ML19326D392

Errata to CPC Proposed Findings of Fact & Conclusions of Law & Brief Supporting Proposed Finding & Conclusions

ML19326D392
Person / Time
Site:	Midland
Issue date:	10/11/1974
From:	Watson K CONSUMERS ENERGY CO. (FORMERLY CONSUMERS POWER CO.), WALD, HARKRADER & ROSS
To:
References
NUDOCS 8006110405
Download: ML19326D392 (12)

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P00R QlfAl.lTY PAGES , ,

BEFORE THE

!f t::9" g OCT 13 E7F' G ATOMIC ENERGY COMMISSION -

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.:: S In the Matter of ) g

) , w CONSUMERS POWER COMPANY ) Docket Nos 50-329A_

) and 50-330A (Midland Plant, Units 1 and 2) )

ERRATA TO CONSUMERS POWER COMPANY'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AND BRIEF IN SUPPORT OF ITS PROPOSED FINDINGS OF FACT AND cot:CLUSIONS OF LAW Consumers Power Company submits the following cor ~

rections to its filing of October 8, 1974, in the above-captioned

, proceeding:

PROPOSED FINDINGS OF FACT AND. CONCLUSIONS OF LAW

1. The sentence beginning at the tenth line on page 10, which now reads:

However, not all retail rates of the cooperatives' retail rates are equal to or below the Company's.

should read: .

.However, r.ot all of the cooperatives' retail rates are equial to or below the Company's.

2. The citation beginning on the twenty-fourth line of page 49, which now reads:

. . . see also Attorney General's advice letter, August 16, 1971, Detroit Edison Co., (Enrico Fermi Unit 2), Dkt.

No. 50-461A and 50-462A, g Fed. Reg. 15899 (May 6, 1974)].

should read:

.. . see also Attorney General's advice letter, August 16, 1971, Detroit Edison Co., (Enrico Fermi Unit 2), Dkt.

No. 50-461A and 50-462A, 3 Fed. Reg. 17883 _(1971).

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3. Pages 93 and 94 are numbered incorrectly and are in reversed order.

Page 93,should follow g M.

BRIEF IN SUPPORT OF ITS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW

l. .A substitute page 81 is' attached to this Errata.

2. The sentence. beginning on line 10 of page 101, which now reads: .

For example, in the areas immediately outside of the I boundaries of the various municipalities which operate their own systems there is some duplication of facilities but, except but the areas surrounding Bay City and Traverse City, the num-ber of retail power purchasers who have a choice of electric suppliers is very small.5J/

should read:

For example, in the areas immediately outside of the boundaries of.the various municipalities which operate their own systems there is some duplication of facilities but, except for the areas surrounding Bay City and Traverse City, the number of retail power purchasers who have a choice of electric suppliers is very small.53/

3. The sentence beginning on the second line of page 108 which now reads:

Although in one portion of thic closed market, there is no possibility of the present supplier being replaced in the remaining areas, there is some possibility that retail p5wer purchasers may have a choice of suppliers in the long run..

. should read:

Although in one portion of this_ closed market there i is no possibility of the present supplier being replaceh in' the remaining areas.there is some possibility that retail power purchasers may have a choice of suppliers in the long run. -

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4. The sentence begi aning on the first line of page l

113 which new reads: ,

the relevant As we demonstrate below, however n J markets are defined in this proceeding, the Company cannot be deemed to possess monopoly power because governmental regulatory authorities prevent the Company, as a matter of l law, from controlling prices or excluding competition in either the retail power or bulk power markets.

should read:

As we demonstrate below, however the relevant markets d i,

are defined in this pr'oceeding,from thecontrolling Company cannot ties prevent the Company, as a matter of law, prices or excluding competition in either the retail power or  :

bulk power markets.

5. The sentence beginning on the ninth line of page I

• 120, which now reads:

Among the laws which deny the Company the of ability the to exclude other systems from its area is Section 202(b)

Federal 35/- interconn tion of twoPower Act authorizes electric suppliers the FPC for bulk power supplyto order the purposes.

should read:

Among the laws which deny the Company the of ability the to exclude other systems from its area is Section 202(b)

Federal connectionPower Act which of two electric authorizes suppliers thesupply for bulk power FPC to order the in purposes.35/

6. The sentence beginning on the fourth line of page i 126 which now reads:

527 (1948),

In United States v. Columbia Steel Co. , 334 U.S market place was identified __ a necessary consideration in gauging whether a company with a high market share has acquired monopoly ,

Power. 6/

should read:

U.S. 495, j In United States v. Columbia Steel Co. h r firms , 334 in evaluation of the " strength" of the ot ey consideration in 527 (1948), - h re has acquired the market place was identified as a necessargal i

monopoly power.46/  !

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7. The sentence beginning on the third line of page 174 which now reads:

This case '. svolved an effort by largo mine operators and union officials to influence the Secretary of Labor to prescribe minimum wages for companies selling coal to the Tennessee

. Valley Authority on long-term contracts, an action which would have the effect of driving smaller coal opezators out of business.

should read: ,

This case involved an e5 fort by large mine operators and union officials to influence the Secretary of Labor to pre-scribe minimum wages for companies selling coal to the Tennessee Valley Authority on long-term contracts, an action which would have had.the effect of driving smaller coal operators out of business. ,

8. .The sentence beginning on the sixth line of page 175 which now reads:

In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (197 2) , the protection afforded advocacy with respect to the passage and enforcement of laws before legislature and the executive branch was extended to encompass advocacy in the context of adjudications before both courts and administrative agencies.

should read:

In California Motor Transport Co. v. Truckino Unlimited, 404 U.S. 508 (1972) , the protection afforded advocacy with respect to the passage and enforcement of laws before legislatures and the exeGT:ive branch was extended to encompass advocacy in the con-text of adjudications before both courts and administrative agencies.

9. The second sentence in footnote 28 on page 223, which now reads:

This is particularly the case, inasmuch the plant was sized in 1967, and no demand for access was receive 3 prior to the in'itiation of this proceeding.

should read: .

This is particularly the case, inasmuch as the plant was sized in 1967, and no demand for access was received prior to the initiation of this proceeding.

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The sentence beginning on the fou-th line on page 229 which now reads:

' Typically, su~ch arrangements contain agreements'to operate in parallel, to exchange emergency capacity energy rnd to maintain certain reserve capacity levels.g/  !

should read:

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Typically, such arrangements contain agreements to l operate in parallel, to exchange ' emergency capacity and energy I and to maintain certain reserve capacity levels. H/

Respectfully submitted,. ,

. . l Keith S. Watsen Attorney for Censumers Power Company WALD, HARKRADER & ROSS 1320 Nineteenth Street, N.W.

Washington, D. C. 20036 October 11, 1974

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market should be analyzed with regard to three distinct geographic l "

, areas within and adjacent to the Company's service area. ,

According to the Suoreme Court, the criteria used in "essen-defining the relevant product and geographic markets are tially similar"; i.e.,

both must correspond to " commercial real-1/ Thas, as the Court emphasized, these definitions are ities".

not " formal" or " legalistic"; rather,'the antitrust laws pre-In the following 'sec-scribe "a pragmatic , factual aoproach".

tions, we set ' f o r th the applicable principles of relevar; mar- .

• -ket definition, with regard to the bulk power and retail power

• markets, and then apply those principles to the f acts of the i

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'.. instant case.

l A. Bulk Power Market. t to There is only a single bulk power market relevant this proceeding: that market in which the Company's small neighbors look for their bulk power supply requirements. By contrast, we  !

understand the Department of Justice to contend that coordination -

power transmitted in the contwxt of coordination arrangements is a separate product which is not part of the bulk power market and that the Company's bulk power requirements should be included

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I within that market. As shown more , fully below, the Department's

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position cannot be reconciled with basic principles of antitrust I law or with the " commercial realities" of bulk power supply in ,

336-37 (1962),

3/ Brown Shoe Co. v. United States, 370 U.S. 294, t

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Enclosure No. 2 to Brief and Pronosed Findines of Fact of the Unitec State:

- Department of Justice l

1 CONSUMERS POWER COMPANY i ' Midland Units 1 and 2 j AEC Docket Nos. ^^ '?9A and 50-330A j CORRECTIONS IN TRANSCRIPT j Page Line Correction

828 16 "vionte-the-law" should be " violate-the-law" 829 5 "aftertimes" should be " of three kinds" 830 7-8 "did he say?" should be "do- we see?"

830 12 "you present" should be "we present" 830 18 " attempt to monopolize" should be " intent to monopolize" 830 25 " violated anti-trust laws" should be " violate the anti-trust laws" 831 1 "to forward" should be "to go forward" 831 12 "per se" should be "per se" 872 2 " Hood" should "Fbote Act"

! 872 3 " particulars" to "Intervenors" 878 1 "their" should be "those"

! 879 12 " underway cable" should be " underwater cable" i 885 4 "D. G. Campbellton" should be "B. G. Campbell" i 885 22 "as well as Duke" shou'lt be "as well as in Duke" 900 4 Delete "and Materials"; should read " National

' Association of Electric Companics" 900 18 "effect and a small system" should be '"ef f ec t on a small system" t 901 9 "but Dr. Leeds had asked" should be "that Dr. Leeds i had asked"

. 905 2 " training organization" should be " lobbying d#

organization" ,\?yo k\

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Page 2 l Page Line Correction 905 22 " Judge Kline" should be " Judge Clark" 906 21 " inexplicably" should be " inextricably" l 908 15 " industries own power pooling" should be " industries own view of power pooling" 922 5 "Daiber" should be "Daverman"

! 926 6 " Main" should be " Maine" 979 2 "might be elected, or are elected" should be l l

j "might be reluctant, or are reluctant" 1

1076 6 " step-tight" should be " step-type" l 1078 24 " block-tight" should be " block type" l 1078 24 "and separate demand" should be "and no separate i demand" l

l 1145 9 " deal with" should be " dealing with" 1213

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14 "DJ 142" should be "DJ 42" l

l; 1219 21 "128,000" should be "138,000" j 1221 1 " disputed" should be " distributed" i I

! 1241 20, 23, "DJ No. 142" should be "DJ No. 42" l l 25 l

1 j 1242 12, 15 "DJ No. 142" should be "DJ No. 42" i

1329 10 " advanced steam nlant" should be " Advance steam

. plant" -

! 1338 4 "Mr. Powell" should be "Mr. Paul" i

• i 1407 25 " Anderson Electric Institute" sh'ould be " Edison

! Electric Institute" j 1409 2 "665-51" should be "65-51" 1428 17 "it has fallen?" should be "it has fallen out?"

1431 19 " confidences" should be " conferences" 1520 24 Should include "DJ 3" as received into evidence on page 1674. l t

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3 Page Line Correction i

l 1520-A 11, 12, Should exclude DJ 47 through DJ 49 as these, three 1 13 exhibits were received into evidence on Novstber 28, 1973.

Q 1520-A 17-25 Should exclude DJ 53 through DJ 61 as these i exhibits were received into evidence on November 28, 1973.

i 1520-B 2-4 Should exclude DJ 62 through DJ 64 as these exhibits

! were received into evidence on November 28, 1973.

I 1532 12, 14, "Mr. Sanders" should be "Mr. Saunders"

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j 1575 3 "I considered significant" should be "I mentioned considered significant" 1598 22 " planning in training" should be " training in planning"

} 1607 12 " transmitter of data" should be " transmittal of j data" i

1613 11 "those favorable" should be "those unfavorable" m

1639 23 " set off to New York" should be "sent off to Ne9 York" 1670 18 " author of 71" should be " offer of 71" 1674 8 Should exclude DJ 47 through DJ 49 as these three exhibits were received into evidence on November 28,

! 1973.

1674 6 Should include DJ 3 as received into evidence.

1674 8 Should exclude DJ 53 through DJ 64 as these exhibits were received into evidence on i November 28, 1973.

1700 5, 10, " heating" should be " peaking" l 13, 16 1701 10, 13, " heating" should be " peaking" 14 1791 10 "has previously" should be "has not previously" I 1860 1 " location RR" should be " designation RR" la s

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Page 4 Page Line Correction 1870 1 "It's a damage" should be "Can damage" 1870 19 "a lower loading" should be "a low loading" 2101 7 " Borrow Capacity" should be " Boiler Capacity" 2188 10 " Florida Power Commission" should be " Florida Power Corporation" 2235 12 " Embassy Fool" should be !'M-C Pool" 2316 10 "nyoptic" should " myopic" 2395 18 "7070-megawatt" should be "70-megawatt" 2562 20 " outage for availability" should be " outage or availability" 2567 16, 17 "5 percent" and "15 percent" should be "5 megawatts" and "15 megawatts" 2567 20 "33 1/2" should be "33 1/3" 2572 10, 13 " 004" should be ".0004" l

2573 22 " 004" should be ".0004" 2576 18, 19 Question presently reads, "Could you express one day as a percentage of the number of days in 10 years?" Should read, "Could you express a percent-age of time as the number of days in 10 years?"

. 2576 21, 22 Question presently reads, "Could you express one day as a percentage of days in 20 years?" Should read, "Could you express a percentage of time as

- the number of days in 20 years?"

2581 10 "10" should be "2.5" 2608 21 "DJ 16" should be "DJ 17" i 2623 13 "1,381,000.3 megawatts" should be "1,381,300

- megawatts"

! 2624 3 "I would" should be "It would" i i

i 2652 [Something seems to be missing from transcript] l

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! 2654 24 "froming" should be " forming" l l

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j Page Line Correction 1 2669 25 " Commissions" should be " Conditions"

! 2922 9, 13, "Mr. Hoffman" should be "Mr. Helfman"

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.' 2923 6, 10 "Mr. Hoffman" should be "Mr. Helfman"

. 2997 9 Page number 3126 should be listed under column marked "In Evidence" not listed under " Rejected" (DJ-246-A - D) .

3102 9 " Professor Boris' law" should be " Professor Bork's law" 3573 3 "He said it was" should be "He sent us his" 3814 11 "and the Halsey" should be "in the Halsey" 3914 13 "AEC" should be "AEP" 3914 15 "my saying" should be "by saying" 3939 22 "1973" should be "1974" 4031 12 Delete "of Michigan" 4253 21 " Sandra Streigle" should be " Sandra Strebel" l l

4483 3 "50 to 20 percent" should be "15 to 20 percent" l l

4952 2, 3 " Uncertainty Risk in Profit" should be " Uncertainty '

Risk and Profit" 5222 9, 13 " sixteen-minute" should be "60-minute" 5620 18 "PP-1 rate" should be "TP-1 rate" 5621 6 "PP-1 rate!' should be '"TP-1 rate" 5858 23 ',' exceptions" should be " assumptions" 5861 Should be Applicant's Exhibit 12,008, not Intervenor's Exhibit.

5901 14 "in the densely populated areas" should be "in the less densely populated areas" s

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1 7285 17 "a zoned reasonableness" should be "a zone of rea-I sonableness" t

{ 7661 23 "IEA" should be "REA" 7694 14 Add " Journey" after "Drexel" 7697 4 "that was 500 less" should be "that was $500,000 less."

8241 21 " conclude" should be " concluded" -

l 8410 15 "1956" should be "1966" l

8448 21 "DJ Exhibit No. 288" should be "DJ Exhibit No. 228" 8448 21 Page number 8592 should be listed under the l column marked "In Evidence" not listed under j "For Identification" l 1

8592 Should be DJ Exhibit No. 228, not 288. I

! 8710 18 " peak constants" should be "B constants" 8842 10 "the total savings and resources" should be

, "the total savings in resources" i

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