ML19329D045
| ML19329D045 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 01/24/1977 |
| From: | Reynolds W, Reynolds Wb CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO. |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8002240049 | |
| Download: ML19329D045 (10) | |
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January 24, 1977 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board 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
)
(
(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
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THE CLEVELAND ELECTRIC ILLUMINATING
)
)
Docket Nos. 50-440A (Perry Nuclear Power Plant,
)
50-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)
50-501A APPLICANTS' REQUEST FOR RECONSIDERATION OF THE APPEAL BOARD'S ORDER OF JANUARY 19, 1977 1.
On January 19, 1977, the Atomic Safety and Licensing Appeal Board
(" Appeal Board") issued its Order setting a briefing schedule for taking exceptions to the Initial Decision in the above-captioned antitrust proceeding and further specifying page limitations on the briefs to be filed.
Applicants respectfully urge the Appeal Board to re-consider its January 19 Order in both respects.
2.
With regard to the announced schedule, Appli-cants would point out that it now affords the appellees a total of 105 days from the filing of exceptions within which l
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. to prepare their answering briefs.
While Applicants do not suggest that the first 49 days of this period (following the filing of exceptions but prior to submission of briefs in support thereof) can be spent by appellees on a final draft of an answering brief, we would certainly expect that counsel familiar with the. record could use that time productively formulating their arguments to sustain the findings of fact and conclusions of law which:have been challenged.
l 3.
Accordingly, we would ask the Appeal Board to reconsider the one-week discrepancy in the time allotted to appellants for briefing (49 days) and the time allotted to i
appellees for briefing (56 days).-1/
We fully appreciate that the Appeal Board has already granted our request for more time for filing exceptions, allowing a total of 32 days from the issuance of the Initial Decision.
More than one-half of that time has already run, however.
Counsel can assure this Board that Applicants have not been sitting idly by since the filing of their extension motion; they are hard at work analyzing the findings of fact, the conclusions of law and t.he relief set forth in the 264-page Initial Decision to determine which. rulings are, in their view, legitimately suspect and warrant further consideration by this Board.
This is, however, 1/
While the original briefing schedule in Consumers Power Company (Midland Units 1 and 2), M23-282, 2 NBC 9 (1975), had a similar one-week disparity, the extra week for answering briefs
. presumably was there due to the fact that the designated period included the Thanksgiving and Christmas holidays.
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, a time-consuming task which does not realistically allow Ap-plicants to commence work simultaneously on their supporting brief.
4.
For these reasons, Applicants respectfully pro-pose that the Appeal Board's briefing schedule be modified to the limited extent of adding one week to each of the last three dates specified therein to reflect the following:
Filing of Exceptions
- February 7, 1977 Briefs in Support of Exceptions - April 4, 1977 (56 days)
Answering Briefs
- May 30, 1977 (56 days) i Reply Briefs
- June 20, 1977 (21 days) l S.
With reference to the Board's imposition of page limitations on the briefs to be filed on appeal, Applicants respectfully request this Board to reconsider its decision to afford to the four separate Applicant-parties no more than 75 pages each on the initial briefs (or a total of 300 pages),
while permitting the three opposing parties to each file a brief of 200 pages.-2/
The Licensing Board has made separate and distinct findings of fact against each of the Applicant parties -- which findings relate solely to the individual 2/
Technically, Ohio Edison Company and Pennsylvania Power Company are separate parties in this proceeding.
Although operating in different geographic service areas and subject to different state law. requirements, they are affiliated cor-porations as parent and wholly-owned subsidiary.
Thus, for purposes of calculating page limitations, they can be treated as a single entity.
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. behavior of each particular Applicant vis-a-vis electric entities in its separate service area.
In addition, it has stated separately findings relating to conduct by these Applicants purportedly acting together for anticompetitive purposes.
6.
Quite apart from the substance of these findings, or lack thereof, it cannot be denied that these Applicants are separate and distinct " parties" in this proceeding, Each of them has its own response to the numerous findings directed only at its individual behavior.
That response can be made by a particular Applicant alone.
The other Applicants simply are not in.any position to speak to such individual conduct i
admittedly having no relationship whatsoever to the independent activities of others.
Nor did the Licensing Board presume otherwise.
Indusd, 6ach Applicant was represented below by its own counsel (in addition to the undersigned counsel), and separately presented its defense.
7.
We ret:pectfully submit that each Applicant should be allowed the same opportunity on appeal.
While all of them ars parties to certain contractual arrangements relating to the financing and construction of large-scale generating plants and high-voltage transmission facilities, there exists no single entity known as "CAPCO".
The Applicants remain separate and independent companies, and they continue so to operate.
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. Indeed, the structure of the CAPCO pool arrangement preserves, rather than eliminates, the autonomy of its participants.
8.
Accordingly, the individual Applicants are hard pressed to understand why the 300 pages collectively assigned to them for purposes of briefing their appeal is but one-half the number of pages (600 pages) collectively assigned to the opposition parties.
Even taking into consideration the 100-page limit on reply briefs, Applicants have 200 less pages at their j
disposal.
Moreover, under the Appeal Board's Ordcr, Applicants are limited to but 300 pages in toto to challenge a lengthy decision of 264 pages.
Yet, the opposition parties have been given 600 pages i.tI toto to answer Applicants' 300-page sub-j mission.
9.
We fully recognize the desire of the Appeal Board not to be inundated by prolix briefs.
On the other hand, Ap-plicants are understandably concerned that they not lose, by virtue of too stringent page limitations, the opportunity to demonstrate to this Appeal Board the errors made below.
We are convinced that the Licensing Board can be faulted not only for what it stated in the Initial Decision, but also, and per-haps more importantly, for the considerable evidence of record which the Licensing Board simply ignored or failed to comment upon in any meaningful manner.
Morecever, the failure to apply the nexus standard with respect to many aspects of each Appli-cant's individual conduct is fundamentally wrong -- and in ways
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which impact separately on the different utilities.-
- Also, the Licensing Board's relief is inappropriate in a number of respects, not the least of which is that uniform conditions are indiscriminate 1y imposed upon all of the Applicants with-out regard to the fact that markedly different " inconsistent situations" were found to exist in the different service areas of each Applicant.
In short, no effort was made to tailor the relief to the several " situations" identified.
10.
The hearing in this antitrust proceeding was a long one; the record includes 12,836 transcript pages of tes-timony and some 1331 exhibits.
Under the broad review standard of the Appeal Board, this appeal is clearly not limited to the relatively few record references relied upon below.
- Here, not entirely unlike Consumers Power Company, supra (where the charges were directed at a single utility), the antitrust findings are levelled for the most part at the individual con-duct of five separate private utilities as being in each instance inconsistent with Section 2 of the Sherman Act.
Much less 3/
Applicants do not wish to burden this Appeal Board with unnecessarily long briefs and every precaution will be taken to guard against such a result.
On the other hand, the Licensing Board has made the task at hand all the more difficult by failing to recognize its jurisdictional bounds under the antitrust pro-vision of the Atomic Enery Act (Sec. 105 (c) ).
By using this proceeding as an excuse to undertake a full-blaci antitrust inquiry into all activities of these Applicants, without regard to the nexus standard, the Licensing Board has added immeasurably to the complexity of the briefing process on appeal, since Applicants must address not only those aspects of the Initial Decision which, although erroneous, are legitimately within the jurisdictional reach of the Licensing Board, but also those aspects which fall well outside the permissible scope of the Commission's antitrust review authority.
. attention is devoted to the Applicants' collective behavior as being inconsistent with Section 1 of the Sherman Act.
Each Applicant, as a party to this proceeding, has its own set of exceptions to sustain.
It is terribly important that it be given every chance to do so, not only in terms of the present appeal, but also in terms of possible judicial rami-fications elsewhere in the unlikely event that the Initial Decision is upheld in whole or in part.
11.
For these reasons, Applicants respectfully urge that they be given the same number of total pages for purposes of putting their respective cases before this Appeal Board that have been given to each of the opposing parties.
Whether the briefs in support of exceptions are bound together in a single document, or are bound separately, the individual Ap-plicants must necessarily address that portion of the Initial Decision directed against each of them independently.
We respectfully adzdt that, as a matter of fundamental fairness, Applicants should be accorded the same opportunity to set forth, in an equal number of total pages, their objections to the Initial Decision as the appellees have been accorded to state their reasons for sustaining the Initial Decision.
Respectfully submitted, SHAW, PITTMAN, POTTS & TROWBRIDGE By:
. LY,,01 i \\
a t,_
Wm. Bradford Reynolds
(
Robert E.
Zahler Counsel for Applicants
-Dated: January 24, 1977.
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A UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
)
Docket Nos. 50-440A (Perry Nuclear Power Plant,
)
50-441A Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)
50-501A CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing
" Applicants' Request For Reconsideration Of The Appeal Board's Order Of January 19, 1977" were served upon each of the persons listed on the attached Service List, by hand delivering copies to those persons in the Washington, D. C. area, and by mailing copies, postage prepaid, to all others, all on this 24th day of January, 1977.
SHAW, PITTMAN, POTTS & TROWBRIDGE Q
Q By: Q. 'D ~_A.k1 Um, m.
Wm. Bradford Reynolds Counsel for Applicants
UNITED STATES OF AMERIC.
NUCLEAR REGULATORY COMMISSION
~
Before the Atomic Safety and Licensing Appeal Board In the Matter of
)
)
THE TOLEDO EDISON COMPANY and
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
Docket No. 50-346A COMPANY
)
(Davis-Besse Nuclear Power Station,
)
Unit 1)
)
)
THE CLEVELAND ELECTRIC ILLUMINATING
)
).
Docket Nos. 50-440A
(' erry Nuclear Power Plant,
)
50-441A P
Units 1 and 2)
)
)
THE TOLEDO EDISON COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2'and 3)
)
50-501A SERVICE LIST Alan S.
Rosenthal, Esq.
Ivan W.
Smith, Esq.
Chairman, Atomic Safety and Atomic Safety and Licensing Board Licensing Appeal Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D.
C. 20555 4
John M. Frysiak, Esq.
Jerome E.
Sharfman, Esq.
Atomic Safety and Licensing Board Atomic Safety and Licensing U.S. Nuclear Regulatory Commission Appeal Board Washington, D.
C.
20555 U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 Atomic Safety and Licensing Board Panel Richard S.
Salzman, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C.
20555 Appeal Board U.S. Nuclear Regulatory Commission Docketing & Service Section Washington, D.
C.
20555 Office of the Secretary u
ear egu a ry mm ssion Atomic Safety and Licensing Washington, D.
C.
20006 Appeal Board Panel U.S. Nuclear Regulatory Commission Joseph Rutberg, Esq.
Washington, D.
C.
20555 Benjamin H. Vogler, Esq.
Douglas V.
Rigler, Esq.
Roy P. Lessy, Jr., Esq.
Office of the Executive Chairman, Atomic Safety and Licensing Board Legal Director U.S. Nuclear Regulatory Commission Foley, Lardner, Hollabaugh and Jacobs Chanin Building - Suite 206 Washington, D.
C.
2055s 815 Connecticut Avenue, N.W.
Washington, D.
C.
20006 m.
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c Joseph J. Saunders, Esq.
Terence H. Benbow, Esq.
Antitrust Division A. Edward Grashof, Esq.
Dnpartment of Justice Steven A. Berger, Esq.
Washington, D. C.
20530 Steven B. Peri, Esq.
Winthrop, Stimson, Putnam & Roberts M0lvin G. Berger, Esq.
40 Wall Street Janet R. Urban, Esq.
New York, New York 10005 Antitrust Division P. O. Box 7513 Thomas J. Munsch, Esq.
Wachington, D. C. 20044 General Attorney Duquesne Light Company R1uben Goldberg, Esq.
435 Sixth Avenue David C. Hjelmfelt, Esq.
Pittsburgh, PA 15219 Michael D.
Oldak, Esq.
Goldberg, Fieldman & Hjelmfelt David McNeil Olds, Esq.
i l
Suite 550 Reed Smith Shaw & McClay 1700 Pennsylvania Ave., N.W.
Union Trust Building
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Wanhington, D. C.
20006 Box 2009 i
Pittsburgh, PA 15230 Vincent C. Campanella, Esq.
Director of Law Lee A. Rau, Esq.
l Robert D. Hart, Esq.
Joseph A. Rieser, Jr., Esq.
1st Ass't Director of Law Reed Smith Shaw & McClay City of Cleveland Suite 900 l
213 City Hall 1150 Connecticut Avenue, N.W.
Cleveland, Ohio 44114 Washington, D.
C.
20036 Frank R. Clokey, Esq.
James R. Edgerly, Esq.
Spscial Ass't Attorney General Secretary and General Counsel Room 219 Pennsylvania Power Company Towne House Apartments One East Washington Street Harrisburg, PA 17105 New Castle, PA 16103 Donald H. Hauser, Esq.
John Lansdale, Esq.
Victor F. Greenslade, Jr., Esq.
Cox, Langford & Brown William J. Kerner, Esq.
21 Dupont Circle, N.W.
The Cleveland Electric Washington, D. C. 20036 Illuminating Company Alan P. Buchmann, Esq.
55 Public Square Cleveland, Ohio 44101 Squire, Sanders & Dempsey 1800 Union Commerce Building Michael M. Briley, Esq.
Cleveland, Ohio 44115 Paul M.
Smart, Esq.
Edward A. Matto, Esq.
Fuller, Henry, Hodge & Snyder Richard M. Firestone, Esq.
P. O. Box 2088 Karen H. Adkins, Esq.
Toledo, Ohio 43603 Antitrust Section Russell J. Spetrino, Esq.
30 E. Broad Street, 15th Floor
-Thomas A.
Kayuha, Esq.
Columbus, Ohio 43215 Ohio Edison Company Christopher R.
Schraff, Esc.
47 North Main Street Assistant Attorney General ^
Akron, Ohio 44308 Environmental Law Section 361 E. Broad Street, 8th Floor Columbus, Ohio 43215
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