ML19319C440

Applicants' Renewed Motion for Summary Disposition Re American Municipal Power-OH Contention That Cleveland Electric Illuminating Co Improperly Denied Access to Transmission Sys.Certificate of Svc Encl

ML19319C440
Person / Time
Site:	Davis Besse, Perry
Issue date:	08/18/1975
From:	Charnoff G, Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19319C435	List: ML19319C434 ML19319C440
References
NUDOCS 8002140819
Download: ML19319C440 (9)

Text

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- - - August 18, 1975 s@ ~

O . UNITED STATES OF AMERICA k' 4 NUCLEAR REGULATORY COMMISSION '!L76)

$ -2 Before the Atomic Safetv and Licensinz Board : AUG 13 d75 > I'-

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E 8 In the Matter of )

) Ni tc-THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING ). NRC Docket No. 50-346A COMPANY )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) NRC Docket No. 50 440A (Perry Nuclear Power Plant, ) 50-441A 1 Units 1 and 2) )

)

THE TOLEDO EDISON COMPANY, ET AL. )

(Davis-Besse Nuclear Power Station, ) NRC Docket No. 50-500A Units 2 and 3) )~ 50-501A APPLICANTS' RENE*JED MOTION FOR SUMMAR'l DISPOSITION

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1. On August 15, 1974, Applicants moved pursuant to Section 2.749 of the Commission's Rules of Practice for summary disposition of the matters set forth in the petition to intervene filed in this consolidated proceeding by American Municipal Power-Chio, Inc. (" AMP-Ohio").1'/ The Licensing Board denied this Motion on November 4, 1974, but 1/ AMP-Ohio sought to intervene only in the antitrust pro-ceeding involving Perry Units 1 and 2. It filed no petition in the Davis-Besse .No. 1 proceecing and similarly did not seek to intervene in the recently convened hearing on antitrust matters for Davis-Besse Nos . 2 and 3. In view of the consoli-dation orders folding all :nree proceedings into one antitrust hearing, it is no longer of practical importance that AMP-Ohio elected not to-participate in the two Davis-Besse proceedings, except as a further demonstration (see paras. 3 and 4 infra) of AMP-Ohio's lack of any real interest in activities rela;ing to the designated nuclear facilities. g t3 0 0 2140 Od7

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ENCLOSURE i

i MEETING HELD ON AUGUST 17, 1977 WITH THE

' DAVIS BESSE, UNIT 1 i

DOCXET NO. 50-346 4

Toledo Edison Comoany Bechtel Corocration L. Roe M. Cantor C. Domeck B. Novich j F. Miller V. Marathe A. Topar J. Ray R. Bins G. Stashik J. Reilly Babccck and Wilcox Comoany NRC-Staff j 0. Tuledieski K. Seyfrit E. Patterson T. Tambling

L. Lesniak J. Stolz D. Mars C. Miller J A. Lazar A. Szukiewicz V. Thomas R. McDermott P. Wagner Bailey Meter L. Engle R. Boone l

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CHAW,.PITTM AN, PoTTO & TROWE P "G E Douglas V. Rigler, Esq. .

John H. Brebbia, Esq.

John M. Frysiak, Esq.

August 18, 1975 Page Two i

f.uture Perry nuclear facilities, or with any acti nties under the licenses requested in the captioned dockets, and, therefore, it is not a proper matter for the Licensing Board to consider in the present antitrust hearing.

. In accordance with Section 2.730(c) of the Ccamission's Restructured Rules of Practice, answers to Applicants' Renewed Motion For Summary Disposition are to be filed within 5 days after service thereof, e.xcept that the NRC Regulatory Staff may file its answer within 10 days after service.

Very truly yours, O

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Wm. Bradford Reynolds Counsel for Applicancs WBR:ats

• Enclosure cc: Members of the Board '

All Parties f

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its denial was "without prejudice to the Applicants to renew their Motion after the close of discovery" (Order On Applicants' Motion For Summary Disposition, p. 2).

The Board, recognizing "the potential use of discovery by [ AMP-Ohio] to support its pleading of nexus," observed that Applicants' motion was at the time " premature" (ibid).

2. Applicants now renew their earlier summary disposition motion and incorporate herein by reference the i

motion papers previously filed with the Board on August 15 , ,

l 1974. In addition, Applicants direct the Board's attention to " Applicants', Reply To Th'e Several Memoranda Filed By The Other Parties In Opposition To Applicants' Motion For Sum-mary Disposition," dated October 21, 1974, on which We continue to rely.

3 Renewal of Applicants' motion at this time is particularly appropriate. Prehearing discovery in these consolidated proceedings, which commenced on April 7, 1975, came to a close on August 1, 1975 Throughout the entire 16-week period, AMF-Ohio made no effort to avail itself of 1

the discovery process. It propounded no interrogatories to t

Applicants, requested no documents, and neither noticed, entered an appearance at (either through its own counsel or through counsel representing one of the other parties), par-ticipated in, nor ordered transcripts of, the numerous depo-sitions.

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t 7 Nor can it reasonably be argued that the Li-censing Board's denial of Applicants' proposed procedure for expediting the hearing process 1[ is dispositive of the present motion. That determination rested on entirely dif-ferent circumstances than are presented in the present con-text. Applicants' proposed procedure was premised on a series of assumptions arguendo relating to the broad matters in controversy set forth in Prehearing Conference Order No. 2.

Those assumptions arguendo served to define the " situation" which'the Board was asked to consider for nexus purposes. It was.within that. framework that the Board ruled "the relation-ship between these plants and the assumed ' situation' is discernible" (Ruling of June 30, 1975, at p. 6).

8. Here, however, we deal only with the allegations in AMP-Ohio's petition to intervene, which do not have nearly so broad a sweep. They concern only the isolated wheeling request for transmission of 30 mw of PASNY power now. The question of nexus in that limited context has been fully briefed by all the parties in connection with Applicants' earlier motion for summary disposition, and it is now ripe for decision.

9 For the foregoing reasons, and for the reason 3/ See Ruling of Bcard With Respect To Applicants' Pro-posal For Expediting The Antitrust Hearing Process, dated June 30, 1975 -

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Rules of' Practice, be deemed to be admitted by AMP-Ohio for purposes of the present motion. The sole issue presented to this Board is therefore whether, on the basis of the facts t

as. admitted, the refusal by The Cleveland Electric Illumi-l nating Company ("CEI") to wheel now for AMP-Ohio over CEI's.

existing transmission facilities an isolated 30 mw of power from the Power Authority ~of the State of New York ("PASNY")

to the City of Cleveland has any meaningful relationship or

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nexus to activities under the Perry nuclear license to be issued scmetime in the future.

6. That is a legal question which has yet to be addressed by this Licensing Board. It differs from the issue earlier resolved by the Board as to whether an adequate nexus had been set forth in the petitions to intervene. In that context, all allegations in the pleadings had to be accepted as true for purposes of resolving the nexus question. The  !

pleadings there provided the framework for defining the suspect activity and its relationship to activities under the nuclear license. Here, by contrast, the Board is asked

' 'to examine that relationship against the backdrop of a com-prehensive affidavit and an undisputed fact statement which describes in detail the potential for any real impact from the Perry nuclear facilities on a hypothetical transfer of 30 mw of PASNY power across CEI's existing transmission lines.

That is a materially different question.

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4. The motion for summary disposition is there-fore now ripe for decision. AMP-Ohio insisted in its earlier pleading papers that it should be allowed the opportunity for "[f]ull and vigorous cross-examination of -the affiant Davidson * *

• to determine the nature and extent of the studies on areawide transmission to which reference is made in the affidavit, and to probe the credibility and biases of the witness."2/ It has now had that opportunity, and ap-parently AMP-Ohio elected not to avail itself of it, either through the mecbanism of interrogatories or deposition dis-covery. Having' chosen such a course, AMP-Ohio is no longer in a position to speculate as to the truth or accuracy of the Davidson affidavit, which has not been questioned, or even alluded to indirectly, by any party during the entire discovery process.

5 In short, as stated in our earlier filing of October 21, 1974 (see Applicants' Reply at p. 16), to which reference has already been made, there exists with respect to the matters raised in AMP-Ohio's petition to intervene no dispute as to any material fact. Applicants' Statement of Material Facts submitted in support of their summary dispo-

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sition motion has never been challenged, and thus the matters stated therein must, under Section 2.749(a) of the Commissica's 2/ " Response of AMP-O In Opposition To Applicants' Motion For Summary Disposition," dated October 9, 1974, at p. 9

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i stated in Applicants' original motion papers filed on August 15, 1974 and in Applicants' Reply Memorandum filed l on October 24, 1974, the present renewed motion for sun-mary disposition should be granted.

Respectfully submitted, SHAW', PITTMAN, POTTS & TROWERIDGE a m By: k.) +

J <~wA Wm. Bradford Eeynolds \

Gerald Charnoff Counsel for Applicants Dated: August 18, 1975 2

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. UNITED STATES OF AMERICA -

NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Lic'ensing Board In the Matter of )

)

THE TOLED0' EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING ) NRC Docket No. 50-346A COMPANY )

(Davis-Besse Nuclear Power Station, )

Unit 1) )

)

. THE~ CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. ) NRC Docket No. 50-440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2) )

)

THE TOLEDO EDISON COMPANY, ET AL. )

(Davis-Besse Nuclear Pcwer Station, ) NRC Docket No. 50-500A Units 2 and 3) ) 50-501A SERVICE LIST Douglas V. Rigler, Esq. Abraham Braitman, Esq.

Chairman, Atonic Safety and Chief, Office of Antitrust Licensing Board and Indemnity Foley, Lardner, Hollabaugh U. S. Nuclear Regulatory Commission and Jacobs Washington, D. C. 20555 Chanin Building - Suite 206 815 Connecticut Avenue, N.W. Mr. Chase R. Stephens Washington, D. C. 20006 Docketing & Service Section U. S. Nuclear Regulatory Commission John H. Brebbia, Esq. 1717 H Street, N.W.

Atomic Safety and Licensing Board Washington, D. C. 20006 Alston, Miller & Gaines 1800 M Street, N.W. - Suite 1000 Benjamin H. Vogler, Esq.

Washington, D. C. 20036 Offic~e of the Executive Legal Director John M. Frysiak, Esq. U. S'. Nuclear Regulatory Ccmmission Atomic Safety and Licensing Washington, D. C. 20555  ;

Board Panel .

Andrew F. Popper, Esq.

U. S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D. C. 20555 Director U. S. Nuclear Regulatory Ccmmission Atomic Safety and Licensing Washington, D. C. 20555 Board Panel

• U. S. Nuclear Regulatory Commission Roy P. Lessy, Jr., Esq.

Washington, D. C. 20555 Office of the Executive Legal Director .

U..S. Nuclear Regulatory Commissicn

, Washington, D. C. 20555 l

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UNITED STATES OF AMERICA l NUCLEAR REGULATORY COMMISSION l

- Before the Atomic Safety and Licensing Board In the Matter of )

)

THE TOLEDO EDISON. COMPANY and )

THE CLE7 ELAND ELECTRIC ILLUMINATING ) NRC Docket No. 50-346A COMPANY )

(Davis-3 esse Nuclear Power Station, )

Unit 1) )

)

THE CLEVELAND ELECTRIC ILLUMINATING )

COMPANY, ET AL. . ) NRC Docket No. 50 440A (Perry Nuclear Power Plant, ) 50-441A Units 1 and 2)

)

. )

THE TOLEDO EDISON COMPANY, ET AL. )

(Davis-3 esse Nuclear Power Station, ) NRC Docket No. 50-500A Units 2 and 3) ) 50-501A ,

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing

" Applicants' Renewed Motion For Su==ary Disposition" were served upon all persons listed on the attached Service List by U. S. Mail, postage prepaid, on this 18th day of August, 1975 SHAW, PITTMAN, POTTS & TROWBRID.GE m

By: Du. DdB Wm. Bradford Reynolds N

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! Counsel for Applicants Dated: August 18, 1975 i .

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