ML19330A819
| ML19330A819 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Nine Mile Point, Perry  |
| Issue date: | 07/25/1980 |
| From: | Reynolds W, Zahler R CLEVELAND ELECTRIC ILLUMINATING CO., SHAW, PITTMAN, POTTS & TROWBRIDGE |
| To: | |
| References | |
| ISSUANCES-A, NUDOCS 8007290533 | |
| Download: ML19330A819 (9) | |
Text
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f UNITED STATES OF AMERICA DCCKETED 4
NUCLEAR REGULATORY COMMISSION g
USNBC JUL 2 51980> ;Y BEFORE THE COMMISSION 9
00k0 CIU:0 Se:rcta:
DCChtin! & Smic,y-h,/
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In the Matter of
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THE TOLEDO EDISON COMPANY and
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THE CLEVELAND ELECTRIC
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ILLUMINATING COMPANY,
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(David-Besse Nuclear Power
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Docket No. 50-346A Station, Unit 1)
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THE CLEVELAND ELECTRIC
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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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OPPOSITION OF THE CLEVELAND ELECTRIC ILLUMINATING COMPANY TO CONDITIONAL REQUEST FOR HEARING BY THE CITY OF CLEVELAND, OHIO On May 13, 1980, the Director of Nuclear Reactor Regulation
(" Director") issued an immediately effective order to The Cleveland Electric Illuminating Company ("CEI").
This order specified that CEI was to file with the Federal Energy Regulatory Commission
("FERC") an amendment to CEI's January 27, 1978 Transmission Service Schedule in accordance with the provisions of Appendix A to the Director's order.
The referenced Appendix A was drafted by the Commission Staff so as to ensure that CEI was in compliance with the antitrust conditions imposed during the licensing of the Davis-Besse 1 and Perry 1 & 2 nuclear power plants.
The Director's order further specified that "CEI or any person who has an interest affected by this Order, may * *
- request a hearing 8007290533 g
. with respect to all or any part of this Order."
On June 2, 1930, counsel for the City of Cleveland, Ohio
(" Cleveland") wrote to the Director requesting an extension of time until July 9, 1980, within which to request a hearing on the Director's order.
As grounds for this extension of time, Cleveland noted that the Director's order allowed CEI to make certain determinations as to transmission service in its " sole discretion", whereas a recent FERC order of May 5, 1980 (Opinion No. 84), deleted such references from the CEI tariff.
While Cleveland objected to this " sole discretion" language, it noted 1
that the requested extension would provide CEI with an opportunity prior to any hearing to delete the offending language voluntarily.-1/
The requested extension was granted.
CEI filed a revised transmission service tariff with FERC on June 10, 1980.
As anticipated by Cleveland, CEI removed from that tarirf all use of the " sole discretion" language.
Even so, on July 9, 1980, Cleveland filed a " conditional request" for a hearing before the Commission, seeking this time a further language modification in the CEI tariff filed with FERC.
The request should be denied by the Commission.
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On June 9, 1980, the Department of Justice ("DOJ") filed a
" Motion for Modification of the Order of May 13, 1980 or in the Alternative for a Hearing."
The grounds advanced were similar to those in Cleveland's letter of June 2, 1980.
Since those matters were resolved by CEI's tariff filing of June 10, 1980, and DOJ has not refiled, CEI believes the DOJ motion to have been dropped.
In any event, had DOJ gursued its motion, it too should have been denied for the reasons set forth herein.
Section 2.714 of the Commission's Rules and Regulations, 10 C.F.R.
S 2.714, specifies the criteria to be employed in determining whether to grant a petition for leave to intervene and/or a request for hearing.
The Commission is to examine the interests of the requesting party in the proceeding and deter-mine how those interests may be affected by the results of the proceeding.
10 C.F.R.
S 2. 714 (a) (2).
In making this analysis, the Commission is further directed to c'.tsider the requesting party's right to a hearing under the Atomic Energy Act, the ex-tent of the requesting party's property, financial or other interest in the proceeding, and the possible effect of the challenged order on the requesting party's interests.
10 C.F.R.
S 2. 714 (d).
In this instance, it is apparent from Cleveland's papers that Cleveland has no valid interest protected by the Atomic Energy Act.
Rather, the " conditional requast" for a hearing is simply Cleveland's most recent effort, in a long line of admin-istrative and judicial litigation, at keeping alive its ancient and timeworn disputes with CEI.
Hc /ing finally resolved all conceivable issues in controversy that were properly before the NRC, Cleveland now asks this Commission to hold hearings on a dispute which relates solely to the CEI tariff on file with FERC--
.a dispute which Cleveland is simultaneously litigating before FERC.
There are five substantial reasons why, in such circumstancos, the Commission should explicitly decline Cleveland's invitation to become embroiled in this matter.
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First, it is undisputed that the May 13, 1980 Director's order dutifully implements the antitrust conditions attached to the Davis-Besse and Perry licenses.
Although Cleveland chose to appeal certain of the license conditions, it did not object to the operative language of Condition No. 3, relating to wheeling.
Due to a dispute over what Condition No. 3 required in the form of a tariff, the Commission's Staff drafted tariff language to implement that license condition.
So long as the tariff provides what is required by the license condition--which it clearly does--
there are no legitimate grounds for modification of the Director's order.
Second, Cleveland's dispute is not with the antitrust license conditions or the manner in which CEI has implemented those con-ditions, but rather is with the manner in which CEI has al:rgedly implemented a separate order issued by FERC.
As such, Cle; eland has no interests within the zone of interests protected by the Atomic Energy Act that warrants the attention of this agency.
It is a fundamental principle of common application that a party with disputes concerning tariff filir.gs with FERC litigate those dis-putes before that body, not before the NRC, whose enforcement jurisdiction does not extend into the area addressed by Cleveland's
" conditional request" for a hearing.
Third, Cleveland has not suffered any injury-in-fact as a consequence of the May 13, 1980 Director's order.
While the basis of Cleveland's objections to the " service provided" section of the tariff are not entirely clear to CEI, nowhere in its " con-ditional request" does Cleveland indicate that it has or will suffer any injury from the challenged tariff language.
- Indeed, it appears from the Protest filed with FERC (and attached as an Appendix to the hearing request) that Cleveland is arguing that the differences in language have no substantive significance (Protest, pp. 2-3).
The undeniable fact is that CEI is currently wheeling PASNY power to Cleveland, and Cleveland does not allege--
nor can it--that CEI is refusing to wheel to Cleveland any other power available to the City.
Thus, this is the classic case of a mere abstract " dispute" that adjudicative bodies understandably are traditionally loathe to undertake.
Fourth, FERC can grant Cleveland complete relief if such action is warranted.
Obviously, within its statutory authority FERC can order CEI to file whatever tariffs FERC believes are recommended by the facts of record.
In this case, if FERC finds the current CEI tariff objectionable, it can direct CEI to file a modified tariff.
Conversely, should FERC determine that there is no need for CEI to amend its tariff, there would be absolutely no reason for this Commission to overrule FERC and order CEI to revise its tariff.
This is especially so in light of the uncon-tested fact that the tariff now on file contains language which the Director ordered CEI to use in order to ensure full compliance with the Davis-Besse and Perry license conditions.
Fifth, equity demands a halt to Cleveland's continuing attempts to abuse the Commission's regulatory process by objecting at every step to the good faith efforts of CEI to implement the mandated license conditions.
The record over the past two years shows that, in response to concerns voiced both by Cleveland and 9
the Commission Staff, CEI has drafted and redrafted numerous transmission tariffs.
At one meeting Cleveland argued the proposed CEI tariff was too general and did.;ot directly deal with taatters of concern to Cleveland.
After CEI undertook to redraft a tariff just for Cleveland (and the City of Painesville) in response to that objection, Cleveland remarkably took issue with the revised tariff on the ground that it was too narrow, since it failed to cover municipal and cooperative entities that m_gnt conceivably exist in the CEI service area sometime in the future
--a position which conveniently ignored that no such entities exist today other than Cleveland and Painesville.
Once again, CEI worked with the Staff to modify the proposed tariff so as to satisfy Cleveland's self-contradictory objections, while at the same time accommodating the Commission's interest in ensuring that the tariff fully implemented the antitrust license conditions.
Having finally reach'ed'what was considered to be a positive resolution of the differences as embodied in the Director's order of May 13, 1980, CEI finds it difficult to hide its frustration upon hearing, yet again, Cleveland's constant refrain:
"I object."
It is apparent that nothing CEI does with regard to this (or any other) matter, will be acceptable to Cleveland.
If the arguments that are properly within the province of the NRC regarding wheeling are fully answered by CEI's acceptance of tariff language, Cleveland raises a challenge to that language based on other agency action.
If the other agency (FERC) is slow to grant Cleveland the relief
-it.wants, Cleveland requests the NRC to intervene.
Nor does such litigiousness serve any practical purpose.
CEI is already wheeling PASNY power to Cleveland, and under its existing Trans-mission Services Tariff on file with FERC, it is obliged to wheel any other power to Cleveland from identified sources.
At some point, we think the Commission has a responsibility to advise Cleveland that it will no longer permit its review process to be misused by entertaining Cleveland's perennial objec-tions to every action taken by CEI.
That point has now clearly been reached.
The filing with FERC of the tariff language embodied in the Director's May 13 order brings to an end the controversy generated by the Director's Notice of Violation of June 28, 1978.
If Cleveland insists upon pursuing its litigious course regarding this matter, the battle lines are already drawn at FERC, and it is there, if anywhere, that agency review of tariff language should take place.
This Commission has fully performed its responsibility under the Atomic Energy Act; it should not hesitate to bring the matter to a close.
For all the foregoing reasons, the " conditional request" of Cleveland for a hearing should be flatly denied by the Commission.
Respectfully suomitted, SHAW, PITTMAN, POTTS & TROWBRIDGE b.-
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Wm. Bradfdtd Robert E.
Za 1800 M Street, N.W.
Washington, D.C.
20036 Telephone:
(202) 331-4100 Counsel for The eleveland Electric Illuminating Company Dated:
July 25, 1980
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UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of
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The Toledo Edison Company
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The Cleveland Electric Illuminating )
Company
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NRC Dkt. No. 50-346A (Davis-Besse Nuclear Power Station, )
Unit 1)
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The Cleveland Electric Illuminating )
Company, et al.
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NRC Dkt. Nos, 50-440A (Perry Nuclear Power Plant,
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00-441A Units 1 & 2
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CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of " Opposition of the Cleveland Electric Illuminating Company to Conditional Request for Hearing by the City of Cleveland, Ohio" upon each person designated on the attached service list.
Dated at Washington, D.C.,
this 25th day of July, 1980.
0 ANO Wm. Br pynol c
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SERVICE LIST l
Samuel J. Chilk, Esquire Secretary U.S. Nuclear Regulatory Commission 1717'H Street, N.W.
Washington, D.C.
20555 Harold R.
Denton, Director Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Joseph Rutberg, Esquire Benjamin H. Von 3er, Esquire Office of the Executive Legal Director U.S.
Nuclear R'agulatory Commission Washington, D.C.
20555 Docketing & Service Section Office of the Secretary U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Reuben Goldberg, Esquire Goldberg, Fieldman & Latham Room 650 1700 Pennsylvania Avenue, N.W.
Washington, D.C.
20006 Janet Urban, Esquire
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Department of Justice Antitrust Division 10th & Constitution Avenue, N.W..
Washington, D.C.
20530 1
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