ML20199H045

Answer of Little Bay Power Corp to Motion of Ui for Leave to Intervene & Petition to Allow Intervention out-of-time.* Requests That Ui Petition to Intervene & for Hearing Be Denied for Reasons Stated.With Certificate of Svc

ML20199H045
Person / Time
Site:	Seabrook
Issue date:	01/21/1999
From:	Gaukler P AFFILIATION NOT ASSIGNED, SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
References
CON-#199-19927 LA, NUDOCS 9901250101
Download: ML20199H045 (31)

Text

- 01-21-9[06:27pm From- T-047 P 02 F-tS6

. January et, tyvy  ;

L DOCFElED UNITED STATES OF AMERICA USNRC NUCLEAR REGULATORY COMMISSION

?) JAN 22 P3 :18 l

In the Matter of )

)

O{

ADJ1: 'F 1 l NORTH ATLANTIC ENERGY SERVICE )

CORPORATION and ) Docket No. 50-443 MONTAUP ELECTRIC COMPANY ) j l

) (License No. NPF-86)

(Seabrook Station, Unit No.1) )

l )

ANSWER OF LITTLE BAY POWER CORPORATION TO MOTION 4 l

OF THE UNITED ILLUMINATING COMPANY FOR LEAVE TO INTERVENE, AND PETITION TO ALLOW INTERVENTION OUT-OF-TIME I. INTRODUCTION In a filing dated January 11,1999 - one week past the deadline for filing petitions for leave to intervene - the United Illuminating Company ("Ul") moved to intervene in the cap-tioned proceeding and petitioned to impose conditions on the license transfer.3 UI's petition was submined in response to the NRC's " Notice of Consideration of Approval of Transfer of Facility Operating License . . ." in the above docket published in the Federal Register on De- l cember 14,1998. That notice reflected the September 29,1998 request by Montaup Electric l Company ("Montaup"), a minority owner of approximately 2.9% of the Seabrook Station, i Unit No.1, and Little Bay Power Corporation ("Little Bay") for authorization to transfer Montaup's ownership and license interests in Seabrook to Little Bay. The Notice also identi-fled January 4,1999 as the date by which petitions for leave to intervene were due to be filed.

l ' jee Motion of the United Illuminating Company for Leave to Intervene and Petition to A!!ow Intenention l Out of Time, aatec January 11,1999 (heremafter -Petinon").

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. 9901250101 990121 DR ADOCK 050004 3 b3

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l UI's petitior* must be denied. First, the petition is unjustifiably late, for it was filed atter the deadline and UI has failed to establish good cause for its 1steness. U1 claims it was l l

under the mistaken impression that it had thirty days in which to file a petition, or until Janu-ary 13,1999, but in fact two senior officials of UI were advised by Nonh Atlantic Energy l Services Corporation ("Nonh Atlantic"), the operator of the Seabrook Station, as were the other Seabrook co-owners, that petitions for leave to intervene with respect to the Mon-taup/I.ittle Bay transfer w ere due January 4,1999, and not January 13,1999 as UI claims it mistakenly believed. In light of this actual notice - which occurred on December 16,1998 -

UI's claimed good cause is clearly non-existent and its petition for leave to intervene must be 1

dismissed for being unjustifiably late. )

l Additionally, as with the petition of New England Power Company ("NEP"), UI has not established standing in that the harm U! assens it will suffer is wholly conjecntral in na-ture. Nor has UI submitted a valid issue in accordance with Commission pleading require-ments. As Linie Bay demonstrates in this answer, UI's two proposed issues -like the those of NEP - should be dismissed for two reasons. First, Ul's proposed issues impermissibly attack Commission rules and regulations by advocating stricter requirements than those im-posed by its regulations. In reality, UI's petition is nothing more than a petition for rule-making, which is not allowed in this proceeding. Second, the petition fails to set fonh facts or expen opinion in suppon of UI s proposed issues, as required by Commission pleading requirements. Rather, UI's claims a e based instead wholly on speculation and conjecmre.2 6

3 As a result of these deficiencies, the petition also fails to proude infonnation to show that a genuine dispute exists on a material usae oflaw or fact relesant to whether the NRC shoold approve the uansfer. Since this de-ficiency is derhatis e of the two above we do not discuss dis usue separately.

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IL BACKGROUND By letter dated September 29,1998, North Atlantic transmined Montaup and Linle Bay's License Transfer Application requesting the Commission's consent to the transfer of Montaup's interest in the Operating License for Seabrook Station, Unit No. I to Little Bay.3 The transfer is being undertaken by Montaup as pan of the divestiture of all ofits generating assets pursuant to the restructuring of the electric utility industry in conformance with agreements with the regulatory authorities in Massachusens and Rhode Island.

l As pan of the agreement to sell its 2.9% ownership interest in Seabrook, Montaup will transfer to Little Bay its interest in the Seabrook Decommissioning Trust Fund and pre-i pay the balance ofits decommissioning obligation into the Seabrook Trust Fund such that the .

I total amount attributable to its 2.9% ownership interest at the time of closing will be $11.8 i million. License App. at 10. Assuming a 1.73% annual real rate of remrn on this $11.8 mil-lion (which is more conservative than the 2% real rate of retum allowed by the NRC under l

10 C.F.R. ( 50.75(e)(1)), this amount will grow by the year 2026 (the current expiration date l

of the Seabrook Operating License) to the amount required to decommission Montaup's 2.9% ownership share of Seabrook. ,l_d. d at Il-12. Such prepayment of decommissioning ob-ligations is specifically allowed for in the Commission's regulations.10 C.F.R. {

50.75(e)(1).

To demonstrate reasonable assurance of funds necessary to cover estimated operating 1

costs at Seabrook, Little Bay submitted estimates for total annual operating costs attributable

' License Transfer Application Requesting Consent for Transfer of Montaup Electric Company's Internt m Op.

erating License NPF-86 for Seabrook Station, Unit No. I to Lmle Bay Power Corporation (September 29,1998)

(hereinafter " License App "). Linie Bay is a wholly owned subsidiary of BayCorp Holdings, I.ta ("BayCorp).

w hich is the holding company that also owns Great Bay Pow er Corporation (" Great Bay"), which ou ns ap-proumately 12.1% of Seabrook, Unit 1.

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to Montaup's current 2.9% ownership share of Seabrook for the first fise years ofits owner-ship and the sources of funds to cover those costs, as called for by 10 CFR & 50.33(f)(2). Li-cense App. at 8-9.

There is no question that the September 29,1998 request for authorization meets the NRC requirements in 10 CFR f 50.75 and g 50.33(f)(2) concerning Little Bay's financial qualifications for decommissioning funding and operational costs attdbutable to its prospec-tive 2.9% ownership interest in Seabrook. Indeed, UI,like NEP, in effect concedes as much.

SS UI Petition at 4-6;Section V, VI.A, and VI.B infra.

l In fact, UI's true concerns, as articulated in its petition, is that Little Bay "will be an l l

[EWG), not an electric utility," and - unlike Montaup, which - as a rate regulated utility, has the right to recover its required (costs) through the rates it charges" - Linie Bay "will depend l

on market revenues from its share of the sale of power from Seabrook to cover its financial obligations." UI Petition at 3. The entire tenor of this argument - and indeed UI's petition as a whole -is that Little Bay is not financially qualified because it is not backed by state rate setting authorities. This argument, however, challenges the very premise underlying the re-structuring of the electric utility industry, which presumes the eventual demise of traditional cost-of service ratemaking. Moreover, its acceptance could essentially preclude nuclear plant owners from panicipating in such restructuring and directly undercut the restmeturing legislated by Massachusetts, Rhode Island and other New England states (including Con-necticut where UI operates). The Commission, of course, has determined after thoroughly considering the impact of restructuring on its financial qualification requirements that -its regulatory framework is generally sufficient, at this time, to address restructurings and reor-ganizations that will likely arise as a result of electric utility deregulation." See Final Policy 4

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1 Statement on the Restructuring and Economic Deregulation of the Electric Utility Industry, 62 Fed. Reg. 44,071,44,076 (1997).

Thus, the Commission should view askance UI's (as well as NEP's) attempt to im-l pose stricter requirements than those required by NRC regulations on the sale and transfer of nuclear power plant generating assets. Such additional requiremems would only serve to un-dermine the restructuring initiatives of the various states by annecessarily discouraging and )

l disrupting the sale or divestiture of nuclear generating assets by other utilities undertaking or ,

1 I

contemplating such restructuring.

III. APPLICABLE LEG AL STANDARDS Linle Bay has set forth the general legal requirements for standing and for the admis-sion ofissues under Subpart M in detail in Section III ofits response to NEP's petition to in-tervene and refers to that section ofits NEP pleading here.' As with respect to NEP's peti-tion, directly relevant to considering the admissibility of the proposed issues set fonh in UI's petition are the second requirement of 10 C.F.R. Q 2.1306(b)(2F which requires that issues ,

l be relevant to the findings the NRC must make to grant the application for license transfer" as that requirement relates to the general proscription barring challenges in license proceed-l 1

ings to established NRC rules and regulations - and the third criterion which requires a fac- i tual basis " facts or expert opinion"- for the admission ofissues.5 The generallegal re- I quirements for late-filed petitions, such as UI's, are set forth below.

• See Answertf Little Bay Power Corporanon to Motion of New England Pow er Company for Leave to inter- i vene. 4nd P(tition for Sumtnary Rehef or, m the Alternativc, for a Hearing, dated January 13,1999. Section til  !

(hereinafter -Little Bay Resp. to NEP").

l

' As noted carher, by urtue of challenging NRC regulations and failing to provide a factual basis, the U1 peti-tion uho fails to "[p3roude sufficient mformation to show that a genume dispute exists with the appheant on a material issue oflaw or fact" as required by 10 C F R. f 2.1306(bX2Xiv). Sg Florida Power and Light Com-pany (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-16,31 NRC 509,512,521 n.12 (1990) l 5 l

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01-21-99 06:28pm From- T-947 P07/32 0-656 IV. U1'S PETITION IS INEXCUSABLY LATE UI filed its petition on January 11,1999, one week after it was due. 63 Fed. Reg.

68,801,68,802 (1998). Thus, as a petitioner seeking to inters ene late, UI mun demonstrate, under the Commission's new Subpart M regulations," good cause for failure to file on time."

10 C.F.R. s 2.1308(b). "In reviewing untimely . . . petitions, the Commission will also con-sider:"

(1) The availability of other means by which the . . . peti-tioner's interest will be protected or represented by other par-ticipants in a hearing; and (2) The extent to which the issues will be broadened or final action on the application delayed.'

The December 14,1998 Federal Register " Notice of Consideration of Approval of

[Montaup/Little Bay) Transfer" clearly provided that:

By January 4,1999, any person whose interest may be affected by the Commission's action on the application may request a hearing and . . . may petition for leave to intervene in a hearing proceeding on the Commission's action.

63 Fed. Reg. at 68,802. UI claims that it was late because, despite this clear statement in the Federal Register, it "was under the mistaken impression" that it would have until 30 days af-ter the notice, or until January 13,1999, to file its petition and because it was preoccupied by "the press of year end activities and vacation schedules." UI Petition at 10. This showing is insufficient and UI's late-filed petition must be denied.

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• jd. These rcquirements are nearly identical to three of the factors considered when determining whether to admit late-file perinons under Subpart G of the Commission's rules of practice. Compare 10 C.F.R.11 2.714(a)(1)(i). (iv). and (4). Thus, Commission case law concemmg those late-films factors should apply to l

petitions under Subpan M as well. For example, heensing boards in Subpan 1. proceedings have tooked to Subpart G for guidance when determming the requirements for late filings. See Curators of the Univmity of Missouri, l.BP-91 31,34 NRC 29,12 I n.172 (1991); Babcock and Wilcox Company (Pennsylvania Nuclear Services Operanons Parks Township. Pennsyl ama).1.BP-951,4I NRC 1,5 A: n.3 (1995).

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The Commission's requirement to show good cause applies independent of how late a petition is filed and, indeed, petitions have been dismissed for being as few as eight and eleven days late absent an explanation of good cause. See Boston Edison Company (Pilgrim Nuclear Power Station), ALAB-816,22 NRC 461,468 & n.27 (1985); Houston Lighting and Power Company (Allens Creek Nuclear Generating Station, Unit 1), ALAB-574,11 NRC 7, i

12-13 (1980). Moreover, merely overlooking a Federal Register notice -in essence UI's i claimed good cause here - does not provide good cause for lateness. Long Island Lighting ,

i Company (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292,2 NRC 631,646-47

& n.18 (1975); see also Consolidated Edison Cornpany (Indian Point Station, Unit No. 2),

LBP-82-1,15 NRC 37,40 (1982)(" ignorance of the publication of the Federal Register no-tice does not constitute good cause").

Funher, in addition to official notice in the Federal Register notice, UI had actual n_o-tice of the correct due date. On December 16,1998, the Chief Nuclear Officer of North At-lantic forwarded by facsimile the Federal Register notice to each of the Chief Executises of the Seabrook co-owners expressly advising them in the cover letter that.

The notice provides interested parties until January 4,1999 to ,

request a hearing and file a petition to intervene on the license l transfer application.7 The fax cover sheet shows that the Federal Register and cover letter was faxed to Nathaniel i

D. Woodson, UI's Chief Executive, as well as to James F. Crowe, UI's Executive Vice l l

President. Thus, on December 16,1998 two senior officials of UI had been advised that  !

January 4,1999 - and not January 13,1999 - was the due date for the filing of petitions to

' !.ctter from Ted. C. Feigenbaum, Executive Vice President and Chief Nuclear Officer, Nonh Atlantic Energy Services Corp., to Chief Executives. Seabrook Joint Owners (December 16,1998)(emphasis added), attached as Exhibit t.

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. 01-21-99 86:29pm From- T-06 P09/32 s-E!B intersene. Such actual notice of the correct due date should hase clearly corrected any

" mistaken impression" on UI's part of any longer period for the filing ofits petition to inter-vene, and clearly deflates and negates any claimed good cause for its having missed the filing deadline. See Jamesport, ALAB-292,2 NRC at 633,646-47.

Under well established Commission precedent, absent a showing of good cause, a late-filing petitioner must make a compelling showing on the remaining factors in order for the Commission to admit the late filed petition." UI has not done so here. UI acknowledges that its proposed issues "are substantially the same as those raised by NEP," but claims that its imerests would not be protected unless it is permitted to intervene because it proposes dif-ferent remedies and its view of the New England electricity market differs "in some respect" from that of NEP. U1 Petition at 10-11. UI does not, howeser, identify how its views of the New England electricity market differs from those of NEP or how such difference would im-pair NEP's representation of UI's interests with respect to the proposed issues. Further, UI's proposed remedies do differ substantially from those proposed by NEP and could signifi-cantly broaden the issues in this proceeding, thus causing delay.

Thus, UI has not made a compelling case on the other factors to overcome its lack of good cause. Because UI's lateness is unjustified, its late-filed petition must be denied.

V. Ut LACKS STANDING TO RAISE ITS CLAIMS Like NEP's petition, UI's petition must be dismissed for lack of standing. Although U1 claims that it would be harmed as a result of the license transfer, the harm that UI alleges

• E3, Westint. house Electric Corporation (Nuclear Fuel Expon License for Czech Republic -Temelin Nuclear Power Plants). Cl.1-94-7. 39 NRC 322,329 (1994) 8 e

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01-8149 06:20pm From- T-C# P10/22 F-EH is merely speculative or conjectural as opposed to being imminent, particular and concrete."

U1 fears that Little Bay may be unable to pay plant operating and decommissioning costs.

Petition at 3-4. However, UI, like NEP, has done nothing more than to speculate that condi-tions in the New England electric power market make it difficuh to project Little Bay's fu-rure revenues, se_e UI Petition at 5 (discussed at Section VI.B infno; that decommissioning costs might be higher than now estimated, see UI Petition at 6 (discussed at Section VI.A, in- n fyra); and that Seabrook might shut down early because other nuclear plants in New England have shut down early and because of plans for construction of new power plants in New England. see U1 Petition at 5-6 (discussed at Sections VLA and B,infg). Contrary to Sub-part M's express requirements, U! provides no facts to support such conjecture or to show any hattn whatsoever that it may suffer. See 10 C.F.R. Q 2.1306(b)(3)(petitions must

"[s]pecify both the facts pertaining to the petitioner's interest and how the interest may be af-fected, with particular reference to the factors in y 2.1308(a)"); accord Nuclear Engineerina Company. Inc. (Sheffield. Illinois, Low Level Radioactive Waste Disposal Site), ALAB-473, 7 NRC 737, 743 (1978) ("[t]here must be a concrete demonstration that harm to the petitioner

. . . will or could flow from a result unfavorable to it . . "). UI has made no such " concrete ,

1 demonstration" here and thus lacks standing to intervene in this proceeding. I Moreover. UI's petition, like NEP's, is really premised on the argument that UI will suffer harm esen if Little Bay complies with all the appropriate license transfer regulations. )

l For example. UI expressly recognizes that five-year cost-revenue projections, such as those provided by Linic Bay, have been "used in some cases in the past" to establish financial l

l i ' Quivira Mining Company (Ambrosia Lake Facility, Grams, New Meuco), C1.1-98 11,48 NRC 1,6 (1998);

, Imemarional Uranium (USA) Corporation (White Mesa Uranium Mill). CLI-98-6,47 NRC 116,117 (1998).

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01-21-98 CB:2Som From- T-047 P 114 2 F-E!E qualifications under-the NRC's regulations. UI Petition at 5-6. Similarly, UI fails to identify any aspect in which the decommissioning prefunding that is being provided as part of the li-cense transfer fails to meet the NRC's regulatory requirements for such prefunding.1.d. At 6; see.also Sections VI and VII infra. Failing to even assen that Little Bay's application is in-adequate under the Commission's regulations, UI certainly has not demonstrated a legally recognized injury sufficient to establish its standing in this proceeding. See Luian v. Defend-ers of Wildlife, 504 U.S. 555, 560 (1992) (injury in fact must involve the " invasion of a le-gally protected interest").

1 Further, the NRC has already recognized in the notice of opportunity for a hearing that "[t]he proposed transfer does not involve a change in the rights, obligations, or interests of the other co-owners of the Seabrook Station." 63 Fed. Reg. at 6g,802. As set forth in the Seabrook Joint Ownership Agreement, the obligations of thejoint owners are several and notjoint," so UI cannot incur any liability from Little Bay as a result of this transaction.'O in short, UI's claim that it will suffer harm from the granting of this license transfer is purely hypothetical at best and does not suffice to establish UI's standing in this proceeding.

VI. UI'S ISSUES AND SUPPORTING BASES FAIL TO MEET NRC PLEADING REQUIREMENTS UI's petition aniculates two concerns" which presumably UI seeks to raise as issues in accordance with the requirements of10 C.F.R. f 2.1306. These are:

1. "the ability of Little Bay to cover its share of expenses for the ongoing operation of Seabrook, including operating expenses and capital

. costs," and

2. %e adequacy of the provision for funding Montaup's share of decommissioning costs for Seabrook."

d h Agreement for Jomt Ownership, Construction and Operation of New Hampshire Nuclear Units (May 1, 1973), j 6.1.

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, T-047 P12/38 F-E!6 UI Petition at 4. Rese concems, howes er, are no more than a broad restatement of the Commission regulatory requirements and do not provide a concise statement of the issues which UI seeks to raise. UI does go on in its petition to raise vague, generalized claims - un-supported by any affidavit providing facts or expert opinion - concerning the adequacy of the decommissioning prefunding and Little Bay's five-year cost-revenue projections. UI's claims with respect to each must be dismissed, however, for improperly challenging NRC regulatory requirements and for lack of adequate factual basis."

A. Alleged Inadequacy of Decommissioning Funding U1 expresses essemially the same concems as NEP, that the decommissioning pre-funding may be inadequate (1)"[i]f the estimated cost for decommissioning . . is lower than what the projection realistically should be," and (2) -[i]f premsture closure of Seabrook were to occur." UI Petition at 6. UI's issue must be dismissed for the same rea;ons as NEP's, be-cause it constitutes an impermissible collateral attack on the NRC's prefunding decommis-sioning regulations and because Ul provides no factual basis to support its position.

1. Impermissible Challenge to NRC Regulations UI's claim that prefunding may be an insufficient means to meet Little Bay's de-commissioning obligations is a direct challenge to the decommissioning funding require-ments the NRC has imposed on non-rate regulated licensees to ensure adequate funding.

Compare 10 C.F.R. Q 50.75(e)(1)(i) with 10 C.F.R. ( 50.75(e)(1)(ii) (extemal sinking fund available only to licensees with guaranteed income streams). The NRC's decommissioning

" in snowing that UI has failed to provide a factual basis for as claims. Linie Bay demonstrates mat Ul's peti-tion fails to provide facts or expert opinion to support its clatmr as required under the Commission's standards for the pleading ofissues or contentions. Linie Bay has not come fonh unh facts outside of the Application to oppose UI's sague, generalized claims for such is not relevant in determming whether UI has met us wholly m.

dependent burden under the Commission's rules of submming a valid issue or contention for litigation. w hich precedes any obligation or burden on Linie Bay to come foraard wnh facts beyond those in the Apphcation.

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01-21-19 E6:30pm from- T-047 P.13/32 F-656 regulations identify the minimum amount of decommissioning funding required to show rea-sonable assurance that sufficient funds will be as ailable for decommissioning,10 C.F.R. {s 50.75(b)(3) and (c), and expressly provide that prepayment is one of the " acceptable" meth-ods of providing this funding,10 C.F.R. Q6 50.75(b)(3) and (e)(1)(i).i2 U1 identifies p_o re-spect in which the prepay ment here fails to meet any of the NRC's regulatory provisions providing for the prepayment of decommissioning funds, nor does it even make such a claim.

Instead, UI merely speculates that the prefunding may be inadequate because 'The es-timated cost for decommissioning" might be " lower than what the projection realistically 1

should be" and bceause Seabrook might close prematurely. UI Petition at 6. Wholly apart from the complete lack of factual basis, discussed infra, LTs speculation of greater prefund-i ing needs is a direct challenge to the Commission's prefunding requirements - which UI does i not dispute are met here - and the genetic determinations made by the NRC in their promul-  !

gation. The NRC includes a 25% contingency factor in its baseline decommissioning cost estimate which underlies its minimum formula amount in 10 C.F.R. Q 50.75(c) in order to ac-count for uncenainty and unforeseen changes in decommissioning costs." The NRC also re-quires its licensees to adjust their decommissioning cost estimates annually and to file bien-nial repons with the NRC to show that their plant decommissioning funds are likely to be suuicient at the time of decommissioning.10 C.F.R. 66 50.75(b) and (f)(1). Thus, the d As noted by Little Bey in its response to the NEP petition, prefunding has long been recognized by the Com-mission as a more stringent requirement than setting aside monies over time from ratepayers of regulated elec-rne unlities. See Linle Bay Resp. to NEP at 13 n.12.

d See Repon on Wasic Disposal Charges, Changes in Decommissioning Waste Disposal Costs at Low Level Waste Bunal facilities NUREG-1307, Rev. 8 (December 1998) at 4 Table 3.1. This table reflects that e 25%

contmgency ts included in the January 1986 costs of $105 (for the reference PWR) and 5135 (for the reference BWR) set fonh in the regulanons at to C F.R. I 50.75(c) 12

al-21-99 06:30pm From- 7.c47 p14/32 F-E!E Commission specifically took into account the potential that decommissioning cost estimates could change in promulgating its decommissioning prefunding requirements.

The NRC also specifically considered the possibility that power plants might shut down early when it promulgated its new decommissioning funding regulations. 62 Fed. Reg.

47,588,47,591-92 (1997)(Financial Assurance Requirements for Decommissioning Nuclear Power Reactors, Proposed Rule). The Commission rejected a proposed alternative requiring accelerated funding for utility licensees to cover the possibility of early shutdown, but stated that non-rate regulated licensees would, in effect,"have to ' accelerate' funding by getting

• up-front' forms of Tmancial assurance," such as prepayment (which is the ultimate accelera-tion) or some type of surety or guarantee. Id. at 47,592." The Commission was also aware that some plants had not operated for their full 40-year license terms but nonetheless thought its current regulations governing plant shutdowns,10 C.F.R. } 50.82,"[ struck] the best bal-ance between the level of assurance and cost." Id. Thus, under the regulations, the possibil-ity of early shutdown is adequately addressed by non-rate regulated licensees providing up-front decommissioning funding, such as that provided by Montaap and Little Bay here."

In short. U1 seeks to impose stricter requirements than those required by the NRC's ,

regulations and therefore its proposed issue must be dismissed as an impermissible collateral I

" See also 63 Fed. Reg. 50,465,50,470 (1998)(Financial Assurance Requirements for Decommissioning Nu-clear Power Reactors, Final Rule)(re)cetmg requinng accelerated funding for all plants . . . to cover the possi.

bility of premature shutdown at some plants")

" As discussed in Linle Bay's response to the NEP pention, the regulations put non-rate regulated licensees, f

like Lmle Bay, which have prepaid their decommissioning obligations, m a stronger position regarding potential early shutdown than rate regulated licensees making anm.al deposits into an external smkmg fund. M Little Bay Resp. to NEP at 15.

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l attack on the Commission's decommissioning prefunding regulations and the generic deter-minations and Commission policy judgments underlying them."

2. Lack of Factual Basis under 10 C.F.R. 6 2.1306(b)(2)(iii)

This issue must also be dismissed for lack of factual basis. As set forth in Little  ;

Bay s response to NEP, for a petitioner's challenge to a licensee's decommissioning cost es-l timate to be admissible, the petitioner must not only provide a factual basis to challenge the l adequacy of the estimate, but a suHicient factual basis to claim as well that there is no rea-  !

sonable assurance that the amount will be paid." Here, UI,like NEP, has done neither.

Indeed, UI does not even challenge the adequacy of the decommissioning cost esti-mate. Although it claims that the amount of the proposed deposit by Montaup into the Trust Fund needs to be explored carefully," its claimed basis for such a need is simply that:

If the estimated cost for decommissioning used as a basis for calculating the deposit is lower than what the projection realis-tically should be, then the deposit amount will be too low.

UI Petition at 6 (emphasis added). Nowhere does UI claim that the estimated cost for de-commissioning used as a basis for calculating the prepayment "is lower than what the pro- i jection realistically should be."I' Nor does Ul provide any facts to suggest that the cost esti-mate is in any respect too low. Not a shred of factual or expert opinion support - none -is

See legal authority discussed in Little Bay's response to NEP's petition, Section !!.B.! at 6-8.

Se_e Little Bay Resp. to NEP at 15,gimg Yankee Atomic Enern Company (Yankee Nuclear Power Station).

CL1-96-1,43 NRC 1,9 (1996) and Yankee Atomic Energy Company (Yankee Nuclear Power Station), CLI 7,43 NRC 235,260 (1996).

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As noted in Little Bay's response to NEP, the proposed decommissioning prefunding level is keyed to the current decommissioning cost estimate for Seabrook of $489 million based on the NRC's cost fonnula set forth m the regulations.10 C.F R. ( 50.75(c). See Little Bay Resp. to NEP at 16 n.16 14 1

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prosided anywhere for UI's conjecture. Indeed, to the contrary, the prefunding commitment in the Montaup/Little Bay transaction is highly conservative."

Nor has U1 provided any factual basis to claim a lack of reasonable assurance that t

Linie Bay would not pay any shortfall should the current estimate prove low at some later date. Little Bay has conunitted that it will, in accordance with NRC requirements, annually conduct a 'prefunding ime-up' review under which it will review the sufficiency of accumulated funds (the initial 511,800,000 and subsequent eamings) to cover i

decommissioning funding requirements for its prospective 2.9% ownership interest in l Seabrook (assuming a 2% real camings rate) and will deposit, if necessary, additional funds l in the Seabrook Decommissioning Trust as required to maintain the prefunded status ofits decommissioning obligation." License App. at 13 n. 20. UI's petition does not even acknowledge this commitment, much less proside any factual basis to dispute its adequacy to coser any shonfalls. In short, UI's claimed inadequacy of using the current cost estimate as a basis for prepay ment is utter cpeculation - totally devoid of any factual basis - that does not begin to approach the Commission's standard for challenging decommissioning funding estimates. See Yankee Nuclear, CL1-96-1,43 NRC at 9; Yankee Nuclear, CLI 96-7,43 NRC at 260,267. Hence this issue is patently inadmissible.

UI's speculation that Seabrook might shut down early is also totally devoid of any factual basis. H notes the " premature shutdown of a number of reactors" and assens that there is a " difficult climate for nuclear power in New England." UI Petition at 6. But UI

• As noted above, the NRC includes a 25% contmgency factor m its baselme decommissionmg cost esumate to account for uncenamry and unforeseen changes in costs. Ul presents no facts to suggest that this contingency may be msafficient to cover any changes in the decommissioning costs for Seabrook. Moreover,just last month, the NRC issued a revision to NUREG 1307 showmg that the cost for low level waste cisposal might be decreased substantially for a plant the sire of Seabrook. he Lmle Bay Resp. to NEP at 4 n.4.

15

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presents no facts or expen opinion conceming Seabrook to suggest that it will shut down early. U1 also presents p_o facts or expen opinion to support its assertion of a " difficult cli-mate for nuclear power in New England," or elsewhere.2" Its argument about new power plants potentially displacing Seabrook capacity, id; at 5, is also merely unsupported conjec-l ture. See Section VI.B.2. Thus, LTs claim is purely conjectural and it must be dismissed.

See Yankee Nuclear, CLI-96-7,43 NRC at 267.

Funhermore, UI's surmise that Little Bay would be unable to meet its decommis-sioning funding obligations if Seabrook were to shut down prior to 2026 is also pure conjec-ture and :is simply wrong. At the outset, UI's cidm that the $11.8 million prepayment is based on the assumption that Seabrook must remain operational until 2026 in order to pro-vide sufficiem decommissioning funding is erroneous, for the $11.8 million prepayment is purposefully conservative compared to NRC requirements.'3 Moreover, even if Seabrook were to shut down early, decommissioning need not commence at that time,:2 and the de-commissioning fund could continue to grow and -without any additional payment - be avail-able to hilly cover Little Bay's share for any decommissioning that takes place after 2026. In this regard, the NRC regulations expressly r.llow a credit for projected eamings using a 2%

annual real rate of return "through the projected decommissioning period." 10 C.F.R. 6 50.75(c)(1)(i). Hence, UI's claim that Little Bay might not meet its decommissioning fund-ao As an aside, Little Bay notes that Boston Edison hasjust recently entered into a :ransaction providing for the sale of the Pilgrim Station, which is a significantly smaller and older plant than Seabrook. Further, as noted in Little Bay's response to NEP, tive other nuclear units have already applied for license extensions and others are preparing such applications. See Linie Bay Resp. to NEP at 17 n.17.

2' See Linie Bay Resp. to NEP at 13 n.13. Thus, this claim must also be dismissed because it does not accu-

rately address" the application. Sec ce Carolina Power & Light Company (Shenron Harris Nuclear Pow er Plant, l Units I and 2), LBP-82-Il9A.16 NRC 2069,2082 (1982).

22 Decommissionmg must be completed within 60 years of permanent shutdown. R, by 2059 if Seabrook were to shut down today.10 C.F.R. y 50.82(aX3).

(

16 1

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, 01-31-93 C6:31pm Frog- T-06 P18/32 0-355 1

ing obligations - despite its full compliance with NRC regulations -is based on utter specu-lation and must be dismissed.

B. Alleged loadequacy of Financial Qualifications for Operations UI claims that Little Bay's demonstration of financial qualitications for operations i i

based on five-year cost-revenue projections is inadequate because of alleged new generation  !

capacity being planned for the New England area and the potential for a prolong shutdown of  !

l the Seabrook, Linie Bay's sole asset. Like UI's decommissioning claims, this issue must l 1

also be dismissed as an impermissible challenge to NRC regulations and for lack of a sup-

! poning factual basis.

1. Impermissible Challenge to NRC Regulations  !

1 In the September 29,1998 Application, Little Bay set forth the expenses associated with its prospective 2.9% ownership interest in Seabrook for the first five years ofits owner-ship and further identified the sources of revenues that would be used to cover these costs.

License App. at 8-9. This showing was made in accordance with the express provision of 10 C.F.R. 6 50.33(f)(2), which provides that an " applicant shall submit estimates for total annual i

operating costs for each of the first five years of operation of the facility [and] shall also indi-cate the source (s) of funds to cover these costs." )

UI readily acknowledges that "such projections have been used in some cases in the l l

1 past" to show financial qualifications. UI Petition at 5. But despite their acceptability under NRC regulations, UI goes on to claim that such a showing is not sufficient here. Ld. at 4-6.

Therefore, like UI's proposed issue on decommissioning funding, this issue must also be l dismissed as an impermissible collateral attack on Commission regulations for advocating I stricter requirements than those imposed by the regulations.

l .7 i

-.- . - . . . - . . . - - _ . . -.~.-.. -.--_. .-. - . - -- - - . - . ._-.- ._ --

01-21-99 86:32pm stos-

, T-C47 P 19/32 F-t!6 l Specifically,.the regulations, as reflected above, expressly provide for non-electric utility applicants to establish financial qualifications by five-year cost and revenue projections, such as those provided here by Little Bay. His interpretation of the regulations is confirmed by the NRC's recently approved Standard Review Plan. See Little Bay Resp. to NEP at 20 n.23. It is further confirmed by NRC precedent, specifically with respect to Great Bay, where the NRC found that resenue from the sale of electricity from Seabrook alone would be sufficient to cover its operating costs:

. Great Bay is required to meet the existing financial qualifica-tions review requirements of 10 CFR 50.33(f)(2). This section requires that "the applicant shall submit estimates for the first five years of operation of the facility. The applicant shall also indicate the source (s) of funds to cover these costs." Seabrook has an established operating histoIY and associated costs that '

are now a matter of record. Based on a review of Great Bay's current financial statements submitted with its May 8,1996, submittal, and supplemental projections submitted on October 18,1996, the staff has concluded that Great Bay has complied with the essential requirement of the existing standard, which is to demonstrate reasonable assurance of obtaimag its share of Seabrook operating costs. Great Bay has projected operating income and cash flow based on what appear to be reasonable projections of the spot market orice of and demand for power from Seabrook for the foreseeable future . . . . Thus. Great Bay has demonstrated that it possesses or has reasonable assurance _

of obtamme the funds necessary to cover estimated operation .

l costs for the priod of the license as required by 10 CFR '

50.33(f)(2).2 I

3' North Atleritic Energy Services Corporation and Great Bay Power Corporation (Seabrook Station, Unit No.

1). Docket No. 50-443, Exemption Order at 3-4 (January 22,1997),62 fed. Reg. 5,492,5,493 (1997)(emphasis added); see also North Atlantic Enern Services Corporation and Great Bay Power Corporation (Seabrook Sta-tion, Unit No 1), Docket No. 50-443, Exempnon order at 5 (July 23,1997),62 Fed. Reg. 40,549,40,5$0 (1997). The NRC considered the financial quahfications of Great Bay because it initially determmed for the first time m evaluating the application for establishing a holding company that Great Bay was not an electric utihty.

18

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7 y m, m , y,_ e-- . ,,- - - - - - -i -- - __- _ - _ _ _ _

01-21-99 CB:32pm From- T-CH P20/02 F-ESE l

l Thus, NRC regulations, guidelines and practice all point to the fact that cost and revenue projections such as those provided by Little Bay, relying solely on revenue from Seabrook, are sufficient to establish financial qualifications for operations.24 Indeed, Linie

! Bay's ongoing financial costs will be less than Great Bay's, in that Little Bay will have l

l prefunded its decommissioning costs. Therefore, U1's challenge to the adequacy of Little Bay's demonstration of financial qualifications in accordance with the NRC's financial assurance standards - on the basis of speculation that Seabrook might suffer a prolonged shutdown or that Seabrook's electrical generation might be displaced by unspecified, yet to be constructed power plants - is an impermissible collateral attack on NRC regulations, contrary to well-established NRC precedent. See Little Bay Resp. to NEP at Section Ill.B.l.

2. Lack of Factual Basis under 10 C.F.R. { 2.1306(bX2)(iii) l As with its claims regarding decommissioning funding, UI again provides nothing l

l more than pure speculation to support its claim that Linie Bay's showing of financial qualifi-cations for operations is inadequate. UI claims that the " power situation in New England currently is in a state of great flux;" that developers plan to build 30,000 MW of new electri-cal capacity; and that therefore "the five-> ear revenue projections made by Little Bay are, or may be, highly uncertain." UI Petition at 5. Ul, however, provides no facts or expen opinion l

to support its claim. UI refers to new power plants under consideration for the New England area but it provides no facts or information to show that these potential new units would ad-versely affect the capability of Little Bay to recover its costs of generating Seabrook power i

through the sale of that power. See UI Petition at 4-6. For example, UI provides no fact or 2* As noted in Section 11. supra, the Comrnission has specifically determined that its regulatory framework is 1 generally sufficient, at this time, to address restrucninngs and reorganizarlons that will likely arise as a resuh of electric utihty deregulation."

I 19 l __

, 01-21-59 C6:32pm From- T-047 P21/32 F-t!E l .

l expert opinion to show to what extent such units will be constructed and, to the extent con-structed, whether they would displace electrical generation by Seabrook. See also New England Power Pool. 85 FERC tj 61,141,61,551 (1998) (it is unlikely that all such projects "wil be constructed").

More specifically, U1 does not claim - much less provide any supponing facts or ex-pen opinion - that electricity from Seabrook would be more expensise than that from r.ny such new capacity, or, even if more expensive, that generation from Seabrook would thereby be displaced by such new generation. Ul provides absolutely n_o infonnation conceming Se-abrook's costs of generating power (of which Ul, like NEP, is cenainly aware), how Se-abrook's costs compare to the costs of other existing New England generating resources (on which UI cenainly has information), or the estimated costs of the new generation sources un-der consideration (on which U1 cenainly has at least some representative information). In fact, as UI well knows, the cost of generating power at Seabrook compares very favorably with the operating costs of generating electricity from other sources of energy, such as coal, oil and natural gas, and indeed other nuclear units.

Finally. UI provides no facts to indicate that Seabrook is likely to suffer a " prolonged shutdown." UI merely assens that "[t]he history at some [ unspecified) nuclear plants demon-strates that a lengthy shutdown . . . is not out of the question." U1 Petition at 5-6. If a peti-tioner contends that an application is inadequate on the basis of an analogy between the ap-plicant's facility and a proposed benchmark facility, the petitioner must establish that the benchmark is valid to show that the analogy raises a genuine dispute on a material issue of fact with the applicant. Yankee Atomic Electric Company (Yankee Nuclear Power Station),

LBP-96-15,44 NRC 8,32 (1996); yankee a Nuclear, CLI-96-7,43 NRC at 267 (petitioner 20 .

01-21-fa 8E:3!pm F roy T-Cdf P22/83 F-E!!

must show logical relationship" with alleged analogy). U1 has done nothing of the son here.

UI provides no facts about the plants that suffered prolonged shutdowns to indicate why they did -indeed, U2 does not even name the plants - and no facts to indicate that Seabrook is likely to suffer such a shutdown. UI Petition at 5-6. Thus, the Commission must reject this claim as completely unsupponed.

In shon, UI's claimed inadequacy of the cost-revenue projections provided by Little Bay with its Application is totally devoid of supporting facts or expen opinion. Thus, the petidon is deficient, and must be dismissed based on the precedent holding that such specu-lative and conclusory allegations cannot support a contention. Sy Yankee Nuclear, CLI 96-7,43 NRC at 267; Private Fuel Storage. L.L.C. (Independent Spent Fuel Storage Installa-tion), LBP-98-7,47 NRC 142,180-81 (1998).25 VII. Ul'S PROPOSED REMEDIES MUST BE REJECTED In addition to petitioning for leave to inters ene - for which, as shown above, there is no basis - U1 asks the Commission to impose "temedies in the form of the following condi-tions on the transfer of the license from Montaup to Little Bay:

1. BayCorp Holdings would be required to build a cash reserve sufficient to sustain a one year shutdown of the plant. Because of the interrela-tionship of Little Bay and Great Bay, such reserve would be required i to cover both the exiting ownership by Great Bay and the Montaup i share to be acquired by Little Bay.

2. BayCorp Holdings would not be permitted to withdraw cash from Lit-tie Bay or Great Bay for the purposes other than supporting its obliga-1

1. Moreover, the mere citanon of an alleged factual bans m the petition (planned new capacity and shardowns at other plants) does not suffice. The perinoner must provide information and analyses to show why its bases sup- ,

pon its contention, which UI has completely failed to do. Georgia institute of Technology (Georgia Tech Re-search Reactor, Atlanta, Georgia) LBP 95-u,41 NRC 281,284, sacuted m part and remanded on other grounds, CLI 9510,42 NRC 1, aft'd in part, CLI 95-12,42 NRC 111 (1995); Pnvate fuel Storage. LBP-98 7, 47 NRC at 181.

21

01-21-63 CE:33pm From- T-C47 P23/32 F-t!!

i tions involvmg Seabrook until the cash reserve referred to in (1) above is met.

3. BayCorp Holdings would not be permitted to acquire any additional Seabrook ownership until its cash reserve is sufficient to support any incremental purchases, using the one-year criteria and until legislation is adopted in New Hampshire removing any exposure of other Se-

! abrook owners from a default by Great Bay or Linie Bay.

4. Great Bay and Little Bay would be required to obtain and maintain business interruption insurance for their ow nership interest in Se-abrook.

UI Petition at 7-8. UI's request for relief must be dismissed as a premature request for the Commission to impose license conditions. It is based on the presumption that U1 will pre-vail on its request for hearing and the admission ofits two propo:,cd inues - notwithstanding the numerous bars and deficiencies delineated abov e - as well as prevail on the merits at any subsequent hearing. Moreover, there is no basis for the granting of such relief and the Com-mission should deny it outright."

Indeed, UI suggests no legal or regulatory basis for its request, and there is none. In effect, through its operating cost prefunding" remedy, UI is looking for an ironclad guaran-tee of Little Bay's funding ofits prospective financial obligations for the Seabrook plant.

See UI Petition at 4. However, the NRC regulation requiring reasonable assurance of de-commissioning funds "does not contemplate" an ' ironclad" or " absolute guarantee of such funds." Yankee Nuclear, CLI-96-7,43 NRC at 262. Rather, the regulation was intended only to require reasonable assurance of funds for decommissioning.'" Id.d (emphasis in original). Similarly, the showing required for establishing financial qualifications under 10 2* In fact, Great Buy has business interruption insurance through Nuclear Electric insurance Limited to protect agamst protracted unscheduled outages of Seabrook. It provides weekly coverage of $520,000 in the esent of an octage of more than 23 weeks for up to 135 wreL1 of outage nme. Newertheless, such is not required by NRC regulations.

! 22

01-31-ti C6:33pm Frog-T- N P 2u32 F-ESE l

C.FA s 50.33(f) is one of" reasonable assurance," not " absolute cenainty" or assurance "be- l l

l yond doubt." Indeed, as shown above, under nearly identical circumstances, the Commis-l sion found that Great Bay could fund its share of Seabrook's operating costs through rese- l nues from the plant alone, and hence did not impose any of UI's " remedies" on it to establish reasonable financial assurance. Thus, UI's iemedies are clearly beyond what the Commis-sion's standard requires. UI's requested reliefisjust an attempt to challenge, through this li-cense transfer proceeding, NRC policy and requirements conceming financial qualifications and decommissioning funding. Such is not permissible under well-established NRC prece-dent.28 Moreover, the Commission's granting of such relief would not only greatly impede and restrict Great Bay and Linie Bay's legitimate business functions but would also provide UI (and NEP), competitors of Great Bay and Little Bay, with a significant and unfair com-petitis e advantage. Indeed, if the Commission were even to consider UI's proposed relief, in order to assure a level playing field among competitors, it would also have to consider re-quiring the other co-owners of the Seabrook facility to maintain a one year cash reserve and adhere to UI's other proposed conditions as well.

Further, the granting of such relief could also disrupt the ongoing sale of nuclear power plants occurring in conjunction with electric utility restructuring. The imposition of

10 C.F.it i 50.33(fX1) and (2); Public Service Company of New Hampshire (Seabrook Station Units I and 2), ALAB-$95,28 NRC 7,18 (1988)(quonng Coahtion for the Envtronment v. NP.C. 795 F 2d 168,175 (D.C Cir.1986))

" h, ejt, Philadelphia Elecmc Company (Peach Bonom Atomic Power station, Units 2 and 3), ALAB 216,8 AEC 13,21 n.33 (1974), Duke Pow er Company (Wilham B. McGaire Nuclear Stanon, Units 1 & 2), ALAB.

l 128,6 AEC 399. 401 (1973).

23 e

, 91-21-99 @6:34pm From- 7 047 P25/32 F-S$3 l

1 such conditions would complicate, hinder, and make less likely both ongoing transactions as i

well as future sales and divestitures of nuclear plants by saddling potential new owners with extraneous and burdensome requirements.. In doing so, it could greatly delay the restructur- j ing of nuclear utilities, thereby discouraging the sale and transfer of nuclear units. i In short, UI's proposed remedies should be rejected for being both contrary to Com-mission regulation and bad policy. i CONCLUSION l

In consideration of the foregoing, Linie Bay respectfully requests the Conenission to deny UI's petition for leave to inters ene and for a hearing in that (1) UI's petition is unjusti-  :

i fiably late, (2) UI lacks standing, and (3) U1 has failed to submit a valid issue in accorde.nce with the pleading requirements of 10 C.F.R. ( 2.1306(bX2). l l

Respectfully submitted, JL Gerald Chamoff Paul A.Gaukler D. Sean Barnett SHAW PITTMAN POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 January 21,1999 Counsel for Little Bay Power Corporation Documag s; 706379 v i 24

01-21-99 CE:34pm From- T-047 P 26/02 F-E!6 EXHIBIT 1 O

4 e

, C1-31-39 C6:34m From- 9,g p j

!g ytank FAX TRANSMITTAL SHEET NORTE ATLANTIC ENERGY SERVICE CORPORATION P. O. BOX 300 SEABROOK,hH 03874 603-474-9521 Plaane dativar the faW,pagna sa:

Fan Numher _

NAME: c==h--ate Jaint Owmars Nathanial D. Woodson - United Bluminating Company 7C3-499-3664 John B. Kanna . Northeast Utilities 865 665 3800 Kevin A. Kirby - Easmsa Utilities Assoaisses $08-559-612S James J. Xsans - Cosa/ Electric 508-291-3346 James 5. Robinson - New Englans Electric Sysima 308 389-2962 '

Joseph O. Roy MMWEC 413 553 8994 Anthony J. Momsito

• Mudson Light & Power Dept. 978-562-1389 Joseph M. Blain - Taunton Municipal Lightin8 Plant 508-823 693l '

Frederie C. Andersca - NH Electric Cocparative. Inc. 603-536-8652 Frank W. Gaansa, Jr. Great Say Power Corpoestion 603-431-8877 '

360-665 3581 ec: Bruce D. Kanyon - Northeast Utilities James F. Crows - United illuminadng Company 203 499-3664 FROM: Ted C. Feisenbaum TOTAL PAGES (Including Cover): 4 DATE.12/16/98 Massage:

Ifyou do not receive all pegsa, please sell beak as soon as possible.

Verification: 603-173 7404 (Bev Sillowsy)

J94h4 des t41'lW95)

F9/tB*d E2Pd. CgJ. I"99 gg fagg3 g igggg g g.gg. g l '

81-21-59 03:34pm From-North Atlanne Energy 5- rpornbon a m.o*

North ""'

Atlantic f*o?3;!.,"s23

'l be hrtbesat Uuhde. Sy December 16,1998 NA #980535 i

,- L d

To Chief Executives '

Seabrook Joint Owners i

Subject. Publication of Federal Register Notice for the Little Bay /Montaup Transfer of trol in the December 14,1998 Federal Register, the NRC published notice of the reg r the transfer of Montaup Electne's ownership interest in Seabrook Station to Little Bay Power C tien.

A copy of the noticeis attached.

The notice provides interested parties unul January 4,1999 to request a hearing ile a ene petition to intervene on the licente transfer application. Requests for hearing and petition must be in accordance with the NRC's new procedure for license transfer applications, whi ame effective on December 3,1998. As an alternative, the NRC will accept comments on the propo tion until January 13,1999.

Very truly yours, i

If Ted C. Feigenbaum '

Executive Vice President '

and ChiefNuclear Officer ).

~

TCF;bes , ,

Enclosure i* f el t scom 61 I

s'0/ 20 's 22PL Ec4 E09 3n!1033x3 UN TT:GT 8661-91 330

01-21-59 06:34pm From- T-C47 P 2i/32 F-ESE recittu:s to muntain ernngemints for a secuon 70.24(a) of Title 10 of the Code As prewtously mintio[ed, phys;ctan and other medical personnei offederal Regulauons.Criccahty acmmistrauve controll are also quahfice to handle raciation Accident Requirements." for tne River provided to prevent ogtimum emergencies anc to maintain . Bend Station (RBS). On June !! 1997. moderation conditier41n me new fuel arrangements for the transportanon of the NRC requested that RBS accress the vault so tnat the arraygrill not ce seven criteria published in Information covered w tm mtst. Therefore, the staff contaminated individuals to treatment facilstles outside toe site bouncary Notice 97-77. " Exemptions from the concludes that a k-off'ective greater trian Paragraph ic) of 10 CFR 70.24 exernpts Requirements of Secuen 70 24 of Title 0.98 wtil not De attamed in the new fuel Phn 50 licensees from the requirements 10 ef the Code of Federal Regulauens' stcrage racks and the yeeption to of paragrapn (b) of 10 CFR 70.24 for .n order to continue wnh the exemption Cntenon 3 is acceptab t.

SNM used or to be used in the reacter. process- The purpose c1 the criticallt On August 12.1998. EOl superseded monnors required Dy 10 CFR '[0 24 is to Paragraph (c) of 10 CFR 70 24 states that its ortgmal May 15.1997 letter and ensure that if a cranca!!ty were to uccur any beensee who belie.es tnat there is good caase *hy he should be granted an requested an exempuon frem the curing the handling of'5NM personnel exemption from all or part of 10 CFR criticality accident monitoring woula me alened to that fact ane woule 70 24 may apply to the Comrmssion for requirements stipalated in 10 CFR tak appropnate action.The staff has seen an exemption and shall spectfy the 70 24(a) spectfacally for the areas determined that at is extremely unlikely reasons for the relief requestec containing incore detectors (which are that such an accident cou!c occur. The not in use) and untrradasted fuel while low probabthry of an snadvertent g it is handled. used. or stored on site. enticahty constitutes good cause for The Commission s technical staff has in this request the Itcensee accressed grantang an exemption to the evaluated the pass.ctlity of an the seven cr;teria given aoove. The requirements of 10 CFR 70.24(a)~

insevertent enttcality of the nuclear fuel Commission's technical staff has reviewed the licensee's submittal anc IV at R;ver Bend Station IRBS). and has notermJned that it is extremely unlikely has determined that. except for Cnteria The Commission has cetermined that, for such an accident to occur 6f sn, I and 3 dtscussee below RSS meer. the pursuant to 10 CFR 70.34. this licensee meets the followtr.g seven appucaole crnena. exemptton ts authonzed by law. wi11 not RBS does not restrict fuel movement endanger hfe or propeny of the common entena. and storage of fuel assembues tnat are 1 Plant procedures do not perm,t defeme and seg and a ohm out of their associated shipping cask to in the public interest. Therefore. tne rnore than 3 BWR fuel assemches to De in storage or in transtr betwee.n their 3 assembhes. However. based on the Commission herecy nts the licensee elevation and configuration of the area tion from i requirements of assectated snippmg casn and cry storage where the assemblies are placed before an exem[0 24 for the RSS.

10 CFR rack at one time storage into the new or spent fuel racks.

2 The k effecuve of the fresh fuel Pursuant to 10 CFR 51.32. the the possibility of flooding ts highly Commission has determined that tne storage racks filled wim fuel of the maximum permissible U-235 improbable. In addition. acmimstrative granting or this exemption wtl1 not ennenment anc noocec with pure water controls are proviced to restnet the fire- result in any significant adverse f:ghting pracuces employed m the fuel envtrunmental impact (63 FR 63755J does not exceec 0.95 at a 95% building to prevent low-denstry preeabtury. 95% confidence level TM egh a effeem p 3 If opttmem moceration of fuelin optimum moderation condiuons Fire. 33,y,ne, the Iresh feel storage racks occurs

• hen fighting foam is not permitted in lhe For the Nuclear Regulatory Commission.

area and hose stations are equipped the fresh fuej storage racks are not with straight-stream nor21es while Datec at Rockville. Marylano.Inis Zno My flooced. the k-effective corresponding to or December 1998 this optimum moderation does not handling fuel in the ft.el building cr exceed 0 98. at a 95% probabthry. 95%

stonng ruel in the new fuel vault so that Ray P. Zimnarman-the array will not De covered wnh mtst. Aermg Direcier. Omce ofNatur Kuuur confidence level Therefore. the staff concluces that any Regulacon.

4 The k effective of spent fuel storage (FR Doc. 98-33111 Fiira 12-11-98. 8.45 ami array of fuel assembliss in storage or an racks filled wirn fuel of the maximum an.uns coce ves**e transit while outstce of tnett associated permissic!c U-235 enrichment anc shipping cask will be safely subentical _q, flooded with pure water coes not cacced 0 95, at a 95% probability. 95% uncer the most adverse moderation conditions feasible. anc the excepnon to NUCLEAR REGut.ATORY confidence level. Cntenon 1 is acceptable. COMMISSION 5.The quantity of forms of special nuclear matertal other tnan nuclear Although the RBS new fuel racks are gq designed to mamtain k-effecuve less fuel that are stored on stte in any given than 0 95

• ben either cry or completely Notice of Consideration of Approval of area is less than tne quanury necessary Transfer of Facility Operating tJcenas flooded w.th water. the new fuel racks for a cntical rnass cannot meet the 0 98 k-effective hmit anclosuance of Conforming 6 Radiat.on momtors. as required by under acencent concitions oflow. Amendment, ans opportunity for a General Design Cntenon 63. are censtry opttrnum moderanen (e g., foam Hearing; North Atlantic Energy Service provicec in fwel storage and handling Corporation, et. al.

artas to cetect excessive radsauen levels or mistj.Therefore. solid.

noncombusticle. gasketed covers are and to initiate appropnate safety The U S Nuclear Regulatory actions. Provided over the ne* fuel vault to Commission (the Commission) is 7 The maximum nominal U-235 preclude the entrance of cptimum considertng the issuance of an orcer ennchment is limited to 5 0 *eight moderation medta. When these covers under 10 CFR 50 80 approvmg the are removed for fuel handimg. the fuel percent. is coverec ey a fire retardant matertal to transfer of the mterest held by Montaup By letter dated May 15.1997. Entergy "lectne Company in Facthty operstmg ensure that the storage array is not Operations. Inc. (EO!) requested an lacense No. NPF-86 for the Seabrook moderated by low-densfry moderation.

exempuon from the requirements of a

r040 's 22P4 Cc6 C29 3n!.! M /3 cW EI'M EMM~E

01-21-53' C6:35p From-Statien. Unit No 1 (Seabrook Stanon). transfer application. are ciscussed amenoment sucmitta er cover of a locsted in Rockmgham County. New below. letter dated Septem S.1998, from Harr.pshire. anc considering issuance of By January 4.1999. any person

• hose a conformmg amendment under.10 CFR interest may be affected my the Cor North ation Atlante which a En=Nv.vtce ailacle for 50 90. Commission s action on tne application pu le inspection at t Commission s Consent to the reposed transfer may request a heanns anc. if not the Public Document L the cciman would authert2e tttle Bay Power apphesne. may pennon for leave to Butidmg 2t20 L Streel ' NW. .

Corporat.on (Latle Bayl to possess the intervene m a nearmg proceectng on the Washington. DC. andi the local puche ownersnip mterest m tne Seabrook Commission s acuen uests for a cocument room located at the Exeter Stat.on now held ey Montaup Electric heant g and pentions for eave to Puolic Library. Foung Park. Exeter Company OViontaup). Little Bay is a intervene should be filed in accordance NH 03833 wholly owned subsidiary of BayCorp wnh the Commission's rules of pracuce Dateo at Rockvtue. Ma@ana mas w.y Holdings. Ltc.. which 4s tne holdmg set forth in SaDpart M. ~Public ****#'

company m:L also owns Great Bay Notification. Ava11ab116ty of Documents For the Nactest Reguistory Commuiun Power Corperation. an existing owner of and Reccras. Hearmg Requests and Cecil O. Thornas.

the Seaerock Stauon North Atlantic Procedcres for Hearm5s en Lscense '

Energy Service Corporation. the sole Transfer Ap lications." of 10 CFR Part Dree'or. Pnuret Ducerorste l-3. Duen or React rPmjects-l/ll.O/Tkeo/ Nuck.v heensed operttor of the facility would 2. In parncu ar. such requests must

1. 1. '### #'#""U**

remain as t.he Managing Agent for the 11 comply with the requiremems set forta in 10 CFR 2.1306. and should address [m D c. 98-33409 Fued 12-11-98. 8 45 aml l Joint Owners of the facthry and wowle m*a caos m a contmee to have exclusive the considerations contamed in 10 CFR responsiblitty for the management. 2.130Bla). Untimely requests may be j operation and rneintenance of the denied, as provided in 10 CFR NUCLE.AR REGULATORY l Seabiook Stauon The ucense would be 2.130 stb). unless good cause for failure COMMISSION amendec for seministrative purposes to to file on nme is estab!tshed. In reflect the transfer of Montaup's addinon. an unamely request shoulo (Docnet tsa. a& ace 4]

l ownersrup mterest to Little Bay, adcress the factors that the Commission The proposed transfer coes not will siso consider. in reviewtog Rio Algom Mining Corporapon mvolve a snange in the rights. unnmely requests. set forth in 10 CFR acmcy: Nuclear ReE" lated ce!!gauens.or mterests of the other co- 2.1308(b)(1)-(21 Commissmn owners of the Scaerock Stauen Requests for a hearing and pettuons ACTION: Nouce of receipt of a request Pursuant to 10 CFR 50 80. the for less e to mtervene should be served from Rio Algom Mming Corpotsuon to Commission may approve the transfer of upon the a plicant; the General re.ise a sneoclamanon malestone m a heense. or any rignt thereuncer after Counsel. S. Nuclear Regulatory License No. SUA-1119 for the Lisbon-I nonce to mterestec persons. Such Commission.Washin on.DC 20555. Utan, facthty and nodce of opportunny epproval is conungent upon the and tne Secretary of e Commission. for a nearmg.

Commission 5 determination that tne U S. Nuclear Regulatory Commtssion, trartsferee is quahflee to hold the Washmgton. DC 20555-0001. Attention suuuAM: Nouco ts hereby given tnat I

!! cense and that the transfer is otherwise Rulemakings :nd Adjudications Staff,in the U S Nuclest R ulatory consistent witn apphesole prowtstons of accorcance with 10 CFR 2.1313. Commissten (NRC) s receivec. by law. regulations, and orders of tne The Commisston wtilissue a nouce or letter dated October 23.1998, a request l Commission order granting or denytng a heartng from Rio Algom Mtntng Corporanen '

request or intervenuon petition.

Before issuance of the proposed (Rio Algom) to amend 1.lcense l

license amenoment. the Comntission designating the tssues for any hearing Condition (LC) 55 A.(3) of Source

• til have made findings required by the that will be held and designating the Material Licertse SUA-1119 for the Atomic Energy Act of 1954 as amendec Presiding Officer. A nonce grantmg a Lisbon. Utah. facility.The beense I tthe Act) and the Commaston's hearmg will be published m thz Federal amencment request proposes to moedy regulations r Register and served on the parces to the LC 55 A.t3) to change the complenon As proviceo in 10 CFR 21315. unless hearing. cate for placement of the final recon otherwise ortermmed by the As an alternanv e to requests for Carrier on the pale.The date proposed Commas.on with regare to a specific hearing and pertuons to mtervene, of by Rio Algom would extend completion l January 13,1999, persons may submit applicanon. the Commission has of tne final radon barner by 18 years.

deterrnined that any amendment to the written comments regarding the license , 1 l transfer appucanon. as provided for in heense of a unitunon facility which Yron Flieget Office of Nuclear coes no more than conform the hcense 10 CFR 21305.The Commwon wall Mater af to reflect the transfer acuon mvolves no consider and if appropriate. respond to 555f'f ep one (301) l these comments, but such comments significant hazards consideration.No contrary determinacon has been rnade will not otherwise constituta part of the 415-6629-

=tth respect to tnts specific heense decisional recont Comments should oc suPPLEutwrARY lasFDR44aT sabmmed to the Secretary. U.S. Nuclear Poruon of LC 55 A (3) wtch the

!' amencment appl. cation. In !!gnt of the proposed change would read as follows.

generte deterrninanon reflected in 10 Re latory Commission, Washington. A. To ensure timely compliance wsta CFR 21315. no public comments with D 20555-0001 Artennon: Rulemakings respect to significant hasards and Acjudications Staff and should cne target compleuon dates estschsnec in the Memorancum of Understandmg

- considerations are cemg solicited. the pubhcation cate anc page number of Cth the Environments! Protection notwithstanding the general comment this Federal Register nonce.

For furtner details wtth respect to this Agency (56 FR 55432. October 25.

procedures contamed m to CFR 50 91. 1991). the licensee shall complete The filtng of requests for hearing. and acuen. see the applicanons for consent reclamauen to comrol racon emissiens .

peuttons forIsave to intervene and to transfer Montaup3 mterest in the l

beense and issuance of a conformmg as expeditiously as practicable.

wruten commer.ts with regard to sne 9

PO PO'e EEPL Ett t09 3n;1f03X3 tN ET:51 666I-9T-330

01-21-09 06:35pm From- T-MT P 3U32 F-656 DM+ lD January;21,1999 UNITED STATES OF AMERICA 09 JAN 22 P3 :19 NUCLEAR REGULATORY COMMISSION <

n \

i ii.

AD.1,

) I In the Matter of )

North Atlantic Energy Service ) Docket No. 50-443 Corporation, et al., ) (License No. NPF-86)

)

(Seabrook Station, Unit No.1) )

)

CERTIFICATE OF SERVICE I hereby certify that on the 21st day of January 1999 copies of the Answer of Little Bay Power Corporation to Motion of the United Ilh-inating Company for Leave to Intervene, and Petition to Allow Intervention Out.of-Time were served by facsimile and U.S.

- Mail on the following:

Secretary of the Commission Office of General Counsel U.S. Nuclear Regulatory commission U.S. Nuclear Regulatory Commission Atm: Rulemakmgs and Adjudicanons Washington,DC 20555 Washington, DC 20555-0001 (originaland two copies)

Edward Berhn, Esq. John F. Sherman, Esq.

Swidler Berlin Sherreff Friedman Associate General Counsel 3000 K Street, NW, Ste. 300 New England Power Company Washmgton,DC 20007 25 Research Drive Westborough,MA 01582 Lillian M. Cuoco, Esq. David A. Repka, Esq.

William J. Quinlan, Esq. Winston & Strawn l 1400 L Street,NW i

Northeast Utilities Service company l 107 Seldon Street Washington,DC 20005 Berlin,CT 06037

' T-H7 P.32/32 F 01-21-99 06

36pm From-l "",

m c .

Thomas G. Dignan, Jr., Esq.

Barton Z. Cowan, Esq.

Eckert Seamans Cherin & Mellott, LLC Ropes & Gray +

600 Grant Street,44th Floor One International Place Boston, MA 02110-2634  ;

Pittsburgh,PA 15219 Kevin A.Kirby Vice President, Power Supply Eastern Utillities Associates 750 West Center Street P.O. Box 543 West Bridgewater, MA 02379 (By U.S. Mail Only)  !

(J

[ __

Paul A. Gaukler i

Document a 706376%.!

1 l

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