ML19326B142

Amends Response to Applicants' Interrogatories.Certificate of Svc Encl

ML19326B142
Person / Time
Site:	Davis Besse, Perry
Issue date:	06/23/1976
From:	Berger M, Charno S, Urban J JUSTICE, DEPT. OF
To:
References
NUDOCS 8003060941
Download: ML19326B142 (9)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION g G4 BEFORE THE ATOMIC SAFETY AND-LICENSING BOARD In the Matter of )

)

The Toledo, Edison Company and )

The Cleveland Electric Illuminating. ) DocketNos._S&d34k)

Company ) 50-500A (Davis-Besse Nuclear Power Station, ) 50-501A 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) )

AMENDMENT 'IO THE RESPONSE OF THE DEPARTMENT OF JUSTICE TO APPLICANTS' INT EF.ROGAT ORI ES Pursuant to the June 16, 1976 order of this Atomic Safety and Licensin.g Board (Tr. 11,750-757) and to Section 2.740(e) f of the Commission's Rules of Practice (10 C.F.R. S2.740(e)),

the Department of Justice hereby' amends its response of s September 5, 1975, to the' Applicants' interrogatories, in order .

to conform that pleading to the evidence now of record.

The Department's answer to Interrogatory Number 2 should be amended by adding at the end of part C the following statements:

Beginning in at least 1965, Ohio Edison refused to wheel power from Buckeye Vower, Inc. to Buckeye's member 8003 060 fy/ q

electric distribution cooperatives. This refusal, together with Ohio Edison's f ailure until June 1968 to enter a contract with Ohio Power Company which would allow the distributi.on cooperatives to secure

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power from Buckeye, resulted in the elimination of Buckeye as a source of bulk power supply for its member distribution cooperatives for a period of at least six months.

Beginning in at least September, 1965, Ohio Edison

,and Toledo Edison engaged in a territorial allocation

, agreement, thereby foreclosing competition .in supplying electric power.

In 1966, Ohio Edison attempted to negotiate a territorial allocation agreement with Columbus and Southern Ohio Electric Company.

Beg inning in at least 1966, Ohio Edison and Dayton Power and Light Company engaged in a terri-torial allocation agreement, thereby foreclosing competition in supplying electric power. s From 1961 until at least 1967, Ohio Edison and Holmes-Wayne Rural Electric Cooperative engaged in a .

territorial allocation agreement, thereby foreclosing competition in supplying electric power.

In 1973, Ohio Edison refused to consider enter-ing into an arrangement with Orrville for the

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transmission of power by Ohio Edison either to or from Orrville. .

9 The Department's answer to Interrogatory Number 2 should be fur-ther amended by adding at the end of part E the following statements:

Since at least the early 1960 's, Toledo Edison and Ohio Power Company have engaged in a territorial allocation agreement, thereby foreclosing comp'etition in supplying electric power.

In at least 1973, Toledo Edison and Ohio Power Company had an agreement that the two companies would not serve in the same franchise town. .

The Department makes the foregoing amendments pursuant to its obligations under the Rules, in th a t , at the time of its initial answer, it was unaware of the facts underlying the amended answers.

The Department further asserts good cause for the amendments in that information relating to all but one of the above-stated allegations is contained, in substantial part, in documents which were part of a class sought from the Applicants during discovery but not. produced until. February 24, 1976'. The Depart- i ment of Justice wa.s not aware of the information underlying the remaining allegation, concerning Orrville, until the appearance of William Lewis to give testimony on February 26, 1976.

The Department further amends its answer to Interrogatory ,

Number 2 as permitted by the Board's June 16, 1976 order. The first sentence of the second paragraph on page 8 (in part C)

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which reads " Prior to 1972, Ohio Edison . . . than ten yea rs" should be deleted and the following language substituted:

Prior to 1972, Ohio Edison entered into t5n-year con-tracts with its municipal wholesale customers, some of which allowed early cancellation if the municipal system generated its entire power c'equirements.

Because a term of that length was not necessary to protect Ohio Edison's investment (and because con-version by a municipal system from the purchase of its power requirements to isolated self generation is not generally feasible), the contracts. unreasonably limited the municipal systems ' ability to obtain alternate sources of bulk power.

In addition, the first paragraph on page 12 (in part E) which reads " Toledo Edison blocked Bryan . . . on anticompetitive terms" should be deleted; at the end of the first full paragraph on page 11 (in part E) which reads " Toledo Edison . . . Buckeye Power", the following language should be substituted:

At least two municipal whole~ sale customers of Toledo '

Edison { Bryan and Napoleon) were interested in obtaining bulk power from Buckeye Power, Inc. The

-anticompetitive contract provisions eliminated Buckeye as a practical alternative source of bulk 4

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power supply for Toledo Edison's municipal wholesale Customers.

Respectfully su .nitted, 1 N .(__ u STEVEli M. CHARNO

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_ ._ uz e u- /e-w MELVIN G. EERGEE '

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,lM phET h. U hba Attorneys, Antitrust Division Department of Justice Washincton, D.C. 20330 June 23, 1976 e

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

The Toledo Edison Company and )

. The Cleveland Electric Illuminating ) Docket Nos. 50-346A Company ) 50-500A (Davis-Besse Nuclear Power Station, ) 50-501A 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) )

CERTIFICATE OF SERVICE I hereby certify that copies of AMENDMENT TO THE RESPONSE OF THE DEPARTMENT OF JUSTICE'TO APPLICANTS' INTERROGATCRIES have been served upon all of the parties listed on the attachment hereto by deposit in .the United States mail, .first class, airmail or by hand this 23rd day of June 1976. -

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//!wn STEV EN M. CHAhKO Attorney, Antitrust Division Department of Justice l

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. ATTACHMENT Douglas V. Rigler, Esq. Gerald Charnoff, Esq.

Chairman, Atomic Safety and Wm. Bradford Reynolds, Esq.

Licensing Board Robert E. Zahler, Esq.

F.oley, Lardner, Hollabaugh Jay H. Bernstein, Esq.

and Jacobs Shaw, Pittman, Potts &

815 Connecticut Avenue, N.W. Trowbridge Washington, D.C. 20006_ 1800 M Street, N.W. '

Washington, D.C. 20036 Ivan W. Smith, Esq.

Atomic Safety and Licensing . Frank R. Clokey, Esq.

Board Special Assistant, Attorney Nuclear _Ragulatory Commission General Washington, D.C. 20555 Room 219 -

Towne House Apartments John M. Frysiak, Esquire Harrisburg, Pennsylvania 17105 Atomic Safety and Licensing Board Donald H. Hauser, Esq.

Nuclear Regulatory Commission Victor A. Greenslade, Jr., Esq.

Washington, D.C. 20555 The Cleveland Electric Illuminating Company Atomic Safety and Licensing 55 Public Square Board Panel Cleveland, Ohio 44101 Nuclear Regv' ..cy Commission Washington, D.C. 20555 Leslie Henry, Esq.

Michael M. Briley, Esq.

Docketing and Service Section Roger P. Klee, Esq.

Office of the Secretary Paul M. Smart, Esq.

~ Nuclear Regulatory Commission Fuller, Henry, Hodce & Snyder

. Washington, D.C. 20555 Post office Box 2088 Toledo, Ohio 43604 Reuben Goldberg, Esq.

David C. Hjelmfelt, Esq. Russell J. Spetrino, Esq.

Goldberg,-Fieldman & Thomas A. Kayuha, Esq.

Hjelmfelt Ohio Edison Company

• 1700 Pennsylvania Avenue,.N.W. 47 North Main Street Suite 550 Akron, Ohio 44308 Washington, D.C. 20006 Steven B. Peri, Esc..

Terence H. Benbow, Esq. '

James B. Davis, Director of

. A. Edward Grashof, Esq.

Law Steven A. Berger, Esq.

Robert D.. Hart, 1st Assistant Winthrop, Stimson, Putnam

. Director of Law & Roberts City of Cleveland 40 Wall Street

.213 City Hall New York,-New York 10005 Cleveland, Ohio 44114 Thomas J. Munsch, Esq.

General Attorney Duquesne Light Company 435 Sixth Avenue Pittsburf:, ?eansy2 vania 15219

David Olds, Esq. Joseph Rutberg, Esquire William S. Lernch. Esq, Office of the Executive

. Recd, Smith, Shm. & X Clay Legal Direcror Union Trust Building Nuclear Regulatory Commission Box 2009 Washington, D.C. 20555 Pittsburgh, Pennsylvania 15230 William J. Kerner, Esquire Lee A. Rau, Esq. Office of the General Attorney Joseph A. Rieser, Jr., Esq. The Cleveland Electric Reed, Smith, Shaw & McClay Illuminating Company Madison Building - Room 404 Post Office Box 5000 1155 15th Street, N.W. Cleveland, Ohio '44101 Washington, D.C. 20005 Edward A. Matto, Esq.

Richard M. Firestone, Esq.

Karen H. Adkins, Esq.

Antitrust Sectica 30 E. Broad Street 15th Floor Columbus, Ohio 43215 Christopher R. Schraff, E'sq.

Assistant Attorney General Environmental Law Section 361 E. Broad Street 8th Floor Columbus, Ohio 43215 James R. Edgerly, Esq.

Secretary and General Counsel Pennsylvania Power Company One East Washington Street New Castle, Pennsylvania 16103 John Lansdale, Esq.

Cox, Langford & Brown

• 21 Dupont Circle, N.W.

Washington, D.C. 20036 Michael R. Gallagher, Esq.

Gallagher, Sharp, Fulton, Norman & Mollison

, 630 Sulkley Building Cleveland, Ohio 44115 i Jack-R. Goldberg, Esq.

t Benjamin H. Vogler, Esq.

Roy P. Lessy, Jr., Esq.

Office of the General Counsel Nuclear Regulatory Commission

~.'ashin g ton , D.C. 20555 e

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