ML19319C558
| ML19319C558 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 12/03/1975 |
| From: | Goldberg J, Lessy R, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002190994 | |
| Download: ML19319C558 (6) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 09 7
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD g1 In the Matter of THE TOLEDO EDISON COMPANY and
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NRC Docket Nos C O-M THECLEVELANDELECTRICILLUMINATING) 50-500A (Davis-Besse Nuclear Power Station, l COMPANY 50-501A Units 1, 2 & 3)
THE CLEVELAND ELECTRIC ILLUMINATING NRC Docket Nos. 50-440A COMPANY, ET AL.
50-441A (Perry Nuclear Power Plant, Units 1 & 2)
)
ANSWER OF NRC STAFF TO " APPLICANTS' STATEGENT OF PROCEDURAL MATTERS TO BE CONSIDERED In the midst of the Eighth Prehearing Conference on November 26, 1975, the Staff rece'ved " Applicants' Statement of Procedural Matters To Be Considered". At that time th3 Staff requested leave to file a written answer thereto. The Board granted the request and asked that answers be filed on December 3,1975.
At this time the Staff is 5 days away from presenting its case at the hearing in this proceeding.
In order to present its best case in an orderly manner, Staff has been spending these last days preparing for the hearing.
For that reason, Staff submits a short answer to what must be described as a " midnight" pleading E by applicants.
If Cf. Commonwealth Edison Co. (Zion Station, flait; 1 & 2), ALAB-196, T AEC 457, 467 n.15 (April 25,1974).
In r'.1 *cie: to filing.their
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" Statement"on the eve of the hearing, Arp e a ts (T1 correctly cite several cases. For example, on p. 2 of their Xa' r,- t, Applicants cite U.S. v. Bentvena at 314 F.2d 916. T.u ae ~, cite 12 319 F.2d 916.
On p. 6 Applicants cite the Rutledae qse as a9pearing in 329 F. Supp.,
when it in fact appears in 327 F. Supp. These mi k,Mtions further complicated Staff's effort to prepare its answer.
l
. In their Stitement Applicants state:
.The Department, the Staff and the City should be required tt, specify the particular Applicant against whom the evidence is sought to be admitted. Such evidence will then come in only against that Appli-cant subject to the right "later to move for the admission of said evidence as against all the [Appli-cants] once [the parties] succeeded in establishing their allegations of consoiracy from independent evidence." y It should be noted that the Staff has not charged Applicants with a conspiracy in this proceeding. E Staff's Trial Brief and its earlier pleading, the " Nature of the Case to be Presented by NRC Staff", set forth clearly the legal and factual arp1ments planned to be made by the NRC Staff with respect to individual and group action. Thus, each Appli-cant has been advised of the nature of the evidence to be presented by the Staff and in those instances where predatory practice evidence is planned to be utilized as to more than one Applicant, it has been so stated. Although Staff has not characterized the Applicants in this pro-ceeding to be conspirators, the issues and the pleadings that have been filed in this matter clearly set forth the theory that Applicants collectively have the power to exclude and restrict competition in the CCCT area and have used that power.
2f Applicants Statement, p. 6 (emphasis added).
y Neither has the Board so characterized any of the charges against Applicants. See " Correction to Minutes of Conference Call of November 14, 1975" dated November 19, 1975.
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For antitrust purposes, contracts, combinations and conspiracies are not equivalent.
InUnitedStatesv.Parke,DavisandCo.#l the Government alleged that Parke Davis conspired and combined, in violation of Sections 1 and 3 of the Sherman Act, with retail and wholesale druggists to maintain the wholesale and retail prices of Parke Davis pharmaceutical products. The Supreme Court reversed the District Court's dismissal of the Government's complaint, stating:
The District Court in this case apparently assumed that the Government could prevail only by establishing a contractual arrangement, albeit implied, between Parke Davis and its customers.... The District Court premised its ultimate finding that Parke Davis did not violate the Sherman Act on an erroneous interpretation of the standard to be applied.... [C]ases teach that judicial inquiry is not to stop with a search of the record for evidence of purely contractual arrangements.
The Sherman Act forbids combinations of traders to sucoress, competition.... When tne manufacturer's actions, as here, go beyond mere announcement of his policy and the simple refusal to deal, and he employs other means which effect adherence to his resale prices...he has out together a combination in violation of the Sherman Act. Thus, whether an unlawful combination or conspiracy is proved is to be judged by what the parties actually did rather than by the words they used. 5/
4] 362 U.S. 29 (1960).
_5f Id. at 43-44 (emphasis added). See the Supreme Court's entire HTscussion of " contracts", " combinations" and " conspiracies", id.
at 36-45, and the cases cited therein.
s
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.m Since the Staff has not charged Appl 1 cants with conspiring, their request that evidence be specifically designated as against only certain applicants is not applicable to Staff's case. Accordingly, the Staff requests th. the Board not requir.e the Staff to further designate against whicn Applicants evidence is directed. E Respectfully submitted, i
Jack R. Goldberg Counsel for NRC Staff Q--)
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Couns/ Lessy, Jr!
Roy P el for NRC Sta f qAA Bghjamin H. Vogler Assistant Chief Antitrust Counsel for NRC Staff Dated at Bethesda, Maryland this 3rd day of December 1975.
6/ The subject of " Applicants' Statement'was discussed during the conference call of November 14, 1975. As stated in the Minutes of Conference Call of November 14, 1975, prepared by Mr. Benbow:
When advised that Applicants planned to request a ruling from the Board requiring that the other parties specify, both with respect to their documentary and testimonial evidence, which Applicant (s) the evidence was directed against, the Chairman stated that he doubted Applicants would obtain such a ruling.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
~BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
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THE TOLED0 EDIS0N COMPANY and
)
NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING )
50-500A COMPANY
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50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 & 3)
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THE CLEVELAND ELECTRIC ILLUMINATING NRC Docket Nos. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Power Plant,
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Units 1 & 2)
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CERTIFICATE OF SERVICE I hereby certify that copies of ANSWER OF NRC STAFF TO " APPLICANTS' STATEMENT OF PROCEDURAL MATTERS TO BE CONSIDERED", dated December 3, 1975, in the captioned matter, have been served upon the following persons by hand delivery to those persons in the Washington, D.C.
area and by mail to all others via the United States mail, first class or airmail, this 3rd day of December 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 Ruth Greenspan Bell, Esq.
and Jacobs Janet Urban, Esq.
Schanin Building P. O. Box 7513 815 Connecticut Avenue, N.W.
Washington, D.C.
20044 Washington, D.C.
20006 Docketing and Service Section Ivan W. Smith, Esq.
Office of the Secretary Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washingten, D.C.
20555 Washington, D.C.
20555 John Lansdale, Esq.
Mr. John M. Frysiak Cox, Langford & Brcwn Atomic Safety and Licensing Board 21 Dupont Circle, N.W.
U.S. Nuclear Regulatory Comission Washington, D.C.
20M6 Washington, D.C.
20555 Reuben Goldberg, Esq.
Atomic Safety and Licensing Board David C. Hjelmfelt Esq.
Panel 1700 Pennsylvania Avenue, N.W.
U.S. Nuclear Regulatory Comission Washington, D.C.
20006 Washington, D.C.
20555 w
sep p - = =
n esp ee D.
.m w
pa
. Donald H. Hauser, Esq.
James B. Davis, Director Victor F. Greenslade, Jr.
of Law The Cleveland Electric Robert D. Hart, Esq.
Illuminating Company City of Cleveland P. O. Box 5000 213 City Hall Cleveland, Ohio 44101 Cleveland, Ohio 44114 Leslie Henry, Esq.
Joseph A. Rieser, Esq.
Fuller, Henry, Hodge & Snyder Lee A. Rau, Esq.
300 Madison Avenue Reed, Smith, Shaw & McClay Toledo, Ohio 43604 Suite 404 Madison Building, N.W.
Thomas A. Kayuha Washington, D.C.
20005 Executive Vice President Ohio Edison Company Alan S. Rosenthal, Chairman 47 North Main Street Atomic Safety and Licensing Akron, Ohio 44308 Appeal Board U.S. Nuclear Regulatory Commission Thomas J. Munsch, Esq.
Washington, D.C.
20555 General Attorney Duquesne Light Company Michael C. Farrar 435 Sixth Avenue Atomic Safety and Licensing Pittsburgh, Pennsylvania 15219 Appeal. Board U.S. Nuclear Regulatory Comissior.
Karen H. Adkins, Esq.
Washington, D.C.
20555 Richard M. Firestone, Esq.
Antitrust Section Richard S. Salzman 30 East Broad Street,15th Floor Atomic Safety and Licensing Columbus, Ohio 43215 Appeal Board U.S. Nuclear Regulatory Comission Mr. Raymond Kudukis, Director Washington, D.C.
20555 of Public Utilities City of Cleveland Michael M. Briley, Esq.
1201 Lakeside Avenue Roger P. Klee, Esq.
Cleveland, Ohio 44114 Fuller, Henry, Hodge & Snyder 300 Madison Avenue David McNeil Olds, Esq.
Toledo, Ohio 43604 William S. Lerach, Esq.
Reed, Smith, Shaw & McClay Terence H. Benbow, Esq.
747 Union Trust Building A. Edward Grashof, Esq.
P. O. Box 2009 Steven A. Berger, Esq.
Pittsburgh, Pennsylvania 15230 40 Wall Street New York, New York 10005 Gerald Charnoff, Esq.
Wm. Bradford Reynolds, Esq.
Shaw, Pittman, Potts &
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Trowbridge hg 910-17th Street, N.W.
i p
Washington, D.C.
20006 Roy P.,Lessy, Jr.
Counsel ~ for NRC Staff
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