ML19331D424
| ML19331D424 | |
| Person / Time | |
|---|---|
| Site: | Summer  |
| Issue date: | 08/29/1980 |
| From: | Chanania F NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML19331D425 | List: |
| References | |
| ISSUANCES-A, NUDOCS 8009020459 | |
| Download: ML19331D424 (10) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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SOUTH CAROLINA ELECTRIC & GAS
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NRC Docket No. 50-395A COMPANY and
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SOUTH CAROLINA PUBLIC SERVICE
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AUTHORITY
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.(Virgil C. Summer Nuclear Station,
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Unit 1)
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NRC STAFF RESPONSE TO COMMISSION REQUEST FOR COMMENTS The NRC Staff hereby submits its response to the Commission's request for comments on its M2morandum and Order of June 30, 1980.
In that Memorandum and Order, the Commission asked the parties to comment on:
(1) new factual developments occurring after the last submission of pleadings to the Commission, (2) the criteria developed by the Commission to govern a "significant changes" decision under Section 105c(2) of the Atomic Energy Act of 1954, as amended,1 and (3) the Commission's application of those criteria in the instant proceecing.
To prepare its response to the first request, the NRC Sta'f has elicited certain factual information from the parties. The Staff's comments are necessarily limited to this updated information, which was received between July 29 and August 7, 1980.M 1/
42 U.S.C. 9 2135c(2).
y Review of the parties' responses of August 25, 1980, to the Commission's request in its Memorandum and Order reveals that the parties, particu-larly ' Central Electric Power Cooperative, Inc., have submitted more comprehensive materials to the Commission than were obtained by the Staff.
The Staff -is, therefore, not in a position to comment on the material it had not received by August 7, 1980.
See note 3, infra.
8 00002 0k y
I.
STAFF COMMENTS ON NEW FACTUAL DEVELOPMENTS As indicated above, the Staff requested the parties to provide certain infonnation to aid the Staff in updating its analysis of the competitive situation in the relevant areas of South Carolina. / In their responses, parties indicated differing interpretations of some of the recent events and agreements. Based on the information submitted, the Staff's preliminary conclusions are that Central is being availed increased power supply options from both SCEG and Santee Cooper (despite some reservatons being voiced by Central concerning certain contractual provisions or offers); that these new power supply opportunities for Central enhance its own economic well-being; and finally, that these new developments are pro-competitive in that many of Central's previous allegations of anticompetitive effects resulting from changed circumstances have been redressed.O A.
Santee-Cooper - Central Santee Cooper and Central have been discussing various power supply arrange-ments, seemingly on a continuing basis, since January,1979. A fairly comprehensive agreement has been reached, which is embodied in the " Power System Coordination and Integration Agreement Between South Carolina Public Service Authority and Central Electric Power Cooperative, Inc." (hereinaf ter 3/
These requests were made by letter dated July 8,1980 from NRC Staff counsel to representatives of Central Electric Power Cooperative, Inc.
-(" Central"), South Carolina Electric & Gas Co. ("SCEG"), and South Caroltua Public Service Authority (" Santee Cooper").
y See Amended Petition ~ of Central Electric Power Cooperative, Inc., at 49.
s " Agreement").
One portion of the Agreement has been implemented, while the rest has been sent to the Rural Electrification Administration for its ~'
evaluation.E/ This Agreement replaces most of the existing contractual relationships between Central and Santee Cooper, and provides a multiplicity of planning and operational opportunities for Central.
The Agreement, among other things:
(1) establishes joint planning and coordinated operations for the two systems; (2) provides for Central to purchase 45% of Santee Cooper's Cross Generating Facility (coal-fired); (3) gives Central an option to buy one-third of Santee Cooper's entitlement in the Summer Nuclear Generating Station; (4) affords each party the option to share ownership in future generating units; (5) requires Santee Cooper to wheel power which Central obtains elsewhere; (6) obligates Santee Cooper to provide partial requirements power for Central; and (7) establishes economic dispatch of generation and transmission for a combined Santee Cooper / Central sys tem.
Nevertheless, Central's attorney has indicated to the NRC Staff that the Agreement contains certain terms which are less than totally satisfactory to Central.5/ The Staff finds it difficult to evaluate these arguments on the 5/
See letter dated July 23, 1980, from W. C. Mescher, of Santee Cooper, to F. D. Chanania, of the NRC Staff, at 1-2 (Attachment No. I hereto).
j/
Letter. dated August 5,1980 from W. E. Brand, representing) Central, to F. D. Chanania, of the NRC Staff, at 3-6 (Attachment No. 2.
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basis of the facts submitted; however, the Staff believes the Agreement is a major advance for Central towards the power supply options it claims it had been unlawfully denied.
B.
SCEG - Central SCEG and Central have apparently met twice since January,1979 to discuss matters directly pertinent to this proceeding. These meetings and other
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correspondence between Central,and Si,EG have centered around wheeling ard joint ownership of generation.
SCEG has made an offer of generation co-participation to Central for approximately 31 MW, which is the load of Cerkeley Electric Cooperative, Inc., one of the member distribution coopera-tives of Central.
To Staff's knowledge, Berkeley is the only part of Central's system that is served directly by SCEG.
Except for the Berkeley situation, Central's present power contracts provide that Santee Cooper must serve all of Central's other loads, consistent with the South Carolina statutory scheme. This situation has not changed.
Central maintains, however, that any arrangements.with SCEG should be made considering Central as a whole, not just Berkeley.
On August 6, 1980, Central and SCEG officials met again, but no further infonnation has been forthcoming.E Certain other facts have come to the Staff's attention which relate to Central's activities in seeking new power supply options, continuing South Carolina legislative regulation of electric utility matters, present status of litiga-tion against SCEG, and relative growth rates of the involved parties.
In brief, these are:
7f See Attachment No. 2, at 1-2.
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a)
P. T. Allen, Executive Vice President and General Manager of Central, indicated in a letter dated June 19, 1979, to T. C.
Nichols, Jr. of SCEG, that it was talking to Carolina Power &
Light about future power supply options.8/
b)
The Constitution of the State of South Carolina was amended (effec-tive January 24,1979) to allow electric cooperatives to jointly own electric facilities with Santee Cooper.9/
c)
Settlement discussions have occurred in a civil antitrust suit by the North Carolina Electric Membership Corporation against SCEG and the Carolina Power & Light Company. b e)
Central's counsel infonned the NRC Staff that Santee Cooper has recently asked Berkeley Cooperative about the possibility of its purchase.E f)
Santee Cooper experienced a 1979 peak demand of 1,352 MW, a 9.81; increase over its previous year's peak demand.E 8/
Attachment to letter dated July 23, 1980 from Troy B. Conner, Jr.,
representing SCEG, to F. D. Chanania, of the NRC Staff.
This letter is Attachment No. 3 hereto.
0/
Attachment No. 1, at 2.
g Attachment No. 2 at 2-3.
J11/ Jd_. at 6.
_1_2/ South Carolina Public Service Authority, Annual Report 1979.
2
g)
SCEG experienced a 1979 system peak demand of 2,965 MW, a 20.17%
increase over its previous year's peak demand.1/
h)
Central experienced a 1979 system peak demand of 765 MW, a 11.1%
increase over its previous year's peak demand.1b/
II.
STAFF COMitENTS ON SIGNIFICANT CHANGES CRITERIA In its June 30th Memorandum and Order, the Commission established three criteria for determination of significant changes under Section 105c(2) of the Atomic Energy Act of 1954, as amended, (hereinafter "the Act"). The Commission indicated that such detenninations would be based on whether the change or changes:
(1) have occurred since the previous antitrust review of the licensee (s);
(2) are reasonably attributable to the licensee (s); and (3) have antitrust imolications that would likely warrant some Commissionremedy.15/
13/ South Carolina Electric & Gas Company,1979 Annual Report.
J4/ Central Electric Power Cooperative, Inc.,1979 Annual Report.
J5/ Memorandum and Order of June 30, 1930, at 7-9, 16-31.
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' The Staff is 'in basic agreement with the Commission's three criteria.
Section 105c(2) of the Act requires that the significant changes shall have occurred since the last review of the Attorney General and the Commission and shall also have occurred "in the licensee's activities or proposed activities." The Staff regards the first and second criteria as echoing these two statutory requirements.
Further, to assess any change in the licensee's activities, the inquiry has to focus on the activities in which the licensee was engaged at the time of the previous review and compare them to its present activities; activities, in this case, are those policies and practices of the licensee as they impact upon the utilities with whom the licensee is dealing.
Assuming this analysis reveals a change in these factors, the inquiry then shifts to the issue of whether the change is significant.
The Staff under-stands the Commission's third criterion to exclude, as insignificant, those changes in the licensee's activities which are pro-competitive or those which have a de minimus anticompetitive effect on the relevant situation.
See Memorandum and Order, at 23-24.
The Staff believes that this approach is appropriate.
The Staff has one concern with respect to the Commission's approach to the application of Parker v. Brown in the instant case.
The Commission first states that Parker v. Brown is " properly invoked"; the Commission then goes on to decid'e whether it should be applied, i.e., whether the applicants
have freedom 'in the state regulatory framework to take certain actions.
Memorandum and Order, at 26-31.
Under antitrust law, the test is a single one -- whether or not the doctrine applies at all.
If it does under the criteria established in Parker v. Brown and its progeny, then the activities under scrutiny are immunized.
In addition, the Staff does not believe that a decision relating to implied repeal of the antitrust laws by another Federal statute is relevant to the issue of whether there is state action immunity under Parker v. Brown.
Thus, the citation of U.S. v. Philadelphia National Bank, 374 U.S. 321, 351 (1963), on page 27 of the Memorandum and Order, is inapposite.
The Commission rightfully seeks a method to remedy an anticompetitive situation in a way which complements the areas of state regulation. The difference is simply that an activity which satisfies the state action tests remains immunized even if it is " repugnant" to the federal antitrust laws.
Respectfully submitted, A.MO Fredric D. Chanania Counsel for NRC Staff Dated at Bethesda, Maryland this 29th day of August, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of
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SOUTH CAROLINA ELECTRIC & GAS
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NRC Docket No. 50-395A COMPANY and
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SOUTH CAROLINA PUBLIC SERVICE
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AUTHORITY
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(Virgil C. Summer Nuclear Station,
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Unit 1)
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF RESPONSE TO COMMISSION REQUEST FOR COMMENTS in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as in-dicated by an asterisk, through deposit in t'ne Nuclear Regulatory Commission's internal mail system, this 29th day of August 1980.
Chairman Ahearne Atomic Safety and Licensing Board Office of the Commission U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Washington, D.C.
20555
- Jerome Saltzman, Chief Commissioner Gilinsky Utility Finance Branch Office of the Commission U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Washington, D.C.
20555
- Hugh P. Morrison, Jr., Esq.
Commissioner Hendrie Charles S. Leeper, Esq.
Office of the Commission Cahill, Gordon & Reindel U.S. Nuclear Regulatory Commission Suite 650 Washington, D.C.
20555
- 1990 K Street, N.W.
Washington, D.C.
20006 Commissioner Bradford Office of the Commission Mr. W.C. Mescher, President f
U.S. Nuclear Regulatory Commission Wallace S. Murphy, Esq.
]
Washington, D.C.
20555
- General Counsel South Carolina Public Service Authority Michael Rand McQuinn 223 N. Live Oak Drive Cahill, Gordon & Reindel P.O. Box 398 1990 K Street, N.W.
Moncks Corner, S.C.
29461
~
Washington, D.C.
20006 Troy B. Conner, Jr., Esq.
j Samuel J. Chilk Robert M. Rader, Esq.
Secretary of the Commission Conner, Moore and Corber U.S. Nuclear Regulatory Commission 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20555
- Washington, D.C.
20006 Docketing and Service Section Mr. P.T. Allen Office of the Secretary Executive V.P. and General Manager U.S. Nuclear Regulatory Commission Central Electric Power Cooperative, Inc.
Washington,'D.C.
20555
- P.O. Box 1455 Columbia, South Carolina 29202 a
4.
C. Pinckney Roberts, Esq.
Dial, Jennings,2Windham, Thomas &
Roberts P.O. Box 1792 Columbia, South Carolina 29202 Donald A. Kaplan, Esq.
Janet R. Urban, Esq.
P.O. Box 14141 Washington, D.C.
20044 Wallace E. Brand, Esq.
Edward E. Hall, Esq.
Brand & Hall 1523 L Street, N.W.
Suite 200 Washington, D.C.
20005 George H. Fischer, Esq.
Vice President and General Counsel South Carolina Electric and Gas Company P.O. Box 764 Columbia, South Carolina 29202 Robert Medvecky, Esq.
Reid & Priest 1701 K Street, N.W.
Washington, D.C.
20006 Edward C. Roberts, Esq.
South Carolina Electric & Gas Company P.O. Box 764 Columbia, South Carolina 29202
,M2s L
-LGLw t Fredric D. Chanania Counsel for NRC Staff
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