ML19326A634

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Forwards Corrected Copy of Page 7 of DOJ Response to Applicants' Motion for Order Staying Pendente Lite, Attachment of Antitrust Conditions to All Parties
ML19326A634
Person / Time
Site: Davis Besse, Perry  Cleveland Electric icon.png
Issue date: 01/28/1977
From: Berger M
JUSTICE, DEPT. OF
To:
NRC COMMISSION (OCM)
References
NUDOCS 8002250939
Download: ML19326A634 (2)


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3 Re: The Toledo Edison Company The Cleveland Electric Illuminating Company Davis-Besse Nu h Power Station, Unit 1 NRC Docket No. -34 M The Cleveland Elect _me Illuminating Company, et'al.

Perry Nuclear Pouer Plant, Units 1 and 2 NRC Docket Nos. 50-440A and 50-441A; The Toledo Edison Company, et al.

Davis-Desse Power Station, Units 2 and 3 MRC Docket Nos. 50-500A and 50-501A Gentlemen:

The Department has become aware that part of the sentenca beginning en the bottom of page 6 and continuing cn page 7 cf the " Response of the Department of Justice to Applicants' Mction for an Order Staying, Pendente Lite, the Attachment of Antitrust Conditions" was inadvertently cmitted.

We have, therefore, prepared a corrected copy of page 7 and request that this page be substituted for the incorrect page 7 contained in the Response.

. Sincerely yours, h4mM103yW MELVIN G. BERGER Attorney

. Antitrust Division Enclosure R1 l 4 \

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eventually overturned, in all probability, sufficient findings .

would remain to establish a situation inconsistent with the antitrust laws, 2/ and to justify the relief granted.

Contrary to Applicants'_ assertion, there is little, if any ,

" ground breaking" law involved in this case. Most, if not all, of the law relating to Section 1 and 2 a'ctivities, and Unfair Trade Practices, comes from Supreme Court decisions (Slip Opinion, pages 19-28) while the findings with regard to nexus were based upon Com-mission decisions which were analyzed and treated in detail by the Licensing Board (Slip Opinion, pages 3, 12-13, 15-18, 31-43, 51-53, 59, 103-05, 130, 133, 173-74, 185-86, 200-02, 204-11, and 216-23).

Similarly, the Licensing Board made a very lengthy analysis

- of. the relevant markets and Applicants' dominance therein (Slip Opinion, pages 32-34, 44-56 and 107-8), the competitive situation a's it exists in Ohio and Pennsylvania (Slip Opinion, pages 58-59, 76-77, 91-93, 136-146, 161-66 and 171-72) , and the legal standards and policies of the antitrust laws applicable to Applicants' con-p duct (Slip Opinion, pages 19-28, 61, 83, 105-08, 119-20, 124, 129, 135-36, 154-58, 166, 171 and 194).

t- 2/ The Department of Justice's proof at the hearing need not have demonstrated viol'ations of the antitrust laws; mere inconsistency with ' the pol-icies uncerlying the antitrust laws would have suffic,ed.

S. Rep. No. 91-1247, 91st Cong., 2d~Sess. 14 (1970); H.R. Rep. No.

91-1470, 91st Cong., 2d Sess., 14 (1970). Nevertheless, the De-partment undertook to prove and the Licensing Board held that out-right violations ~ of the antitrust laws had occurred to create the

" situation inconsistent" which would be maintained by grant of uncon-ditioned licenses. Clearly, many of the acts engaged in by Appli-cants would in any event be deemed anticompetitive and unf air and thus inconsistent with the policies underlying the antitrust laws, l

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