ML20010B341
| ML20010B341 | |
| Person / Time | |
|---|---|
| Site: | Farley  |
| Issue date: | 08/11/1981 |
| From: | Whitler J JUSTICE, DEPT. OF |
| To: | NRC COMMISSION (OCM) |
| References | |
| ALAB-646, ISSUANCES-A, NUDOCS 8108140380 | |
| Download: ML20010B341 (6) | |
Text
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8 UNITED STATES OF AMERICA 1;
CIE:: of the Se:rebry kh e
CLEAR REGULATORY COMMISSION
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Before the Commission w
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-4 In Tne Matter of
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ALABAMA POWER COMPANY
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Docket Nos. 50-348A (Joseph M.
Farley Nuclear Plant, )
50-364A Units 1 & 2)
)
ANSWER OF DEPARTMENT OF JUSTICE OPPOSING PETITION FOR REVIEW SUBMITTED BY THE MUNICIPAL ELECTRIC UTILITY ASSOCIATION OF ALABAMA Pursuant to 10 C.F.R.
$ 2.786, the United States Department of Justice
(" Department") submits this answer in opposition to the " Petition for Review Submitted by Municipal Electric Utility Association of Alabama"
(" Petition").
For the reasons set forth below, the Department respectfully requests that the Commission deny the Petition.
The Atomic Safety and Licensing Appeal Board (" Appeal Board") issued an order and decision duced June 30, 1981
("ALAB-646"), in the above captioned proceeding, which affirmed in part and reversed in part decisions by the Atomic Safety and Licensing Board
(" Licensing Board").
5 NRC 804 (1977) and 5 NRC 1482 (1977).
The Municipal Electric Utility Association of Alabama ("MEUA") is petitioning for review of that part of the Appeal Board decision affirming the Licensing Board's finding that MEUA, and its individual members, were neither actual nor potential ' competitors in the relevant wholesale market in 4
0108140380 810811 d2 h 0 PDR ADOCK 05000348 j
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central -and southern Alabama, and therefore not entitled to relief under Section 105(c)(6) in the form of ownership participation in the Farley Nuclear Plant.
MEUA alleges that recent state legislation allowing MEUA to participate in joint generation and transmission projects constitutes a significant new fact tnat clearly makes MEUA and its members competitors in the wholesale market.
MEUA also seeks a remand so that the Licensing Board might consider this new evidence and correct what MEUA alleges was an erroneous denial of due process as a result of MEUA's exclusion from the relief phase (Phase II) of tne hearing.
Review of decisions of the Atomic Safety and Licensing Board is within the discretion of the Commission.
A petition for review of matters on policy or law will not ordinarily be granted unless it " constitutes an important antitrust question, involves an important procedural issue, or otherwise raises important questions of public policy."
10 C.F.R.
l 2.786(b)(4)(i).
Petitions for review of questions of fact "will not be granted unless it appears that the Atomic Safety and Licensing Appeal Board has resolved a factual issue necessary for deci sion in a clearly erroneous manner contrary I
to the resolution of that same issue by tne Atomic Safety and Licensing Board."
10 C.F.R.
i 2.786(b)(4)(ii).
It is the latter criteria that is controlling in the instant petition for review.
The Department has taken the position throughout this I
proceeding that the members of MEUA were potential competitors, i
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of the Applicant and entitled to relief consistent with NRC autnority to eliminate Applicant's monopoly power in central and southern Alabama.
See Brief of Department of Justice in Support of Exceptions to the Initial Decision, 53-63 (November 14, 1977).
Neither the Licensing Board nor the Appeal Board, however, viewed the facts of record as sufficient tp qualify MEUA or its members as potential competitors.
While the Department believes the facts of record do provide adequate support for a finding that the members of MEUA were potential competitors, nonetheless, the issue has been decided adversely to our position on two levels within the Nuclear Regulatory Commission.
In accordance with Commission policy as stated at 42 F.R.
22129 (May 2, 1977), the MEUA is not entitled to a third review of factual matters by the Commission itself.
Should the Commission nonetheless grant the MEUA Petition-and subsequently determine that the Appeal Board's order limiting relief was clearly erroneous, the Department opposes a remand as wholly unnecessary and contrary to the public interest.
Tne record is adequate for a finding by the Commission that the members of MEUA are potentia 2, competitors of the Applicant, have been denied access to the Farley plant and are. entitled to ownership participation. 1/
A remand is therefore not necessary.
1/
The state legislation cited by MEUA does not, in the Departnent's view, constitute a significant new fact warranting reversal and remand.
Under previous Alabama law it was unclear wnether MEUA could enter into joint venture arrangements.
It,
has always been clear,-however,-that MEUA's members could participate as individuals in joint venture arrangements with tne same effect as provided for in the new legislation.
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For the reasons set forth above the Department respectfully requests the Commission to deny MEUA's Petition.
l Respectfully submitted f
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John D.. Whitler Attorney, Energy Section Antitrust Divisicn Washington, D.C.
l August 11, 1981 J
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CERTIFICATE OF SERVICE I hereby certify that copies of tne attached Answer have been served on the following by United States Mail, postage prepaid, this lith day of August, 1981.
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af John D.
Whitler Secretary Joseph Rutberg, Esq.
Nuclear Regulatory Commission Benjamin H.
Volger, Esq.
Washington, D.C.
20555 Michael B. Blume, Esq.
Antitrust Counsel Nuclear Atomic Safety and Licensing Regulatory Staff Appeal Board Panel Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 Michael C.
Ferrar, Cnairman S. Eason Balch, Esq.
Atomic Safety dnd Licensing Robert A.
Buettner, Esq.
Appeal Board Balch, Bingham, Baker, Nuclear Regulatory Commission Hawthorn, Williams & Ward i
Wasnington, D.C.
20555 600 North 18tn Street Birmingham, Alabama 35203
~
G Richard S.
Salzman, E q.
Terence H. Benbow, Esq.
Atomic Safety and Licensing Theodore M. Weitz, Esq.
[
Appeal Board David J.
Long, Esq.
Nuclear Regulatory Commission Winthrop, Stimson, Putnam 2
Washington, D.C.
20555
& Roberts
~
40 Wall Street New York, New York 10005 L.
Mr. Chase Stephens, Supervisor Martin G. Malsch, Esq.
I Docketing and Service Section Majoria S. Nordlinger, _Esq.
Office of tne Secretary of the Office of General Counsel Commission Nuclear Regulatory Commission E
Nuclear Regulatory Commission Washington, D.C.
20555 7
Uashington, D.C.
20555 P
Reuoen Goldberg, Esq.
Bennett Boskey, Esq.
[.E Goldberg, Fieldman & Letham, P.C.
D. Biard MacGuineas, Esq.
R 1700 Pennsylvania Avenue, N.U.
Volpe, Boskey and Lyons Washington, D.C.
20006 918 16th Street, N.W.
Washington, D.C.
'20006 IE e If U
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David C. Hjelmfelt,.Esq.
1967-Sandalwood Ft. Collins, Colorado 80526 4
Bruce W.
Cnurchill, Esq.
Snaw, Pittman, Potts & Trowbridge 1800 "M"
- Street, N.W.
Washington, D.C.
20036 Martin Frederic Evans, Esq.
DeDevoise, Plimpton, Lyons & Gates 299 Park Avenue New York, New York 10171 i
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