ML18057A679

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Responds to Requesting Reconsideration of Decision Not to Conduct Antitrust Review Re Proposed Transfer of Facility Ownership
ML18057A679
Person / Time
Site: Palisades 
Issue date: 12/19/1990
From: Brian Holian
Office of Nuclear Reactor Regulation
To: Jablon R
SPIEGEL & MCDIARMID
References
NUDOCS 9101020178
Download: ML18057A679 (8)
v • d • e


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UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D. C. 20555 Robert A. Jablon, Esq.

Spiegal & McDiarmid 1350 New York Avenue, N.W.

Washington, D.C. 20005~4798

Dear J.tr. Jablon:

December 19,1990

SUBJECT:

PALISADES PLANT - TRANSFER OF PALISADES PLANT OWNERSHIP This letter is in response to your September 21, 1990 letter, on behalf of the Michigan Municipal/Cooperative Group, requesting reconsideration of our decision not to conduct an antitrust review regarding the proposed transfer of ownership interests in the Palisades Plant to the* Palisades Generating Company.

You had originally requested* that the Commission initiate an antitrust review in connection with this application.

On August 22, 1990, we responded and advised you that no anti trust review would be conducted because.the license for the Palisades facility was issued under Section 104b of the Atomic Energy Act, as amended, and that Section 104b licenses are not subject to the antitrust review required for. Section 103 licenses.

We also stated that the replacement of the steam generators which you ref erred to in your September 27*, 1989 corr~spondence would not qualify Palisades as a new facility that would require a new license to be issued pursuant to Section 103.

Your request for reconsideration is based* upon your belief that the t.ransfer *of a Section 104b license to a new owner must be treated as an application for a new license under Section 103 s.ince, in

-your opinion, a license is granted to a licensee rather than to a facility and there is no basis for transferring*the exemption.

As*

  • a further basis for concluding that an antitrust review is required for.* this tranfer, you. also refer to a number of changes to the P~lisades.facility, in addition to the.steam generator replacement that you previously reported, which you contend would require a new license to be issued.

These arguments.do not provide a basis for the Staff to.reconsider its decision that an antitrust review-for the pending Palisade's application is not required.

There is nothing in the language of the Act or in* its. legislative history to suggest that Congress in!en_g~d _that Sectiori

  • 104b licensed facilities, which are not
  • ***- *subject to an antitrust review, would require this review when new owners are involved.

When Sections 103 through 105 of the Act are read in their entirety, it would appear from the plain meaning of this language that. subsequent owners would not be subject to antitrust reviews and that a Section 104b facility will remain not subject to the antitrust review. *In this regard, Section 102a 9101020170. 901219 r

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states that "any license hereafter issued for a utilization or production facility for industrial purposes.*** shall be issued under subsection 104b."

(Emphasis added). And S~ction 104-b states that in issuing 104b licenses, "the Commission ~hall impose the minimum amount-_ of such regulations and terms of license as will permit the Commission to fulfill its obligations under the Act.

Your comments concerning modifications to the Palisades facility also do not establish a basis for antitrust review.

The additional modifications listed in your August 22, 1990 letter include changes tO Or installation Of Safety parameter display systems I post-aCCident sampling and monitoring systems, emergency preparedness areas, added vents and pumps, alternate scram systems, additional plant security, new spent fuel racks, and revisions to heat disposal/condenser cooling. Although this list perhaps represents a

significant number of changes or improvements, these modifications would neither individually, or in their entirety, require the issuance of a construction permit.

See Virginia Electric and Power Co.

(Surry Power Station, Un.:j.ts 1 and 2),

DD-79-19, 10 NRC 625, 654-661 (1979).

For these reasons, your request for reconsideration has not changed our initial determination that an antitrust review is not warranted for the Palisades application.

In your letter, you have requested that if the staff fails to grant this review,- proceedings be held to determine whether antitrust review is appropriate, and notice_

be placed in the Federal Register of such proceedings.

Such a

,procedure is neither-provided for nor contemplated. in the

  • Commission's regulations.

Furthermore, in view of the fact that Congress specifically,determined that there should be no antitrust review of Section 104b licenses it would be inappropriate to initiate the procedure that you sug~est.

Accordin~ly, for the reasons stated in my August 22, 1990 letter and set forth above, the staff will not conduct an antitrust review of the Palisades facility_ in connection with the change. in ownership.

Sincerely, Brian Holian, Project Manager Project Directorate III-1 Division of Reactor Project~III IV, and V Off ice of Nuclear Reactor Regulation -

'\\

Mr. Gerald B. Slade Consumers Power Company ct:

M. I. Miller, Esquire Sidley & Austin 54th Floor One First National Plaza Chicago, Illinois 60603 Mr. Thomas A. McNish, Secretary Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 Judd L *. Bacon, Esquire Consumers Power Company 212 West Michigan Avenue Jackson, Michigan 49201 Regional Aqministrator, Region III U.S. Nuclear Regulatory Commission 799 Roosevelt Road Glen Ellyn, Illinois 60137 Jerry Sarno Township Supervisor Covert Township 36197 M-140 Highway Covert, Michigan 49043

-Office of the Governor Room 1 - Capitol Building

  • .. Lansing, Mich.igan 48913 Mr. David J. Vandewalle Director, Safety and Licensing Palisades Plant 27780.Blue Star Memorial Hwy.

Covert, Michigan 49043 Resident Inspector c/o U.S. Nuclear Regulatory Conunission Palisades Plant 27782 Blue Star Memorial Hwy.

  • Covert, Mjchigan 49043 Palisades Plant Nuclear Facilitie~ and Environmental Monitoring Section Office Division of Radiological Health P.O. Box 30035 Lansing, Michigan 48909 Gerald Charnoff, P.C.

Shaw, Pittman, Potts &

Trowbridge 2300 N. Street, N.W.

Washington, D.C.

20037 Mr. David L. Brannen Vice President Palisades G~nerating Plant*

c/o Bechtel Power Corporation 15740 Shady Grove Road Gaithersburg, Maryland 20877

states that "any license hereafter issued for a utilization or pr.oduction facility for industrial purposes **** shall be iss_ued.

under subsection 104b."

(Emphasis added). And Section 104-b states that in issuing 104b licenses, "the *Commission** shall impose the minimum amount of. such regulations and terms of license as will.

permit the Commission to fulfill its obligations under the Act.

Your comments concerning modifications to the Palisades facility also do not establish a basis for anti trust review. The additional modifications listed in your August 22, 1990 letter include changes to or installation of safety parameter display systems, post-

. accident sampling and monitor systems, emergency preparedness areas, added vents and pumps, alternate scram systems, additional plant security, new spent fuel racks, and revisions to heat disposal/condenser cooling. Although this list perhaps represents a.significant number of changes or improvement, these modifications would neither individually, or in their entirety, require the issuance of a construction permit. see Virginia Electric and Power Co.

(Surry Power Station, Units 1 and 2), DD-79-19, io NRC 625,

~54-661 (1979).

For these reasons, your request for reconsideration has not cha~ged our initial determination that an anti trust review is not warranted for the Palisades application. In your letter, you have requested that if staff fails to grant this review, proceedings be held to determine whether antitrust review is appropriate, and notice be placed in the Federal Re.gister of such proceedings.

Such a procedure is neither provided for nor contemplated.in the Commission's regulations.

Furthermore, in view of the fact that Congress specifically determined that there should be no antitrust review of Section 104b licenses it would,be inappropriate to initiate the procedure that you suggest.*

Accordingly, for the reasons stated in my August 22, 199.0 letter and set forth above, the.staff will not conduct an antitrust review*

of the Palisades facility in connection with the change* in ownership.

  • cc:

See next page Sincerely, Brian Holian, Project Manager Project Directorate III-1 Division of Reactor Project-III IV, V Off ice of Nuclear Reactor Regulation SEE PREVIOUS CONCq~RENCE*- -

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JRUTBERG LCHANDLER TMARSH DNASH.

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  • states *that "any li'cense hereafter issued for a utilization or production facility for industrial purposes.... shall be issued under subsection 104b."

(Emphasis added).

  • And Section 104b states that in issuing 104b licenses, -"the Commission* shall impose the minimum amount of such-regulations and terms of license as will permit the Commission to fulfill its obligations under the Act.

Your comments concerning *modifications t:o the Palisades facility also do not establish a basis for antitrust review.

The additional modifications listed in your August 22,*1990 letter include changes to* or installation

~f safety.parameter display systems, post-accident sampling and monitor systems, emergency preparedness areas, added vents and' pumps, alternate scram systems, additional plant security,. new spent fuel racks, and revisions to heat disposal/condenser c.ooling. Alth9ugh this list perhaps represents a significant: number of changes or improvement, these modifications would neither individually, or in.their entirety, require the

  • issuance of a construction permit.

See: Virginia Electric and Power Co~

(Sur:ry Power Station, Units 1 and 2), DD-79-19., 10 NRC 625, 654-661 (1979).

For these reasons, your request for reconside.ration has not changed our initial determination that an antitrust*review is not warranted

  • for the Palisades application.

In your letter, you.have requested that if staff fails to grant this review, prpceedings be held to determine whether anti trust. review is appropriate*, and notice be

  • placed in the Federal Register ot such *proceedings.

s*uch.*

  • a 5*prc;>cedure

~s neither provided, for nor contemplate~

~n the

    • !i.:.. :~ Commission's** regulations.*

Furthermore, in view of the*':fact,'that

'l"-l ***

~ '.

.,.. ** *Congress specifically d.etermined that there* should be no antitrust review of Section 104b licenses it' would. be inappropria:te>to:

  • initiate *the procedure that you suggest.*

.1Accordingly, for the reaspns stated in my August 22, 199Cr'-'letrter u'

"*.. ~nd set forth above, the ~taff will not.conduct an antitrust; r!3;Vi,ew

'of the Palisades facility *in c'onnection with. the change
~. in*.; *;

~. "

'.-;/"> q.wnership.'

~.

Sincerely,

.~ :~

" ~* *:>] *-

~* '.

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Bri~n Hol~J'an,.~roj.. ect ~anager.

ProJect Directorate*III-1 Division pf Reactor Project-III.

IV, V & Special Projects

  • office of Nuclear :Reactor Regulation r,*

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states that "any license hereafter issued for a utilization or production facility for industrial purposes. *.. shall be issued under subsection 104b."

(Emphasis added).

And Section 104b states t.hat in issuing 104b licensef;, "the Commission *shall impose.the minimum amotmt of such regulations and terms of license as will permit the Commission to fulfill its obligations under the Act.

.:~

Your comments concerning modifications to the Palisades facility also do not establish a basis for antitrust review.

The additional modifications listed in your August 22, 1990 letter include changes to or installation of safety parameter display systems, post-accident sampling and monitor system$,

emergency preparedness areas, added vents and pumps, alternate scram systems, additional plant security, new spent fuel racks, and' revisions to *heat disposal/condenser cooling. Although this list perhaps represents*

  • a significant number of-.changes or improveinent, these modifications would ri.either individually, or in their entirety,** require the

. issuance of a construction permit.

s.ee Virginia Electric and Power

.co.

(Surry Power _station, *units 1 and'2), DD-79-19, 10 NRC *625 1 654-661 ( 1979).

For these reasons, your request for reconsideration has not changed our initial determination that an antitrust.review is not warranted for the Palisades *application. _In your le.tter, you have requested that if staff *fails to. grant this review, proceedings be held to d.etermine _whether antitrust review is appropriate, and notice." be

. placed in. the Federal. Register of such proceedings.

Such. a

. procedure is neit:tie.r provided for nor* - contemplated in the

\\.

. Commissic;m' s; regulat.1ons.

Furthermore, in view *of 'the fact that Congress specifically determined that there sh.ould be no antitrust r.eview of Section 104b licenses it would be inappropriate to initiate the procedure that you ~uggest.

Accordingly, *fc;>r the reasons. stated in my August 22, 1990 letter and set* forth above, the staff will riot conduct an antitrust* review of.the: Palisades facility

  • in connection with the change in.*

ownership.

cc:

Se~ next page sfncerely I Brian Holian; Project Manager.

Project Directorate III-i Division-of Reactor Pr¢ject-III

. *IV, V *..

Off ice of Nuclear Reactor Regulation

. SEE PREVIOUS CONCURRENCE*..

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DATE

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. JRUTBERG LCHANDLER TMARSH DNASH

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