[Federal Register Volume 64, Number 44 (Monday, March 8, 1999)]
[Notices]
[Pages 11069-11070]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5593]


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NUCLEAR REGULATORY COMMISSION

[Docket No. 50-482-LT]


Memorandum and Order

Commissioners

Shirley Ann Jackson, Chairman
Greta J. Dicus
Nils J. Diaz
Edward McGaffigan, Jr.
Jeffrey S. Merrifield

    In the Matter of: Kansas Gas and Electric Co. Corp. et al.; 
(Wolf Creek Generating Station, Unit 1); CLI-99-05.

    Before the Commission is a petition to intervene and request for 
hearing filed by the Kansas Electric Power Cooperative (KEPCo). 
Pursuant to our recently-promulgated Subpart M, 10 CFR 2.1300 et seq., 
KEPCo challenges a proposed license transfer affecting the Wolf Creek 
Generating Station, a nuclear power reactor in which KEPCo owns a 6% 
interest. The license transfer would transfer the 47% ownership 
interests of the Kansas Gas and Electric Company (KGE) and the Kansas 
City Power and Light Company (KCPL) to a new company, Westar Energy. 
KEPCo's petition claims that the license transfer would have ``serious 
adverse and anticompetitive effects'' (p. 5), would result in 
``significant changes'' in the competitive market (pp. 15-17), and 
therefore warrants an antitrust review under section 105c of the Atomic 
Energy Act, 42 U.S.C. 2135(c).
    The NRC staff historically has performed a ``significant changes'' 
review in considering the antitrust aspects of certain kinds of license

[[Page 11070]]

transfers. However, the Commission intends to consider in this case 
whether to move away from the prior practice and to direct the NRC 
staff no longer to conduct significant changes reviews in license 
transfer cases, including the current case. The Commission expects to 
consider a number of factors, including its own resources and 
expertise, and its statutory mandate. The governing legislation, 
section 105c of the AEA, and its legislative history, do not appear to 
call for fresh Commission antitrust reviews after the initial 
construction permit and operating license stage. See American Public 
Power Ass'n v. NRC, 990 F.2d 1309, 1311-13 (D.C. Cir. 1993). See also 
56 FR 64943, 64969-71 (Dec. 13, 1991). Moreover, with the passage of 
the Energy Policy Act of 1992, a sister federal agency, the Federal 
Energy Regulatory Commission (FERC), now has broad powers to order 
relief remedying anti-competitive situations. See 16 U.S.C. 824j-k.
    Accordingly, prior to further considering KEPCo's request for a 
hearing on antitrust issues, we direct KEPCo, and the license transfer 
applicants (KGE and KCPL), to file briefs within fourteen days of this 
order. The briefs shall address one question only: whether as a matter 
of law or policy the Commission may and should eliminate all antitrust 
reviews in connection with license transfers and therefore terminate 
this adjudicatory proceeding forthwith. The briefs shall be provided to 
all other parties (by facsimile, e-mail or hand-delivery) on the filing 
date, and shall not exceed thirty pages per side (i.e., a total of 
thirty pages for KEPCo and a total of thirty pages for KGE and KCPL, 
combined). Each party may file reply briefs, not to exceed ten pages 
per side, within twenty-one days of the date of this order. No other 
pleadings in response to this order, or as authorized by Subpart M, 
shall be filed pending further order of the Commission.\1\ The NRC 
staff shall not be a party to this proceeding.
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    \1\ The Commission will accept amicus curiae briefs by any 
interested person or entity, so long as the brief is filed by March 
31, 1999. No amicus brief shall exceed twenty pages. We are posting 
this order on the NRC's web site, publishing it in the Federal 
Register, and also sending copies to the United States Department of 
Justice, the Federal Energy Regulatory Commission, the Nuclear 
Energy Institute, the American Public Power Association, and the 
National Rural Electric Cooperative Association.
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    It is so ordered.

    Dated at Rockville, Maryland, this 2nd day of March, 1999.

    For the Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 99-5593 Filed 3-5-99; 8:45 am]
BILLING CODE 7590-01-P