ML19241A860

Forwards Us District Court for Northern District of Tx 790515 Order Denying Plaintiffs' Motion to Amend Judgment in West Tx Utils Vs Tx Electric Svc,CA3-76-633-F

ML19241A860
Person / Time
Site:	South Texas
Issue date:	05/23/1979
From:	Flynn P LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Glaser M, Mark Miller, Wolfe S Atomic Safety and Licensing Board Panel
References
NUDOCS 7907090471
Download: ML19241A860 (11)

Text

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' Y :- d S' Q 'M i Marshall E. Miller, Esgitire Michael L. Glaser, Esquire Sheldon J. Wolfe, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Bouston Lighting & Power Company South Texas Project, Units 1 and 2 (Docket Nos. 50-498A and 50-499A)

Gentlemen:

Houston wishes to advise the Board that on May 15, 1979, the United States Distric:: Court for the Northern District of Texas issued an order denying the plantiffs' motion to amend judgment in the case West Texas Utilities Company et al. v.

Texas Electric Service Company, et al., __F. Supp. (No.

CA3-76-633-F, Judgment filed February 27, 1979).

A copy of the court's order is enclosed.

Respectfully submitted, f5 h.

Peter G. Flynn Attorney for Ecu on Lighting

& Power Company cc: Attached service list a

311 191 il g g070 o R

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@ Q (L=. k g, W. S. DatTDTT C3:a f meef ut em Delf s>CT cf Ttess ,

IN THE UNITED STATES DISTRICT COUR FOR THE NORTRERN LISTRICT OF TEXAS va $ 43~ e7t' j DALLAS DIVISION JOSEF C'. EC(

M. ELROY.

N .',

BY 'M WEST TEXAS UTILITIES CO. AND ) CcN;/

CENTRAL POWER & LIGHT CO. )

)

VS. ) No. CA3-76-633-F

)

TE"AS ELECTRIC SERVICE CO. , )

ET AL )

ORDER The plaintiffs filed 1 cotion to a=end this Court's judg=ent alleging that:

(1) The Court's opinion is "at war with itself" by finc. .g that there was no " contract, co=bination, sr conspiracy" under Section One of the Sher an Act and at the sa=e ti=e finding that participation in the South Texas Project (STP) was based upon the fundamental understanding that the ce=bers of the STP intended to operate on an intrastata basis; and, (2) Findings of the Court 13-17, 19-22, , and 23-24 s et forth under " Conclusions of Law" in Appendix A deal with matters outside the scope of this litigation.

Plaintiffs =isconceive tais Lourt's opinir and the case as presented to the Court for decision. T. Court's findings with respect to an alleged Section One violation were in direct response to allegations by the plaintiffe that defendants had an illegal agreement (i.e. a group boycott) to disconnect from any ce:ber of TIS or ERCOT which co==enced interstate operations. I found that ;he defendants' decisicas to operate on an intrastate basis were =atters of unilateral policy rather than a product of concerted action. On the other hand, the evidence also established that all of the parties in the STP joined in the project uith the con =cn intention of centinuing to operate on an intrastate basis as they had operated since 1935. Each

=erber of the participation agreement could co=nence interstate cperations upon advance notice to the other =c bers # ST' a y and TIS. There was no contract, r.c bination or ccns e f f hf in the STP agreement which violated Section One of the Sherran Act. Flaintiffs laber under the risapprehensien

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that if the defendants or others cade an agree:ent, there was a Section One violation; that is not a correct interpretatien 1

of tha Sherman Act.

The evidence astablishes that at the time the STP was cenceived, overy party to the agreement knew or should have known that unilateral efforts to establish synchronous ties with SWFP would' result in unreasonable interference with the ~

transcission syster of the other STP participants (e.g. TR.

589, 2925-27). CPL ignored this understanding and Section 8.2 of the Agree ent, failed to give notice of its intent to enter interstate cc==erce, and covertly attecpted to force all cembers of TIS and STP into synchronous interstate oper tion against their will. The injunctive relief provided in .is Court's opinion and judgment will protect Houston Lighting & Power frc: further precipitous actions by CFL designed to circumvent the participatien agreement or force interstate operation en Houston Lighting & Power through subterfuge rather than negotiation.

The Plaintiffs raised the Nuclear Regulatory Cc=nission proceedings, the Ate:ic Energy Act, and the new Federal Energy Act by referring to them throughout these proceedings.

See supplemental findings of fact proposed by plaintiffs, at 12-13 (Nov. 22, 1978); plaintiffs' trial brief at 10-11; plaintiffs' closing argument, Tr. 3620, 21. Plaintiffs specifically requested findings under the Public Utility Regulatory Policies Act of 1973 in their supple = ental findings of fact proposed by plaintiffs (proposed finding 100a; filed Nove=ber 22, 1978), and in a letter brief filed by the plaintiffs en Dece ber 13, 197-. Plaintiffs attached to the latter document a copy of the pertinent portions of the Act.

The Court cust also evaluate the reasonableness of Defendants' acticns under Section One of the Sherran Act.

The history of the restraint, the evil believed to exist, the nature of the business, the public interest, and the reasons >r adopting a particular re edy are all relevant concideratica under a " rule of reason" analysis. Chicano 311 193

i e

Soard of Trade v. United 3tates, 246 U.S. 231, 238, 38 S.Ct.

242, 244, 62 L.Ed. 683 (1918). Plaintiffs, for exa=ple, recognized these considerations in their trial brief and in their proposed findings of fact and conclusions of law.

"14 air: tiff s do agree that either defendant irmividcally would be justified in refusing intcrsear.ection which would have an irreparable '

adverso affect on its system, and thereby jeopardize the s afety and we?.1 being of its custo:ers."

Plaintiffs' trial brief, Septe=ber 29, 1978 at 52.

"88. Mode 4 operation will not adversely affect the e<arations or reliability of any electric sys te= in Texas, and in f act =ay have so=e beneficial effects on the operations on these other syste=s ,"

Plaintiffs' proposed findings of fact and conclusions of law filed October 3, 1973. Findings 14-17 and 19-22 all relate to the Court's analysis under the " Rule cf Ressen", in addition to the Public Utility Regulattry Policies Act of 1978.

Plaintiffs als~ raise in thic 93se the legality of defendants' actions in ic:aticn to the FPC, PUC, "RC and SIC proceedings. See plaintiffs' trial brief at 22-26; Tr.

2312-2822. Plaintiffs continually attathed defendants' petitions to various governmental agencies and courts. See Tr.

2813; 2S22; 2824; 2846; 3467-3476; 3674. These petitions sought to persua de these bodies to retain the Texas intrastate syste=. ?laintiffs proposed findings which implied that the Defendants had i= properly sought agency or court rulings.

Tacita Quacdas habentur pro expresis. See proposed findings of fact and conclusions of law No. 60,73, 7A filed Octobe; 3,1978; supple ental findings of fact preposed by plaintiffs ,

No. 77J, filed Nove:ber 22, 1978; amended findings of fact and cenclusions of law proposed by Plaintiffs, No. ac 0, *90, filed "ove ber 22, 1978. Plaintiffs specificallyrequested that these acticns by the defendants and the Te:;as Public Utility Cc=:ission be incorporated as a part of the facts cc:prising the alleged anti trust violaticas in thi_ case.

'"90. At a =ini=u=, the actions of defendants and c:hers in the order of the Texas Public fh/f

t

• Utility Cc==ission have foreclosed an inter-state =arket of electric energy worth billions of dollars."

Plaintiffs" proposed findings of fact and conclusiens of law, filed October 3, 1973.

The Plaintiffs raised these issues, and in conclusions 23 and 24 the Court has deter =ined that defendants' atte= pts to petition various govern = ental bedies were genuine atec= pts to influence public officials, were not a sha= to cover up an at_e:pt to directly interfere with plaintiffs' business relationships, were not part of any alleged antitrust violations, and were protected by the First Anend=ent.

The notion of the Plaintiffs under Rules 59 and 52(b) is hereby overruled. Certified copies of the =e=orandu=

opinion filed January 30, 1979, the judg=ent filed February

+

27, 1979, and this order shall be sent to the Texas Public Utilities Cc==ission, the Nuclear Regulatory Co==ission, the Federal Energy Regulatory Co==ission, and,the Securities &

Exchange Co==ission where related =atters are currently pending.

It is so ORDERED.

l - .

UnlTED STATES DIST.11CT JUDGE DN~E V4m tf , I ~ A "

$l

l. Even if the SI? ag .c h.2d the characteristics cf an agee:xnt in violatien of Secticn 1, plaintiffs cnly established de cir'- = cc: petition betwecn plaintiffs and defend =ts, and "Defe.d=ts can't censpire to deprive plaintiffs of a rr.rket they do not share r.d cannot share. . " Plaintiffs' ccrplaint also nced caly one of the peticipcnts in the STP, Housten Lig;hting c.d Pcstr Co. . as a defc.d= cr alle;;ed co-ccaspirator in this case. If the evidence es*4 11shed est the STP agrecaent did violate the antitrust is.es, stich it dces not, the court cculd not grant the plaintiffs relief because the proper defend =ts smld not be befcre this Ccet.

311 196

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIOJ BEFORE THE ATOMIC SAFZTY AND LICENSING BOARD In the Matter of )

)

HOUSTON LIGHTING & POWER ) Docket Nos. 50-498A COMPANY, et al. ) 50-499A

)

(South Texas Project, )

Units 1 and 2) )

)

)

TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY, et al. ) 50-446A

)

(Comanche Peak Steam Electric )

Station, Units 1 and 2) )

CERTIFICATE OF SEP.VICE I HEREBY CERTIFY that copies of the foregoing letter dated May 23, 1979, and Order dated May 15, 1979, were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 23rd day of May.

h%h.fLe <

3)\ 147

Marshall E. Miller, Esquire

• Mr. Jerome D. Saltzman U.S. Nuclear Regulatory Commission Chief, Antitrust and Indemnity Washington, D. C. 20555 Group U. S. Nuclear Regulatory Commission Washington, D. C. 20555 J. Irion Worsham, Esquire Michael L. Glaser, Esquire

• Merlyn D. Sampels, Esquire 1150 17th St:reet, N.W. Spencer C. Relyea, Esquire Washington, D. C. 20036 Worsham, Forsyth & Sampels 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201 Jon C. Wood, Esquire W. Roger Wilson, Esquire Sheldon J. Wolfe, Esquire

• Matthews, Nowlin, Macfarlane U.S. Nuclear Regulatory Commission & Barrett Washington, D. C. 20555 1500 Alamo National Building San Antonio, Texas 78205 Charles G. Thrash, Jr., Esquire E. W. Barnett, Esquire Atomic Safety and Liccnsing Theodore F. Weiss, Esquire Appeal Board Panel J. Gregory Copeland, Esquire U. S. Nuclet Regulatory Commission Baker & Botts Washington, J. C. 20555 3000 One Shell Plaza Houston, Texas 77002 R. Gordon Gooch, Esquire Chase R. Stephens, Supervisor * (20) Baker & Botts Docketing and Service Branch 1701 Pennsylvania Avenue, N.W.

U. S. Nuclear Regulatory Commission Washington, D. C. 20006 Washington, D. C. 20555 311 198

Rey P. Lessy, Jr. , Esquire

• G. W. Oprea, Jr.

Michael B. Blume, Esquire Executive Vice President U. S. Nuclear Regulatory Commission Houston Lighting & Power Company Washington, D. C. 20555 P. O. Box 1700 Houston, Texas 77001 Roff Eardy Richard D. Cudahy, Esquire Chairman and Chief Executive Joseph Gallo, Esquire Officer Robert H. Loeffler, Esquire Central Power and Light Company Isham, Lincoln & Zeale P. O. Box 2121 1050 17th Street, N.W., Suite 701 Corpus Christi, Texas 78403 Washington, D. C. 20036 Michael I. Miller, Esquire Richard E. Powell, Esquire G. K. Spruce, General Manager David M. Stahl, Esquire City Public Service Board Thomas G. Ryan, Esquire P. O. Box 1771 Martha E. Gibbs, Esquire San Ar;tonio, Texas 73203 Isham, Lincoln & Beale One First National Plaza Chicago, Illinois 60603 Mr. Perry G. Brittain Don R. Butler, Esquire Texas U lities Generating Company nee ' '

Per 2001 Bryan Tower Dallas, Texas 75201 P. O. Box 1409 Austin, Texas 78767 R. L. Hancock, Director Jerry L. Harris, Esquire City of Austin Electric Utility Richard C. Balough, Esquire P. O. Box 1086 City of Austin Austin, Texas 78767 P. O. Box 1088 Austin, Texas 78767 311 i99

Joseph B. Knotts, Jr., Esquire Douglas F. John, Esquire Nicholas S. Reynolds, Esquire Akin, Gump, Hauer & Feld Debevoise & Liberman 1333 New Hampshire Avenue, N.W.

1200 17th Street, N.W. Suite 400 Washington, D. C. 20036 Washington, D. C. 20005 Melvin G. Berger, Esquire

• Don H. Davidson Ronald Clark, Esquire City Manager Frederich H. Parmenter, Esquire City of Austin Judith Linda Harris, Esquire P. O. Box 1088 Susan B. Cyphert, Esquire Austin, Texas 78767 Energy Section Antitrust Division U.S. Department of Justice 414 lith Street, N.W., # 9412 Washington, D.C. 20004 Jay Galt, Esquire Morgan Hunter, Esquire Looney, Nichols, Johnson & Hays Bill D. St. Clair r Esquire 219 Couch Drive McGinnis, Lockridge & Kilgore Oklahoma City, Oklahona 73102 Fifth Floor Texas State Bank Building 900 Congress Avenue Austin, Texas 78701 Knoland J. Plucknett W. S. Robson Executive Director General Manager Committee on Power for the South Texas Electric Cooperative, Southwest, Inc. Inc.

5541 East Skelly Drive Route 6, Building 102 Tulsa, Oklahoma 74135 Victoria Regional Airport Victoria, Texas 77901 John W. Davidson, Esquire Robert C. McDiarmid, Esquire Sawtelle, Goode, Davidson & Tioilo Robert A. Jablon, Esquire 1100 San Antonio Savings Building Marc R. Poirier, Esquire San Antonio, Texas 78205 Spiegel & McDiarmid 2600 Virginia Avenue, N.W.

Washington, D. C. 20036 31\

Kevin B. Pratt Texas Attorney General's Office P. O. Box 12548 Austin, Texas 78711 William H. Burchette, Esquire Frederick H. Ritts, Esquire La'a Offices of Northcutt E'y Watergate 600 Building Washington, D. C. 20037 Tom W. Gregg, Esquire P. O. Box Drawer 1032 San Angelo, Texas 76902 Leland F. Leatherman, Esquire McMath, Leatherman & Woods, P.A.

711 West Third Street Little Rock, Arkansas 72201 Paul W. Eaton, Jr., Esquire Hinkle, Cox, Eaton, Coffield &

Hensley 600 Henkle Building {}j P. O. Box 10

}))

Roswell, New !!exico 88201