ML19329C860
| ML19329C860 | |
| Person / Time | |
|---|---|
| Site: | Beaver Valley, Davis Besse, Perry  |
| Issue date: | 04/15/1974 |
| From: | Brebbia J, Farmakides J, Hall G Atomic Safety and Licensing Board Panel |
| To: | US ATOMIC ENERGY COMMISSION (AEC) |
| References | |
| NUDOCS 8002200845 | |
| Download: ML19329C860 (18) | |
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r UNITED STATES OF.VfERIC\\
ATONfIC ENERGY C04tISSION In the "atter of
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TOLEDO EllISON CmPANY, TT AL.
) Docket No. 50-346A
- CLEVliL\\ND ELECTRIC ILLININATING
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50-440.1
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30 -441 A SERVICE LIST John B. Farmakides, Esq., Chainnan Gerald Charnoff, Esq.
Atomic Safety and Licensing Board W. B. Reynolds, Esq.
U.S. Atomic Energy Commission Shaw, Pittman, Potts F Trowbridge Nashington, D.C. 20545' 910 17th Street, N.W.
Washington, D.C. 20006 John II. Brebbia, Esq.
Atomic Safety and Licensing Board Joseph Rutherg, Esq.
Alston, Stiller F Gaines Benjamin 11. Vogler, Esq.
1776 K Street, N.W.
Antitmst Counsel Nashington, D.C. 20006 Office of General Counsel Regulation
- Dr. George R. IIall U.S. Atcmic Energy Commission Atomic Safety and Licensing Board Washington, D.C. 20545 U.S. Atomic Energy Co " ssion Nashington, D.C. 20545 Leslie !!entv, Esq.
4 W. Snyder, Esq.
-Clarence L. James, Jr., Esq.
Fuller, IIenry, I!odge Fr Snyder Director of Law 300 5fadison Avenue City of. Cleveland Toledo, Ohio 43604-601 Lakeside Avenue Cleveland,(
o 44114 John C. Engle, President A\\fP-0, Inc.
'fr. William S. Gaskill -
'funicipal Building Director of Utilities
- 20 liigh Street I
City of Cleveland flamilton, Ohio 45012 1825 Ltkeside " Avenue Cleveland, Chio 44114 George B. Crosby Director of Utilities Donald II. IIauser, Esq.,
Piqua, Ohio 45350 i
3fanaging Attorney
. Cleveland Electric illuminating William 't.
Lewis, Jr.
Company W. Bl. Lewis 5 Associates Public Square P. O. Box 1383 Cleveland, Ohio 144101 Portsmouth, Ohio 45662 lionorable Richard N. EfcLaren Robert D. Ilart, Esq.
Assistant Attorney General Assistant Law Director Antitmst Division City !!all Cle' eland, Ohio 44114
- U.S. Department of Justice v
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~Page 2 Director Honorable Deborah ?l. Powell Ida Rupp I'ublic Library Assistant Attorney General Port Clinton, Ohio 43452 Antitrust Section 8 East Long Street Perry Public Library Columbus, Ohio 43215 3753 ain Street Perry, Ohio 44081 Honorable Christopher II. Schraff Assistant Attorney General D.euben Goldberg, Esq.
Enviw:c. ental Law Section
. Arnold Fieldman, Esq.
351 East 3 road. Street 1700 Pennsylvania Avenue, N.N.
Columbus, Ohio 43215 Washincron, D.C. 20006.
Nal lace i., thincan, listi.
David C. Iliclefelt, Esq.
Jon T. Brown, Esc.
1700 PennsyIV.aia' Avenue, N.N.
Dunenn, Brown and Paimer Washington, D.C. 20006' 1700 Pennsylvania Avenue,?!.N.
Nashington, D.C. 20006 Honorable Thomas E. Kauper Assistant Attorney General Lee C. Ifowley, Esq.
Antitrust Division Vice President and General Counsel II.S. Department of Justice Cleveland Electric Illuminating Co.
Washington, D.C. 20530 P. O. Box 5000 Cleveland, Ohio 44101
'h. Abraham Braitman, Chief Office of Antitnist 6 Indemnity John Lusdale, Jr., Esq.
Directorate _of. Licensing Cox, Langford 6 Brown II.S. Atomic 1:nergy Commission 21 Dupont Circle, N.N.
Nashington, D.C. 20545 Washington, D.C. 20036 Robert J. Verdisco, Esq.
Steven 91. Charno, Esq.
i Antitrust Counsel Antitrust Division Office of General Counsel Department of Justice II.S. Atomic Energy Commission Washington, D.C. 20530 Washington,'D.C. 20545 Ilonorable William J. Brown Attorney General State of Ohio Columbus, Ohio 43215~
ilonornble. C. Raymond.'farvin Assistant Attorney. General Chief, Antitrust Section 8 Ikist Long Street Columbus, Ohio 43215 i
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93 APR161974* 11 UNITED STATES OF AMERICA
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ATOMIC ENERGY COMMISSION SjjMQ 9
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/p In the Matter of
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The Toledo Edison Company and
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g The Cleveland Electric Illuminating
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Docket No.,f0-345A Company
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(Davis-Besse Nuclear Power Station)
)
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The Cleveland Electric Illuminating
)
Do.'et Nos. 50-440A Company, et al.
)
50-441A
)
Duquesne Light Company, et al.
)
Docket No. 50-412A (Beaver Valley, Unit 2)
)
FINAL M OP ND.UM AND ORDER ON PSTITIONS TO INTERVEME i
AND REQUESTSJOR HEARING U
By Memorandum and Order dated January 21, 1974, the Atomic Energy Commission (Commission), inter alia, desig-nated this Atomic Safety and Licensing Board (Board) to assume jurisdiction and to rule on the petition of the City of Cleveland (Cleveland) for a hearing and for leave to intervene in the above-captioned Davis-Besse proceeding.
The Cornission stated that developments occurring after y
Ra1 74-1, 15-18
. the filing of Cleveland's petition to intervene required clarification of Cleveland's position.
At the same time, the Commission denied the petition by American Municipal Power-Ohio, Inc. (AMP-0) for a hearing and intervention in the said Davis-Besse proceeding.
The Commission also directed this Board to rule on all petitions to intervene filed in the above-captioned Perry and Beaver Valley proceedings, and to decide whether consol-idation of the proceedings would be in order.
In effect the Board had a dual responsibility, (1) to function as a " motions Board" and to rule on petitions to intervene filed in the above-captioned proceedings, and (2) to conduct any hearing (s) and to decide any issues in controversy.
Accordingly, in its capacity as a " motions Board", this Board, after holding two prehearing confer-ences, and carefully considering all the written and oral pleadings advanced by the parties, issued a Memorandum and Order dated March 15, 1974.
Subsequently, amendments and further pleadings have e
. been filed, including objections and requests for reconsid-U eration filed by the City of Cleveland and by the American 3/
Municipal Power-Ohio, Inc.
After carefully considering all such further amendments and pleadings, the Board affirms its March 15 Memorandum and Order as modified hereinbelow:
A.
A hearing is warranted in the Davis-Besse proceeding with the parties previously named.
The Petition of the W
State of Ohio to participate under Section 2.715(c) is granted as to the Davis-Besse proceeding.
B.
A hearing, requested by the Department of Justice 2/
" Objections of the City of Cleveland to the Denial of Petition to Intervene and Requiremant for Supplemental Statement on Nexus in Board's Memorandum and Order i.ssued March 15, 1974, Request for Certification cf Such Matters to the Commission, and Deferral of Date for Filing Supple-mental Statement on Nexus Pending Commission Decision" (hereaf ter " Objections").
3/
" Request for Reconsideration of Tentative Denial of Petition to Intervene of AMP-0 and Presentation of Supple-mental Data Regarding Compliance with Section 2.714 of the Commission's Rules and Regulations" (hereaf ter " Request").
4/
Petition of State of Ohio to Participate as a Matter of Right, dated April 4, 1974.
4
, (Justice) and several petitioners, is warranted in the Perry proceeding with the parties previously named.
The petition of the State of Ohio to participate under Section 2.715(c) is granted as to the Perry proceeding.
El In view of the response and amendment filed by AMP-O the Board hereby rules that AMP-O is a party to the Perry proceeding as further discussed in paragraph D. below.
C.
A hearing is not warranted in the Beaver Vallev pro-cceding.
As discussed in paragraph E. below, no addi-tional reasons or information had been submitted that would warrant such hearing.
D.
The Board noted in its March 15 Memorandum and Order a disposition to deny the petition to intervene filed by AMP-0 in the Perry proceeding, but nevertheless granted AMP-0 an additional period of 20 days to clarify and resubmit its allegation of nexus.
On April 4, 1974, 3/
Footnote 3, supra.
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AMP-0 submitted its response.
Inter alia, this plead-ing presented additional information on nexus dealing with the impact of the Perry facility on Cleveland Electric Illuminating Company's (CEI) transmission system and thereby on AMP-O's ability to provide Cleveland with an citernative source of bulk electric power from the Power Authority of the State of New York.
The Board finds such contention sufficient pleading of nexus to permit AMP-O's intervention in the Perry proceeding.
Although such addit:.'nal infor-mation may be adequate to admit AMP-O as a party, the Board notes difficulty in understanding the technical, economic and marketing relationships that AMP-O asserts could lead to AMP-0 being unable to fulfill its commit-ment to Cleveland.
The Board will require that these be clarified before the start of discovery.
E.
As to the Beaver Valley proceeding, Cleveland has requested reconsideration of the Board's March 13 6/
Footnote 3, supra.
, 1/
Order.
The Board has carefully considered all the pleadings, both written and oral, and finds no reason to reverse its earlier decision.
It hereby affirms said decision for the following reasons:
1.
Cleveland takes issue separately with the two aspects of the Board's decision:
Cleveland's 1/
(1) failure to file timely, and (2) failure to make a proper showing of nexus.
The Board addressed both factors, separately, and cumu-latively, in reaching its decision.
2.
The essence of the Commission's rules on cameliness is to protect the rights of all parties and to provide an orderly licensing pro-cedure.
While timeliness may be inextricably i
l 1/
Footnote 2, supra.
8/
The Board notes an inadvertent typographical error.
On page 5, line 3, of said March 15 Order "30 days" should be corrected to 60 days.
7-9.]
intertwined with petitioners' interests, the Board's denial of Cleveland's petition in Beaver Valley took this factor into full account.
The Board likewise considered that maintenance of the integrity of the Commission rules of proce-dure requires that they be strictly observed unless a party can show damage or serious disad-vantage to its interests.
To do otherwise would make a mockery of procedural rules and create chaos in the licensing and hearing process.
In this regard Cleveland made no showing that could reasonably be interpreted as amounting to a show-ing of damage or disadvantage.
Furthermore, a key point in assessing the weight to be given to a question of untimeliness is Cleveland's tbility to protect its interests without a Beaver Valley 9/
See Duke Power Company, Memorandum and Order of September 6,1973, RAI-73-9-666, pp. 6 70-6 71.
I
_g.
12/
hearing.
The City of Cleveland has been admitted to the Davis-Besse and Perry proceedings which in-volve the same factual and legal issues that Clevelano seeks to litigate in Beaver Valley.
If Cleveland shows in these two proceedings that relief is in order, Cleveland may then request the same type of remedy it seeks in Beaver va11ev.
11/
3.
As to the nexus issue, Cleveland argues that essentially the same nexus is stated in all three petitions, i.e.,
in Perry, Davis-Besse, and Beaver Vallev.
Cleveland then proceeds to cite and com-pare two paragraphs each from Perry and Beaver 10/
Cleveland argues that if a party has a right to inter-vene, he can exercise this right regardless of its impact on the licensing process.
On the contrary, in the present sit-uation the issue is whether the Board in its discretion must grant Cleveland intervention in the absence of a timely peti-tion and without a proper showing of nexus.
11/
Footnote 2, supra.
1 Valley, and three paragraphs from the Davis-Besse pleadings and states that these comprise its nexus 12/
allegations.
However, the Board finds that these cited paragraphs do not meet the nexus standard M/
required by Waterford.
The only nexus that the Board was able to discover was in the alle-gation of new advantages accruing to the Applicants to be created by the proposed licensing for Davis-Besse and Perry.
While such allegations met the nexus test marginally in Davis-Besse and Perrv, the Beaver Valley petition failed to meet or show 12/
Id., p. 3 M/
In the Matter of Loui,siana Power & Light Comoanv,.la te r-ford Unit 3, Docket No. 50-382A, Memorandum and Order of February 23,1973, RAI-73-2-43 and In __the Matter of Louisiana Power & Light Company, Waterford Unit 3, Docket No. 50-332A, Memorandum and Order of September 23, 1973, RAI-73-0-619.
(hereaf ter, Waterford)
As held in the ~4aterford case, nexus is not established by simply reciting words of art in a plead-ing.
Nexus requires a logical connection between the construc-tion and operation of a nuclear power plant 2nd a situation inconsistent with the antitrust laws.
. 11/
this requ'.rement.
Specifically, the Perry peti-tion described the relationship between the Central Area Power Coordination Group (CAPCO), and the proposed nuclear plant.
Cleveland asserted on page 6 of its petition that:
"... membership in CAPCO has enhanced CZI's ability to construct and market power from large nuclear units and to take advantage of the economies of scale associated with such large units.
At the sane time, CEI and other CAPCO aembers have effectively shut out MELP from deriving such benefits either through participation in CAPCO or through non-CAPCO systens, thereby givin CEIacompetitiveadvantageoverMELP."l_g/
As to t'e Davis-Besse petition, the Board took into a
consideration that Cleveland's original petition 1
14/
The Board resolved doubts in favor of Cleveland's peti-tion, but expressly noted in its March 15 Order the Commission direction that "... if it becones apparent at any point that no meaningful nexus can be shown, all or part of the proceed-ing should be summarily disposed of."
See RAI-73-9 at 6 21.
15/
MELP is on acronym for Cleveland Municipal Electric Light Plant.
. was filed July 6,1971, before the Waterford decisions on February 23, 1973 and September 28, 1973.
Thus, the most helpful explicit statement of the alleged Davis-Besse nexus is in the letter of April 19, 1973 from Counsel for Cleveland to Counsel for the AEC Staff.
On pages 2 and 3 of that letter, the argument is made that inability to "... have access to the area or regional power exchange markets...," through membership in organizations such as CAPCO, means that "[MELP]
... does not produce power at a cost which per-mits successful competimion for potential custo-mers and retention of existing customers."
Further on page 6 of said letter, Cleveland's argument can be read to say that an unconditioned license to CEI for the Davis-Besse nuclear facil-icy would, because of these alleged market condi-tions, prevent MELP from obtaining access to similar production economies.
No such specific allegation was found in Cleveland's Beaver Vallev petition.
Instead, there are summary
- statements to the effect that an unconditioned license would lead (1) to "further concentration of economic power" and (2) an increase in the reliability of CEI's system and, therefore, an
" overpowering advantage in its competition for customers with MELP."
If the Board had in fact limited its analysis of nexus to the paragraphs cited by Cleveland as com-prising its allegations respecting nexus, the Board would not have found that nexus had been shown.
However, the Board also examined each petition to intervene as a whole and in this manner found sufficient nexus in Davis-Besse and Perry, but not in Beaver Valley.
Thus for failure to show nexus and for failure to file timely without a showing of good cause, the petition to intervene and request for hearing of l
Cleveland as to the Beaver Vallev facility was,
and continues to be, denied.
1 i
o
_. F.
Cleveland's request for certification of its 16/
-~
"Obj ections "
to the Commission is also denied since i
this Memorandum and Order is the final action of the Board on all the petitions to intervene filed in the above-captioned proceedings.
Alf G.
Cleveland's request for deferral of submission of a more detailed statement of the nexus as required by the Board in its March 15 Order was granced during a telephone conference call of the parties and is con-firmed herein.
The Board will encertain a discussion and oral argument of Cleveland's request at the next prehearing conference.
H.
The Board concludes that:
1.
A hearing is warranted and will be held in the Davis-Besse proceeding as previously noted.
The parties are:
Toledo Edison Co. and Cleveland Electric Illuminating Co.; City of Cleveland; and the l
16/
Footnote 2, supra.
l 12/
Ibid.
l' l
e 14 -
Regulatory Staff of the AEC.
The State of Ohio is a participant under Section 2.715(c).
2.
A hearing is warranted and will be held in the Perry proceeding as previously noted.
The parties are:
Cleveland Electric Illuminating Co., et al.;
City of Cleveland; American Municipal Power-Ohio, Inc. ; Department of Justice; and the Regulatory Staff of the AEC.
The State of Ohio is a partici-pant under Section 2.715(c).
3.
A hearing is not warranted for Beaver Vallev.
4.
The revised petition of the State of Ohio dated April 4, 1973 is granted and the State may participate under Section 2.715(c) and in con-formance with the agreement of the Applicant and Staff as to both the Davis-Besse and Perry proceed-ings.
I.
The Board explicit ly rules that, for the purpose of any appeal, this is a final decision with respect to l
l-
. the petitions to intervene filed in the above-captioned proceedings.
ATCMIC SAFETY AND LICENSING BOARD
~'
1s f6hn H. Brebbla', Member 77 f.
' George K Hall, Me6ber kle gbn B'. FaYmakides, Chairman Issued at Bethesda, Maryland, this 15th day of April, 1374.
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