ML20056E703
| ML20056E703 | |
| Person / Time | |
|---|---|
| Site: | River Bend  |
| Issue date: | 08/17/1993 |
| From: | Pembroke J CAJUN ELECTRIC POWER COOPERATIVE, INC., DUNCAN, WEINBERG, MILLER & PEMBROKE, P.C. (FORMERLY |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#393-14232 OLA, NUDOCS 9308250084 | |
| Download: ML20056E703 (28) | |
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UNITED STATES OF AMERICA BEFORE THE __
NUCLEAR REGULATORY COMMISSION
'iG In the Matter of ' ~ 19 o ' 73
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Gulf States Utilities Company )
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Docket No. 50-458-~6)L/h (River Bend Station) )
TO ITS PREVIOUSLY ,
FILED INC.'S, AMENDMENT COMMENTSCAJ PETITION FOR LEAVE TO INTERVENE, AND REQUEST FOR HEARINGO TO FACILITY OPERATING LICENSE ,
OF AMENDMENT PROPOSED NO SIGNIFICANT HAZARDS CONSIDERATION DETE \
AND OPPORTUNITY FOR HEARING RMINATION James D.
Janice L. Pembroke Lower Thomas L. Rudebusch DUNCAN, WEINBERG, MILLER &
PEMBROKE, P.C.
1615 M Street, N.W.
Suite 800 h3 b Cooperative, Inc. Attorneys for CajunrElectric Powe Dated: August 17, 1993 9308250084 930817 PDR G ADOCK 05000458 A PDR
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s TABLE OF CONTENTS PAGE i
I. INTRODUCTION. . . . . . . ... .......... .. ........ ..... 1 II.
SUMMARY
OF ARGUMENT.......... .. ........... .. .. 2 III. ARGUMENT..... . . . . .......................... .. ... 5 A. The Proposed License Amendment Cannot Be Approved Without Cajun's Consent............ 5 B. The Proposed License Amendment Will Adversely Affect Cajun's Rights Regarding The Operation Of River Bend............ . . .. . . . . 8 ,
C. The River Bend License Conditions Must Be Enforced.......... ...................... .. 13 IV. . CONCLUSION....... . ................................. 15 ,
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TABLE OF AUTHORITIES CASES i Assunto v. Coleman, l
158 La. 537, 104 So. 318 (1925) . . . . . . . . . . . 8 Entergy Services. Inc. and Gulf States Utilities Company.
FERC Docket Nos.. EC92-21-000 and ER92-806-000 . . . 2 Caiun Electric Power Coocerative. Inc. v. Gulf States Utilities Companv, 59 FERC (CCH) 1 63,024 (1992) . . . . . . . 15 Caiun Electric Power CooDerative. Inc. v. Gulf States Utilities Comeanv, No. CCV-89-2294 (W.D. La.) . . . . . . . . . . 15 l Caiun Electric Power Cocoerative. Inc. v. Gulf States
~r ilities Comeany, No. 89-474-B (M.D. La.) . . . . . . . . . . . . . 13 Fowler v. Phillies.
159 La. 668, 106 So. 26 (1925) . . . . . . . . 6 Hobson v. Peake, 44 La. Ann. 383, 10 So. 762 (1892) . . . . . . . . 8 Landreneau v. Grancer,
( 401 So. 2d 634 (La. App. 1981) . . . . . . . . . . . . 6 Marchand v. Gulf Refinina Co.,
187 La. 1002, 175 So, 647 (1937) . . . . . . . . . . 6 Montaomerv v. Foreman, 410 So. 2d 1160 (La. App. 1982) . . . . . . . . . . . 7 Neal v. Daniels, 217 La. 679, 47 So. 2d 44 (1950) . . . . . . . . . . 8 l Noe v. Roussel, 310 So. 2d 806 (La. Sup. 1975) . . . . . . . . . . . . 7 Robinson v. Commercial Cattle Co.,
82 So, 2d 108 (La. App. 1955) . . . . . . . . . . . . 8 Robinson v. Hunt, et al.,
211 La. 1019, 31 So. 2d 197 (1947) . . . . . . . . . . 7 Southwest Louisian Electric Membershin Corocration v.
Gulf States Utilities ComDany,.
No. 92-2129 (W.D. La.) . . . . . . . . . . . . . . . . 13 11 1
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i STATUTES / REGULATIONS La. C.C. art. 1950 (1992) . . . . . . . . . . . . . . . . . 7 ;
La. C.C. art. 3028 (1992) . . . . . . . . . . . . . . . . 7 10 C.F.R. g 2.714(a)(3) (1993) . . . . . . . . . . . . . 2
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UNITED STATES OF AMERICA BEFORE THE i NUCLEAR REGULATORY COMMISSION !
In the Matter of )
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Gulf States Utilities Company ) Docket No. 50-458 [
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h (River Bend Station) ) l I
l CAJUN ELECTRIC POWER COOPERATIVE, INC.'S, AMENDMENT TO ITS PREVIOUSLY FILED COMMENTS, PETITION FOR LEAVE ,
TO INTERVENE, AND REQUEST FOR HEARING AND CONDITIONS, j ON NOTICE OF CONSIDERATION OF ISSUANCE OF' AMENDMENT ;
TO FACILITY OPERATING LICENSE, PROPOSED NO SIGNIFICANT HAZARDS CONSIDERATION DETERMINATIONL i AND OPPORTUNITY FOR HEARING {
t l I. INTRODUCTION j
! On August 6, 1993, Cajun Electric Power Cooperative, !
l Inc. (" Cajun"), timely filed its Comments, Petition.for Leave to j i
Intervene, and Request for Hearing and Conditions, on Notice of l
Consideration of Issuance of Amendment to Facility Operating i
License, Proposed No Significant Hazards Consideration Determination and Opportunity for Hearing (" Comments"). In its Comments, Cajun noted that it would raise additional matters with the Commission regarding the proposed amendment to the River Bend ;
I Operating License NPF-47, which is intended to effect the '
transfer of operational re'sponsibilities for River Bend from Gulf j States Utilities Company ("GSU") to Entergy Operations, Inc.
("EOI"). Egg Comments at page 5, n.5; page 9, n.6; page 10, n.7.
Rather than awaiting the issuance of any further Notice by the Nuclear Regulatory Commission ("NRC" or " Commission"),
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Cajun hereby amends its Comments to place before the Commission !
the full panoply of its concerns regarding the proposed license amendment. Thus, in accordance with 10 C.F.R. g 2.714(a)(3) l (1993), Cajun files this amendment to its Comments. ?
In addition to the matters raised in its Comments, ;
i Cajun argues here: l l
(1) The proposed license amendment cannot be approved !
without Cajun's consent and Cajun has not given ,
i its consent; j (2) The proposed license amendment cannot be approved due to its adverse impacts on Cajun's rights l i
regarding the operation of River Bend; and ;
(3) GSU and EOI should be required to comply with 'the f
i current River Bend license conditions. I II.
SUMMARY
OF ARGUMENT As more fully discussed in Cajun's Comments, Cajun and- l GSU are joint owners of River Bend, with Cajun owning a thirty l percent interest and GSU owning the remaining seventy percent. !
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j River Bend is owned and operated under the terms of the Cajun /GSU l
l Joint Ownership, Participation and Operating Agreement ("JOPOA")
l l dated August 28, 1979.1' l
1/ The JOPOA is attached as Exhibit CJN-2, Schedule 1, to the testimony of David L. Mohre, Cajun's Executive Vice President and Chief Executive Officer. This testimony was filed on March 24, 1993, in the related merger proceeding before the Federal Energy Regulatory Commission ("FERC") in Entergy Services. Inc. and Gulf States Utilities Cemnanv, FERC Docket Nos. EC92-21-000 and ER92-806-000 ("FERC Merger Proceedings") and was attached to Cajun's Comments, Petition for Leave to Intervene and Request for Hearing and l
Conditions on Applications for Approval of Transfer of (continued...)
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GSU proposes to merge with the Entergy Corporation
("Entergy") and, by entering into the Entergy System Agreement, will become an operating company of Entergy, along with Louisiana Power & Light Company, Mississippi Power & Light Company, Arkansas Power & Light Company and New Orleans Public Service, Inc. As part of the merger plan, GSU proposes to amend the River l Bend Operating License, NPF-47, to include EOI as a licensee with i
! cperational responsibility for River Bend.
In addition to the health and safety concerns raised by ,
Cajun in its Comments, Cajun raises three additional matters here ;
with regard to the proposed license amendment.F First, GSU has submitted the proposed license amendment
- purportedly on behalf of, and as agent of, Cajun. GSU's agency authority does not extend to this proposed license amendment which restructures the entire relationship of Cajun with regard !
to the operation of River Bend. Since the proposed license amendment falls outside the parameters of the agency granted to GSU under the JOPOA, Cajun's consent to the license amendment must be sought and obtained. Cajun does not consent to the license amendment in its current form.
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Ownership, filed with the NRC by Cajun on April 26, 1993, in Docket No. 50-458.
2/ On April 26, 1993, Cajun filed its Comments, Petition for Leave to Intervene and Request for Hearing and Conditions on GSU's Application for Approval of Transfer of Ownership.
That pleading contains additional concerns related to the overall merger transaction, including its impact on competition and on Cajun's power supply activities.
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Second, the proposed license amendment should be rejected since it totally restructures the operational regime of j l
River Bend. Currently, Cajun has direct contractual relations with the River Bend plant operator, GSU. If_the license 1
amendment is granted, GSU will be a barrier between Cajun and EOI, the proposed River Bend operator. Cajun will have no direct contractual privity with EOI. Further, and^more problematic,
! EOI, in concert with GSU, will make decisions regarding the operations of River Bend as part of a multi-state, multi-nuclear unit system which may not have GSU's interests, and certainly not i Cajun's interests, as its prime concern.
Third, GSU currently is taking actions which are in l violation of its current River Bend license conditions. In ,
I litigation involving Cajun and River Bend, GSU is seeking to have i
declared void the contract pursuant to which GSU provides i transmission services to Cajun. Such action violates River Bend ;
I l license condition 10, which requires GSU to transmit power on )
behalf of Cajun, among others. Further, GSU's refusal to provide certain delivery points for Cajun violates River Bend license l
condition 12.
In brief summary, the license amendment application should not be approved absent Cajun's consent and only upon proper condition to ensure that Cajun's rights as a thirty percent owner of River Bend are fully protected. ,
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III. ARGUMfNT A. The Proposed Licente Amendment Cannot Be Approved Without Caiun's Consent.
As can be seen from GSU's filing, GSU submitted its ,
license transfer application (RBEXEC-93-035) on its own behalf and, purportedly, on behalf of Cajun. Under the JOPOA, GSU can act as Ca]un's agent and take actions on behalf of Cajun, only where GSU's judgment and discretion have not been exercised ;
unreasonably. Egg JOPOA, S 4.1. Cajun asserts that GSU's f judgment and discretion have not been exercised reasonably (and particularly not with reference to Cajun's interests) in GSU's application to amend the operating license and transfer operational responsibility for River Bend to EOI as proposed herein. As more fully described in Section III B, infra, the primary flaws in the proposed plan for operation of River Bend after the license amendment are that GSU will be a barrier between Cajun and the proposed plant operator, EOI, and that the plant may no longer be run in the best interests of GSU and, purportedly, Cajun; it will be run in the best interests of the Entergy System. Cajun has therefore notified GSU that this attempted exercise of its agency authority is improper and !
ineffectual. Indeed, under Louisiana law,l' GSU's authority to act as Cajun's agent in this regard no longer exists.
The agency language included in the JOPOA, while broad, does not appear to fall within the narrow definition of the 1
irrevocable agency condition known as a " mandate coupled with an :
l l 1/ The JOPOA is to be interpreted under Louisiana law. Ega j l JOPOA, g 6.14.
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interest" recognized by the law of Louisiana, which could, !
possibly, allow GSU to file the license amendment without Cajun's consent. To have a mandate (agency) coupled with an interest, the agent must be given, by the principal, an interest in the property that is the subject of the mandate, such that the agent may deal with the property in its own name. Marchand v. Gulf i Refinina Co., 187 La. 1002, 1009, 175 So. 647, 650 (1937); Fowler
- v. Phillins, 159 La. 668, 693, 106 So. 26, 28 (1925).
Louisiana courts have held that even where, as here, the agency contract stated that it was coupled with an interest and irrevocable, the agency was still revocable. Landreneau v.
Granger, 401 So. 2d 634, 638 (La. App. 1981) ("Although the power of attorney and management contract contains language designating the agreement as a mandate coupled with an interest and that it is irrevocable, such language is of no legal effect", where no I
interest in the property itself was conveyed); Marchand, 187 La.
at 1009, 175 So. at 649 ("The fact that it was stipulated in the mandate that it was irrevocable could not avail since the very nature of the transaction shows that no interest in the property itself was conveyed.") Thus it is clearly established that, regardless of language to the contrary in the JOPCA, where the agency contract provides that the agent does not have the right or power to deal with the property in its own name, but only as agent, and where the agent was given no power to alienate or mortgage the subject property (Cajun's share of River Bend),
there is no irrevocable mandate or agency. If GSU's mandate is i
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not coupled with an interest, it is revocable at will. La. C.C.
Art. 3028 (1992).
Even if the agency i.s coupled with an interest, the Louisiana courts have held that it is nonetheless revocable for cause. Robinson v. Hunt et al., 211 La. 1019, 1061, 31 So. 2d 197, 211 (La. Sup. 1947). Even where there is an interest in the agent, of a high enough level, that derives from the contract rather than a property interest, as where the contract is a bilateral agreement or the agency is granted as a condition of the contract, the agency can be revoked for cause. Montgomerv v.
Foreman, 410 So. 2d 1160, 1167 (La. App. 1982)
A change in the basic conditions motivating the agent (here, GSU) may serve as the required "just cause." Cf. La. C.C.
Art. 1950 (1992), and Comment thereto. Obviously here, with GSU's proposed change in ownership and membership in the Entergy system, the conditions motivating GSU have changed dramatically.
Thus, GSU's mandate may be held to have terminated when GSU sought to serve its own private interest that is totally inconsistent with the interests of its principal, Cajun. The standard to which GSU is held as agent in the JOPOA is good faith and good utility practice. JOPOA 3 4.2. GSU has failed that standard, and that failure is "just cause" for the termination of the agency.
1 Louisiana law provides that an agent may not lawfully i serve or acquire any private interest that is in opposition to the interest of its principal. Noe v. Roustel, 310 So, 2d. 806, 819 (La. Sup. 1975) (" . the agent or fiduciary may not take l
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oven the slightest advantage, but must zealously, diligently, and I honestly guard and champion the rights of his principal against ;
i 711 otner persons whomsoever, and is bound not to act in antagonism, opposition or conflict with the interest of the l principal to even the slightest extent."); Robinson v. Commercial !
, Cattle Co., 82 So, 2d 108, 111 (La. App. 1955); Neal v. Daniels, 217 La. 679, 682, 47 So. 2d 44, 45 (1950); Assunto v. Coleman, 7 158 La. 537, 540, 104 So. 318, 319 (1925) (" . . an agent owes !
l the utmost fidelity to his principal and cannot acquire any ;
' l interest adverse to him."); Hobsor. v. Peake, 44 La. Ann. 383, ,
388, 10 So. 762, 764 (1892). One effect of acquisition or an. ,
adverse interest (by, as here, requesting a change in the license f that will directly place at risk Cajun's interests and' Cajun's i
, operations) is to terminate the agency. No other result'is equitable or logical; Cajun did not transfer any ownership or ;
other interest to GSU at the time it agreed to the J0POA, and l
3 Cajun certainly did not agree to GSU's actions as agent that 5 i
would be contrary to Cajun's interests. ;
Cajun states unequivocally that the l':ense amendment i request has not properly been made on Cajun's bei11f, that f Cajun's consent to the license amendment has not been obtained, !
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and that Cajun opposes the license amendment application as l proposed by GSU. !
t B. The Proposed License Amendment Will Adverselv Affect Caiun's Richts Regardina The ODeration Of River Bend.
GSU has requested approval by this Commission of the license amendment which will be implemented by the arrengements t
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under which EOI will operate River Bend for GSU. These arrangements are proposed to be implemented by agreements which include the GSU-EDI Operating Agreement, the GSU-EOI Support l
Agreement, the GSU-EOI Switchyard and Transmission Interface Agreement, the GSU/EOI/Entergy Corporation Guarantee Agreement and the GSU/Entergy Services, Inc., Service Agreement.I' GSU's and EOI's (" Applicants") proposal for the operation of River Bend is in derogation of Cajun's rights under the Cajun /GSU JOPOA. Any approval by the Commission of Applicants' arrangements must be conditioned to protect Cajun's l rights as a thirty percent co-owner of River Bend.
l As described in the FERC Testimony of David Lee Mohre,l' Cajun's Executive Vice President and Chief Executive i Officer, GSU's and Cajun's obligations are currently defined by the JOPOA. The Applicants propose to effect the transfer of River Bend operational responsibility to EOI through the license amendment request and the proposed agreements enumerated above.
t Obviously, if EOI becomes the operator of River Bend, the relationship between GSU and Cajun will change significantly and fundamentally. Whereas the JOPOA provides for a considerable and significant direct relationship between the co-owner of the facility, Cajun, and the project manager or operator of the l facility, GSU, the agreements proposed by the Applicants to enable EOI to operate River Bend insert GSU as a non-operating l
l 1/ To Cajun's knowledge, none of these agreements has been formally presented by GSU to this Commission for its review.
1/ Egg footnote 1, suora.
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owner betw[en the operator, EOI, and Cajun. Indeed, Cajun has no direct contractual privity with EOI. This relationship, very I
different from that which Cajun negotiated, is totally i
unreasonable. and ir not in accordance with the JOPOA or good l
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- utility practice. Egg Mohre FERC Testimony at 6-10. l l 4 The proposed agreements change the rights for which !
i Cajun bargained. They would change GSU from an operator-owner to ;
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! simply an owner. GSU will no longer be making decisions on an ,
independent basis, serving the interests of GSU and, purportedly, Cajun as joint owners of River Bend. Rather, the decisions will ,
i be made by EOI, with input from GSU as a member of the Entergy system and a party to the Entergy System Agreement. GSU will no l t longer be accountable to a board of directors whose primary goal
( is to protect the interests of Gulf States. If the merger is ;
t consummated, GSU will be accountable to a board of directors !
which must consider the interests of the five operating companies l and numerous other subsidiaries. Further, if GSU becomes a party l
l to the Entergy System Agreement, as proposed by the Applicants, [
the Entergy Operating Committee, rather than GSU, will make ;
i critical decisions regarding loading criteria for River Bend, ;
additions or changes in facilities related to-production u requirements, refueling outages, and system dispatching and' j switching. The economic convergence of interests between GSU and Cajun assumed under the JOPOA will no longer exist. Egg id.
Further, the proposed River Bend arrangement,
_particularly the proposed GSU-EOI River Bend Operating Agreement which is attached to Mr. Mohre's FERC Testimony as Exhibit
CJN-2, Schsdule 2, and attached to Cajun's April 26, 1993 l pleading before this Commission, would have the following additional detrimental impacts on Cajun:
- 1. It would undermine Cajun's current rights with the plant operator since Cajun will have no direct contractual i privity with EOI; ;
- 2. It would impair Cajun's rights of access to auditors, INPO audits, and key reporting data cn the plant since such ;
rights run only to Gulf States. Egg Operating Agreement, 55 5.1, 5.4, and 5.9;
- 3. Co-owner approvals of budgets, capital projects, and major undertakings are not l
addressed; rather the proposed >
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" blank check" approach for EOI and GSU ,
l to access Cajun's money. Egg Operating -
Agreement Sg 3.1, 5.1, and 5.2; *
- 4. Relationships with and among Entergy affiliates are ill-defined and could be costly to Cajun. One example of this is in the scheduling of outages. Another is in the area of allocation of costs.
Egg Operating Agreement, SS 2.1, 2.5, and 5.1; Entergy System Agreement, '
S 4.08;
- 5. Administrative, general, and other costs to Cajun would be expected to increase with the imposition of GSU between the .
operator and Cajun; and l
- 6. The proposed arrangement substantially limits EOI's liability to actions which constitute " Gross Negligence or Willful l
1 Misconduct." Egg Operating Agreement, Article VI.
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Egg id. at 9-10. l As noted, under the JOPOA, GSU lacks authority to i
execute the proposed River Bend agreements as Cajun's agent, to J the extent it would be contrary to good utility practice, i
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unreasonable, or show absence of good faith. The proposed !
agreements violate each of these conditions; therefore, GSU lacks l i
authority to execute them as agent on behalf of Cajun.
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Despite these substantial problems with the mechanisms >
proposed by GSU to effect the transfer of operating responsibilities from GSU to EOI, Cajun does not necessarily oppose the requested license amendment related to EOI operation. ;
The Applicants have claimed that transfer of operational i
responsibility to EOI will result in cost savings which will .
inure to Cajun's benefit, at least in part. i Cajun hopes that cost savings are a result of any ,
license amendment. As the Commission is aware, River Bend's ,
operation and maintenance costs and administrative and general i i
costs are among the highest of any nuclear unit in' America and are consistently and substantially higher than any other )
l comparable predently run single unit boiling-water reactor. Egg i Mohre FERC Testimony at 11-12 and Ex. CJN-2, Schedule 5, attached thereto.
Thus, Cajun hopes that the purported savings occur if the merger and requested license amendments are approved.
However, such approvals should be made only upon the imposition 1
of conditions adequate to protect Cajun's interests as a thirty percent co-owner of River Bend. These license conditions would include, among others: !
- 1. The agreement pursuant to which EOI will operate River Bend _must be a tripartite agreement among GSU, EOI and Cajun; l
- 2. EOI must be the direct agent of Cajun, equally and without preference or prejudice in favor of GSU; i
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- 3. EOI must be directly liable to Cajun under a reasonable liability standard; ,
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- 4. Cajun must have meaningful input into decisions.
related to maintenance and fuel outages, budgets, 'j capital improvements and ma]or maintenance items;
- 5. Cajun must have access to EOI records, meetings '
and decisions affecting operations, maintenance or scheduling of River Bend;
- 6. EOI should submit regular reports to Cajun and !
I provide copies of all communications and documents submitted by EOI to the NRC, SEC, or other governmental agencies regarding River Bend or ;
affiliate transactions involving EOI's nuclear :
management or cost allocations;
- 7. Cajun should have access to INPO documents and be j
able to attend INPO meetings; and
- 8. Other conditions appropriate to protect Cajun as a -;
thirty percent minority owner of River Bend. l These conditions are the minimal conditions needed to !
protect Cajun in these circumstances. Particularly in light of .
the expansion of the protection of nuclear plant minority owners' interests, these conditions are appropriate and necessary.
C. The River Bend License Conditions Must Be Enforced !
As the Commission is aware, there are two pending lawsuits which may dramatically affect Cajun's ownership in River '
Bend. In the first case, Caiun Electric Power Coonerative. Inc.
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- v. Gulf States Utilities comoany, No. 89-474-B, United States t 1 District Court for the Middle District of Louisiana, Cajun seeks rescission of the JOPOA and damages in the amount of, at least,
$1.6 billion based upon, among other matters, alleged fraud in inducing Cajun to enter into the JOPOA. In the second case, l Southwest Louisiana Electric Membershin Cornoration. et al. v. I Gulf States Utilities Comeany, No. 92-2129, United States l
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m-i District C urt for the Western District of Louisiana, similar ;
relief is sought, i . e., a determination that the JOPOA is a i nullity since GSU failed to obtain necessary approvals from the i
Louisiana Public Service Commission. ,
In this litigation, Gulf States is seeking to have the l Cajun /GSU Power Interconnection Agreement (" PIA") and related service schedules declared void by the court. The PIA is the contract pursuant to which, among other things, GSU provides '
Cajun with transmission services. This action, seeking to have j l
l the PIA declared void, is in direct conflict with NRC license !
I t condition 10, appended hereto as Attachment A. That license l condition requires GSU to transmit power over its system on l behalf of utilities engaging in bulk power' supply in GSU's ;
service area. The Commission should evaluate this condition of 1
l the River Bend license in its consideration of the public interest aspects of the merger and amendment, and should inquire ;
! of the Applicants whether, if the merger is consummated, GSU will cease its attempts to have the Cajun /GSU PIA and related service schedules declared void.
Under license condition 12, appended hereto as Attachment B, GSU is obligated to sell power for resale to any entity engaged in retail distribution of electric power where such power is not available from alternative resources at competitive costs. GSU has refused to provide certain delivery points which are necessary for one - Cajun's distribution cooperative Members to supply power a two large industrial y , e- n-w,- y ,ew r. - ,y~e- -,,wwve ---,--,vr--e, , + , , w-, ---y++y *y.-w -, --4-,+ -
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l customers.E This refusal is in violation of River Bend license l
condition 12, and this violation should be set for hearing as ,
I part of this license amendment proceeding.
IV. CONCLUSION i WHEREFORE, for the foregoing reasons and for the l reasons stated in Cajun's August 6, 1993 Comments, Cajun respectfully requests that the Commission: ,
- 1. Grant Cajun's requested intervention in this proceeding for all purposes; ;
- 2. Order a full evidentiary hearing to determine whether the requested no significant hazards consideration determination should be granted and whether the requested license amendment to effect EOI operation of River Bend should be granted;
- 3. Impose on the issuance of the no significant !
hazards consideration determination and the l l
approval of the proposed license amendment, a condition which would (a) require Entergy to extend its credit to, indemnify and otherwise ;
financially support GSU in the event GSU loses the Cajun Litigation or the Texas Litigation, and/or (b) require Entergy to fully fund EDI operation of River Bend to ensure its safe and reliable operation; i
- 4. Approve the proposed license amendment only upon j Cajun's consent, j i
- 5. Approve the license amendment only upon l conditions, described herein, which are adequate !
to protect Cajun's interests as a thirty percent owner of River Bend; 1
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1/ Cajun has complained to the United States Courts and to FERC j that GSU is in violation of the antitrust laws and in breach i of its PIA obligations in refusing to establish such I delivery points. Egg Cajun Electric Power Cooperative. Inc.
- v. Gulf States Utilities Comnany, No. CV-89-2294 (W.D. La.),
appeal pending; Caiun Electric Power Coooerative. Inc. v. l Gnif States Utilities Comeany, 59 FERC (CCH), i 63,024 ;
(1992), pending on requests for rehearing.
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- 6. Order that GSU and EOI fully comply with River Bend license conditions 10 and 12, as requested herein; and
- 7. Grant such other relief as the Commission deems appropriate.
Dated: August 17, 1993 Respectfully submitted, A
Ja66s D. Pembroke Janice L. Lower Thomas L. Rudebusch ,
DUNCAN, WEINBERG, MILLER &
PEMBROKE, P.C.
1615 M Street, N.W.
Suite 800 Washington, D.C. 20036 (202) 467-6370 Attorneys for Cajun Electric Power Cooperative, Inc.
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1 ATTACHMENT A
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This provision shall not be c:nstrves to respire GSU to pur-chase or sell bulk power if it fines such purchase or sale infeasible i or its costs benefits in connection with sucn purthese or sale would exceed its therefrom. ;
i, (9)
I 05U and any successor in title, shall offer en opportunity to partici-pate in River Send Station. Unit 1 for the tem of the instant license, i or any extensions or renomals thereof, or such shorter tem as 61U and 3 the participant (s) may autually agree upon. to any entity (tes) in er j within reasonable proximity to 650's service arts in the State of .
i Louisiane which has in writing requested participation therein prior to l
March 1,1974, and which no later than March 31, 1975 has enterne into i any executory contract with respect te such participeston, having taken i all necessary action for it te lawfully do 50 prior to so doing, to a
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fair and reasonable extent and on reasonable terus and condit a Dasis that will fully compensate 65U for its costs incurnd and to be incurred ting andnuclear of this that willunit.
not adversely affect the-financing and construe.
] 65U shall steilartroffer en opportunity to 3 participate in any additional nuclear generating unit (s) the power from which is intended for use in 650's general system operations, which 650 i may construct, own, and operate in Louisiana during the ters of the I instant license (s), or any estension(s) or rensual(s), thereof.
( Participation shall be either by ownership of or purchase of unit par-i ticipation power from the respective nuclear units. Participation in l any fore shall be on an equitable basis whereby the participants, in i proportion to theirunits.
respective nuclear interests, share fully in all costs and risks of the In connection with such participation, G5U
, will offer transmission service es any be required for delivery of suca
.' for its costs. power to such para.icipant(s) on a basis that will fully compensata 4 8 .
(10) G5U shall facilitate the exchange of bulk power by transmission ove
! transmission facilities between two or more entities engaging in bulk
! power supply in its service area in Louisiana with which it is inter-i connected; and between any such ontity(ies) and any entity (fes) engaging 1 in bulk poner supply outside 65U's service area in Louisiana between j
whose facilities SSU's transmission lines and other transmissio would form a continuous electrical paths provided that (1) permission to utilize such other transmission lines has been obtained by the entities
) involved; (ii) 65U has appropriate agreements fer transmission servica
} with the entities interconnected with $5U at both the receiving and j delivery points on 85U's system; and (iii) the arrangements reasonably can be accommodated from a functional and tacht.ical standpoint. Such transmission shall be on terms that fully coepensate SSU for its cost.
! Any entity (ies) requesting such transmission arrangements shall give i reasonable aevance notice of its (their) schedule and requirements.
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( (The foregoing applies to any entity (ies) engaging in bulk power supp j to which 65U any be interconnected in the future as well as those to which it is now interconnected).
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(11) 65U shall include in its planning and canstrvction program sufficient transmission capacity as required for the transactions referred to in i paragra#i (10); provided, that any entity (tes) in its service eru in Louisiana gives 65U sufficient advance notice as may be necessary ta
! accommodata its (their) rosastruments from a functional and technical l standpoint and that such entity (ies) fully compensate 65U for its cost, d G5U shall not be required to construct transatssion facilities watch j will be of no demonstratia present or future benefit to 650.
i (12) GSU will sell power (then available) for resale to any entity (ies) in its
! service area in Louisiana now engagiag in or proposing in good faith to
- engage in retail distribution of e actric power, whenever power to meet
! the needs of such entity (ies) is not available frem alternste sources at l competitive costs.
l (13) The foregoing conditions shall be in all respects implemented on ressen-
- . able terus and conditions ta a manner consistent witA the provisions of
- .. the Federal Power Act and other applicable Federal an6 State laws and .
j E~~ regulatory orders, and shall be subject to forte majeers, applicable cur-i tailment programs, and engineering and technical feasibility fee 65U's-system. None of the foregoing conditions shall require &$U ta sell j power, perform any service, or engage in any course of action on a basis j which would be unlawfully preferential or discriminatory under any 4
applicable law or that would impair 650's att11ty to render adequate and
- ( reliable service to its one custamers. All rates, charges or practices in connection therewith are to be s@ ject to the approval of regulatery j
4 agencies having jurisdiction over them.
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CERTIFICATE OF SERVICE l
I hereby certify that a copy of the f ore going _,-do;cpment,3
- , .z was served upon the attached service list by United States Mail, postage prepaid, this 17th day of August, 1993.
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ooPJ Jarf:6s D. Pembroke l
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Gene Sweat David N. Carne l Farmers Electric Coop. Corp. A.J. Rowe & Asso., Inc. l Post Office Box 400 4312-D Evergreen Lane ;
Newport, AR 72212 Annadale, VA 22003 Cathern Wilkins, Gen. Manager Zachary D. Wilson, Esq.
N.L.R. Electric Department Attorney at Law ;
P.O. Box 159 321 Maple Street No. Little Rock, AR 72119 Post Office Box 5578 No. Little Rock, AR 72119 '
(ACC) l l
Mayor Dickie Kennemore Edwin J. Reis City Hall NRC, OGC Post Office Box 443 One White Flint North Osceola, AR 72370 11555 Rockville Pike l
Room 15 DS ,
l Rockville, MD 20852 l 1
Mayor James Johnson John Schwab, Esq.
City Hall Schwab & Walter Post Office Box 676 10636 Linkwood Court Prescott, AR 71857 Baton Rouge, LA 70810 l
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i l U.S. Nuclear Regulatory Larry Stockton Commission City Hall Office of the General Counsel Post Office Box 676 11555 Rockville Pike Prescott, AR 71857 Room 17 A2, 17A3 Rockville, MD 20852
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Wallace E. Brand, Esq. Victor J. Elmer !
Melvin G Berger, Esq. Vice President - Operations Sean T. Beeny, Esq. Cajun Electric Power Brand, Beeny, Berger & Whitler Cooperative, Inc.
1730 K Street, N.W., Ste. 1000 10719 Airline Highway Washington, DC 20006 Baton Rouge, LA 70895 (LEPA) ,
Philip P. Graham, Vice President James D. Pembroke, Esq.
Gulf States Utilities Company Jannice L. Lower, Esq.
5485 U.S. Highway 61 Thomas L. Rudebusch, Esq. l Post Office Box 220 Duncan, Weinberg, Miller i St. Francesville, LA 70775 & Pembroke, P.C. !
1615 M Street, N.W., Ste. 800 -
Washington, DC 20036 i
l Cecil L. Johnson, Esq. Mayor Jim Presnall Vice President -
Legal Services City Hall i Gulf States Utilities Company Post Office Box 607 .
350 Pine Street Benton, AR 72015
- Beaumont, TX 77701 ;
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J.A. Bouknight, Jr. (Esq.) John Walden Newman & Holtzinger, P.C. City Hall 1615 L Street, N.W. Post Office Box 607 Suite 1000 Benton, AR 72015 Washington, DC 20036 (Entergy)
Joseph B. Knotts, Jr. Bill Hegeman Mark J. Wetterhahn Conway Corporation 1400 L Street, N.W. Post Office Box 99 Washington, DC 20005-3502 Conway, AR 72015 (GSU)
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David R. Hunt, Esq. Robert Weinberg, Esq.
Ross, Hunt, Spell & Ross Michael A. Postar, Esq. ,
Post Office Box 1196 Charles A. Braun, Esq.
123 Court Street Duncan, Weinberg, Miller Clarksdale, MS 38614 & Pembroke, P.C.
(MEAM) 1615 M Street, N.W., Ste. 500 Washington, DC 20036 (SMEPA) s Robert C. McDiarmid, Esq.
- Bonnie S. Blair, Esq. James N. Compton, Esq.
Spiegel & McDiarmid Compton, Crowell & Hewitt 1350 New York Avenue 146 Porter Avenue Suite 1100 Post Office Drawer 1937 .
Washington, DC 20005-4798 Biloxi, MS 39533 ,
(MEAM)
Earle H. O'Donnell Stephen Page Daniel Judith A. Center J. Bertram Solomon Dewey Ballantine GDS Associates, Inc.
1775 Pennsylvania Ave., N.W. 1850 Parkway Place, Washington, DC 20006-2605 Suite 720 (OCC) Marietta, GA 30067 l
i Anthony G. Tummarello Don A. Ouchley, P.E.
Director of Energy Frank D. Ledoux, P.E.
Occidental Chemical Corporation Lafayette Utilities System 5005 LBJ Freeway Post Office Box 4017-C Dallas, TX 75244 Lafayette, LA 70502 l
II John Carley, Manager Daniel Guttman, Esq.
Corporate Planning & Operations Spiegel & McDiarmid So. Mississippi Elec. Power Asso. 1350 New York Ave., N.W.
6401 Highway 49 North Suite 1100 P.O. Box 1589 Washington, DC 20005-4798 Hattiesburg, MS 39401 (Lafayette, LA)
Wallace E. Brand, Esq.
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