ML19319B842
| ML19319B842 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 03/14/1975 |
| From: | Charnoff G, Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8001280673 | |
| Download: ML19319B842 (52) | |
Text
1 March 14, 1975 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
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THE TOLEDO EDISON COMPANY and
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THE CLEVELAND ELECTRIC ILLUMINATING
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COMPANY
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(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-346A Unit 1)
)
50-440A
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50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
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(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
APPLICANTS' PROPOSAL FOR EXPEDITING THE ANTITRUST HEARING PROCESS 1.
By Prehearing Conference Order No. 2, dated July 25, 1974, this Board identified eleven separate Matters in Controversy as the litigable issues to be resolved in this proceeding in order to determine whether th'ere exists in Applicants' respective service areas, or in the CAPCO terri-tory as a whole, a situation or situations inconsistent with the antitrust laws that will be created or maintained by ac-tivities under the nuclear licenses requested in the captioned proceedings.
In so ruling, the Board specifically noted (p. 6) that, but for Applicants' stipulation of " dominance" (p. 6, n. 5), no successful effort had been made by the parties
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to narrow the scope of the antitrust hearing, either by means of stipulation, assumptions arguendo or otherwise.
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2.
Applicants are on record with this Board as having made an offer to the City of Cleveland to grant to the City access to Davis-Besse Unit 1, Be. aver Valley Unit 2 and Perry Units 1 and 2 on reasonable terms out of CEI's share in those units.1/
The City, of course, is the only entity ever formally to request such access; it did so for the first time by letter dated August 3, 1973'.2' In response
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thereto, CEI, on February 27, 1974, submitted to the City a draft Pal'icipation Agreement offering to the City access to these nuclear plants.
Subsequently, on May 22, 1974,-
Applicants also proposed that the City could be granted ac-cess by way of Conditions to be affixed to the AEC licenses for these facilities.
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3.
This consistent' position of Applicants dem-onstrates their willingness, both in terms of policy and practice, to afford to requesting electric entities a full opportunity to participate in the nuclear plants at issue in this proceeding on reasonable terms.
On this basis, among others, Applicants have maintained throughout the present 1/
See " Applicants' Response to Joint Statement of AE't Regulatory Staff, Department of Justice and Intervenors Re-garding the Contentions and Matters in Controverny," dated June 7, 1974.
2/
A request by the City of Painesville for access to the nuclear plants was withdrawn in favor of a. request by Painesville for an interconnection agreement with The Cleve-land Electric Illuminating Company.
Such an agreement has now been formally concluded, and a copy thereof is attached hereto as Exhibit B.
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o hearing that the allegations of anticompetitive activity i.
F aired by the opposing parties, whatever merit
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/ may have (and we contend there is none), have no relationship what-soever to activities under the licenses authorizing the nuclear facilities.
4.
Resolution of this nexus question at an early stage in the hearing process is procedurally desirable, and could well obviate a lengthy proceeding on generalized, and unfounded,, allegations of anticompetitive condu,ct by the Ap-plicants.
'In any event, resolution of this nexus question at this stage is consistent with the mandate of the Commission that nexus "is a primary and predominant question which must pervade the proceeding # # #.
[I]f it becomes apparent at any point that no meaningful nexus can be shown, all or part of the proceeding abould be summarily disposed of."
Louisiana Power and Light Company (Waterford Steam Electric Generating Station, Unit 3) CLI-73-25, RAI-73-9 at 621, September 28, 1973 (emphasis added).
This Board has heretofore refrained from taking such an approach to the matters in. controversy without a stipulation by the Applicants as to the existence in the relevant geographic and product markets -- whatever they may l
prove to be -- of a " situation inconsistent with the antitrust laws" within the meaning of Section 105(c) of the Atomic Energy Act.
It is the purpose of this filing to submit certain z
assumptions arguendo, with respect to the " situation" to enable the Board to carry out the Commission's Waterford mandate with regard to a timely determination of nexus.
5 Applicants are confident that evidence introduced at the hearing would demonstrate conclusively that there is not now, and there never has been, such a
" situation".
At the same time, it is in the public interest and in the best interest of all the parties hereto to ex-pedite the Board's antitrust review with regard to these nuclear plants if at all possible.
To this end, Applicants are now prepared to enter into certain assumptions arguendo for the limited purpose of isolating the nexus question for determination by the Board.
That question, of course, involves a determination of whether there is "a meaningful nexus between the activities under the nuclear license", on the one hand, and the " situations" alleged to be inconsiatent with the antitrust laws, on the other hand.
Louisiana Powgr and Light Company, suora.
6.
The assumptions arguendo, set forth in para-graph 8 below, dealing as they do with each Matter in Con-troversy in the Licensing Board's Prehearing Conference Order No. 2, establish the " situations alleged to be in-consistent with the antitrust laws".
The license conditions attached hereto as Exhibit A, together with the authority t-i l
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to operate such plants, establish the " activities under the nuclear license" with which a meaningful nexus must be found if this proceeding is to continue further.
7.
In the event that this Board should agree with Applicants that there is no nexus between the " situation" and the activities under the nuclear licenses,.as conditioned, the present antitrust' hearing is concluded and Applicants' proposed Conditions will be affixed to the designated li-censes.
Should this Board disagree with Applicants on the nexus question, Applicants reserve their right then to with-draw their assumptions arguendo, made only for the purpose of determining the nexus issue, and to submit proof on the question whether there in fact exists a situation incon-sistent with the antitrust laws.1/
8.
Applicants' assumptions arguendo with respect to the Board's eleven Matters.in Controversy, which are being made for the limited purpose of resolving the nexus question, are set forth below:
Matter in Controversy (1)
Each of the Applicants will assume arguendo that the Combined CAPCO-Company. Territories ("CCCT")
is an appropriate geographic market for analyzing the possible creation or maintenance of a situ-ation inconsistent with the antitrust laws or the policies underlying those laws.
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Applicants will not-withdraw their. proposed License Conditions in such circumstances, however.
The proposed conditions represent policies observed by each Applicant.
D
Matter in Controversy (2)
Each of the Applicants will assume [rguendo that there are relevant geographic submarkets and that these submarkets include each of the Appli-cants' respective service areas as well as the City of Cleveland.
Matter in Controversy (3)
Each of the Applicants will assume arguendo that the relevant product markets for analyzing the possible creation or maintenance of a situation inconsistent with the antitrust laws or the policies underlying those laws are the following:
(a)
Regional power exchange tran3 actions within power pooling arrangements in-volving exchanges and/or sales of electric power for resale.
(b)
Bulk power transactions involving in-dividual contracts for sale-for-resale of firm electric power or for emergency, deficiency or other types of wholesale power.
(c)
Retail power transactions involving l
sales of electricity to ultimate con-sumers.
Matter in Controversy (4)
Each of the Applicants will assume arguendo that its stipulated dominance of bulk power transmission facilities in its service area within the CCCT gives it the ability to hinder or preclude ~com-petition in the transmission of bulk power, but in so assuming arguendo, none of the Applicants intends to imply, directly or indirectly, that its ability, by virtue of said stipulated dominance, to hinder or preclude competition in this area is, or can be, related in any way to any activities under the nuclear licenses requested for Davis-Besse Unit 1.
or Perry Units 1 and 2, and egch of them expressly denies that such is the case._/
4/
Appli designated n, cants' reservation as to activities under the uclear licenses, as set' forth in connection with Matters in Controversy (4) - (11), goes to the matter of nexus, which, for present purposes, remains in dispute.
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, Matter in Controversy (5)
Each of the Applicants will assume arguendo that, given its assumption arguendo to Matter in Con-troversy (4), it has in the past, and could in the future, use its ability to preclude other electric entities within the CCCT from obtaining sources of bulk power from other electric entities outside the CCCT, but none of the Applicants will assume arguendo that the use of its ability in this manner is, or can be, related in any way to any activities 'under the nuclear licenses re-quested for Davis-Besse Unit 1 or Perry Units 1 and 2, and each of them expressly denies that such is the case.
Matter in Controversy (6)
Each of the Applicants will assume arguendo that, given its assumption arguendo in Matter in Con-troversy (4), it has exercised its ability to prevent other electric entities in the CCCT from achieving:
(a) the benefits of coordinated operations among themselves or with Applicants; (b) access to the benefits of economy of size from large nuclear generating facilities; (c) any other benefits from coordinated de-velopment either among themselves or with Applicants; however, consistent with its assumption arguendo as to Matter in Controversy (10), none of the Ap-plicants will assume arguendo that it has since February, 1974 exercised its ability to prevent other electric entities in the CCCT from achieving access to the benefits of economy of size from large nuclear generating units, or intends so to do in the future; nor will any of the Applicants assume arguendo that it has, or intends to, prevent other electric entities in the CCCT from achieving access to the benefits of economy of size from Davis-Besse Unit 1 and Perry Units 1 and 2, or that the assumption arguendo as to each Applicant's m
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past and future capability to exercise its ability as aforesaid is, or can be, in any way related to any activities under the nuclear licenses requested for these three nuclear facilities, and each of the Applicants expressly denies that such is the case.
Matter in Controversy (7)
Each of the Applicants will assume arguendo that, given its assumption arguendo to Matter in Con-troversy (6), its ability to hinder or preclude competition has been exeralsed for the purpose or effect of eliminating one or more of the electric entities in the CCCT, but, in so assuming arguendo, none of the Applicants intends to imply, directly or indirectly, that this exercise of 1.ts ability is, or can be, related in any way to any activities under the nuclear licenses re-quested for Davis-Besse Unit 1 and Perry Units 1 and 2, and each of them expressly denies that such is the case.
Matter in Controversy (8)
Each of tha Applicants will assume arguendo that its stipulated dominance of bulk power generation in its service area within the CCCT gives them the ability to hinder or preclude competition in one 3
or more relevant markets, but, in sc
,suming arguendo, none of the Applicants inte.4ds to imply, directly or indirectly, that its ability in this 3
regard is derived or enhanced in any way as a result of any activities under the nuclear licenses requested.for D&vis-Besse Unit 1 and Perry Units 1 and 2, and each of them expressly denies that such is the case.
- Matter in Controversy (9)
Each of the. Applicants will assume arguendo that, given its assumption arguendo as to Matter in Con-troversy (8), it has exercised control over bulk power facilities to deny to other electric entities in the CCCT:
'(a) ~ access to the benefits of coordinated oper-ation, either among themselves, or with Applicants; 1
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(b) access to the benefits of economy of size of large electric generating units; (c) access to any other benefits from co-ordinated development, either among them-selves or with Applicants; however, in so assuming arguendo, none of the Applicants intends to imply, directly or indirectly, that the denials of access as aforesaid include a denial of access to the benefits of economy of size from the Davis-Besse Unit 1 and Perry Units 1 and 2 facilities, or that said denials of access within the above assumption arguendo are, or can be, in any way related to any activities under the nuclear licenses requested for these three nuclear facilities, and each of them expressly denies that such is the case.
Matter in Controversy (10)
Each of the Applicants will assume arguendo that its policy prior to February, 1974 with respect to providing access to their nuclear facilities to other electric entities in the CCCT, that are or could be connected to Applicants, deprived these other electric entities from realizing the benefits of nuclear power, but none of the Applicants will assume arguendo that they have had such a policy thereafter which would deprive other electric en-tities from realizing the benefits of nuclear power, or that its earlier policy at any time resulted in any deprivation to requesting ~ electric entities of the benefits of nuclear power from the Davis-Besse Unit 1 and Perry Units 1 and 2 nuclear fa-cilities, and each of them expressly denies that such is the case.
Matter in Controversy (11)
Each of the Applicants will not assume arguendo that there are logical connections sufficient to meet the nexus test established by the Nuclear Regulatory Commission between the activities under the proposed licenses for the Davis-Besse Unit 1 and Perry Units 1 and 2 nuclear facilities and the
" situation" as defined in the foregoing assumptions arguendo with regard to Matters in Controversy (1) through (10), and each of them expressly denies that such is the case.
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9.
By virtue of the foregoing assumptions arguendo and the attached. license conditions, Applicants submit that'the Board is now in a position to consider the nexus question in the context of an identified " situation" which Applicants are prepared to assume arguendo existed in the relevant geographic and product markets.
It thus can properly focus at the outset on whether there is indeed any meaningful relationship between that " situation" and activities under the nuclear licenses, as conditioned.
Only if that question is answered in the affirmative will it be necessary for this Board to inquire further into the anti-trust allegations set forth in the pleadings.
As previously stated, in that event -- which we believe is unlikely --
Applicants will withdraw the ar,sumptions arguendo set forth above and litigate fully the allegations of anticompetitive conduct in the context of Matters in Controversy (1) through (11).
There would then follow the remedy stage of the hear-ing.E!
10.
It is Applicants' opinion that, under the above proposal, the parties can be ready to go to hearing l
on the nexus question in the very near future.
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5/ The remedy stage, if reached at all in this proceeding, might perhaps be foreshortened if the Licensing Board herein would proceed as did the Board in the Waterford proceeding which on October 24, 1974, issued a Memorandum outlining the modifications of proposed license conditions which it deemed appropriate in order to eliminate further proceedings.
RAI-74-10 at 718 (October 24, 1974).
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no add tional pretrial discovery is needed to formualte the respective arguments, which, in view of Applicants' fore-going assum'ptions arguendo, would be largely concerned with legal p; aciples rather than fact contentions.
11.
Accordingly, Applicants respectfully move the Licensing Board to issue an order:
a) accepting Applicants' assumptions arguendo as set forth in paragraph 8 above, solely for the purpose of litigating the nexus issue, i.e., Matter in Controversy (11);
b) determining that the initial matter for hearing is whether, in light of Applicants' offer of access to the nuclear facilities, as set forth in their proposed License Conditions'in Exhibit A hereto, there exists a logical connection between the activities under the proposed licenses for the nuclear facilities and the " situation", as defined by Applicants' assumptions arguendo to Matters in Controversy (1) through (10), that meets the nexus test established by the Nuclear Regulatory Commission; and c) establishing a hearing, schedule ~ consistent with the f regoing.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE O
By
' ' O A tJd A(Ltt !
Gerald Charnoff (gj Wm. Bradford Reynolds Counsel for Applicants Dated: _ March 14,.1975 y
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EXHIBIT.A APPLICANTS' PROPOSED LICENSE CONDITIONS FOR DAVIS-BESSE NUCLEAR UNIT 1 AND PERRY NUCLEAR UNITS 1 AND 2 Definitions
" Company" means
/ or any successor or assignee of this license and includes each present or future wholly-owned electric subsidiary and any successor thereto.
" Applicable area" means that area within or to which Company is presently providing retail or wholesale or transmission service on a regular basis and any area immedi-ately adjacent thereto within which Company could reasonably be expected to extend such service.
" Participation power" means the bulk power gen-r erated by the licensed nuclear generating unit, to which unit an entity has a contractual right to a portion of the output thereof and/or the ownership of an interest therein.
" Unit power" means participation power without an ownership interest.
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" Entity" means a financially responsible person, private or public corporation (other than Applicants for this license), governmental agency or authority, municipality, l
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Inser't Applicant's corporate' identity or identities.
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~2-rural electric cooperative, joint stock association, busi-ness trust, or lawful association of the foregoing, owning, operating or proposing in good faith to own or operate fa-cilities for the generation, transmission or distribution of electricity, provided that, except for municipalities, governmental agencies or_ authorities or rural elect,ric co-operatives, entity is restricted to those which are or will be public utilities under the laws of the state in which the entity transacts or will transact business or under the Fed-eral Power Act, and are or will be providing electric service under a contract or rate schedule on file with and subject to the regulation of a state regulatory commission or the Federal Power Commission.
" Participating entity" means any entity which par-ticipates in the ownership of or power output from Davis-Besse Unit No. 1 [ Perry Units Nos. 1 and 2].
" Reserves" means the excess of the r.at capability of Company, or of a participating entity, after adjustment for firm purchases and sales, over the maximum load require-ments (peak load as of any time) of Company, or of a par-ticipating entity.
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Commitments 1.
Company shall offer to entities in the ap-plicable area which have heretofore made a timely request therefor an opportunity to participate in Company's cllo-cated share in Davis-Besse Unit No. 1 [ Perry Units Nos. 1 and 2].
Such participation shall be in reasonable amounts, and may be either by an ownership interest, by a contractual
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prepurchase of power arrangement, or by a unit power pur-chase, as mutually agreed upon by Company and the participating entity.
Any entity heretofore making a request for partici-pation must enter into a firm commitment (the validity and enforceability of which shall be acceptable to independent counsel agreed upon by the Company and the entity) to par-ticipate in Davis-Besse Unit No. 1 prior to 1975 [in Perry Units Nos. 1 and 2 prior to February 1,1976].
2.
(a)
Company shall interconnect, pursuant to agreement, with any participating entity in the applicable area which makes a reasonable request for such interconnection for one or more of the following purposes:
(1) to deliver participation power from Davis-Besse Unit No. 1 [ Perry Units Nos. 1 and 2];
(ii) to. provide replacement power and replacement energy as necessary to carry
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-k-load up to an amount equal to the par-ticipating entity's share of participa-tion power in Davis-Besse Unit No. 1
[ Perry Units Nos. 1 and 2] when the output of this nuclear unit is unavailable because of an emergency or by reasons of maintenance or refueling; or alter-
- natively, (iii) at the option of a participating entity, and on appropriate notice to Company, to transmit or wheel power from an entity outside the applicable area to the participating entity within the ap-p11 cable area as necessary to carry load up to an amount equal to the partici-pating entity's share of participation power in Davis-Besse Unit No. 1 [ Perry Units Nos. 1 and 2] when the output of this nuclear unit is unavailable because of an emergency or by reanen of maintenance or refueling; (iv) to provide transmission services for the above.
l Company shall provide to each participating entity that is l
a party to an interconnection agreement the above services l
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to the extent that Company can do so without impairing ser-vice to its customers, including other electric systems to which it ha's firm commitments.
(b)
Interconnect 1ons pursuant to this 11-cense will not be limited to lower voltages when higher voltages are requested and are economically and technically feasible.
Interconnection agreements will not embody pro-visions which impose limitations upon the use or resale of capacity and energy sold or exchanged pursuant to the agreement except as m'ay be necessary to protect the reliability of Com-pany's system.
The entry into an interconnection agreement hereunder will not prohibit the parties thereto from entering into other interconnection or coordination agreements, but appropriate provisions may be included in interconnection agreements under this license to ensure that (1) Company re-ceives adequate notice of such additional interconnection or coordination, and (ii) the parties shall jointly consider and agree upon such measures, if any, as are reasonably necessary for safety to protect the reliability of Company's' system.
3.
(a)
Company and each participating entity shall enter into an arrangement for reserves which shall jointly establ'ish the minimum reserve requirement to be installed l
j and/or provided under contractual arrangements as necessary to maintain for each party a reserve margin sufficient to I
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. provide adequate reliability of power supply.
The parties shall jointly establish criteria for determining such mini-mum reserves for each party, which criteria shall reflect the relevant load and capacity characteristics of the re-spective parties, provided tha.t, if no agreement can be reached on the criteria for determination of reserves, the participating entity's minimum reserve requirement shall be determined on the basis of the smallest reserve require-ment which Company has agreed to under other similar reserve arrangements then in effect, but in no event shall the par-ticipating entity's minimum reserve be less than its largest single block of nuclear capacity, whether from Davis-Besse Unit No. 1 [ Perry Units Nos. 1 and 2] or from some other nuclear facility.
(b)
The parties to such a reserve arrangement shall provide such amounts of operating (ready and spinning) reserve capacity as may be adequate to avoid the imposition of unreasonable demands on the others in meeting the normal contingencies of operating their systems.
4.
Company and participating entities are to be compensated, in accordance with effcetive agreements and rate schedules, for all facilities required and/or services ren-dered.
The rate schedules may recognize the extent to which mutuality of such services is available to each participating l
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entity.
Rate schedules, as required to provide for the facilities and arrangements needed to implement the license conditions 'herein, including provisions as are reasonably necessary to protect the adequacy and reliability of the electrical system, are to be submitted by Company to the regulatory agency having jurisdiction thereof.
Company agrees to include a provision in new rate submissions asso-ciated with these license conditions, so that if the rates become effective prior to the resolution of the contested issues (ass'ociated with the rate schedules) and are there-after reduced in accordance with the regulatory proceedings and findings, appropriate refunds (including interest) would be made to retroactively reflect the decrease.
The cost of installing each connection and the cost of maintenance thereof shall be shared on the basis of net benefits to be derived from the interconnection by each party, as determined or P' cepted and approved by the appropriate regulatory author-ities.
5 The foregoing license conditions are to be implemented in a manner consistent with the provisions of the Federal Power Act to the extent applicable, and any ap-plicable State or local laws, and all rates, charges or practices in connection therewith are to be subject to the approval of regulatory agencies having jurisdiction over them.
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.,-s EXHIBIT.B i
l INTERCONNECTION AGREEMENT - PAINESVILLE - C. E. I. - 1974 THIS AGREEMENT, made and entered into this 13th day of January 1975, by and between The Cleveland Electric Illuminating Company, an Ohio corporation, and a public utility,' as the te rm "Public Utility" is defined in Section 201a of the Fede ral Powe r Act, sometimes refe rred to he'reinafter as C. E. I.,
and the City of Painesville, Ohio, sometimes hereinafte r referred to as the City, both of which are sometimes refe rred to he reinafte r as the Parties.
WITNESSETH:
WHEREAS, 't.hrough its municipal electric system, the City is engaged in the generation, transmission, distribution, and sale of electric service with the O
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""i' " ' ""d-WHEREAS, C.E.I. a regulated public utility, is engaged,in the generation, trans-mission, distribution, and sale of electric service in portions of the State of Ohio, including areas contiguous to those served by the City; and, WHEREAS, the provisions of this Agreement in no way limit the rights of eithe r Farty he reto to purchase, construct, own and ope rate electric gene rating, trans-mission, and distribution' facilities of such type and capacity as either Party in its sole discretion deems appropriate for the requirements of its individually owned and ope rated electrical system; and, WHEREAS, the Parties desire to avail themselves of the benefits and advantagu which 'may be realized by th' interconnected operation of their respective systems e
and as a result thereof desire to fix the terms and conditions upon which such O
interconnection will be provided and upon which the supply and exchange of electric power and energy may be affected.
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s 2-O NOW, THEREFORE, in conside ration of the premises and of the mutual covenants he rein set forth, the Parties agree as follows:
I. 0 FACILITIES I
The City shall construct or cause to be constructed a synchronous inte r-connection, with an initial capacity of 30 MVA, connecting the City's 13.8 KV system and C.E. I. 's 138 KV transmission system.
1.1 The interconnection shall include, without being limited thereto:
1.11 A 138,000/13,800 volt interconnection substation on a site to bo selected by mutual agreement.
1.12 A l'38,000 volt, single circuit transmission line from a suitable source within C.E. I. 's system to the interconnection substation.
1.13 At the interconnection substation and at other suitable locations on O
the systems of the respective Parties, such mete ring, communication, telemetering, switching, and protective equipment, and load control facilities as shall be determined to be necessary for the prope r and efficient operation of the interconnected systems.
- 1. 2 The point of interconnection and delivery shall be the point at which said 138,000 volt single circuit transmission line connects with said suitable source within C. E. I. 's system.
'l. 3 Except as may be othe rwise provided herein, each Party shall furnish, own and maintain at its own expense, all facilities, equipment, and associated appurtenances, on its sidh of the point of inter, connection, as herein defined, which are necessary to implement the purposes of this Agreement.
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O 1.4 The inte rconnection and all facilities, equipment, and associated appurtenances including central switching and protective equipment shall be approved by C.E*.I. and shall conform to the established practice s of C. E. I.
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- 1. 5 The Parties shall proceed expeditiously with construction of the facilities, if any, necessary to effect the interconnection which shall be placed in operation as soon as possible.
- 1. 6 Each Party shall keep, or cause to be kept, at its own expense, all equipment and a::sociated appurtenances for which said Party is responsible, in su'itable condition of repair at all times.
- 2. 0 SERVICES TO BE RENDERED Q
2.1 It is the purpose of the City to seek and realize, on a practicable and equitable basis, certain benefits which may be affected through coordi-nation in the operation of the respective systems. It is understood by the Parties that such benefits may be realized by carrying out unde r stated ternas and conditions various interconnection se rvices and transactions that may from time to time include among othe rs:
2.11 the furnishing of mutual eme rgency assistance,
- 2. 12 the sale and purchase of short term powe r and energy, 2.13 the sale and purchase of limited term power and energy, 2.14 the sale and purchase of firm or long te rm power and associat,ed e ne rgy, 2,15 the l'nte rchange, sale, and purchase of economy ene rgy when available on the system of C.E. I. and needed on the system of the City, 2.16 maintenance powe r and ene rgy.
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- 2. 2 The respective service schedules listed here which.have been agreed upon between the Parties he reto, identified as Exhibits I, II, III, IV, and V respectively, are attached hereto and made a part hereof the same as li incorporated herein.
Eme rgency Se rvice Se rvice Schedule A Service Schedule B-Short Term Power Service Schedule C Limited Term Powe r i
Se rvice Schedule D - Economy Interchange Service Schedule,E Maintenance Power
- 2. 3 The Parties hereto recognize that this Agreement, and each Schedule and/or Supplemental Schedule to this Agreement, and any tariff or rate schedule which shall embody or supersede eithe r, are in certain respects subject to the jurisdiction of the Federal Powe r Commission unde r the Federal Power" Act, and are also subject to such lawful action O
as any regulatory authority having jurisdiction shall hereafter take with respect the reto. The' performance of any obligation of either Party hiereto shall be subject to the receipt from time to time as required of such authorizations, approvals or actions of regulatory authorities having jurisdiction or sh:_It be required by law, 1
- 2. 4 Each of the Parties hereto agrees to pay to the other Party hereto for-transmission and electric se rvice furnished to the City by C. E. I. and, in the case of C.E. I., for electric se rvice furnished to C. E. I. by the City, or, in eithe r. case, electric se rvice furnished for the account of another Party in accordance with the provisions of this Agreement, or any appli-cable superseding tariff or rate schedule (s) accepted for filing by such regulatory agency or agencies as shall have jurisdiction in the premises each such Schedule or Supplemental Schedule, and any applicable supe r-Q seding tariff or rate schedule (s) is incorporated herein by reference
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th:rato, cnd sarvica undsr this Agracmant, end/or undar any such Schedule or Supplemental Schedule, or any such applicable superseding, tariff or rate scherlute(s) shall be s'ubject to all of the provisions of this Agreement as the same may be changed or modified by any such Schedule, Supplemental Schedule or supe rseding tariff or rate schedule (s). 'It is expressly understood that any Party hereto shall be entitled, at any time and from time to time, to make application for, or to take other action, to submit for filing to any regulatory jurisdiction in the premises any tariff or rate ' schedule (s) designed to supersede, in whole or in part, ar.y.
provision of this Agreement, or of any Schedule or Supplemental Schedule or of any prior superseding tariff.or rate schedule (s), applicable to. any electric se rvice furnished by C. E. I., or any electric service furnished by the City unde r this Agreement to the other Party to this Agreeme'nt.
- 2. 5 All electrical energy delivered hereunder shall be delivered at the interconnection point and shall be three phase, 60 hertz, at a nominal Q
voltage of 138,000 volts.
- 3. O ADMINISTRATION The Parties shall establish committees of authorized representatives to be knosyn as the Administration Committee and the Operating Committee.
3.1 The Administration Committee shall be composed of two representatives from each Party, and one al' ternate to act for each regular member in his absence. The Administration Committee shall have gene ral super-vision ove r the Operating Committee, hereinafter provided for, and shall also be responsible for carrying out the general provisions an'd intent raf this Agreement.
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- 3. 2 The Ope rating Committee shall be composed of one representative from each Party, and one alternate to act for the regular member in his absence. Under the general supe rvision of the Administration Committee, the Operating Committee sha)1 be responsible for:
3.21 All matters pe rtaining to day-to-day scheduling of power flows.
3.22 All matte rs pe rtaining to coordination of maintenance.
3.23 Such other matters as are specifically delegated to it, else -
where in this Agreement, or as may be referred to it by the Administration Committee.
4.O SERVICE CONDlTIONS 4.1 Continuity of Interconnection. The systems of the Parties, to the maxinium extent practicable, shall be operated in continuous synchronism
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through the point of interconnection. If the operation of the closed g
interconnection becomes inte rrupted because of reasons beyond the control of either Party, or because of a scheduled interruption of the interconnection by mutual agreement, the Parties shall cooperate so as to remove the cause of such interruption as soon as practicable and restore the interconnection to normally closed operating conditions.
- 4. 2 Continuity of Service.
The Parties shall maintain and operate their respective systems so as to minimize, in accordance with sound ope rating practice, the likelihood of disturbances originating in either system which might cause impairment to the service of the system of the other Party or any system interconnected with the system of the othe r Party.
Each Party shall exercise due diligence and reasonable care and foresight to maintain continuity of service in the delivery and receipt of energy as provided under this Agreement, but neither Party shall be considered O
7 O
to be in default in respect to any obligation hereunder if prevented from fulfilling such obligation by reason of uncontrollable forces. The te rm uncontrollable forces shall be deemed for the purposes of this Agreement to mean earthquake, storm, lightning, flood, backwater caused by flood, fire, epidemic, accident, failure of facilities, war, riot, civil dist. rbance s, strike, labor disturbances, restraint by court or public authority, or other similar or dissimilar causes beyond the control of the Party affected, which causes such Party could not have avoided by exercise of duc diligence and reat nable ca re. Any Party unabib to fulfill any obligation by reason of uncontrollable forces 'shall exe rcise due diligence to remove such disability with reasonable dispatch.
- 4. 3 Load Flow Control.
The City shall control all flows of powe r and kilovars between the Parties, and shall.exe rcise due diligence in the ope ration of its system so as to minimize deviations between actual and scheduled O
flow of power and reactive powe r between the systems.
4.31 Neither Party shall be obligated to deliver kilovars for the benefit of the other Party, or receive kilovars when to do so may introduce objectionable operating conditions on its system'. The Parties shall establish from time to time, operating procedures and schedules with respect to minimizing kilovar interchange and shall dete rmine proper charges, if any for the use of facilities carrying significant kilovar loads.
4.32 Control of Unschedul ed Powe r Deliveries.
The Parties shall exercise due diligence and foresight in carrying out all matters related to the providing and operating of their respective electric power resources so as to minimize to the extent practicabic, deviations between actual and scheduled deliveries of electric power and energy between their systems.
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O The Parties shaii erovide and instait en ineir respective svs' ems such communication, cont rol. and telemete ring facilities as a re essential to so minimizing such deviations; and, in developing i
and executing ope rating procedures that will enable the Parties to avoid to the extent practicable deviations from scheduled deliveries, shall fully cooperate with each other to achieve effective and efficient interconnected operation. The Parties recognize, however, that, despite their best efforts to. prevent the same, unscheduled deliveries ~ of electric ene rgy from one Party to the othe r may occuf. Electric energy delivered hereunder in such event shall be settled for either by the return of equivalent energy or by payment of the out-of-pocket cost -- such cost being as 'of the delivery point, provided for in this Agreement, taking into account electrical losses incurred from the source or sources of such ene rgy to said delive ry point by the supplying Party, plus 10% of such costs. If equivalent energy is returned, it shall be returned at times when the load conditions of the Party receiving it a re equivalent to the load conditions of such Party at the time the energy for which it is returned was delivered o'r, if such Party elects to have equivalent energy returned under different conditions, it shall be returned in such amount, to be agreed upon by the Operating Committee as will compensate for the difference in conditions.
- 5. O METERING, RECORDS AND BILLING M' tering 5,1 e
5.11 Electric energy and power supplied and delivered under this Ag reement shall be measured by suitable metering equipment provided, owned and~ maintained by the City and shall be located at O
the City's inte rconnection substation. The energy met. ring
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O equipment shall be compensated to the interconnection point.
The powe r mete ring equipment installed shal1 transmit a continuous signal to the C. E. I. System Ope rating Cente r indicating kilowatt and kilova r flow in eithe r direction on the interconnectica 5.12 The metering ' equipment shall include devices capable of providing:
5.121 A graphic record of the kilowatts and reactive kilovolt-ampe res in the inte rconnection line, using equipment which shall be suitable for use in telemetering said indications to the system control offices of both Parties hereto.
5.122 A record'for each clock-hour of the integrated kilowatt hoitrs and kilovar hours for each direction of flow of power and reactive using equipment suitable for use in telemetering said readings to the system control offices i
of both Parties as a means of continually monitoring control performances and effecting prompt corrective action.
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5.13 All billing tr.eters shall be scaled and the seals shall be broken only upon occasions when the meters are to be se rviced, tested, or adjusted, and thereafter, the meters shall be rescaled.
Authorized representatives of both Parties shall have access at all reasonable hours to the premises where the meters are located and to the records made by the metering equ!pment.
5.14 The aforesaid metering equipment shall be t ested by the owne r at appropriate intervals and its accuracy of registration maintained in accordance with standard utility practices. On request of either Party, special tests shall be made at the expen$c of the Party requesting such special test. Representatives of both Parties, shall be afforded the opportunity to be present at all routine or special tests, a d on any occasion when any readings for n
purposes of settlement hereunder are taken from mete rs not bearing a graphic or printed recording device.
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' O 5.15 If any test of metering equipment discloses an inaccuracy ex-ceeding two percent (I2%), the account between the Parties for service the retofore shall be adjusted to correct for the inaccuracy over the period that such inaccuracy is estimated to have existed, provided, however, that such period shall not exceed thirty days. Should the metering equipment fail to register at any time, the amounts of power delivered shall be estimated from check meters, if installed, or otherwise be determined from the best available data. In addition, either Party shall have the right to install in its own substation such othe r mete ring equipment as it deems necessary and essential for operation'of its system, or for check mete ring purposes..
5.16 All' power delivered or received pursuant to this Agreement shall be determined by computation of demand and energy over clock intervals of one hour, and the accounting for powe r shall be made i
on an hourly, daily, or monthly basis, as necessary, to meet all requirements herein, so as to permit monthly settlements. Each of the Parties shall make available to the other any and all meter readings as may be necessary for such' accounting purposes.
5.17
'The necessary :ommunication equipment, as mutually agreed upon, required at the mete ring point for transmitting and telemete r-ing quantities of kilowatt and kilovar flow on the various inter-connections to the dispatching offices of both Parties shall be regula rly tested and prope rly ~ maintained. Each Party shall own and maintain its own communication equipment required for re-ceiving the telemetered quantities. The City shall provide suitable voice communication facilities so that reliable communications can be maintained between the system dispatchers of the Parties and such other local coope rating personnel as.mcy be required.
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- 5. IS Each of the Parties shall provide on its system, in addition fu the above-mentioned equipment., such othe r eommunication, teI -
. mete ring, frequency and/or tie line control facilities as are c asential for control of scheduled flows of power between the systems of the Parties.
- 5. 2 Records The Parties shall keep such records as may be needed to afford a clear history of the delive ries of kilowatthou rs, and clock-hours integrated kilowatt and kilovar demand flows made under this Agreement. Copics of such records shall be exchanged by the Parties.
- 5. 3 Billing 5.31 As promptly as practicable after the end of each calendar month, the sul, plying Party shall cause to be prepared and delivered to the receiving Party, a statement setting forth the energy trans-actions under this Agreement during such month in such detail and with such segregations as may be needed for operating records and for settlements under the provisions of'this Agreement.
- 5. 37.
Each monthly bill for service under this Agreement shall be paid within 45 days from the receipt of the bill. If not paid within 45 days, an additional charge of 5% shall be added to the monthly bill on the 46th day after receipt of the bill. No additional charges shall be added if the then outstanding balance for the month is paid on or before the 60th day after receipt of the bill.
On the 61st day after receipt of the bill, and on the same day in
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subsequent calehdar months if the bill and any additional charges thereon are still unpaid,1% of the outstanding balance at tlic.
close of business on the previous day (including previous addi-O tional charges for the month) shall be added to the bill.
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- 5. 33 Billing for se rvices rende red by eithe r Pa rty unde r this Agree-ment shall be based on rese rved, scheduled or actual deliveries.
If the supplie r is unable to deliver amounts rese rved or scheduled billing anel compensation shall be based on actual deliveries on the
- terms of the service schedules incorporated herewith as appropriate.
5.331 Demand charges shall be based on the amount reserved
. or the amount delivered, whichever is greater.
5.332 Operating capacity changes shall be based on the amount scheduled or the amount delivered, whicheve r is greate r.
5.333 Ene rgy charges shall be based on the amount delive red.
- 5. 34 In addition to the rates provided herein and said schedules, the
. City shall pay to C. E. I. the amount of Ohio Excise Tax,that C. E. I. is required to pay for receipts from sale s of power and energy to the City. In the event it is determined that C. E.1. is not legally required to pay such tax, C. E. I. shall within 30 dayc from the date of such determination file rate schedules to eliminate such t' axes.
on receipts from all power and energy transactions including inte rest at the rate of 7% pe r annum.
5.35 Whe re referred to he rein, out-of-pocket costs shall mean all additional and incremental costs incurred by the supplier which would not have been incurred if the se rvice had not been supplied.
The components;of out-of-pocket costs shall include but shall not he limited to the following:
Ope rating Capacity Costs Start-up and shut-down costs (boiler and turbine)
No load cost (boile r and turbine)
Maintenance cost (boile r and turbine)
Charge. (or credit) for increased (or decreased) cost of energy gene rated by the Party associated with the transaction O
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-Q Incremental labor costs Incremental taxes (exclusive of excise tax)
Miscellaneous incremental operating costs.
Energy Costs 7
Incremental fuel cost Incremental transmission losses Incremental labor cost Incremental maintenance cost
. Incremental taxes (exclusive of excise tax)
Miscellaneous incremental operating costs Purchased Power All costs, excluding demand charges, paid to third party for powe r purchased.
- 6. O NOTICES 6.1 Except ' s he rein othe rwise provided, any notice which may be given to a
or made upon either Party hereto by the other Party hereto under any of the provisions of this Agreement, shall be in writing, and shall be treated as duly delivered when the same is either (a) personally delive red to the City Manager, 7 Richmond Street, Painesville, Ohio, in the case of a notice to be given City, or personally delivered to C.E. I.
P re sident, 55 Public Square, Cleveland, Ohio, in the case of a notice to be given C.E.I., or (b) delive red to a Party by United States mail addressed to the representative of such Party set forth above.
- 6. 2 Any notice, request, or demand pertaining to matters of an operating nature may be delive red by United States mail, messenge r, telephone, or verbally as may be appropriate and shall be confirmed in writing as soon as practicable the reafte r, if either Party lu reto so requests in any particula r instance.
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Miscellaneous incremental operating costs.
Ene rgy Costs Incremental fuel cost Incremental transmission losses Incremental labor cost Incremental maintenance cost
. Incremental taxes (exclusive of excise tax)
Miscellaneous incremen%1 operating costs Purchased Power All costs, excluding demand charges, paid to third party for power purchased.
- 6. O NOTICES 6.1 Except 'as he rein otherwise provided, any notice which may be given to or made upon either Party hereto by the other Party hereto under any of the provisions of this Agreement, shall be in writing, and shall be treated as duly delive red when the same is either (a) personally delive red to the City Manager,,7 Richmond Street, Painesville, Ohio, in 1
the case of a notice to be given City, or personally delivered to C. E. I.
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President, 55 Public Square, Cleveland, Ohio, in the case of a notice to be given C. E. I., or (b) delivered to a Party by United States mail addressed to the representative of such Party set forth above.
- 6. 2 Any notice, request, or demand pertaining to matters 'of an operating nature may be delivered by United States mail, messenger, telephone, or verbally as may be appropriate and shall be confirmed in ' writing as soon as practicable the reafte r, if either Party lu reto so requests in any particula r instance.
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- 2. 0 azoutAToav AuTuon1ry This Agreement shall be subject to the jurisdiction of the Federal Power Commission, and any other authoritics having jurisdiction in the premises.
F This Agreement and the terms, conditions, and rates included herein are subject to changes or substitutions, eithe r in whole or in part, made from time to time by a legally effective filing of C. E. I. with, or by order of, the regulatory authority having jurisdiction, and both C. E. I.
and the City shall have t,he right to seek unilaterally changes or substitutions from such regulatory authority.
8.0 TERM 8.1 - This Agreement shall continue from the date hereof to the expiration of O
a Period of five consecutive years commencing upon the Interconnection Date, as defined in this Section 8.1, and the reafte r for successive pe riods of one year unless and until terminated as provided for in Section 8.2.
The Interconnection Date for purposes of this Agreement shall be the first day of the month next following the day, or on such day if it should be the first day of a month, upon which this Agreement is accepted by the governmental authority or authorities having jurisdiction in the premises, or upon which the interconnection facilities become available for commercial service, or upon the effective date of an ordinance of the Painesville City Council approving this Agreement and authorizing the execution and pe r-formance of this Agre,ement by the City's Department of Public Utilities, whichever is late r.
i As soon as practicable-following the establishment of such date in conforrnance with the foregoing, the Parties, as a matter of record, shall exchange lette rs D
setting forth their acceptance thereof as said Interconnection Date.
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- 8. 2 If eithe r Pa rty he reto breaches a material p-ovision of this Agreement, the Party adversely affected may, at its option, terminate this Agreement upon ninety (90) days written notice of intention to do so and the Agreement shall so te rminate unless, during the sixty-day period immediately following such notice, the violation is corrected.
- 9. 0 WAIVERS Any waiver at any time by either Party of its rights with respect to a default under this Agreement, or with re'spect to any other matte r arising in connection with this Agreement, shall not be deemed a waiver with respect to any subsequent default or matte r.
Any delay, short of the statutory period of limitation in asserting or enforcing any right under this Agreement, shall not be deemed a waiver of such right.
10.0 LIABILITY Each Pa rty he reto shall take all reasonable precautions against inte rfe rence O
with or damage to the prope rty of the other and each Party agrees that it will indemnify, protect and save the other Party harmless from and against any loss or liability for'or on account of any injury (including death) or damage to any person or property, due to the sole negligence or misconduct of itself or any of its agents or employees in or about the performance of this Agreement, providing that each Party shall be liable for all claims of its own employees growing out of any Workmen's Compensation or
- simila r law.
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11.0 ASSIGN MENT This Agreement shall be binding upon and its benefit enure to the Parties,
hereto and their successors and a.ssigns except that this Agreement shall not be assigned by one Pa rty without the written consent of the othe r Party which consent shall not be unreasonably withheld.
In Witness Whereof, the Pa rties he reto have caused this Agreement'to be executed by their duly authorized office rs the day and year first above written.
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t Ordinance Numbe r 56-74 09 %
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O SERVICE SCHEDULE A '
EMERGENCY SERVICE Under Agreement dated as of January 13, 1975 between The City of Painesville, Ohio and The Cleveland Electric Illuminating Company SECTION 1 - DURATION 1.1 Thi's Service Schedule, a part of an Agreement dated as of Janua ry. 13,- 1975 (the Agreement), between The City of Painesville, Ohio, and The Cleveland Electric Illuminating Company shall become effective on the
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effective date of this Agreement, and shall' continue in effect until te rminated as provided in the Agreement.
SECTION 2 - SERVICES TO BE RENDERED 2.1 Subject to the provisions of Subsection 2.2 of this Section, in the event af a breakdown or other emergency in or on the system of eithe r Party 4
involving eithe r sources o/ powe r or transmission facilities, or both, impairing or jeopardizing the ability of the Party suffering the emergency to meet the loads i
of its system, the other Party shall deliver to such Party electric energy that it is requested to delive r; provided, howe ve r, that neithe r Party shall be obligated to delive r such ene rgy which, in its sole judgment, it cannot d liver e
without inte rposing a hazard to its ope rations or without impairing or jeopardiz-ing the' othe r load requirements of its system; and provided furthe r, that neithe r Party shall be obligated to deliver electric energy to the other for a period in-excess of forty-eight consecutive hours during any single emergency.
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- 2. 2 The Parties recognize that'the delivery of Eme rgency Ene rgy is subject to two conditions which may preclude the delivery of such energy as so provided: (a) The Pa rty requested to delive r electric ene rgy may be suffering an emergency in or on its own system or may have previously com-mitted all available capacity to anothe r inte rconnected system which at the time se rvice is requested he reunde r, is also suffering an emergency. Neithe r.
Party shall be considered to be in default hereunder if it is unable to comply with the provisions of Subsection 2. I unde r the two conditions he re defined.
SECTION 3 - COMPENSATION 3.1 Eme rgency se rvice delive red unde r Seetion 2 above shall be settled for by the. return of equivalent energy, or at the option of Party that supplied such energy, by payment of the out-of-pocket cost of the supplying Party, plus ten pe rcent, or 17. 5 mills pe r kilowatthour, whicheve r is greate r.
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- 3. 2 Payments made to either Party pursuant to this Schedule shall comprise an amount in dollars equal to the sum of (a) the amount provided for by Subsection 3.1 of this Service Schedule and (b) an amount in dollars sufficient to reimburse the Party entitled to such payments for any amounts paid or payable by it as sales, excise or similar taxes (othe r than taxes based on or measured by net income) in respect of the total
- amount paid pursuant to this Section and to enable such Party, after pro-vision for such taxes, to realize thb net amount payable as provided in Subsection 3.1 above.
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3-O SECTION 4 - SPECIAL PROVISION Each Party to the Agreement recognizes that inflationary pressures and cumbe rsome administrative procedures which a re required unde r some circumstances by statutory provision and/or administrative rule may, unless special prec'autions are taken, inhibit the Parties from effecting inte rconnections and transactions which might othe rwise be effected pursuant to the provisions of the Agreement and this Schedule. The Parties accordingly agree that --
particularly since the transactions contemplated by this Schedule are intended to be reciprocal in character when it is in the interests of both Parties so to be --
eithe r Party may at any time and f rom time to time in the future take such action under the Agreement as such Party shall consider to be in the best interests of such Party, including action to file any tariff or rate schedule designed to supe rsede this Schedule in its application to such Party as a supplie r of electric se rvice.
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O SERVICE SCHEDULE B SHORT TERM SERVICE Under Agreement dated as of January 13, 1975 between The City of Painesville, Ohio and The Cleveland Electric Illuminating Company SECTION 1. - DURATION 1.1 This Service Schedule, a part of an Agreement dated as of Janua ry 13, 1975 (the Agreement), between the City of Painesville, Ohio, and The ' Cleveland Electric Illuminating Company shall become effective on the effective date of this Agreement, and shall continue as provided in the O
Ag reement.
SECTION 2 - SERVICES TO BE REN DERED 2.1 Either Party by giving the othe r Party notice may rese rve for pe riods of not less than one week, i.e., any specified period of seven consec-utive calendar days, such electric power (he rein called Short-Te rm Power) or may specifically reserve from the system of as the othe r Party may has.:
another interconnected company, and is willing to make available as Short-Term Power. Short-Term Power obtained by the supplying Party from sources specifically reserved from the system of another interconnected company shall be made' available to the purchasing Party; however, the supplying Pa rty shall be the sole judge as to the amounts and periods that it has electric power and energy available from its own system.
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- 2. 2 To rese rve Short-Te rm Powe r, the Party desiring such powe r shall specify in its notice to the other Party the numbe r of kilowatts and the period for which it desires to so reserve such powe r and the desired schedule of delive ry of the power so rese rved. The Party receiving such notice, in a prompt acknowledgment shall signify t'he extent of its ability and willingness to comply with the provisions of such notice. Any notice or any acknowledgment of such notice that may be given orally initially shall be confirmed in writing and such confirmation shall be forwarded not late r than the third day following the day such oral notice is given.
- 2, 3 During the pe riod that Short-Term Power has been rese rved
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as above provided, the Party haviag agreed to supply such power shall deliver electric energy (He rein called Short-Te rm Ene rgy) to the othe r Party at the Interconnection Point o r Points, as defined in Section 1. 2 of this Agreement, O
upon coli and in amounts up to the numbe r of kiiomatte reeerved. aoweve r.
in the event conditions arise during such period which could not have been reasonably foreseen at the time such power was reserved and such conditions would cause the delivery of Short-Term Energy to be burdensome to the supply-ing Party, such Party has the right to request the other Party to reduce its take of such energy to any amount specified and for any portion of such pe riod.
The Party so requested shall promptly comply with the request of the othe r Pa rty.
- 2. 4 The Short-Term Powe r billing demand for any week shall be taken as equal to the number of kilowatts reserved for such week as Short-Term Powe r or the numbe r of kilowatts delive red, whichever is greate r.
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,2. 5 In event Eme rgency Se rvice, suglied unde $ Schedule A, is continued beyond a forty-eight hour pe riod, with approval of the supplying Party, service rendered after the initial forty-eight hour period shall be compensated for under this Schedule B.
SECTION 3 - COMPENSATION 3.1 The reserving Party shall pay the supplying Party 3.11 for any week that Short-Term Power is reserved,
$0. 40 pe r kilowatt reserved less, for each day (othe r than Sunday) during any part of which the amount of such Short-Term Power is reduced by the supplying Party, one-sixth of said
$0. 40 per kilowatt of the reduction; plus 3.12 for each kilowatt of the rese rved Short-Te rm Powe r O
that is purchased by the supplying Party ~from another system (a) the excess, if any, of the amount paid therefor by the supplying Party ove r the cha rge therefor unde r Section 3.11 of this Schedule (or, if such amount is less than such. charge, minus the deficiency) plus (b) fo r e ach we e'k s uch Sho rt-Te rm Powe r is rese rved, $0.125 pe r kilowatt less, for each da~y (other than Sunday) during any part of which any of such Short-Term Power is reduced upon request of the supplying Party,
$0.'021 per kilowatt not received; plus 3.13 110% of the out-of-pocket cost of supplying Short-Te rm Energy called for during such period under Subsection 1.12 of this O
Schedule that comes from the supplying Party's own system and 115% of the out-of-pocket cost of supplying all other such Short-Te rm Ene rgy.
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't. 2 Payments made to either Pa rty pursuant to this Schedule shall comprise an amount in dollars equal to the sum of (a) the amount provided for by Subsection 3. I of this Service Schedule and (b) an amount in dollars sufficient to reimburse the Patty entitled to such payments for any amounts paid or payable by it as sales, excise, or similar taxes (other than taxes -
based on or measured by net income) in respect to the total amount paid pursuant to this Section and to enable such Party, after provision for such taxes.to realize the nit amount payable as provided in Subsection 3.1 above.
SECTION 4 - SPECIAL PROVISION Each Party to the Agreement recognizes that inflationary pressures and cumbersome administrative procedures which are required under some circumstances by statutory provision and/or administrative rule may, unless O
ereciat greceutions are tahen, inhibit the Partiee from effe = ting interconnectione and transactions which might otherwise be effected purcuant to the provisions of the Agreement and this Schedule. The Parties accordingly agree that--
particularly since the transactions contemplated by this Schedule are intended to be reciprocal in character when it is in the interests of both Parties so to be--
either Party may at any time and from time to time in the futur,e take such action under the Agreement as such Party shall consider to be in the best interests of such Party, including action to file any tariff or rate schedule designed to supersede this Schedule in its application to such Party as a supplie r of elec.tric se rvice.
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O SERVICE SCHEDULE C LIMITED TERM SERVICE t
Under Agreement dated as of January 13, 1975 between The City of Painesville, Ohio and The Cleveland Ele.ctric Illuminating Company SECTION 1 D URATION 1.1 This Service Schedule, a part of an Agreement dated as of January 13,.1975 (the Agreement), between The City of Painesville, Ohio and The Cleveland Electric Illuminating Company shall become effective on O
the effective date of the Agreement, and shall continue as provided in the Ag re ement.
SECTION 2 - SERVICES TO BE REN DERED 2.1 Either Party may arrange to reserve from the other Party, for periods of not less than one or more than 12 months, such electric powe r
("Limitet! Te rm Powe r") whichever, in the sole judgment of the Party requested to rese rve the same, such power is available.
- 2. I1 Prior to each reservation of Limited Term Povier, the numbe r of kilowatts to be rese rved, the pe riod of the rese rvation, and the source of the power if the supplying Party is in turn reserving them from another system, shall be determined by the Parties. Such determination shall be confirmed in writing.
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2-O During each period ' hat Limited Term Power has been 2.12 t
reserved, the Party that has agreed to supply such power shall upon call deliver electric energy
(" Limited Te rm Ene rgy") e p to and including the number of kilowatts then reserved to the reserving Party except when such deliveries would in the judgment of the supplying Party have to be interrupted or reduced to preserve the integrity of, or to prevent or limit any instability on the City system or the C. E. I system.
SECTION 3 COhiPENSATION 3.1 The reserving Party shall pay the supplying Party 3.11 for any month that Limited Term Power is reserved,
$2.15 per kilowatt rese rved; plus 3.12 for e'ach kilc, watt of the rese rved Limited Term Powe r O
purchased by the supplying Party from another system (a) the excess, if any, of the amount paid therefor by the supplying. Party over the charge therefor under Section 3.11 of this Schedule (or, if such amount is less than such charge, minus the deficiency) plus.(b) for each month such Limited Te rm Powe r is reserved
$0. 55 per kilowatt; plus 3.13 110% of the out-of-pocket cost of supplying Limited Term Energy called for during such period under Subsection 2.12 of this Schedule that comes from the supplying Party's own system and 11.5% of the out-of-pocket cost of supplying all other such Limited Te rm Energy.
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- 3. 2 Payments made to either Party pursuant to this Schedule shall Se an amount in dollars equal to the sum of (a) the amount provided for comr by Msection 3.1 of this Service Schedule and (b) an amount in dollars sufficient to reimburse the Party entitled to such payments for any amounts paid or payable by it as sales, excise or similar taxes (othe r than taxes based on or measured by net income) in respect to the total amou t paid n
pursuant to this Section and to enable such Party, after pros sion for such taxes to realize the net amount payable as provided in Subsection 3.1 above.
SECTION 4 - SPECIAL PROVISION Each Party to the Agreement recognizes that inflationary pressures and cumbersome administrative procedures which are required under some circumstances by statutory. provision and/or administrative rule may, unless special precautions are taken, inhibit the Parties from effecting inter-connections and transactions which might otherwise be effected pursuant to the provisions of the Agreement and this Schedule. The Parties accordingly agree that--pirticularly since the transactions contemplated by this Schedule are intended to be reciprocal in character when it is in the interests of both Parties so to be--either Party may at any time and from time to time in the future take such action under the Agreement as such Party shall consider to be in the best interests of such Party, including action to file any tariff or rate schedule designed to supersede this Schedule in its application to such Party as a supplier of electric service.
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~O SERVICE SCHEDULE D I
t ECONOMY INTERCHANGE Under Agreement dated as of January 13, 1975 between The City of Painesville, Ohio and The Cleveland Electric Illuminating Company SECTION 1 DURATION 9
- 1. 1-This Service Schedule, a part of an Agreement dated as of Janua ry 13, 1975 (the Agreement), between The City of Painesville, Ohio and The Cleveland Electric Illuminating Company. shall become effective on the O
effective date of this Agreement, and shall continue in effect until terminated as provided in the Agreeme' t.
n SECTION 2 - SERVICES TO BE REN DERED It is recogniz' d that from time to time each of the Parties 2, 1 e
may have electric energy (herein called Economy Energy) available from surplus capacity either on its own system or from sources outside its own system, or both, and that Economy Energy could be supplied to the other Pe.rty at a cost
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that would result in operating savings to such other Party. Such ope rating savings would result from the displacement of electric ene rgy that otherwise would be supplied from capacity eithe r on such other Party's system or from sources outside its own system, or both. Whenever either Party, in its sole judgment, determines Economy Energy is available, it shall offer to supply
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same to the othe r Pa rty. Such other Party shall in no way be obligated to O
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. O receive Economy Energy, but promptly upon receipt of any such offer, shall notify the offering Party of the extent to which it desires to uee such Economy Energy, and schedules for the periods and extent of such'use shall be agreed upon.
2.2 The right to interrupt this service is reserved without advance notice; howeve r, advance notice of an interruption of service and the probable
, duration of the interruption will be given wherever possible. Any and all claims, demands or causes of action, and all expense associated therewith, attributable in any manner to such se rvice inte rruption are waived.
SECTION 3 - COMPENSATION Economy Ene rgy shall be settled for at rates predicated upon the sharing of the savings in operating costs achieved by such transaction, O
recognizing excise taxes, if any. The cost of the economy energy shall be the out-of-pocket cost to the supplier, plus one half the difference between said cost and the out-of-pocket cost avoided by the receive r.
Prior to any transaction involving the delivery and receipt of economy energy, authorized representatives of the Parties shall determine and agree upon the compansation applicable to such transaction. Compensation so agreed upon for each trans-action shall not be subject to later review or adjustment.
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SERVICE SCIIEDUL5 E l
COORDINATION OF SCHEDULED MAINTENANCE OF GENERATING FACILITIES Under Agreement dated as of January 13, 1975 between The City of Painesville, Ohio and The Cleveland Electric Illuminating Company SECTION 1 DURATION 1.1 This Service Schedule, a part of an Agreement dated as of Janua ry 13, 1975 (the Agreement), between the City of Painesville, Ohio, and The Cleveland Electric Illuminating Company shall become effective on the effective date of this Agreement, and shall continue as provided in the Agreement.
SECTION 2 - SERVICES TO BE RENDERED 2.1 In furtherance of the benefits to be realized by the Parties by coordinating to the extent practicable the scheduled maintenance, repair, and overhaul of generating facilities in their respective systems the parties shall arrange for, deliver, and take electric power and energy in amounts and under conditions as follows; viz:
2.11 For the purposes of this Service Schedule Maintenance Pe riod shall mean a cale,nda r yea r.
During each Maintenance Pe riod, at different intervals determined as provided for unde r Subsection 2.12 below, each Pa rty shall have the right to call for and take delivery of not more than the total of 20,000,000 kilowatthours from the othe r.
Delivery of such energy, subject to the provisions of this Subsection 2.1, may be taken at such times and
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at such rate s of tam.3 e tu receiving hrty may elect up to a maximum rate of take of 2 9, G00 kib Ctc.
2.12, The Op.> rating Carc.mittee shall determine and agrec upon the dates of the mtervals referred to under Subsection 2.11 above during which C. E. I. shall deliver any such energy desired by or returnable to City and, conve rsely, the dates of such inte rvals during which City shall deliver any such energy desired by or return-able to C. E. I..
Subject to the unde rstanding hereinbelow cited, such intervals shall cach consist of single periods of not less than seven i ~
consecutive calendar days, and the receiving Party's right to call for and take not more than the aforesaid total of 20,000,000 kilowatthours during any Maintenance Pe riod shall be restricted to not more than eight. such intervals so agreed upon by the Operating Committee during such Maintenance Period. It is und'e rstood that O
during any Maintenance Period each Party shall have a total of sixty days during which'it shall have the right to call for and take not more than said 20,000.000 kilowatthou rs from the othe r.
2.13 On the day next preceding the first day of 'an interval as described under 2.12 above and on each day of such interval excepting the last day, at a time dete rmined to be practicable by the Operating Committee, the receiving Party shall furnish the othe r a load schedule for the next calendar day, or for such other twenty-four hour period as may be agreed upon by the Operating Committee.
Such load schedules shall show for each clock hour the quantity of energy that the receiving Party expects to take from the other at the delivery point or points, as provided for in Section 1. 2 of this Agreement.
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, O SECTION 3 - A'NN UAL SETTLEME11T 3.1 It is expecic I that d'aring a tall ?1aintenance Pe riod one Party shall, to the extent.practic.ilsle, take f rom the othe r Party the same numbe r of kilowatthours, up to the aforesaid 20,000,000 kilowatthou rs specified in Section 2 of this Se rvica Schedule, that such othe r Party has delivered pursuant to said Section 2.
If, however, the total kilowatthours received by one Party during a full Maintenance Period, pursuant to said Section 2, is grer te r than the total hilowatthours delive red by such Party during st.ch pe riod and pursuant to said Section 2, the Parties shall (1), subject to their mutual agreement, effect the arrangements provided for in Subsection 3.11 below or (2), subject to their mutual agreement, effect a combination of the arrangements provided for in Subsection 3.11 below and
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a cash settlement as provided for ir Subsection 3.12 below or (3), effect Q
a cash settlement as provided for in Subsection 3.12 below.
3.11 The Opc rating Committee shall a trange, if the Parties mutually agree that it shall be so arranged, for the delivery of all or any part of the kilowatthour difference between the total kilowatthours received and dativered by one party during a full Maintenance Pe riod, pursuant to Section 2 of this Se rvice Schedule.
Such delivery, to be made by the Party receiving such kilowatthour difference to the othe r Party, shall be made during the next following Maintenance Pe riod at inte rvals thereof and in amounts and at rates of delivery to be determined and agreed upon by the Operating Committee, but such delivery shall be excluded from all accounting under this Service Schedule with respect to such following Maintenance Pe riod.
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3.12 For the kilowatthour difference, or any part thereof if the Parties mutually ag ree to effcet a cash settlement for only such part, between the total kilowatthours received and delive red by one Party during a full Maintenance Period, pursuant to Section 2 of this Service Schedule, the Party receiving such kilowatthour difference shall pay the other Party at a rate per kilowatthour determined by dividing (1), one hundred and ten per cent of the aggregate out-of-pocket cost--such cost being as of the delivery point or points, as provided for in Section 1.2 of this Agreement, taking into account electrical losses incurred from the source or sources of such energy to said delive ry p,oint or. points - expe rienced by the systems of both pa rties in generating or supplying the ' aggregate kilowatthours delivered during and applicable to such Maintenance Q
Period, pursuant to Section 2 of this Service Schedule, by (2), the number of such aggregate kilowatthours.
SECTION 4 MODIFICATION 4.1 Either Party, by written notice given to the other Party not less than ninety days prior to the end of the second or any subsequent Maintenance Period, may call for a reconside ration of the terms and conditions of this Service Schedule, provided that there shall be no such reconsideration during the first Maintenance Pe riod and no mo re 'than one such reconside ration during the.second Maintenance Period, and that no subsequent reconsideration shall be made soone r than two years following any previous reconside ration.
If such reconsideration is called for, the re shall be taken into account any changed conditions, any results from the application of said terms and conditions not foreseen or reasonably foreseeable as of the day first above written or as o
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of the day of conclusion of the next prev'icus reconsideration, if any, and any othe r factors which might cr.use said te rms nr.d conditions to result in any inequitable division of the benefits of interconnected opa ration or in an inade-quate realization of such benefits. Any modification in te rms and conditions agreed to between the. Parties followic.g t.,uch reconsideration shall become effective at the beginning of the Maintenance Period next following the afore-said ninety-day notice pc.riod.
SECTION 5 - SPECIAL PROVISION Each Party to the Agreement recognizas that inflationa ry pressures and cumbersome administrative procedures which are required under some circumstances by statutory provision and/or administrative rule may, unless special precautions are
'hibit the Parties from effecting interconnec-O tions end transactions %..ch might othe rwise be effected pursuant to the pro-visions of the Agreement and this Schedule.
The Parties acco rdingly agree.
that--particularly since the transactions contemplated by this Schedule are intended to be reciprocal in cha racte r when it is in the interests of both Partie s so to be--either Party may at any time and from time to time in the future take such action under the Agreement as such I' arty shall conside r to be in the best interests of such Party including action to file any tariff or rate schedule designed to supe rsede this Schedule in its application to such Party as a supplie r of c1cetric se rvice.
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e UNITED STATES.0F AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
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THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-346A Unit 1)
)
50-440A
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50-441A THE CLEVELAND ELECTRIC ILLUMINATING
)
)
(Perry Nuclear Power Plant,
)
Units 1 and 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoirg
" Applicants' Proposal For Expediting The Antitrust Healing Process" were served upon those persons listed on the e:t-tached Service List, by hand delivering the same to th>se persons who are located in the Washington, D. C. area and by mailing the same, postage prepaid, to all others, f'
I' Ev NM Gerald Charnoff (
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Dated:
March 14, 1975 L
UllI 'ED STATEG OF AMERICA NUCLEAR REGULATOR'l CO!! MISSION Defore the Atomic Safety and Licensinr, Donrd In the Matter of
)
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TIIE TOLEDO EDIS0!! COMPANY and.)
Tile CLEVELAIID ELECTRIC
)
ILLUMINATI!!G COMPAllY
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(Davis-Bes::e Nuclear Power
,)
Docket Nos. 50-316A 1
Station, Unit 1)
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50 lil0A
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50 1111A 1
THE CLEVELAND ELECTRIC
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ILLUMIllATING COMPAllY, ET AL. )
)
(Perry Muclear Power Plant,
)
Units 1 and 2)
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SERVICE L'IST Douglas V. Rigler, Esq.
Mr. Chase R. Stephens Chairman, Atomic Safety and Docketir.g & Service Section Licensing Board U.S. Nudlear Regulatory Commissior Foley, Lardner, Hollabaugh 1717 H Street, N.W.
and Jacobs Washington, D. C. 20006 Schanin Building 815 Connecticut Av'enue, N.W.
Denjamin H. Vogler, Esq.
Washington, D. C. 20006 Offico of General Counsc1 Regulation John H. Brebbia, Esq.
U.S.' Nuclear Regulatory Commissidr' Atomic Safety and Licensing Board Washington, D. C.
20555 Alston, Miller & Gaines 1776 K Street, N.W.
Washington, D. C. 20006 Robert J. Verdisco, Esq.
Office of General Counsel John M. Frysiak, Esq.
Regulation Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Board Panel Washington, D. C. 20555 U. S. Nuclear Regulatory Commission p
Washington, D. C. 20555 office of General Counsel 1 Regulation Atomic Safety and Licensing U.S. Nuclear ret.la 85"5"5Commission Board Panel Washington, D.
U.S. Nuclear Regulatory Commission Washington, D. C.
20555 0 "
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..t Joseph J. Saunders, Esq.
Leslic Henry, Esq.
Steven M. Charno, Esq.
Antitrust Division Fuller, !!cnry, Hodge & Snyder 300 Madison Avenue Department of Justico Toledo, Ohio 436011 Washington, D. C.
20530 Thomas A. Kayuha, Esq.
Melvin G. Berger, Esq.
Antitrust Division Ohio Edison Company 47 North Main Street Department of Justice Akron, Ohio 11113 0 8 Washington, D. C. 20530 Reuben Goldberg, Esq.
Thomas J. Munsch, Esq.
General Attorney David C. Hjelmfelt, Esq.
Duquesne Light Company 1700 Pennsylvania Ave.,
N'.W.
435 Sixth Avenue Washington, D. C. 20006 Pittsburgh, Pennsylvania 15219 Frank R. Clokey, Esq.
Special Assistant David Olds, Esq.
Attorney General Reed, Smith, Shau & McClay Union Trust Building Room 219 Box 2009 Towne House Apartments Harrisburg, Pennsylvania 17105 Pittsburgh, Pennsylvania 15230 Mr. Raymond Kudukis' John Lansdale, Esq.
Director of Utilities Cox, Langford & Brown City of Cleveland 21 Dupont Circle, N.W.
1201 Lakeside Avenue Washington, D.
C.
20036 Cleveland, Ohio 44114
.Wallace L. Duncan, Esq.
Herbert R. Whiting, Director Jon T. Brown, Esq.
Duncan, Brown & Palmer Robert D. Hart, Esq.
Department'of Law
' l'l00 Pennsylvania Ave., N.U.
1201 Lakeside Avenue Washington, D. C.
20006 Cleveland, Ohio 41l114 Dwight C. Pettay, Jr.
John C. Engle, President Assistant Attorney General AMP-0, Inc.
Chief, Antitrust Section Municipal Building 30 East Broad Street, 15th Floor 20 High Strcct Columbus, Ohio 43215
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Hamilton, Ohio 45012 Deborah Powell Highsmith, Esq.
Donald H. Ucuser, Esq.
Assistant Attorney General Corporate Solicitor Antitruct Section The Cleveland Electric 30 East Broad Street, 15th Floor Illuminating Company Columbus,.0hio 43215 55 Public Squarc 01cycland, Ohio 44101 Christopher R. Schraff, Esq.
' Assistant Attorney General Environmental Law Sect. ion 361 East Broad Street, 8th Floor Co,1umbus, Ohio 13215 1
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