ML19329D107
| ML19329D107 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 02/07/1977 |
| From: | Benbow T OHIO EDISON CO., PENNSYLVANIA POWER CO., WINTHROP, STIMSON, PUTNAM & ROBERTS |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| NUDOCS 8002240096 | |
| Download: ML19329D107 (32) | |
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February 7, 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 CLECTRIC ILLUMINATING
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Docket No..'
50-346A COMPANY
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(Davis-Besse Nuclear Power Station,
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Unit 1)
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THE CLEVELAND ELECTRIC ILLUMINATING
)
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Docket Nos. 50-440A (Perry Nuclear Power Plant,
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50-441A Units 1 and 2)
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THE TOLEDO EDISON COMPANY, ET AL.
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(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
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50-501A EXCEPTIONS OF OHIO EDISON COMPANY AND PENNSYLVANIA POWER COMPANY TO THE INITIAL DECISION Pursuant to 10 C.F.R. 2.762, Ohio Edison Com-i pany (" Ohio Edison") and Pennsylvania Power Company ("Penn f
Power") hereby take the following exceptions to the Initial Decision rendered by the Atomic Safety and Licensing Board
(" Board") on January 6, 1977.
1.
The Board erroneously found that the activi-ties of Ohio Edison and Penn Power under the licenses sought herein would both maintain and create a situation inconsistent 3,! -
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with the antitrust laws pursuant to Section 105(c) of the Atomic Energy Act.
2.
The Board erroneously interpreted its respon-sibilities under Sections 105(c)(5) and 105(c)(6) of the Atomic Energy Act in all respects.
(pp. 17-28) 3.
The Board did not properly perform its statutory function by its failure to make individual findings as to Ohio Edison's and Penn Power's involvement in any situation alledgedly inconsistent with the antitrust law and any reasonable relationship, i.e. nexus, to Ohio Edison's and Penn Power's activities under the license.
(pp. 107-159) 4.
The Board erroneously failed to consider both in its conduct of the hearing and its Initial Decision Ohio l
Edison's and Penn Power's financial and legal independence and separate identity from each and every other Applicant.
(passim.)
5.
The Board erroneously concluded that althoug,h Ohio Edison's and Penn Power's applications to the Nuclear Regulatory Commission concerned their own individual owner-ship shares of nuclear units, the joinder of their application with those of other Applicants created an identity of interest which justified consideration of all five Applicant companies as a group entity.
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6.
The Board erroneously failed to specify which individual Applicant or Applicants it was describing when it collectively ref' erred to " Applicants."
(passim.)
7.
The Board erroneously found Ohio Edison's and Penn Power's participation in the CAPCO Pool to be evidence of the existence of a relationship between these and the other Applicant companies sufficient to justify findings of Ohio Edison's and Penn Power's vicarious responsibility for the acts of other Applicants.
(passim.)
8.
The Board erroneously performed its responsi '
bilities under 105(c)(6) by imposing license conditions on Ohio Edison and Penn Power having no reasonable relation-ship to any situation allegedly inconsistent with the antitrust laws which would be created or maintained by Ohio Edison's and Penn Power's activities under the license.
(pp. 254-264) 9.
The Board erroneously exercised its respon-sibilities under 105(c)(6) prior to apprising the parties of its findings under 105(c)(5) and affording Ohio Edison and Penn Power an opportunity to comment upon appropriate license conditions.
(pp. 254-264) 10.
The Board erroneously found the CCCT* area to be the relevant geographic market for purposes of its antitrustanalysisohOhioEdisonandPennPower.
(p. 11)
- The Combined CAPCO (Central Area Power Coordination Group)
Company Territories.
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11.
The Board erroneously implied that Ohio Edison and Penn Power could have engaged in meaningful competition with the other Applicants in this proceeding.
(p. 13) 12.
The Board erroneously found that Ohio Edison and Penn Power have secured their service areas against competition so that Ohio Edison and Penn Power are the only available suppliers to the wholesale customers that they serve.
(pp. 12-16) 13.
The Board erroneously found that to the ex-tent Ohio Edison and Penn Power did not compete with the other Applicants, it is the result of agreement or inaction.
(p. 13) 14.
The Board erroneously concluded that Ohio Edison and Penn Eower individually and in combination with the other Applicants have refused to make available to other electric entities the benefits which Ohio Edison and Penn Power obtain through their membership in CAPCO.
(p. 14) 15.
The Board erroneously concluded that Ohio Edison and Penn Power have refused to engage in transactions with other electric entities for anticompetitive purposes
-and which would have otherwise been profitable to Ohia Edison and Penn Power.
(pp. 107-108) 16.
The Board erroneously found that Ohio Edison and Penn Power refused to engage in transactions prior to and subsequent to the formation of the CAPCO group with f
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competing electric entities for third party wheeling, reserve sharing and emergency or economy interchanges.
(p. 14) 17.
The Board erroneously concluded that Ohio Edison and Penn Power had or have a policy of refusing to engage in third party wheeling, emergency interconnection or reserve sharing with non-CAPCO entities in the CCCT, and that these policies have resulted in Ohio Edison's and Penn Power's continued growth in electric generation in the CCCT l
area.
(p. 14) 18.
The Board erroneously concluded that the ac-i tions of Ohio Edison and Penn Power to increase their dominance of certain markets in and of themselves constitute violations of the antitrust laws, including territorial i
allocations, attempts to fix prices, refusals to deal and group boycotts.
(pp. 14-15) 19.
The Board erroneously concluded that Ohio Edison and Penn Power have engaged in mutually supporting actions with the other Applicants in this proceeding which have the result of increasing the domina~nce of each l
l Applicant herein within its own service territory and that l
l such actions may constitute monopolization, attempted monopolization, and a combination to monopolize.
(pp. 12-16) 20.
The Board erroneously found that at the time of the formation of CAPCO Ohio Edison and Penn Power l
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had participated in actions intended or having a forseeable effect of reducing the reliability and the economic viability of competing electric generating and distribution entities within their respective service areas.
(pp.
12-16, 187) 21.
The Board erroneously found that Ohio Edison and Penn Power took actions intended or with a foreseeable effect of eliminating competition with non-Applicants in their retail power transactions.
( p. 187 )
22.
The Board erroneously found that Ohio Edison and Penn Power entered into agreements and understandings the effect of which is to create or maintain a situation inconsistent with the antitrust laws within their own service areas.
(pp. 12-16) 23.
The Board erroneously found that a result of the formation of CAPCO was to deny the competitive entities in the CCCT access to coordinated operation and development.
(pp. 12-16) 24.
The Board erroneously found that Ohio Edi-son and Penn Power denied and intended to deny the benefits of CAPCO membership to competitors in the CCCT.
(p. 193) 25.
The Board erroneously found that from at least August 20, 1967 Ohio Edison and Penn Power were l
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1 parties to a joint plan or combination, one of the pur-poses of which was to exclude CAPCO participation by municipalities.
(p. 193) 26.
The Board erroneously concluded that Ohio Edison's and Penn Power's participation in CAPCO was an act in restraint of trade and violated Sections 1 and 2 of the Sherman Act.
(pp. 194) 27.
The Board erroneously found that re-sponses made by Ohio Edison and Penn Power to Pitcairn's requests were a result of discussions with other Appli-cants and arose from a joint decison on the part of all CAPCO members'to deny CAPCO membership to Pitcairn.
(p.
198) 28.
The Board erroneously found that CEI's ac-tions concerning the City of Cleveland and the City of Painesville and that Duquesne's actions concercing the Borough of Pitcairn were undertaken on behalf of Ohio Edison and Penn Power.
(pp. 225-226) 29.
The Board erroneously found that CEI was the agent for Ohio Edison and Penn Power when CEI nego-tiated with the City of Cleveland concerning CAPCO member-ship and participation in the Perry Nuclear Unit.
(pp.
202, 225-226) k
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8-30.
The Board erroneously found that state-ments, positions, and views, held by Mr. Greenslade, counsel for CEI, and Mr. Hauser, counsel for CEI, should be attributed to Ohio Edison and Penn Power and thus are destructive of arguments raised by Ohio Edison and Penn Power.
(pp. 209-210) 31.
The Board erroneously found Ohio Edison and Penn Power to have been involved in a boycott and refusal to deal arising from their actions on the Cleveland and Pitcairn applications for membership to CAPCO.
(pp.
187-202) 32.
The Board erroneously concluded that Ohio Edison and Penn Power denied entities access to nuclear plants pursuant to common objectives and understandings with other Applicants to limit the availability of bulk power services to non-Applicar.t entities within the CCCT.
(pp. 204-205) 33.
The Board erroneously found that Ohio Edison and Penn Power denied access to nuclear units both in absolute terms and due to unreasonable conditions placed upon participation in these units both individually and in conjunction with other CAPCO companies.
(pp. 204, 211) 34.
The Board erroneously found that Ohio Edison and Penn Power conditioned access to nuclear power upon
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agreements restricting the alienation of the nuclear power by the purchasing entity.
(p. 204) 35.
The Board erroneously found that Ohio Edison's and Penn Power's offer of access contained in Applicants' 44 would maintain a situation inconsistent with the antitrust laws because under the policies enunciated therein, the same range of bulk power services and the regional power exchange transactions which Applicants make available to one another would not be made available to competing entities.
(p. 211) 36.
The Board erroneously failed to find that no electrse entity in competition with or potentially in competition with Ohio Edison and Penn Power ever requested membership in the CAPCO pool.
(pp. 187-211) 37.
The Board erroneously found that membership in the CAPCO pool is necessary to the competitive viability of electric entities in competition with or potentially in competition with Ohio Edison and Penn Power.
(p. 214) 38.
The Board erroneously found that Ohio' Edison 1
l and Penn Power had imposed unreasonable restraints on specific outputs of the Davis-Besse and Perry plants.
(pp. 217-218)
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39.
The Board erroneously found that coordination of installation of generation and transmission in order to further reliability and take advantage of scale economies were not the only intended benefits sought by Ohio Edison and Penn Power in joining CAPCO.
(p. 218) 40.
The Board erroneously failed to find that only a small portion of the transmission network of Ohio Edison and Penn Power was built or is contemplated to be built directly as a result of the addition of the nuclear plants which are the subject of this proceeding. (pp. 219-220) 41.
The Board erroneously found that the sale of nuclear power to Wadsworth and WCOE would be conditioned upon agreement not to use that power for resale to present customers of Ohio Edison.
(p. 224) 42.
The Board erroneously found that Ohio Edison and Penn Power engaged in illegal price-fixing arrangements as a condition of access to the Davis-Besse and Perry nuclear units.
(p. 227) 43.
The Board erroneously found Ohio Edison and Penn Power had a primary interest in the passage of the Ohio Anti-Pirating Act and that passage of this Act permits Ohio Edison and Penn Power to utilize provisions of the Act to suppress competition.
(p. 234)
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44.
The Board erroneously found that Ohio Edison's and Penn Power's current offers of access and offers to sell power at wholesale to entities within their service areas contain anticompetitive provisions.
(pp. 211, 237-238) 45.
The Board erroneously found that Ohio Edison and Penn Power are chargeable with any anticompetitive conduct engaged in by CEI in its dealings with other electric entities in the service area of CEI.
(pp.
57-90) 46.
The Board erroneously found that Ohio Edison and Penn Power are chargeable with any anticompetitve conduct engaged in by Toledo Edison in its dealings with other electric entities in the service area of Toledo Edison.
(pp. 161-186) 47.
The Board erroneously found that Ohio Edison and Penn Power are chargeable with any anticompetitive conduct engaged in by Duquesne in its dealings with other electric entities in the service area of Duquesne.
(pp.91-106) 48.
The Board erroneously found that Ohio Edison and Penn Power possess monopoly power and that they have j
abused that power.
(pp. 107-108)
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- 49.
The Board erroneously failed to consider the generation, transmission and sale of electric energy by Buckeye Power, Inc. in its determination of Ohio Edison's dominance within its service area.
(pp. 32-34) 50.
The Board erroneously found that Ohio Edison and Penn Power account for 99.03% of firm power sales at wholesale for resale within their combined service areas.
(pp. 33-34) 51.
The Board erroneously stated that Ohio Edison's and Penn Power's " dominance" has increased as a result of actions by other Applicants.
(p. 15) 52.
The Board erroneously asserted that the proposed nuclear units would reduce the ability of other entities to compete with Chio Edison and Penn Power.
(p. 15) 53.
The Board erroneously found that Ohio Edison and Penn Power possessed monopoly power solely on the basis of their shares of generation and transmission in their service areas.
(pp. 107-108) 54.
The Board erroneously found that power to control prices and exclude competition was used to increase the monopoly positions of Ohio Edison and Penn Power and that such power was used to consolidate and maintain a monopoly position.
(p. 108) 55.
The Board erroneously found that Ohio Edison's
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and Penn Power's position in their service areas has enabled them to prevent and that they had, in fact, prevented other entities within their service areas from achieving the benefits of coordination and the economies of scale.
(p. 108) 56.
The Board erroneously failed to adequately consider the S.E.C.'s review, under the Public Utility Holding Company Act, of Ohio Edison's purchase of municipal electric systems.
(p. 113) 57.
The Board erroneously found that the record demonstrates that Ohio Edison acquired three potential direct horizontal competitors, eliminated any possibility of supplier competition for their loads, and that the pattern of consolidation by acquisition in its service area continues.
(p. 113) 58.
The Board erroneously found that the record does not demonstrate the circumstances surrounding the acquisitions of the Lowellville and Hiram systems.
(p.
113) 59.
The Board erroneously failed to find the requisite nexus between the situation involving Ohio Edison's negotiations with and acquisition of the Hiram, Lowellville and East Palestine systems and Ohio Edison's activities under the licenses Ohio Edison is seeking in this proceeding.
(p. 113) i l
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60.
The Board erroneously failed to find that Ohio Edison had a reasonable business or technical justification for all positions it advanced in its deal-ings with the Norwalk electric utility.
(pp. 109-113) 61.
The Board erroneously found that Norwalk was a viable self-generating electric utility in 1970.
(pp.
110-111) 62.
The Board erroneously found that Ohio Edison refused to discuss rates for parallel operation with Norwalk.
(p. 110) 63.
The Board erroneously found that the Norwalk electric system had several reasonable opportunities to survive, but that those opportunities were denied to it by Ohio Edison which had an intent to acquire the municipal electric system.
(p. 113) 64.
The Board erroneously found that Ohio Edison refused to buy Norwalk's generation unless Norwalk's distribution system was included.
(p. 110) 65.
The Board erroneously found that sale of the Norwalk system was the only course of conduct which Ohio Edison permitted Norwalk to follow.
(pp. 109-113) 66.
The Board erroneously found that Ohio Edison was the only bidder, and the only potential purchaser for the Norwalk electric system.
(pp. 109-113)
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s 67.
The Board erroneously failed to find the requisite nexus between the situation involving Ohio Edison's negotiations with and acquisition of the Norwalk system and Ohio Edison's activities under the licenses Ohio Edison is seeking in this proceeding.
(pp. 109-113) 68.
The Board erroneously found that Ohio Edison entered into and complied with the terms of territorial and customer allocation agreements at both retail and wholesale.
(pp. 114-118) 69.
The Board erroneously applied a per se approach to its consideration of territorial and customer allocation agreements.
(p. 120) 70.
The Board erroneously found that Ohio Edison had a duty to forego the gathering of retail loads and new opport'nities to serve areas at retail for the u
sole purpose of permitting effective emergence of competi-tion with other investor-owned utilities.
(p. 121) 71.
The Board erroneously found that CEI and Ohio Edison had an agreement to recognize territorial I
boundaries since as early as 1964.
(pp. 118-121) 72.
The Board erroneously failed to fin'd that in.the early 1970's Ohio Edison affirmatively took action to preclude the possibility of adherence by Ohio Edison personnel to territorial or customer allocation arrangements with other electric entities. (p. 123)
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73.
The Board erroneously found a situation-inconsistent with the antitrust laws to exist based in whole or in part on Ohio Edison's participation in terri-torial or customer allocation agreements.
(pp.
114-124) 74.
The Board erroneously failed to find the requisite nexus between the situation involving Ohio Edison's alleged participation in territorial and customer allocation agreements and Ohio Edison's activities under the licenses Ohio Edison is seeking in this proceeding.
(p. 114-124) 75.
The Board erroneously found that Ohio Edison and Penn Power wholesale power contracts contained " restrictive clauses" which eliminated competition for new industrial loads.
(pp. 136-143) 76.
The Board erroneously failed to find that said " restrictive clauses" ameliorated the stricter statutory limitations on full and partial requirement municipal wholesale customers who sought to serve outside their municipal boundaries.
(pp. 136-143) 77.
The Board erroneously failed to find that municipal and cooperative wholesale contracts (containing provisions which alledgedly restricted the areas in which contracting parties could provide electrical service) were in the public interest.
(pp. 136-143) t
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78.
The Board erroneously misstated the con-siderations upon which Ohio Edicon based its decision to unilaterally delete the " restrictive provisions" in its wholesale municipal contracts.
(p. 140) 79.
The Board erroneously found that " banking" was a company policy of Ohio Edison and that it had other than a djg minimis effect on competition.
(pp. 139-140) 80.
The Board erroneously found that under Ohio law municipalities were entitled to compete freely for industrial loads located outside their boundaries.
(p. 138) 81.
The Board erroneously found that contracts between Ohio Edison and its municipal wholesale customers entered into prior to 1965 were reasonably related to activities under the licenses sought in these proceedings.
(pp. 137-138) 82.
The Board erroneously failed to find that the restrictions contained in Penn Power's municipal wholesale contracts concerning the resale of power were appropriate and in accord with Pennsylvania state law.
(pp. 141-143) 83.
The Board erroneously failed to find the requisite nexus between the provisions of Ohio Edison's and Penn Power's wholesale power contracts with municipal i
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and cooperative wholesale customers and Ohio Edison's and Penn Power's activities under the licenses Ohio Edison and Penn Power are seeking in this proceeding.
(pp. 136-143) 84.
The Board erroneously found that Ohio Edi-son would not consider any third-party wheeling, including wheeling among municipalities, wheeling from municipalities to other sources outside the Ohio Edison service area or wheeling from outside the Ohio Edison service area.
(p. 130) 85.
The Board erroneously found that Ohio Edison by refusing to wheel has denied to entities in its service area the advantages of coordination and development in operations and significantly contributed to a situation inconsistent with antitrust laws.
(p. 129) 86.
The Board erroneously considered evidence relating to alleged impropriety involving Ohio Edison's participation in the Buckeye project.
( pp. 125-128 )
87.
The Board erroneously found that Ohio Edi-son's desire to enter a buy / sell agreement with Ohio Power rather than a wheeling agreement with Buckeye Power, Incorporated, constituted a refusal to wheel.
(pp. 127-128) 88.
The Board erroneously found that Ohio Edison's decision to participate in a buy / sell arrangement, rather than to " wheel" Buckeye Power, had an impact on the power options available to Norwalk and Newton Falls.
(pp. 127-128) l
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89.
The Board erroneously considered evidence of an alleged refusal by Ohio Edison to wheel for the Orrville electric system.
90.
The Board erroneously found that Orrville, Ohio requested wheeling services from Ohio Edison and was specifically refused.
(p. 128) 91.
The Board erroneously found that Ohio Edison's refusals to wheel wete so negative and final in tenor' as to discourage further efforts by municipalities to develop necessary engineering details for their wheeling proposals.
(pp. 128-129) 92.
The Board erroneously found that there is no record that Ohio Edison ever advised municipalities concern-ing the lack of specificity of their wheeling proposals.
( p. 129 )
1 93.
The Board erroneously failed to find the requisite nexus between the situation involving Ohio Edison's alleged refusals to wheel power and Ohio Edison's activities under the licenses Ohio Edison is seeking in this proceeding.
(pp. 125-128) 94.
The Board erroneously found that until June 20, 1968 Ohio Edison f ailed to agree to a means by which Buckeye Cardinal Power could be provided to the seven rural electric cooperatives located in Ohio Edison's service area.
(p. 126)
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95.
The Board erroneously found that Ohio Edison entered into the Buckeye buy / sell arrangement because it preferred co-ops not have their own transmission.
(p. 127) 96.
The Board erroneously failed to find that any prohibition against reselling Buckeye Power handled by Ohio Edison comported fully with the anti-pirating statute of Ohio.
(pp. 136-137) 97.
The Board erroneously failed to properly con-1 sider the December 19, 1967 business review letter of the Department of Justice which favorably considered the entirt Buckeye arrangement and specifically approved of the buy /sel.'
arrangement between Ohio Edison and Ohio Power.
(pp. 125-1283 98.
The Board erroneously failed to find the requisite nexus between Ohio Edison's involvement in the Buckeye arrangement and Ohio Edison's activities under the licenses Ohio Edison is seeking in this proceeding.
(pp.
125-128, 136-137) 99.
The Board erroneously found that Ohio Edison had failed to act reasonably and in a manner consistent with the antitrust laws during the WCOE negotiations.
(pp. 135-136) 100.
The Board erroneously failed to properly per-ceive the relationship between the settlement agreement approved by the Federal Power Commission and the negotiations
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between Ohio Edison and WCOE conducted pursuant to that settlement agreement.
(pp. 129-136) 101.
The Board erroneously failed to find that the R.W. Beck engineering firm was engaged solely by WCOE to make a study concerning possible power supply arrangements for that group.
(p. 130) 102.
The Board erroneously found that all recom-mendations in the WCOE-Beck study met an initial test of acceptability imposed by Ohio Edison.
(p. 130) 133.
The Board erroneously failed to find that neither WCOE nor any of its members ever specifically requested access to Ohio Edison's share of the nuclear units involved in this proceeding.
(pp. 129-136) 104.
The Board erroneously found that Ohio Edison has denied WCOL reasonable and practical access to nuclear generation.
( pp. 129-136 )
105.
The Board erroneously found that Ohio Edison imposed restrictions on WCOE in the course of negotiations held pursuant to the FPC settlement agreement.
(p. 130-135) 106.
The Board erroneously failed to find that Ohio Edison was ready to provide power to WCOE on the prepayment of power purchases concept which would have provided to WCOE the lowest priced power concerning which
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evidence was submitted in this proceeding.
(pp. 129-136) 107.
The Board erroneously found that WCOE. con-sciously reconsidered the suitability of the prepayment of power purchase concept.
(p. 135) 108.
The Board erroneously found that Ohio Edison has denied to members of WCOE the benefits of coordinated operation and development.
(pp. 129-136) 109.
The Board erroneously found that Ohio Edison has hindered competition with WCOE members.
(pp. 136-141) 110.
The Board erroneously found that Ohio Edison denied WCOE members the " benefits of competition" among Ohio Edison and electric utilities located outside the Ohio Edison service area.
(p. 136) 111.
The Board erroneously found that Ohio Edison flatly refused to provide wheeling services to the wholesale customers of Ohio Edison (WCOE) and that such refusal con-tinues.
(p. 125) 112.
The Board erroneously failed to find the requisite nexus between Ohio Edison's negotiations with WCOE and Ohio Edison's activities under the licenses Ohio Edison is seeking in this proceeding.
(pp. 129-136) 113.
The Board erroneously failed to find that Ohio Edison's financing and ownership proposals to Newton Falls, Niles, Orrville and Norwalk did not constitute
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refusals to deal because their sole purpose was fairly to place the burden of cost upon those communities which would most benefit.
(pp. 146-150) 114.
The Board erroneously failed to find that the terms offered by Ohio Edison to Newton Falls were reasonable considering the financial realities of the time and the technical requirements of the connection sought.
(pp. 143-146) 115.
The Board erroneously found that any new busi-ness lost by Newton Falls would go to Ohio Edison.
(p. 144)-
116.
The Board erroneously failed to find that Newton Falls examined several options other than purchasing power from Ohio Edison in its efforts to ease its depen-dence upon its own oil and gas fired generators.
(pp.
143-146) 117.
The Board erroneously found that the initial power supply proposals by Chio Edison to Newton Falls were attempts to restrict competition between them.
(pp. 143-146) 118.
The -Board erroneously found that Ohio Edison has refused to sell bulk power and has made sham offers to interconnect.
( pp. 146-150 )
119.
The Board erroneously concluded that the testi-many of Mr. William Lewis was " generally reliable."
(p. 176)
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120.
The Board erroneously failed to find the requisite nexus.between Ohio Edison's financing and ownership proposals to Newton Falls, Niles, Orrville, and Norwalk and Ohio Edison's activities under the licenses Ohio Edison is seeking in this proceeding.
(p. 143-150) 121.
The Board erroneously found that Ohio Edison and Penn Power refused to make power available in higher voltages thus preventing municipalities from competing for industrial loads.
(pp. 150-153) 122.
The Board erroneously failed to find that Ohio Edison refused to file rates for certain 138 KV ser-vice for the reason that to do so would have violated the FPC rules.
(pp. 150-153) 123.
The Board erroneously failed to find that Ohio Edison gave interested parties sufficient indications short of filing as to what the 138 KV rate would be.
(pp.
150-153) 124.
The Board erroneously found that Ohio Edi-son and Penn Power did not make sufficient information available to inquiring municipalities to enable them to make an adequate evaluation of the financial feasibility of the construction of high voltage facilities.
(pp. 150-153) 125.
The Board erroneously f ailed to find that l
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Penn Power refused to file rates for certain 69 KV service for the reason that to do so would have violated the FPC rules.
(pp. 150-153) 126.
The Board erroneously found that the Federal Power Commission ordered Penn Power to file a rate increase.
(p. 152) 127.
The Board erroneously found that the effect of the refusal by Penn Power to file a 69 KV rate has been to deny Ellwood City the opportunity to compete for indus-trial customers within the borough.
(pp. 152-153) 128.
The Board erroneously failed to find the requisite nexus between Ohio Edison's and Penn Power's alleged refusals to provide high voltage service and the activities under the licenses Ohio Edison and Penn Power are seeking in this proceeding.
(pp. 150-153) 129.
The Board erroneously found that Penn Power relied on " Pennsylvania rate structures and territorial schemes" to deny power supply options to municipalities in its area.
(pp. 234-235) 130.. The Board erroneously concluded that Penn Power's reliance upon and obedience to provisions of Pennsylvania law is evidence of activity inconsistent with the antitrust laws.
(pp. 13, 234-235) 131.
The Board erroneously dismissed the fact that
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Pennsylvania law prohibits retail competition between electric entities in the State.
(p. 187) 132.
The Board erroneously found that Penn Power prevented Ellwood City from serving industr ial customers.
(pp. 142-143, 152-153) 133.
The Board erroneously concluded that the possibility that other electric entities could obtain access to economies of scale which would be reflected in retail rate schedules must have had some restraining influence on Penn Power.
(p. 187) 134.
The Board erroneously found that Ohio Edison was interested in rigging the CAPCO arrangements so that Penn Power would receive favorable treatment with respect to pool allocations of initial capacity while municipal systems seeking membership would not receive the same benefit.
(p. 190) 135.
The Board erroneously failed to find the requisite nexus between Penn Power's dealings with other electric entities in its service area and the licenses Ohio Edison and Penn Power are seeking in this pro-ceeding.
(pp. 107-159) 136.
The Board erroneously found that Ohio E'dison and Penn Power charge municipalities perchasing at wholesale 1
significantly higher rates than they charge retail industrial
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c customers for comparable sales and that the difference between these rates is not cost justified.
(p. 153-160) 137.
The Board erroneously found that price dis-crimination is an important factor in limiting the ability of municipalities to compete for industrial loads.
(p. 154) i 138.
The Board erroneously analyzed the comparison between wholesale and industrial rates charged by Ohio Edison and Penn Power in finding that a price squeeze situation existed in Ohio Edison's and Penn Power's service areas.
(pp. 153-160) 139.
The Board erroneously failed to find that thr:
comparative price analysis involved in a price squeeze charge is beyond the competence of the Board and that pursuant to the holding in FPC v. Conway Corp., 426 U.S. 271 (1976),
should be left to the Federal Power Commission.
(pp. 153-160) 140.
The Board erroneously failed to find that Ohio Edison's and Penn Power's retail industrial rates have been found to be reasonable by the Pennsylvania Public utility Commission and the Public Utility Commis-sion of Ohio and their wholesale rates have been found to be reasonable by the Federal Power Commission.
(pp.
153-160) 141.
The Board erroneously failed to find that a
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j municipality can profitably compete for industrial customers under the present rates.
(pp. 153-160) 142.
The Board erroneously found that the rates charged by Ohio Edison and Penn Power to the municipalities they serve at wholesale were discriminatory and prejudicial.
( pp. 151-160 )
143.
The Board erroneously placed the burden of proof on Ohio Edison and Penn Power to show that their rates were cost justified not only in and of themselves but with regard to the difference between the industrial rate and the municipal wholesale rate.
(pp. 353-160) 1 144.
The Board erroneously found that the pricing
" scheme" employed by Ohio Edison and Penn Power is a price squeeze even where the only effect it had upon municipali-ties was to limit the amount of profits they may realize.
(p. 157) 145.
The Board erroneously f ailed to find the requi-site nexus between the alleged price squeeze created by the rates charged by Ohio Edison and Penn Power to their wholesale, and retail industrial customers and Ohio Edison's and Penn Power's activities under the licenses Ohio Edison and Penn Power are seeking in this proceeding.
(pp. 153-160) 146.
The Board erroneously failed to find that Ohio Edison and Penn Power were not Applicants with l
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reference to the Davis-Besse Nuclear Power Station, Unit #1, and erroneously failed to provide license conditions separately for that facility.
147.
The Board erroneously applied conditions to
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Ohio Edison's and Penn Power's licenses which are inappropriate as a. remedy for the situation which alledgedly exists in their service areas and which fail to recognize the status of Ohio Edison and Penn Power as Applicants separate and distinct from the other Applicants in this proceeding.
Respectfully submitted, WINTHROP, STIMSON, PUTNAM & ROBERTS L a.+Cw b~-)
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Terence H. Benbow A Member of the Firm 40 Wall Street New York, New York 10005 Tel. No. (212) 943-0700 Attorneys for Ohio Edison Company Dated:
February 7, 1977 and Pennsylvania Power Company OF COUNSEL:
Steven A. Berger Steven B. Peri l
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
" Exceptions Of Ohio Edison Company And Pennsylvania Power Company To The Initial Decision" 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 7th day of February, 1977.
SHAW, PITTMAN, POTTS & TROWBRIDGE m
By:
ld-ENik \\
~i Wm. Bradford'Reynoldsx
UNITED STAICS OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board e
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 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 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.S.
Nuclear Regulatory Commission 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 l
Foley, Lardner, Hollabaugh and Jacobs Chanin Building - Suite 206 Washington, D.
C.
205:3 815 Connecticut Avenue, N.W.
Washington, D.
C.
20006
Joseph J.
Saunders, Esq.
Terence H. Benbow, Esq.
Antitrust Division A. Edward Grashof, Esq.
D partment of Justice Steven A. Berger, Esq.
Washington, D. C; 20530 Steven B. Peri, Esq.
Winthrop, Stimson, Putnam & Roberts M lvin G.
Berger, Esq.
40 Wall Street Jenet R.
Urban, Esq.
New York, New York 10005 Antitrust Division P. O. Box 7513 Thomas J. Munsch, Esq.
Washington, D.
C.
20044 General Attorney Duquesne Light Company Rsub'n Goldberg, Esq.
435 Sixth Avenue e
David C.
Hjelmfelt, Esq.
Pittsburgh, PA 15219 Michael D.
Oldak, Esq.
Goldberg,'Fieldman & Hjelmfelt David McNeil Olds, Esq.
Suite 550 Reed Smith Shaw & McClay 1700 Pennsylvania Ave., N.W.
Union Trust Building Wpshington, D.
C.
20006 Box 2009 Pi'ttsburgh, PA 15230 Vincent C. Campanella, Esq.
Director of Law Lee A. Rau, Esq.
Robert D.
Hart, Esq.
Joseph A.
Rieser, Jr., Esq.
1st Ass't Director of Law Reed Smith Shaw & McClay City of Cleveland Suite 900 213 City Hall 1150 Connecticut Avenue, N.N.
Clcveland, Ohio 44114 Washington, D.
C.
20036 Frank R. Clokey, Esq.
James R.
Edgerly, Esq.
Spccial Ass't Attorney General Secretary and General Counsel Room 219 Pennsylvania Power Company Towne House Apartments One East Washington Street Enrrisburg, 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.,
Th@ Cleveland Electric Washington, D. C.
20036 Illuminating Company 55 Public Square Alan P. Buchmann, Esq.
Cicveland, Ohio 44101 Squire, Sanders & Dempsey 1800 Union Commerce Building Michael M. Briley, Esq.
Clevela'nd, Ohio 44115 Paul M.
Smart, Esq.
Fuller, Henry, Hodge & Snyder Edward'A. Matto, Esq.
P.
O.
Box 2088 Richard M. Firestone, Esq.
Toledo, Ohio 43603 Karen H.
Adkins, Esq.
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, Esq.
76 South !ain Street Akron, Oh(io 44308 Assistant Attorney General Environmental Law Section 361 E.
Broad Street, 8th Flecr Columbus, Ohio 43215
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