ML19337A862

Comments of Tx Border Cooperatives on Proposed Settlements of NRC & DOJ Re Licensing Proceedings.Certificate of Svc Encl

ML19337A862
Person / Time
Site:	South Texas, Comanche Peak
Issue date:	09/24/1980
From:	Oneil R MILLER, BALIS & O'NEIL, TEXAS BORDER COOPERATIVES
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19337A861	List: ML19337A860 ML19337A862
References
ISSUANCES-A, NUDOCS 8009300496
Download: ML19337A862 (10)

Text

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$ UNITED STATES OF AMERICA NUCLEAR REGUALTORY COMMISSION ' a

.h e BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g , ra 2 7 tgg 3 , -

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HOUSTON LIGHTING & POWER COMPANY  :

(South Texas Project,  : Docket Nos.

• Unita 1 and 2}  : 50-498A, 50-499A

TEXAS UTILITIES GENERATING COMPANY,  : Docket Nos.

et al. (Comanche Peak Steam  : 50-445A, 50-446A Electric Station , Units 1 and 2)  :

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COMMENTS OF THE TEXAS BORDER COOPERATIVES ON PROPOSED SETTLEMENTS Pursuant to the September 15, 1980 directive of the Atomic Safety and Licensing Board that the Texas Border Cooperatives respond to the settlement agreements reached by )

all parties to the Comanche Peak proceeding, and by all but a limited number of parties to the South Texas Project pro-ceeding, 1/ the Texas Border Cooperatives submit these com-men',. The comments address the following issues raised by i the Board:-

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1 The parties not in agreement at the time of the September 15, I'80 status conference were the City.of ~

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Brownsville, Texas; the South Texas Electric Cooperat;ve, Inc.; and Medina Electri'c Cooperative, Inc.

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1. What impact does the concurrence of the NRC Staff and the Department of Justice with the proposed settlement have on the Texas Border Cooperatives' Petition for Leave to Intervene (T.1005-1007)?

2. In'what way are the license conditions proposed by the settlement anticompetitive, or tend.to create or main-tain an anticompetitive situation (T.1024)?

I. THE TEXAS BORDER COOPERATIVES REMAIN ENTITLED TO STATUS AS INTERVENORS IN THESE PROCEEDINGS NOTWITHSTANDING THE SUPPORT OF A PROPOSED SETTLEMENT OF THE NRC STAFF AND THE DEPARTMENT OF JUSTICE.

Initially, the Texas Border Cooperatives would like to note that the pleadings filed with regard to their Petition

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for Leave to Intervene, including the responses of the Department of Justice and the NRC Staff, apparently remain unaffected by the settlement proposal. Those parties opposing the Texas Border Cooperatives' intervention con-tinue to oppose it, and neither the NRC Staff nor the Department of Justice has expressed opposition to the

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granting of intervenor status to the Texas Border Cooperatives. Rather, it is the Board itself that is questioning the continued validity of the Border Cooperatives' intervention request in light of the adoption '

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• by the NRC Staff and the Department of Justice of a settle-ment. Chairman Miller has noted that the proposed settle- ,

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ment is represented by these government parties as

" adequately [ protecting) the public interast, (removing) all' anticompetitive consequences,.and the like." (T.1005)

Consequently, he has charged the Border Cooperatives with telling the Board "in what respect the NRC Staff and the Department of Justice have been derelict in their respon-sibilities insofar as the antitrust laws or anticom-petitiveness of the proposed licensing conditions are

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concerned... . (T.1007)

The Texas Border Cooperatives do not contend that either the NRC Staff or the Department of Justice have been dere-lict in their responsibilities insofar as the antitrust laws l

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or anticompetitiveness of the proposed licensing conditions are concerned. However, it is respectfully submitted that

" dereliction of responsibility" is an inappropriate stan-dard. Neither the NRC Staff nor the Department of Justice are vested with omniscience and infalibility. Their appro-val of a tentative settlement is not per se, dispositive of the antitrust issues involved. '

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For example, the Department of Justice has sought in the license conditions to preserve its right to intevene in any interconnection proceedings at the FERC, including FERC Docket No. EL79-8, and to present such arguments and evi-dence as it deems appropriate. 1/ On September 17, 1980 the Department of Justice did, in fact, file for leave to inter- ,

vene in FERC Docket No. EL79-8, and argued to the FERC that:

The construction of the two direct current asynchronous electrical interconnections between ERCOT and SWPP, as advocated by CP&L, PSO, SWEPCO, and WTO in their Amendment Application of June 27, 1980, instead of the construction of alternating current synchronous interconnections between ERCOT utilities and SWPP utilities, as advocated in the CP&L Application of February 9, 1979, could have effects on utilities both in ERCOT and SWPP and throughout the southwestern United States that would be anticompetitive, inconsistent with the public interest and contrary to the Public Utility Reculatory Policies Act of 1978 (" PURPA") . " 2/

[ emphasis added.] l The Texas Border Cooperatives are concerned that approval by the NRC of license conditions which contain extensive references to direct current interconnections, will serve to l preclude or limit consideration of the competitive implica- '

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tions of the d.c. ties by the FERC. .

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1/ Comanche Peak Proposed License Condition D(2) (o)~; South Texas Project License Condition I.B. (10) .

2/ " Pet,ition of the United States Department of Justice for Leave to Intervene," filed September 17, 1980 in Central .

Power & Light Company, et al., FERC Docket No. EL79-8.

A copy is. attached at Appendix A.

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The point to be made is that the Texas Border Cooperatives are not alone in their concern over the impli-

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. cations of the d.c. tie. The Justice Department believes that these concerns can be adequately addressed before the .

FERC, while the Texas Border Cooperatives retain reser-vations over the precedential implications of licensing con-ditions which embody the concept of d.c. interconnections,

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and are accepted in settlement of an antitrust review. The Texas Border Cooperatives' disagreement with the Department of Justice on this issue is not premised upon the belief that they are " derelict" in their responsibilities, but merely that we disagree as to the implications of the pro-posed settlement.

Accordingly, the Texas Border Cooperatives believe that the validity of their intervention remains unaffected by the agreement to a settlement by either the NRC Staff or the Department of Justice, and urge that the Board grant the petition for leave to intervene.

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II. THE PROPOSED LICENSE CONDITIONS COULD MAINTAIN OR CREATE CONDITIONS INCONSISTENT WITH THE ANTITRUST LAWS.

Both the proposed South Texas Project License Conditions -

and the Comanche Peak License Conditions embody the concept ,

of interconnecting the Southwest Power Pool with the Energy

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Reliability Council of Texas through the construction of direct current asynchronous interties. 1/ The competitive implications of such a mode of interconnection were addressed in the Texas Border Cooperatives' petition for leave to intervene.in these proceedings, the replies filed by the Department of Justice and the Staff of the Nuclear Regulatory Commission', and the Texas Border Cooperatives' response to the replies filed by the parties. Essentially, the Texas Border Cooperatives view the establishment of d.c.

ties as creating a condition which would maintain the transmission dominance of the large utilities in Texas, to the detriment of the Texas Border Cooperatives, including

, for example the maintenance of continued asynchronous opera-tion of ERCOT thus precluding the construction of a.c.

interconnections by small systems. For small systems, it is the opinion of the Texas Border Cooperatives' consultant that d.c. interconnections are economically prohibitive.

The capacity reservation provisions of the settlement with regard to the d.c. tie are limited both in terms of the amount of capacity reserved, and the length of time for which it will be reserved (15% of the capacity of the lines for 5 ye.ars). The Texas B' order Cooperatives do not view

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1/ Comanche Peak License Con'ditions D (2) (e) , (i), and (o) ;

South Texas Project License Conditions IB(3), (9), and (10).

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these provisions as adequately off-setting the detrimental aspects of d.c. as opposed to a.c. interconnections.

Additionally, the proposed license conditions would

- sanction the disconnection of service td entities seeking to effect an interstate interconnection which might affect the '

jurisdictional status of other utilities located in Texas, unless the entities desiring to interconnect in interstate commerce first sought to obtain an order from the FERC ,

requiring such an interconnection. Basically, the license conditions perpetuate a situation in which the right of an entity to engage in interstate transactions is restricted:

if it does not first obtain an FERC order under the Public Utilities Regulatory Policy Act of 1978, it runs the risk of suffering disconnection from existing power suppliers. 1/ l The rexas Border Cooperatives recognize that the pro-posed settlement represents a compromise by a number of the parties to these proceedings. The concern that they have expressed about the d.c. interties stems from the fact that they believe they will constitute barriers that will impair their ability to develop as generating utilities, that such a result is inconsistent with the antitrust laws, and no record has been established in these proceedings that.would

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serve to alleviate these concerns. .

1/ Comanche Peak License Conditions D92) (1) 9a) , (1) (b-) , and (1) (c) . South Texas Project License Conditions.

(I.B. (6) (a) ,d (6) (b) , and ' (6) (c) .

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• Subsequent to the filing of their petition for leave to intervene in these consolidated proceedings, the Texas Border Cooperatives engaged in discussions with Central and Southwest Corporation concerning enhanced opportunities for participation in generating units planned by that company.

These dicussions have been fruitful and there exists the possibility that the Texas Border Cooperatives' concerns over the implications of the d.c. interconnection would be sufficiently alleviated that their existing opposition to the use of d.c. ties would be withdrawn. The Texas Barder Cooperatives expect to finalize their tentative understandings with C&SW prior to Wednesday, October 1, 1980 and will advise the Board in writing on that date of whether they desire to withdraw their petition for leave to intervene.

Respectfully submitted, ,

M Robert A. O'Neil Attorney for the Texas Border .

Cooperatives

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Miller, Balis & O'Neil, P.C.

776 Executive Building -

1030 Fifteenth Street, N.W. .

Washington, D.C. 20005 (202) 333-4500

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September 24, 1980

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UNITED STATrs

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- ' 'BEFORE THE . -

s omed88 NUCLEAR REGULATORY COMMISSION gb ff

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• BEFORE THE ATOMIC SAFETY )

LICENSING '

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In the Matter of .

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) Docket Nos. 50-498A and 50-4 99A LIGHTING & POWER COMPANY', .

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, HOUSTON )

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.et al . )

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(South Texas Project, Unit Nos. .

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l and 2 ) -

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In the Matter of ) Docket Nos. and50-445A 50-446A

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TEXAS UrILITIES GENERATING COMPANY, )

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et al . )

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(Comanche S ta tio n , Lh it No Peak Steam s . 1 and 2) Electric )

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CERTINICATE, QF SERVICE _

- i s of the foregoing I hereby certify that I have caused TIVEScop ONe PROPOSED SETTLEMEN deposit in the United States Mail, September, 1980.

CO:OiENTS OF THE TEXAS BORDER COOPERA to be served onthe following byclass, postage paid, this 24th d first Miller , Chairman Sheldon J. Wolfe , EsquireAt Marshall E. Atomic Safe ty & Licensing Panel BoardRegulatory Commission Nuclear '

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Panel Wa shing ton , D.

C. 20555 Nuclear Reculatory Commission ~

Wa shing ton ,"d. C. 20555 Joseph Rutherg ,

Esquire Glaser , Esquire Counsel , ,

Antitrus t

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Michael L. N. W. Nuclear Reg ulatory '.20555 Commission -

1150 17 th Str ee tC., 20036 Wa shiny ton , D.

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Washington, D.

Esquire Chanan ia , Esq. R. Gordon Gooch, -

Fredric D. Mathis , Esquire 31ume , Esq. John P. s Michael 3 Baker & Botts

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N. W.

1701 Pennsylvania'. Avenue Ann Modedon , Esq. ~

~ Nuclear 20555 Reculatory

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Commission20006 ,

Wa shing ton , D. C.

Washincton, D. C. '

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Jerome Saltzman, ' Chief

• Antitrust & Indemnity Group Robert Lowenstein, Esquire Nuclear Regulatory Commission J. A. Bouknig ht, Jr'. , Esquire Washing ton, D. C. 20555 William J. Etanklin, Esquire

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Lowe ns te in , Ne wman , Re is ,

Chase R. Stephens, Chief -

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Axelrad & Toll Docke ting & Service Section ~1025 Connecticut XVenue , N. W.

Office of the Secretary Washing ton , D. C. 20036 Nuclear Regulatory Commission ,

'Wa s hing to n , D. C. 20555 Frederick H. Ritts , Esquire

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Law Off, ices of Northcutt Ely Dav id M. Stahl, Esquire Watergate 600 Building Sarah F. Holzswe ig , Esquire Washing ton , D. C. 20037 Isham, Lincoln & Beale .

1120 Connecticut Av enue ', N. W. Wheatley & Wolle son Suite 325 1112 Watergate Office Building Wa shing ton , D. C. 20036 2600 Virg inia Avenue , N. W.

• Wa shing ton , D. C. 20037 ,

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Robert Fab rikan t , Esquire Antitrust Division William Sayles, Chairman and Department of Justice Chief Executive Officer l P. O. Box 14141 Central Power & Light Company Washing ton , D. C. 20444 P. O. Box 2121-Corpus Christi, Texa s 78403 Joseph Knotts, Esquire Nicholas S. Reynold s , Esquire G. K. Spruce , General Manager  !

Debevoise & Liberman City Public Service Board  !

1200 17 th Str ee t , N. W. P. O. Box 1771 Washing ton, D. C. 20036 San Antonio , Texas 78201 Douglas F. Jo hn , Esquire Jon C. Wood, Esquire Mc De rmo tt , Will & Emery W. Roger Wilson , Esquire 1101 Connecticut Ave nue , N.W. Matthews, Nowlin , Macf arlane Suite 1201 & Barrett i Wa shing ton , D. C. 20036 1500 Alamo National Building i San Antonio, Tex as 78205 Marc Poirier, Esq. .

Spiegel & McDiarmid Perry G. Brittain , President Suite 312 Texas Utilities Generatine~ Co.

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2600 Virginia Avenue,.N.W. T. 2001 Bryan Tower Washington, D. C. 20037 Dallas, Texas 75201

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Ms. Evelyn H. Smith J. Ir ion Wor s ham , Esqu. ire Merlyn D. Sampels , Esquire

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Route 6, Box 298 -

Gaffney, South Carolina 29340 Spencer C. Relye a , Esquite Worsham, Forsythe & Sampels Dick T. Br own , ..Es q uire -

2001 Bryan Tower 800 Milam Building Suite 2500 San Antonio , Texas 78205 Dallas , Texas '75201

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