ML19326D434
| ML19326D434 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/08/1975 |
| From: | Bannan C, Leckie D, Levin M JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006110456 | |
| Download: ML19326D434 (12) | |
Text
/'J L.2 V'\\
.T,HIS: DOCUMENT CONTAINS P
P0OR QUAUTY PAGES SW 9 '#.
I:!
A 1-1 UNITED STATES OF AhERICA
\\
c'+','..
/?/
s 6 r
- ./
^
- gy 0
UUCLEAR REGULATORY CO:1:iISSION
.)
... 5-R. e \\ g,
s..a,.
"/
In the Matter of
)
)
1:RC Docket Hos. SQ-329A _
CONSU.iEi!S POWER COMPA!!Y
)
56-aava (Midland Plant, Units 1 and 2
)
EXCEPTIO;;S OF T:iC Di:PART:iEbT OF JUSTICE TO TiiB II:ITIAL Dr.CI510N Pursuant to 10 CPR 2.762, the United States Departi..ont of Juctice hereby takes the following exceptions to the initial decision rendered by the presiding.itomic Safety and Licensing 13oa rd (:oard) on Jaly lo, 19'/5:
1.
The Board erreaeously interpreted Sectica 105(c) of th e Atomic Enetcy Act in all respects. (pp. 31-Gl) 2.
The Board ccroneously failcd to u ke a finding as to whethor Applicent posanned t.:onopoly po. ct and therefore it fc iled to judge Applicant's conduct by'the appropricte 1c g c.1 s ccearcs. (p. 17 E, )
3.
The Ecurd otroneously considered cach allcoation of anti-cc~. pat itive cc:: duct in isolatico and therEfore failed to consider t;hother all of the alleged anticorcpetitive con-duct unen looked ct in its totality, coupled with Applicant's acrket dominance, ccantituted a situation inconsintent uith the antitrust 10..'s. (p. 125) 4.
The 2aard errencously concluded that a no::un betueen the activitics under the Liidland license and occh of Applicant's anticompetitive practicos must be demonstrated. (p.42) 8006110
'h'
5.
The Board erroneously concluded that "a situation incon-sistent with the antitruct laws" means anticompetitive conduct. (pp. 1, 37) 6.
The Board erroneously conclu~ ed' that nexus exists betwoon d
-otherwise lawful activities under a proposed license and a situation inconsistent with the antitrust laws if, and only if, the said activities are misuced so es to be a material element and a substantial factor in a scheme or conspiracy tne purpose or offect of which is to cause the crection or raintencnce of said situation. (pp.
2, 60-61) 7.
The Board erroneously conclu.ded that activitian under a license incace by the Contmission pursaant to statute per sa
' cannot croata or naintcin a' situation inconsistent.with the antitrust laws. (pp.
2, 61) 8.
The Board-errcneously conclude 6.that activitics under a license issued by the Cc:niscion pursuant to ntatuto, can creato or maintain a situation inconsister.t with the anti-truct laus if, and only if, such activitle'c constitute a material elo.T.ent and a Oubst-antial factor in a schem6 or conspiracy the purpcco or effect of which is to 'cause the
^
creation or.naintenance of a situction inconsistent with the cntitrust laws. (pp. 2, 41-51,'61) 9..
The Board erroneously concluded that a unilateral refusal by Applicant to cater into coordination agreo.nents with competitors in not-anticompetitive conduct.-(pp. 3, 133-134) 2 9
i
O 10.
The Board erroneously concluded that a unilaterial refusal by Applicant to whcc1 power for competitors is not anti-competitivo conduct. (pp. 3, 142) 11.
The Board erroneously concluded that since Applicant in-tended to construct and operate the Midland Units solely for the purpose of supplying power to its customers, its
! unilateral rotusal to provide its competitors with access to such facilities is not anticcapetitive conduct. (pp. 3, 97-99, 147) 12.
The Board erroneously concluded that the record in this proc:cding does not dicciosa substantial evidence of any f act or. facts.. ithin the relevant :r.atters in controversy which constitute a schone or conspiracy the purpose or offect of which is to cause the crcation or maintenance cf a situntion inconsistent with the antitrust laus. (pp. 4,.163) 13.
The Ecurd errenaous'y concluded that 3pplicant's.ctivi-ties under the.-lidland licenses cre not a material element and significcat factor in cny, cetual or alleged schema or conspiracy the purpose or ef fect of which is to caure the maintenance of a situation inconr, iste n t alth the entitrust laus. (pp.
4, 168) 14.
'Ihe Board erroneously concluded that no ne.Mus exists betwcen Applicant's cctivitics under the ;11dland licensen and any actual or alleged situation inconsistent with the antitrust laws. (pp.
4, 168) 15.
The Board erron:ously interpreteu the relevant matters in controversy to exclude evidence which directly bears 3
on whether Applicant-has used its power:to grant or~ deny access. to coordination in an anticompetitive fashion. (pp. 22-29, 149-167) 16.
The-Coard~ erroneously defined " coordination" and " coo r d in a-tion agreenents." (p. 11) 17.
The Board erroneously concluded that an electric utility ~
system must, at mininua, keep spinning reserves equal to its largest load on its. largest single generating unit. (p. 20) 18.
The Soard erroneously concluded that the relevant r.arket for purposes of this ' proceeding ~ is a service market for
" coordination services."
(pp. 29-30) 19.
The -Board erroneovnly concluded that cases d:aling uith violati'ons,of the.Sherman Act and Clayton Act provide little guidance in the selection of approp;icte criteria ter deter:r.ining uhat anticompetitive conduct, not amounting to a violLtion of the Entitrust lawn, is incons is t ent with the antitrust la:3. (p. 3/)
- 20. - The Bo rd er rcncously 'analogized the licensing of a nuclect generction facility under the Atomic Energy Act to a pttent grant. (pp. 51-56) 21.
The. Board erroneously analogized the licensing of a nuclear generation facility under the Atomic Energy Act to tho lsbor union exeraption frca tre antitruct laun. (pp. 56-60)
-22.=
The Board erroneously conclud.;
.!us only relevant c.n and -mater ia'l f acts of record in a hearing onder Section 4
9 9
L i
V,
..d.
-10S(c) are (a) those tending to prove the existence of a scheme or conspiracy to create a situation inconsistent
.with the antitrust law--by misuse of the activities under
'.the license, and (b) these tending to prove or disprove J
the existence.of an alleged scheme or controversy to main-i tain a situation inconsistent with the antitrust laus by misuse of the activitics under the license. (p. 37) 23.
-The Board erroncously concluded that Applicant did not have a legal obligation to enter.into coordint tion agree-ments from which it would derive no net benetits. (p. 72)
- 24.,The Board erroneously concluded that it does not have jur-l isdiction to weigh and scrutini::c coordinntion agree -
t ments. (p. Gl)-
25.
The. Board erroncously conclud?d tha t a third party scehing to beco2e a party to a coordinatica arrangement between tuo other' utilities v,ust bring not bsnsfits to the ar ranger..ent or it may *oe excluded f ro a such arrangement. (p. 88) 26.
The Dcard erroneously interpreted tha line of cases in-l t-volving "bottleacek. facilities" to a7 ply only to con-spiracies. (pp. 92-95).
27.
The Board erroncouuly in te rpre ted the D.
S.. Supreme Court's l.
decisica in United Staten v.
Otter Tail Po'.ter Co. (pp. 92, 95-9.7) t-r 5
m.
f-
r 28.
TheDoarderroncouslyconcluded[that the bepartment of
~
- Justice at one time agreed with its interpretation of the Otter Tail decision. (p.-97) 29.
The Board erroneously disregarded expert testimony con-cerning the benefits of coordination. (pp.99-105) 30.
The Board erroneously excluded evidence of acquisitions made by Applicant prior to January 1, 1960. (p. 115) 31.
The Boar 6 erroneously concluded that Applicant would be un-able to expand its service area in Michigan.
(p. 110) 32.
The Board erroncously concluded-that sinca 1972 there has been a trend toward self-generation among the smaller elec-tric cystems in_ Mich-igan (p. 117) 33.
The Boa'rd e,rro.;aously failed to consider substantial and probative evidence showing that the Midland Units will generate pctiar at a substantially lower cost than any new
~
base-loaded ccnoraticn fccility planned for Applicant's sy s t.cm. (p. 119) 34.
The Board'c conclusior. that Applicant rec;u itec the entire output of the Mialand Units is inaccurate and irrelevant.
35.
The Boar.d erranocusly considered evidence concerning the cost of pcuer generated by Applicant'c Big Rock Point Ex-perl= ental.auclect Plant. (pp. 120-122) 36..
The Board creencously. concluded that the inclucion of pro-visions in Applicant's interconnection agree.nonts with cmaller-electric systecs in Michigan prohibiting such cystei.as fro.r. interconnecing.dith thifd parties was not an anticompetitive exercice of Applicant's power 6
4
To grant or,d..y access to coord,ination, and that if it were,,
the elimination of these provisions from such interconnection agreement moots the issue (ppt 125-127 37.
The Board erroneously concluded that an'y smaller electric systen can force Applicant to interconnect and.shars reser;as by initiating procedures before the Federal,
Power Commission.
(p. 128) 38.
The Board erroneously determined that Wolverine Electric Cooperativo, the City of Traverse City and Northern Michigan Electric Cooperati.ve were reserve deficient when they re-cuested coordination with Applics.nt. (pp. 129-130) 39.
The Board erroneously concluded that benefits vould not have accrued to Applicant if it had coo'rdinated uith Wolverine, Traverse City or Horthern M.ichigan. (p. 131) 40.
The naard erroneously concluded that es a matter of law, Applicant'E management b.ad a duty to refuse to enter into the cocedination agreements reauested by '-:olverine, Traverco City nnd Northern Michigan.
(p. 131) 41.
The Board-crroneously cancludeo th.at 2.pplicant has never refused operaticnal coordin: tion uith a smaller electric cycteca in the relevent geographic market. (p. 133) 42.
The Doard erroneously concluded that the terms of Appli-cant',s interconnection agreements with smaller electric systems are not anticompetitive. (pp. 131-132)
- 43..The-30ard erroncously concluded that Applicant nevcr denied access to the Michigan. Pool to smaller electric systems.
7 t-a O
9
e
~..
- 44..The Board erroneously found that Applicant's transmission
- system is not a unique facility without which the smaller systems cannot coordinato among themselves. (pp.-138-139) 4 5. - The Board erroneously found that the Applicant does not' have the pouer to grant or deny operational coordination or P anning coordination betueen or among the smaller elec-l tric systems in the relevant market. (p. 141) 46.
The Board erroneously concluded that there is no evidence that Applicant's refucal to uheel ic part of a larger scheme
~
or conspiracy to bring into being.a situation inconsistent with the antitrust lauc. (p. 142) 47.
The. Doard erroneoucly cone' uded thct Applicant could reasca-l ably refuse to grant access to tho Hidland Units because the. smaller electric systemo seeking acceco did not request access pcior to' January 1, 1971.
(pp. 145-147) 43.
The Board erroneously concluded 'that Applicant has never used its pouer to grant or deny _ access to' developmental coordination in an anticcap'etitive manner. (p. 14G)
- 49.
The Board errcneously concludeo. that Applicant's specific intent to acquire all of the smaller electric systecc in IPchigan is-outside the relevant matter 0 in contro-versy. (pp. 149-158) 50.
The D0ard erroneously stated and erroneously applied the the law of1 attempt to monopolize under section 2 of the Sherman Act. (p. 155) 8 9
a
.-r9
=,-r y
1 4
i l
T-i
+
51.
The Board erroneously concluded that Applicant has nevet had an_ oral or written agreement prohibiting wholocale sales boycnd its precent service area. (pp. 153-161, 117) 5 2. - The Board erroneously concluded that Applicant's power to grant or deny access to the regional power exchange through its transmission system is outside the relevant matters in controversy. ~ (150-168) 53.
The Doard erroneously concluded that nuclear facilities sized 1cce thct 500 r egzuat'ts are economically feasible.
(p. 173) 54.
The Board erroneously concluded that there is no substan-tial evidence to dc:aonstrate that the ssc]ler electric cystems are precluded frca building their own nuclear facilition.
(p. 174) 55.
The Scard errencously concluded that adecutte access to nuclost ec'< n is prov'd:d by the sale of power by Appli-cant at its retail and tholesale cated. (p. 175) 56.
The Donrd erroncously d2nied discovery into politiccl activities of Applicant relevant to the issues in controversy. (p. 179) 57.
The Doard errenccusly concluded. that the licensing of the i*idlaad l Units woulc nct create or maintnin a situation inconsistent.. I th the ancitruc t. laws. (p. 182) 58.-
The Daard errencoucly crdered _that the Director of Regulation continue' the permits to Applicant for construction of E he Midland Un'ltc without the imposition t
of cny - antitrect condit !cnn.
(p. 183) 9 L.
p_
.v......
2:.
i L'.
g t;
t
u' r
Respe.ctfully submitted, t
j d '
A0 d ' ($. ' ( r./lU (>, j)-
^
I Di VID A.
LUCnit; 4<..
t f <t %%.. < r,h,.. a, s,,..
(l,,.) -
C.
FORRES? Di6Gildi
/
1
)7.L,
,)-7 G.e 4 h-? -
i f41d!K. a. -- _.
LU v 1:.
4-Attorneys, Depart.T.ent of Justice i -
Septer.ber.8, 1975 t
1.
j.
4 f
]'
4 j.
}
I 4
$j-a 1
a
-t l.
I
- ~
P t
i 4-4
?.
a i
t.
~
4 4:
1 9
{..
, %~
1 4
i a
4
{-'.,.
- -( <,
% ;.,,,._, c. :.... i L a... _,.,. :..; _ m -...,, _.. _,. _. _. _. _.........
i i
~. '
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
Docket'Nos. 50-329A
-In the_ Matter of
-)
50-35-A Consumers Pottor Comany
- (Midland Plc.nt, Units 1 and 2)
-)
CERTIFICATE OF-SERVICE m..~~..
/.***...~' _
Alan S.
Rosenthal, Esquire Ap' '
Chairman Atomic Safety & Licensing I'.ppeals Board 7f U S.
Nuclear Ragulatory Commission
~
Uashington, D.
C.
20555 2
. Michael'C. Pctrar,-tsquire
\\
.s 6,,,' '.
litcaic St foty & Lics.nsing hp'.:cals Board s,
O.S.
duc1 car Regul: tory Co.tr.icsion Nb Washington, D.
C.
20555 N
9..
John F.
F a r.r.;h id c z, C quire Atomic Saf ety i Licensing App.als Socrd U.S.
Nuclear Reguli. tory Con:iict, ion Unshington, D.-.C.-20555
!; ugh M.
Clark, Esquire Chairmen Ato~iic St:.2e taj end Licencing Board U.S.
aucl da r. Regulnary Co:riss ion Washington,.D.
C.
'tS45 Dr.
J..
V.
Leeds, Jr.
P.
O.
Bo: ir41 liotic ton, Texas T1001 tiillita bartield h00s, Esquire Keith S. 'slatson, Esquire Wu lci, UE.rkr0, der.5 Russ 1320 Ninc tnanth St r aet,
N.
h.
iiash ing ton, - D.
C.
20036 liarold ' P. G r a'.'es,. Otqu i re V. ice Precident ana UOneral Councel-
-Consumars 2cwor Cor.vjany 212 1:es t 'n ich igen Ave.
Jackson, 2 ich igr.n 49201 e
.<r
-w ew
2
.f,
?,'
Robert ' Jablon, 'Esquir'e.
2600 Virginia Avenue, N. W.
Washington, D..C.
20037 Robert,Verdisco, Esquire
~
' Antitrust Counsel for Nuclear Regulatory Staff U.S. - Nuclear ' Regulatory Cc:=nission Washington, D.'C.:20545 Atomic ~ Safety'and Licensing Board U.S. Nuclear Regulatory Co:w.ission Washington, D. C.
20545 Frank W.
Marcs,-Chief
'Public Proceedings ~Eranch Nuclear RegularoJy C0r. mission U.S. Office of the Secretary Er.chington, D.
C.
~!O555
~)'), :w..w
,i...
.~.a.
./
l n... v.L.. t
.s: 3.a.a c..
J.tterncy, D0partIr. ant of Jcstico Sept'enber G, 1975 a
5 a
m
'h.
l