ML19309B277

Response by Public Utils Board of City of Brownsville,Tx in Opposition to Nonconsolidation of Proceeding Suggested by NRC & Central & South West Corp.In Event of Separation, South Tx Case Should Be Heard First.Certificate of Svc Encl

ML19309B277
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	03/24/1980
From:	Spiegel G TEXAS, STATE OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8004030360
Download: ML19309B277 (9)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

HOUSTON LIGHTING & POWER ) NRC Docket Nos. 50-498A COMPAMY, _et _al., ) 50-499A (South Texas Project, Units )

1& 2) )

)

In the Matter of )

)

TEXAS UTILITIES GENERATING ) NRC Docket Nos. 50-445A COMPANY, _et _al., ) 50-446A (Comanche Peak Steam Electric )

Station, Units 1 & 2) )

RESPONSE OF THE PUBLIC UTILITIES BOARD OF THE CITY OF BROWNSVILLE, TEXAS The Public Utilities Board of the City of Brownsville, Texas ("Brownsville") opposes the suggestion of Central and South West ("C&SW") and of the Commission Staff that the Comanche Peak proceeding should not be consolidated with the South Texas Project proceeding, and should take place first.1/

Brownsville intervened in the South Texas proceeding in order, among other reasons, to .obtain urgently needed relief i

! from anticompetitive activities of Applicants in the South l

Texas Project ("STP"), principally Central Power and Light l Company ("CP&L"). Brownsville has been injured by the I

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! 1/ Statement of Central and South West Corporation and its l Subsidiaries opposing Consolidation, filed March 17, 1980; NRC Staff Views on Consolidation, filed March 17, 1980.

Brownsville's comments here are in addition to its Comments on Consolidation filed March 17, 1980; they address the new issue of which proceeding should take place first if the Board decides not to consolidate the two proceedings.

I seeaan a 3co

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activities of CP&L an applicant for 25.2% interest in STP.1/

Until it obtains a remedy from the Board, Brownsville will continue to suffer from the anticompetitive activities of CP&L and others. When C&SW urges this Board to hear Comanche Peak first, it is simply seeking to postpone the date when CP&L will be brought to account for its actions.

There is no justification for postponing review of CP&L's actions in South Texas until the Comanche Peak pro-ceeding is resolved. The only issues raised in Comanche Peak are also present in South Texas, 2/ so that if the pro-ceedings are not consolidated, a resolution of the South Texas would probably also rasolve Comanche Peak. Thus if South Texas is heard first, the same issues will be resolved along with the more urgent particular anti-competitive issues. If the cases are consolidated, similarly the particular South Texas anticompetitive issues will be 1/ As set out more fully in Brownsville's pleadings, CP&L Eas refused to transmit power and energy to Brownsville, has encouraged others to refuse transmission to Brownsville, has attempted to monopolize Brownsville as a wholesale customer, and has used its market power to compete unfairly for new and existing retail customers. CP&L also failed to make Brownsville a bona fide offer of participation in the South Texas Project; and until mid-1979 foreclosed Brownsville from membership in the Texas Interconnected System (" TIS") and South Texas Interconnected system.

Brownsville believes Central & South West Corporation

("C&SW"), CP&L's parent, approved of or had knowledge of these activities. In addition, other participants in the South Texas Project knew or should have known about the failure to offer participation. Other members of TIS knew or should have P.own about the exclusion from membership.

2/ The NRC Staff noted common issues at page 3 of its Views.

I heard without delay. Moreover, a number of parties are par-ticipating only in South Texas, and not in Comanche Peak.1/

If the Comanche Peak proceeding is held first, these parties may have to participate in Comanche Peak to protect their interests, which would expand the Comanche Peak proceeding into a version of the South Texas proceeding. To the extent they do not participate in Comanche Peak, they cannot be bound by Comanche Peak, and the same issues will be reheard in South Texas. Overall resolution of the issues for all parties will be delayed.

In sum, holding the Comanche Peak proceeding first would not only unjustifiably postpone, consideration of the issues of anticompetitive behavior raised by Brownsville; it would contribute to complexity and postpone the final resolution of common issues for all parties.2/

1/ In addition to Brownsville, these parties are Houston Lighting & Power Company ("HL&P"), South Texas Electric Coc7erative, Medina Electric Cooperative, the City of San Antonio, and the City of Austin. Six parties have also requested limited appearances in South Texas. Only one party is participating in Comanche Peak but not South Texas (Tex-La Electric Cooperative) and there are no limited appearances in Comanche Peak.

2/ The NRC Staf f point.s o'.t the Comanche Peak fuel loading date is November,1981, in contrast to September, 1983 for South Texas. Since the South Texas proceeding would probably resolve all issues in Comanche Peak, either holding the South i

Texas proceeding first or consolidating the proceedings is l likely to be just as accomodating to the November, 1981 date as the Staff's proposal.

l Both C&SW and the NRC also raise HL&P's recent indica-t tion it will rely on studies of Stagg Systems, Inc. as a reason for holding the Comanche Peak proceeding first. C&SW FOOTNOTE CONTINUED ON NEXT PAGE

Brownsville has also considered the pleadings submitted by other parties on the issue of 'sasolidation, and now sup-ports consolidation of the two proceedings, provided there is adequate protection for the procedural right of full cross-examination for Brownsville and other parties formally only participating in one of the proceedings. Consolidation will be the most efficient way of using the Commission's resources.

It will undobutedly take less time than two non-consolidated proceedings, especially if Comanche Peak is heard first. The major issues in the case, as delineated in the Board's Orders of July 13, 1978 and December 5, 1978, overlap.1/ Much of the evidence and many of the witnesses will be the same.

Also, Brownsville's specific allegations of anti-competitive activities involve exclusion from TIS and from the South Texa3 Project and other potential sources of power. All the parties concerned should participate in one proceeding dealing with these matters.2/

FOOTNOTE CONTINUED FROM PREVIOUS PAGE claims it will take six months to do this analysis C&SW Statement, p. 4. Their suggestion is thus effectively a request for a six month extension for the South Texas pro-ceeding even though it was not explicitly requested as such This extension has not been justified. Although Brownsville does not know to what extent new Stagg Systems Studies are involved, C&SW is certainly familiar with the Stagg Systems work from related proceedings. Moreover, Brownsville does not understand C&SW's assumption that HL&P will not rely on its Stagg Studies in its participation in Comanche Peak.

1/ See the list of issues set out be the NRC Staff in their Views, p.4.

2/ TU points out that the allegations of concerted action between TU and HL&P justify consolidation. Le tter , March 17, 1980, p. 3 n. 1.

For the above reasons Brownsville respectfully supports consolidation and requests that, if this Board determi 2es not to consolidate the Comanche Peak and South Texas proceedings, it order the South T4xas proceeding to take place first as scheduled on May 14, 1980, with remaining issues in Comanche Peak, if any, to be heard separately.

Respectfully submitted, George Spiegel Attorney for the Public Utilities Board of the City of Brownsville, Texas Law Offices of:

SPEIGEL & MCDIARMID 2600 Virginia Avenue, N.W. 1 Suite 312 Washing ton, D.C. 20037 March 24, 1980

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD In the Matter of )

i

)

HOUSTON LIGHTING & POWER COMPANY, ) Docke t Nos . 50-498A et al. ) and 50-499A

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(South Texas Project, Unit Nos. )

1 and 2) )

)

)

)

In the Patter of )

)

TEXAS U"ILITIES GENERATING COMPANY, ) Docket Nos. 50-445A et al. ) and 50-446A

)

(Comanche Peak Steam Electric )

Station, Unit Nos. 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that I have caused' copies of the foregoing RESPONSE OF THE PUBLIC UTILITIES BOARD OF THE CITY OF BROWNSVILLE, TEXAS to be served on the following by deposit in the United States mail, first class, postage paid, or, as indicated by an asterisk (*), by hand this 24th day of March, 1980.

• Marshall E. Miller, Chairman *Sheldon J. Wolfe, Esquire Atomic Safety & Licensing Board Atomic Safety & Licensing Board Panel Panel Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555

• Michael L. Glaser, Esquire Joseph Rutberg, Esquire 1150 17th Street, N. W. Antitrust Counsel Washington, D. C. 20036 Nuclear Regulatory Commission Washington, D. C. 20555 Ann Hodgdon, Esquire Fredric D. Chanania, Esquire R. Gordon Gooch, Esquire Michael B. Bl ume , Esquire John P. Mathis, Esquire i Nuclear Regulatory Commission Baker & Botts l Washington, D. C. 20555 1701 Pennsylvania Avenue, N. W.

j Washington, D. C. 20006 i

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Jerome Saltzman, Chief Antitrust & Indemnity Group Robert Lowenstein, Esquire Nuclear Regulatory Commission J. A. Bouknight, Jr., Esquire Washington, D. C. 20555 William J. Franklin, Esquire Lowenstein, Newman, Reis, Chase R. Stephens, Chief Axelrad & Toll Docketing & Service Section 1025 Connecticut Avnue, N. W.

Office of the Secretary Washing ton , D. C. 20036 Nuclear Regulatory Commission Washington, D. C. 20555 Frederick H. Ritts, Esquire Law Offices of Northcutt Ely Joseph R. Saunders, Esquire Watergate 600 Building Chief, Public Counsel & Washington, D. C. 20037 Legislative Section Antitrust Division Wneatley & Wolleson Department of Justice 1112 Watergate Office Building P. C. Box 14141 2600 Virginia Avenue , N. W.

Wasnington, D. C. 20444 Washing ton , D. C. 20037 David M. Stahl, Esquire Roff Hardy, Chairman and Sarah F. Holzsweig, Esquire Chief Executive Officer Isham, Lincoln & Beale Central Power & Light Company 1120 Connecticut Avenue , N.W. P. O. Box 2121 vuite 325 Corpus Christi, Texas 78403 hashington, D.C. 20036 G. K. Spruce, General Manager City Public Service Board Susan B. Cyphert, Esquire P. O. Box 1771 Antitrust Division San Antonio, Texas 78201 Department of Justice P. O. Box 14141 Jon C. Wood, Esquire Washing ton , D.C. 20444 W. Roger Wilson , Esquire Matthews, Nowlin, Macfarlane Joseph Knotta, Esquire & Barrett Nicholas S. Reynolds, Esquire 1500 Alamo National Building Debevoise & Liberman San Antonio, Texas 78205 1200 17th Street, N. W.

Washington, D. C. 20036 Perry G. Brittain, President Texas Utilities Generating Co.

Douglas F. John, Esquire 2001 Bryan Tower McDermott, Will & Emery Dallas, Texas 75201 1101 Connecticut Avenue, N.W.

Suite 1201 Joseph I. Worsham, Esquire l Washington, D.C. 20036 Merlyn D. Sampels, Esquire

! Spencer C. Relyea, Esquire-I Worsham, Forsythe & Sampels 2001 Bryan Tower Suite 2500 Dallas, Texas 75201 i

R. L. Hancock, Director G. W. Oprea, Jr.

City of Austin Electric Utility Executive Vice President Department Houston Lighting & Power Co.

P. O. Box 1088 P. O. Box 1700 Austin, Texas 78767 Houston, Texas 77001 Jerry L. Harris, Esquire W. S. Robson, General Manager Richard C. Balough, Esquire South Texas Electric Coop. , Inc.

City of Austin Route 6, Building 102 P. O. Box 1088 Victoria Regional Airport Austin, Texas 78767 Victoria, Texas 77901 Dan H. Davidson Michael I. Miller, Esquire City Manager Isham, Lincoln & Beale City of Austin One First National Plaza P. O. Box 1088 Chicago, Illinois 60603 Austin, Texas 78767 Donald Clements, Esquire Don R. Butler, Esq. Gulf States Utilities Co.

Sneed, Vine, Wilkerson, Selman P. O. Box 2951

& Perry Beaumont, Texas 77074 P. O. Box 1409 Austin, Texas 78767 Knoland J. Plucknett Executive Director Morgan Hunter, Esquire Committee on Power for the McGinnis, Lochridge & Kilgore Southwest, Inc.

900 Congress Avenue 5541 Skelly Drive Austin, Texas 78701 Tulsa, Oklahoma 74135 Kevin B. Pratt, Esquire Jay M. Galt, Esquire Linda Aker, Esquire Looney, Nichols, Johnson & Hayes P. O. Box 12548 219 Couch Drive Capital Station Oklahoma City, Oklahoma 73101 Austin, Texas 78767 John E. Mathews, Jr., Esquire E. W. Barnett, Esquire Mathews, Osborne, Ehrlich, McNatt, Charles G. Thrash, Jr., Esquire Gobelman & Cobb J. Gregory Copeland, Esquire 1500 American Heritage Life Bldg.

Theodore F. Weiss, Jr., Esquire Jacksonville, Florida 32202 i Baker & Botts l 3000 One Shell Plaza Robert E. Bathen Houston, Texas 77002 R. W. Beck & Associates P. O. Box 6817 Orlando, Florida 82803 r

Somervell County Public Library P. O. Box 417 Glen Rose , Texas 76403 Maynard Human, General Manager Western Farmers Electric Coop.

P. O. Box 429 Anadarko, Oklahoma 73005 James E. Monahan Executive Vice President and General Manager Brazos Electric Power Coop., Inc.

P. O. Box 6296 Waco, Texas 76706 Robert M. Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue, N. W.

Washing ton , D. C. 20006 W. N. Woolsey, Esquire Dyer and Redford 1030 Petroleum Tower Corpus Christi, Texas 78474 Mr. G. Holman King West Texas Utilities Co.

P. O. Box 841 Abilene, Texas 79604 George Spi 6 gel L/

Attorney for the Public Utilities Board of the City of Brownsville, Texas l March 24, 1980 l l

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