ML19329C893
| ML19329C893 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 09/23/1975 |
| From: | Charnoff G, Reynolds W CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200874 | |
| Download: ML19329C893 (9) | |
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m Septemb 23, 1975 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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THE TOLEDO EDISON COMPANY and
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THE CLEVELAND ELECTRIC ILLUMINATING
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NRCDocketNo.C$[-346A-)
COMPANY
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(Davis-Besse Nuclear Power Station,
)
Unit 1)
THE CLEVELAND ELECTRIC ILLUMINATING
)
)
NRC Docket No. 50-440A (Perry Ntclear Power Plant,
)
50-441A Units 1 and 2)
THE TOLEDO EDISON COMPANY, ET AL.
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NRC Docket No. 50-500A (Davis-Besse Nuclear Power Station,
)
50-501A Units 2 and 3) t APPLICANTS' REFILED MOTION FOR SUMMAnY DISPOSITION
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1.
Pursuant to the request of the Licensing Board at Prehearing Conference No. 5, held on September 18, 1975, Appli-
. cants hereby refile'their motion for summary disposition, which was originally filed with this Board on August 15, 1974, and was recently! renewed on August 18, 1975, following the comple-tion of discovery. -This refiling has been requested due to the withdrawal from these consolidated proceedings of American Municipal Power-Ohio (" AMP-Ohio"), whose pleadings in large part precipitated Applicants' earlier motions for summary disposition.
2.
The instant motion (as were its predecessors) is directed at-a clearly defined issue which, notwithstanding I
8002 200 82f A j
L.
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AMP-Ohio's withdrawal, is presently in this case on the basis of the pleadings of the remaining parties.
That issue is simply whether the so-called PASNY power " situation", --which has been described in terms of The Cleveland Electric Illumina-ting Company's ("CEI's") refusal of AMP-Ohio's request to wheel 30 mw of PASNY power now to the City of Cleveland (" City")
over CEI's existing transmission facilities -- has any meaning-ful nexus or relationship to activities under the' designated nuclear licenses.
3 The City isolated the PASNY matter in both its Perry petition to intervene (para. 19) and its Davis-Besse 2 & 3 intervention petition (para. 27).
The wheeling of PASNY power is also separately treated by the Department of Justice in the Attorney General's Advice Letters recommending antitrust review in the same two proceedings.
See Perry Advice Letter of December 17, 1973, pp. 6-8; D' avis-Besse 2 & 3 Advice Letter of February 14, 1975, pp. 6-7. And special attention is paid to the identical isolated subject by the City (Statement, p.
10),
the Department of Justice (Interrogatory Answers, p. 6) and the NRC Staff (Statement, p. 7) in the recent filings of September 5, 1975 4.
Applicants, can demonstrate factually that CEI's refusal to wheel 30 mw of'PASNY power now for AMP-Ohio does not in the circumstances constitute a " situation inconsistent with the antitrust laws."
The Department of Justice conceded as much at Prehearing Conference No. 5 However, since the City
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and the NRC Staff seem still to dispute this point, Appli-cants instant motion for summary disposition.(like the earlier ones) addresses the separate question whether the PASNY power
" situation" -- assuming arguendo that it is a " situation r
inconsistent with the antitrust laws" -- meets the Waterford 2
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nexus standard.
5 As to that issue, Applicants have already demon-strated in their earlier filings that the licenced activities bear no meaningful relationship to the matter of CEI's wheeling of PASNY power, either now or in the future.
Pursuant to Section 2.749 of the Commission's Rules, Applicants submitted in support of their original summary disposition motion a j
comprehensive affidavit by Dalwyn R. Davidson and a " State-j ment of Material Facts As To Which There Is No Genuine Issue To Be Heard."
The parties have all had ample opportunity to respond to these papers -- not once, but twice.
While answering papers have been filed by the City, the State of Ohio, the Department of Justice, and twice by the NRC Staff, no one has set forth " specific facts showing that there is a genuine issue of fact" (10 C.F.R. 2.749 (b)) with regard to this question.
Nor has any party disputed Applicants' Statement 1/
If all the parties were to concede.that the PASNY " situation"-
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was not itself inconsistent with the antitrust laws, then yet another ground for granting Applicants' motion for summary disposition would exist.
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See In'the Matter of Louisiana Power & Light Company (Waterford Steam Electric Generating Station, Unit 3),
Memorandum and Order of February 23, 1973, RAI 2 48 and Memorandum and Order of September 28, 1973, RAI 9 619 5
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n of Material Facts, which, under Section 2.749 (a) of the Commission's' Rules, must now be de'emed to be admitted.
6.
In these circumstances, the issue raised by the present refiled motion is ripe for decision.
The several parties charging Applicants with anticompetitive behavior have identified as a situation inconsistent with the antitrust laws the refusal by CEI to wheel.PASNY power now to the City.
Applicants have. demonstrated in their moving papers, and in their reply memorandum of October 21, 1974 -- all of which are incorporated herein by reference and made a part hereof -- that the particular situation so described has no meaningful nexus to the licensed activities.
Summary disposition of this issue is'therefore fully warranted under the Commission's Waterford decisions.
7.
During Prehearing Conference No. 5, the Board asked in what respect the present evidentiary hearing would be narr-owed.by a favorable ruling on Applicants' motion.
The 1
clearest impact would be in terms of the elimination of proof going to the question whether the PASNY " situation"'is or is not itself " inconsistent with the antitrust laws."
That is a matter of no significance to the present antitrust inquiry once it has been shown -- as Applicants have done here -- that the nexus-standard cannot be satisfied in this context. This does not mean that the' parties are barred from referring, if they wish, to CEI's refusal'to wheel PASNY power as somehow bearing on CEI's intentions or motives underlying its-dealings
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with the City._But proof of' intent is something quite different
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from proving an alleged substantive offense, and by elimina-ting the latter showing from the evidentiary hearing the pro-ceeding will in all likelihood be shortened.
8.
Such a-result is entirely consistent with the Board's objective to curtail and eliminate issues to be heard.
Here J
is an opportunity to remove from consention a question which has no business being litigated in this forum.
If the City desires to subject to antitrust scrutiny CEI's refusal
' currently to wheel PASNY power, it may do so in its civil suit now pending in federal court.
The same nexus determin-l ation is not applicable there.
Here, on the other hand, a recognised basis exists'for eliminating Board review of the PASNY allegation, thereby narrowing the scope of the hearing.
In view of the potential for an extended evidentiary proceeding of many months, the Board should not, we submit, pass up this
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opportunity to carve out of the hearing process an issue which l
plainly has-no meaningful relationship to the licensed activi-i ties and therefore deserves to be decided now by way of summary disposition.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
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%w Wm..Bradford Reynolds Gerald Charnoff Counsel for the Applicants Dated: ' September 23, 1975 e
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board l
In the Matter of-
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
NRC Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Statio.n,
)
Unit 1)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
COMPANY, IED AL.
)
NRC Docket No. 50-440A 4
(Perry Nuclear Power Plant,
)
50 441A Units 1 and 2)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
NRC Docket No. 50-500A (Davis-Besse Nuclear Power Station,
)
50-501A Units 2 and.3)
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s CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing " Applicants' Refiled Motion For Summary Disposition" were served upon.each of the persons listed on the attached Service List, by hand deliver-ing a copy to those persons'in the Washington, D. C. area and by. mailing a copy, postage prepaid, to all other, all on this 23rd day of September, 1975 SHAW, PITTMAN, POTTS & TROWBRIDGE By: O. bd.\\
Q_
l Wm. Bradford Reynolds \\
Counsel for ADplicants i.
Dated:
September 23, 1975
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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 )
NRC Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station, )
Unit 1)
)
.)
THE CLEVELAND ELECTRIC ILLUMINATING )
)
NRC Docket No. 50-440A (Perry Nuclear Power Plant,
)
50-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuc1 car Power Station, )
NRC Docket No. 50-500A Units 2 and 3)
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50-501A SERVICE LIST Douglas V. Rigler, Esq.
Abraham Braitman, Esq.
Chairman, Atomic Safety and Chief, Office of Antitrust Licensing Board and Indemnity Foley, Lardner, Hollabaugh U. S. Nuclear Regulatory Commission and Jacobs Washington, D.
C.
20555 Chanin Building - Suite 206 815 Connecticut Avenue, N.W.
Mr. Chase R. Stephens Washington, D. C. 20006 Docketing & Service Section U. S. Nuclear Regulatory Commission Ivan W. Smith, Esq.
1717 H Street, N.W.
Atomic Safety and Licensing Washington, D.
C.
20006 Board Panel Benjamin H. Vogler, Esq.
V i
i bs dn ton D. C' 06 Office of the Executive Legal Director John M. Frysiak, Esq.
U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C.
20555 Board Panel Andrew F.
Popper, Esq.
U. S. Nuclear Regulatory Commission Office of the Executive Legal Washington, D. C. 20555 Director U. S. Nuclear Regulatory Commissien Atomic Safety and Licensing Washington, D. C.
20555 Board Panel U. S. Nuclear Regulatory Commission Roy P. Lessy, Jr., Esq.
Washington, D. C. 20555 Office of the Executive Legal Director,
U. S. Nuclear Regulatory Commission Washington, D. C.
20555
,.2.
i Donald II. I!auscr, Esq.
Joseph J.'Saunders, Esq..
General Attorncy Steven M. Charno, Esq.
The Cleveland Electric Antitrust Divinion
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Department,of Justico
. Illuminating Company 55'Public Square Washington, D.-C.
20530 Cloveland, Ohio 44101
, Melvin G. D'crger, licq.
Anthony G. Aiuvalasit, Esq.
L,eslic lionry, Esq.
Antitrust Division Fuller, licnry, llodge & Snydor DepartSucnt of Justice 300 Madison Avenue Toledo, Ohio 43604 Washington, D. C.
20530 Reubenboldborg,E'sq.
- Thomas A..Kayuha, Esq.
l David C. Hjelmfelt, Esq.
Ohio Edison Company 47 North Main Strect Goldberg, Fieldman & Hjelmfolt i
1700 Pennsylvania Ave., N.W.
Akron, Ohio 44308
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Wushington, D. C. 20006 Thomas J..Munsch, Esq.
General Attorney
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Wallace E.
Brand, Esq.
Duquesne Light Company Pearce & Brand 435 Sixth-Avenue Suite 1200 Pittsburgh, Pennsylvania 15219 1000 Connecticut Ave'., N.W.
1 Washington, D. C.
20036 David Olds, Esq.
Reed Smi.th Shaw & McClay Wallace L.
Duncan, Esq.
Union Trust Building Jon T. Brown, Esq.
Box 2009 Duncan, Broun & Palmer Pittsburgh, Pennsylvania 15230 1700-Pennsylvania Ave., N.W.
Washington, D. C.
20006 John Lansdale, Esq.
Cor, Langford & Brown Frani; R. Clokey, Esq.
21 Dupont Circle, N.W.
Special Assistant Washington, D.
C.
20036 Attorney General l
Room 219 Edward A.
Matto,fEsq.
Towne llouse Apartments Assistant Attorncy General liarrisburg, Pennsylvania 17105 Chief, Antitrust Section 30 E.
Broad Street, 15th F.loor
-Mr. Raymond Kudukic Columbus,-Ohio 43215 Director of Public Utilitics City of Cleveland Richard M.
Firestone, Esq.
'1201 Lakeside Avenue Assistant Attorney General Cleveland, Ohio 44114 Antitrust Section 30 E.
Broad'Strcot, 15th Floor
!!crbert R. Whiting, Director Columbus, Ohio 43215 Robert D.
Ilart, Esq.
Karen II. Adkins, Esq.
Department 'of Law Assistant Attorney General
-1201 Lakeside Avenue Antitruct Section Cleveland, Ohio 44114
.. 30 E.
Broad Street, 15th Floor John C. Engle, President Columbus, Ohio 43215 AMP-0, Inc.
Christopher R. Schraff, Esq.
Municipal Buildincj Ass)..stant A.ttorncy General 20.:lligh-Street -
Envircinmental Law Section Ilamilton, Ohio 45012 3G1 E. Broad Sts:cet, 8th Floor Columbus, Ohio'43215
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Joceph A. Rieser, Jr., Esq.
Reed Smith Shaw & McClay Suite 11011 Madicon Building Washington, D. C.
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