ML19269C384
| ML19269C384 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 01/11/1979 |
| From: | Kelley J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML19269C382 | List: |
| References | |
| REF-10CFR9.7 SECY-A-79-004, SECY-A-79-4, NUDOCS 7902020040 | |
| Download: ML19269C384 (17) | |
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UNITED STATES OF AMERICA ll NUCLEAR REGULATORY COMMISSION egggy g
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South Carolina Electric &
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d.yl V c' Gas Company
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and
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Docket No. 50-395A
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South Carolina Pub'lic
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Service Authority
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(Virgil C. Summer Nuclear
)
S{ation Unit No. 1)
)
Petition for a Finding of Significant Change and Request for Antitrust Bearing on Operating License Central Electric Power Cooperative, Inc. (a South Carolina corporation), pursuant to Section 105(c)(2) of the Atomic Energy Act of 1954 as amended, requests the Nuclear Regulatory Commission to determine that sig-nificant changes in the licensees' activities and proposed activities have occurred subsequent to the previous anti-trust review of the Atomic Energy Commission and the Attorney General and to order an antitrust review and hearing prior to granting an operating license.
Applicant South Carolina Electric & Gas Company (hereinafter SCE&G) was granted a construction permit for Summer Nuclear Station, Unit No. 1 ]n March 19, 1973.
Tne antitrust review of the Attorney General occurred in 1971 and 19.72 and his advice was issued on March 31, 1972.
790202otv/h Attachent 1 e
Sub' sequent thereto, the South Carolina Public Service Authority (hereinafter Sant'se-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 sale of electric power at wholesale and at retail 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 legislature would immunize tneir~otherwise unlawful agreement from operation of the antitrust laws.
On information and belief, in consideration f or Santee-Cooper's agreement to the aforesaid restraint of trade in electric power, SCE&G agreed to sell to Santee-Cooper an interest in the captioned nuclear generating unit.
For many years prior to July, 1973, Santee-Cooper's role.in the power market in South Carolina was that of an agressive entrant into the market and an actual and potential competitor of SCE&G and other nearby private electric companies.
On information and belief, in 1935 those companies attempted by third party litigation to eliminate Santee-Cooper as a potential competitor.
See Clarke v. South Carolina Public Service Authority, 256 S.C.
167, 181 S.E. 481- (1935).
Shortly thereafter these private elec-tric,
companies, fearing its actual and potential competition, unsuccessfully undertook in the Federal Courts to en]oin the construction and operation of Santee-Cooper.
- See, Carolina Power & Light Comoany v. South Carolina Public Service Authority, 20 F. Supp. 854; 94 F.2d 520 (4th Circuit 1938).
In 1942 Santee-Cooper made an unsuccessful attempt to extend its power operations and sales into central South Carolina by purchasing existing facili-ties of the Lexington Water Power Company and other private companies.
See, Creech v.
South Carolina Public Service Authority et al. 200 S.C.
127, 20 S.E.2nd 645 (1942).
In 1949 the private electric companies failed in their attempt to block Santee-Cooper's extension of electric service to central South Carolina.
See, South Carolina Electric & Gas Comoanv v. South Carolina Public Service Authority, 215 S.C.
193, 54 S.E.2nd 777.
Prior to the 1950's the cooperatives and municipal electric utilities in South Carolina lacked access to power exchange alternatives and were therefore unable to compete in the wholesale power market.
When Santee-Cooper succeeded in entering the market, Central linked its destiny to Santee-Cooper by financing and constructing a large transmission system and thfrmal generating system in central South Carolina and leasing said systems to Santee-Cooper for integration with its power facilities.
Santee-Cooper's operation of the aforesaid f acilities was under a plan in which Santee-Cooper would meet the interest and principal obligation on the 3-
~
facilities over the period recuired to amortize the out-standing indebtedness and thereafter it would succeed Central as the owner of these facilities.
At the heart of the arrangement was the premise that Santee-Cooper would retain its competitive role in electric bulk power supply in South Carolina.
At present about 1/2 of Santee-Cooper's approximately 1200 MW total load is its wholesale service to Central.
Since July 9, 1973 Santee-Cooper has no longer com-peted with the private electric companies.
Other than continuing for the present to fulfill its contractual commitments to Central, Santee-Cooper limits its sales to 3 counties in South Carolina and to large power sales of over 750 KW in retail service territories assigned under state 1,w to Central's member rural electric distri-bution cooperatives.
It is noteworthy that Central is almost entirely depen-dent on Santee-Cooper for bulk power supply and that the latter has initiated a policy of dual rates to Central for supplying power to Central for ultimare resale to large power loads.
The aforesaid dual rates unfairly restrain Central's members from competing for such large power loads.
Under applicable state law, Central's member-customers who are toral electric distribution cooperatives face compe-tition both from Santee-Cooper and from private electric companies including Applicant for operating license, SCE&G.,
Wherefore, petitioner Central respectfully recuests that the Commission make a finding of significant cnange and order an antitrust review ce made and a hearing held on said operating license as soon as may be found convenient.
Central notes that it is dependent on Santee-Cooper for almost all of its power supply and would suffer serious in;u;y if there were to be any delay in granting an operating license for said Summer unit.
N Please make service of all papers in connection with the foregoing matter on the undersigned attorneys at the addresses indicated, and on Mr.
P.
T.
Allen, Executive Vice President and General Manager, Central Electric Power Cooperative, Inc.,
P.O.
Box 1455, Columbia, South Carolina 29202.
Respectfully submitted, CENTRAL ELECTRIC POWER COOPERATIVE, INC.
///M/MW [
sy hallace E.
Stano PEARCE & BRAND 1000 Connecticut Ave., N.W.
Suite 1200 Washington, D.C.
20036 Telephone:
(202) 785-0048 Attorneys for Central Electric By C.
Pinckney Roberts DIAL, JENNINGS, WINDEAM, THOMAS
& ROBERTS P.O.
Box 1792 Columcia, South Carolina 29202.
CERTIFICATE OF SEPNICE I, Wallace E. Brand, hereby certify thct I have served a copy of the foregoing Petition for a Finding of Significant Change and Request for Antitrust Hearing on Operating L4 cense on the persons listed below by depositing a copy thereof, postage prepaid in the United States mail this 6th day of December, 1978.
.AM2 Y w
Wallace E.
Brari Mr.
W.
C. Mescher, President South Carolina Public
- %s Service Authority 1
223 N. Line Oak Drive Mancks Corner, S.C.
29461 jt e
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W Yh U.S. Nuclear Regulatory Commission i
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h Office of the Secretary 9 ( +"j;j$
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Attn:
Docketing and Service Branch Washington, D.C.
20555
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e Conner., Moore and Corber 1747 Pennsylvania Avenue, N.W.
casl Washington, D.C.
20006 U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C.
20555 Mr.
P.
T. Allen Executive V.P. and General Mgr.
Central Electric Power Cooperative, Inc.
P.O.
Box 1455
' Columbia, South Carolina 29202 C.
Pinckney Roberts Dial, Jennings, Windham, Thomas &
Rocerts P.O. Box 1792 Columoia, South Carolina 29202
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION THE COMMISSION:
Joseph M. Hendrie, Chainnan Victor Gilinsky Richard T. Kennedy Peter A. Bradford John F. Ahearne
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In the Matter of
)
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SOUTH CAROLINA ELECTRIC AND GAS,
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et al.
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Docket No. 50-395A
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(Virgil C. Summer Nuclear Station
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(Unit 1))
)
)
ORDER 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 (Santee Cooper), activities and proposed a'ctivities so as to initiate antitrust review prior to the grant of an, operating license for the Summer facility. /
Responsive and related correspondence have subsequently been.
addressed to the Commission by SCE&G and Santee Cooper, as well as Central.
Central's petition originally requested a hearing as well; however, Central withdrew the request for hearing by letter to Mr. Chilk on December 22, 1978.
2 The petition was properly lodged with the Commission.
The Conmission has never delegated its statutory authority to make the threshold determination of "significant changes" prescribed by section 105(c)(2) of the Atomic Energy Act as the condition precedent of anti-trust review at the operating license stage.
In order to make its decision cn whether or not a "significant changes" determination is warranted, the Commission requires additional information.
Accordingly, the Commission asks the assistance of Peti-tioners and Applicants in confonnity with the Yollowing schedule.
Within 20 days after the issuance of this order Central should amend its petition to state more clearly the changes it believes have occurred that should cause the Commission to refer the matter to the Attorney General for his advice.
The statement should include an explana-tion of the significance of those changes to the competitive situation.
Central's submission to us should also address 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 underlying 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 arriving at a "no hearing" recommendation; and
3 (3) whether changes in the competitive structure flowing from state legislation may constitute or contribute to significant changes within the meaning of s 105(c)(2).
Within 40 days after the issuance of this order:
1.
The Applicants may submit any further response they care to make.
2.
The Staff is directed to file its response to the petition and position on the issues stated above.
The Staff should include as well a description of any inquiry and conclusions 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 Staff should also state the criteria for any decision it made in this regard.
It is so ORDERED.
FOR THE COMMISSION Samuel J. Chilk Secretary of the Commission Dated at Washington, D.C.
January
', 1979.
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