ML19319C535

Response in Opposition to Utils' 750923 Refiled Motion for Summary Disposition.Aslb Should Deny Summary Disposition

ML19319C535
Person / Time
Site:	Davis Besse, Perry
Issue date:	09/29/1975
From:	Adkins K, Brown W, Firestone R OHIO, STATE OF
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML19319C536	List: ML19319C535 ML19319C540
References
NUDOCS 8002190971
Download: ML19319C535 (4)

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,qg BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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THE TOLEDO EDISON COMPANY and )

THE CLEVELAND ELECTRIC ILLUMINATING) t COMPANY ) NRC Docket No. 30-346A (Davis-Besse Nuclear Power Station ) '

Unit 1) )

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THE CLEVELAND ELECTRIC ILLUMINATING)

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

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THE TOLEDO EDISON COMPANY, ET AL. ) NRC Docket No. 50-500A (Davis-Besse Nuclear Power Station,) 50-501A Units 2 and 3) )

RESPONSE BY.THE STATE OF OHIO IN OPPOSITION TO I APPLICANTS' REFILED MOTION FOR

SUMMARY

DISPOSITION l l

On Septenber 23, 1975 Applicants refiled their previously denied Motion for Summary Disposition, despite the withdrawal of AMP-Ohio from these proceedings. The State of Ohio hereby advises the Atomic Safety and Licensing Board (hereinaf ter " Board") of its opposition to Applicants' Refiled Motion.

While Applicants' Motion cite.s the Attorney General's Advice Letter of February 14, 1975, for its separate discussion of the refusal to wheel PASNY power, it ignores the discussion of a number of other alleged anticompetitive activities as well and the conclusion drawn therefrom, that all of the described conduct 80021909 7/ M

. i sm "would constitute a situation inconsistent with the antitrust laws." It is this situation which would be maintained by activ-ities under the license, and this is the. nexus test before the Board. No showing of a nexus must be made between any individual anticompetitive act and license activities. CEI's refusal to wheel PASNY power need not be tested in a vacuum, but rather is to be viewed as part of.a course of conduct, as one of the anticom-petitive abuses of Applicants' dominance of the relevant markets, which together make up a situation inconsistent with the anti-trust laws. While a given activity taken by itself may consti-tute an anticompetitive situation which would be maintained by activities under the license, such a finding is not required here where the refusal to wheel by CEI does not exist in iso-lation.

Applicants repeatedly argue the present tense, emphasizing the refusal to wheel power "now". However, the statutory mandate to the Commiosion is to determine whether activities under the license "would create og maintain" a situation inconsistent with the antitrust laws. _1/ Future activities could maintain rather than create a situation only if that situation did in fact exist now. To argue that these are not proper matters for consideration by the Board because they are happening now flies in the face of this unequivocal Congressional language. See also, In the Matter of Kansas Gas and Electric Company and Kansas City Power and Light Company, (Wolf Creek Generating Station, Unit No. 1) ALAB-279 at

-a 1/ 42 U.S.C.A. 52135 (c) (5) . Emphasis added.

p. 568 (June 30,1975) .

In their Refiled Motion, Applicants have retreated somewhat from their previous, indefensible position that the refusal to wheel PASNY power "is not a proper matter for the Licensing 3oard to consider in the present antitrust hearing." They seek to salvage something from their Motions by conceding only that the refusal to wheel'can be used as evidence of CEI's anticompet-itive intent. While we agree that it is strong evidence of such an intent, no such limitation on the use of this evidence is warranted. No basis exists for foreclosing consideration by the Board of third party wheeling, or even one example of a refusal to wheel, as one of many anticompetitive acts and abuses of dominant market position which taken together constitute a situation inconsistent with the antitrust laws.

It is this situation which would be maintained, and indeed exacerbated, by the unconditional grant of a license and activ-ities thereunder. This requisite nexus will be shown in the factual presentation to-the Board at the full hearing beginning in November. No curtailment of this hearing will come from an attempt to fracture this presentation and have a single fragment i of the case tested out of context. -We agree with the Appeal Board in Wolf Creek that the Co= mission should not be forced to wear blinders when confronted oy such issues.

For the foregoing reasons, Applicants' Refiled Motion for

Summary Disposition should be denied.

Respectfully submitted, WILLIAM J. BROWN Attorney General of Ohio L

RICHARD M. FIRESTONE

, Assistant Attorney General

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Uff KAREN H. ADKINS Assistant Attorney General Antitrust Section State Office Tower - 15th Floor Columbus, Ohio 43215 (614) 466-4328 DATED: September 29, 1975 r