ML19319C522
| ML19319C522 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 10/06/1975 |
| From: | Lessy R, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190952 | |
| Download: ML19319C522 (6) | |
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UNITED STATES OF AMERICA p
NUCLEAR REGULATORY COMMISSIO!!
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3 BEFORE THE ATOMIC SAFETY AND EICENSIllG BOARD OI OC7 L
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In. the Matter of THE TOLEDO EDIS0!! C0!iPANY and DocketNos.\\'5 e
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y THE CLEVELAND ELECTRIC ILLUMINATING 0-500A 50-501A COMPAtlY (Davis-Besse Nuclear Power Station, Units 1, 2 and 3)
THE CLEVELAND ELECTRIC ILLUMINATING Docket Nos. 50-440A 50-441A COMPANY, ET AL.
(Perry Nuclear Power Plant, Units 1and2)
NRC STAFF'S ANSWER IN OPPOSITION TO APPLICANTS' REFILED MOTION FOR
SUMMARY
DISPOSITION On September 23, I975 Applicants refiled their Motion for Summary Dis-position en the basis of AMP-O's withdrawal from this matter.
Previous motions for Summary Dispositions were filed by applicants' on August 15, 1974 and on August 18, 1975. The Staff opposes Applicants' refiled motion.
The instant motion is at least the fourth attempt by Applicants to have the Board procedurally rule out of this matter the substantive issue of Cleveland Electric Illuminating Company's ("CEI") express refusal to wheel PASNY power to the City of Cleveland.
In the past all of the parties have opposed Applicants' efforts and the Board has sustained that oppositicn.
Almost a year cgo, the Staff in opposing one of Applicants' prior motions stated:
Applicants' Motion is especially inappropriate at this time in view of tne Board's recognition that sees 190fO [
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-2 third party wheeling of power from outside the service areas of the Applicants is a relevant issue in this proceeding.
(Staff's Answer in Opposition to Applicants' Motion for Summary Disposition, October 10, 1974 p. 3).
Staff hereby incorporates by reference its Answer in Opposition, filed with the Board on October 10, 1974. Staff also hereby incorporates by
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reference its Answer in Opposition to Applicants' Renewed Motion for Summary Disposition, filed on September 9,1975.
Staff submits that applicants' contentions and allegations concerning AMP-0 have been mooted by AMP-O's withdrawal from this matter. What Appli-cants do not state in their refiled motion is that the Staff, City of Cleveland and Department of Justice, acting independently, have also placed in controversy as an element of a situacion incensistent with the antitrust laws CEI's continuing refusal to wheel PASHY power to the City of Cleveland.
Applicants should not be permitted to use AMP-0's withdrawal as grounds for dismissing this issue or taking it out of context and examining it in isolation, separate and apart from the inconsistent situation that has been alleged and described by the Staff, the Derartment of Justice and the City of Cleveland.
This continuing refusal to deal is but one of-the elements of the competitive situation, which, taken together with other elements in the relevant markets constitutes the " situation" which the Board will con-sider. The reasoning of the Licensing Board, In Alabama Power Comoany (Farley Nuclear Plant, Units 1 and 2) (Docket Nos. 50-348A and 50-364A)
(RAI-73-285 at p. 86) is clearly applicable:
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.s The purpose of receiving such evidence...would be to permit this Board to understand what the " situation" in the appropriate market is, so that the " situation" can be measured against the antitrust laws specifically enumerated in Section 105a of the Act to make a determination as to (1) whether the situation,is, or may become, " inconsistent with those laws," and (2) if so, whether the " activities under the license" would " create or maintain" said situation.
It should be emphasized that TEE statute does not require us to determine whether the Applicants
" activities under the license" or any other activities of Applicant are or are not " inconsistent" with these laws.
It is the comoetitive " situation" as a whole (with emphasis on the structure of tne market, as the word " situation" clearly exists),
not particular individual pa-ts thereof, which we must measure.
This responsibility has been given by Congress to this Commission and to no other agency.
(emphasis supplied).
In addition, Applicants continue to misconstrue the Commission's Waterford decisions 1/ y directing the Board's attention to Applicants' b
licensed activities. E/ However, Haterford requires that the focus should not be on licensed activities, but rather upon the rel'ationship of those activities to the situation alleged to be inconsistent with the antitrust laws.S/
- n commenting on the nexus requirement, the Appeals Board in Wolf Creek recently held:
1/
Louisiana power & Licht Company (Haterford Steam Electric Generation Station, Unit 3), 6 AEC 48 (1973), 6 AEC 619 (1973).
2/
Applicants' Refiled Motion for Summary Disposition, September 23, 1975, p. 3-4.
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Waterford, 6 AEC 619 (1973).
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---for activities under a license to maintain a pre-existing situation inconsistent with the antitrust laws, some conduct of the Applicant apart from its license activities must have been the cause for bringing about these anticompetitive conditions. 4/
Therefore, CEI's refusal to wheel.PASNY power should be viewed in relation to the situation alleged to be inconsistent with the antitrust laws and not the Applicants' licensed activities.
In view of the foregoing, Staff recommends that the Board deny Applicants' Refiled Motion for Summary Disposition.
Respectfully submitted, At
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Bynjamin H. Vogler'~~ / ~
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Assistant Chief Antitrust Counsel for NRC Staff
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3 Roy P./ Lessy, Jr. ' ~ f l Counsel for NRC Staff Dated at Bethesda, Maryland this 6th day of October,1975.
4/
Kansas Gas and Electric Ccmpany and Kansas City Power and Liaht Comcany (Wolf Creek Generation Station, Unit t!o.1) (Holf Creek)
ALAB-279, NP.CI-75/6, 559 at 568.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of THE TOLED0 EDISON COMPANY and
)
NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING 50-500A
-COMPANY 50-501A (Davis-Besse Nuclear Power Station, Units 1, 2 & 3)
THE CLEVELAND ELECTRIC ILLUMINATING )
'NRC Docket Nos. 50-440A COMPANY, ET AL.
)
50-441A e
(Perry Nuclear Power Plant,
)
Units 'l & 2)-
)
CERTIFICATE OF SERVICE I hereby certify that copies of NRC STAFF'S ANSWER IN OPPOSITION TO APPLICANTS' REFILED MOTION FOR
SUMMARY
DISPOSITION, dated October 6, 1975, in the captioned matter, have been served upon the following by deposit in the United States mail, first class or airmail, this 6th day of October 1975:
' Douglas V. Rigler', Esq.
Melvin G. Berger, Esq.
Chairman, Atomic Safety and Joseph J. Saunders, Esq.
Licensing Board Steven Charno, Esq.
Foley, Lardner, Hollabaugh P. O. Box 7513 and Jacobs Wash,ington, D.C.
20044 Schanin Building 815 Connecticut Avenue, N.W.
Docketing and Service Section Washington, D.C.
20006 Office of the Secretary U.S. Nuclear Regulatory Commission Ivan W. Smith, Esq.
Washington, D.C.
20555 Atomic Safety and Licensing Coard U.S. Nuclear Regulatory Cocaission John Lansdale, Esq.
Washington, D.C..20555 Cox, Langford & Brown 21 Dupont Circle, N.W.
~Mr. John M. Frysiak Washington, D.C.
20036 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Reuben Goldberg, Esq.
Washington, D.C.
20555 David C. Hjelmfelt, Esq.
1700. Pennsylvania Avenue, N.W.
Atomic Safety and Licensing Board Washington, D.C.
20006
' Panel U.S. Nuclear Regulatory Commission eom Washington, D.C.
20555 D
DJ oc1
]
4
2 Robert D. Hart, Esq.
Gerald Charnoff, Esq.
Department of Law
-Wm. Bradford Reynolds, Esq.
1201 Lakeside Avenue Shaw, Pittman, Potts &
Cleveland, Ohio 44114 Trowbridge 910-17th Street, N.W.
Donald H. Hauser, Esq.
Washington, D.C.
20006 Victor F. Greenslade, Jr.
The Cleveland Electric James B. Davis Illuminating Company Director of Law P. O. Box 5000
. City of Cleveland Cleveland, Ohio 44101 213 City Hall Cleveland, Ohio 44114 Leslie Henry, Esq.
Fuller, Henry, Hodge & Snyder Josepn A. Rieser, Esq.
300 Madison Avenue Lee A. Rau, Esq.
Toledo, Ohio 43604 Reed, Smith, Shaw & McClay Suite 404 Thomas A. Kayuha Madisen Building, N.W.
Executive Vice President Washington, P C.
20005 Ohio Edison Company 47 North Main Street Alan S. Rosenthal, Chairman Akron, Ohio 44308 Atomic Safety and Licensing Appeal Board
' Thomas -J. Munsch, Esq.
U.S. Nuclear Regulatory Commission General Attorney Washington, D.C.
20555
,Duquesne Light Company 435 Sixd1 Avenue.
Michael C. Farrar Pittsburgh, Pennsylvaria 15219 Atcmic Safety and Licensing Appeal Board David McNeil Olds U.S. Nuclear Regulatory Commission Reed, Smith, Shaw & McClay Wash,ington, D.C.
20555 Union Trust Building Pittsburgh, Pennsylvania 15230 Richard S. Salzman Atomic Safety and Licensing Karen H. Adkins, Esq.
Appeal Board Richard M. Firestone, Esq.
U.S. Nuclear Regulatory Commission Antitrust Section Washington, D.C. - 20555 30 East Broad Street, 15th Floor Columbus, Ohio 43215 h/c, Mr. Raymond Kudukis, Director otj g 4f v/ / ' i of Public Utilities
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Rof [K Lessy, Jr.
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City of Cleveland Counsel. for NRC Sta f,
1201 Lakeside' Avenue Cleveland, Ohio 44114 ennE em.
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