ML19329D078
| ML19329D078 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 01/12/1977 |
| From: | Campanella V, Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002240073 | |
| Download: ML19329D078 (9) | |
Text
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UNITED STATES OF AMERICA NUCLEAR REGULATORY CCMMISSION Before the Atomic Safety and Licensing Board In the Matter of
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The Toledo Edison Company
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Docket Nos.750~T46Aj The Cleveland Electric
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50-500A Illuminating Company
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50-501A (Davis-Besse Nuclear Power Station,)
Units 1, 2 and 3)
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The Cleveland Electric Illuminating )
Docket Nos. 50-440A Company, et al.
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50-441A (Perry Nuclear Power Plant,
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Units I and 2)
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MOTION OF THE CITY OF CLEVELAND FOR CLARIFICATION OF LICENSE CONDITIONS I
On January 6,1977, the Board issued its decision in these con-solidated proceedings setting forth conditions to attach to the licenses for Davis-Besse Units 1, 2 and 3 and Perry Units 1 and 2 in order to prevent activities under these licenses from creating or maintaining a situation inconsistent with the antitrust laws or the policies underlying those laws.
City of Cleveland (City) believes that the Board intended to require under license condition 2 that Applicants make available to entities in the CCCT all requirements and partial requirements wholesale power. Howeve r, neither license condition 2 nor any other license condition expressly states such a requirement. Therefore, City requests the Board to issue an order
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. clarifying the license conditions and expressly requiring Applicants to make available wholesale all requirements and partial requirements power to entities in the CCCT.
The Board noted (Slip Opinion p. 255) that " relief, therefore,must focus upon providing access to power from nuclear units in a manner...
which... allows it to be used without restraint and with the availability of necessary bulk power service alternatives. " Following the material quoted, the Board cites Hughes, NRC 207, p. 32.
In the cited prepared testimony, Dr. Hughes, in turn, cites to Mozer, NRC 205, pp.
69-71 and relies upon Mozer's statement as to what bulk power services should be available. Among the bulk power services enumerated by Mozer at NRC 205, p. 71, are full requirements firm power and partial require-ments firm power.
The Board has also found that Applicants have engaged in territorial and customer allocation agreements to restrict the availability of wholesale power to entities in the CCCT (Slip Opinion pp.13,112). The Board found that there was a direct relationship between Duquesne Light Company's (Duquesne) refusal to sell power at wholesale and its intent to acquire municipal systems (Slip Opinion p. 95). Moreover, Duquesne's refusal to sell at wholesale contributed substantially to the elimination of munici-pal electric systems (Slip Opinion p.104).
Similarly, Ohio Edison refused to sell partial requirements power to the City of Norwalk (Slip Opinion p. 111). Ohio Edison has refused to 1
- sell bulk power for the purpose of maintaining and extending its monopoly position (Slip Opinion p.146).
Toledo Edison refused to sell partial or whole requirements power to Waterville as part of a plan to acquire the Waterville system (Slip Opinion pp.182-84).
The Cleveland Electric Illuminating Company refused to intercon-nect and sell partial requirements power to City except upon an illegal price fixing condition (Slip Opinion p.190).
The Board has found that one of the principal objectives of the parties forming CAPCO was the exchange of partial requirements firm power to permit staggard construction of generating units (Slip Opinion
- p. 35), and without the CAPCO staggard construction program, CAPCO members could not achieve the same economies of scale (Slip Opinion
- p. M).
If the Applicants require the availability of partial requirements firm power to take advantage of the economies of scale of nuclear genera-tion, a fortiori partial requirements firm power must be available to small entities in the CCCT if they are to take advantage of nuclear generation.
Without partial requirements power it will be impossible for such entities to purchase eccnomical increments of generation from a variety of base load, intermediate and peaking anits. Absent partial requirements power being available, an entity wishiag to become a self-generating entity would be forced to purchase 100% of its requirements plus reserves from what-n
. ever unsubscribed portions of base load units are available. The dis-economies of such a proposal would effectively preclude small entities from participating in nuclear generation.
License condition number 3 providing for wheeling, cannot provide a complete alternative to partial requirements firm power so long as Appli-cants remain the dominant producers of power and energy in the CCCT.
Economic transmission distance limits the area and thus the producers to which an entity may turn for partial requirements power. Indeed, this was one factor considered in defining the relevant geographic market (Slip Opinion pp. 54-56).
Although license condition number 4 provides that small entities may join CAPCO,1/ the Board has stated its intent to provide entities not electing to join CAPCO access to bulk power service options which will further their ability to survive and offer competition in the CCCT.
City believes that the Board effectuated that intent by including in license condition number 2 a requirement that Applicants provide wholesale firm partial and whole requirements power to entities in the CCCT.
1/ The effect of paragraph (d) of condition 4 is such that neither one of the small entities nor any group of them would ever attain voting rights in CAPCO. Accordingly, it is doubtful that any entity would elect to join CAPCO.
, WHEREFORE, City prays that the Board issue its order clarifying its decision by requiring Applicants to make available to entities in the CCCT whole and partial requirements firm power at wholesale.
Respectfully submitted, MC("dg4LJ Reuben Gold David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt, P. C.
1700 Pennsylvania Avenue, N. W.
Washington, D. C.
20006 Vincent C. Campanella Director of Law Robert D. Hart First Assistant Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 Attorneys for City of Cleveland, Ohio January 12, 1977
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i CERTIFICATE OF SERVICE I hereby certify that service of the foregoing " Motion of the City of Cleveland for Clarification of License Conditions" has been made on the following parties listed on the attachment hereto this 12th day of January, 1977, by depositing copies thereof in the United States mail, first class or air mail, postage prepaid.
0 ?k WYA David C. HfelmfeM 1
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ATTACHMENT 4
Douglas V. Rigler, Esq. Chairman Christopher R. Schraff, Esq.
Atomic Safety and Licensing Board Assistant Attorney General Foley, Lardner, Hollabaugh and Jacobs Environmental Law Section 815 Connecticut Avenue, N.W.
361 East Broad Street, 8th floor Washington, D. C.
20006 Columbus, Ohio 43215 Alan S. Rosenthal, Chairman Ivan W. Smith, Esq.
Atomic Safety and Licensing Appeal Board John M. Frysiak, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Richard S. Salaman Jerome E. Sharfman Andrew C. Goodhope, Esq.
Atomic Safety and Licensing Appeal Board 3320 Estelle Terrace U.S. Nuclear Regulatory Commission Wheaton, Maryland 20906 Washington, D. C.
20555 Robert M. Lazo, Esq., Chairman Howard K. Shapar, Esq.
Atomic Safety and Licensing Board Panel Executive Legal Director U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Washington, D. C.
20555 Daniel M. Head, Esq., Member Mr. Frank W. Karas, Chief Atomic Safety and Licensing Board Panel Public Proceedings Branch U.S. Nuclear Regulatory Commission j
Office of the Secretary Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Appeal Board Panel Abraham Braitman, Esq.
U.S. Nuclear Regulatory Commission Office of Antitrust and Indemnity Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Joseph Rutberg, Esq.
Jack R. Goldberg, Esq.
Frank R. Clokey, Esq.
Office of the Executive Legal Director Special Assistant Attorney General U.S. Nuclear Regulatory Conunission Towne House Apartments, Room 219 Washington, D. C.
20555 Harrisburg, Pennsylvania 17105 Benjamin H. Vogler, Esq.
Edward A. Matto, Esq.
Roy P. Les sy, Jr., E sq.
Assistant Attorney General Office of the General Counsel Chief, Antitrust Section Regulation 30 East Broad Street, 15th floor U.S. Nuclear Regulatory Commission Columbus, Ohio 43215 Washington, D. C.
20555
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. ATTACHMENT (contiriued)
Melvin G. Berger, Esq.
David McNeill Olds, Esq.
Joseph J. Saunders, Esq.
William S. Lerach, Esq.
Steven M. Charno, Esq.
Reed, Smith, Shaw & McClay David A. Leckie, Esq.
Post Office Box 2009 Janet R. Urban, Esq.
Pittsburgh, Pennsylvania 15230 Antitrust Division Department of Justice Terrence H. Benbow, Esq.
Post Office Box 7513 Steven B. Peri, Esq.
Washington, D. C.
20044 Winthrop, Stimson, Putnam & Roberts 40 Wall Street Karen H. Adkins, Esq.
New York, New York 10005 Richard M. Firestone, Esq.
Assistant Attorneys General Alan P. Buchmann, Esq.
Antitrust Section Squire, Sanders & Dempsey 30 East Broad Street, 15th floor 1800 Union Commerce Building Columbus, Ohio 43215 Cleveland, Ohio 44115 Russell J. Spetrino, Esq.
Leslie Henry, Esq.
Thomas A. Kayuha, Esq.
Michael M. Briley, Esq.
Ohio Edison Company Roger P. Klee, Esq.
47 North Main Street Fuller, Henry, Hodge & Snyder Akron, Ohio 44308 Post Office Box 2088 Toledo, Ohio 43604 John Lansdale, Jr., Esq.
Cox, Langford & Brown James R. Edgerly, Esq.
21 Dupont Circle, N. W.
Secretary and General Counsel Washington, D. C.
20036 Pennsylvania Power Company One East Washington Street Richard A. Miller, Esq.
New Castle, Pennsylvania 16103 Vice President and General Counsel The Cleveland Electric Illuminating Co.
Donald H. Hauser, Esq.
Post Office Box 5000 Victor A. Greenslade, Jr., Esq.
Cleveland, Ohio 44101 The Cleveland Electric Illuminating Co.
Post Office Box 5000 Gerald.Charnoff, Esq.
Cleveland, Ohio 44101 Wm. Bradford Reynolds, Esq.
Robert E. Zahler, Esq.
Thomas J. Munsch, Jr., Esq.
Jay H. Berstein, Esq.
General Attorney Shaw, Pittman, Potts & Trowbridge Duquesne Light Company 1800 M Street, N. W.
435 Sixth Avenue Washington, D. C.
20036 Pittsburgh, Pennsylvania 15219 Atomic Safety and Licensing Board Panel Docketing and Service Section U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C.
20555 U.S. Nuclear Regulatory Commission Washington, D. C.
20555 1
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. ATTACHMENT (continued)
Joseph A. Rieser, Esq.
Reed, Smith, Shaw & McClay 1150 Conneeticut Avenue, N. W.
Washington, D. C.
20036 John C. Engle, President AMP-O, Inc.
20 High Street Hamilton, Ohio 45012 Michael R. Gallagher, Esq.
630 Bulkley Building 1501 Euclid Cleveland, Ohio 44115 0
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