ML19329D296
| ML19329D296 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 01/26/1977 |
| From: | Lessy R NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8002270864 | |
| Download: ML19329D296 (22) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD i
In the Matter of
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THE TOLEDO EDISON COMPANY and NRC Docket Nosf % 346A 2 THE CLEVELAND ELECTRIC ILLUMINATING
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50-500A COMPANY 50-501A (Davis-Besse Nuclear Power Station, Units 1, 2 & 3)
THE CLEVELAND ELECTRIC ILLUMINATING NRC Docket Nos. 50-440A COMPANY, ET AL.
50-441A (Perry) Nuclear Power Plant, Units 1&2
)
RESPONSE OF NRC STAFF TO APPLICANTS' l
MOTION FOR AN ORDER STAYING, PENDENTE i
LITE THE ATTACHMENT OF ANTITRUST CONDITIONS l
I.
Introduction In its Initial Decision (Antitrust) dated January 6,1977 (LPB-77-1, 1/
5 NRC (January 6,1977) this Board inter alia concluded:
We have found Applicants to be engaged in activities which violate Section 1 of the Shennan Act, Section 2 of the Sherman Act and Section 5 of the Federal Trade Coninission Act... Their activities also contravene the policies underlying those statutes. (Slip Op. at 252)... The issuance of licenses for the nuclear units involved in these proceedings without appropriate license conditions will lead to the creation and maintenance of a situation inconsistent with the antitrust laws. (Slip Op. at 254).
In order to remedy the proscribed situation inconsistent with the anti-trt:st laws, this Board ordered that ten antitrust license conditions be attached to licenses for the Davis-Besse 1, 2 and 3 and Perry 1 and 2 Nuclear Units.
l 1/ In arriving at this conclusion, this Board made a number of specific legal and factual findings. These specific findings help define the existing situation inconsistent with *.ae antitrust laws in the context of which Applicants' motion must be judged.
For convenience and for possible reference in the event of appeal, a number of these findings l
are summarized in Appendix 1 to this pleading.
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2-By motion dated January 14, 1977, Applicants filed before the Atomic Safety and Ocensing Appeal Board their " Motion For An Order Staying, Pendente Lite, The Attachment Of Antitrust Conditions". Applicants motion requests a stay of all of the ten license conditions ordered by this Board. By Memorandum and Order dated January 17, 1977 (ALAB-364),
5 NRC
, the Appeal Board referred Applicants' motion to this Board initially, and instructed this Board to decide the motion as expeditiously as possible following the receipt of responses to it from the other parties.
1 II. Have Acolicants Established Whether Good Caute Exists For Staying The Effectiveness of the Initial Decision?
In determining whether good cause exists for staying the effective-ness of an Initial Decision pursuant to 10 CFR 2.764, the Appeal Board has adopted the criteria established by the Ceurt of Appeals for the District of Columbia in Virginia Petroleum Jobbers Association v. Federal Power 2/
Comission, 259 F.2d 921, 925 (1958). - The four criteria set forth by the tourt of Appeals for the District of Columbia.to assess.whether the i
2/ Puolic Service Comoany of New Pamoshire (Seabrook Station, Units 1 &
2), ALA8-338, NRCI-76/7 10, 13 (July 14, 1976); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear 1), ALAB-192, 7 AEC 420; Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-159, 7 AEC 478).
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i petitioner has "shown sufficient grounds warranting the exercise of the
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Court's power to grant the extraordinary relief requested" are:
(1) Has the movant made a strong showing that it is likely to prevail on the merits of its appeal?
(2) Has the movant shown that, without such re'ief, it will be irreparably injured?
(3) Would the issuance of a stay substantially harm other parties interested in the proceeding?
(4) Where lies the public interest?
These criteria are next discussed in light of Applicants' motion.
A.
Has The Movant !!ade A Strong Showing That It Is Likely To Prevail On The Merit,s Of Its Appeal ?
This criterion has been described by.the court as follows:
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Without such a substantial indication of probabl.e success, there would be no justification for the court's intrusion into the ordinary processes of administration and judicial review.;4,/
Applicants contend that the Board did not take into account the alleged
- economic and legal barriers to competition "in the electric utility industry which requires evaluation of antitrust principles on other than the " pro-competitive presumption re' lied upon below." Initially, Staff would point i
out that the focus of this proceeding was not the electric utility industry 3/ 259 F.2d 921, 925.
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_ in general but the position, conduct and activities of five dominant utilities in the CCCT, and the relationship that this has to the requested licenses to construct and operate nuclear facilities. However, the Board I
dealt with Applicants' arguments concerning the alleged barriers to i
competition in detail in its Initial Decision (Slip Op. at 233-236; 100; 160; 166; 171; and 187). The Board also considered in detail the impli-cations and ramifications of the recent case of Cantor v. Detroit Edison Co.
U.S.
, 96 S. Court 3110 (1976), wherein the Board concluded that Cantor negated Applicants' arguments that the presence and observance of a state regulatory scheme precluded the possibility of finding that electric power companies subject to the scheme may violate the antitrust laws. (Slip Op. at 233). The Board also reviewed Applicantsd " competition" arguments in the context of and teachings of U.S. v. Otter Tail Power Company, 410 U.S. 366 (1973) where substantive antitrust violations were examined notwithstanding the presence of state and federal regulatory schemes (Slip Op. at 236). -5/
Thus, Staff is of the view that Applicants have not established a substantial indication of probable success on appeal with respect to this principle contention.
5/ The Board further examined the current state regulatory schemes in Ohio and Pennsylvania and concluded that both states have regulatory
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s.chemes which contemplate competition (Slip Op. 236-237).
It should further be noted that with respect to the sale of wholesale power and other types of coordination involving the exchange of bulk power, state regulatory agencies do not have jurisdiction.
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. Applicants' also contend that they are likely to prevail on the merits because the Board applied a nexus standard that has no relation to the practicalities of the electric utility industry. On pages 216-224 of its Initial Decision the Board made specific findings with respect to the question of whether there has been established a meaningful nexus between the situation inconsistent with the antitrust law and the activities under the license. The Board has also issued a number of other rulings on the subject of nexus, both before and after the Appeal Board's determination in Kansas Gas and Electric and Kansas City Power and Light Company (Wolf Creek Generating Station, Unit No.1), ALAB-279, i NRC 559. Those rulings on nexus include, " Ruling of the Board With Respect to Applicant's Proposal for Expediting The Antitrust Hearing Process, June 30,1975; 6th Prehearing Conference Order October 2,1975 page 5; " Ruling of the Board on Applicant's Motion for Summary Disposition of September 23, 1975. In response Applicants' contend that the nexus standard followed by the Board "has been simplistic and overly-glib". The Board's discussions and findings with respect to nexus have clearly been consistent with and mindful of the definition of the phrase " activities under the license" by the Appeal Board in Wolf Creek, suora., and, the nexus standard as described by the Appeal Board in Wolf Creek, suora, and in the Commission's Waterford II decision. -6/
5/ Louisiana Power and Light Co. (Waterford Steam Electric Generating Station, Unit 3) 6 AEC 619 at 620 (1973).
6-Without any foundation or legal citations in support of its position, Applicants complain that the Licensing Board failed to make specific find-ings as to whether Applicants possess monopoly power in relevant markets or
" possess a degree of market power sufficient to suggest the dangerous 7
probability that they will acquire monopoly power in any relevant ma
'Not only does such a complaint ignore specific findings by the Board (Slip Op. at 106-107, 124, 146, 22-26) but a finding of monopoly power is not a prerequisite to the concluding that a situation inconsistent with the antitrust laws exists. The matters in controversy under Prehearing Con-8 ference Order No. 2.] learly indicate that with respect to matters in c
controversy 4 through 8, the key issue is whether Applicants' stipulation of dominance gives them the ability to hinder or preclude competiticn and whether or not such ability if it exists has been used by Applicants in an anticompetitive manner. Affirmative responses to these issues in controversywere specifically made by the Board (see for example Slip Op.
pages251-253). As the Board recognizes in its opinion "the stipulation of (their) Applicants dcminance renders any exclusionary conduct suspect 9
-.lLike-United States v. Philadelchia National Bank 374 U.S. 321, 363, 371 (1963).
wise, the, Board notes that it is well established that a firm which has significan
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If Applicant's Motion page 8.
8f July 25,1974.
9/ Slip Op. at 18.
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7-market control cannot refuse to deal or discriminate in its dealings with its customers for the purpose of preserving or extending its monopoly position.
As the Board concludes on page 24 of its Slip Opinion, "a company possessing monopoly power cannot willfully act to maintain or expand that power without violating the antitrust laws." It is in the context of Applicant's stipulation of dominance and the Board's specific 11 /
findings of dominance, in fact.
that Applicants exclusionary conduct has been examined by the Board. Thus the Board has analyzed and reviewed the joint activities in concert by Applicants to restrain or limit competition and to exclude competitors or potential competitors and con-cluded that such activities violate section 1 of the Sherman Act (Slip Op. at 18). The Board has also concluded that when companies possessing the dominant share of a relevant market act jointly to restrain or limit competition or to exclude would-be competitors Section 2 of the Sherman Act is violated (Slip Op. at 18). The competitive effect of suca activities 12/
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was analyzed by the Board.
The Board also found certain activities (such as group boycotts, concerted refusals to deal and customer allocation agreements) to be oer g unlawful, and hence inconsistent with the anti-trust laws.
10/ Otter Tail power Ccmoany v. U.S. 410 U.S. 366 (1973); U.S. v. Colaate 0
and Comoany 250 U.S. 300 (19B]~
11/ Slip Op. at 32-34.
[2/ For example, see Board Findings 120,124-5,127(5),130-131.
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8-As a final example of Applicants' failure to demonstrade a substantial indication of probable success on the merits of an appeal, Applicants claim that the Board failed to " grapple with and evaluate most of the evidence introduced by Applicants during the course of the seven months of evidentiary hearings..."
Throughout its initial decision, the Board evaluated many of the legal and factual arguments made by Applicants (Slip Op. at 98, 110, 111, 114, 119, 121, 127, 128, 143. 168-169, 198, 203, 210, 214, 218).
In fact at pages 222-240 of the initial Decision, the Board devotes an entire section of its decision to an in-depth treatment of Applicants' arguments.
B.
Has The Movant Shown That, Without Such Relief. It will Be Irreoarably Harmec Our examination of this criterion for determining " good cause" begins with an explanation of it by the District of Columbia Court of Appeals:
The key word in this consideration is irreparable. Mere injuries, however substantial, in terms of money, and time, and energy necessarily expended in the absence of a stay, are notenough..."14/
Applicants make no showing that they will be irreparably injured if the requesteo elief is not granted and offer no legal authority to support their -argument with respect to the criterion of irreparable injury.
In fact, Applicants have not specified with particularity what irreparable harm will result from each of the ten license conditions, nor have they specified the bases for such alleged harm. On this ommission alone, Staff believes the motion should be denied because Applicants have not met their burden.
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Applicants first argue that, with respect to the license conditions that they should not be required to do what they cannot realistically do and should 15/
not in law or fact be required to do.
The Board, however, has only required 13/ Applicants' Motion, p. 9, n. 3.
TT/ 259 F.2d at 925.
TI/ Applicants' Moticn, p.10.
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9, Applicants to offer s'i$iilar power supplies options and access to nuclear i
units to non-applicants entities in the CCCT as Applicants make available or have agreed to mate available to each other. Moreover, it should reasonably f
have been expected that Applicants would be required to offer access and power supply options in light of their claims that they have already 16/
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adopted policies making certain of these_ services available to others.
Applicants also argue that the relief, if implemented will undo the status gg. That is the very purpose of antitrust relief.
The Board has found inter alia that a situation inconsistent with the antitrust laws
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currently exists, that App 1tcants have denied access to nuclear facili-ties and that if implemented, Applicants current proposals (App. 44) would both create and maintain a situation inconsistent with the antitrust laws.
Thus, undoing the status ouo is required.
Moreover, the license conditionsf
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ordered a.re generally. based upon Apolicant's repeated" refusal's to encace in such.
transactions.
For. example, the Borouch of.Pitcairn reouested participation in CAPC0 nuclear generation and in CAPCO membership in 1968 (Slip Op. at 103-106), and Pitcaim is still currently interested in such participation 16/ However, see pagh "i2-13 s'uora. --
T7/ U.S. v. Paramunt Pictures, Inc. 334 U.S.131 (1947); U.S. v. E.I.
duPont de Neaours & Co., 353 U.S. 586, 607-8 (1967) Ford Motor Co.
- v. U.S., 405 U.S. 562 (1972).
18/ AppTTca'nts contend that the Board has ordered " preferential" access.
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Such a claim is-based upon the assumption in Dr. Pace's testimony, i
on behalf of Applicants that the function of antitrust remedy should be to neutralize the impact of the nuclear units on the situation.
Such an assumption is incorrect as a matter of it.w.
See Proposed Findings of NRC Staff (contesting in all respects Dr. Pace's testimony at pp.10-17 of the Relief section).
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... _. _... _ _ _. (Slip Op. at 225-226), although none has been offered (Slip Op. at 103).
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. Similarly, Applicants have been on notice of desires by other en-i tities for access to alternative sources of bulk power requiring wheeling l
by Applicants for at least six years. Applicants provide or have agreed to provide such transmission services for each other, while refusing to t
do it for others. Applicants have jointly constructed extra-high voltage transmission to make available to each other the output of the nuclear plants (Slip Op. at 37). The question of the availability of excess trans-mission capacity was barely contested at the evidentiary hearing, and in some cases stipulated to (Slip Op. at 78, citing Tr. 4702-4703).
In any event, if Applicants had historically and consistently not refused to wheel for others, the available transmission capacity would not only have been planned, but would have been utilized. Applicants circular argument _--~~
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is unconvincing to the effect that they snouldn't ce required to wheel now, because they didn't plan their transmission facilities for wheeling ~for non-Applicant entities in tne past.- ' Such planning aid not occur because Aoplicants refused to wheel for requesting entities in the past.
In North Central Truck Lines, Inc. v. U.S. 384 F. Supp.1188 (D.C.
W.D. Missouri, 1974) aff.
U.S.
, 95 S. Ct. 820 (1975) petitioner moved for a stay pending appeal of an ICC order which ordered petitioner to cease from hauling certain commodities.
In denying a request for a stay, the District Court reasoned as follows with respect to the ir-reparable harm criterion of petroleum Jobbers, (which reasoning is par-i ticularly pertinent here):
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Second, with respect to the criterion of irreparable i
injury, plaintiff states that a denial of its motion for a stay "would in effect require plaintiff to aban-don a very large portion of its operations" and it would "... lose substantial sums of money in prepaid expenses and capital outlays which could not be recouped if this Court's decision were reversed on appeal." This contention is somewhat counterbalanced by the fact that the " irreparable injury" to which plaintiff refers con-stitutes, in essence, the unlawful diversion of business i
from the intervenor-defendants and others similarly situated. 3/
Onthebasisoftheabovediscussion,inStaffview,Ipplicantshavenotdemon-strated that-they have satisfied-the criterion-of demonstrating irreparable injury.
C.
Would The Issuance Of ~ A Stay Substantially Ham Other Parties Interested In The Proceeding?
With respect to this criterion, the coments bhr the District of Columbia Court of Appeals are also instructive:
On this side of the coin, we must detemine whether, despite showings of probable success and irreparable injury on the part of petitioner, the issuance of a stay would have a serious adverse effect on other interested persons. Relief saving one claimant from irreparable injury at the expense of similar harm caused another, might not qualify as the equitable judgment that a stay represents.
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]y 384 F. Supp. at 1191.
3 259 F.2d at 925.
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t The hearing ha_s clearly est.ablishe.d that_ the number.of_ non-applicant. entities in the CCCT has been shri'nking, due,inlparf to ;the'i.llegal...pr.edatory activities l'
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The Boardias found that within the relevant markets, Appli-of Applicants.
cants have acted individually and collectively to eliminate one or more other electric entities and to preclude competition (Slip Op. at 252). Thus, i
for example, in recent years certain Applicants have acquired the small electric systens of Hiram, East Palestine, Clyde, Waterville and (the dis-tribution system of) Libertyville, Ohio and Aspenwall, in Pennsylvania.
In addition the Board has found inter alia that Applicants have denied access to nuclear units, denied membership in CAPCO, which was equivalent to denial 1
of access to a bottleneck facility (Slip Op. at 215) and have used their t
dominant position to hinder or impede the ability of other electric entities i
to compete and/or survive (Slip Op. at 14-15). The relief ordered by this Board, pursuant to the 1970 Amendments to the Atomic Energy Act (42 U.S.C.
12135(c)) applies the antitrust laws to remedy a situation inconsistent with the antitrust laws. A delay in the imposition of such relief creates the likelihood that the number of those entities which might benefit from such relief, when ordered, may further and finally decrease in number.
If Appli-cants are granted a stay, then it would be to th'eir benefit to delay ex-peditiously advancing their appeal, since the results of their anticompetitive i
practices will continue to be felt by the smaller systems with which they compete.
Applicants argue that the license condition commitments attached to their motion (App. Ex. 44) result in no material harm to the interests of any other party with respect to Davis-Besse 1. E/
The Board, however, has found that these same policy connitments are in and of themselves anticompetitive, l
2_1/ Applicants Motion, p.16.
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. i having the effect of both creating and maintaining a situation inconsistent with the antitrust laws. (Slip Op. at 222). The evidentiary record clearly established and the Board found that Applicants' proposed license conditions
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were never offered to non-Applicant entities within the CCCT.
In addition, the Board found that CEI has in fact made no meaningful offers of access to nuclear power (Slip Op. at 82-83); that Duquesne has denied access to the Beaver Valley nuclear unit and never offered access to any other nuclear unit (Slip Op. at 103); that Ohio Edison has denied its wholesale customers reasonable and practical access to nuclear power (Slip Op. at 136); that Toledo Edison has denied small systems access to large scale generating facilities effectively precluding access to Davis-Besse and Perry (Slip Op.
at185-186); and has never offered access to nuclear units to entities in its service area (Slip Op. at 186).
Moreover, cases hold that the burden rests on the party seeking a 23/
stay to establish that the stay would not harm any other party K.C.
Royals v. Major League Baseball Players Assn., 409 F. Supp. 233 (USDC, W.D. Minn. 1976). Applicants have clearly not met that burden.
D.
Where Lies the Public Interest?
As the District of Columbia Court of Appeals noted in delineating this criterion:
In litigation involving the administration of regulatory statutes designed to promote the public interest, this factor necessarily becomes crucial. The interests of pri-vate litigants must give way to the realization of public purposes. The public interest may, of course, have many faces.. 24/
22/ Slip Op. at 194, 204-205. See also McCabe: Tr. 1718 (Duquesne); Pandy:
l Tr. 3158 (CEI); Hillwig: Tr. 2409-10 (TE); Lyren: Tr. 2030 (OE).
l 23/ Pursuant to F.R.C.P. Rule 62(c).
2T/ 259 F.2d at 925.
In 1970, the Atemic Energy Act was amended to require the Cemission to determine whether the activities under the license would create or Further-maintain a situation inconsistent with the antitrust laws.
more, the Act requires the Ccmission to consider not only the antitrust 251 As laws themselves, but also the policies underlying those laws.
stated in Waterford II.: "The Comission is determined to assure that...
licensed activities accord with the antitrust laws and the policies under-lying those laws.a By implementing a stay,- this Board would only delay implementation of public policy as expressed in the 1970 Amendments to the Atomic Energy Act.
In light of the Board's findings as set forth in Appendix
~ ~ finfra'.},1 the public interest would not be served by permitting Appli-I
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- cants to maintain their market positien and c:ntinue to engage in the con-28/
duct that has been challenged in this proceeding.~ The public interest would be served by applying the settled principles of antitrust law (including the Federal Trade Ccmission Act) to the Applicants in this pro-29/
caeding.
2.5_/ As scecified in subsection 105a, the Sherman Act, the Clayton Act, and the Federal Trade Comissicn Act.
26-/ S. Rep. No. 91-1247, 91st Ccng., 2nd Sess., at 31 (1970).
C/ Waterford II, supra. note 6, at 620.
ggf cf. North Central Truck Lines, Inc. v. U.S., 384 F.Sucp.1188 at IT92; aff.
U.S.
, 95 5. Ct. 820 ITf75)..,
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cf., K.C. lfoyan ~y. 'Maior Leacue Base. al players Assn. supra, at oage 770.
Xpplicants also conteno snat tne law 1s unsettieo. As the Appeal Scard noted in' Wolf' Creek, ~ suora. o.10 at 1 NRC 561 at 572, "it is far t o late in tne oay to dispute tnat it runs counter to basic antitrust pre-capts to exercise monopoly power.... electric utility c:mpanies are no more free then others to engage in those practicas; their unjustified refusals to wheel power or to interconnect with smaller entities in the filed have recularly been called to ac::unt as violative of anti-trust policies."
(emonasis supplied), citing Gulf States Utilities Co.
- v. FPC, 411 U.S. 747 (1973); Otter Tail Pcwer Co. v. U.S., supra.,
Gainesville Utilities v. Florica Pcwer Coro., 402 U.575 (1971);
Meeks, Concentration in tne Electr1e Pcwer Industry: The Imcact of Antitrust Policy, 72 Colum. L. Rev. 64 (1972).
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- - - - As the Court of Appeals noted in Hamlin Testing Lab, Inc. v. U.S.
Atomic Energy Commission, 337 F.2d 221 (USCA 6th Cir.1964) while applying Petroleum Jobbers to deny staying the enforcement of an AEC order which denied renewal of a license to perform industrial radiography:
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...a stay must be denied whenever the petitioner fails to carry the burden of establishing that it [the stay]
will not be harmful to the public interest. 3y In Staff's view the public interest clearly lies in applying, without delay, the license conditions ordered by this Board.
III. CONCLUSION It is the Staff's position that Applicants motion for a stay, cendente lite, be denied in that Applicant has failed to satisfy any of the criteria set forth in Virginia Petroleum Jobbers Association v. FPC, supra, which criteria has been adopted by the Appeal Board.
Respectfully submitted,
/)e Roy d'." Lessy, dv./ '
Counsel for NRC Staff Dated at Bethesda, Maryland this 26th day of January 1977.
30/ 337 F.2d at 222.
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Apoendix I I
The Board's specific findings included, jnter alia, the following:
(A) Applicants dominate the relevant markets (Slip Op. at 11-12).
(B) Applicants have increased their dominance since 1967 by j
'anticompetitive acts and policies (Slip Op. at 14).
(C) Some of the actions employed by Applicants to increase their dominance (such as territorial allocations, group boycotts, and price fixing) are oer g violations of the antitrust laws.
(Slip Op. at 14-15).
(D) Applicants have used their dominant position to hinder or impede the ability of other electric entities to compete and/orsurvive.(Slip Op. at 14-15).
(E) The operation of the subject nuclear units will have a sub-stantial effect upon both the supply and cost of electricity within the Combined Capco Company Territories Area, ("CCCT")', (Slip Op. at 13).
Extra-high voltage transmission is necessary to make available to the co-owners the output of the nuclear units. There is a discernable relationship between such extra-high voltage transmission and thi competitive stance of the CAPCO members. (Slip Op. at 37).
(F) The cooperation of one or more Applicants is a prerequisite to access to sources of power beyond the control of Applicants by non-applicant CCCT entitics. (Slip Op. at 42).
(G) Cleveland Electric Illuminating Company has (inter al.ia) attempted to acquire ccmpetitors scmetime successfully (Slip
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. Op. 61-62); engaged in illegal price fixing (Id.); attempted to forestall proposed interconnections between the Cities of Cleveland,.Painesville and Orrv111e, Ohio. (Slip Op. at,62); _
refused to wheel for both Cleveland and Painesville (Slip Op.
76-78 and 88-89); has made no meaningful offers of access to nuclear power (Slip Op. at 82-83); secured an anti-
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competitive and' oppressive interconnection agreement with the City of Painesville (Slip Op. 87, 89); denied Painesville the benefits of coordination, coordinated operation and develop-ment by delaying construction of an interconnection (Slip Op. 88);
imposed for competitive reasons severe operating problems, unnecessary restrictions and administrative delays on the operation of an likv load transfer arrangement with Clevelaild (Slip Op. at 71); after five years of negotiation reached an interconnection agreement with Cleveland which denies Cleveland the full benefits of coordinated operation and development (Slip Op. at 76).
(H) Duquesne Light has denied access to nuclear units when requested (Slip Op. at 103); refused to sell wholesale power or interconnect with the Borough of Pitcairn (Slip Op. at 93) and other municipal electric systems (Slip Op. at 96); refused to sell wholesale power to Aspenwall (Slip Op. at 94); denied the Borough of Pitcairn CAPC0 membership (Slip Op. at 106); and generally abused its dominant position and exercised its monopoly power in an anticompetitive manner (Slip Op. at 106).
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,. (I) Ohio Edison and pennsylvania power possess monopoly power (Slip Op. at 107); and used that monopoly power in the relevant markets j
to control the conditions of sale, to refuse to engage in trans-l actions which would otherwise be economically beneficial, to ex-clude competition and to increase their monopoly positions and to j
consolidate and maintain such positions (Slip Op. at 107-108). Ohio I
Edison has maintained and exacerbated a situation inconsistent with the antitrust laws as a monopolist by: engaging in anticompetitive acquisitions (Slip Op. 109-113), engaging in or imposing illegal territorial allocation agreements with Toledo Edison and (Slip Op. at 114-115), Ohio pcwer (Slip Op. 115-118),and CEI(SlipOp. 118-119); by refusing to wheel (Slip Op. at 124-125, 125-128, 130;) by refusing to interconnect (Slip Op.
133); by the imposition of anticompetitive restrictions on the resa e of power including the resale of nuclear power (Id.);
by denying its 20 wholesale customers the benefits of coordinated operation and development thus hindering coordinated operation and development (Slip Op. 137-138); by denying its wholesale customers reasonable and practical access to nuclear power (Id.);
i by acting affirmatively and deliberately to preserve its monopoly
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positien (Id.); by eliminating competition for industrial custcmers (Id.); by engaging in practices which restricted the growth of its wholesale customers (Slip Op. 139-140); and by refusing to sell bulk power (Slip Op. at 146).
l (J) Toledo Edison Company has had a deliberate policy of acquiring municipal electric systems (Slip Op. at 161) and imposing illegal customer allocations and restrictions in its contracts m.
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... -.... (SlipOp. 165,171); by agreeing to filegal territorial alloca-tions with neighboring investor-owned utilities (Slip Op.166, 167); by refusing to wheel power (Slip Op.173); by refusing to sell either full or partial-requirements power (Slip Op. at 184);
by denying access to large-scale generating facilities and by effectively denying access to the Davis-Besse and Perry Nuclear Units (Slip.Op. at 185-186);
(K) The CAPC0 Power Pool was formed in part to deny to competitive entities in the CCCT access to the benefits of coordinated operation and development (Slip Op. 188).
The CAPCO' agreement is an agreement in restraint of trade (Slip Op.194).
The concerted denials of membership opportunities by CAPC0 to others was a group boycott, and an act of monopolization (Slip Op. 194).
(L) With respect to access to nuclear units,all of the individual Applicants have denied access to such nuclear units (Slip Op.
204-205). These denials of access to nuclear units were made pursuant to comon objectives and understandings among the
. Applicants; denial of membership in CAPC0 is and was equivalent to denial of access to a bottleneck facility (Slip Op. 215).
(M) Applicants have denied the option of effective utilization of nuclear power to their competitors (Slip Op. at 222,224).
I r
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of THE TOLEDO EDISON COMPANY and NRC Docket Nos. 50-346A THE CLEVELAND ELECTRIC ILLUMINATING 50-500A COMPANY 50-501A (Davis-Besse Nuclear Power Station, Units 1, 2 & 3)
THE CLEVELAND ELECTRIC ILLUMINATING NRC Docket Nos. 50-440A COMPANY, ET AL.
50-441A (Perry Nuclear Power Plant, Units l
1 & 2)
)
CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF NRC STAFF TO APPLICANTS' MOTION FOR AN ORDER STAYING, PENDENTE LITE THE ATTACHMENT OF ANTITRUST CONDITIONS in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class or air mail, or as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 26th day of January 1977:
Douglas V. Rigler, Esq.
Atomic Safety and Licensing Chairman, Atomic Safety and Board Panel Licensing Board U.S. Nuclear Regulatory Commission Foley, Lardner, Hollabaugh Washington, D.C.
20555
- and Jacobs 815 Connecticut Avenue, N.W.
Docketing and Service Section Washington, D.C.
20555 Office of the Secretary U.S. Nuclear Regulatory Commission Ivan W. Smith, Esq.
Washington, D.C.
20555
- Atomic Safety and Licensing Board Joseph J. Saunders, Esq.
U.S. Nuclear Regulatory Commission Steven M. Charno, Esq.
Melvin G. Berger Esq.
Washington, D.C.
20555
- Janet R. Urban,.Esq.
John M. Frysiak, Esq.
Antitrust Division Atomic Safety and Licensing P.O. Box 7513 Board Washington, D.C.
20530 U.S. Nuclear Regulatory Commission Jerome Salt: man, Chief Washington, D.C.
20555
- Nuclear Reactor Regulation John Lansdale, Esq.
Antitrust and Indemnity Group Cox, Langford & Brcwn U.S. Nuclear Regulatory Commission 21 Dupont Circle, N.W.
Washington, D.C.
20555 l
Washington, D.C.
20036
= Wee -*
. Reuben Goldberg, Esq.
Terence H. Benbow, Esq.
David C. Hjelmfelt, Esq.
A. Edward Grashof. Esq.
Michael D. Oldak, Esq.
Steven A. Berger, Esq.
Goldberg, Fieldman & Hjelmfelt Steven B. Peri, Esq.
1700 Pennsylvania Avenue, N.W.
Winthrop, Stimson, Putnam & Roberts Suite 550 40 Wall Street Washington 0.C.
20006 New York, New York 10005 Vincent C. Campanella, Esq.
Thomas J. Munsch, Esq.
Director of Law General Attorney Robert D. Hart, Esq.
Duquesne Light Company 1st Assistant Director of Law 435 Sixth Avenue City of Cleveland Pittsburgh, Pa.
15219 213 City Hall Cleveland, Ohio 44114 David Olds, Esq.
Reed, Smith, Shaw & McClay Gerald Charnoff, Esq.
Union Trust Building Wm. Bradford Reynolds, Esq.
Box 2009 Robert E. Zahler, Esq.
Pittsburgh, Pa.
15230 Jay H. Bernstein, Esq.
Shaw, Pittman, Potts &
Lee A. Rau, Esq.
Trowbridge Joseph A. Rieser, Jr., Esq.
1800 M Street, N.W.
Reed, Smith, Shaw & McClay Washington, D.C.
20036 Madison Building - Rm. 404 115515th Street, N.W.
Frank R. Clokey, Esq.
Washington, D.C.
20005 Special Assistant Attorney General Edward A. Matto, Esq.
Room 219 Richard M. Firestone, Esq.
Towne House Apartments Karen H. Adkins, Esq.
Harrisburg, Pa.
17105 Antitrust Section 30 E. Broad Street,15th Floor Donald H. Hauser, Esq.
Columbus, Ohio 43215 Victor F. Greenslade, Jr., Esq.
William J. Kerner, Esq.
Christopher R. Schraff, Esq.
The Cleveland Electric Assistant Attorney General Illuminating Company Environmental Law Section i
55 Public Square 361 E. Broad Street, 8th Floor Cleveland, Ohio 44101 Columbus, Ohio 43215 Michael M. Briley, Esq.
James R. Edgerly, Esq.
Roger P. Klee, Esq.
Secretary and General Counsel Fuller, Henry, Hodge & Snyder Pennsylvania Power Company P. O. Box 2088 One East Washington Street Toledo, Ohio 43604 New Castle, Pa.
16103 Russell J. Spetrino, Esq.
Paul M. Smart, Esq.
Thomas A. Kayuha, Esq.
Fuller, Henry, Hodge & Snyder Ohio Edison Company 300 Madison Avenue l
47 North Main Street Toledo, Ohio 43604 Akron, Ohio 44308 l
l
, Alan P. Buchmann, Esq.
Squire, Sanders & Dempsey 1800 Union Comerce Building Cleveland, Ohio 44115 i
l 1
1 1
/ -d.'%a.
Koy P/ Lessy, Jrg //
Counsel for NRC Staff
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