ML19344D860
| ML19344D860 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 08/19/1980 |
| From: | Green D BAKER & BOTTS, HOUSTON LIGHTING & POWER CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8008260166 | |
| Download: ML19344D860 (15) | |
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UNITED STATES OF AMERICA AUG 191980 > aZ NUCLEAR REGULATORY COMMISSION
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q' 0! fica of the Secretary D=hting & Se vice p Branch 7
BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD y
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In the Matter of
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HOUSTON LIGHTING & POWER
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Docket Nos. 50-498A COMPANY, et al.
(South
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50-499A Texas Project, Units 1
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and 2)
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TEXAS UTILITIES GENERATING
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Docket Nos. 50-445A COMPANY, et al.
(Comanche
)
50-466A Peak Steam Electric
)
Station, Units 1 and 2)
)
RENEWAL OF PETITION FOR DIRECTED CERTIFICATION AND REVIEW ON BEHALF OF HOUSTON LIGHTING &
POWER COMPANY On August 14, 1980 by Memorandum Order, this Board, noting that the Licensing Board upon reconsideration had adhered to its March 7 oral discovery ruling, invited the parties which had previously filed for directed certification of that ruling to renew their petitions.
Houston Lighting
& Power Company [ Houston] hereby respectfully renews its petition for directed certification and review.
In its Memorandum Order this Board indicated its desire to be concisely apprised of any supervening developments which may bear on the warrant for interlocutory review or the merits of the controversy.
When the parties appeared before this Board on March 27, 1980, negotiations which had been stalled for many months had just been reinstituted, and the govern-mental parties had not entered the circle of negotiations.
Since that time, the following events, most of which have 8 00gge n y,gg i
been reported to this Board in the parties' status reports, have transpired:
(a) the accord, then embryonic, between Houston, Central and South West Corp. [CSW], and Texas Utilities [TU) has developed into a compromise between these companies; (b) the circle of negotiations has been widened to include the governmental parties and other entities; (c) Tex-La Electrical Cooperatives have joined the compromise vis-a-vis the Comanche Peak proceeding; (d) CSW has filed an Offer of Settlement at FERC, proposing an interregional DC Interconnection between ERCOT and SWPP; (e) the Department of Energy has filed with FERC comments supporting that DC Interconnection as in the public interest (copy annexed); (f) the Department of Justice has recently indicated it may be willing to move off its previously intractable position and undertake serious settlement nego-tiations (br. 988-90); (g) the Licensing Board has set a schedule calling for further settlement negotiations through September 15, 1980.
Houston believes that these supervening developments underscore two points.
(1)
While there has in fact been a progression of events in the settlement negotiations, the issue before this Appeal i
f Board remains now, as it was previously, a direct question of That question simply stated, is whether Nuclear Regulatory law.
Commission practice recognizes a privilege of confidentiality for documents generated solely in the context of settlement.
This legal question is presented for resolution here in the clearest possible terms.
If anything, recent events, have brought the issues into even sharper focus.
(2)
There is now not a mere possibility of a compro-mise in this case, at least a partial settlement has already been consummated.
This development amplifies the arguments Houston briefed to the Board earlier in two basic respects.
First, contrary to the skepticism expressed by the Licensing Board at the March 7 Prehearing Conference, the signed settlement agreement among Houston, TU and CSW confirms that serious and meaningful settlement negotiations have taken place.
Thus, to the extent that the Licensing Board's prior decision was predicated on doubts that the documents in ques-tion were in fact generated in the course of meaningful settle-ment efforts, supervening developments have undermined that aspect of the Board's order.
Second, previously the movants were seeking compromise documents solely with a view towards using them to prejudice Houston's litigating position.
Now, they apparently have added to this the intention to employ those documents to pre-l l
judice the compromise itself.
l After several years of litigation here and in other t
l forums, Houston hac settled its dispute with CSW in a manner that has involved real compromises for each.
Such compromises are a paramount objective of the Commission's policy encouraging
i 1
settlement.-/
Given this objective, it cannot be sound policy to adopt a rule whose effect would be to undermine the com-promises the Commission has encouraged.
If a party is to find its litigating position prejudiced because it has studied compromise, and is to find its compromise under attack because in its course there may have been studies of the argument on either side,-! the risks of negotiations become as dangerous as the risks of litigation.
The Licensing Board's rule will ineluctably effect the willingness of par-ties in future litigation to enter into compromise and find themselves placed in the same circumstances.
There is no merit in the argument, propounded by the governmental parties to the Licensing Board, that the fact the parties have continued their negotiations indicates that the threat of disclosure has not " chilled" them and would have no effect in future cases.
That the parties continued their negotiations reflects both the extent to which they had already
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"We wish to urge all parties to pursue vigorously settle-ment of the antitrust proceeding.
A settlement voluntarily reached is far preferable to a lengthy trial followed by an involuntary resolution."
Appeal Board Order dated April 15, 1980 at 4.
It should be noted that the moving parties here seek not merely such studies as may exist concerning the particular DC Interconnections that the parties have agreed to construct.
i f
Rather, they seek to conduct a fishing expedition to discover any studies that may generally pertain to the interconnection of ERCOT and the SWPP.
Joint Motion at 6.
committed themselves and their genuine response to the encour-agement of this Appeal Board and NRC regulations.
What transpires before this Board and in the hearing below will chart the waters for litigants in the future.
For the foregoing reasons and the reascas previously argued and briefed to this Board, Houston's petition for directed certification should be granted, and the Licensing Board's March 7 ruling should be reversed.
Respectfully submitted, B + k w/ne Douglas G. Green Attorney for Houston Lighting &
Power Company OF COUNSEL:
Baker & Botts 3000 One Shell Plaza Houston, Texas 77002 Lowenstein, Newman, Reis, Axelrad & Toll 1025 Connecticut Ave., N.W.
Washington, D.C.
20036
l UNITED STATES OF AMERICA NUCLEAR REGULATORY CO.vl!ISSION BEFORE THE ATOMIC SAFETY A'iD LICENSING APPEAL BOARD In the Matter o.
)
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HOUSTON LIGHTING & POWER COMPM;Y,
)
Docket Nos. 50-498A et al.
)
50-499A
)
(South Texas Project, Units 1
)
and 2)
)
)
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TEXAS UTILITIES GENERATING COMPANY )
Docket Nos. 50-445A et al.
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50-446A
)
(Comanche Peak Steam Electric
.)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the foregoing:
RENEWAL OF PETITION FOR DIRECTED CERTIFICATION AND REVIEW ON BEHALF OF HOUSTON LIGHTING & POWER COMPM;Y were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage prepaid, this 19th day of August, 1980.
Peter G.
Flynn I
- Alan S. Rosenthal, Chairman Jon C. Wood, Esquire Atomic Safety & Licensing Appeal Matthews, Nowlin, Macfarlane s
Board Panel
& Barrett U.S. Nuclear Regulatory Commission 1500 Alamo National Building Washington, D.C.
20555 San Antonio, Texas 78205
- Thomas S. Moore Charles G. Thrash, Jr., Esquire Atomic Safety and Licensing Appeal E.W. Barnett, Esquire Board Panel Theodore F. Weiss, Esquire U.S. Nuclear Regulatory Commission J. Gregory Copeland, Esquire Washington, D.C.
20555 Baker & Botts 3000 One Shell Plaza
- Michael C. Farrar Houston, Texas 77002 Atomic Safety & Licensing Appeal Board Panel R. Gordon Gooch, Esquire U.S. Nuclear Regulatory Commission Steven R. Hunsicker, Esquire Washington, D.C.
20555 Baker & Botts 1701 Pennsylvania Avenue
, Marshall E. Miller, Chairman Washington, D.C.
20006 Atomic Safety & Licensing Board Panel
- Frederic D.
Chanania, Esquire U.S. Nuclear Regulatory Commission Michael B. Blume, Esquire Washington, D.C.
20555 Ann P. Hodgdon, Esquire U.S. Nuclear Regulatory Commission
- Michael L. Glaser, Esquire Washington, D.C.
20555 1150 17th Street, N.W.
Washington, D.C.
20036 Roff Hardy Chairman and Chief Executive
- Sheldon J. Wolfe, Esquire Officer Atomic Safety & Licensing Board Central Power and Light Company Post Office Box 2121 Panel U.S. Nuclear Regulatory Commission Corpus Christi, Texas 78403 Washington, D.C.
20555 G.K. Spruce, General Manager
- Atomic Safety and Licensing City Public Service Board Appeal Board Panel Post Office Box 1771 l
U.S. Nuclear Regulatory Commission San Antonio, Texas 78203 l
Washington, D.C.
20555 Mr. Perry G. Brittain ib* Chase R. Stephens, Supervisor (20)
President Docketing and Service Branch Texas Utilities Generating Company U.S. Nuclear Regulatory Commission 2001 Bryan Tower Washington, D.C.
20555 Dallas, Texas 75201 Mr. Jerome D. Saltzman G.W.
Oprea, Jr.
Chief, Antitrust and Indemnity Executive Vice President Houston Lighting & Power Company Group U.S. Nuclear Regulatory Commission Post Office Box 1700 Washington, D.C.
20555 Houston, Texas 77001 J.
Irion Worsham, Esquire R.L. Hancock, Director Merlyn D. Sampals, Esquire City of Austin Electric Utility Spencer C. Ralyea, Esquire Post Office Box 1086 Worsham, Forsyth & Sampels Austin, Texas 78767 2001 Bryan Tower, Suite 2500 Dallas, Texas 75201
- Kenneth M. Glazier, Esquire Don R. Butler, Esquire David A. Dopsovic, Esquire 211 East Seventh Street Frederick H. Parmenter, Esquire Austin, Texas 78701 Susan B. Cyphert, Esquire Nancy A. Luque, Esquire Mr. William C. Price Robert Fabrikant, Esquire Central Power & Light Company Energy Section Antitrust Division Post Office Box 2121 U.S. Department of Justice Corpus Christi, Texas 78403 P.O. Box 14141 Washington, D.C.
20044 Mr.
G. Holman King West Texas Utilities Company Morgan Hunter, Esquire Post Office Box 841 Bill D.
St. Clair, Esquire Abilene, Texas 79604 McGinnis, Lockridge & Kilgore Fifth Floor Jerry L.
Harris, Esquire Texas State Bank Building Richard C. Balough, Esquire 900 Congress Avenue City of Austin Austin, Texas 78701
-Post Office Box 1088 Austin, Texas 78767 W.S. Robson General Manager
- Joseph B. Knotts, Jr., Esquire South Texas Electric Cooperative, Nicholas S. Reynolds, Esquire Inc.
C. Dennis Ahearn, Esquire Route 6, Building 102 Debevoise & Liberman Victoria Regional Airport 1200 Seventeenth Street, N.W.
Victoria, Texas 77901 Washington, D.C.
20036
- Robert C. McDiarmid, Esquire George Spiegel, Esquire Don H. Davidson Robert A. Jablon, Esquire City Manager Marc R. Poirier, Esquire City of Austin P.O. Box 1088 Spiegel & McDiarmid Austin, Texas 78767 2600 Virginia Avenue, N.W.
Suite 312 Jay Galt, Esquire Washington, D.C.
20037 Looney, Nichols, Johnson & Hays 219 Couch Drive Kevin B. Pratt Oklahoma City, Oklahoma 73102 Texas Attorney General's Office Post Office Box 12548 Knolant J. Plucknett Austin, Texas 78711 Executive Director Committee on Power for the South-
- William H. Burchette, Esquire Frederick H. Ritts, Esquire west, Inc.
5541 East Skelly Drive Law Offices of Northcutt Ely Tulsa, Oklahoma 74135 Watergate 600 Building Washington, D.C.
20036 John W. Davidson, Escuire Sawtell, Goode, Davidson & Tioili Tom W. Gregg,' Esquire 1100 San Antonio Savings Building Post Office Box Drawer 1032 San Antonio, Texas 78205 San Angelo, Texas 76902
- Douglas F. Johh, Escuire Leland F. Leatherman, Esquire McDermott, Will and Emery McMath, Leatherman & Woods, P.A.
1101 Connecticut Avenue, N.W.
711 West Third Street Suite 1201 Little Rock, Arkansas 72201 Washington, D.C.
2003,6 s
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Robert E. Cohn, Esquire Joseph Gallo, Esquire Robert H. Loeffler, Esquire Richard J.
Leidl, Esquire David M.
Stahl, Esquire Butler, Binion, Rice, Cook
& Knapp Isham, Lincoln & Beale 1120 Connecticut Avenue, Suite 325 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20036 Ninth Floor Washington, D.C.
20006 Michael I. Miller, Esquire James A. Carney, Esquire Stephen H. Lewis, Esquire U.S.
Nuclear Regulatory Commission Sarah Welling, Esquire Martha E. Gibbs, Esquire Office of the Executive Legal Director Isham, Lincoln & Beale One First National Plaza Washington, D.C.
20555 Suite 4200 Chicago, Illinois 60603 Paul W.
Eaton, Jr., Esquire Hinkle, Cox, Eaton, Coffield & Hensley 600 Henkle Building Post Office Box 10 Roswell, New Mexico 88201 Robert M.
Rader, Esquire Conner, Moore & Corber 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 W.N. Woolsey, Esquire Kleberg, Dyer, Redfors & Weil 1030 Petroleum Tower Corpus Christi, Texas 78474 Donald M.
Clements, Esquire Gulf States Utilities Company Post Office Box 2951 Beaumont, Texas 77704 Dick Terrell Brown, Esquire 800 Milam Building San Antonio, Texas 78205
- Robert A. O'Neill, Esquire Miller, Balis & O'Neill, P.C.
776 Executive Building 1030 Fifteenth Street, N.W.
Washington, D.C.
20005 h
UNITED STATES OF AMERICA BEFORE THE FEDERAL ENERGY REGULATORY COMMISSION CENTRAL POWER AND LIGHT COMPANY,
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PUBLIC SERVICE COMPANY OF OKLAHOMA,
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Docket No. EL79-8 SOUTHWESTERN ELECTRIC POWER COMPANY,
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WEST TEXAS UTILITIES COMPANY
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COMMENTS OF THE UNITED STATES DEPARTMENT OF ENERGY TO OFFER OF SETTLEMENT The Department of Energy (DOE) herewith comments upon the prop 0 sed settlement agreement offered by the Central and South West Corporation, on behalf of itself and its subsidiary corporations, Central Power and Light Company, West Texas Utilities Company, Public Service Company of Oklahoma and Southwestern Electric Power Company, Dallas Power and Light Company, Texas Electric Service Company, Texas Power and Light Company and Houston Lighting and Power Company in the above entitled proceeding.
DOE strongly supports the proposed settlement.
The Economic Regulatory Administration of DOE has been delegated with certain responsibilities pursuant to Section 202(a) of the Federal Power Act.
These responsibilities include encouraging the interconnection and coordination of electric power systems to the extent that such efforts enhance the adequacy and reliability of electric supply throughout the United States, reduce the cost of electricity, and improve utilization and conservation of energy resources.
Pursuant to this mandate, DOE hereby submits its comments on the proposed settlement offer.
The Proposed Interconnections Would Provide Significant Interconnection and Coordination Benefits 1.
DOE's review of the proposed settlement, the power supply plans and the needs of the member utilities of both the Electric Reliability Council of Texas (ERCOT) and the Southwest Power Pool (SWPP) indicate that the proposed interconnections would:
(a) enable both the systems of ERCOT and SWPP to exchange significant amounts of power and energy during routine operating conditions
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and emergency situations resulting in an overall improvement in the reliability of both regions; (b) enable the economic exchange of energy between the regions resulting in the more efficient use of facilities and resources, lower costs to the consumers of both ERCOT and SWPP, and reductions in oil and gas usage; (c) result in increased flexibility in generation planning and overall system operations with potentially large economic benefits to consumers in both regions; and (d) improve each region's ability to offer and receive emergency assistance during major fuel or capacity constrained situations, and, thereby, enable a moderation of social and economic impacts which could arise from a prolonged emergency.
2.
The proposed interconnections vould continue to provide additional interconnection and coordination benefits to the area in the future.
The settlement allows for increasing the interconnection capacity in the future and thus provides for the growth of regional interconnection and coordination.
It also provides the opportunity for other systems to participate in ownership of the interconnections at frequent intervals as the opportunity for enhanced coordination arises.
3.
The proposed interconnections would result in inproved slanning and operation of the CSW system to the benefit of its ratepayers.
For the first time the CSW companies would be provided the opportunity to plan for new generation capacity as a single integrated system.
This would enable the CSW companies to use larger, more efficient generating units.
The CSW companies would also have the ability to employ central economic dispatch with respect to the generating units of all four of the CSW companies.
This would provide them with the opportunity to operate as a single integrated system and thereby more efficiently use their generating facilities.
4.
The settlement plan represents a viable and appro-priate resolution to many other power supply concerns.
The proposed interconnections would provide the opportunity for the exchange of power and energy between and among systems in ERCOT and SWPP other than the CSW companies.
Provisions in the settlement
- offer which provide for participation in
ownership of the proposed DC interconnections by other systems and wheeling to, from, and over the DC interconnections, appear to be reasonable and workable. Further, DOE believes that the benefits derived from these initial interconnections will lead to additional integration and coordination of the entire region as historically demonstrated by other inter-connected regions in the country.
The Proposed Settlement Agreement Meets the Requirements of the Federal Power Act The settlement agreement offered by the CSW companies, the Texas Utilities Companies and Houston Lighting and Power meets the requirements of Sections 210, 211, and 212 of the Federal Power Act as follows:
1.
The proposed plan is in the public interest The proposed plan interconnects two large electric systems giving them the ability to exchange power and energy of a substantial amount on a regular basis for the benefit of both regions.
The interconnections would enable increased coordination of the CSW companies in both the planning and operation areas resulting in significant savings to their ratepayers.
In addition, since these interconnections establish the initial tie between ERCOT and SWPP, systems in both regions would, for the first time, have the ability to exchange power and energy for economic reasons, for emergency assistance, and for the conservation of scarce natural resources.
In particular, during fuel or generating capacity shortages, the proposed interconnections would provide assistance in maintaining reliable system operation in ERCOT, SWPP and perhaps elsewhere in the eastern interconnected electric systems.
2.
The proposed interconnections would optimize the efficiency of use of facilities and resources and encourage conservation of energy and capital The proposed interconnections provide a means for the interconnected systems to use the most efficient generators in either region to satisfy their demands.
This would result in the more effective use of those generators, the more efficient use of resources in the generation of power and the ability of the systems to produce the same amount of power at a lower cost.
In addition the interconnections would provide the mear.s for joint ownership of large efficient units by any of the interconnected systems and allow the CSW companies to plan and operate their generating facilities on a centralized singlesystembasis].
i, 3.
The proposed interconnections will improve the reliability of the electric utility systems in the region Analysis of the effect of the interconnections on the reliability of the interconnected systems was performed under the direction of the Technical Study Steering Committee.
(TSSC).This analysis indicated that there would be an improvement in the reliability of both ERCOT and SWPP as a result of the interconnections.
4.
The proposed settlement will reasonably preserve
- gxi[ ting competitive relationships DOS believes that this settlement offer will reasonably preserve existing competitive relationships.
The wheeling provision of the agreement provides access to the interconnections for systems in ERCOT not adjacent to the ties.
Competition should be enhanced due to this access providing more flexibility for all systems.
Competition should also be enhanced as power supply options arise that do not now presently exist, particularly for the smaller systems.
5.
The proposed interconnections are not likely to result in uncompensated economic loss, place an undue burden on, or impair the ability of an electric utility to render adequate service Analysis of the effect of the interconnections on the electric utilities affected by any interconnection and wheeling order was conducted under the direction of the TSSC.
Those analyses have not indicated that the inter-connections would result in uncompensated economic loss, placement of an undue burden on, or impairment of the ability to render adequate service of any electric utility affected by the interconnection and wheeling order.
Conclusion ib For all of the foregoing reasons, the DOE urges the adoption of the proposed settlement agreement offered by CSW, HLP and TUCS.
In DOE's opinion, the interconnection plan (1) would encourage the overall conservation of Laergy and capital, (2) would improve the efficiency of use of facilities and resources and (3) would improve the reliability of the electric utility systems in ERCOT and SWPP.
Furthermore, DOE believes that existing competitive relationships will be preserved, and that the benefits derived from this initial interconnection will lead to further integration and coordination of the entire region and greater competition.
4
5-o It is DOE's belief that a timely resolution of this proceeding along the lines proposed in the of fer of settlement will resolve the regional energy supply problems and set the stage for settlement of the other proceedings which involve the interconnection question.
Re y etfully Submitted,
\\ CO,g s
Lawrence A. Gollemp Assistant General Counsel for Regulatory Interventions Michael D. Oldak Attorney Advisor e
o.
CERTIFICATE OF SERVICE I hereby testify that I have served a copy of the foregoing Comments of the United States Department of Energy
-by depositing copies thereof in the United States Mail, first class, postage pre-paid, this 7th day of August, 1980
.upon all parties of record.
/ Michael D. Oldak 4
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