ML19310A442
| ML19310A442 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 06/09/1980 |
| From: | Urban J JUSTICE, DEPT. OF |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8006170555 | |
| Download: ML19310A442 (13) | |
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NUCLEAR REGULATORY COMMISSION eb
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In Matter of
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THE TOLEDO EDISON COMPANY AND THE
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NRC Dkt. No. 50-346A CLEVELAND ELECTRIC ILLUMINATING
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COMPANY (Davis-Besse Nuclear
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Power Station, Unit 1)
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THE CLEVELAND ELECTRIC ILLUMINATING
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NRC Dkt. Nos. 50-440A COMPANY, et al.
(Perry Nuclear
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50-441A Power, Units 1 & 2)
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MOTION FOR MODIFICATION OF THE ORDER OF MAY 13, 1980 OR IN THE ALTERNATIVE FOR A HEARING On May 13, 1980, the Nuclear Regulatory Commission
("NRC") issued an Order modifying the operating license and construction permits for the above described nuclear plants
("May 13 Order") requiring the Cleveland Electric Illumi-nating Company ("CEI") to file a specifically described wheeling tariff with the Federal Energy Regulatory Commission
("FERC").
For the reasons discussed below the Department of Justice (" Department") hereby requests that the NRC modify its May 13, 1980 Order so as to require CEI to file a transmission schedule consistent with the license conditions imposed in this proceeding, and with the FERC Order of May 5,
1980 or, in the alternative, requests a hearing on the May 13 Order.
On January 6, 1977, an Atomic Safety and Licensing Board
(" Licensing Board") issued its Initial Decision in The Toledo Edison Company, et al. (Perry Nuclear Power Plants, h
8006170
a Units 1 and 2), Docket Nos. 50-346A, 50-500A, 50-501A, and The Cleveland Electric Illuminating Company, et al. (Perry Nuclear Power Plants, Units 1 and 2), Docket Nos. 50-440A, 50-441A, 5 N.R.C. 133 (1977).
(" Perry proceeding").
The Licensing Board found that the issuance of unconditioned licenses for the five nuclear units which were the subject of that proceeding "would both create and maintain a situation inconsistent with the antitrust laws and the policies underlying those laws."
Id. at 133.
CEI was one of the Applicants for the licenses.
Accordingly, the Licensing Board ordered that ten conditions attach to the requested licenses.
Among those conditions was condition 3, which states:
3.
Applicants shall engage in wheeling for and at the request of other entities in the CCCT: 1/
1) of electric energy from delivery points of Applicants to the entity (ies); and, 2) of power generated by or available to the other entity, as a result of its ownership or entitlements in generating facilities, to delivery points of Applicants designated by the other entity.
Such wheeling services shall be available with respect to any unused capacity on the transmission lines of 1/
In the context of the Perry proceeding the term "CCCT" referred to the Combined CAPCO Companies Territories.
Applicants, the use of which will not jeopardize Applicants' system.
In the event Applicants must reduce wheeling services to other entities due to lack' of ca pa city, such reduction shall not be ef fective until reductions of at least 5% have been made in transmission capacity allocations to ther Applicante in these proceedings and thereafter shall be made in proportion to reduc-tions imposed upon other Applicants in this proceeding.
Applicants shall make reasonable provisions for disclosed transmission requirements of other entities in the CCCT in planning future transmission either individually or with the CAPCO grouping.
By " disclosed" is meant the giving of reasonable advance notifica-tion of future requirements by entities utilizing wheeling services to be made available by Applicants.
(Footnote added.)
On January 14, 1977, Applicants moved to stay imposition of the license conditions pending appeal.
This motion was denied by the Licensing Board on February 3, 1977, and by the Atomic Safety and Licensing Appeal Board
(" Appeal Board") on March 23, 1977.
On April 22, 1977, the operating license for Davis-Besse Unit 1 was issued with the antitrust conditions attached.
On May 3, 1977, the construction permit for the Perry Nuclear Power Plants, Units 1 and 2, was issued with the antitrust conditions attached.
On January 27, 1978, CEI filed a transmission tariff with the PERC.
On June 28, 1978, after a request by the City of Cleveland
(" City") that was supported by the Department, the NRC issued as Notice of Violation to CEI stating that "at least as of CEI's submittal of the January 27, 1978, trans-mission schedule to [FERC] a continuing refusal to wheel in accordance with the license conditions began to occur."
The Notice of Violation cited five conditions contained in CEI's filed tariff which individually and collectively violated license condition 3, and which amounted to a refusal to wheel. 2/
On April 27, 1979, a FERC Administrative Law Judge
("ALJ") issued an Initial Decision which found that the CEI transmission tariff filed January 27, 1978, violated the Federal Power Act ("FPA") because it was " unjust, unreason-able and undully discriminatory" (Initial Decision at 56).
Accordingly, the ALJ ordered CEI to file the revised tariff specifically set out in the Initial Decision.
The ALJ speci-fically declined to rule on whether "CEI is in compliance with the NRC license conditions or the antitrust laws of this country, " because "[t]he NRC and other duly constituted 2/ The conditions described by the NRC Staf f in Appendix A to the Notice of Violation were:
- 1) agreeing to provide wheeling services only until the date of the final decision of the NRC in the Perry proceeding; 2) providing that CEI is the sole judge as to whether it has the capacity to make available wheeling services; 3) conditioning the wheeling services in a manner which allows CEI to preempt unused transmission capacity; 4) requiring that the minimum wheeling transaction occur for a period of no less than 12 months; and 5) proposing wheeling services upon the condition that CEI file separate supplemental wheeling schedules for each wheeling transaction..
bodies will be the judges of that."
(Initial Decision at 6). 3/
On June 2C, 1979, the NRC issued an Order Modifyipo Antitrust License Condition No. 3 of Davis-Besse Unit 1, License No. NPF-3 and Perry Units 1 and 2, CPPR-148, CPPR-149
(" June 25 Order").
The June 25 Order amended CEI's licenses and construction permits to require CEI to file with FERC the tarif f ordered by the FERC ALJ as amended by the NRC. 4/
By its terms the June 25 Order was to take effect immediately.
On August 2, 1979 CEI wrote to the NRC requesting that the June 25 Order be modified so as to become effective twenty-five days after the final opinion and order of the FERC in the pending appeal at that agency concerning CEI's wheeling tariff.
In support of its request, CEI argued:
The transmission service tariff in question is currently the subject of an administrative appeal before before FERC in Docket No. ER 78-194.
If CEI is required to file prematurely with FERC an amended tariff pursuant to the [ June 25] Order here, a number of contested issues will be mooted by that filing.
As a consequence, CEI will be unfairly deprived of a meaningful opportunity to exercise i
3/
The tariff required by FERC does not bring CEI into compliance with the NRC license conditions because it does not require CEI to reduce transmission service to the other Applicant companies prior to reducing such service to non-Applicant entities and does not require CEI to consider disclosed transmission needs of non-Applicant entities in its future planning.
4/
The NFC amendments were intended to bring CEI into Compliance with License-Condition 3.
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both its appeal rights at FERC and its hearing rights before the Nuclear Regulatory Commission prior to the filing of a transmission service tarif f which it legitimately believes to be objectionable in several important respects.
On August 6, 1979, the NRC issued an Order which modi-fled its June' 25 Order by suspending its "immediately effective" aspect pending receipt and review of Comments by interested persons on CEI's mootness contentions.
On September 6, 1979, the Appeal Board issued its Decision in the Perry proceeding.
That Decision affirmed license condition 3 in its entirety.
On February 29, 1980, the Commission decided not to review the Appeal Board Decision, thus making it a final decision of the NRC.
On May 5, 1980, FERC issued an Opinion and Order Modifying in Part and Approving Initial Decision on the CEI Appeal of the Decision of the ALJ ("FERC Opinion").
The FERC affirmed the ALJ with the following exceptions:
It required incorporation of -language consistent with the portion of license condition 3 concerning curtailment and it required CEI to make provision for disclosed future transmis-sion needs of entities using wheeling services. 5/
l i
5/ FERC included the caveat that if CEI does make provision Tor an entity's future transmission needs, that entity should be obligated to use the transmission or compensate CEI for it..-
On May 13, 1980,.despite the May 5 issuance of the FERC Opinion, the NRC issued.an Order Further Modifying Order of June 25, 1979.
The May 13 Order required CEI to file a tariff which is inconsistent with and weakens the antitrust relief contained in license condition 3, and which contained language which the FERC ALJ and the FERC itself had found to be violative of the FPA.
The Department. contends that the May 13 Order is not adequate to remedy the antitrust violations and situation inconsistent with the antitrust laws that the NRC found based upon the evidence presented in this proceeding.
Specifically, the May 13 Order requires CEI to file a tariff that contains language which constitutes CEI as the " sole judge" and affords it " sole judgment" and " sole discretion" in matters concerning the availability of the services under the tariff.
'.his language was explicitly disapproved by the FERC ALJ and the Commission (FERC Opinion at 3).
- Moreover, the " sole judge" language was specifically cited in the NRC Notice of Violation (June 28, 1978) as violating license f
condition 3 and being " unreasonable and tantamount to a refusal to wheel" (Notice of Violation at 3).
The tariff contained in the May 13 Order also includes a provision that "Nothing herein shall be construed as requiring CEI to enlarge its facilities to transmit such [ wheeled] power
-[for a customer]."
This provision directly contradicts i
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' license condition 3 which requires CEI to plan for a customer's disclosed future transmission needs and contra-dicts the decisions of the FERC ALJ and the FERC itself.
The May 13 Order also stated that further action or modification of license condition 3 may be required at a later date depending on the final decision of the FERC.
Since the FERC has now issued an Opinion disapproving some of the language incorporated in the tariff contained in the May 13, 1980 Order, it would be appropriate for the NRC to modify that Order so that CEI is not required to file a tariff that has been found to be inconsistent with the Federal Power Act.
This would not be an abdication by the NRC of its duty to enforce its license conditions because the FERC mandated tariff is not only consistent with, but also supports, that license condition by ensuring that CEI will provide wheeling services in a fair and nondiscriminatory manner.
As we noted in our Comments of September 13, 1979, both the FERC and the NRC have jurisdiction over certain of the activities of electric utilities.
Each agency must act in a manner consistent with its statutory responsibilities.
This was recognized by the Appeal Board when it included the following statement at the end of the license conditions:
The above conditions are to be implemented in a manner consistent with the provisions of the Federal Power Act and all rates, charges, or practices in connection' therewith are to be subject to the approval of regulatory agencies '
having jurisdiction over them.
Appeal Board Decision, ALAB-560 (September 6, 1979) Slip Opin. at 64.
Since FERC has already specified the tariff that CEI must file in order to comply with the FPA, and since the FERC-ordered tariff is consistent with the NRC's license condition 3, the NRC should refrain from modifying its license conditions to permit CEI to file a tariff that would not. simultaneously satisfy the FPA and the Atomic Energy Act. 1/
It would thus be appropriate for the NRC to require CEI to file a wheeling tariff consistent with the NRC imposed license conditions and with the Federal Power Act, and not to allow CEI to file a tariff which has been found to violate the Federal Power Act.
If the NRC does not choose to modify its May 13, 1980 Order, as requested herein, the Department requests a hearing on the May 13, Order as required by 189(a) of the Atomic Energy Act [42 U.S.C. $ 2239(a)]).
1/
By entering an order reinstating the initial license conditions, the NRC would avoid a needless jurisdictional conflict between the NRC and FERC.
It is, of course, incumbent'upon agencies to avoid such conflicts where this can be achieved without either agency abdicating its-respec-tive statutory responsibilities.
As argued in the text, a jurisdictional _ conflict can be avoided here without either agency transgressing its statutory duties.
Therefore, for - the reasons stated above, the Department requests the NRC to modify the May 13 Order in the manner outlined above, or, in the alternative, to conduct a hearing on the May 13 Order as required by Section 189(a) of the Atomic' Energy Act [42 U.S.C. I 2239(a)].
Respectfully submitted,
!N
[fanet R. Urban v Attorney, Department of Justice d
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CERTIFICATE OF SERVICE e
I hereby certify that I have this day served a copy of' the Motion for Modification of the Order of May 13, 1980 or in the Alternative for a Hearing upon the parties listed on the attachment via first class mail, postage prepaid this 9th day of June 1980.
Y YL M ganet R. Urban ~
Mttorney United States Department of Justice Attachment 1
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ATTACHMENT Mr.. Harold R. Denton Frank R.
Clokey, Esq.
Director, Office of Nuclear Special Assistant Attorney Reactor Regulation General Nuclear Regulatory Towne House Apartments,.
Commission Room 219 1717 H Street, N.W.
Harrisburg, Pennsylvania 17105 Washington, D.C.
20006 Edwa rd A. Matto, Esq.
Douglas V.
Rigler, Esq.
Karen H.
Adkins, Esq.
Foley, Lardner, Hollabaugh Richard M.
Firestone, Esq.
and Jacobs Assistant Attorney General 815 Connecticut Avenue, N.W.
Chief, Antitrust Section Washington, D.C.
20006 30 East Broad Street, 15th Floor Columbus, Ohio 43215 Alan S.
Rosenthal, Chairma n Atomic Safety and Licensing Christopher R.
Schraff, Esq.
Appeal Board Assistant Attorney General U.S. Nuclear Regulatory Environmental Law Section Commission 361 East Broad Street, 8th Floor Washington, D.C.
20555 Columbus, Ohio 43215 Richard S.
Salzman Ivan W.
Smith, Esq.
Jerome E.
Shar fma n John M.
Frysiak, Esq.
Atomic Safety and Licensing Atomic Safety and Licensing Appeal Board Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Howard K.
Shapar, Esq.
Atomic Safety and Licensing Executive Legal Director Appeal Board Panel 3
U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C.
20555 Washington, D.C.
20555 Mr. Frank W. Ka ras, Chief Joseph Rutberg, Esq.
Public Proceedings Branch Jack R. Goldberg, Esq.
Office of the Secretary Office of the Executive Legal j
U.S. Nuclear Regulatory Director
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Commission U.S.
Nuclear Regulatory
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Washington, D.C. 20555 Commission Washington, D.C.
20555 Abraham Braitman, Esq.
Of fice of Antitrnst Indemnity Benjamin H. Vogler, Esq.
U.S. Nuclear Regulatory Roy P.
- Lessy, Jr.,
Esq.
Commission Office of the General Counsel Washington, D.C.
20555 Regulation U.S. Nuclear Regulatory Commission Washington, D.C.
20555
Reuben Goldberg, Esq.
Terrence H. - Benbow, Esq.
Goldberg, Fieldman &
Steven B.
Peri, Esq.
Hjelmfelt Winthrop, Stimson, Putnam Suite 650
& Roberts 1700 Pe;nsylvania Avenue, N.W.
40 Wall Street Washington, D.C.
20006 New York, New York 10005 Russell J.
Spetrino, Esq.
Alan P.
Buchmann, Esq.
Thomas A. Kayuha, Esq.
Squire, Sanders & Dempsey Ohio Edison Company 1800 Union Commerce Building 47 North Main Street Cleveland, Ohio 44115 Akron, Ohio 44308 Leslie Henry, Esq.
John Lansdale, Jr., Esq.
Michael M.
Briley, Esq.
Cox, Langford & Brown Roger P.
Klee, Esq.
21 Dupont Circle, N.W.
Fuller, Henry, Hodge & Snyder Washington, D.C.
20036 Post Office Box 2088 Toledo, Ohio 43604 Richard A.
Miller, Esq.
Vice President and General James R.
Edgerly, Esq.
Counsel Secretary and General Counsel The Cleveland Electric Pennsylvania Power Company Illuminating Co.
One East Washington Street Post Office Box 5000 New Castle, Pennsylvania 16103 Cleveland, Ohio 44101 Donald H.
Hauser, Esq.
Gerald Charnoff, Esq.
Victor A. Greenslade, Jr.,
Esq.
Wm. Bradford Reynolds, Esq.
The Cleveland Electric Robert E.
Zahler, Esq.
Illuminating Co.
Jay H.
Bernstein, Esq.
Post Office Box 5000 Shaw, Pittman, Potts Cleveland, Ohio 44101
& Trowbridge 1800 M Street, N.W.
Thoma s J. Munsch, Jr.,
Esq.
Washington, D.C.
20036 General Attorney Duquesne Light Company Atomic Safety and Licensing 435 Sixth Avenue Board Panel Pittsburgh, Pennsylvania 15219 U.S.
Nuclear Regulatory Commission Docketing and Service Station Washington, D.C.
20555 Office of the Secretary U.S. Nuclear Regulatory Commission David McNeill Olds, Esq.
Washington, D.C.
20555 William S.
Lerach, Esq.
Reed, Smith, Shaw & McClay Joseph A.
Rieser, Esq.
Post Office Box 2009 Reed, Smith, Shaw & McClay Pittsburgh, Pennsylvania 15230 1150 Connecticut Avenue, N.W.
Washington, D.C.
20036 David C.'Hjemfelt
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1967 Sandalwood Fort Collins, Colorado 80526