ML19319C615
| ML19319C615 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 10/02/1975 |
| From: | Frysiak J, Rigler D, Smith I Atomic Safety and Licensing Board Panel |
| To: | NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8002191059 | |
| Download: ML19319C615 (11) | |
Text
_
P J
n
(), *
.M
~
s g
UNITED STATES OP AMERICA I
'2.
NUCLEAR REGULATORY COMMISSION
/s O
,,..s ly; fore the Atomic Sa fety and Licensing Boar c i
In the Matter of
)
)
The Toledo Edison Company and
)
Docket Nos. 50-346A The Cleveland Electric Illuminating )
50-500A Company
)
50-501A (Davis-Besse Nuclear Power Station, )
Units 1, 2 and 3)
)
)
The Cleveland Electric Illuminating )
Docket Nos. 50-440A Company, et al.
)
50-441A (Perry Nuclear Power Plant,
)
Units 1 and 2)
)
SIX"fH PREHEARING CONFERENCE ORDER Pursuant to Notice, the Sixth Prehearing Conference in this consolidated proceeding was held on September 18, 1975.*
The Board first considered the petition of AMP-O for leave to withdraw from these proceedings which motion was granted (Tr.
- p. 1183).
Next the Board considered proposals to eliminate or curtail issues set for hearing.
During this discussion, Appli-cants urged that the City of Cleveland (City) not be permitted to introduce any evidence in this proceeding regarding the compe-titive situation in the service areas of any applicants other than The notice of conference incorrectly referred to the September 18 hearing as Prehearing Conference No. 5.
The Fifth Prehearing Conference was held on May 14, 1975.
8002191 ON m
CEI.
Applicants ground their objection on the allegation that the City does not compete in service areas of Applicants other than CEI and that in none of the three separate petitions to intervene did the City allege any conduct on the part of Appli-cants other than CEI.
We disagree.
To disprove Applicants' allegation, we have but to refer to our Final Memorandum and Order on Petitions to Intervene and Requests for Hearing, dated April 15, 1974, wherein we recognized City's assertion of CEI's and other CAPCO members' anti-competitive practice (p. 10 ).
- Accordingly, the City will be permitted to present its case in the particulars set out in their Statement Informing Applicants of the Nature of the case to be Presented.
The City submits that Matter in Controversy #10 should be dropped because it already was decided in the affirmative by the Atomic Safety and Licensing Appeals Board in the Wolf Creek proceedings.** However, the City states that in the alternative, We quote from the City's petition that: "(M}embership in CAPCO has enhanced CEI's ability to construct and market power from large nuclear units and to take advantage of the economies of scale associated with such large units.
At the same time, CEI and e'.her CAPCO members have effectively shut out MELP from derivL.g such benefits either through participation in CAPCO or through non-CAPCO systems, thereby giving CEI a competitive advantage over MELP."
Kansas Gas and Electric Company and Kansas City Power and Light Company, Docket No. 50-482A, ALAB-279, NRCI-75/6.
m
-3_
the Board retains this Matter in Controversy for hearing, the City is prepared to offer expert engineering testimony on Appli-cants' offer of access to nuclear facilities.
Applicants correctly point out that the Wolf Creek decision is to be narrowly construed.
That decision dealt with the adequacy of the pleadings and the Commission's jurisdiction to resolve certain matters in controversy.
The allegations made in the Wolf Creek pleadings were taken by the Appeal Board as true for the sake of argument.
In the instant proceeding, the Appli-cants' policies regarding access to the nuclear facilities have been put into issue and as such must be established at the hearing.
Indeed, the Nuclear Regulatory Commission Staff (Staff) and the Department of Justice (Justice) view this as a viable issue.
In their Statements of the Nature of the Case to be Presented, they indicate that they will offer evidence regarding the policies of some of the Applicants.
Accordingly, we retain Matter in Controversy 410 for the hearing.
The City also requests that Matter in Controversy #11 be restated.
It interprets issue #11 as requiring that "each or any single matter in contentions (1) through (10) meet the nexus test."
The City urges that the issue should be whether there is a nexus between the situation inconsistent with the antitrust laws and the activities under the license.
Applicants disagree; but, by way of accommodation,
O
, offer a restatement of issue #11, "so that it is clear that nexus is not only a relevant consideration in the context of each individual Matter in Controversy, but in addition that the party or parties alleging such nexus must also show a nexus between the overall situation that is alleged to exist and the licensed activities."
Applicants' Response of September 15, 1975 at 13.
See also, Tr. p. 1195-6.
The Staff has indicated that it views Matter in Contro-versy #11 in light of Alabama Power Company
- and the Wolf Creek decisions.
In its Statement of Nature of Case to be Presented, the Staff notes that it intends to demonstrate the relationship between the situation inconsistent with the antitrust laws and the activities under the license; and that after the development of the factual context, the Board will be in a position to make a determination as to the existence of a reasonable nexus.
Justice, in its Response to Applicants' Interrogatories and Requests for the Production of Doc'.ments at page 13, notes that it does not
" contend that each of the above activities must be and is inconsistent with the antitrust laws.
An aggregate of all such activities which are relevant, together with any other appropriate facts, may comprise a situation inconsistent with the antitrust laws."
In the Matter of Alabama Power Company (Joseph M.
1 Farley Nuclear Plant, Units 1 and 2), LBP-73-5, RAI-73-2, p. 85.
I I
^
)
We find the parties to be in substantial agreement in their appraisals of Matter in Controversy #11.
Indeed, the parties' " restatements" are similar to our statement in our June 30, 1975 Ruling of Board with Respect to Applicants' Proposal for Expediting the Antitrust Hearing Process wherein we state at pages 7 and 8:
"Ne agree that the nexus to which the Commission referred in its Waterford opinion is the connection between a ' situation' inconsistent with the anti-trust laws and ' activities' under the license.
If the Board determines that a ' situation' exists which is related to the ' activities,' then the Board must proceed to the question of appropriate relief.
Nexus already will have been established."
Accordingly, Matter in Controversy #11 should be read as relating to aggregate activities necessary to define a " situation" and not as limited to individual nexuses between Matters #1 - 10 and the activities under the license.
By Motion of September 12, 1975, Justice moved to further amend the schedule of activities set forth in Prehearing Conference Order No. 4.
After consideration of the viewpoints of the various parties to these proceedings at the Prehearing Conference of September 18, 1975 (Tr. p. 1226-1247), the Board approved the following schedule to supersede the schedule established by Pre-hearing Conference Order No. 4:
(1)
Each par *.y, other than Applicants, uhall file the direct written testimony of its expert witnesses no later than October 18, 1975.
e
Og
/ '
(2 )
Applicants shall file the direct written testimony of their expert witnesses no later than October 25, 1975.
(3)
Each party shall file a trial brief no later than November 10, 1975.
(4 )
Each party shall file a list of intended fact witnesses with a general statement of the subject area of the testimony of each no later than November 10, 1975.
The Board will entertain a motion by the NRC Staff for a protective order covering i
its fact witnesses.
If filed, the Staff's motion shall include a proposed form of order.
Such an order may provide that the Staff identify its fact witnesses only to attorneys who have filed and have noe withdrawn Notices of Appearances under Section 2.713 of the Rules of Practice.
The order also may provide that these attorneys may not reveal the identity of such witnesses to any other person prior to the appearance of such witnesses at the evidentiary hearing without express prior leave of the Board.
The Board also will entertain, if filed, a motion by the Department of Justice for an appropriate protective order for its witness referred to at Tr. 1258.
(5)
No later than November 10, 1975, each party shall file c list of exhibits currently proposed to be offered into evidence.
Each document shall be separately numbered and identi-fled by date, author and, where applicable, any addressee.
(6)
The parties shall continue to make hand deliveries by messenger of each filing required by this order on or before the document due dates except for service by and upon the State of Ohio.
^
~
_7_
(7)
The evidentiary hearing chall commence November 20, 1975.
ATOMIC SAFETY AND LICENSING BOARD hd A
John M. FfyWiak, Member 6 W 5.$A m Iv'an W.
Smith, Member 1%e Dougla
. Rigler Chairman Dated at Bethesda, Maryland this 2nd day of October 1975.
y
x, UNITED STATES OF AMERICA NUCLEAR REGULATORY CD:': ISS10:1
~
In the Matter of
)
)
THE TOLEDO EDIS0:1 CCMPANY, ET AL. )
Docket No.(s) 50-346A CLEVELS::D ELECTRIC ILLLSIINATING
)
50-440A COMPANY
)
50-441A
)
(Davis '.' esse clear Power
-)
Statio.. U. t No. 1; Perry
)
Nuclear Power Plant, Units 1&2))
CERTIFICATP cr G.'!CE I hereby certify that I have this day served the fore;ain; document (c) upon cach perren desi:;nated on the cifici.al service lis t cc m iled by the Cf fice of the Secretary of the Cerr. ins ton in this prccc V ' ' in accordence uith the requircrents of sectica 2.712 ef 10 CT' Pc.. 2-Rules of Prac: ice, of the huclear Regulatory Corrission's dules and Regulations.
'C.
this Dated qt Uashin:; ton, /,.5.-
c day of F
L 197 -
I-i
/.
. v' o
/, '
Of fice oi the Secretary of the C:rrissien
s UNITED STATES OF AMERICA NUCLEAR REGULATORY C0:0!ISSION In the !!atter of
)
)
TOLE 00 EDISCN CCT.*.NY, ET AL
)
Dochet No.(s) 50-346A (Davis-Oesse Unit 1)
)
CLEVEUND E'.ECTRIC ILLU'iI::ATING
)
)
50-441A (Perry Units 1 and 2)
)
T0*,Er0 ELISCN CCM~ANY, ET AL.
)
50-500A (Davis-3 esse Units 2 and 3)
)
50-501A SER" ICE LIST rouglaa Rigler, Esc., Chairman Joseph Ru:Ser;, Esq.
Foley, Lardnar, Holicbaugh Jacobs Anti: rust Counsel 315 Connacticut Avenue, N. '?.
Counsel for NRC 9taff
- ashington, D. C.
20006 U. S. Noelcar 2egulatory Commissica Washing:en, ?. C.
20535 Ivan . Smith, Esq.
Office of Antitrust ! Indemnity Atomic Safety and Licensing 3:ard Of fice of '.uclear Recccor Regulation U. S. Nu: lear ne;u'atory C mission U. S. Nuclear Regulc:ory Corrission Wash ng:on, D.
C.
20555 Washington, ~. C.
20535 John M. Frysiak, Esc.
3enjamin d. " ogler, Esq.
Atomic Safety anc *.icansin; Ocard Roy P. Le s s y,
.*r., E s.
U. S. ::ucicar 2 gula:ory C: =ission Antitrusc Counsel Nashington, D. C.
20555 Counsci f or NRC S c ff U. S. Nuclear Eagult:ory Commissicn Alan S. Rosenthal, Esc., Chairman Washington, r. C.
22555 Atomic Safety and Licensing appeal Joard Canald M. Eauser, Ec'.
U. S. Nuclear Reguia:ory Cornis:Lon
' lictor 7. n 2caslade, Tr., Esc.
r Washington, D. C.
20535 Cleveland Ela :ric !!. l cr.ina t in g Company Mr. Michact C. Parrar F. O. ion 5000 Ator.ic Sa fety and '.icensing Appeal Cleveland, Chio 41101 daard U. S. Mucicar Regulatory Con =ission Joseph J. 5aunders, 2sq., Chief Washingten, D. C.
20555 Fublic Counsei and '.cgislative Section Riihcrl R.
Sairn:n, Esc.
Antitrust Tivision Atomic s fety and Li: casing Appeal U. S. Ecpartt:-: of Justica ricard Washington, D. C.
20530 C. S. Nuclear Regulatory Commission Washington, D. C.
20535 m' m' D
DJ g:
Y) YJ D '9' m
.S.
_.3
50-346A, -440A, -441A; -500A, -501A paga 2 Gerald Charnoff, Esq.
Honorable Edward A. Matto Shaw, Pittman, Potts, Trowbridge Assistant Attorney General and Madden Chief, Antitrust Section 910 -17th Street, N. W.
30 East Broad Street, 15th Floor Washington, D. C.
20006 Columbus, Ohio 43215 Lee C. Howley, Esq., Vice President Honorable Deborah P. Highsmith and General Counsel Assistant Attorney General Cleveland Electric Illuminating Antitrust Section Company 30 East Broad Street, 15th Floor P. O. Box 5000 Columbus,0hio 43215 Cleveland, Ohio 44101 Honorable Christopher R. Schraff David C. Hjel= felt, Esq.
Assistant Attorney Cencral Michael Oldak, Esa.
Environmental Law Section 1700 Pennsylvania Avenue, N. W.
351 East Broad Street Washington, D. C.
20006 Columbus, Ohio 43215 Reuben Goldberg, Esq.
Duncan, 3reun, Weinberg e Palace Arnold Fieldman, Esq.
1700 Pennsylvania Avenue, N W.
1700 Pennsylvania Avenue, N. W.
Washin; ton, D. C.
20006 Washington, D. C.
20006 John Lansdale. Jr., Esq.
Steven M. Charno, Esq.
Co;<, Langford 6 3rown Melvin G. Berger, Esq.
21 Cupont Circle. N. '/.
Ant. crust Division Washington, D. C.
20036 U. S. Depart =ent of Justice Washington, D. C.
20530 Leslie Henry, Esq.
?. Snyder, Esq.
Honorable Theass C. Kauper Fuller, Henry, Hodge & Snyder Assistant Attorney General 300 Madison Avenue Antitrust Division Toledo, Ohio 43604 U. S. Department of Justice Washington, D. C.
20530 Mr. George b. Crosby Director of Utilities Jchn C. Er.;1e, President Piqua, Chio 45350 A37-0, Inc.
Municipal suilding William M. Leuls, Jr.
20 High Street U. M. Leuis L Associatas Hamilton, Chio 45011 D
- 0. So:: 1383 Portsmouth, Ohio 45662 Honorable Richard M. Firestone Assistant Atte nay General Robert D. Hart, Esq.
Antitrust Seei on Assistant Law Director 30 East Broad treet, 15th Floor City Hall Columbus, Ohio 43215 Cleveland, Ohio 44114 Honorabic 'iillicm J. 3rown Anthony G. Aiuvalasit, Jr., Esq.
Attorney General Antitrust Division State of Ohio Department of Justice Columbus, chio 43215 P. O. Box 7313 Washington, D. C.
20044 D
Sf D
J, es F
da.}L a
a,
50-346A, -440A, -441A,s -500A, -501A Paga 3 Susan B. Cyphert, Esq.
Antitrust Division Department of Justice 727 New Federal Building 2140 East Ninth Street Cleveland, Ohio 44199 David M. Olds, Esq.
Reed, Smith, Shaw and McClay P. C. Box 2009 Pittsburgh, Pennsylvania 15230 Thomas A. Kayuha, Esq.
47 ::crth Main Street Akron, Ohio 44303 Perry Public Library 3753 *ain Street Perry, Chio 11031 Director Ida Itupp Public tibrary 0
en c3 }{
301 ::adison Straet
]b Fort Clinten, Ohio 43452 su eg mg) g-}1
~
SA_2_
A 2
l