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state commission to develop a code of conduct governing transactions between incumbent electric utilities and any affiliates conducting unregulated activities.
The bill also would allow distribution utilities to construct and operate generating facilities, as long as that would have "no material adverse effect" on reliability. It would guarantee the preservation of territorial rights for distribution service by incumbent electric utilities. See .
Nuclear Power - NRC Jurisdiction Questioned for Antitrust Reviews
By Carl J. Levesque
For once, The IOUs like what they see at the NRC . Comments filed in the Nuclear Regulatory Commission's proposed rulemaking that would rid it of responsibility to conduct antitrust reviews for nuclear asset license transfers show a clear split between investor-owned utilities, who favor the initiative, and public power entities, who want the NRC to review the license transfers for market power issues.
At issue is whether Section 105 of the Atomic Energy Act calls for NRC antitrust reviews of asset transfers. While both sides generally agree that that Section expressly calls for antitrust review for plant construction approval and, subsequently, for operating license issuance, the IOUs argue that the statute does not stipulate that NRC jurisdiction goes beyond those two instances.
"Section 105 simply does not mention, nor contemplate antitrust reviews for post-operating license transfers," noted FirstEnergy Nuclear Operating Co., operator of FirstEnergy Corp.'s nuclear plants. Siding with FirstEnergy is a group of utilities including Western Resources Inc., Kansas Gas & Electric Co., Wisconsin Electric Power Co., Public Service Electric & Gas Co., and Rochester Gas & Electric Co.
"Section 105 does not contemplate Commission review of antitrust issues upon a license transfer after the initial operating license is issued," the group of utilities said in their jointly filed comments. The Nuclear Energy Institute also favored the rulemaking, citing, as the IOUs did, the Wolf Creek Generating Station, Unit 1 license transfer proceeding in which the NRC "appropriately reconsidered its past practice of reviewing antitrust issues in license transfer proceedings."
Public power entities, however, didn't see it the same way. Comments filed jointly by the American Public Power Association, the Antitrust Institute and various municipalities claimed that the NRC's conclusion that Section 105 does not authorize it to conduct an antitrust review for asset transfers "is clearly erroneous." A transfer of an operating license to an entity that was not previously a licensee, APPA said, should be considered an initial application for an operating license "not preceded by a construction permit, and therefore an antitrust review is necessary." A group called the Citizens Awareness Network agreed, claiming that the rulemaking would be an "[a]bdication of Congressional charge."
The IOU comment letters called the NRC antitrust reviews duplicative, since at least three other federal bodies - the Federal Energy Regulatory Commission, the Federal Trade Commission, and the U.S. Department of Justice's Antitrust Division - review nuclear power plant license transfers as well. "The NRC's primary mission is to protect the public health and safety, not to economically regulate utilities," the comment letter from Western Resources and other utilities said.
But in the long run, the outcome