ML19319C566
| ML19319C566 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 09/11/1975 |
| From: | Brown W, Firestone R OHIO, STATE OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002191002 | |
| Download: ML19319C566 (7) | |
Text
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M S EP U 1975 "' -
UNITED STATES OF AMERICA k
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NUCLEAR, REGULATORY COM*4ISSION h
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BEFORE TIIE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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T!!E TOLESO EDISON COMPANY and
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T!!E CLEVELAI;D ELECTRIC ILLUMINATING )
COMPANY
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NRC Docket No. 50-346A (Davis-Besse 1:uclear Power Station
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Unit 1)
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TIIE CLEVELA iD ELECTRIC ILLUMINATING )
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NRC Docket No. 50-440A (Porry Nuclear Power Plant
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50-441A Units 1 and 2)
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TIIE TOLEDO EDISCN CCMP.'CiY, ET AL.
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NRC Docket No. 50-500A (Davis-Besse Nuclear Power Station,.)
50-501A Units 2 and 3)
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RESPONSE BY T!iE STATE OF OSIO IN OPPOSITION TO APPLICANTS' RENE'.G'D MOTIC'.i FOR SU:O'.LRY DISPOSITION On Auguct 18, 1975 Applicants renewed their previously denied ::otion for Su.exary Dicposition pursuant to Section 2.749 of the Commiscion's Rules of Practice, filed originally on August 15, 1974.
The State of Ohio (hereinafter " State") hereby advices the Atomic Safety and Licensing Ocard (hereinaf ter "Scard")
of its opposition to Applicants' Renewed Mocion.
ht is of course proper for this Board to inquire into the existenca of a nexus between a situa' tion inconsist. int with the antitrust laws and activities under the licenne.
The situation is made out by Applicantc' dominance of the relevant markets and their misuse of those dominant positions, ccmprised TL70 0
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in part of a series of anticompetitive activities which in-clude, but are not limited to, refusal to wheel third party
- power, But it is the situation which will be created or malatained which must have a nexus to activities under the license, and not each specific anticompetitive act which goes to make up that situation.
It is not surprising the*cfore that Applicants would seek to splinter o'ff an individual anticompetitive activity and have it tested in a vacuum, rather than as part of a course of conduct within a market environment which taken together clearly demonstrate the re-quired nexus.
The refusal to wheel 30 megawatts of PASNY power to the i
City of Cleveland should not be considered out of context, even in a challenge to A".P-Ohio's role'in these proceedings.
Applicants have tried to twist their Motion even further, "however, to result in a ruling that', despite the allegations of the other parties to this action, the refu$;al to wheel third party power, as evidenced in part by the PASNY incident,
.cannot be considered as one of the anticompetitive abuses of Applicants' dominance which together make up a situation in-consisteM with the antitrust laws which would be maintained, and indeed exacerbated, by the unconditional grant of a license and activities' thereunder.
Thus in their letter's accompanying the Motion and tho' Renewed Motion, Applicants maintain that the refusal to wheel PAsh"I power "is not a proper matter for D
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the Licensing Board to consider in the present antitrust
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hearing."
We disagree.
No basis exist,s for foreclosing con-sideration by the Board of third party whccling, cr even of one limited example of a refusal to wheel, as an element of a situation inconsistent with the antitrust laws.
The nexus between the situation and activitics under the license will of course be shown at the full hearing.
See, In the Matter of Kansas Gas and Electric Ccnoany and Kansas City Power and Light Company (Wolf Creek Gencratine Station, Unit No. 1), ALAS-279 (June 30, 1975); In the Matter of Alatama Power Cc=cany (Joseph M. Parley Muclear Plant, Units 1 and 2), 6 A.E.C.
5 (February 9, 1973).
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As noted by this Scard in its order on Applicants' Motion for Summary Disposition of Novc=ber 4, 1974:
The Scard also notes that dismissing the issue of wheeling (underpinning the acnus contentions of AM2-0) as to AMP-0, would not nccessarily eliminate this issue frca consideraticn ia this prococding since it may arine frc= the contentions of the other
' parties as reflected in the' matters in controversy admitt.d.
Clearly dismissal of AMP-O without more would in no way' alter the course of this litigation.. But despite repeated rulings.
by this and other Boards, Applicants seek again the means to put blinders on the Board and foroclose full, factual presen-tation of significant issues.
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For the forogoing reasons, Applicants" Renewed Motion
, for Summary Disposition should be denied.
4 Respectfully submitted, WILLIAM J.,
BROWN ATTORNEY GENERAL OF OHIO i
By c c A c_
Itichard :-i. r'restone Assistant Attorney Gu..aral Antitrust Section Suite 1599 30 East Broad Street Columbus, Ohio 43215 (614) 466-4328 DATED:
September 11, 1975 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COM!!ISSION BEFORE THE ATOMIC SAFETY AND LICEUSING BOARD In the Matter of
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THE TOLEDO EDISON COMPANY and
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NRC Docket No. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING )
COMPANY
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(Davis-Desse Nuclear Power Station
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Unit 1)
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T'HE CLEVELAND ELECTRIC ILLUMINATING )
NRC Docket No. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Power Plant
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Units 1 and 2)
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THE TOLEDO EDISON COMPANY, ET AL.
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NRC Dockot No. 50-500ls (Davis-Bosse Nuclear Pouer Station
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50-501A Units 2 and.3)
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CERTIFICATE OF SERVICE I hereby certify that copies of the RESPONSE BY THE STATE OF OHIO IN OPPOSITION TO APPLICASTS' RENEWED MOTION FOR
SUMMARY
DISPOSITION, dated September 11, 1975, in the above-captioned matter have been served upon all parties listed on the Attach-ment hereto by deposit in the United States mail, postage prc-paid, this 12th day of September, 1975.
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RICilAllD M.
EIRESTOSE M. '!
Assistant Attorney General
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/yU State of Ohic
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. '. SERVICE LIST-Gerald Charnoff, Esq.
Douglas'V. Rigler, Esq.
Chairman, Atcmic Safety and Licensing William B.
Reynolds, Esq.
Shaw, Pittman, Potts &
Doard Foley, Lardner, Hollabaugh and Jacobs Trowbridge Schanin Building 910 17th Street, N.W.
815 Connecticut Avenue, N.W.
Washington, D.C.
20006 Washington, D.C.
20006 Rucben Goldborg', Es'q.
David C.
Hjelmfelt, Esq.
John H. Brebbia, Esq.
Atomic Safety and Licensing Board 1700 Pennsylvania Ave.,
N.U.
Alston, Miller & Gaines Washington, D.C.
20006 177G K Street, N.W.
-Washington, D.C.
20006 Wallace L. Duncan, Esq.
Jon T.
Brown, Esq.
Duncan, Brown, Weinberg &
John M. Frysiak, Esq.
Palmer Atomic' Safety and Licensing Board 1700 Pennsylvania Ave.,
N.W.
Panel 20006 U.S. Nuclear Regulatory Commission Washington, D.C.
~~
Washington, D.C.
20555 James B.
Davis, Esq.
Atomic Safety and Licensing Board Robert D.
Hart, Esq.
Law Department, 213 City Hall Pano)
U.S. Numicar Regulatory Commission 1201 Lakeside Aecnue Washington, D.C.
20555 l
Clevelnnd, Ohio 44114 Frank W.
Karas, Chief Raymond Kuduhis, Director Public Proceedings Branch Department of Utilitics City of Cleveland Office of the Secretary U.S. Nuclear Regulatory Commission 1201 Lakeside Avenue Washington, D.C.
20555
' Cleveland, Ohio 44114 Docketing and Service Section
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Lee C. Hcwley, Esq.
Donald H.
Hauscr, Esq.
Office of the Secretary U.S. Nuclear Regulatory Commission
.The Cleveland Electric Washington, D.C.
20555 Illuminating Company 55 Public Squarc Benjamin H. Vogler, Esq.
Cleveland, Ohio 44101 Robert J. Verdisco, Esq.
Frank R.
Clokcy, Esq.
Roy P. Lessy, J:., Esq.
Office of Gener._ Counsel Special Assistant Attorncy General Regulation U.S. Nuclear Regulatory Ccamission Room 219 Washington, D.C. 20555 Towne House Apartments Harrisburg, Pennsylvania 17105 Joseph J.
Saunders, Esq.
John C. Engle, President Steven Charno, Esq.
AMP-O, Inc.
Melvin G.
Berger, Esq.
Antitrust Division Municipal Building U.S. Department of Justico 20 High t
et P.O. Box 7513 Hamilt.o 1) i @ ~@ 012 Washington, D.C.
20044 ygg r,
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- Th: mas A. ' Keyuha,
- ,, Ghio Edison Compan, q.
47 North Main Street Akron, Ohio 44308 Leslie Henry, Esq.
Fuller, Henry, Hodge & Snyder 300' Madison Avenue Toledo, Ohio 43604 David'M. Olds, Esq Reed, Smith,Shcw$McClay 747 Union Trust Building Pittsburgh, Pennys1vania 15219 Thomas J. Munsch, Esq.
Duquesne Light Company 435 Sii:th Avenue Pi,ttsburgh, Pc.7.nsylvania 15219 John Lcnsdale, ' q.
Cox, Langford & arown 21 Dupont Circle, U.W.
Wachington, D.C.
20036 Victor F. Greenslade, Jr., Esq.
Thc.Cloveland Electric Illuminating Co P.
O.
Dc:: 5000 Cleveland, Ohio 44101 Wallace E.
Brand l;
1000 Connecticut Avenue, N.W.
1 Suite 1200 Washington, D.C.
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