ML19338C410

Response in Support of Tx Border Cooperatives Petition to Intervene.Nexus Requirement for Util Operations Affected by Dc Interconnection Satisfied.Untimeliness Is Measured by Necessity to Preserve Rights.Certificate of Svc Encl

ML19338C410
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	08/13/1980
From:	Poirier M BROWNSVILLE, TX
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-A, NUDOCS 8008150372
Download: ML19338C410 (13)

Text

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Ul!ITED STATES OF AMERICA Yq, k BEFORE THE _

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D NUCLEAR REGULATORY COMMISSION 6; 10 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g , 9 N/ @

In the Matter of ) c.

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Houston Lighting & Power Company, et al. ) Docket Nos.

(South Texas Project, Units 1 & 2) ) 50-498A

) 50-499A

)

Texas Utilities Generating Company, et al. ) Docket Nos.

(Comanche Peak Steam Electric Stations, ) 50-445A Units 1 & 2) ) 50-446A ANSWER OF THE PUBLIC UTILITIES BOARD OF THE CITY OF BROWNSVILLE, TEXAS IN SUPPORT OF THE PETITION TO THE TEXAS BORDER COOPERATIVES FOR LEAVE TO INTERVENE The Public Utilities Board of the City of Brownsville, Texas ("Brownsville") supports the request of the Texas border Cooperatives for leave to intervene at this time. The development of a global settlement proposal dealing with DC interconnection, transmission rates throughout TIS /ERCOT, participation in future nuclear and non-nuclear generation, and other matters affecting the Texas electric utility industry warrants participation in this forum of border cooperatives whose operations would be as much affected by the proposed DC interconnection as any other electric system.

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Aside from the matter of timeliness, discussed below, the border cooperatives should clearly be allowed to intervene. Their petition sets forth with sufficient par-ticularity the facts of the longstanding separation of ERCOT and SWPP, imposed in restraint of trade by some of the appli-cants in these proceedings; the recent development of a comprehensive settlement proposal based on direct current (DC) interconnections; and the ways in which DC interconnec-tion would foreclose competitive opportunities to the border cooperatives and might increase the large systems' control of transmission by precluding future AC interconnections. The cooperatives at page 9 of their petition also requested spe-cific relief.

It should also be clear that the "anticompetitive situation" is such as to satisfy the nexus requirement.

Kansas Gas and Electric Company, (Wolf Creek Generating Station, Units No. 1), A LAB - 27 9 , INRC 5$9, 566-74 (1975).

II.

The five criteria to be balanced by the Commission in ruling on a nontimely petition to intervene are set out in 52.714(a)(1) of the Regulations.

A. Good Cause for Failure to File on Time.

This Board, like the Federal courts , should con- ,

sider that timeliness is not measured simply by the amount of

time elapsed, but by all the circumstances, including the purpose for intervention, the necessity for intervention to preserve the intervenor's rights, and the possible preju-dice to other parties. Hodgson v. United Mine Workers of America, 473 F.2d 118, 129 (D.C. Cir. 2972). In Hodgson the court allowed intervention after judgment where the problem was the formulation of relief. See Natural Resources Defense Council v. Costle, 561 F.2d 904 (D.C. Cir. 1977), allowing intervention to participate in implementation and oversight of a settlement agreement. So here the Board should allow the border cooperatives to intervene at this stage, where it has become apparent only within the last two months that the par-ties may present for the Board's approval an overall settle-

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ment proposal based on DC interconnections.

To Brownsville's knowledge, the first discussion of a DC interconnection as a resolution to issaes in this pro-ceeding occurred on June 10, 1980 when the large utilities presented in a prehearing conference a copy of the

" Settlement Agreement" they had signed on June 9, 1980. In the ensuing weeks it became apparent that the government agencies involved were giving serious consideration to this proposal, and draft license conditions began to take shape.

. . 1 It was then for the first time that the specific proposal for DC interconnection was revealed, potentially giving the large l utilities total control of transactions between ERCOT and the surrounding states. Also, for the first time during the summer of 1980, the large utilities provided cost data showing the proposed DC interconnection to be much more expensive than the AC alternative, a cost that, in some draft proposals, would be imposed on other systems through the rate for transmission services.

The border cooperatives have essentially asserted an interest in this proceeding based on a DC interconnection proposal less than two months old. Brownsville believes their petition to intervene to be timely under the cir-cumstances. The fact that DC interconnection may have been discussed at an earlier date in another proceeding before an agency not so directly concerned with anticompetitive issues is not relevant. "[L]icensing boards must have discretion to consider individua] claims in a way which does justice to all of the policies which underly Section 105c...," Florida Power & Light Company, (St. Lucie Plant, Unit No. 2), CLI ! 12, 7 NRC 939, 946 (1978). The border cooperatives, as their petition makes clear, are geographically located so as to make them particularly susceptible to injury when restric-i tions on interstate commerce are imposed. Such restrictions

were the basis for the advice letters from the Department of Justice finding a possible situation inconsistent with the antitrust laws with respect to the applicants for license for the South Texas and Comanche Peak plants. The border coopera-tives allege that the settlement apparently agreeable to most other parties would in fact also create or maintain a situation inconsistent with the antitrust laws. In view of the border cooperatives' unique position and the importance of their concerns to the Board's successfully abiding by its statutory mandate, the cooperatives should be admitted.

B. Other Means to Protect The Cooperatives' Interest It is not realistic to assert that participation before the FERC or another agency is now likely to provide adequate protection of the cooperatives' interest. In the first place, the settlement of the overall dispute between the major utilities appears to be developing piecemeal in several fora at the same time. If the NRC were to approve a DC interconnection, despite its anticompetitive consequences, i*. a proceeing in which the border cooperatives were not allowed to participate, the cooperatives would as a practical matter be hard pressed to put a stop to settlement along the same lines before the FERC or another forum.

Purthermore, agencies apply different legal standards, which cuts in "avor of allowing intervention, since the cooperatives presumably would not present the same points before different agencies. Specifically, the NRC's antitrust authority is clear and central to this proceeding.

How the FERC will deal with antitrust issues under the new Public Utility Regulatory Policies Act (PURPA) is not clear.

The SEC's receptiveness to antitrust issues in the proceeding before it has not been r:learly established. The NRC provides the only clearly appropriate forum for the cooperatives to present the objections to DC interconnection they raise in their petition.

C. Development of A Sound Record Brownsville believes participation by the cooperatives to be of utmost importance in developing a sound record, whether it be by commenting on settlement, participation in a Waterford-type hearing on settlement, se as the case may be a full-fledged proceeding on some or all issues. Geographically and in terms of current and future power supply plans the border cooperatives' point of view as representative of small systems affected by limitations on interstate transactions is of extrere interest to this Commission. They are also pre-sent customers of WTU (as Brownsville is of CP&L, another C&SW subsidiary) and will be able to shed light on the effect of allowing C&SW to interconnect on C&SW's wholesale customers. The fact that discovery in this proceeding was

directed to a number of members of the border cooperatives only confirms the significance of their point of view and participation. 1/

D. The Border Cooperatives' May Not Be Represented by Other Parties It is apparent that none of the private entities participating in the proceeding share the border cooperatives' interest in developing a G&T cooperative that may depend on transactions in interstate commerce. While the governmental agencies are charged with representing the public interest in general, this may involve a multiplicity of interests within the government itself and is not necessarily congruent with the interest of the border cooperatives. See Trbovich v. United Mine Workers of America, 404 U.S. 528, 538-39 & n. 10 (1972); Hodgson v. United Mine Workers of America, supra, 473 F.2d at 130. Thus the border cooperatives' point of view may not be represented. The movement towards a settlement agreement on DC interconnection, despite the very serious objections the border cooperatives have been able to raise in their petition, is a strong indication that their interests are not in fact being represented, and that they should be admitted forthwith to protect their interests and to allow the Commission the benefit of their point of view.

1/ Tnat discovery was directed to the cooperatives by the Department of Justice effectively negates any contention by Houston Lighting & Power Company that the facts alleged bring new issues into the proceeding without an opportunity for investigation.

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E. Broadening of Issues or Delaying Proceeding Paticipation by the border cooperatives will not broaden the issues before this Board in the slightest.

Governmental parties such as the Department of Justice and private parties like Brownsville have already raised the issue of how restraints on interstate power transactions imposed by the applicants may create or maintain a situation inconsistent with the antitrust laws. The Board in furtherance of its statutory responsibilities would presumably examine any DC interconnection proposal presented to it in detail with these issues in mind, and the ef fects of cost of DC, transmission rates and access to transmission and generation

-- matter.c raised by the cooperatives -- would be part of this examination.

Any delay caused by intervention of the border cooperatives at this stage will be minimal when balanced against the contribution the cooperatives could make. With so many parties already in the proceeding, the additional delay imposed by receiving comments or allowing examination by the border cooperatives is hardly likley to make a significant difference to the other parties. The cooperatives apparently contemplate relying on one witness not previously deposed.

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This should pose little hardship to the parties, who have, to Brownsville's knowledge, postponed depositions of witnesses past the Board-imposed discovery cut-off date, such deposi-tions to take place if settlement negotiations are unsuccessful.

CONCLUSION For the above reasons, Brownsville respectfully requests the Board to grant the petition of the Texas border cooperatives for leave to intervene, under 52.714(a)(2) and 2.714(d) of th Regulations, since on balance the border cooperatives have made the showing required for non-timely interventions by S2.714(a)(1), and since their participation is likely to provide the Commission information of importance in evaluating whether a proposed settlement based on DC inter-connections might create a situation inconsistent with the antitrust laws.

Respectfully submitted, IA L/Vt4w L hi cat %

Marc R. Poirier Attorney for the Public Utilities Board of the City of Brownsville, Texas Law Offices Of:

SPIEGEL & MCDIARMID 2600 Virginia Avenue, N.W.

Washington, D.C. 20037 August 13, 1980 on - + ~ w- q -, s . - m ---n -m - m

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY LICENSING BOARD In the Matter of )

)

HOUSTON LIGHTING & POWER COMPANY, ) Docket Nos. 50-498A e t al. ) and 50-499A

)

(South Texas Project, Unit Nos. )

1 and 2) )

)

)

)

In the Matter of )

)

TEXAS UTILITIES GENERATING COMPANY, ) Docket Nos. 50-445A et al. ) and 50-446A

)

(Comanche Peak Steam Electric )

Station, Unit Nos. 1 and 2) )

)

CERTIFICATE OF SERVICE I hereby certify that I have caused copies of the foregoing ANSWER OF THE PUBLIC UTILITIES BOARD OF THE CITY OF BROWNSVILLE, TEXAS IN SUPPORT OF THE PETITION TO THE TEXAS BORDER COOPERATIVES FOR LEAVE TO INTERVENE to be served on the following by deposit in the United States mail, first class, or as indicated by asterisk (*) by hand, postage paid, this 13th day of August, 1980.

• Marshall E. Miller, Chairman *Sheldon J. Wolfe, Esquire Atomic Safety & Licensing Board Atomic Safety & Licensing Board Panel Panel Nuclear Regulatory Commission Nuclear Regulatory Commission i Washington, D. C. 20555 Washington, D. C. 20555 l

• Michael L. Glaser, Esquire Joseph Rutberg , Esquire

! 1150 17th Street, N. W. Antitrust Counsel Washington, D. C. 20036 Nuclear Regulatory Commission Washington, D. C. 20555 Fredric D. Chanania, Esq.

Michael B. Bl ume , Esq. R. Gcrdon Gooch, Esquire Ann Hodgdon, Esq. John P. Mathis, Esquire l

Nuclear Regulatory Commission Baker & Botts Washington, D. C. 20555 1701 Pennsylvania Avenue , N. W.

Washington, D. C. 20006 i

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Jerome Saltzman, Chief Antitrust & Indemnity Group Robert Lowenstein , Esquire Nuclear Regulatory Commission J. A. Bouknight, Jr., Esquire  ;

Washington, D. C. 20555 William J. Franklin, Esquire i Lowenstein, Newman, Re is , i Chase R. Stephens, Chief Axelrad & Toll Docketing & Service Section 1025 Connecticut Avnue, N. W. l I

Office of the Secretary Washington, D. C. 20036 Nuclear Regulatory Commission Washington, D. C. 20555 Frederick H. Ritts, Esquire Law Offices of Northcutt Ely David M. Stahl, Esquire Watergate 600 Building Sarah F. Holzsweig, Esquire Washington, D. C. 20037 Isham, Lincoln & Beale 1120 Connecticut Avenue, N.W. Wheatley & Wolleson Suite 325 1112 Watergate Office Building Washington, D.C. 20036 2600 Virginia Avenue, N. W.

Washington, D. C. 20037 Susan B. Cyphert, Esquire Antitrust Division Willaim Sayles, Chairman and Department of Justice Chief Executive Officer P. O. Box 14141 Central Power & Light Company Washington, D.C. 20444 P. O. Box 2121 Corpus Christi, Texas 78403 Joseph Knotts, Esquire Nicholas S. Reynolds, Esquire G. K. Spruce, General Manager Debevoise & Liberman City Public Service Board 1200 17th Street, N. W. P. O. Box 1771 Washington, D. C. 20036 San Antonio, Texas 78201 l

Douglas F. John, Esquire Jon C. Wood, Esquire

, McDermott, Will & Emery W. Roger Wilson, Esquire 1101 Connecticut Avenue, N.W. Matthews, Nowlin, Macfarlane l

l Suite 1201 & Barrett l Washington, D.C. 20036 1500 Alamo National Building

! San Antonio, Texas 78205 Robert O'Neil, Esquire l

Miller, Balis & O'Neil Perry G. Brittain, President

! 776 Executive Building Texas Utilities Generating Co.

1030 Fifteenth Street, N.W. 2001 Bryan Tower

! Washington, D.C. 20005 Dallas, Texas 75201 Ms. Evelyn H. Smith J. Irion Worsham, Esquire Route 6, Box 298 Merlyn D. Sampels, Esquire

- Gaffney, South Carolina 29340 Spencer C. Relyea, Esquire Worsham, Forsythe & Sampels Dick T. Brown, Esquire 2001 Bryan Tower 800 Milam Building Suite 2500 San Antonio, Texas 78205 Dallas, Texas 75201

R. L. Hancock, Director G. W. Oprea, Jr.

City of Austin Electric Utility Executive Vice President Department Houston Lighting & Power Co.

P. O. Box 1088 P. O. Box 1700 Austin, Texas 78767 Hcuston, Texas 77001 Jerry L. Harris, Esquire W. S. Robson, General Manager Richard C. Balough, Esquire South Texas Electric Coop., Inc.

City of Austin P. O. Box 151 P. O. Box 1088 Nursery, Texas 77976 Austin, Texas 78767 Don H. Davidson Michael I. Miller, Esquire City Manager Isham, Lincoln & Beale City of Austin One First National Plaza P. O. Box 1088 Chicago, Illinois 60603 Austin, Texas 78767 Donald Clements , Esquire Don R. Butler, Esq. Gulf States Utilities Co.

Sneed, Vine, Wilkerson, Selman P. O. Box 2951

& Perry Beaumont, Texas 77074 P. O. Box 1409 Austin, Texas 78767 Knoland J. Plucknett Executive Director Morgan Hunter, Esquire Committee on Power for the McGinnis, Lochridge & Kilgore Southwest, Inc.

900 Congress Avenue 5541 Skelly Drive Austin, Texas 78701 Tulsa, Oklahoma 74135 Kevin B. Pratt, Esquire Jay M. Galt, Esquire Linda Aaker, Esquire Looney, Nichols, Johnson & Hayes P. O. Box 12548 219 Couch Drive Capital Station Oklahoma City, Oklahoma 73101 Austin, Texas 78767 Robert E. Cohn, Esq.

E. W. Barnett, Esquire Richard J. Le id i , Esq.

Charles G. Thrash, Jr., Esquire Butler, Binion, Rice, Cook J. Gregory Copeland, Esquire & Knapp Theodore F. Weiss, Jr., Esquire 1747 Pennsylvania Ave., N.W.

Baker & Botts 9th Floor 3000 One Shell Plaza Washing ton , D.C. 20006 Houston, Texas 77002 Leland F. Leatherman, Esq.

Paul W. Eaton, Jr., Esq.

Hinkle, Cox, Eaton, Coffield McMath , Leatherman and Woods , P.A and Hensley 711 West Third Street P. O. Box 10 Little Rock, Arkansas 72201 Roswell, New Mexico 88201

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Somervell County Public Library P. O. Box 417 Glen Rose , Texas 76403 Maynard Human, General Manager Western Farmers Electric Coop.

P. O. Box 429 Anadarko, Oklahoma 73005 James E. Monahan Executive Vice President and General Manager Brazos Electric Power Coop., Inc.

P. O. Box 6296 Waco, Texas 76706 Robert M. Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue, N. W.

Washington, D. C. 20006 W. N. Woolsey, Esquire Dyer and Redford 1030 Petroleum Tower Corpus Christi, Texas 78474 Mr. G. Holman King West Texas Utilities Co.

P. O. Box 841 Abilene, Texas 79604 Maurice V. Brooks, Esq.

Brooks , Gordon, Long & Shahan P. O. Box 118 Abilene, Texas 79604 hL 4% W i Marc R. Poirier Attorney for the Public Utilities' Board of the City of Brownsville, j Texas August 13, 1980 l

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