ML19329C397

Answer of City of Cleveland in Opposition to Applicants' Proposal for Expediting Antitrust Hearing Process. Certificate of Svc Encl

ML19329C397
Person / Time
Site:	Davis Besse, Perry
Issue date:	03/21/1975
From:	Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002130764
Download: ML19329C397 (7)

Text

, .U

, . +- ,,

h[w[7i

-UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter . )

)

The Toledo Edison Company and )

The Cleveland Electric Illuminating )

Company ) Docket Nos. 50-346A (Davis-Besse Nuclear Power Station, ) 50-440 A Unit 1) ) 50-441A

)

The Cleveland Electric Illuminating )

Company, et al. )

(Perry Nuclear Power Plant, )

Units 1 and 2) )

ANSWER OF THE CITY OF CLEVELAND IN OPPOSITION TO APPLICANTS' PROPOSAL FOR EXPEDITING THE ANTITRUST HEARING PROCESS On March 14, 1975, Applicants filed a Proposal for Expediting the Antitrust Hearing Process. In essence Applicant offers to concede, arguendo, the existence of a situation inconsistent with the antitrust laws and to submit the issue of nexus to the Board. Under Applicants' proposal, if the Board finds in favor of the Applicants, Applicants' proposed license conditions would be imposed and the proceedings would terminate. If the Board finds that nexus does exist, it would not then proceed to a determination of appropriate license conditions, but instead, Applicants would withdraw their admissions, arguendo, and we would proceed to a full hearing. The City of Cleveland (Cleveland) opposes the procedure proposed by the Applicants.

i l

l 8 0 0213 0 76Y

./ 't

Nexus is an ultimate fact to be determined by the Board on the basis of the evidence submitted at hearing. Whether or not nexus exists can be determined only after presentation of the facts establishing the existence of a situation inconsistent with the antitrust laws. No valid determination of nexus can be made until the Board has been apprised of the structure of the markets and the parties in or excluded from the markets. It would be gross-ly unfair to require the parties to prove nexus solely on the basis of the bare bones assumptions, arguendo, offered by Applicants.

This Board has itself recognized that evidence of nexus might be obtained during the discovery process and that the parties might utilize such evidence to support their allegations of nexus. (Order on Applicants' Motion for Summary Disposition, mimeo. p. 3) The parties are now in the midst of the discovery process. Depositions will soon begin. The evidence obtained during discovery should be available to the parties to prove their allegations of nexus.

The Board should not be misled by Applicants' siren song of a quick and painless putting to rest of these complicated cases. The procedure suggested by Applicants would necessitate a lengthy hearing at which the parties would adduce a great body of evidence necessary to flesh out Appli-cants' assumptions, arguendo. Then if the Board found that there was nexus the whole exercise would go for naught because at that point Applicants would withdraw their arguendo assumptions.

In any event, the arguendo assumptions offered by Applicants are t insufficient to satisfy even an admission to the bare bones statement of

issues. For example, in their assumption under Matter in Controversy (6),

Applicants refuse to assume, arguendo, that since February 1974, they have exercised their ability to prevent other electric entities in the CCCT from achieving access to the benefits of economies of size from large nuclear generating units. Cleveland does not agree that Applicants' conduct is any less anticompetitive in this regard today than it was prior to February 1974.

The statement of issues formulated by the Board contains no cut-off date.

Similarly, Applic. ants' assumption under Matter in Controversy (10) is defective in that the assumption is less broad than the Matter in Contro-versy. Cleveland does not agree that there was any change in policy by Applicants in February 1974.

Moreover, the license conditions proffered by the Applicants are inadequate to remedy the situation inconsistent with the antitrust laws.

Without engaging here in a lengthy analysis of the Applicants' proposed con-ditions, Cleveland would point out that those conditions do not provide for wheeling power.

In formulating their heads-I-win-tails-you-lose proposal for pro-ceeding in this case, Applicants have confused two quite separate and dis-tinct methods of proceeding. One method approved by the Commission in Waterford (Louisiana Power and Light Company, CLI-73-25, RAI-73-9, September 28, 1973) permits an Applicant to assume, arguendo, that a situation inconsistent with the antitrust laws exists and permits the case to !

proceed directly to the remedy stage. The Waterford procedure does not permit an Applicant to assume such facts as it likes and to force the other

parties to prove the unassumed facts based upon the assumed facts. Nor does the Waterford procedure permit an Applicant to withdraw its assump-tions, arguendo, if the outcome is not to its liking.

The other procedure is provided for by the Commission's Rules Sec-tion 2. 749, Summary Disposition. Summary disposition requires a motion accompanied by a statement of facts which it is alleged are not in dispute.

The motion can not be granted if there is a dispute as to material facts.

Applicants' motion is not sufficient for either a motion for summary disposition or for the assumption, arguendo, procedure. Indeed, Applicants have previously attempted the summary disposition process in an effort to eliminate AMPO from the proceedings. This Board recognized that attempt by Applicants as nc'ching more than an effort to reargue AMPO's petition to inte rvene. This effort of Applicants to reargue nexus should be denied.

Rather than proceed in accordance with Commission approved proce-dures, Applicants have constructed a hybrid method of procedure whereby the parties and the Board will expend great time and energy, and, unless the outcome is favorable to Applicants, that time and energy will be wasted.

Like the mule, Applicants' hybrid is sterile.

WHEREFORE, for the foregoing reasons, Applicants' motion should be denied.

Re pectfully submitted, gsL 0<db#

Q&lAnC Reuben Goldbe g slf David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt 1700 Pennsylvania Avenue, N. W.

Washington, D. C. 20006 Telephone (202) 639-2333 March 21,1975 Attorneys for City of Cleveland, Ohio

~ .

Certificate of Service I hereby certify that service of the foregoing " Answer of the City of Cleveland in Opposition to Applicants' Proposal for Expediting the Antitrust Hearing Process" has been made on the following parties listed on the attachment hereto this 21st day of March,1975, by depositing copies hereof in the United States mail, first class or air mail, postage prepaid.

>3David a lc. s:/J A C. Iij61mfek Attachment I

I

ATTACHMENT Atomic Safety and Licensing Board Jon T. Brown, Esq.

U. S. Nuclear Regulatory Commission Duncan, B rown, Weinberg & Palmer Washington, D. C. 20555 Suite 777 1700 Pennsylvania Avenue, N. W.

Mr. Frank W. Karas, Chief Washington, D. C. 20006 Public Proceedings Branch Office of the Secretary John C. Engle, President U.S. Nuclear Regulatory Commission AMP-O, Inc.

Washington, D. C. 20555 Municipal Building 20 High Street John B. Farmakides, Esq. Hamilton, Ohio 45012 Chairman i Atomic Safety and Licensing Board Melvin C. Berger, Esq.

U.S. Nuclear Regulatory Commission Joseph J. Saunders, Esq.

Washington, D. C. 20555 Steven Charno, Esq.

Antitrust Division John H. Brebbia, Esq. Department of Justice Atomic Safety and Licensing Board Post Office Box 7513 Alston, Miller & Gaines Was hington, D. C. 20044 1776 K Street, N. W.

Washington, D. C. 20006 William T. Clabault, Esq.

David A. Leckie, Esq.

Douglas Rigler, Esq. Department of Justice Atomic Safety and Licensing Board Post Office Fox 7513 Hollabaugh & Jacobs Washington, D. C. 20044 Suite 817, Barr Building 910 17th Street, N. W. Gerald Charnoff, Esq.

Washington, D. C. 20006 Shaw, Pittman, Potts & Trowbridge 910 17th Street, N. W.

Benjamin H. Vogler, Esq. Washington, D. C. 20006 Joseph Rutberg, Esq.

Office of the General Counsel Frank R. Clokey, Esq.

Regulation Special Assistant Attorney General U. S. Nuclear Regulatory Commission Room 219 - Tcwne House Apartments Washington, D. C. 20555 Harrisburg, . ennsylvania 17105 Robert J. Verdisco. Esq. Thomas J. Munsch, Jr. , Esq.

Roy P. Lessy, Jr., Esq. General Attorney Office of the General Counsel Duquesne Light Company Regulation 435 Sixth Avenue U. S. Nuclear Regulatory Commission Pittsburgh, Pennsylvania 15219 Washington, D. C. 20555 David McNeil Olds, Esq.

Abraham Braitman, Esq. John McN. Cramer, Esq.

Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay U.S. Nuclear Regulatory Commission 747 Union Trust Building Washington, D. C. 20555 Pittsburgh, Pennsylvania 15219 m

^

Page 2 ATTACHMENT (Continued)

John R. White, Esq. Leslie Henry, Esq.

Vice President and General Counsel Fuller, Henry, Hodge & Snyder Ohio Edison Company 300 Madison Avenue Toledo, Ohio 43604 47 North Main Street Akron, Ohio 44308 John Lansdale, Jr. , Esq.

Pennsylvania Power Company Cox, Langfo rd & B rown 1 East Washington Street 21 Dupont Circle, N. W.

New Castle, Pennsylvania 16103 Washington, D. C. 20036 Lee C. Howley, Esq. Donald H. Hauser, Esq.

Vice President and General Counsel Corporate Solicitor The Cleveland Electric Illuminating Co. The Cleveland Electric Illuminating Co.

Post Office Box 5000 Post Office Box 5000 Cleveland, Ohio 44101 Cleveland, Ohio 44101 Alan S. Rosenthal, Chairman Richard S. Salzman, Chairrnan Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Nuclear Regulatory Commission U. S. ' Nuclear Regulatory Commission Washington, D. C. 20555 Was hington, D. C. 20555 Dr. John H. Buck William C. Parler Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dr. Lawrence K. Quarles Dr. W. Reed Johnson Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.

U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Dwight C. Pettay, Jr. , Esq. Deborah Power Highsmith Assistant Attorney General Assistant Attorney General Chief, Antitrust Section Antitrust Section 30 East Broad Street, 15th Goor 30 East Broad Street, 15th Goor Columbus, Ohio 43215 Columbus, Ohio 43215

-. _