ML20246N329
| ML20246N329 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 03/22/1989 |
| From: | Murley T Office of Nuclear Reactor Regulation |
| To: | |
| References | |
| A, NUDOCS 8903270349 | |
| Download: ML20246N329 (7) | |
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REEVALUATION AND AFFIRMATION OF NO SIGNIFICANT CHANGE FINDING PURSUANT TO PLANT V0GTLE, UNIT 2 OPERATING LICENSE ANTITRUST REVIEW By letter dated March 17, 1989, Mr. Charles A. Patrizia, counsel for the Oglethorpe Power Corporation (Oglethorpe), submitted comments on and requested a reevaluation (Request) of my " Finding of No Significant Change" (Vogtle 2 Finding) pursuant to the captioned antitrust review which was published in the Federal Register on March 2, 1989 (54 F,ed. Reg. 8852). For the reaso,ns set forth below, I have decided not to charge my Vogtle 2 Finding of no significant antitrust changes.
BACKGROUND Georgia Power Company (GPCo) underwent an antitrust review at the construction permit (CP) stage by the Atomic Energy Commission staff and the Department of Justice in accordance with Section 105c of the Atomic Energy Act of 1954, as amended. As a result of this review, the construction permit was issued with a set of antitrust license conditions designed to stimulate the competitive process in the Georgia electric bulk power market and to mitigate GPCo's alleged anticompetitive conduct.
Plant Vogite is a two-unit reactor power station. Pursuant to Section 105c
! and the Commission's Rules and Regulations, the Director of the Office of Nuclear Reactor Regulation issued a " Finding of No Significant Change" for Unit 1 of Plant Vogtle on November 21, 1986. The staff conducts separate antitrust operating license reviews of multiunit production facilities when the second or successive unit is scheduled to be licensed eighteen months or more 8903270349 PDR ADOCK
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.. g after the previous unit has been licensed. In light of the fact that the full power license for Plant Vogtle, Unit I was issued on March f.6,1987 'and the full power license for Plant Vogtle, Unit 2 was scheduled to be issued in March i t
of 1989, two years after the previous review, the staff conducted a separate operating license "significant change" analysis for Plant Vogtle, Unit 2.
The staff requested updated Regulatory Guid,e 9.3 information from all of ,the licensees and reviewed the data submitted in conjunction with previous antitrust reviews of nuclear plants owned by GPCo, i.e., Hatch 2 and Vogtle 1 construction permit and operating license reviews. (Unit 1 of Plant Hatch was " grandfathered" and did not undergo an antitrust review.) After reviewing the record in these pro-ceedings and other pertinent data, I have made the determination that none of the changes that were identified were significant in rn antitrust context -- as envisioned by the Commissien in its Summer decision (set DISCUSSION, infra). As a result of this review, I issued a " Finding of No Significant Change" on February 28, 1989. My Vogtle 2 Finding was published in the Federal Register on March 2, 1989. The notice provided for filing requests for reevaluation of my finding within fifteen days of its initial publication in tne Federal Register. As indicated supra, Oglethorpe Power Corporation, represented by counsel, Charles A. Patrizia, filed a request to reevaluate my Vogtle 2 Finding. !
Mr. Glen L. Ortman, counsel representing the Municipal Electric Authority of Georgia (MEAG), also a co-owner of Plant Vogtle, filed comments (Response) opposing Oglethorpe's request for a reevaluation. On March 21, 1989, Mr. <
Robert P. Edwards, Jr. , counsel for the principal licensee, GPCo, filed a reply (Reply) in this proceeding in agreement with MEAG and in opposition to Oglethorpe.
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3 DISCUSSION The Commission delegated its. authority to make significant change findings to the staff and established a definite set of criteria the staff must follow in making the determination whether or not a significant change has occurred.1 The change or changes,'". . 1) must have occurred since the previous antitrust review of the licensee (s); 2) are reasonabl,y attributable to the licensee,(s);
and 3) have antitrust implications that would likely warrant some form of Commission remedy." It is within this framework established by the Commission that I made my initial " Finding of No Significant Change" on February 28, 1989 and it is within this framework that I have analyzed Oglethorpe's request to reevaluate my Vogtle 2 Finding.
In its letter requesting reevaluation of my Vogtle 2 Finding, Oglethorpe requested that I take the following actions:
- 1) ". . . correct the Finding to reflect accurately that the antitrust license conditions have not successfully and fully been implemented . . ." and 2) ". . . confirm and clarify that the antitrust license conditions entitle Oglethorpe and other co-licensees to immediate and equal access to the integrated transmission system, and require Georgia Power to implement such transactions."
1The Commission delegated its authority to make significant change findings to the staff by memorandum dated September 12, 1979. In its Summer decisions (11 NRC 817 (1980) and 13 NRC 862 (1981)), the Commission outlined the criteria the staff must employ in making a finding as to whether or not there have been significant changes (with competitive significance) since the previous antitrust review.
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A third " request" suggests that I change my Vogtle 2 Finding of no significant
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changes if the license conditions are not confirmed and clarified as requested.
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The common thread running throughout Oglethorpe's Request is that the principal licensee, Georgia Power Company, is not complying with the antitrust license conditions attached to its Plant Vogtle and Plant Hatch, Unit 2 operating licenses. Oglethorpe cites several instanc,es in my Vogtle 2 Finding that, represent " factually incorrect conclusions" which have led me to conclude that the antitrust license conditions have successfully stimulated competition in the Georgia electric bulk power market. Even if Oglethorpe were correct in its assertions of " factually incorrect conclusions", which is an area not addressed in this reevaluation, the issues and examples Oglethorpe raises do not represent issues that are properly addressed in the Commission's "significant change" operating license review.
As I have indicated earlier, the Commission's antitrust review at the operating .
license stage focuses on changes since the construction permit review or, in this instance, since the previous review of the Plant Vogtle, Unit 1 operating license review. Oglethorpe's Request does not provide information of any changed activities by GPCo -- unrelated to the implementation of the antitrust license conditions -- since the previous antitrust review. Indeed, there may in fact be problems in the Georgia electric bulk poser market as outlined in Oglethorpe's Request; however, the issues Oglethorpe has addressed involve the same general concerns relating to GPCo's transmission policies and practices
5 that caused the Atomic Energy Commission and the Department of Justice to recommend license conditions at the CP stage that would mitigate GPCo's market power and hopefully stimulate the competitive process in the market (s) in question. Oglethorpe has identified several instances where it alleges that GPCo has not complied with its antitrust license conditions. Sucn conduct does not trigger a second antitrust review at the operating license stage as envisioned by Section 105c of the Atomic Energy Act of 1954, as amended, but ,
such conduct, if substantiated, could form the basis for initiation of a compliance proceeding before this Commission -- a proceeding that would focus on GPCo's activities and responsibilities under the license conditions. The Commission has procedures in place for dealing with non-compliance with antitrust license conditions (cf., NUREG-0970, pp. 13-19)' . MEAG, also a co-owner of Plant Vogtle, agrees with this interpretation of Oglethorpe's request for reevaluation.
MEAG is a joint action agency comprised of primarily municipal electric systems in the state of Georgia. MEAG owns slightly more than twenty-two percent of Plant Vogtle -- ownership that was made available as a result of the antitrust license conditions attached to the nuclear units owned by GPCo. MEAG, at the time of the CP antitrust review, was faced with many of the same competitive problems that faced Oglethorpe and other bulk power systems in the state of Georgia, i.e. , access to baseload generation and access to the transmission grid in Georgia. While MEAG apparently was not privy to the Ogethorpe Request
-- they both were filed on the same day, March 17, 1989 -- its response addressed the principal issues raised by Oglethorpe. MEAG states at page three of its Response:
6 1 "While the Authority submits that any concerns with respect to transmission access should be noted, they do not require a reevaluation of the Director's finding of no significant chan~ge.
It is consistent with the holdings of the Commission and with its rules of procedure that the interpretation and enforcement of the existing ~1icense conditions properly should be addressed .
in an enforcement proceeding." 3 Though not admitting any liability, GPCo in its response to the MEAG and Oglethorpe filings in this proceeding, concurs in MEAG's conclusion that the issues raised by Oglethorpe should be addressed in a complidnce proceeding: "The issues r'aised by Oglethorpe's comments should more appropriately be considered in an enforcement proceeding, and are not germane to the instant matter." (GPCo Reply, p. 2)
The license conditions resulting from the antitrust CP review hate been in place since 1976 and the Oglethorpe request indicates that Oglethorpe has been having compliance problems with GPCo since as early as 1984 (Request, p. 16).
Oglethorpe has had ample time to come before the Commission to seek redress and compliance with the license conditions. Moreover, Oglethorpe concurred in both the 1986 and 1988 Regulatory Guide 9.3 submittals to the staff which specifically requested information from licensees with license conditions pursuant to, "...
actions or polices which have been implemented in accordance with such conditions."
(Regulatory Guide 9.3, Question B.2) Oglethorpe also had the opportunity to come before the Commission and respond to Notices published in the Federal Register in 1986 and 1988 requesting comments pursuant to any changed (competitive) activities by Georgia Power Company -- Oglethorpe was silent on all occasions. The staff will pursue Oglethorpe's concerns expressed in its Request, but not in the context of an operating license "significant change" i
review -- it is not the proper forum for compliance-related issues.
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7 For!the reasons stated above, I have decide'd not to change'my " Finding of No Significant Change"' pursuant to the antitrust operating license _ review of Plant Vogtle, Unit 2.
Origins 1 Sism8448 Thomas E. Murley, Director Office of Nuclear Reactor. Regulation Distribution (Dooleet. ._b6-495A-PDR" ~ "
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