.
Finally, the Commission concluded in CLI-88-10 that "the safety risks of low-power testing are low."54 In that regard, the Commission pointed to its recent rulemaking involving emergency planning and preparedness requirements for nuclear power fuel loading and low-power testing. In the Statement of Consideration accompanying the promulgation last September of amendments to 10 CFR 50.47 (d) , the Commission explicitly noted that, on a reexamination of the matter, it had " reaffirmed the safety conclusion that the i safety risk to the public from low power testing is 28 NRC at 600, 54 Ibid.
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.the justification for the section 50.47(d) amendments, the 3 Commission observed that "it is highly unlikely.that members of the general public would be exposed to dangerous. levels of radiation following an accident at low power. 56 Yet just the opposite potentiality'is associated with full-power operation.
In light of the foregoing considerations, we certify the Attorney General's waiver petition to the Commission j pursuant to 10 CFR 2.785(d). Under the analysis set forth in CLI-88-10, all of the elements for a rule waiver are met with respect to the public utility exemption of the 1.
financial qualifications regulations for full-power' operation. .The "special circumstances" found-to exist in CLI-88-10 are still present, and there:is no apparent reason l for a departure from the Commission's conclusion in that
. decision that the combination of two of those circumstances
-- the Public Service bankruptcy and'the anti-CWIP statute {
- l. -- undercuts the rationale for the 1984 financial qualifications rule.- Given these factors, and the obvious 55 53 Fed. Reg. 36,955, 36,956 (1988).
6 Id. at 36,959. Cf. Philadelphia Electric Co.
(LimericE Generating Station, Units 1 and 2), CLI-89-10, 30
! NRC , (July 7, 1989) (slip opinion at 7-8).
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s 28 safety differences between low-power testing and operation appreciably above the five-percent level, we feel constrained by the reasoning in CLI-88-10 to certify the Attorney General's waiver petition to the Commission.
There is an additional reason for sending this matter to the Commission. The Commission closed CLI-88-10 with a critical comment aimed at the staff's action in opposing any rule waiver, while simultaneously conducting an " informal" review to ensure there is reasonable assurance that Public Service has sufficient financial resources to' operate Seabrook saft ,. Relying on Union of Concerned Scientists
- v. NRC, the Commission admonished the staff that it "cannot have it both ways - it cannot advise the Commission that there are no grounds for a rule waiver, and at the same time conduct its informal licensing review as if a waiver was in fact needed."58 Although the staff tells us that it nevertheless may still informally investigate the financial condition of Public Service in order to determine if there is a financial problem,59 we think the court's holding in Union of Concerned Scientists and the 57 735 F.2d 1437 (D.C. Cir. 1984), cert. denied, 469 U.S. 1132 (1985).
58 CLI-88-10, 28 NhC at 602.
' App. Tr. 97-99.
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29 Commission's clear statement in CLI-88-10 are to the !{
contrary. In short, whether the financial qualifications of Public Service present a material licensing issue -- and thus are open to litigation by interested parties -- cannot be determined by the staff'c answer to the ultimate question whether Public Service is financially qualified to operate Seabrook safely, as the staff would have it. Indeed, if the financial _ qualifications of Public Service are to be reviewed by this agency at all, they can only be reviewed by granting the rule waiver, which, in turn, means that the parties must be afforded an opportunity for a hearing on that subject. Because, like the Commission, we believe the
" utility's bankruptcy clearly signals that something very unusual and serious has occurred," we think the unique circumstances under which the agency can review Public Service's financial condition thus provide an additional reason for certifying the Attorney General's waiver petition to the Commission.
The staff's motion to strike the notices of appeal is denied; the Licensing Board's denial in LBP-89-10, 29 NRC 297, of SAPL motion to reopen the record to accept a late-filed financial qualifications contention is affirmed; l and the Licensing Board's denial in LBP-89-10 of the Attorney General's motion seeking a waiver of the 1984 financial qualifications rule in the context of a full-power
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authorization is reversed, and the Attorney General's motion ----
.is certified to the Comunission.
It is so ORDERED. !
FOR THE APPEAL BOARD l
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J Barbara A. Tompkins Secretary to the 1
Appeal Board l
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UNITED STATES OF AMERICA NUCLEAR RESULATORi COMMISSION In the Matter of i 1 i
PUBLIC SERVICE COMPANY OF NEW i j Docket No.(s) 50-443/444-OL NAnF' SHIRE.- ET AL. 1 ___. _ 9 (Seacrook Station, Units l'and 2)
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i CERTIFICATE OF SERVICE
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.i I herecy certify that copies of the foregoing AB DECISION (ALAB-920) B/21/89 have been served upon the following persons by U.S. mail, first class except j
i as otherwise noted and in accordance with the requirements of 10 CFR Sec. 2.712. !
Administrative Judge
- Administrative Judge G. Paul Bollwerk, !!!, Chairsan Alan S. Rosenthal Atomic Safety and Licensing Appeal Atomic Safety and Licensino Appeal Board Board {
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission i
Washinoton, DC 20555 Washington, DC 20555 Adstnistrative Judge Howard A. Wilber Administrative Law Judge Atomic Safety and Licensing Appeal Ivan W. Smith, Chairman Board Atomic Safety and Licensino Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Cometssten Washington, DC 20555 Washington, DC 20555 {
Administrative Judge Administrative Judge Richard F. Cole Kenneth A. McCollom Atomte Safety and Licensing Board Atomic Safety and Licenstna Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatcry Commission Washtnoten, DC 20555 Washington, DC 20555
)
Administrative Judge Robert R. Pierce, Enoutre James H. Carcenter Atomic Safety and Licensing Board Alternate Technical Member U.5. Nuclear Regulatory Commission Atomic Safety and Licensino tearc Washinoton, DC 20555 U.S. Nuclear Reculatory Commission >
Washington, DC 00555 l Edwin J. Reis. Esq. Lisa B. Clark I
Office of the Beneral Counsel Attornev .
J . 2. :. . i w e r Eeuuisturv Cummtation Office of tne General Counsel Wasninoton, DC 20555 U.S. Nuclear Reculatory Commission Washinaton. DC 20505 l
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Docket No.(s)30-443/444-OL "~~ ~ '~ ' ~ ~ ~ ~
AB DECISION (ALAB-920F'S/21/89~ - .
Diane Curran. Esc. Thomas G. Dignan. Jr., Esc.
Harmon. Curran & Tousley Ropes & Gray 3
1 2001 S Street. N.W., Suite 430 One International Place Washington, DC 20009 Boston, MA 02110 Robert A. Backus._Esq. Paul McEachern Esa.
Backus, Meyer & Solomon Shaines & NcEachern 116 Lowell Street 25 Maplewood Avenue, P.O. Box 360 Manchester, NH 03106 Portsmouth, NH. 03801 1
Gary W. Holmes. Esq. Judith H. Mirner Holmes & Ells Silverglate, Gernter. Baker, Fine.
47 Winnacunnet Road Sood and Mit:ner Hampton, NH 03842 86 Broad Street Boston. MA 02110 Charles P. Graham, Esa. Jane Doherty McKay, Murphy and Graham Seacoast Anti-Pollution Leacus 100 Main Street 5 Market Street Amesbury, MA 01913 Portsmouth. NH 03801 Leonard Kopelman. Esc.
Ashed N. Amirtan. Esc. Kopelman and Paige, P.C.
-376 Main Street 77 Franklin Street Haverhill. MA 01830 Boston, MA 02110 George W. Watson, Esa. Edward A. Thomas Federal Emergency Management Agency Federal Emergency Management Acency 500 C Street. S.W. 442 J.W. McCormack (POCH)
Washington, DC 20472 Boston, MA 02109 George D. Bisbee, Esc. Paul A. Fritzsche, Esc.
Assistant Attorney General Office of the Public Advocate G4f3Le ut Utw mLturney seneral state House station 412 25 Capstol Street Aucusta. ME 04333 r.o n t a r d . NH 03301
Dccket No.(s)50-443/444-OL '
AB DECIS10N (ALAB-920) B/21/89 l
l Suzanne Bresseth John Traficente. Esc. I Board of Selectmen Chief. Nuclear Safety Unit Town of Hampton Falls Office of the Attorney General Drinkwater Road One Ashburton Place, 19th Floor Hampton Falls, NH 03B44 Boston, MA 02108 The Honorable Peter J. Brann, Esc. Edward J. Markey, Chairman Assistant Attorney General ATTN Linda Correia Office of the Attorney General Subcommittee on Energy Conservation and State House Station, #6 Power Augusta, ME 04333 House Committee on Energy and Commerce Washington, DC 20515 Richard A. Hampe, Esq. J. P. Nadeau Hampe & McNicholas Board of Selecteen
. 35 Pleasant Street 10 Central Street Concord, NH 03301 Rye, NH 03870 Allen Lampert William Armstrong Civil Defense Director Civil Defense Director Town of Brentwood Town of Exeter 20 Franklin Street 10 Front Street Exeter, NH 03833.
Exeter, NH 03833 Sandra Savutis, Chairman Calvin A. Canney Buard of Selectmen City Manager RFD #1 Box 1154 City Hall Kensington, NH 03S27 126 Daniel Street Fortsmouth. NH 03901 Anne Goodman. Chairman William S. Lord Board of Selectmen Board of Selectmen 13-15 fiewmarket Roao Town Hall - Frieno street Durham, NH 03B24 Amesbury. MA 01913 Peter J. Matthews Mayor of Newburyport H, Michael Santosuesso. Chairman
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coaro of selectmen Newburyport, MA 01950 South Hampton. NH 03627 e
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" Docket No.(s)50-443/444-OL.
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. AB DECISION (ALAB-920) B/21/69 e R. Scott Hill-Whilton,Escuire Stanley W. Knowlesi Chairman Lagoulls. Hill-Whilton & McGuire Board of Selectmen 79 State Street P.O. Box 710 Newburyport , MA 01950 North Hampton, NH 03862 Norman.C. Katner Sandra F. Mitchell Superintendent of Schools Civil Defense Director School Administrative Unit No. 21 Town of Kensington Alumni Drive .
Box 10 RR1 Hampton, NH~ '03B42 East Xingston, NH 03827 John F. Doherty Beverly Hollingworth
.1616 PLStreet, N.W. 209 Winnacunnet Road Washington, DC 20036 Hampton, NH 03842 The Honorable The Honorable Gordon J. Humphrey Nicholas Marvoules ATTN Janet Colt ATTN: Michael Greenstein United States Senate 70 Washington Street Washington, DC 20510 Sales, MA 01970 Dated at Rockville. Nd. this 21 day of August 1999 I Office o the Secretary of the Commission O
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