ML19329E944
| ML19329E944 | |
| Person / Time | |
|---|---|
| Site: | Midland |
| Issue date: | 09/08/1975 |
| From: | Verdisco R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8006180814 | |
| Download: ML19329E944 (26) | |
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UNITED STATES OF AMERICA W
Q, NUCLEAR REGULATORY C0:GISSIO1
~~7 BEFORE THE ATOMIC SAFETY AND LICENSIllG APPEAL BOARD 9 w?5 > 9
', 1, '
In the Matter of
)
f, f'7 6 j8 CONSUMERS POWER COMPANY NRC Docket Nos. 30-W.'
(Midland Plant, Units 1 & 2)
)
5 - 30A NRC REGULATORY STAFF'S EXCEPTI0riS TO THE INITIAL DECISIO:1 Pursuant to 10 CFR Section 2.762, the :RC Regulatory Staff (Staff) hereby takes the following exceptions to the initial decision rendered by the presiding Atomic Safety and Licensing Board (Board) on July 18, 1975.
Although we have identifled 140 specific exceptions, our supporting brief will to the extent possible, treat'these exceptions in subject groups.
This will eliminate repetitive discussion, focus the argument en the significant issues
- presented and assure a more orderly presentation. We will, of course, clearly identify the numbered exceptions involved in any consolidated discussion.
The exceptions are stated so as to correspond to the fonnat of the initial decision.
I.
Definitions THIS DOCUMENT CONTAINS
'A.
General P00R QUAL.lTY PAGES
[1) The Board erred in its definition of terms. (pp.10-13).
)
B.
Speci fic (2) The Board e'rred in finding that "' Bulk power' is power supplied by a utility either (1) to its own distribution system, or (2) to a wholesale customer." (p.11).
2-L (3) The Board erred in finding that " Wheeling" is limited to
...the transportation of wholesale. power between the facilities of two utilities over the transmission system of a third utility".
(p. 11).
(4) The Board erred in finding that "' Coordination' means mutual assistance in the electric utility industry."
(p.11).
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(5) The Board erred in finding that ": Coordination' means the interchange of beneficial services between cooperating electric utilities through an agreement which confers on each party a net benefit not attainable by such electric utilities operating independently."
(p. 11).
(6) The Board erred in finding that a "' Coordination Agreement' is a mutual assistance agreement in the electric industry which confers en each party a net benefit." (p.11).
(7) The Board erred in finding that "'[o].perational Coordination' means the interchange or sharing of one or more of the following: ' Reserve sharing, emergency energy or power, maintenance energy or po'wer, economy energy or power, dump energy or power, seasonal or time-diversity energy or power, unified control of generation transmission facilities." (p.12).
(8) The Board erred in. finding that " firm power" can be adequately defined as " highly reliable" power.
(p.'13).
(9) The Board erred in finding that "... unit power is a species of interruptible powe.".
(p.13).
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II. Conceptual Conclusions (10 ) The Board erred in finding that "[s]upplying power from large generating units to achieve lower energy cost is in conflict with achieving a reliable system with adequate reserves." (p. 21).
III.
Relevant Matters in Controve'rsy
' (11 ).The Board erred in finding that the relevant issues in controversy are all. concerned with coordination as defined by the Board.
(pp.22-29).
IV.
Burden of Prcof (12) The Board erred in finding that the burden of proof exclusively rests upon the Justice, Staff and the Intec'!cnors. (pp. 30-31 ).
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V.
Basic Legal Conceots A. ' Genera _1 (13) The Board erred in its analysis of the Basic legal Concepts in this proceeding. (pp.31-105).
(14) The Board erred in finding that the Legislative History accompanying Section 105 of the Atomic Energy Act is not clear.
(pp. 31-33).
B.
Situation Incgnsis_te_nt With The Antitrush Laws (15) The Board erred in finding that the "[t]he elimination
. of one or more competitors by competitive conduct is not inccnsistent with theShermanAct."(p.34).
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R (16) The Board erred.in finding that under the Federal Trade Comission Act emphasis was to be placed on consumers and com-petitors, regardless of whether the forbidden activities affect com-petition. (p. 36).
(17 ) The Board erred in finding that injury to stock-holders w.as on the same level as injury to competition, competitors, and consumers. (p. 36).
(18) The Board erred in finding that an inconsistency under the antitrust laws must be comprised of either a scheme or a conspiracy.
(p.37).
(19 ) The Board erred in finding that '[t]he cases dealing with violation of,the Sherman Act and the Clayton Act provide little guidance in the selection of appropriate criteria for determining anti-competitive conduct which does not amount b a violation of antitrust laws."
(p. 37).
(20 ) The Board erred in finding "that a ' situation incon-sistent with the antitrust laws' must mean anticompetitive conduct". (p. 37).
(21) The Board erred in finding that the prohibited conduct under Section. 5 of the Federal Trade Commission Act is restricted to a narrow definition of anticompetitive conduct and to practices heretofore determined to be unfair. (pp. 38-40).
(22) ' The Board erred in finding that the appropriate pre-cedent.for determining,the meaning of violation of the antitrust laws will be found exclusively in " authoritative federal court opinions". (p. 41).
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C.
Causal Connection -' Nexus (23) The Board erred in finding that the matter of nexus must be resolved as to each alleged anticompetitive practice. (p. 42).
(24 ) The Board erred in limiting its analysis of nexus to the decisions in Gulf States and LP&L. (p. 43).
02 5 ) The Board erred in finding that the granting of a license creates a "right" to conduct licensed activities which are ir.mune from the antitrust laws. (p. 43).
(26) The Board ' erred in finding that the lawful use of the licensed activities are immune from the antitrust laws. (p. 43).
(27) The, Board erred in finding that intent is an important factor in teighing alleged anticompetitive conduct under 105(c). (p. 44).
(28 ) The Board erred in its analysis of the " nexus" question and in finding that nexus exists between otherwise lawful activities under a license or proposed license and a situation inconsistent with the antitrust laws if and only if the said activities are misused so as to be a material element and a substantial factor in a scheme or conspiracy, the purpose or effect of which is to cause creation or maintenance of the said situation.
(pp.41-51).
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D.
Misuse _of Activities Under the License (29) The Board erred in finding that patent law foms the best analogy for interpretating Section 105c of the Atomic Energy Act. (p. 51).
(30) The Board erred in finding "...the public auto-matica11y has access to and receives benefits by the availability of electric energy from the activities under the license". (p. 53).
(31) The Board erred in finding that the provisions of labor law are analogous to proceedings brought under 105(c). (pp. 56-60).
(32) The Board erred in finding that a grant of immunity regarding the licensed activity will be terminated when the activity is misused, but only if that misuse is a material element and a substantial factor in a scheme or conspiracy. (p. 60).
(33) The Board erred in finding "...that the use of activities under a Federal grant within the scope and for the very purpose contempl'ated by the grant is immunized from the antitrust laws". (p. 60).
(34) The Board erred in finding that "[n]exus exists between
.othenvise lawful activities under a proposed license and a situation incon-sistent with the antitrust laws, if, and only if, the said activities are misused so as to be a material element and a substantial factor in a scheme or conspiracy the purpose or effect of which is to cause the creation or maintenance of said situation." (p. 60-61).
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(35)' The Board erred in finding that "[a]ctivities under a license issued by the Commission pursuant to statute per se cannot create or maintain;a situation inconsistent with the antitrust laws."
(p.61).
(36) The Board erred in' finding that "[a]ctivities under a license issued by the Commission pursuant to statute, can create or maintain a situation inconsistent with the antitrust laws, if, and only if, such artivities constitute a material element and a substantial factor
'in a scheme or conspiracy the purpose or effect of which is to cause the creation or maintenance of a situation inconsistent with the antitrust laws."(p.61).
E.
Time ' Periods (37) The Board erred in finding that "[t]he only relevant and material facts of record will be those tending to prove or disprove the existence of a scheme or conspiracy to create such situation by said misuse."(p.62).
F.
Mootness (38) 'The Board erred in finding that. if a situation incon-
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sistent with the antitrust laws was found, but had ceased to exist prior to the date of the close of the record, then a situation inconsistent with the antitrust laws c'annot be maintained. ' (p. 63).
(39 ) The Board erred in finding that the applicant's con-
-tracts with other utilities are now under the present jurisdiction of the.
FPC, which must consider antitrust aspects of the matters submitted to it.
.(p.65-66).
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.S G.' Coordination - tiet Benefits (40) The Board erred in finding that as a matter of law 1
- a net benefit to the applicant is required before the applicant is obligated to coordinate with the smaller utilities. (p. 67).
(41) The Board erred.in finding that "... officers and directors'should enter into coordination arrangements if the benefit to the utility results," but that "[t] hey do not have an obligation to enter into alleged coordination agreements from which no net benefit results."
(pp.70-72).
(42) The Board erred in fi.nding that the net benefit standard is applicable in this proceeding. (pp. 70-71).
(43) The Board erred in finding "...that the meingement of Applicant is forbidden from' entering into alleged coordination agree-ments wh'ich said management believes will result'in a net detriment to theApplicant."(pp.71-770).
H.
The Gainesvil_le_ Formula
-(44). The Board erred in finding that the Federal Power Commission has exclusive jurisdiction to approve coordination agreements.
(p.81).
I.
Refusa1 to Co_ ordinate (45) The Board erred in finding that the arititrust laws are primarily.conderned with acts as opposed to refusals to act. (p. 81).
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(46) The Board erred in finding that "[t]he reason that a refusal to give aid is not unlawful is that he who refuses to
- help does not cause injury." (p. 83-84).
(47) The Board erred in finding that "...the refusal
[to coordinate] does not' cause whatever difficulties the smaller utility 4
may have". (p. 83).
(48) Tha Board erred in finding that if extrinsic factors were the cause of the lack of competitive ability on the part of a smaller utility and that those causes were not directly related to a dominant or large utility, then the large utility could not be charged with the obligation of undertaking an affirmative duty to coordinate or to render other aid, in the absence of a statutory duty. (pp. 83, 86),
(49) The Board erred in finding that under the antitrust laws, a party need not aid its competitor. (p. 84).
-(50) The Board erred in finding that "[u]nder the antitrust law mutual assistance agreements between competitors are suspect." (p. 84).
(51) The Board erred in finding that "[v]oluntary coordination is permissive and not mandatory. No other statute is known to us and none has' been called to our attention which makes it a duty to engage in voluntary coordination." (p. 85).
The Board erred in' finding that "...as a ma'tter of law, (52) that unilateral refusals to assist competitors, per se is not anticompetitive conduct...."(pp.85-86).
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(53) The Board erred in finding "...that unilateral refusal to enter voluntarily into coordination agreeme'nts with competitors per se j
is not anticompetitive conduct and is not a scheme or conspiracy the pur-pose or effect of which is to cause the creation or maintenance of a situation inconsistent with the antitrust laws.,Sumh refusal causes no injury to competitors". (p. 86, 86).
(54 ) The Board erred in finding that "[i]f a utility has an anticompetitive scheme, sudi as monopolization, and if its unilateral voluntary refusal to coordination with its actual er potential competitor is a material element and a substantial factor in said scheme, then there is a misuse of its otherwise lawful refusal to coordinate." (p. 86).
(55) The Board erred in findir.g that certain coordination agreements; could be required "...provided that the third party brings to the arrangement such contribution as to resuit in net benefits to all three parties". (p. 88).
(56) -The Board erred in relyingon Section 1 conspiracy cases in this proceeding. (p. 88).
. J.
Refusal to Wheel
.(57 ) The Board erred in finding that since Congress chose not to. require whealing by legislative mandate that that is dispositive of that particular subject. (pp. 90-91).
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(58) The Board' erred in finding "...as a matter of law that unilateral refusal to wheel power for competitors per se is not anticompetitive conduct and is not a scheme or conspiracy the purpose or effect of which is to cause the creation or maintenance of a situation
' inconsistent with the. antitrust laws". (p. 92).
(59). The Board erred in finding that "...as a matter of law, that the bottleneck situation applies only to conspiracies and hence, is inapplicable to a unilateral refusal to wheel". (p. 95,165).
-(60 ) The Board erred in finding that the Otter Tail decision stands for the proposition that the refusal to deal, or the refusal to wheel are not sufficient to find a monopolistic scheme or conspiracy when such refusals are not part of a larger scheme. (p. 95).
(61 ) The Board erred in finding that "[t]he antitrust laws deal' only with anticompetitive business conduct."
(p. 96).
52 ) ' The Board erred in finding that the facts in Otter Tail fit the Board's analysis of the nexus question. (p. 96).
K.
RefusalofAcce{stotjuclear (63) The Board erred in finding that the use of activities under a grant authorized by Congress are indune from the reach of the antitrust laus. (p. 98).
(64) The Board erred in finding that as a matter of law that "...if an Applicant for a license intends to construct and operate a nuclear power facility solely for the purpose of supplying power to its customers, unilateral refusal to provide its competitors with access to
such facilities' is 'not anticompetitive conduct...." (p. 99).
L. _ Expert Op_inions (65) The Board erred in' finding there was to be "...little weight given to opinion testimony of experts re1ying on hypothetical fact situations which have no basis in the record". (p.99-104).
VI. Background Facts A.
General-(66) The Board erred in its analysis of the " Background
, Facts".'(pp.:105-173).
B.-
Specific (67) The Board erred in finding that "[a]lthough there are no exclusive franchises in Michigan..., the unwillingness of T.he Michigan Public Service Commission (MPSC) to approve a franchise to any applicant utility in the service area of another utility in the absence of unsatisfactory service indicates that Applicant,probably would not be permitted to expand its service area in Michigan even if it so desired...."
(p.110).
.(68), The Board erred in finding that the municipals "...
have been able, tough and aggressive competitors of Applicant far a long time." (p.115).
(69) The Board erred in finding that the estimated system wide cost for the Midland Units will be somewhat higher than system average 1when.the Midland Un-it goes into effect. '(pp. 118-119).
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(70) The Board erred in finding that "...there is no evidence that Midland power will be cheaper..." than system average cos t. ' (p. 119).
(71) The Board erred in finding that the applicant is entitled to apply the entire output of the Midland plant to serve its requirements. (p. 119,145).
(72) The Board erred in finding relevant the computation of cost of the experimental 75 megawatt unit at Big. Rock. (pp. 120-121).
VII. Search of The Record For Possible Situations llithin The Relevant Matters In Controversy Which Micht Be Created Or Maintained By Activities Under The Licenses General (73) 'The Board erred in finding that there were no situations inconsistent with the antitrust laws which were created or maintained by the activities under the licenses, and which were within the relevant matters in controversy. (pp. 125-148).
B.
Situation 1: Prevention of Coordination By Contract Provision (74) The Board erred in finding that "Mr. Brush's inter-pretation'.of the language'[regardingj... coordination between Lansing and the M-C Pool is completely unrealistic." (p.126).
(75) The Board erred in finding that the insertion of
" provision 9 in applicant's contracts did not give it the power to grant or deny coordination among the smaller utilities. (p.127).
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(76 ) The Board erred in concluding as a matter of law that no situation inconsistent with the antitrust laws exists by the virtue of the existence of " provision 9". (p.127).
(77 ) The Board erred in finding that "there is no nexus between the activities under the license and..." the situation regarding
" provision.9".(p.127).
C.
Situation 2: Prevention of Ooerational Coordination By' Refusal of Anplicant To Coordinate (78 ) The Board erred in finding that "... access to coordination has [is limited to] two facets:
(1) coordination between the Applicant and cne or more of the smaller utility systems in the relevant
. geographic market; (2) coordination between 'two or more of the smaller utility systems in the relevant geographic market."
(p. 12E).
(79) The Board erred in finding that the applicant's refusals to enter into coordination agreements with Northern Michigan, Wolverine and Traverse City were " clearly correct". (p.130).
(80 ) The Board erred in finding that "as. a matter of law" the applicant's management had a duty to its customers and stockholders to refuse operational coordination. (p.131).
'( 81) The Board erred in finding that "...[a]pplicant could find no net benefit in reserve sharing with them [ Northern Michigan or Wolverine]." (p.132).-
(82) The Board erred in finding that the r'ecord shows "...no smaller utility in the relevant geographic market which'has adequate 7
reserves to support a coordination agreement". (p.133).
(83) The Board erred in finding that "... Applicant has never refused operational coordination with a smaller utility in the relevant geographic market and that Applicant has operational coordination agreements with every smaller utility in the relevant geographic market capable of coordinating". (p.133).
(84) The Board erred in finding "...as a matter of law that there is no situation inconsistent with the antitrust laws arising out of Applicant's alleged refusal to voluntarily operationally coordinate l
with the smaller utilities". (pp. 133-134).
(85) The' Board erred in finding that '!...there is no nexus between the said ac,tivities under the license and..." the situation re-garding the prevention of ooerational coordination by refusal of Applicant to coordinate. (p.134).
D.. Situation 3: Revention of Coordination by Exclusion From the Michigan Pool (86) The Board erred in finding that while the applicant had the power to exclude any other entity from joining the Michigan Pool, since the power was never exercised there was no situation inconsistent with the artitrust laws. (pp. 136-137).
(87) The Board erred in finding "...as a matter of law that there is' no situation inconsistent with the antitrust laws arising out of Applicant's alleged usc of-its ppwer to exclude the smaller utilities from
th'e Michigan Po'ol. (p. ~137).
(88) The Board erred in finding'"...as a matter of law that there is no nexus between said activities..." under the license and the pr2vention of coordination by exclusion from the Michigan Pool.
(p.137).
E.
Situation 4:
Prevention of Coordination By Refusal l
of Applicant To Wheel Between or Among The Smaller l
Utilities (89) The Board erred in finding that "[t]he Applicant's transmission system is not a unique facility, without which the smaller systems cannot coordinate amon'g themselve's....". (p.138).
(90) The Board erred in finding that "...it is fair to conclude that M-C Pool deemed 138 kV transmission to be adequately high voltage for its needs and that the li-C Pool deemed the construction of over 500 miles of 'such line over new ri~ghts-of-way (not economizing by use of old rights-of-way) to be economically feasible". (p.139).
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(91 ) The Board erred in finding that "...Mr. Steinbrecker...
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.gave the -impression of being quite-self-satisfied with the plans of the M-C Pool -to have its own transmission system". (p.139).
,92 ) The Board erred in finding that the M-C Pool
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. management would not deem the transmission system of the applicant "a ' unique facility' as 'this term is used in the bottleneck cases". (p.140).
, (93 ) The Board erred in ; finding that the testimony of
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was to be disregarded. (p.140).
(94) The Board erred in finding that the smaller utilities are incapable of coordination because of their lack of re-serves. (p.140).
(95) The Board erred in finding "...that Applicant does not have the power to grant o'r deny operational or planning co-ordination betucen or among the smaller utility systens capable of coordination". (p.141).
(96) The Board erred in finding any relevance in the fact that "[t]here is no evidence that any two or more of the smaller utilities ever agreed to coordinate subject.to obtaining wheeling, or requested wheeling from Applicant and.were denied". (p.141).
(97) The Board erred in finding that "... Aoplicant's refusal to wheel was [not] part of a larger scheme or conspiracy to bring into being a situation inconsistent with the antitrust laws". (p.142).
(98) The Board erred in finding "...as a matter of' law that there is no situation inconsistent with the antitrust laws arising out of Applicant's refusal to wheel' for the. smaller utilities". (p.142).
-(99 ) The Board erred in finding "...that there is no nexus between the activities under the license and..." the prevention of coordination by refusal of applicant to wheel between or among the smaller utilities. (p.143).
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F.
Situation 5:
Prevention of Coordination By Aonlicants Refusal to Grant Unit Power or Joint Venture Access To Midland Plant, Units 1 & 2 (100) The Board erred in finding that "...none of the smaller utilities requested participation in the Midland Plant". (p.
145).
(101 ) The Board erred in finding that the municipalities' request for participation, coming four years after the publicized date of construction initiation in 1967, were improper requests. (pp.145-147).
(102) The Board erred in finding that "...cach party binds itself at the beginning of thd project as to the terms of participation in' the projected fa'cility". (pp. 145-146).
(103) The Board erred in finding as a matter of fact that there-is no surplus power to be sold". (p.146).
- (104 ) The Board erred in finding that it was relevant that the. applicant may be "short" of planned power if.the smaller utilities were
. to enjoy some of the benefits of the Midla'nd Units. (p.146).
(105) The Board erred in finding that the applicant would
.be disadvantaged if i.t was forced to buy wholesale power'to cover power shortages' caused by the municipalities participating in the Midland Units.
(p.146).
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19 (106) The Board erred in finding that "...the grant of. access to either unit power or joint venture would result in a detriment and a financial burden to Applicant and,hence wo'uld NOT be coordination...." (p.146).
(107) The Board erred in finding that the refusals '
6 to grant unit power or joint venture access to liidland were not refusals to engage in developmental coordination with the smaller utilities.
(p.147).
(108) The Boar _ erred in finding that the applicant does not have a duty to offer or agree to grant. to the small utilities access to the unit. (p.147).
(109) The Board erred in finding that the only duty on the part of the applicant to share the facility with its competitor arises under the " good Samaritan" principle. (p.147).
(110) The Board erred in finding that the applicant need not share with its smaller competitors the benefits of the applicant's size and financial asset's which aflow it to have nuclear power. (p.147).
(111) The Board erred in. finding that the antitrust laws
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and the polici,es underlying them do not require the applicant to grant coordination and access to other utilities within the relevant geographic area. (p. 147).
(112) The Board erred in' finding that since the applicant
-never used its dominance in an anticompetitive fashion against smaller utilities there was no situation inconsistent with the antitrust laws. (p.148).
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(113) The Board erred in finding that "...there is no situation inconsistent with the antitrust laws arising out of Applicant's alleged use of such power to prevent developmental coordination between the Applicant' and said smaller utilities". (p.148).
(114) The Board erred in finding that the applicant'
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intends to use the license activities for the very purpose which the license was authorized under the statute. (p.148.).
(115) The Board erred in finding "...as a matter of lau that there is no nexus between the activitics under the license..." and the prevention of coordination by applicant's refusal to grant unit power or joint venture access to the Midland Plant, Units 1 and 2. (p.148).
VIII.
Situations flot Within the Reicvant -Matters in Controversy and !!ot Within the Relevant Market A.
General (116)
The Board erred in the inalysis of situations which the Board deemed outside the relevant. matters in c6ntroversy. (pp. 150-168).
Is.
Situation 6: Attemot.to Monopolize the Entire Retail and Wholesale Markets
-(117 ) The Board erred in finding that there must be not only intent but the power to carry out the scheme to find an inconsistency with Section 2 of the Sherman Act. (pp. 155-156).
(11 8 ) The Bdard erred in finding that the applicant did not j
have the power to carry.out a scheme or pattern of acquisition, and that therefore no situation. inconsistent ~with the antitrust laws arose. (p.156).
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_ (119): The Board erred in finding "...as a matter of 1
law that there is no nexus between the activities under the licenses and the..." attempt by the Applicant "...to monopolize the entire retail and wholesale markets".
(pp.157,150).
. C.
Situation 8: The Regional Power Exchange Market
. (120) The Board erred in finding that " Justice and Intervenors contend that such smaller utilities have the right to insist that Applicant enter the wheeling business...." (p.165).
(121) The Board erred in finding that there was no requirement that the applicant enter into.the wheeling business to give smaller utilities 'a wider choice of sources of wholesale power.
(p.165).
_ (122),The Board erred in finding that _ the "... Applicant's '
transmission system was not a bottleneck".
(p.166).
(123) The Board erred in finding that "...the smaller utilities have no such right [to wheeling and) if, in fact, such right
- exists, this is the wrong' forum for enforcement thereof".
(p.166).
(124) The. Board erred in finding thn the right to wheeling is not within the relevant matters in controversy to be considered in this
. proceeding. - (p. 166).
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IX. Summary of Situations Alleged to be Inconsistent With The Antitrust Laws (125) The Board erred in finding that "The record in this proceeding does not disclose substantial evidence of any fact or facts within the relevant matters in controversy which constitute a scheme or conspiracy the purpose or effect of which is 'to cause the creation or
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maintenance of a situation inconsistent with the antitrust laws." (p.168).
(126 ) The Board erred in finding that the " Applicant's activities under the Midland licenses are not a material element and significant factor in any actual' or alleged scheme or conspiracy the purpose or effect of which is to cause the maintenance of a situation inconsistent with the antitrus-t laws." (p.168).
027 ) The Board erred in finding that "Ho nexus exists between Applicant's activities under the Itidland licenses and any actual or alleged situation inconsistent with the antitrust laws." (p.168).
X.
Miscellaneous Topics A.
General (128) The Board erred in its analysis of the miscellaneous topics. (pp. 169-180).
B.
Relation'of Public Interest to this 00 inion (129) The Board erred in finding that behavior contrary to the public interest is not necessarily inconsistent with the antitrust laws.(p.169).
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C.
Influence of Minimum Plant Size on Decision (130) The Board erred in finding that "...there is only heresay evidence..." to support the proposition that a nuclear unit can not be economically sized at below 500 megawatt capacity.
.(p.173).
4 (131) The Board erred in finding that it would be in-appropriate for them to co.isider the matter of size of a nuclear power unit as it relates to the question of access thereto. (p.173).
(132) The Board erred in finding that the 75 megawatt Big Rock type nuclear plant is viable and practicable and would serve or could serve as an alternative source of. generation. (p.174).
(133,) The Board erred in find'ing that "...[t]here is no substantial evidence in the record of this proceeding that the smaller utilities are 'procluded'from building their own nuclear power facilities because of size limitations." (p.174).
D.
Wholesale Power As Adequate Access to the Midland Plant (134) The Board erred in finding that those consumers and co.mpetitors who do not enjoy the benefits of nuclear power do so "...at
' their choice or at the choice of the management of the smaller utilities supplying power.to them". (p.176).
J (135) The Board erred in finding that the smaller utilities would be creating a public harm if their choice of access were to result i
in a higher cost of power to applicant's custo,mers. (p.176).
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(136). The Board erred in finding that the sale of retail and wholesale power at existing rates 'was adequate to and the equivalent of. access to nuclear power. (p.175).
E.
Applicant's Monopoly Power (137) The Board erred in finding that "...[t]he only evidence involving situations of possible unlawful use of or extension of monopoly power by Applicant in the wholesale and retail market were dealt with..." in the opinion of the Board. (p.178).
(138) The Board erred in finding that "[t]he~ only evidence involving situations of possible use of f.anopoly power in the transmission field were dealt with..." in the opinion of the Board. (p.178).
XI.
Decision and Order A.
General (139) The Board erred in its dgcision and order. (pp.181-183).
B.
Specific (140) The Board erred in finding that "... A s to the broad issue, we hold that activities under the licenses will not create or maintain a situation inconsistent with the antitrust laws as specified in Subsection 105a of the Atomic Energy Act of 1954, as amended." (p.182).
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Respectfully submitted, i>[.J./ C. ('je M ', t Robert J.,yerdisco Counsel for NRC Staff Date'd at Bethesda, Maryland-this 8th day of September 1975. -
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UNITEDSTATESOFAMhRICA
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NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of CONSUMERS POWER COMPANY NRC Docket Nos. 50-329A (Midland Plant, Units 1 and 2) 50-330A
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CERTIFICATE OF SERVICE I hereby ' certify that copies of HRC REGULATORY STAFF'S EXCEPTIONS TO THE IHITIAL DECISION, dated Septenber 8,1975, in the captioned matter, have been served upon the following by deposit in the United States mail, first class or air mail, this 8th day 'of Septenber 1975:
Alan S. Rosenthal, Chairman Henorable Frank Kelly Atomic Safety and Licensing Attorney General Appeals Board State of Michigan U.S. Nuclear Regulatory Cor.nission Lansing, Michigan 48913 Washington, D.C.
20555 George Spiegel, Esq.
Michael C. Farrar Robert A. Jablon, Esq.
Atomic Safety and Licensing James Carl Pollock, Esq.
Appeals Board 2600 Virginia Avenue, II.W.
U.S. Nuclear Regulatory Connission Washington, D.C.
20037 Washington, D.C.
20555 Joseph J. Saunders, Esq.
John F. Farmakides David A. Leckie, Esq.
Atomic Safety and Licensing P. O. Box 7513 Appeals Board Washington, D.C.
20044 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Harold P. Graves, Esq.
Vice President and General Counsel Hugh X. Clark, Esq.
Consumers Power Company Atomic Safety and Licensing Board 212 West Michigan Avenue P. O. Box 127A Jackson, Michigan 49201 Kennedyville, Maryland 21645 Atomic Safety and Licensing Dr. J.V. Leeds', Jr.
Board Panel P. O. Box 941 U.S. Nuclear Regulatory Commission Houston, Texas 77001 Washington, D.C.
20555 William Warfield Ross, Esq.
Docketing and Service Section Keith 'S. Watson, Esq.
Office of the Secretary
. Wald, Harkrador & Ross U.S. Nuclear Regulatory Commission 132019th Street, N.W.
Washington, D.C.
20555 Washington, D.C.
20036 Y;b8'. [b.lA v Robert J.pverdisco
. Counsel for NRC Staff u