ML19329C916
| ML19329C916 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 09/10/1975 |
| From: | Duncan W DUNCAN, BROWN, WEINBERG & PALMER |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200895 | |
| Download: ML19329C916 (6) | |
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UNITED STATES OF AMERICA BEFORE THE NUCLEAR-REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter.of
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THE TOLEDO EDIS0N COMPANY and
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Docket Nos. 50-346A THE' CLEVELAND ELECTRIC ILLUMINATING
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50-500A COMPANY
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50-501A (Davis-Besse Nuclear Power Station,
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- Units 1,2 and 3)
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THE CLEVELAND. ELECTRIC ILLUMINATING
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Docket Nos. 50-440A COMPANY, ET AL.
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50-441A (Perry Nuclear Power Plant,
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Units 1 and 2)
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MOTION OF AMERICAN MUNICIPAL POWER-OHIO, INC.
FOR LEAVE TO WITHDRAW PETITION TO INTERVENE COMES;NOW American Municipal Power-Ohio, Inc. (hereinafter AMP-Ohio), by and through counsel 'Wal~1 ace L. Duncan and Duncan, Brown, Weinberg 5 Palmer, 1700 Pennsylvania Avenue, N.W.,
Washington, D.C. and respectfully moves for leave to withdraw its Petition to Intervene filed on February 15, 1974, and to-withdraw from further participation in the.above-styled proceedings.
In support of its Motion, AMP-Ohio alleges and shows the Atomic. Safety.and Licensing Board as follows:
1.
On February 15, 1974, AMP-Ohio timely filed its Petition to Intervene in these proceedings, alleging, inter alia, that the Cleveland Electric Illuminating Company (CEI) had consistently refused to wheel'some-thirty (30) megawatts of power from the 8 0 0 2 20 0 ffy f=7
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Power Authority of the State of New York (hereinafter PASNY) to AMP-Ohio's member, the City of Cleveland.
AMP-Ohio further alleged.that CEI's refusal to wheel power for AMP-Ohio was part of an stempt by CEI to perpetrate and maintain its existing monopoly and destroy Cleveland's ability.to compete through the introduction of an alternative bulk power-supply source.
AMP-Ohio further alleged that CEI's refusal to wheel power to the City of. Cleveland on behalf of AMP-Ohio created and/oc maintained a situation which is inconsistent with the a~ntitrust laws and therefore cognizable under Section 105 of the Atomic Energy Act of 1954 as amended (42 U.S.C.'Sec. 2135).
AMP-Ohio requested that the Commission scrutinize CEI's activities and examine such evidence.as may be presented during the pendency
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of the license application.'
2.
On April 15, 1974, the Board issued its " Final Memo-i randum and Order on Petitions to Intervene and Request for 1
Hearing", admitting AMP-Ohio as an intervenor in these proceed-ings.
Shortly theredfrer, in order to accommodate the applicant in its desire to present written argument concerning the alleged
" lack of nexus" of AMP-Ohio, the Board stayed its April 15, 1974, Order until April 23, 1974.
In the interim, the applicant pre-sented a-lengthy brief to the Board.
On Apri1 23, 1974, the i
Board dissolved its. stay order and reinstated-its earlier order admitting AMP-Ohio as an Intervenor.
3.
On August 15, 1974, the Applicant, CEI, filed a motion for. summary disposition with the Board seeking the dismissal of AMP-Ohio from further participation in these proceedings.
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3-AMP-Ohio filed a response to said motion on October 9, 1974.
In addition, the applicants filed a reply to the earlier memo-randa filed by the other parties in opposition to applicants' motion for summary dismissal on October 21, 1974.
The Licensing Board denied the applicants' motion on November 4, 1974, con-cluding that, at that stage of the proceedings, AMP-Ohio had demonstrated sufficient nexus to condition.its intervention in these proceedings.
The Board's denial was 'Nithout prejudice to the Applicants to renew their motion after the close of dis-covery".
4.
On August 18, 1975, the Applicants renewed their Motion for summary disposition and that matter is now pending before the Board.
5.
Throughout these proceedings, the position of the City of Cleveland.and AMP-Ohio have been identical with respect to CEI's refusal to wheel PASNY power for AMP-Ohio to the City of Cleveland.
AMP-Ohio, in the interest of eliminating duplication of effort and pleadings, and to avoid burdening the record, has adopted the position and pleadings of the City of Cleveland on numerous. occasions, the most recent of which was September 5, 1975, when AMP-Onio adopted and concurred in,the " Statement of the City of Cleveland Informing Applicants of the Nature of the Case to be Presented".
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On September 5, 1975, the Nuclear Regulatory Commission Staff also filed a Statement of the Nature of the Case to be Presented oy NRC Staff. -The Statement or NRC Staff, received by the undersigned on September 9, 1975, also includes in its deli-neation of issues the past and present refusals of CEI to wheel S
30 mws of1PASNY power.for the benefit of Cleveland and/or I
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F AMP-Ohio and by (a) denying other electric utilities access to power supply sources and operations beyond the control of CEI and
-(b) thereby denying other such entities the ability to wheel with any excess capacity.
The position of the Nuclear Regulatory Commission Staff is consistent with the delineation of issues on this point with the statement of the City of Cleveland.
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The Antitrust Division of the Department of Justice
- htu; also consistently maintained that CEI's refusal ~to wheel PASNY power to the City of Cleveland for the account of AMP-Ohio is a relevant issue cogni:able under Section 105(c)(5) of the Atomic Energy Act of 1975, (42 U.S.C. Sec. 2135 (c) (S)).
8.
Inasmuch as the representatives of the City of Cleve-land and AMP-Ohio have_ worked closaly in the development of this issue and the evidence pertaining thereto, it was unnecessary'and would have been a duplication 135 effort for representatives of AMP-Ohio-to have participated in the discovery proceedings, depo-sitions and other aspects of this case.
Representatives of AMP-Ohio have had full-access to the files of the City of Cleveland and its representatives in these proceedings,.and have been informed of all developments which might affect the mutual interests of AMP-Ohio and the 'ity of Cleveland in these proceedings.
- The City of Cleveland, Nuclear Regulatory Commission Staff and.the Department of Justice have. delineated issues beyond those which concern AMP-Ohio while, at the same time, each of these
-parties has carefully and adequately preserved the AMP-Ohio /
Cleveland bulk power: supply transaction as an issue in these proceedings.
Thus, AMP-Ohio's further participation in these
-proceedings ~is superfluous other than:to provide access to its
' files and make availabic its witnesses to tne -City of Cleveland,
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the NucleargRegulatory Commission Staff or the Department of Justice. ' AMP-Onio has agreed.to provide such' support and access during the pendency of.these proceedings.
9.
The activities of CEI complained of by AMP-Ohio in its initial Petition to Intervene and throughout these proceedings have' effectively prevented AMP-Ohio from developing a bulk power supply source for its members and deriving the income which might have been developed'thereby.
The economic strangulation perpe-trated by CEI on,the City of Cleveland has also extended to AMP-Ohio and has had the effect'of limiting the economic resources needed by AMP-Ohio to continue.its active participation in these proceedings.
As the parties have noted throughout these pro-ceedings, the costs thereof have be'come exorbitant, particularly I
to those systems which are denied competitive and economic advan-tage because,of the anticompetitive conduct of the Applicant.
In light of the prohibitive costs and the fact that AMP-Ohio's interests in these proceedings are already fully presented by
- and through the City of Cleveland, with the concurrence of the Department of Justice and the Nuclear Regulatory Commission Staff,
. AMP-Ohio elects, by leave of the Board, to withdraw its Petition
- to Intervene and to withdraw from further participation in these proceedings.
WHEREFORE, AMP-Ohio respectfully requests leave to withdraw from the above-captioned proceedings.
Respecpfully submitted,
,2 c4aD4 Mew Wallace L. Duncan Duncan, Brown, Weinberg 6 Palmer 1700 Pennsylvania Avenue, N.W.
Washington, D. C.
20006
~9/10/75 L
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CERTIFICATE OF SERVICE a
't I hereby certify-that I have on this cate served a j.
copy of the foregoing Motion of American Municipal Power-
.0hio, Inc.-upon all parties of. record to this proceeding via.first class, postage prepaid and correctly addressed mail.
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Wallace L. Dunca C
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September 11, 1975 i
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