ML19329C925
| ML19329C925 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 07/12/1974 |
| From: | Charno S JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002200903 | |
| Download: ML19329C925 (4) | |
Text
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UNITED STATES OF AMERICA y
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ATOMIC ENERGY COMMISSION ggt i
BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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The Toledo Edison Company
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The Cleveland Electric Illuminating
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Docket No. 50-34 W Company
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(Davis-Besse Nuclear Power Station)
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The Cleveland Electric Illuminating
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Decket Nos. 50-440A Company, et al.
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and 50-441A a
(Perry Plant, Units 1 and 2)
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RESPONSE OF DEPARTMENT OF JUSTICE TO ORDER REOUESTING CLARIFICATION Pursuant to the Order of the Atomic Safety and Licensing Boerd issued June 28, 1974, the Department of Justice herein states its position with respect to certain issues set forth by the Board.
Question A:
The Department of Justice does not believe that the fact that the Applicants are dominant in a relevant market, if such dominance is the result only of a franchise or license lawfully granted by a regulatory agency and/or the result of natural growth, unaccompanied by anticompetitive conduct, con-stitutes "a situation inconsistent with the antitrust laws" under Section 105(c) of the Atomic Energy Act, as amended.
For purposes of this statement of position, the Department of Justice understands " dominance" as used by the Board to mean market power sufficient to restrain competition (ordinarily reflected in terms of large market shares).
(We note here that 8002200 96 3 f+;
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" ha Baard's d finition of "ralsvant product markot" does nst t
include the power exchange submarket which has been previously identified by the Department.)
1 Question B:
Since the Department's answer to Question A was in the negative, no answer to Question B is required.
i Question C:
In order for an AEC Hearing Board to reach a conclusion that "a situation inconsistent with the antitrust laws" exists, it would be necessary that it find " dominance" in a l
relevant market, as well as some additional evidence that this dominance has been acquired; maintained, or used in an anticom-petitive manner.
For example, "a situation inconsistent with the antitrust laws" could be found it in addition to structural i
dominance, evidence indicates that such dominance was the result of anticompetitive acquisitLons, unreasonable past or present l
refusals to engage in coordinated operation or development _/ or to sell or wheel bulk power, or any other act or practice violative of any of the antitrust laws or contrary to the principles or policies' underlying those laws.
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Steven M. Charno l
Attorney, Department of Justice l
Antitrust Division 1
July 12, 1974 i
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The legislative history of the 1970 amendments to the Atomic Inergy Act makes clear that a failure to grant reasonable access to a nuclear unit, without more, would create such an inconsist-j ency.
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UNITED STATES OF AMERICA ATOMIC ENERGY COMMISSION bEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
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The Toledo Edison Company
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The Cleveland Elcetric Illuminating
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Docket No. 50-346A Company
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(Davis-Besse Nuclear Power Station)
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The Cleveland Electric Illuminating
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Docket Nos. 50-440A Company, et al.
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and 50-44LA (Perry Plant, Units 1 and 2)
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1 CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF DEPARTMENT OF JUSTICE TO ORDER REO.UESTING CLARIFICATION dated July 12, 1974, in the captioned matter, have been served upon the following by deposit in the United States mail, first class or airmail, this 12th day of July 1974:
John B. Farmakides, Esq.
Frank W. Karas Chairman Chief, Public Proceedings Atomic Safety and Licensing Staff Board Office of the Secretary U.S. Atomic Energy Commission U.S. Atomic Energy Ccmmission Washington, D.C.
20545 Washington, D.C.
20545 John H. Brebbia, Esq.
Abraham Braitman Atomic Safety and Licensing Office of Antitrust and Board Indemnity Alston, Miller & Gaines U.S. Atomic Energy Commission 1776 K Street, N.W.
Washington, D.C.
20545 Washington, D.C.
20006
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Herbert R. Whitting, Esq.
Dr. George R. Hall Robert D. Hart, Esq.
Atomic Safety _ and Licensing Law Department Board City Hall U.S. Atomic Energy Commission Cleveland, Ohio 44114 Washington, D.C.
20545 1
Reuben Goldberg, Esq.
Atomic Safety and Licensing David C. Hj elmfelt, Esq.
Board Panel 1700 Pennsylvania Avenue, N.W.
U.S. Atomic Energy Commission Suite 550 Washington, D.C.
20545 Washington, D.C.
20006
Benjamin H. Vogler, Esq.
John R. White, Esq.
Robert J. Verdisco, Esq.
Executive Vice President Andrew F. Popper, Esq.
Ohio Edison Company Office of the General Counsel 47 North Main Street U.S. Atomic Energy Commission Akron, Ohio 44308 Washington, D.C.
20545 David M. Olds, Esq.
Gerald Charnoff, Esq.
Reed, Smith, Shaw & McClay William Bradford Reynolds, Esq.
747 Union Trust Building Shaw, Pittman, Potts & Trowbridge Pittsburgh, Pennsylvania 15219 910 Seventeenth Street, N.W.
Washington, D.C.
20006 Mr. Raymond Kudukis Director of Utilities Lee C. Howley, Esq.
City of Cleveland
.Vice President & Ceneral Counsel 1201 Lakeside Avenue The Cleveland Electric Cleveland, Ohio 44114 Illuminating Company Post Office Box 5000 Wallace L. Duncan, Esq.
Clev,, land, Ohio 44101 Jon T. Brown, Esq.
Duncan, Brown, Weinberg Donald H. Hauser, Esq.
& Palmer Corporate Solicitor 1700 Pennsylvania Avenue, N.W.
The Cleveland Electric Washington, D.C.
20006 Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 John Lansdale, Jr., Esq.
Cox, Langford & Brown 21 Dupont Circle, N.W.
Washington, D.C.
20036 Chris Schraff, Esq.
Office of Attorney General State of Ohio State House Columbus, Ohio 43215 C. Raymond Marvin, Esq.
Deborah M. Powell, Esq.
Antitrust Section 8 East Long Street Columbus, Ohio 43215 Leslie Henry, Esq.
Fuller, Henry, Hodge & Snyder 300 Madison Avenue i
Toledo, Ohi'o 43604
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Steven M. Charno Attorney, Department of Justice Antitrust Division r