ML20204D296

Consolidates for Discovery Purposes,Proc Re Subj Facils. Dates for Completion of Discovery & for Prehearing Conf Shall Apply to Both Proc.Lists Issues Adopted by the ASLB; Also Lists Discovery Procedures

ML20204D296
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	12/05/1978
From:	Mark Miller Atomic Safety and Licensing Board Panel
To:
References
NUDOCS 7812140221
Download: ML20204D296 (7)

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UNITED STATES OF AMERICA I # NUCLEAR REGULATORY COMMISSION di W

,y'Y'"/7&A W 4 l In the Matter of $g

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TEXAS UTILITIES GENERATING COMPANY ) Docket dos. 50-445A

) 50-446A I (Comanche Peak Steam Electric Station, )

Units 1 and 2) )

PREHEARING CONFERENCE ORDER REGARDING ISSUES, DISCOVERY AND CONSOLIDATION (December 5, 1978)

Following discussion with counsel, the Board adopts :the following issues, with the understanding that-they are neces-sarily general at this stage and that subissues will be developed and amendments may be made as discovery proceeds and is completed:

Ultimate Issue I - Whether the Applicants' activitias .

(j ointly, severally, or with others) under the licenses sought will create or maintain a situation inconsistent with the antitrust laws (Sherman Act, l 551 or 2; Clayton Act; Federal Trade Commission A.ct,

$5), or their clearly underlying policies.

Ultimate Issue II - What relief is appropriate to remedy a situation if found to be inconsistent with the antitrust laws or their clearly underlying policies.1/

1/With' due consideration to conditions already contained in Comanche Peak construction permit which are presently in 1 effect.

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Issue 1 - What is the structure of the electric utility industry in and reasonably adj acen't to the State of Texas and to what extent if any do the Applicants have either dominance or monopoly power in any relevant market or submarket.

Issue 2 - What is the nature and extent of competi-tion or potential competition between or among electric utilities in and adj acent to the State of Texas.

Issue 3 - Whether and to what extent actual or potential competition or competitive opportunities are foreclosed or adversely affected by " intrastate i only" operation.

l Issue 4 - What are Applicants' policies, purposes or practices with respect to " intrastate only" l operation, and what conduct or activities have .

Applicants engaged in to enforce " intrastate only" operation or to maintain that status.  :

Issue 5 - Have Applicants, alone or in combination with others, foreclosed or hindered competition in the buying, selling, or exchanging of electric power or related services in any relevant market or submarket.

Issue 6 - Whether and to what extent a situation inconsistent with the antitrust laws, if found, would be intertwined with or exacerbated by activities under the license to operate the Comanche Peak Project (nexus).

The scope. of these issues must be viewed in the context of the Commission's South Texas Memorandum and Order of June 15, 1977.2/ The Commission there stated:

"Our determination of changed circumstances fore-shadows a series of subsidiary questions which .

need not be addressed comprehensively at this juncture, but concerning which some Commission guidance is appropriate. The only stated conse-quence of a Commission deternination that 'signi-ficant changes' have occurred is that paragraph (1) of subsection 105(c) -- the paragraph pro-viding for Attorney General review and advice -- -

applies. Paragraph (c) (2) does not explicitly state whether this consideration or any subsequent hearing is to be limited to the subsequently developed circumstances underlying the Commission determination and reference to the Attorney General.

While some of the parties before us - gotably Central and the Department of Justice 15/ -- argue against ar.f such limitation, we have concluded that this second look at the operating license stage is to be a restricted one, focusing on the changed circumstances."3/ { Footnote omitted.] -

The Commission further said-2/ Houston Lighting and Power Company, et al. (South Texas Pro-j ect ', Unit Nos. 1 & 2) , CLI-77-13, 5 NRC 1303 (1977) .

3/ Id., at 1320-21. ,

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"This is not to say that 'significant changes' in a licensee's proposal can or should necessarily be viewed in isolation from unchanged features of the proposal. The antitrust implications of a

'significant change' may indeed arise from its relationship to unchanged features of the proposal.

Obviously, some account will have to be taken of the proposal as a whole, but as the proposal or its impacts have been altered by changed circumstances."4/

In view of the fact that substantial discovery has already been provided in other proceedings and litigation which may involve at least some of the issues in the instant proceeding, such other discovery may be utilized as follows:

1. Discovery material, (including corresponding discovery requests)' including but not limited to depositions upon oral examination, deposi- .

tions upon written questions, interrogatories to parties and ansers thereto, documents and things produced, requests for a6nission and responses thereto, pleadings, motions, .

affidavits, and substantially equivalent material howsoever identified, from proceed-ings listed in Paragraph 2, post, shall be considered as material discovered in this proceeding pursuant to 10 CFR 552.740-2.742.

b/Id., at 1321.

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2. This discover- .aterial order applies to the following other proceedings:

(a) In the Matter of Central and South West _

Corporation, et al., SEC Administrative Proceeding File No. 3-4951, (b) West Texas Utilities Compaav , et al. v.

Texas Electric Service Company, et al.,

No. CA3-76-0633F, United States District Court (N.D. Texas Dallas Division), .

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(c) In the Matter of the Emergency Hearing on Intrastate and Interstate Service of Texas Interconnected Svstem, Docket No. 14, Public Utilities Commission of Texas. .{

(d) In the Matter of Houston Lighting and Power Company, et al., (South Texas Proj ect, Units 1 and 2) Docket Nos. 50-498A and 50-499A.

3. This order will not prevent any party in this pro =- .

ceeding from obtaining further discovery pursuant to i.S'A 10 CFR $52.740-2.742, 2.744.

4. This order shall not ba construed to waive the right of any party in this proceeding to raise at:v objec-tion as to the admissibility into evidence of any I material subj ect to this provision.

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5. Parties to the proceedings listed in Paragraph 2 who are also parties to this proceeding shall cooperate to provide the other parties to this proceeding mutually convenient access to the materials covered by this order and the opportunity to obtain copies of such materials.

The parties are directed to commence discovery and trial preparation immediately, and to complete all discovery by April 9, 1979. Witness lists, brief summaries cf proposed testimony by each witness, and all proposed exhibits, studies and supporting documents shall be exchanged and initialed by counsel promptly. as discovery and trial preparation progresses. ,

A prehearing conference to consider and review such progress 1 will be held on March 20, 1979.

This proceeding is hereby consolidated for discov._y purposes with the pending proceeding in Houston Lighting &

Power Company, et al. (South Texas Proj ect, Units 1 an'd 2),

Docket Nos. 50-498A and 50-499A. The dates for the completion  ;

of discovery (April 9, 1979), and of a prehearing conference (March 20, 1979) shall apply to both proceedings, as well as discovery materials and other matters set forth at pp. 6-7 in the South Texas prehearing conference order dated July 13, 1978. The balance of the motion for partial consolidation,

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filed by Texas Utilities Generating Company on November 16, 1978 in this proceeding, is denied without prejudice to the subse-quent filing of such a motion by any part y.

IT IS SO ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

' 04A aAA 5 hVY 1

Marshall E. Miller, Chairman Dated at Bethesda, Maryland this 5th day of December 1978.

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