ML19269C381
| ML19269C381 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 01/18/1979 |
| From: | Ahearne J, Bradford P, Hendrie J, Kennedy R NRC COMMISSION (OCM) |
| To: | |
| Shared Package | |
| ML19269C382 | List: |
| References | |
| REF-10CFR9.7 SECY-78-415A, SECY-A-79-004, SECY-A-79-4, NUDOCS 7902020038 | |
| Download: ML19269C381 (140) | |
Text
DRIGlhA.
MUCLEAR REGULATORY COMMISSION -
IN. THE MATTER OF:
PUBLIC MEETING AFFIRMATION SESSION 79-1 Ptace -
Washington, D. c.
Octe -
Thursday, 18 January 1979 Pages 1 - -;
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DISC!. AIMER This is an unofficial transcript of a meeting of the United States Nuclear Regulatory Commission held on 18 January 1979 in the Commission's offices at 1717 H Street, N. W., Wasnington, D. C.
The meeting was open to public attendance and observation.
Th'is transcript has not been reviewed, corrected, or edited, and it may contain inaccuracies.
. The transcript is intended solely for general informatfonal purposes.
As provided by 10 CFR 9.103, it is not part of the formal or informal record of decision of the matters discussed.
Expressions of opinion in this transcript do not necessarily reflect final determinations or beliefs.
No pleading or other pacer may be filed with the Cc= mission in any proceeding as the result of or addressed to any statement or argument contained herein, except as the Commission may authorize.
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2 CR 2296 1
UNITED STATES OF AMERICA MIMIE: mask herm 2
NUCLEAR REGULATORY COMMISSION 3
4 PUBLIC MEETING 5
6 AFFIRMATION SESSION 79-1 7
6 9
Room 1130 1
l 1717 H Street, N.W.
10 Washington, D.
C.
11 Thursday, 18 January 1979 12 The commission met, pursuant to notice, at 3:55 p.m.
13 BEFORE:
14 DR. JCSEPH M. HENDRIE, Chairman 15 RICHARD T.
KENNEDY, Commissioner PETER A. BRADFORD, Commissioner 17 JOHN F. AHEARNE, Commissioner I
18 l
19 PRESENT:
I 20 Mr. S. Chilk I
21 l
22 23 24 c -Fedmf Recomn, Inc.
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I CR2296
_P _R O _C _E _E D _I _N _G _S i
2 CHAIRMAN HENDRIE:
Okay, Sam, why don't you 3
take us forward and get us affirmed.
4 MR. CHILK:
First consent calendar paper 5
68-614 dealing with NRC Regulation of the Medical Uses of i
6 Byproduct Material, involves a final statement of general 7
policy identifying our future role in the regulation of 8
medical uses of byproduct material.
9 All of you have approved the recommendation of 10 I the Staff unanimously.
11 Commissioner Kennedy has requested a quarterly 12 report which will be in the Guidance Memo.
13 I ask you to affirm.
I4 COMMISSIONER KENNEDY:
Aye.
15 COMMISSIONER BRADFORD: Aye.
16 COMMISSIONER AHEARNE:
Aye.
17 CHAIRMAN HENDRIE:
So ordered.
18 MR. CHILK:
78-615, deals with Effective Amendments I9 to 10 CFR Part 35 to Chance Conditons of Group Medical 20 Licenses and to obtain approval of a notice of final rule-21 making that will lead to designation of certain diagnostic 22 procedures from the group medical practice.
23 All of you have approved.
Commissioner Bradford 24 has commented that he wanted us to check with FDA which has Fecerol Reporters, Inc.
25 been done.
4 I
mm2 Commissioner Kennedy has made some minor changes 2
in the letters and the policy and the rule, and that has l
been cleared with all of you.
4 I ask you for your affirming votes.
COMMISSIONER KENNEDY:
Aye.
6 COMMISSIONER BRADFORD:
Aye.
COMMISSIONER AHEARNE:
Aye.
8 CHAIRMAN HENDRIE: So ordered.
9 MR. CHILK:
78-415, which is Elimination of the 10 1 5(N-18) Dose-Averaging Formula and is to obtain Commission approval, publish for comment proposed changes to these 12 regulations.
13 You have approved the recommendations of the 14 Staff unanimously subject to modifying the notice to get 15 specific public comment on the removal of the quarterly dose 16 limitation.
17 I ask you to affirm your votes.
18 COMMISSIONER KENNEDY: Aye.
19 COMMISSIONER BRADFORD:
Aye.
20 COMMISSIONER AHEARNE:
Aye.
21 CHAIRMAN HENDRIE:
So ordered.
22 MR. CHILK:
Reluctantly.
23 (Laughter.)
24 SECY-A-79-4,which is a Matter of South Carolina
,,,,,g,,,
g, 25 Electric & Gas, to inform the Commission of a petition for
5 fsignificantchanges,andtoproposethattheCommissionsetl 1
3 2
up a schedule to allow Central Electric Coop 20 days and the l
l 3
Staff 40 days.
4 You have unanimously approved the recommendation 5
of the paper, but by a four to one vote, you have also l
6 approved prcviding the Staff an additional ten days to l
7 comment on the Applicants.
8 I ask you to affirm your vote.
9 Commissioner Bradford non-concurred in the addi-10 I tional ten days, but has no objection to --
11 CHAIRMAN HENDRIE:
But is willing to be voted 12 down.
i 13 COMMISSIONER BRADFORD:
Yes.
14 CHAIRMAN HENDRIE:
On that point.
15 CHAIPMAN BRADFORD: Well, don't press your luck.
16 (Laughter.)
17 CHAIRMAN HENDRIE: You are willing to have a vote 18 taken on that point.
I am sorry, you are right.
I ought i'r not to push my luck.
20 MR. CHILK:
I ask you to affirm your vote.
21 COMMISSIONER KENNEDY:
Aye.
22 COliMISSIONER BRADFORD: Aye.
23 COMMISSIONER AHEARNE:
Aye.
24 CHAIRMAN HENDRIE:
So ordered.'
-Fooerm Reconm, Inc.
25 MR. CHILK:
Thank you.
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CHAIRMAN HENDRIE:
That's it.
2 (Whereupon, at 4:00 p.m.,
the hearing in the I
3 above-entitled matter was adjourned.)
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7 8
9 10 11 12 I
13 14 15 16 17 18 19 20 21 22 23 24
.Feeerst Reporters, Inc.
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January 11, 1979 9FCY-A 70 d 6 R Q, To UMTED SMTEs NUCLEAR REGULATORY COMMISSION
\\" I I-N ADJUDICATORY lTEM 8 * "a h St.ssion CONSENT CALENDAR ITEM.
To:
The Commission From:
James L. Kelley, Acting General Counsel
Subject:
In the Matter of South Carolina Electric
& Gas, et al. (Operating License)
Facility:
Virgil C. Summer Nuclear Station (Unit 1)
Purcose:
(1)
To inform the Commission of a petition (attached) for a finding of "signifi-cant changes" so as to require anti-trust review, and related pleadings filed by the parties (2)
To propose that the Commission set up a schedule to allow Central Electric Power Cooperative 20 days from the Commission's order to clarify and support its petition; and to direct the staff to file its views thereon within 40 days from the Commission's order, inviting other parties to provide any further response they may wish to '.ake by that date.
Discussion:
On December 6, 1978, Central Electric Power Cooperative (Central) petitioned the Commission to make a finding of "significant changes" in licensees', South Carolina Electric and Gas (SCE&G) and South Carolina Public Service Authority (St itee Cooper), activities and proposed activities so as to initiate antitrust review.*
Central's petition originally requested an antitrust hearing as well; however, Central withdrew the request for hearing by letter to Mr. Chilk on December 22, 1978, and only the request for a "significant change" finding remains for Commission determination.
Contact:
Marjorie S. Nordlinger, CGC 634-1465
-e.-.
2 The petition was properly lodged with the Ccmmission.
The Commission has never delegated its sta3utory authority to make the threshold determination of "significant changes" prescribed by section 105(c)(2) of the Atomic Energy Act which is a condition precedent for antitruet review at the operating license stage."
As the Commission noted in its South Texas decision, 5 NRC 1308, 1318, "the mechanism for making 'significant changes' deter-mination is not spelled out in our rules."
Nonetheless, the significance of the determination is not in doubt.
On a find-ing of significant changes, the Commission forwards the matter to the Attorney General for review.
The Attorney General is required by statute to advise the Commission within 180 days whether or not an antitrust proceeding should be commenced.
If the Attorney General recommends a hearing it is agreed that the statute requires the Commission to provide one.
If the Attorney General finds that a hearing is not necessary, the Commission must Ttill publish that advice and provide opportunity for interested parties to request a hearing.
Central's petition is somewhat cryptic.
It appears, however, to allege that since the Attorney General's advice at the construction license stage was issued on March 31, 1972, SCE&G and Santee Cooper entered an agreement to restrict competition.
Central provides background facts apparently to suggest The statute provides that there shall be review at the cperating license stage only where the Commission has determined "such review is advisable on the ground that significant changes in the licensees' activities or prcposed activities have occurred subsequent to the previous review by the Attorney General and the Commission... in connection with the construction permit for the facility."
3 that tha Commission conclude that the agreement was the culmination of a pattern of behavior intended to eliminate Santee Cooper as a competitor.
Central further complains that it had itself
" linked its destiny to Santee Cooper" in an arrangement premised on the assumption that Santee Cooper would retain its competitive role vis-a-vis SCE&G and other private companies.
On the contrary, Central now alleges, Santee Cooper has not so competed since July 9, 1973 and through a dual pricing mechanism is restraining Central's member customers from competing for sales of large power loads.
Central contends that the parties to the alleged restrictive agreement sought legislative approval of the agreement.
It appears from subsequently filed pleadings of applicants that the South Carolina legislature has in fact legis-lated a division of territories for the purpose of providing power.
Central requests prompt action, claiming that it would be injured were there to be any delay in granting an operating license for the Summer unit, since it is dependent on Santee Cooper for most of its power supply.
Santee Cooper has responded by letter of December 21, 1978 asking permission of the Commission to file a more complete response by January 15.
SCE&G's response has come in the form of a motion to dismiss or, in the alternative, fc '
summary disposition.*
Central has asked leave to respond to SCE&G's motion by January 31, 1979
4 Applicants have already pleaded in defense, among other things, a failure on Central's part to allege significant changes since the relevant date and lack of timeliness.*
Applicants contend that under the doctrine of Parker v. Brown, 317 U.S.
341 (1943),
any changes in competitive structure resulting from state regulatory legisla-tion have immunity from the federal anti-trust laws.
Such changes would be therefore beyond NRC's jurisdiction and can not qualify as significant changes.
Addition-ally, SCE&G has called to the Commission's attention the March 31, 1972 advice of the Attorney General (at the construction permit stage) which took note of the negotiations of Santee Cooper for a share in the plant's output, either on an ownership or a purchase basis.
The point is made that since the change in ownership was anticipated it would not be a significant change so as to trigger antitrust review.
SCE&G makes the further claim that the Attorney General examined Applicants' competitive positions as they affect and were affected by Central.
On the other hand, the gist of Central's complaint suggests that the situation has indeed changed since tne Attorney General's conclusion that there would be an adequate alternative in bulk power supply.**
This matter presents the Commission with a contested request to make a significant changes determination.
The pleadings already filed demonstrate that considerable uncertainty exists with regard to the nature of the showing petitioner must make.
Applicants have also complained of Central's failure to identify the relief sought and other failures which relate to the now stricken request for hearing.
See sections of the Attorney General's advice quoted at
- p. 6 of SCE&G's motion to dismiss.
5 Because the statute places upon the Commission the responsibility of making a significant changes determination, we think it is reasonable for the Commission to ask for additional information from the parties.
But it is important to bear in mind that the determination the Commission will make is of a threshold nature and therefore a petitioner for such a determination ougnt not to be required to make a showing of the same force as would be required to request an antitrust hearing after the Attorney General had advised that no hearing was required.
It should be sufficient for the petitioner to alert the Commission to sufficient changes that have altered significantly or have the potential significantly to alter the competitive situation such that the Attorney General's advice would be advisable.
Otherwise stated, the petition need merely allege such facts and state such antitrust significance as to cause the Commission to inquire further.
At the conclusion of the Commission's inquiry (to be accomplished by requests for briefings from the parties) the Commission should be in a position to decide whether or not to make a significant changes determination.
We recommend that the Commission clarify what is expected of the parties.
In light of the number of pleadings already filed, we suggest the following course of action to avoid duplication and confusion.
First, we suggest that the Commission permit Central to amend its petition within 20 days of the issuance of the attached proposed order.
Central should state more clearly and explain what changes have occurred since the last antitrust review that in its view have
6 caused the proposed license to be incon-sistent with the antitrust laws.
It should also be asked to respond to the following issues:
(1) whether the operative date for determining whether changes have transpired is the date of the Attorney General's past advice or whether any other date would be consistent with the policy underly-ing the statutory plan for antitrust review; (2) whether the Attorney General's advice anticipated the changes Central now alleges and took account of those changes in arriv-ing at a no hearing recommendation; and (3) whether changes in the competitive structure flowing frcm state legis-lation may constitute or contribute to significant changes within the meaning of S 105(c)(2).
The Commission should state that pleadings already filed by Applicants address these issues in some measure; however, the parties should be invited to submit any further response they care to make within 40 days of the issuance of the attached proposed order.
The staff should be directed to file its views in this matter within 40 days after issuance of the proposed order.
The staff's views should include as well a description of any inquiry and conclu-sions the Staff made independently at the time of the application for the operating license with regard to whether or not significant changes had taken place.
The criteria, if any, for the Staff's decision in this regard should be inc?uded.
7 Recommendation:
That the Commission issue the attached proposed order.
The Commission's regulations in certain instances provide the NRC staff with a longer period for filing documents than other parties.
- See, e.g.,
2.762(b).
The theory of the rule is that the staff represents the public interest and that therefore staff should have an opportunity to comment on the filings of the other parties, who represent various private interests.
The rule is inappli-cable to filings with the Commission, but the Executive Legal Director has informally suggested to me in the past that the Com-mission adopt this practice of affording more time to the staff when it sets up filing schedules.
The schedule we propose for the instant case does not include this feature, because, on balance, I would prefer to treat staff like any other party.
There is, however, something to be said for an opportunity for ataff reaction to all other pleadings, and the Commission is free to adopt the practice of providing for it.
3b bs#
ew ames L. h'elley cting General Counsel Attachments:
1.
Petition 2.
Proposed Order Commissioners' coments should be provided directly to the Office of the Secretary by c.o.b. Wednesday, January 17.1979.
Comission Staff Office comments, if any, should be submitted to the Commissioners NLT January 16, 1979, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additiona' time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
Thia paper is tentatively scheduled for affirmation at an Open Meeting on Thursday, January 18, 1978.
Please refer to the appropriate Weekly Comission Schedule, when published, for a specific time.
DISTRIBUTION:
Comissioners Comission Staff Offices Secretariat