ML19329C651
| ML19329C651 | |
| Person / Time | |
|---|---|
| Site: | Beaver Valley, Davis Besse, Perry  |
| Issue date: | 03/15/1974 |
| From: | Brebbia J, Earmakides J, Hall G Atomic Safety and Licensing Board Panel |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002180162 | |
| Download: ML19329C651 (14) | |
Text
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BOCIETEt
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OBEC 0,'
UNITED STATES OF AMERICA MAR 151974*
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ATOMIC ENERGY COFMISSION we. w = s.v,,
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'ma*y S
In the Matter of
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THE TOLEDO EDISON COMPANY and
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Docket No. 50-346A THE CLEVELAND ELECTRIC ILLUMINATIN<,)
COMPANY
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(Davis-Besse Nuclear Pcwer Station'))
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CLEVELAND ELECTRIC ILLLMINATING
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Docket Nos. 50-440A COM?ANY, et al.
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50-441A
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(Perr i Pla it, Uni: s 1 aid 2)
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DUQUE INE LIGHT COP?ANY, et al.
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Docket No. 50-412A
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(Beas :r Val zy, U 1.r 2)
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MEP)RANDU4 AND ORDER
- etitie as f >
len" 3 to intervene and requests for heariig hav-been submi:ted by vari ous parties in the above ce > ti oned a:.titri..t pr:;eedings.
Cn January 21, 1974, the Oc nm! ssion 3 sued a Mexarandum and Order with respect to the Davir-Besse 11ccle r Po er Stat ion (Davis-Besse) in which it also noted and dir cusst d the above captioned proceedings for the Icrry and Ben er Yr lley facilities.
Two petitions to.itervene were submitted in the Davis-Besst procceding; one ; etition by th2 City of Cleveland 80J02180 / M
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(Cleveland), and another file d by the American Municipal Power-Ohio, Inc. (AKP-0).
The Commission, inter alia, denied the petition to intervene filed by AMP-0.
It ruled that AMP-0 had f ailed to comply with the requirements of 10 CFR 2.714, and had
.._ led to file its petition timely.
In so ruling, the Commission noted that the said petition of AMP-O had been filed af ter guide-lines in the antitrust area had been issued by the Commission; and that the petitioners were not otherwise inexperienced.
In view of several developments that had occurred af ter the petition was originally filed, the Commission declined to rule on Cleveland's petition pending additional clarifi-cation.
The Commission designated :his Board to assume jurisdiction c ver this proceeding, 7:o take whatever action i
it deemed app 2 opriate in order to rule on Cleveland's petition to intervena, and to cenduct any hearings thct may result.
The Commissior also directed this Board to rule on all petitions to intervene filed in the Perry and Beaver Valley prcccedings, a nd to decide whether consolidation under the provisions of 10 CFR 2.715 is in order for all these proceedings.
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-3 The Board held conferences with all the parties expressing an interest in the proceedings, on February 19, and March 1, 1974.
In accordance with the Connission's Memorandum and Order, the Board, after careful consideration of all the pleadings, comments and arguments of the parties, rules as follows:
A.
Davis-Besse Nuclear Power Station The City of Cleveland filed a petition for interventica 1/
on July 6, 1971.
The interest and s tanding of Cleveland are established.
The nub of Cleveland's centencios is that an unconditioned Davis-Besse license would allegedly in-crease Cleveland Electric Illuminating Ccepany's (CEI) as-serted domination of sources of low cost, bulk electricity and thereby make it more difficult for Cleveland's Municipal Electric Light Plant (MEL?) te obtain low cost power and compete with CEI.
Therefore, a primary issue before this 1/
This petitica uns supplemented several ti=es and also clarified in a letter from Intervenor's Counsel to the AEC Regulatory Staff on April 19, 1973.
These supplements and clarifications were included along iich. the original petition of Cleveland in the Board's determination.
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Board concerns whether this relationship that Cleveland asserts exists between the Davis-Besse facility and the situation alleged to be incon:;istent with the antitrust laws meets the re-2/
quirement for nexus established by Waterford sufficient to 3/
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permit commencement of further proceedings.
The Board finds that the petition of the City of Clevelr.nd sets the r2quirements of Section 2. 714 and is marginally ad-quate to comply with the ne::us requirements specified by the
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( cmicsion in the Unterford proceedings.
The Board hereby re-r r
hov i.sr, that Cl ' vel.md within 20 days of this order
. Ifj i s positicr. on.:cxun so that the asserted causal r;-
vM can be mere prec:.cely stated for purposes of 1
.. cirifyin;
.3 sues and dete m.ning scope of discovery, i
n.
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The Corniss t m d ' reemi : hat i f i t.
becomes ap,.,ront iw coint chat no mea iing 2ul ne: : s can ; c s ho::n, all or, art n* t bo procr edin ; chould ba s um:.a ri y d is p c.c e-d o f. "
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5-B.
Beaver Vallev Pouer Station On Jul y 24. 1973. the City of Cleveland petitioned to Thcs this petition intervene in the Beaver Valley proce 3 dings.
was app oximately 30 days late.
Cleveland states that it had expectec AMP-0 to intervene and repr esent Cle /e cad's interes ts
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AMP-0 apparently fr.iled to communicate,:ith Cleve?and and that what its plans changed.
Thf.s appeals to be, at best, a casual att Ltudc towards pursuing its in er(s t with respeer to a mosr
.m octter, and Clevela:id shoulc not new be heard to say egent's failure scuchow pr(vides good cause and u...
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..its Cleveland a scc.:nd opportun: ty to intervene.
The Dosr' r
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% "' nt Cleveland hs : failed to : how good caus e for the 1. c.
2 i: 'ng :s required by S ection 2. 714-nest tbc 5a,scantively, C:.. eland's pet..rica d:c not U:o erfo :d nexus teit.
Cho occition assercs that CTI sec's i
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"~ nerol" of all n clear geacrotion in the North Chio arc a exc Lucion of P':LP from access to nuclear po. er.
It is also
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as erted that bulk power fro:a 3eavec Valle-illi n:'.:e
's system more relia >ie and contriLute to CCI's econo-CF mies-of-scale advc ntages.
Fin.211y ' it is alleged that l
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CEI will use its asserted monopoly of high voltage transmission lines to keep MELP from participatit.g in other nuclear plants.
These petitioner assertions dcseribe a situation that 4/
may be inconsistent in the antitrus t laws rather than alleging a nexus, in the sense of z set of causal relationships l
that, if proved, would show how the addition of the Beaver Valley facility to the relevar.t ma:het might lead to creating or maintaining a situation in onsis tent with the antitrust laws.
The Concission in its paterf ord order of September '28,
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1973 stated:
A description of a situa ion inconsictent uith the antitrus t laws-however well pleaded-accenpanied by i
a mere paraphrase of the statutory language, alleging that the situation would be created or maintained by the activities under the license, would be deficient.
The petitioner mus t describe with particularity and specificity the relationship betueen the activities under the nuclear license and the alleged anti-cca-petitive practices uhich he alleges.
(See 10 CFR
?.714).
Accordingly, the Board rules that Cleveland's petition is denied.
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H vever, the Board notes that the Dcoart=cnt of Justice did not c ons ide.: the construction or operation of the Beaver j
Valley facility would create or maintain a situation inconsistent with the antitrus t laws.
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See footnote 2, Supra.
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Perry Nr : lear Generatine Station
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Ai noted by the Commission, the Attorney General 1/
has submitt ad a letter of advice to the Atomic Energy Commission recocunending c 1 antitrust hearing on the Perry facility.
Petitions to intervene in such a hearing were re-ceived from the State of ( hio; from the City of Cleveland; and from the American Mun.cipal Power-Chio.
The State of Chio, hrough its Attorney General. peti-
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%: conmissica for leave to intervene as a matter of 71 -
..a d n g f rcm t ue S t. - ! uto r-langu tge of Sections 139(a)
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..;1'. of the Accmic Energy Act of 1954, as unended, _
fr. 5to te mcint.iined furt..:r t.h..: its interest could be grotecm:.
.-i. if it 1 ecame a party under Sectf.cn 2. 714. of the Commissi.cn ':
ted out by the Staff in its response h..'.es of P actice.
As pc:5 the S ta :e 's r.ct i-ton,
'.e S t., t e o f Chic.
c-the site of t n
- s I.'" Y eral Rec.ist-T., n -
v 16 197i (3C Fcd. Reg. 2029)
E. J.S.C. 22"(a, a: u.'
J.S.C. 2 L1(1), t.4pectively.
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.8-i has a statutory right to intervention under the Perry P lant, Atomic Ener;i Cocmtssion's Act.
However, this right is pro-o vided f 2r an 3 imp 12mented by the Commission in Section 2.715(c) of its tules of Practice, not Section 2.714.
Ap tre ficm the State's position that intervention is 1 o atter af rig at, evalusting the State's petition to intervene the recuirements of Section 2.714, especially in view of inder j ts e:<.ressed intcat to merely " monitor" the proceeding, the
! card :encli, des tiat the petition fails to mee: the z2 quire-
>c-f S u tion 2. 7t4 as furt!.er clarified with respect t-il 1 '. ' pt Sceedings b ? Une C.caission in Unterford.
T.e n it agl ee with the.irr.ument that pa ragraph 4 of M :.7
. ton ey General': aflide..c meets cid requirerent.
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tre l angua ;e relted on by the State read, as failue:.
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tr.c ?erry ::ue Lrar cc.zer 1 I c. n c... ' '
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footncte Supen.
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The bar is for this s tat; ment is the "... facts set forth in the let ter of advice" from the Department of Justice to the Atomic ;nergy Co:amission.
This clearly fall; sho c of meeting i
the requirements of Section 2.714 and the Waterford holdings.
3 The petitioner fails to state with particulcrity at least one meaningful contention and the basis therefore, nor is the nexus requirement met.
Accordingly, the Board has no alternative I
but to deny the petition.
l The Board, however, recognizes the State's interest and responsibility as a sovereign end would allow the State of Ohio further opportunity to intervene as a party under 2.714, provided the State amends its petition and submits uithin 20 l
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days of this order contentions meeting the requirements of 2.714 and a statement of the alledged ne::us.
If the State, i
l however, should decide to participate pursuant to Section 2.715(c), the Board expects the commitments on rights of dis-9/
covery and appeal made by the Applicant and Staff to be ob-
. served, and vill so rule.
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Tr. pp. 27 3, 269-296~
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1 1f 2.
The petition of the City of Cleveland as to the i
i pr iposed Perry facility meets the requirements of Section 2.714, alaeit, marginally.
The Board hereby grants said petition,
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b u t. will require that Cleveland, within 20 days of this order, i
clarify its posi:Lon on nexus so that the asserted causal re-in.ionships can be more precisely stated for purpose of clari-fy ng issue and determining the scope of dis <:overy.
3.
The Board is dirrosed to rule that ti.e petition to in ervene of the American Municipal Power-Ohio, Inc. as to t" -
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- "erry facility fcils to meet the requirements of c-
'?.714. as further clarified by Unterford.
The petiefe---
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- be saying that the sole n xus involved here is that ic ry p ant woeld merrLj affect the " wheeling" cap,ic'.ty
>r F. I ' c tv :nsmiss ion sys r ~n.
If so, such a position wou d sp-n-
o b,'
insuffi<
.nr in a texur under t %-
russion's he d :1 i:ios in "a t _ ; M:,.
Because the ot'.:cr r;q ti: ements of 2.710 have been satis-t od, the Board will nff:rd the petitioners A::P-0 an ad-d.cional period not to exceed 20 days from the date of this i
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order to provide the Board with a clarification of Ale-O's position vis-a-vis a showing of the nexus of its contentions to the Perry facility.
The Board will issue its final ruling i
as to AXP-O's petition as soon as possible thereafter.
D.
Consolidatien The parties supported consolidation of all three pro-ceedings.
Sinec the petition to intervene in the Beaver Valley stands denied, only the two remaining will be con-sidered for consolidation.
To eliminate waste of time, and in order to reduce cost and duplication of effort, the Board agrecs that consolidation should be effected, and hereby de-clares that the proceeding identified cs "In the Matter of Toledo Edison Co. and the Cleveland Electric Illuninating Co. (Davis-Besse Nuclear Power Station) Docket No. 50-346A" will be consolidated uith the proceeding identified as "In the Matter of Cleveland Electric Illuminating Cc=pany, et al.,
Perry Nuclear Pcuer Plant, Units 1 and 2, Docket Nos. 50-440A, 50-4cla."
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Accordingly, th2se parties common to both the Davis-Besse and ?erry proceedings are firected to confer et soon as p(ssible b.2 fore Earch 29, 1974, and to report to the Board ot. a joint s taten ent for effecting such consolidation, including the procedure to be followed, commencing with pretrial through trial and to decision.
If the parties are unable to agree on a joint settement, then each par ty will submit, within thc time it.iicated,
~.ts individual s t aten ent of the procedure to be 1
f 1.o eed in effec :ing auc i consc lidation.
E.
Procedure i.i w ep.: ration T: a pr hearing conference in the c.
.*.ne prc eedi 2 n" ' ivi: -Bess: and Parry to be callec
.h 2sau at an early der 2, addition :: the requir cn t:.
..; rap D -1:n ve. ca.h tl e pa r:ies are her. by i.ri.c te:i
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L' 1 i a: the i. i. ::.. g ec.ife renc e
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s t..- l e.. u... is... acnieved, r: q -
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-ic ; s a o s a recit.21 if the cenr et te:* i:d:,ri.: s o f Nec ui
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prepare a joint written stipulation or statement of (b) the uncontes ted fact s; regarding the (c) prepare a joint writ ten s tatement nature and scope of discovery required to be under-taken, and indicating the length of time required for completion of such discovery.
forth-(d) if joint statements or stipulations are not casing c ider (b) or (c), the parties are directed to uch s tipulat ions or statements on an individurl submit haris.
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In addit.on to deternining the particular factual
' '.1 irsues i :ought befa: 2 it, the Board will also con-are a.:.on: add msed to:
of a1rt:e of the Attorney General:
or
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- t.c ~ 2 :e1 rf "'m !.EC c. ta f f to the rarious actiticus
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iscucc;
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(c) reduction in the amount of proof to be offered and number of expert witnesses; (d) and such other matters as may aid in the disposition of the proceeding.
THE ATOMIC SAFETY AND LICENSING BOARD I' r$4)
't.'bst
'(j John H. Brebbia, Member R)'
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George Fa' Hall, Member 2
Jo)r6 B. FaiaMies, Cnairman w--