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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20196J3291999-06-28028 June 1999 Comment Supporting Proposed Rule 10CFR50 Re Industry Codes & Standards ML20206M7291999-04-30030 April 1999 Comment Supporting Draft RG DG-1083, Content of UFSAR IAW 10CFR50.71(e). Licensee of Listed Plants in Total Agreement with Comments Provided to NRC by NEI HL-5717, Comment Supporting Proposed Rule 10CFR50,52 & 72 Re Changes, Tests & Experiments.Util in Total Agreement with NEI Comments to Be Provided to NRC1998-12-18018 December 1998 Comment Supporting Proposed Rule 10CFR50,52 & 72 Re Changes, Tests & Experiments.Util in Total Agreement with NEI Comments to Be Provided to NRC HL-5715, Comments on Proposed Rule 10CFR50 Re Monitoring Effectiveness of Maint at Nuclear Power Plants.Util Is in Total Agreement with NEI Comments1998-12-14014 December 1998 Comments on Proposed Rule 10CFR50 Re Monitoring Effectiveness of Maint at Nuclear Power Plants.Util Is in Total Agreement with NEI Comments HL-5702, Comment Supporting NEI Comments Totally on Proposed Draft RG DG-4005, Preparation of Supplemental Environmental Repts for Applications to Renew Nuclear Power Plant Ols1998-10-23023 October 1998 Comment Supporting NEI Comments Totally on Proposed Draft RG DG-4005, Preparation of Supplemental Environmental Repts for Applications to Renew Nuclear Power Plant Ols HL-5695, Comment Supporting Nuclear Energy Institute (NEI) Comments on 10CFR50.55(a) Pr, Streamlined Hearing Process for NRC Approval of License Transfers1998-10-13013 October 1998 Comment Supporting Nuclear Energy Institute (NEI) Comments on 10CFR50.55(a) Pr, Streamlined Hearing Process for NRC Approval of License Transfers HL-5690, Comment on Integrated Review of Assessment Process for Commercial Nuclear Plants. Util in Total Agreement with NEI Comments Provided to NRC1998-10-0505 October 1998 Comment on Integrated Review of Assessment Process for Commercial Nuclear Plants. Util in Total Agreement with NEI Comments Provided to NRC HL-5983, Comment on Proposed Rule 10CFR50 Re Reporting Requirements for Nuclear Power Reactors. Snoc in Total Agreement with NEI Comments,To Be Provided to Nrc.Requests That NRC Provide Guidance to Application of NUREG-1022,rev 1 as Listed1998-09-21021 September 1998 Comment on Proposed Rule 10CFR50 Re Reporting Requirements for Nuclear Power Reactors. Snoc in Total Agreement with NEI Comments,To Be Provided to Nrc.Requests That NRC Provide Guidance to Application of NUREG-1022,rev 1 as Listed HL-5682, Comment Opposing Draft NUREG-1633, Assessment of Use of Potassium Iodide (Ki) as Protective Action During Severe Reactor Accidents, & Endorsing Comments Submitted by Nuclear Energy Institute1998-09-15015 September 1998 Comment Opposing Draft NUREG-1633, Assessment of Use of Potassium Iodide (Ki) as Protective Action During Severe Reactor Accidents, & Endorsing Comments Submitted by Nuclear Energy Institute ML20153B2391998-09-15015 September 1998 Comment on Draft NUREG-1633, Assessment of Use of Ki as Protective Action During Severe Reactor Accidents. Endorses NEI Comments HL-5602, Comment Opposing Proposed Rule 10CFR50 Re Industry Codes & Stds1998-04-0303 April 1998 Comment Opposing Proposed Rule 10CFR50 Re Industry Codes & Stds HL-5586, Comment on Proposed Generic Ltr, Year 2000 Readiness of Computer Sys at Npps1998-03-0404 March 1998 Comment on Proposed Generic Ltr, Year 2000 Readiness of Computer Sys at Npps HL-5582, Comment on Draft Reg Guide DG-5008, Reporting of Safeguards Events1998-02-27027 February 1998 Comment on Draft Reg Guide DG-5008, Reporting of Safeguards Events ML20203B9761998-02-23023 February 1998 Order Prohibiting Involvement in NRC Licensed Activities (Effective Immediately).Requires That Mcgriff Be Prohibited from Any Involvement in NRC-licensed Activities for Period of 3 Yrs from Date of Dismissal from SNC on 970305 HL-5564, Comment on Draft NUREG 1555, Updated Environ Standard Review Plan1998-01-30030 January 1998 Comment on Draft NUREG 1555, Updated Environ Standard Review Plan HL-5554, Comment Supporting NEI Comments on PRM 50-63A by P Crane Recommending Emergency Planning Standard for Protective Actions Be Changed to Require Explicit Consideration of Prophylactic Use of Potassium Iodide for General Public1998-01-15015 January 1998 Comment Supporting NEI Comments on PRM 50-63A by P Crane Recommending Emergency Planning Standard for Protective Actions Be Changed to Require Explicit Consideration of Prophylactic Use of Potassium Iodide for General Public HL-5546, Comment Supporting Proposed Rule & Direct Final Rule on 10CFR50.68 & 10CFR70.24, Criticality Accident Requirements1997-12-31031 December 1997 Comment Supporting Proposed Rule & Direct Final Rule on 10CFR50.68 & 10CFR70.24, Criticality Accident Requirements HL-5529, Comment Opposing Rule 10CFR50 Re Codes & Standards,Ieee National Consensus Standard1997-12-0101 December 1997 Comment Opposing Rule 10CFR50 Re Codes & Standards,Ieee National Consensus Standard ML20199J0031997-11-24024 November 1997 Comment Supporting Proposed Rule Re Financial Requirements for Decommissioning Nuclear Power Reactors & Draft RG 1060 HL-5424, Comment on NUREG-1606, Proposed Regulatory Guidance Re Implementation of 10CFR50.59 (Changes,Tests or Experiments). Encourages NRC Not to Abandon 30 Yrs of Effective Implementation of 10CFR.50.59 for New Positions1997-07-0707 July 1997 Comment on NUREG-1606, Proposed Regulatory Guidance Re Implementation of 10CFR50.59 (Changes,Tests or Experiments). Encourages NRC Not to Abandon 30 Yrs of Effective Implementation of 10CFR.50.59 for New Positions ML20148N0741997-06-19019 June 1997 Comment on Proposed Suppl to Bulletin 96-001 Re Control Rod Insertion Problems.Util in Complete Agreement That Incomplete Rcca Insertion Not Acceptable HL-5407, Comment Opposing NRC Proposed Strategies to Address Licensees Need to Establish & Maintain safety-conscious Work Environ1997-05-27027 May 1997 Comment Opposing NRC Proposed Strategies to Address Licensees Need to Establish & Maintain safety-conscious Work Environ ML20132A9171996-11-27027 November 1996 Comment Supporting Draft RG DG-1047, Stds Format & Content for Applications to Renew NPP Ols ML20128M3411996-09-30030 September 1996 Comment on Proposed Generic Communication, Primary Water Stress Corrosion Cracking of Control Rod Drive Mechanism & Other Vessel Head Penetrations ML20116D6491996-07-31031 July 1996 Exemption from Requirements of 10CFR70.24 Re Criticality Monitoring Requirements ML20116G9271996-07-29029 July 1996 Comment Supporting Proposed Rule 10CFR26 Re Mods to Fitness-For-Duty Program Requirements ML20115D1911996-07-0505 July 1996 Comment on Final Rule 10CFR51 Re Environ Review for Renewal of Nuclear Power Plant Operating License.Supports NEI Comments ML20115H1951996-07-0303 July 1996 Comment Supporting Proposed Rule 10CFR50, Reporting Reliability & Availability Info for Risk-Significant Sys & Equipment ML20113C6691996-06-24024 June 1996 Comments on Proposed Rule 10CFR50 Re Financial Assurance Requirements for Decommissioning Nuclear Power Reactors ML20100D1871996-01-29029 January 1996 Comment Opposing Petition for Rulemaking PRM-50-63, Recommending That Planning Std for Protective Actions for General Public Include Stockpile or Predistribution of Ki for Prophylactic Use ML20095D9801995-12-0808 December 1995 Comments on Proposed Generic Communication, Boraflex Degradation in SFP Storage Racks ML20094M9691995-11-13013 November 1995 Comment on Proposed Rules 10CFR60,72,73 & 75, Safeguards for Spent Nuclear Fuel or High-Level Radioactive Waste ML20091Q2711995-08-28028 August 1995 Comment Opposing Review of Revised NRC SALP ML20086N6141995-07-10010 July 1995 Comment on Proposed Generic communication;10CFR50.54(p), Process for Changes to Security Plans W/O Prior NRC Approval. Endorses NEI Comments ML20086M8011995-06-28028 June 1995 Comment on Proposed Review of NRC Insp Rept Content,Format & Style. Util Applauds NRC for Undertaking Endeavor to Make Insp Rept More Effective Tool for Communicating W/Licensees & Public ML20083N4921995-05-0404 May 1995 Comment on Proposed Rule 10CFR50, Primary Reactor Containment Leakage Testing for Water-Cooled Power. Util in Total Agreement W/Nei Comments ML20082K0461995-04-10010 April 1995 Comment on Draft Policy Statement, Freedom of Employees to Raise Safety Concerns W/O Fear of Retaliation. Endorses NEI Comments ML20078J8101995-02-0303 February 1995 Comment Supporting NUMARC Comments on Proposed Rule 10CFR50 Re Shutdown & low-power Operations for Nuclear Power Reactors ML20080G8471995-02-0101 February 1995 Comment on Proposed Rule 10CFR21 Re Procurement of Commercial Grade Items by NPP Licensees.Recommends That New Definitions Be Applicable & Consistent to Licensees Who Hold Other Licenses as Well as Part 50 License ML20085E5381995-01-0505 January 1995 Comment on Proposed Rule 10CFR73 Re Changes to NPP Security Requirements Associated W/Containment Access Control. Supports NEI Comments ML20077F6561994-12-0101 December 1994 Comment on Proposed Generic Ltr Re Reconsideration of NPP Security Requirements for Internal Threat.Util in Total Agreement W/Nei Comments ML20077E9171994-12-0101 December 1994 Comments on Proposed Rule 10CFR2,51 & 54 Re NPP License Renewal,Proposed Revs.Informs That Util in Total Agreement W/Nei Comments to Be Provided to NRC ML20072T6651994-09-0202 September 1994 Comment on Supplemental Proposed Rule 10CFR51 Re Environ Review for Renewal of Operating Licenses.Util in Agreement W/Nei Comments to Be Provided to NRC ML20072K3331994-08-17017 August 1994 Comment Supporting Petition for Rulemaking PRM-9-2 Re Ohio Citizens for Responsible Energy,Inc Petition ML20072B3711994-08-0909 August 1994 Comments on Proposed Rule 10CFR26 Re Consideration of Changes to FFD Requirements.Licensee in Total Agreement W/Nei Comments ML20071H1321994-06-27027 June 1994 Comment Supporting Proposed Rulemaking 50-60 Re Virginia Power;Filing of Petition for Rulemaking ML20069J5901994-06-0909 June 1994 Comment Supporting Proposed Rule 10CFR170 & 171 Re Rev of Fee schedules;100% Fee recovery,FY94 ML20065P4631994-04-25025 April 1994 Comment Supporting Proposed Rule 10CFR50 Re Codes & Stds for Npps;Subsections IWE & Iwl ML20065P4541994-04-0505 April 1994 Comments on Draft NUREG-1022,Rev 1, Event Reporting Sys (10CFR50.72 & 50.73) Clarification of NRC Sys & Guidelines for Reporting. Util in Total Agreement W/Nei Comments ML20064L8671994-03-11011 March 1994 Comment Supporting Proposed Amends to 10CFR20 Re Radiological Criteria for Decommissioning of NRC Licensed Facilities 1999-06-28
[Table view] Category:PLEADINGS
MONTHYEARML20101N0131992-06-30030 June 1992 Responds to 920501 Board Memo.* Util Requests That Board Accord Unconditional Proprietary Treatment to Certain Pages from TERs Re to Asco Equipment.W/Certificate of Svc ML20095K8591992-04-24024 April 1992 Alabama Power Co Response to NRC Staff Motion to Exclude Certain Surrebuttal Testimony.* Motion Should Be Denied in All Respects.W/Certificate of Svc ML20096F7861992-04-16016 April 1992 Motion to Continue Proprietary Treatment of Certain Exhibits.* Util Moves That Board Continue Proprietary Treatment to Listed Exhibits.W/Certificate of Svc ML20092C6691992-02-0606 February 1992 Alabama Power Co Opposition to NRC Staff Motion to Exclude Certain Testimony.* Requests That NRC Motion Be Denied & Licensee Given Opportunity to Argue Motion at 920211 Hearing.W/Certificate of Svc ML20062E9891990-11-16016 November 1990 Request for Enforcement Hearing Per 10CFR2.205 on Issues Raised by 900821 Order Imposing Civil Monetary Penalty.Major Issues Include Whether Util Violations in 900815 Notice of Violation Justified & Whether $450,000 Penalty Justified ML20090E5621984-07-18018 July 1984 Response Urging Rejection of Alabama Power Co 840703 Petition for Declaratory Order to Clarify Obligation Under License Condition.Petition Should Be Denied.Certificate of Svc Encl ML20041G1521982-03-0808 March 1982 Motion for Extension of Time Until 820510 to File Responsive Brief.Brief of AL Power Co Delayed,Resulting in Loss of 7 Days.Certificate of Svc Encl ML20010C2401981-08-11011 August 1981 Answer Opposing Municipal Electric Util Association 810727 Petition for NRC Review of ALAB-646.Petition Devoid of Merit on Due Process & Potential Competitor Issues. Certificate of Svc Encl ML20010C2531981-08-11011 August 1981 Answer Opposing AL Power Co 810727 Petition for Review. Commission Review of ALAB-646 Should Be Limited to Issues Raised in Municipal Electric Util Association Petition for Review.Certificate of Svc Encl ML20010B3411981-08-11011 August 1981 Answer Opposing Municipal Electric Util Association of AL (Meua) Petition for Review of ALAB-646.MEUA Not Entitled to third-level Review by Commission Where Aslab Decided Factual Matters Consistent W/Aslb Findings.W/Certificate of Svc ML20010B3371981-08-11011 August 1981 Answer Opposing AL Power Co Petition for Review of ALAB-646. Util Not Entitled to third-level Review by Commission Where Aslab Decided Factual Matters Consistent W/Aslb Findings. Certificate of Svc Encl ML20010B2861981-08-0606 August 1981 Answer Opposing Util 810722 Application for Order Staying Pendente Lite Effectiveness of Antitrust Conditions. Applicant Failed to Meet Heavy Burden in Establishing Right to Stay.Certificate of Svc Encl ML20009H2331981-08-0303 August 1981 Answer Opposing Municipal Electric Util Association of AL Petition to Review ALAB-646.Petition Devoid of Allegations Meriting Plenary Review.Certificate of Svc Encl ML20009H0431981-07-31031 July 1981 Answer Opposing Util Petition for Review.Petition Devoid of Allegations Meriting Full Consideration by Commission. Matters Raised Are Factual Arguments Considered & Rejected by Two Tribunals.Certificate of Svc Encl ML20009H0041981-07-30030 July 1981 Answer Opposing Util 810722 Application for Stay Pendente Lite.Util Failed to Show Irreparable Injury or Likelihood of Prevailing on Merits of Appeal.Municipal Electric Util Association of AL Would Be Injured by Stay ML20009H0851981-07-30030 July 1981 Response Opposing Util Stay Application.Util Has No Justification to Put Off Long Avoided Compliance W/Antitrust Laws.Granting Stay Would Reward Util for Misconduct & Allow Continued Illegality.Certificate of Svc Encl ML20009H0771981-07-27027 July 1981 Request for Oral Argument Before Commission in Acting on Petition for Review of ALAB-646.Certificate of Svc Encl ML20009H0721981-07-27027 July 1981 Petition for Review of ALAB-646.Commission Review Would Establish Definitive Stds Where Commission Has Not Spoken & Is Necessary to Correct Deficiencies in Alab Adjudication ML20009E5471981-07-22022 July 1981 Request for Oral Argument Before Commission Re ALAB-646. Certificate of Svc Encl ML20009E5181981-07-22022 July 1981 Application for Order Staying Pendente Lite Effectiveness of Antitrust conditions.ALAB-646 Is Fundamentally Flawed & Should Be Reversed ML20009B2741981-07-14014 July 1981 Answer in Opposition to AL Power Co Motion for Extension of Time Limit for Filing Petition for Commission Review of Aslab 810630 Decision.Certificate of Svc Encl ML20009B2141981-07-13013 July 1981 Answer in Opposition to Applicant Motion for Extension of Time Limit for Filing Application for Stay of Aslab 810630 Decision (ALAB-646) & for Review of Antitrust Decision. Certificate of Svc Encl ML20009B2231981-07-13013 July 1981 Answer in Opposition to AL Power Cooperative,Inc 810708 Motion for Extension of Time Limit for Filing Application for Stay of Aslab 810630 Decision.Util Has Given No Credible Excuse for Avoiding Requirements.Certificate of Svc Encl ML20009B2111981-07-0909 July 1981 Motion for Extension of Time Until 810919 for Filing Petition for Commission Review of Aslab 810630 Antitrust Decision.Due to Absence of Past Rulings,Applicant Must Speculate on Specific Issues to Review.W/Certificate of Svc ML20010B5871981-04-0202 April 1981 Amended Complaint of C Hunter Alleging const-type Injuries Per Civil Action CV-80-499,filed in Circuit Court of Houston County,Al ML19341D4611981-02-26026 February 1981 Response to ASLB 810212 Order Adopting Porter County Chapter Intervenors Contention 13 & Supporting Contention for Reasons Stated in Intervenors' Response.Unsigned Certificate of Svc Encl ML19332B3931980-09-23023 September 1980 Response in Support of NRC 800905 Motion for Issuance of Decision.Issues,If Resolved,Will Affect Future Power Supply & Development of Supply Planning.Injury May Occur If Delayed.Certificate of Svc Encl ML19291C2431980-01-21021 January 1980 Response to NRC 800102 Show Cause Order Re Lessons Learned Task Force Category a Requirements.Util Has Complied W/All Items Except Installation of Primary Coolant Saturation Meter & Pressurizer Safety Valve Position Indicators 1992-06-30
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1 BEFORE THE - ,
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NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C.
!O In the Matter of Docket Nos. 50-348A
- O 50-364A ALABAMA POWER COMPAh"I (Joseph M. Farley Nuclear Plant, Units 1 and 2) <a-
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OPPOSITION OF k;,. 8, , i 9
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MUNICIPAL ELECTRIC UTILITY ASSOCIATION -
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0F ALABAMA l
TO ALABAMA POWER COMPANY'S O
PETITION FOR REVIEW Martin Frederic Evans, Esq.
DEBEVOISE, PLIMPTON, LYONS & GATES O 299 Park Avenue New York, New York 10171 (212) 752-6LO0 and O David C. Hjelmfelt, Esq.
DAVID C. HJELMFELT, P.C.
634 South Mason St. Collins, Colorado 80524 (303) 493-1789 O
August 11, 1981 gog Attorneys for Municipal E Electric Utility Association of Alabama / [
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O BEFORE THE fajg I d l96l 3 NUCLEAR REGULATORY C0:011SSION WASHINGTON, D.C.
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__________ ________________________ NO,,s \ /
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O
- In the Matter of Docket Nos. 50-348A
- 50-364A ALABAMA POWER COMPANY (Joseph M. Farley Nuclear Plant, O Units 1 and 2) :
O OPPOSITION OF MUNICIPAL ELECTRIC UTILITY ASSOCIATION OF ALA9AMA TO ALABAMA P01ER COMPAtW'S PETITION FOR REVIEW O
The Municipal Electric Utility Association of Alabama ("MEUA") re.spectfully submits that the July 27, 1981 O
Petition for Review of ALAB-646 submitted by the Alabama Power Company ("APC") should be denied.
The APC Petition seeks review of the June 30, 1981 O
decision of the Atomic Safety and Licensing Review Board (the "ALAB") which imposed certain conditions upon the license granted to APC for the construction and operation of the Joseph M. Farley Nuclear Plant, UO.its 1 and 2 (the "Farley Plant"). 1
) l The ALAB found that granting APC an unconditional license with l O
(3 -
respect to the Farley Plant would create or maintain a O situation inconsistent with the antitrust laws within the meaning of Section 105c of the Atomic Energy Act, 42 U.S.C.
$2135(c). The APC Petition seeks review of numerous of the jO ALAB's factual and legal determinations; it fails, however, to demonstrate that any of its appeal issues satisfies any 4 of the criteria for review set forth in the Commission's
'O
- regulations. The APC Petition raises no important antitrust or public policy questiens or procedural issues and fails to assert that any factual finding below was clearly erroneous.
- O MEUA has also filed a Petition for Review (the "MEUA Petition") reque~ sting that the Commission reopen the remedial stage of these proceedings for consideration of the
-O impact of recent events materially affecting the competitive i
- 10.C.F.R. 52.786(b)(4) sets forth the criteria for
- O Commission review of an ALAB decision, in pertinent part, as follows:
"(4) The grant or deniul of a petition for review is within the discretion of the Commission, except that:
(1) A petition for review of matters MD of law or policy will not ordinarily be granted unless it appears the case involves an important matter that could significantly affect the environment, the public health and safety, or the common defense and security, constitutes an important antitrust question,
,O involves an important procedural issue , or otherwise raises important quescions of public policy; (ii) A petition for review of matters of fact will not be granted unless it appears that the Atomic Safety and Licensing Appeal O Board has resolved a factual issue necessary for decision in a clearly erroneous manner contrary to the resolution of that same issue by the Atomic Safety and Licensing Board;"
2 O
- O- -
,- structure of the retail electric power carket in Alabama.
O MEUA respectfully submits that the MEUA Petition, unlike the APC Petition, raises an issue which satisfies the Commission's i
criteria for review and that the Commission's review of the 13 'ALAB Decision should be limited to the issue raised in the MEUA Petition.
I" iO
- The APC Petition sets forth five general areas in which it alleges that the ALAB erred and asserts specific assign-
- O ments of alleged error within the general areas. The five general assignments of error in the APC Petition are that
10 1. the ALAB refused to limit the scope of review of APC's past conduct and considered activities of APC during the period 1941 to the present in reachir.g its determination that granting APC an unrestricted license with respect to the Farley Plant would create or maintain a
- O situation inconsistent with the antitrust laws;
- 2. the ALAB erred in defining the relevant product and geographic markets; 1 3. the ALAB erred in concluding that APC O has monopoly power in the relevant markets;
- 4. the ALAB ignored the fact that APC is a regulated utility in reaching its conclusion regarding APC's monopoly power; and jD 5. the ALAB erred in failing to make adequate
- findings that the conditions imposed upon APC's license with respect to the Farley Plant are nec-essary to protect the public interest and in basing such conditions upon inadequate findings of lia-bility on the part of APC.
O 3
4 VO
U -
When viewed in the light of the restrictive stand-O grd for Cc= mission review and the extensive consideration of these issues by the ALAB, these assignments of error should be seen as ordinary attempts for reconsideration of issues O already properly and conclusively decided against APC, and the APC Petition accordingly should be denied.
In the face of the extensive record on which the
- O ALAB Decision was based, it cannot be disputed that APC enjoys monopoly power in the various markets in which it operates. Even APC concedes that it is a " natural monopoly".
13 (APC Petition at 61) Thus, it is irrelevant whether the ALAB limited its examination and findings to the present market context, as APC contends it should have, or considered APC's O vell documented history of exclusionary and anti-competitive activities over the last 40 years. The conclusion of the ALAB that APC has monopoly power in the relevant markets today is O plainly correct and amply supported by the record herein (ALAB Dec. at 74-85), and the exclusionary practices whtch justify the license limitations--e.g. , APC's refusal to O
offer shared ownership of the Farley Plant--represent cur-rent, ongoing anticompetitive acts. (ALAB Dec. at 86-111.)
Moreover, the ALAB's findings with regard to the relevant
- O product and geographic markets are fully supported by the record and are not clearly erroneous. (ALAB Dec. at 30-73.)
O 4
~O
-O
- The ALAB also gave full consideration below to -
O APC's contention that the various state and federal regulations to which it is subj ect preclude a finding of liability and properly rej ected that argument. (ALAB Dec. at 14-21.)
0 -With respect to the remedial portion of the ALAB Decision, MEUA agrees with APC that certain aspects of the remedial proceedings should be reviewed--but not for the reasons O set forth in the APC Petition. MEUA submits that the ALAB had a more than adequate basis for finding liability on the part of APC and with one exception--i.e., the improper exclusion O
of MEUA from the remedial proceedings--fully and properly con-sidered all the relevant and necessary facts then in the record bearing upon the conditions to be imposed upon APC's license
'O for the Farley Plant. The ALAB properly found that the con-ditions it imposed are required "as a minimum" to achieve the purposes of the Atomic Energy Act.* (ALAB Dec. at 145-63.)
'O In short, the APC Petition does not raise any important antitrust questions or public policy issues, does not assert that any factual findings below were clearly er-lD -
roneous, and does not put forward any other valid basis for Commission review of APC's purported assignments of error.
The only ground APC asserts for Commission review here is that the Commission has never before reviewed an ALAB decision
- The sole error of excluding MEUA from the remedial stage does not, of course, afford APC a basis for seeking review
- O by the Commission.
i 5
!O
,gi regarding the antitrust implications of licensing actions.
- O (APC Petition at 9-10.) This ground is adequate in that absence of an issue that falls within one of the criteria set forth in the regulaticas. Accordingly, the APC Petition should be denied.
O II.
MEUA submits, however, that the remedial portion of lo the proceedings below should be reopened for the limited and exclusiv'e purpose of considering recent developments which
- O could not have been considered either by the Licensing Board or by the ALAB and which materially alter the competitive structure of the relevant wholesale electric power market 9D as determined by the ALAB. More specifically, as set forth in the MEUA Petition, an Alabama Municipal Electric Authority .
(the " Authority") is currently being established pursuant 13 to an Act passed by the Alabama legislature on May 18, 1981.
The Authority will enable municipal electric systems (i.e.,
MEUA's members) to engage in the wholesale electric power market lO~ through the acquisition, funding and operation of generation facilities. Thus, it is clear that MEUA and its members are now potential competitors in the wholesale market (contrary to 13 findings of the ALAB) and face from APC precisely the sort I of exclusionary, monopolistic practices which can only be recedied by mandatory ownership access to the Farley Plant ,
O such as was granted to the Alabama Electric Cooperative'("AEC")
4 4- 6
- O
.O .
tr the ALAB Decision. MEUA submits that the effect of creation O of the Authority on the wholesale market " constitutes an imper-tant antitrust question" and also " raises important questions of public policy" within the meaning of 10 C.F.R. 52. 786 (b) (4) (1)
O which the ALAB did not have the opportunity to consider.
Moreover, the creation of the Authority renders the ALAB's finding that MEUA and its members are not potential O
entrants into the wholesale market " clearly erroneous" even if this finding may have been correct (which it was not) based
'O UPon the record available to the ALAB at the time of its decision.* 10. C.F.R. 52. 786 (b) (4) (ii) .
Given the fact that the Authority, and through it O MEUA and its members, are now patcntial entrants into the whole-sale electric power market, a failure to reopen the remedial stage of these proceedings would fundamentally subvert the very O purpose of the 1970 amendments to the Atomic Energy Act which imposed upon the Commission the responsibility to consider the antitrust implications of its licensing decisions and to shape
'O its licensing actions to promote the purposes of the antitrust
- Furthermore, the second ground for MEUA's Petition for Review--
o that MEUA was denied its due process right to participate in the remedial proceedings before the Licensing Board -
" involves an important procedural issue" which the Commission should review. 10 C.F.R. 2. 786 (b) (4) (i) .
O 7
O
l lO '
l laws. The ALAB discussed the purposes of the 1970 amend-
.: 0 ments in the Midland decision, CCH Nuclear Reg. Rep., 1975-78 Tr. Brinder, 130, 263, as follows:
"As the Commission has reiterated, the Atomic
,O Energy Act's antitrust provisions reflect 'a basic Congressional concern over access to power.
produced by nuclear facilities' and represent legislative recognition 'that the nuclear industry originated as a Government monopoly and is in great O measure the product of public funds [which] should not be permitted to develop into a private monopoly via the [NRC] licensing process. . . .'" Id. at p. 28,360.
1 To ignore the creation of the Authority and to refuse
'O to reopen the remedial stage of these proceedings and permit 4 consideration of the effect of this recent material change in the wholesale power market would be a complete abdication of O
the Commiss_on's duties under the 1970 amendments. The in-evitable result of such an abdication by the Commission would
) be to sanction officially the continuation of APC's admitted-iO monopoly power through the sole access to nuclear power to the detriment of the Authority, MEUA and its members, and the l public at large--i.e., those whom the antitrust laws (and the HD .
Atomic Energy Act) are specifically designed to protect. It j cannot be disputed, therefore, that the creation of the Auth-ority raises both important antitrust questions and important
,'O public policy issues which the Licensing Board and the ALAB
, had no opportunity to consider and which the Commission is 4
mandated to take into account in its licensing decisions.
10 Thus, the only issues which satisfy the Commission's standards O
1 1
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!o -
for granting review of an'ALAB Decision are those raised.by iO the MEUA Petition regarding the access of MEUA and its' members, through the newly created Authority, to tiie wholesale electric '
i power market by means of an ownership interest in the Farley lO Plant similar to that granted to AEC.
i CONCLUSION
- O Accordingly, for the reasons set forth above, MEUA respectfully submits that the Commission's review of ch'e ALAB Decision should be limited to those issues raised by O the MEUA Petition and that, to the extent the APC Petition
! seeks to raise other issues, the APC Petition should be denied.
i
'0 3
Dated: New York, New York Respectfully submitted,
~
August 11, 1981 DEBEVOISE,PLIMi) TON,.LYONS Of Counsel: ,
James A. Reaves l
Martin FrederlT Evans Nicole A. Gordon 299 Park Avenue New York, New York 10171 jO (212) 752-6400 and 1
DAVID C. HJELMFELT, P.C.
634 South Mason
. Ft. Collins, Colorado 80524
.O (303) (493-1789)
Attorneys for Municipal Electric Utility Association of Alabama l0
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- O
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l CERTIFICATE OF SERVICE
' I I certify that I have this date duly served by O mail, postage prepaid, the foregoing Opposition of the Mun-icipal Electric Utility Association of Alabama to the A'.a-bama Power Company's Petition for Review upon the attorneys
- O for all parties to this proceeding at the addresses set forth below, t
Nuclear Regulatory Commission: Terrence H. Benbow, Esq.
h3 Mr. Nunzio J. Palladino, Chairman Winthrop, Stimson, Putnam Nuclear Regulatory Commission & Roberts 1717 H Street, N.W. 40 Wall Street Washington, D.C. 20555 New York, New York 10005 S. Eason Balch, Sr., Esq. Joseph Rutberg, Esq.
O Balch, Bingham, Baker, Hawthorne Staff Counsel ;
Williams & Ward Nuclear Regulatory Commission 600 North 18th Street 1717 H. Street Northwest P.O. Box 306 Washington, D.C. '20530 Birmingham, Alabama 35201 John D. Whitler, Esq.
50 D. Baird MacGuineas, Esq. Department of Justice Volpe, Bosky and Lyons Antitrust Division
, World Center Buildings Tenth and Constitution 918 16th Street Northwest Streets Northwest Washington, D.C. 20006 Washington, D.C. 20530 O
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T James A. Reaves August 11, 1981 1
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