ML19294A457
| ML19294A457 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/03/1978 |
| From: | Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| Shared Package | |
| ML19294A382 | List: |
| References | |
| NUDOCS 7811130230 | |
| Download: ML19294A457 (13) | |
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- t, UNITED STATES OF AMERICA 4 s NUCLEAR REGULATORY COMMISSION ah##s ' , 6 m A co Before the Atomic Safety and Licensing '.ppeal Board In the Matter of )
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THE TOLEDO EDISON COMPANY and )
THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-346A COMPANY )
(Davis-Besse Nuclear Power Station, )
Unit 1) )
)
THE CLEVELAND ELECTRIC ILLUMINATING )
COMPANY, ET AL. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )
)
THE TOLEDO EDISON COMPANY, ET AL. )
(Davis-Besse Nuclear Power Station, 3 Docket Nos. 50-500A Units 2 and 3) ) 50-501A OHIO APPLICANTS' COMMENTS ON THE OHIO STATUTE REQUIRING CERTIFICATION OF EXCLUSIVE SERVICE TERRITORIES FOR ELECTRIC LIGHT COMPANIES On March 28, 1978, the Ohio Legislature passed Amended House Bill No. 577, a law "to certify exclusive territory to electric light companies." On April 11, 1978, Governor James A. Rhodes ap-proved the recently enacted legislation, and, on July 12, 1978, the new law became effective. Following a request by the Ohio Ap-plicants that the Appeal Board in tne above-captioned proceeding take judicial notice of this statute, the Appeal Board issued its October 20, 1978 Order, directing the Ohio Applicants to submit their views on the relevance of the statute to the issues raised on this appeal.
7 811 13 09J36
We have divided our response into three sections. The ini-tial section briefly highlights the more significant provisions of the new Ohio law and explains the relationship of those pro-visions to preexisting restrictions imposed by Ohio on municipal entities desirous of providing electric service. Second, we have undertaken to describe briefly the relevance of the recent legis-lation to three specific issues raised on this appeal: (1) al-leged retail territorial agreements; (2) the Buckeye Project; and (3) the scope of appropriate relief. The final section of our response discusses the significance of the new law in terms of the Applicants' position that application of the antitrust laws to t'.e electric utility industry in Ohio must necessarily recognize the very limited nature of all forms of competition among electric power entities in the geographic area under scrutiny due to natural economic and technological forces, must further recognize the exis-tence of regulatory restraints on industry activities at both the state and federal levels, and then, in the competitive market struc-ture so defined, must proceed on the basis of a careful reconcilia-tion of the competing policy considerations underlying the direct regulation already in place and the indirect regulation contem-plated by antitrust enforcement.
I. Nature of Statute Amended House Bill No. 577 sets forth a procedure for the Public Utilities Commission of Ohio ("PUCO") to certify exclusive service territories for electric light companies. The operative provision of the statute, section 493 3. 82 (B) , provides as follows:
[Elach electric supplier shall file with the Public Utilities Commission a map or maps show-ing all of its existing distribution lines and the proposed boundaries of its certified terri-tory. The Commission shall prepare * *
- a map of uniform scale to show, accurately and clearly, the boundaries of the certified territory of each electric supplier as propo?,ed by such elec-tric supplier, or as established under division (A) of this section * * * .1/
Subject to certain limitations, the legislation goes on to provide that "each electric supplier shall have the exclusive right to furnisk electric service to all electric load centers located presently or in the future within its certified territory, and shall not furnish, make available, render, or extend its electric service for use in electric load centers located ' thin the certi-fied territory of another electric supplier" (section 4933.83 (A)) .
An essential element of the exclusive service areas established by the statute is the obligation that all "[e]lectric suppliers shall furnish adequate facilities to meet the reasonable needs of the consumers and inhabitants in the certified territories that they are authorized and required to serve * * *" (section 4933.83(B)).
Any proposed assignment or transfer of the rights and authority
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The referenced " division (A)" provides in relevant part (section 4933.82(A)):
[T]he boundaries of the certified territory of each electric supplier shall be considered set as a line or lines substantia.y equidistant be-tween its existing distribution lines and the nearest existing distribution lines of any other electric supplier in every direction, so that there is thereby certified to each electric supplier such land area as is located nearer to one of its existing distribution lines than to the nearest existing distribution lines of any other electric supplier.
granted by this provision must be approved by the PUCO (section 2/
4933.85).-
Amended House Bill No. 577 also specifies the procedures that are to be used for implementing Ohio's program of certified ex-clusive service areas (see sections 4933.82 (B)-(F)) . The P'JCO al-ready has drafted proposed rules for implementing these pro:edurus (see Letter from C.E. Glasco to James D. Wilson (September 7, 1978),
attached hereto as Appendix A), and a preliminary meeting between electric light companies and the PUCO staff has been held. Fur-ther meetings are planned.3/
Excluded from some of the procedural requirements of the new 4/
law are municipal electric systems (see section 4 9 3 3. 81 ( A) ) .-
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In addition, the statute provides a mechanism through which elec-tric light companies can reallocate certified territories mmong themselves so as to better rationalize the provision of electric service to Ohio consumers (see section 4933.83(E)).
-3/ Particular concern has been raised over the precise manner the Ohio Applicants can lawfully participate in the development of the certified territories in view of the antitrust license conditions drafted by the Licensing Board below. Tha PUCO staff has suggested that the electric light companies meet privately for the purpose of drawing boundary lines. While the Ohio Applicants are not reluctant to provide maps depicting their distribution facilities, different antitrust concerns may come into play with respect to placement of the boundary lines. The lawyer representing the Ohio cooperatives has taken the position before the PUCO that under the doctrine of Parker v. Brown, 317 U.S. 341 (1943), there is no obstacle to active participation by the Ohio Applicants in any boundary line drawing exercise (see Letter from Robert P. Mone to C.E. Glasco (October 3, 1978), attached hereto as Appendix B).
While the Ohio Applicants night agree with that legal analysis, in view of the backhanded treatment afforded the Parker doctrine by the Licensing Board below, there is an obvious reluctance on the cart of the Ohio Applicants to proceed without some guidance from this Appeil Board.
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The exclusion is not, however, absolute since municipal systems are afforded an opportunity under the statute to contest maps filed with the PUCO by electric light companies (section 4933.82(C)).
Nevertheless, maps depicting the certified exclusive territories of electric light companies are to:
show the service areas of municipally owned electric systems * * * . The service area of each municipally owned electric system shall include all of the incorporated area of said system and that territory within a line sub-stantially equidistant between its existing distribution lines and the nearest existing distribution line of any electric supplier in every direction. [Section 4933.82(B)]
Moreover, "[t] he existence of a municipally owned electric system service area shall not in any respect restrict or limit the bound-aries of the certified territory established for electric suppliers" (id.).
The effect of excluding municipally owned electric systems from the operation of Amended House Bill No. 577 is merely to main-tain those limitations on municipal electric plants already speci-fied in the Ohio Constitution and the Ohio Revised Code. As we previously have noted (see App. Opening Br. at 51-52, 197-98, 240; App. Reply Br. at 34-35), chief among these limitations are the restrictions of article XVIII, sections 4 and 6 of the Ohio Consti-tution. Those provisions authorize operation of a municipal utility where the " products or service of which is or is to be
- * (section 4).
supplied to the municipality or its inhabitants
- Where such a municipal utility exists, it "may also sell and deliver to others * *
- the surplus product of any [nontransporta-tion] utility in an amount not exceeding * *
- fifty percent of the total service or product supplied by such utility within the municipality * * *" (section 6).
Taken together these limitations evidence an Ohio policy recognizing the existence of municipal electric systems, where the purpose of such systems is to serve municipal inhabitants, while at the same time severely restricting the ability of such systems to serve customers outside the corporate limits of the 5/
municipality.- The new Ohio statute neither alters this policy nor expands or restricts the previously adopted 3 imitations on municipal utilities. Indeed, Amended House Bill No. 577 complements the Ohio constitutional restrictions on municipal utilities by adopting a rational system for similarly precluding the deleterious impacts of competition in this industry that arise when the service areas of contiguous utilities are not clearly delineated.
In this regard, Amended House Bill No. 577 repeals section 4905.2G1 of the Ohio Revised Code, which was the preexisting statutory provision relating to competition between electric light companies. As we previously have explained (App. Opening Br. at 55, 192-93, 206-07, 237; App. Reply Br. at 32-33 n.31),
section 4905.261, the so-called "90-day disconnect provision",
established de facto exclusive service areas in Ohio by precluding customers from switching electric service except after a 90-day disconnect period. rhe new statute formalizes the policy long recognized as the motivating force behind section 4905.261 by establishing de jure territories to be served exclusively by a single electric light company.
-5/ The " surplus product" limitation specified in article XVIII, sec-tion 6 clearly precludes full or partial requirements wholesale cus-tomers (as are all of the Ohio municipal systems locaued in the CCCT) from ever lawfully serving any customers outcide the corporate limits (see App. Opening Br. at 197-98).
II. Relevance of Statute to Specific Factual Issues Raised on this Appeal (a) Alleged territorial agreements. One of the findings made by the Licensing Board below in its Initial Decision is that certain of the Applicant companies entered into territorial agree-6/
ments dividing among themselves various retail markets.- In their exceptions, Applicants have heretofore noted the paucity of evidence supporting this erroneous finding (App. Opening Br. at 182-83, 190-92, 234-36 & n.263; App. Reply Br. at 65). In addition, Applicants have argued that, in a market where economic and statu-tory restrictions severely limit the opportunities for, or desir-ability of, competition, it must be determined whether retail ter-ritorial agreements of the kind alleged here (even on the assumption that such agreements existed) substantially lessen any cognizable form of competiton (e.g., App. Opening Br. at 41 n.43). The evi-dence of record cited by the Applicants demonstrates that such re-tail territorial agreements in the electric utility industry, even if they could be shown to exist, would have no adverse competitive effect, and, therefore, could not in any event be faulted as in-consistent with the antitrust laws.
Enactment by the Ohio Legislature of Amended House Bill No.
577 forcefully confirms this assessment of the alleged territorial agreements. The new law unambiguously makes clear the view of
-% Regardless of whether one views the evidence offered in this proceeding as sufficient to prove the existence of territorial agreements, there can be little doubt that this evidence relates at most solely to retail marketing activities. Each and every map introduced into evidence shows only the distribution facilities of various companies. In no instance are bulk power facilities that might be used to provide wholesale service depicted. Nor do any of the memoranda relating to the maps evidence any discussion with respect to wholesale service.
the Ohio Legislature that retail competition among electric light companies is neither necessary nor desirable in the provision of electric service to Ohio consumers. It certainly would be anoma-lous for a federal agency (like the NRC) to' hold that the exis-tence of alleged retail territorial agreements ten or more years ago is reason for now faulting these Applicants under the antitrust laws, while the state PUCO is currently enlisting the aid of these very same Applicants for the purpose of drawing maps that would establish certified exclusive service areas in all of Ohio.
Amended House Bill No. 577 should once and for all dispose of the misguided attempts by DOJ, the NRC Staff, and the City of Cleveland to resurrect allegations of territorial division as a basis for imposing nuclear-related license conditions.
(b) The Buckeye Project. A further claim made throughout this proceeding is the charge that participation by Ohio Edison and Toledo Edison in the Buckeye Project is inconsistent with the antitrust laws. The basis for this charge is a definition in the Buckeye Project agreements (S-188, 91.1, p. 3; S-190, 51, p. 2), in-corporating by reference the 90-day disconnect requirement of sec-tion 4905.261. This charge always has been especially perplexing to the Applicants since the 90-day disconnect requirement was only inserted into the agreements after they had been submitted, care-fully reviewed and awarded written advance clearance from Mr.
Donald Turner, then Assistant Attorney General, Antitrust Division, under DOJ's business review procedures (A-248).
Nevertheless, repeal of section 4905.261, and replacement by Amended House Bill No. 577, should resolve any remaining antitrust
concerns in this area. By its terms the Buckeye Project agreements incorporated by reference section 4905.261. Since that statute has been repealed, the reference to the section is now meaningless, and the restriction set forth in the section no longer governs the conduct of Ohio Edison and Toledo Edison under the Buckeye Project agreements. Thus, there no longer exists any basis (misguided or otherwise) for attacking the lawfulness of the Buckeye Project under the antitrust laws.
(c) Appropriate Relief. A final specific area where Amended House Bill No. 577 bears directly on this Board's consideration of the instant app"al is the area of appropriate relief. Our posi-tion on the scope and nature of relief already has been fully set forth (App. Opening Br. at 283-97; App. Reply Br. at 15-24; App.
Supp. Br. at 45). Clearly any relief ordered by the Appeal Board should not have the effect of requiring any of the Applicants to take action (or to refrain from taking action) in a manner incon-sistent with the directives of another regulatory agency. The relief fashioned by the Licensing Board below already has caused some ambiguity in this area.
Thus, License Condition la, which prohibits conditioning the sale or exchange of electric energy or the grant or sale of bulk power services upon the condition that any other entity enter into any agreement or understanding restricting the use or aliena-tion of such energy or services to any customer or territories, could be read as precluding the types of activities the State of Ohio (and its PUCO) are now proposing to require from the Ohio Applicants. Obviously, a direct conflict between Ohio's regula-
tory requirements and those imposed by the NRC must be avoided.
No less important, however, is the avoidance of the potential for conflict and the uncertainties introduced when the Ohio Appli-cants cannot determine for themselves whether certain conduct is inconsistent with the antitrust license conditions that might be imposed by the NRC.
The Appeal Board certainly should not be insensitive to such concerns in reviewing the loosely worded antitrust conditions formulated by the Licensing Board. The recent enactment of Amended House Bill No. 577 underscores the infirmity of the deci-sion below to devise sweeping relief which is inattentive to the established nexus requirements announced by the Commission. Anti-trust enforcement, even if found in some respect to be necessary (but see App. Opening Br. at 129-33; App. Reply Br. at 17-24; App. Supp. Br. at 37-38) is not a talisman permitting the imposi-tion of license conditions such as License condition la which go well beyond the scope of this agency's nuclear expertise and in-trude unpermissibly into areas reserved for other federal and state regulatory agencies.
III. Relevance of Statute to Legal Issues Raised on this Appeal A final point with respect to the relevance of Amended House Bill No. 577 is its relation to what we believe to be a primary task of this Appeal Board in the instant proceeding: that is, the adaptation of antitrust principles adopted on the basis of market analyses in settings significantly different from the
market settings presented by the electric utility industry in Ohio and Pennsylvania to the market realities that exist in the instant proceeding. Our earlier briefs have discussed in a variety of ways the need for a tailoring of broad antitrust principles to accommodate the competitive framework in this industry that has already been molded by natural forces and existing regulatory restraints. In addition, we have explained at length the manner in which such an analytical approach should be undertaken on the facts of this case and the results that must be reached.
Without limiting the scope of those prior arguments, we be-lieve, at a minimum, that this Appeal Board must recognize and respond to the policy issues raised by the very limited nature of competition among electric utilities in Ohio and Pennsylvania and by the very real dangers associated with unfettered competi-tion in such a market setting. In addition, we believe that this Appeal Board must reconcile the divergent approaches to regula-tion mandated by state and federal legislation on the one hand, and by the antitrust laws on the other hand. Where the policies underlying these different modes of regulation conflict -- as we previously have noted that they do -- this Appeal Board must make an explicit and reasoned assessment of how such a reconciliation is to be made.
Amended House Bill No. 577 obviously must be a part of this harmonization process. In a very narrow and parochial sense, the statute is simply another piece of the " situation" -- in this case additional legislation at the state level -- which must be
assessed before determining whether there exists a " situation" inconsistent with the antitrust laws. If viewed only in this manner, however, the true importance of Amended House Bill No.
577 most likely will be lost. This is because Amended House Bill No. 577, in concrete and unambiguous terms, makes very clear Ohio's legislative policy against competition among the electric utilities in the state.
Although implemented in various ways throughout the years, this policy against competition has been a constant signal to all Ohio utilities. Not surprisingly, it has played an important role in shaping industry practices that have emerged in this market setting defined by natural forces and regulatory super-vision. The Licensing Board below chose to ignore such realities, electing instead to fault the Ohio Applicants on abstract anti-trust principles having little meaning in the context presented by the evidence of record. We have urged in our briefs here that this Appeal Board correct the errors committed below by giving full recognition in its antitrust analysis to the essential nature of the electric utility industry in Ohio and Pennsylvania and the established economic realities which compel states like Ohio to adopt policies such as reflected in Amended House Bill No. 577.
This harmonization process is essential to a proper resolution of issues presented in this proceeding.
Enactment of Amended House Bill No. 577 underscores the validity of the approach to this case that Applicants have urged on this Commission from the outset. In the face of current state legislation establishing certified exclusive service areas it
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makes little practical sense, and serves no economic purpose, to fault conduct or fashion license conditions for the sole aim of promoting competition in a market setting where competition has long been recognized by governmental authorities as contrary to the public interest. This is not to say that the Applicants are free to act as they please in this industry -- far from it.
But, it does mean that if the Applicants' conduct, as evidenced by their policies with respect to nuclear access (see A-44), is sufficient to satisfy the primary thrust of section 105(c) of the Atomic Energy Act in making available to all entities nuclear power on reasonable and nondiscriminatory terms, then this Com-mission's antitrust responsibilities are fully satisfied.
IV. Conclusion For all these reasons, the Ohio Applicants believe that enact-ment of Amended House Bill No. 577 reinforces the positions pre-viously urged upon this Appeal Board by the Applicants, and re-quires reversal of the Initial Decision rendered by the Licensing Board below.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE
- h. SL Wm. Bradford Rgynolds w
Robert E. Zahler Counsel for Applicants Of Counsel:
SQUIRE, SANDERS & DEMPSEY FULLER, HENRY, HODGE & SNYDER WINTHROP, STIMSON, PUTNAM & ROBERTS REED SMITH SHAW & McCLAY Dated: November 3, 1978
STATE OF OHIO
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Chio Edisen Co.
76 S. l'ain Street AXron, Ohio 44308
Dear Mr. Wilson:
Enclosed is a draft copy of croposed rules for implementing House Bill No. 577, past by the 112th General Assembly in the 1977-1978 regular session, declaring electric light companies and including electric companies organized as non-profit cor-porations to file boundary line maps within one year from the effective date of July 12,.1978.
This draf t will serve as a basis for discussion at an informal meeting to be held at the State Office Tower Lobby Hearing Room, 30 East Broad Street, Columbus, Ohio. The meeting will start at 9.00 a.m., September 21, 1978. Please send a representative to this meeting if you care to participate in the finaliring of this procedure.
Yours truly,,
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C. E. Glasco, Chief Electric Section Compliance Division CEG:im 6-11 .
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Enclosure APPENDIX A
3CUNDARY MA? PRCCIOURE FOR ILICTRIC .:.SUP?LIIRS AS DEFINEC srcTic '933.31(A), 5 v7 5ED CcmE. [!
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b scale one inch l' -* Topographical maps of boundary line drawings, 1, equals 2,000 f eet, shall be used exclusively in all filings. ,
I Distribution line maps showing geograpnical location of
- 1 I. disttibution f acilities as they existed on January 1, 1977, were I
i under construction on that date, or for which contracts had been
- signed, must be submitted to the Commission as supporting mat-f ~
erial for boundary maps. Maps showing distribution line loca-tions will be acceptable with any legible scale. Distribution
- maps of lines not pertinent to boundary determination need not be supplied.
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i Three copies of each boundary map submitted for approval Cne shall be filed with three copies of the transmittal letter.
copy will be stamped aoproved, or not approved, and it shall t
include questions which have arisen. This copy will be returned
! to the company or corporation.
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i Cn or before July 12, 1979 each electric supplier (defined in Section 4933.31(A), Revised Code) shall file with tne Public Utilities Commission a map or maps showing c__ .. its existing distribution lines (defined in Section 4933.31 (C)) and a map or maps showing the proposed boundaries of its certified territory z;
1;f (defined in Section 4933.31( ).
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' Natural boundaries such as expressways, railroad tracks, i
i reads, rivers, creeks, wooded areas, political subdivisions, etc.
should be used for area beundaries where possible and practical.
When a boundary map involves more than one adjoining area, alpnabetical letter designations wi th arrows shall clearly indi-este the exact point of meet with eacn ad;acent service territory.
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Signed concurrences shall be indicated on the appropriate '
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"' Co11owing Cotm This servica area boundary is ceneurred in .1y h
O the undersigned electric light ecmpany - corporation:
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' by Title Oate Th e following regulations are applicable with respect to each of said areas:
! Municipal Corporations which retail electric service, but which purchase electricity at wholesale from an electric light company or non-=unicipal non-profit corporation, shall be indicated as such on the map.
- Ilectric suppliers which border municipal corporations which retail electric service shall indicate such bounde-ies ce the mapw If such electric suppliers do not sell wholesale to such municipal corporations this shall be so indicated ors I the >ap. -
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In those areas where the distribution lines are so inter-l spersed'that continuous boundaries or contiguous service terri-caries do not result from df ect application of the provisions of I i l* 1 Section 4933.31 et. seq., Revised Code, tnen continuous :oundaries t
j shall be established so that they provide contiguous service territories to the extent possible and practical. Electric load f
' centers (defined in section 4933.31(I), Revised Code) within the certified territory of one electric supplier wnica are served by another electric supplier shall ce reated in accordance with
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Section 4933.31 et. seq., ?.ovisad Code.
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Such electric lend u.at:.rs chall be callerd "c. a ' _,2 . . ts - ,
mers". Each electric supplier which has within its certified t
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< territory overlap customers served by another electric supplier
- shall show each such overlap customer on its boundary =ap. Ia ch electric supplier serving overlap customers shall show each such
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A: :he '. f or=ai ~n' g held on Septe=her 21, 1973 at the State Office Tever vi:h rescect to the dra.f: c: proposed ules relatiQ :o "3cundar7 F.ap Procedure fer Elec=ic Suppliers as defined in Sec:1ce 4933.31(A), Revised Code", you indica:ed tha- ** ested persons were velec=e c sub=1: written cu._en:s :c you regarding the proposed rules We are subci::ing :he following cc =en:s en behalf of Ohio Rural Elec=ic Cooperatives , Inc. vhese =e=bers censis: of :he ve= 7 eight :nral elec=ic cc=panies operating 1: the Sta:e of Ohio, all of which cons:1:ute elec=ic suppliers as def'- d '- See:1cn 4933. 81(A) , Revised Code. .
I: the interest of brevd.:7, we vill act repea: all che cc==ents which we rade orally at the af orecencioned =eeting, bu: we reaffir= our reques: tha:
you :ske such cc==ents into censideration . j.=ccg cur c enns were :he fc11cv_:g :
- 1. I :he secced paragraph, firs page, begin=inz #- -'a third line, :he phrase "or f or which con = acts had been signed" appears. We believe
- his should be clarified to =ake clear tha: 1: is only " existing discibu ien lines" as defined in See:1cn 4933.3.l(C) and (D) which are to be censidered in preparing beundar7 =aps. The C issic:*s ules sus be in ccafor..i:7 vich :he statutor7 definitions.
I: is a f acr thac Aere an elec=ic supplier was ceder cen=ac: to se:re a cust:=er en January 1, 1977, tha: cus c=er is := be included <- - '- a supplier's capped area. Perhaps :his 22 :er eculd be clard##ad wy dele:ing :he above quoted ch ase and including a separata sen:ence
- o ccver si:uatiens where a centrac: := serve a cus:c=er existed en anuar r 1, 1.
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RECEWED . . _ _ _ ,
APPENDIX 3 ry 1 *;1973 Cw .
cc:.\?WRC}..,., ?. . ' -
- GEORGE. GREEx. KING. McM AHoN a McCCNNAUGHEY
? age 2 Public C:ill:1es C .__issien of Ohio Oc: ber 3, 1978
- 2. A: :he end of the fif th paragraph on the first page, we sugges: tha: -he following phrase be added at :he end of the sentence: "and consisten:
vich the purposes and p :visicus of See:icu 1933.81 thrcugh 4933.90, Revised Code." We think this =cdifica: ice vd].1 nake clear cha: while 1: is certainly :he legislative inten: that e ectric suppliers atta=pt to agree upon the =cs: practical location of beundary lines, :aking into account physical circunstances, no electric supplier can be ce=pelled to accept a boundary line which is closer to i:s existing dis:ribution lines, as. defined, : hen to these of another elaceric supplier (except in the case of :he area occuppied by cus =ers under ccc:ract en January 1, 1977.)
- 3. b the firs: paragraph at the ecp of :he second page, we hink the phrase "elec -d- '4ght c=pany-cc pera:ics" appearing in the Lur h li=e should be " electric supplier" since this is the cc::ec: statu: cry ter=.
4 The second paragraph en the sec=d page refers to municipal corpora: ices "which purchase elec=ici:7 a: wholesale f:cm an electric light cc=pany or non-=unicipal cen-profi: corpora i =." I: is a statu: cry recui ecent tha: the ser rice areas of all =nicipal carperations which p cvi e retail elec=ic service are to be indicated on the bounda:f '
caps agardless of :he source of =1 = 4 4 7 used by such cunicipal cc o acicas. The purpose of the above quoted language appears to ceed clarifica:icn. _
- 5. At cae hearing, the represen:stives cf sc=e elec=ic suppliers indicated a ceucern that any discussions be:veen elec::ic sdppliers vi:h respec:
- = the. preparacica of boundary naps night consci:uce a p ccle= because of :he possible application of edaral anti us laws or the ccedi:icns centai:ed in licenses issued by :he Nuclear Regula:crf Cc"asien.
We understand that because of this cencern sc=e of :he Ohio eleccic suppliers are aser-ing that 1: veuld be unlawful for the= :o enter in:o any discussicts vi:h c:her incer' acing elec=ic suppliers in order := i=ple=en: A= ended Ecuse 3111 577.
An'/ supplier standd=g on this positic: is is aff act saying i: is unwilling to ca__f cu: :he legislative canda e to pr ese : :aps :: :he ?UCD '-d d ~ ' g boundary d
lines d=e'-ed is accordance vi-J: the recu -~:s of the A=. E.3. 577. This is necessarily se because 1: is i= ossible te suc._i: caps showing boundary lines vi:heu: c _.unicating vi:h edjc'-d :g elec=ic suppliers te de:er '-e the lccacic-cf thei respec:ive dis =ibu 1cn lines and cus:c=ers existing as of Januarf 1, 1977. So one supplier can deter =ine :he boundary lines of its ser rice 2:aa withcut having this inf er=ation f cm the adjoining suppliers . Tne statute cente=pla:es :ha: :he ?UCC =c be burdened vi:h :he task of drawing the lines except in :hese instances where there is a disagree =en: be:veen the elec::ic suppliers as :: he proper locatics of a boundar7 -e. Ther2 is cer:ainly no
GECHGE. GREEK. KING. MCM AHON & NCCGNNAUGHEY page 3 Public Utili:1es Cc==ission of Chic Oc::ber 3,1973 pessible way to carg out the satutory sche =e of placi:g the pr'-'ry burde:.
fc :he deter =ination of boundar7 lines i: the first instance upon the elec::ic suppliers affected unless :he electric suppliers are the=selves vi g :o cocpera:e. Conseq tently, we think it is a =a::e of grave i=portance f or the successful i=ple=entatice of A=. E.3. 577 in a prc=p:, ef ficient and econc=ical canne: -ith a =i=i=u= of burden on the Cc:. ission and its staff , tha: all elec:ric suppliers be *. rill' to fully cooperate in the prepa:acice of -J:e
- ial bcu=dar7 =aps.
Our research indicates tha: ore then f or:v sea:es have ~ sc=e :7pe of legislatic involving the allocation of se: rice areas a=cng elec::ic supplier .
It is also c on k culedge cha cacy other u-d-das are subject :=
id-':aci::s en : heir service ar ea under a vide variety of s ca:e and federal sta:n=es. Ue are unaware of a single ins:ance where any sif or: of utili:ies
- o cocperate a=ccg theselves :o 2:ple=en and carry cu: the p:cvisicus of such legislation has been found to be a viciatics of the antitrust l2ws or a=7 Nuclear Regula cry C- ' <sica license -- dd 'on.
The reason is appare==.
I: is a se:: led principle of Federal lav :ha: no condue: of a private individual which is carried cu: :o i=ple=en; a state s:stute regula:ing ec=pe:i:ic es: ec sticu:e a viola:icn of the anzi: us laws even if such conduct vould be a viola:icn of the antitrust laws if~ it vere noc being car-ied cu: for
- he purpose of ingle =enting a state statu:e. Parker 7. 3r evn , 317 U .S . 341.
This principle was recently affir ed by the U.S. Supre=e Court in 3ates v. State 3a of Arizona, 97 S.CT. 2691. There are nu=ercus decisions of the cour:s following the Parker 7. 3revti princip le . See e.g., Cas Lizh: Cc=canv cf Colu= bus
- v. Georzia ?cuer C =:anv, 313 ?. Supp . '360 (M.D . Ga .) ; Alls tate : surance C:=cany v. Lanier, 361 ?.2d 370 (C.A. 4th Cir. ) .
We have reviewed =any licensing condi icas contained in pe:=i:3 issued by the Nuclear Regulatory Caission and we have found no provisions which purports :o p:chibi: a utili:7 f:c= ccopera:ing -ich other utili:1es is i=ple=enting state cer-1:orial legis12:icn. Moreover , since :he whole purpcse of such cc di:icns is to apply the principles of the Federal an:1: us: laws to the licensing of nuclea generating sta:i =s , i: eculd be illogical and incensisten: :s cenceive of a NRC license condi:icn that was intended :: be applied in a =anner conflic:ing vi:h 'a well established principle of the Federal anti::ns: Laws.
GEoacE. GREEK. KING. McM AHON a MCCCNNAUGHEY
? age 4 Fuolic U:ili:ies Cc=ission of Ohio Oc:cber 3, 1975 Accordingly, we strongly urge the Cc=issict Oc include in the proposed rules a provision subs:an:iy as follows:
"I'.ectric suppliers shall cooperate with one arother in providing all information necessary to prepare boundary maps in conforsi:7 ":h the require ents of Sections 4933.81 to 4933.90, Revised Code, and to f acili:a:e preparation of such =aps in a prc=pt, efficien: and economical
=anner and to cini=ise potential dispuces concerning boundar7 maps sub=1::ed to the Cud.ssion by elec:ric suppliers ."
In our opinion such a provision would 2o: resui: in a viola:icu of any Federal an:1:rus: laws or any Nuclear ?.egula:or7 C issica licensing condi: ices .
If the Cc=ission has any doub: vich respect Oc this =atter, we would appreciate an opportunity to =eet wi .h the Cc=ission staf f to discuss the =a::e #"--'er and sub=1: additional 1:for=stion in suppor: of our position.
Very tr :ly yeur s, e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
THE TOLEDO EDISON COMPANY and )
THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-346A COMPANY )
(Davis-Besse Nuclear Power Station, )
Unit 1) )
)
THE CLEVELAND ELECTRIC ILLUMINATING )
COMPANY, ET AL. ) Docket Nos. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )
)
THE TOLEDO EDISON COMPANY, ET AL. )
(Davis-Besse Nuclear Power Station, ) Docket Nos. 50-500A Units 2 and 3) ) 50-501A CERTIFICATE OF CERVICE I hereby certify that copies of the foregoing " Ohio Appli-cants' Comments on the Ohio Statute Requiring Certification of Exclusive Service Territories for Electric Light Companies" were served upon each of the persons listed on the attached Ser-vice List, by hand delivering copies to those persons in the Washington, D.C. area, and by mailing copies, postage prepaid, to all others, all on this 3rd day of November, 1978.
SHAW, PITTMAN, POTTS & TROWBRIDGE By: -S k k Wm. Bradford Reynolgs Counsel for Applicants
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )
)
THE TOLEDO EDISON COMPANY and )
THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-346A COMPANY )
(Davis-Besse Nuclear Power Station, )
Unit 1) )
)
THE CLEVELAND ELECTRIC ILLUMINATING )
COMPANY, ET AL. ) Docket Nos. 50-440A (Perry Nuclear Power Pla t, ) 50-441A Units 1 and 2) )
)
THE TOLEDO EDISON COMPANY, ET AL. )
(Davis-Besse Nuclear Power Station, ) Docket Nos. 50-500A Units 2 and 3) ) 50-501A SERVICE LIST Alan S. Posenthal, Esquire Ivan W. Smith, Esqujre Chairman, Atcmic Safety and Atcmic Safety and Licensing Board Licensing Appeal Board U.S. Nuclear Pegulatory Conmission U.S. Nuclear Pegulatory Ccnmission Washington, D.C. 20555 Washington, D.C. 20555 John M. Frysiak, Esquire Jerome E. Sharfman, Esquire Atcmic Safety and Licensing Board Atcnic Safety and Licensing U.S. Nuclear Pegulatory Ccnmission Appeal Board Washington, D.C. 20555 U.S. Nuclear Regulatory Ccumission Washington, D.C. 20555 Atcmic Safety and Licensing Board Panel Richard S. Salzman, Esquire U.S. Nuclear Regulatory Ccumission Atcmic f9tfety and Licensing Washington, D.C. 20555 Appeal oard U.S. Nuclear Pegulatory Ccnmission Docketing & Service Section Nhshington, D.C. 20555 Office of the Secretary U.S. Nuclear Pegulatory Ccmnission Atanic Safety and Licensing Washington, D.C. 20006 Appeal Board Panel U.S. Nuclear Pegulatory Ccnmission Joseph Rutberg, Esquire Washington, D.C. 20555 Benjamin H. Vogler, Esquire Boy P. Iessy, Jr. , Escuire Office of the Executive Ingal Director U.S. Nuclear Regt'atory Ccmnission Washington, D.C. 20555
Donald L. Flexner, Esquire Terence H. Benbow, Esquire Melvin G. Berger, Esquire Steven A. Berger, Esquire Janet R. Urban, Esquire Steven B. Peri, r@e Antitrust Division Winthrop, Stir. son,'~Putnam & Boberts U.S. Department of Justice 40 Wall Street P.O. Box 481 New York, New York 10005 Washington, D.C. 20044 Walter T. Wardzinski, Esquire Reuhan Goldberg, Esquire General Attorney Gcidberg, Fieldman & Letham, P.C. Duquesne Light Canpany Suite 650 435 Sixth Avenue 1700 Pennsylvania Avenue, N.W. Pittsburgh, Pennsylvania 15219 Washington, D.C. 20006 David McNeil Olds, Esquire Jack M. Schulman, Esquire Peed Smith Shaw & Ftclay Director of law Union Trust Building Ibbert D. Hart, Esgaire Box 2009 First Assistant Director of Law Pittsburgh, Pennsylvania 15230 City of Cleveland 213 City Hall Joseph A. Rieser, Jr., Esquire Cleveland, Ohio 44114 Reed Smith Shaw & McClay Suite 900 Frank R. Clokey, Esquire 1150 Connecticut Avenue Special Assistant Attorney General Washington, D.C. 20036 Boan 219
'1bwne House Apartments James R. Edgerly, Esquire Harrisburg, Pennsylvania 17105 Secretary and reneral Counsel Pennsylvania Power Canpany Donald H. Hauser, Esquire One East Washington Street Victor F. Greenslade, Jr., Esquire New Castle, Pennsylvania 16103 William J. Kerner, Esquire The Cleveland Electric John Lansdale, Esquire Illurunating Canpany Cox, Langford e Brown 55 Public Square 21 Dupont Cil .e, N.W.
Cleveland, Ohio 44101 Washington, D.C. 20036 Michael M. Briley, Esquire Alan P. Buchmann, Esquire Paul M. Smart, Esquire Squire, Sanders & Dempsey Fuller, Henry, Hodge & Snyder 1800 thion Cannerce Building Post Office Box 2088 Cleveland, C~ 44115
'Ibledo, Ohio 43603 Edward A. Matto, Esgaire Russell J. Spetrino, Esquire Richard M. Firestone, Esquire Thcmas A. Kayuha, Esquire Karen H. Adkins, Esquire Ohio Edison Company Antitrust Section 76 South Main Street 30 East Broad Street, 15th Floor Akron, Ohio 44308 Columbus, Ohio 43215 Christopher R. Schraff, Esquire Assistant Attorney General Environmental Law Section 361 East Broad Street, 8th Floor Columbus, Ohio 43215