ML19319A781

Applicant Objections to Document Requests & Motion for Protective Orders.Requests & Legislation Discussed. Certificate of Svc Encl

ML19319A781
Person / Time
Site:	Oconee, McGuire, Mcguire
Issue date:	10/12/1972
From:	Avery G, Ross W, Watson K DUKE POWER CO.
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 7912120599
Download: ML19319A781 (49)

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lh- /l. Yh UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION

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In the Matter of )

) Docket Nos. 50-269A, 50-270A DUKE POWER COMPANY ) 50-287A -

(Oconee Units 1, 2& 3 ) 50-369A, 50-370A McGuire Units 1 & 2) )

Applicant's. Objections to Document Requests

.d and Motion for Protective Orders

• Duke Power Company (hereinaf ter " Applicant") hereby files objections to the following document requests contained in the " Joint Document Request", served upon it September 6, 1972, by the other parties to this proceeding, and moves the ,

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Board for protective orders with respect to same. Applicant also moves the Board to direct that oral arg.ument be heard on this Motion, pursuant to Section 2.730 (d) of the Rules of Practice.

This pleading is filed pursuant to Section 2.740 (c) of.the Commission's Rules of Practice, as amended, 10 C.F.R. Part 2, and to the hearing Board's Pre-hearing Conference m

-1/ In accordance with the suggestion of the Board at the Pre-hearing Conference, counsel met on several occasions in an effort to resolve informally Applicant's objections to the Joint Document Request. While language of some requests was revised to the satisfaction of all parties, agreement was not reached with respect to the requests discussed in this pleading. In addition, several requests are still being discussed among the parties. In the event that agreement is n'ot reached, all of the parties have agreed that this pleading should not be deemed to waive Applie nt's right to object to those requests.

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o Order,.as amended on September.28, 1972.-2/

1. Applicant's Filing System Applicant objects to request 2 of the Joint Docu-ment Request which seeks production of "all file indexes and documents" describing the A'pplicant's fi.2ng syste'm.-3/ The request is improper since it constitutes no more than a fish-ing expedition.

According to the Commission's Rules of Practice which govern the scope of discovery, document requests must be limited to those which are " relevant to the subject matter involved in the proceeding" and " reasonably calculated to lead to the discovery of admissible evidence". Section 2.740 (b) (1) of the Commission's Rules of Practice, 10 C.F.R. Part 2, as amended, 37 F.R. 15127. The Commission has made clear that this language should not be construed so as to permit " fishing" 2/

Nothing in this pleading should be deemed _to waive Applicant's right to object to the production of such privileged or irrelevant documents as may come to light in the course of Applicant's file search (see Section

2. 741 (a ) and (c) of the Rules) or to seek further orders under appropriate circumstances, pursuant to Section 2. 74 0 (c) .

-3/ Request 2 reads in full as follows: All file indexes and documents describing the filing system utilized by the company, its departments, divisions and sabunits, pertaining to. active,- inactive and stored files and records.

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4 expeditions. Thus, in its Statement of General Policy and

' Procedure which accompanied enactment of the newly-amended Rules of Practice, the Cccmission stated:

"In no event, should parties be permitted to use discovery procedures to conduct a

' fishing expedition'. . . . " 4/

A fishing expedition would be particularly inappro-p'riate in this proceeding. Applicant responded to extensive interrogato' ries posed by the Justice Department more than

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eighteen months ago. In addition, the other requests con-tained in the Joint Document Request are clearly so broad in scope as to sweep into their dragnet every document conceiv-ably germane to any issue raised in the proceeding.

Given the ample opportunity of tha Justice Depart-ment and the other parties to obtain information about the Applicant, there is no justification for permitting them to engage in an open-ended and undirected invasion of the privacy 4/ Section IV(a) , Appendix A, Statement of General Policy and Procedure, 37 Fed. Reg. 15139.

5/ The responses were filed as Amendment "o. 26 to the Oconee-Units License Application on March 29, 1971.

Additional information was provided in response to Justice Department inquiries in July and August, 1971.

See letter from Beyer to Brand of July 12, 1971 and letter from Grigg.to Saunders of August 6, 1971.

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..of Applicant's filing system. Since request 2, on its face, is an effort to " fish" for additional issues or evidence, it

.should be stricken from the Joint Document Request.

2. Applicant's Political Activity Applicant objects to the production of documents relating to its constitutionally-protected right to petition legislative, executive, administrative and judicial officials 9/

and tribunals. At least ten of the document requests seek such documents on their face while many other requests will undoubtedly sweep such material into their broad ambit.

The very nature of Applicant's operations as a public utility in North and South Carolina serves to thrust Applicant into the political process with great frequency.

In the first place, Applicant is subject to pervasive tederal and state executive, legislative and administrative regulation.

Moreover, Applicant serves many local jurisdictions only at the sufferance of the elected officials and/or the voters of 6/ See Requests 4 (f) (legislation and constitutional revision; 4 (h) (municipal elections); 4 (1) (litigation, actual or con-sidered); 6 (f) (3) (activities of citizen or taxpayer commi-ttees); 6 (i) (activities to obtain "f avorable action of any kind".from any governmental entity); 6 (p) (FPC Project No.

2700); 16 (support for applicant's views in . state or muni-cipal elections); 37 (FPC Docket No. E-7720) ; and 38 (in-formation or assistance provided by any federal agency).

'The' full text of these requests is set forth in Appendix A hereto.

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such jurisdictions. In the second place, its wholesale cus-tomers and several of other neighboring utility systems are publicly owned, operated and financed.

Thus, through its frequent interaction with various executive, legislative, administrative and judicial forums and officials, Applicant inevitably participates in a signi-ficant way in the political and legal arena. The public power entities, including but notlimited to the municipal Intervenors in this proceeding, also frequently resort to political and legal processes to achieve their goals. For example, to begin operations, EPIC, Inc., must obtain statutory revisions from the state legislature and certification from the appropriate state regulatory commission.

When Applicant speaks out or acts within the poli-tical or legal process, it is exercising precious and spec-ially protected Constitutional rights. The Supreme Court has held that such activity before executive, legislative, admin-istrative and judicial tribunals and officials is protected by the First Amendment and is therefore immune from scrutiny under the antitrust laws. Eastern R.R. President's Conf. v.

Noerr, 365 U.S. 127, (1961) , United Mine Workers v. Pennington.

381 U.S. 657 (1965). According to the Court, even efforts

'before governmental entities which seek to maintain or improve one's economic position at the expense of a competitor m

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are immune. Antitrust law, the Court reasoned in Noorr, is aimed at essentially dissimilar commercial practices, not at participation in the political or other governmental pro-cess. 365 U.S. at 136.

These cases make it clear that antitrust liability cannot arise from the exercise of Constitutionall'y protected rights in the legislative, judicial, and administrative spheres.

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!!owever, that protection becomes a hollow mockery if one must fear to exercise those rights because those with whom he is contending in those spheres can seize the advantage of access to his internal discussions merely by claiming an antitrust violation. Thus, there can be no question that discovery of documents relating to Applicant's participation in the poli-tical and legal process obviously serves to deter and other-wise " chill" the exercise of its First Amendment Noerr-Pennington perogatives. The Board should not countenance such a result.

It is well-settled that, absent a compelling state 7,/ In California Motor Transport Co. v. Trucking Unlimited, 404 U.S. 508 (1972), the Court made clect that the con-stitutional protections of Noerr and Pennington include efforts.before judicial tribunals. 404 U.S. at 510-11.

~The contrary view on this question set forth in United States v. Otter Tail Pcwer Company, 331 F. Supp. 5 4 ,-- 6 2 (D.C. Minn. 1971), has clearly been implicitly overruled by California Motor.

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7-interest, a governmental entity cannot compel disclosure of internal records where the consequence of such disclosure is to deter the exercise of constitutionally-protected activity.

Thus, in NAACP v. Alabama, 357 U.S. 449, 460-462 (1958), the Court held that a document production order for the NAACP's membership lists by a state court "trepasses upon fundamental freedoms" because:

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as_ effective a. . - -

restraint of freedo.n of ascociation as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved". 357 U.S. at 462.8/

The position of Applicant here is similar to that of the prevailing parties in the above-cited cases. It can-not be doubted that to afford outside parties access to the privacy of Applicant's files relating to political activity would deter and " chill" the exercise of its constitutional

' rights protected under the Noerr-Pennington doctrine. Such a " chill" would have a particularly significant impact upon Applicant since, for the reasons set forth above, partici-pation in political and legal processes is essential to its

-8/ The principles expressed in NAACP v.-Alabama have been reaffirmed in cases striking down a state statute requi-ring teachers to disclose associational ties, Shelton v.

Tucker, 364 U.S. 479 (1960), and in later membership list cases, Gibson v. Florida Legislation Investigating Commi-ttee, 372 U.S. 539 (1963) (legislative committee subpoena) ;

Bates v. City of Little Rock, 361 U.S. 516 (1960) (munici-pal ordinance).

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operations-as a public utility.

Even where constitutional rights _are not at stake, a party is not required to produce documents under Rule 34, 9/

F.R. Civ. P., where such production would discourage acti-vity which'is in public interest. Thus, in Bredice v. Doctors 10/

Ilospital, Inc., 50 F.R.D. 249, 250 (D . D . C . 1970),'-~ the court held that the plaintiff in a malpractice suit could not dis-cover the reports of-the hosp 'al staff physicians because:

"To subject these discussions and deliberations to the discovery process, without a showing of e,xceptional necessity, would result in teruina-ting such deliberations."

Where constitutional rights are involved, as here, application of the privilege is even more compelling. Thus, in Smith v.

Crown Publishers, 14 F.R.D. 514 (S . D .N.Y. 1953), the Court ruled that discovery procedures could not be utilized to inquire into a Senator's voting record and reasons therefor.

In view of the chilling impact upon Applicant's I

9,/ Rule 34, F.R. Civ. P., is virtually identical in language to Section 2.741 of the Commission's Rules of Practice relating to document production. See also Footnote 4, supra.

10/ Other cases to the same effect are Banks v. Lockheed-Georgia Company, 53 F.R.D. 283 (N.D. Ga. 1971) (business '

equal opportunity program records); Arlington Glass Co.

v. Pittsburgh Plate Glass Co., 24 F.R.D. 50 (N . D . Ill.

1959) (grand jury testimony) ; and Richards v. Maine Central Railroad,J21 F.R.D. 595 (D. Maine 1957) (post-accident discipline of employee).

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First Amendment rights which would result from providing broad access to Applicant's internal discussions of its protected activities, together with the lack of any special necessity for the disclosure of such documents, aonlicant

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requests that the Board refuse to permit disccvery of any documents relating to Applicant's political, administra-tive or adjudicatory activities.

3. State-ordered Territorial Arrangements Request 6 (e) calls for documents relating to under-standings or arrangements between Applicant and other electric

- utilities "as to allocation of wholesale or retail service areas". Applicant has no objection to the request except to the extent that it concerns territorial assignments which were undertaken following the enactment of specific legisla-tion by the legislatures of North and South Carolina, pursuant to which the regulatory commissions in those states directed that such territorial arrangements be made. Since such arrangements are products of state action, they cannot be violative of the antitrust laws. Therefore, documents r'elat-ing to those particular instances of territorial assignment

- -11/ The request reads in full as follows:

Documents relating to the following: (e) policies or practices, understandings or arrangements with other electric utilities as to allocation of wholesale or retail ,

service areas.

r are not relevant to this proceeding.

In 1965, the State of North Carolina enacted legis-lation which directed the state's regulatory commission to

" assign, as soon as practicable . . ., to electric suppliers all areas, by adequately defined boundaries, that are outside the corporate limits of municipalities and that are more than 300 feet from the lines of all electric suppliers . . .

The legislation also authorized the Commission, "upon agree-ment of the affected electric suppliers", to " reassign to one electric supplier any area or portion thereof thereto-fore assigned to another . . ." In 1969, the State of South

' Carolina enacted legislation of nearly identical language and effect.

In accordance with this legislation, each state regulatory commission ordered Applicant and the other elec-tric utilities subject to its jurisdiction to negotiate territorial assignment agreements. Upon completion of negotiations by.the utilities, these agreements were sub-mitted to and approved by the commission. There were 12[ N.C. Gen. Stats., Chap. 287, irt. 41, S62.110.2(10)

(c) (1) and (2). The applicable North and South

• Carolina legislation is attached hereco as Attach-ment C.

13,/ Municipal electric systems were not so defined.

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- lengthy ~ negotiations extending over several years and the documents reflecting same fill many file drawers. In North Carolina, with the exception of one county, all the terri-

tory in Applicant's service area has now been assigned by this procedure. The assignment process in South Carolina is also substantially completed.

Actions such as those just described have long been recognized as having no adverse antitrust significance.

It was held in Parker v. Brown, 317 U.S. 341 (1941), that the antitrust laws are not intended to " restrain state action or official action directed by a state . . . 317 4

U.S. at 351. The Parker holding was not limited to state officials but also included actions by the private party defendants which were directly related to the state action.

Thus, ti s case on all fours with the instant circumstances, the. Court of Appeals recently refused to consider the anti-trust implications of a 35-year all requirements contract between an electric cooperative with generating capacity and a distribution cooperative because the REA Administra-tor, a governmental official, had directed the imposition of such terms in the contract. Alabama Power Company v.

Alabama Electric Cooperative, Inc., 394 F.2d 672 (5th Cir.

1968), cert. denied 393 U.S. 1000. See also Olsen v. Smith, j 195 U.S. 332 (1904). Further, it should be recognized that i

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the actions here involved were undertaken pursuant to explicit directives of regulatory commissions, rather than simply being actions subject to general regulatory scrutiny or to ex post facto approval. This clearly places such actions within the Parker v. Brown doctrine. See Gas Light Company of Columbus

v. Georgia Power Co., 440 F. 2d 1135, 1140 (5th Cir. 1971),

cert. denied 404 U.S. 1062 (1972).

Previous pleadings herein have discussed the Parker

v. Brown doctrine and the extent to which it is applicable to 14/

this proceeding. Applicant is aware of the Board's desire to make a final disposition of such issues following the development of a full record. However, the instances as to which Applicant's objection applies are so clearly irrelevant to any appropriate antitrust inquiry that the Board can pro-perly dispose of the issues raised in the context of object-tions to discovery. Hence, Applicant feels that it must press its limited objection to request 6 (e) .

Applicant therefore respectfully urges the Board to order that, in responding to request 6(e), Applicant need not produce documents relating to territorial assignment arrangements negotiated pursuant to the legislation set out in Attachment C hereto. e 14/ See Applicant's Response to Justice Department Reply and Proposed Intervenors Statement, filed September 5, 1972, pp. 6-8; Reply of Department of Justice to Applicant's Answer and Motion, dated August 3, 1972, pp. 10-12. ,

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4.- Municipal and Stato Elections In addition to the infirmity outlined in Part 2, supra, request 16 is improperly over-broad since it sweeps into its dragnet many documents wholly irrelevant to this proceeding. T'e h request calls for all documents regarding Applicant's efforts in any state or municipal election in the Carolinas.

As a corporate citizen of North and South Carolina, Applicant often has occasion to participate in the politi-cal arena to the extent provided by law. The issues in some elections may be of interest to Applicant only because of its status as an investor-owned electric utility. Fre-quently, however, Applicant is concerned about issues of more general concern, e.g., labor-management relations, civil rights questions, environmental issues, and the like.

These latter concerns clearly are not relevant to the pro-ceeding, but are included in request 16 as it is presently worded.

As indicated in the foregoing Section 2, Applicant 15/ The full request is as follows: Documents (including ,

record of expenditures) regarding any advertisements, public-relations campaigns, or other means employed by Company to elicit support for its views in or in connection with any municipal or state election in North Carolina or South Carolina.

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feels strongly that these Noerr-Pennington documents are entitled to special protection. Should this issue be resolved adversely to it, Applicant has informed the Joint Discoverers that the only proper inquiry, in its view, is into documents which on their face reflect Applicant's efforts in state or municipal elections to obtain a com-petitive advantage vis-a-vis ot:;er area electric utilities.

Opposing counsel have insisted on unrestricted access to all areas in which Applicant has taken an interest in the political and legislative process. Hence, they have refused to modify request 16.

Applicant, therefore, urges that the Board adopt the modification of this request which Applicant has pro-posed. Any broader request would constitute a fishing expedition whose consequences would only be to burden all parties with a myriad of irrelevant material. See Part 2, supra.

5. Request for All Documents in Certain Files Applicant objects to requests 13 and 17 which call for all documents " comprising the Company's individual files" l pertaining to each of Applicant's wholesale customers and i

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L certain municipal electric associations and joint ventures. --

16/. The full text of these requests are set forth in .

Appendix B hereto.

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Here the discoverers abandon any attempt to particularize

~their inquiry and simply demand that entire files be turned over to them. According to Section 2.741(a) and (c) of the Commission's Rules, a party may request production of " des-g ignated documents" and must describe each item and category with 'Yeasonable particularity". (Emphasis supplied.) Con-trary to this Rule, requests 13 and 17 fail to designate or describe the documents which they seek other than by their i

location within certain " files".

Files relating to Applicant's wholesale customers

[ are, of course, voluminous since they reflect the day-to-day contact that such customers have had with Applicant over the past twelve years. It is therefore obvious that much material wholly irrelevant t,o this proceeding is contained in such files.

Again, like request 2, any relevant documents con-tained in such files will be produced in response to the other unchallenged quest?>ns of this expansive Joint Docu-ment Request. The discoverers are clearly not entitled to production of any other documents since to permit a general search of certain files would constitute a fishing expedition.

11l Schwimmer v. United States, 232 F.2d 855 (8th Cir. 1956).

17/ In ~ Schwimmer, the Court quashed a grand jury subpoena

- which. called for, inter alia, all the files of a certain individual, i.e. , "four cardboard boxes and four (cont.)

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As set forth in Part 2, supra, the Rules do not permit such expeditions.

6. Statements Concerning Regulatory Jurisdiction Applicant objects to that part of request 30 which

requires it to produce all documents in which the Applicant has asserted that its activities are subject to the Federal Power Act or North or South Carolina Public Utilities Law.

It also objects to the production of documents reflecting Applicant's position as to federal jurisdiction prior to 1965.

Nearly every document which Applicant files with state regulatory commissions contains a jurisdictional state-ment. The relevance of such a statement, or any other asser-tion concerning regulation,is not manifest on its face.

Applicant also submits that its statements concern-ing federal regulatory jurisdiction prior to 1965 are not

---17/ (cont.) cabinet drawers". 232 F.2d at 861. Even though the Court conceded that grand jury subpoenas could be considerably broader in scope than discovery in adjud-icatory proceedings, it still held the request for all

. files and documents in the possession of a certain individual to be an " abstract hunt" and a " fishing expedition" 232 F.2d at 862. .

8 1_8/ Request 30 reads in full: Documents in which the Company has asserted that any of its activities are, or are not, subject to the Federal Power Act or North Caroline or South Carolina Public Utilities Law.

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4 germane to this proceeding. Until the Supreme Court's decision in Federal Power Comm'ission v. Southern California Co., 376 U.S. 205 (1964) (City of Colton case) , the issue of federal jurisdiction over utilities such as Applicant was open to debate. Because the above-cited case resolved the issue, Applicant's statements on the question prior to the Court's decision have no conceivable relevance to this pro-ceeding.

Thus, Applicant urges that the Board strike request 30 to the extent that it includes assertions that Applicant 3.s, subject to federal or state regulatory juris-

' diction and to the extent that it includes assertions that it is not subject to federal jurisdiction prior to 1965.

7. Income Tax Returns Applicant objects to request 31 which calls for all duplicate tax returns filed by the Applicant since 1960. Presumably,.the request includes local and state property and income tax returns as well as federal income tax returns.

Although no absolute privilege attaches to income tax returns, the courts have been understandably reluctant to order production of tax returns:

" People are normally opposed to the invasion I

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of their privacy by exposure of the details contained in an income tax return. In the hands of the Government, these returns are confidential . . . . Unless clearly requi-red in the interests of justice, litigants ought not to be required to submit such returns as the price for bringing or defend-ing a lawsuit". Wiesenberger v. W.E. Hutton

._ &~Co., 35 F.R.D. 556, 557 (S.D.N.Y. 1964).

Here, there is no justification for the proposed invasion of Applicant's tax returns since any relevant in-formation contained therein is "readily obtainable other-wise". Richland Wholesale Liquors v. Joseph E. Seagram and Sons, 40 F.R.D. 480, 482 (D . S . C . 1966) and cases cited therein at 482, 483. Form l's and other material on file

. at the Federal Power Commission contain financial informa-tion and tan data about Applicant, and, to the extent that such data is insufficient, Section 2.740 (b) of the Rules providesmeans to obtain it. Therefore, there is no justi-fication for requiring production of Applicant's tax returns.

8. Pending Proceedings Before the FPC Applicant objects to requests 6(p) and 37.

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19/ These requests read as follows: (6 (p)) FPC Project No.

2700 (Green River) and the site thereof; and (37) Rate design studies, documents relating to the decision to file, all correspondence, memoranda, etc., regarding the filing with respect to the wholesale fule adjust-ment clause (FFC Docket No. E-7720) .

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In these provisions, the discoverers seek documents relating to pending proceedings before the Federal Power Commission.

It is precisely in those terms that the document request is framed. Thus, request 37 seeks documents "regarding the filing with respect to the wholesale fuel adjustment clause (FPC Docket No. E-7720)". Request 6 (p) seeks documents relating to "FPC Project N'o, 2700 (Green River) and the site thereof".

It is plain that the joint discoverers seek by these requests directly to import into this proceeding the issues and facts which are subject of pending litigation before a sister Federal agency. Moreover, some of the Intervenors in this proceeding, and their counsel here, are directly participating in these FPC proceedings. That agency has discovery and hearing procedures through which the parties can develop the pertinent facts. Those parties should not be permitted to treat the FPC proceedings as open matters which they can relitigate, or simultaneously litigate, before this ,

Board.

Applicant has informed the discoverers of its objections to these requests but they have insisted that they can use discovery procedures here to inquire into these other agency proceedings.

Applicant submits that the Board will be fully occupied in determining the issues presented in this pro-D

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ceeding. It should not open the door to the other parties for sweeping inquiry into other pending cases, particularly where the same parties now seeking discovery are involved.

Accordingly, requests 6 (p) and 37 should be stricken.

CONCLUSION For the foregoing reasons, Applicant moves the Board for protective orders striking or modifying those portions of the Joint Document Request discussed herein.

Applicant also moves that the Board direct oral argument upon the instant Motion.

Respectfully submitted, s

Wm. Warfield Ross George A. Avery Keith S. Watson Toni K. Golden Of. Counsel:

William H. Grigg Duke Power Company P. O. Box 2178 Charlotte, North Carolina 28201 ,

October 12, 1972 e

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Appendix A: Requests discussed in Section 2

4. Documents including minutes-of meetings of the Board of Directors and the executive committee of the Company, documents prepared in advance of meetings (e.g., agenda, memos in summary or critique of plans, costs, proposals or status of negotiations), and letters and memoranda to or from Company officers, relating to:

(f) legislation and constitutional revision affecting the ability of electric utilities to own, finance, construct facilities and to sell electricity; (h) elections in any municipality operating an' electric distribution system; (1) litigation, actual and considered, before courts or agencies in opposition to construction of competing generation or transmission facilities, including but not limited to FPC Project No. 2700.

6. Documents relating to the following:

(f) inquiries, invitations, negotiations, evaluations and-proposals for the acquisition of electric power facilities of municipalities, electric cooperatives or other electric utilities including (3) sponsorship, support or opposition by the Company of activities of citizen or taxpayer committees, community advisory councils, or the like; (i) activities by the Company to obtain for itself subsidies, exemptions, waivers, loans or construc-tion funds or other favorable. action of any kind by any agency, political subdivision or instrumentality of Federal, State or local gotrernments, benefiting the Company including but not limited s actions relating to:

(i) Oconee nuclear generating project; (ii) McGuire nuclear project; (iii) Catawba nuclear project; (iv) transmission line construction or

. relocation; (v) construction, improvement or main-i tenance of water facilities such as docks, wharfs, river, stream or estuary dredging; recreation facilities; (vi) air or water pollution control; (vii) tax rulings, state or federal;

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(viii) Federal or State tax legislation or regulations thereunder; (ix) Federal or State regulatory legis-lation pertaining to electric utilities, including but not limited to amendments to the Federal Power Act, the Atomic Energy Act and North Carolina and South Carolina Public Utilities and Municipal Corporations Laws -- and including but not. limited to bills restricting the availability for power development of any waterway in or adjacent to Company's service area, authorizing, appropriating funds for, or other-wise affecting Federally-owned electric generating or trans-mission facilities in or adjacent to Company's service area, affecting the jurisdiction or organization of any governmental agency charged with licensing, supervising, or regulating Company's facilities, rates or services, or affecting the ability of municipal or cooperative systems to acquire or own facilities or render electric service; (x) efforts in opposition to the auth-orization or construction of competing generation or trans-mission; (p) FPC Project No. 2700 (Green River) and the site thereof;

16. Documents (including records of expenditures) regarding any advertisements, public-relations campaigns, or other means employed by Company to elicit support for its views in or in connection with any municipal or state elect'.on in North Carolina or South Carolina.

37. Rate design studies, documents relating to the decision.to file, all corresp6ndence, memoranda, etc. regard-ing the filing with respect to the wholesale f_uel adjustment clause (FPC Docket No. E-7720) .

38. As to all nuclear facilities, experimental or  !

operational, documents relating to information, advice, par-  !

ticipation and assistance rendered by any agency of the United States Government (including the AEC) to Company, or to any other entity through.which any of such was provided to Company or for the benefit of Company. Please respond as to the time periods prior and subsequent to 1960. (Referral to documents in the public files of the AEC will be acceptable.)

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, 13. Documents comprising the' Company's individual files pertaining to each wholesale electric customer of the Company (excluding billing data) including but not limited to (a) files identified by specific customer name; (b) files relating to any elected or appointed official of any municipal wholesale customer; ,

(c) retail or wholesale competition relating to such customers; (d) interconnections or coordination with and sale or purchase of electric power or fAcilTtTeTto ~or frosi'~

each customer; (e) analysis or study of each customer's system operations, rates, finances, expansion proposals and programs; including but not limited to any maps and

• diagrams of customer's transmission system; (f) communications with officials or members of.

boards of directors of wholesale customers which are or were cooperatives o,r private corporations, and with managers and persons in elective or appointive office,

-who are or were responsible for the operations of each municipal wholesale customer; (g) communications to or from, or internal documents

.concerning any taxpayers' committee or any similar group or newspaper, and any action taken or proposed to be taken by,such committee or group or newspaper with respect to matters affecting a wholesale customer.

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17. Documents comprising the Company,'s individual files pertaining to Electricities of North Carolina (or its predecessor, North Carolina Municipally Owned Electric Systems Association); EPIC, Inc.; and Piedmont Electric Cities Associ-

-ation, including but not limited to copies of releases by Company's public relations office regarding those entities, and letters concerning them addressed to any municipality or ele,ctric cooperative.

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Appendix C: Legislation Discussed in Section 3 -

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V CII. 237 1965-SESSION LAWS H. B.255 CHAPTER 2S7 AN ACT TO PRESCRIBE CERTAIN RIGHTS AND RESTRICTIONS WITH RESPECT TO THE FURNISHING OF ELECTRIC SERVICE WITIIIN .'.!UNICIPALITIES AND IN AREAS OUTSIDE SIUNICIPAL-ITIES: TO PROVIDE FOR THE ESTABLISH 3!ENT OF ELECTRIC SERVICE AREAS BY THE NORTH CAROLINA UTILITIES CO31 311SSION; TO REQUIRE A CERTIFICATE OF CONVENIENCE AND NECESSITY FOR THE CONSTRUCTION OF ELECTnIC GENERAT.

ING FACILITIES: TO PROVIDE FOR TAXATION OF ELECTRIC h1E31BERSHIP CORPORATIONS; TO PROVIDE THAT' ELECTRIC LIE 31BERSIIIP CORPORATIONS SHALL BE SUBJECT TO THE JURISDICTION OF THE NORTH CAROLINA UTILITIES CO3DHS.

SION IN CERTAIN RESPECTS; AND TO A31END CERTAIN PRO.

i VISIONS OF CHAPTERS 62,105,117, AND 160 OF THE CENERAL

l STATUTES OF NORTH CAROLINA.

t The General Assembly of ,%rth Carolina do enact:

I Section I. Chapter 160 of the General Statutes of North Carolina is hereby amended by adding a new subchapter to be numbered Subchapter X and a new Article to be numbered Article 41, to read as follows:

" SUBCHAPTER X-ELECTRIC SERVICE IN '3IUNICIPAL AREAS

" ARTICLE 41

" Electric Service in Stanicipal Areas j "$ 160-510. Definitions. With reference to elec'tric service within a 5 municipality, as used in this Article, unless the context otherwise requires, the term:

"(1) '3Iunicipality' means the incorporated city or town;

{ "(2)

• Primary supplier' means the tranicipality, if it owns and main-g j tains its own electric system, and means a person, firm, or corporation i which furnishes electric service within the municipality pursuant to a i

franchise granted by, or contract with, the municipality, or which, having furnished service pursuant to a franchise or contract, is continuing to

{ furnish service within the municipality after the expiration of the franchise -

t or contract; 5

"(3) ' Secondary supplier' means a person, firm, or corporation which is f furnishing electricity at retail to one or more consumers other than itself

{ -

1 within the limits of the municipality, but which is not a primary supplier:

Provided, that A primary supplier which furnishes electric service within

{ the municipality pursuant to a franchise or contract which limits or restricts j the classes of consuraers or types of electric service permitted to such

• supplier shall,in and with respect to any area annexed by the municipality after the erTeetive date of this Act, be a primary supplier for such classes

{

cf consumers or types cf service and, if it is furnishing other electric

{

o -i service in the annexed area on tha erTective date of annexation, shall be a j secondary supplier, in and with respect to such annexed area, for all

- other electrie service; provided further, that a primary supplier which is

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continuing to furnish electric service after the expiration of a franchise

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i 196Mrss:0N LAWS CII. 287 f

or contract which limited or restricted such primary supplier with respect to c!ssses of consu'mers or types of electric service shall, in and with respect to any area annexed by the municipality after the effective date of this Act, be a secondary supplier for all electric service if it is furnishing

• efectric service in the annexed area on the effective date of annexation;

"(4) ' Premises

• means the building, structure, or facility to which elec- f tricity is being or is to be furnished; provided, that two or more buildings,

' structures, or facilities which are located on one tract or contiguous tracts of land and are utilized by one electric consumer for commercial, industrial,  ;

institutional, or governmental purposes, shall together constitute one

• premises', except tlist any such building, structure, or facility shall nat,  !

together with any other building, structure, or facility, er-titute one l

• premises'if the electric service to it is separately metered a 9e charges j for such service are calculated independently of charges for se. ice to any other building. structure, or facility; and

• "(5) 'Line' means any conductor located inside the municipality for the distribution or transmission of electricity, c'ther than (!) In the case of I

overhead construction, a conductor from the pole nearest the premises of

• a consumer to such premises, or a conductor from a line tap to such Premises, and (ii) in the case of underground construction, a conductor from the, transformer (or the junction point, if there be one) nearest the

- premises of a consumer to such premises, a "] 160-511. Service within present municipal corporate limits. In any h

municipality in which, on the effective date of this Act, a secondary sup.

plier is furnishing electric service, the suppliers of electric service inside the corporate IImits of such municipality, as such limits exist on the effective date of this Act, shall have rights and be subject to restrictions as follows:

' "(1) The secondary supplier shall have the right to serve all premises being served by it, or to wh:ch any of its facilities for service are attached, on the effective date of this Act.

9 "(2) The secondary supplier shall have the right, subject to subpara-i graph (3) of this Section, to serve all premises initially requiring electrie i service after the effective date of this Act which are located wholly within i 300 feet of its lines and located wholly more than 300 feet from the lines of the primary supplier, as such suppliers' lines exist on the effective date of this Act. .

! "(3) Any premises initially requiring electrie service after the effective I date of this Act which are located wholly within 300 feet of a secondary r . supplier's lines and wholly within 300 ' feet of another secondary supplier's

! lines, but wholly more than 300 feet from the primary supplier's lines, j as the lines of all supphers exist on the effective date of this Act; may be -

j - served by the secondary supplier which the consumer chooses, and no other supplier shall thereafter furnish electric service to such premises, except .

upon the written consent of the supplier then serving the premises.

"(4) A pr' nary supplier shall not furnish electric service to any premises which a secondary supplier has the right to serve as set forth in

. { subparagraphs (1), (3), and (3) of this' Section, except upon the written consent of the. secondary supplier.

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"(5) Any premists initia!!y requiring electric service siter the effective date of' this Act which are located wholly or partially within 300 feet of I the primary supplier's lines and are locate <f wholly or partially within 300 feet of the secondary supplier's lines, as such supp!Iers' lines exist on the effective date of this Act, may be served by either the secondary sup. -

• plier or the primary supplier, whichever the consumer chooses, and no 1

other supplier shall thereafter furnish service to such premises, except upon

• the written consent of the supplier then serving the premises. ,

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• "(6) Any premises initially requiring electric service after the etYective I date of this Act which are located only partistly within 000 feet of the '

i

• secondary supplier's lines and are located wholly more than GOO feet from i the .~imary suppliefs lines, as such suppliers' lines exist on the effective 8

-inte if this Act, may be served by either the secondary supplier or the prin ary supplier, whichever the consumer chooses, and no other supplier

. i shall thereafter furnish service to.such premises, except upon the written '

5 consent of the supplier then serving the premises.

l j "(7) Except as provided in subparagraphs (1), (2), (3), (5), and (6) of this Section, a secondary supplier shall not furnish electric service inside the corporate limits of such municipality as such limits exist on the f' effective date of this Act, unless it first obtains the written consent of the I t ,

municipality and of the primary supplier. I

"i 160-512. Service in annexed areas. In any area annexed by a munie.

• fpality after the effective date of this Act in which, on the effective date

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of the annexation, a secondary supplier is furnishing electric service, the suppliers of electric service within the municipality shall, in and with respect to such annexed area, have rights and be sitbject to restrictions at follows:

• (1) The secondary supplier shall have the right to serve all premises i

being served by it, or to which any of its facilities for service are attached,  ;

.On the etYective date of the annexation. 1

"(2) The secondary supplier shall have the right, subject to subpara- '

graph (3) of this Section, to serve all premises initially requiring electrie 3

• service after the effective date of the annexstion which are located wholly within 300 feet of its lines and located wholly more than 300 feet from the

,

lines of the primary supplier, as such suppliers' lines exist on the effective j date of the annexation.

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"(3) Any premises initially requiring electric service after the effective -

date of the annexation which are located wholly within 300 feet of a t t secondary suppliefs lines s'nd wholly within 300 feet of another secondary supplier's lines' but wholly more than 300 feet from the primary supplier's lines, as t!.r lines of all suppliers exist on the effective date of the an.

nexation, mar be served by the secondary supplier which the consumer

• chooses, and no other supplier shall thereafter furnish electric service to such premises, except upon written consent of the supplier then serving the premises.

' "(4) A primary supplier shall not furnish electric service to any e

premises which a secondary supplier has the right to serve as set forth 330 O

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1965--Sr.ssioN' LAWS CII. 2SI in subaragraphs (1),'(3), and (3) of this Section, except upon the written consen: of the sceondary supplier.

"(3) Any premises initially requiring electric service after the e:Tective g l , date .f the annexation which are located wholly or partially within 300 -

feet of the primary supplier's lines and are !ccated wholly or partially e within 300 feet of the secondary supplier's lines, as such suppliers' lines ,

I exist on the edective date of the annexation, may be served by either the i

! secondary supplier or the primary supplier, whichever the consumer l chooses, and no other supplier shall thereafter furnish service to such '

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premises, except upon the written consent of the supplier then serving the premises.

"(6) Any premises initially requiring electric service after the efective f* i e

date of the annexation which are located only partially within 300 feet. I I of the secondary supplier's lines and are located wholly more than 300 feet from the primary supplier's lines, as such suppliers' lines exist on the a

effective date of the annexation, may be served by either the secondary

. supplier or the primary supplier, whichever the consumer chooses, and no l g

other supplier shall thereafter furnish service to such premises, except upon ,

the written consent of the supplier then serving the premises.

"(7) Except as provided in subparagraphs (1), (2), (3), (5), and (6) l, a

of this Section, and except as provided in Sections 160 511-and-160 513, -- '

a secondary supplier shall not furnish electric service inside the corporate -

limits of such municipality, unless it first obtains the written consent of the municipality and of the primary supplier. .

"$ 160-513. Service within newly incorporated municipality. (a) In

. any municipality which is newly incorporated after the effective date of 1 this Act in which, on the efective date of the incorporation, there is more than one supplier of electric service, all suppliers of electric service therein ,

shall continue to have the rights and be subject to the restrictions in efect prior to the incorporation of the municipality until there is a primary sup.

plier within such municipality. g

"(b) When, in any such newly incorporated municipality, a primary supplier comes into being and at such time a secondary supplier is fur.

nishing electric service in said municipality, the suppliers of electric service shall have rights and be subject to restrictions as follows:

"(1) The secondary supplier shall have the right to serve all premises

! being served by it, or to which any of its facilities for service are attached, on the date a primary supplier comes into being.

"(2) The secondary supplier shall have the right, subject to subpara.

graph (3) of this subsection, to serve all premises initially requiring elec.

tric service after the date a primary sup' plier comes into being whleh are loested wholly within 300 feet of its lines and located wholly more than t 300 feet from the lines of the primary supplier, as such suppliers' lines ~ exist on said date.

t "(3) Any premises initially requiring electrie service after the date a I

primary supplier comes into being which are Ixated wholly within 300 feet of a secondary supplier's lines and wholly within 300 feet of another sec.

ondary supplier's lines, but wholly more than 300 feet from the primary i e 331

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Cn. 287 iDG5---Session Lms supplier's lines, as the lines of all suppliers exist on said date, may be served by the secondary supplier which the consumer chooses, and no other supplier shall thereafter furnish electric service to such pre rkes, except upon the written consent of the supplier then serving the premises. ,

"(4) A primary supplier sha!! rat furnish electric service to any prem.

ises which a secondary supplier has the right to serve as set forth in sub-paragraphs (1), (2), and (3) of this subsection, except upon the written consent of the secondary supplier.

"(5) Any premises initially requiring electric service after the date a primary supplier comes into being which are located wholly or partially within 300 feet of the primary sapplier's lines and are located wholly or partially within 300 feet of the secondary supplier's lines, as such suppliers' lines exist on said date, may be served oy either the secondary supplier or the primary supplier, whichever the cor sun er chooses, and no other sup-plier shall thereafter furnish service to such prem ses, except upon the 8 I written consent of the supplier then serving the premises. j

"(6) Any premises initially requiring electric service after the date I a primary supplier comes into being which are located only partially {

within 300 feet of the secondary supplier's lines and are located wholly more than 300 feet from the primary supplier's lines, as such suppliers'  !

lines exist on said date, may be served by either the secondary supplier ,

or the primary supplier, whichever the consumer chooses, and no other supplier shall thereafter furnish service to suca premises, except upon the

{

written consent of the supplier then serving tre premises.  !

"(7) Except as provided in subparagraph: (1. (2), (3), (5), and (6)  :

of this subsection, a secondary supplier shall not furnish electric service inside the corporate limits of such municipality as such limits exist on the date a primary supplier comes into being, unless it first obtains the written consent of the municipality and of the primary supplier.

"i 160 514. Temporary electric service. No electric supplier shall fur-nish temporary electrie service for the construction of premises which ,

' it would not have the right to serve under this Article if such premises were already constructed. The construction of lines for, and the furnishing ,

of, temporary service for the construction of premises which any other electric supplier, if chosen by the consumer, would have the right to serve

, if such premises were already constructed, shall not impair the right of

' such other electric supplier to furnish service to auch premises after the construction thereof, if then chosen by the consumer; nor, unless the con. 4

• sumer chooses to have such p:tmises served by the supplier which furnished the temporary service, shall the furnishing of such temporary service or l the construction of a line therefor impair the right of any other electric '

! supplier to furnish service to any other premises which, without regard l j to the construction of such temporary service line,it has the right to serve /  !

! "I 160 515. Jurisdiction of North Carolina Utilities Commission. Not- I withstanding the provisions of Sections 160-511,160-512,160-513, and 160-514 of this Article:

j , "(1) The North Carolina Utilities Commission shall have the authority

, i and jurisdiction, after notice to the affected electrie suppliers and after 332

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- t 1965-SESSION LAWS CII. 237  !

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hearing, if a hearing is requested by any afected electric supplier or any i other interested party, to order a primary supplier which is subject to the i jurisdiction of said Commission to furnish electric service to any consumer ,  !

who desires service from such primary supplier at any premises being  ;

served by a secondary supplier, or at premises which a secondary supplier i has the right to serve pursuant to other Sections of this Article, and to j order such secondary supplier to cease and desist from furnishing electric  ;

l service to such premises, upon the Commission's finding th'at service being i furnished or to be furnished to such consumer by such secondary supplier g

Is or will be insdequate 'or undependable, or that the rates, conditions of l i service or service regulaticns, applied to such consumer, are unreasonably l discriminatory; and

• l

"(2) The North Carolina Utilities Commission shall have the authority

.I and jurisdiction, after notice to the afrected secondary supplier and after

. hearing, if a hearing is requested by the afected secondary supplier or any other interested party, to order any secondary supplier to cease and desist from furmshing electric service to any premises being served by it, or to any p'remises which it has the right to serve pursuant to other Sections of this Article, if the consumer desires service at such premises from a primary supplier which is not subjoct to the, jurisdiction of the Commission and which is willing to furnish service to such premises, upon the Com-i mission's finding that service being furnished or to be furnished to such s consumer by such secondary supplier is or will be inadequate or undepend-l able, or that the rates, conditions of service or service regulations, applied l to such consumer, are unreasonably d scriminatory.

• "I 160-316. Removal, sale, and transfer of electric facilities. A secondary supplier may voluntarily discontinue its service to any premises and remove any of its electric facilities located inside the limits of a municipality or y i sell and transfer such facilities to a primary supplier in such municipality, '

subject to approval by the North Carolina Utilities Commission, upon the Commission's determination that the public interest will not thereby be adversely affected.

"i 160-517. Electric service for munfeipal facilities. No provisions of I i this Article shall prevent a municipality which is a primary supplier from  !

furnishing its own electric service for municipal facilities, or prevent any 8 I

other primary supplier' from furnishing electric street lighting service to

a muni'ipality inside the municipality.

"9 160-518. Effect of this Article on rights and duties of primary sup-plier. Except for the rights granted to and restrictions upon primary l

g suppliers contained in the provisions of this Article, nothing in this Article 9 shall diminish, enlarge, alter, or affect in any way the rights and duties .

of s' primary supplier to furnish electric service to premises within the limit.s of a municipality.

"9 160 519. Electrie suppliers subject to police power. No provisions of this Article shall restrict the exercise of the police power of a municipality over the erection and maintenance of poles, wires and other facilities of electric suppliers in streets, alleys, and public ways."

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Cit. 2S7 1965-Session Laws Sec. 2. Chapter 62 of the General Statutes is hereby amended by adding a new Section to be numbered 631.0.1, to read as follows:

Certificate for coe struction of a generating facility. (a)

"{ 62 110.1.

Notwithstanding the proviso in (, S. 62110, no public utility or other .

person shall begin the construction of any steam, water, or other facility for the generation of electricity to be directly or bdirretly used for the furnishing of public utility service, even though the facility be for fur-nishing the service already being rendered, without first obtaining from the Commission a certi6cate that public ~ convenience and necessity requires, t or will require, such construction. '

"(b) For the purpose of this Section, 'publie utility' shall include any electric membersnip corporation operating within this State, and rendered by any thesuch term

'public utility service' shall include the service '

electric membership corporation."

• Sec. 3. Chapter 62 of the General Statutes is hereby amended by adding a new Section to be numbered 62 82, to read as follows:

"{ 62 82. Special procedure in hearing and deciding application for certificate for a generating facility; additional appeal bond in certain cases. ,

(a) Whenever there is filed with the Commission an application for a certificate of public convenience and necessity for the construction of a 62 110.1, the Commis-facility for the generation of electricity under G. S.

sion sha!! require the applicant to publish a notice thereof once a week for four successive weeks in a daily newspaper of general circulation in the county where such facility is proposed t'o be constructed, and thereafter ,

the Commission, upon complaint shall, or upon its own initiative may, upon '

reasonable notice, enter upon a hearing to determine whether such cer- ,

tificate shall be awarded. Any such hearing must'be commenced by the Commission not le.ter than three (3) months after the filing of such appli- .

cation, and the p.ocedure for rendering decisions therein shd! be given '

. priority over all other cases on the Commission's calendar of hearings and ,

decisions, except rate proceedings referred to in G. S. 62 81. Such applica-tions shall be heard by the full Commission, and the Commission sha!!

furnish a transcript of evidence and testimony submitted by the end of .

the second business day after the taking of each day of testimony. The

'. Commission shall require that briefs and oral arguments in such cases be submitted within thirty (30) days after the conclusion of the hearing,

' and the Commission shall render its decision in such cases within sixty (60) days after submission of such briefs and arguments. If the Commission  ;

does not, upon its own initiative, order a hearing and does not receive a

• complaint within ten (10) days after the last day of publication of the  ;

i notice, the Commission shall enter an order awarding the certificate.

"(b) Any party or parties opposing, and appealing from,' an order of

! 62 110.1 shall be

! the Commission which awaris a certificate under G. S. .

I obligated to recompense ths party to whom the certificate is awarded, if such award is affirmed upon appeal, for the damages, if any, which such  ;

party sustains by reason of the delay in beginning the construction of the s

facility which is occasioned by the appeal, such damages to be measured

, by the Increase in the cost of such generating facility (excluding legal fees, a f

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.c 1965--SESSION LOVS CII. 287 court costs, and other expenses incurred in connection with the appeal).

No appeal from any order of the Commission which awards any such cer-tificate may be taken by any party opposing such award unless, within the time limit for filing notice of appeal as provided for in G. S. 62 00 such ,

party shall have filed with the Commission a bond with suretles approved by the Commission, or an undertaking approved by the Commission, in i such amount as the Commission determines will be reasonably suSeient I to discharge 'he obligation hereinabove imposed upon such appealing party.

The Commission may, when there are two or more such appealing parties, l permit them to file a jomt bond or undertrl<ing. If the award order of l the Commission is affirmed on appeal, the Commission shall determine the amount, if any, of damages sustained by the party to whom the cer-tificate, was awarded, and shall issue appropriate orders to assure that such dsmages be paid and. if necessary, that the bond or undertaking be enforced."

Sec. 4. Section 62 99 of the General Statutes is hereby amended by re-writing said Section, to read as follows:

• • ) 62-99. Rate increases and generating facility orders appealed direct from Commission to Supreme Court. Appeals from an order or decision of the Commission approving or authorizing an increase in the rates or charges of a public utility and from an order or decision of the Commissfon awarding or denying a certificate of convenience and necessity under G. S.62-110.1 shall be made directly from the Commission to the Supreme Court l

, without intermediate review in the Superior Court. The Commission shall transmit the entire record in all such appeals direct to the Supreme Court for hearing and review in accordance with *.he extent of review set out in this Article for review of Commission cases, and the rules and regulations as are prescribed by law for appeals."

Sec. 5. Chapter 62 of the General Statutes is hereby amended by adding a new Section to be numbered 62 110.2, to read as follows:

"$ 62-110.2.

in this Section, unless the context otherwise requires, the term: Elect

"(1)

• Premises' means the building, structure, or facility to which elec-tricity is being or is to be furnished; provided, that two or more buildings ,

structures, or f.t:ilities which are located on one tract or contiguous tracts l

6 Institutional, or governmental purposes, shall together con i

' premises', except that any such building, structure, or facility shall not ,

, together with any other building,' structure, or facility, constitute one i ' premises'if the electric service to it is separately metered and the charges for such service are calculated independently of charges for service to any other building, structure, or facility; and

"(2) 'Line' means any conductor for the distribution or transmission of electricity, other than (i) in the case of overhead construction, a condue.

ter from the pole nearest the premises of a consumer to such premises ,

, or a conductor from a line tap to such premises, and (ii) in the case of e' underground construction, a conductor from the transformer (or function point,if there be one) nearest the premises of a consumer to such premises.

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"(3) 'E!ectric supplier' means any public utility furnishing electric service or any electric membership ccrporation. .

"(b) In areas outside of municipalities, electric suppliers shall have rights and be subjece to restrictions as follows:

"(1) Every electric supplier shall have the right to serve a!! premises being served by it, or to which any of its facilities for service are attached, on the edective date of this Act.

"(2) Every electric supplier shall have the right, subject to subpara-

• graph (4) of this subsection, to serve all premises initially requiring electric service after the effective date of this Act which are located wholly within 300 feet of such electric supplier's lines as such lines exist on the efective date of this Act, except premises which, on said date, are being served by another electric supplier or to which any of another electric supplier's facilities for service are attached.

i

"(3) Every electric supplier shall have the right, subject to subpara-graph (4) of this subsection, to serve all premises initially requiring electric service after the effective date of this Act which are located wholly within 300 feet of lines that such electric supplier constructs after the effective date of this Act to serve consumers that it has the right to serve, except premises located wholly within a service area assigned to another electric supplier pursuant to subsection (c) hereof.

"(4) Any premises initially requiring electric service after the efective date of this Act, which cre located wholly or partially within 300 feet of the lines of one electric supplier and also wholly or partially within 300 feet of the lines of another electric supplier, as each of such supplier's li n the effective date of this Act, or as extended to serve con-

.. the supplier has the right to serve, may be served by such one ad electrie suppliers which the consumer chooses, and any electric sup-plier not so chosen by the consumer shall not thereafter furnish service to such premises.

"(5) Any premises initially requiring electric service after the effective date of this Act which are not located wholly within 300 feet of the lines of any electric supplier and are not located partially within 300 feet of the lines of two or more electric suppliers may be served by any electric supplier which the consumer chooses, unless such premises are located wholly or partially within an area assigned to an electric supplier pursuant to subsection (c) hereof, and any electric supplier not so chosen by the

• consumer shall not thereafter furnish service to such premises.

, "(6) Any premises initially requiring electric service after the effective . -

date of this Act which are lecated partially within a service area assigned to one electric supplier and partially within a service area assigned to another electric supplier pursuant to subsection (c) hereof, or are located partially within a service area assigned to one electric supplier pursuant to subsection (c) hereof and partially within 300 feet of the lines of another i

3 electric supplier, as such lines exist on the efective date of this Act or as extended to serve consumers it has the right to serve, may be served by such one of said electric suppliers which the consumer chooses, and -

the electric supplier not eo chosen shall not thereafter furnish service to

. such premises.

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! 1963--Sr.SSION LMS CII. 23'T d(7) Any prernises initially requiring electri: service after the effective ,

date af this Act which are located only partially within a service area '

assigned to one electric supplier pursuant to subsection (c) hereof and ,

are located wholly outside the service areas assigned to other electric sup.

pliers and are located wholly more than 300 feet frem other electric sup.

pliers' lines, may be served by any electric supplier which the consumer j chooses, and any e'ectric supplier not so chosen by the consumer shall not j thereafter furnish service to such premises. l

"(8) Every electric supplier shall have the right to serve all premises i l  !

~ located who!!y within the service area assigned to it pursuant to subsec. tion I l (c) hereof. j

- "(9) No electric supplier shall furnish temporary electric service for the construction of premises which it would not have the right to serve endir I .

this subsection if such premises were already constructed. The construction of lines for, and the furnishing of, temporary service for the constmetion of premises which any other electric supplier, if chosen by the consumer, would have the right to serve if such premises were already constructed, shall not impair the right of such other electrie supplier to furnish service ,

to such premises after the construction thereof, if then chosen by the con.

' I sumer; nor, unless the consumer chooses to have such premises served by the supplier which furnished the temporary service, shall the furnishing {

of such temporary servies or the construction of a line therefor irrpair the right of any other electric supplier to furnish service to any other premises which, without regard to the construction of such temporary j service line, it has the right to serve.

"(10) No electric supplier shan furnish electrie service to any premises

' in this State outside the limits of any incorporated city or town except a?

permitted by this Section; provided, that nothing in this Section shral restrict'the right of an electric supplier to furnish electric service to its i!f or to exchange or interchange electric energy with, purchase electric ener ;y a

from or sell electric energy to any other elea+?ie supp!!er.

"(c) (1) In order to avoid unnecessary r.reication of electric facilitSs,

, l the Commission is authorised and directed to assign, as soon as practicable g

after January 1,1966, to electric suppliers all areas, by adequately deflied l boundaries, that are outsids the corporate licits of municipalities and f hat / .

g are more than 300 feet from the lines M all electric suppliers as such I nes s/

I, exist on the dates of the assignments; provided, that the Commission insy .

leave unassigned any area in which the Commission, in its discretion, de ter. ,

, mines that the existing lines of two or more electric suppliers are in such *

~

close proximity that no substantial avoidance of duplication of faci:: ties  !

would be accomplished by assignment of such area. The Commission chal!

make assignments of areas in accordance with public convenience and races. l

sity, considering minong other things, the location of existing liner and '

facilities of electric suppliers at.d the adequacy and dependability G.' the ,

^

service of electric suppliers, but not considering rate ditYerentials sinon;;

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electric suppliers. .

"(2) The Commission, upon agreement of the a:Tected electric sulaliers, la authorized to reassign to one electric supplier any area or portion taereof  !

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Cir. 2S7 - 1965-SESSION IAWS theretofore assigned to another; and the Commission, notwithstanding the lack of such agreement, is authori:ed to reassign to one electric sup-p!!er any area or portion thereof theretofore assigned to another, except premises being servad by the other electric supplier or to which an . of its facilities for service are attached and except such portions of such area as are within 300 feet of the other electric supplier's !!nes, upon finding ,

that such reassignment is required by public convenience and necessity. In determining whether public convenience and necessity requires such re-assignment, the Commission shall consider, among other things, the adequacy and depend /oility of the service of the arTected electric suppliers, but shall not consider rate differentials between se:h electrie suppliers.

'"(d) Notwithstanding the provisions of subsections (b) and (c) of this Section: (1) Any electric supplier may furnish electrie service to any consumer who desires service from such electric supplier at any premises being served by another electric supplier, or at premises which another electric supplier has the right to serve pursuant to other provisions of this Section, upon agreement of the affected electric suppliers; and _(2)

The Commission shall have the authority and jurisdiction, after notice to all affected electric suppliers and after hearing, if a hearing is requested by any affected electric supplier or any other interested party, to order any electric supplier which may ressonably do so to-furnish electric service to

'any consumer who desires service from such electric supplier at any premises being served by another electric supplier, or at premises which another electric supplier has the right to serve p9rsuant to other provisions of this Section, and to order such other electric supplier to cease and desist from furnishing electric service to such premises, upm finding that service to such consumer by the electric supplier which is then furnishing service, or which has the right to furnish service, to such premises, is or will be inadequate or undependable, or that the rates, conditions of service or service regulations applied to each consumer, are unreasonably discrimi-natory. *

"(e) The furnishing of electric service in any area wnich becomes a

. part of any municipality after the effective date of this Act, either by annexation or incorporation, (vi.etbar or not such area, or any portion thereof, shall have been assigned pursuant to subsection (c) of this Section) shall be subject to the prov9 ions of Article 41 of Subchapter X of Cha,,ter ,

, 160 of the General Statutes, and any provisions of this Section inconsistent l

with said Article shall not be applicable within such area after the effective date of such annexation or irkorporation." i Sec 6. Section 62-42 of the General Statutes is hereby, amended by adding at the end thereof a new subsectf6n to be designated (c), to read as follows:

"(c) For the purpose of this Section *publie utility' shall include any electric membership corporation operating within this State."

i Sec. 7. Section 62133 cf the General Statutes is hereby amended by j adding at the end thareof 6 new subsection to be designated (f), to read

, as follows:

i 338 N .-

e S y e

e

t e

a . . .

i 1965-SEsslo.N LAWS Cit. 287

"(f) Under such r !es as the Commission may prescribe, ever/ electric ,

membership corporatica operating within this State shall .4!e with the Commission, for infor=stien purposes, all rates, schedules of rates, charges, service regulatbns, an,i forms of service contracts, used or ta be used within the State, and shall keep copies of such schedules, rates, charges, service l regulations, and contracts open to public inspection." '

Sec. S. Section 62140 of the Generst Statutes is hereby amended by l*

! adding at the end of subsection (c) thereof a new sentence, to read as follows: ,

"For the pur;ose of this subsection, 'publie utility' shall include any electric membership corporation operating within this State, and the terms .

' utility service' and 'public utility service' shall include the service ren-dered by say such electric membership corporation."

Sec. 9. Chapter 117 of the General Statutes is hereby amended by add.

. Ing thereto a new Section to be numbered 117 10.1, to read as follows:

"1 117-10.1. Municipal franchises. An electric membership corporatica shall be eligible to receive a franchise pursuant to G. S.160-2(6) from any city or towns .

"(1) in which such electric membership corporation is on the effective date of this Act furnishing electric service at retail to a majority of the - - 'I electrie meters; or -

"(:) to which such electrie membership corporation is on the effective j

.date of this Act furnishing the entire se,, ply of electricity at wholesale; or ,

"(3) which is newly incorporated subsequent to the effective date of g i

this Act, and in which on the e:Tective date of such incorporation the ,

electrie membership corporation is furnishing electric service at retail to  ;

a majority of the meters." l Sec.10. Chapter 117 of the General Statutes is hereby amended by  ;

i adding a new Section to be numbered 117-10.2, to read as follows: 1 i "i 117 10.2. Restriction on municipal servi:e. No electric membership corporation shall furnish electric service to, or within the limits of, any incorporated city or town, except pursuant to a franchise that may be i granted under the provisions of G. S. 117-10.1, or as permitted under G. S.

160-511, G. S.160-312, and G. S.160-513; pro rided, that an electric member-

, ship corporation may furnish electric service to, or within the limits of,

! any incorporated city or town if the city or town and all electric suppliers, l Including public utilities, other electric membership corporations and other cities or towns, then furnishing electric service to or within such city or j town consent thereto in writing." .

' Sec 11. Chapter 117 of the General Statutes is hereby amended by adding thereto a new Section, to be numbered 117-16.1, to read as follows:  %

"i 117 16.1. Discrimination prohibited. No electric membership corpora-tion shall, as to rates ot services, make or grant any unreasonable pref-erence or advantage to any member or subject any member to any un.

reasonable prejudice or disadvantage. No electrie membership corporation shall establish or maintain :ny unreasonable difference as to rates or services either as between localities or as between classes of service. No o electric membership corporation shall give, pay, or receive any rebate or 339 O

O

s Cit. 2ST 1965--SEssroN Iaws bonus, directly or indire:tly, or mislead or deceive its members in any manner as to rates charged for the services of such electric membership corporation."

Sec.12. Section 11719 of the General Statutes is hereby repealed, and a new Section, to be numbered 11710, is hereby substituted in lieu thereof, to read as fo!!ows:

"} 11712. Taxes and assessments. (a) From and after the erTeetive date of this Act, no electric membership corporation heretofore or here-after ergani:ed, reorganized, or domesticated under the provisions of this Chapter shall be a public agency: nor shall any such corporation be, or have the rights of, a political subdivision of the State.

"(b) With respect to its properties owned and revenues received on and

- after January 1,1967, each electrie membership corporation operating within the State shall be subject to, and shall pay taxes and assessments under, all laws relative to State, county, municipal and other local taxes and assessments applicable to the electric light and power companies in this State, except income tax.

"(c) Each electric membership corporation operating in this State shall, on all of its properties located within any incorporated city or town, pay in lieu of taxes to such cities and towns and to the counties in which such cities and towns are located, amounts equal for 1065 to fifty per cent (50%), and equal for 1966 to one hundred per cent (100%), of the ad valorem property taxes that would be paid on such properties if such properties were owned by persons fully subject to such taxes.

"(d) For the privilege of engaging In business in one or more incor- .

potated December cities or towns for the period beginning 3Iay 1,1965, and ending 31, 1960, or any part of such period, an electric membership

corporation shall pay to the State an amount equal to six per cent (6%) of

! its gross receipts received within such period from the business of furnish.

' ing electricity to or within all such cities and towns, less, however, six per cent (6%) of such amount as such el'eetrie membership corporation has paid with respect to such sales to any public utility which pays a six per l

cent (6%) franchise tax to the State on its wholesale sales of electricity to such electric membership corporation. The reporting, payment, and col- -

lection provisions cf G. S.

105 116 shall apply to the levy herein made.

The State shall remit to such cities and towns the same proportion of such payments, and in the same manner, as is provided in G. S. 105-116 l with respect to taxes paid by electrie light and power companies.

! "(e) Except as provided in subsections (c) and (d) of this Section, no *

- electric membership corporation shall be subject during the years 1965 and 1966 to any tax levied by Chapter 105 of the General Statutes except those taxes to which it was subject on December 31, 1964."

Sec.13. Section 117 20 of the General Statutes is hereby amended by i deleting the words inside the parentheses beginning on line 2 and ending on line 4, and by inserting in lieu thereof row wording to read as followst o ~ "other than merchandise and property which lie within the limits of an incorporated city or town

, or which shall represent not in excess of ten per 340 N

9 9

s .

4 1965-Srsstox Luvs Cit. 2S7 cent (10%) of the tots! value of the corporation's assets, o'r which in'

. the judgment of the Eosrd are not necessary or useful in operating the g 8

corporation." +

Sec. II. Section 117 24 of the General Statutes is hereby amended by '

deleting therefrom the last sentence, which reads as follows:

"Any assets remaining after n!! liabilities or obligations of the cor-poration have been satis 6ed or discharged shall pass to and become the

, property of the State."

and by inserting in lieu thercol the following:

"Any assets remaining after all liabilities or obligations of the cor-poration have been satis 5ed or discharged shall be distributed among the members in such manner as is provided for in the corporation's charter or bylaws, and the charter or bylaws may provide for distributions to persons

. who were members in one or more prior years."

Sec.15. Section 117 27 of the Geners! Statutes is hereby repealed.

Sec.16. Section 105-114 of the General Statutes is hereby amended by adding immediately following the period after the words " statutory author-ity" in line 19 thereof a new sentence, to read as follows: _ . _ _

"The term ' corporation' as used in this Article shall also mean and in-clude any electric membership corporation organized under Chapter 117 and any electric membership corporation, whether or not organized under the laws of this State, doing business within the State."

Sec.17. Section 105-355 of the General Statutes is hereby amended by:

Deleting the period at the end of the title thereof following the words "public utility companies" and inserting in lieu thereof a comma, and adding the following: "and electric membership corporations.";

. Inserting after the comma following the words " eminent domain" in line 4 thereof the following: "and every electric membership corporation,"; 'I Deleting the period at the end of subparagraph (1) and inserting in lieu thereof a comma, and adding thereafter the following: "if any.";

Deleting the period at the end of subparagraph (2) and inserting in lisu thereof a comma, and adding thereafter the following: "or, in the case of an electric membership corporation, the amount of its outstanding membership fees and the amount of its outstanding capital credits, or, if pl it has not adopted a capital credits plan, the amount of its unrefunded

• patronage margins."; and Deleting the period at the end of subparagraph (4) and inserting in lieu thereof a semicolon, and adding thereafter the following: "or, in the case of an electric membership corporation, the actual value of the g capital of the corporation other than debt." -  :

Sec.18. The provisions of this Act shall not apply togg, litigation.  !

, Sec.19. All laws and clauses of laws in condict with the provisions of

, this Act are hereby repealed.

Sec. 20. This Act shall be in full force and efect from and after its ratlSeation, except that the provisions of Sections 16 and 17 of this Act

, shal' be in full force and efect on and after January 1,1967.

In the General Assembly read three times and rat! Sed, this the 20th

! day of April,1965. .

341 e I

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. (1708. Hl')38)

An Act To A=end The Code Of L2ws Of South Carolina,1962.

By Adding Article 1.1 To Chapter 1 Of Title 24, So As To Provide For Service Rights Of Electric Suppliers; And By Add.

in: Sections 24 63.1 And 24 63.2, So As To Provide For Certi$ca.

tion Of Guer:. ting Phnts; To Amend Sections 12.1005 And 12.1013. Rehting To Cooperative Exemptions From Public Sernce Co==ission Jurisdiction And Certain Taxes, So As To Provide For Limited Commission Jurisdiction And Tc.tation; To Amend Section 24-1. Relating To The Dednition Of An Electric Utility, So As To Exclude Electric Cooperative From Sach Dednition; To Amend. Respectively, Section 24 3, Requir-in: Compliance With Commission Orders, Section 24-32 Rehting To Filing Of Certain Documents, Section 24 34. Rehting To

( Forbidden Practices, Section 24-61, Relating To , Required Ex.

tensions. Section 24-67, Rehting To Certi$ cates of Convenience And Necessity, Section 24-68, Rehting To Interference Among Utilities. And Section 24-118, Rehting To Enforcement Actions, All To Include Electric Cooper *tives Within The Provisions Of Those Sections On A Full Or Limited Basis; To Amend Sections 65 608 And 65-609, As Amended. And 65-001, Rchting To License Taxes, So As To Include Electric Cooperatives Within The Provisions Of The Sections; To Amend Section 65-902, Re.

lating To The Application of The Power Tax, So As To Further Provide Therefor; And To Repesi Section 65-1533 And 3nb-sections (46) and (47) Of Section 65-1522. Relating To Ele:tric Cooperative And Other Rural Line Tax Esemptions; And To Exempt The S. C. Public Service Anthority And Certain Property Leased By The Authority From The Provisions Of This Act.

Be it enacted by the General Assembly of the State of South Carolina:

( SECTION 1.' The 1962 Code is amended by adding Article 1.1 to Chapter I of Title 24, as follows:

" ARTICLE 1.1 Section 24-13. When used in this article:

(1) The term ' electric supplier' means any electrical utility other than a municipality and means any electric cooperative other than an

• electric cooperative engaged primarily in the business of furnishing electricity to other electric cooperatives for resale to other electric consumers.

(2) The term ' premises' means the building, structure or facility to which electricity is beir.g or is to be furnished; protided, that two O

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, 2 3

$ or umec Imildiegs, strm tivics r>r fa.ili6c;4 sliicli tra locatet! nei one (h) Snl jnt to paragraph (d) (i) of this schstetion, til wnniscs t

, trat or contigm.in tracts of larut am' are utilired by one electric initially roguiring clutric service after July 1,1(Ito, whiili are Inatnl

! rnmnnwr for farmine, lesincu, conmwicitl, imimtrial, imtitutinent whally within three Immlrcel fcct of smh cicctric snpplier's lmes as or rm trunu ntal purPm, Shall tm ttu r umstitute one ' pre,ni<cs', siwh lines exist rm July I,1%9.

l cu rtt tint any sm h building, stra ture nr facility simll mit, together (c) Subject to garagraph (d) (i) of this subsectkm, all premises with any ottwr imilding, rtnwture or fanlity, constittde onc ' premises' initially requiring ciretric service after July 1, !!VO, which are Iwatol if the cl<ttric senke to it is se patatcly mttered aml the clotges for wholly within three humiral feet of lines that stwh electric stTplier sm h servke ate calculatnl imicpemicutfy of charges for service to constructs in sene comimwrs that it has the right to serve or ac.

any other huitting, stnwture or facility. quires after July 1, l'Yo; trocided, hrm ever, th,t an electric s"Itli ct (3) 1hc term 1mc' means any clectric ctxwhwtor operating at a sinll not have the right to serve premies ulmily within a scrtire nominal wit,ge lesci of 25 KV or less, measured pluse-tot ase, h area assigned to another electric supplier putsnant to Section 2015 except (a) in the caw of nverlwait constructi<m, a comhrtar frmn . from a line cimstnwant after the date of urh assignment.

the pole or tower swavest the permises of a consumer to siwh pre- (d) If cho<cn by the ccmsmner, any picmises initially requiring eni<cs, or a em'Imtor inin a line tap to $nch premises, aml (b) in w./ ,

%,/ clettric service after July 1, l'Yo, the case of umicrgroumt comtrm ti,m, a romiuctor from the trans-(i) which are located wholly or partially within three lunutrnt (nenn r (or juncti<m piint, if there he one) nearest, on or in the int of the fines of such cIcctric surplier ami alm wlmily or partiaHy pnmiscs nf tiv cnmunwr tn Smh permiscs; trutided, the term 1ine' widiin three humfrnt feet of the lines of another electric sngtlier, as rhall iminie any clutric nehwtor ogerating at a nominal vnttage cach d nwh milin's lines exist mi July I,1%9 or as extended in 8 Icut in excess of 25 KV amt tess than t3 KV where it is established serve consumers tiot the supplier las the right to serve or as acquired to the ratisfactime of the olier clntric s yttiers in the county or ,ric, y,97 g, gryg, countics v.bcre smh combn tnr is Imatnt, or in the abseme of such (iil which are int located wholly nithin three Innwired feet agirenwnt, tn the satisfact,u m of the Pnblk Serv,re Lomnnssion, that of the lines of any electric suttli ct amt ar'c not locatal gartially within ,

the pimary puryne an.1 n-c of sm h nehuInr es for the distritmtion three ImmlrcI feet of the lisws of tun er mnre tiettric n$gplicts, of clutric power aml imt for the trammiv. inn of bulk pnwer from l om an a en anottwr: ami, te usidol. Im ther, that the term line shall el M mi an I adh w pi4 wiSin a m i pplier imrsuan' t in Sution 2815, imlude any other clutne inmbw tnr etcrating at a mnninal voltage

' l icul in .Ecss of 25 KV and Icss than 48 KV cxcelt that, until it is Oii) "Eh a7 ocatol gdaHy u,n!,s a vn'we area niskned

, drterminel that smirowhwtor is a distributinn line in accont.nwe to wh cNn.c 3nggen aW padaHy nWn a sniwe sea c%nnt

'" """ din dntuc sngtbn genmt en Subin 2W m arc locatol j with the preceding prmisa. the seisice sights with respett to picmises .

. i h, a oh..Hy unin ihree hm irni fni of smh comhwior simil not v v P""i""1 " " bi" " 5*" k' ""'" ""'K""! ".' 5* h "" '",< *"Pl di " P""

snant in Sect.mn 21-15 amt partially witinn three humhnt icct of the i .

• lines of anottwr ckrtiic supplier, or ate locaint partiaHv within threc

{ (4) The term 'indmtnal premi<cs' mcar.s the premises of a person

l Immlred Icet of tlw lines of smh clectric supplict, as sin h lines exi<t

, fom ce cnspiration engagcd in the beisww of manufacture, gwnces- g sing, aunnhhnt:, lahiitation nr rdatid wm h.

to rene or as acquired aftcr that date, an I partially within a service So tion 2 814. Wit's scsp<rt to senice in all arcas outside the , area assigned to arw.ther electric supplier pursnant to Section 21-15, coryn,tc Imiib a f nmnkirahtics, dntric supplicts shall have rights ) ami pod it snbb et to arstrictions as follows: (iv) whkh are Imatol mdy partially nithin a senice area (li lary c!n tiic supt cr lisha!! have the right to sene: assigned to one electric snitlier pursuant to Section 21-15 amt aic ta# .\ll p nniu 4 hting scued by it, w to whkh any M ih fac- katM u% onWe We senice arra nWgud tn en electtk ihiics for usuce are attxhed on July 1,1w0. j mypliers amt are located wholly more than tince Immlrel Icet from G

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{ eth. .h e tiir sngi 4 *d him nw any slu tric 91dict not so h en t 1 y the rewnmcr in any of tIw utnations <hwrnint in this paragrag4' temn except u grrmittal !.y this satinn; trurid.J. llat v%hing in j thia sorties shall restrict it:e sir:ht of an elecisie snppli<r to furnish (el) slull ned tlwre aftrr forni'h srrrice to sirh pecaiset The daire j ricctric seniac in its own periniscs or to enhange or inteninnge of tir oer-nnwr in the sionti.m alc caitint in this paragra Ji (1)

riat! Ic o.nir..thng, aiwi the l'uldic Scavice Conunission s!ctl hne clectric energy with, pimhase clntric energy friwa tr sell clettrie 1

no antbniity en onfer any other mptJict to serve sucli consmucr. energy to any other ciertric surplier.

esrept as pr..vietn! in Sution 2 f-17. (5) In exteneling cln tiic scrrice to a consuiner an clettric supl4 wr will, insofar as pnssil.ic, constnwt its facilitics in accor.!ance with (c) All premises Incateil wlvilly witidu the service area assigned to it piu3nant in Scrti<,n 21-15 good utility g.ractices.

! (21 Any clntrical utility shall have the right to furnish electric (6) Any ciertric creperative which is engagest primarily in the 8 [n,nistdug r.f ciertricity for resale to other ricetric cnnpciatives sin 11 sen4c to any iminstrial picmises initially requiring ricctric service have the eight to furnish sm h clntricity for sesale to all clntric co-i after July I.1W0 if ropntal in u siting to gmide sinh service an.!

g the ennnettel Ina.1 for iritial full plam operation at suc h iminstrial otwratives Imt sfull mit furnish ricttric scrtice to any ottwr custonwrs or prnniset l premi-es is 750 tilnwatts or larger, whether or not soth irvimtry is s/ s/ Seition 2115. The Pubfic Scarirc Comminion shall assign, he-

, laratol u tw,Ily nitidn three immlrol fert of the lines of, or w'milY

' witidu .m awa aui;:not, pursuant to Sertion 28-15 to an clntric ra- ginning es sann as practicable after Jannary ! 1970, to clntric suppliers, aff areas, by adequately-.lefined femalirics which nur he oper nis c : trev ided. bnwen r, that no ustier consumer whose gwnnus by refernwe to hanmlaries strawn on maps or otherwise, tint are are f.watr.1 ulu.!!y nithin three hun.bnl feet of the lisws of, or whnfly outsi.lc the entpnrate limits of muni ipalilies mal tfat are more than u ithin an arta assiciwil in, an rintiic crepcrative nuy he scnni from a line or fim s of the utility ematewted to serve siwh inw!nstrial threr him.tred ices from the linrs of all electiic suppliers as wh 1;ncs exist em the dates of the assigmuents frecided. that the Cam,-

pre nd rs, rue rt anntln r smli indmtrial permiscs. If an clettric: t mieiein may lease massignrel any arca in whiili tir Conunioin*i. in utihty is < h.,9 n in sene in.hs4tial primus gorsinnt to tids t,ntrec-

i, ,hstrctiim. <h trimiirs the absence of awi;

nnwnt is justifi..I hv tion f 2). no othe r slettiic sn11.licts shall there: fler furnish senice gmt,lic comenicere aral neccssity. The Cisnmini<m stall make assien-en sm h pimises.

( .1) No rirrtiic so:1 cr 4i sh:.il Ininish temporary clettric service nwnts of areas in arenidarwc with m!Jic i <nnveniente and necreit3-ron i<tering, anwmg other thinrs, the location of csisting lines and for 11w run tra tion ni par mie uld.h it unnt.1 not have the ric.ht to l so tion if smh primises were abrady ennstructed- gating;c, ,,f clartric snpphers and the adeqincy aml depctulability of sene im.ltr i ds the =enire of electric suppliers, Imt not con 41rring rate differtntials

'i h. rew trm finn e,f lim s for, and the furnishim: of, temporary serv-among efestric supplirrs.

ice for the comtincti<m of pimisrs ulkh any other ekttric snoplict. ,

Scotion 21-16, The l'uhlic Scivice Cnenmiuinn. nlen aawnnent if s how n by the o.nsnnwr, nemld base the sight to serve if sm h j V of the affnitd clcitric suppliers is authorin.l to reawien ta **:

prmiws utre abra ly temstim fed. shall unt impair the right of siwh cirettic sug14icr any area or torti.m therevi thewtnfore assi.:ned to e ther slet tric mtilitr to Imni h sonice to smh penniscs after the another; and the Comndwi.in, n..tuithstanding the l u k of m h renstrm tion thrtenf. if then thosen liy tl e consimier; imr, unirss the {

agrennent, is authneired to scanign to one chrtsic su]1Jict any atra

<nno.nwr r h..nses to Im c sm h g.rrmises srrved liy the supplier which or portion tlwrcof tlwrttofore assignot to anollwr, cscent prced-rs Ininkhol the temp rary scnice. shall the inrnisidng of such temf*

rarv siniet or the enmtro. tion of a line therclor impair the right heine servol by the olhcr clc<tric supplier or to which an3 of its 4

facilitics for servire are atta< hed an.1 esrept sm h p.irtinus of sm h

..f Env ..ther etertric supt 4ict to intnish service to any other premises area as are within thice howIrcil (crt of ilm other rf rtric wppfier*

v.ld. h. u ith..nt ve npnt t.. the comtrmtir n of stwh, Innporary service line, it 1 as the einht in s< tre. 1;ncs. pp .n a fin. ling tint wh rraui;:nnwnt is rc.inirc.) hy puhhe

! convenie nte ami mrcssity. In detr mining u ht ther pufdic inim nieme fIl No ci .vtric supplice shall f artiish ricatric senice to any t rnn*

anet nerr.sity sopiirc smh rrassis:nment. Ibc Conunsion shall om-l ist s in tids State nut 4fe the 'mnts < f any incorgerate.1 city or 3;,h r. ann in other tidngs, the atir.tnacy atul .l perwlttJ1ity r.f the

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a limit for c <nnrncing attion as provitnl for in Section 21161, sah 1 their re,idents, employces or tenants when snth current is not resold

' pariy sinti have rac,i niin the cmni a lui.I with surctica q. proved or used by others."

by the tourt, e r an m<tertaking apprmnt by the court, in suth amount as the court dottrmiins, after at least four days' notice to all parties, BECTION 7.

Scttion 21-3 of the 1%2 Cale is anelal by strik-m d. i he reasonal.ly sufh. .cient to divharge the obligat. inn herr.mahore Ing it and .mscrt.mg:

I imgesed upon the party cmimirncing snrh artimi. If the award enter tion 2M Each cintncal uGy and, to the cuent ein ejal by of the Commission is affumed, the court shall determine the amount, this Titic, cash (Intric cooperative, shall oficy and comply with all 5 if any, nf damages sustained hv the party to nhean the certificate was

'"Inirements of every enter, decision, direction, rule or regulation nwaided, and shall issue apprnpiiate onders to assure that such nwie or prescril.nl by the I'nhfic Scrrice Conunission made umler

dunares he paid amt that the hnnd or mutertaking he enforced." this chapter or in rclation to any other matter in any may relatmg SECTION 4. Settinn 12-1003 of the l'X2 Code is amended by to or affecting the Imsiness of such electrical utilitt or cicetric co-st rikint

it and inserting t operative aml shall do everything neccstary or proper in order to j l scente coenpliance witti aml obscrsance of escry such order, decision, "Sct finn 12-1005. Cm1wratives and'imcign corporations trans-l acting htniness in this State pursuant to this chapter, except for the

_v v dirtrtinn, rule or regulation by all of its ofliccrs, agents and em-

! pkgces."

3 roti ions of Sections 24-3, 21-13thron h28-18, 24-32, 24-38, 2 0 61, 24611,24 634, 284,,2 8 68 amt 21-118 shaft he exrny>t frmu the . SECTION 8. Sect. ion 2032 of the 1962 Code i,s amended by strik.

jmivliction and rontrol of the l'uhlic Sen ke Canmission of this '"E ". "*I "."#'6"E

• Stue.n "Section 28-32. Undct snch rules aml regulations as the Com-FEC1 ION 5. Scciion 12-1013 e.f the 1%2 Cale is amented by mivion ruay prescribe, every clottrical utility shall file with the Com-striking it and inserting: mission, within such time anil in snch imm as the Commicion nuy

• Sn tion 12-1013. I'ach corpralise and cash foreign corpora-designate, schednics showing all rates, service rules and regniations amt forms of service contracts establishnl by it and co!!ccted or cn-tion trans.n ting business in this StAc pursuant to this chapscr, he-rionine -uith ta3rs tn 1+ aesed on t hemhrt 31, IV, shall be Inrecd or in he collectal or rnforrnt within the jurisdiction of the Cmumission. Umler such rule, and regulations as the Comntioinn

' suhi<it in an I pay proprity tascs levint by the State, any county, nmnhindii,s, srbm.) distris t or any ottwr tasing snialitision, and may pecscribe, every distrihntion clattric cooperatisc shall tile with the Comnti ssion for information purpascs, within smh time and in sint! lc subject to and par sn h other tascs as nuy he imposed by tan, het shall be esernt t feom imome taxes." sm h ("rm as the Commission ruay desienate, schntnics shnoinr:

all sates, sinice rules aml regulations awl fanns of sinice contrat t5

! CTIOff G. Thk snemh nura;raph of Serthm 231 of the Phi 2 csiahMiol 1,y it ut cinnkal u ty and tanen ctntiy co-g v

• -Cotr i. amcmicd f.y stiiking it an t inu eling: ojuanu dull Lup rop of snah schMnb open in pnWe in-

"'I ht trien *<in tairal utilisy' im lndes nmnkipifities to the extent of th<ir Oneinm, pmprity, saic s, transattions and og eratiens without

' P"k" '" " ""' ' " ' ""

I'*

"E" " ' " ' ' """" "" " #

the e sp4 ate lunits of the munkipahty, persons and corpontions, SECTION 9. Section 24 38 of the lu r,2 Code is amented h.s >tiik-thtir h ace s a signec>, truecs, rerris er s or other successois in

{ ing it aml inst'rting:

intuc? t .m ning or opentim: in this State c.piipnw nt or facihtics for rowtativ, tran,mittine. diliu ring or hn nishing cln tricity for "Section 2L38. No ekrtrical utihty or distributEm eketric co-sete rt, reib .sy or e4her public n .e s or f"r the p,reahtrtimt nf t@ht, operative stnll. as so rates or senices, malc or grant any untca-n A'c he at + e g .ncr t2 or for the puh! r for ronywmatinn; lint it shall not pacittente or advaillv;c to any gs rwn, cnituratinn eir immi@ihtv im indr an iin tric o oi crative and shali not incl ide n pe rson. corpora- in its untrasonable prejudice or diudsantanc. No ticctncal utitty ti. n of nmniti; ahty hirni hing clrttikity only to himself or itsclf, or distrihntion ihrtric contwrative sMI establish er maintain an3 unreasemat lc difference as to rates or su vice either as hcturen locah-t e 8 Y

e

w ltt

)

ll tics or as 1 cturen alasxs of se nsite. Subject 13 the appr ~al of the h Ganminie;i, bourscr, ekttrical utilitics arri distritmtiets electric co- BECTIQ 12. Section 2-14 of the PL2 Ccle is amerziol ley strit-opriatives nuy r tablisti claulficatisms of sales ami services amt snch ing h and insertitig:

PS,xti.m 21.s.R. If any chttiiral utility or siistritmtion ciertric elawiskati.en nuy tale into sinamt tir entulitions amt ciremnstances Filf rnnew}ing (tm srrt M' T, cunperative, in constnu ting or extemlin.: its fines, pLnit nr system, un-sliclt as t le thine %bett n5ctl, tIW {nttpnse f.,r uhh h mni, tlic ih maml upon pluit facilitics, the value of the rgasoguhly Iiter[ crc 3 or is alwngt to integicte unscasonaIsly with tlse scriire remirred amt any other reavmal>le consi.fcration. The Com- r.ctrice or 3 stein of any ottrr etertoiral utihty or distritmtion cire-minient may deterrninc any <picstinn of fact arising under this sec- tric noperatisc, the Conunission nn cmnplaint of the ciretrical utihty tion. The Commiv.i<m shall twit fit any rates c! urged by c!cctric or disteihntion rhytric cooperative cl.6 ming to be injuriously aficcted c aprratives? may, after hearing, nuke snch order and prescribe such ternis and SECTION 10. Section 2841 of the PM2 Code is amented by comliti..ns in lurnumy with this chapter as are jet aml reasmut.fe?

striking it amt insreting: # SECTION 13. Section 24-118 of the PM2 Co fc is anwalnt by "Sn tkin 2841. When ordered by the Commission after a frar- striking it amt imetting:

inn, any eint ical utiti:y or distrit,ntion c!cctiic cooperative inay he q y "Sr. tion 2 8-118. Whencter it *Iull appc1r that any rloctrical rordnd to estahtish, ennstruct, nuintain amt operate any reasonable . utility or r1 citric cooperatisc is failing or omitting. nr ahnnt t.. fait estensinn of its esi ting facilitics. If any sm h extension, lunveter, or omit, to do anything requirol of it by law or by onter of t1e willinte rh oc with the se rsire or system of any other ricctrical titility Canmiwho nr is eh ing, or alvmt to do anything or pennitting or 7 nr .ti tributir n cint* onteratisr, the Cominission may, on com- n!wmt to lwrmit any Wing to be ehmc rontrary to or in sintitkin of p1 put ami ahir twas . c. rithr r nrder th discontinnance of sm h ex. 1.nv nr e4 any order ni the Cennmissiem, an action or prrwenling sh:dl torion nr pn snife sm h trims ami onnistions wish respivt theicto he pn,secuted in any omrt of annpi tent jmisd4 tion in the na.nc of as may be jmt aml re a'.onable. Eath sintrical utility and distribution the Onenmi- ~an or the State for the purpo c of having such siolati.m eIn itir n ewperath c within aeras nuigned in it by the Conunhsinn amt or thiratrin,1 sintatinn dhcontimu,1 or prestnted. citier by nund1-uishin tinre hundrni In t of its lines, as defined in Section 24-13, nms, injinn tiin, or other appropriate irlief, and in mch action nr pro-shail br of.hg.itn! In ernnpty with all tr< pests for service iis ac- croling, it shall be permissit.ic to join un h other pe rsons. corpora-rm Imcc uish its schedn1rs of sates and service ruics and regulations tients or nmnicip:difics as partics tirnin as nuy I.c reasonably nec-nn f.fr u ith th- Conunicion? essary in make ilm oidi. of the court in all respects tfiectis e?

DECTION 11. Satu n 2167 of the l'A2 Cale is anrHril I.y stiik- SECTION 14. Sntion (640S of the inf 2 Cmic, a. atin mfrit. is int the n tinii amt in ntina,: imit cr amemled by strikine it anal in crting: ,

" A r ti..n .'l 67. Whenru r an ctrterical utility, electric cor pera- .

"Sn tion M utR. In lien of the li.cnv fee imgused by Section

%/ b/

tise, public utility dhtrict, gmrrnnu ntal 1=wly or agency, or another G4M, there is here1.y levied, in additiim to any amt n!! otter hconse pe r nn or enrg .sati<m, is engagni or is ala,n' in encyc in comtruc- incs amt fers or . .. of whatercr Lind, a fia me fee of thne emi!s tion eir e peration niifmut h.nian watie d , critificate of puhtic con-

• upm each .hillar of the vaine ni property ownni anel mot within senirm e am! necruity as ropiired by the pimisions of this chalder, Sonth Carolina in the onwinst of the f.n ino of nery railt.ud any interotid ela tiiral utihty, sin tiic rmperative, corporation or company, espress croopany, strrrt railway own nmairipal:t3 unv f.fr a ownplaint wi:h the Conunini<m. *1 he Com- luny, u nte rworks cenopany, pmer onupany, pan), n.ui.:ation rum.

rintric crmperative, i mimi,n m. 3, u tth r r u i;Innt untii t. n ale its order repiiring the lh:ht o.mpmy, gas onntan3, trh graph ownpriy, triiphone annpanr, i .u ti e.mg idnnt of to re,-r :md de ist frmu such cimstructbus or parInr, dining or sfceping car campm3, tank car cmuguny, tcfrigeta-ng raion notil the C..nnni inn m.6, aber hc ating, nuke siu h order ting rar oriany and h nit genurrs' rst.rr s sar onnismy, and :11

.u-! t privately +priatnl rar hncs. Tle lirrn c he prmidol for in thi,

""lihe m h terms amt ronditinm in harnumy wish this chap-to a. air jmt an.) ria,nnat ic? sn ti.m siull la. pai.! at the tinw of the lihng ..f the arpirts rotnired

\

by this thapicr. Protidcd, hauerer, that the first report of alcctric

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14 1957-195S: but all sales of electric power to any class of customer c.ther than industrial customers shall continue to be assessed and t' axed as provided in this article. As used in this section, 'industria! .

customers' :, hall mean that class of customer engaged in the business of manufacture, fabrication, processing and related work."

SECTION 13. Nothing contained in this act shall be construed or interpreted to impose any tax liability on the South Carolina Public Service Authority, and all property leased to and operated by the South Carolina Public Service Authority for the generation or frans-mission of electric power shall, for all tax purposes, be consideref the property of the Authcrity.

SECT'ON 19. Section 65-1533 and subsections (46) and (47) of Section 65-1522 of the 1952 Code are repealed. (

SECTION 20. This act shall take effect July 1,1%9.

In the Senate House the 10th day of July In the Year of Our Lord One Thousand Nine Hundred and Sixty-nine. .

Jonx C. West, President of the Senate.

Sot.onox Bt.xrT, Speaker of the House of Representatizes.

Approved the 14th day of July,1969.

Rostar E. McN.ua, Goz ernor.

(

me Em

• i Printer's No.166-S. i G

e

I e .,

l ATOMIC ENERGY CO.v01ISSION In the Matter of )

) Docket Nos. 50-269A, 30-270A DUKE PONER COMPANY ) 50-287A (Oconee Units 1, 2& 3 ) 50-369A, 50-370A McGuire Units 1 & 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICAN1'O OBJEC-TIONS TO DOCUMENT REQUESTS AND MOTION FOR PROTECTIVE ORDERS, dated October 12, 1972, in the above-captioned matter have been served on the following by deposit in the United States Mail, first class or air mail, this 12th day of October, 1972:

Walter W. K. Bennett, Esquire J. O. Tally, Jr., Esquire P. O. Box 185 P. O. Drawer 1660 Pinehurst, North Carolina 28374 Fayetteville, North Carolina 2830 Joseph F. Turbridy, Esquire Troy B. Connor, Esquire 4100 Cathedral Avenue, N. W. Reid & Priest Washington, D. C. 20016 1701 K Street, N. W.

John B. Farmakides, Esquire Atomic Safety and Joseph Rutberg, Esquire Licensing Board Panel Benjamin H. Vogler, Esquire Atomic Energy Commission Antitrust Counsel for Washington, D. C. 20545 AEC Regulatory Staff Atomic Energy Commission 20545 Atomic' Safety and Washington, D. C.

Licensing Board Panel Atomic Energy Commission- Mr. Frank W. Karas, Chief Washington, D. C. 20545 Public Proceedings Branch

- Office of the Secretary Abraham Braitman, Esquire of the Commission Special Assistant for Atomic Energy Commission Antitrust Matters Washington, D. C. 20545 Office of Antitrust and Indemnity Joseph Saunders, Esquire Atomic Energy Commission Department of Justice

. Washington, D. C. 20545 Antitrust Division Washington, D. C. 20530 l

p m _

P ,

?

. , _. c. . ~ -l

- William T. Clabault, _ Esquire J. A. Bouknight, Jr., Esquire David A..Leckie, Esquire' David F. Stover, Esquire Antitrust Public Counsel Section Tally, ' ally & Bouknight Department of' Justice Suite 311 P.O. Box 7513 429 N Street, S. E.

Washington, D. C.

20044 Washington, D. C. 20024 Wallace'E. Brand,-Esquire

' Antitrust Public Counsel Section Department of Justice ,

P'. O.-Box'7513 Washington, D. C. 20044

~

Wald, Harkrader & Ross j.a- l} a '. >

By:  !" 'I,4--

Attorneys for Dulde" Power C5EipaWy- ,

1320 Nineteenth Street, N. W.

Washington, D. C.- 20036 9

f I

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