The price many consumers pay for electricity and the future of a major American corporation could be at stake in a trial that begins Monday in Richmond.
The complicated questions raised by the admitted existence of a worldwide uranium cartel will be considered in a judicial proceeding for the first time.
The case pits Virginia Electric and Power Co. and some 20 other utilities against Westinghouse Electric Corp., their would-be supplier of uranium, the raw material which fuels the nuclear power plants the utilities operate.
Two years ago last week, Westinghouse announced that it was backing out of its long-termcontracts with utilities to supply nearly 80 million pounds of uranium, or yellowcake, because of what it said was the unexpectedly sharp rise in uranium prices.
Westinghouse contends that the contracts were not being breached, but were rendered unenforceably by a change of circumstances beyond its control. Citing a section of the U.S. Uniform Commercial Code, Westinghouse said it was excused from the contract agreements because unforeseeable events had occured making it "commercially impracticable" to sell uranium to its customers at the promised price of between $8 and $12 a pound when it would have to find and buy the uranium from producers at $40 a pound, the price to which uranium had jumped.
Westinghouse was essentially the middleman. Its principal product was nuclear reactors, but it had thrown in the uranium-supply conracts as a sweetener to the utilities.
Vepco and the other utilities are seeking to force Westinghouse to deliver the uranium at the contracted price or pay them damages in the amount it would cost them damages in the amount it would cost them to buy the uranium on the market at the going price of more than $40 a pound. If the utilities lose, their customers' rates will have to go up, they say. If they win, Westinghouse's losses could total more than $2.5 billion, a figure that it is believed could jeopardize the company's very survival.
In addition to pointing to the 1973-74 Arab oil embargo, which significantly increased prices of all fuels, as one unforeseen event which renders its contracts unenforceable, Westinghouse is raising an antitrust defense to the breach-of-contract charges. Westinghouse alleges that it is a vicim of an international cartel of uranium producers formed in Paris in 1972 which conspired to control the supply and rig the prices of uranium.
Besides raising the cartel issue as a defense in the Richmond case, Westinghouse last year filed an anti-trust suit in Illinois against 29 American and foreign uranium-producing companies it claims were part of the yellowcake cartel. In that case, Westinghouse is seeking treble damages, more than $7.5 billion.
The existence of an international cartel is not in question; the Canadian government has admitted, for instance, that a number of Canadian uranium producers, acting with the approval - and in some cases at the request - of the Canadian government, participated with others in an "informal uranium marketing arrangement" between 1972 and 1975. The Canadian government said the "arrangement" was necessary to preserve the Canadian mining industry during a period of over-supply and low prices at a time when the U.S. government had closed the large U.S. market to foreign uranium.
What apparently will be at issue is whether the worldwide cartel affected U.S. sales prices although its operations didn't involve U.S. sales. Westinghouse contends it did.
In a quest for information about the cartel's operations and its possible effect on the U.S., U.S. District Court Judge Robert R. Merhige Jr., who will be hearing the Richmond case, went to London this summer where Westinghouse lawyers hoped to elicit testimony from officials of Rio Tinto Zinc of Britain, one of the producers named by Westinghouse in its antitrust suit. There is a convention to which the U.S. and the British are both parties which allows testimony to be taken from citizens of other countries in civil proceedings. Although Rio Tinto Zinc's officials resisted, the British courts upheld Westinghouse's right to question them. When testimony began, however, the officials took the Fifth, noting that an American grand jury also was investigating the cartel charges and information they might give could be used to indict them.
At that point, the U.S. government advised Judge Merhige that it would grant the officials immunity so that they would not be prosecuted if they testified, thus taking away their need to invoke the Fifth. Rio Tinto Zinc's officials, however, then contended the U.S. grant of immunity constituted an intervention of the U.S. government, thus taking away the "civil" nature of the proceeding, and went back to the British courts seeking protection from testifying. A hearing before a panel of the House of Lords, the supreme arbiter in Britain, has been scheduled for Oct. 13 to determine whether as the Rio Tinto Zinc officials claim, the grant of immunity has converted the private litigation into criminal public litigation, thus making it legally possible for them to refuse to cooperate.
Altogether, 17 lawsuits involving 27 utilities were filed against Westinghouse. One case involving three Pittsburgh-area utilities was settled in March out of court when Westinghouse agreed to provide an undisclosed new equipment, technical services and engineering to the utilities.
Of the remaining 16 cases, 10 involving some 20 utilities have been consolidated for purposes of the trial which begins Monday. As a group, the utilities hold contracts calling for the delivery of a total of 71.6 million pounds of yellowcake at prices between $8 and $12 a pound; Vepco's contract calls for delivery of 11.7 million pounds. The world price is now more than $40 a pound.
The Richmond trial is expected to run months, and the size and complicated nature of the case apparently have strained the courthouse's facilities considerably. There was a standing-room crowd during the pretrial conference, with the 60 to 70 lawyers representing the utilities barely able to all squeeze into the courtroom at once. The utilities are expected to put about 145 witnesses on the stand and introduce into evidence about 4,000 documents. Westinghouse indicated it may have as many as 50 witnesses - the figure no doubt will increase - and plans to introduce about 3,900 documents.
This summer, the court sent three employees to New York to try to pick up pointers on how to handle a complex trial from persons associated with the long-running, massive Justice Department antitrust suit against International Business Machines Corp.