ML19317E319

Answer of Duke Power Co in Opposition to Petitions by Intervenors & by Piedmont Cities Power Supply,Inc,For Reconsideration of Final AEC Decision & Request for Oral Argument.Certificate of Svc Encl

ML19317E319
Person / Time
Site:	Oconee
Issue date:	01/18/1968
From:	Grigg W, Horn C, Snapp R DUKE POWER CO.
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912170543
Download: ML19317E319 (5)

Text

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UNITED STATES OF AMERICA dME~

ATOMIC ENERGY COMMISSION

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IN THE MATTER OF )

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DUKE POWER COMPANY ) II/8 f,/.

) DOCKET NOS., 50-269 (OCONEE NUCLEAR STATION ) 5<

) 50-287 UNITS 1, 2 AND 3) )

ANSWER OF DUKE POWER COMPANY IN OPPOSITION TO PETITIONS BY INTERVENORS AND BY PIEDMONT CITIES POWER SUPPLY, INC. , FOR RECONSIDERATION OF FINAL DECISION OF THE ATOMIC ENERGY COMMISSION Duke Power Company Answering Both the Intervenors' Petition for Reconsideration of the Final Decision of the Atomic Energy Commission and Request for Oral Argument, and the petition of Piedmont Cities Power Supply, Inc. , to the same effect, says:

1. Both Petitions for Reconsideration simply repeat the same exceptions and the same grounds therefor which the Intervenors and Piedmont Cities Power Supply, Inc. , set forth in their Exceptions to the Initial Decision. All of the arguments made in the Petition for Reconsidera-tion of the Final Decision have already been considered by the Commission when it passed upon the Intervenors' and Piedmont Cities Power Supply, Inc. 's Exceptions to the Initial Decision.

2. The only new matter in either Petition for Reconsideration of the Final Decision is ground 5), pages 10 through 12, of the Intervenors' g /AI70 W !

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Petition for Reconsideration. Here the Intervenors except for the first time to the Commission's alleged "failing to take into consideration antitrust aspects in the total of its licensing responsibilities". The Intervenors' Exceptions to the Initial Decision contain no such exception.

Nor did the Exceptions to the Initial Decision contain any exception to the dismissal by the Atomic Safety and Licensing Board of the protest filed by the eleven North Carolina cities (the Intervenors) on July 25, which protest was based upon antitrust grounds. It is submitted that this exception cannot be taken for the first time on Petition for Reconsi-deration of the Commission's Final Decision.

Furthermore, the sections of the Atomic Energy Act cited in ground 5) of the Intervenors' Petition for Reconsideration, particularly Section 105, make it clear that in a proceeding for construction permits and cperating licenses under Section 104 b of the Act the Commission has no authority to deny or condition the issuance of such permits or licenses based upon antitrust allegations in the absence of a finding by a court of competent jurisdiction that Federal antitrust laws have in fact been violated by the licensee. Section 7 (c) of the Atomic Energy Act of 1946 required the Commission to consider antitrust issues in licensing matters, but this provision was excluded from the Atomic Energy Act of i

1954. Nothing in the Commission's final decision purports to impair in any way the jurisdiction of the Department of Justice over antitrust

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matters or over activities of the licensee.

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The Intervenors have tried to equate the Atomic Energy Commission (AEC) with the Securities and Exchange Commission (SEC) solely on the basis that they are both regulatory agencies and cite Securities and Exchange Com-mission v. New England Electric System, 384 U. S.176,183-185 (1966) as authority. The Intervenors assume that since the SEC has the power of decision in certain antitrust matters the AEC has also. The contrary is the case. The SEC has specific statutory authority in antitrust matters granted to it by the Public Utility Holding Company Act of 1935 which is not granted the AEC by the by the Atomic Energy Act. In this regard the AEC resembles such agencies as the Federal Power Commission and the Federal Communications Commission which do not have the power of decision in antitrust cases and where antitrust matters remain the responsibility of the Department of Justice.

3. For the reasons stated above, oral argument on the Petitions for Reconsideration of the Final Deci.sion would serve no useful purpose. It is respectfully requested that the Commission in its discretion deny the Request for Oral Argument, as it did the Request for Oral Argument on the Exceptions to the Initial Decision.

In conclusion, it is respectfully submitted that both Petitions for Recon-sideration of the Final Decision and both Requests for Oral Argument should be denied.

Respectfully submitted, DUKE POWER COMPANY By its ttorn ys-NA fdh,bj

Carl Horn,Jf -

, i JA{ h b-H Wi ia H' This 18th day of January,1968 '

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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION IN THE MATTER OF )

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DUKE POWER COMPANY )

) DOCKET NOS. 50-269 (OCONEE NUCLEAR STATION, ) 50-270

) 50-287 UNITS 1, 2 AND 3) )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing document dated January 18, 1968, were served upon the following by deposit in the United States Mail, First Class, this the 18th day of January 1968:

Honorable Glenn T. Seaborg, Chairman United States Atomic Energy Commission Washington, D. C.

Honorable Gerald F. Tape, Member United States Atomic Energy Commission Washington, D. C.

Honorable James T. Ramey, Member United States Atomic Energy Commission Washington, D. C.

Honorable Wilfried E. Johnson, Member United States Atomic Energy Commission Washington, D. C.

Samuel Jensch, Esquire, Chairman, Atomic Safety and Licensing Board, United States Atomic Energy Commission, 4

Washington, D. C.

Dr. Hugh Paxton Los Alamos Scientific Laboratory Los Alamos, New Mexico

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Dr. John Henry Buck Jack R. Harris, The Budd Company Suite 207, Phoenixville, Pennsylvania Stimpson-Wagner Building .'

Statesville, N. C.

Dr. Clarke Williams, Deputy Director, J. O. Tally, Jr. ,

Brookhaven National Laboratory P. O. Drawer 1660 Upton, Long Island, New York Fayetteville, N. C.

Reece A. Hubbard County. Supervisor Oconee County, South Carolina Honorable Dan K. Moore, Governor of State of North Carolina Capitol Building

. Raleigh, North Carolina.

Algie A. Wells, Chairman, Atomic Safety and Licensing Board Panel, United States Atomic Energy Commission Washington, D. C. 20545 Honorable Robert McNair, Governor of the State of South Carolina, State House, Columbia, South Carolina Stanley T. Robinson, Jr. ,

Chief Public Proceedings Branch Office of the Secretary United States Atomic Energy Commission Washington, D. C. 20545 Thomas F. Engelhardt, Trial Counsel, Atomic Energy Commission Regulatory Station United States Atomic Energy Commission, Washington, D. C. 20545 Harry M. Lightsey, Jr. ,

Assistant Attorney General The South Carolina Public Service Commission 325 Hampton State Office Building Columbia, South Carolina s/ Carl Horn, Jr.

Carl Horn, Jr. ,

Attorney for Duke Power Company P. O. Box 2178 Charl.otte, N. C. 28201 m-

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IN THE MATTER OF ) 4

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ANSWER OF DUKE POWER COMPANY IN OPPOSITION TO PETITIONS BY INTERVENORS AND BY PIEDMONT CITIES POWER SUPPLY, INC. , FOR RECONSIDERATION OF FINAL DECISION OF THE ATOMIC ENERGY COMMISSION Duke Power Company Answering Both the Intervenors' Petition for Reconsideration of the Final Decision of the Atomic Energy Commission and Request for Oral Argument, and the petition of Piedmont Cities Power Supply, Inc. , to the same effect, says:

1. Both Petitions for Reconsideration si.aply repeat the same exceptions and the same grounds therefor which the Intervenors and Piedmont Cities Power Supply, Inc. , set forth in their Exceptions to the Initial Decision. All of the arguments made in the Petition for Reconsidera-l tion of the Final Decision have already been considered by the Commission when it passed upon the Intervenors' and Piedmont Cities Power Supply, Inc. 's Exceptions to the Initial Decision.

2. The only new matter in either Petition for Reconsideration of the Final Decision is ground 5), pages 10 through 12, of the Intervenors' y .A-

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2-Petition for Reconsideration. Here the Intervenors except for the first time to the Commission's alleged "failing to take into consideration antitrust aspects in the total of its licensing responsibilities". The Intervenors' Exceptions to the Initial Decision contain no such exception.

Nor did the Exceptions to the Initial Decision contain any exception to the dismissal by the Atomic Safety and Licensing Board of the protest filed by the eleven North Carolina cities (the Intervenors) on July 25, which protest was based upon antitrust grounds. It is submitted that this exception cannot be taken for the first time on Petition for Reconsi-deration of the Commission's Final Decision.

Furthermore, the sections of the Atomic EnerEy Act cited in ground 5) of the Intervenors' Petition for Reconsideration, particularly Section 105, make it clear that in a proceeding for construction permits and operating licenses under Section 104 b of the Act the Commission has no authority to deny or condition the issuance of such permits or licenses based upon antitrust allegations in the absence of a finding by a court of competent jurisdiction that Federal antitrust laws have in fact been violated by the licensee. Section 7 (c) of the Atomic Energy Act of 1946 required the Commission to consider antitrust issues in licensing matters, but this provision was excluded from the Atomic Energy Act of 1954. Nothing in the Commission's final decision purports to impair in any way the juris' diction of the Department of Justice over antitrust matters or over activities of the licensee.

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The Intervenors have tried to equate the Atomic Energy Commission (AEC) with the Securities and Exchange Commission (SEC) solely on the basis that they are both regulatory agencies and cite Securities and Exchange Com-mission v. New England Electric System, 384 U. S.176,183-185 (1966) is authority. The Intervenors assume that since the SEC has the power of decision _

in certain antitrust matters the AEC has also. The contrary is the case. The SEC has specific statutory authority in antitrust matters granted to it by the Public Utility Holding Company Act of 1935 which is not granted the AEC by the by the Atomic Energy Act. In this regard the AEC resembles such agencies as the Federal Power Commission and the Federal Communications Commission which do not have the power of decision in antitrust cases and where antitrust matters remain the responsibility of the Department of Justice.

3 For the reasons stated above, oral argument on the Petitions for Reconsideration of the Final Decision would serve no useful purpose. It is respectfully requested that the Commission in its discretion deny the Request for Oral Argument, as it did the Request for Oral Argument on the Exceptions to the Initial Decision.

In conclusion, it is respectfully submitted that both Petitions for Recon-sideration of the Final Decision and both Requests for Oral Argument should be denied.

I Respectfully submitted, DUKE POWER COMPANY By its ttorn ys-h f// '/

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Wi lia H This 18th day of January,1968 '

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