ML19319C550

Answer of City of Cleveland,Oh in Opposition to Applicants' Motion for Summary Disposition.Certificate of Svc Encl

ML19319C550
Person / Time
Site:	Davis Besse, Perry
Issue date:	10/10/1974
From:	Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002190985
Download: ML19319C550 (7)

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'h UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of ) ,

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The Toledo Edison Company and ) Docket No. 50-346Y The Cleveland Electric Illuminating )

Company )

(Davis-Besse Nuclear Power )

Station, Unit 1) )

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The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) and 50-441 A (Perry Nuclear Power Plant, Units )

1 and 2) )

ANSWER OF THE CITY OF CLEVELAND IN OPPOSITION TO APPLICANTS' MOTTON FOR

SUMMARY

DISPOSITION On August 15, 1974, Applicants filed a Motion for Suminary Dispo-sition pursuant to Section 2. 749 of the Commission's Rules of Practice.

The City of Cleveland (Cleveland) opposes the Applicants' Motion.

Applicants have seized upon the device of a Motion 6' Summary Disposition to reiterate all of the arguments regarding nexus which they have ralaed at each and every prehearing conference held in this case.

Those argt2.c-nts have been continually rejected by the Board. 1_/ To the extent that Appiteants now offer new or more detailed arguments in opposi-tion to AMP-O's showing of nexus, they neglect entirely to offer any explana-tion for their failure to assert these arguments in a timely fashion. If this case is to proceed to an expedhious conclusion, matters once laid to rest by Order of the Board must remain at rest. There must be a point at which the Applicants can no longer require the other parties to reply again and again to their oft-repeated and rejected arguments.

.I./ Final Memorandum and Oreder on Petitions to Intervene and Requests for Hearing, docketed April 16, 1973; Memorandum and Order, dock- /

eted August 31, 1974.

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i The nexus of CEI's refusal to wheel the 30 mw of PASNY power to

~ Cleveland for AMP-O must, by now, be clear even to Applicants -- not only.in terms of engineering which AMP-O has clearly stated, but in terms of. economics as well. AMP-O is a bulk power supply competitor of CEI for sales of bulk power to the City of Cleveland. Currently, CEI is the only bulk power supplier which has access to transmission facilities required to

deliver bulk power to the City of Cleveland. If CEI were to agree to deliver the PASNY power for AMP-O to Cleveland, CEI would lose the opportunity to sell that amount of power and energy to Cleveland.

The growth of CEI's own loads would eventually exhaust CEI's bulk power supply requiring it to cease bulk power sales to Cleveland. In that event, CEI would be removed from the bulk power supply market and would have no incentive to deny access to that market to AMP-O. However, the additional bulk power generation which will be available to CEI from the Davis-Besse and Perry plants, as weil as Beaver Vallev, will permit CEI l to continue to make bulk sales to Cleveland so long as the City needs to

purchase such power. Accordingly, CEI refuses to wheel PASNY power to protect a market, which it now moricpolizes, for the sale of power from its own nuclear generating units. If. to do this, it must turn its back on the public interest of the people of Cleveland to have available to them 30 mw of low cost PASNY power, CEl is prepared to do so.

PASNY power, if it werc 'ver allowed to reach the City of Cleveland, would be marketed at retail in direct competition with Davis-Besse and Perry power being marketed by CEI. Again, if CEI did not anticipate in-creasing its own srpply of power for sale in the retail market, it would I

have no objection to AMP-O's delivering PASNY power to Cleveland for resale to customers which CEI could not serve in any event. It is the availability _ of nuclear power from the Davis-Besse and Perry plants which makes it desirable for CEI to deny low cost PASNY power to the people of

Cleveland.

, Donald Hauser, Corporate Solicitor for CEI, in an August 30, 1973, l 1etter to Wa'aace Duncan, one of the Atto rneys fo r AMP-O, made it very clear that CEI was simply unwilling to cc..aete foi sales with PASNY power

, sold by Cle veland, saying:

As you may know, the 111umir., ting 'ompany

competes with the Cleveland iu .atpal Elec-tric Light Plant on a customer-to-customer

- and street-to-street basis in a sizeable por-tion of the City. This competitive situation is clearly unique. Economic studies indicate t

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an arrangement to transmit the PASNY power p would provide the Municipal system electric energy at a cost which would be injurious to the Illuminating Company's competitive posi-tion.

• Ir. his affidavit, Mr. Davidson points out (p. 3) that CEI plans to cc,a:truct a 345 kv transmission line from Perry 345 kv switchyard to the Erie West 345-115 kv substation of Pennsylvania Electric Company in Erie County, Pennsylvania. Applicants note in their Statement Of Material Facts As To Which There Is No Genuine Issue To Be Heard that PASNY power would be wheeled, if wheeled at all, from Pennsylvania Electric Company to Cleveland. Thus, there is a direct nexus not only between the marketing of the power produced from the nuclear plants, but with the transmission facilities constructed in conjunction with those plants.

In Paragraph 11 of its Memorandum In Support Of Motion For Summary Disposition, Applicants advance a most astonishing argument.

There it is stated:

Yet, the future activity to which AMP-Ohio makes reference in its second nexus argu-ment is transmission instabilitL, due either to a loss of Perry gener stion or to a system fault in Perry-associatea transmission --

and that activity can relate to the delivery of PASNY power, if at all, only to the extent that CEI had already granted the access that AMP-Ohio requested. So long as CEI con-tinues to refuse to wheel PASNY power --

for whatever reason -- the stability or in-stability of the CEI system after installation of the Perry generation and transmission facilities concerns activities under the license which have absolutely no re'evance to the PASNY situation be irg challerged by AMP- Ohio.

1 In other words, Applicants can shield their unlawful refusal to wheel PASNY power from antitrust review by this Board through the simple expedient of persisting in that unlawful activity. Merely stating the proposition exposes its inherent absurdity.

1 WHEREFORE, and for the foregoing reasons, the Applicants' Motion For Summary Di= position should be denied. i Respectfully submitted, CITY OF CLEVELAND, OHIO By. 6 b z c.,

David C. Hjeldfelt [

Its Attorney 1

Reuben Goldberg David C. Hjelmfelt 1700 Pennsylvania Avenue, N. W.

Washington, D. C. 20006 Telephone (202) 659-2333 Herbert R. Whiting Director of Law Robert D. Hart Assistant Director of Law City of Cleveland City hall cleveland, Ohio 44114 Telephone (216) 694-2717 October 10, 1974 1

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4 Certificate of Service j I hereby certify that service of the foregoing " Answer of the City of Cleveland in Opposition to Applicants' hiotion for Summary Disposition" has been made on the following parties listed on the attachment hereto, this 10th day of October, 1974, by depositing copies thereof in the United States mail, postage prepaid.

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David C./4Ijelml@Ilt l

Attachment 4

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ATTACHMENT Atomic Safety and Licensing Board Jon T. B rown, Esq.

U. S. Atomic Energy Commission Duncan, Brown, Weinberg & Palmer Washington, D. C. 20545 Suite 777 1700 Pennsylvania Avenue, N. W.

Mr. Frank W. Karas, Chief Washington, D. C. 20006 Public Proceedings Branch Office of the Secretary John C. Engle, Pre sident U. S. Atomic Energy Commission AMP-O, Inc.

Washington, D. C. 20545 Municipal Building 20 High Street John B. Farmakides, Esq. Hamilton, Ohio 45012 Chairman Atomic Safety and Licensing Board Melvin C. Berger, Esq.

U. S. Atomic Energy Commission Joseph J. Saunders, Esq.

Washington, D. C. 20545 Steven Charno, Esq.

Antitrust Division John H. B rebbia, Esq. I'epartment of Justice Atomic Safety and Licensing Board Post Office Box 7513 Alston, Miller & Gaines Washington, D. C. 20044 1776 K Street, N. W.

Wa s hington, D. C. 20006 William T. Clabault, Esq.

David A. Leckie, Esq.

Douglas R!gier, Esq. Department of Justice

, Atomic Safety and Licensing Board Post Office Box 7513 Hollabaugh & Jacobs Washington, D. C. 20044 Suite 817, Barr Building 910 17th Street, N. W. Gerald Charnoff, Esq.

Wa shington, D. C. 20006 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. TV.

Benjamin H. Vogler, Esq. Washington, D. C. 20006 Joseph Rutbe rg, Esq.

Office of the General Counsel Frank R. Clokey, Esq.

Regulation Special Assistant Attorney General U.S. Atomic Energy Commission Room 219 - Towne House Apartments Wa s hingto n, D. C. 20545 Harrisburg, Pennsylvania 17105 Robert J. Verdisco, Esq. Thomas J. Munsch, Jr. , Esq.

Office of the General Counsel General Atto rney Regulation , Duquesne Light Company U. S. Atomic Energy Commission 435 Sixth Avenue Washington, D. C. 20545 Pittsburgh, Pennsylvania 15219 Abraham Braitman, Esq. David McNeil Olds, Esq.

Office of Antitrust and Indemnity John McN. Cramer, Esq. i U. S. Atomic Ene rgy Commis sion Reed, Smith, Shaw & McClay l Wa s hington, D. C. 20545 747 Union Trust Building 1 Pittsburgh, Pennsylvania 15219 l

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Pago 2 ATTACHMENT (Continuad)

John R. White, Esq. Leslie Henry, Esq.

Vice President and General Counsel Fuller, Henry, Hodge & Snyder Ohio Edison Company 300 Madison Avenue 47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 John Lansdale, Jr. , Esq'. g Pennsylvania Power Company Cox, Langford & B rown 1 East Washington Street 21 Dupont Circle, N. W.

New Castle, Pennsylvania 16103 Washington, D. C. 20036 Lee C. Howley, Esq. Donald H. Hauser, Esq.

Vice President and General Ccunsel Corporate Solicitor The Cleveland Electric Illuminating Co. The Cleveland Electric Illuminating Co.

Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Atomic Energy Commission U.S. Atomic Energy Commission Washington. D. C. 20545 Washington, D. C. 20545 Dr. John H. Buck William C. Parler Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U.S. Atomic Energy Commission U.S. Atomic Energy Commission Was hington, D. C. 20545 Washington, D. C. 20545 D r. Lawrence K. Quarles D r. W. Reed Johnson Atomic. Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U.S. Atomic Energy Commission U. S. Atomic Energy Commission Wash ngton, D. C. 20545 Washington, D. C. 20545 2

Dwight C. Pettay, Jr. , Es c,. Deborah Power Highsmith Assistant Attorney General Assistant Attorney General Chief, Antitrust Section Antitrust Section 30 East B road Street, 15th door 30 East Broad Street, 15th Goor Columbus, Ohio 43215 Columbus, Ohio 43215

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