ML20050E240
| ML20050E240 | |
| Person / Time | |
|---|---|
| Site: | South Texas, Comanche Peak, 05000000 |
| Issue date: | 04/06/1982 |
| From: | Balough R, Bouknight J, Stahl D, Wilson W AUSTIN, TX, CENTRAL POWER & LIGHT CO., HOUSTON LIGHTING & POWER CO., SAN ANTONIO, TX |
| To: | |
| References | |
| ISSUANCES-A, NUDOCS 8204130134 | |
| Download: ML20050E240 (16) | |
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, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION o 4
BEFORE THE ATOMIC SAFETY AND LICENSING bEh; 4 h In the Matter of )
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HOUSTON LIGHTING & POWER COMPANY ) NRC Docket Nos. 5 N CITY PUBLIC SERVICE BOARD OF SAN ) 50-499A ANTONIO )
CITY OF AUSTIN )
CENTRAL POWER AND LIGHT COMPANY )
(South Texas Project, Unit Nos. 1 )
and 2) )
)
TEXAS UTILITIES GENERATING ) NRC Docket Nos. 50-445A COMPANY, et al. ) 50-446A (Comanche PeaE Steam Electric )
Station, Unit Nos. 1 and 2) )
RESPONSE OF CENTRAL AND SOUTII WEST CORPORATION, HOUSTON LIGHTING & POWER COMPANY, THE CITY PUBLIC SERVICE BOARD OF SAN ANTONIO, AND THE CITY OF AUSTIN TO NOTICE OF CONFERENCE OF COUNSEL on March 22, 1982 the Presiding Administrative Law Judge t
requested that each party file a statement describing the history and status of these proceedings and the issues to be resolved, and making affirmative recommendations as to how each issue i should be resolved. This Response is filed by Central and South West Corporation and its subsidiary operating electric utility companies (collectively "CSW"), which are intervenors in Comanche Peak and one of which subsidiaries, Central Power and Light Company (" CPL") is a co-applicant in South Texas and by Houston Lighting & Power Company ("IILP") , the City Public Service Board of San Antonio ("CPSB"), and the City of Austin (" COA"), which are co-applicants in South Texas.
Dsog 1 8204130134 820406 DR ADOCK 05000
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t I. Pertinent History and Current Status of these Proceedings.
These consolidated proceedings involve operating license stage antitrust reviews for the South Texas Project ("STP") and Comanche Peak nuclear facilities. The events surrounding the initiation of the South Texas proceeding are summarized in the Commission's Order of June 15, 1977 (5 NRC 1303).
Briefly stated, these events arose out of a dispute over interstate interconnections. The electric utility system of the United States is divided into three electrical grids, one of which serves roughly the Eastern half of the United States, one which services roughly the Western sector, and one, known as the Texas Interconnected System, which serves almost all of Texas. The three grids do not operate in parallel, i.e., elec-trical synchronism. In 1976 a controversy arose between CSW, TU and HL&P as to a proposal for synchronously interconnecting the Eastern and Texas grids. At the time, as the Public Utility Regulatory Policies Act had not been enacted, there existed no appropriate mechanism for presenting the interstate interconnection issue to the federal agency having expertise over such matters, the FERC. In May of 1976, as set forth in South Texas, this con-troversy led to litigation in federal district court, at the FERC, before the Texas Public Utilities Commission, and lastly before this Commission. Upon reviewing these events, the Commission, in its Order, announced that it would seek advice from the United States Department of Justice concerning whether there had been
"significant changes" in the activities of HLP since the construc-tion permit stage which would require an antitrust review in connection with the STP operating license application. By letter dated February 21, 1978, the Attorney General recommended an antitrust review be held in connection with the operating license application for STP. Upon receipt of this letter, the Commission concluded, by Order of April 5, 1978, that it was required to convene an antitrust hearing on the operating license application.
An Atomic Safety and Licensing Board was thereaf ter designated and, on July 13, 1978, the Board entered an Order defining the issues which would be litigated in the South Texas proceeding. The City of Austin, Texas (Electric Department) , the City Public Service Board of San Antonio, Texas and CPL participated as co-applicants, and the intervention petitions of the South Texas Electric Co-op/
Medina Electric Co-op, the Public Utilities Board of Brownsville, Texas ("Brownsville") and TUGCO were granted.
On December 5, 1978 the Licensing Board in Comanche Peak entered an order delineating virtually identical issues to be litigated in that proceeding, and further consolidated for dis-covery purposes the Comanche Peak and South Texas proceedings.
By Order of April 10, 1980 the Licensing Board, sua sponte, ordered consolidation of these two proceedings for pretrial and eviden-tiary hearing purposes.
l The second half of 1978, all of 1979 and the first three months of 1980 were devoted to discovery by way of interrogatories, document requests and depositions, both of parties and non-party witnesses. The Licensing Board set a number of discovery cutoff
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dates, dates for submission of witness lists, designation of exhibits and summaries of testimony, as well as hearing dates.
By March, 1980 the principal private litigants in these con-solidated proceedings (CSW, HLP and TU) had commenced discussions among themselves with the purpose of achieving a settlement not only of these proceedings but also of the numerous other pro-ceedings in which they were litigants and which involved similar issues.1/ After having been apprised of the existence of these settlement discussions the Licensing Board granted a series of 30-day extensions of all procedural dates in order to permit the parties to continue their settlement negotiations.
These discussions proved fruitful in that on June 9, 1980 CSW, HLP and TU executed a Settlement Agreement which provided the overall framework for the ultimate resolution of these and related proceedings.
The Settlement Agreement makes use of the provisions of PURPA to permit the construction of a two direct current inter-connections between TIS and the Southwest Power Pool (the Southwest portion of the Eastern grid) . Subsequently, after additional negotiations involving the Department of Justice, the NRC Staff, the Cities of Austin and San Antonio and Tex-La, settlements were reached among all parties to the Comanche Peak
~L/ As noted above, since 1976 CSW, on one hand, and TU and HLP, on the other, had been engaged in extensive litigation over the issues of interconnections between utilities located in Texas and utilities located in other states. These con-solidated proceedings were one aspect of that litigation.
The other, related proceedings are summarized in Exhibit A hereto.
l proceeding and among all parties to the South Texas proceeding other than Brownsville.
On September 12, 1980, HLP, CSW, the NRC Staff, Austin and San Antonio executed a Stipulation in the South Texas proceeding, to which was attached a set of settlement License conditions. This Stipulation was submitted to the Board on September 15, 1980, and the Board was requested to incorporate the settlement License Conditions into the South Texas con-struction permit in accordance with the Stipulation. In accordance with the Stipulation, the NRC Staff, the Department of Justice and CSW communicated to the Board that, in their opinion, licensing of the South Texas Project, Units 1 and 2 under these " conditions will not create or maintain a situation inconsistent with the antitrust laws or the policies thereunder
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Similarly, a stipulation and settlement License Conditions were submitted to the Board in the Comanche Peak dockets on September 12, 1980, by TUGCO, CSW, the Department of Justice, the NRC Staf f and Tex-La.
Upon receipt of these filings, the Board requested that any party to these proceedings who objected to the proposed License Conditions should file its written objections with the Board. On September 25, 1980 Brownsville, an Intervenor in South Texas but not Comanche Peak, filed its Motion for Disapproval of Proposed License Conditions; Comments Opposing
-2/ Separately, in a pleading in which the other parties did not -
join, CSW advised the Board of its position on the relationship between the June 9, 1980 Settlement Agreement and the settle-ment of this proceeding. Status Report of Central and South West Corp., et al., dated September 15, 1980.
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Proposed License Conditions; and Request for Further Proceedings.
At a prehearing conference on October 25, 1980 the Board suspended all further procedural dates and required Brownsville to file detailed objections to the proposed License Conditions by November 10, 1980, and granted other parties two weeks to respond. On November 12, 1980, having been granted an additional extension, Brownsville filed its Comments Opposing Proposed Settlement License Conditions. On December 3, 1980 CSW, HLP, TUGCO, the NRC Staff and the Department of Justice filed their responses to Brownsville's November 12 Comments,A/ explaining why the license conditions should be accepted.
3/ These are captioned, respectively, as follows:
Reply Comments of the Central and South West Companies to Comments of the Public Utilities Board of the City of Brownsville, Texas Opposing Proposed Settlement License Conditions.
Memorandum of Houston Lighting & Power Company in Support of Proposed Settlement License Conditions and, in Response to the Opposing Comments of the Public Utilities ovard of the City of Brownsville.
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.
NRC Staff Comments on and Motion for Approval of Settle-ment License Conditions.
Reply of the Department of Justice to the Comments of the Public Utilities Board of the City of Brownsville Opposing Proposed Settlement License Conditions.
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II. Issues to be Resolved.
A. Implementation of the Settlement The principal issue to be resolved is whether the settle-ment License Conditions should be incorporated in the operating licenses for the Comanche Peak and South Texas Project plants pursuant to the Stipulations. As mentioned previously, Brownsville is the only party which did not sign the Stipulations. This should not delay approval of the proposed Comanche Peak License Conditions since Brownsville is not a party to that proceeding.
Moreover, if Brownsville does not, pursuant to the Law Judge's March 22, 1982 Order, file any objections to entry of the pro-posed South Texas License Conditions, it would appear that these License Conditions likewise are not contested by any party, and should be entered. Both proceedings should then be terminated.
Even if Brownsville maintains its objections to the proposed South Texas License Conditions, the Law Judge should nonetheless approve the entry of those Conditions. Under Com-mission precedent, whether a settlement among fewer than all participants to a proceeding should be accepted depends upon whe'ther the settlement is "within the public interest." Duke Power (Catawba Nuclear Station, Units Nos. 1 and 2), LBP-74-47, 7 AEC 1158, 1159 (1976). In Catawba, the Board focused on whether the proposed settlement conditions would have prejudiced I
l the non-settling parties and, failing to find such prejudice, approved the proposed conditions. Similarly, in Florida Power l
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& Light Co. (St. Lucie Plant, Unit No. 2) ,SI a Licensing Board made effective conditions resulting from a settlement among the applicant, the Staff and the Department of Justice, despite oppo-sition from intervenors, upon its finding that the intervenors were not prejudiced by the settlement conditions, which simply fell short of granting all of the relief that they desired.
The same analysis is appropriate here. The earlier comments filed by HLP, TUGCO, CSW, the Department of Justice and the NRC Staff in response to Brownsville's November 12 Comments, identified in Footnote 3, all demonstrate that the proposed License Conditions are in the public interest. Those arguments need not be repeated here. Brownsville's previously filed objections, on the other hand, do not explicitly argue that the proposed License Conditions are not in the public interest. Rather, Brownsville objected to the Conditions only on the ground that they do not go far enough, that they do not contain all the provisions that might be incorporated in License Conditions entered after an evidentiary hearing. It is obvious that such an objection should not be permitted to bar implementation of a settlement.
B. Brownsville's Status As we have noted, Brownsville is the only party to the South Texas proceeding (whether governmental, public, or private) that has not yet joined in the settlement. But since Brownsville's most recent filing in this proceeding, it joined in a settlement 4/ The Licensing Board's Order was issued on April 24, 1981.
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O of the interstate interconnection issue before the FERC. As a result of the settlement, the FERC has issued an order man-dating the interstate interconnections and related transmission service and finding the settlement proposal before it to be "in the public interest."5/ In these circumstances, it is difficult to perceive how any genuine issue could remain to be decided in the instant South Texas proceeding. Moreover, it is difficult to see how, in light of its representations to FERC, Brownsville could pursue any contentions in this proceeding.
However, in the unlikely event that Brownsville desires to continue to litigate in this proceeding, it should be required to come forward promptly with a specification of the issues that it believes merit further proceedings, in light of the Settlement License Conditions and the settlement of the interconnection issue at the FERC. Should Brownsville adopt this course, it will bear the burden of establishing that "the activities under the proposed operating licenses will create or maintain a situation inconsistent with the antitrust laws on the basis of 5/ Order Requiring Interconnection and Wheeling, and Approving Settlement, Central Power and Light Co., FERC Docket Nos.
EL79-8, E9558 (Oct. 28, 1981). The interstate interconnection proposal has been unopposed, and has been supported by virtually every utility, private, and publicly owned, in the Southwest, and by the FERC staff, and Departments of Justice and Energy.
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significant changes in the Appl.icants' activities which have occurred subsequent to the [ construction permit proceeding],"5!
and that license conditions in addition to the settlement License Conditions are therefore " appropriate" under Section 105c(6) of the Act.
III. Recommendations as to Resolution of Issues.
As stated above, the undersigned believe that the proposed License Conditions can and should be attached to the Comanche Peak and South Texas Operating Licenses in accordance with the Stipulations, on the basis of the existing record in this pro-ceeding. If Brownsville intends to persist in its prosecution of South Texas, Brownsville should be required, taking into
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account the South Texas settlement and other circumstances which may have changed since November 1980, to frame contentions which would satisfy the basis and specificity requirements of 10 CFR S2. 714 (b) .2/ The other parties could be given an opportunity to respond and the Administrative Law Judge could then decide whether any further proceedings are appropriate.
~6/ Notice of Antitrust Hearing on Operating License Application, Houston Lighting & Power Co. (South Texas Project, Unit Nos.
1 and 2) , Docket Nos. 50-498A, 50-499A (April 10, 1978),
7/ In accordance with previous rulings by the Licensing Board, Brownsville should not be permitted to raise any issue, or assert any factual or legal proposition, that is not included in its filings of September 25 and November 12, 1980.
Consequently, CSW, HL&P, CPSB, and COA respectfully sug-gest that (1) the proposed License Conditions in these proceedings be incorporated, in their entirety, into the Comanche Peak and STP Operating Licenses pursuant to the Stipulations of September 12, 1980, (2) the Comanche Peak proceeding be terminated, and (3) (a) if Brownsville does not renew its objections to the STP License Conditions, the South Texas proceeding be terminated, or (b) if Brownsville seeks additional conditions it be required to specify any issues it desires to litigate in the South Texas proceeding in a form consistent with 10 CFR 52.714(b) within .
thirty (30) days of an Order to that effect, with other parties granted thirty (30) days thereafter to respond.
Respectfully submitted, lb
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Stahl /
Counsel to Central Power &
Light Company h
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W J./A. Bouknight, Jr. (
Counsel to Houston Lighting &
,fPower Company W.
W Rog#r Wilson '
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Counsel to the City Public Service Board of San Antonio
/ h4' Y Richard C. Balough Q '"
Assistant City Attorney l Date: April 6, 1982 City of Austin, Texas l I
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6.
EXHIBIT "A" In the Matter of Central and South West Corporation, Securities and Exchange Commission, Docket Ad. Proc. File No. 3-4951, a proceeding to determine whether CSW complies with the 1935 Public Utility Holding Company Act; Central Power and Light Co., Federal Power Commission, Docket No. E-9558, a proceeding to determine whether HLP and TU are subject to the FPC's (now FERC) interconnection authority under Section 202 of the Federal Power Act; remanded to the FERC sub nom Central Power and Light Co.
- v. FERC, 575 F.2d 937 (D.C. Cir. 1978);
Central Power and Light Co., Federal Energy Regulatory Com-mission, Docket No. EL79-8, a proceeding brought under Sections 210, 211 and 212 of the Federal Power Act for interconnections and other relief; interlocutory appeals pending in the United States Court of Appeals for the Fifth Circuit sub nom. Public Utility Commission of Texas v. FERC (No. 79-3054) and Central Power and Light Co. v. FERC (No. 79-2420);
Texas Power & Light Co. , Federal Power Commission, Docket No. E-9578, a proceeding to determine whether the TU subsidiaries are subject to the FPC's (now FERC) juris-diction, including the jurisdiction to order intercon-nections under Section 202 under the Federal Power Act; Texas Public Utility Commission, Docket 14, a proceeding to determine whether utilities in the Electric Reliability Council of Texas, including CSW, HLP and TU, should operate with or without interstate interconnections; federal appeal dismissed on grounds of abstention, Central Power and Light Co. v. Public Utility Commission of Texas, No. A-77-CA-86 (U.D. Tex. 1977), aff'd. 592 F.2d 234 (5th Cir. 1979); state appeal pending, Central Power and Light Co. v. Public Utility Commission of Texas (Travis Co.); !
West Texas Utilities Co. v. Texas Electric Service Co., et al. )
470 F. Supp. 798 (N . D . Tex., 1979), a proceeding under Section 1 of the Sherman Act alleging that the absence of interconnections is the result of a concerted refusal to deal by HLP and TU. The District Court entered judgment in favor of defendants. An appeal pending is in the United States Court of Appeals for the Fifth Circuit, No. 79-2677 under motions that it be held in abeyance.
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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION l
'o? to -8 p') $0 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
HOUSTON LIGHTING & POWER COMPANY ) NRC Docket Nos. 50-498A CITY PUBLIC SERVICE BOARD OF SAN ) 50-499A ANTONIO )
CITY OF AUSTIN )
CENTRAL POWER AND LIGHT COMPANY )
(South Texas Project, Unit Nos. )
1 and 2) )
)
TEXAS UTILITIES GENERATING ) NRC Docket Nos. 50-445A COMPANY, et al. ) 50-446A (Comanche Peak Steam Electric )
Station, Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing:
RESPONSE OF CENTRAL AND SOUTH WEST CORPORATION, HOUSTON LIGHTING
& POWER COMPANY AND TEXAS UTILITIES GENERATING COMPANY TO NOTICE OF CONFERENCE OF COUNSEL, were served upon the following persons, by hand *, or by deposit in the United States Mail, first class postage pre aid, this 6th day of April, 1982. ,
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t D p$as 9. Green' ownstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 (202) 862-8400 DATED: April 6, 1982 1
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3 Administrative Law Judge Stephen H. Lewis, Esquire James A. Laurenson Ann P. Hodgdon, Esquire Atomic Safety and Licensing Michael B. Blume, Esquire Board Panel U.S. Nuclear Regulatory U.S. . Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Chairman and Chief Executive Appeal Board Panel Officer U.S. Nuclear Regulatory. Central Power and Light Commission ~
Company Washington, D.C. 20555 Post Office Box 2121 Corpus Christi, Texas 78403 Docketing and Service Branch U.S. Nuclear Regulatory J.K. Spruce, General Manager Commission City Public Service Board Washington, D.C. 20555 Post Office Box 1771 San Antonio, Texas 78296 Mr. Argil L. Toalston Acting Chief, Utility Finance Mr. Perry G. Brittain Branch President U.S. Nuclear Regulatory Texas Utilities Generating Commission Company Washington, D.C. 20555 2001 Bryan Tower i
Dallas, Texas 75201 J. Irion Worsham, Esquire Marlyn D. Sampels, Esquire G.W. Oprea, Jr.
Spencer C. Relyea, Esquire Executive Vice President Worsham, Forsyth & Sampels Houston Lighting & Power 2001 Bryan Tower, Suite 2500 Company Dallas, Texas 75201 Post Office Box 1700 Houston, Texas 77001 Jon C. Wood, Esquire W. Roger Wilson, Esquire R.L. Hancock, Director Matthews, Nowlain, Macfarlane City of Austin Electric Utility
& Barrett Post Office Box 1086 1500 Alama National Building Austin, Texas 78767 Sen Antonio, Texas 78205 Joseph Gallo, Esquire E.W. Barnett, Esquire Robert H. Loeffler, Esquire Thtodore F. Weiss, Esquire Isham, Lincoln & Beal J. Gregory Copeland, Esquire 1120 Connecticut Avenue, Suite 325 Baker & Botts Washington, D.C. 20036 3000 One Shell Plaza Houston, Texas 77002 David M. Stahl, Esquire Michael I. Miller, Esquire R. Gordon Gooch, Esquire James A. Carney, Esquire Stcven R.'Hunsicker, Esquire Sarah Welling, Esquire Dcker & Botts Martha E. Gibbs,. Esquire 1701 Pennsylvania Avenue Isham, Lincoln & Beal Wnchington, D.C. 20006 One First National Plaza, Suite 4200 Chicago, Illinois 60603 l L '
. Donald A. Kaplan, Esquire Knolant J. Plucknett Nnncy A. Luque, Esquire Executive Director Frederick H. Parmenter, Esquire Dnvid A. Dopsovic, Esquire Committee on Power for the Southwest, Inc.
U.S. Department of Justice 5541 East Skelly Drive P.O. Box 14141 Tulsa, Oklahoma 74135 Wnshington, D.C. 20044 Jerry L. Harris, Esquire Morgan Hunter, Esquire Bill D. St. Clair, Esquire Richard C. Balough, Esquire Dan H. Davidson, City Manager McGinnis, Lockridge & Kilgore City of Austin Fifth Floor, Texas State Bank Bldg.
900 Congress Avenue P.O. Box 1088 Austin, Texas 78701 Austin, Texas 78767 Joseph B. Knotts, Esquire Robert C. McDiarmid, Esquire Dabevoise & Liberman George Spiegel, Esquire 1200 Seventeenth Street, N.W. Robert A. Jablon, Esquire Marc R. Poirier, Esquire Washington, D.C. 20036 Spiegel & McDiarmid Douglas F. John, Esquire 2600 Virginia Avenue, N.W.
Suite 312 McDermott, Will and Emery Washington, D.C. 20037 1850 K Street, N.W.
Suite 1201 Kevin B. Pratt Wnshington, D.C. 20006 Texas Attorney General's Office Don R. Butler, Esquire Post Office Box 12548 Austin, Texas 78711 1225 South West Towers Austin, Texas 78701 William H. Burchette, Esquire Frederic H. Ritts, Esquire John W. Davidson, Esquire ,
Snwtelle, Goode, Davidson & Trollo Law Offices of Northcutt Ely 1100 San Antonio Savings Building Watergate 600 Building Washington, D.C. 20036 cn Antonio, Texas 78205 Don R. Butler, Esquire Tom W. Gregg, Esquire 211 East Seventh Street Post Office Box Drawer 1032 San Angelo, Texas 76902 Austin, Texas 78701 Mr. G. Holman King Leland F. Leatherman, Esquire McMath, Leatherman & Woods, P.A.
Wsst Texas Utilities Company 711 West Third Street Post Office Box 841 Little Rock, Arkansas 72201 Abilene, Texas 79604 Paul W. Eaton, Jr., Esquire Jcy Galt, Esquire Looney, Nichols, Johnson & Hays Hinkle, Cox, Eaton, Coffield & Hensley 219 Couch Drive 600 Henkle Building Oklahoma City, Oklahoma 73102 Post Office Box 10 Roswell, New Mexico 88201
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W. N. Woolsey, Esquire Kleberg, Dyer, Redford & Weil 1030 Petroleum Tower Corpus Christi, Texas 78474 Dick Terrell Brown, Esquire 800 Milam Building -
San Antonio, Texas 78205 l
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