ML19329C682

Applicants' Reply to Petition of American Municipal Power-OH Inc to Intervene.Recommends Denial.Certificate of Svc Encl

ML19329C682
Person / Time
Site:	Davis Besse
Issue date:	04/10/1973
From:	Churchill B CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8002180184
Download: ML19329C682 (6)

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L \rl e UNITED STATES OF AMERICA ATOMIC E:!ERGY CO!OIISSICM In the : tatter of )

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THE TOLEDO EDISO! COMPIdiY and )

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THE CLEVELAND ELECTRIC ILLUMINATI:!G ) Docket No. 50-346A COMPANY )

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Davis-Besse Nuclear Power Station )

APPLICA:1TS' REPLY TO PETITIO:! CF AMERICAN MUNICIPAL PC' DER-OHIO ,

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1. On April 4, 1973, American ':unicipal Power-Ohio, Inc. (AiP-0) filed a petition to intervene in this proceeding. The petition is untimely in the extreme and should be denied.

2. Pursuant to Section 182c. of the Atcmic Energy Act of 1954, as amended, Notices of Application for Con-structicn Permit and Facility License for the Davis-Besse Nuclear Power Station proposed to be constructed by The Toledo Edison Company and The Cleveland Electric Illuminating Company (Applicants) were published in the Federal Register on December 11, 1970, December 18, 1970, December 25, 1970, and January 1, 1971. 35 Fed. Reg. 18889, 19201, 19643 and 36 Fed. Reg. 28. Essentially the same announcement was published in the Cleveland Plain Dealer and the Toledo Blade newspapers on January 23 and January 25, 1971, respectively.

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3. On January 9, 1971, there was published in the Federal Register a " Notice of Receipt of Application for Construction Permit and Operating License; Time for Submission of Views on Antitrust Matter." 36 Fed. Reg. 334.

Persons who wished to have their views on antitrust aspects of Applicants' application presented to the Attorney General were to submit those views by March 10, 1971.

AMP-O did not submit anything.

4. On September 4, 1971, there was published in the Federal Register a Notice of Receipt of Advice (frca the Attorney General] and Time for Filing of Petitions To Intervene on Antitrust Matters, 36 Fed. Reg. 17888. Any person seeking intervention on antitrust matters was re-quired to submit a petition "within thirty (30) days after publication of this notice in the Federal Register," 1.e.,

by October 4, 1971.

5. The AMP-O petition was filed by Philip P.

Ardery,Esq., who was also counsel to the City of Cleveland which has previously requested a hearing in this docket.

It is clear, therefore, that AMP-0, by its counsel, is fully familiar with the foregoing factual background of this docket.

6. The AMP-O petition is exactly one and one-half years late. There is no explanation set forth in the 1

l petition as to this gross violation of the schedule estab-l lished by the Commission. Section 2.714 (a) of the 2

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Commission's Rules of Practice requires a " substantial showing of good cause" for untimely filings. AMP-O has not even attempted such a showing. Its petition should therefore be denied.

7. Petitioner has wholly failed to state a situation inconsistent with the antitrust laws created by Applicants or that such a situation will be created or maintained by "the activities under the license." In other words, there is a complete failure to allege the

" meaningful nexus [which] must be established by the situation and the ' activities undar the license'" (Leuisiana Power and Light Company, Docket No. 50-332A (February 23, 1973)).

8. Counsel for petitioner has previously appeared before this Commission on behalf of the City of Cleveland petitioning for a 200 'P. share of Davis-Besse. At a meeting of the Staff on March 1, this counsel suggested that that power might be supplied to the City through AMP-0.

At that time the City tas requested to submit a specific statement of what it desired. The City never submitted the requested statement. This counsel withdrew as counsel for the City on April 6 and now appears on behalf of AMP-O savinv that " preliminary indications are that AMP-O would need 50 to 100 megawatts from the Davis-Besse Station" but that "the petition to intervene is being submitted prior to completion of an engineering study."

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9. The petition thus is nothinc more than an -

appeal to the Commission to award a share of a nuclear unit to Petitioner because it - or the municipalities it purports to represent - wants a new source of power. This is clearly beyond any power conferred on this Commission and a bare-faced attempt to interrupt and delay Commissicn procedures on a totally invalid and inadequate basis.

10. For the foregoina, reasons, the A.4P-O petition should be denied.

Resrectfully submittedr S .a U '.". . , P I T. ~1.v.n' .'. , 0. ^v~i S s' '"_.c u o'..' o.7

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Bv-Bruce  !.. Cnurcnill Counsel for Applicants Cated: April 10, 1973 4

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1 UNITED STATES OF A". ERICA ATOMIC EMERGY CC:'2ISSICN In the Matter of )

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THE TOLEDO EDISON COMPANY and )

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THE CLEVELAND ELECTRIC ILLUMINATING ) Docket No. 50-346A COMPANY )

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Davis-Besse Nuclear Pcwer Station )

CERTIFICATE OF SERVICE I hereby certify that copies of Applicants' Reply to Petition of American :'unicipal Power-Ohio, Inc., To Intervene

• tere served by depcsit in the United States mail upon the following this 10th day of April, 1973 Benj amin H. Vogler, Esq.

Antitrust Counsel for AEC Regulatory Staff U. S. Atomic Energy Commission Washington, D. C. 20545 Joseph J. Saunders, Esq.

Antitrust Division Department of Justice Washington, D. C. 20530 Philip P. Ardery, Esq.

Brown, Ardery, Todd & Dudley Kentucky Home Life Building Louisville, Kentucky 40202 Atomic Safety and Licensing Board Panel U. S. Atcmic Energy Commission Washington, D. C. 20545 y , -

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Mr. Frank W. Karas Chief, Public Proceedings Branch Office of the Secretary U. S. Atomic Energy Commission Washington, D. C. 20545 Robert D. Hart, Esq.

Assistant Law Director City of Cleveland Cleveland, Ohio 44114 Raymond Kudukis, Director Warren D. Hinchee, Cc=missioner City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Leslie Henry, Esq.

Fuller, Henry, Hodge & Snyder 300 Madiscn Avenue Toledo, Ohio 43604 Donald H. Hauser, Esq.

Managing Attorney The Cleveland Electric Illuminating Company 55 Public Square Cleveland, Ohio 44101 SHAW, PITT"JCI , POTTS & TROWBRIDGE By -

Bruce W. Churchill Dated: April 10, 1973 i

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