ML19308B219

Motion of Piedmont Cities Power Supply,Inc & 11 Piedmont Electric Cities to Dismiss Application of Duke Power Co for R&D Licenses Under Section 104 (B) of Atomic Energy Act for Const & Operation of Oconee for Lack of Jurisdiction

ML19308B219
Person / Time
Site:	Oconee
Issue date:	08/10/1967
From:	Harris J, Reeder S, Tally J PIEDMONT CITIES OF NORTH CAROLINA, PIEDMONT CITIES POWER SUPPLY, INC.
To:	US ATOMIC ENERGY COMMISSION (AEC)
Shared Package
ML19308B217	List: ML19308B216 ML19308B219 ML19308B222
References
NUDOCS 7912160133
Download: ML19308B219 (9)

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- 3eforc The o UNITED STATES ATOMIC ENERGY COMMISSION DOCKETS NOS. 50 - 269, 50 - 270, and 50 - 287 MATTER OF THE APPLICATION OF DUKE POWER COMPANY FOR LICENSES UNDER THE ATOMIC ENERGY ACT OF 1954 AS AMENDED FOR THE CCNSTRUCTION AND OPERATION OF OCONEE NUCLEAR STATION, UNITS 1, 2 and 3 -

MOTION OF PIEDMONT CITIES POWER SUPPLY, INC., and ELEVEN PIEDMONT ELECTRIC CITIES TO DISMISS THE APPLICATION OF DUKE POWER COMPANY FOR RESEARCH AND DEVELOPMENT LICENSES UNDER SECTION 104 (b) OF THE ATOMIC ENERGY ACT FOR THE CONSTRUCTION AND OPERATION OF OCONIE NUCLEAR STATION, UNITS 1, 2 and 3 FOR IACK OF IURISDICTION Piedmon: Cities Power Supply, Inc.

City of Sta:esville, Nonh Carolina City of High Point, Nor h Carolina Ci:y of Lexington, North Carolina City of Monroe, North Carolina City of Shelby, Nonh Carolina City of Albemarle, Nonh Carolina Town of Cornelius, North Carolina -

Town of Drexel, North Carolina Town of Grani:e Falls, Noch Carolina Town of Newton, North Carolina Town of Lincoln:en, Nor:h Carolina Movants Jack R. Harris I. O. Tally, Jr.

Spencer W. Reeder A::ctneys for Movants J g3 g , gg,3 3 -

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Before The UNITED STATES ATOMIC ENERGY COMMISSION DOC: CTS NOS. 50 - 269, 50 - 270, and 50 - 287 MATTER OF THE APPLICATION OF DUKE POWER COMPA.VI FOR LICENSES UNDER THE ATOMIC ENERGY ACT OF 1954 AS AMENDED FOR THE CONSTRUCTION AND OPERATION OF OCONEE NUCLEAR STATION, UNITS 1, 2 and 3 MOTION OF PIEDMONT CITIES POWER SUPPLY, INC., and ELEVEN PIEDMONT ELECTRIC CITIES TO DISMISS THE APPLICATION OF DUKE POWER COMPANY FOR RESEARCH AND DEVELOPMENT LICENSES UNDER SECTION 104(b) OF THE ATOMIC ENERGY ACT FOR THE CONSTRUCTION AND OPEPATION OF OCONEE NUCLEAR STATION, UNITS 1, 2 and 3 FOR IACK OF JURISDICTION Now come Piedmont Cities Power Supply,' Inc., a corporation not for profit, duly organized and existing under the laws of the State of Nor:h Carolina; Cities of Statesville, High Point, Lexing:cn, Monroe, Shelby, and Albemarle, North Carolina; the Town of Cornelius, Drexel, Granite Falls, Newton, and Lincolnton, North Carolina ("Movants"); and for the grounds of their motion to dismiss the application of Duke Power Company for research and development licenses under Section 104 (b) of the Atomic Energy Act of 1954, as amended, for the cons:ruction and operation of Oconee Nuclear Station, Units 1, 2 and 3, for lack of jurisdiction, respect-fully state that:

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1. Duke Power Company has applied for research and developmen:

licenses under Section 104 (b) of :he A:ccic Energy Ac: cf 1954, as amended, for the cons:ruction and operation of Oconae Nuclear S:ation, Units 1, 2 and

3. Said application, as supplemented and amended, discloses upon its face tra: the Oconee Nuclear Station, fcr which 40 year licenses are applied, wi:h 1:s proposed capacity of over 2,600,000 kilowatts, capable of meeting over 60% of :he maximum integra:ed net demand en Duke Power Ccmpany's system for the year ended December 1,1966, and estimated :o cost over

$340 million, is not a research and developmen: activity, either in 1:s proposed construction or in its proposed opera: ion. Duke's application furth r discloses that the Conpany seeks :o build said station for commercial purposes, and not for research and development purposes.

2. Duke's application for the Ocenae Nuclear Station, Uni:s 1, 2 and 3, as amended and supplemen:ed, is not for a commercial license under See:icn 103 of the Atomic Energy Ac: of 1954 as amended, (42 USC 2133).

Duke's application for research and developmen: licenses discloses however that Duke has defined its proposed Oconee Nuclear Station as a

" commercial nuclear station" as contrasted with the Parr Plant, a: Parr, S. C., which Duke correctly dubs " experimental"; that Duke proposes to finance the Oconee Nuclear Sta:icn as a " commercial nuclear s:ation" and not as an experimental nuclear station; tha: Duke has applied for licenses good for 40 years to construct and operate the said 260 million kilowatt,

$340 million, more-profitable-than-coal-fired Oconee Nuclear S:a:icn "2-

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under the guise of an experimental plant, for which only a "research and development" license would be required under Section 104 of the Act, in order to escape and circumvent the Congressional requirements which would be attendant upon a truthful labeling of Oconee as a proposed

" commercial" nuclear sta: ion, which can only be lawfully licensed as a

" commercial nuclear station" under Sectica 103 of the Atomic Energy Act of 1954 as amended.

On July 25, 1967, the eleven Piedmont electric cities aforesaid addressed a communication to the Commission herein entitled "Protes:

of Piedman: Electric Cities Agains: Duke Power Company's Application for Unconditional Licenses Under the Atomic Energy Act of 1954, as amended, a and the same was duly filed by the Secretary in these docke:s.

Said " Protest" is incorporated herein by reference as a par: of the history of ths Motion to Dismiss. On July 31st, 1967, the A.E.C. Regula: cry Staff filed a document entitled " Response of Piedmon: Electric Ci:les -

Agains: Duke Power Company's Application for Unconditional Licenses".

Said " Response" is incorporated herein by reference as a par: of the history of this Motion to Dismiss.

On July 28, 1967, Duke filed a document entitled " Answer of Duke Pcwer Company to Protest of Piedmon: Electric Ci:1es Against Duke Power Company's Application for Licenses for the Oconee Nuclear Sta: ion, Units 1, 2 and 3. " Said " Answer" is incorporated herein by reference as a par: of the history of this Motion to Dismiss.

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l Both the response of the A.E.C. Regulatory Staff and the answer of Duke Power Company to the Protes: of :he Piedmont electric ci:les agains:

Duke Power Company's application for uncondi:ionallicenses s:ated : hat the Protest could not be heard by the Commission in this proceeding arising upon Duke's application for research and development licenses under Section 104 (b) of the Ac:, for the reascn.that the provisions of the Act relied upon by the Protestants for the protection of the public with respect :o antitrust and c:her matters, are not applicable to research and development license proceedings, but are only applicable in proceedings related to applications for commercial licenses.

I: is regrettable :l'at the applicant, Duke Power Company, by filing its '

application for research and deselopment licenses which the Commission has no jurisdiction to issue in this case under Section 104 (b) of the Act, has made necessary the filing of this Motion to Dismiss said research and deselopment license application herein, in order to preserve for Movan:s and the public the protection against monopoly, contracts, combinations, and conspiracies in restraint of trade and c:her evils which Congress has vouchsafed to the public for the protection of Movants' interest in a com-mercial license application proceeding.

3. Since Duke Power Company cannot sa:isfy the jurisdictional require-men:s of the A:omic Energy Act, Section 104, for a research and' develop-men: license, it must apply for a finding of practical value as :o the type of reactor employed under Sectica 102 and c:hawise comply 'vi:h :he en me

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requirements for a commerciallicense under See: ions 103 and related sections of the A:cmic Energy Ac:, as adopted by :he Congrass for the protection of the public.

4. Piedmont Cities Power Supply, Inc., a corpora:1on not for profit, duly organized and exis:ing under :he laws of the State of Nor:h Carolina, -

and the eleven Piedmont electric cities of Ncr:h Carolina for whose benefit said corporation has been formed, hereby offer :o suppcrt Duke in obtaining jurisdictional commerciallicenses under See:icn 103 of the Atomic Energy Act.

The conditions attached to :his offer, which is made for :he purpose of expedi:ing the Oconee Nuclear project in a sound and jurisdic:ional manner are: '

(1) That Duke show an equalin:erest in expedition by abandoning its attemp: :o obtain non-jurisdictional research and developmen: licenses not authorized under See:1cn 104, and; (2) Offer Piedmon: Ci:ies Power Supply, Inc., an oppor: unity to buy i 1

its fair share in the Oconee Nuclear S:ation coupled with a satisfactory l wheeling arrangement whereby its share of the Oconee energy may be '

transmitted for hire from :he Oconee Plan in Sou:h Carolina to the said I

elaten Piedmon: elec:ric ci:les in Nor:h Ce.rolina under Pederal Power Commission jurisdiction.

5. The Uni:ed Sta:es Atomic Energy Commission has no jurisdic:icn, 1

power, or au:hority, to issue to Duke the pretended research and '

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• _ developmen: license applied for under Section 104 (b) cf the Atomic Energy Act.

The " Memorandum in Supper: of Motion of Piedmon Cities Power Supply, Inc., and Eleven Piedmon: Electric Cities to dismiss :he Application of Duke Power Company for Research and Development Licenses

• Under Section 104 (b) of :he A:omic Energy Act of 1954, as amended, for the construction and operation of the commercial Cconee Nuclear S:ation, Units 1, 2 and 3", hereto attached and made par: hereof, is incorporated herein as a par: of this motion as fully as though physically rewrit:en i

herein.

WHEREFORE, Piedmon: Cities Power Supply, Inc., and the Eleven Piedmont Electric Cities aforesaid hereby respec: fully move to dismiss for want of jurisdiction owr the subject matter :he application of Duke Power Company for research and developmen: licenses under Sec: ion 104(b) of :h3 Atomic Energy Act of 1954 as amended, for the construction and opera: ion of Cconee Nuclear Station, Units 1, 2 and 3.

Respectfully submitted, Jack R. Harris Suite 207 - Stimpson-Wagner 31dg.

Statesville, Ner:h Carolina i I. O. Tally, Jr.

P. O. Drawer 1650 Paye::eville, Ncr h Carolina l

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Spencer W. Reeder Spencer Building St. Michaels, Maryland Attorneys for Movants J

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. j V_ERIFIC ATIO N S TATE OF NORTH CAROLINA )

COUNTY OF IREDELL ) ss:

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SPENCER W. REEDER, being first duly sworn, states that he is an attorney duly admitted to the practice of law in Marrland, the United States, Ohio, New York and $e District of Columbia; that he has been employed as Special Counsel by each and all of the Movants herein; that he has read the 3

foregoing document and knows the contents &ereof; that he has subscribed and executed said document as a duly authorized attorney for said Movants; that he has been duly authorized by each and all of de Movants to file te aforesaid dccument; and dat the contents thereof are true and ccrrect.

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' Spfneer V/. Reeder Subscribed and sworn to before me, a Notar/

Public in and for the State and County aforesaid, this Se 10th day of August,1967. -

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My commission expires: ~

Notary Public  !

May 23,1969.

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