ML19269D353
| ML19269D353 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 04/23/1979 |
| From: | Berger M, Clark R, Harris J JUSTICE, DEPT. OF |
| To: | |
| References | |
| NUDOCS 7906020129 | |
| Download: ML19269D353 (62) | |
Text
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s Fig PUDLT DecE.iENT ROOM 8/ I c$i'JE UNITED STATES OF AMERICA ,,
k NUCLEAR REGULATORY COMMISSION g 51673 > L,.
BEFORE THE ATCMIC SAFETY AND LICENSING BOARD c(rg.Q# ,y od
.Q
)
In the Matter of )
)
HOUSTON LIGHTING AND POWER , ) Docket Nos. i S0-498A CO., et al (South Texas ) L50-499A _
Project, Units 1 and 2) )
)
- TEXAS UTILITIES GENERATING ) Docket Mos. 50-445A COMPANY (Comanche Feak Steam ) 50-446A Electric Station, Units 1 )
and 2) )
)
RESPONSE BY THE DEPARTMENT OF JUSTICE TO HOUSTON LIGHTING & POWER COMPANY'S MOTION FOR
SUMMARY
DECISION; TUGCO'S MOTION TO DISMISS CSW AS A PARTY INTERVENOR OR, IN THE ALTERNATIVE, FOR
SUMMARY
DISPOSITION, AND FOR STEPS TOWARD TERMINATION OF PROCEEDING; TUGCO'S MOTION FOR AN ORDER BARRING CP&L FRCM SEEKING TO OBTAIN ANY RELIEF HEREIN IN-CONSISTENT WITH THE DISTRICT COURT DECISION AND FOR
SUMMARY
DISPOSITION IN FAVOR OF TUGCO AND AGAINST CP&L; AND CITY OF AUSTIN'S BRIEF ON QUESTION OF COLLATERAL ESTOPPEL TO DISPOSE OF OR LIMIT THE ANTITRUST PROCEEDING BEFORE THE ATOMIC SAFETY AND LICENSING BOARD John H. Shenefield Donald L. Flexner Assistant Attorney General, Deputy Assistant Attorney Antitrust Division General ~
Antitrust Division Communications with respect to this document should be addressed to:
Donald A. Kaplan Judith L. Harris 9265 211 Chief, Melvin G. Berger Robert Fabrikant Ronald H. Clark Assistant Chief, Frederick H. Parmenter Energy Section Attorneys Antitrust Division Energy Section U.S. Department of Justice Antit. rust Division Washington, D.C. 20530 U.S. Department of Justice Washington, D.C. 20530
. April 23, 1979
\M 7 90602 0 M39
TABLE OF CONTENTS Page TABLE OF AUTHORITIES (iii)
BACKGROUND . . . . . . . . . . . . . . . . . . . . 2 I. THE RELIEF REQUESTED IN THE MOTIONS OF HL&P, TUGCO AND AUSTIN IS EITHER NOT PROVIDED FOR BY LAW OR NOT PROPERLY SOUGHT . . . . . . . . . 4 II. THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL DO NOT BAR THESE PROCEEDINGS . . . . . . . . . . . 12 A. Res Judicata and Collateral Estoppel Should Be Used Sparingly In Administrative Proceedings . . . . . . . . . . . . . . . 14 B. Applicants Have Not Established That There Is an Identity of Parties . . . . . . . . . . . . . . . . . 17 C. Applicants Have Not Established That There Is an Identity of Issues . . . . . . . . . . . . . . . . ~. 19 D. It Would Be Imprudent To Consider The Dallas Decision As a Final Decision For the Purpose of the Present Motions . . . . . . . . . . . . . 23 III. ACTION BY OTHER BODIES RELATED TO THE ISSUES IN THESE PROCEEDINGS CANNOT JUSTIFY DISMISSAL IN THE PUBLIC INTEREST, OR IN THE INTEREST OF JUDICIAL ECONOMY . . . 26 A. The Public Utility Regulatory Policies Act of 1978 Was Not Intended by Congress to Affect or Foreclose The NRC Prom Dis-charging its Responsibility To Weigh the Competitive Con- , . , .
sequences of Issuing a Proposed '
License . . . . . . . . . . . . . . . . 27
(*)
2265 212
il .' .
Page
- 1. Termination of these Antitrust Proceedings Decause CP&L has Applied for Interconnection and Wheeling under PUFPA Would Be Contrary To The Language and Congressional Intent of PURPA . . . 29
- 2. FERC's Limited Authority to Order Interconnections and Wheeling Under PURPA Does Not Recolve the Antitrust Concerns Which This Board Must Address Under Section 105c(5) of the Atomic Energy Act . . . . . . . . . . . . . . . . . . 33 B. The Order Issued By The Texas Public Utility Commission in its Docket No. 14 Should Not Preempt the Board from Acting in These Proceedings . . . . . . . . . . . . . . . 35 C. The Injunction Issued by Judge Porter in the Dallas Decision Does Not Preclude the Board from Issuing Appropriate Relief in .
These Proceedings . . . . . . . . . . . . 38 V. CERTIFICATION OF ANY QUESTION ARISING OUT OF THE PRESENT MOTIONS IS CONTRARY TO NRC PRECEDENT . . . . . . . . . . . . . . . . . 40 VI. CONCLUSION . . . . . . . . . . . . . . . . . 42 e
~ :.
2265 213 (ii)
- d. 1 TABLE OF AUTHORITIES CASES Page In the Matter of Alabama Power Co.
(Farley Nuclear Plant, Units 1 and 2),
ALAB-182, 7 AEC 210, (1974), remanded on other grounds, CLJ 74-12, 7 AEC 203 (1974) . . . . . . . . . . . . . . . . . . . 14 American Heritage Life Ins. Co. v.
Heritage Life Inc. Co., 494 F. 2d 3.(1974) . . . . . . . . . . . . . . . . . . . . 16 Blonder-Tongue Laboratories. Inc. v.
University of Illinois Foundation, 402 U.S. 313 (1971). . . . . . . . . . . . . . . . . 17, 18 Cartier v. Secretary of State, 506 F. 2d 191 (D.C. Cir. 1974) . . . . . . . . . . . 15 Commissioner of Internal Revenue v. '
Sunnen, 33 U.S. 591, 68 S. Ct.
715, 92 L. Ed. 898 (1948). . . . . . . . . . . . 19 In the Matter of Consumers Power Comoany (Midland Plant Units 1 and 2), ALAB-452, 6 NRC 892 (1977) (Midland). . . . . . . . . 16, 20, 22 Cromwell v. County of Sac, 94 U.S. 351 (1876) . . . . . . . . . . . . . . . . . . . . . 12 Drug Research Corporation, 63 FTC 998, 14 Ad. L. 2d 482 (1963) . . . . . . . . . . . . 7 Federal Power Commission v. Southern California Edison Co., 376 US 205 (1964) . . . . 37 .
Fibreboard Paper Prod. Corp. v. East -
Bay Union of Machinist, Local 1304, 344 F. 2d 300 (9th Cir), cert. denied, 382 U.S. 826 (1965) . . . . . . . . . . . . . . 25 First Buckingham Community, Inc.,
73 FTC 938, 23 Ad. L. 2d 423 (1968). . . . . . . .. . 7 (iii) 2265 214
, i Page Prehearing Conference Order No. 1 In the Matter of Florida Power &
Light Cortinany, (South Dade Plant),
Docket No. P-636A (dated July 29, 1976) (South Dade) . . . . . . . . . . . . . . . 19, 21, 24 Gainesville v. Florida Power & Light Co.,
573 F. 2d 292 (5th Cir. 1978).,. cert.
den., U.S. (1979). . . . . . . . . . . . 24 Haize v. Hanover Ins. Co., 536 F. 2d 576 (3d Cir. 1976). . . . . . . . . . . . . . . 17 Hansberry v. Lee, 311 U.S. 32 (1940). . . . . . . 17 Moog Industries v. FTC, 335 U.S. 411 (1958) . . . . . . . . . . . . . . . . . . . . . 7 Neaderland v. Commissioner, 424 F. 2d 639 (2d Cir.), cert. denied. 400 U.S.
827 (1970) . . . . . . . . . . . . . . . . . . . 19 New Mexico v. Texas, U.S. Supreme Court original Action No. 82 . . . . . . . . . . 36 In the Matter of Pacific Gas & Electric Company, (Stanis.aus Nuclear Project, Unit No. 1), LBP-77-45, 6 NRC 159 (1977) . . . . . . 5 Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 404 F. 2d 804 (D.C. Cir.
1968), cert. denied, 393 U.S. 1093 (1969). . . . 20 Parklane Hosiery Co. v. Shore, U.S. ,
47 U.S.L.W. 4079 (January 9, 1973) . . . . . . 13, 17, 18, 19 Pennsylvania v. West _ Virginia, 262 U.S.
553 (1923) . . . . . . . . . . . . . . . . . . . 36 Philadelphia v. New Jersey, U.S. ; .
98 S. Ct 2531 (1978) . . . . . . . . . . . . . . 36 Progressive Mine Workers of America, Dist. No. 1 v. National Labor Relations .
Board, 189 F. 2d 1 (7 th Cir. 1951) . . . . . . . 7, 8 Public Service Comoany of Indiana, Inc. ^-
(Marble Hill Nuclear Generating Station, >
Units 1 and 2), ALAB-405, 5 NRC 1190 (1977) . . . . . . . . . . . . . . . . . . . . . 41 (iv) 2265 215
Page In the Mattet of Public iervice comoany of New Hamoshire (Seabrook Station, Units 1 and 2), LI-78-1, 7 NRC 1 14 (1978) . . . . . . . . . . . . . . . . . . . .
In the Matter of Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977). . . . . . 14 Tepler v. E.I. du Pont de Nemours and Co.,
443 F. 2d. 125 (6th Cir. 1971) . . . . . . . . 20 Title v. Immigration and Naturalization Service, 322 F. 2d 21 (9th Cir. 1963). . . . . 20 In the Matter of the Toledo Edison Co.,
et al. (Perry Nuclear Plant, Units 1 and 2),
ALAB-378, 5 NRC 577 (1977) . . . . . . . . . . 14 In the Matter of the Toledo Edison Comoany, et al. (Davis-Besse Nuclear Power Station, Units 1, 2 and 3) and The Cleveland Electric Illuminating Company, et al.
(Perry Nuclear Power Plant, Units 1 and 2), LBP-77-1, 5 NRC 133 (1971) . . . . . . . . 22 In the Matter of The Toledo Edison Co.
et al (Davis-Besse Nuclear Power Station 24 Unit No. 1) ALAB-323, 3 NRC 331 (1976) . . . .
United Shoe Machinery Corp. v. United States, 258 U.S. 451 (1922) . . . . . . . . . 20 United S tates v. Smith, 482 F. 2d.
14 1120 (8th Cir. 1973) . . . . . . . . . . . . .
United States v. Utah Construction and Mining Co., 384 U.S. 394 (1966). . . . . . . . 14 -
West Texas Utilities Comoany, et al. v. -
Texas Electric Service Company, et al.,
No. CA 3-76-0633-F (N.D. Tex) (Dallas 2, 6, 27 Decision). . . . . . . . . . . . . . . . . . .
aa2 (v) 2265 216
I Page Young & Co. v. Shea, 397 F. 2d 185 15, 16 (5th Cir. 1968). . . . . . . . . . . . . . . . .
STATUTES AND LEGISLATIVE MATERIAL Atomic Energy Act, Section 105c, 42 U.S.C.
2135c . . . . . . . . . . . . . . . . . . . . . passim 10 C.F.R. 2.718. . . . . . . . . . . . . . . . . . 10 10 C.F.R. 2.730 . . . . . . . . . . . . . . . . . 41 10 C.F.R. 2.743(h) . . . . . . . . . . . . . . . . 10 10 C.F.R. 2.749. . . . . . . . . . . . . . . . . . 4, 5, 10 Clayton Act, Section 1, 15 U.S.C. S12. . . . . . . 31 124 Cong Rec. S17,801-2 (Oct. 9, 1978) . . . . . . 32, 35 Federal Power Act, 16 U.S.C. S824 et seg . . . . . passim H.R. Rep. No. 91-1470, 91st Cong., 2nd Sess.,
- p. 30 (1970) (Report by the Joint Committee on Atomic Energy on Amending the Atomic Energy Act of 1954 to provide for Pre-licensing Antitrust Review of Production and Utilization Facilities) . . . . . . . . . . . 8, 9 National Labor Relations Act, 29 USC S151 et seg. . . . . . . . . . . . . . . . . . . 8 Public Utility Regulatory Policies Act of 1978 (PURPA) - Pub. L. No.95-617, 92 Stat. 3117 (1978). . . . . . . . . . . . . . . . passim S. Doc. No. 91-1247. . . . . . . . . . . .. . . . 8 Sherman Act, Section 1, 15 U.S.C. S1 . . . . . . . 2, 14, 20 MISCELLANEOUS IB Moore, Federal Practice and Procedure, 10.408(1], p. 954. . . . . . . . . . . . . . . ... 13
_a Order of the Texas Public Utility Commission in Docket 14 . . . . . . . . . . . .. . . . . . 11, 27, 28 2265 217
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
HOUSTON LIGHTING ANL POWER ) Docket Nos. 50-498A CO., et al (South Texas ) 50-499A Project, Units 1 and 2) )
)
TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY (Comanche Peak Steam ) 50-446A Electric Station, Units 1 )
and 2) )
)
RESPONSE BY THE DEPARTMENT OF JUSTICE TO HOUSTON LIGHTING & POWER COMPANY'S MOTION FOR
SUMMARY
DECISION; TUGCO'S MOTION TO DISMISS CSW AS A PARTY INTERVENOR OR, IN THE ALTERNATIVE, FOR
SUMMARY
DISPOSITION, AND FOR STEPS TOWARD TERMINATION OF PROCEEDING; TUGCO'S MOTION FOR AN ORDER BARRING CP&L FROM SEEKING TO OBTAIN ANY RELIEF HEREIN IN-CONSISTENT WITH THE DISTRICT COURT DECISION AND FOR
SUMMARY
DISPOSITION IN FAVOR OF TUGCO AND AGAINST CP&L; AND CITY OF AUSTIN'S BRIEF ON OUESTION OF COLLATERAL ESTOPPEL TO DISPOSE OF OR LIMIT THE ANTITRUST PROCEEDING BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Pursuant to the Atomic Safety and Licensing Board's Order of April 13, 1979, the De~partment of Justice ("De-partment") hereby responds to (1) Houston Lighting & Power -
Company's Motion for Summary Decision ("HL&P's Motion"); (2)
TUGCO's Motion to Dismiss CSW as a Party Intervenor, or, in the Alternative, for Summary Disposition, and for Steps 2265 218
Toward Termination of Proceeding ("TUGCO's Motion to Dis-miss"); (3) TUGCO's Motion for an Order Barring CP&L From Seeking to Obtain any Reli'ef Therein Inconsistent with the District Court Decision and for Summary Disposition in Favor of TUGCO and Against CP&L ("TUGCO's Motion for an Order");
and (4) City of Austin's Brief on Question of Collateral Estoppel to Dispose of or Limit the Antitrust Proceeding Before the Atomic Safety and Licensing Board (" Austin's Motion").
BACKGROUND On January 30, 1979, United States District Court Judge Porter issued a Memorandum Opinion and Order in West Texas Utilities Comoany, et al. v. Texas Electric Service Comoany, et al., No. CA 3-76-0633-F (N.D. Tex.) (" Dallas Decision") 1/,
in which Houston Lighting and Power Company ("HL&P") and the Texas Electric Service Company ("TESCO") were found not to have engaged in concerted action against Central Power and Light Company ("CP&L") and West Texas Utility Company
("WTU') in violation of Section 1 of the Sherman Act (15 U.S.C. S1). ,
1/ Corrections to that opinion were issued, and judgment was entered, on February 27, 1979. ,
2265 219
Almost two months later, at a prehearing conference in the instant proceeding, counsel for both HL&P and Texas Utilities Generating Company ("TUGCO") 2/ advised this Atomic Safety and Licensing Board (" Board") that they in-tended to file motions 3/ to prevent CP&L from relitigating findings of fact which had been decided adversely to CP&L and WTU in the Dallas Decision. 4/ This Board ordered that initial briefs be filed by April 3, 1979 with answering briefs due by April 16, 1979 and reply briefs due by April 20, 1979. 5/ Pursuant to that Order, on April 3, 1979, (1) HL&P's Motion, (2) TUGCO's Motion to Dismiss, (3)
TUGCO's Motion for an Order, (4) a Memorandum of Points and Authorities in Support of TUGCO's Motion to Dismiss ("TUGCO's Memorandum"), and (5) Austin's Motion were filed. By Order dated April 13, 1979, this Board extended the date for filing answering briefs until April 23, 1979, and extended the date for filing reply briefs until April 27, 1979.
Pursuant to the Board's Order, the Department hereby re-sponds to the motions and memorandum filed by HL&P, TUGCO and Austin.
2/ TUGCO, a subsidiary of Texas Utilities Company, is to operate the Comanche Peak facilities as agent for the plant's joint owners, one of which is TESCO, also a sub-sidiary of Texas Utilities Company.
3/ Tr. 88, 97.
20 -
4/ Tr. 93, 94.
5/ Tr. 143-148.
.. l-T. THE RELIEF REQUESTED IN THE MOTIONS OF HL&P, TUGCO AND AUSTIN IS EITHER NOT PROVIDED FOR BY LAW OR NOT PROPERLY SOUGHT Ne i t ..e t the HL&P , TUGCO, nor Austin Motions clearly indicate the exact nature of the relief being requested or the legal authority being relied upon. All of the movants appear to be seeking some combination of dismissal, partial dismissal, summary disposition, partial summary disposition or an invocation by the Board of vague and largely undefined equitable powers to limit, or not consider at all, the issues which have been raised in these proceedings. To eliminate any confusion in this regard, the Department will initially. attempt to identify specifically the relief which each movant is requesting. The Department will then address the relatively similar reasons relied upon by all of the movants in support of their positions.
HL&P's Motion appears to request that the Board grant summary disposition in its favor and against CP&L, in the Docket Nos. 50-498A and 50-499A (" South Texas proceeding").
6/ Leaving aside, temporarily, the substantive basis for its motion, HL&P has not followed the proper procedure for ,
seeking summary disposition. The pertinent Nuclear Regulatory Commission ("NRC" or " Commission") rule, 10 C.F.R. 2.749, provides, in relevant part:
6/ HL&P's argument in support of this portion of its request-ed relief is founded on the doctrine of collateral estoppel, which HL&P specifically states is not applicable to any parties to the South Texas proceeding other than CP&L. See HL&P's Motion at 10, n. 10.
_,_ 2265 221
There shall be annexed to the motion [for Summary Disposition on Pleadings] a sepa-rate, short and concise statement of the material facts as to which the moving party contends that there is no genuine issue. 7/
(Emphasis added) 8/
HL&P attaches no such statement 9/ and, therefore, its motion, insofar as it is a motion for summary disposition, is fatally defective and should be rejected on procedural grounds. 10/
7/ This NBC rule goes on to require that any party serving an answer opposing a motion for summary disposition should annex to its answer "a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be heard. All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party."
Since neither HL&P nor Austin appended to its motion the required statement, the Department cannot file an opposing statement with its answer. Notwithstanding the Depart-ment's inability to file such an opposing statement, it is incumbent upon the Department to inform this Board that it is the Department's present position that there are genuine issues as to each of the material factual holdings in the Dallas Decision relied upon by HL&P in support of its motion. Until discovery is completed the Department will not be in a position to specify which facts and issues are not in dispute. TUGCO's statement, while appearing to comply in form with the requirements of Rule 2.749, is nonetheless inadequate since it wholly relies for its factual support on the Dallas Decision which as is discussed hereinafter, cannot be applied against the Department.
8/ See also, In the Matter of Pacific Gas & Electric Company, TStanislaus Muclear Project, Unit No. 1), LBP-77-45, 6 NRC 159 (1977).
0/ HL&P's Motion does include, a list of factual findings in the Dallas Decision, followed by a list of the issues. in con-troversy in the South Texas proceeding (HL&P's Motion at 11-14).
By merely regurgitating the district court's factual find-ings, however, HL&P has not satisfied the requirements of Rule 2.749.
10/ The problems caused by a failure to attach the required statement to a motion for summary disposition are fore-(continued) 2265 222
, _ , . _ . . ~ . . . . - . - - .n - . . - ~ . .
m y
~
l.
HL&P also appears to be requesting an additional form of relief, namely that the South Texas proceeding be dismissed (or terminated) as to HL&P (see, e.g., HL&P's Motion at 1, 32). The granting of this relief would bar any party, not just CP&'L, from presenting evidence regarding the issues raised in the Department's advice letter of February 21, 1978.
HL&P is understandably unable to cite either statute or rule which empowers the Board to dismiss the South Texas proceeding in the manner requested. Rather, HL&P argues the
" appropriateness of administrative restraint," " comity and rational administrat, ion of the Atomic Energy Act," and the Commission's " inherent power to dismiss proceedings if dis-missal serves the public interest,and is consistdnt with the Commission's responsibilities under the Atomic Energy Act." (HL&P's Motion at 19). This laundry-list of amorphous generalities is followed by the bald assertion that:
(footnote continued) shadowed by the final paragraph of HL&P's Motion, which asks, in pertinent part: ,
That CP&L be collaterally estopped from re-litigating or attempting to relitigate any of the fact issues decided against it by the United States District Court, for the North-ern District of Texas in West Texas Utilities Company, et al. v. Texas Utilities Service Company, et al., No. CA3-76-0633-F. (HL&P's Motion at 32)
Without the required statement, it is impossible to know which " fact issues" HL&P contends should be the subject'of
. summary disposition.
2265 223
If the Commission decides, in light of events which have occurred since the start of the antitrust review, that continued proceedings would be wasteful, duplicative, or would not substantially further the poli-cies of the Act, the Commission has the discretion to order dismissal. (HL&P Motion at 19-20).
In support of.this proposition, HL&P cites four cases, none of which are apposite here. Three of those cases, Drug Re, search Corporation, 63 FTC 998, 14 Ad. L.2d 482 (1963);
First Buckingham Commrnity, Inc., 73 FTC 938, 23 Ad.
L.2d 423, 427 (1968); and Progressive Mine Workers of America, Dist. No. 1 v. National Labor Relations Board,189 F.2d 1 (7th Cir. 1951), 11/ stand for the proposition that certain administrative agencies (namely the Federal Trade Commission and the National Labor Relations Board) have the power to dismiss complaints (or take similar action) if, for example, the issuance of a cease and desist order would serve no useful purpose 12/ or if the impact on 11/ The fourth case cited by HL&P, Moog Industries v.
FTC, 335 U.S. 411, 413 (1958), stants solely for the propo-cition that 17 an administrative agency (there the Federal Trade Commission) has decided a question pursuant to the authority vested in it by Congress, that decision should not ,
be overturned on appeal by a court, i n- t h e a b s e n c e o f a patent abusc of the agency's discretion.
12/ In First Buckingham Community, Inc. supra, it was found that the allegedly illegal behavior had been effectively terminated by the intervening enactment of the Civil Rights Act of 1968. Nonetheless, the FTC was careful to poi'nt out that "[ilf it should transpire, however, that we are mistaken in this regard, the matter can always be reopened if necessary."
(continued) 2265 224
. l-commerce arising from the complained of behavior is not substantial enoagh to warrant exercise of the agency's jursidiction. 13/
The cited cases are thus distinguishable from the instant proceedings since the statutory scheme governing proceedings of the Commission requires the Commission to conduct an antitrust hearing whenever the Attorney General recommends that such a hearing be conducted. 14/ Thus, (footnote continued) 73 FTC at 947. That is not the case in South Texas where, if the Board dismissed the instant proceedings (assuming arguendo that it had the power to do so), and issued an operating license, it might not have another opportunity to adjudicate the issues raised in the Department's advice letter. See Commission's Order of June 15, 1977.
13/ See Progressive Mine Workers of America, Dist. No. 1 v.
National Labor Relations Board, supra, which hinged on the fact that the National Labor Relations Act, 29 USC S151 et seq., requires that the activities of a business entity accused of unfair labor practices must affect interstate commerce before being subject to the jurisdiction of the Board.
14/ In its April 5, 1978 Order (which set in motion anti-trust procedures with respect to the South Texas plant),
the Board expressly acknowledged this specific statutory responsibility: .
When the Attorney General recommends an antitrust hearing on a license for a commercial nuclear facility, we are reauired to conduct one. That is the clear implication of the statutory language and the pertinent legislative history. [0uoting, in a footnote, Section 105(c)(5) and citing S.
Doc. No. 91-1247 and H.R. Rep. No. 91-1470, 91st Cong., 2nd Sess., p. 30 (1970) (Report by the Joint Committee on Atcmic Energy on Amending the (continued) 2265 225
4 8 once the hearing process is triggered, the Board "shall make a finding as to whether the activities under the license would create or maintain a situation inconsistent with the antitrust laws", Section 105c(5) of the Atomic Energy Act, 42 USC 2135c(5) (emphasis added). The Board may not, as a matter of discretion, terminate the hearing process prior to making these statutory findings. 15/ Conse-quently, HL&P's request that the Board prematurely abort this proceeding squarely contradicts the Board's statutory mandate.
Taking a different tact than HL&P, TUGCO has filed two motions. One, filed in the South Texas proceeding, requests an order barring CP&L from seeking to obtain any relief inconsistent with the Dallas Decision (or relitigating matters contained therein) or for an order granting (footnote continued)_
Atomic Energy Act of 1954 to provide for Pre-licensing Antitrust Review of Production and Utilization Facilities)) (Board's April 5, 1978 Order at 2, emphasis added).
Indeed, even TUGC0 admits, in its Memorandum at 5: "There is-some doubt whether this Board has been delegated the dis-cretion to terminate this proceeding w.ithout hearing in the absence of a settlement (except where all proponents of license conditions were precluded)."
15/ This is not to say, of course, that the Board may not grant a proper motion for summary disposition or similar relief provided for in its rules as part of the prehearing or hearing process. By ruling on a motion for summary disposition, for example, the Board would, in effect, be fulfilling its statutory obligation to make a finding as to whether the activities at issue would create or maintain a situation inconsistent with the antitrust laws.
2265 226 s
summary disposition in favor of TUGCO and against CP&L. The second motion, filed in Comanche Peak, seeks dismissal of CSW as a party intervenor or, in the alternative, summary disposition in favor of TUGCO and against CSW, or an order precluding CSW from relitigating any n.atter of fact or law which was decided in the Dallas Decision.
In both of its motions, TUGCO cites, inter alia, 10 C.F.R. 2.718, 2.743 (h) and 2.749, as the rules pursuant to which it.is requesting relief. 10 C.F.R. 2.718, provides that the presiding officer in a NRC proceeding "has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to avoid delay, and to maintain order" and lists some of the powers necessary to accomplish those ends. None of the listed powers authorizes the Board to dismiss a party or terminate these proceedings for the reasons cited by TUGCO. With respect to TUGCO's reliance on 2.743(h), it bears noting that TUGCO has failed to attach an official or certified copy of the Dallas Decision. As for TUGCO's reliance on Rule 2.749, see footnote 7 at 5.
Finally, Austin, rather ambiguously, captioned its ,
pleading " City of Austin's Brief on Question of Collateral Estoppel to Dispose of or Limit the Antitrust Proceeding Before the Atomic Safety and Licensing Board." Thus, 2265.227
_w au . .-.a,. = .= y g.
the exact nature of the relief sou"ght by Austin is not apparent from the caption and cannot be gleaned from the pleading itself. Austin's Brief in effect seeks to associate Austin with the relief sought by HL&P and TUGCO. Therefore, the arguments made by the Department with respect to the motions filed by HL&P and TUGCO also apply to Austin.
Despite the variations in forms of relief requested, (and ignoring the recurring procedural defects and the in-appropriate nature of some of those forms of relief), the reasons cited by HL&P, TUGCO and Austin in support of their motions are by and large the same. Those reasons basically comprise one of two arguments: (1) the doctrine of collateral estoppel and/or res judicata, bar one or more of the parties to the South Texas and/or Comanche Peak proceedings from relitigating issues and/or facts decided adversely to that party or those parties in the Dallas Decision and; (2) apart from the doctrines of collateral estoppel and res judicata, it would not be in the public interest or in the interest of judicial economy to conduct the instant proceedings in view of the recent filing by CP&L of an application pursuant to .
the Public Utility Regulatory Policies Act of 1978, the Order of the Texas Public Utilities Commission in Docket No.
14, and the injunction issued by Judge Porter ig the Dallas Decision. As will be set out below, neither of these arguments justifies any of the various forms of relief requested by the movants.
_11_
2265 228
t II. THE DOCTRINES OF RES JUDICATA AND COLLATERAL ESTOPPEL, DO NOT PAR THESE PROCEEDINGS Although comparable in many respects, the doctrines of res judicata and collateral estoppel differ in their precise application and effect. Res judicata prevents the relitigation of an entire claim or cause of action.
Collateral estoppel prevents the relitigation of a single issue, even though that issue may have been originally litigated as part of a cause of action different from that of the subsequent proceeding. The classic statement of the doctrines of res judicata and collateral estoppel and the way in which those doctrines differ is contained in Cromwell v. County of Sac, 94 U.S. 351, 352-353 (1876):
There is a difference between the effect of a judgment as a bar or estoppel against prosecu-tion of a second action upon the same claim or demand, and its effect as an estoppel in another action between the same parties upon a different claim or cause of action. In the former case, the judgment, if rendered upon the merits, con-Stitutes an absolute bar to a subsequent action.
It is a finality as to the claim or demand in controversy, concluding parties and those in privity with them, not only as to every matter which was offered and received to cuctain or defeat the claim or demand, but as to any other ~
admissible matter which might.have been offered for that purpose. . . . But where the second action between the same parties is upon a dif-ferent claim or demand, the judgment in the prior action operates as an estoppel only as to those matters in issue or points controverted, upon the determination of which the finding or verdict was rendered. In all cases, therefore, where it is sought to apply the estoppel of a judgment rendered upon one cause of action to matters 2265 229'
arising in a suit upon a different cause of action, the inquiry must always be as to the point or question actually litigated and determined in the original action, not what might have been thus litigated and determined. Only upon such matters is the judgment conclusive in another action.
(Emphasis added).
See also, Parklane Hosiery Co. v. Shore, U.S. , 47 U.S.L.W. 4079, 4080, n.5 (January 9, 1979) and cases cited therein.
Thus, to apply the doctrine of collateral estoppel to a controverted fact, there must exist an identity of issues between the prior and subsequent actions, the party against whom collateral estoppel is to be applied must have been either a party or in privity to a party in the prior suit, and the prior action must have resulted in a final judgment to which determination of the controverted fact was essential. The party pleading collateral estoppel has the burden of proving that all the requirements of the doctrine are present. 1B Moore, Federal Practice and Procedure, V 0.408[1], at 954.
The Department discusses below the applicability of 'the doctrines of res judicata and collateral estoppel to admin-istrative proceedings, as well as the four elements of collateral estoppel that must be proven to invoke the doctrine.
2265 230
?
A. Res Judicata and Collateral Estoppel Should Be Used Sparingly In Administrative Proceedings It is clear that the doctrines of res judicata and collateral estoppel are applicable to administrative hear-ings, United States v. Utah Construction and Mining Co.,
384 U.S. 394 (1966); In the Matter of Alabama Power Co.
(Farley Nuclear Plant, Units 1 and 2), ALAB-182, 7 AEC 210, 212-213 (1974), remanded on other grounds, CLJ 74-12, 7 AEC 203 (1974). 16/ Courts have held, however, that those doctrines should be applied more sparingly in administrative proceedings than in judicial proceedings. See e.g., United States v. Smith, 482 F.'2d 1120, 1123 (8th Cir. 1973).
16/ HL&P cites In the Matter of The Toledo Edison Co., et al. (Perry Nuclear Plant, Units 1 and 2 ), ALAB-378, 5 NRC 577 (1977), for the proposition that district court decisions always have the same collateral estoppel effect in adminis-trative proceedings as they have in judicial proceedings.
(HL&P's Motion at 9). Unfortunately, HL&P has failed to discuss the critical factor upon which that decision turned:
both.in the district court action and in the NRC proceeding the standard for disqualification of counsel was the same --
the identical section of the Code of Professional Responsi-bility. 5 NRC 557, 562. By contrast, in the present situa-tion, the Dallas Decision resolved a claim based upon an explicit violation of section 1 of the Sherman Act; at issue in this proceeding is the different, and broader, standard of Section 105c of the Atomic Energy Act. Thus, it is clear that Toledo is not applicable to the instant ,
proceeding.
TUGC0 cites three additional cases for the same pro-position, In the Matter of Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), (LI-78-1), 7 NRC 1 (1978), In the Matter of Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-422, 6 NRC 33 (1977), and In the Matter of Alabama Power Company, (Farley Plant, Units 1 and 2),ALAB-182, 7 AEC 210 (1974).
However, none of these cases is applicable to the present situation. In the first two cases parties were held to be collaterally estopped from litigating certain issues in the NRC based on prior findings by the Environmental Protection Agency (" EPA") regarding the environmental effects of the (footnote con't on next page) 2265 23I
One of the most important considerations underlying the cautious approach to applying.these doctrines in admin-istrative proceedings is that there may be a bifurcation of responsibilities between courts and administrative agencies. See Cartier v. Secretary of State, 506 F.2d 191, 197 (D.C. Cir. 1974). Thus, although courts and adminis-trative agencies may analyze the same factual situations, they do so from different perspectives. This is certainly true here, since the NRC has specific antitrust review responsibilities under Section 105c of 'the Atomic Energy Act (42 U.S.C. 2135c) which require the NRC to examine situations which may also form the basis for litigation under the antitrust statutes in federal and State courts.
Another important consideration which cautions against .
mechanically applying these doctrines is that there may be differing standards of proof in judicial and administrative proceedings. See Young & Co. v. Shea, 397 F.2d 185, 188 (5th Cir. 1968). This, of course, is precisely the situation here because the quantum of proof necessary to establish a violation of the Sherman Act is substantially higher than to prove an inconsistency with the antitrust laws under ,
Section 105c. In the Matter of Consumers Power Company (footnote con't)
Seabrook cooling system because Congress had de-li~berately increased EPA responsibility in this area and decreased that.
of the NRC under the National Environmental Policy Act to avoid concurrent jurisdiction. In the third case,the same intervenor attempted to raise the same issues under the same statute in the operating license phase of the Parley Plant after'having obtained adverse rulings in the construction permit phase.
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(Midland Plant, Units 1 and 2), ALAB-452, 6 NRC 892, 907-909 (1977) (" Midland"). As the Shea court indicated in discus-sing this factor:
(T]he fact that a worker could not convince a jury that he had suffered an injury should not estop him from attempting to convince a Commissioner that he was injured inasmuch as the standard of persuasion is less before the Commissioner than before the court. 397 F.2d at 189. .
Thus, since it is easier to establish a violation of Section 105c than a violation of the Sherman Act, it follows that collateral estoppel and res judicata should only be applied very prudently in the'present proceeding.
An additional factor which bears on the applicability of collateral estoppel and res judicata relates to the differing kinds of relief separate statutes may dictate. In American Heritage Life Ins. Co. v. Heritage Life Ins. Co., 494 F.2d 3, (1974), the court noted that, if the relief sought in one action is fundamentally dif ferent from the relief sought in the other, then automatic application of collateral estoppel or res judicata would be less appropriate. In the present action, the relief attainable under the Sherman Act varies significantly from the relief available under the ,
Atomic Energy Act. In particular, the Commission has a limited, unique responsibility to withhold unconditioned licenses if the activities under those licenses would
" create or maintain a situation inconsistent with the anti-trust laws." Structuring of nuclear power plant license conditions to remove antitrust problems is unique to the NRC.
2265 233 4
B. Applicants Have Not Established That There Is an Identity of Parties Crucial to any application of collateral estoppel is that the party against whom collateral estoppel is to be applied must have been a party to, or in privity with a party to, the prior litigation. Haize v. Hanover Ins. Co.,
536 F.2d 576, 579 (3rd Cir. 1976); Prehearing Conference Order No. 1, In the Matter of Florida Power & Light Company .
(South Dade Plant), Docket No. P-636A (dated July 29, 1976)
(" South DadF?). It is a violation of due process for a judgment to be binding on a litigant who was not a party nor privy to the prior litigation and has never had an opportunity to be heard. Parklane Hosiery Co. v. Shore, 47 U.S.L.W.
4079, 4081 n.7 (January 9, 1979); Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 329 (1971); Hansberry v. Lee, 311 U.S. 32, 40 (1940).
In South Dado the applicant, Florida Power & Light Co. ("FP&L"), was involved in an NRC antitrust proceeding before a Licensing Board in which the City of Gainesville
("Gainccville"), Florida and approximately 20 other citica intervened. During the course of the NRC proceeding, FP&L was also a defendant in a federal district court antitrust 2265 234.
t action brought by Gainesville, which alleged that FP&L and Florida Power Corporation ("FPC") had entered into an ille-gal territorial agreement. After receiving a verdict in its favor, FP&L filed a motion to strike from the list of issues adopted by the Licensing Board all allegations that it had conspired with FPC'in violation of section 1 of the Sherman Act. The Licensing Board indicated in its order that this motion to strike was founded upon a theory of collateral estoppel or perhaps res judicata.
Even though the Board found that both proceedings involved the same general subject matter, i.e., allegations of territorial agreements, the Board denied FP&L's motion on the grounds that a lack of identity of parties foreclosed the application of the collateral estoppel doctrine. More specifically, the Board found that whereas Gainesville had
- acted exclusively in its own behalf in the district court action (as did CSW in its district court action here), the presence in the NRC proceedina of additional parties (the NRC staff and 20 other Florida cities) required the Board to refute the contention that there was an identity of parties between the district court action and 'the NRC proceeding.
In reaching the decision that an identity of parties was necessary to invoke the collateral estoppel doctrine the Board relied heavily on Blonder-Tonaue Laboratories v.
University of Illinois Foundation, 402 U.S. 313, 329 (1971),
which was cited'with approval in Parklane Hoisery Co., Inc.
- v. Shore, 47 U.S.L.W. 4079 (January 9, 1979) .
2265 235
i In the present proceedings, CP&L was the only party involved in the Texas federal court action; neither the Department nor any of the other parties and intervenors were involved or connected with that case. In South Dade the Board recognized that allegations that antitrust violations have occurred should be fully litigated before an Atomic Safety and Licensing Board, particularly where the Depart-ment and the staff are involved. The Department, the staff, and the other parties and intervenors (with exception of CP&L) have never had the opportunity to address the allega-tions underlying this proceeding, and will never have that opportunity if the Board grants the motions filed by HL&P, TUGCO, and Austin.
C. Applicants Have Not Established That There Is an Identity of Issues As noted above, a prerequisite for applying the doctrine of collateral estoppel is the existence of an identity of issues between the prior and subsequent proceedings. Parklane Hosiery Co. v. Shore, 47 U.S.L.W. 4079 (January 9, 1979).
As the court emphasized in Neaderland v. Commissioner, 424 -
P.2d 639, 642 (2d Cir.), cert. denied, 400 U.S. 827 (1970):
Collateral estoppel is confined, however to
" situations where the matter raised in the second proceeding is identical in all respects with that decided in the first proceeding and where the controlling facts and applicable legal rules remain unchanged." Commissioner of Internal Revenue v. Sunnen, 33 U.S. 591, 599-600, 68 S. Ct. 715, 720, 92 L. Ed. 898 (1948). Even if the issue is identical and 2265 236
- - - - . . ~ ~ ~ . y -- . - . -
f the facts remain constant, the adjudication in the first case does not estop the parties in the second, unless the matter raised in the second case involves substantially "the same bundle of legal principals that contributed to the rendering of first judgment" Thus, issues may dif fer between proceedings, even where the proceedings concern substantially identical facts, be-cause of the application of different statutory standards to those facts. Where, as here, the prior and present proce-edings arose under different statutes, the Board should be reluctant to apply collateral estoppel. As stated in Tepler
- v. E. I.-du Pont de Nemours and Co., 443 F.2d 125, 128-129 (6th Cir. 1971):
Absent a special consideration, a determination arising solely under one statute should not automatically be binding when a similar ques-tion arises under.another statue. [ Citations omitted.) This is because the purposes, re-quirements, perspective and configuration of different statutes ordinarily vary.
See, e.g., United Shoe !!achinery Corp. v. United States, 258 U.S. 451 (1922); Title v. Immioration and Naturalization Service, 322 F.2d 21 (9th Cir. 1963); Pacific Seafarers, Inc. v. Pacific Far East Line, Inc., 404 F.2d 804 (D.C. Cir..
1968), cert. denied, 393 U.S. 1093 (1969). -
Because of the significantly different substantive standards in.Section 105c of the Atomic Energy Act and Section 1 of the Sherman Act, an identity of issues cannot exist between the district court proceeding and the instant proceeding. As the Appeal Board held in Midland at 6 NRC 2265 237
892, 907-911 (1977), the standard,of inconsistency with the antitrust laws contained in Section 105c is a broader and less stringent standard than that required to show ,
a violation of the antitrust laws. For example, under Section 105c it is appropriate to show such~ matters as inconsistencies with antitrust policies and Section 5 of the Federal Trade Commission Act; evidence of such an inconsistency would not, of course, necessarily be suf-ficient to prove a violation of the Sherman Act. This is not to suggest, however, that explicit violations have not occurred in the present situation. The point is simply that -
the governing standard here is far broader than, and not limited to, explicit violations of the antitrust laws. 12/
Indeed, it is necessary only to contrast the list of issues adopted by this Board with the narrow scope of the allega-tions made in the Dallas district court-action (limited to concerted refusal to deal), to realize how much wider are the sweep of issues attendant to the present proceeding. 18/
17/ Similarly, the Licensing Board in South Dade, rejected .
a collateral estoppel and res judicata argument on the ground that the legal standards of the Sherman Act and Section .
105c of the Atomic Energy Act are so different that an identity of issues in an NRC proceeding and a judicial proceeding is necessarily foreclosed.
18/ In the Dallas federal court action, CP&L alleged that a concerted refusal to deal with it by HL&P and TESCO violated Section 1. In the present proceeding, ene focus is the relationship between applicant investor-owned utility-companies, their individual and joint relationships vis-a-vis municipal and cooperative systems, both within and
, (continued) 2265 238
s Equally on point is the decision of the Atomic Safety and Licensing Board In the matter of The Toledo Edison Company, et al. (Davis-Besse Nuclear Power Station, Units 1, 2, and 3) and The Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plant, Units 1 and 2),
LBP-77-1, 5 NRC 133 (1977) (collectively referred to as the "TECO Proceeding"). In that case, applicant Toledo Edison Company ("TECO") argued unsuccessfully that the rejection by the Licensing Board in the Midland proceeding of allegations of a territorial agreement between TECO and Consumers Power Co. should be applied in the TECO Proceeding. Even though the same territorial agreement was involved in both proceed-ings, the differing roles this alleged agreement played in the two separate NRC proceedings was sufficient to deny the invocation of the collateral estoppel doctrine. 5 NRC 133, 215, n. 105 (referring to pp. 5181-5182 of the trial transcript). Similarly, the mere fact that an alleged concerted refusal to deal was involved in the Dallas district court proceeding, and was found not to violate the .
(footrote continued) without the state of Texas, as well as considerations in-volving both section 1 and 2 Sherman Act violations. There is simply no way in which the district court could have entertained this broad a range of antitrust issues, since the plaintiff in that action was CP&L alone.
2265 239
.g
, s Sherman Act, does not foreclose the consideration of that alleged group boycott within the unique focus of the present proceeding. Thus, the primary focus of the District Court inquiry was the effect of the concerted refusal to deal on CP&L whereas the present proceeding will include extensive inquiry into the effect of the alleged group boycott on many electric systems in Texas, Oklahoma, Arkansas, Louisiana and New Mexico in addition to the effect on CP&L. Given the different focus of the inquiry this Board may well find a concerted refusal to deal, based on the effect on systems other than CP&L, even if the Dallas Decision is assumed to be correct.
D. It Would be Imprudent to Consider the Dallas Decision As a Final Decision For the Purpose of the Present Motions Although there is some support for the proposition that, despite the pendency of an appeal, a decision of a district court can be considered a final judgment for the
. purposes of collateral estoppel or res judicata, it would be imprudent to consider the district court opinion as a final judgment for the purpose of deciding the present motions.
It is undisputed that Judge Porter's opinion is subject to .
appellate review. Tr. 105-110. If the present proceeding was terminated becanne of the Dallas Decision, the subsequent reversal or modification of ti.3t Decision would require the _
Board to reinstate the proceeding thus causing very serious delay and inconvenience for both the Board and the parties.
In addition, if the proceeding were reinstituted just prior 2265 240
to the issuance of an operating license for the plants in question, the NRC would have to withhold issuance of a license absent a final decision on antitrust matters. See In the Matter of The Toledo Edison Co. et al. (Davis-Besse Nuclear Power Sation Unit No. 1) ALAB-323, 3 NRC 331 (1976).
If it were necessary to reinstate this proceeding after the operating license is issued, it might be necescary to revoke that license until the resolution of the antitrust issues. In view of the serious consequences that could result if the Dallas Decision is utilized as the basis for terminating this proceeding and that Decision is later reversed, the public interest indicates that the present proceeding not be stayed. 19/ Although it may be argued that a reversal of the Dallas Decision is unlikely, there is no assurance, of course, that reversal will not occur. 20/
19/ See Tr. 110.
20/ The Department notes that in the South Dade proceeding, a district court verdict in favor of the defendant was teversed on appeal. See Gainesville v. Florida Power & .
Light Co., 573 F. 2d 292 (5th Cir. 1978), cert. denied U.S. _ (1979). Prior to the appellate reversal the .
defendant had unsuccessfully attempted to have a Licensing Board strike an allegation which had been resolved in favor of the defendant in the trial court.
.s 2265 241
~
E. Various Findings Contained in the Dallas Decision Were Not Necessary to That Decision Collateral estoppel may only be applied where there has been a final judgment in the prior suit, and where the issue in question was actually litigated and essential to the judgment rendered. In Fibreboard Paper Prod.
Corp. v. East Bay Union of Machinists, Local 1304, 344 F.2d 300, 306 (9th Cir.), cert. denied, 382 U.S. 826 (1965),
the court stated:
It is also the rule that where estoppel by judgment is asserted, the earlier determina-tion must have been of a question of fact essential to the earlier judgment. As noted in the Restatement of the Law of Judgments, S 68, the problem of collateral estoppel by judgment only arises "[w] here a question of ,
fact essential to the judament is actually litigated and determined by a valid and' final judgment" (emphasis added). See comment "o" under that section. "The rules stated in this section are applicable only where the facts determined are essential to the judgment.
Where the jury or court makes findings of fact but the judgment is not dependent upon these findings, they are not conclusive between the parties in a subsequent action based upon a different cause of action."
In the present situation numerous findings and con- .
clusions of the district court were not essential to its decision. Most importantly, conclusion of law #22 which 2265 242
tracks the lang'uage in Section 105c of the Atomic Energy Act, and finds the absence of a situation inconsistent with the antitrust laws, was not essential to the court's holding.
Not only was Section 105c not at iss' , but the district court has no jurisdiction to make ab initio determinations under that act. Conclusion of law #22 in the Dallas Decision -
is purely gratuitous and is of no legal ef fect.
For the reasons discussed in the preceding sections, application of the doctrines of collateral estoppel and/or res judicata to the South Texas and/or Comanche Peak proceed-ings would be inappropriate. HL&P's, TUGCO's and Austin's Motions, to the extent they are based on either or both of those doctrines, must therefore be denied.
III. ACTION BY OTHER BODIES RELATED TO THE ISSUES IN THESE PROCEEDINGS CANNOT JUSTIFY DISMISSAL IN THE PUBLIC INTEREST, OR IN THE INTEREST OF JUDICIAL ECONO:1Y After first seeking application'of the doctrines of collateral estoppel and/or res judicata, HL&P, TUGCO and Austin argue that, even as to those parties and/or issues with respect to which those doctrines do not strictly apply, ,
it would not be in the public interest, or in the interest of judicial economy, to conduct these proceedings. In support of this argument, the movants rely on the recent filing by CP&L of an application pursuant to the Public 2265 243
Utility Regulatory Policies Act of 1978, the Order of the Texas Public Utility Commission in its Docket No. 14 and the issuance of an injunction in the Dallas Decision. The movants' arguments are wholly without merit.
A. The Public Utility Regulatory Policies Act of 1978 Was Not Intended by Congress to Affect.or Foreclose The NRC From Dis-charging its Responsibility To Weigh the Competitive Consequences of Issuing.a Pro-posed Licence HL&P, TUGCO, and Austin argue that these proceedings should be terminated because one of the parties, CP&L, has exercised its statutory right to seek interconnection.and wheeling under the recently enacted Public Utility Regula-tory Policies Act of 1978 ("PURPA"). 21/ PURPA was enacted on November 9, 1978, as part of the comprehensive energy legislation designated as the National Energy Act. Title II of PURPA amends the Federal Power Act to give the Federal Energy Regulatory Commission ("FERC") additional, but limited, authority to order interconnections and wheeling between electric utilities. 22/
21/ Pub. L. No.95-617, 9 2 S tat. 3117 (1978).
22/ Section 202 of PURPA adds Section~210 to the. Federal Power Act which grants to the FERC authority to order interconnection under certain circumstances.
Section 203 of PURPA adds Section 211 to the Federal Power Act which grants to the FERC authority to order wheeling under certain circumstances. .. .
Any order issued by the FERC under Section 210 or 211 of PURPA must meet the requirements of Section 212 of the Federal Power Act (a new section added by Section 204 of PURPA). Section 212 places certain limitations on the PERC's authority to insure that a utility that is subject to the order does not suf.fer any uncompensated economic loss.
2265 244
On Fe: .uary 9, 1979, CP&L filed an application under this new statutory authority requesting the FERC (under Section 205 of the Federal Power Act) to exempt it from orders (Docket 14 ) of the Texas Public Utility Commission, 23/, preventing voluntary coordination and, further, requesting interconnection of facilities, provision of transmission services and related relief (under Sections
~
202, 210, 211 and 212 of the Federal Power Act). HL&P, TUGCO and Austin have intervened at the FERC in opposition to CP&L's application, and now argue that the instant proceedings should be terminated since the issues will be resolved by the FERC.
Taking their arguments collectively, the movants contend that the FERC is a more appropriate and better qualified tribunal and that it can, under the new powers given to it by PURPA, grant "all" the relief that would be available in the instant proceedings. .The Department believes that the movants' reliance on PURPA is wholly misplaced because it is contrary both to the express lan-guage in PURPA and to the clear intent of Congress in passing PURPA. It is equally clear that the issues to be .
considered and the standards to be applied in these proceed-ings are substantially different than those in the FERC proceeding. Finally, the " relief" which CP&L seeks, or which the FERC may grant under PURPA, would not necessarily 23/ See infra, at 36-39.
2265 245
constitute the type of adequate and appropriate relief that this Board would be required to impose after an affirmative finding under Section 105c(5) of the Atomic. Energy Act.
- 1. Termination of these Antitrust Proceedings Because CP&L has Applied for Interconnection and Wheeling under PURPA Would Be Contrary To The Language and Congressional Intent of PURPA It is clear, both from the express language in PURPA and the underlying legislative history, that PURPA is not apposite to these proceedings and does not affect the availability of antitrust relief sought by the Department and other parties herein.
Section 214 of PURPA makes clear that PURPA is not to be construed as affecting any other statutes unless specifically provided for by PURPA.
SEC. 214 PRIOR ACTION: EFFECT ON OTHER AUTHORITIES . . .
(b) OTHER AUTHORITIES -- No provision of this title or of any amendment made by this title shall limit, impair or otherwise -
affect any authority of the Commission or any other agency or instrumentality of the United States under any other provision g3
?265 246
+m* am mue-of law except as specifically provided in this title.
In addition to the express language in the statut., 24/
the legislative history, as evidenced by the Conference Report, clearly shows that Congress intended PURPA to be " strictly neutral" with regard to the application of the antitrust laws and not to raise any potential pri-mary jurisdiction issues (Conference Report at 68). 25/
24/ Section 204 of PURPA adds Section 212 to the Federal Power Act, which provides in Subsection (e):
No provision of section 210 or 211 shall be treated --
(1) as requiring any person to utilize the authority of such section 210 or 211 in lieu of any other authority of law, or (2) as limiting, impairing, or otherwise affecting any authority of the [FERC] under any other provision of law.
25/ The Conference Report states, in relevant part:
Section 4 of the conference substitute sets forth a disclaimer to the effect that Federal and State antitrust laws are not affected by the conference substitute and such laws will continue to apply to electric and gas utilities to the same extent as prior to enactment of this substi- '
tute. Similarly the section contains'a disclaimer ~
to the effect, that the authority of the Secretary of Energy and the Commission under other pro-visions of law respecting unfair methods of com-petition or anticompetitive acts or practices is not affected. The conferees intend that the pro-visions of the conference substitute be strictly neutral and not add or subtract from the ircuni-ties and defenses available under such laws nor add or subtract from authorities contained in such laws.
The conferees intend to preserve the jur-isdiction of the Federal and State courts in (continued) 2265 247 a
Moreover, Section 4 of PURPA expressly provides that PURPA does not affect "the applicability of the antitrust laws to any electric or gas utility." While Section 105c of the Atomic Energy Act is not an antitrust law, 26/ it is nonetheless clear from the legislative history that Congress did not intend PURPA to detract from the jurisdiction of the NRC.
During Senate consideration of the Conference Report, Senator Metzenbaum, one of the managers of the Bill and a member of the conference committee, stated:
(footnote continued) actions under antitrust laws, whether or not the parties to such actions could have sought remedies under this legislation.
Specifically with regard to certain authorities to order interconnections and wheeling under title II, it is not intended that the courts defer actions arising under the antitrust laws pending a resolution of such matters by the Federal Energy Regulatory Commission. The conferees specifically intend '
to preserve jurisdiction of Federal and State courts to resolve, independent of the Commis-sion, such actions, including for example, cases where a refusal to wheel electric energy is alleged to be in violation of such laws. The court should be able to act whether or not action by the Commission under the provisions in title II can be requested or would be jus-tified. In this way, the courts have juris- .
diction to proceed with antitrust cases with-out deferring to the Commission for the exercise of primary jurisdiction. Conference Report at 68.
26/ A common definition of the antitrust laws is contained in Section 1 of the Clayton Act 15 U.S.C. S12. This definition does not include a reference to the Atomic Energy Act.
O 2265 248
It was not the intent of the conferees to modify in any way the rights of parties in pre-senting a[nd] prosecuting allegations of anti-competitive conduct before the Federal and State courts, or before administrative agencies, including the FERC and the Nuclear Regulatory Commission. Both have legal obligations to consider antitrust issues. Where any of these agencies presently have the authority to order transmission, coordination or other relief pursuant to a finding of anticompetitive conduct, undue discrimination or unjust and unreasonable rates, terms, conditions or the like, this authority would not be disturbed.
The act does not limit the present authority of these agencies in this regard.
Thus, a party which has been denied wheeling services for anticompetitive reasons will not be hindered by this legislation from proceeding in the Federal courts or elsewhere.
Likewise, the authority of the [NRC] in con-ducting an antitrust review under the provisions of the Atomic Energy Act of 1954, as amended, would not be affected by this extremely limited wheeling authority aranted to FERC under this new legislation. These two agencies are charged with different responsibilities with respect to wheeling. [FERC's] new authority is condi-tion [ed] on conservation, efficiency, relia-bility, and public interest. NRC's authority relates to correcting or preventing a situation inconsistent with the antitrust l'6ws . 27/
It is thus evident that the movants reliance on PURPA as a reason for terminating these' proceedings is contrary to-
~
the express intent of Congress.
27/ 124 CONG. REC. S 17 , 802 (daily ed. Oct. 9, 1978)
(emphasis added). A copy of 124 CONG. REC. S17, 800-S17, 809 (daily ed. Oct. 9, 1978) is attached hereto.
2265 249
- 2. PERC's Limited Authority to Order Intercon-nections and Wheeling Under PURPA Does Not Resolve the Antitrust Concerns which This Board Must Address Under Section 105c(5) of the Atomic Energy Act The movants contend that PURPA grants to the FERC comprehensive authority over interconnection, wheeling and coordination such that "all" the relief a utility was seeking under Section 105c could be obtained from the FERC.
The language in the relevant sections of PURPA does not support the movants' contention. The FERC's interconnection authority under Section 202 can be used only after it has determined that the interconnection, in addition to being in the public interest and meeting the requirements of Section 204, would:
(A) encourage overall conservation of energy or capital; (B) optimize the efficiency or use of facili-ties and resources; or (C) improve the reliability of any electric utility system or Federal power marketing agency to which the order applies. ... 28/
Likewise, the PERC's authority to order wheeling under Section 203 can be used only after it has determined that .
the wheeling, in addition to being in the public interest and meeting the requirement of Section 204 of PURPA, would:
28/ Section 210(c)( 2 ) of Federal Power Act (added by Section 202 of PURPA).
_33_
2265 250
(A) conserve a significant amount of energy; (B) significantly promote the efficient use of facilities and resources; or '
(C) improve the reliability of any electric utility system to which the order applies, ... 29/
PURPA is an attempt by Congress to grant additional limited authority to the FERC to order interconnection and wheeling as a means of conserving energy, increasing efficiency, and improving reliability. Absent PURPA, it is unlikely that utilities would pursue voluntarily these goals unless they could obtain substantial direct economic gains.
While some of the considerations underlying PURPA (e.g.
efficiency) also underlie the antitrust laws, PURPA was not intended to prevent or undo anticompetitive conduct by electric utilities as was Section 105c. Thus, the focus of the FERC's consideration of CP&L's application will not be on antitrust issues.
Senator Metzenbaum noted this contrast between the
" limited" authority granted to FERC under this new legis-29/ Section 211(a)(2) of Federal Power Act (added by Section 203 of PURPA). Section 211(c) requires the preservation of existing competitive relationships.
_3,_
2265 25i ,
lation, which was conditioned on " conservation, efficiency, reliability, and public interest," and the NRC's authority relating to correcting or preventing a situation inconsistent with the antitrust laws. 30/ It is thus apparent that the required findings set forth in PURPA which must precede the issuance of interconnection or wheeling order are in no way a substitute for the standards this Board must supply in an antitrust hearing pursuant to Section 105c(5) of the Atomic Energy Act.
B. The Order Issued Dy the Texas Public Utility Commission in its Docket No. 14 Should Not Preempt the Board from Acting in These Proceedings The movants also cite the Order of the Texas Public Utility Commission ("TPUC") in~its Docket No. 14 in support of their argument that the Board should terminate these proceedings. This contention is without merit.
The Order in Docket 14, in essence, did two things.
First, it required CP&L to disconnect its radial tie into Oklahoma. That tie had placed CP&L, and other Texas utilities with which it was interconnected, in interstate
~
commerce. Second, Docket 14 mandated that no member of the Texas Interconnected System (" TIS") could disconnect from TIS without the prior approval of the TPUC.
30/ See comments at 124 CONG. REC. S17,801-2 (Oct. 9, ,
1978).
2265 252
The first aspect of the TPUC Order is currently under vigorous legal attack in several different fora. At present, the primary focus of litigation is the Texas state district court in which the Order is being contested on the grounds that it violates both state and federal constitutional law. In light of the overwhelming body of precedent fore-closing any state from placing an undue burden on interstate commerce in analogous situations, 31/ it would be most sur-prising should this element of the Docket 14 Order survive constitutional scrutiny. 32/
31/ Two particularly applicable cases are Philadelphia
- v. New Jersey, U.S. ____; 98 S. Ct. 2531 (1978); and Pennsylvania v. West Virginia, 262 U.S. 553 (1923).
32/ So serious is the apparent inconsistency between the Docket 14 Order and the federal Constitution, that on December 29, 1978 the State of New Mexico petitioned the United States Supreme Court to hear this case under its original jurisdiction alleging that the Docket 14 Order is an unconstitutional burden on interstate commerce. See ORDER FOR APPEARANCE, MOTION FOR LEAVE TO FILE COMPLAINT, COMPLAINT, AND STATEMENT OF FACTS AND BRIEF IN SUPPORT OF MOTION FOR T EAVE TO FILE COMPLAINT. New Mexico v. Texas, -
Original Action No. 82. On March 9, l'979, Texas responded with its BRIEF IN OPPOSITION. The Supreme Court then directed that New Mexico file a reply brief by April 25, 1979.
9 2265 253
F.ven should this aspect of the Docket 14 Order survive current litigation, its continued operation would in no way foreclose these evidentiary proceedings or the granting of appropriate relief. The existence of the Docket 14 Order
~
cannot undermine the statutory responsibilities imposed upon this Commission by Section 105c. If the Board finds that activities under the NRC licenses would create or maintain a situation inconsistent with the antitrust laws, the Board is statutorily required, under Section 105c(G), to affix sufficient conditions to the license to remove or obviate this inconsistency. The obligations imposed upon the Board by federal' statutes cannot be delimited by a state agency. 33/
In any event, at this point, there is no reason to assume that any relief granted by this Board would neces-sarily conflict with any TPUC Order in effect at that time.
However, even if we assume that the granting of appropriate relief by the Board would prompt a potential conflict with the Docket 14 Order, it would then be appropriate for the TPUC to reconsider its earlier position in light of the Board's order. It seems implausible to assume that the 33/ Cf. Federal Power Commission v. Southern California Edison Co. et al., 376 U.S. 205 (1964).
2265 254
TPUC, a state agency, would promote or maintain any serious conflict with the NRC, not only because the NRC is a federal agency, but also because of the NRC's preeminent and unique responsibilities in the area of nuclear licensing.
As to the second aspect of the Docket 14 Order, namely that no current member of TIS can disconnect from any other member without the prior approval of the TPUC, neither the Department nor the current litigation contests the validity of this aspect of the Order. It appears that HL&P (HL&P's Motion 23-26) has misinterpreted that portion of the Docket 14 Order as it pertains to the current proceedings. The TPUC simply ordered that TIS should remain interconnected.
This order applies tiether TIS is exclusively intrastate or whether, for whatever reason, TIS members should enter interstate commerce. There is no potential or actual conflict between this aspect of the Docket 14 Order and the power of this Board to grant appropriate relief.
C. The Injunction Issued by Judge Porter in the Dallas Decision Does Not Preclude the Board
' rom Issuing Appropriate Relief in These .
I'roceedinos Movants have also cited the injunction contained in the Dallas Decision as another factor which forecloses the Beard from conducting these proceedings. This contention must be rejected for a number of reasons. First, the. Dallas 2265 255
e 8 litigation was concerned solely with the South Texas project; neither the evidence introduced at trial nor the court's decision have any applicability to the Comanche Peak pro-ceeding and to the serious antitrust allegations made against TUGCO therein.
Secondly, in reference to the injunction, HL&P has misstated Judge Porter's Order. HL&P states that the court "has permanently enjoined CP&L from going into interstate operation as long as it remains in STP". (HL&P's Motion at.
23.) Unfortunately, HL&P has failed to quote the full language of the injunctive statement:
I find that under the evidence in this case plaintiff CPL's conduct threatens a violation of Section 8.2 of the STP agreement and CPL is hereby permanently enjoined from permitting power it receives from STP to enter interstate commarce as long as CPL remains a participant in the STP Agreement and as long as S8.2 of that agreement remains in force. Dallas Decision at 59 (emphasis added).
It thus becomes quite clear that Judge Porter's injunc-tic 7 is designed to protect the continued operation of section 8.2 of the South Texas Project. participation agree- -
ment. Since the Department contends that this provision of the agreement may be inconsistent with the antitrust laws (by limiting participation in effect to those electrical 2265 256
f utilities engaged exclusively in intrastate comm" ce), part of the relief the Department may request of thic aoard at the conclusion of the evidentiary hearing (s) would entail either excision or reformation of this provision to cure its anticompetitive effects. Of course, if the Board concludes that section 8.2 is inconsistent with the antitrust laws, the concern that Judge Porter sought to allay through his injunction evaporates since no license will issue if Section 8.2 remains in force.
V. CERTIFICATION OF ANY QUESTION ARISING OUT OF THE PRESET;T MOTIONS IS CONTRARY TO NRC PRECEDENT HL&P (HL&P Motion at 31) and TUGCO (TUGCO Memorandum at 20-22) suggest that if this Board should deny their motions to dismiss CP&L as a party to these proceedings and/or their motions for summary disposition, it should certify the questions raised in their motions to the Atomic Safety and Licensing Appeal Board (" Appeal Board"). 34/ In 34/ TUGCO also requests that the Board:
initiate steps to consider, or refer to the Commission for consideration, the impact of the District Court decision (and other recent developments such as the Public Utility Regulatory Policy Act of 1978) on the question of whether the Commission's discretionary initiation of the instant proceeding should now be reconsidered. (TUGCO's Motion to Dismiss at 2.)
In that the Department has just discucced (in the fo'regoing sections) all of the reasons why the cited events have no impact on these proceedings, no more need be said on this aspect of TUGCO's Motion.
2265 257 m * .- --w -
affect, the movants are seeking an interlocutory appeal of any Board order denying their motions.
Certification and interlocutory review are specifically governed by 10 C.P.R. S2.730(b), which generally proscribes interlocutory appeals. As the Appeal Board explained in ,
Public Service Company of Indiana, Inc. (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-405, 5 NRC 1190, 1191 (1977), its workload is so heavy that it can take only-the most pressing questions for interlocutory review.
In Public Service Company of Indiana, the Appeal Board made plain that interlocutory review would be granted only when the ruling below threatened the. party'affected by it with immediate, serious and irreparable harm which, as a practical matter, could not be alleviated by later appeal, or when the order below affected the basic structure of the proceeding in a pervasive or unusual manner. In the instant situation none of the movants have even attempted to demonstrate that they meet either of these criteria.
The simple denial of motions to dismiss and/or for -
summary disposition based on the doctrine of collateral estoppel are nothing more than routine procedural rulings with respect to which the Appeal Board, in applying the 2265 258
above standards, would be reluctant to interfere. These matters are interlocutory as to HL&P, TUGCO and Austin. If these movants still wish to obtain appellate review of a denial of their motions by this Board, the appropriate time for such review is at the conclusion of the upcoming evidentiary hearings after this Board has rendered its decision (s) therein.
VI. CONCLUSION For all the foregoing reasons, the. motions filed by HL&P, TUGCO and Austin are wholly without merit and should be denied in their entirety.
Respectfully submitted,
. t 0is.llt t'h !, ['f),t. Lb.-o Judith L. Harris Yh(.nM l3 I N *s. l c. J' 7
Melvin G. Berger
.~d - 0 .Y, . hevh, Ronald H. Clark
{.dbec
- n
'-l..ud,>1s%;~.% k-9} -mn7,b".n __,,
Frederick H. Parmenter Attorneys, Energy Section Antitrust Division Department of Justice Washington, D.C. 20530 it April 23, 1979 2265 259
. ' .S 17M0 CONGRESS!ON AL RR.OnD-SrN ATE October 9,197.;
In ri:'ny cases a mdow inay wish to of aariculMra! Imd " The locamc tu roth of the c a fi reare repe i h t+ra (tirn over the creration of a .w.all 1.ur-i- law; a;i to ec.9thd r..uin ta . ': t.:s free it s . 'e the en.i re.uit of count lt n lw ar*
nc 4 to unother m<hvidual or even . fat.t- exchnnrcr. t air e a type of :'et ts ;' that of dCteration fly ma rnb r Tne carrw.rr ba .u uvuh! fur.hcr int W G th,e all .tre t t.di:0 0! II ,til reprc ct - t r. e-6n:.re c",
hnp' .c a I..n:c cwitN 6 anta tax o'n the raticn land. This it. .ru es tat. c;r;.te tn tg th : Cr,aint:th e n ! h c :' nd
- mi sala of the bu. .iu t ,ev+t' thre h in:th v.d ta c( ta:vta ! ind on ! m tun in- f. trce r.ri! . r- !M: c i r. r. . - ta of t!.e ca,Gtal raua las ara: es f rom uti:w c (.ves the cu ate ta x ;'i eul. m- for (f. ;l ;;h L.: ue:; 0; mdy sta:; cr;n;.; cera-tien 1:n!t ccd apprtrntsen. the: ale ef t he ranchers. t!a 'hcr or not th i re';c.v3 rirmaty, fame?y twines can ent/ Le accumNu hrd any t cn(f.t'. f rem the c::. r. : dm e!op- I t;nt to ec ;t? rrt t!'c cor f! rac3
- v at ricat tws tc the %.60'o. and cc:w.d- nirut, ac t a it.cs. ( 'n 6.r th rc ctt sm- their lon'. h rd 9.1r ; o : thM !". * : on erab!c aUmnatiatne ; ul tax critun:tn stances it a co! cut that ae We, tern I L.1:c.a t. r.t t M Dr.Me and tz: .N *:< n co::t to all cencerncd. Ouc a!t;2 nat?
- to States u d!l e hat c'.cn h..rtkr by the l'J7C a ; a n ho!c it la t2 v Y.,
this sce ur:a 14 to ner o ?:ic fam:1y Lu 4- r.ct than ot.'icr a;;ricu!!ur:J sesons of 1.t:t. Mr. Pm .ch ;
- I :: t:q ri r ? bat ncra witit n lar.:er pudiea!!y he d cer- country. I ha.c ccnflea : Rel:tt:; r.oy.:t t% .e potaten. Tlas n;twn woul! a:!vt ':te In conc!u i'>n. I wppm the Inanute1 co!:'i ' .nce rcps :
widow to s cN ac income produem;; .to P. in this bdl which prmade for a dear m 1 Leli '.c that t~ *e taco 5:!h ar.? f.rst f ro:n the camp.'ny, t .x f ree, btit it at.A the carry-act bru pro;.si iA stepr. and 4 . allo;a i a.taa.t h.tstens the ptocers et lar. c corporat;nns Mr. IIUDDLi7 TON. Mr. Prrrient. I ncy 'rc good e s 'ar :.s thev p, but domin;tir C the croncnuc utnr. Can vec ar.,t unammons een. cat tnrt I?-cr Lc- that do smt .3 ::c: ' f r u.ou p in Octr;ros not sec. and sec plam17. the Ma. ster, of ray sta:!, be ret r.';tud tne .'f . Prc:.: dent, I i me.c that ? w Con-tracMy c,I this c:t'rre ? priti!cres cf the !bor riurin.: the dchate snu had the c:e -t"nity t-) e et the Tac sma!! btmnes:anan is penalized m and tete; on tne tax Ic;;1: Ltun tetore Ltad of tGJd ca : r - n'.en ar~a i .* i . '.y anather way by the cartyrsver Last.4 pro-the Senate. rate reform ' a l.m:: th-'. t io rm a-si!!cn. TS: f resh start ru.c ci the carry- The PH*JEIDING O TIC) *L Without try . rein: to reed :n !! e i;c ; .n.
over Lar:s provt:avt Omati tusmerses objcelon,l'. Is t:0 ordered. Put because the h F.nn fer the "':!-
with unti ted r.ecmitk u is determint;d
- ities did their '.icG " c!! and t: cw.c t: a by a:h.trardy preratm; the vah:c cf the _
admin'st:tticn r.e-ic!.v! nct to r-t bu.ms from the time at beran tmtd the PUULIC UTIT.rn RATE'3-CO!;FEft- mandatory con <ct ; #n...... .. e Valuc rit th.: date ot 6:ath of tu owntr. PNCF REPONT Wocnd tip with Ic atica : t i.s s e.ar:
Once a::.un. the owner of a r.ma d Luttrr.; shadow of v; hat it ecu:d twe r ca.
is eneuura;;cd. by the carryover b.vn NATIONAL TNIRGY CONSPRVATION Vic ctid net, in OScr word: 9- . 'he to eff(ct a taa-frce mer;cr retth a lar. er PGLICi* ACT-CONI r!RNCC ftE- Jcb. M.d Lccauz .u. id nct. I knri d c e a +;.1 Instr ad cf encouragmg the FORT the S:nate k:r . u.at in *S . t re.
contin :anen and ;rrom:h of m:t3 hun- The PRF.Smi.NG OITICT R. Tac heur the:.e isv.:c.; rz:li e : 0 tefore th': t- .
nc"e:.,!!.? 1176 act accdcrates :he trend of :: p.rn. h.u arrived. Under the previous time and t!rne ::::2.n. Tucy wdi e v u t. '-
towaru conccatratten ci bur.mcia actirtty or fore ua as bnr; ce o.: pcwM u n cre in lar:0 cor;)crationa. at a rancher. I am g,.cder,W111 thenow hourprcceedh.wm;: arrned, the Sen-to co:c:dct en b!oc ener;;y than tM :D: n e;.n aff:rd.
particthrly disturbc rl ;;U.
ta:.a. and c:hcr Wer:c:., Listes prov;de tho Nation er:th coal and uranium, the mmutes ca h s time. Mr. METZE.NU.w' h I c.; .:m : te the ne png, DING OTF!CCIL W4thout 'co'P:dcrat:cn cf the chairma.1 .d ?.e frLtmer und rancher in these areas is Encf Jy Co'nmitteJ fated T ith a tm!O:0 burtfen. Dere are cbjection. i.t.u en crdered.
y p p ,. .,y,g, g pygg, pg3 u};$ m. ufc :,ound prc 'lom few raniers uno roit!d wimnaly se!!
their land ta a coal cc npany and aban-tefore us ncrr are the Nat!naal Enercy that w.ll achte'.e cncrrj sann.n :.d v-dos n way of li!c tnat ts unn:a ta the Canscrv:.t.cn Act and the Ptib!:c Ut.hty em 14 rcduce o :r ncent a r fere- . cih Western G!ates. Sc..-n;: one s hnd out-P.04ufatcry Pe!!c;es Act-it'to of tr.e :ive And coth bil:s shos the . tt..a and tM r!cht to the coa. com::any ;rculd force cennonent< ef the naticnal enerzy plan. v. u: ht that we h:.s e be.m. to .a :r g3y e h.w wder in the Ecnate. Mr. pro::'c as that wc Fr.s0 fcr sa: t;a %..;
the r.tnehcr to pay enormous capital p g ..,t? Innered.
crdnr. t.a. Coal con .unies and ran:hers g. PRESIDING OF"!CTP.. The Chat: The Mattonal Ener::y Con:erv*on have met an accord by ar.rtrm- *e a ta" peints cut that the staii who tre m ths Pohry Act n; .in impo rtant u ct of f.:e evchan;c of c .: ranch f r a com- Ch mt?cr at: m he:c at the caurte3y of lecida!;on.
paraMc ple:e of p:operty In th.s way* the Senate and when they Ic.ne they the raucher can canunue with his way Fe r t h- fir:;t t* c " e t 'a c-shouht ! rave cinetly so we may nase or* to o.* er a$'tistanc[to'et.$dc$c"'-e .f r ;In '
of !Jfc. e e r .,n .ae .e t ,, , .c. in:t !,.:e e erry eNency cf the;r ha' Es-
.on nit,3%. the encr.".y a t ,..,. buAmem c,omp.tny can cet
- o. re,.over.n~ the c s.
trdnera!.s and prandm;: enes;y to the Mr. M L'mD AUM. I thank the T3 :s pre a'- m r, til . a c me ~ - **
. g pattoru
. rnake peopM merc aa r.re 01 R:e pabih"-
These bi;;s reach us none too soon. t;cs of conservat:un. Ar.d it mil sc:n:t
. llowever, one step has been lef t out of In spite of the President's. call to ar'ns ho.ncart .crs to ave money.
this c3.chanac. It t.u; procca is retsated in April tm. A:c.cra. a: . are today u utg In add:t m. 'he o.:1 n.Ja - F. ,- - l t numtier of tuna:;. w e see att artt:letal m- rnore ene:ry tht.n eser tc:ere it.nds avadable to v.cameru t!.: hm, flatlan of land ;; rices. The Internal Our dep.tmence on forti>n o.1 h.u of our ;o. -mes.r.e e:w::u. h h rro.
llevenne Serstle is entirely d.imterested deepene<t- Mt.es fWanein't and laan im:Ir.u a :or
' In the pe:uharthcs et i md valuation un Anet the Nation s nrient : ent for a entr:n -ec n>crv:ng heme improv; .a ence';7 predeema States: :t only struts cuberent energy phm n esin more cle.tr a ;.1 tor inatanatten M . olar cu s.:y v. -
to 1.A at
- carnparablc talcs data in and obvice nor than it A as a ymt and tems. It encontra;.f . .;chcob. ha .ds.
order to determme the cstate txt v.due a half ngo. - and butIdmgs owred by u:uts mf !acal b '
CA kmu/k%d h '
J 2265 260
S 17SG1 7S ' . Dclober 9,1973 -
CONGRESSIONAL RECORD-SENATE .
- nte PRF. SIDING OITICr.It t Alr.
ore rovernment.s to beenme more enerry efli- sured the c!cetr ' centumtrs of thla ur3 clent. And it will br!ne abcut a reduction country that thca voice will be heatd. Cnn cs). The Senator'r,10 minuts have In t!.c cuerry needed to run induntrial And that twtAir.only Presidt ws i .the
. I comumer's should pcmt out expired.
voice Mr. atC'l.*ENDAUM. I a, k for 0 incre eta equipment. home upphances and motor be heard. Init the or.ference report pro- anitattes.
r.d vehicks. Once again, th:s is a good bccm. vides that if the individuaJ or individ- Atr. JACKSON. I yield :' additie:ml m
m- py't duit is also important to consider uals who " rub.stantially contribtne" (G nutmtes to the nrritor from Mr tiETi'ENilAl'M. On o.
I arprac: ate the what this !catslation fa!!s to do. The the ultimate determinations of the hear-conservation bill orstmally contained a in;;s may Ec compensated for their ef- censideration of thc Senator frc:a W.nh-for forts. This tr a ::reat v:ctory for the con- incton.
x1. rneasure that wotdd have said to the car sumcr. who will finally be abic to com- I am personally grateful to both of
- )n piahcrs of Amer:ca **The time has come pete on en even footum with the ut!htY them for their leadersh:p and th:inany v.hta yots can no longer make an over-Mt Red gas-g.1:: ling auto:nout!e. In the industry of this Nation. I would hke to accommodations accorded me. And the C aper,
.csc nat.onal interest, cars must be more conunend rny coilcagues on the ConIcr- staiT Dr. Dan Dreyfus.
ence Co:nmittee for preserymg this pro- and Jim Bruce _has been tot.u Dr. Ikt}W ne:n.
enevy emcJent." Jul, underst:.nuin,:. and resreid!? We
- .rst };ut althou;h we are said to face the vision.
moral equivalcnt of war. the Ininunum The conference report on the Public evic them a creat dcht of cratitute. They dut Inilcage standards n hich I proposed, and Utihty Rc':u!atory Policies Act alco re-int.ch. wcre Imost beipfulthat am prced andour I tuc.n:: them com:mttee wlilch were ove: xhe!mm;:ly adopted by quires the l'cderal Encrcy Rcgulatory has such able penonnel. WC ceuhl not c!1- the f' enate did nct surnve the confer- Ccnunission to make a thorouch review the ence.The administrat:cn rc!used to sup- of the fuel adjustment clause with:n in- do our job viithout I apprcciate them.
the consideratinn that ULY port the Cenate position. dividual States.
GD* And, Str. Premient. another section Afr. Prcsidcnt, no sincle item has dcncSenator has been accordcd me parstmg!y by JAcxsm: and by Senator 1. Nsw of tl:c original bd! toc!d have said to more to undermm0 the rate setthu; pro- as well. Their Icacersh;p ni t.a man ill* the manuf acturers of industrial motors cedute than the fuel adjunment c:aunc. cndeavors in which they wete mvohed he "The time has come for you to mr.kc As a recent congressional study undct- and the sta!Iis also to be comm:ndcd.
mrt rnotors that are as energy emcient as scored. 80 percent of the :ncrenac in the WHmWQ AND UMERCONNECDON rJCW4UN re pc,ss;ble, not as inexpensive as possaule., last year in utility bills recuhed from " N^
tre lhe potential energy sninas here was the fuel adjustment clauac. In my own Mr. President durmg consider ation the equivalent of oscr 200.000 bartcls of State of Ohio alone, more than $1 bil-it oil per day.
lion was passed on to the consumers of the Public Utahtics Reaulater Pch-nd Dut this too, was unp'ilatabic~unpal* by reason of the fuel adjtutment clausc. cies Act, we c:nsidered some enantes m re, atable not only to a majority cf the con- almott cinht times as much as all the the Federal Pov.cr Act winen scouh! cive d? ferces but also unacce: stable to the same increases permitted throuuh normal rate the Federal Energy Reguhtery Cc!." as-DC" r.dministr:ttion that had brought the proccedincs. I personally bellese the fuel sion authority to order intercoanctuon ore enerCy situation to our attent;on in the stdjustment clause has outhved its use- and wheeling services amon- u..htics.
first place. fulness. Such authorities would alMV for a more CSC In August of 197L I conducted hear. I hope that FERC wl!1 review these reliable and ef:Ictent electric srs:cm ut
!'t incs on several mandatory mea.sures that clauces prcmptly, and that this review this Nation. 3:any of the ormr.at pro-rp , included minimum :inicage standards. will result in thcar termination, or at the pzals were not adonted and a rnorc Ininimurn cmciency standards for indus- very least. greater protection for the limited authority for IIRO to issue in-trial motors, and tetrofit for home heat- consumer. terconncetion and whcclm:; ciders tras inc units. Together. these imtlatives Air. President. I also want to point out adopted.
- TY.
In granting I'ERC authority to iraue Ns woult! have produced satings of clow to to my co!!cagucs that the conft rence re-
' Of- three-cluarters of a million barrels of oil port retams a Senate provisio1 author- whcchng orders under scetien 2M of the 0f ct;civalent per day. Yet at those hearmes i::ng up to $2 m:1! ion for the National act, the conferces prov:dcd that *Le oor a spokesperson for the adnunistraticn. Rc;ulatory Research Institute located at Commission inay act only vien it 7.nds while acknowled;;!ng the sounducFs of Olno Etate University. In kee91ng with that the ordct is in the puchc accrut
.:.d, these prepc:.als, maicated that the ad- the philosophy of the conferer ce report. ond that the crder would: F;rn. conec:t e "ver Ininistration could not support them, which retains ultimate cona al in the synn'icant amcunts of enetcy: sec^nd.
- so TurninJ brictly to the Puche Utility states, the Naticnal Rc culatory Rezcarch rgnif1cantly prometc the t !.ev r.t u'e et Regulatory Polic:cs Act. I would in:e to Institute will provide State regulatory fac1htics and resourecs: c r t' .id im-
. Je point out that there is probacly no 15- authoritics with indepe:ulent c:ccrtisc prove the rchabihty of any cic tr.c utd ;y tbe sue in my State of Oluo and I su. Ecct. on reanlatory policy issues anu with im- system to wh:ch the order apphes. There in the country as a whole, that has prosed data retr: eval systems. As the are, to say the least. ;;ood reu.:ons :cr cus i stirred as much public protest as the author of this provtsion. I am pleased granting the FERC sucn autheru
- be- A budact-busting the 1:1 utthty bills over that the conference report aZrms our Individual c!ectric utthty sv >tc'ns nece a the last few years. In 1977. alone, ut:hty support for this important institution, to have adequate reserves in t.a rvent
'j he Lills rose $13.4 bilhon and totaled over and seen fit to include it. some of it.s generating tae:h' .s ur Mens-icss SCO billion. In closing Mr. President. Ict me re- nussion lines beceme moperac!e. Unrvr-W As proposed by the President and iterate my mixed feelinns about these tunately, to provide for such s:Luations.
pas!cd by the Ilouse, the Pubhc Utihty two bdis I;efore us. I:cth bills take a step many utihtics have creroutlt. tha nave acn Reculatory Pohetes Act was an attempt forward in conserving enerry. and it is inade large capital investmenu in ren-Of to cet a handle on there tremendous in-for that reason that I support t hem. cratim: fae:htics which stand id:e mw creases. The bill rent to the Senate would Nonethclco. it is equally c!c.ir that bo:h of the time. And nhich add conoiderabiy
? tes have mandated that certain energy con- bills fall far short of what is needed. We to consumcr emis.
a- servation standards be apphed in State cannot, anti should not. conunuc to re!Y A better soh:tton would have been one mes.
' Tegulatory proeecdmcs Icr retail rates, almest cNclustvely upon increasme tho Nn6t has teen proposed in leelstatwa by Till The Senate. in its t rdom, dccided that price of energy as the r ule tactbod ot rw- several of my coIIcacues. but mon pram.
'& it was best to leave the re!porsibahty for Lng enerny. Mandatory conservatmn inently by the late Eenatcr Lee Me: cam.
nit setting rett.11 electric rates with the measures have the potenttal to save an Ilis proposal would create a nat:c.:.d States. T!uis. the conference report be- enormou*; amount ot enercy. We should gitd. The concept behmd this les islat:en fore us today remures only tnat the move with dispatch in that direction. ts to provide a reliable national netwerk tal mes States give full consideration durme an And one further word about tlus le - of transnnssion tae: hts a ' lat wncu open hearme process to a munber of islation. The cha;rman et our comemt- one area a power shurt. enmy cgu a
.'forr a- standards which have the potential for tee as well as the rankmit :nmurity mem- anoved actms transmi.wlon Imu to pre-an ts conscrymg cnergy, bcr have shown cical tenacity, patience. vent blackouts hke we have hen m .Ww Ts- It is this hearme process that contains perr.erverance. and pertonal conshiera- York and New En land in reu nt years.
'sts, the most pronusmc aspect of this bill. tion for all of the munbers of the cum- and Ohiothefaced threatthis of blackout.(w:
pa.st winter.ch ne bill The m 7eal For the !!rst time, the Congrcos ints as- mittee over a long twd dithcult period.
e ,n T[ ] ]
l CONGRESSIONAL RECORD-SENATE October 9,10rs S 17S02 pendin:' before us t-ou!d certainly not ties. ITEC Inar detennine that it would wh!ch recifies that certain d(termina a.d I create a national grtd. If amer. It wtvrld not satnincnnt!y : Uter" r.uch Iclat:on- Liau:. which the W '.c mu .t tan. Craut to FLitC some authonty so that slups and could thus issue a Whcchng thebcpubhc. W m wntitnTiicre ts andnotC) a'.a.: vcun pro:mm M. a l we cou!d prevent w:ntetut overconstruc- order- I am aho ermeerned ibout the amount the. c ittnis. ILecever, rulpam :r.q.h e la j tion of new ccncraung and trantmimon f aelhtics and maice better use of existit'gtion a utth!y or formu;tn!up.!F chng for seruce;. an interconnec-The len- indicates "bx cdthat, upen Cicikd& rnunauon
.. Gs inch :wl mu:4 in Mtee facilities.
There are terms and conditions other c'tacc of :cetton lm requ:rc1 that such det:rmination and upon the chence
? than the three which I have mentioned costs include any " reasonably ascertain- ptc<cnted The statementin the heatum."
of managers indicat.a l which mast be met before IIRC can ab!c costsunccmren.cated econonne at include tho.,c ascertatnabic les. the' The that if State law cm. hem.f. tlns wuica ist.uc a wheeling order. One central c*cment or thread tyte: tune of the order or any tin.c thercaf'.cr. would " override 1.te pr:ccdural ja.e to
- together the othc: condit!cns and re- 1Dth present and luture coit.s shou!c. of the encutatofvery Loched such erdet,
- arro c.!y.' I thi:a thcee cour:c. bc ti.csc ar. soc 4ated .vt:h the strictions on FEltC's authority reticcted services provided pursuant to the intcr- nords have the potent al fcr rome mu-i the dcsire of the confcrces that the lects-latian 1:e ricutral with terpect to nil councet on or uhechn; order. Othern.sc. cht:f, and shenld te c1Lif.ed.1he :.n f.c.
t afIceted. Section 4 provic.es that"nothing there woula le encilass spectdation ondocs mentgocfonmar.ager; I to ray that:i; hulph:1 in th.u it I in thts act or any amendmcnt mede by "vehnt-if" costs. Tae procedunt fewes or the prev a er this act aflects: Fnst, the appheictlity It was not the intent of the conferecs cor.adcrataa raat deter:runsti.:m. tneur: t-I i of the antitrust laws to any c!cctr*.c of to mod:fy in any way the IEhts of par- suc't cor.cepts n.s tr.c anure et cuA:.ee mt ga.s utlhty; or recond, any authority of tics the relator;,h:p. it s .7. te.wce, naa: 7 r2 i tior.sinofpF:cntm; a prose:uun7 anticompetittvc co:1.uctade~a. hefore l 3 " N' " I 3 the Sccictary or of the Commia Nn under the Fct!cm1 anct State courts, er DefoW any other provision of hw tincluum; the Federal 1*ower Act atid the Iiatural Gas admintstratis e agencies.1.cluding the c' T['#'i 9 W"((*$,$ [' ' ,.$
;) N h j j FERC and the Nuclear Rc0niatory Com- in Ot'ge couru. anu 1 ny other m.nte E .mt Act) Itapecting uttfair methods of com- Ints.uon. Ectn have legal M;abons to sticeninent wtui tiae tequac::em, u 1:m petition cr anticompetitive acts or prac- consider antitrust issues. Whcre any of tit:c.
tjecs ** Tae concept cf neutrahty is spc-I c!!!cally rnentioned in the statement of these thcrityagtncics to crder prc:.ently have transtnition, the au. b aa coordina- Tljere are two cuesticns the mana;ct of the bdlI to would f ur*.,J:e er k the mana; cts.
' Under the language of section M3 tion or other relief pursuant to a nuding ampli y this statement of the ma:'i m adopted by the conferec 1. TERC is pro- of anticompetitive conduct unduc dis- To En with. I 1:oq,that an of pata-
- hlbited imm usuing a sheelin;: crder enmmauen or unjust and urreasonable
, tinicss the Comm: scion dctcrmmes that ratcs tenns conchttons orinthe n onhie, thistogh referred WW in su~ c W M scction pne; r ,p .' * *o crmination. as I undersan J tt, 3
I the o:dcr "wou!d rcaronably preserve authority coes woubt not li:mtnot the be dt .turite.l. present The act n'lthonty of h.s the determmauen of wncther or net ex!stini competitive relattotuhtps." As noted in the statement of tl e mana;ers, there a;cnc;cs in this regard. the Federal standards arc "a':prenate 1 the TERC is' not "rct;utred to maintain Thu:. a party which has bnn denied to carry out the purmics of tha ude. ' i ~ or protect in a.ny ruanner any rc ation- whecima rernces for antiet.mpetitive After the deternunaMon has been ra.r:e j-3 reasons will not be hindered b:* tnis tems- es to whether a standard is apror-nt sh!p between ut:Dtics which is unlawful lation from preceedtn; fn the Federal to carry out the DurM .es of the '.t!. m-under the antJtrust laris."
'j courts or citewhere. Likewise. the author- scetica 111(c) then al:ows the Stan the There h ts been. in the last few ye trs. itv of the UIts in conductir t an anti- father discretien er whethe or no . to a trend ntuong municipal e!octric utdj. trt. t renew under the provu:ons of the imp ement the standard e7en if it Ms tics. rural c!cetr:e coepera%ves. and
' sm'dler investor-o vner utilitics to join Atomic Ene~Jy Act of IM. I s amended. dettemined that ruth standard v.cn!d b wou:d not be dccted by tin. cxtremely apprmriate to carry out the purpecs cf 1 tocether and construct reneratin; tactit. 1:mited wheelin" author ty granted to the title.
1 tics to serve their own loods as oppcsed F7.30 under th25 nc"r le%is!' t:en. These ow. rny unc'erstancmn is that the rc-i to purchasing power at vc!tolesale frcm two acenetea are chaired wi'.h different minrement that the determmaten Pc large investor-owned uttiit:cs. In zome respontibnit;es wuh respect o wheeling. based upon finchn9 and uren ec;rh Ne h instances the transmission of the eiec. FAPC's um authonty is cendition on refers to the dcterminaticn of whc.' rr
, ttfeity frcm the cencratm stat:en to the conservaMott c1Eclency. reliThihty and the standard wet:Id carry cut t.tc pur.
municipal systems or others ow: uni a!.d public interest. NRC's ruthcr:ty relates pm:es of the tit:c and not to the 8t.1 c's
) operating that facthty may not be possi, to corrretin; or preventing a situstten mscretion to impic'ncnt or not ' n/c-ble in the absence of whccling nrrange, incons. stein entn the antattmt laws.
;] ments with an intervemn; utility. An Mr. President. !ct me at;ain statc that. C.cnt the standard. 4 as my ft; cud from
% athington,is that corrcet?
order to reqinre wheel:n of such c!cc. while I micht like to have seen some Mr. JACKSON That is my nder-3 tricity under those etrcumr.tances, or to cther thm s in this Ic :islation. I am stand.ng. permit the more cCletent plant.s in a co. pleased with many aspects of it. We have . Mr. IIANS"N. My second (;uNken re-operative fathlon, would not, of cour:c. cranted many important r:r. hts to the lates to the proce.s3 of judicial scuc.v cf be regarded as an action wiuch trould c!cctric consumers and we have granted l disrupt existing compettlive relation. to the Federal Energy 1:c;ulatory Com. arty Commission dcctilon. My eeneern u ships. rnission ro::tc authonty to ma':e our that the word " batedin the teaturement i Mr. President. I would hke to empha- nauenwide clxtr:c sy:tcm tuote rehable that the determmatien bc bWd upon stre that all this lan;ua e about compe- nd c2.ctent. Th:s 13. of courrc. In the findmCs and H 'on er: den 0c cot:') be cen-tition in section :hu t.t not intended to best interest of all censumers. I behcvc strued to crea!e nc'e Fe:cral nrocer.2ral prohibit whcchn merely becatt.40 there this le:;islation is a step in the r.;ht di- a :ditT: contamed w: thin it. If the Su:e p is any chan"c in the competitive rela- rection and shculd bc adeptcd. proceedings.
. f t!onsh!ps between ut;ht:cs: rather, the I thank the &nator f rc:n Washins, ton. It is rather nty understandmg cf the 5 chance must be "suNtantui." Ixt me The PRESIDING OFFICER., Who intent of thia .cction :s en;y th.n therc take an example where two ut: hues arc yields time? The Senator from Wyoming. unat be some colmectica txtvn rn the i
in competition for the same eu.stomer in Mr IIANSEN. \1r. pre:ndent. I y1cid detcrtnmation as to appropna:eness to c.u ry out the purpores of tue tit'.c .utd n service area not otherwtre protceted by { State law. If enc of Utove unlttics wouhl miss!f such tente as I m:ty t equne, I atn concernN wah clart!yn::: the in. the;towever, Padmcs or evidence. the nature and emahty of 4 need wheeling services fram the other order to senc the new cur,temer therc :s in terpretation of a parbetdar part of this . to absolute ban on such an order trota constrence rer.ott. It was my under- the terconnection for State law. requtred is stt tedy
.ts maae rit m.a.
FERC if all other neec:.sary tes:.s c.tn be stanum t that the acreement that auld w- t atemc - of stanagers wntn it ta;ed met. The le:ttstation says that such an reached tud;cated that th!- 5 th.6L b.aden of Pt voi. .a.aa..trd ter re. order to serve the new cu.tomer sculd not overnde State prw aurallaw v.wspt ucw and other matters were up ta atte hmo to si;tnificantly a!Ler" the enmpet!- In sery hutsted etrcumgance.w Ihc para- procedure in State courts. Thua if the
.ttyo tcla'.tonslups between the two tat!!i . graph which concerns me is Illib)(1) p s
} -
^ S 17PO.'I
'()ctober 9,1973 .
. CONGRESSIONAL RECORD-SENNTE bc in accordance with the provisiona of the submition of applicatiardor IV.I.
State standard of review is thc "nrbitrary section 50ma) of this ude, cral m rmtts. rights-of-way or other au-ana* stud capricious >tandAro." then all that thorities fdtd on behalf of a compe - + hsll Section SOUa) of TiMc V provide.c that crtide oil transportanon sptem pur.u-t3 ga acquired by thia section h that it not all Fed: rag o:.icer and acene:es must ant to the provutor.s of : :ction .N 8 :. hall .0,th
.a be thearbittaryindicatcdand capractotis to detctnnnath,n nave uten thel'tade inattre cweditcd pmcevin':. to the max. hkewt:.c h.n c tio ci.u t < n te contiurn t O findings cotst tined within it. If the State imum extent practicauc of ali actions proce:amg of appheatmua for permm.
i be st:tndard is "acmu'la of cvicence." then neccoary to determir.c whether to I;. rt::ht eot-way or other authar t: at .ons Ah sue, adminisrcr or enfor:c imh .1-of. submitted purauant to aistmg 1.sw.
- 8 that required. is the Is ttandard that anfor the connection accurate under- way across Federal lands and to i<suc LIr4 MAlui O. IIXW: D. Mr. Pac -
stariding of the intent of the language in Federal pernuta in cormection with, or dent, when the Senate we.4 con @ rm" Lates 111(b) (1) t D) ? otherwuc authortre, construction and the cuerny ecmcrwton conferente re-mon Mr. JACifEON. That is my under- operation of any crude cil tr.insporta- port on WLurday. OctcLtr y. I enu ud
- '" standing.
tion system. Section 50Ba) provides in a colloquy with the oc t;n.;ue hir. IIANSEN. I thank tac Senator fo! that such expedited rrcecssing sha!! be chairman cf the Encrry nnd Natural .p .f AOS* those ansucts. They conrtr:a my smdar- af!orded "(alf ter issuance of a decedon sources Comnuttee reaatJmg the uMpy 2 d8" - standinc that the States are not regttred by the President approvmg any crude conservation pro;rms ro;u: red by N 'te-to conform their ratemabi tJ thcac oil tran::portation system.* It should be noted, however, that, in legislation. I have on? hirther G ],on ", N Federal preeente. I am happy to ree thi3 I would ICc to addren to the 6... s . outcome, because I da not think that our many instances dcterminations on ap- about these prograrns. d Stato utility commtssions are too stupid pheations for Federal permits, ri;' hts-ot- l'CU U 'IM m mpts 1.;,N, $ to adopt stad ideas and reject bad ones. way or other author!:ations submitted from the prohibition on rt' poly in'i nis-I am pu.'rled at just witat we thinic pursuant to tbc provitens of exist n; law tion, or :.nancing of ecuscrvattoti r. n-s r.nd this bill will now accomphsh. Etate com- as provided for in s : tion 505ml wdl be as *where a law or m m on in g. s ms Inissions already have this same power. niade in accordance with the provis:ons on or before the date < f en .ctmc.., o;. ma t. law, directly by the a';ency c-mter and that are nowt susmg havbut it. to 15 ten I do nca.Carcin's Davp' Leicyc of head existin~Is or h designco rather than by the this Actthe mit:. cither puuic requirez. crcarry ut!hty to c:whciuyou. ; at 3 Dot :n W8 lawycrs wth help them very rauch. President.For examp!c lf no apt,hca::cns actt.ntics. My quest:ou of th Similarly, the wholesalt rate prost- are made under titic V and the Prca den- inroh es the werd rcm t .n.ghtv a r- . i II;:e sfons are now prorcrly be d :cd about tial decisionmakin; procedure in tule V sumption that an ordcr or ruliu of a with so many restrictions Ll.at it is un- is not initiated. apphcations under exist- State pubhc utihty conmwsion er -irai-
-ther likely that this section will cau .c much in: law would be acte! upon by the ap- lar body constiutes a re:,ulation for (".
scra. chan;c other than more word for law- propriate ledcral o!!!:crs and accneies this e
-ara. ycrs. Senator J AexsoN statW cn Sat- withotit re3nrd to the provi+: ens M . Jof tec- purpses oj, SON. a-AC.. ,xemNon
- ter.
r3) y urday that this bill was not, mtended to tion Sma) or the other provi:ictis of this An order or rulin;; ci a 8:tte puoM _t nd it, get the Federal Govemment tuto eco- titic. In this and other cases in which a Ity comnussion rcqumn g or eWQ.'.O .- nog no nic contests between utilitJcs. With- formal determ! nation en cuch an appll- permitting a utibty to suppi: . inMui. or cut this so-called econonuc whechng. cation is rnade by a Federal ofec!al other f. nano comtvauon n w en C
;i,tto there is unhkcly to te nr.uch whcchn; than the Prer.ident. in acccrdance with :ualify that utility fe the exc ., ' >;
- i tle.*-
at alb cxistin; law, tPc provisions of sect!an 502 under rection 21Gid)(3) of this oir e made Wrthermore, interconnection and (an are intended to Lc apphcabic at that that 0:dcr or rulin; it in c:!cet pm t1
~ fate whccling do riot produce any additional point in the adminbtrative pro:cu with- the date of enactm2 4 of tha act.
f,"ub- energy. jttst a.s almost all of the Presi- out need for cent.deration of decimon- EIr. M ARK O. IINITUgLD. I tk ac the dent's encrgy packa c docs not proauce mar.tu; directly by the Presiderit, ta any Senator Ior ins claru.catt:,n. Qg to future actions wh'ch that a;cnc; tnay be # JACC any new encr:Dr. a has Atr. Pr:sident. If this bdl is properly required to undertake to imp!cment that ge'st t'he abse' nce of SON. a c.uorum.dr.atPmtdco I < t : . .e. ; I sum
'd be interprettd by the courts. I do not be- dcctsion. Thus, for example,if an agency and ask that it come ot:t cf tb< t4. ? cn 7,3 ~e of lleve it docs very mu:h harm. Put I be- head grants an appheation for a rt;;ht. both sides equally.
lieve our standards for 12:ulation should of-way across Federa! lands submitted The PRESIDING OGCER. V.S.h w', be hi;;her than that. I behevc that Amer- purstnt to the provisions of rection 305 objection, it is to ordered. The w: ; d.
]e ted ic;t will be better oif uthout the com- (c) and existin; law on behalf of a crude cAltu rol enec plication and regulation introduced by oil transportation ptem, thercafter the W we mi a-sistant legi.slative ch t *ther this bill. We need substance, not symbo- provt';:ons of section 500f a) requirin; ex- pmceded to call the rou.
lism, and this bill now provides litt;e but redited procedures for approved systems M sy:nbolism. shall apply with retard to at! actions nec. I as,r. ROBERT C. a unanimous DYRD. cor.sent Mr.1-ru:.cr tha:. the en - t. Egef I reserve the remainder of my time. essary to implement that determine. tion. T g 'U" ~~ Finally, under title V an appheant for " " " ##N 1.P" The PRESIDING Oi tICER. Wa,aut The PRESIDING OPFICER. Who yields time? permits, riChts-of-way, and other au- C""* s oQd. . g C#~ The Senator from Washingtcn. thorirations for a crude oil pip;Imc or u C. B i Mr. JACUSON. Mr. President, the transportation system may chwse to ap- ,s the time controlleu,.A at bis,E.to *Nice
.? t.
q 3D ~ purpose of r.cction 50 Men of title V p!y tmdcr tit:c V of this act, ender the . The PRESIDING CW:C~R. T
" Crude O!! Transportation Systems
- 1s Mmeral Leasin:; Act of 1000 at1d other un er me control of me"d&na -*( n to make clear that Llus tit!O d:'es not rc- appropriate provisions of existinc law. or
- h"#
l[C*U *I . ent peal, supplant, or replace the proustons under toth tu c V of this act and the ;'ro. OU 0** #* **- WC3 of cxistm:: Federal law naversung per- vision 2 of en.tm,: law. The conference M . ROBERT C. INP.D. WH1 " '
- yn-rnits, rt:'ht&of-v.ay and other authort- comnut!ce does not intend that appu. stor from Washmrten yield me S . a-Jhcon-ral zations for construction n!!d operation canh who have previously applied for utes?
612E' of crude oil pinchnes or other crude oil Nrmits under existing law and ma.fc Mr. JACKSON. Mr. Prendent. I s icid substantial expenditures and commit-transportation systems. 5 mmutes to the dic.tmnuuhed m ae cf the Section 505(e) of title V provid~. Unt. ments procc .stn.~ such applications would leader.
. there notMthstanding the other pNytsions of bc reqture<.1 to elect the new pr'ocedurc Mr. ROBERT C. DWD. Mr. Pn -iJ., t m me this title, any appliention for a Federal exchtstrely. Rather, it is intervled ihat an ES3 IO permit, richt-of-way or other author!- apphcatien under both proccuures may the ( nference report on tbc ', el ,
te and zation under other prousion: of law for bo maint.uned. Thus, an an.ibcant for Ener-y Conservatmn Pohey At t
- a crudc oil tnuvpartattan sy:. tem cli- pet nut.s subm:ttu! m accot d.utte 'vit h the 50D is a bill for pN"M It wC -
;hty of rible for coasideration under this title provb:ons of ew tm; law may have the motion a national e!! ort la me md t a mat- shtdl bc necepted and reviewed by the appropriate l'ederal arency cont:nue to taa*herire rendential and publa % C i-
- m the opproprtato Federas agency ttnder thelaw procer.s even ifIta theappheations under custing arpl! cant chooses mes.
to also in;: Energy and retrodtting savtans otherreah.*cd con c:vr by n nlani.: .s
': stated provisions of cxnttur: law.section 50Me) subtmt an appheauon untier the provt- improvetnents would be nenuir mt tta uor r?- also prov! des that any determination o State with respect to such itn appucation shAl rions of sectaon 501 of titic V. In addition. bill ab.o would help to increane the us:
. t1 thC r g g 7
.- D [&.N-o A
*I-
"r . h 2265 263 .
S 17801 CONGRESSIONAL IUIORD-ST.NATE October 9,197s i stohr cncrgy na a r.ubstitute for non. tivenc~. rach Federal droartment er unc of rencratinz ond related fnettes' renewab!c cuergy rescurces. a: enry is directed to conduct a prehmi- melucim : ccn.st.ation 01 i.r.p;rted cn. In addition to conscrymf- ener?v, the nary cuer:'y audit to determ.nc the bar* crev, at:d cTuty f or ratcp.:yt r, Nstional Enert;y Conservation !Yl:cy Act way to raake cach bmldnr tuore (ner::y The con a rvation an:1 late tcfor:n
,1, should hc!9 conrumcrs cope unh rncrayhave cihetent. Nev Federal hm! din;s vcon!d st:n.dat to U deurned and con:tructed co on a utt!.t>-by-utshty tis um t Le ba:ucon: ..!cn d 'crm:e a:n! wainn b Inflation. *Ihc bdl provides for better in. year. af ter t!:c datc o! enact * . t,Rea.
formation about ene r;:y savme; pyro. that co..t conr.utcratiosu would t.c de-clated with resident!al cont ervation ter:nined on the bad of 1:ie-cyc!c co.ts sons for rejectm; any stan% mu_t be tucasures acects to pr;vate or pubhc fl. to Tnc the muunwn c;. tent pract: cat!c. put in u rn:ng, Laseri en c'.tdence e , tau. nancin'. and encr-v enicicacy standards con!crence repcrt, abo sec%s to hshed dur.n; a hearm:. and n..wie part
; make pro'rc53 on the induanal concer- of the pubhc tecer i of the piortt an.p. ! for major household apphance:,. After con.6erm; the 1 cdcral 5 anc!.
i Direct assistance to owners of houses vation front. Tite prnnary focus is en i
._ or tuultifamily structurcs is both infor. pumps and niotors. The Department of ard, the confertca cxpect that a f4 ate i .rnational and financial. Inforn'at:on !s Encrgy is directed to evaluate them in reaulatory atency cr unrcru! Cu uul orcier to determ nc standard clminca. will ado; t than wluch sGm D:-:dy o i ~
l>rovided pursuant conservation to aUnder pro : ram. res:d2ntial caercy tions accolding to cncray eJ1ciency. II accomphsh the purpo;cs of it.e ;.ct. As a this ' pro. crarn, a utthty is ter,mred t0 prorde on. the culuat:ca shows th:a proced .rcs for resu!t. cas en'! c!cctricity vru :bi U tred ergy conservation infcrmation to oc.ners te tma. and labelmt the cnergy cmciency incre cdciently. :;rcab.r quanu:.': cf en. i j I of residenti?! buddings with four tm;ta of pu ups and mctcr8 are apprognate. cr.7y would be conarved. and connu:nors DOE Inay precertte test prcaedures and would have service rate orrien. in ordcr
! . or icss.ff rcc.uc3ted. to hold do'.cn their utility b.P. Th:s ', A utility would rerve as project man. require The labchng.
conference report is a sh:nificant should hc!p to stretch do.nccc cnrray j tiger to in pect the bu !dmc; su::c:4 con. 1 servation measures end project the:r en. part of the Prc:.ident*: comprehensive supplies and red.:ce imporb wth J.nt ct.. crCy cost savings; supply lists oi !cnd. encr;;y policy. It not only contr:butes to darmerillg cconomic crowth or fucling
}
I crs, suppliers, and centractors; c:Ter toalso the itencr;y plays con:crvaticn ob.icctp.e. a ro:e in the import but imlaticn. control The frame'.verk for reviercing utility
- nrrance to have ecuscrvation sacasures Installed; and of cr billing and repay. strate;y. I comphmcat Chair: nan JAci:- pohCy qed adW M3 it to the ! ' t cncr;'y Inent arran:cmcr. i as a part of tacnthly son and the Ecnate enc ; y centctets for t.urjromnt n; c@rs adtantec ; i!ch l* t go the well thou;;ht-out enerry ecuacrvatica bcyond greater conservation. arr / cf.
lI j utility tills. A utihty trould be prchibited from pro:'afr. rams set forththe Prendent, in th;s docmucnt. f anfarc gciency, and r .tc camtv. It pru erycs and drema existing rc; ulat ory relaticnthip- This i lending Inure than f300 per ca.stcmt and surro'mdm the natural [.as dcbatc may means that local condiucna vi:.1 cc " Lau : i could not supply or install energy enmer. dwarf Senate Conside:at;ca of the con- to dictate local relic;cs. At the r m v ac. vntion measure.;. A State resiential en.
.crgy et,nscrvation pla n must include fctence report on the Pubac Utiht7 it encourat:cs flexit:hty nnd innr.ation standards nmt prncedurcs to nssure thet Ecedatory Policies Act of 1163 (II.ft. Indeed, the Leauty of the tonkrum re-401S). It would be short-righted, how- pcrt is that it is a nationnl pob- v;hich l cach utility uth charce fair or:d reason. ever, to overlook the potcutfal contnbu- is responsisc to cach Statc31xeds w::it.
nble prices and interc-t rates in connec. tien g:Is and electric ua:Ws can tuake cut penali41n; a State viinch dxs nn th
} tion with it s concervation pro'; rom.
g Financial assistence is provid61 in the toward achicvin; our national enero the norza, form of rrar.ts. Feceral home improve- C03I5* In add!tfon to reviewin : cketri: and i Inent loan insuranec, loans at market in. ofThis tecnomy is a voracious consumer gas retail later., the confere:u e repo:t 1 cIcetricity and natural gas. We use provides for three other pNC; A to hgh) i tcrest rates, and s@idired ! cans. Grants botn throu;;hout our rcsidepres nnd at conserve ener;y and cent 2. ' < ets ' e
} for mr.ktng cucrvy tun:enation impruve. wori:. A1: nest 30 percent of the total Federal Pncr:'y Re:ulatory Cm.m.v.5
{ rnents for low-mcome homeowners are amount of encr;;y we consu're is uxtl is required to promulc' ate renu;murr nel-nyallab!c throuch ID. Grants are nho to generate electric:ty. As a source of 1:!cs which fator inmintial coce u M. a.- available to mul'.tfamily structures h. encrcy, natural cas accounts for about incilitics. This iacludcs a pro'..nen th nanced or intured by the D:nartment of N percent of .1 energy ucd. irsure that t utmty buys or .s hs cc.'Nn-Urban Deselopment for cider ly, handi-k' a A!!ct the .DU-.4 o:1 c:nuargo and cration powrr at fur ratc* capped. Iow- or moderate-income fam- sharp increases in encray pr:ci s, the necd Stretching power su; N:, and rrduc-l 11lcs. Among cldible multitannly proj- to N-cunune (kctric and tu uti; tty !na long-run corts are c:me'.cd to
- ects, priority is riven to those in finan, rdakry poheics,,,bccame increasingly from a nat:on il, mteret]mccted O"c 'd" l clal dimeulty because of Int;h energy ntore apparent. .ne empha ns of tha prid. To t his ena. the FEP.C is aut $or cedc costs. ut!!ity conference rercrt en conserva- t E!!cibility for loans and insured loans tion, ccst contro., and reta:1 rate Icform to reamte phyucal interwr.. "ba: ens o$
cicetric power trenem:ssen ' 'e - is restricted to low- and mcdcrate-in- Nomo mn etcr uhab c5In.. m. T come appheants, except for solar encr;y 1 2r c" pr ces*
] . , loans. They arc availab!c to all fannhes vation. and emetency. the IEtC . . au-This is particularly .important in !!;ht thcreed to order utthties to prov:de l , during the next 5 years. A tax;)ayer. of the emenine natural ras policy per* transminion services betw een two ncn-i Mwever, cou!d not receive a rotar loan taitung to wellhead prie.:.;. The tidit7 contiguous utihtics.
lj and also takc advanta;c of the t.olar en. Confotence report is no Ic.c hnportant crry tax credit. The bill prcmotes diversiGcat.on of for the cont:2utten it could Inake to ources of power to cencrate chetricity, Pt omotine: the use of r,olar encr"y is achievin.c our ener;;y cou.rervation r,.nd One source that has Leen t'ammtiltred another policy designed to concerte oil import cont rol coals. is water power. part!culcr:y s:a.u! hydro-j nnd cas.To show the merits anc rehat :h- Tbts conference repot t prov: des th 2 electric projects. I!ydroelecinc po ric t ty of solar cuerry, Cont.crvation P0hertheActNahonal provide, Energy for pubbe. both d:rectly cs intervcncrs arc contribute' only nbout 5 pc:1ent of the Indircc.tly throuch Federal and State re :- onercy we consume, but m cernun are.a demonstration of solar heatm; and cool. ulatory authorit cs, with a fIamework fur its contr:buhon could l'e cwandcd < - ing in ltdcral buildm. s. conductma a nation.d exammatten of mncantly by developm; . hl pro;ec. In addition, the b:11 directs the Fed. utthty rohey. The repert estabhshen Fed- This woul.1 case de:nand for 10att fuca cral Government to procure photovoltaic cral standards which a State rer, ult.tcry For exarupic. New Encland unperts lar::c systems for its own use. Putritares are authority or unreaulated ut:hty mu L quantttte:; of for.stl fue!m yet the re&n to le made oser a 3-year peiud. The in. is crtsseroced by the kuni c: :x t i:an - tent f: to stimulate early dere!otmkut of conwer m settina cr draynmg rate:L
. photovoltaic product:on capabihty in the of there standard < a btate re:mlatory tric rivers In detertnimns whether to adopt any ing projects.
necessary tor sm.ul hydrocae-private sector, The contercuce report provides loans 1 Energy conservation in the public ar.cucy must evaluate how the standa.rd. sector also would be cuhanecd by another such as tune of (tay rates or semenal for (cautnhty stitdies an 1 f onstructa.n.
- requirement. All t'ederal buddmcs must rates relates to the act3 purpo:cs of Preterence is riven to appheanta who co be rctroflttcd by January 1. Iv>0 m order uhteh therc are tbrec: cuerg/ con erva- notThu have acecas
.short to alternat..e sutotantare :,nant.n-t.ununary of U.e to a.uure in.uhnuin hic-cyc!c cost-c Icc _ tion by the ultimate end uscrt emetent Lu .
C
= .
's . CONGRl!SSIONAL RECORD -SENATE S 17805
- O. d. dcr 9,1973
?. utility conference tcport hichli-hts those tre on Taxation a letter ctven to me Inr.t anticipates. I mtcht say. All the esidence
- t. poliety, w hich 'u ske it an cwesiti.nl com- Dece::wcr. that states il the 1 pCA. penal- 15 to the contrary, that we nre en tt: cic ponent of l'rcsident Carter's com;>rchen- ties arc dcunted, the inmomion of the in making liv' kinds of nulcas e sm:1ue-m site one~y platt. 'I he modificattant. In.uic rM cm!cr tax uould have no encrcy ment.s that v.til br.n'! us o'it m tt rar; of those rtatmart5. Chould that Lil to 'aap-fy t;y the canterces in the Cenate and llouac impact. The tu savc4 no crier; y.
s cr.<lons are w;tplicant improvc:nents It sectn.s to mc the.parsare of this con- pcu. te catt have the "as t.unfer tax In 2
- 3. and rehncments of the orhmal prr,posal. ference toport w ould make the so-callcd abeyance atal tint can be cou.Wre ! at I thmk t!ns is an exceUcut exampic of ga.s guer.!cr tax an utmcce%ary and pu- that tmic. 'Ihat would be the tune to
,. the Con: rcs, and the adum.htratto:1 nitive ntnhol of what I can..a:er to Ir. a connder timma it, of courac. :md not -t working toccthcr to tack!c our encrcy very (fd.c:ent, defunct eners.y pro' tram. *beforehand, probicma in away which preserves the What I am su::pcr.tm 1 to the d:stm. M r. Pre.4 dent. I contratulate the a, . role of the State and keeps deculonmak- ru g hed F.cnator frem .'.! chi 2:n is that encrcy conf eri-; on pre:;cntim to the
- c ing f;extb!e and remcusivc to local nt eds. t? rc are provincns in this b.ll canectn- Sen'tte a valuable and :mporh . pr.cc of w I commend Stnator Jr.cs:sma und the i. - EPCA riandards and pen:inies on an- Ic uslation. I am confident that thi3 h.:1 t'o other to:1f(rces ter thc:r su:ccas. b:!cs.There is .I dircuaien in the so . wdj make a dr.m:at;c centrdmt en to cuc a Mr. JACKSON, Mr. I'rcadent. I su - ' . .! tax conterence about the very Icn"-ranac encrpf conrc: catren cRero Wlten th:s bdl vcar, before te S.nate yd gest the absence of a quorum atul a.A .nc icuc. If, in fact, we are gem'; to
..- unantmous censent that the time bc Cuble the penalties. It scents to this last year. I oncred an am:nd:' rat ta
, char::ed equally to Lo:h sides. Eenator that we hTyc said ta the indus- de.cte a provision that vcas ::chaied in
'.r Thc PHP. SIDING CFFICER. Without try. " Comply with the standat ds and the legislation at that time. 'Ibnt wrn;on
.:r. objection. It is so ordered. meet the standard':. or you are comq to vonld have unpo<c d an cutt.r h'. i,:.n on
,y The second as:istant ic01slative c!crk have a sery substantial penalty to pay. the sale of cutemcbiles that 6:.i 1.r.t recct
'. procccded to call the rc!!. That t.hould be enouch. I do net ccriain minimum m:Ics-per-3.dloa r.anu-4 Mr. J AC1'SO:i. Alr. President. I ast know nny reason for overkdl in this area. ards. I opposed that prosinn iA can'c I unanhnsus consent that the order for the Much of the discussion on the so-called fdt t, tat it impmed tmnt cw ry cx-ty quorum call be resemded. cas runter is much bl:e the t hree- straints on consumer freedom cf chose.
ry The l'1:ESIDING UITICER. Without martini lunch. It inakes cood political because it would have preventtd those
- 3 objcetion, it ts sa ordered. speeches. A lot of peo;>le felt there should who needed -larte and relatwely nc f".-
- r. Mr. DOLE nddrc=ed the Chair, be additional taxes on a larccr car until cient carJ-.-such as iamilies with sr..Mun
.. The PitESID1SG OITICEIL Who they t eahred that pcc;de n ho make tho:c v.avcm-from purchasm: tuem. :'mi ce- ..;s yields timc? cars wdl be out of work and t>eop;c with cause it would have contributtd a'. mow M Mr. J ACKSON. Mr. President I yield large families could not afford by pay no additional ener:ty savmra to Ino 40 a'- .e. 5 minutes to the distingunhed Senator the extra tax. It is a dicerintinatory tax ready achicted be the !!cc: wide :.tata: arcs .a. from Katras. and I hope v.ith this bi!1. there will be no pase d by the Centrers.
e- The Pill'SIDI.NG OWICER. The Sen- further need for the ta'; Ah. President. I am very harm P to pete h atc from Washucton has 1 minute I shall appicciate any comments from that, af ter careful:y conse n this 13-
.i- 2 erncinmt'. the Senator f rom alichh.an. suc. the conferees have dcodel to adopt %t Mr. JACKSON. In tchalf of Senator tMr. I!ODGES assumed the chair.) rny position, and have deic;cd the imm-IIAnsrm I yic!d 5 mmutas to the Sena- Mr. IIII:GLE. I thany. the Senator for mum milca;c standards from t:te con-ed tor fro:n ILinsas.Thcie b no pruucm on ylciding. I think he h s made a very im- ferchce report they have nr 1. laced it it. portant point cn this issue. We recognt c before us. I commcnd them for the w:s-
- n The PRESIDING OWICEft. Without that by crtabhthin:t the ficctwice aver- dom of their jcdment in t!.!t re ard, ne objection, the Senator from Kanns is ages as we have under the law, reqmr- and for the alternatne which / ha.e
- n reco;;n17ed. ine that car manulacturers will cet 27.5 rccommended, namely an anihor'. stion
- - ' Mr. DOLE. Mr. President, the Senato rn.lcr. per gallon fro:a t he average car in that the Secretary of Tranepv;t , ;;n. at an is coluidering two of the energy ccater- 1335. really gives us what we need to see his discretion be permitted to rai e th?
to ence icports. Some cf us at :encerned that we are getteg the miica c f rom ot'r civil penalties for polation of the et trent
.- about the so-caltcd cas gu !cr tax and automobiles that we neul to have fro:n energ'y cinciency standards. Th.a seuid the picvisions in th;s bail concerning the point of view of cn:my consumpt:0n apply to the renalties now epm'l d far
- - ITCA standard; and pensitics on lar:'c and other internation11 roa13. I thmi: falute to mcet the tiectuide avraces
!t automotiles. As I understand it, the the move that has be2:1 made nere in thM which the Cen;rcss first ado Mcd n ti'e . ;- EPCA penaltics are goin:t to be dou- particular conferenec report to solve this Energy Policy and MonscrvaCon Act of ed b!cd. I should hke to make a brief state- issue is a very constructive one. I hope. 19;5. The Sceretary could rai.e inesc o' ment. then yield to die distin::uished as has been suggested, thit the other penaltics if he determmed that ;t souid lo Ecnator from Alichi.;an. conference comrnattee wdl take a careful retult in encr:ty savm;s. and would not .r- I am a conferee in the energy tax con- look at the ground that has been ?! awed result in adverse economic unpact.
u- fercuce whenc we arc discussm; so-called here, w:th a very substantial part having I belicyc that the Congress tcok a very cie gas cuar.!crs. The Nuc is should Con:ress been played by my irwnd from Kans..s. sound step when it adopted the flectw:dc
.n- rcriuire the consumer who buys the bit I nutht just say sotnething with re- average mitea:c standards. They will car to pay an extra tax on the car. That spect to what are often called the lari;er lead to very lame energy sarms, partic-cf Inny sotmd good on the surf acc and to vehicles. name's gas guuters. When we ularly with the very tough stancards 7 some it does.1!owever, ut c!Iect. Con- are speakmg of a situat:un where a fam- mandated by the Secretary of Tranpar-xd cre s is tellin:: people what kmd of car ily perhaps has a need far a vehic!c to tation. And I have every reron to beheve co- they can drn e. transport six passengers cr. in some that the automobile manutactur:rs arc er The cuzaler tax is bad policy. Studies casce. cir.ht or even more rassengers, the making, and will contmuo to ma%e. a oc have shown it w:.1 probably put thou- idea that somehow v.c are better oiT with caod f aith cCort to meet the e r mdards.
-:'s sands r.f peoplc out of work. In add; tion. smaller sch:c!cs. maybe foremg them to I Lelieve that they ws;l be racce...cul :n 2- the tax discriminau.; against a certain have two cars and drivm:: two cars to get so dm: . and I hcpc that then ct us in class of peoplc who cannot a: ford ta pay from one pomt to another, rather than Llw Congre:,s wdl not prejud;;e thcIr
~
a.
. .s. the ridded tax. Tho3c with larte !annhes onc larger vchic!c that can hand!c a fam- ciforts.
re and those with small bank accounts wdl ily of a lar;!cr size, wouhl be f also econ- I raise this point. Mr. President. be-
.on be denied the rnht a have a car that omy of the rnost estreme kmd. I thmk cause I understand that the conferecs 4- might fall in tlus category. Some of tas the proposal that has been put forwald .on another portion of the energy bdl.
W- feel that there v.ill be every c:: ort by the here to hold the cas cur 2'er tax in arcy- that denhn;! with encrcy taxes. are con-auto companies to in*!aw tha l'.I'C A an:c and to have that to inta c:Tret on 7 a:dermg the matter of i': ' :n; a .:as ns standards by the automolnle indu.;try. If the industry shouhl tall to meet the guzzler tax. w hkn conrm: cts went be
.n. They hase all tohl mc the statu:ariis w;11 ::tdustryw:dc ttandards u an cxectl:nt reoutred to pay when purchasma energy-vo be met, The cursler tax is a tas un auto- propu,al. We tot ego no'.hmg in terms of inemetent automoodes. I hm e that the - g. mobiles based on mt!cs per gallon.110w- anu.ance that we shall Incet the goals conferees on that portien of inc bill %!!!
ac .ever,in a letter front the Joint Comnut- that we want. I'atling that-which no one display the same wisdom as the cuucr-i
.. CONGRESSIONAL RECORD-SENATE October 9,1973 ,
. . FUS0G ,
vation conferecs have with resrcet to I mir.h t ad t that a d!.,tictuh htd consumers or utilittrn then the Pf w nuto Ittel cceno:ny, fint! hill not unt:ctc Member of the Itcine 1:cptematative could u. c the:c oths r fator*: n n la 1 a stui, regreane tax on the Atrenca:t Jons Dtutar.r.. ha.s lpen scry rctive in ic r rhtBmJ to unplcaiat or adopt durh puMic on the faulty ars':mptten that the this area. '1here h rome hope inat we staimai de Air. JACKSOM. The Ucnator is (put: nutomaters are not s'om t to mcet the can reach rome aceptd on the cortin- . Curr ent requiremcuts in the lam ctncr plan tint has been incution"d by cori et t. I The:c is widerpread aa.rce.ncut that if my frvnd f:om M:chtn.itt. I'c:h tps a Mr DUlWIN. As I read it. the :.ta - the lleetwide intlere stand.inds are met. modi lea tion that wcu!d in'J: cat e a ment of manal; cts makts it qu@ char then ait ed.huon.il cM ;.u:%r tax on top t;ur ner tax ut 10GO at !!G tax ratc?. that tim State renu!..f ary authat;t !.3 of tho.c stand tids viill no . ricntricanttly n;we the tax r:: tea petmatunt at the to con.ader the stamf.i :u et cct;:n 2 ' . Improve encray conservation. The De- IDH levch in 10J5 and c!nninatc the within 2 years and doc. o hate to tn. partment of Encrcy, an a report on this first-huc tax f or the years 10:Pi. 1504 deltake tr. car co:uh r ::ent.'v.!*ncicmsthcu r ..nm subject stat es; and IDC'i. That is a com;;romtee th. t, at inter enor or a p.trur:. a It manubcture-s meet ti.e FrCA stami. Icast. h'ts Letn en culated. At lea nt. it hM a rate prceccain;:. V.t:!c r.o rmaalc.c Lt< tt-an;2. as they h.ne stated they wut. It nprears been presented to ro:nc of the IIome ment is made conce:nne the scenui 111 that the f." curAct t.n would hnc imi: . conferers and it wi!! be prese:.ted some standards, rectmn liba) p 0'/. :s thA ntLcant ruults. . time soon to those of us who are 50nate the State may cisc stron ' te:'ti.t to c.s
'Ihat fact vias rciterated bv Bernatd confetcca to $cc if 00:a0 0;;rcement cui pictious detcrImnation* c3 Such ::
Shapiro, chicf of sta:I of the jomt Com- la reached. ards. Ica I correct in in: nt t r;rc t.. tam ru!Ltec on tan'ttron, t'itth re'pcet to sta:T I think a bet lcr plan wou!-! "c to adopt that ruen prior deterndm.tica n.ay, in estini%tes of ener%y Savm"s accrum; the conthMcncy plan thsetecd by the approntiate c;rcumstancca Chri. the from the cas Imnier tax, d;stincunhed Senator from Shenh'an. In outcorr.e ? I cannot imarme tthy anyor.c would other words, the EPCA stamj.ird(arc Mr. JACi< EON. The Senatcr's intcr-Want to imro c un encreus tax on auto-inct the tax v.lil nct no into c:a et. y.hy pretahon of these provisions is :.0 ;- buns the comunwr! If the :.tandares lutely Mrrect Inobdc ptarhasers if that tax would re-cult culy in minimal crmru savmrs. I are met, shy pum4h the manuf adurer? Mr. DURKIN. Wh<rc the words "to the I did not knor. this was a reunne-rats- maximum extent practicat.W' arpcar la can, thert fore.only conchtdc that the tax in;; measure. V.; th this provisca it would the bi;I. as they do in various riac + in 13 r.till tmder consideration 1.ccanze some be an outri:.ht pumtive measure that I :.e:tions 111 and 113 la it the int,"t cf of us do not beheve that the automakers If we the Imlation that the Etate reg .. ,tm . trill inect the Tectwide avert.n;cs, and do cannotnot think should do what oc adopicd., tne ecnator frc m . Echt* agenc/ will to etcrminc that. 13 t!.e do not evcn want to ch c t!'em the cppor- gan ru;;csts. I hcpc we will do LAtter maximum extent practicab:e? tunity to prove that they can. If that is th:.n we arc doing now. v.ith some com* Mr. J ACKSON. Yes. Indeed the proL:cm. then tnere is a very si:nple solution, and one which has Lecn P *
- C" cLutriernoN stenons m. ris. t u uwn.
propoicd by my en110.Wic frcin Kan:as. "0 *"" ^ 3'
" P **"" E*
- m ma smies Am or rart irN:mm: V AI P.Y Cenator Imt.s: Hold the c.ts gun!ar tax In nbeyance until at u utab.uhed that Mr. DURKIN. The definition of "small Mr. RANDOI.PII. C::tions 210 and '"1 the industry has foiled to mcet the power production f acihty" as contamed of the encrey conference report r.n ::uid.c standardr. If. nnd only if. the otandands in tit lc II. secticn 201, tnchida a fact!- utzht:ce provide authcr.ty for tht 1-cd'ral r.tc not met. does ;L bcGin to masc sense ity which prcdu c3 c!cetr:e energy sokly Encrry Re::u;atory C;;mr.n.% ion to h :.c to impocc a gas gunler tax. LT. let us by the use of. utaen othcr thinn "rc- orders to the Tenne: cc Valk/ N.;t ' c.y not sadd!c the American (onsumer with newabic resourecs." Recent Department which Imsht in snmc instances 1:e in w a hef ty tax increasc. tart;in:; from $000 of I:ner;;y re. catch indicates that sub- tential ecnfhet with s^cti.u l')C cf tN up to $3.fa0. if that incasure would not stant!al rcothermal hot dry rock re- Tenncnce Valley Authcrity ict as
- hcIp us to make nny s:; aiticant procrc33 scurces may exht m New Hammhire in amended in 10M.
toward our national Oaal of reducing addition to the large steam and geo- Section 210(f) of the confe: ence re-cuergy consumpt:cn. And let tu not, in pressurictd brme reserves Lucwn to exist pott rpec:fically deals v :th this mtcntml effect, drolare the autcmahers gu'!ty of across the Natwn. IT it intended that.fer con! bet. I wonder if the manncers ci t : the crime of fallim; to inect the fuel the purposcs ol this act. all types of conference report would cIn .fy tu economy standards that the Com:rc5s [:cothermal resourecs are includcd uithin points for future refcrence wit 1 regard and the Department of Transportation the term "renewab!c retources"? to these provisions: have estat lished. before the have had Mr. JACKCON. Yes. First. It is tny underttandinc that th:r the opportumty to dcmenstrate that they E m1L R AWM A TE WCWrION M CUut!S In }cC13}at[Ca doe 3 not purpGrt to amenu ; O can or cannot nicet tho.m standards. Tm:occn ::' Tennessce Valley Authority Act M n:- Tho enetcy conservauen cenferces Mr. DURKIN. Am I correct in under- cifically that it is the mtentbn e: t ?.e have acted wuc!y in dehtini the mmi- standing that the rrmeipal purpose of coniertes none of the prohibit:m mum inilcare standards nnd in Icaun.T the standards provimons of rect:ons ill agamst service outnde the estab!nhcd oper ae Lw bihty of increasma penal- and 113 :s to rcquire the States to give Tennesscc Valley Authority rervice a:u ties for fat!mc to meet the !!cctv.idc full and fa:r consideration to each of stated in section 1MC of that act :c
.nvera;:es. 'A he increased penalties will, these standards, but they are to have a reduccd or mootf.ed-is that en: reed Serend, section 210i fi (21 @ indi-
.Iforamtheture, provide Indmtry to aput su:nc:ent incentive forth every e40rt broad actually diacretion nuple:nentas to orwhether or stand-adopt the not to~ cates that Congress may authorne T n-
- to inect tl.c standards. I l' ope the encrry ards? rie:.sce Valicy Authority rcri;ce .n nc-t.u confe:ces wdl see the loac of t!us Str. JACKSON. The Senator is cor- ccrdance with a Federal 1:nct decision, and u til unro:.c a cas gn=ler rect. Re;:ulatory Comnussien order even tax only as a centmrenney musure. Mr, DU11NIN- And we are not trying there euch serv:ce 'mcht t: '"cer' * .
- I comnu nd the Senator hem Kansas, to displace otiter lectimate concerns of with the prohibiucn, of occPan 15W i also, nnd hopo that otacr energy con- the States over other ret;uiatory objec- ~ cf *he Tennessee Vaucy Amnorttv Ac:
! crees till take a look at what has been tis cs or purrows.) It would be my understand:n? that i s done here. I thm% It tuarb a way in the Mr. J ACKCON. No: we are not. subparacraph is a ru: tate rent, of f ' :iar .
future that is fair. It meets our cncrgy Mr. DURKIN. It a State should decide langua;c in sect:on I5id et the ac - requirement.s; at the same time. we see that onc or more of there standards nessee Vr.!!cy Author;ty Act and that to it that we do not impose by Govern- under section til wobbt tend to encour- Comanttec jurtsdiction for such acttan incnt mandate ttunes that util be coun- are conservatwn or c!Scitut u e of facili- u nu!d remam with the E nate I:nviron-terprcductive in ternis of the very t:oals ties and resourc,i or more equeable rates rnent and l'ubhe Worb Comnnttte-:r we want ta meet, but mirbt well rc.: ult m uthcr adterse that'tr. correct? JACKSON. 'Itc Senator i; correct Mr. DO!.1. I thank my colleacue from contequencer. which the State l't.'C has .
.htichic;ui. I appreciate his t entaiks and I authority. purettant to state law. to take on bot h pnmts.
concur with ins statement. Into account. :.uch as the hardship to Mr. CILANSTON. Mr. President. I was 2265 266 t As 9 pd wy3',
- s Octdce 9,197S CONGRESSIONAL RECORD-SENATE S m07 When the Senate soles today it v.i!!
ate comoti.or of the conduit lifdroc!cett!c cific cont terminus. ' ort Anac!c4 in the haye completed four vf t:te !be p o ti et
. p,c;hties prov:rien of thn Inll. wh:th 1; Ldate of Wa.<nn:: ten.
The Wa-Put.;on State If?islaturc *n thr; par 2aa.c. (n
~3 poir :.ection 213. at.d I v. auld apprcc t't c g clisihr.. tion of the cwh.natio:1 of rec- 1377 apprmed by wide marains the 1cca-Mr. Prc.<tdent, this has Lcen a vc ty d:P.etJt pet:od for all of tu wi.o h.:d tho
~ tit a~ tion gli th t appears in the conferrt.ee tion of such a tennimal ut Pm An cies repm t. It is my tmde tamt;ng that, in Itowever, the tica:sion in up to the State reepamabihty of trytun to put tvether m.d c- . confett nre, the llon;c :.cra ed to cta!c tu Sittn Council of the State of Washitig- tha lcutu n a-a na I cmphs the conference report a cona rcs.s ional in- ton. utn! crime "the be ;itu:ing -of a 1 a-E:ar
'. as tent that cWedited bec Nng procc<mre3 The PitESIDING OPPICER The Sen- tion il energy lyhe3 133 apphul when an appl. cant for.in evmo- ator's 3 mmutea Invc cxpired. We will be mRtne for a lo:W tm ' as u- tion under this prov: dun 1A dented such Mr. ECO FI'. Mr. Prcrident. I yic!d the to hoce much r!.crcy n a can sa*.c m t cim.
an an evenmtion by the l'cderallincro lle:t- remainder of the tuna on th's :
- to the of barre!9of-on Un'i'. .>nt. I Wcy :,Hy'.
-:in ulatory Commission. &tcn a state:nent is o!; tim:uuhe.1 &nator fro n V.a.;hin; ton, a t ough ent:nate of ; s:t 3 miu.i c.st-ate- contamed in the terc.t. I!owever, the Mr. J ACHUON. I thank tuy coilcacue rois c,( od a day h:c : V. uve or t '.e a exp!r tatio:1 of sectir.,n ;'13 d%;s net rc t!i ct frain Vir.*mia, few hundred thou.and hart:d, Ill
- v. hat I belicyc was :t furthcr Inatter of I yield 2 min'ttes to the Stuator. Mr. Pres!dert. thi, uLmr.te tce not
,'.a i t.s t st;veement among the :i.nicues: namely. Mr. MEI.CI!CR I thank the distin- include the ta.xam f c: Ares. bt.t 3 , r.pl c.uished Fenatar. be the first to remmd say eM!ead .5 tnat .nd- that applicatiotts tor cxemptions for hy-c' on droc!cctiic pt:mt.= mu tm:; the condition i The PR1GID NG OFFICE!'.. The 3cn- we ha.c a long way to co. . specificd in the a nct.dment will be ex- ator is reco;t;h:cd for an additional 3 I would hope that when we h: *cc m:n-
. In the Peditio.m!" procer. sed by the CommiN:un. nunute; picted our v.ork th4 wrx% by hn I a%.a Althosh it is not ncct"ary to . state that Mr M".i.CUEIL The ap Lation by hi the Mou.te, that we t:it use th: i s ; inc i < r- in th.: canicrence r(port. It would Le 7,cthcIn T.cr is before the Wc. shin : ton foundation to rea;;y :.ct undem r; ni &
aa- he:pful af the ch.dtman could verify for Stata Sittn; Council and the critical nc':t Cour;tess a t ragr.nn that can hcmn the streorm that such an exred:ted e':- pamt. as an enWonmental ism.:e. as de- about inore eticet t / 2 cnt'rgy consw. ,:an. cthe embtion revie v procus is intended by fimtcly witther not an ud port at bciter ducipline. rnay I rav. m ' ne <. -
- in - this an.cnd:nent. Port A:ue'es is ac v >ab!c. The Gover' tor znMn of our enorm rr.wonrca m t .) ; 2n Mr. J ACRGON. Se:ntor Cas::.sron of the State of Wuhnnton and I sus- truly move in deve!aning not ci:: the cf tmderstanding of the con:crence a;rce pcct membeta of the State siting council conventional resourecs avadaNe to n .
- my inent h correct. It ' as a rced tnat ap- in the State of Washniaton. have asked. such as coal, o!! and ra s, but r.N r n-the plicatior.3 for cxemptien:: be prec w d "Whcre is the Tetleral poe.itan on this, thetic fucis. We vtant to f:nd con 0 an-expedit:ouly. and that in such instances and if it is unportant, vih .t is the Fed- sw ers to the problems pbzuar; :Im ' '.'-
as the Com nir. ton dttormines that a cral Owcrtunent r?oin;? c! car power Inintry, crecially the ma
.n. conduit h:.drcelectric facihty d xs not I thin': thit is the ansccer to that ques- of standardtzation of reactors :.d th.
arv tturJify for an exemption an expcthted tion. We arc in th: prceen of rasMng chmination of th? preh:enu th::t nov licen:Jnr procedure v.ould te adopted. Ic"!slation th.it would cxredits the en- beset tu in vtaste dec d. At tie a f.11 Mr. J ACKCON. Mr. President. hos varonmenul impact statemer", and the time vcc want to pmh the other surera
- lic much tirac is ! cit t'tc ,cther on both decision by the Prenident i ucthei cr ::ot of ener:y that o.4er.4uch pt on r;e is to grant permits to a p:pchnc company, r.'.:ch as rolar ent rev. Innon, 'tmnart
- al Sides?
w r. The PRESIDIMO OITICER.The Sen- such a.1 Northern Tier hp hnc. and a long hst of other:: that . t c m ti.c ator from WashinTton had 1 mm.:tc. the It is important that the timeframe for rc3earch and development sta:c. at3 Senator fro'n Wycnunc haa, 10 minutes. reacinne that decision will be c:arly in So our effort today is a. Mim a :. c3-the Mr. SCOTr. Mr. Presid:nt. I a.:n glad . IM3 l'ecause it u important that con- nothhc more than that. But I thich it ., as to yic d 3 mitmtes to the distin:uished struct:on can start durtn; the late a good beginnin; I thia it is a WL Senator ft om Montann. spring months or early sutn:ncr tuonths r : nai to our ittena abroad tbn v o un 70 Mr. MELCIfEf!. I than' the Senator of next ye tr. This bill exped:t s the I'ed- invd:e a certain diac;pline m the G.it :
. .:.1 for yichiing the time. I shall onl/ spcM: cr:tl decinon process and if thr.t is an States in connec' an v.:th the &cJop-the bricDy on a prob!cm that wc cndurc with aE.rmatric & cision and the Washing. ment of :l meaniu;;ful eneriy 902 n.o the . Alar'a od flowm" throurh th. Alaca ton State Ettitc Council also resches Mr. President, as I conch ~e n.v t e-7d pipehne to Valdes at about 1.2 nul: ion a f avorsb*c t'ectoion on the Northern marks. I want to my how much u" '>' ",
barrels per day, and then having a clut T10r pme!me construction could start appreciate the hd;> at. !:upport . m rm this of Mu'u crude od on the west coast. promptly. staf! on both sides of the cis e the . Part cf the bill dcalm: with rc;ulatory It is for that reason. Mr. Prc:ddent. I want to.copec: ally in connectvn . Mh
- y. ratc referm and prc::ent in tha conierence that this part:on of the conference rd the energy con criation bill, m.e cut the report before us deal: with a speedup in pcrt deals directly with the method to tho fotiowmc pey!c: Ucn Co3" . Jun
,.- the thne frame of armme at a Federal reach a occi ton, to see whether or tiot Drure. Debt:y Merrick and Pcta h.nh 5:ud decir. ion c.n rhether er not butidin~ per- the Federai permits util be granted and. from the majoritv stait and Tom !mma .rea mits will be 19ued for a p:pehne to servc if s3. then the State of Washm; ton can fro:n the minority st.uf.
are the Northern Tier S:ates and the Mid- see the importance that 1:oth the Con- In co:meetton wit h the utth! ' rete re-
., west by construction of such a piroline grcM and the executive branch of the farin bdl. a;;ain. Jt:n thuce. Den Dec-f.h. The tane frame that was called for es Feder?J Garrnment Idacc on that pipc- fn.% D.n Cooocr fre:n the tnamru y sta:T the bill parsed the I!onsc appronmately hue, to he!p serve the Nation, remove and Dan Boss from the nunor!!y 3t ut. .c n .
ac, n year aro was nn entirenmental im- the oil i:lu* f tem the rest coast that is Mr. Pre 5; dent. I beheve ths.t con h:de;
. ,..y pact statcamnt bema t antplettd by De- caused bi the Alaskan pr o.hm'iun. the time allotte,I to ut ke'n cember 1 of this year md that is the Aiam. I inank the di3tmTtished Sen- Mr. President. I succ5t the aba.:nce of e agiccment of the con! crees and it a Mr- ator for ne;dm; me the t:me. a rtua.?m.
Q,g g tion of the ccnference report before us. The PRE 8IDiNG OFFIdll The Sen . The PHl: SIDING OFFICER. Wi:1 the ut The reason to hasten the Federal de- ator from Wadun:: ton. Senator withhoM that? khis' clston was to make rare construtt:on of Mr. JACKSON. Mr Presdent we are Mr. JACKSM Yes. 41ar an approsed prehne could start, enutd now m tt: process of comp: sting the M r. 11ANDOLPII. Mr. Prest tent. I
-en, move forward.The teamrement doca not President'a lertslative pro" ram which conunend my 'c olleacues in the Seinte t requhe a Federal dect+ cu in the a:Mma- was subm: Mt 10 the Con;:ress en Aptd for their constructnye dehNrat:ane on
'h tive. It just s.tys. "Itcach that dcenion N of hs- year.'
quickly ' the energy conr.crv.d ton Wlicy and c!c;- The prona:n consisted of five parts, tt:c rate reform secttoni of n.:t mu al
.,,,',h There h no requirement that Ftate The first, caal comer.ston: the second. ruercy le::ulation. Thi, tepresents the law notdd be pre-empted by this Federal utihty rate refor m; the third. energy f' mal step, in the renate, ot formulat.n~
..ggg law, Indeed, the deet .non on a !cmort con 3erval.on; the fourth, natural elas a tuhey wh!ch will become the N itton S for the enly app!! cant. the Northern pricinc: and the fif th, the taung pro- Dr.,t comprchen ne cuer.'y phn. n p;.ut
, ,,.u Tier Pipel.ca Co., would use as it4 Pa- vutons. I have been callm; for smce 1%). *1he o+b rlR ob w 3 1' 2265 267 AR I m
S l'iS03 CONGRESSIONAL IWCORD-SENATE October 9,1.cs . ID-runnth debate on the encrry tr_suo I cmphasi?c 'starthr: point," becauu dee!de uhether it h in the I:atio: al in. Itas clearly dernetutrated that the Ecn- this levirlation unll cc.ntmuc to be ad- tcan t that the i..o!aticn of 1:!M?O'1 M ate and the om. ',y conference cc:ntmt- jtzted and re .ned r to T.t it.c ch.ui;un:' terminated by any adequate icnt of tec fcit anafor moat:ications were encrcy needs of the country tutetcconecta:n and t!.c n cmany co. ; necc J ary to the Preudent3 entray tira- D.w. ion; made in the fGth Con' Fess, ordination to ac^ompany, it. er ' Jr:hcr pam before it couhl 1.c presented to the to;cther with the Catter admini.; ration, the status quo should be snaintaira d.
/.tneric.:n people as a bhicprmt vchich private indu trv. anJ o'ir total c.tivenry Of cource the pros.s:ctu of thu i - '
tvill be med to direct our encr;;y c!!ott wdl do rat:ch to r carantee energy use id.it!co to winch I rc:cr have. in se::om i in the Icn': term. pohcies which nill stren*:then Amct:ca. rerrectr apphcalica to loatiers cAher
. Many ITo;'le. including rame in the Mr. Prendent. I cc.nmcud the aNe than the Te:;.:s problera, but it is re.
admini..tratton and the Eenate. have chairma n. .% nator J scim:4 cf V.~.n hin':- anauritu; that there prov aens are d.*- , lxld that the inc6:icatiena m'u!c in the toa and the other n:cmbers of the sit'ned to ad ud:cate the Te.c, prcL:tn conference compromin ccfer t the tiur. 1:ncray and .'.*atmal I:ccot:rces Commit- fully and comprche:bn e!y based cn th - , pore cf national encrry le;.nsh. tion I am tee. T:cy de:crve (a:r thanka os encrcy stand.'rJs u t forth m de hre. . ro 'h.:t t
' convinced the tempremvc cn pcl cy 19 contcrees for the tr.no and c.'reful ntten. waa* cur solution nuy ben acrve the sucs debated teday veill cen.terve encrr y tion they hase avon to cach scetion cf pubhc interc.st nay be rc.:che,1.1he in-ru.d rcier:n (1 er3y ure patterns cn a th:s energy 10:;t;1ation. Py not h:nn to. tercst cf a larJe perulat!0n wned uv larcc sen!c basis gether at a wel!-rca' enc'l pace Amer- Inan:' t.t!iities is nnched here, a31: the The con?crvation portion of the na- Jeans can comprehend and solve their intercet of the entire l*nned Stat;3 ut '
tional cierry p!an veil' offer a variety of ener.;y problems. Passace of t!u . Ic;isla- a reha'ac cicetrir.1 c::ctry .u;miv. ' incentives tn middic-c!sss homcen:ers tfon ches a cicar si:;nal tn the American Mr. HUDDI.ESTO:. I no%d li::e 'o
~.
and low-inconte renters ta in, tali tueh people that Con:rcss ceci not in:cnd to hate a cicar undcrstanJ:n: c' the wr.- fud. savin: 'ne.isures as huulatwa nd create ar.other unccrtamty acco.npany- tion m to Tent:ence Vailm M . m ty . solar hea un:: cciuirment. Federa:lv inn the naturs1 tearcity of o;; a .d r. s by under the intetcornection r.nd thcc.m. backed leara and crants are included, as being unclear and inc!ccisive on Gus crn. provuiana in ac tion: "N, N3. and N 1 of Well c.s dau'Aini fines on automobile nient polic ; enneenunc.cncr;y. the conference teort. o manufacturerr who fail to mect 11ec t. Mr. B.*.ItTLEIT. Mr. Prc:1 dent. <ic. In IfGO. the TVA A:t 7.:.:: atnco cd to . vcidc nulcanc standards undct cxisting spite n:y crpriit:cn to the (enference tive TVA author.t. to L ut a D ;c > Jag report on the l'ubhc Utility I!c;;u!atory amount of be,nds to finance TV.Vs p:rt.c r E!cctric and gas utiltics will perform Policies Act of 12, it may be tuclul to pro:: ram. The same stapate i.nrasef re-a inajor rolc in infonnm'; rate prycts penit out that the Ic islat!cn at bast straints, or prchibitions neanin TV.Ya
.cbaut their infiridual ces.s cri a tt r.n accompIches one Im:tive ti.in'; Lt ree- capanin" its p/t.cr r. m!y 'rca Ley qd 21 cede. Chl ti:s v.;11 cCcr to arres;c for tions PCI thrcuth M t. per:ainn.'; to in- the arca supp !cd by TVA on n'/1. p.b.
instal!rtion of luenlat:on in thcir cua. terconnectien and vthte:m;; for chetric (1G U.S.C. i,31 n-W . The conf ctm t e-tomer': hcmes to t.c paid for throuch utihtics. port will tive to TERC authority ta o.d:r utility bdis. School 1. hosmt-ds. and local The history of these provir, ions. In TVA to inter:enne;t with cther uda:s covernants. wouPI reccirc Federal bot:1 the IIou .c Conuaittee on Interstaten'orcuts to participate tn nhee! jM arra ;c-undcr ccitain codn;om h rc/- gritnis to ca.rry on cony.rvation pro. t.r.d Forc!gn Co:n:ncrce and the Ee ste crams. Committ<.c cn IMergy and Natural Ec- cycr. the:.c new provi-ion cf lav ,do rd. , Elect:le rate reform will requirc W. ate tourcca, sho.vs that onc cf the proMcm3 1:rovide authority f)r TVA to tar:0: td Utility commisJcns to consider a variety thae prowiens are des!wi to :uct ts from action which tahm.* 'IVAthe10;'9 und:: v.nn'd be4. ,1y ,' i of encrry-sau ne rata refo :ns. The b!!1 the rip;;arent lac.: of r.n air,:ropri:ite , Mr. J.*.CJISON. That is corz e:t.g(tr- , vould give brdd rights to cont :mtrs forurn in which to rem!ve the m-calkd and the Tcdcral Government to inter- D .prome:1 Ti:e Elcetric ite;;nb:lity tion 2 of the conference n port ntr .'l-venc !n State utilhy proceedin~s end te Council of Tcus, know as LRCOT. ccn- cally provida for a piccedu e to n.;.;n , c orms. The Federal Go.crn- tains the major p;rtion of t:1c c'ectnc that any FEnc order reh.'.cd to imc;- fight r.a: rain the poner to orde s. art- utihties la Texas and has apparently nection or whcchn'; T.h cn lure.vcs inent for wou.. om in c eMal WMop Im h ,ncon,3. n m, M O n m b Marenki a ous types of power 4harin~a arran;e-rcst of the United Statea fr.r a nuu2cr of su !t a violation :uca g cc:ur-ments a:ncn ; uti.n..y system .. years, except dur:na pet:cds wucn thts revic'.c is rtx;ncsted by arv ar.rw.wt >cr-Important rc!cr:n' that each State arer. was spcetally cxcmptui from Icd- fon. the ordcr is stayes! Ifitisc' r- , comm!rrion wou!J cc:mdcr are t:me-of- (ral jur:sdiction. In this r.1 pect Tems is inmed af ter en evidentiary he'r.n: and i day or scasnal raten that are h:chett uniquc. r,mcc the rest of the country is any judicial rev:cc. therccf thu i h a during the times of peak use ter the sy3- entlicly intercennected and, by rea.5cn of violation vrou!d cccur, the order u fu - . tern. Commi.sion: v culd ecnrider pro- its intercer.nections. is rdbject to the ju- ther stayed. This stay couM (nen only hibitin:t di cnminatory rates acauut risdicticu cf the Federal En:r;y Regula. be hited by specinc c n; rcss;cnal au-solar. wind and other small roner ty3- tory Commirr.icn. thorr atien. In thcrt. thi. ;w. .:on ' tems, procedurc3 to protect ratepaycr3 A numtier of public utilitics operatin:: rnakes it clear that the status y:o v.
- S &
ego!nst abrupt tenrnnation of service, both withm and cut.ide the State of respect to li:nitations on TV.'. as et cut and proh hHtons a"ainst char-ma rate- Tex.u have sought to achieve c!cetr: cal in the TV.\ Ecud Act :s ta be maint. unci
, payers for proniot;onal or political ad- interco:mcetion between ECCOT and Mr IlUDDI.E3 TON. In vari 313 Uro-vertising. the Southwest power pool, but they have 41sion of rect:0ns 210. 211 ad L' td To take advantane of energy conserva- been strondy oppcecd by scvcral of the the Pcdcral l'ower Act, as it wouh! iu' 1 tion oppartunities v.dl rc<:uire chances nnjer ut:hnes in OCOT The o!d Fed- amended by rcct: ens :Y2. "03 and "0 t of '
with respect to hind ucc. techne!Ory, cral Power Ccmn.:.cien. v.htt a has be. the contercnce raot t. w!=h Is la*: a titlhration of the labor force, nr.d con- come the Fet'c r al Enctw Re :ulatory int rconnectwn and whcclin; I th:d the ; sumer Lchauor. The nioc.L itnportant Commisrion.has ! cit that it had no rins- phrase "clettr:c utihty mlectc.' by the contribution can tr.Re p! ace 1:y havmt dict ca os er the Texas ut:htir_. becau:e order ** or "afIccted electric utsht:
- or the cooperation of ner.ahmt cCrent of their isolat:en a.nd hence was power- sumlar phrasca.
We t.hoJId not wait to act until v.c arc Iers to dec:de w hether or not at was in la order to avoid confurion as to what forced to do ro. The enercy conservatten the pulche Interedt that they be inter- these phrases mean, it is nu idrd in the and utthty rate refcim provt' tons of the connected with the Scu!rxest revccr Statemen* of Mana :ers under .. .t:ca enctcv bdl will cn.iHc a incre r.radual pool. Whatever the metiti of th;s cen- 201 that the ut:Snes insolved . a n ' r.. ! jnercaic in predacuan le' etr. retanred. trovert.y n:av be, praetten;!v cycryone terconnect:on arr.marmen t: ';;e uu!.;y while succersfully lo a cron: co:.t t t o t h e vcho has tettonsiv adJrc.ced the ques- ordet(d to" wheel; or the tinwr and :tlh r e com.umer throu:.h their own nutiativet tien arrecs that there :heidd be full Ju- in an arrata'ement fer the ule or (x- t I am confident thh final ener.ay plan thority in the Ft-deral 1:ntrU lle.'u!a- chance of twmer; or any ut:hty v.hm.c emerging f rom Con:*rcM u dt be an ex- tory Commi' zion, either en it; ow n Ino- system.i. operations, or costs oc reu nue2 l cellent starthot pumt for resolvmg a!! tion or on the ruotton c! any of the wouhl be atferted by a ret;uNed c:6.t r 6 complcX e TDM qr qg utd t_ic;l involved, to ho!d hearm;;s and an 1 the related arrancements, and the n: -
$"a. .
; 2265 268 . ;
?
6 I CONGRESSIONAL 1ECORD-SENATE S l' ISO 9 A hclobcr 9,1.'l78 , In-'on imder the Coa:st.d ?nne *.fruam- ph ntental!an of a de<*t..kn to opptmc a ctistomers of such utthths barc nn op- nient, Act of IM.' or any et!jer tekvant potent:ai proIt et. I tlun:: it is far,r tg nay th that it is tiot intotided in mod.'y im e fpa.-gn rndp.y to Irtrticipa'.c hrering ut theit,procred-A, I t:nders.t.ind n ItdctMr. al MMiNt'GON 1 I thank the Gcna- laws that wculd c.Ikri, that C 6 'n ut
'."r g.hh(v h.a in:: sut h raaht, to intervtne
,,a t t.icu: :te c.dl Le coin:dcred a lor Ibr that tiniincattu I arn*ne tha.t the !M r L" e.1%r c' ' nude. In t he (; '
.a nd.n' ' h t'y a fit th ti by the order." *thi% the criterta !cr approsal of a .vtem0-1;G of our;:re!W' State; of t!.oWriun-tr.n. l'ub!v cr.: : t ru ' m1 L ef .my thetdd not1e condited with the exphn.6- h:ted in rerucn 7410 (1) W. th!(!
mentions titt;ran uuttal 1:npacta ha as tiuw major c:u@ eil trr th:pm"n: 10-
.[
~^
ei k,.nn in t'ie rt.1tuncut of ruan.Wrs untit its intent rctisinthe ?M,inmun:..at.on witvhir'.cddy cML cf l'or t Anrrb' , W "h. Oori-v.hach tilah'c1tocn.nr:1-I thtt for the D'iru / ci providin : no'tec sucntal' ri: . and that :.t. ..pph' .t on 0;t. !y. w.uver of that In scudd n M. L ?
' . . ' ll*ct the l'hnN of an arple rtica !]r uhm!- could se'
- to rechtec ! cot h I. ,ks n':NW an c:cNthunr. nut (cr; :t to:dd final -
' g v. it h F Et :C. .u.'ceted c'.cttric nt d- by the pnmc'ed proact it".cil an t cabt* luen13Hy CEcct tiPriiPr or not a '. ' ab project rem!.! mme !v d i d n ', r !L . a .
ity" includct, as n ruumnu:n, in<* t c.0 in 'Mr, ru k ; a; '.'. t !b i t
. c!c.-(tic titthtirs ulach have mrde tho J.ici* EON. That h corrt et. For procedurc c.mtot be n. .:d to
- me 1:- ,
,. tirirunements f or the 'alc Cf pot tr as exampla, int biate of C.thferma b bob tpat : o cern ntether er t'er, a Qi': Yd.- ., y v.cil as the utthty Lunt: scriuemed to coiniderin;; the .2duWcts of CCiu ch en h mr@: st cmc; eWy hicW v lW: 10 Ila non. T.\l d n 'la' < p:on: : y-
,.p vchc el jaxcr. lwllut hn : mtrees in con "P tico hith t'10 . - ~1 Mr. J.W:I*SO:* The Scnator's inter- core.uh ration of r.p:' ravel of the pto- s: tnt: of t.1 rert facd.t:cs are n:4 '. m . e
~'
pr(tation of our in*ct.t is cerrect- ro:.ed Schio p;pehne frtxu Los Au;c!cs to to be waned u:wr this proccM Mr. MAGNUSO;. I v/.mt to ccnnrrl- Midl..nd. Ts x. Mr. JACITO:h Thnt h v.:: cct.
'o tlate my colleeruc and real f r r:nd on Mr. M.W'iUSON. I thin!; that this is Mr. MAGNU. CON. I appree:/ *e th ? ef-the t'n'n:c inonths (4 hard work th:i; he a toriby raal. In l'usct Eound, fvr c':- forts c.! Iny plF. 'nte to d . rX th me
- tind the o'her cur 'i :ca have put 1.i on an'ple, o c have t spe: :necd 's tre ncuci- tuWers, and atu.ht t z*h h 'm
- this imporunt Ic7 *Irtion. I hnow it !.cs cus incica*c tn ta: Acr tra*:.c os cr t he ! :st hhn ca the extr Orciniuy eMcrt N W ,
nt times been a (cyn1 cyperience and rcreral years ;w the Canadian p:1chuc inic.4cri in trym* to hSp Gu ..'h to the stry latt 11 at the Ecuate is ubic to GJ1ivery of oil hra ci:ain -hc.f. I wcuM fortn't: ate a sen.tmic encr;;y pohc;. .
. vo'e on an encr;;y pack; c 13 a tocunent, assume that any prr pt.-sed pro'Nt wh:ch to his hat d wurP. nr.d delcrnan..t:en. I woubt rcet..:e th ' \(ry re. I rici:s !w wd r
Idiese that thcte 1*. rcene; to be a num- by tlus c:cstiar; tanner tr:: 9e vcnuhi te OltDER OF PUSINPC.3 h ber of b2r.dicial Mcct s tint ' !;l 1:cr a per.itn c factor in the utt tqy's cen- g ggg,.M rreemli:-~'* on'v t ed s
.:d f rc{a thn lemlatxa. not t!.c lem.t o.f Lic!cra aon of e. punt!e r p;glicat:on f or a carlier and cre printed nt th:3 pannt, ~
.7 v.luch is an increawd v.niidence broad utin:; det. Mon in our art a. At coula Iman unanum'as cony.nt9
~. M the ab.hty of the Unc.ed Mater tn cet th:; tl.ere trulci ice a orc;mel, for ex- Mr. JACI EON. Mr- Prt;idrat. I u
'- it.s energ situatica tmd r control. Win 10 nmple, to hco:: up the casun:t ref.nert<:s unanimous const thnt mv raa'n .
;s I n'n r! eau.! thr.t th:.2 pa.:' crc ci Iz;;s- to any ncy picchnc in an c: fort to rc- that I am aiw.:t to nuhe. nud'tna ath *1 c- latio:' is nove finally movin;: toxcid inial (tuce the riu tsacir.Nd with tanker that the Gentte Inav t.de, occur na-
.; - ctr:ctmeld. I clo Lehoc that there are a tratyc serrm;: Wash!r :: ton rehnere. Incdir.th c!!cr Cie 'compWJon of th '
- ,t icw sr. all ite:n3 tmt std! tucd to be in b'in.c I em no so;mo; the Mate of Wr.s.,ier un.. of nav:14%ncJ ton, if there is g.4c on the t'.\o F 1.timJ ccr fer .:
cy chn.9 d. I hac discutscd thc.n altt ady n. . ..t -
;d V ith it:e Gmin;uished chair.mc.n cf the r.oin to be one. It shot.FJ cr tuidcr ay ' gPitT3! DING OTTICT:P. W.*,hout Enerny Comn'lttee, ar.:1 he hu sugested to reduce all en7honhntal rN:s. inchd- obj;ction,it is so ordereJ. . .c- ,
n collectuy to put to re.t, ence nud for in : thm o that or:.t tMay. "*
- - cil, the fact that scicral !crashittm pt o- Mr.JACINON. The is correct. As you ac V!siom in this pach;e cou;d be r:b;cet kno c. this tr. sue is addre."d in the joint Ti!"; 1973 AMimICAN 1 ^. EXP:.*DITIOP
- to 1 nintcued h.ttrpr( t:.tions. cxphinatwy statemcut of the can'inittcc
- s htr. JACHCON D:e Cht ht :ui .bcd of confercoce < n p nc 301 Mr. JACMSON. Mr. Pretent. In Jun'
.I chauman of the Av 'rnuou Co.n- Mr. MAGNUJON'. I !!n.nk the dh: tin. 1970, thy 1970 A:ntne:tn 10 Fad
- nt*
th inittcc is correct. Wn.le I da n% beiL.:Vo ruished Chairman of the Ccm aittee on set out to cin:.510. the 'econd Div r- that any of them proviuona nd' l cad to Uncr;y and ?,att:ral Ecsourus. *Ihcre is mMatn in the mR On &%'M'a a
'- Unintent;cd interpr: tanuns I thare his one furt her inath.r that concerns tae bc. and 7.1573. fear mer crc of t M c'-
- .d dcaire to create su.Leirnt lern lative lus- cause it has the poxinial for inr.une'er. p:Stien n:N _ved tM p.a. t!ceby b -
caming th: Drat America!u cycr to str. : '
. :. tory to Int this n'rLler ta rest. standing. In rect:on ! Gas, t!a re la a 7- Mr. MAGNUEON. My concett. really procedm e Ir/ v.ht:h the l' resident could atop the summit of thu trcacl.;rre:
Gy relates to matters adcctinr our home propoio to Con rc s the T.aiver cf cer. nNumn. u- State of Wachd Lton and other coastal tain laves 11 he fm ts that such a waircr KO. a mountain in the Karahonm En. c of the II:niab en; on tV l m er
'n Ctates as welb As you taovr. t!!!c /. en. would fr ethte.te the cen;trt'ctwn er op?r. Wmn N *an imd Chma. rear:m e th titled "Cruda O.1 Transrcrtation b'ys- ation of either the so called Sobia prm.
St tems," cou!d aWel the lec"tton if a (et or otte of the projects apprtweti unW r hurht of 01030 (cet @ ave f ra h nubag its sunnnh (M .second h%cet w crude oil tran: ship:tc.:tt port on ths . e'.t the criteri.t vc hate already referred to. point at the wor!J. enly 734 fret 1 - i
- coast to zelvc nortnern ticr and inland Whde Connress would have the copor-Cf Stat.cs. O.ic of the potent:a1 e!!cs for tmuty to conmin such a propou! by tnan th crea': of Ma mt U acc4.10 1.
d ad d "n ' c D'8 such a sy .'cm is in the State of W.th- cither puin:: or fathta to pas a Jumt gne of k mod @h ab in the b 0:h!. Of int. ton". There!ere. it is important that resolutan, it nonethe;c: s rahes the (p;es- #.? ritountams to c M tha c be no cClu. net abN: the exact tion of con.'ie uninal latent in Mbe :iw Indccd. in the teorld of rnowf aber. AC inlint o! this leai.<lat;on. for such .t p:ciraurc to cut in Ine nrst utg. the auun:ut of !s. n une of 0 F a
' Mr. JAtlEON I fu!!v underrtand place. What t< the intent wnh re pect to act e: able p!acc.; oa 1 ;n t h. Alt hm: .
U many attentp% hire beca m.se ta n % your concertts. One s;ction that ;mtht be this w.uver procedure? tubic2d to aticc t coastal States hi:e Mr. J ACKSOS. Th:S !c:.is:at;oh is in. Its hemhti NO ha.- tmen accended * ' Mt Wat hutrton is section f4.*ob) C LID. tenard to be expeditht.:1emlation. Wh:!c L?ltec, ny an I!ahan team m l'M and ac . This secttan says that appheation< lor I cantmt forc3ec at ttu: .noment exact;y by a Jap.ute..e team in Ip77 I'ac p:e-Vn the expedited .uting luo.vdures prati.ied what I ederal lan* minut be proposed to v10ua American expechttoi?. havc Lent
'* for in thc bdl unr.L camply unh st,ttutct bo V:uwd, the t aner would te u ed tn tm ucccuful tu their a!!cmpt; to reach
'1 :,uch as the l'rJetal Lu.d Pohry and f art tita t e constrartmn or op. ration of tne s>mmnt.
tr Manaccment Act. 'lhe rtatutes in.f cd ate iny sy.dem approved under :.e tmn 507. The 1978 Amrtican !!O I;xnedition ". a t
" obtlaudy :ot excluave; tne at:pheattoa In o'.her noru i. this prou:lon u desta.:rd orcan./cd by Jame: W. Whi:t.th r of
'0 tmist comply with all appheable 1.nys. LG speed Itnars up ourc a dect. ton h.:5 beatt!c. Was h. The expnh t ton's e i tl <
C8 1'or example, nppheattun 10r a splem ni bects made. was to attempt to c hn'b 1* 2 nur.
'T- Wa.shmatcn would ha.c to comply wnu Mr. MAGNUCON I than!: my dbtin- the stunmer of 10'.3 by the ha.:irdan, ce tho fede ally a ppruved Etato cot:tal cui.shed culleague f or Llos explanation. virinn northwest rt@c. Tpe ewethWu a
Inanagement plans in the State of W u.h- Sinco 14 is meant only to expedite un- conated of 13 tearn members. .n - Cm fu lbm* Vs m 2265 269 l _ v
r UNITED STATES OF AMERICA NUCLEAR REGULATORY q0MMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
HOUSTON LIGHTING AND POWER ) Docket Nos. 50-498A CO., et al.(South Texas ) 50-499A Project, Units 1 and 2) )
)
TEXAS UTILITIES GENERATING ) Docket Nos. 50-445A COMPANY (Comanche Peak Steam ) 50-446A Electric Station, Units 1 ) and 2) )
) -
CERTIFICATE OF SERVICE I hereby certify that service of the foregoing RESPONSE BY THE DEPARTMENT OF JUSTICE TO MOTIONS FOR
SUMMARY
DECISION AND/OR'
SUMMARY
DISPOSITION BY HL&P, TUGCO, AND AUSTIN have been made on the following parties listed hereto this 23rd day of , April, 1979, by depositing copies thereof in the United States mail, first class, postage prepaid, or by hand service where
- appears or by express mail where ** appears to the right of the name.
Marshall E. Miller, Esquire Atomic Safety and Licensing Chairman Appeal Board Panel . Atomic Safety & Licensing Board U.S. Nuclear Regulatory Panel Commission U.S. Nuclear Regulatory Washington, D. C. 20555 Commission Washington, D. C. 20555 Richard S. Salzman, Esquire U.S. Nuclear. Regulatory Michael L. Glaser, Esquire Commission . 1150 17 th Street, N.W. Washington, D. C. 20555
.. Wash in g t on , D. C. . 20036 .. .
Jerome E. Sharfman, Esquire Sheldon J. Wolfe, Esquire U.S. Nuclear Regulatory Atomic Safety & Licensing Board Commission Panel Washington, D. C. 20555 U.S. Nuclear Regulatory .
.acB Commission Chase R.. Stephens, Secretary Washington, D. C. 20555 Docketing and Service Branch U.S. Nuclear Regulatory Samuel J. Chilk, Secretary Commission Office of the Secretary of the Washington, D. C. 20555 Commission U.S. Nuclear Regulatory Jerome Saltzman Commission Chief, Antitrust and 2}f} }[]
Washington, D. C. 20555 Indemnity Group U.S. Nuclear Regulatory Commission Washington, D. C. 20555
~
Roff Hardy Michael I. Miller, Esquire
- Chairman and Chief Executive Richard E. Powell, Esquire Officer David M. S tahl, E-'uire Central Power and Light Thomas G. Ryan, E iuire Company Isham, Lincoln & Beale P. O. Box 2121 One First National Plaza Corpus Christi, Texas 78403 Chicago, Illinois 60603 G. K. Spruce, General Manager Roy P. Lessy, Esquire City Public Service Board Michael Blume, Esquire P.O. Box 1771 U.S. Nuclear Regulatory San Antonio, Texas 78203 Commission Washington, D. C. 20555 Perry G. Brittain President Jerry L. Harris, Esquire **
Texas Utilities Generating City Attorney, Company Richard C. Balough, Esquire 2001 Bryan Tower Assistant City Attorney Dallas, Texas 75201 City of Austin P.O. Box 1088 R.L. Hancock, Director Austin, Texas 78767 City of Austin Electric Utility Department Robert C. McDiarmid, Esquire P. O. Box 1088 Robert A. Jablon, Esquire Austin, Texas 78767 Spiegel and McDiarmid 2600 Virginia Avenue, N.W. G. W. Oprea, Jr. Washington, D. C. 20036 Executive Vice President Houston Lighting & Power Dan H. Davidson Company City Manager P.O. Box 1700 City of Austin Houston, Texas 77001 P. O. Box 1088 Austin, Texas 78767 Jon C. Wood, Esquire W. Roger Wilson, Esquire Don R. Butler, Esquire Matthews, Nowlin, Macfarlane 1225 Southwest Tower
& Barrett Austin, Texas 78701 1500 Alamo National Building -
San Antonio, Texas 78205 Joseph Irion Worsham, Esquire Merlyn D. Sampels, Esquire *
- Joseph Gallo, Esquire Spencer C. Relyea, Esquire Richard D. Cudahy, Esquire Worsham, Forsythe & Sampels Robert H. Loeffler, Esquire 2001 Bryan Tower, Suite 2500 Isham, Lincoln & Seale Dallas, Texas 75201 Suite 701 1050 17th Street, N.W. Joseph Knotts, Esquire
- Washington, D. C. 20036 Nicholas S. Reynolds, Esquire Debevoise & Liberman 1200 17 S treet , N.W.
Washington, D. C. 20036 2265 271 f 4
L. . Douglas F. John, Esquire R. Gordon Gooch, Esquire
- Akin, Gump, Hauer & Feld John P. Mathis, Esquire
- 1333 New Hampshire Avenue, N.W. Baker & Botts Suite 400 1701 Pennsylvania Avenue, N.W.
Washington, D. C. 20036 Washington, D. C. 20006 Morgan Hunter, Esquire Robert LowenJtein, Esquire McGinnis, Lochridge & Kilgore J. A. Bouknight, Esquire
- 5th Floor, Texas State Bank William J. Franklin, Esquire
- Building Lowenstein, Newman, Reis, 900 Congress Avenue Axelrad & Toll Austin, Texas 78701 1025 Connecticut Avenue, N.W.
Washington, D. C. 20036 Jay M. Galt, Esquire Looney, Nichols, Johnson E. W. Barnett, Esquire **
& Hayes Charles G. Thrash, Jr., Esquire 219 Couch Drive J. Gregory Copeland, Esquire Oklahoma City, Oklahoma 73101 Theodore F. Weiss, Jr. , Esquire Baker & Botts Knoland J. Plucknett 3000 One Shell Plaza Executive Director Houston, Texas 77002 Committee on Power for the Southwest, Inc. Kevin B. Pratt, Esquire 5541 East Skelly Drive Assistant Attorney General Tulsa, Oklahoma 74135 P.O. Box 12548 Capital Station John W. Davidson, Esquire Austin, Texas 78711 Sawtelle, Goode, Davidson
& Tioilo Frederick H. Ritts, Esquire 1100 San Antonio Savings Law Offices of Northcutt Ely Buildin9 Watergate 600 Building San Antonio, Texas 78205 Washington, D.C. 20037 W. S. Robson General Manager South Texas Electric Cooperative, Inc. hd.h_ 3. Olbia Route 6, Building 102 Judjth L. Harris, Attorney -
Victoria Regional Airport Energy Section Victoria, Texas 77901 Antitrust Division Department of Justice 4L 2265 272
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