ML20090F504
| ML20090F504 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 03/09/1992 |
| From: | Boskey B, Klein M, Macguineas D, Mcguineas D ALABAMA ELECTRIC COOPERATIVE, INC., VOLPE, BOSKEY & LYONS |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#192-12677 91-644-01-A, 91-644-1-A, A, NUDOCS 9203110073 | |
| Download: ML20090F504 (30) | |
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/2 6H (0thlito USNRC UNITED STATES OF AMERICA T2 MR 10 A10:20 NUCLEAR REGULATORY COMMISSION l
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ')) 4 1 y, w.
l In the Matter of ) ;
)
, OHIO EDISON COMPANY ) j
) i (Perry Nuclear Power Plant, ) i Unit 1) )
and ) Docket Nos. 50-346A
) 50-440A THE CLEVELAND ELECTRIC )
ILLUMINATING COMPANY )
THE TOLEDO EDISON COMPANY )
)
(Perry Nuclear Power Plant, ) (Applications for Unit 1, and Davis-Besse ) Suspension of Nuclear Power Station, ) Antitrust Conditions):
Unit 1) ) ASLBP No. 91-644-01-A ALABAMA ELECTRIC COOPERATIVE'S COMBINED CROSS-MOTION FOR
SUMMARY
DISPOSITION AND '
RESPONSE TO APPLICANTS' MOTION FOR
SUMMARY
DISPOSITION D. Biard MacGuineas Bonnett Boskey Morris Klein Volpe, Boskey and Lyons 918 16th Street, N.W.
Suite 602 Washington, DC 20006 Telephone: (202) 737-6580 March 9, 1992 Attorneys for Alabama Electric Cooperative, Inc.
j{fl[$$h o 6 M
TABLE OF CONTENTS Ea92
- 1. INTRODUCTION............................... 1
, II. ARGUMENT................................... 4
- 1. It is Far Too Late In The Day For Applicants To Be Resurrecting Discredited Contentions As To What k Constitutes A Situation Inconsistent
/ With The Antitrust Laws............... 5
- 2. Both The Language Of The Atomic Energy Act And Its Judicial Interpretation Negate Applicants' Contention............................ 7
- 3. The Legislative History Of Section 105(c) Affords Applicants No Comfort............................... 12
- 4. The Applicants' Equal Protection Argument 19 Frivolous................. 44 CONCLUSION...................................... 20 o
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1
TABLE OF AUTil0RITIES PacefB1 ChEES8
. Al abama Power Cqi v . N . R . C . , 692 F.2d 1362 (lith Cir. 1982), cert, denied, 464 U.S. 816 (1983).......................................... passim Astoria_F.S.& I,. Assn. v. So11mino, 501 U.S. , 111 S.Ct. 2166, 115 L.Ed 2d 96 (1991).......................................... 6 Bolling v. Sharne, 347.U.S. 497 (1954).......... 18 Chastleton Corp. v. Sinclair, 264.U.S. 543 (1924).......................................... 19 Colorajio__ Radio Corp. v. Federal CommqD.islations Com'n, 73 App D.C. 225, 118 F.2d 24 (1941)...... 7 Eigtrict of Columbia v. Carter, 409 U.S. 418 (1973).......................................... 18 East New York Savinas Bank v. HahD, 326 U.S. 230 (1945)............................. 20 Hodel v. Jndiana, 452 U.S. 314 (1981)........... 18 San Francisco Arts L Athletics v. U.S.O.C.,
483 U.S. 522-(1987).............................- 18 Egnshine Anthracite Coal Co. v. Adkins, 310 U.S. 381-(1940)............................. 17 Vallev Telecastino Co. v. F.C.C., 336 P.2d 914 (D.C. Cir. 1964)................................ 7 Washincton v. Davis, 426 U.S. 229-(1976)........ 18
-_- ._-.- - . .. _ - . _ . - _ _ . - . - . - . - _ . - . . . - _ - - - . _ . - - . ~ ~ .
Pace (s) .
ADMINISTRATIVE DECISIONS: 1 Alabama Power Co., ALAB-182, 7 AEC 210 (1974),
affirmed in portinent part, CLI-74-12,
, 7 AEC 203....................................... 5, 6 Alabama Power Co., ALAB-646, 13 NRC 1027 (1981).......................................... 15, 16 Houston Lichtino & Power Co. ,
(South Texas), CL1-77-13, 5 NRC 1303 (1977)..... 6 Tsiledo Ediscn, ALAB-560, 10 NRC 265 (1979)...... 3, 11 3 Toledo Edison, LBP-77-1, 5 NRC 133 (1977)....... 11 CONSTITUTION:
U.S. Const. article I, 510, cl. 1............... 20 U.S. Const. amend. V............................ 18 ,
U.S. Const. amend. XIV.......................... 17, 10 STATUTORY MATERIALS:
Atomic Energy Act (AEA), 42 U.S.C. 2135......... passim REGULATIONS:
56 Fed. Reg. 20057 (May 1, 1991)................. 1 ;
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b.
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)
EAaels)
LEGISLATIVE MATERIALS:
116 Cong. Rec. 39619 [S19253 daily od.)
(Dec. 2, 1970)............................ ..... 14 Report by the Joint Comm$.ttee on Atomic Energy, II.R. No. 91-1470, 91st Congress, 2na. Session (1970), Amendina the Atomic Enerov Act of 1954. As Amc.nded, to Eliminate the Recuirement for a Findina of Practical Value, to_ Provide for Proliconqing ,
Antitrust Review of_Ergduction_.and Utilization Facilities, aD.d_to Effectua.te Certain Othnr Purposes Portainina to Nuclear Facilities....... passim Erplicensina Antit ist Review of Nuclear Powerplant.g, Hearinos Before the Joint c
C_cmmittee on Atomic Enerav. Part 1, 91st Cong., 1st Sess. (1970).................... passim ,
- 111 -
rsi-n i
UNITED STATES OF AMERICA NUCLtAR REGULATORY COMMISSION P&[ ORC TilG_ ATOMIC,jlFETY AND LICENQU43 BOARD In the Matter of )
) ,
OllIO EDISON COMPANY )
) '
(Perry Nucioar "ower Plant, )
Unit 1) )
and ) Docket Nos. 50-346A
) 50-440A THE CLEVELAND CLECTRIC )
ILLUMINATING COMPANY )
THE TOLEDO EDISON COMPANY )
)
(Perry Nuclear _ Power Plant, ) (Applications for Unit 1, and Davis Busse ) Suspension of Nuclear Power Station, ) Antitrust Conditions):
Unit 1) ) ASLBP No. 91-644-01-A ALABAMA ELEC"'RIC COOPERATIVE' S COMBINED CROSS-MOTION FOR
SUMMARY
DISPOSITION AND RESPOt[EEE_fiff_LICANTg' MOTION FOR SUMBARY D.1SPOSITION I. INTRODUCTION Alabama Electric Cooperative, Inc. (AEC), a limited intervenor in this proceeding, requests this Atomic Safety And Licensing Board (Board) (1) to deny Applicants' Motion as ..escribed below, (2) to deny Applicants' request for any further hearing regarding Applicants' requested removal of their antitrust licensing conditions, and (3) to affirm the Director's denial (56 Fed. Reg. 20057, May 1, 1991) of Applicants'-applications-to. amend their operating licenses by_ removing the antitrust license conditions therefrom.
The procedural history and background leading up to Applicants' Motion and the responsen thereto by AEC and others may be found in (1) the NRC Staff evaluation of Applicants' request to have their antitrust license 3
conditions removed (soo Director's letter to Applicants and attachment (April 24, 1991)); and (2) the Licencing Board's Prehearitig Conf erence order, LBP-91-38, 34 NBC 229 (October _
7, 1991).1/
Applicants' effort to now remove the antitrust Itcunse conditions to which they must presently adhere is bott.omed on the singular proposition that if they deraonstrate that the power from their nuclear facilities is now mare coatly '
than power from alternative sources, t. hen the Ccnunisulen automatically loses antitrust jurisdiction over Applicants with the result that the Commission must remove the antitrust conditions from Applicants' licenses.E/
1/That Order permitted AEC to intervene for purpones ct presenting legal argument in response to Applicants' contentions. 34 NRC at 243-251. That is the purpose of this submission, s
2/ Those conditions restrain Applicants from using their monopoly power with respect to wholesale power and coor-dination services to condition resales, from restricting competition or the pursuit of legal rights by small
, competitors; and they compel Applicants to offer inter-connections and wheeling; of fer memoership in the regic:.a1 system pool; to sell various cpecific forms of energy on a non-discriminatory basis; to engage in non-discriminatory reserve sharing; and also, to offer access -- including 2
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__ __________________9
Applicants contend t. hat "the Commission (is) without authority as a matt 9r of law under Section 105 of the Atomic Energy Act to retain antitrust license conditions contained in an operating license if it finds that the actual cost of electricity from the licensed nuclear power plent is higher than the cost of elect.ricity Irom alterna-tive sources, all as appropriately measured and compared."l/
As Applicants express it in their Motion, their nuclear " facility costs are determinative of the NRC's authority to impose antitrust license conditions."S/
Applicants argue that the legislat've history of the antJtrust amendments to the Atomic Energy Act a nd Cortuni u -
sion precedent establish that there is a " truism . . . a t.
the heart of Section 105(c) (of the Act, which) is a necessary predicate to the exercise of antitrust authority by the NRC," and that " truism" is that "a licensed facility must produce low-cost power in order for licensed activi-ties to ' create or maintain a situation inconsistent with ownership, at the small competitor's option -- to nuclear units. Toledo Edison, ALAB-560, 10 NRC 265 at 296-299 (1979).
2/ See Letter from R. Goldberg and C. Strother, Jr., Counsel
. for the City of Cleveland, to Judges Miller, Bechhoefer, and Bollwerk setting forth the parties' stipulated issue (Nov. 7, 1991).
S/Applicants' Motion at. 11.
A
the antitrust laws'."l/ Also, according to App 11canta, if the statute is not read to require such a finding, then it denies them equal protection under the law.
There is no merit to Applicants' contentions. As we show below, (1) Applicants are raising this argument more than a decade too late; (2) in any event Section 105(c) of the Act cannot rationally bear the burden of the imagina- _
tive -- but unsupported -- gloss which Applicants attempt to thrust upon it; and (3) Applicants' equal protection argument is frivolous. _ _
-II. ARGUMENT Aside from the lack of merit to Applicants' belatedly raised contention, it should not be entertained by the Commission _at this late date. Both the relevant statutory language and the judicial interpretation thereof negate the Applicants' contention. The legislative history of the Atomic Energy Act offers no support to Applicants.
Applicants equal protection argument, which is premised on a misreading of the statute, is wholly without merit.
E/Id. at 16.
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- 1. It Is Far Too Late In The Day For Applicants To Be Resurrecting Discredited Contentions As To What Constitutes A Situation Inconsistent With The Antitrust Laws Applicants contend that as 6 matter of law the NRC is without jurisdiction to impose or continue antitrust license conditions unless NRC evidentiarily establishes that the Applicants' nuclear facility produces lower cost electricity than do alternative sources. Principles of fundamental fairness and adjudicatory finality require Applicants to have raised such a basic argument at the time of their antitrust review which took place in the mid-1970's. Applicants should not be permitted to sit back for years after losing their long and arduous litigation and hold secret this radical contention as to the legal interpretation of the Atomic Energy Act until this late date. While Applicants' contention is devoid of merit, it is also evident it should not be_ entertained by the Commission at this late date.
It is simply too late =by any reasonable standard to be raising claims as to alleged fundamental limitations on what constitutes a situation inconsistent with the anti-trust laws. Principles of res iudicata and collateral
.- estoppel are applicable here and_they foreclose Applicants' efforts to narrow the Commission's scope of review under its antitrust jurisdiction. hjabamq Power Co., AI.AB- 18 2, 7.
5 L., : .. .
i AEC 210 (1974), affirmed in pertinent part, CLI-74-12, 7-AEC 203. See also Astoria F.S_,1 L. Assn. v. So11mino, 501 U.S. , 111 S.Ct. 2166, 2169-2170, 115 L.Ed 2d 96, 104-105 (1991).
The contention belatedly raised by Applicants goes equally to the Commission's authority to impose its original antitrust license conditions as to the asserted need to suspend them. Hence, this is not a case where circumstances were so far removed from present ccnditions as to make Jational any soft-peddling of the argument by Applicants during their original antitrust review.
Applicants, no more than intervenors, should not be pormitted to stand on the sidelines and then later press a claim whica earily could have been raised years ago in the antitrust review. Not only do principles of finality and issue preclusion prohibit Applicants' effort to rebite the apple -- so does the special and particular emphasis in
, Section 105(c) on a one-step antitrust review. Houston Lichtina & Power Co. (South Texas), CLI-77-13, 5 NRC 1303 (1977). " Orderliness, expedition, and finality in the
[ administrative) adjudicating process are appropriate weights in the scale as reflecting a public policy which 6
has authentic claims of its own." Valley Telecastina Co.
- v. F.C.C., 336 F.2d 914, 917 (D.C. Cir. 1964).E/
- 7. Both The Language Of The Atomic Energy Act And Its Judicis' Inter-pretation Necate Applicantu' Content m.
The pertinent statutory language is found in those
- portions of Section 105(c) of the Act (42 U.S.C.
S213S(c)(5) and (6)) which read: -
(5) Promptly upon receipt of the Attorney General's advice, the Commission shall publish the advice in the Federal Register. Where the ,
Attorney General advises that there may be aaverse antitrust aspects and recommends that there be a hearing, the Attorney General or his designee may participate as a party in the proceedings thereafter held by the commission on such licensing matter in connection wit'. the subject matter of his advice. The Commission shall give due consideration to the advice receis'3 from the Attorney General and to such evidence as may be provided during the proceed-ings in connection with such subject matter, and shall make a finding as to whether the activities under the license would create or maintain a situation inconsistent with the antitrust laws as specified in subsection (a) of this section. -
(6) -In the event the Commission's finding under paragraph (S) is in the affirmative, the Commission shall also consider, in determining 5/What was quoted by the Court in Vallev Telecastino in the context of factual claims is even more applicable here.
. "Certainly '[w]e cannot allow the appellant to sit back and .
hope that a decision will be in its favor, and then, when it isn't, to parry with an offer of more evidence. No
, judging process in any branch of government could operate efficiently-or accurately if such a procedure were al-lowed.' Colorado Radio Corp. v. Federal Communications Com'n, 73 App.D.C. 225, 227, 118 F.2d 24, 26 (1941)."
yallev Telecastina, 336 F.2d at 917.
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whether the license should be issued or con-tinued, such other factors, including the need for power in the affected area, as the commission in its judgment deems _necessary to protect the public interest. On the basis of its findings, the Commission shall have the authority to issue or continue a license as applied for, to refuse
- to issue a licenso, to rescind a license or amend it, and to issue a license with such conditions as it deems appropriate.
The " express lang7 4' of the statute" offers no support to Applicants' claim that the economics of power from their nuclear facilities must be determined in order to make an affirmative Section 105(c)(5) finding.2/ The Eleventh Circuit in Alabama Powqr emphasized that the " statute clearly calls for a broad inquiry and commun sense does not allow interpretations to the contrary."E/ Based on the clear meaning of the statute, the Court rejected Alabama Power's contention that a proper NRC antitrust review focused narrowly on the nuclear plant, and the Court dismissed Alabama-Power's claim that "the NRC overstepped its authority in looking past the direct effects of the nuclear plant on the present or prospective competitive situation . . . . "E/ The contention as articulated by
. 2/ Alabama Power Co. v. N.R.C., 692 F.2d 1362'at 1367 (11th Cir. 1982) cert, denied, 464 U.S. 816_(1983). 'This is the only judicial review of an NRC antitrust review.
E/Id. o* 1368.
E/1.L. a t 1367.
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_ Alabama Power Company, which the Court rejected on the basis of the language of the statute, was "Ccagress undoubtedly _ intended for NRC to assess r,olely the impact of the economics of power from the nuclear facility upon the power generation cost situation existing at the time the license was granted and that would exist thereafter."1E/
Applicants' effort here to resurrect this same long-discredited and judicially-interred contention should be ,
dismissed as firmly by this Board as the original articula-
-tion of this cor.tention was rejected in-Alabama Power by the Court of Appeals.
The_ Eleventh Circuit firmly rejected Alabama Power's effort to keep the NRC's antitrust review shackled by a myopic focus on the economics of power from the nuclear facility. The Court went even further and also strongly emphasized the broad delegated discretion inherent in the statutory mandate to the Commission to conduct antitrust reviews. 692 F.2d at-1368-1370. The Court recognized-that the Congress had directed the Commission to look to potential, as well as actual, anticompetitive situations dnd to Condition licenses in situations "which would not if IS/ Brief of Petitioner-Alabama Power Ccmpany in Alabama Power Co. v. N.R.C , supra, at 38. .This rejected conten-tion was reiterated in Alabama Power Company's Reply Brief'
-in the Eleventh Circuit at 7-9.
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left to fruition, in fact violate any antitrust law." Id 2 at 1368. Plainly, the possibility of evolving and changing economic realities was contemplated by Congress, which had determined that for NRC antitrust review purposes "a traditional antitrust enforcement scheme is not envisioned, and a wider one is put in its place." Id. In affirming the license conditions in the Alabama Power case, the Court _
concluded that they "are specifically fashioned to address the anticompetitive situation which could ariye from an
! unconditional license gront." (Emphasis added.) Id. at 1367. The Court readily accepted that an ownership access condition is "indeed extreme," but recognized that Congress had conferred on the NRC " wide powers." Id. at 1369-1370.
Applicants' claim here for the need for periodic reviews of the economics of its power production facilities is wholly contradicted by the scope and breadth of the Commission's antitrust reviews as required by Section 105(c) and as affirmed by the Court. ,
Had Congress desired the comparative economics of power from nuclear facilities at any point in time to be the decisive issue in antitrust reviews, it could have clearly and simply articulated that requirement. It did not do so. It chose instead not to hem in the specific 10
applications of antitrust policies by the Commission as assisted by the Department of Justice.
For instance, had Congress considered -- as Applicants contend it did -- the comparative economics of power from Applicants' facilities to be of unique and determinative ,
importance (as opposed to one of a myriad of factors to be reviewed), Congress presumably would have directed that such information be the core subject of the Attorney General's initial review and advice.ll/ It did not do this. Rather, Congress broadly mandated that the Attorney General make a discretionary determination as to what information was to be appropriate for review and advice.
42 U.S.C. S2135(c)(4). The antitrust amendments to the Act 11/An implicit, but fundamental, error permeating Appli-cants' arguments is the mistaken assumption that the linchpin of antitrust considerations is cheap inputs.
Rather it is the availability of options and choices that drives.the antitrust policies. "The policies underlying the antitrust laws require the freedom to choose between alternatives even, at-the expense of choosino the-less desirable alternative." Toledo Edison, LBP-77-1,-5 NRC 133 at 249 n. 164 (1977). It is no accident _that the Davis-Besse/ Perry license-conditions are couched in' terms of making available access to nuclear facilities and that ownership is "at the optica" of the smaller competitor.
ALAB-560, 10 NRC 265 at 298-299 (1979). At the time of the 1970 Amendments, nuclear power had_become a new major generation option which Congress determined should not be
, denied to competitors through anticompetitive market structures and conduct. There.is no basis for contending, as Applicants do, that Congress desired nuclear powered generation to be doled out on the basis of NRC. comparative cost analyses.
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are silent as to the very factor which Applicants argue is at the heart of those provisions. Applicants' belated contention is plainly lacking in any support from the statute and, in fact, already has been judicially rejected.
- 3. _The Legislative History of Section 105fc) Afferds Applicants No Comfort In this dispute resort to the legislative history of Section 105(c) should be unnecessary. The language of the statute and the clear rejection of Applicants' theory by the Court of Appeals should properly end the-matter.
However, since Applicants rest the basis of their case on highly selected quotations of witnesses before the Joint Committee on Atomic Energy, some brief discussion of the legislative history is warranted to counter Applicants' misuse of it.12/
The "best source of legislative history is the Joird Committee . . . Reoort."Al/ There the authors of the 1970 12/Applicants also offer very misguided glosses on a number of NRC decisions._ AppJicants' Motion at 47-75. To avoid redundancy, we adopt the discussions of the NRC Staff and the Department of Justico regarding these NRC decisiot.s.
M/ Alabama Power,. supra, 692 F.2d at 1368, referring to
.Amendino the Atomic Eperov Act_of 1954, As Amended, to Eliminate the Recuirement for a Finding.of Practical-Value 1 to Provide for Prelicensino Antitrust Review of Production
, and Utill:ation Facilities, -and to Ef f ectuate Certain Other Purposes Pertainino to Nuclear Facilities, Report by the Joint Committee on Atomic Energy, H.R. No. 91-1470, 91st Congress, 2nd Session (1970).
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legislation certainly did not intimate any intention to fix the Section-105(c)(5) standard to any particular finding such as the economics of power from the nuclear facility.
Rather, the Report makes clear that the Commission is to make judgments based on the factual record as to probable future inconsistencies with antitrust law and even underly-ing policies.Al/ This is an invitation to the Commission _
to exercise discretion and judgment on a broad canvas --
not a directive to make a cost-of-power analysis.
Applicants' highly selective reliance on excerpts of testimony in the voluminous Joint Committee hearings is of no moment where, as here, the statutory language and the Court's decision affirming the broad scope of the Commis-sion's antitrust review thoroughly negate Applicants' peculiar thesis. The testimony of legislative witnesses is particularly unpersuasive in the instance of the 1970 antitrust amendments. The Manager of the bill on the Senate floor went out of his-way to emphasiza that the final bill, which became law, was the compromise product of the Joint Committee and did "not represent the position, 11/Joint Committee Report at 14.
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the preference, or the input of any of the special pleaders inside or outside of the government."1E/
Thus, while the legislative testimony offers, at best, evidence of the concerns brought to the attention of the Joint Committee, it alsc indicates a range of concerns, and s was clearly not solely limited to the economics of power produced by nuclear facilities. Applicants' imaginative _
effort to convert the Commission's antitrust review authority to a comparative cost exercise is simply without any rational support in the legislative history.
- 4. The Applicants' Equal Protection Aroument is Frivolous Applicants go so far as to argue that the economics of power from nuclear units is the only rational Congressional basis for NRC antitrust reviews, and unless a unit subject to such review is shown to produce cheap power, then owners of nuclear units are unconstitutionally discriminated .
1E/ Statement of Senator Pastore, 116 Cong. Rec. 39619
[S19253 daily ed.) (December 2, 1970). It is also evident that witnesses before the Joint Committee -- in particular NRC and Department of Justice witnesses -- expressed concern with a broad array of anticompetitive concerns, such as undue economic concentration, arrangements which suppress competition, the extension of existing monopoly power, exclusions from regional power pools, contracts restricting competition and access to transmission, --
, concerns which became a major subject of inquiry as the NRC artitrust reviews were undertaken. Prelicensina Antitrust Review of Nuclear Power Plants: Hearinas Before the Joint Committee on Atomic Eneroy, 91st Cong., 1st Sess., Pt. 1 at 8, 9, 11, 73, 121 and 128 (1969).
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against vis a vis other electric power producers. This argument is frivolous. It grossly misstates the legisla-tive concerns leading to the requirement of antitrust reviews.
The Court in Alabama Power articulated " Congress' basic policies toward the nuclear' power industry" as reflected in the NRC antitrust review provisions as _
follows:1E/
When the Atomic Energy Act was passed in 1954 it allowed private entry into the nuclear field for the first time. In the preceding years, scien-tific and technological nuclear know-how had been held exclusively by the government. This bank of information had been compiled over the years from research and development which had been financed by the American public. In turning this publicly held wealth of knowledge and scientific progress over to private enterprise, Congress felt that strict restraint should be included to prevent unfair advantage for tnose with the greatest resources. Those who had worked with the '
government were not to be the unbridled benefici-arles of the windfall head start they_would have when private parties were allowed into nuclear -
power production. The unique potential and critical dangers of this new resource justified tight control to ensure safety and prevent unfair monopolization.- See Adams, Atomic Enerov: The Conoressional Abandonment of Competition. 158 Colum.L.Rev. 55 (1955); Cosway, Antitrust Provisions of_the Atomic Enerov Act, 179 Vand.L.Rev. 12 (1958).
Congressional policy underlying the antitrust review
, requirements had been summarized in Alabama Power, 1E/ Alabama Power, supra, 692 F.2d at 1368-1369.
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ALAB-646, 13 NRC 1027, 1102-1103 (1981), where the Appeal Board stated:
One of the basic foundations on which the Atomic Energy Act rests is the principle of free competition in private enterprise. This princi-ple is manifested at the very outset of the Act by the policy declaration that the " development, use, and control of atomic energy shall be directed so as to ... strengthen free competition in private enterprise (footnote omitted)." This policy finds manitestation again in Section 105 of the Act. In that Section, the Congress made it clear that the national antitrust laws were to continue in full force and offect with respect to atomic energy matters. It did so by explicitly providing that "[n]othing contained in the Act shall relieve any person from the operation" of the antitrust laws (subsection 105a); and by following with a provision (subsection 105c) which calls for an antitrust review of every nuclear power plant prior to its construction.
Thus, through the mechanism of the antitrust laws, the Congress sought to protect free competition in private enterprise in the develop-ment and use of atomic energy. Nor did Congress stop with the protection afforded by the anti-trust laws. It significantly widened the area of potential Commission action by directing that the policies underlying the antitrust laws must be given effect as well. As a further measure of protection, the legislation was not limited to situations involving actual violations of the antitrust laws or the then-underlying policies.
Situations involving the reasonable probability of contravention of those laws and the policies clearly underlying them were also made subject to remedial action by the Commission.244 The remedial action the Congressional authors had in mind was that "except in an extraordinary situation, Commission-imposed
, 244 Report of the Joint Committee on Atomic Energy on S4141, S. Rep. No. 91-1247, 91st Cong.,
2d Sess., p. 14 (1970), discussed in Midland, sunra , 6 NRC at 926-27.
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conditions should be able to eliminate the concerns entailed in any affirmative finding under paragraph (5)."245 And as we emphasizuJ earlier (p. 1114, gupIn), this concept is consistent with settled tenets of antitrust practice as manifested by the actions of the courts and the federal agencies which deal with those laws: relief in an antitrust case must be effective to redress violations and to restore competition.246 245 S. Rep.-No. 91-1247 (see fn. 244) at p. 31.
In placing the responsibility on the Commission to fashion the appropriate remedy where the antitrust situation was found wanting, these same Congressional authors recognized that "there is not a clear boundary between antitrust considera-tions in relation to the strengthening of free competition in free enterprise and measures to accomplish such objective for reasons other than the antitrust laws or underlying antitrust policy." Rather than trying to legislate the boundaries of'the antitrust considerations, the Joint Committee left it to the Commissica to decide. In the Joint Committee's words: "the Commission will have-to exercise discretion and judgment." id2 at p. 15.
246 pavis-Besse, supra, 10 NRC at 292.
-The rational legislative purpose is clear. It is a much more broadly-based policy concern than Applicants would have this Board believe. Applicants' equal protection contention is, like their other arguments, fatally based on a falso characterization of legislative purpose and intent.
It is to be noted that the Equal Protection Clause, e
- being a part of the Fourteenth Amendment, is binding on the
, States but not on Congress. Sunshino Anthracite Coal-Co.
v.-Adkins, 310 U.S. 381, 400-401 (1940). We assume, accordingly, that Applicants must be referring only to such 17
. _. _ _ _ _ _ _ _ . _ _ . _ - _ .._ _ _ _ _ _ _ ... _ .. _ __ _ . _ . _ ._ ~
aspects of " equal. protection" principles as may be carried over by implication into the Due Process Clause of the Fifth Amendment. See Bollino v. Sharpe, 347 U.S. 497 (1954); District of Columbia v. Carter, 409 U.S. 418, 424 (1973); Washinoton v. Davis, 426 U.S. 229, 239 (1976); San Francisco Arts & Athletics v. U.S.O.C., 483 U.S. 522, 542 note 21 (1987). But in any event, even if the full measure ,
of the Equal Protection Clause wer- pplicable, Applicants' contention would be frivolous.
Section 105(c) as written by Congress clearly complies ,
with what would be the most rigorous of Equal Protection
-Clause standards as having a rational relationship uetween the classification established and a legitimate government objective. In cases challenging Acts of Congress, the Supreme Court has made it clear that " social and economic legislation is. valid unless 'the varying treatment of different groups or persons is so unrelated to the achieve-ment of'any combination of legitimate purposes that [a court] can only conclude that the legislature's actions were irrational'. This is a heavy burden . . . .
Hodel
. v. Indiana, 452-U.S. 314, 332-(1981). The legislative history of Section 105(c)_ demonstrates Congressional
?
concern for potential anticompetitive practices, and the requirements of that Section are-rationally related to the 18
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. _ . . . . .-- - _ . . - _ . - . - - - - - - - . . ~ - . _ . . - . - - - . . . -
prevention of such practices. Congress wbs aware that it was establishing a requirement on nuclear power plant applicants that would not be imposed on other utilities,
. and that requirement was a compromise of competing view-points.11/ Clearly, Congress was aware of the issues surrounding Section 105(c) and had a rational basis for enacting.the legislation that it did.
Applicants' argument, that " changed circumstances" have undermined the rationale for the law, is without merit. The Court in Chastleton Corp. v. Sinclair, 264 U.S. 543 (1924),1E/ invalidated a rent control statute explicitly based-on a specific exigency -- a " wartime emergency " On the other hand, the antitrust analysis j required by Section 195(c) is in not premised on such a l specific. factual situation. As demonstrated above, the actual existence of low priced nuclear energy,-is not a necessary precondition 'for the Section-105(c) antitrust
- ll/"[T]he committee is intensely aware that around the subject of prelicensing review and the provisions of subsection 105 c., hover opinions and emoulons ranging from one extreme to 'ttre other . . . .
point out that it [T]here'are those who is unreasonable and unwise to inflict on the construction or operation of nuclear power plants and
- the-AEC licensing process any antitrust review = mechanism that is not required in connection with other types of generating. facilities . . .
. favor, and the bill does not. satisfy, The Joint Committee does not-either extreme' view."
. Joint Committee ReDort, suora note 12, at 14.
1E/S ee Applicants'-Motion at 79. 1 19 l
-l l
inquiry. Moreover, the Supreme Court has sustained the validity of economic regulation even when " changed circum-stances" have occurred, making it clear that relief, i f any, lies with the legislature. In East New York Savinos Bank v. Hahn, 326 U.S. 230 (1945), the Court upheld a New York moratorium law restricting mortgage foreclosures, originally passed to mitigate the. harshness of the Depres-sion, even though the Depression had ended. The Court stated, "Merely to enumerate the elements that have to be considered shows that the place for determining their weight and their significance is the legislature and not the judiciary." 326 U.S. at 234.12/ similarly here, i f
, Applicants are dissatisfied with the broad scope of the antitrust provisions of the Atomic Energy Act, then they should address their plea to Congress -- where, one could reasonably expect, they would be likely to meet with a cool reception.
CONCLUSION All of Applicants' contentionu'are based on versions of the same defective premise -- that Congress intended the lE/The Court's analysis corcerned primarily whether a New York law violated the Contract Clause of the Constitution,
, Article I, S10, Clause 1.- This analysis is somewhat comparable:to the " rational _ basis" test under " equal protection" analysis.
20 e + ,,-.-1-.--y -,~w. -w- ,y,, w < -e.- , .-3-. . - - - - m+1 -e ~ .---m,- - m- _---e --, - - - - - - --v--- - - * -
NRC antitrust reviews to be contingent upon findings as to the economics of power from the subject nuclear facility.
As has been amply demonstrated above, that is a false assumption as to the meaning and purposes of the antitrust provisions of the Atomic Energy Act. For the reasons we have summarized, as well as those being advanced by other b parties opposed to Applicants' position, Applicants' effort _
to be excused from continued compliance with their NRC antitrust license conditions should be rejected as un-g founded in law. In addition, Applicants' request for further hearing should be denied, and the Direct.or's denial of Applicants' request for suspension of its license conditions should be affirmed.
Respectfully submitted,
[ ,
(,j & !$/0? N D BiardMacGugeas Bennett Boskey
<. - Er b6 '
Morris Klein Volpe, Boskey and Lyons 918 16th Street, N.W.
Suite 602 Washington, DC 20006 Telephone: (202) 737-6580
, March 9, 1992 Attorneys for Alabama Electric Cooperative, Inc.
21
.. ._ ~._ .. -. --- _ - . - . - . = _ . ~ . - . . - . . - . - - -. . .~
( DLnili D U$NhC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION '92 htR 10 ND :20 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD ,
. In the Matter of )
)
OHIO EDISON COMPANY )
. )
(Perry Nuclear Power Plant, )
Unit 1) )
and ) Docket Nos. 50-346A
) 50-440A THE CLEVELAND ELECTRIC )
ILLUMINATING COMPANY )
THE TOLEDO EDISON COMPANY )
)
(Perry Nuclear Power Plant, ) (Applications for Unit 1, and Davis-Besse ) Suspension of Nuclear Power Station, ) Antitrust Conditions):
Unit 1) ) ASLBP No. 91-644-01-A CERTIFICATE OF SERVICE I hereby certify that copies of the Alabama Electric Cooperative's Combined Cross-Motion for Summary Disposition and Response to Applicants' Motion for Summary Disposition in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk, through deposit in the-Nuclear Regulatory Commission's internal mail system, or as indicated, this 9th day of March, 1992.
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Marshall E. Miller, Chairman 1920 South Creek Boulevard Spruce Creek Fly-In Daytona Beach, Florida 32124 BY FEDERAL EXPRESSS
- Charles Bechhoefer Atomic. Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop EW 439 l Washington, D.C. 20555
)
l.
l
- G. Paul Bollwerk, III Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop EW 439 Washington, D.C. 20555 4
- Samuel J. Chilk, Secretary Office of the Secretary
, U.S. Nuclear Regulatory Commission Mail Stop OWFN 16G15 Washington, D.C. 20555
- Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop EW 439 Washington, D.C. 20555 B. Paul Cotter, Jr.
Chief Administrative Judge Atomic Safety and Licensing Board Panel West Towers Building 4350-East West Highway, Fourth Floor Bethesda, Maryland 20814
- Joseph Rutberg Sherwin E. Turk Steven R. Hom Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop OWFN 15B18 Washington, D.C. 20555
- Thomas E. Murley, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Mail Stop OWFN 12G18 Washington, D.C. 20555 Mark C. Schechter, Chief Transportation, Energy and Agriculture Section U.S. Department of Justice, Antitrust Division Judiciary Center Building 555 Fourth Street, N.W.
Washington, D.C. 20001 2
Janet Urban U.S. Department oi Justice, Antitrust Division 555 Fourth Street, N.W., Room 9816 JCB Washington, D.C. 20001 Kenneth L. Hegemann, P.E.
President American Municipal Power-Ohio, Inc.
601 Dempsey Road, P.o. Box 549 Westerville, OH 43081 David R. Straus Spiegel & McDiarmid 1350 New York Avenue, N.W., Suite 1100 Washington, D.C. 20005 Philip N. Overholt Office of Nuclear Plan Performance Office of Nuclear Energy U.S. Department of Energy, NE-44 Washington, D.C. 20585 Anthony J. Alexander Vice President and General Counsel Ohio Ediuon Company 76 South Main Street Akron, Ohio 44305 Michael D. Lyster Vice President, Nuclear - Perry Cleveland Electric Illuminating Company 10 Center Road Perry, Ohio 44081 Donald C. Shelton Vice President, Nuclear - Davis-Besse Centerior Service Company Toledo Edison Company 300 Madison Avenue Toledo, Ohio 43652 James P. Murphy Colleen Conry Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044 BY HAND 3
Craig S. Miller, Director of Law June W. Weiner, Chief Assistant Director of Law William M. Ondrey Gruber, Assistant Director of Law City Hall, 601 Lakeside Avenue, Room 106 Cleveland, Ohio 44115 Reuben Caldberg Channing D. Strother, Jr.
Goldberg, Fieldman & Letham, P.C.
1100 Fifteenth Street, N.W. _
Washington, D.C. 20005 Gerald Charnoff Deborah B. Charnoff Margaret S. Spencer Mark A. Singley Shaw, Pittman, Potts & Trowbridge 2300 N Street, N.W.
Washington, D.C. 20037 BY HAND John P. Coyle Gregg D. Ottinger Duncan & Allen 1575 Eye Street, N.W., Suite 300 Washington, D.C. 20510 Anne Marie Biggons American Public Power Association -
2301 M Street, N.W.
Third Floor
. Washington, D.C. 20037
/h hH . / [4+s1c 1.
D. Biard hacGuineas Volpe, Boskey and Lyons 918 16th Street, N.W., #602 Washington, D.C. 20006 (202) 737-6580 Tele.:
March 9, 1992 Attorneys for Alabama Electric Cooperative, Inc.
4