ML20045E822
| ML20045E822 | |
| Person / Time | |
|---|---|
| Site: | Palisades  |
| Issue date: | 04/16/1980 |
| From: | Bickwit L NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | |
| Shared Package | |
| ML20038A409 | List:
|
| References | |
| FOIA-92-436 SECY-A-80-056, SECY-A-80-56, NUDOCS 9307060095 | |
| Download: ML20045E822 (5) | |
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NUCLEAR REGULATORY COMMi$$10N -
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ADJUDICATORY ITEM CONSENT CALEND AR ITEM.
SECY-A-80-56 April 16, 1980_
The Commissioners For:
Leonard Bickwit, Jr., General Counsel From:
l Central Electric Power Cooperative's Petition for
Subject:
an Atomic' Energy Act section 105c(2) "significant changes" antitrust determination
@ recommend that
Purpose:
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Background
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ng schedule for the parties and staff to address various issues that had already bey presented-by the parties in a spate of filinga r.-
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We understand the OL could issue in late 1981.
Contact:
Marjorie S. Nordlinger, OGC Informatica in this record was deleted in accordance with t#e F eedom of Info 634-1465 h
a,s 600 Act. exem;;iens osu & ",3
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Tleadings were rebel ~ved ~ffoE all~ of ~the' parties including NRC Staff, whose submission, served directly to all Commission of fices f
1 The Recommended Order Te attached. order that OGC recommends reviews the facts and discusses i
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The Commission has since delegated its authority to make the significant changes determination to Staff while retaining right of review.
At that time the Commission also approved procedures for soliciting information from interested parties and notifying the public of negative significant changes determinations.
Af firmative decisions would trigger review by the Justice Depart-ment and subsequent publication of the Attorney General's advice. l
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Recommendation:
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Leonard Bickwit, Jr. ' l General Counsel Attachments:
1.
Proposed Order 2.
SECY-A-79-4 Comissioners' conments or consent should be provided directly t by c.o.b. Thursday, May 1,1980.
Comission Staff Office coments, if any, should be submitted to the Commissioners' NLT with an information copy to the Office of the Secretary..If the paper April 24, 1980, is of such a nature that it requires. additional time for. analytical. review and-coment.
the Comissiones'and'the Secretatiet should be apprised.iof.whenl6Tme~nts..iniayLbe
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This paper is tentatively scheduled for affinnation at an Open Meeting during the We Please refer to the appropriate Weekly Commission Schedule, when of May 12, 1980.
published, for a specific date and time, i
DISTRIBllTION Comissioners Comission Staff Offices Secretariat 1
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UrY.A 7Q,1 January 11, 1979 NUCLEA'l REGULATCRY COMMl8310N ADJUDICATORY ITEM CONSENT CALENDAR ITEM.
T_c:
The Commission o
James L. Kelley, Acting General' Counsel From:
In the Matter of South Carolina Electric
Subject:
& Gas, e_ti, al. (Operating License)
Virgil C. Summer Nuclear Station (Unit 1)
Facility:
n Pureose:
On December 6,1978, Central Electric Discussion:
Power Cooperative (Central) petitioned the Commission to make a finding of-
"significant changes" in licensees ', South Carolina Electric and Gas (SCE&G) and South Carolina Public Service Authority (Santee Cooper), activities and proposed activities so as to initiate antitrust review.'
Central's petition originally requested an antitrust 8
hearing as well; however, Central withdrew the request i
for hearing by. letter to Mr. Chilk on December 22, 1978, and. only the request for a "significant change" finding remains for Cocnission determination.
Contact:
Marj orie S. Nordlinger, O'GC 634-1465
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., j On a f'ind-ing of 515nificant changes, the Commission forwards the matter to the Attorney General for review.
The Attorney General is required by statute to advise the Commission within 180 days whether or not an antitrust proceeding should be commenced.
If the Attorney General recommends a hearing it is agreed that the statute requires the Commission to provide one.
If the Attorney Ge'neral finds that a hearing is not necessary, the Commission must.still publish.tha.t.__
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advice and. provide. opportunity.for
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'inttrested parties.to reduest"a~heariris.T 3-7~'
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I The statute provides that there shall be review at the operating license stage only where the Commission has determined "such review is advisable on the ground that i
significant changes in the licensees' activities or proposed activities have. occurred subsequent to the previous review by-the Attorney,1 General and the.
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Commission... in connection with the; construction.
permit for the facility."
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r Central contends that the parties to the alleged restrictive agreement sought legislative approval of the agreement.
It appears from subsequently filed pleadings of applicants that the South Carolina legislature has in fact legis-lated a division of territories for the purpose of providing power.
Central requests" pro ~mpt h6 tion,~ ' claiming
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that.it would be jijrifuren'viere' there :ts : r er-be any delay in, granting'an operating-license for the Summer unit, since it is dependent on Santee Cooper for most of its power supply.
Santee Cooper has responded by letter of December 21, 1978 asking permission of the Commission to file a more complete response by January 15 SCE&G's response has come in the form of a motion to dismiss or, in the alternative, for summary disposition.s Central has asked. leave to respond to SCE&G's motion by January 31, 1979
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l Applicants have also: complained of Central's.1 failure to-identify,the relief sought and other. failures which relate-
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to..the.nowltrMkeq requeatgor hearing...
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c See sections of the Attorney General's advice quoted at i
- p. _6 of SCE&G 's motion to dismiss.
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Recommendation:
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eting. General Counsel Attachments:
- 1. Petition
- 2. Proposed Order Comissioners' coments should be provided directly to the Office of the-Secretary by c.o.b.: Wednesday, January - 17.1979 Comission-Staff. Office coments, if any, should be submitted to the Commissioners <
NLT January 16,- 1979, with an infonnation copy to the Office of the Secretary.:. If the paper is of such a nature that it requires additional time for analytical.
- review and coment,.the' Comissioners and the ' Secretariat should be, apprised of-when coments may' be expected.
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'- l' Thia paper is tentatively scheduled for affinnation at an Open Meeting on Thursday, January 18, 1978.- Please refer to the appropriate Weekly Comission Schedule, when published, for a specific time.
i DISTRIBUTION:
l Comissioners Comission Staff Offices Secretariat 9
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Pk UNITED STATES OF AMERICA n
3-NUCLEAR. REGULATORY COMMISSION d
DEC 61ST.B > :I c wn= 4 In tne Matter of
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4 South Carolina Electric &
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Ig y c-Gas Company
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and
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Docket No. 50-395A
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South Caro' lina Pub *lic
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Service Authority
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(Virgil C. Summer Nuclear
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gtationUnitNo. 1)
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A Petition for a Finding of Significant Change and Request for Antitrust Eearing on Operating License Central Electric Power Cooperative, Inc. (a South Carolina corporation), pursuant to Sect 4:,n 105(c)(2) of the Atomic Energy Act of 1954 as amer td, requests the Nuclear Regulatory Commission to determine that sig-
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nificant changes in the licensees' activities and proposed activities have occurred subsequent to the previous anti-trust ' review of the Atomic Energy Commission and the Attorney General and to order an antitrust review and hearing prior to granting an operating license.
Applicant South Carolina Electric & Gas Company (hereinafter SCE&G) was granted a cons'truction permit 4
f or Summer Nuclear Station, Unit'No. 1 on March 19, 1973.
kheantitrust review of the Attorney General occurred in 1971 and 19.72 and his advice was issued on March 31, 1972.
Sub' sequent thereto, the South Carolina'Public Service Authority (hereinafter Santee-Cooper) entered into an agreement with South Carolina Electric & Gas Co. and other private electric companies operating in South Carolina, including Carolina Power & Light Company, to restrict their competition in the sale of electric power at wholesale and at retail on and af ter July 9, 1973 in territories outside three counties'and submitted said agreement to the legislature of the State of South Carolina in the hope that the adoption and enactment of said agreement by the legislature would immunize their 'otherwise unlawf ul agreement from operation of the antitrust laws.
On information and belief, in consideration f or Santee-Cooper's agreement to the aforesaid restraint of trade in electric power, SCE&G agreed to sell to Santee-Cooper an interest in the captioned nuclear generating unit.
For many years prior to July, 1973, Santee-Cooper's
. role.in the power market in South Carolina was that of an agressive entrant into the market and an actual and,
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potential competitor of SCE&G and other nearby private electric companies.
On information and belief, in 1935 those companies i
attempted by third party litigation to eliminate Santee-l Cooper as a potential competitor.
See Clarke v. South 1
Carolina Public Service Authoritv, 256 S.C.
167, 181 S.E. 481 (1935).
Shortly thereafter these private electric 2_
companies, fearing its actual and potential competition,.
unsucc essf ully under t'cok in the Federal Courts to enjoin the construction and operation of Santee-Cooper.
- See, Carolina Power & Licht Comeany v.' South Carolina Public Service Authority, 20 F. Supp. 854; 94 F.2d 520 (4th Circuit 1938).
In 1942 Santee-Cooper made an unsuccessful attempt to extend its power operations and sales into cen' tral South Carolina by purchasing existing faci 11-ties of the Lexington Water Power Company and other private companies.
See, Creech v.
South Carolina Public Service Authority et al. 200 S.C.
127, 20 S. E.2nd 64 5 (194 2 ).
In 1949 the private electric companies failed in their attempt to block Santee-Cooper's extension of electric s'ervice to central South Carolina.
See, South Carolina Electric & Gas Company _v.
South Carolina Public Service Authority, 215 S.C.
193, 54 S.E.2nd 777.
l Prior to the 1950's the cooperatives and municipal electric utilities in South Carolina lacked access to power exchange e.lternatives and were therefore unable to compete in the wholesale power market.
When Santee-Cooper succeeded in; entering the market, Central linked its destiny to Santee-Cooper by financing and constructing a large transmission 1
system and the*rmal generating system in central South Carolina
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and leasing said systems to Santee-Cooper for integration with its power facilities.
Santee-Cooper's operation of the af oresaid f acilities was under a plan in which Santee-Cocper would meet the interest and principa'l obligation en the
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f acilities over the period required to amertize the out-
' standing indebtedness a.nd thereaf ter it would su:ceed Central as the owner of these facilities.
At the heart of the arrangement was the premise that Santee-Cooper would retain its competitive role in electric bulk power supply in South Carolina.
At present about 1/2 of Santee-
. Cooper's approximately 1200 MW total load is-its wholesale service to Central.
Since July 9, 1973 Santee-Cooper has no Jonger com-peted with the private electric companies.
Other than continuing for the present to fulfill its contractual commitments to Central, Santee-Cooper limits its sales to 3 counties in South Carolina and to large power sales of over 750 KW in retail service territories assigned under state law to Central's member rural electric distri-bution cooperatives.
It is noteworthy that Central is almost entirely depen-dent on Santee-Cooper for bulk power supply and that the latter has initiated a policy of dual rates to Central for supplying power to Central f or ultimate ' resale to large power loa 6s.
The af oresaid dual rates unf airly restrain Central's members from competing.for such large power loads.
Under applicable state law, Central's. member-customers who are rur al electric distribution cooperatives f ace compe-tition both from Santee-Cooper and from private electric companies including Applicant for operating license,.
SCE&G.
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Kherefore, petitioner Central respectfully recuests-that the Commission make a findi..g of significant change and order an antitrust review ce made and a hearing held on said operating license as soon as may be found convenient.
Central notes that it is dependent on Santee-cooper for almost all of its power supply and would suffer serious injury if there were to be any delay in granting an operating license for;said Summer. unit.
s Please make service of all papers in connection with the foregoing matter on the undersigned attorneys at the addresses indicated, and on Mr.
P.
T.
Allen, Executive Vice President and General Manager, Central L.ectric Power Cooperative, Inc., P.O. Box 1455, Columbia, South Carolina 29202.
Respectfully submitted, CENTRAL ELECTRIC POWER COOPERATIVE, INC.
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WaAAace L.
crano PEARCE & BRAND 1000 Connecticut Ave., N.F.
Suite 1200 Washington, D.C.
.20036 Telephone:
(202) 785-0048
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Attorneys for Central Electric By C. Pincknev Roberts DIAL, JENNINGS, WINDBAM, THOMAS ROBERTS P.O. Sox 1792 Colum:ia, South Carolina 29202 5
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CERTIFICATE OF SIF.VICE-I, Wallace E.
Brand, hereby certify that I have served a copy of the' foregoing Petition for a Finding of Significant Change and Recuest for Antitrust Hearing on Operating License on the persons listed below by depositing a copy thereof, postage prepaid in.the United States mail this 6th day of December, 1978.
.AM2 Wallace E. Brand l
Mr.
W.
C. Mescher, President South Carolina Public Service Authority
<'IUh 223 E.
Line Oak Drive Mancks-Corner, S.C.
29461 j#
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% g[L U.S. Nuclear Regulatory Commission
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Office of the Secretary Dg3, 4. $,4 Attn:
Docketing and Service Branch Washington, D.C.
205**
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b Conner, Moore and Corber es 1747 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 U.S. Nuclear Regulatory Commission Office of the Executive Legal Director Washington, D.C.
20555 Mr.'P.
T..
Allen Executive'V.P. and General Mgr.
Central Electric Power Cooperative, Inc.
P.O.
Box 1455
- Columbia, South Carolina 29202 C. Pinckney Rcberts Dial, Jennings, Windham, Thomas &
Reserts i
P.O. Box 1792 Celu ::a, South Carolina 29202
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