ML19345D872
| ML19345D872 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak  |
| Issue date: | 12/03/1980 |
| From: | Ahearn C, Knotts J DEBEVOISE & LIBERMAN, TEXAS UTILITIES ELECTRIC CO. (TU ELECTRIC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8012170672 | |
| Download: ML19345D872 (59) | |
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W BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
/
f In the Matter of:
e HOUSTON LIGHTING AND POWER CO.,
)
et al.
)
)
Docket Nos. 50-498A (South Texa. Project, Units
)
50-499A 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
COMPANY, et al.
)
)
Docke t Nos. 50-445A (Comanche Peak Steam Electric
)
50-446A Station, Units 1 and 2)
)
TUGCO'S (1) RESPONSE TO BROWNSVILLE'S NOVEMBER 12, 1980 COMMENTS ON PROPOSED LICENSE CONDITIONS AND (2) STATEMENT PURSUANT TO REQUEST OF BOARD AT OCTOBER 24, 1980 PREHEARING CONFERENCE Joseph B.
Knotts, Jr.
C. Dennis Ahearn Attorneys for Texas Utilities Generating Company Law offices of:
DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
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Washington, D.C.
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December 3, 1980 t
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e TABLE OF CONTENTS Page I.
INTRODUCTION.......................................
1 II.
SUMMARY
OF ARGUMENT................................
4 i
A.
A Record Would Be Required to Modify Conditions 4
B.
Failure To Allege Nexus Or Significant Changes.
7 C.
NRC Jurisdiction and Procedures................
8 III. BROWNSVILLE'S SIX OBJECTIONS.......................
9 A.
Interconnections...............................
9 B.
Wheeling.......................................
12 C.
PUB Participation In The South Texas Project...
14 D.
PUB Participation In STIS and TIS..............
15 E.
Bulk Power.....................................
15 F.
DC Versus AC Connections.......................
16 IV.
PROCEDURAL AND JURISDICTIONAL MATTERS..............
17 A.
Previous Licensing Board Decisions Offer Guidance For The Determination Of Future Procedures In This Proceeding..................
18 B.
The NRC Lacks The Requisite Jurisdiction And Statutory Authority To Decide The Rate And Optimum Form Of Connection Questions Raised By Brownsville.................................
25 1.
The Atomic Energy Act did not grant the NRC any authority to regulate rates or other detailed aspects of transmission services..
28 a.
The Atomic Energy Act..................
28 i.
Section 271........................
29 ii. Section 272........................
32
-i-
Page b.
NRC Decisions.........................
33 2.
The absence of significant changes in licensee's activities removes any basis for holding an operating license anti-trust review..............................
41 a.
An operating license antitrust review is restricted to significant changes in the licensees' activities and their effects...............................
42 b.
There have been no significant changes in applicants' activities since the prior antitrust review................
45 3.
Brownsville has failed to demonstrate the required nexus between its complaints and the nuclear facilities involved...........
- l. 6 V.
BROWNSVILLE HAS NOT SHOEN ENOUGH TO MERIT A HEAR-ING IN THIS PROCEEDING............................
50 i
l I
l l-I
- ii -
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:
HOUSTON LIGHTING AND POWER CO.,
)
et al.
)
)
Docket Nos. 50-498A (South Texas Project, Units
)
50-499A 1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
COMPANY, et al.
)
)
Decket Nos. 50-445A (Comanche Peak Steam Electric
)
50-446A Station, Units 1 and 2)
)
TCGCO'S (1) RESPONSE TO BROWNSVILLE'S NOVEMBER 12, 1980 COMMENTS ON PROPOSED LICENSE CONDITIONS AND (2) STATEMENT PURSUANT TO REQUEST OF BOARD AT OCTOBER 24, 1980 PREHEARING CONFERENCE I.
INTRODUCTION On September 12, 1980, all parties in each of the captioned proceedings, with the exception of the Public Utilities Board of Brownsville, Texas ("Brownsville" or
" PUB") a party only in the South Texas proceeding,1! filed 1/
TUGCO filed on October 6, 1980 a motion to strike re-l ferences to Comanche Peak in Brownsville's Motion dated September 25, 1980.
At the October 24, 1980 Prehearing Conference, the Board indicated that TUGCO could assume the motion would be granted (Tr. 1259) and that such would extend to other pending and subsequent Brownsville filings (Tr. 1266).
Accordingly, TUGCO views Browns-ville's comments as limited by the Board to the South Texas conditions and treats the references to Comanche Peak as if stricken.
TUGCO responds in its capacity as an intervenor in South Texas, but in so responding does not either waive its position as to Brownville's lack of party rights in Comanche Peak nor agree to the relevance of comments about TU or Comanche Peak in the South Texas case.
l i
. settlement status reports indicating their agreement to license conditions (attached to the reports) for the respec-tive facilities.
Brownsville subsequently was given leave to file comments on the conditions, but filed them as a part of a motion (September 25, 1980) to disapprove the proposed conditions.
Brownsville also commented on the conditions in a document styled as its trial brief (dated October 8, 1980), and was then given leave to state its comments on the record at the October 24, 1980 Prehearing Conference.
Finally, Brownsville was allowed to state orally or in writing specifically why it would be prejudiced by the conditions (Tr. 1145, 1162, 1258), how the conditions would create or maintain an anticompetitive situation (Tr. 1105, 1256), or wherein tne conditions were ambiguous or otherwise deficient (Tr. 1258).
The other parties were requested to respond to Brownsville and to explain the operation of the conditions (Tr. 1252).
The governmental parties were also asked to e xplain how the conditions remedy the principal allegations and why the conditions are in the public inte-l rest.
(Tr. 1252,'1258, 1262).
i i
In its November 10, 1980 Order Denying HL&P's Motion fur Clarification, the Board summarized what it expected from r-Brownsville in its written submission as follows:
"the Board directed Brownsville to file in writing its objections to the proposed license conditons, indicating in what way the activities under the license would create or maintain a situation inconsistent with the specified anti-trust laws or their clearly underlying policies (Sec' ion 105(c)(5))."
(Order at 2-3).
. The Board went on to indicate that the need for a hearing would be determined from consideration of the objections to the license conditions, and that it would then frame any appropriate issues.
(Order at 3).
TUGCO believes that the South Texas conditions will be demonstrated to be within the public interest and not prejudicial to Brownsville.
If Brownsville has shown its right to a hearing in South Texas (which we dispute), then such hearing would be a plenary one considering both liabil-ity and, if necessary, relief, with the activities under the license considered under the injunctions of the license conditions.
TUGCO continues to believe that the Comanche Peak proceeding can simply be terminated at the appropriate time inasmuch as all parties to that operating license antitrust proceeding have settled.
No findings by the Board are technically required in such circumstances, much less is there a need for a hearing, in Comanche Peak, whatever may be the Board's ruling on Brownsville's entitlement to an hearing in South Texas.
Finally, rather than take it upon ourselves to explain how the South Texas conditions operate or are in the public. interest, we leave that task to the Applicants and the governmental parties in South Texas.
In the following sections, we discuss Brownsville's comments, the procedural and jurisdictional aspects of
-4 further proceeding.s and whether Brownsvilla nas demonstrated (or lost) any right to a South Texas hearing.
II.
SUMMARY
OF ARGUMENT Brownsville seems to have both gone far afield from and fallen short of what the Board requested it to provide.
It presents a lengthy analysis (PUB comments of November 12, 1980 at pp. 31 - 80) of antitrust principles applicable to facts not here proven.
It does not demand a hearing (see Tr. 1188, 1190-93, 1195), nor does it address the jurisdictional and procedural questions pertaining to an hearing as requested by the Board (Tr. 1264).
Finally, PUB fails to discuss either nexus (Tr. 1158, 1183-85 and 1193) or significant changes.
(Notice of hearing in South Texas, 43 Fed. Reg. 15811 at 15812 (April 14, 1978)).
A. A Record Would Be Reauired To Modify Conditions Brownsville's criticism of the license conditions insofar as they relate to interconnection illustrate a pervasive defect in PUB's approach.
Brownsville argues that the license conditions would permit the maintenance of a situation inconsistent with the antitrust laws, to wit, an agreement or combination to exclude interstate electricity from the service areas of the intrastate applicants, which, they say, effects an artificial market division and also
. tends to disrupt transactions within the intrastate market.
The difficulty with this theory of Brownsville (and indeed all of its liability theories) is that it is, on the present state of the record, nothing more than ethereal speculation.
There is, at this juncture, no record basis for the propositions that there is an illegal agreement, combi-nation, or conspiracy in restraint of trade or commerce; that the elements of monopolization are present (e.g.,
I competition in relevant product and geographic markets 3; that such competition as there may be hcs been or will be adversely affected; or that the purposes, motives, or intentions ascribed to certain Applicants by Brownsville are as Brownsville alleges.
In the Anglo-American legal tradition, we do not undertake to resolve abstract questions in a vacuum.
It is easy for Brownsville to allege that violations of law or I
inconsistency with underlying policy under Section 1 of the Sherman Act, or if not Section 1, then Section 2, or, if t
l neither Sections 1 nor 2, then Section 5 of the Federal Trade Commission Act, are involved when one or more utili-ties who may or may not be competitors in relevant markets, with or without agreements, combinations or conspiracies, with or without monopoly power, with or without competitive injury, with or without improper motives, with or without legitimate business reasons, each so arrange their affairs t
L
. as to avoid Federal Energy Regulatory Commission jurisdic-tion over wholesale rates, tm issuance of securities, and allied matters.
It is another thing to prove up a set of facts and bring them within a coherent legal theory.
We could, with equal facility, point to the decision of the 2/
Supreme Court in Connecticut Light & Power v.
F.P.C.
for the proposition that it is an entirely legitimate form of business conduct for a company to so arrange its affairs as to escape FERC jurisdiction.
And in the absence of evidence of intent to cause competitive injury, much less evidence of any such injury actually experienced or likely to occur in the future, we can likewise with facility take the position that those measures which have the least restrictive effect on others necessary to accomplish a legitimate tusiness purpose are of course permissible.
But none of these polar positions provides a basis for deciding actual controversies in the absence of a record.
Applicants have not admitted liability, or assumed such arguendo.
One cannot simply assume the existence of meaningful competition in relevant markets.
One cannot simply assume adverse effects on present or actual potential competition.
One cannot simply assume motives, purposes and intentions.
If Brownsville alleges these elements, they still must be established by competent evidence.
2/
324 U.S. 515 (1945).
. B. Failure To Allege Nexus or Significant Changes Moreover, as we are told in Waterford II,S!
there must be a nexus between the activities under the proposed nuclear plant license and the situation claimed to be inconsistent with the antitrust laws.
The example cited in Waterford II of interconnection questions unrelated to nuclear facilities E/ is precisely the situation which Brownsville complains of here and for which it seeks a more complete remedy.
But neither Brownsville nor anyone else has shown a nexus between, for example, the interconnection of ERCOT to the South West Power Pool, t transmission rates, and the activities under the nuclear plant licenses.
Brownsville cannot claim entitlement to this or any other relief without alleging and proving nexus.
(See discussion, infra, at pp. 46-50).
Further, we are directed by the Commission in its l
Notice of Hearing setting the South Texas proceeding in motion that the basis for relief must inhere in significant changes in the licensee's activities which may be found to exist.5/
Brownsville in its comments has not in any way related the situation of which it complains to significant changes.
Nor can it.
The situation of which it complains, l
I 3/
Louisiana Power & Light Co. (Waterford Steam Electric Generating Station, Unit 3), CLI-73-25, 6 AEC 619, 620 (1973) ("Waterford II").
4/
Id.,
6 AEC at 621.
5/
43 Fed. Reg. 15182, supra.
l
. i.e.,
the lack of synchronous a.c.
interconnections between ERCOT and the South West Power Pool, was specifically the subject of the construction permit antitrust review in both Comanche Peak and South Texas.
Again, Brownsville must allege and prove significant changes as a basis for relief.
(See discussion, infra, at pp. 41-46).
C. NRC Jurisdiction And Procedures Brownsville has failed to present any analysis at all of the NRC's jurisdiction to establish transmission rates or the conditions of transmission or wholesale service.
Section 271 of the Atomic Energy Act carves out precisely those matters from the NRC's jurisdiction and there is nothing e Section 105 which puts those matters back into NRC jurisdiction.
Brownsville concedes that perhaps it would be preferable to allow FERC to go first on rate matters, but its insistence that NRC has "last resort" jurisdiction simply cannot be squared with Section 271.5/
It is Brownsville's task to establish jurisdiction.
-6/
It is not necessary to reach the question which might be presented where rates are set so high as to evis-cerate or render illusory the commitments to provide transmission service since no " sham" allegation (See,
, Louisiana Power & Light Co. (Waterford Steam Electric Generating Station, Unit 3), LBP-74-78, 8 AEC 718 4
(1974) discussed infra at pp. 36-38) can be seriously advanced in the face of the terms for the initial filing agreed upon among the FERC Staff and the prin-cipal proponents of the settlement in the FERC pro-
- ceeding, i.e.,
the letter to Mr. Cameron of the FERC Staf f attached to tha NRC Staff's September 12, 1980 status report.
_ _ ~ - - _.
. Finally, Brownsville has remained cryptically silent on the subject of whether it demands a hearing and, if so, (1) whether the Commission has jurisdiction to entertain the matters of which it complains and to grant the relief that it seeks and, (2) what procedures (and indeed wnat issues) it would propose be followed (and litigated).
In all candor, it appears to us that Brownsville is not ready to go to trial and does not really desire a hearing.
It desires to gain leverage by obstructing settlement without shoulder-ing the responsibilities of a party claiming entitlement to relief:
the presentation of evidence to establish that (atitlement.
We turn first to Brownsville's objections to the proposed settlement license conditions.
III. BROWNSVILLE'S SIX OBJECTIONS A.
Interconnections Brownsville claims that it is entitled to elimina-tion of certain contract provisions pertaining to ownership and operation of the nuclear units.
Brownsville claims l
further that it is entitled to elimination of other contract provisions of a multi-party or bilateral nature.
- Further, Brownsville claims (in the face of disavowal by Applicants, the Department, and the NRC Staff) that the conditions confer a right to disconnect on the Applicants which they do not now have.
Brownsville must assume connections if there are to be disconnections, but connections, of course, do not
. now exist.
Next, Brownsville asserts that the proposed conditions fail to improve on existing icw in terms of facilitating interconnection.
Brownsville also asserts that there are ambiguities in the interconnection pros isions as to whether initial decisions or agency decisions are re-quired.
Further, Brownsville claims that they are entitled to an absolute prohibition on any disconnections "other than as required by normal prudent utility practice."
- Finally, Brownsville asserts two vices in the interconnection /discon-nection provisions under the Federal Power Act, one of which erroneously assumes that the conditions will override applicable law and the other one of which erroneously assumes plenary Federal Power Act jurisdiction.
As may be seen from the foregoing recital, Brownsville is not claiming that i ts present circumstances are made worse by the license conditions.
Where it does claim that a new right to disconnect is conferred, this claim is based on strained, and already disavowed, reading of the conditions d
as creating a "right" to disconnect beyond what Applicants now have.
Its real complaint ic that the conditions do not go far enough.
The short answer to Brownsville's recitation of objections is that if they believe that they can show that licensing South Texas under the conditions proposed will create or maintain a situation inconsistent with the antitrust laws, then they must prove it.
They cannot simply urge, as a matt s
- f lawyers' argument, that they should y,
- e, w
y-
. have more.
Brownsville is not negotiating with this Board; it should be attempting.to demonstrate to the Board why the conditions are not in the public interest because they will prejudice Brownsville, or demonstrate why PUB is entitled to an evidentiary hearing taking into account nexus, significant changes, jurisdictional matters, and procedural rights of all parties as suggested by the Board at the October 24, 1980 Prehearing Conference.
Moreover, in its objections to the interconnection / dis-connection conditions, Brownsville has ignored the realities which it elsewhere acknowledges.
That is, there is a live proposal to interconnect ERCOT and the South West Power Pool by one method, and a fallback proposal to interconnect the two systems by another method.
There is every reason to believe that either there will be interconnections as a rcsult of those proposals (which will moot concerns about access to sources of supply outside ERCOT), or that, if interconnections are not ordered, such result will be reached, not because of private decisions, but because of a public interest decision reached by the cognizant govern-mental authority which has before it (as this agency does not) all interested parties in both affected regions.
And once there are FERC-ordered interconnections, disconnections will be governed in the first instance under the Federal Power Act as amended by PURPA and by the terms of applicable orders of FERC.
The recognition in the
. proposed license conditions that disconnections may occur relates only to situations where connections are made without legal sanction.
And that recognition cuts off no proper remedies or sanctions before other agencies or courts.
As to the alleged ambiguities regarding whether final ef fective orders are required, the issue is sophomoric.
Of course a final order which is effective is required.
The level at which that order becomes effective depends on applicable agency rules and whether the party aggrieved by an order is able to obtain a stay of its effect pending review.
It will be time enough to argue whether orders of FERC or this agency should be given immediate effect or should be stayed pending further agency or judicial review if and when the question becomes concrete.
B. Wheeling The proposed conditions require the Applicants to engage in wheeling transactions [ South Texas I B(3) and (4)].
The terms of these enjoinders are comparable to those found in other license conditions approved by this agency.
Brownsville proposes that this agency must initially or as a "last resort" (a) establish " rates, terms and conditions for the wheeling of power from CP&L's directly connected utili-ties to Brownsville", (b) decide whether CP&L's costs should or should not be combined with an affiliate's costs in
. establishing such a rate, (c) decide whether incidental use of other transmission systems requires compensation, (d) rule whether the TPUC shall set the same rates, terms and conditions for intrastate transactions for intrastate cystems as does FERC for transactions, to, from, and over interstate interconnections, (e) decide whether both intra-state and interstate rates must be regulated by FERC to the exclusion of the TEUC, (f) rule whether tariffs will be filed with FERC as opposed to schedules attached to particu-lar contracts, (g) determine whether non-owners of intercon-nections must file tariffs, (h) consider whether it is a better business arrangement for Brownsville to purchase from suppliers many hundreds of miles away across numerous systems or to purchase at wholesale from an adjacent system, (i) inquire whether the proposal at FERC covers only an initial rate subject to refund or whether it has some bearing on subsequent rate schedules, (j) cell FERC whether j
that agency should follow its normal procedures with respect to related rate filings and with respect to subsequent changes, and (k) dictate to FERC that Brownsville should be entitled to a present commitment to a future rate irrespec-tive of cost justification and proper allocation.
Each and every one of these matters are ones which this agency simply cannot entertain under Section 271 of the Atomic Energy Act.
Our rationale with regard to Section 271 is spelled out in detail infra, at pp. 28-33, and 40.
. Brownsville makes one other transmission services comment, and that is that whatever is done in South Texas with regard to transmission services must also be done in Comanche Peak.
We have elsewhere addressed Brownsville's lack of standing to complain of the Comanche Peak license i
conditions and the Board has indicated its inclination to strike Brownsville's objections (in whatever form) to the proposed Comanche Peak license conditions.1/
We cannot, of course, state now whether or not we would be opposed to changes to conform to license conditions which may be agreed to or ordered upon an appropriate record in South Texas.
C. PUB Participation in the Souch Texas Project The South Texas conditions provide for CP&L to offer Brownsville ownership participation and related services in the South Texas Project.S/
Brownsville desires a delay in licensing until terms covering participation and related transmission have been l
negotiated between itself and CP&L.
We have no comment on l
this matter except to note that there is no need to delay licensing in any proceeding while detailed contract arrange-ments are negotiated.
If, at some point, the allegation is made that the offer of participation was not honored, then an enforcement remedy is entirely adequate.
7/
See fn. 1, supra.
8/
South Texas conditions I.B.
(1)(a)-(c).
, D.
PUB _ Participation in STIS and TIS Brownsville seeks requirements from this Board to
" freeze" TIS and STIS policies and operations insofar as they now work to Brownsville's advantage and also " freeze" Applicants' membership in TIS and STIS so that Brownsville is not disadvantaged by withdrawal.
Not only is there no record basis for such relief, but the Board does not even have all members of either STIS or TIS before it.
- Moreover, Brownsville fails to address how other requirements which assure information and services are deficient in protecting its interests.
E. Bulk Power Brownsville complains that the TU companies should be required to serve at wholesale outside of the areas in and adjacent to which they have been serving.
Again, there is no record basis for requiring companies to enter a market-in which they do not compete.
It is the virtually universal fact that electric utilities provide firm bulk power only to adjacent systems (Penn, Delaney, and Honeycutt, "Coordina-tion, Competition, and Regulation in the Electric Power Industry", Nuclear Regulatory Commission, 1975, at 19-20).
Brownsville again enters the area reserved to state and federal economic regulatory agencies by Section 271 of the Atomic Energy Act when it urges this Board to inject
. itself into criteria for future curtailments of wholesale service or for centralized economic dispatch for third parties on the same basis as affiliated companies.
F. DC versus AC Connections Brownsville's criticisms are internally inconsistent.
It in effect urges that it is no better off insofar as theoretical interstate transactions are concerned (PUB comments at 9-17) under the license conditions than it is now, completely ignoring the interconnections proposed at FERC.
Then (PUB comments at 28-30) it recognizes those connections, but says they are not optimum.
We submit that the optimum form of interconnection is not a proper subject for the NRC.
FERC not only is the expert agency, it is the agency with the necessary parties before it.
Brownsville fails to address the initial cost of inter-connecting ERCOT and the SWPP via a.c.
ties.
For present purposes, it is enough to say that there is a dispute as to whether it is cheaper, all effects considered, to build a much i
larger number of a.c. ties (with lower unit costs) and I
i possibly or probably make internal system modifications, or i
a smaller number of d.c.
ties (with higher unit costs) and make no internal modifications and avoid any residual t
reliability risk.
It is not for the NRC to resolve such a dispute affecting numerous utilities in two major regions of l
l L
, the country, most of whom are not before the agency.
The interested parties are before FERC.
Moreover, some of Brownsville's comments simply do not make good sense. They complain of concentrated ownership and i
limited capacity, but do not come forward to shoulder the costs of ownership and increased capacity offered them.
They complain about incremental additions but do not acknow-ledge that they can share in such.
And (unbelievably)
Brownsville complains that necessary reserves are contem-plated to assure reliability despite emergency outages of a d.c.
tie.
In short, Brownsville wants access to theoretical interstate transactions (which it does not and cannot identify according to the discovery record), but is not only I
unwilling to sponsor the necessary connections, but is critical of the form of connections sponsored by those who are wi '.ing to pay.
If there is a remedy which any agency i
can give in these circumstances, we can safely say the l
agency is not NRC.
l IV. PROCEDURAL AND JURISDICTIONAL MATTERS In this section, we will discuss our view of the procedural and jurisdictional matters omitted in Browns-l ville's objections.
- A.
Previous Licensing Board Decisions Offer Guid-ance For the Determination of Future Procedures in this Proceeding At the October 24, 1980 Prehearing Conference, the Licensing Board specifically requested that Brownsville and the other parties to this proceeding comment on the proce-dural and jurisdictional aspects of the objections Browns-ville might raise to the proposed license conditions. (Tr.
1264).
Brownsville's November 12, 1980 conments were almost totally lacking in any discussion of these matters.
TUGCO respectfully submits that the decisions of pre-vious Licensing Boards dealing with very similar situations outline the proper procedures which should be followed in this proceeding. In antitrust reviews for certain Duke Power Company facilities, wherein certain intervenors claimed that certain conditions must be imposed, a settlement was concluded among the Applicants, the Department Jf Justice, and the (then) Atomic Energy Commission Regulatory Staff which was submitted to the Licensing Board.
In the consoli-dated Oconee and McGuire proceeding, the Licensing Board found tha the settlement and the license conditions reached by these three parties were "within the public interest." E!
~9/
Duke Power Company (Oconee Units, 1,
2,
& 3 and McGuire Units 1 & 2), LBP-74-45, 7 AEC 1154, 1155 (1974).
- In the concurrent Catawba proceeding, the Cooperative Intervenors opposed fully implementing this settlement on the ground that their own proposed settlement with the Applicant, which was subject to certain conditions, might abort.1S/
They also objected to the " purported withdrawal of the advice letters by the Attorney General and to the settlement among the Applicant, Department of Jus-tice, and Staff absent settlement with the Municipal Inter-venors and the Cooperative Intervenors." Ab/ They also stated that they would be prejudiced if the motion was granted.
However, the Licensing Board did not agree, stating:
The Atomic Energy Commission's Rules of Practice (as distinguished from the Federal Rules of Civil Procedure) specifically encourage settlements.
A reasonable settlement within the public interest among three of the five parties to a complex pro-ceeding, such as this one, is consistent with the overall objective of concluding proceedings in an expeditious and orderly manner.
Applicant's motion goes only to the three-party settlement previously noted and Cooperative Intervenors have not shown that it affects the other two parties.
The Board fails to see where Intervenors have been improperly prejudiced or disadvantaged.
The Board also has not been shown why Applicant's motion should be held in abeyance pending consum-mation of the settlement among Intervenors and l
Applicants. 12/
The Board then directed that Applicant's commitments be 10f Duke Power Company (Catawba Nuclear Station, Units 1 & 2), LBP-74-47, 7 AEC 1158 (1974).
11/
Id.
12/
Id., at 1158-59.
(
. 1 made conditions to all permits and licenses issued or to be issued for the Catawba Nuclear Station.
4 The Licensing Board noted that the Department of Justice and the Staff of the Atomic Energy Commission had previously explained why both the Department and the Staff believed the public interest would be served by the proposed conditioning of the Oconee and McGuire Licenses.
The Board concluded that these considerations i
also applied to the Catawba permits and licenses as well, that the " Statement of Commitments" was made to resolve the differences between the Department of Justice, the Staff, and the Applicants, and that they were "a reasonable settle-ment of said differences within the public interest." 11/
It should also be noted that the Licensing Board i
approved the requests of the Department of Justice and the Regulatory Staff to withdraw as full parties to the above-captioned proceedings.
Approval of the conditions did not l
cut off any right of the intervenors to a hearing.
The Licensing Board stated that if that proceeding went to j
hearing, both the Department and the Staff would be permit-ted only to make opening and closing statements and to file j
attendant briefs, and that any further participation, l
including any cross-examination of witnesses would be on an
(
ad hoc basis and would require leave of the Board based on a l
showing of good cause.
l
_13/
_Id.
i l
l t
a
. Brownsville's argument that the proposed settle-ment would prejudice its attempts to obtain what it regards 4
as an acceptable set of conditions is similar to that considered by the Duke Licensing Board.
Both the Department 4
and the Staff have stated that the licensing of the facili-ties under the proposed conditions would not create or maintain a situation inconsistent with the antitrust laws.
Since the conditions provide for CP&L to afford ownership to Brownsville, this should resolve any interest on the part of 3rownsville in regard to access to power from the South 1
Texas Project 1AI, and, as pointed out in Section III above, the PUB comments demonstrate that their objections go i
to matters which have no nexus with the nuclear facility but which would be unchanged if the South Texas Project simply vanished.
Thus the settlement proposed here does not prejudice any interests which Brownsville may legitimately advance before the NRC.
In view of the similarity of the Duke and the instant proceedings, TUGCO respectfully suggests that the procedures used by the Licensing Board be adopted in South Texas (should this Board decide not to terminate South Texas on appropriate grounds).
The Board would then approve the 14/
Details of ownership need not be resolved in advance.
It is clear that access to nuclear power is the very heart of the licensing process and that once this has been granted on reasonable terms, the primary concerns l
of the NRC have been satisfied.
See the discussion of nexus, infra at pp. 46-50.
' i settlement as to all parties agreeing to it, allow both the Department and the Staff to withdraw as full parties, judge i
Brownsville's comments and objections on the basis of i
licensing the project under the license conditions, and proceed to a plenary hearing in South Texas if Brownsville has shown it is entitled to such.
~
Brownsville attempts to have this Licensing Baard proceed as if the license conditions did not exist, that is, as if there were no provisions governing interconnections and disconnections.
The existence of these conditions and the agreement of all other parties to abide by them makes 4
the threshhold issue for Brownsville, and the ultimate issue of this proceeding "will activities under these license F
conditions create or maintain a situation inconsistent with the antitrust laws?"
Brownsville cannot "wish away" the existence and effect of these conditions but must now deal I
with them.
Unless it can show prejudice (that it is worse off with the conditions than without them), it cannot stan.
in the way of their imposition.
Unless it shows that it is l
entitled to a hearing and establishes a basis for greater relief than agreed by Applicants, it has no right to l
l such relief. -15/
l l
15/
It should be noted that there are only two ways in which antitrQst license conditions are attached to a permit or license:
(1) the Applicant consents to the attach-i ment of the conditions, or (2) a Licensing Board j
conducts a hearing, makes Findings and Conclusions based upon the record developed before it, and imposes conditions.
(10 CFR Part 2, App.
A.,
SX(j)).
. Despitit numerous invitations from the Board to show prejudice, tne worsening of the situation without conditions in terms of S105.c considerations, Brownsville has utterly failed to do so.
Brownsville has also failed to fu.1?ill numerous procedural obligations, from which the Board may infer PUB has not prepared for trial and otherwise fulfilled its party obligations as directed by this Board, 16/
(footnote con't from p.
22) 15/
It is clear that there is no such record in this
~~
proceeding and, as recognized by Mr. Glaser (Tr.
1250), the Board cannot simply assume the existence of facts upon which it could base a decision.
TUGCO assumes that Applicants would, as it does, specifically decline to make an assumption arguendo of liability for antitrust violations as was done in the Waterford proceedings (Louisiana Power & Light Co.,
(Waterford Steam Electric Generating Station, Unit 3),
CLI-73-7, 6 AEC 49 and CLI-73-25, 6 AEC 619 (1973) and related opinions), and, as the Licensing Board in that case recognized, a Board cannot order relief "unless (1) there had been evidentiary proof of an inconsistent situation, or (2) an assumption arguendo."
(Waterford, LBP-74-23, 7 AEC 698, 700 (1974)).
Since it is beyond the power of the Licensing Board to force Applicants to l
make such an assumption, a plenary hearing would be l
necessary to enable the Board to decide upon license conditions that would give Brownsville more relief than the conditions to which Applicants have consented.
l However, it is not at all clear that this is what i
Brownsville desires.
(Tr. 1191-93, 1264).
16/
For example, Brownsville did not file its summaries of testimony or its exhibits at the time it filed its trial brief and it admitted its trial brief was inade-quate when it filed its "First Supplement" on October 16, 1980 (its exhibits and a list) and stated it was working on its "Second Supplement" at the October 24, l
1980 prehearing conference (Tr. 1199).
Brownsville's failure to address nexus, significant changes, or jurisdictional matters in its comments when requested to do so may be grounds for default.
1
. i 1
I PUB has indicated it fully expected to rely on the Department and the Staff to make its case for it, 11/ and it has shown that many of its objectives (and perhaps its real aims) lie in areas beyond NRC jurisdiction. 1 /
TUGCO respectfully submits that Brownsville has failed not only to demonstrate prejudice so as to stay approval of settlement among other parties, but has also failed to show any plausible reasons for holding an antitrust hearing on 1
its contentions.
TUGCO thus respectfully submits that this Board should find that the proposed settlement is in the public interest, approve the incorporation of the proposed antitrust conditions in the licenses in question, and decide whether there is a need for a hearing in this proceeding to resolve any of Brownsville's contentions, and if so, provide for the formulation of issues.
In that regard, we would expect that all issues regarding industry structure, markets, competition, conduct, effects on competition, and motives (in other words, the liability phase of an antitrust proceed-ing) would be required before any unconsented change could be ordered in a relief phase.
i 1
17/
See September 25, 1980 motion of Brownsville at p. 25.
18/
See the discussions of NRC jurisdiction over rates and related matters, infra, at pp. 25-41 and nexus, infra, at pp. 46-50.
t
. B.
The NRC Lacks the Requisite Jurisdiction and Statutory Authority to Decide the Rate and Optimum Form of Connection Questions Raised by Brownsville.
As has been show in Section III, above, most of Browns-ville's complaints involve queat!ons of transmission rates and terms of services, optimum form and number of connections, and other areas lef t by statute to the authority of other agencies.
It is our contention that the NRC lacks the necessary jurisdiction to consider these matters.
This Board, of course, has the jurisdiction to determine its jurisdiction in this proceeding.1S!
owever, the Appeal H
Board has held that it is not NRC policy to deal with abstract questions.SS!
19/
In an appeal from a ruling by a Licensing Board on the extent of its own subject matter jurisidiction under the National Environmental Policy Act, it was held that "a Licensing Board has the authority to rule on whether, to what extent, and for what purpose particular matters are subject to the Commission's regulatory jurisdiction and thus may be brought before it. "
Kansas Gas &
Electric Company (Wolf Creek Nuclear Generating Station, Unit No. 1), ALAB-321, 3 NRC 293, 300 (1976).
After noting that Federal Courts _always had jurisdic-tion to determine their own jurisdiction, the Appeal Board stated that "the same rule applies generally to l
Federal agencies."
Id. at 299-300, citing Weinberger l
- v. Hynson, Westcott & Dunning, 412 U.S.
609, 627 (1973), where the Court indicated that an agency's
" jurisdiction to determine whether it has jurisdiction 3 i as essential to its ef fective operation as is a surt's like power. "
20/
-n Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 8 NRC 533 (1978), the Appeal Board dismissed a claim by TVA that NRC was attempting to overrule TVA's Board of Directors
. ~ - _ _ -
. Furthermore, the issues in a given proceeding are those da-termined by the Commission or the Licensing Board and set forth in an appropriate Notice or Order. 21/
The NRC will not consider matters which have been clearly entrusted to another federal agency 22/or to a state (footnote con't from p. 25) 20/
on questions of "need for power" and electric rates.
The Board found that there was no occasitn for it to discuss these issues because there was no dispute about them in this case.
It stated that NRC adjudic-iatory Boards had the authority to grant declaratory relief to remove uncertainty or to avoid delay but found that "there is no occasion to invoke that author-ity to resolve purely hypothetical questions which appear unlikely to arise in a concrete setting." Id. at 549, fn. 55.
The context in this ruling was a dispute over the relative NEPA compliance obligations of TVA and NRC in NRC licensing proceedings.
See also Union Electric Company, (Callaway Plant, Units 1 and 2),
ALAB-527, 9 NRC 126, 144 (1979); Toledo Edison Company (Davis-Besse Nuclear Power Station), ALAB-157, 6 AEC 858 (1973).
-/
"The Board does not consider litigation in other 21 forums to be within its jurisdiction and will not meld the issues raised in other litigation into these i
proceedings.
[T]he issues in the present proceeding were set forth in the Board 's Memorandum and Opinion of April 24, 1973 (RAI-73-4, pp. 312-316).
These
. issues and only these issues are before this Board."
Louisiana Power & Light Company (Waterford Steam i
Electric Generating Station, Unit 3), LBP-74-23, 7 l
AEC 698, 704 (1974) (emphasis added).
--22/
One recurring situation in which this question has arisen involves the extent of the NRC's responsibilities in regards to water quality conditions and restrictions.
Since the passage of the Federal Water Pollution Control Act Amendments of 1972, the Environmental Protection Agency has been entrusted with all issues i
i
.~
s.
. 4 agency. 23/
For example, Brownsville claims that the NRC can assume j urisdiction over matters involving transmission rates and services, but Section 271, discussed next, was specifically added to the Atomic Energy Act to eliminate any doubts that the j urisdiction of other federal, state and local agencies in regard to the generation, transmission and sale of the electric power generated by nuclear facili-ties had been preserved.
l (footnote cUntinued from p. 26) 22/
relating to water pollution. Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),
CLI-78-1, 7 NRC 1 (1978); Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, i
8 NRC 702 (1978); Pennsylvania Power & Light Company (Susquehanna Steam Electric Station, Units 1 and 2),
LBP-79-6, 9 NRC 291, 300 (1979); and Consumers Power Company (Palisades Nuclear Plant), LBP-79-20, 10 NRC 108, 124 (1979). However, if the Staff believed that the conditions imposed by EPA were not stringent enough, it was not remediless since it could still go to EPA and request the changes it thought necessary.
Yellow Creek, supra, at 706. See also, Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2),
LBP-78-7, 7 NRC 215, 229-236 (1978) (Staff could not get additional measures desired because they were within the province of EPA and, if Staff was convinced more was necessary, they should go to EPA for redress).
23/
In Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-308, 3 NRC 20, 30 (1976), the Appeal Board stated that 1
it was for the California Coastal Zone Conservation Commission to interpret and enforce the terms of its own permits and that the NRC need concern itseA f with the matter only if and when the Coastal Commission called upon the Applicants to modify their exclusion area proposal.
See also, Public Service Company of Oklahoma (Black Fox Station, Units 1 and 2), LBP-78-28, 8 NRC 281 (1978) where the Licensing Board concluded that the enforcement of Oklahoma's Clean Air Act should be left to the Oklahoma Department of Health.
--Id.
at 282.
. 1.
The Atomic Energy Act Did Not Grant The NRC Any Authority To Regulate Rates Or Other Detailed Aspects Of Transmission Services a.
The Atomic Energy Act An agency such as the NRC has only those powers which have been specifically delegated to it by Congress in its enabling legislation. 21/
An examination of the Atomic Energy Act shows that it did not grant the Atomic Energy Commission (now the NRC) any direct authority over rates or conditions of service for the electric power generated by nuclear facilities.
Only two sections of that Act have any bearing on the question of whether the NRC has any juris-diction over rates and services, and neither grants the NRC the power that Brownsville seeks.
The first section, 271, delineates the respective areas of jurisdiction of the NRC and the federal, state and local agencies which regulate economic matters involving public utilities, while the other section, $272, deals specifically with FPC (now FERC) jurisdiction.
Section 271 of the Atomic Energy Act provides:
"Sec. 271.
Agency Jurisdiction. -- Nothing in this Act shall be construed to af fect the authority or regulations of any Federal, State 1
i 24/
- See, H.K.
Porter Company v. National Labor Relations Board, 397 U.S.
99 (1970).
1 <
l or local agency with respect to the generation, sale, or transmission of electric power produced through the use of nuclear facilities licensed by i
the Commission:
Provided, that this section shall not be deemed to confer upon any Federal, 1
I State, or local agency any authority to regulate, control, or restrict any activities of the Commission."
42 U.S.C. Section 2018.
Section 272 of the Act speaks to FPC (now FERC) jurisdiction, as follows:
"Sec. 272.
Applicability of Federal Power Act. -- Every licensee under this Act who holds a license from the Commission for a utilization or production facility for the generation of commercial electric energy under Section 103 and who transmits electric energy in interstate commerce shall be subject to the regulatory provisions of the Federal Power Act."
42 U.S.C. Section 2019.
The legislative history of these two sections clearly indicates that the economic regulation of utilities' rates and of the conditions under which they provide electric service is the function of the duly constituted state and federal agencies, not the NRC.
i.
Section 271 Section 271 is the only section dealing specifically with jurisdiction and it was added to the Atomic Energy Act I
to eliminate any doubts that the jurisdiction of other federal, state and local agencies in regard to the gene-l ration, transmission and sale of the electric power generated
. i by nuclear facilities had been preserved. 21/
The clear implication of such an explicit reservation of authority in
(
the agencies already possessing such power was that the NRC was not being granted the power to regulate such matters as the rates to be charged for wheeling (transmission service).
If Brownsville is motivated by mistrust of the Texas PUC (or FERC), that is not a basis for departing from the allocation of duties under Section 271 (and, in the case of FERC, S272).
It is clear that the NRC must assume in all of its deliberations that other agencies and officials will properly carry out duties entrusted to them and it may not 25/
See Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610, 614 fn. 5 (1976) (".
in light of the preservation of ratemaking jurisdiction of other Federal, State, and local agencies pursuant to Section 271 of the Act."); Tennessee Valley Authority (Phipps Bend Nuclear Plant, Units 1 and 2), ALAB-506, 6 NRC 533, 541-45 (1978); Senate Debates on the 1954 Atomic Energy Act, 100 CONG. REC. pages 12014-12021 I
July 26, 1954, and pages 12196-12202, July 27, 1954; and H.R.
REP. NO.89-567, 89th Cong., 1st Sess.,
accompanying the 1965 amendment to Section 271, re-printed in [1965]
U.S. CODE CONG. & AD. NEWS 2775-84.
See also Public Service Company of New Hampshire v.
Nuclear Regulatory Commission, 582 F.2d 77, 84-85 (1st Cir. 1978).
To the extent that Alabama Power Company (Joseph M.
Farley Nuclear Plant, Units 1 and 2),
LBP-77-24, 5 NRC 804, 874-75 (1977) (Section 271 does not limit the antitrust review power grented to the NRC under Section 105.c) looks the other way in reliance on the proviso added to Section 271 in 1965, it miscon-l strues the proviso. The correct construction is indicat'ed in the text.
l l
l ~, -
- 31 base a decision on a contrary presumption. 26/ Not only would this be contrary to established precedent, but it would also tend to encourage administrative agency rivalry rather than cooperation.
Brownsville is not deprived of fora in which to ex-press its views on transmission rates and terms, for it can raise appropriate matters in the pending proceeding at FERC (as well as at the TPUC where that agency has jurisdic-tion) and thus insure that its views are adequately consid-ered by the agency which has the necessary expertise and authority to determine the appropriate charges and terms.
This Licensing Board should thus reject the PUB's attempt to 26/
See Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 14-20 (1978) (Commission approves assumption that state public utility officials would grant necessary rate increases); Seabrook, CLI-77-8, 5 NRC 503, 521 at n.
20, 545 (1977) ("we may proper)y defer to a construc-tion of the Environmental Protection Agency's authority by the General Counsel of that agency."); DAVIS, ADMINISTRATIVE LAW TREATISE, Section 11.06 (1958);
I United States v. Chemical Foundation, 272 U.S.
1, 14-15, 71 L.Ed. 131, 142-43 (1926) ("the fresumption of regularity supports the official acts c2 public officers, and, in the absence cf clear esidence to the contrary, courts presume that they have properly l
discharged their official duties"); Arkansas Power &
Light Company (Arkansas Nuclear One, Unit 2), ALAB-94, 6 AE2 25, 28 (14T3) (Licensing Boards are obligated to i
assume that the Staff will fully and completely carry out their duties and may not premise a decision on the contrary presumption); and Southern California Edison Company (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-171, 7 AEC 37, 39-40 (1974) (presumption approved as to state agencies).
i t
. establish requirements on the Applicants in this area.
ii.
Section 272 As to Section 272, the legislative history is especially helpful in indicating that the intent behind that section was merely to preserve FPC authority over its traditional areas, not to extend any new authority to the NRC.
Two amendments offered by Senator Hubert Humphrey upon the floor of the Senate demonstrate this intent regarding the regulation of electricity generated at nuclear facilities by FERC (at that time, the FPC).
Senator Humphrey seemed concerned that the rates for electricity generated in nuclear plants would go unregulated because Section 271 of the Atomic Energy Act did not clearly indicate that the Federal Power Commission was to regulate rates to the same
- .ent it would in the case of a fossil-fueled plant.
As his first amendment was drafted (offered on July 26, 1954), however, it would have made all utilities owning nuclear reactors, whether they engaged in intrastate or interstate commerce, subject to the authority of the FPC.
The amendment was defeated.
Brownsville's argument that it is the policy of the Atomic Energy Act to require interstate transmission (and have FERC regulation) of electricity generated at nuclear
33 -
plants cannot stand against Section 272 and the Congressional refusal to impose FPC (now FERC) jurisdiction simply because a utility owned a nuclear facility. 22/
b.
NRC Decisions In the context in which the question now arises, i.e.,
an NRC antitrust proceeding, there are no Appeal Board or Commission decisions directly on point.
However, there are three licensing board rulings that bear on the authority of the NRC to consider ratemaking issues in an antitrust proceeding.
Two of these consider the issue directly and oppose the position of Brownsville, while the third indirectly touches upon the issue and, while it looks the other way, does not provide any controlling precedent for this proceeding.
In the first and most relevant of these cases, the Wolf Creek proceeding,28/ the Licensing Board 27/ The following day, Senator tiumphrey rewrote his amend-ment to take into account some of the objections of his fellow Senators, but, as drafted, the second version of his amendment would have brought the FPC into the regulation of the distribution of electric power.
Such extension of FPC authority was again vigorously opposed and, after a brief meeting with the floor leader of the
[
bill, Senator Humphrey withdrew his proposed amendment in favor of what eventually became Section 272 of the Atomic Energy Act.
See 100 CONG. REC. 12014-12021; 12196-12202 (1954).
28/
Kansas Gas & Ele:tric Company (Wolf Creek Generating Station, Unit No. 1), LBP-75-14, 1 NRC 415 (1975).
. ruled that it did not have jurisdiction to consider rate questions whic ild not rise to the level of having anti-trust implications.
In that proceeding, an intervenor (as does Brownsville here) wished the Applicant to spell out in detail all rates, terr.s and conditions relating to the policy commitments contained r.n the participation agreement for the facility.
The propo.;ed license conditions to which the Applicant had agreed constituted a comprehensive set of commitments regarding bulk power supply coordination.
The 4
Board ruled that it was unreasonable to require the Commis-t sion to frame detailed rates and interconnection provisions for the 40-year period to be covered by the proposed license, especially in light of a proceeding then pending before the Federal Power Commission regarding the same issues of rates, terF4 and conditions.
It found that the Fedec31 Power 1
Commission had the requisite j urisdiction and expertise to resolve the issues of the fairness of the transmissica rates and rate schedule, that the pending FPC proceeding provided an adequate forum for the petitioners and that the result was required by the principle of comity between sister com-missions as well as by considerations of avoiding enneces-sary duplication of effort.
However, the Board alro stated that it was not necessary to hold that the FPC was toe i
exclusive ratemaking authority nor that rate questions might
. not under appropriate circumstances rise to the level of having antitrust implications that must be considered by the NRC; it merely found that the case before it did not require such consideration.29/
The parallels between the Wolf Creek and South Texas proceedings are striking.
In both, a party sought license conditions that would require the NRC to set transmission rates and terms, claiming that the NRC had the j urisdiction to do this.
Both would require the establishment of condi-l tions that would exist throughout the operating life of the plant, and in both there was an FPC (FERC) proceeding pending in which the moving party's interests could be considered.
The similarity in circumstances between the two proceedings should produce a similarity of results.
Addi-tionally, this Board will not be required to decide whether the FERC is the only agency with any relevant j urisdiction in reaching the same result as in Wolf Creek, for the transmission issues here do not rise to the level of having l
l antitrust implications.
This is so because it cannot seriously be contended that rates and terms for tr;.... ssion service are such as to render the wheeling undertaking a
" sham".
29/ Id. at 417-418.
l l
. The Wolf Creek Licensing Board relied on a previous Licensing Board decision in the Waterford proceeding 30/
(which we now take up as the second of our three pertinent cases), for the proposition that:
Supervision over rates is the particular pro-vince of the Federal Power Commission and the Board is neither qualified nor authorized to pass on the appropriateness of transmission rates. 31/
This reference to the Waterford proceeding is to a Licensing Board order in a " reverse -- bifurcate 6" case, i.e., one where the " relief" issue was tried assuming, arguendo, a situation inconsistent with the antitrust laws.
In that case, all parties except the Cities of Lafayette and Plaque-mine had agreed that certain " commitments" formed an appro-priate basis for license conditions.
One of the comnitments.
related to coordination services, but the Cities objected that the LP&L transmission rates were so high as to frustrate implementation of the commitment.
The Board questioned its authority to pass on transmission rates but nonetheless considered the Cities' evidence.
It found that evidence inadequate to support the Cities' contention.
The purpose of receiving evidence on rates was apparently to consider i
30/ Louisiana Power & Light Company (Waterford Steam Electric Generating Station, Unit 3), LBP-74-78, 8 AEC 718 (1974).
31/ Id. at 734.
l
. whether or not the commitment was a sham. 32/
Any apparent conflict between that Board's stetement that the FPC is the agency charged with the authority to decide rate-making issues and its consideration of evidence regarding an established rate is resolved in the portion of the decision quoted in the previous note. The Board was attempting to determine whether the Applicant's undertaking 32/ The pertinent portion of the Board's Memorandum is as follows:
"As a second objection to Commitment No.
5, the Cities urge that the transmission rate set forth in Cities Exhibit 2A is so high as to substan-tially frustrate coordination between and among entities in Louisiana.
Cities have not presented adequate evidence in support of this contention.
In fact, expert witnesses for the Cities were not able to so testify (Tr. 1462 line 18 to Tr. 1463 line
.7).
"The Board 's position is two-fold.
Fitstly, supervision over rates is the particular province of the Federal Power Commission and the Board is ncither qualified nor authorized to pass on the appropriateness of transmission rates.
Hence, the Board will not rule on the appropriate-ness per se of the rate in Cities Exhibit 2A.
Secondly, the Board did hear and weigh evidence, l
including rates in said exhibit, to determine whether or not Applicant's behavior in establish-l ing such rates indicates an attempt to substan-tially frustrate its commitment.
On the evidence presented, the Cities have failed to prove that the establishment of the transmission rate, per se, is behavior of the Applicant designed to or effec-tive to frustrate Commitment No. 5 (Tr. 1466 lines 3-5; Tr. 1622 line 2 to 1625 line 9).
This l
contention of the Cities is rejected."
Id. at l
734.
I i
, was fraudulent, and it was thus testing the commitment, not the rate.
As noted, that situation simply does not exist here.
It is thus clear that Waterford must be read as holding that FERC is the proper agency to consider rate issues.
This case is thus strongly opposed to the position Brownsville has adopted.
The final decision which touched on this area was the initial decision in the Farley proceeding. 33/ The Board there was concerned with the question of who had primary jurisdiction over antitrust matters relating to a new nuclear facility.
That Board indicated that Section 272 did not limit the NRC's antitrust authority on the theory that primary jurisdiction over electric utility antitrust matters generally w&s in the FPC or the SEC.
We need not quarrel with that conclusion here, where the issue relates specifica1'ly to rates and terms for transmission service, which in any event do not rise to the level of antitrust Concerns.
The Board in Farley, having disposed of several other primary jurisdiction arguments, then turned to l
33/
Alabama Power Conpany (Joseph M.
Farley Nuclear Plant,
~~
Units 1 and 2), LBP-77-24, 5 NRC 804 (1977).
l
s
. its construction of Sactions 271 and 272 of the Act, limited, however, to whether these two sections worked to confer primary or exclusive jurisdiction on other agencies so as to supplant the NRC's antitrust review f unctions.
It stated that:
Section 272 was intended to preserve the exis-ting regulatory powers of the FPC over electric utilities which supplied wholesale power in interstate commerce, not to supplant the anti-trust licensing responsibilities specifically imposed upon NRC when Section 105c was substan-tially expanded by the 19^0 amendments.
The section-by-section analysis in the Joint Committee Report states:
'During the hearing pertaining to this leg-islation there was a suggestion that there ought to be a clearer indication of Congressional intent that Section 272 of the Atomic Energy Act did not constitute a modification of the Federal 1
Power Act.
The Joint Committee very carefully considered this term and concluded that the legislative history of Section 272 indicato '
quite clearly that the committee and the Cungress had not intended thereby to modify or aff#ct in any way the provisions of the Federal Power Act.
The committee unanimously reconfirms this in te ntion.
In effect Section 272 should be read as if the clause 'to the extent therein provided' appeared at the end of the text.'" 34/
This Board clearly recognized that the traditional tests for FPC jurisdiction had been preserved and had not in any l
34/
Id,. at 874-75, citing H.R.
REP. No. 91-1470, 91st Cong., 2nd Sess., reprinted in [1970] U.S.
CODE CONG.
l
& AD. NEWS 4981, 5007.
i i
a way been shifted in the case of nuclear plants.
It may be j
noted that this is consistent with our earlier analysis of Senator Humphrey's overbroad, defeated amendment which would a
have given the FPC jurisdiction over any utilities owning nuclear plants.
The Board read the legislative history of the 1970 amendments with regard to the effect of Section 272 as standing for the proposition that Section 272 is neutral as an aid to construction of Section 105.
The Board then went on to conclude that if any agency had primary jurisdic-tion over the antitrust review for nuclear licensing it was the NRC.
That conclusion is not at all inconsistent with the notion that economic regulatory agencies have at least primary jurisdiction over rates and allied matters.
The Board's holding relied, in part, in interpreting i
Section 271, upon the 1965 amendment adding a proviso to that section, which it read as meaning that no action of another agency could have any effect on the NRC's antitrust I
review activities.
But the proviso added by the 1965 l
l amendment has no bearing on the question before this Board, since it is the body of Section 271 which provides for the allocation of regulatory authority over third parties between the and other agencies.
The proviso relates to the operationa..;tivities of the agency.
l l
l l
. In any event, the holding in Farley that the NRC has primary jurisdiction over antitrust questions involving a i
nuclear plant does not resolve the jurisdictional issue in this case regarding rates and other details of electric and transmission service.
Wolf Creek and Waterford stand for the proposition that FERC is the proper forum in which rate issues are to be decided, and Farley does not depart from that view.
At least in the absence of evidence of the use of rates to bar implementation of any transmission service (i.e., on the
)
Waterford theory), the NRC cannot consider rates or terms.
It is thus clear that this Licensing Board does not have the jurisdiction to consider the issues involving transmission rates and services which Brownsville seeks to raise.
2.
The Absence of Significant Changes In Licensee's Activities Removes Any Basis for Holding an Operating License Antitrust Review An operating license antitrust review will be held only when there are significant changas in the Licensees' activi-ties since the antitrust review at the construction permit stage.
Relief can be ordered only within the framework of such changes.
The absence of stch changes in the activities of Applicants in this proceeding would thus deprive the Board of the jurisdictional basis for continuing this
-. = - - _
i e
42 -
proceeding.
Even if such changes can be shown, it still must be demonstrated that the antitrust situation complained of is directly attributable to these changes.
TUGCO respect-i fully submits that Brownsville's failure to relate its
]
objections to significant changes in Applicants' activities since the prior antitrust reviews is fa tal.
a.
An Operating License Antitrust Review is Restricted to Significant Changes in the Licensees' Activities and Their Effects i
Section 105(c)(2) clearly authorizes an operating license antitrust review only in very limited circumstances:
(2) Paragraph (1) of this subsection shall apply to an application for a license to construct or operate a utilization or production facility under Section 103:
Provided, however, that paragraph (1) shall not apply to an ap-plication for a license to operate a utilization or production facility for which a construction permit was issued under Section 103 unless the Commission determines such review is advisable on the ground that significant changes in the licensee's activities have occurred subsequent to the previous review by the Attorney General and the Commission under this subsection in connection with I
the construction permit for the facility.
42 U.S.C.
2135c(2) (1973) (emphasis added).
It is clear that such review is separate and distinct from the prior antitrust j.
review and must be premised upon effects flowing from the "significant changes" in the Applicant's activities.
9
>m-.
~,,--.
,-m
-e.
,-..p.g
,,,-,,,,-o w,x,,--,-,,g-,,wi-. -
,~,.nn,,,w-,
e.
s
..,.,-,yw
,,v,-
t
, The Commission addressed the issue of the basis for and extent of an operating license antitrust review in this very proceeding.
In its decision, the Commission stated that:
[W3e have concluded that this second look at the operating license stage is to be a restricted one, focusing on the changed circumstances First of all, the structure of the complex statutory scheme established by Section 105(c) strongly implies that i
there is to be a limited review, if any, et the operating license stage.
If no "significant changes" in a construction permittee's proposed activities have occurred, then the statute is explicit that there is to be no antitrust review at the operating license stage - the antitrust review procedure "shall not apply" to such a permittee's application for an operating license.
As we view
- 12. a full-blown de novo antitrust review, with the Commission's "signifi-cant changes" determination acting only as a triggering mechanism would be inconsistent with the statutory scheme of immunity from a second review for unchanged proposals.
Houston Lighting & Power Co. (South Texas Project, Units No.
1 and 2), CLI-77-13, 5 NRC 1303, 1321 (1977) (emphasis added), appeal dismissed as moot sub nom., Central Power &
Light Co. v. NRC, Nos. 77-1464, 77-1654 (D.C. Cir. 1978)
(per curiam). 35/ The Commission emphasized the necessity 35/
The Commission stated that this significant change de-termination was not to be made in a vacuum and without regard to unchanged features of the Applicant's pro-posal since "significant change" could arise from the relationship to the unchanged features of the proposal.
l
J O
- i for finding that both "significant changes" had occurred in
)
Applicant's proposed activities and that anti-competitive effects flowed therefrom in its Notice of Hearing in this proceeding, which extended the following mar.date to the l
Licensing Board l
The Board designated herein shall make a determination as to whether the activities under the proposed operating licenses will create or maintain a situation inconsistent with the antitrust laws on the basis of sig-j nificant changes in the applicant's activities which have occurred subsequent to the previous i
review by the Attorney General and the Com-mission or its prede assor, the Atomic Energy i
commission, in cont.ection with the applica-tion for construction for the facilities.
43 Fed. Reg at 15811, 15812 (April 14, 1978) (emphasis 36/
added)
(footnote omitted).
v i
(footnote con't from p. 43 )
l l
35/
However, while the Commission stated that some account
~~
would have to be taken of the proposal as a whole, it emphasized that such consideration must take into ac-I count how "the proposal or its impacts have been al-tered by changed circumstances."
5 NRC 1322 (empha-sis added).
Such consideration of the entire context surrounding the "significant change" does not eliminate or reduce the necessity for showing that the antitrust inconsistency being challenged must arise from actual changes in the proposal.
36/
The jurisdiction of a licensing board is ibnited by
~~
its notice of hearing.
- See, e.g.,
Public Service Co.
of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976);
Portland General Electric Co. (Trojan Nuclear Plant),
ALAB-534, 9 NRC 287, 289 n. 6 (1979).
. - _ =
s
- It is thus clear that Brownsville must demonstrate that the antitrust violations which it contends exist have arisen from "significant changes" in the Applicants' activities since the time of the prior antitrust review.
Since Brownsville has not done co, the Licensing Board may dismiss Brownsville's complaints, b.
There Have Been No Significant Changes In Applicants' Activities Since the Prior Antitrust Review.
The comments Brownsville filed on November 12, 1980 clearly indicate that Brownsville's primary concerns relate to the questions of intrastate / interstate operation and various transmission-related concerns.
Such matters could be "significant changes" only if Brownsville could not have raised them at the time of the prior antitrust review.
In regard to the intrastate / interstate matter, the i
Department of Justice specifically states in its 1974 South Texas Advice Letter that:
[t]he joint owners as well as the other members of TIS operate wholly within the State of Texas.
They are not subject to regulation by the Federal Power i
Commission.
1974 Advice Letter, at 3.
This letter revealed that it was the Attorney General's opinion that there were no antitrust considerations requiring a hearing in the Texas situation.
This Letter was published in the Federal Regis-ter on November 5, 1974 (39 Fed. Reg. 39078), together with
_. ~,
- a notice of opportunity for interested persons to file a petition seeking leave to intertene and request an antitrust hearing in the South Texas proceeding.
No such petition was ever received.
There can thus be no doubt that the intra-state operations situation was well known to all ever since the time of the construction permit antitrust review.
Certainly there appears to be no allegation that prac-tices in regard to transmission er.rvices have changed in any way detrimental to Brownsville since the prior antitrust reviews.
Thus, Brownsville's November 12, 1980 filing utterly fails to relate its objections to significant changes in its primary areas of concern.
3.
Brownsville Has Failed To Demonstrate The Required Nexus Between Its Complaints And The Nuclear Facilities Involved The antitrust review procedures of Section 105.c of j
the Atomic Energy Act require that there be a demonstration of " meaningful nexus" between the " activities under the license" and the situation alleged to be inconsistent with i
the antitrust laws.
In its landmark Waterford decisions 31/
l 37/
Louisiana Power & Light Co. (Waterford Steam Electric l
~~
Generating Station, Unit 3 ),
( "Waterfo rd I" ), and CLI-73-25, 6 AEC 619 (1973)
(" Water-l ford II").
l l
I t
i l
l
1
. the Commission clearly spelled out the importance of a demon-stration of a " meaningful nexus":
The requirement in Section 105 of the Atomic Energy Act for prelicensing antitrust review reflects a basic Congressional concern over access to power produced by nuclear facilities.
This specific standard which Congress intended the Commission to use in such review - "whether the activities under the license would create or maintain a situation inconsistent with the antitrust laws as specified in subsection 105 (a)"
is a limited one.
The standard requires that: (1) the allegations raised by petitL>ners describe a situation inconsistent with the antitrust laws or the policies clearly underlining these laws, and (2) the specified situation be " created" or " maintained" by "the activi-ties under the license".
Thus, it would be insuffic-ient for a petitioner simply to describe a situation inconsistent with the antitrust laws regardless of how grievious the situation might appear to be.
A meaning-ful nexus must be established between the situation and the " activities under the license".
. Generally,
" activities under the license" would not necessarily include all the applicant's generation, transmission, and distribution of electricity. 38/
The Commission ordered the Licensing Board in that pro-ceeding to determine whether there had been a showing of a meaningful nexus between the activities under the license and the situation alleged to be inconsistent with the antitrust laws.
In its second Waterford decision, the Commission re-emphasized the importance of finding a meaningful nexus between the activities under the license and situation 38/
Id.,
6.AEC 48-49. ( enphasis addeed) (footnote omitted).
],
alleged to be inconsistent with the antitrust laws.
The Commission stated that the specific review standard mandated by Congress had inherent boundaries and stated that:
It does not authorize an unlimited inquiry into all alleged anticompetitive practices in the utility industry.
The statute involves licensed activities, 4
and not the electric utility industry as a whole.
If Congress had intended to enact a broad remedy against all anticompetitive practices throughout the electric utility industry, it would have been anomolous to assign review responsibility to the Atomic Energy Commission, whose regulatory juris-diction is limited to nuclear facilities.
It is the status and roles of the facilities which lie at the heart of antitrust proceedings under the Atomic Energy Act. 39/
The Commission specifically addressed the issue of the proper result when an intervenor had failed to prove the existence of the required nexus:
[I]t is the existence of that tie which is critical to antitrust proceedings under the Atomic Energy Act.
If activities relating to a facility have no substantial connection with alleged anticompeti-tive practices, there is no need for a hearing as to such practices or proposed forms of relief from them.
In short, an intervenor must plead and prove a mean-l ingful nexus between the activities under the nuclear license and the situations alleged to be inconsistent with the antitrust laws... The hearing issues should not and could not be divorced from the overriding re-l quirement that there be a reasonable nexus between the alleged anticompetitive practices and the activities under the particular nuclear license.
This is a primary and predominant question which must pervade the proceeding.
We remind the Board and the parties that l
1 39/
Id.,
6 AEC 619, 620. (emphasis in original).
t l
l l
l
. if it becomes apparent at any point that no meaningful nexus can be shown, all or part of the proceeding should be summarily disposed of. 40/
There can thus be no doubt that Brownsville must demon-state a " meaningful nexus" between its charges and the nuclear facilities involved in these proceedings.
The only attempt Brownsville makes to establish this required nexus is to allege that Applicants will commingle the power from these facilities with the other power produced by their systems and with the rest of tne power produced by ERCOT utilities.
It was precisely this basis which the Commission rejected in the Waterford II case:
We take this occasion to comment upon one aspect of the Board's decision.
The Board found that "[p]ower from Waterford will be comingled [ sic] with the power from other LP&L generating facilities" (Decisior
- p. 6).
That is a truism applicable to all cases; power is not isolated.
Such a finding should not be utilized to support the view that an application to construct one nuclear plant somehow authorizes an inquiry to all alleged anticompetitive practices in the electric utility industry.
As we have said, alleged anticompetitive practices - however serious -
which have no substantial connection with the nuclear facility, are beyond the scope of antitrust review under the Atomic Energy Act. 41/
Brownsville cannot rely upon the commingling argument in order to establish the required nexus.
It is clear from an examination of Brownsville's 40/
Id.,
6 AEC at 621. (emphasis added).
41/
Id. (emphasis added).
- November 12, 1980 comments that its contentions concern-ing access to the proposed D.C.
interties, interstate operations, provision for full and partial requirements bulk power, benefits of TIS and STIS, and economic dispatch would be completely unchanged if the nuclear facilities involved in this proceeding simply ceased to exist.
It can thus not be said that the " activities under the license" are respons ible for the situations allegedly inconsistent with the antitrust laws which Brownsville seeks to raise.
Given the failure of its " commingling" argument and the obvious lack of relationship between its other contentions and the proposed facilities, TUGCO respectfully submits that the Commission's admonition in the Waterford II proceed-ing to dismiss "all or part of a proceeding" which is found not to be related to a nuclear facility be followed here and that Brownsville's contentions and objections to the settlement agreement be dismissed.
V.
BROWNSVILLE HAS NOT SHOWN ENOUGH TO MERIT AN HEARING IN THIS PROCEEDING As the foregoing sections point out, Brownsville's l
theories are either beyond the bounds of NRC jurisdiction or are so diffuse and lacking in nexus to the nuclear facili-ties involved as to deny Brownsville any right to a hearing i
as a matter of law.
As stated above, Brownsville is
- in default on numerous procedural requirements 32/
and has shown that its interests lie in areas over which the NRC has no authority.
Additionally, it is highly question-able whether Brownsville has a true interest in the issues regarding intrastate / interstate operation.
Brownsville has never had any plans whatsoever to purchase or sell power across the Texas border, has never investigated the
--43/ and cannot possibility of such sales or purchases, demonstrate that such possibilities even exist. II! Under the normal requirements for standing applicable in an NRC licensing proceeding, Ab! it is doubtful that Brownsville 42/
See fn. 16, supra, and accompanying text.
43,/
See Deposition of Robert Roundtree (November 13, 1979) at 172, 175; Deposition of Larry Gawlick (November 13, 1979) at 253; Deposition of Ruben Edelstein (Februa ry 12, 1980) at 138-139, 246.
44/
Brownsville's speculations on the existence of inter-regional bulk power exchange possibilities ignore the testimony of the utilities surrounding ERCOT that they aren't interested in seeking new wholesale customers in ERCOT, let alone Brownsville.
See, Deposition of Martin Fate (February 26, 1980) at 50 (Chief Executive of Public Service Company of Oklahoma); Deposition of John Turk (May 27, 1980) at 46-48 (Chief Executive of Southwest Electric Power Company); and Deposition of Jack Gambrell (December 6, 1979) at 84-86 (Manager of the Cajun Cooperative System).
45/
Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976).
See also, Kansas Gas & Electric Co.
(Wolf Creek Generating Station, Unit 1), ALAB-424, 6 NRC 122, 128 (1977) (concerns about rates are not within the scope of interests sought to be protected by the Atomic Energy Act).
can show the requisite interest to require an hearing in this proceeding.
It is not even clear whether Brownsville is even really interested in an hearing at all. 46/
Brownsville, an interve ;1 in but one of these two consolidated proceedings, is attempting to use the threat of delay to coerce TUGCO and HL&P into preferential treatment in future dealings such as use of transmission facilities.
This Licensing Board should not let itself be used in Brownsville's transparent scheme, but should affirm the holdings of previous Licensing Boards that it has no juris-diction over issues involving transmission rates or services, and should find that Brownsville has failed to demonstrate either the required nexus or changed circumstances that would warrant an hearing in this proceeding.
However, if this Board decides that Brownsville is entitled to an hearing in the South Texas proceeding, it should order that hearing to be a plenary one and follow the procedures used by the Duke Licensing Board in similar circumstances.
The license conditions should thus be approved, the Department and Staff allowed to withdraw, and Brownsville required to make its i
46/
Tr. 1188-93, 1195, 1264.
i
- case on the basis of the license conditions as approved.
Respectfully submitted, f.. f -
L '(
t
- 1, Joseph B.
Knotts, Jr.
.$nynG g
C. Dennis Ahearn DEBEVOISE & LIBERMAN 1200 Seventeenth Street, N.W.
Washington, D.C.
20036 Attorneys for Texas Utilities Generating Company Of Counsel J.
Irion Worsham Merlyn D. Sampels WORSHAM, FORSYTHE & SAMPELS Suite 2500 Bryan Tower Dallas, Texas 75201 December 3, 1980
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:
HOUSTON LIGHTING AND PONER CO.,
)
Docket Nos. 50-498A
_et _al.
)
50-499A
)
(South Texas Project, Units
)
1 and 2)
)
)
TEXAS UTILITIES GENERATING
)
Docket Nos. 50-445A COMPANY, _e t _al.
)
50-446A
)
(Comanche Peak Steam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of "TUGCO's (1) Response to
~
Brownsville's November 12, 1980 Comments on Proposed Licensa Conditions and (2) Statement Pursuant to Pequest of Board at October 24, 1980 Prehearing Conference" in the above captioned matters, were served upon the following persons by deposit in the United States mail, first class postage prepaid or by hand delivery as indicated by an asterisk this 3rd day of December, 1980.
- Marshall E. Miller, Esq.
Mr. Jerome D.
Saltzman U.S. Nuclear Regulatory Chief, Antitrust and Commission Indemnity Group Washington, D.C.
20555 Nuclear Reactor Regulation U.S. Nuclear Regulatory
- Michael L.
Glaser, Esq.
Commission 1150 17th Street, N.W.
Washington, D.C.
20555 l
Washington, D.C.
20036 l
J.
Irion Worsham, Esq.
- Sheldon J. Wolfe, Esq.
Merlyn D.
Sampels, Esq.
l U.S.
Nuclear Regulatory Spencer C.
Relyea, Esq.
l Commission Worsham, Forsythe & Sampels i
Washington, D.C.
20555 2001 Bryan Tower, Suite 2500 l
Dallas, Texas 75201 Atomic Safety and Licensing i
Appeal Board Panel Jon C. Wood, Esq.
U.S.
Nuclear Regulatory W.
Roger Wilson, Esq.
Commission Matthews, Nowlin, Macfarlane &
Washington, D.C.
20555 Barrett 15 0 Alamo National Building Chase R.
Ste
.9 as Saa Antonio, Texas 78205 c
Docketing and Service Branch U.S.
Nuclear Regulatory Dick Terrell Brown, Esq.
Commission 800 Milam Building Washington, D.C.
20555 San Antonio, Texas 78205
3 0**
4 cc c
J
~ <. -
Cliarles G.
- Thrash, Jr.,
Eng.
- Robert Fabrikant, Esq.
E.W.
Barnett, Esq.
Rangc;1cy, Wallace, Esq.
Titcodore F.
Weiss, Eng.
David A.
Dopsovic, Esq.
J.
Gregory Copeland, Esq.
Prcacrick H.
Parmonter, Esq.
Daher & Botts Kenneth M.
Glazier, Esq.
3000 One ShcIl Plaza Mildred L.
Calhoun, Esq.
Houston, TX 77002 Nancv H.
McMillen, Esq.
U.S.'Dapartment of Justice i
Steven R.
Hunsicker, Esq.
Antitrust Division R.
Gordon Gooch, Esq.
P.O. Box 14141 John P.
Mathis, Esq.
Washington, DC 20444 Ba' er & Botts 1701 Pennsylvania Avenue, NW Jerry L. Hhiris, Esq.
Washington, DC 20006 Richard C.
Balough, Esq.
City' of Aus tin
- Frederic D.
Chanania, Esq.
P.O. Box 10G8 Michaal B.
Blume, Esq.
Austin, TX 7 876
Stephen H.
Lewis, Esq.
- J.A.
Bouknight, Jr., Esq.
Ann P..,dodgdon, Esq.
Douclas G.
Green, Esq.
U.S. Nuclear Regulatory Lowenstein, Mewman, Reis, Cognission Axelrad and Toll Washington, DC 20555 1025 Connecticut Avenue, NN Washington, DC 20036 Mr. Rorf Hardy Davidson, Esq.
Chairman and Chief Executive John W.
Officer Sawtelle, Goodo, Davidson &
Central Power and Light Company Tioiolo P.O.
Box 2121 1100 San Antonio Savings Bldg.
Corpus Cristi, TX 78403 San Antonio, TX 78205 Mr. Perry G.
Brittain Douglas F.
John, Esq.
President McDermott, Will and Emery Texas. Utilitics Gene rating 1101 Connecticut Avenue, NW Company Suite.'201 Washington, DC 20036 i
2001 Bryan Tower Dallas, TX 75201 Bill D.
St. Clair, Esq.
Morgan Hunter, Esq.
j Mr.
R.L.
Hancock, Director McGinnis, Lockridge & Kilgore City of Austin Electric Utility Fifth Fl. Texas State Bank Bldg.
P.O.
Box 1086 900 Congress Avenue Austin, TX 78767 Austin, TX 78701 Mr.
G.W.
Oprea, Jr.
- David M.
Stahl, ';sq.
Executive Vice Prosident Isham, Lincoln, i Belae Houston Lighting & Power 1120 Connecticut.ivenue, NW t
l
' Company Suite 325 P.O.
Box 1700 Washington, DC 20036 Houston, TX 77001 Don R.
Butlcr, Esq.
211 East Seventh Stroet l
Austin, TX 78701 l
1 w.,
, a.
.-m,
.--r-..
---.m e
Peter Thornton, Es Sara Welling, Esq.q.
Mr.
G.
Holman King West Texas Utilities Co.
Michael I. Miller, Esq.
P.O.
Box 841 James A.
Carney, Esq.
Isham, Lincoln & Beale Abilene, Texas 79604 One First National Plaza Suite 4200 Kevin B.
Pratt, Esq.
Chicago, Illinois 60603 Attorney General's Office State of Texas Mr. Don H. Davidson P.O.
Box 12548 City Manager Austin, Texas 78711 City of Austin P.O.
Box 1088 Frederick H'.
Ritts, Esq.
- William H.
Burchette, Esq.
Northcutt Ely Mr. W.S.
Robson Watergate 600 Building General Manager Washington, D.C.
20037 South Texas Electric J.
K.
Spruce, General Manager Cooperative, Inc.
City Public Service Board Post Off, ice Box 151 P.O.
Box 1771 Nursery, Texas 77976
. San Antonio, Texas 78296 4
- George Spiegel, Esq.
Robert C. McDiarmid, Esq.
Robert Jablon, Esq.
Marc Poirier, Esq.
Spiegel & McDiarmid 2600 Virginia Ave.,
N.W.
Ste. 312 Washington, D.C.
20037
- NUMu@
Pf%
e nis Ahe~rn a
W.N.
Woolsey, Esq.
Dyer and Red ord 1030 Petroleum Tower Corpus Christi, Texas 78474 l
Mr. Donald M.
Clements i
Gulf States Utilities Company j
Post Office Box 2951 l
Beaumont, Texas 77704 Marc J. Wetterhahn, Esq.
l Robert M.
Rader, Esq.
Conner & Moore 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20056 Mr. William C.
Price Central Power & Light Co.
P.O.
Box 2121 Corpus Christi, Texas 78403 i
._.