ML19263B262
| ML19263B262 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 12/21/1978 |
| From: | Morrison H CAHILL, GORDON & REINDEL |
| To: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| References | |
| NUDOCS 7901150161 | |
| Download: ML19263B262 (3) | |
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- L a q g oE 6a o4coeor P t o o e. 8 a m e s r e e N C E NENT Rooy December 21, 1978 Re:
South Carolina Electric & Gas Company v.
South Ca olina Public Service Authority (Virgil Summer Nuclear Station Unit No. 1)
NRC Dockat No. 50-395
Dear Mr. Chilk:
The South Carolina Public Service Authority
(" Santee Cooper") is a co-owner of the Virgil C.
Summer Nuclear Station, Unit No.
1, which is nearly completed.
Central Electric Power Cooperative, Inc.
(" Central") has filed an unverified document, denominated a " Petition for a Finding of Significant Change and Request for Antitrust Hearing on Operating License"
(" Petition").
The Petition raises several factual allegations against Santee Cooper, but is not supported by affidavit or other verification.
Apparently, Central seeks an antitrust review of the Summer operating license, although it totally fails to indicate what substantive relief it seeks.
First, Santee Cooper denies generally various factual allegations made by Central in its Petition.
Second, the most elementary requirement of a petition seek-ing "a finding of significant change" is at least an asser-tion that there has been a significant change since the earlier relevant date.
The Central petition attempts to create the impression that the relevant date was the date the Attorney General's letter of " advice was issued on March 31, 1972."
(Petition at 1).
In fact, even the Petition indicates (at 1) that the construction permit was granted on March 19, 1973.
The crucial fact, however, is that Amendment No. 2 to Construction Permit No. CPPR-94 was issued by the Commision on December 3, 1974.
That Amendment 790115016l
Cutzt.L Gonoos & Re:NDEL.
permitted South Carolina Public Service Authority to receive a one-third ownership in the facility.
As the Notice of Issuance of Amendment to Construction Permit states:
" Notice of the proposed action was published in the Federal Register on October 17, 1974 (39 F.R.
37088).
No request for hearing or request for petition to intervene was filed."
Thus, since Central failed to avail itself of its statutory right to seek intervention and a hearing when it had an opportunity to do so in late 1974, it is obvious that it is incumbent upon Central to both allege and verify a "significant change" after late 1974.
Not only is Central's Petition legally insufficient, but on its face it negates the possibility of "significant change" after 1974.
The Petition is quite specific in stating:
" Subsequent thereto, (March 31, 1972), the South Carolina Public Service Authority (hereinafter Santee-Cooper) entered into an agreement with South Carolina Electric & Gas Co. and other private electric companies operating in South Carolina, including Carolina Power &
Light Company, to restrict their competition in the sala of electric power at wholesale and at reta11 on and after July 9, 1973 in territories outside three counties and submitted said agreement to the legislature of the State of South Carolina in the hope that the adoption and enactment of said agreement by the legis-lature would immunize their otherwise unlawful agreement from operation of the antitrust laws."
(Emphasis supplied)
Again (at 4) the Petition states:
"Since July 9, 1973 Santee-Cooper has no longer competed with the private electric companies".
As indicated in the indented quotation above, the legislature enacted and, with the approval of the Governor on July 7, 1973, a law went into effect which, according to the Petition, was initiated by South Carolina Public Service Authority and South Carolina Electric and Gas Company "to immunize their otherwise unlawful (prior] agreement from operation of the antitrust laws".
While ae, of course, dispute that characterization, it is true that the Act determined the territories which each utility could lawfully serve.
CAHILL 60RDow & Ressort.
Without discussing the legal impact of the Act, the fact remains that its enactment was obviously known to Central.
(As we shall show by affidavits, Central's " price" for agreeing not to oppose the passage of the Act was its amendment to provide that a member of the Board of Directors of South Carolina Public Service Authority have a coopera-tive background.)
In any event, the Petition not only fails to allege any substantial change after 1974, but conclusively negates any such conclusion.
Third, Santee Cooper believes that Central's Peti-tion is subject to dismissal on grounds of legal insuffi-ciency and laches.
No mention was even made in the petition of the fact that notice of the application for an operating license was published in the Federal Register of April 17, 1977 and certainly no effort was made to explain or justify what on its face is an inexcusable delay in filing the peti-tion.
Stripped of its verbage, all the Petition alleges is that since the territorial statute was passed in 1973, Santee-Cooper has been acting pursuant to the raquirements of State law.
For the above reasons, Santee-Cooper believes Central's petition is legally insufficient.
It desires the opportunity to respond in depth to Central's petition.
The time for an answer to petitions of this nature is apparently not specified in the Commission's rules.
In view of the nature of the Petition, Santee-Cooper wishes to demonstrate its baselessness.
Counsel are reviewing the facts and will submit affidavits and documentation exposing the factual flaws in the allegations.
In addition, counsel will demon-strate the legal insufficiency of the allegations.
Therefore, if permission is necessary, Santee-Cooper requests leave to file its response no later than January 15, 1979.
Sincerely, l
$1 )
Hugh Morrison, Jr.
Mr. Samuel Chilk Secretary Nuclear Regulatory Commission Attention: Docketing and Service Section Washingron, D.C.
20555 cc:
All parties