ML19319C649
| ML19319C649 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 11/27/1974 |
| From: | Baker D, Kauper T, Saunders J JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200768 | |
| Download: ML19319C649 (29) | |
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\ UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION ,
BEFORE THE ATO'.fIC SAFETY AND LICENSING BOA 1.D In the Matter o# )
The Toledo Edison Company )
The Cleveland Electric Illuminating ) Docket No. 50-346A
)
Company '
)
(Davis-Besse Nuclear Power Station) -
) .
~ ' - . :. LThe Cleveland Electric Illuminaring ' ) Docket Nos. 50-4A0A Company, et al. ) .and 50-441A (Perry Plant, Units 1 and 2) ) ,
RESPONSE OF DEPARTMENT OF JUSTICE TO APPLICANTS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND ANSWERS TO INTERROGATORIES i
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THOMAS E. KAUPER Assistant Attorney General '
Antitrust Division - ~
DONALD I. BAKER STEVEN N. CHARNO Deputy Assistant Attorney General MELVIN G. BERGER JOSEPH J. SAUNDERS, Attorners, Department Attorney, Department of Justice of Justice i .
- November 27, 1974 1
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'. UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION
. . . ~ ,
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
The Toledo Edison Company )
The Cleveland Electric Illuminating ) Docket No. 50-346A Company )
)
(Davis-Besse Nuclear Power Station) )
The Cleveland Electric Illuminating ) Docket Nos. 50-440A
) and 50-441A Company, et al.
(Perry Plant, Units 1 and 2) ) .
RESPONSE OF DEPARTMENT OF JUS'iTCE TO APPLICANTS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND ANSWERS TO INTERROGATORIES The Department o'f Justice (hereinaf ter Department) submits the following responses to discovery requests served upon it by Applicants in this proceeding. Answers made harein are complete to the knowledge and belief of the undersigned representatives i of the Department as of November 30, 1974. Answers to certain of Applicants' interrogatories involving specific transactions or conduct by Applicants, cannot be answered at this time .
with the degree of specificity requested since the Department has not yet received documents or answers to interrogatories from Applicants pursuant to the Joint Request of the Atomic Energy Commission Regulatory Staff and Oepartment of ,
Justice for Interrogatories and.for Producticr. of Documents by ,
)
Applicants, served August 23, 1974. The Deparrment's answers s
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will be supplemented as necessary to comy ly with Section 2.740(e)
s I 11, 1974, of the Commission's Rules of Practice and the October Order of the Atomic Safety and Licensing Board on Objections To Interrogatories And Document Requests.
RESPONSES TO DISCOVERY REQUESTS Discovery Request Number 1 By letter of January 11, 1971, the Atomic Energy Commission (hercinafter AEC) requested thnt the Department rerJer antitrust advice pursuant to Section 105 of the Atomic Energy'Act on an application for a license for the Davis-Besse Nuclear Power
. Station, Unit 1. This request was forwarded to the Public Counsel .
j and Legislative Section of the Antitrust Division for further processing. The folicwing professional staff members participated
! in the inquiry initia.ted in response to the AEC's request:
(1) Mr. Joseph Saunders, Chief of the Public Counsel and
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i Legislative Section, who filled a supervisory role; (2) Mr. Milton Grossman, Assistant Chief of the Public Counsel and Legislative Section, whose duties were similar to those of Mr. Saunders, and (3) Mr. William Jaegar, Attorney with tis Public Counsel and Legislative Section, who handled the day ']-day :
work asso-
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ciated with this inquiry.
This inquiry was initiated by sending ler:ers to 22 Tlectric utilities located in and adjacent to the Applicants' geographic operating areas.
These letters requested sperific information
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with regard to the existence of situations in :hich Applicants 2
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h ;i The\Department's files relating to this inquiry only contain I
one response, from the Bryan Municipal Light and Water Depart-
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ment in Bryan, Ohio.
- It appears from the Department's files, however, that responses were also received from Hancock-Wood Electric Coop-erative, Inc. in North Baltimore, Ohio, the North-Central Elec-tric Cooperative, Inc. in Attica, Ohio, and the Ohio Cities of Cleveland, Napoleon and Painesviile.
This inquiry was concluded on July 9, 1971, when the Assistant Attorney General for the Antitrust Division, Richard W. McLaren, sent a letter to the AEC containing the .
Department's antitrust advice.
Discovery Request Number 2 A. Copies of the following documents are prcduced herewith:
- 1. January 11, 1971, letter from Bertrcm H. Schur to John N. Mitchell.
- 2. February 22, 1971, letter from Richard W. McLaren to Bertram H. Schur.
- 3. March 23, 1971, letter from Bertrar. 3. 3chur to s " Joseph J. Saunders. .._.
- 4. April 26, 1971, letter from Richard N. McLaren to i numerous electric utility companiez. i
- 5. Undated and unsigned letter to U.S. Department of v
Justice. ,
- 6. June 2, 1971, letter from Joseph J. Saunders to William L. Jaeger.
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- 7. July 9, 1971, letter from Richard W. McLaren to Bertram H. Schur.
- 8. July 12, 1971, letter from Bertram H.'Schur to Joseph J. Saunders.
- 9. August 31, 1971, letter from W. B. McCool to National Archives & Records Service.
- 10. September 10, 1971, letter from Richard W. McLaren to Philip P. Ardery.
D. The Department asserts a claim of privilege with respect to the following documents: ,
- 1. May 10, 1971, memorandum written by William L. Jaeger and received by Joseph J. Saunders, files and corres-pondence relating to activities of the Toledo Edison Privileges asserted: att= rney-client, Company.
attorney'" work product", executive c :xi informers.
- 2. July 1, 1971, memorandum from Joseph. J. Saunders and received by Richard W. McLaren egarding anti-trust advice on the Davis-Besse application.
Privileges asserted: attorney-clie: .t, attorney
" work product", executive and infor. ers.
Discovery Request Number 3 The inquiry conducted by the Department e.n the Application for the Perry Nuclear Power Plant, Units 1 an. 2, utilized information obtained in the inquiry relating _a the application f for the Beaver Valley P'ower Station, Unit 2. -
j By Istter of August 10, 1972, the AEC tr namitted to the
- l Department information requested by the Attor; ay General for l l
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/ antitrust review of the application for a license for the Beaver Valley Power Station Unit 2. This information, together with AEC's request for antitrust advice, was forwarded to the Public Counsel and Legislative Section of the. Anti *mt Division for further processing. The following professional staff members participated in the resulting inquiry: Messrs. Joseph J. Saunders and Milton J. Grossman, whose titles and duties were the same as those in the inquiry concerning the Davis-Bessa application; and Steven M. Charno, Attorney with the Publi<: Cotrnsel and Legislative Section, whose duties were the same 'as those cd Mr. Jaegar in tne Davis-Besse inquiry.
On September 6, 1972, letters requesting apecific informa-tion about the existence of situations in whicia the Applicants were involved which might have anticompetitive implications were .
sent to 56 utilities located in or adjacent to the Applicants' geographic operating areas. Answers were obta.c.ned from the following:
American Municipal Power-Ohio, Inc. (resp :nding en behalf of its members)
Beach City, Ohio Bradner, Ohio Bryar Ohio its members)
Buckeye Power Co. (responding on behalf c Cleveland, Ohio '
Cclumbiana, Ohio Elmore, Ohio Hancock-Wood Electric Cooperative Hubbard, Ohio g Hudson, Ohio Lucas, Ohio
' Mcrrow Electric Co' operative Niles, Ohio Norwalk, Ohio Orrville, Onio
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Painesville, Ohio Pioneer Rural Electric Cooperative Pitcairn, Pennsylvania South Vienna, Ohio Wampum, Pennsylvania Wellington, Ohia Woodville, Ohio Zelienople, Pennsylvania The* City of Pittsburgh, .ennsylvania, was also contacted by letter dated January 30, 1973.
Those entities which made comments about situations which might be deemed to be inconsistent with the antitrust laws were selectively asked to supply additional detail. The Departmenr evaluated these responses in light of the information provided )
, by Applicants, as well as certain commitments nade by them con-cerning future conduct. This inquiry was concluded on April 20, 1973, when the Department rendered antitrust advi'ce to the AEC.
By letter of April 2, 1973, the AEC transinitted certain information to the Department and requested antitrust advice on the application for Perry Nuclear Power Plant, Units 1 and 2.
This information and request wrce forwarded to the Public Counsel The same profes-and Legislative Section of the Department.
sional staf f members enumerated in. connection -tith the Beaver Valley inquiry participated in this inquiry. _
the Beaver Valley j Beginning'with the complaints received in I
inquiry, additional informarion was solicited f rom various com-and plaintants. The City of Cleveland (hereinaf ter Cleveland)
American Municipal Power-Ohio, Inc. (hereinaf tcr AMP-0) indicated an interest in intervening in any AEC proceedi; g relating to i this application.
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Limited discussions with Applicants on alleged anticom-petitive situations were held in an attempt to reach an agree-ment on license conditions which would protect the public interest.
L is incuiry was concluded These discussions were unproductive.
when the Department rendered antitrust on D.ecember 17, 1973, advice to the AEC.
Discovery Request Number 4 A. Copies of the following documents are produced herewith:
- 1. August 10 1972, letter from Marcus A. Rowden to Richard G. Kleindienst.
- 2. August 15, 1972, letter from Joseph Rutberg to Joseph J. Saunders.
- 3. September 6, 1972, letter from Thom;s E. Kauper to indicated electric utility companies.
September 11, 1972, letter from the City of Painesville 4.
to the Depar: tent.
(by Joseph Pandy, Jr.)
September 11, 1972, letter from the City of Norwalk 5 5.
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,' (by Donald P. Ware) to the Departm 2
. 6. September 11, 1972, letter from Mor-ow Electric to the Depart-Cooperative Inc. (by Leonard Wigtcr.
ment.
September 12, 1972, letter from Pic neer Rural
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f Electric Cooperative, Inc. (by Rohc rt L. Roberts) f to the Department.
- 8. September 12, 1972, letter from th- Village of
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.p September 14, 1972, letter frbf 'the 3brough of
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Wampum (by Robert Aiello) -
- 10. September 15, 1972, letter from Orrifile Municipal Utilities (by Roy S. Williams) t'o the Department.
- 11. September 21, 1972, letter fron the Torough of Pitcairn (by Robert F. McCabe, Jr.) to the Department.
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- 12. September 25, 1972, letter from liubbtrd, Ohio, (by T. J. Wilson) to the Department.
- 13. Septe.mLc. 25, 1972, letter frca villsge of 1:udson, Ohio, (by S. S. Schweikert) to the Department.
September 26, 1972, letter from Desh er Municipal 14.
Utilities (by Roy K. Beamand) to the Department.
- 15. September 26, 1972, letter from Brad:er, Ohio, (by Richard Fairbanks et al.) to the Depzrtment.
- 16. Septemberd6, 1972, letter from Vill ge of South Vienna, Ohio, (by David D. Mattes) ts the Department.
- 17. September 28, 1972, letter from the City of Cleveland (by Warren D. Hinchee) to the Depart .ent.
- 18. September 28, 1972, letter from Wocdrille, Ohio, (by Joyce E. Lenke) to the Department.
- 19. September 29, 1972, letter from the 3crough of
? . Henderson, Zelienople, 2ennsylvania, (by James Jr.) to the Department.
- 20. October 2, 1972, letter from Villag of Columbiana, i
Ohio, (by Douglas Moore) to the Dep :_ ment.
October 2, 1972, letter from the Vi'.~. ige of Monrceville, 21.
Ohio, (by Myron J. Gerber) to the Dc.;artment.
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i letter from the City of Niles, Ohio,
/ 22. October 4, 1972, (by Charles W. Burgess) to the Department.
- 23. October 9, 1972, letter from Hancock-Wood Electric Cooperative, Inc. (by Paul H. Ilutchison) to the Department.
- 24. October 11, 1972, letter from Bryan Municipal ,
Utilities (by Robert L. Rataiczak) to the Department.
- 25. October 13, 1972, letter from the village of Montpelier (by Paul E. Hutchinson) to the vepartment.
- 26. October 17, 1972, letter from Wellington, Ohio, (by John Rohr) to the Department.
- 27. October 19, 1972, letter from the Department to Philip P. Ardery,
- 28. October 20, 1972, letter from Beach City, Ohio, (by Robert Raff) to the Department.
- 29. October 27, 1972, letter from Marcus A. Rowden to Richard G. Kleindienst.
- 30. October 30, 1972, letter from the Village of Elmore, Unio, (by Judith Damschroder) to the Department.
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- 31. November 3, 1972, letter from Thomaa E. Kauper to f
Philip P. Ardery. .
- 32. November 8, 1972, letter from Philip P. Ardery to Steven M. Charno.
- 33. November 17, 1972, letter from Phil_p P. Ardery to Y
Steven M. Charno.
- 34. November 29, 1972, letter frcm Thor 3 E. Kauper to
.j Philip P. Ardery.
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- 35. December 1, 1972, letter from Robert P. Mone to v '- Milton J. Grossman.
- 36. December 11, 1972, letter from Donald R. Allen to Steven M. Charno.
- 37. December 12, 1972, proposed letter from Bruce B.
Wilson to Donald R. Allen.
- 38. December 14, 1972, letter from.the Village of Columbiana (by Douglas Moore) to the Department.
December '4, 1972, letter from the City of Niles , 01:10, 39.
(by Charles W. Burgess) to the Department.
- 40. December 14, 1972, article from Nucleonics Week.
. 41. December 18, 1972, letter from the '. illage of I
Monroeville (by Myron J. Gerber) to the Department.
- 42. December 18, 1972, letter from Wellington, Ohio, (by John Rohr) to the Department.
- 43. December 20, 1972, letter from Hubbard, Ohio, (by T. J. Wilson) to the Department.
- 44. December 20, 1972, letter from Beach City, Ohio, (by Bonnie Feller) to the Department.
- 45. December 21, 1972, letter from C. Er.. arson Duncan i ,
to Thomas E. Kauper.
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- 46. December 23, 1972, letter from the '.~illage of Lacas, j
1 Ohio, (by Robert J. Davis) to the D: partment.
- 47. December 27,.1972, letter from Rober: P. Mone to Steven M. Charno.
P. Ardery to
- 48. January 11, 1973, letter from Phili:
Steven M. Charno.
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~'~~~~ 49. January 12, 1973, letter from H:kard A. Cummins
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-to the Department.
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- 50. January 22, 1973, letter from Philip P. Ardery to Stoven M. Charno.
-- 51. January 30, 1973, letter from Thomas E. Kauper to Albert D. Brandon.
- 52. April 2, 1973, letter from Marcus A. Rowden to Richard G. Kleindienst.
- 53. April 20, 1973, letter from Thomas C. Kauper to Bertram H. Schur.
- 54. April 24, 1973, letter from Thomas E. Kauper to .
'Dohald R. Allen. .
- 55. April 24, 1973, letter from Thomas E. Kauper to Donald H. Hauser.
- 56. April 24, 1973, letter from Thomas E. Kauper to John R. White.
- 57. April 24, 1973, letter from Thomas E. Kauper to Gerald Charnoff.
Kauper to
- 58. April 24, 1973, letter from Thomas I Leslie Henry.
April 24, 1973, letter from Thomas 2. Kauper to
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John McN. Cramer.
- 60. April 25, 1973, letter from Paul C. Zender to National Archives and Records Service.
- 61. April 25, 1973, letter from Thomas E. Kauper to Gerald Charnoff.
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- 62. April 25, 1973, letter from Thomas E. Kauper to
. . ' . -- Reuben Goldberg.
- 63. April 30, 1973, letter from Reuben Goldberg to
- Thomas E. Kauper.
- 64. May 22, 1973, letter from Thomas E. Kauper to Wallace L. Duncan.
- 65. May 24, 1973, letter from Wallace L. Duncan to Steven M. Charno.
- 66. May 30, 1973, lettet from Thomar E. Kauper to Gerald charnoff.
- 67. June 18, 1973, letter from Wallace L. Duncan to Steven M. Charno. e
- 68. June 27, 1973, letter from Howard K. Shapar to Elliot L.
Richardson. ~
- 69. July 10, 1973, letter from Maurice E. Messier to The Cleveland Electric Illuminating Company.
- 70. July 23, 1973, letter from Thomas E. Kauper to Gerald I
Charnoff.
- 71. August 2, 1973, letter from Wallace L. Duncan to Steven M. Charno.
- 72. September 4, 1973, letter from Wallace L. Duncan to Steven M. Charno.
- 73. September 7,1973, letter from Reuben Goldberg to Steven M. Charno.
- 74. September 11, 1973, letter from Joceph Rutberg to ,
- j Joseph J. Saunders.
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- 75. October 4, 1973, letter from Led l.C. Howley to -
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-Honorable Herbert R. Whiting (plus three attached
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- 76. December 25, 1973, letter from Thomas E. Kauper to
-- Donald R. Allen.
- 77. December 26, 1973, letter from' Thomas E. Kauper to Wayne R. Milburn.
- 78. December 17, 1973, letter from Thomas E. Kauper to Hownrd K. Shapar.
B. The Department asserts a claim of privilege with respect to the following documents:
- 1. ' November 30, 1972, memorandum by Steven M. Charno ,
received by Donald I. Baker (Deputy Assistant Attorney General) , Joseph J. Saunders, David Leckie (Attorney, Public Counsel and Legislative Section) , files and correspondence, containing an evaluntion of the activities of Ohio Edison Company. Privileges asserted: Attorney-client, attornej "wcrk product",
executive and informers.
. 2. December 8, 1972, memorandum by Ste'en M. Charno i x received by Donald I. Baker, Joseph J. Saunders, 6 avid Leckie, files and corresponds:.ce, relating to activities of Ohio Edison Company. Privileges asserted: Attorney-c.lient, attornc. " work product",
executive and informers. .
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- 3. March 21, 1973, memorandum by;Ft'even M. Charno P} Saunders,
'N- received by Donald I. Baker, Joseph .J.
i correspondence and files, evaluating information "m. .
gathered in the Beaver Valley inquir:y. Privileges
-- asserted: Attorney-client, attorney " work product",
executive and informers.
- 4. July 17 , 1973, memorandum by Steven M. Charno setting forth and evaluating the "information gathered in this inquiry. Privileges asserted:
Attorney " work product."
memorandum by Steven M. Charno received
- 5. July 17, 1973,
'by' Joseph J. Saunders, files and co :respondence, ,
discussing ind evaluating negotiatic ns with The Privileges Cleveland Electric Illuminating Comp any.
asserted: Attorney-client, attorney " work product" and executive.
- 6. July 23, 1973, memorandum by Steven :I. Charno received by Donald I. Baker, Joseph J. Saund. rs, files and correspondence, relating to an eval 1 tion of the activities of The Cleveland Electri. Illuminating Company. Privileges asserted: Att: :ney-client, attorney " work product", executive :c.d informers.
l 7. August 2, 1973, memorandum by Steve: M. Charno received I
' by Joseph J. Saunders, files and cc respondence, i
relating to an evaluation of the ac ivities of The .
Cleveland Electric Illuminating Cc :ny. Privileges l l asserted: Attorney-client, attornc. " work product",
e executive and informers.
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- 8. August 17, 1973, letter from Steven M. Charno to i
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. Joseph J. Saunders (attaching!a memorandum of even i
i date) received by Joseph J. Saunders, files and ,
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~' correspondence. These documents outline and evaluate the information gathered in this inquiry. Privileges asserted: Attorney-client, attorney " work product",
executive and informers.
- 9. October 26, 1973, memorandum by Steven M. Charno received by Joseph J. Saunders, fi3as and corras-pondence, relating to an evaluation of activities of The Cleveland Electric Illuminating Company. .
- ' Privileges asserted: Attorney-client, attorney .
" work product", executive and informers.
- 10. December 14, 1973, memorandum by Steven M. Charno received by- Joseph J. Saunders, files and corres-pondence, relating to an evaluation of the activities of The Cleveland Electric Illuminating Company. i Privileges asserted: Attorney-client, attorney " work produc t" , executive and informers, l 1
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- 11. January 7, 1974, memorandum by Steven M. Charno l
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received by Joseph J. Saunders, files and corres- l pondence, relating to a conversation concerning The 1 Cleveland Electric Illuminating Company and the f
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Perry license application. Privileges asserted: l Attorney-client, attorney " work product", executive -
and informers.
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1 Discovery Request Number 5
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- The requested activities of each of the Applicants are listed separately.
A. The Cleveland Electric Illuminating Company (hereinafter CEI)
The Borough of Pitcairn, Pennsylvania (hereinaf ter Pitcairn) ,
requested participation in the CAPCO Pool in a December 5, 1967, thus effec-letter to CEI. CEI never responded to this request, tively foreclosing such membership.
On December 12, 19~3, CEI explicitly refused tc allow Cleveland to participate in the CAPCO Pool.
1 Although numerous discussions have taken place from 1972
- until the present regarding Cleveland's repeated requests for access to the nuclear generating facilities owned b1 CEI, the Department is unaware of any meaningful offer by CEI relating
' to Cleveland's possible participation in such facilities.
Cleveland has, since at least January of 1970, sought a permanent interconnection with CEI to permit coordinated opera-I tion between the two entities, but no agreement has been con-t it cluded between the parties.
On August 30, 1973, after professing at some length its unconditional willingness to negotiate, CEI refused i wheel i
i This refusal was explicitly based i power for AMP-O to Cleveland.
on anticompetitive grounds. CEI has also informed Cleveland 5
that it would not wheel'any power for Cleveland, except power from one of CEI's nuclear units.
Numerous other activities have been alleged by Cleveland concerning CEI's anticompetitive activities in the retail sale
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/ of electric power but the Department does not now have available sufficient information to determine whether it may adopt such allegations as well founded.
Since at least June of 1971, the City of Painesville has sought an interconnection with CEI to allow for coordinated operation. To date, no agreement has been reached and it has .
The been questioned whether CEI is negotiating in good faith.
Department was assured by CEI in the course of the Beaver Valley inquiry in early 1973 that such an agreement would be executed within several months. The same situation appears to be true with respect to Painesville's request for access to a CEI nuclear generating facility.
B. Duquesne Light Company (hereinaf ter Duquesne)
Pitcairn requested participation in the C.I.PCO Pool in a December 5, 1967 letter to Duquesne. This request was denied by a letter from Duquesne dated January 2, 196 3.
Prior t0 1968, Duquesne refused to sell b .:lk power to Ettcairn.
Prior to September 1972, Pitcairn found i t impossible to arrange with Duquesne to engage in coordinatef operation.
Duquesne, by letter dated December 10, 1;73, explicitly.
I refused Cleveland's request to be allowed to j oin the CAPCO I --
Pool.
1 C. Ohio Edison Company (hereinafter Ohio Edi son)
Prior to September 11, 1972, Morrow Elec'..ric Cooperative in Mt. Gilead, Ohio, was unsuccessful in getting Chio Edison to ex-
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Pitcairn requested participation in the CAPCO Pool by a December 5, 1967, letter to Ohio Edison. In a reply letter dated January 2, 1968, Ohio Edison refused thf.s request.
In 1968, Ohio Edison refused to become a party to the Power Delivery Agreement which Buckeye Power, Inc. Chereinafter Buckeye) .
Ohio Power Company, has with six other electric utilities:
Columbus & Southern Ohio Electric Company, Cimcinnati Gas &
Electric Company, Dayton Power t. Light Compantr, Toledo Edison, and Monongahela Power Company. The Power Deli'.very Agreement provides for the wheeling of power from large- scale fossil generation owned by Buckeye to various distril.:ution systems, some of which are in competition with Ohio Edi son.
From June 1968 through January 1973, Ohic Power Company, on behalf of Buckeye, requested that Ohio Edison 2stablish four s.ew delivery points under terms and conditions contained in an Due to agreement between Ohio Edison and Ohio Power C ;mpany.
allegedly unreasonable demands made by Ohio E.: ison, none of these delivery points were ever established.
D. Pennsylvania Power Company Pitcairn requested parta ipation in the ~ '.PCO Pool in a _ . .
By December 5, 1967, letter to Pennsylvania Powe. Company.
i reply letter dated January 2, 1968, Pennsylvc. La Power Company i
refused this request.
.j- The Toledo Edison Company (hereinafter C ledo Edison)
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i Pitchirn requested participation in the L2CO Pool in a e
i i a reply letter i December 5, 1967, letter to Toledo Edison. I, dated December 19, 1967, Toledo Edison refuse this request.
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On at least two occasions between Sectember 1971 and I'l March 1972, Toledo Edison refused to consider joint ownership i ;
with the City of Napoleon of large-scale' generating facilities.
' On at least three occasions between September 1971 and March 1972, Toledo Edison refused to wheel power from the Ohio Power Company's transmission f acilities to the City of Napoleon.
On at least three occasions between September 1971 and March 1972, Toledo Edison refused to engage in coordinated operation witn the City of Napoleon. '
Toledo Edison and Ohio Power Company are allegedly parties 2
to a wholesale territorial allocation agreement.
- Prior to May 1971, Bryan, Ohio, indicated an interest in .
coordinated operation with Toledo Edison, but all efforts to l
reach an agreement have been fruitless.
Toledo Edison blocked Bryan, Ohio, from citaining relatively lcw cost electric pcwer from North Western Elc atric Cooperative, Inc., headquartered in Bryan, Ohio, by refusin g to allow its transmission facilities to be used for the delivery of this power.
ll l1 Discovery Recuest Number 6 i.
I The Department maintains that there is a clear, demonstre,ble I antitrust laws, 3 nexus between a situation inconsistent with t't. 2 I
i comprised,~in part, by the specific anticompetitive acts and practice set forth in response to the Discover f Request Number 5,
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The Applicants' interrogatory, as presently phrased, is based on the assumption that a party must allege the existence of nexus between each specific anticompetitive act that exists and the activities under the license. This assumption is clearly false. All that is required of a party is an allegation and proof that there is a nexus between a situation inconsistent with the antitrust laws and the activities under the license.
For an expanded exposition of the Department's position in the restricted context of a refusal to whc21 power, see pages 3 through 9 of Response by the Department of Justice to Applicants' Motion for Summary Disposition, filed October 10, 1974.
Discovery Request Number 7 There are no documents other than those already produced which are producible under this request.
Discovery Request Number 8 A. Copies of the following documents are produced herewith:
- 1. October 19, 1966, letter (with attac'hments) from Jack J.
Ratcliffe to Donald E. Bootes.
- 2. February 2, 1970, memorandum to filc ; from Charlie Jack.
- 3. July 9, 1971, le'tter (with enclosurc -) from Claude W.
Epparu to Charlie Jack.
- 4. August 4, 1971, letter from Ecward J. Cummins to Claude W. Eppard.
- 5. September 21, 1971, letter ,from Cha: .le Jack to Claude W.
Eppard.
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- 6. October 5, 1971, letter from Charlie Jack to Claude W. Eppard.
- 7. February 28, 1972, letter (with enclosures) from Charlie Jack to William Lewis.
- 8. May 2, 1973, letter from Howard A. Cummins to Marvin Keck.
- 9. May 23, 1973, letter from Marvin Keck to Howard A.
Cummins.
Documents produced under any of the above requests which would also fall within the scope of this request have not been enu-merated herein.
'B . The Department asserts a claim of privilege with respect to the following document:
September 14, 1973, letter to Thomas E. Kauper relating to activities of Ohio Edison. Privileges asserted:
attorney " work product" and informers.
Discovery Request Number 9 Copies of the following documents are produced herewith:
- 1. October 5, 1965, letter from John W. King to D. Bruce Mansfield.
- 2. October 19, 1965, letter from D. Bruce Mansfield to John W. King.
- 3. December 6, 1965, letter from Howard Cummins to Philip Sporn.
- 4. January 3, 1966, letter (plus attachments) from Howard A. Cummins to Philip Sporn.
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- 5. April 20, 1966, letter from John W. King to Richard M.
Dicke.
- 6. April 25, 1966, unsigned letter to Leslie Henry.
- 7. April 29, 1966, letter (with enclosure) from Philip Sporn to John W. King.
- 8. May 12, 1966, letter from Howard A. Cummins to Ohio Power Company.
- 9. June 14, 1966, memorandum of discussion with John K.
Davis.
- 10. June 23, 1966, letter from John W. King to Richard M.
Dicks.
- 11. February 28, 1967, le.tter (with attachments) from A. N. Prentice to John K. Davis, et al.
- 12. March 10, 1971, letter from Roger Waite to Howard A.
, Cummins.
- 13. March 15, 1971, letter from Howard A. Cummins to Roger Waite.
- 14. December 17, 1971, letter from F. Byron Wortman to David Upp.
- 15. Press release of December 13, 1971.
- 16. January 17, 1972, letter from Charlie Jack to John Hayes.
- 17. June 6, 1973, letter from M. R. Dorsey to Hohn Cloer.
- 18. June 21, 1973, letter from F. Byron Wortman to Marvin 2eck.
- 19. July 16, 1973, letter from Charlie Jack to F. Byron Wortman.
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- 20. July 23, 1973, letter from Marvin Keck to F. Byron I
Wortman. g
- 21. July 24, 1973, letter from Howard A. Cummins to f Marvin Keck. I i'
- 22. July 1973 letter from M. R. Dorsey to customers of I I
the City of Napoleon. [
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- 23. August 7, 1973, letter from Charlie Jack to Marvin !
Keck. {
Documents which have been produced under other document requests which would also fall within the scope of this request are not onumerated herein. ,
' Discovery Request Number 10 This request need not be answered at this time. See Order on Objections to Interrogatories and Document Requests, docketed October 11, 1974, Item Number 146. ,
Discovery Request Number 11 As noted in the Perry advice letter, the source of and basis for the quoted statement is an October 9, 1971, Memorandum from R. H. Bridges, CEI Public Information Department, to Lee C.
Howley, CEI Vice President and General Counsel; Exhibit 24, ,
City of Cleveland v. Cleveland Electric Illuminating Company (FPC Docket Nos. E-7631, E-7633 and E-7713) .
Discovery R,equest Number 12 On the basis of the information available to the Department at this time, the Department does adopt the stated position.
The basis for this position i- that at the prese.t time Painesville 23 I
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has a relatively small, icolated electric power system which does not have available to it the relatively inexpensive electric power available through coordinated operation or development with other utilities. Because it is a small system, it cannot afford to construct nor utilize the large generating units which, because of economies of scale, produce th'e least expensive electric power available. Painesville must use smaller generat-ing units which produce more costly electric power. Furthermore, since Painesville is an isolated system, it cannot engage in coordinated operation. As such, Painesville is at a very severe competitive disadvantage vis-a-vis CEI, which completely surrounds it and which engages in both coordinated operation and develop-ment with the other members of CAPCO and has access to large-scale, low-cost generating facilities. If Painesville is to remain a competitor of CEI, it must therefore gain access to the same benefits of coordinated operation and development now enjoyed by CEI.
Discovery Request Number 13 On the basis of the limited information available to the Department at this time, the Department does adopt the position stated. The same reasons stated in response to Discovary Request Number 12 are applicable here. The present emergency interconnection between CEI and Cleveland does not provide an adequate basis for coordinated operation between the two systems.
By virtue of CEI's stipulated dominance and the anticcm-petitive. acts and practice enumerated in response to Discovery 24
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t Request Number 5, a situation inconsistent with, indeed, viola-tive of, the antitrust laws exists. The wheeling of power to Cleveland by CEI, as well as the other aspects of coordinated operation, appears necessary to remedy this situation.
L Discovery Request Number 14 The basis of the quoted statement is the enumeration of a number of other anticompetitive acts by Applicants in the Perry advice letter prior to the mention of a refusal to wheel by CEI. Thus, within the context of the Perry advice letter, the refusal to wheel constituted further anticompetitive behavior.
Discovery Request Number 15 Refusals by CEI, a dominent utility po.sessing monopoly power, to wheel 30 mw of PASNY power to Cleveland is a highly
- anticompetitive act which is, in turn, a relevant element of a situation inconsistent with the antitrust laws. See the response to Discovery Request Number 6 for a discussion of the necessary nexus between a situation inconsistent with the anti-trust laws and activities under the license.
Discovery Request Number 16 This request need not be answered at this time. See Order on Objections to Interrogatories and Document Requests of October 11, 1974, Item Number 146.
Discovery Request Number 17 The basis for that portion of the quoted statement relat-ing to Cleveland was the allegations contained in Applicants'
" Application For Subpcenas", and the supporting materials 25 s
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, supplied therewith, filed in-the present proceeding on March 27, 1974. The failure to make reference to Painesville's request for access was due to an oversight by the author of the brief;
- 1 this omission was made without reference to or knowledge of the undersigned.
Respectfully submitted, J
'i ~ 4%
STEVEN M. CHARNO ki4 s,, }) b'%)y MELVIN G. BERGER Attorneys, Antitrust Division Department of Justice Washington, D.C. 20530 Subscribed and sworn to before me this ,'2fF' day of November, 1974.
. e l't* S-t- M <* " Ant'
/ NOTA.y PUBLIC My commission expires f M/ /
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UNITED STATES OF AMERICA .
ATOMIC ENERGY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
The Toledo Edison Company )
The Cleveland Electric Illuminating ) Docket No. 50-346A Company )
(Davis-Besse Nuclear Power Station) )
)
' The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) and 50-441A (Perry Plant, Units 1 and 2) )
CERTIFICATE OF SERVICE l
I hereby certify that copies of RESPONSE OF DEPARTMENT OF JUSTICE TO APPLICANTS' FIRST REQUEST FOR PRODUCTION OF DOCUMENTS AND ANSWERS TO INTERROGATORIES have been served upon all of the l parties listed on the attachment hereto by deposit in the United i
t States mail, first class or airmail, this 29th day of November 1974.
D Q
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- Steven M. Charno I Attorney, Department of Justice Antitrust Division
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ATTACHMENT John B. Farmakides, Esq. Roy P. Lessy, Jr., Esq.
Chairman Benjamin H. Vogler, Esq.
Atomic Safety and Licensing Lee S . Dewey, Esq.
Board Office of the General U.S. Atomic Energy Commission Counsel Washington, D.C. 20545 U.S. Atomic Energy Commission Washington, D.C. 20545 John H. Brebbia, Esq.
Atomic Safety and Licensing Gerald Charnoff, Esq.
Board William Bradford Reynolds , Esq.
. Alston, Miller & Gaines Shaw, Pittman, Potts &
1776 K Street, N.W. Trowbridge Washington, D.C. 20006 910 Seventeenth Street, N.W-.
Washington, D.C. 20006 Douglas Rigler, Esq.
Hollabaugh & Jacobs Lee C. Howley, Esq.
Suite 317 Vice President & General Counsel Barr Building The Cleveland Electric 910 Seventeenth Street, N.W. Illuminating Company Washington, D.C. 20006 Pcst Office Box 5000 Cleveland, Ohio 44101 Atomic Safety and Licensing Board Panel. Donald H. Hauser, Esq.
U.S. Atomic Energy Ccenission Corporate Solicitor Washington, D.C. 20545 The Cleveland Electric Illuminating Company Frank U. Karas Post Office Box 5000 Chief, Public Proceedings Cleveland, Ohio 44101 Staff Office of the Secretary John Lansdale, Jr., Esq.
U.S. Atomic Energy Commission Cox, Langford & Brown Washington, D.C. 20545 21 Dupont Circle, N.W.
Washington, D.C. 20036 Abraham Braitman Of fice of Antitrust and Chris Schraff, Esq.
Indemnity Office of Attorney General U.S. Atomic Energy Commission State of Ohio Washington, D.C. 20545 State House Columbus, Ohio 43215 i
Herbert R. Whitting , Esq.
Robert D. Hart,-Esq. Dwight C. Pettay, Jr., Esq.
Law Depar'. ment Assistant Attorney General City Hall _ Chief, Antitrust Section 30 East Broad Street t
Cleveland, Ohio 44114 15th Floor Reuben Goldberg, Esq. Columbus, Chio 43215 l David C. Hj elm felt , Esq.
1700 Pennsylvania Avenue, N.W.
Suite 550 -
Washington, D.C. 20006
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John R. White, Esq.
Executive Vice President Ohio Edison Cor pany 47 North Main Ltreet Akron, Ohio 44308 David M. Olds, Esq.
Reed, Smith, Shaw & McClay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukis Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esq.
Jon T. Browr., Esq.
Duncan, Brown, Weinberg
& Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D.C. 20006 Leslie Henry, Esq.
Fuller, Henry, Hodge &
Snyder 300 Madison Avenue Toledo, )hio 43604 Deborah Powell Highsmith, Esq.
Assistant Attorney General Antitrust Section 30 East Broad Street 15th Floor Columbus, Ohio 43215 i
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