ML19312B830

Answer to Duke Power Co Motion to Dismiss or Reject Util Application to Acquire,Own & Use 4% Undivided Interest in Facility

ML19312B830
Person / Time
Site:	Oconee
Issue date:	10/13/1967
From:	Harris J, Reeder S, Tally J PIEDMONT CITIES POWER SUPPLY, INC.
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7911210800
Download: ML19312B830 (7)

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SEFDRE UNITED STATES ATOIEC ENERGY COICfISSION DOCKER NO.

In the Matter of PIEDMONT CITIES POWER SUPPLY, INC.

Application for Licenses Under the Atomic Energy Act of 195'+

As Amended To Acquire, Own, and Use a 14(o Undivided Interest, as Tenant in Common, Without Right of Partition in Three Nuclear Pressurized Water Type Reactors, to be located at the Oconee Nuclear Station, Units 1, 2, and 3, Oconee County, South Carolina, and to be Designed, Constructed and Operated by Duke Power Company, Contin 6ent upon the Issuance of Lawful Licenses therefor by the Atom

• c Energy Commission Upon the filing of a lawful application therefor by Duke ANSJER OF PIEDF.ONT CITIES PCWER SUPPLY, INC.,

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" MOTION OF DUKE POW'M COMPANY TO DISMISS APPLICATION OR J REJECT SA'S FOR FILING" Jack R. Harris Suite 207 - Stimpson-Wagner Building Statesville, North Carolina l l

J. O. Tally, Jr. l P. O. Drawer 1660 {

Fayetteville, North Carolina l l

Spencer W. Reeder Spencer Building St. Michaels, Maryland i

Attorneys for Piedmont Cities Fh@

\' Power Supply, Inc.

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J SEF0i2 THE UNITED STATES ATOMIC ENERGY COMMISSION DOCKET NO.

In the Matter of PIEDtDNT CITIES POWER SUPPLY, INC.

Application for Licenses Under the Atomic Energy Act of 1954 4 As Anended I To Acquire, Own, and w.se a 4% Undivided Interost, as Tenant in Common, l Without Right of Partition in Three Nuclear Pressurized Water i Type Reactors, to be located at the Oconee Nuclear Station.

Units 1, 2 and 3, Oconee County, South Carolina., and to be Designed, Constructed and Operated by Duke Power Company, Contingent upon the Issuanco of Lawful Licenses therefor by the Atomic Energy Commission Upon the filing of a lawful application therefor by Duke ANSklER OF PIEDMONT CITIES PCWER SUPPLY, INC. ,

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"}DTION OF DUKE POWER COMPANY TO DISMISS APPLICATION OR REJECT SAME FOR FILING I.

Duke's Claim that Piedmontis Anolication is a " Dilatory Tactic".

The only dilatory tactic in this proceeding is Luke's failure to apply for a lawful conmercial license under Section 103 of the Act for the Oconee Nuclear Station, Units 1, 2 and 3 The hearing in Docket Nos. 269,270and2$7isnowconcludedandthe only finding of jurisdictional fact, conclusion of law, and order which can be made upon the record therein, relating to Duke's Application for license under Section 104(b) of the Act, must be:

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.J Findinc of Fact )

Applicant, Duke Power Company, has not sustained its jurisdie-tional burden imposed by the Administrative Procedure Act.

Section 7 (5 USC Sec. 1006), of proving that the Pressurized Uater Type of Reactor to be employed by Drke in each of the three units of the propo. sed Oconco Nuclear Statica is (1) a Research and Development utilization facil;',y and (2) of a type which does not have practical value foc commercial pur-poses.

Conclusion of Law The Commission is without jurisdiction under Section 104(b)

of the Atomic Energy Act of 1954, as amended, to grant to

Duke Power Company Research and Developmont licenses (including a construction permit) "to construct, own, use, and operate" for forty years the three Pressurized Water Type Reactors which Duke proposed to employ in the Oconoe Nuclear Station Units 1 j '] 2 and 3. -

I ORDER The application of Duke Power Company for licenses (licenses for forty years) under the Atomic Energy Act of 1954, as amended, which is specifically for Research and Development Licenses (including a construction permit), applied for under

" ction 104(b) of the Act, "to construct, own, use and operate the utiliestion facilities horeinafter described as an integral part of the nuclear generation plant to be located in Oconee County, Scuth Carolina, and to be known as the Oconee Nuclear Station", consisting of three Pressurized Water Type Reactors and appurtenant facilities, is hereby denied, for lack of jurisdiction.

7 Far from being a " dilatory tactic", Piedmont 8 s Application herein filed

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under Section 103 of the Act, is a design to expedite the grant of valid cocmercial licenses under Section 103.

II.

Duke's Claim that the Conmission has no Jurisdiction under Section 103 of the Act to Grant Piednont a License "to own and use" Ocenee or any cart thereof whila cantinz to Duke, Under Section 103, a License to Construct and Orerate, Assumine Duke Files a Lawful Aeolication Undar Section 103, j Duke's clain in this regard is in the teeth of the statute.

.To avoid creation of a vast private monopoly of atomic power, the Congress, under Scetion 103 of the Act, gives the Cor:.niscion jurisdiction to licence the

{ acquisition, ownersnip and use, either in whole or in part, separate and apart

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from the construction and operation of utilization facilities, the lan-guage of Section 103 being in the disjunctive.

Section 103 in pertinont part provides:

"Sec.103. (42 USC Sec. 2133) Comercial Licences

a. Subsequent to a finding by the Commission as required in Section 102 (42 U.S.C. Sec. 2132), the Commission may issue licenses to transfer or receive in interstate comnerce, manufacture, produce, transfer, acquire, possess, use, import, or export under the terms of an agreement for coope-ration arranged pursuant to Section 123, (42 U.3.C. Sec. 2153), such type of utilization or production facility."

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The Atomic Energy Act of 1954, as amended, was not passed for the bene-fit of the privately-owned electric utilities. It was not passed for the benefit of the municipally-owned or cooperatively-owned utilities. It was passed to bring the benefits of the peaceful atom to all the people of the United States, i.e. , the ultimate consumers of nuclear electric power, whcther residential, commercial, or industrial.

Under Section 103 of the Act, the Commission has plenary power, jurisdiction and authority to grant a license to cwn and use apart from the license to construct and operate the entire Oconee Nuclear Station, Units 1, 2 and 3, to Piedmont, a non-profit public purpose corporation, to accure the sale of nuclear electric onorgy at cost not only to the eleven Piedmont cities which are the sponsors, though not the owners of Piedmont, but also to all the other cities and REA cooperatives which buy from Duke at wholesale, in both North Carolina and South Carolina, and to the Duke Power Company itself, for the benefit of all the ultimate consumers, domestic, commercial and industrial.

A fortiori, the Commission has jurisdiction to license the right to l '

cun and use only 4% of the proposed Oconee Nuclear Station under Section

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l J J 103 of the Act, apart from the right to construct, operate, own, and use the greater part of the station, to Piedmont Cities Power Supply, Inc. , l l

which so long as it is sponso, red by only 11 North Carolina Piedmont Cities and Towns, has asked for nothing more. l But, let no-one be misled by the miniscule character of Piedmont's i

t request. These 11 Piedmont Cities and Towns have raised here a banner for service-at.-cost from the commercial nuclear stations licensed by the Atomic Energy Commission to use the nuclear natural resource which is the heritage l and the property of all the people of the United States, around which all the j ultimate consumers, residential, commercial, and industrial served by Duke f

f' in both North Carolina and South Carolina, (which is a high cost power area compar<d with the territory served with TVA bulk power, for example) can rally.

III.

Duke's Cla.im that Piednont is only a " Parer Corcoration", seeking a license to own and use for tho exclusive benefit of its cconsors, the 11 North Carolina p

" Piecnont Electric Cities, and to the detriment of Duke's other wholesale and retail customers.

The Application herein is designed to save Piedmont's sponsors, the 11 Piedmont Cities of North Carolina, approximately $1,500,000 a year, or

$60,000,000 over the 40 year Commercial License period.

But Piedmont seeks no exclusive benefit for anybody. Piedmont's charter poucrs are sufficiently broad to enable it to accept a license to own, and use the entire proposed Oconee Nuclear Station, Units 1, 2 and 3, for the benefit of all the ultimate consumers served by Duke, indirectly at whole-sale and directly at retail, with the construction and operation to be l

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handled wholly by Duke as a means of enabling it to cut all its rates both wholesale and retail to n.eet the competition of low-cost power areas which are threatening the Piednent with loss of industry and population under Duke's existing formula of rate-fixing-cost plus a fat private nonopoly profit. The Columbia Storage Power Exchange financing of a

$314,000,000 precursor of this case, has shown the way, and now has three f years of history behind it. (See Piedmont's Application Ex. D)

If Duke, as private power, really wishes to cooperate with municipal s posir and co-operative power for the benefit of all the ultimate consumers

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, .erved by each, Piednont challenges Duke to abandon its present grab for i private monopoly power - the boldest since Dixon-Yates - and sit down with us to achieve for nuclear power in the Carolinas what Columbia i

i Power Storage Exchange has achieved for hydro-power for the benefit of

! the public in the Pacific Northwest.

Further, Applicant caith not.

)Respectfullysubmitted,

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Suite 207 - atimp n4Tagner Building tatesville, North Carolina Gj, O. Ta11, 7 Jr. 9 '

l P. O. Drawer 1660 - l Fayetteville, N rth C ina )

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'S, cer FT. Reeder Sponcer Building St. Fichaels, Maryland Attorneys for Piedmont Cities Power Supply, Inc.

Dated: October 13, 1967

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VERIFICATION DISTRICT OF COLG SIA SS:

SPENCIR W. REEDER, being first duly sworn, states that he is an attornoy duly admitted to the practice of law in Maryland, the United States, Ohio, New York, and the District of Columbia; that he has been' employed as Special Counsel by Applicant herein; that he has read the 1

foregoing documant and knows the contents thereof; that he has sub-scribed and executed said document as a duly authorized attorney for P.C.P.S., Inc.; that he has been duly authorized by P.C.P.S. , Inc. , to file the aforesaid document; and that the contents thereof are true and correct.

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-.ve w a b oJ Spencer W. Re'eder l

, Subscribed and sworn to before me, a Notary Public of the District of Columbia, this 13th day of October,1967.

s/ Barbara M. Wilson Notary Public My commission expires:

May 31, 1970 (SEAL)

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