ML19344B175
| ML19344B175 | |
| Person / Time | |
|---|---|
| Site: | Comanche Peak, South Texas  |
| Issue date: | 08/20/1980 |
| From: | Blume M, Chanania F NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8008250700 | |
| Download: ML19344B175 (23) | |
Text
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UNITED STATES OF A'1 ERICA NUCLEAR REGULATORY COMf1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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HOUSTON LIGHTING & POWER C0f1PANY
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NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
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50-499A CITY OF AUSTIN
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CENTRAL POWER AND LIGHT C0ftPANY
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(South Texas Project, Unit Nos. 1
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and 2)
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TEXAS UTILITIES GENERATING
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NRC Docket Nos. 50-445A COMPANY, et al.
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50-446A (Comanche Peak Steam Electric
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Station, Units 1:and 2)
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RESPONSE OF THE NRC STAFF TO THE PETITION OF THE TEXAS BORDER COOPERATIVES FOR LEAVE TO INTERVENE I.
INTRODUCTION Pursuant to 10 C.F.R. 5 2.714(c), the NRC Staff hereby files its response to the Petition of the Texas Border Cooperatives for Leave to Intervene Out of Time [ hereinafter cited as Petition].1/ This Petition was filed well after the periods for intervention specified in Federal Register notices published on April 14, 1978 and August 7, 1978 for the South Texas and Comanche Peak proceedings,respectively.1/ Two memters of the Border Cooperatives, Taylor Electric Cooperative, Inc., and Souttwest Texas Electric Cooperative, did i
file timely requests for limited appearances in South Texas.1/
-1/
Staff also replies herein to sone of the arguments contained in the Answers of TUGC0 and HL&P to the Petition.
2/
43 Fed. Reo. 15,811, 43 Fed. Reg. 34,850, respectively.
Both notices specified that potential intervenors were to be given 30 days from those dates with1n which to submit petitions for intervention.
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3/
May 11,1978 (Southwest Texas Elec. Coop.); letters of flay 25, 1978 and June 8,1978 from Maurice V. Brooks (Taylor Elec. Coop.) to the Secretary of the Commission.
8 008250 WO
2-A.
The Texas Border Cooperatives The Texas Border Cooperatives are now and were, in 1978, distribution-only electric utilities with no generation of their own.
The Petition indicates that they now purchase their power requirements from West ietas Utilities Company ("WTU"), Central Power & Light Company, Texas Electric Service Company, El Paso Electric Company and Southwestern Public Service Company,S although at the time that the notice was published, the Border Cooperatives were " purchasing all or a substantial quantity of their electric power and energy requirements from West Texas Utilities Company..."E/ The Border Cooperatives describe their geographic location as being "the line of demarcation between the areas served by electric u*ilities operating in a wholly-intrastate mode within Texas, and those geographic areas served by utilities considered to be operating in interstate commerce..."5/
The Border Cooperatives, in sum, base their intervention petition on two major grounds:
(a) their power supply situation has changed so that they now seek to have access to generation ownership opportunities, possibly in joint arrangements with other utilities, both intrastate and interstate, and (b) that the proposed settlement of the South Texas and Comanche Peak pro-ceedings on the basis o' direct current (DC) interconnection would not enhance, and indeed may injure, their competitive opportunities and their ability to become generators of their own electric power needs.
Accordi ngly, l
4_/
Petition, at 4-5.
5/
Id.at2.
6/
Id. at 5.
the Border Cooperatives contend that their interests are directly aGected by these proceedings, particularly as to the effects which wesid result from a settlement based upon the DC Settlement Agreement as proposed by Houston Lighting & Power Company (hereinafter "HL&P"), Texas Utilities Company
("TU"), and Central Power & Light Company.
B.
The Course of These Proceedinas In 1978, when the notices for intervention in the South Texas and Comanche Peak proceedings were issued, Central & South West Corporation ("CSW") and its subsidiaries were seeking alternating current (AC) interconnections between ERCOT and Southwest Power Pool.E Two years later, on March 31, 1980, the NRC Staff was notified by counsel for HL&P that it, CSW, and TU, parties in the now-consolidated proceedings, had reached a basis in princi-ple for resolving the interconnection dispute on a direct current inter-connection basis.E This Board subsequently held a prehearing conference on April 9,1980, at which time the new DC interconnection settlement proposal I
l was first aired.
Following the prehearing conference, the Board on April 10, l
l 7/
It was not until February of 1979 that CSW commenced an FERC inter-connection proceeding under PURPA, No. EL79-8, requesting an order for AC interconnections.
Response of Central & South West Corp. et al.
l to Petition of the Texas Border Cooperatives for leave to Interw ne Out of Time, at 3.
CSW, however, the sole applicant in the FERC/PURPA l
proceedings, never formally agreed to support DC interconnections prior l
to June 10, 1980.
8/
Letter from J. Greaory Copelanc, counsel for HL&P, to Fredric D.
Chanania, counsel for the NRC Staff (March 31,1980).
. 1980 permitted the parties to these proceedings an extension of time in which to discuss the DC interconnection proposal and to otherwise pursue settlement.E It was not until June 10, 1980, that that counsel for HL&P informed this Board that TU, HL&P, and CSW had reached a settlement based on a proposal for DC interconnection of ERCOT-TIS and SWPP.E/ The petition for intervention of the Texas Border Cooperatives was filed on July 31, 1980.
II.
STAFF RESPONSE For the reasons below, the Staff supports intervention for the Border Coop-eratives under the standards set forth in 10 C.F.R. 5 2.714 and amplified in Kansas Gas & Electric Company (Wolf Creek Generating Station, Unit No.1)
[ hereinafter cited as Wolf Creek]. E/ The Staff submits that the Petition of the Border Cooperatives satisfies the balancing test applicable to criteria in 10 C.F.R. 5 2.714(a) for late intervention and, therefore, intervention 9/
Order Extending Procedural Dates and Directing Consolidation.
10f Letter from J. A. Bouknight, counsel for HL&P, to Licensing Board and all parties. Though HL&P claims in its Answer to the Petition that it first proposed "the alternative of DC interconnections" in March of 1979 (Answer, at 7), its company position was: "If and when interconnec-I tion of ERCOT and the SWPP is shown to be beneficial, (DC) ties...should be consHered." Response of HL&P to Application of CP&L et al., and Request for an Order Scheduling Conference, at 16.
Of course until the announcement of the settlement agreement between HL&P, TU, and CSW, Houston consistently maintained that no interconnections were beneficial.
See, M., deposition transcript of DT E. Simmons, Vice President and expert engineering witness for HL&P, Feb. 7,1980, at 29-30.
_1_1/ ALAB-279, 1 NRC 559, 574-77 (1975).
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- should be granted as a matter of right. The instant Petition satisfies the criteria for discretionary intervention as well and should be allowed on that basis, if necessary.
A.
Intervention as a Matter of Right As noted above, 10 C.F.R. Q 2.714 contains the Commission's standards for intervention. All petitions to intervene must set forth:
... the interest of the petitioner in the proceeding, how that interest may be affected by the results of the proceeding, including the reasons why petitioners should be permitted to intervene, with particular reference to the factors in paragraph (d) of this section, and the specific aspect or aspects of the subject ma of the proceeding as to which petitioner wishes to intervene.gyr This is echoed in 10 C.F.R. Q 2.714(d), which directs boards to consider:
(1) the nature of the petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of the petitioner's property, financial, or other interests in the proceeding; (3) the possible effect of any order which may be entered in the proceeding on the petitioner's interest.
The Appeal Board, in Wolf Creek, supra, further refined these general require-ments for petitioners seeking intervention in Commission antitrust proceedings.
l Such petitioners must also state:
(1) facts describing a situation inconsistent with the antitrust laws; (2) facts describing a nexus between the activities under the license and the situation alleged; and 12/ 10 C.F.R. Q 2.714(a)(2).
i
(3) the relief sought.E Untimely intervention petitions may be entertained under 10 C.F.R. 9 2.714(a)(1).
Licensing Boards, in considering whether to grant such late petitions, are directed to consider the following factors, in addition to those set forth in 10 C.F.R. 6 2.714(d):
(1) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
As interpreted by decisions of the Commission and the Appeal Board, consid-eration of the factors enumerated in 10 C.F.R. % 2.714(a)(1) for untimely petitions requires a balancing test, with particular emphasis on the good I
cause requirement.
However, under NRC decisions, failure to satisfy one of the factors, even good cause, is not automatically damning for an untimely
_1_3] The Licensing Board in Pacific Gas and Electric Co. (Stanislaus Nuclear 3
Project, Unit 1) LBP-77-26, 5 NRC 1017 (1977), af fi rmed, ALAB-400, I
5 NRC 1175 [hereinaf ter cited as Stanislaus] read the Appeal Board's decision in Wolf Creeks supra, as im contention" rule of 10 CFR $2.714(b)plicitly recognizing that the "one and Northern States Power Co.
(Prairie Island Generating Plant, Units 1 and 2), CLI-73-12, 6 AEC 241 (1973), is inappropriate for antitrust proceedings.
5 NRC at 1022.
The Wolf Creek criteria, the Stanislaus Licensing Board continued, in effect replaced, in antitrust proceedings, the criterio required by Section 2.714(b) and _P_rairie Island for health, safety and environ-mental proceedings.
5 NRC at 1022.
t l
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petition.
See Nuclear Fuel Services (West Valley Reprocessing Plant),
CLI-75-4, 1 NRC 273, 275 (1975) [ hereinafter cited as West Valley]; Duke Power Co. (Amendment to Materials License SN!1-1733--Transportation of Sper t Fuel from Oconee Nuclear Station for Storage at McGuire Nuclear Station),
ALAB-528, 9 NRC 146,148 (1979) [ hereinafter cited as Duke Power]; Stanislaus, supra.
Indeed, intervention has been allowed even in the absence of a show-ing of good cause for lateness. West Valley, supra, at 275-76; Duke Power, supra, at 152. b 14/ At the time of the West Valley decision,10 CFR 2.714(a) read:
...Nontimely filings will not be entertained absent a daermina-tion by the Commission, the presiding officer or the atomic safety and licensing board designated to rule on the petition and/or request that the petitioner has made a substantial showing of good cause for f ailure to file on time, and with particular reference to the following f actors....
(1) The availability of other means whereby the petitioner's interest will be protected.
(2) The extent to which the petitioner's participation may rea-sonably be expected to assist in developing a sound record.
(3) The extent to which petitioner's interest will be represented by existing parties.
(4) The extent to which the petitioner's participation will broaden the issues or delay the proceeding.
West Valley, supra, at 274, quoting section 2.714(a) [ emphasis added].
The West Valley decision placed the " good cause" standard at a level of importance similar, though not equivalent to, the other four criteria of section 2.714, and emphasized that the rule gave "...the Licensing Boards broad discretion in the circumstances of individual cases."
Id.
at 275. The Appeal Board has interpreted this grant of discretion tT mean that Licensing Boards will not be reversed for the grant of late petitions for intervention except where there is an abuse of discretion.
Florida Power & Light Co. (St. Lucie Plant, Unit No. 2), ALAB-420, 6 NRC 8, 13, (Continued)
, 1.
Petitioners Have Adequately Steted Their Interest in the Proceedings and How They Might Be Affected as Required by 10 C.F.R. Q% 2.714(a)(2) and 2.714(d).
The interest of the Border Cooperatives and the subject matter upon which they seek to intervene is clear. They intend ta present evidence on the electrical and competitive effects stenning from the lack of interconnections between ERCOT-TIS and the South West Power Pool and on the impact of the DC interconnection proposal on their syrtems. The Petition states:
The Border Cooperatives do anticipate tendering witnesses at a hearing ordered in these cases, and their testimony, both expert and general, will relate to the need for interconnections, but the adverse impact of the conpetitive positions.gftie on their current and prospective Petitioners have indicated that they are distribution cooperatives which are wholesale customers of WTU, TESCO, CPL, El Paso Electric Company, and Southwest
-14/ (Continued) 24 (1977), affimed, CLI-78-12, 7 NRC 939 (1978) [ hereinafter cited as St. Lucie].
Though the Commission in St. Lucie indicated th?.c the good cause stand-ard under the old rule was more important in NRC antitrust proceedings than in health and safety proceedings, it added that this greater consid-i eration might best be implemented in the framing of relief.
7 NRC at 947-49. And despite the Commission's guidance on good cause in St. Lucie, nowhere did it indicate any repudiation of its position in West Valley (or of the Appeal Board's in Stanislaus) that intervention may be allowed even in the absence of a showing of good cause.
The present language of section 2.714(a) governing late intervention reflects this appraach with its balancing test applied to five co-equal criteria.
See Statement of Consideration for Rule Change, 43 Fed, g.17,801 (April 26,1978).
,15] Petition, at 10.
9-Public Service Company. They allege that their bulk power costs, and per-haps their economic viability, are affected by the actiors of WTU and the other major bulk power suppliers in ERCOT, including TESCO and HL&P.El The Ecrder Cooperatives state that their interest in these proceedings arises from their need to assure adequate power supply options in the future.
They allege that these options, and their competitive abilities, will be restricted by their inability to interconnect with and coordinate their planning and operations with interstate electric utilities due to the action > of the majorutilitiesinERCOT.E/ However, the Petitioners' focus is somewhat narrowed in that the thrust of these allegations is tied to their belief that they will be directly and adversely affected by the contemplated DC settlement proposal which has been introduced into these proceedings by the three private parties--TU, HL&P, and CSW. EI Accordingly, the Petition of the Border Cooperatives satisfies the require-ments of 10 C.F.R. 99 2.714(a)(2) and 2.714(d), which require petiticns for intervention to specify the subject areas for the proposed intervention, to describe the petitioner's interest and how that interest may be affected by the proceedings, and to state the nature of petitioner's right under the Atomic Energy Act to be made a party to the proceedings.
16/
Id. at 6-8.
l 17/ Id.
l 18/ Id. at 8.
l,
1 2.
The " Wolf Creek" Criteria for Antitrust Intervention Have Also Been Fulfilled a.
Petitioners Adequately Set Forth Facts Describing a 5:tuation Inconsistent with the Antitrust Laws Petitioners allege that the DC intersonnection proposal will, if implemented, preclude other interconnection opportunities for then and will adversely affect them in ten 5s of adequate and economical power rupply.E The Border Cooperatives also allege that the high cost of DC interetnnections will in itself constitute a barrier to potential transactions with other utilities which are not within ERCOT-TIS.
They further allege that the interconnection proposal of TV, HL&P, and CSW would be, if pursued, even worse competitively than the present total absence of interco.,nections.
DC interconnection will allegedly constitute an instrument whereby the "large systems" will perpetuate "the stranglehold on transmission both within and without the State of Texas."2_0/ Petitioners assert that they will thereby be deprived of alternative power supplies and meaningful leverage for bargaining.E These allegations are sufficient, in essence, to state facts which describe a situation inconsistent with the antitrust laws or their underlying policies.
While the allegations of Petitioners could have been more specific, the 19/
Id. a t 7-8.
20/ Id. at 8.
21/ Id. at 7, 8.
facts and situation alleged must be taken in the context of these proceedings in which both Section 1 (conspiracy and group boycott) and Section 2 (monopoli-zation) Sheman Act allegations have been raised.
In ar'dition, the facts set forth in the Petition raise a " bottleneck" monopolization claim,E at least insofar as the proposed DC interconnections are intended to interconnect ERCOT and tne SWPP.
b.
Petitioners Adequately Set Forth Facts Which Describe the Existence of a Meaningful Nexus Between the Activities Under the License and the Situation Inconsistent With the Antitrust Laws Although Petitioners do not specifically mention the word nexus, their recita-tion of the facts adequately links their antitrust concerns to the activities under the nuclear license.
They correctly note that "a settlement of these antitrust proceedings is contemplated that would be predicated on the con-struction of DC interconnections."E Any such settlement would also be the l
underlying basis for any license conditions which the NRC Staff would recom-mend to the Board as appropriate relief in these proceedings.
In alleging l
the anticompetitive effects of DC interconnections, the Border Cooperatives strike at the heart of the issues being considered in these proceedings, and directly address the effect of Applicants' intrastate-only policies (in both South Texas and Comanche Peak) on their systems.
By so doing, they fulfill
& See, e.o., United States v. Teminal R.R. Ass'n, 224 U.S. 383 (1912).
l
@ Petition, at 3.
l l
I l
l 1
12 the nexus requirement. setting forth facts demonstrating that the "anticom-petitive situations [are] intertwined with or exacerbated by the award of
[the] license to construct or operate the nuclear facility." Consurers Power Company (Midland Plant, Units 1 & 2) ALAB-452, 6 NRC 892, 917 (1977),
quoting Wolf Creek, supra.
c.
Petitioners Specify the Remedies They Seek Lastly, in accordance with the final requirement set forth by the Appeal Board in Wolf Creek, Petitioners have stated the remedies they seek.b 3.
The Texas Border Cooperatives' Petition Fulfills the Require-ments of 10 C.F.R. Q 2.714(a)(1) for Nontimely Intervention a.
Petitioners Set Forth Good Cause for Late Intervention As the Border Cooperatives note, the possibility of a direct current inter-connection as a basis for the resolution of these proceedings is of "recent vintage."b Direct current interconnections have been and remain the focus of settlement efforts of all of the parties in both South Texas and Comanche Peak.
DC interconnections and their effects on the electrical and competitive situation in and around ERCOT may well be tne focus of all issues remaining 24/
Id. at 9.
25/ Id.
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for hearing af ter mid-September.E/ The submission of the private settlement agreement by Applicants on June 10, 1980 was a new, far-reaching development which has altered the entire situation, not only regarding the issues for hearing, but also regarding system planning and competitive opportunities in ERCOT.
See pages 3-4 hereinabove. These are novel, unanticipated events, and accordingly, Petitioners make a satisfactory showing of good cause for lateness.El
-26/ TUGCO, in its Answer to the Petition, argues that the DC interconnection proposal by TU, HL&P, and CSW will not require a mandate or approval by the NRC, and that Petitioners are, therefore, mistakenly relying upon NRC approval or involvement as a ground for intervention. Thus, TUGC0 concludes, good cause has not been shown by the Border Cooperatives, particularly in light of their intervention at the FERC.
See TUGC0 Answer, at 8,10-11.
TUGCO, however, ignores Sections 105(c)(5) and (6) of the Atomic Energy Act, as amended, which charges this Board with a duty to approve the issuance of a license only if a situation incon-sistent with the antitrust laws or their underlying policies will not be created or maintained thereby.
If such a situation exists or will be created, the Board must attach " appropriate" conditions to the license. Under the allegations of the Border Cooperatives' petition, and in light of the DC settlement efforts now taking place in the NRC proceeding, it seems highly unlikely that a settlement would be reached without appropriate license conditions being attached to the South Texas and Comanche Peak licenses.
These conditions would have, as their foundation, the element of DC interconnections between ERCOT-SWPP.
E/ Petitioners imply that as long as CSW and WTU were attempting to obtain AC interconnections between TIS and SWPP, the Border Cooperatives' l
interests were adequately protected. Petition, at 2-3.
The Staff believes that while this argument would fail under Commission precedent l
if it stood alone, Puget Sound Power & Light Co. (Skagit Nuclear Power i
Project, Units 1 & 2), ALAB-559, 10 NRC 162, 172-73 (1979), the unique nature of the events surrounding the DC settlement leads Staff to concluce that Petitioners have met their burden of showing good cause for lateness.
l These unique events include an acceptance by TU and HL&P of DC intercon-nections, when prior to the announcement of the settlement agreement, it appeared that the only possible outcome of this and the related proceedings surrounding the interconnection dispute would be AC inter-connections or none at all.
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b.
Petitioners Do Not Have Adequate Alternative Means to Protect Their Interests Two members of the Texas Border Cooperatives (Southwest Texas Electric Cooperative and Taylor Electric Cooperative) have made limited appear-ances in these proceedings. This means of presenting their views is not, however, an adequate substitute for party status, since they will not be able to present evidence in this role, nor have the rights generally of parties to proceedings.
Indeed, the Appeal Board has specifically noted:
... the... suggestion that [a party can] adequately protect its interest by submitting a limited appearance statement gives insuffi-cient regard to the value of participational rights enjoyed by parties--including the entitlement to present evidence and to engage in cross-examination.
Duke Power, supra, 9 NRC at 150.
Although the Border Cooperatives are parties in the related FERC/PURPA pro-ceeding, this is not an adequate alternative means to protect their interests.
Most importantly for this Board, Section 105c sets forth a unique statutory standard, unlike the public interest criterion applicable to FERC proceed-ings, regarding anticompetitive situations and how they should be remedied.
This Board has noted, in its prior rulings in these proceedings, the differ-ences between Section 105c and the FERC public interest standards.
See Order Regarding Motions Based Upon Decision of United States District Court, LBP-79-27, 10 NRC 563, 576 (1979), affirmed, ALAB-575,11 NRC 14 (1980).
See also, Toledo Edison Co. (Davis-Besse Nuclear Power Station, Units 1, 2,
& 3), ALAB-560, 10 NRC 265, 400-01 (1979). To deny the Petition wholly or partially on this basis would ignore the unique mandate of this Commission to insure that its licensees do not use their nuclear facility licenses to create or maintain situations inconsistent, e.g., to maintain or extend their monopoly power. Merely because the FERC may be required to consider the competitive impact of its actions, the NRC is not thereby relieved of its own statutory responsibilities. As the Commission noted in affirming a decision granting an intervention petition even tardier than the instant one:
The NRC's role is, in our view, something more than a neutral forum for economic disputes between private parties.
One evidence we have of this flows from the role of the Attorney General and the express requirement that his views be obtained.
If a hearing is convened, we think it should encompass all significant antitrust implications of the license, not merely the complaints of intervening private parties.
Florida Power & Licht Company (St. Lucie Plant, Unit No. 2), CLI-78-12, 7 NRC 939, 949 (1978).
c.
Petitioners Can Assist in Developing a Sound Record l
The Texas Border Cooperatives have stated in their intervention petition that they will present both factual and expert testimony on the effects of l
I i
- DC interconnection on their systems.El This type of information is neces-sary for the Board's determination of whether a settlement based on a DC interconnection plan will cure a situation inconsistent with the antitrust laws.
Such testimony will aid this Board's assessment of the effects of that plan on the competitive situation in ERCOT-TIS and on the electrical systems therein. HL&P argues, in contrast, that petitioners' fact witnesses will testify whether petitioners are allowed to intervene or not, i.e., as witnesses called by other parties, and that petitioners' expert witness will be unnecessary since other parties have their own experts.
The fonner argument ignores the fact that the testimony of witnesses called by other parties may not have the same focus or content as testimony presented as part of petitioners' direct case, and has been rejected in a similar context by the Appeal Board.
Duke Power, supra, at 150, n.7.
The latter argument ignores the fact that petitioners' expert or experts will no doubt discuss the situation as it specifically impacts on the Texas Border Cooperatives, which other experts may or may not address, and certainly not from the Cooperatives' perspective.
d.
Petitioners' Interest Cannot Be Adecuately Represented By I
Others Nothing more vividly illustrates the inadequacy of representation of the Border Cooperatives than CSW's (and thereby WTU's and CP&L's) sudden and g / Petition, at 10.
TUGC0 appears to have omitted consideration of this statement in indicating that the Cooperatives did not anticipate tender-ing witnesses.
See TUGC0 Answer, at 11.
j
q 1
1 dramatic shif t from support of AC interconnections to support of DC inter-connections.
Only the Border Cooperatives themselves can be relied upon to present their private perspectives on the licensees' activities and the impacts of DC interconnections on their systems. The NRC Staff, repre-senting the public interest, cannot commit itself to representation of the particular private interests of the Texas Border Cooperatives, nor can the Staff state that its views will necessarily reflect the private views of the petitioners or of any other private party.E In addition, the Staff is not aware of any other party to these proceedings which can adequately represent pe?ationers' interests.
e.
Petitioners' Participation in These Proceedings Will Not Unduly Broaden the Issues or Delay These Proceedings The NRC Staff does not expect petitioners' participation in these proceed-ings to unduly broaden the issues or to delay the proceeding appreciably.
The Applicants themselves have already broadened the issues in these pro-ceedings through the introduction of a DC interconnection proposal.
30/ Though the Staff is well aware of the Commission's admonition in 0
St Lucie, supra n.14, that the Staff should assure "that a complete picture is presented to licensing boards" if no one else does (7 NRC at 949), the Staff cannot be expected to present the perspective of private parties as they themselves would,
_31/ The Petition, by its own terms, limits the issues upon which the Border i
Cooperatives seek to be heard.
It does not appear to introduce new areas of consideration, other than those already contemplated by the pa rties.
To the extent the Board wishes to assure itself of limita-tions on the Border Cooperatives participation, it has the power to limit intervention under 10 C.F.R. 6 2.714(f).
i Concomitantly, Petitioners' commitment to take discovery and the record as they find it should be sufficient assurance that their participation will not unduly delay the proceeding.
Since the potential witnesses offered by the Border Cooperatives (with two exceptions) have already been deposed in these proceedings, little delay will be incurred on this account. HL&P argues that petitioners' interven-tion would require a reopening of discovery against the cooperatives, sug-gesting that extensive interrogatories, certain redepositions of currently identified witnesses, and new depositions of officials of Southwest Public Service Company would be necessary.E The Staff, for its part, sees no reason to consider redeposition of petitioners' witnesses, nor a need for further documentary discovery against petitioners.
B.
Discretionary Intervention Would, If Necessary, Be Warranted As developed above, petitioners have met the requirements for intervention in these proceedings. The only real question with respect to their inter-vention as a matter of right revolves around the standards for late inter-vention. TU ha's argued, however, that petitioners have not stated a cogni-zable interest in these proceedings. E Should the Board conclude that petitioners have not demonstrated standing to intervene as a matter of R / HL&P Answer, at 11.
13f TV Answer, at 3-4.
3
right, their Petition should nevertheless be granted as a matter of discre-tion.b The factors to be considered in detemining whether to grant discretionary intervention are similar to the standards of 10 C.F.R.
Q 2.714(d) governing intervention generally and the standards of 10 C.F.R. 9 2.714(a) governing consideration of late petitions.b The most important factor in the balance is the significance of the contribution which the petitioner may make to the resolution of the issues in the proceeding.b This factor has been analyzed above, and the Staff has concluded that peti-tioners have demonstrated their ability to contribute on at least two sub-stantial issues of law or fact--first, the particular nature of their elec-trical systems, and second, how the DC interconnection proposal will affect them cad their competitive position in ERCOT-TIS. Given the potential significance of this contribution to the making of a sound record, either at a hearing or in the context of approval of a settlement, petitioners should be granted discretionary intervention if intervention as a matter of right is denied.
l l
34/ Portland General Electric Co. (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC 610 (1976) [ hereinafter cited as Pebble Springs]; Detroit Edison Co. (Enrico Fermi Atomic Power Plant, Unit No.
l 2), ALAB-470, 7 NRC 473 (1978); Tennessee Valley Authority (Watts Bar Nuclear Plant, Units 1 and 2), ALAB-413, 5 NRC 1418 (1977); Vi rgi nia Electric and Power Co. (North Anna Power Station, Units 1 and 2),
j ALB-363, 4 NRC 631 (1976); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-397, 5 NRC 1143 (1977).
l 35/ Pebble Springs, supra, NRC at 616, 36/ Id.; Watts Bar, supra note 34, at 1422; Black Fox, supra note 34, at 1145, 1148-51; North Anna, supra note 34, at 633.
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III. CONCLUSION Since the factors required under 10 C.F.R. 9 2.714 for intervention have
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been satisfied by Petitioners, intervention as a matter of right should be pemitted. In the alternative, discretionary intervention is warranted.
Respectfully submitted b
kalmJ [aw0u efedric D. Chanania-Luunsel for NRC Staff Michael B. Blume Counsel for NRC Staff Dated in Bethesda, Maryland this 20th day of August, 1980.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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HOUSTON LIGHTING & POWER COMPANY
) NRC Docket Nos. 50-498A PUBLIC SERVICE BOARD OF SAN ANTONIO
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50-499A CITY OF AUSTIN
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CENTRAL POWER AND LIGHT COMPANY
)
(South Texas Project, Unit Nos.
)
I and 2)
)
)
TEXAS UTILITIES GENERATING
) NRC Docket Nos. 50-445A COMPANY, et al.
)
50-446A (Comanche Wali Steam Electric
)
Station, Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF THE NRC STAFF TO THE PETITION OF THE TEXAS BORDER COOPERATIVES FOR LEAVE TO INTERVENE 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, this 20th day of August 1980:
Marshall E. Miller, Esq., Chairman Robert Fabrikant, Esq.
Atomic Safety and Licensing Board Donald A. Kaplan, Esq.
U.S. Nuclear Regulatory Commission Nancy A. Luque, Esq.
Frederick H. Parmenter, Esq.
Washington, D.C.
20555
- David A. Dopsovic, Esq.
Michael L. Glaser, Esq.
Rangeley Wallace, Esq.
1150 Seventeenth Street, N.W.
Mildred L. Calhoun, Esq.
Washington, D.C.
20036 Nancy H. McMillen, Esq.
P.O. Box 14141 Sheldon J. Wolfe, Esq.
Washington, D.C.
20044 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mr. William C. Price Central Power & Light Co.
Washington, D.C.
20555
- P.O. Box 2121 Docketing and Service Section Corpus Christi, Texas 78403 Office of the Secretary U.S. Nuclear Regulatory Commission G.W. Oprea, Jr.
Executive Vice President Washington, D.C.
20555
- Houston Lighting & Power Company R.L. Hancock, Director P.O. Box 1700 City of Austin Electric Utility Houston, Texas 77001 P.O. Box 1088 Austin, Texas 78767 Robert E. Bathen R.W. Beck & Associates Atomic Safety and Licensing Board P.0. Box 6817 U.S. Nuclear Regulatory Commission Orlando, Florida 32803 Washington, D.C.
20555 Somervell County Public Library P.O. Box 417 Glen Rose, Texas 76043
. 4 R. Gordon Gooch, Esq.
Robert Lowenstein, Esq.
John P. Mathis, Esq.
J.A. Bouknight, Esq.
Steven R. Hunsicker, Esq.
William J. Franklin, Esq.
Baker & Botts Peter G. Flynn, Esq.
Suite 300 Douglas G. Green, Esq.
1701 Pennsylvania Avenue, N.W.
Lowenstein, liewman, Reis, Axelrad Washington, D.C.
20006
& Toll 1025 Connecticut Avenue, N.W.
J.K. Spruce, General Manager Washington, D.C.
20036 City Public Service Board P.O. Box 1771 Jerry L. Harris San Antonio, Texas 78296 Richard C. Balough Dan H. Davidson, City Manager Robert C. McDiarmid, Esq.
City of Austin Robert A. Jablon, Esq.
P.O. Box 1088 George Spiegel, Esq.
Austin, Texas 78767 David A. Ciacalone, Esq.
Marc R. Poirier, Esq.
Jay Galt, Esq.
Alan J. Roth, Esq.
Jack P. Fite, Esq.
Spiegel & McDiarmid Looney, Nichols, Johnson & Hayes 2600 Virginia Avenue, N.W.
219 Couch Drive Washington, D.C.
20037 Oklahoma City, Oklahoma 73102 Jon C. Wood, Esq.
Merlyn D. Sampels, Esq.
W. Roger Wilson, Esq.
Jos. Irion Worsham, Esq.
Matthews, Nowlin, Macfarlane Spencer C. Relyea, Esq.
& Barrett Robert A. Wooldridge, Esq.
1500 Alamo National Building 2001 Bryan Tower, Suite 2500 San Antonio, Texas 78205 Dallas, Texas 75201 Mr. W.N. Wool sey Morgan Hunter, Esq.
Kleberg, Dyer, Redford & Weil McGinnis, Lochridge & Kilgore 1030 Petroleum Tower Fifth Floor, Texas State Bank Building Corpus Christi, Texas 78474 900 Congress Avenue Austin, Texas 78701 Dick Terrell Brown, Esq.
I 800 Milam Building Joseph B. Knotts, Esq.
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San Antonio, Texas 78205 Nicholas S. Reynolds, Esq.
C. Dennis Ahearn, Esq.
E. William Barnett, Esq.
Leonard W. Belter, Esq.
Charles G. Thrash, Jr., Esq.
Debevoise & Liberman Melbert D. Schwarz, Esq.
1200 Seventeenth Street, N.W.
Theodore F. Weiss, Esq.
Washington, D.C.
20036 J. Gregory Copeland, Esq.
Baker & Botts Douglas F. John, Esq.
3000 One Shell Plaza McDermott, Will and Emery Houston, Texas 77002 1101 Connecticut Avenue, N.W.
Suite 1201 Jerome Saltzman, Chief Washington, D.C.
20035 Utility Finance Branch U.S. Nuclear Regulatory Commission Don R. Butler, Esq.
J Washington, D.C.
20555
- 1225 South We;t Towers l
l 1
i John W. Davidson, Esq.
Mr. G. Holman King Sawtelle, Goode, Davidson & Troilo West Texas Utilities Co.
1100 San Antonio Savings Building P.O. Box 841 San Antonio, Texas 78205 Abilene, Texas 79604 Linda Aaker Robert A. O'Neil, Esq.
Attorney General's Office Miller, Balis & 0'Neil, P.C.
State of Texas 776 Executive Building P.O. Box 12548
- 1030 Fifteenth Street, N.W.
Austin, Texas 78711 Washington, D.C.
20005 James E. Monahan Executive Vice President and General Manager Brazos Electric Power Cooperative, Inc.
P.O. Box 6296 Waco, Texas 76706 Frederick H. Ritts, Esq.
William H. Burchette, Esq.
Law Offices of Northcutt Ely Watergate 600 Building Washington, D.C.
20037 Michael I. Miller, Esq.
James A. Carney, Esq.
Sarah N. Welling, Esq.
Isham, Lincoln & Beale 4200 One First National Plaza Chicago, Illinois 60603 David M. Stahl, Esq.
Isham, Lincoln & Beale l
Suite 325 1120 Connecticut Avenue, N.W.
Washington, D.C.
20036 Maynard Human, General Manager Western Farmers Electric Cooperative P.O. Box 429 Anadarko, Oklahoma 73005 Donald M. Clements, Esq.
Gulf States Utilities Company P.O. Box 2951 Beaumont, Texas 77704 i
/.. y b/
U Robert M. Rader, Esq.
Conner, Moore & Corber Michael B. Blume 1747 Pennsylvania Avenue, N.W.
Counsel for NRC Staff Washington, D.C.
20006
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