ML19319B840
| ML19319B840 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/27/1974 |
| From: | Berger M, Charno S JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001280671 | |
| Download: ML19319B840 (30) | |
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION 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 Company
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(Davis-Besse Nuclear Power Station)
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The Cleveland Electric Illuminatiiig
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. Docket Nos'. 50 440A
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Company, et al.
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and 50-441A (Perry Plant, Units 1 and 2)
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RESPONSE OF DEPARTMENT OF JUSTICE TO APPLICANTS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND ANSWERS TO INTERROGATORIES
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THOMAS E. KAUPER Assistant Attorney General Antitrust Division DONALD I. BAKER STFVEN M. CHARNO i
Deputy Assistant Attorney General MLLVIN G. BERGER j
l JOSEPH J. SAUNDERS, Attorneys, Department Attorney, Department of Justice of Justice November 27, 1974.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION y
BEFORE THE ATOMIC SAFETY AND LICENSING EOARD
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In the Matter of
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The Toledo Edison Company The Cleveland Electric Illuminating ~
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Docket No. 50-346A
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Company (Davis-Besse Nuclear Power Station)
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The Cleveland Electric Illuminating *
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Docket Nos. 50-440A
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and 50-441A Company, et al.
(Perry Plant, Units 1 and 2)
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RESPONSE OF DEPARTMENT OF JUSTICE TO APPLICANTS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND ANSWERS TO INTERROGATORIES submits The Department of Justice (hereinaf ter Department) the following responses to discovery requests served upon it by Answers made herein are complete Applicants in this proceeding.
to the knowledge and belief of the undersigned representatives of the Department as of November 30, 1974.
Answers to certain i
tions 1
of Applicants' interrogatories involving specif c transac or conduct by Applicants, cannot be answered at this time 1
with the degree of specificity requested since the Department u
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has not yet received documents or answers to interrogatories l
from Applicants pursuant to the Joinc Request of the Atomic Energy Commission Regulatory Staff and Department of i
i Justice for Interrogatories and for Production of Documents by Applicants, served August 23, 1974.
The Department's answers 1
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RESPONSES TO DISCOVERY REQUESTS Discovery Request Number 1 By letter of January 11, 1971, the Atomic Energy Commission (hereinafter AEC) requested that the Department render antitrust advice pursuant to.Section 105 of tbe Atomic Energy'Act on an application for a license for the Davis-Besse Nuclear Power This request was forwarded to the Public Counsel Station, Unit 1.
and Legislative Section of the Antitrust Division for further The following professional staff members participated processing.
in the inquiry initiated in response to the AEC's request:
Mr. Joseph Saunders, Chief of the Public Counsel and (1)
Legislative Section, who filled a supervisory role; Mr. Milton Grossman, Assistant Chief of the Public (2)
Counsel and Legislative Section, whose duties were similar to those of Mr. Saunders, and Mr. William Jaegar, Attorney with the Public Counsel (3) and Legislative Section, who handled the day-to-day work asso-u -
ciated with this inquiry.
This inquiry was initiated by sending let ters to 22 electric utilities located in and adjacent to the Applicants' geographic These letters requested spec tfic information operating areas.
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with regard to the existence of situations in >hich Applicants 1
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were involved which might have anticompetitive implications.
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The Department's' files relating to this inquiry only contain from the Bryan Municipal Light and Water Depart-
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one response, ment in Bryan, Ohio.
however, that It appears from the Department's files, responses were also received from Hancock-Wood Electric Coop-the North-Central Elec-erative, Enc. in North Baltimore, Ohio, in Attica, Ohio, and the' Ohio Cities of tric Cooperative, Inc.
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Cleveland, Napoleon and Painesville.
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1971, when the This inquiry was concluded on July 9, Assistant Attorney General for the Antitrust Division, sent a letter to the AEC containing the Richard W. McLaren, Department's antitrust advice.
Discovery Request Number 2 Copies of the following documents are produced herewith:
A.
1.
January 11, 1971, letter from Bertram H. Schur to John N. Mitchell.
1971, letter from Richard W. McLaren to 2.
February 22, Bertram H. Schur.
3.
March 23, 1971, letter f rom Bertram 3. Schur to
" Joseph J. Saunders.
s letter from Richard W. McLaren to 4.
April 26, 1971, numerous electric utility companies.
Undated and unsigned letter to U.S. Department of 5.
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Justice.
6.
June 2, 1971, letter from Joseph J. 3aunders to William L. Jaeger.
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July 9, 1971, letter frcm Richard W. McLaren to Bertram H. Schur.
8.
July 12, 1971, letter from Bertram H. Schur to Joseph J. Saunders.
9.
August 31, 1971, letter from W. B. NtCool to National
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Archives & Records Service.
10.
September 10, 1971, letter from Richard W. Mc7 en to Philip P. Ardery.
The Department assarts a claim of privilege wirh respect ro'[i B.
the following documents:
1.
May 10, 1971, memorandum written by William L. Jaeger and received by Joseph J. Saunders, files and corres-pondence relating to activitit' of the Toledo Edison Company.
Privileges asserted:
attorney-client, attorney " work product", executive and informers.
July 1, 1971, memorandum from Joseph J. Saunders 2.
and received by Richard W. McLaren regarding anti-trust advice on the Davis-Besse application.
Privileges asserted:
attorney-client, attorney
" work product", executive and informers.
Discovary Request Number 3 The inquiry conducted by the Department ca the Application for the Perry Nuclear Power Plant, Units 1 and 2, utilized information obtained in the inquiry relating to the application for the Beaver Valley Power Station, Unit 2.
O By letter of August 10, 1972, the AEC tr::smitted to the Department information requested by the Attorr. y General for 4
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antitrust review of the application for a license for the Beaver This information, together with
-Valley Power Station Unit 2.
AEC's request for antitrust advice, was forwarded to the Public Counsel and Legislative Section of the Antitrust Division for further processing.
The following professional staff members Messrs. Joseph J. Saunders participated in the resulting inquiry:
and Milton J. Grossman, whose titles and duties were the same as and those in the inquiry concerning the Davis-Besse application; Steven M. Charno, Attorney with the Public Counsel and Legislative Section, whose duties were the same as those of Mr. Jaegar in rhc Davis-Besse inquiry.
On September 6, 1972, letters requesting specific informa-tion about the existence of situations in which the Applicants were involved which might have anticompetitive implications were.
sent to 56 utilities located in or adjacent to the Applicants' Answers were obtained from the geographic operating areas.
following:
American Municipal Power-Ohio, Inc. (responding on behalf of its members)
Beach City, Ohio Bradner, Ohio Bryan, Ohio Buckeye Power Co. (responding on behalf cf its members) i Cleveland, Ohio
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Columbiana, Ohio Elmore, Ohio Hancock-Wood Electric Cooperative 7s Hubbard, Ohio Hudson, Ohio Lucas, Ohio Montpelier, Ohio Monroeville, Ohio Morrow Electric Cooperative J
Niles, Ohio Norwalk, Ohio Orrville, Ohio 5
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';j Painesville, Ohio 5f
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ioneer Rural Electric Cooperative
..s Pitcairn, Pennsylvania South Vienna, Ohio i
Wampum, Pennsylvania Wellington, Ohio u
Woodville, Ohio Zelienople, Pennsylvania The City of Pittsburgh, Pennsylvania, was also contacted by letter dated January 30, 1973.
Those entities which made comments about situations which might be deemed to be inconsistent with the entitrust laws were selectively asked to suoply additicnal detail.
The Department
- 7 evaluated these responses in light of the information provided by Applicant,s, as well as certain commitments made by them con-cerning future conduct.
This inquiry was concluded on April 20, 1973, when the Department rendered antitrust advice to the AEC.
By letter of Apr,il 2, 1973, the AEC transmitted certain information to the Department and requested antitrust advice on the application for Perry Nuclear Power Plant, Units 1 and 2.
This information and request.were forwarded to the Public Counsel and Legislative Section of the Department.
The same profes-sional staff members enumerated in connection with the Beaver Valley inquiry participated in this inquiry.
O Beginning with the complaints received in the Beaver Valley inquiry, additional information was solicited from various com-plaintants.
The City of Cleveland (hereinafter Cleveland) and American Municipal Power-Ohio, Inc. (hereinafter AMP-0) indicated an interest in intervening in any AEC proceedir.g relating to this application.
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d:(on, alleged anticom-
'sLimited discussions with Applicant h -!
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petitive situations were held in an atte,mpt to reach an agree-ment on license conditions which would p'rotect the public interest.
These discussions were unproductive.
This inquiry was concluded
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when the Department rendered antitrust on December 17, 1973,
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cdvice to the AEC.
Discovery Request Number 4 Copies of the following documents are produced herewith:
A.
1
. ngust in, 1912, letter from Marcu A. Rowden LD Richard G. Kleindienst.
2.
August 15, 1972, letter from Joseph Rutberg to Joseph J. Saunders.
3.
September 6, 1972, letter from Thomas E. Kauper to indicated electric utility companies.
4.
September l'1, 1972, letter from the City of Painesville (by Joseph Pandy, Jr.) to the Department?
5.
September 11, 1972, letter from the City of Norwalk (by Donald P. Ware) to the Department.
6.
September 11, 1972, letter from Morrow Electric Cooperative Inc. (by Leonard Wigton) to the Depart-ment.
7.
September 12, 1972, letter from Pioneer Rural Electric Cooperative, Inc. (by Robert L. Roberts) to the Department.
8.
September 12, 1972, letter from the Village of
- u Lucas tc the Department.
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9.
September 14, 1972, letter from the Borough of Wampum (by Robert Aiello) to the Department.
10.
September 15, 1972, letter from Orrville Municipal Utilities (by Roy S. Williams) to the Department.
11.
September 21, 1972, letter from the Borough of Pitcairn (by Robert F. McCabe, Jr.) to the Department.
12.
September 25, 1972, letter from Hubbard, Ohio, (by T. J. Wilson) to the Department.
13.
September 25, 1972, lette; L' rom' Vill:ga of Hudson, Ohio, (by S. S. SchweD ert) to the Department.
14.
September 26, 1972, letter from Deshler Municipal Utilities (by Roy K. Beamand) to the Department.
15.
September 26, 1972, letter from Bradner, Ohio, (by Richard Fairbanks et al.) to the Department.
16.
September 26, 1972, letter from Village of South Vienna, Ohio, (by David D. Mattes) to the Department.
17.
September 28, 1972, letter from the City of Cleveland (by Warren D. Hinchee) to the. Department.
18.
September 28, 1972, letter from Woodville, Ohio, (by Joyce E. LcTke) to the Department.
19.
September 29, 1972, letter from the 3orough of Zelienople, Pennsylvania, (by James L.
Henderson, Jr.) to the Department.
20.
October 2, 1972, letter from Villagc of Columbiana, Ohio, (by Douglas Moore) to the Dep;rtment.
21.
October 2, 1972, letter from the Village of Monroeville, Ohio, (by Myron J. Gerber) to the Department.
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October 4, 1972, letter from the City of Niles, Ohio, (by Charles W.
Burgess) to the. Department.
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23.
October 9, 1972, letter from Hancock-Wood Electric 7
Cooperative, Inc. (by Paul H. Ilutchison) to the Department.
24.
October 11, 1972, letter from Bryan Municipal Utilities (by Robert L.. Rataiczak) to the Department.
25.
October 13, 1972, letter from the Village of Montpelier (by Paul E. Hutchinson) to the Department.
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October 17, 1972, letter from Wellington, Ohio, (by John Rohr) to the Department.
27.
October 19, 1972, letter from the Department to Philip P. Ardery.
28.
October 20, 1972, letter from Beach City, Ohio, (by Robert Raff) to the Department.
29.
October 27, 1972, letter from Marcus A. Rowden to Richard G. Kleindienst.
30.
October 30, 1972, letter from the Village of Elmore, Ohio, (by Judith Damschroder) to the Department.
31.
November 3, 1972, letter -from Thomas E. Kauper to Philip P. Ardery.
32.
November 8, 1972, letter from Philip P. Ardery to Steven M. Charno.
33.
November 17, 1972, letter from Philip P. Ardery to Steven M. Charno.
34.
November 29, 1972, letter from Thomr.J E. Kauper to Philip P. Ardery.
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December 1,1972, letter from Robert P. Mone to
.j Milton J. Grossman.
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33.
December 11, 1972, letter from Donald R. Allen to Sf.even M. Charno.
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December 12, 1972, proposed letter from Bruce B.
Wilson to Donald R. Allen.
38.
December 14, 1972, letter from the village of Colurubiana (by Douglas Moore) to the Department.
39.
Decenber 14, 1972, letter from the _ City of Nilas, Ohio, (by Charles W. Burgess) to the Department.
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40.
December 14, 1972, article from Nucleonics Week.
- 41. 'De.cember 18, 1972, letter from the Village of Monroeville (by Myron J. Gerber) to the Department.
42.
December 18, 1972, letter from Wellington, Ohio, (by John Rohr) to the Department.
43.
December 20, 1972, letter from Hubbard, Ohio, (by T. J. Wilson) to the Department.
44.
December 20, 1972, letter from Beach City, Ohio, (by Bonnie Feller) to the Department.
45.
December 21, 1972, letter from C. Er.2rson Duncan to Thomas E. Kauper.
4f.
December 23, 1972, letter from the Village of Lucas, Ohio, (by Robert J. Davis) to the Dcpartment.
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December 27, 1972, letter from Rober: P. Mone to 1
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Steven M. Charno.
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- 48. -January 11, 1973, letter from Philir. P. Ardery to Steven M. Charno.
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49.
January 12, 1973, letter from Howard A. Cummins to the Department.
50.
January 22, 1973, letter from Philip P. Ardery to Steven M. Charno.
51.
January 30, 1973, letter from Thomas E. Kauper to
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Albert D. Brandon.
52.
April 2, 1973, letter from Marcus A. Rowden to Richard G. Kleindienst.
53.
April 20, 1973, letter from Thod.as E. Kauper to Bertram H. Schur.
54.
April 24, 1973, letter from Thamas E. Kauper to Donald R. Allen.
55.
April 24, 1973, letter from Thomas E. Kauper to Donald H. Hauser.
56.
April 24, 1973, letter from Thomas E. Kauper to John R. White.
57.
April 24, 1973, letter from Thomas E. Kauper to Gerald Charnoff.
58.
April 24, 1973, letter from Thomas E. Kauper to Leslie Henry.
N 59.
April 24, 1973, letter from Thomas T. Kauper to John McN. Cramer.
60.
April 25, 1973, letter from Paul C.
3 ender to National Archives and Records Servi:-2.
61.
April 25, 1973, letter from Thomas T. Kauper to Gerald Charnoff.
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April 25, 1973, letter from Tho-s E. Kauper to
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-i Reuben Goldberg.
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April 30, 1973, letter from Reuben Goldberg to Thomas E. Kauper.
1973, letter from Thomas E. Kauper to 64.
May 22,
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Wallace L. Duncan.
65.
May 24, 1973, letter from Wallace L. Duncan to Steven M. Charno.
1S73, 'ette." from Thames E. Kauper te Gerald 66.
May 30, Charnoff.
67.
June 18, 1973, letter from Wallace L. Duncan to Steven M. Charno.
letter from Howard'K. Shapar to Elliot L.
68.
June 27, 1973, O
Richardson.
l 69.
July 10, 1973, letter from Maurice E. Messier to i
The Cleveland Electric Illuminating Company.
l letter from Thomas E. Kauper to Gerald 70.
July 23, 1973, 7
Charnoff.
71.
August 2, 1973, letter from Wallace L. Duncan to Steven M. Charno.
72.
September 4, 1973, letter from Wallace L. Duncan to Steven M. Charno.
73.
September 7, 1973, letter from Reuben'Goldberg to Steven M. Charno.
74.
September 11, 1973, letter from Joseph Rutberg to Joseph J. Saunders.
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- 75.. October 4, 1973, letter from Lee C. Howley to Honor ble Herbert R.
hiting (plus three attached letters).
76.
December 26, 1973, letter from Thoma= E. Kauper to Donald R. Allen.
77.
December 26, 1973, letter from' Thomas E. Kauper to Wayne R. Milburn.
73.
December 17, 1973, letter from Thomas E. Kauper to Howard K. Shapar.
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The Department asserts a claim of privilege with respect to the following documents:
1.
November 30, 1972, memorandum by Steven M. Charno received by Donald I. Baker (Deputy Assistant Attorney d
General), Joseph J. Saunders, David Leckie (Attorney,
~Public Counsel and Legislative' Section), files and correspondence, containing an evaluation of the activities of Ohio Edison Company.
Privileges asserted:
Attorney-client, attorney " work product",
executive and informers.
2.
December 8, 1972, memorandum by Steven M. Charno received by Don'ald I. Baker, Joseph J. Saunders,
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6 avid Leckie, files and correspondence, relating to activities of Ohio Edison Company. _ Privileges asserted:
Attorney-client, attorney " work product",
executive and' informers.
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3.
March 21, 1973, memorandum by Steven M. Charno received by Donald I. Baker, Joseph J. Saunders, correspondence and files, evaluating information gathered in the Beaver Valley inquiry.
Privileges asserted:
Attorney-client, attorney " work product",
executive and informers.
4.
July 17, 1973, memorandum by Steven M. Charno setting forth and evaluating the information gathered in this inquiry.
Privileges asserted: ' Attorney " work product."
5.
July 17, 1973, memorandum by Steven M. Charno received by Joseph J. Saunders, files and correspondence, discussing and evaluating negotiations with The Cleveland Electric Illr.n inating Company.
Privileges-asserted:
Attornt alient, attorney " work product" and executive.
6.
July 23, 1973, memorandum by Steven M. Charno received by Donald I. Baker, Joseph J. Saunders, files and correspondence, ralating to an evaluation of the activities of The Cleveland Electric Illuminating Company.
Privileges asserted:
Attorney-client, attorney " work product", executive and informers.
7.
August 2, 1973, memorandum by Steven M. Charno received by Joseph J. Saunders, files and correspondence, relating to a'n evaluation of the activities of The Cleveland Electric Illuminating Compcny.
Privileges asserted:
Attorney-client, attorney " work product",
executive and informers.
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August 17, 1973, latter from Steven M. Charno to Joseph J. Saunders (attaching a memorandum of even date) received by Joseph J. Saunders, files and correspondence.
These documents outline and evaluate the information gathered in this inquiry.
Privileges asserted:
Attorney-client, attorney " work product",
executive and informers.
9.
October 26, 1973, memorandum by Steven M. Charno received by Joseph J. Saunders, files and corres-pondence, relating to an valuation of activities
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of The Cleveland Electric Illuminating Company.
Privileges asserted:
Attorney-client, attorney
" work product", executive and informers.
10.
December 14, 1973, memorandum by Steven M. Charno received by Joseph J. Saunders, files and corres-pondence, relating to an evaluation of the activities of The Cleveland Electric Illuminating Company.
Privileges asserted:
Attorney-client, attorney " work executive and informers.
product",
11.
January 7, 1974, memorandum by Steven M. Charno received by Joseph J. Saunders, files and corres-x pondence, relating to a conversation concerning The Cleveland Electric Illuminating Comprny and Gne Perry license application.
Privileges asserted:
Attorney-client, attorney " work product", executive and informers.
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r Discovery Request Number 5 j4
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The' requested activities of each of the Applicants are I
i listed separately.
A.
The Cleveland Electric Illuminating Company (hereinafter CEI)
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The Eorough of Pitcairn, Pennsylvania (hereinaf ter Pitcairn),
requested participation in the CAPCO Pooi in a December 5, 1967, letter to CEI.
CEI never responded to this request, thus effec-tively foreclosing such membership.
On December 12, 1973, CEI c3plicitly re$used to allcw
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Cleveland to participate in the CAPCO Pool.
Although numerous discussions have taken place from 1972
- until the present regarding Cleveland's repeated requests for access to the nuclear ge 9 rating facilities owned by CEI, the Department is unaware of any meaningful offer by CEI relating to Cleveland's possible participation in such facilities.
Cleveland has, since at least January of 1970, sought a permanent interconnection with CEI to permit coordinated opera-tion between the two entities, but no agreement has been con-cluded between the parties.
On August 30, 1973, af ter professing at scme length its uncon'litional willingness to negotiate, CEI refused to wheel power for AMP-O to Cleveland.
This refusal was explicitly based on anticompetitive grounds.
CEI has also infor:.ed Cleveland that it would not wheel any power for Cleveland. except power from one of CEI's nuclear units.
Numerous other activities have been allegt by Cleveland l
concerning CEI's anticompetitive activities in
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t of e'ectric power but the Department does not now have available
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Since at least June of. 1971, the City of Painesville has sought an interconnection with CEI to allow for cocrdinated no agreement has bebn reached and it has operation.
To date, The been questioned whether CEI is negotiating in good faith.
Department was assured by CEI in the course of 'he Beaver Valley t
inquiry in early 1973 that such an agreement would be executed The same situation appears to be true within several months.
with respect to Painesville's request for access to a CE7. nuclear generating facility.
Duquesne Light Company (hereinaf ter Duquesne)
B.
Pitcairn requested participation in the CAPCO Pool in a This regaest was denied December 5, 1967 letter to Duquesne.
by a letter from Duquesne dated January 2,196 3.
Prior to 1968, Duquesne refused to sell bulk power to Pitcairn.
Prior to September 1972, Pitcairn found i t impossible to arrange with Duquesne to engage in~;oordinate(~ operation.
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Duquesne, by letter dated December 10, refused Cleveland's request to be allowed to : oin the CAPCO Pool.
Ohio Edison Company (hereinafter Ohio Edison) l C.
Prior to September 11, 1972, Morrow Elec:ric Cooperative in J
Onio Edison to ex-Mt. Gilead, Ohio, was unsuccessful in getting l
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tend transmission lines a short distance to a J
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Pitcairn requested participation in the CAPCO Pool by a December 5,1967, letter to Ohio Edison.
In a reply letter dated January 2, 1968, Ohio Edison rufused this request.
In 1968, Ohio Edison refused to become a party to the Power D0 livery Agreement which Buckeye Power, Inc. (hereinafter Buckeye) has with six other electric utilities:
Ohio Power Company, Columbus & Southern Ohio Electric Company, Cincinnati Gas &
Electric Company, Dayton Power & Light Company, Toledo Edison, and Monongahela Power Company.
The Power Delivery Agreement provides for the wheeling of power from large-scale fossil generation owned by Buckeye to various distribution systems, some of which are in competition with Ohio Edison.
From June 1968 through January 1973, Ohic Power Company, on behalf of Buckeye, requested that Ohio Edison 2stablish four new delivery points under terms and condition:. contained in an agreement between Ohio Edison and Ohio Power ompany.
Due to allegedly unreasonable demands made by Ohio E ison, none of these delivery points were ever established.
D.
Pennsylvania Power Company Pitcairn requested participation in the 3.PCO Pool in a December 5, 1967, letter to Pennsylvania Powe Company.
By reply letter dated January 2, 1968, Pennsylvc. i.a Power Company refused this request.
E.
The Toledo Edison Company (hereinafter C ledo Edison)
Pitcairn requested participation in the
'PCO Pool in a December 5, 1967, letter to Toledo Edison.
E a reply letter 1
dated December 19, 1967, Toledo Edison refusc this request.
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On at least two occasions between September 1971 and March 1972, Toledo Edison refused to consider joint ownership with the City of Napoleon of large-scale generating facilities.
On at least three occasions between September 1971 and March 1972, Toledo Edison refused to wheel power from the Ohio Power Ccupany's transmission facilities to the City of Napoleon.
On at least three occasions between September 1971 and March 1972, Toledo Edison refused to engage in coordinated
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operation with the City of Napoleon.
Toledo Edison and Ohio Power Company are allegedly parties to a wholesale territorial allocation agreement.
Prior to May 1971, Bryan, Ohio, indicated an interest in coordinated operation with Toledo Edison, but all efforts to reach an agreement have been fruitless.
Toledo Edison blocked Bryan, Ohio, from obtaining relatively low cost electric power from North Western Electric Cooperative, Inc., headquartered in Bryan, Ohio, by refusin J to allow its transmission f acilities to be used for the delivery of this power.
Discovery Request Number 6 The Department maint'ains that there is a : lear, demonstrable nexus between a situation inconsistent with t? : antitrust laws, I
comprised, in part, by the specific anticompe; '.tive acts and practice set forth in response to the Discove:
Request Number 5, and the activities under the licenses sought this proceeding.
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The Applicants' interrogatory, as presently phrased, is
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of nexus between each specific anticompetitive act that exists and the activities under the license.
This assumption is clearly false.
All that is required of a party is an allegation and proof that there is a nexus between a situation inconsistent with the antitrust laws and the activities under the license'.
For an expanded exposition 3f the Department's position i'. the restricted context of a refuss2 to wheel power, see pages 3 through 9 of ' Response by the Department of Justice to Applicants'-
Motion for Summary Disposition, filed October 10, 1974.
DisccVery Request Number 7 There are no documents other than those already produced which are producible under this request.
Discovery Request Number 8 A.
Copies of the following documents are produced herewith:
1.
October 19, 1966, letter (with attachments) from Jack J.
Ratcliffe to Donald E. Bootes.
2.
February 2, 1970, memorandum to files from Charlie Jack.
3.
July 9, 1971, letter (with enclosures) from Claude W.
Eppard to Charlie Jack.
4.
August 4, 1971, letter from Howard A. Cummins t'o Claude W. Eppard.
5.
September 21, 1971, letter,from Charlie Jack to Claude W.
- Eppard, i
20 s
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October 5,1971, letter from Cha2Sie Jack to
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Claude W. Eppard.
7.
February 28, 1972, letter (with enclosures) from Charlie Jack to William Lewis.
8.
May 2, 1973, letter from Howard A. Cummins to Marvin Keck.
9.
May 23, 1973, letter from Marvin Keck to Howard A.
Cummins.
Documents produced under any of the above requests which would also fall within the scope of this request have not been enu-merated herein.
'B The Department asserts a claim of privilege with respect to the following document:
September 14, 1973, letter to Thomas E. Kauper relating to activities of Ohio Edison.
Privileges asserted:
attorney " work product" and informers.
Discovery P.equest Number 9 Copies of the following documents are produced herewith:
1.
October 5, 1965, letter from John W. King to D. Bruce Mansfield.
2.
October 19, 1965, letter from D. Bruce Mansfield to
~~
John W. King.
3.
December 6, 1965, letter from Howard Cummins to Philip Sporn.
4.
January 3, 1966, letter (plus attachments) from Howard A. Cummins to Philip Sporn.
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21 s
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5.
April 20,.1966, letter from John W. King to Richard M.
Dicke.
6.
April 25, 1966, unsigned letter to Leslie Henry.
7.
April 29, 1966, letter (with enclosure) from Philip Sporn to John W. King.
8.
May 12, 1966, letter from Howard A. Cummins to Ohio Power Company.
9.
June 14, 1966, memorandum of discussion with John K.
Davis.
10.
June 23, 1966, letter from John W. King to Richard M.
Dicke.
11.
February 28, 1967, le.tter (with attachments) from A. N. Prentice to John K. Davis, et al.
12.
March 10, 1971, letter from Roger Waite to Howard A.
Cummins.
13.
March 15, 1971, letter from Howard A. Cummins to Roger Waite.
14.
December 17, 1971, letter from F. Byron Wortman to David Upp.
15.
Pr ss release of December 13, 1971.
16.
January 17, 1972, letter from Charlie Jack to John Hayes.
17.
June 6, 1973, letter from M.
R.
Dorsey to Hohn Cloer.
18.
June 21, 1973, letter from F. Byron Wortman to Marvin Keck.
19.
July 16, 1973, letter from Charlie Jack to F. Byron Wortman.
22 s
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20.
July 23, 1973, letter from Marvin Keck to F. Byron Wortman.
21.
July 24, 1973, letter from Howard A. Cummins to Marvin Keck.
22.
July 1973 letter from M.
R. Dorsey to customers of the City of Napoleon.
23.
August 7, 1973, letter from Charlie Jack to Marvin Keck.
Documents which have been produced under other document requests which would also fall within the scope of this request are not enumerated herein.
' Discovery Request Number 10 This request need not be answered at this time.
See Order on Objections to Interrogatories and Document Requests, docketed October 11, 1974, Item Number 146.
Discovery Request Number 11 As noted in the Perry advice letter, the source of and basis for the quoted statement is an October 9, 1971, Memorandum from R. H. Bridges, CEI Public Information Department, to Lee C.
Howley, CEI Vice President and General Counsel; Exhibit 24, City of Cleveland v. Cleveland Electric Illuminating Company (FPC Docket Mos. E-7631, E-7633 and E-7713).
Discovery Request Number 12 On the basis of the information available to the Department at this time, the Department does adopt the stated position.
The basis for this position is that at the present time Painesville 23 d
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has a relatively small, isolated electric power sys, tem which does not have available to it the relatively inexpensive electric power available through coordinated operation or development with other utilities.
Because it is a small system, it cannot afford to construct nor utilize the large generating units which, because of economies of scale, produce th'e least expensive electric power available.
Painesville must use smaller generat-ing units which produce more costly electric power.
Furthermore, since Painesville is an isolated system, it cannot engage in coordinated operation.
As such, Painesville is at a very severe competitive disadvantage vis-a-vis CEI, which completely surrounds it and which engages in both coordinated operation and develop-ment with the other members of CAPCO and has access to large-scale, low-cost generating facilities.
If Painesville is to remain a competitor of CEI, it must therefore gain access to the same benefits of coordinated operation and development now enjoyed by CEI.
Discovery Request Number 13 On the basis of the limited information available to the Department at this time, the Department does adopt the position stated.
The same reasons stated in response to Discovery Request Number 12 are applicable here.
The present emergency interconnection between CEI and Cleveland does not provide an adequate basis for coordinated operation between the two systems.
By virtue of CEI's stipulated dominance and the anticom-petitive acts and practice enumerated in response to Discovery 24 s
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Request Number 5, a situation incossistent with, indeed, viola-tive of, the antitrust laws exists.
The wheeling of power to Cleveland by CEI, as well as the other aspects of coordinated operation, appears necessary to remedy this situation.
Discovery Request Number 14 The basis of the quoted statement is the enumeration of a number of other anticompetitive acts by Applicants in the Perry advice letter prior to the mention of a refusal to wheel by CEI.
Thus, within the context of the Perry advice letter, the refusal to wheel constituted further anticompetitive behavior.
- Discovery Request Number 15 Refusals by CEI, a dominent utility possessing monopoly power, to wheel 30 mw of PASNY power to Cleveland is a highly anticompetitive act whichis, in turn, a relevant element of a situation inconsistent with the antitrust laws.
See the response to Disc very Request Number 6 for a discussion of the necessary nexus between a situation inconsistent with the anti-trust laws and activities under the license.
Discovery Request Number 16 This request need not be answered at this time.
See Order..
on Objections to Interrogatories and Document Requests of October 11, 1974, Item Number 146.
Discovery Request Number 17 The basis for that portion of the quoted statement relat-ing to Cleveland was the allegations contained in Applicants'
" Application For Subpoenas", and the s'1pporting materials 25 s
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l supplied therewith, filed in the present proceeding on March 27, l
1974.
The failure to make reference to Painesville's request i
for access was due to an oversight by the author of the brief; i
this omission was made without reference to or knowledge of the i
i l
undersigned.
Respectfully submitted, k
STEVEN M. CHARNO t
l l
]?M 4 JJ bui v t
j MELVIN G.
BERGER Attorneys, Antitrust Division Department of Justice l.
Washington, D.C.
20530 Subscribed and sworn to before me this2/F*dayofNovember,1974.
2/~.~.A ~
j
/
NOTAp PUBLIC My commission expires,
4 M/
i i
4 e
I-f 1
N
O i
i t
i 1
t UNITED STATES OF AMERICA-l ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICsNSING BOARD i
l I
In the Matter of
)
i
)
The Toledo Edison Company
)
The Cleveland Electric Illuminating
)
Docket No. 50-346A j
Company
)
(Davis-Besse Nuclear Power Station)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
and 50-441A (Perry Plant, Units 1 and 2;
)
e CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF DEPARTMENT OF JUSTICE TO A'PPLICANTS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS i
AND ANSWERS TO INTERROGATORIES have been served upon all of the parties listed on the attachment hereto by deposit in the United I
States mail, first class or airmail, this ' 29th day of November 1974.
i l
B N:
am l
Steve.i M. Charno Attorney, Department of Justice i
Antitrust Division
i
- ,, i ATTACHMENT John B. Farmakides, Esq.
Roy P. Lessy, Jr., Esq.
Chairman Benjamin H. Vogler, Esq.
Atomic Safety and Licensing Lee S. Dewey, Esq.
Board Office of the General U.S. Atomic Energy Commission Counsel Washington, D.C.
20545 U.S. Atomic Energy Commission Washington, D.C.
20545 John H. Brebbia, Esq.
Atomic Safety and Licensing Gerald Charnoff, Esq.
Board William Bradford Reynolds, Esq.
Alston; Miller & Gaines Shaw, Pittman, Potts &
1776 K Street, N.W.
Trowbridge Washington, D.C.
20006 910 Seventeenth Street, N.W.
Washington, D.C.
20006 Douglas Rigler, Esq.
Hollabaugh & Jacobs Lee C. Howley, Esq.
Suite 817 Vice President & General Counsel
.Barr Building The Cleveland Electric 910 Seventeenth Street, N.W.
Illuminating Company Washington, D.C.
20006 Post Office Box 5000 Cleveland, Ohio 44101 Atomic Safety and Licensing Board Panel Donald H. Hauser, Esq.
U.S. Atomic Energy Commission Corporate Solicitor Washington, D.C.
20545 The Cleveland Electric Illuminating Company Frank W. Karas Post Office Box 5000 Chief, Public Proceedings Cleveland, Ohio 44101 Staff Office of the Secretary John Lansdale, Jr., Esq.
U.S. Atomic Energy Commission Cox, Langford & Brown Washington, D.C.
20545 21 Dupont Circle, N.W.
Abraham Braitman Of fice of Antitrust and Chris Schraf f, Esq.
Indemnity Office of Attorney General U.S. Atomic Energy Commission State of Ohio Washington, D.C.
20545 State House Columbus, Ohio 43215 Herbert R. Whitting, Esq.
l Robert D. Hart, Esq.
Dwight C. Pottay, Jr., Esq.
l Law Department Assistant Attorney General I
City Hall Chief, Antitrust Section Cleveland, Ohio 44114 30 East Broad Strect 15th Floor Reuben Goldberg, Esq.
Columbus, Ohio 43215 David C. Hjelmfelt, Esq.
1700 Pennsylvania Avenue, N.W.
Suite 550 Washington, D.C.
20006
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[
John R. White, Esq.
Executive Vice President Ohio Edison Company 47 North Main Street Akron, Ohio 44308 David M. Olds, Esq.
Reed, Smith, Shaw & McClay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukis Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esq.
Jon T. Brown, Esq.
Duncan, Brown, Weinberg
& Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Leslie Henry, Esq.
~
Fuller, Henry, Hodge &
Snyder 300 Madison Avenue Toledo, Ohio 43604 Deborah Powell Highsmith, Esq.
Assistant Attorney General Antitrust Section 30 East Broad Street 15th Floor Columbus, Ohio 43215 h
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