ML19319C546
| ML19319C546 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 09/29/1975 |
| From: | Bell R, Berger M, Charno S JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190981 | |
| Download: ML19319C546 (7) | |
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i-UNITED STATES OF AMERICA f
NUCLEAR REGULATORY COMMISSION J, [ '.
1 BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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< The Toledo Edison Company
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The Cleveland Electric Illuminating
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Docket No~,50-346A compm.;
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(Davis-Besse Nuclear rower Station)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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and 50-441A (Perry Plant, Units 1 and 2)
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The Toledo Edison Company, et al.
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Docket Nos. 50-500A (Davis-Besse Nuclear Power Station,
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and 50-501A
. Units 2 and 3)
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RESPONSE CF THE DEPARTMENT OF JUSTICE TO APPLICANTS' REFILED MOTICN FOR
SUMMARY
DISPOSITION For the fifth time in this litigation (See Department of Justice's briefs filed June 14, 1974; October 10, 1974; April 7, 1975 and May 12, 1975), Applicants have filed a Motion in a con-tinuing attempt to-eliminate from the issues to be tried' in this case one of the factual allegations which, together with other incidents, makes up the " situation inconsistent with the antitrust laws" alleged by the Department of Justice (hereinafter " Depart-ment").
In this latest attempt to dispose of the issues raised by The Cleveland Electric Illuminating Company's (CEI's) continuing refusal cf AMP-Onio's r2 crest te wPeel P.LSMY -cuer to t.".e Cit'.
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Cleveland over CEI's transmission facilities, Applicants' attempt to confuse arguments made by other parties to this proceeding with those of the Department.
Specifically, Applicants' attempt to equate the position of the Department with the arguments of AMP-Ohio that the PASNY situation is in itself a " situation inconsistent with the antitrust laws" contemplated by the statute.
In the four briefs filed,previously with this Board, the
'bepartment has spelled out the reasons for its wholly different view of the PASNY incident.
Applicant and the Board are well aware that the Department's view of the PASNY incident differs from the position taken by AMP-Ohio.
AMP-Ohio views the PASNY incident in and of itself as a situation inconsistent with the antitrust laws.
In contrast, the Department has repeatedly argued that the PASNY incident is one part of a set of incidents which together form the " situation" contemplated by the statute.
As the Department stated in its October 10, 1974 Brief, which was addressed to the precise issue once again raised by Applicant's present Motion:
1 party is required to allege and prove only that there is a nexus between a situation inconsistent with the antitrust laws, which may be ccmprised in part by a refusal to wheel, and the activities under the license.
Department's Brief at p.
2 (Emphasis added).
Purther, as set forth in' detail previously, the Department's'*conten-tions concerning the existence and nature of nexus are completely different from those advanced by AMP-Ohio.
Thus, Applicants' affidavits and argument directed at AMP-Ohio's allegations of nexus do not even address the Department's position, let alone eliminate any possible issues of fact relating to nexus.
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Moreover, the Department itself has previously distinguished
'its treatment of the PASNY issues from those of AMP-Ohio on this matter.
In the same October 10, 1974 Brief, the Department stated:
The Applicants also appear to erroneously assume that all-
_of the contentions of the Department of Justice, the Com-mission Staff and the City of Cleveland concerning third-party wheeling can be eliminated merely by having the Licensing Board rule on the legal sufficiency of AMP-Ohio's allegation of nexus.
The most sweeping possible action which could be taken by the Licensing Board in response to Applicants' Motion could result only in the termina-tion of AMP-Ohio's intervention; without testing the other parties' allegations of nexus, the Licensing Board e
could not properJy eliminate third-party wheeling as an issue in this proceeding.
Department's Brief at p.
3.
The Department's position is consistent with well established rules of antitrust litigation; there, it is well understood that independent acts, which may be lawful in and of themselves, when viewed in their entirety can form violations of the Sherman Act.
Courts have reiterated time and again that acts which, taken together, form anticompetitive behavior, should not be dismembered and examined out of context.
For example, it is the totality of acts, some of them falling short of an actual violation of law and some of them wholly innocent when standing alone, that may make up the antitrust violation of monopoli:ation.
See e.g.,
United States v. Aluminum Co. of America, 148 F.2d 416 (2d Cir.
1945)..
By analogy, in this instance, Applicants seek to eliminate from the totality of consideration an iuportant element in the case alleged by the Department, by asking this Board to examine it alone and out of context.
Clearly, the action urged upon this Board by the Applicants would be flatly rejected in an antitrust proceeding before a Federal District Courb.
In Paley v. Greenberg, 3
t 16 F.R'.' Serv. 2d 1074 (S.D.N.Y. 1972), the Court denied a motion
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i for partial summary judgment under Rule 56 of the Federal Rules of Civil Procedure, restating the principle that Rule 56 does not contemplate' summary judgments on evidentiary matters en route to a determination of final issues.
In addition, the Courts have repeatedly held that summary judgment should be employed sparingly in antitrust litigation.
E.g., Poller v. Columbia Broadcasting Eyst-m, 308 U.S.
464 (1967).
For the reasons set forth in briefs filed on this subject before the Borad on June 14, 1974; October 10, 1974; April 7, 1975 and May 12, 1975, and herein incorporated, the Department urges that the Board deny the Applicants' Refiled Motion.
Respectfully submitted,
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STEVEN M.
CHAPJO ~
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.ln/* ".4,: w W-JO&r;.cd MELVIN G.
BERGER 9
ahd NA RUTH G.
BELL Attorneys, Antitrust Division Department of Justice Washington, D.C.
20530 September 29, 1975
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N UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
The Toledo-Edison Company
)
- The Cleveland Electric Illuminating
)
Docket No. 50-346A Company
)
(Davis-Sesse Nuclear Power Station)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
and 50-441A (Perry Plant, Units 1 and 2)
)
)
The Toledo Edison Company, et al.
)
Docket Nos. 50-500A (Davis-Besse Nuclear Power Station,
)
and 50-501A Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of. RESPONSE OF THE DEPARTMENT OF JUSTICE TO APPLICANTS' REFILED MOTION FOR
SUMMARY
DISPOSITION have been served upon all of the parties listed on the attachment hereto by deposit in the United States mail, first class, airmail or by hand delivery, this 29th day of September 1975.
fsei9 /h. e)#'_
s RUTH G.
BELL Attorney, Antitrust Division Department of Justice
ATTACHMENT s
Douglas' Rigler, Esquire Andrew Popper, Esquire Chairman Benjamin H. Vogler, Esquire
' Atomic Safety and Licensing Roy P. Lessy, Jr., Esquire Board Office of the General Counsel Foley, Lardner, Hollabaugh Nuclear Regulatory Cctmission L Jacobs Washington, D.C.
20555 815 Connecticut Ave., N.W.
Washington, D.C.
20006 Gerald Charnoff, Esquire William Bradford Reynolds, Esquire Ivan W. Smith, Esquiro Shaw, Pittman, Potts & Trowbridge Atcmic Safety and Licensing 910 Seventeenth Street, N.W.
Board Washington, D.C.
20006 Nuclear Regulatory Commission Washington, D.C.
20555 Lee C. Howley, Esquire Vice President & General Counsel The Cleveland Electric John M. Frysiak, Esquire Illuminating Company Atomic Safety and Licensing Post Office Box 5000 Board Cleveland, Ohio 44101 Nuclear Regulatory Commission Washington, D.C.
20555 Donald H.
Hauser, Esquire Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Board Panel Illuminating Comcany Nuclear Regulatory Commission Post Office Box 5000 Washington, D.C.
20555 Cleveland, Ohio 44101 Frank W. Karas John Lansdale, Jr., Esquire Chief, Public Proceedings Cox, Langford & Brown Staff 21 Dupont Circle, N.W.
Office of the Secretary Washington, D.C.
20036 Nuclear Regulatory Commission Washington, D.C.
20555 Chris Schraff, Esquire Office of Attorney General Abraham Braitman State of Ohio Office of Antitrust and State House Indemnity Columbus, Ohio 43215 Nuclear Regulatory Commission Washington, D.C.
20555 Karen H.
Adkins, Esquire Assistant Attorney General Herbert R. Whitting, Es' quire Antitrust Section Robert D. Hart, Esquire 30 East Broad Street Law Department 15th Floor City Hall Columbus, Ohio 43215 Cleveland, Ohio 44114 Leslie Henry, Esquire Reuben Goldberg, Esquire Fuller, Henry, Hodge David C. Hjelmfelt, Esquire
& Snyder 1700 Pennsylvania Avenue, N.W.
300 Madison Avenue Suite 550
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Toledo, Ohio 43604 Washington, D.C.
20006
. Thomas A. Kayuha, Esquire James B.
Davis, Esquire Oh!.o. Ediaon Company Robert D.
Hart, Esquire 47 North Main Street Director of Law Akron, Ohio 44308 City of Cleveland 213 City Hall David M. Olds, Esquire Cleveland, Ohio 44114 9ee, Smith, Shaw & McClay 7'
Jnion Trust Building Lee A.Rau, Esquire
- ,tesburgh, Pennsylvania 15219 Joseph A.
Rieser, Jr., Esquire Reed, Smith, Shaw & McClay Mr. Raymond Kc9.ukis Suite 404 Director of Utilitics Madison Building City of Cleveland Washington, D.C.
20005 1201 Lakeside Avenue Cleveland, Ohio 44114 e
Wallace L. Duncan, Esquire Jon T.
Brown, Esquire Duncan, Brown, Weinberg
& Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Edward A.
Matto, Esquire Assistant Attorney General Chief, Antitrust Section 30 East Broad Street 15th Floor Columbus, Ohio 43215 Richard M.
Firestone Assistant Attorney General Antitrust Section 30 East Broad Street 15th Floor Columbus, Ohio 43215 Victor F.
Greenslade, Jr..,
Esquire Principal Staff Ccunsel The Cleveland Electric Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 Robert P. Mone, Esquire George, Greeke King, McMahon
& McConnaughey Columbus Center 100 East Broad Street Columbus, Ohio 43215
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