ML19210C566
| ML19210C566 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 10/30/1979 |
| From: | Goldberg R, Hjelmfelt D, Schulman J, Weiner J CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C. |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 7911190124 | |
| Download: ML19210C566 (10) | |
Text
.
N ng NRC PUBLIC DOCOM M 3
UNITED STATES OF AMERiLA y
\\\\d StC 2
\\p S 6
NUCLEAR REGULATORY COMMISSION 0
b p
Before the Commission g
g In the Matter of
)
)
THE TOLEDO EDISON COMPANY
)
Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING
)
50-500A COMPANY
)
50-501A (Davis-Besse Nuclear Power S tation,
)
Units 1, 2 and 3)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket Nos. 50-440A COMPANY, et al.
)
50-441A (Perry Nuclear Power Plant
)
Units 1 and 2)
)
ANSWER OF THE CITY OF CLEVELAND TO PETITION OF OHIO EDISON COMPANY AND PENNSYLVANIA POWER COMPANY'S PETITION FOR REVIEW OF ALAB-560 on October 22, 1979, Ohio Edison Company (OE) and Pennsylvania Power Company (PP) filed their petition for review of the Atomic Safety and Licensing Appeal Board's decision o f S ept emb er 6, 1979.
City of Cleveland, a party to the proceedings below, makes this answer in opposition.
Findings of Fact To the extent to which the petition cottid b e construed to request a review of findings of fact, it must be denied as clearly contrary to the Commission's Rules, 10 CFR Section 2.786(h)
( 4) (11).
In this regard, assignment of error number 1 must be denied, assignment of error number 4 must be denied, assignment of error number 5 must be denied, assignment of error number 10 must be denied, and assignment of error number 11 must be denied.
Each 1354 157 om oo / 24
/14
of those assignments deals with matters that are factual in nature.
Since no allegation is made, and none could be, that the facts sought to be reviewed were decided in a manner contrary to the resolution of the same issue by the Licensing Board.
None of the errors questions the law applied; rather, each is addressed to the facts found to be true.
Issues Treated In Answer To Other Petitions Certain of the matters raised by OE and PP were also raised by Duquesne Light or The Cleveland Electric Illuminating Company (CEI) and The Toledo Edison Company (TECO).
In the interest of administrative economy, the City will net repeat here what it has said in response to those petitions but will merely indi-cate which assignments of error have been treated elsewhere.
Issue number 7, dealing with the per se application of antitrust rules in S ection 105(c) proceedings has been treated in City's response to the j oint petition of CEI and TECO.
Issue number 9 has been treated in the City's answer to the petition of Duquesne Light and the joint petition of CEI and TECO.
Issue number 2,
dealing with the scope of relief has been treated in the City's answer to the joint petition of CEI and TECO.
That Conduct Scrutinized Under Section 105(c) Must Be Limited To Activities Under The Licenses.
OE and PP argue that the Appeal Board erred in holding that conduct scrutinized and evaluated by this Commission on anti-trust grounds need not bear a reasonable relationship to activities under the licenses sought.
This contention is at odds with the i354 158
entire course of antitrust litigation before the Commission.
The Commission itself in Louisiana Power & Light Company, CLI-73-7, 6 AEC 48 (Waterford I), stated that in most circumstances its antitrust review "would not be limited to construction and operation of the facility to be licensed".
And in Waterford II, 6 AEC 619, the Commission said that the " relationship of the specific nuclear facility to applicants total system or power pool should be evaluated in every case".
The Joint Committee Report Section by Section Analysis of Section 105 states at page 31:
The standard applies to the activities of the license applicant.
The activities of others, such as designers, fabricators, manufacturers, or spppliers of materials or services, who, under some kind of direct or indirect contractual relationship may be furnishing equipment, materials, or services for the licensed facility would not constitute' activities under the license' unless the license applicant is culpably involved in the activities of others that fall within the ambit of the standard.
It is clear then that what Congress intended by the term
" activities under the license" was to focus on activities of the license applicant rather than on the activities of those who may have some peripheral involvement but are not themselves applicants.
Moreover, the limitation on the Commission's jurisdiction advocated by OE and PP makes the reference to " maintaining a situ-ation" nonsense.
The only way to determine whether the situation 1354 159
will be maintained by activities under the license is to first determine whether a situation exists.
Determining whether a situation exists requires a review of an applicant's activities prior to issuance of the license.
Further, the very contention made here was dealt with in comprehensive fashion by the Appeal Board in Kansas Gas and Electric Comoany (Wolf Creek) ALAS-2/9 as long ago as June 30, 1975.
The Commission did not exercise its power to review that decision and it has stood as the guiding doctrine for more than four years.
Finally, OE and PP fail to make any showing that this issue was raised before the Appeal Board.
This issue should not be accepted for review.
Alleged Error In The Treatment of SEC's Review Of OE Acquisition's Of Municioal Systems OE claims that the Appeal Board erroneously held that SEC review of OE's acquisition of certain municipal systems was irrelevant for purposes of commission review under Section 105(c).
The Appeal Board's discussion of municipal acquisitions is found at pages 251-55 of the Slip Opinion.
Nowhere does the Appeal Board state that SEC review was irrelevant.
The Licensing Board's findings on this issue are found at pages 5 NRC 183-90.
Nowhere does the Licensing Board state that SEC review was irrelevant.
While it is obvious from the fact that this issue was not decided in OS's favor, it is not apparent from the record that OE's evidence was dismissed as irrelevant.
Even if certain 1354 160
\\
evidence was considered irrelevant, it would not constitute an important antitrust issue worthy of review by the Commission.
Commission review was never intended to be a third level of review of all issues raised by the parties.
Rather, it is intended to effectuate the Commission's rule as a policy maker and watchdog over its procedures and jurisdiction.
If the Commission is ra engage in the day to day function of review of Licensing Board decisions, there is no need for an Appeal Board.
Alleged Violations Of OE and PP's Due Process Rights OE and PP allege generally that their due process rights were not, adequately protected.
Perhaps the best that can be said for this issue was that it was stated briefly.
All of the applicants in this proceeding were accorded more than due process.
They were permitted to file a brief that greatly exceeded the page limits established by the Licensing Board.
As a result, the applicants obtained a substantial advantage over the other parties.
OE and PP as well as the other applicants engaged in substantial discovery and had the opportunity to despose whoever they wished.
During the trial of the issues applicants were accorded wide latitude to cross-examine and to offer testimony.
Applicants selected a trial strategy of attempting to narrow the focus of this proceeding to the relationship between the City of Cleveland and CEI.
Their strategy failed and hence their whinning collection of trivial gripes.
Apparently OE and PP are renewing their complaint that they had inadequate notice of the charges against them, particularily 1354 161
their relationships with their wholesale customers.
Well b efore trial, OE and PP were put on notice of the issues to be tried.
Nonetheless, they delayed several months--
until the very eve of trial to raise their due process complaint.
Significantly during the deposition of Mr. Firestone, an OE Vice-President, individual counsel for OE did not object to questions dealing with OE's relations with its wholesale customera.
It is also significant that the broad document discovery afforded City and the Department of Justice and NRC staff included requests for documents relating to OE and PP relationships with the manicipal and cooperative electric entities in their service areas.
Finally, OE and PP argue generally that if the Appeal Board's opinion 'is allowed to stand, the investor-owned utilities will be put on notice that if they apply for a license to construct a nuclear plant, they will be subj ec t to antitrust review.
Congress put the utilities on notice when the Atomic Energy Act was amended in 1970.
Only those utilities which have engaged in anticompetitive activities have anything to fear from the process.
In fact, most of the major utilities have already chosen to submit themselves to antitrust review and have either been willing to acdept reason-able license conditions or have been found free of anticompetitive acts.
Even if the threat implied by OE and PP were true, it would provide no basis for emasculating the antitrust review process.
Contrary to the belief of OE and PP, invest'or-owned utilities are not clients of the Commission to be insulated from the will of Congress.
Wherefore, for the foregoing reasons, the City of Cleveland 1354 162
prays that the petition for review filed by OE and PP be denied.
Respectfully submitted, C. /4,;/A, /M a
David C. Hjelmfelt Suite 830 300 West Oak Fort Collins, Colorado 80521 Jack M.
Schulman, Esquire Director of Law June Weiner, Esquire First Assistant Director of Law Department of Law City of Cleveland Room 106, City Hall Cleveland, Ohio 44114 Reub en Goldb erg, Esquire Goldberg, Fieldman & Letham, P.C.
Suite 650 1700 Pennsylvania Ave., N.W.
Washington, D.C.
20006 Counsel For The City of Cleveland i354 163
UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of
)
)
The Toledo Edison Company
)
Docket Nos. 50-346A The Cleveland Electric Illuminating
)
50-500A Company
)
50-501A scavis-Besse Nuclear Power Station,
)
Units 1, 2 and 3)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
50-441A (Perry Nuclear Power Plant
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Answer of the City of Cleveland to Petition of Ohio Edison Company and Pennsylvania Power Company's Petition for Review of ALAB-560" were served upon each of the persons listed on the attached Service List by mailing copies, postage prepaid, all on this 30th day of October, 1979.
By:
M+
C Iv
.4
/'
p' David C. Hjelsfelt Counsel for City of Cleveland, Ohio 1354 164
SERVICE LIST
\\lan S.
Rosenthal, Esquire Atomic Safety and Licensing
- hairman, Atomic S af ety and Board Panel Licensing Appeal Board U.S.
Nuclear Regulatory Commission J.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Jashington, D.C.
20555 Docketing & Service Section lichard S.
Salzman, Esquire Office of the Secretary
\\tomic Safety and Licensing U.S.
Nuclear Regulatory Commission Appeal Board Washington, D.C.
20006 J.S. Nuclear Regulatory Commission Jashington, D.C.
20555 Joseph Rutberg, Esquire Benjamin H.
Vogler, Esquire
\\tomic Safety and Licensing Roy P.
Lessy, Jr.,
Esquire Appeal Board Panel Office of the Esecutive Legal Directo:
J.S.
Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission fashington, D.C.
20555 Washington, D.C.
20555
)onald L.
Flexner, Esquire Terence H.
Benbow, Esquire fanet R.
Urban, Esquire Steven A. Berger, Esquire intitrust Division Steven B.
Peri, Esquire J.S.
Department of Justice Winthrop, S timson, Putnam & Roberts 2.0.
Box 481 40 Wall Street lashington, D.C.
20044 New York, New York 10005 Im. Bradford Reynolds Walter T. Wardzinski, Esquire ihav, Pittman, Potts & Trowbridge General Attorney L800 M.
Street N.W.
Duquesne Light Company
,lashington, D.C.
20036 435 Sixth Avenue Pittsburg, Pennsylvania 15219 fack M.
Schulman, Esquire 31 rector of Law David McNeil Olds, Esquire fune Weiner, Esquire Reed, Smith, Shaw & McClay
?irst Assistant Director of Law Union Trust Building lity of Cleveland Box 2009 213 City Hall Pittsburg, Pennsylvania 15230
- leveland, Ohio 44114 Joseph A.
- Rieser, Jr.,
Esquire Frank R.
Clokey, Esquire Reed, Smith, Shaw & McClay special Assistant Attorney General Suite 900 loom 219 1150 Connecticut Avenue towne House Apartments Washington, D.C.
20036 larrisburg, Pennsylvania 17105 Michael M.
Briley, Esquire Jonald H.
Hauser, Esquire Paul M.
Smart, Esquire
/ictor F.
Greenslade, Jr.,
Esquire Fuller, Henry, Hodgc & Snyder lillian J. Kerner, Esquire P.O.
Box 2088 The Cleveland Electric Illuminating Company Toledo, Ohio 43603 35 Public Square
- leveland, Ohio 44101 1351 165
Russell J.
Spetrino, Esquire John Lansdale, Esquire rhomas A.. Kayuha, Esquire Cox, Langford and Brown Jhio Edison Company 21 Dupont Circle, N.W.
76 South Main Street Washington, D.C.
20036 Akron, Ohio 44308 Alan P.
Buchmann, Esquire Christopher R.
Schraff, Esquire Squire, Sanders & Dempsey Assistant Attorney General 1800 Union Commerce Building Invironmental Law Section Cleveland, Ohio 44115 361 East Broad Street, 8th Floor 2olumbus, Ohio 43215 Edward A.
Matto, Esquire Richard M.
Firestone, Esquire James R.
Edgerly, Esquire Karen R.
Adkins, Esquire 3ecretary and General Counsel Antitrust Section Pennsylvania Power Company 30 East B road S treet, 15th Floor 2ne East Washington Street Columbus, Ohio 43215 lew Castle, Pennsylvania 16103 Commissioner Kennedy 3r. Samuel J. Chilk Office of the Commission iecretary U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 fashington, D.C.
20555 Commissioner Bradford
- hairman Hendrie Office of the Commission 3ffice of the Commission U.S.
Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 1ashington, D.C.
20555 Commissioner Ahearne Commissioner Gilinsky Office of the Commission 3ffice of the Conmission U.S. Nuclear Regulatory Commission U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 4ashington, D.C.
20555 1354 166
.