ML19319C551
| ML19319C551 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 09/26/1975 |
| From: | Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190986 | |
| Download: ML19319C551 (10) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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The Toledo Edison Company and
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Docket Nos.bO _d The Cleveland Electric Illuminating
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50-500A Company
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50-501A 4
(Davis-Besse Nuclear Power Station, )
Units 1, 2 and 3)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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50-441A (Ferry Nuclear Power Plant,
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Units 1 and 2)
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ANSWER OF THE CITY OF CLEVELAND, OHIO, TO APPLICANTS' REFILED MOTION FOR
SUMMARY
DISPOSITION Pursuant to Section 2. 749 of the Commission's Rules of Practice and the Board's statements during the September la,1975, Prehearing Conference, the City of Cleveland (Cleveland) files this answer to Applicants' Refiled Motion for Summary Disposition.
Cleveland is h,ndicapped in its ability to answer Applicants' motion in that it is not clear what Applicants are seeking. Because Applicants' motion is argued in conclusory terms and refers to prior motions for summary disposition relating to specific nexus arguments raised only by AMP-O which is no longer a party, it is presently unclear what Applicants 8002190 N M
2 are arguing with respect to Cleveland's contentions.1/ Indeed, the state-ment of material facts and affidavits incorporated by reference by Appli-cants relate solely to contentions raised by AMP-O and have nothing what-soever to do with any issues raised by Cleveland. 2/
Applicants make it very plain that the present motion is merely a renewal of their original motion of August 15, 1974. On October 21, 1974, 3/
Applicants characterized their original motion as calling upon the Board, for the first time, to determine whether there exists a genuine issue of material fact regarding the blanket assertions in AMP-Ohio's pleadings that installation of Perry Nos. 1and 2 will (a) eliminate the present capability of the CEI system to accept and transmit 30 mw of PASNY power to the City of Cleveland's Municipal Electric Light and Power (MELP) plant, (b) disrupt the pattern of power flows on the CEI system (assuming after instal.
lation, a temporary loss of the Perry generating or transmission facilities) so as to create an overload condition on the facilities handling the PASNY deliv-eries, or (c) cause an unstable situation on the CEI system which would lead to an interruption in the transmission of 30 mw of PASNY power.
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i Renewing the motion at this time when AMP-O is no longer a party to these proceedings makes no sense. Neither Cleveland, the NRC Staff, nor the Department of Justice has argued that the unlawful refusal to wheel 1,/ Applicants' prior motions for summary. disposition have been repeatedly denied.
2/ The attached document obtained from CEI during discovery demonstrates that CEI at one time did take the position that it lacked transmission capacity to transmit the PASNY power. Accordingly, Mr. Davidson's affidavit is at best disingenuous.
3/ Applicants' Reply to the Several Memoranda Filed by the Other Parties in Opposition to Applicants' Motion for Summary Disposition, at page 5.
See also Applicants' Proposed Order Granting Summary Disposition.
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. PASNY power was relevant to this case for the reasons addressed by the motion for summary disposition. 4/ Applicants beat a dead horse.
Cleveland's statement of the relevance of the unlawful refusal to wheel PASNY power is fully sot forth in its Answer in Opposition to Appli-cants' Motion for Summary Disposition, filed with the Board on October 10, 1974. Cleveland's position with respect to the relevance of the unlawful refusal to wheel was also described in its September 5,1975, statement of the nature of its case. Applicants' separate short and concise statement of material facts as to which Applicants contend that there is no genuine dispute is completely irrelevant to the contentions made by Cleveland. For that reason alone, Applicants' motion should be denied for failure to comply in any realistic fashion with Section 2. 749 of the Commission's Rules of Practice. Even if the statement of material facts and affidavit were relevant, they fail to address the effect of the installation of Davis-Besse Units 2 and 3.
Cleveland, of course, is a party to Davis-Besse 2 and 3 and has raised the same issue with regard to the unlawful refusal to wheel PASNY power in that proceeding.
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Despite Applicants' repeated assertions that the parties have raised the unlawful refusal to wheel PASNY power as an isolated incident, such is clearly not the case. Cleveland does believe that CEI's unlawtal refusal to wheel PASNY power is by itself a situation inconsistent with the antitrust laws and does alone have the requisite ne:cus to the Applicants' activities 4/ Nor does Cleveland deny that AMP-O's contentions are valid, especially in light of the CEI document attached hereto.
4-under the sought for license to require conditions to be placed upon a license should such a license be issued. However, in th's case, the unlawful refusal to wheel is not an isolated incident. Attempts by Applicants to isolate the un1>~ful refusal to wheel are simply a sham.
Inasmuch as Cleveland, NRC Staff and the Department of Justice have raised a number of matters which, taken together, prove the existence of a situation inconsistent with the antitrust laws, they are not required to prove that each constituent part of that situation, taken in isolation, would have the required nexus. This Board has already ruled that the nexus which the Commission referred to in its Waterford opinion is the connection between a " situ-ation" inconsistent with the antitrust laws and "acti-vities" under the license. 1/
The fact that many of the activities of Applicants which make up the
" situation" would, if they existed in isolation, be by themselves " situations" is no justification for treating them in isolation now. b/
In fact, Applicants n1 awful refusal to wheel PASNY power to Cleveland is an attempt by CEI to maximize the competitive advantage it
' will gain through its monopoly access to nuclear power from Ferry and Davis -B e s s e.
This alone establishes a clear nexus between the unlawful refusal to wheel and the activities under the license.
Applicants attempt to argue in their renewed motion that a grant of the motion would in some manner narrow the present evidentiary hearing.
1/ Ruling of the Board with Respect to Applicants' Proposal for Expediting the Antitrust Hearing Process.
6/ Generally relevant to Applicants' motion is the Appeal Board's decision in Wolf Creek, ALAB-279.
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0 e Yet Applicants admit, at page 4 of their motion, that evidence of the unlaw-ful refusal to wheel would still be admissible to prove a situation inconsis-tent with the antitrust laws. Since precisely the same evidence is to be admitted, it is difficult to understand how the evidentiary hearing would be narrowed.
The uncontestable fact remains that CEI will not wheel power for Cleveland if doing so will improve Cleveland's ability to cornpete. Although CEI's unlawful refusal to wheel PASNY power is by itself inconsistent with the antitrust laws, it is also evidence of CEI's more general refusal to wheel power for Cleveland.
Applicants' Renewed Motion for Summary Disposition fails to address the nexus contentions of Cleveland, NRC Staff and the Department of Justice. It addresses contentions mooted by AMP-O's withdrawal from the proceedinge It is confusing and ambiguous and can only divert the parties' time and energy at a time when they are laboring to prevent further delays in the hearing schedule. Given its irrelevancy to any party's contentions, it boarders on.he frivolous.
' WHEREFORE, the City of Cleveland prays that Applicants' motion for summary disposition be denied and that they be directed not to file the same motion yet again in this proceeding.
Respectfully submitted, bebM
/N/
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Reuben Goldbe David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 Telephone (202) 659-2333 i
Attorneys for City of Cleveland, Ohio James B. Davis Director of Law Robert D. Hart First Assistant Director of Law City of Cleveland City Hall, Room 213 Cleveland, Ohio 44114 September 26, 1975 Attachment
ATTACHMENT
':he struc.cli 6 CicycLend limicipal Light Flant is c11rsing t3 a otrav in en attc=pt to keep its head cbove vnter, ace = ding to Lee C. IIcvicy, l'11"-4"nti g Cc:p:ny vice precident and General cc= col.
The strav the 1in:y plcnt is clirusi 3 to is the hope that it can inport hydroelectric power fras Ucv York Stato. According to FAynend 111dukis, city utilitics director, 30 =cc:vatts of pover, or cbcut a third of the plant's Potcatial, can bo purchtcod frem the poucr Authority of the Ctate of k!cu York (p/E'Y).
'% overuhn1-*"; barriers atend in the U:y of thic hcps," caid IIculef.
'71rct they =nst get the pcuer, cnd cccand, they =n:t to Oblo to trcnsnit it.
"It is a vell4.:notn fact that cento scocr chcrtcscs cra c:Uccted en the cast cccat,:,mrticula-ly in the event cf a ocvere vinter. 15ct cact ecc3t C = crating plants re27 cn oil as a fuel ccurce, cnd cil is in critical supply. Pablic power cc=p:nics in Veie.=t end penn '1vania cro ec:.;ating with Clevc1?vd for the pcuor
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titich ::ifat be cvM'+10 frns tha p!EiY scol. With tho chundanco of coal in Chio, it is hichly ur'4'*?Iy that Clwelcud uculd trin cut ever the castern states.
"1W/ vculd e:Geet to wheel the power et:r The Illt=inatins Cc :;c y's inter.
ecenceted tr==ic:ics 14"ce.
This is 1:3o:31513 at this ti=c.
1*ith the c c cy chcrtcso, it is i=perativa that to keep thcce lines cpan for the use of these entual ec::. ccnco c=penies with then to her/---2.W-1:-~l ecreecnts. This is for the protectica of cur oss cuct =c 3.
"O2 ring tha p0st coveral ajcars, va herc demo cvor;,@.ing 30cciblo to cosict the Ihmicipal Li ht IGcnt, often cupplying for techs at a tino up to 30 percent of its reclirc. cats, etcut the encunt :M/ teuld ::ccive fres L*cv York. 1-fe trill continue this cccict:nce in cry tny rc:3:=blo.
"Dat va c=nct jacp:rdi:2 cur chility to curly power to cur cin cust=:rc, in order to supply :in:7 cus'cencrs. t'a c hply c = ot relcaca the uco of cur trc: uric ics lines for the uno of the r=icipal 71:nt," Ecul'y c= sh: iccd.
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CERTIFICATE OF SERVICE I hereby certify that service of the foregoing Answer of the City of Cleveland, Ohio, to Applicants' Refiled Motion for Summary Disposition has been made on the following parties listed on the attachment hereto this 26th day of September,1975, by depositing copies thereof in the United States mail, first class, postage prepaid, f dI!-
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David C. HJ4Lmfelt Attach.ncnt l
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ATTACHMENT Atomic Safety and Licensing Board Jon T. Brown, Esq.
U. S. Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palmer Washington, D. C.
20555 Suite 777 1700 Pennsylvar.ia Avenue, N. W.
Mr. Frank W. Karas, Chief Washington, D. C.
20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U. S. Nuclear Regulatney Commission AMP-O, Inc.
".Vashington, D. C.
i.0555 Municipal Building
.i0 High Street Douglas V. Rigler, Esq. Chairman Hamilton, Chio 45012 Atomic Safety and Licensing Board Foley, Lardner, Hollabaugh Melvin C. Berger, Esq.
and Jacobs Joseph J. Saunders, Esq.
Schanin Building Steven Charno, Esq.
815 Connecticut Avenue, N. W.
Antitrust Division Washington, D. C.
20006 Department of Justice Post Office Box 7513 Zvan W. Smith, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board Panet William T. Clabault, Esq, U. S. Nuclear Regulatory Commission David A. Le ckie, Esq.
Washington, D. C.
20555 Department of Justice Post Office Box 7513 John M. Frysiak, Esq.
Washington, D. C.
20044 Atomic Safety and Licensing Board U. S. Nucle - Regulatory Commis sion Gerald Charnoff, Esq.
Washington, D. C.
20555 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. W.
Benjamin H. Vogler, Esq.
Washington, D. C.
20006 Joseph Rutherg, Esq.
Office of the General Counsel Frank R. Clokey, Esq.
Regulation Special Assistant Attorney General U. S. Nuclear. Regulatory Commission Room 219 - Towne House Apartments Washington, D. C.
20555 Harrisburg, Pennsylvania 17105 Robert J. Verdisco, Esq.
Thomas J. Muns ch, Jr., Esq.
Roy P. Les sy, Jr., Esq.
General Attorney Office of the General Counsel Duquesne Light Company Re gulation 435 Sixth Avenue U. S. Nuclear Regulatory Commission Pittsburgh, Pennsyh ania 15219 Washington, D. C.
20555 David McNeil Olds, Esq.
Abraham Braitman, Esq. _
John McN. Cramer, Esq.
Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay U. S. Nuclear Regulatory Commis sion Post Office Box 2009 Washington, D. C.
20555 Pittsburgh, Pennsylvania 15230
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Pags 2 ATTACHMENT (Continusd)
John R. White, Esq.
Leslie Henry, Esq.
Thomas A. Kayuha, Esq.
Fuller, Henry, Hodge & Snyder Ohio Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 John Lansdale, Jr., Esq.
Pennsylvania Power Company Cox, Langfo rd & Brown 1 East Washington Street 21 Dupont Circle, N. W.
New Castle, Pennsylvania 16103 Washington, D. C.
20036 Lee C. Howley, Esq.
Donald H. Hauser, Esq.
Vice President and General Counsel Corporate Solicitor The Cleveland Electric Illuminating Co.
The Cleveland Electric Illuminating Co.
Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Chio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.
U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulatory Commis sion Washington, D. C.
20555 Washington, D. C.
20555 Dr. John H. Buck Michael C. Farrar Atomic Safety and Licensing Appeals Board Atomic Safety and Lic, asing Appeals Bd.
U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatcry Commission Washington, D. C.
20555 Was hingto n, D. C.
20555 Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Ed.
U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulato ry Commis sion Washington, D. C.
20555 Was hington, D. C.
20555 Edward A. Matto Karen H. Adkins Assistant Attorney General Richard M. Firestone Chief, Antitrust Section Assistant Attorneys General 30 East B road Street, 15th floor Antitrust Section Columbu s, Ohio 43215 30 East Broad Street, 15th floor Columbus, Chio 43215 Christopher R. Schraff, Esq.
As sistant Attorney General Howard K. Shapar, Esq.
Environmental Law Section Executive Legal Director 361 East Broad Street, 8th Floor U. S. Nuclear Regulatory Commis sion Columbus, Ohio 43215 Wa shin gton, D. C.
20555 Andrew F. Popper, E sq.
Joseph Rieser, Esq.
Office of the Executive Legal Director Reed, Smith, Shaw & McClay U.S. Nuclear Regulatory Commis sion 1155 Fifteenth Street, N. W., Suite 440 Washington, D. C.
20555 Washington, D. C.
20005 l