ML17310B339
| ML17310B339 | |
| Person / Time | |
|---|---|
| Site: | Palo Verde  |
| Issue date: | 06/03/1994 |
| From: | Coyle J DUNCAN & ALLEN (FORMERLY DUNCAN, ALLEN & TALMAGE, PLAINS ELECTRIC GENERATION & TRANSMISSION COOPERATIVE |
| To: | Gody A NRC |
| References | |
| NUDOCS 9406130280 | |
| Download: ML17310B339 (14) | |
Text
ACCELERATEDOC&CENT DISTRIQJTION SYSTEM REGULATORY INFORMATION DISTRIBUTION SYSTEM (RIDS)
ACCESSION NBR:9406130280 DOC.DATE: 94/06/03 NOTARIZED:
NO
'OCKET FACIL:STN-50-528 Palo Verde Nuclear Station, Unit 1, Arizona Publi 05000528 STN-50-529 Palo Verde Nuclear Station, Unit 2, Arizona Publi 05000529 STN-50-530 Palo Verde Nuclear Station, Unit 3, Arizona Publi 05000530 AUTH.NAME AUTHOR AFFILIATION I
COYLE,J. P.
Plains Electric Generation
& Transmission Cooperative COYLE,J.P.
Duncan
& Allen'(formerly Duncan, Allen
& Talmage
& Duncan, RECIP.NAME RECIPIENT AFFILIATION D
GODY,A.T.
NRC No Detailed AffiliationGiven
SUBJECT:
Informs that licensees wishes-to address preliminarily certain misconceptions stated in EPE/CSW response to comments w/respect to nature
& scope of signa.ficant changes review currently being undertaken by ofc.
DISTRIBUTION CODE:
Z998D COPIES RECEIVED:LTR ENCL SIZE:
TITLE: Antitrust Info Re Reg Guide 9.3 NOTES:STANDARDIZED PLANT Standardized plant.
Standardized plant.
D 05000528 05000529 05000530 RECIPIENT ID CODE/NAME DRPW/ADR-4/3 PDIV-3 PD TRAN,L INTERNAL RR/PZXS/~TSB'EG FILE 01 EXTERNAL: NRC PDR COPIES LTTR ENCL 1
1 1
1 1
1 1
1 1
1 1
1 RECIPIENT ID CODE/NAME PDIV-3 LA HOLIAN, B OGC/AD 15-B-18 NSIC COPIES LTTR ENCL 1
1 1
1 1
1 1
1 D
NOTE TO ALL"RIDS" RECIPIENTS:
PLEASE HELP US TO REDUCE WASTEI CONTACT THE DOCUMENT CONTROL DESK, ROOM Pl-37 (EXT. 504-2065) TO ELIMINATEYOUR NAME FROM DISTRIBUTION LISTS FOR DOCUMENTS YOU DON'T NEED!
TOTAL NUMBER OF COPIES REQUIRED:
LTTR 10 ENCL 10 D
~(~(
Duncan
@ Allen C~i'SE1LORS hT Lhw 1575 Eye Street, Northwest Washington, D.C. 20005.1175 Telephone (202) 289-8400 FhX (202) 289-'8450 June 3,
1994 Anthony T. Gody, Sr.
Chief, Inspection and Licensing Policy Branch Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission One White Flint North, Mail Room 12 E
4 11555 Rockville Pike Rockville, Maryland 20852-2738 Re:
NRC Docket Nos.
STN 50-528, STN'50-529 and STN 50-530 Arizona Public Service Co.
et al.
Dear Mr. Gody:
This letter is submitted on behalf of Plains Electric Generation and Transmission Cooperative, Inc.
("Plains" ) in response the responsive comments filed on behalf of El Paso Electric Company
("EPE") and Central and South West
- Services, Inc.
("CSWS") in these dockets on May 17, 1994 (the "EPE/CSW Reply Comments" ).
Plains wishes to address preliminarily certain misconceptions stated in the EPE/CSW Reply Comments with respect to (1) the nature and scope of the "significant changes" review currently being undertaken by your office (EPE/CSW Reply Comments at pp.,19-24),
and (2) the "watchful deferencen+1 due the FERC's pending proceedings on the EPE/CSW merger (EPE/CSW Reply Comments at 3-5, 24-26).
Primarily, however, Plains wishes to address certain inaccurate factual assertions advanced in the EPE/CSW Reply Comments (at pp.
30-36) as a purported justification for EPE's failure to implement its June 1987 settlement agreement with Plains in these dockets.
Plains has so limited this response solely because the remaining matters argued in the EPE/CSW Reply Comments were fully and adequately addressed in Plains'etition for Leave to Intervene, filed April 1, 1994.
+1 The phrase "watchful deference" is borrowed from ~Cit of Hol oke Gas
& Electric De artment v.
SECi 973 F ~ 2d 358I 363-364 (D.C. Cir. 1992); Wisconsin's Environmental Decade v.
- SEC, 882 F.2d 523, 527 (D.C. Cir. 1989).
40&i>0280 940603 PDR ADOCK 05000528 PDR
l
Duncan Ez, Allen I.
SIGNIFICANT CHANGES The EPE/CSW Reply Comments argue (at pp.
19-24) that the "significant changes" review undertaken in connection with this Application is somehow limited in scope because the Application is merely one for transfer of control.
Nothing cited in the EPE/CSW Reply Comments in fact supports such a
limitation.
In fact, the relevant requirements of Section 184 the Atomic Energy Act,+2 Section 50.80(b) of the Commission's Rules and Regulations and Commission precedent all require a contrary conclusion.
In particular, the EPE/CSW Reply Comments overlook the Commission's indication in Ohio Edison Com an (Perry Nuclear Power Plant Unit 1), CLI-92-11, 36 NRC 47, 59
& n.
39 (1992) that applicants for post-issuance license amendment
- may, by the fact of their application, subject themselves to additional antitrust scrutiny.
For the reasons stated in Plains'etition for Leave to Intervene, such scrutiny should be undertaken in connection with this Application.
II.
"WATCHFUL DEFERENCE" The EPE/CSW Reply Comments also argue strenuously (at pp. 3-5, 24-26) that, the Commission should follow a policy of "watchful deference" toward the FERC's pending review of the EPE/CSW merger.
The Reply Comments'eliance on this policy in connection with the instant Application is misplaced for two reasons.
First, while recent decisions of the FERC suggest -- contrary to the optimistic prognosis of the Reply Comments (at pp.
3-5) -- the some fairly rigorous review should await EPE/CSW's self-proclaimed "open access" transmission tariff,+3 the fundamental fact remains (as
+2 42 U.S.C.
5 2234, which provides in elevant pa t that "No license granted hereunder
. shall be transferred directly or indirectly
. unless the Commission shall, after securin full information, find that the transfer is in accordance with the provisions of this Act, and shall give its consent in writing" (emphasis added)
~
~3
- See, e.cC,,
Kansas Cit Power
& Li ht Co.,
67 FERC g
61,183 (May 13, 1994); American Electric Power Service
~cor 67 F.ERC g 61,168, slip op. at 9
(May 11, 1994)
("[a]n open access tariff that is not unduly discriminatory or anticompetitive should offer third (continued...)
)i
Duncan 0 Allen stated at p.
25-26 of Plain's Petition for Leave to Intervene) that this Commission is required to fulfillits distinct antitrust mandate through a hearing.
- Second, and more importantly from Plains'erspective, EPE's failure over the past seven years to implement its June 1987 settlement agreement with Plains raises substantial issues with respect
'o this Commission's licensing jurisdiction and settlement processes, which are plainly cognizable in this proceeding and as to which "watchful deference" to the FERC would serve no useful or appropriate purpose.
III.
THE REPLY COMMENTS'ACTUAL CONTENTIONS Finally, the EPE/CSW Reply Comments (at pp.
30-36) embark on an unverified factual recitation with respect to EPE's asserted justification for its failure to implement the June 1987 settlement agreement.
The essence of this recitation is that an adverse decision in EPE's 1990 arbitration with Public Service Company of New Mexico ("PNM")
"significantly complicated EPEC's negotiations with Plains
- because, contrar to the mutual ex ectation of Plains and EPEC when the si ned the LOU, the planned construction of the AIP enhancements would not, as a practical matter, provide the transfer capability to import 1000 MW from the north into southern New Mexico" (Reply Comments at 33).
Contrary to the Reply Comments'uggestion, there was in fact no "mutual expectation of Plains and EPEC" with respect to implementation of the June 1987 settlement agreement that was in any way affected by EPE's arbitration with PNM.
None is evident on the face of the settlement agreement, and none appears from a close scrutiny of the surrounding "facts" alleged in the EPE/CSW Reply Comments.
- Indeed, Plains believes that full evidentiary. scrutiny of the sort of temporizing that EPE undertook in connection with the June 1987 settlement agreement, purportedly based on EPE's contractual obligations toward PNM as delineated by the 1990 arbitration, will likely reveal it to be of a piece with the anticompetitive conduct that the settlement agreement was Q3 (...continued) parties access on the same or comparable basis, and under the same or comparable terms and conditions, as the transmission provider's use of its own system; New En land Power Pool, 67 FERC g 61, 042 (1994).
t
Duncan Ec Allen supposed to remedy.~4 Thus, contrary to the characterization advanced in the EPE/CSW Reply Comments (at p.
35
& n. 45), the matters alleged by Plains in connection with EPE's failure to implement the settlement agreement are, in Plains'iew, more than a mere "contractual dispute."
That said, Plains acknowledges that negotiations with EPE have proceeded in a satisfactory and business-like manner since the filing of Plains'etition for Leave to Intervene in this matter.
To the extent that those negotiations are successfully concluded -- as Plains fondly hopes, after waiting a full seven years to date for implementation of the settlement agreement Plains will
'ppropriately advise the Commission's staff.
In the meantime,
- however, the settlement agreement has yet to implemented and the concerns raised in Plains'etition for Leave to Intervene remain for the Commission's consideration.
Respec ul1 submitted, Du Su
,15 In P.
C le can
& Allen te 300 5 Eye Street,
- hington, D.C.
.W.
20005 Telephone:
(202) 289-8400 Facsimile:
(202) 289-8450 Counsel for Plains Electric Generation and Transmission Cooperative, Inc.
cc:
Service List
+4 Cf. Otter Tail Power Co. v. United States, 410 U.S.
- 366, 378 (1973).
Mr. William F.
Conway Arizona Public Service Company P.O.
Box 52034
- Phoenix, AZ 85072-2034 Mr. Steve Olea Arizona Corporation Commission 1200 W. Washington Street
- Phoenix, AZ 85007 James A. Beoletto, Esq.
Southern California Edison Company P.O.
Box 800
- Rosemead, CA 91770 Senior Resident Inspector Palo Verde Nuclear Generating Station 5951 S. Wintersburg Road
- Tonopah, AZ 85354-7537 Regional Administrator, Region V
U.S. Nuclear Regulatory Commission 1450 Maria Lane, f210 Walnut Creek, CA 94596 Charles B. Brinkman, Manager Washington Nuclear Operations ABB Combustion Engineering Nuclear Power 12300 Twinbrook Parkway, f330 Rockville, MD 20852 Aubrey V. Godwin, Director Arizona Radiation Regulatory Agency 4814 South 40 Street
- Phoenix, AZ 85040 Chairman Maricopa County Board of Supervisors 111 South Third Avenue
- Phoenix, AZ 85003 Jack R.
- Newman, Esq.
Newman
& Holtzinger, P.C.
1615 L Street, N.W., f1000 Washington, DC 20036 Mr. Curtis Hoskins Executive Vice President and Chief Operating Officer Palo Verde Services 2025 N. 3rd Street, f220
- Phoenix, AZ 85004 Roy P. Lessey, Jr.,
Esq.
Bradley W. Jones, Esq.
Akin, Gump, Strauss, Hauer and Feld El Paso Electric Company 1333 New Hampshire
- Avenue, f400 Washington, DC 20036 Ronald J.
- Stevens, Director Nuclear Reg.
& Industrial Affairs Arizona Public Service Company P.O.
Box 52034
- Phoenix, AZ 85072-'034 Joseph
- Rutberg, Esq.
Office of General Counsel U.S. Nuclear Regulatory Commission One White Flint N., Mail Room 15 B18 11555 Rockville Pike Rockville, MD 20852-2738 Mr. William M. Lambe Office of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission One White Flint N., Mail Room 12 E4 11555 Rockville Pike Rockville, MD 20852-2738
gf II i
1 Norma K. Scogin, Esquire Texas Public Utility Commission Energy Division P. 0.
Box 12458, Capitol Station
- Austin, TX 78711-2548 Clark Evans
- Downs, Esquire
- Jones, Day, Reavis
& Pogue Metropolitan Square 1450 G Street, N.W.,
6Th Floor Washington, DC 20005-2088 J.
Cathy Fogel, Esquire Verner, Liipfert, Bernhard, et al.
Suite 700 901 15th Street, N.W.
Washington, DC 20005-2301 Alan J.
- Statman, Esq.
Wright
& Talisman 1200 G Street, N.W.
Suite 600 Washington, D.C.
20005-3802
I 1
I