ML19329D293
| ML19329D293 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 10/07/1976 |
| From: | Greenslade V CLEVELAND ELECTRIC ILLUMINATING CO. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002270858 | |
| Download: ML19329D293 (7) | |
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?h UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of
)
THE TOLEDO EDISON COMPANY and THE CLEVELAND ELECTRIC ILLUMINATING
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DocketNo(0-346)A 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 TOLED0 EDIS0N COMPANY, ET AL.
)
(Davis-Besse Nuclear Power Station,
)
Docket Nos. 50-500A Units 2 and 3)
)
50-501A STATEMENT OF THE CLEVELAND ELECTRIC ILLUMINATING COMPANY IN RESPONSE TO BOARD ORDER OF SEPTEMBER 20, 1976 Under date of September 20, 1976, the Licensing Board announced that it had "become aware" of newspaper reports of September 9,1976 with respect to the Cleveland Municipal Electric Power System and directed the parties:
"to consider what impact, if any, this announce-ment and the consummation of the acquisition would have in connection with the proposed find-ings of fact and conclusions of law filed by the parties in these proceedings."
The short answer is that neither the " announcement" nor the
" consummation" of the transaction has any impact on the proposed findings and conclusions. TheBoardshouldproceedtodecidethismatteronjhe record before it.
8002270 f58 p
. We presume that the Board has reference to an article appearing in the September 9 Plain Dealer, the operative portions of which read as follows:
"An agreement in principle to sell Cleveland's Municipal Light Plant to the Cleveland Electric Illuminating Co. for $158.5 million over 30 years was announced yesterday by Mayor Ralph J. Perk.
"The proposed sale would include all assets of Muny Light, including its generating plant, sub-stations, transmission lines and accounts."
The powers of the City of Cleveland with respect to the operation of MELP (or, for that matter, any other utility service) are derived directly from the Ohio Constitution, Swank v. Village of Shiloh, 166 Ohio St.
415, 142 N.E. 2d 586 (1957), which provides, in Article XVIII, Section 4:
"Any municipality may acquire, construct, own, lease and operate within or without its corporate limits, any public utility the products or service of which is or is to be supplied to the munici-pality or its inhabitants, and may contract with others for any such product or service. The ac-quisition of any such public utility may be by condemnation or otherwise, and a municipality may acquire thereby the use of, or full title to, the property and franchise of any company or person supplying to the municipality or its inhabitants the service or product of any s'uch utility."
(emphasis supplied.)
It is apparent, however, that while the City of Cleveland may "own... and operate" a utility service, it is by no means required to do so.
Indced, as the record shows, the overwhelming majority of Ohio munici-
i
~ palities have chosen not to own and operate electric utilities. No one has suggested that the failure of, say, Shaker Heights or Toledo to choose to own and operate its own electric system has anything whatsoever to do with l
applicants' activities under the license. Equally obviously, the election by the City of Cleveland to cease to own and operate such a system is the business of the City of Cleveland alone, acting, in this respect, as the sovereign.
The sovereign having made this decision, it can surely dispose of the property which it no longer wishes to own and operate. Thus, if the City chooses to sell its electric plant to The Illuminating Company, or any-one else, that, again, is its own business and can scarcely give rise to a situation inconsistent with the antitrust laws attributable to any activity J
under the license.
In this connection, we remind the Board that the record in this I
proceeding affirmatively demonstrates that any such transaction between the City and The Illuminating Company will not be consummated unless it is first approved by the Cleveland City Council, acting in this instance as the sovereign under a specific constitutional provision, the United States District Court for the Northern District of Ohio, and the Federal Power Commission, with findings that the transaction involves no antitrust impediment. And this is true whether or not any claimed impediment is related to these licensing pro-ceedings. Thus, while we believe it irrelevant here, the Board can rest assured, on the record already before it, that the public interest will be fully protected.
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. It is true that, if the proposed sale is accomplished, certain of the findings and conclusions proposed by the opposing parties, with respect to bcth past and prospective relations between The Illuminating Company and the City of Cleveland would essentially become academic.
However, since, as we have shown in Applicants' Supporting Brief, there is in any event no record support for these requested findings and con-clusions adverse to the Applicants, it cannot readily be maintained that the decision by the City of Cleveland to sell its electric system will have any impact whatsoever on the existing system.
Nor would this transaction have any impact even if our opporents were te prevail (and we think they should not); the proposed license condi-tions of our adversaries could be attached jn_ haec verba whether or not Cleveland chooses to sell its electric system.
The fact of the matter is that the record is closed.
It is an extremely lengthy record and has already been reopened several times. The Board should proceed to decision and it can do so confident that, on this particular point, the interests of all the parties and of the public are protected.
Respectfully submitted, VICTOR F. GREENSLADE, JY.
Attorney for The Cleveland Electric Illuminating Company October 7, 1976
CERTIFICATE OF SERVICE
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I hereby certify that service of the foregoing " Statement of The Cleveland Electric Illuminating Company in Response to Board Order of September 20, 1976" has been made on the parties listed on the attach-ment hereto this 7th day of October,1976, by depositing copies thereof in the United States mail, first class postage prepaid.
Victor F. Greenslade,9r.
Attachment 4
l t
l
L...TED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing 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 SERVICE LIST Douglas V.
Rigler, Esq.
Docketing & Service Section Chairman, Atomic Safety and Office of the Secretary Licensing Board U.S. Nuclear Regulatory Commission Foley, Lardner, Hollabaugh Washington, D.
C.
20555 and Jacobs Chanin Building - Suite 206 Joseph Rutberc, Esq.
- nj i
o Eby 815 Connecticut Avenue, N.W.
ey P e
Washington, D.
C.
20006 Jack R.
Goldberg, Esq.
Office of the Executj're Legal Director Ivan W.
Smith, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D.
C.
20555 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Joseph J.
Saunders, Esq.
Antitrust Division John M.
Frysiak, Esq.
Department of Justice Atomic Safety and Licensing Board Washington, D.
C.
20530 U.S.
Nuclear Regulatory Commission Washington, D.
C.
20555 Steven M. Charno, Esq.
Melvin G.
Berger, Esq.
Atomic Safety and Licensing Janet R.
Urban, Esq.
Board Panel Antitrust Division U.S.
Nuclear Regulatory Commission Department of Justice 1
Washington, D.
C.
20555 P.
O. Box 7513 Washington, D.
C.
20044
, Reuben Goldberg, Esq.
Th,omas J. Munsch, Esq.
David C. Hjelmfelt, Esq.
General Attorney Michael D. Oldak, Esq.
Duquesne Light Company Goldberg, Fieldman & Hjelmfelt 435 Sixth Avenue Suite 550 Pittsburgh, PA 15219 1700 Pennsylvania Ave., N.W.
Washington, D. C.
20006 David McNeil Olds, Esa.
Vincent C. Campanella, Esq.
Reed Smith Shaw & McClay Director of Law Union Trust Building Robert D. Hart, Esq.
Box 2009 1st Assistant Director of Law Pittsburgh, PA 15230 City of Cleveland 213 City Hall Lee A.
Rau, Esq.
Cleveland, Ohio 44114 Joseph A.
Rieser, Jr., Esq.
Reed Smith Shaw & McClay Frank R. Clokey, Esq.
Suite 900 Special Assistant 1150 Connecticut Avenue, N.W.
Attorney General Washington, D.
C.
20036 Room 219 Towne House Apartments Edward A. Matto, Esq.
Harrisburg, PA 17105 Richard M.
Firestone, Esq.
Karen H. Adkins, Esq.
h!$$9
.b$ee$siabe)*Jr.,Esq.
Antitrust Section-William J.
Kerner, Esq.
30 E. Broad Street, 15th Floor The Cleveland Electric Columbus, Ohio 43215 Illuminating Company 55 Public Square Christopher R.
Schraff, Esq.
Cleveland, Ohio 44101 Assistant Attorney General Environmental Law Section 361 E. Broad Street, 8th Floor Michael M.
Briley, Esq.
Columbus, Ohio 43215 Roger P.
Klee, Esq.
Paul M.
Smart, Esq.
James R.
Edgerly, Esq.
Fuller, Henry, Hodge & Snyder Secretary and General Counsel P. O. Box 2088 Pennsylvania Power Company Toledo, Ohio 43603 One East Washington Street New Castle, PA 16103 Russell J.
Spetrino, Esq.
Thomas A.
Kayuha, Esq.
John Lansdale, Esq.
Ohio Edison Company Cox, Langford & Brown 47 North Main Street 21 Dupont Circle, N.W.
Akron, Ohio 44308 Washington, D.
C.
20036 Alan P. Buchmann, Esq.
Terence H.
Benbow, Esq.
A. Edward Grashof, Esq.
Squire, Sanders & Dempsey
, Steven A. Berger, Esq.,__
1800 Union Commerce Building Steven B.
Peri, Esq.
Cleveland, Ohio 44115 Wi,nthrop, Stimson, Putnam
& Roberts l
40 Wall Street New York, New York 10005 1
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