ML19340A316
| ML19340A316 | |
| Person / Time | |
|---|---|
| Site: | Perry, Davis Besse  |
| Issue date: | 10/12/1976 |
| From: | Berger M, Charno S, Urban J JUSTICE, DEPT. OF |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| NUDOCS 8003050902 | |
| Download: ML19340A316 (18) | |
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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
)
Docket Nos. Mn-144Aj Company
)
50-500A (Davis-Besse Nuclear Power Station,
)
50-501A Units 1, 2 and 3)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-440A Company, et al.
)
50-441A (Perry Nuclear Pcwer Plant,
)
Units 1 and 2)
)
COMMENTS OF THE DEPARTMENT OF JUSTICE REQUESTED BY THE ATOMIC SAFETY AND LICENSING BOARD By order of September 9, 1976, the Atomic Safety and Licensing Board directed the parties to consider what impact, if any, the proposed acquisition of the Cleveland municipal electric system by. the Cleveland Electric Illuminating Company ("CEI") would have on the proposed findings of fact and conclusions of law submitted by the parties in tnis proceeding.
The Department of Justice has obtained a copy of what we believe 'to be the memorandum of understanding between CEI and the City of' Cleveland regarding the proposed acquisition.
According to the memorandum, the. proposed transaction shall be authorized u
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by the CEI Board of Directors no later - than~ 0ctober 8,1976, and shall then become a firm offer to the City, to remain open until January 10, 1977. :The transaction is also subject to authoriza-tion by the City Council of the City of Cleveland not later than November 30, 1976. 1/
We are attaching a copy of this memorandum for the information of the Licensing' Board and the other parties to this proceeding.
It is clear that CEI is on the verge of accomplishing its long standing goal of acquiring the Cleveland municipal electric system.
This prospective elimination of Cleveland from the electric power business in no way diminishes the vitality. of the Department's proposed findings of fact and conclusions of law.
If anything, it lends further support to those findings and con-clusions -- the anticompetitive market structure and practices of CEI and the other Applicants have finally driven Cleveland to j
the wall.
The very result predicted by the evidence of record now appears imminent.
However, and particularly significant to the Board's consideration of relief, CEI's acquistion of the Cleveland municipal system is not yet assured. If the City should determine that it wishes to remain in the electric business, or if, for some other reason,.the acquisition is not consummated, the l
City will have particular need of those benefits of coordinated 1/
As of the filing of this pleading, the Department has not.been able to determine-what action, if any, has been taken by the CEI Board of Directors. - However,- the Deoar tment understands that the acquisition proposal was submitted to the City Council, for its consideration, on: Monday,-October 11, 1976
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operation and development which have long been denied it by CEI and the other' Applicants.
The relief proposed by the Department would act to eliminate the effects of Applicants' anticompetitive conduct' and provide Cleveland (as well as other non-Applicant electric entities within the CCCT whose acquisition is not so imminent) with access to the benefits of coordinated operation and development and the bulk power supply options necessary to maintain a viable, competitive electric system.
The Department has shown that the operation and viability of the electric utility system of the City of Cleveland have been frustrated by anticompetitive restraints imposed by CEI and the other Applicants.
It is, of course, not the province of the Department ' to decide who should provide electricity within the City of Cleveland.
Nevertheless, we.believe that it would be unfortunate if the City were now forced to decide the future of its municipal electric system, while remaining subject to th'e anticompetitive restraints imposed by the Applicants, with litiga-tion over those restraints now in its third year before your Commission, and on the verge of a decision of the Licensing Board as to whether or not those restraints will be permitted to con-tinue.
Surely Cleveland, after coming this far, deserves to be c
able to make an informed decision on this matter.
For this reason, the Department urges that, when the Licensing Board reaches the point in its deliberations when it has decided 3
whether or not license conditions will be imposed, it immediately inform the parties of that result rather than waiting until the publication of a complete, formal opinion. 2/
Such advice, if timely, would permit the City of Cleveland to decide whether to retain or sell its municipal electric system knowing either (a) an independent tribunal has determined that Applicants' anticom-petitive ac civities have damaged the City and bulk power supply options not previously available would be available to its muni -
cipal electric system in the future, or, conversely, (b) an independent tribunal has determined that the evidence of anti-competitive market structure and conduct presented by the Depart-ment and the other parties is insufficient to warrant relief from the Nuclear Regulatory Commission.
Whatever the result, Cleveland should know it, if at all possible, before making its decision, and we urge the Board to do what it can to bring this about.
1 2/
The procedure of announcing a decision prior to the issuance of a complete formal opinion has been utilized by the Atomic Energy Commission.
Virainia Electric and Power Comoany I37 7 AEC'30$ ((North Anna Power Station, Units 1 and 3) CLI-74 1973),
i followed by-opinion at CLI-74-16, 7 AEC 313.
The Atomic Safety and Licensing Appeal. Board has also approved of this procedure.
Commonwealth _ Edison _ Company (Zion Station, Units 1 and 2) ALAB-18-5,
7 AEC 240 (1974).
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l-In conc 3 usion, the Department urges that the Licensing Board reach a prompt decision and adopt the Department's proposed Findings-of Fact and Conclusions of Law;-
Respectfully submitted, w
ST EN M.
CH s.
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fM^f<' d MELVI5~G7 BERGER
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--URBAN
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Attorneys, Antitrust Division Department of Justice Washington, D.C.
20530
,Ler 12, 1976 l
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1 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
)
Docket Nos. 50-346A Ccmpany
)
50-500A
(. Davis-Besse Nuclear Power. Station,
)
50-501A Units 1,:2 and 3)
)
)
The Cleveland Electric Illuminating
)
Docket Nos. 50-449A Company, et al.
)
50-441A (Perry Nuclear Power Plant,
)
Units 1 and 2)
)
~ CERTIFICATE OF SERVICE I hereby certify that copies of COMMENTS OF THE DEPARTMENT OF JUSTICE REQUESTED BY THE ATOMIC SAFETY AND LICENSING BOARD have been served upon all of the parties listed on the attachment hereto by. deposit in the United States mail, first class, airmail or by hand this 12th day of October.1976.
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%'t MELVIN G.
BERGER Attorney, Antitrust Division Department of Justice
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ATTACHMENT Douglas V.
Rigler, Esq.
Gerald Charnoff, Esq.
Chairman, Atomic Safety and Wm. Bradford Reynolds, Esq.
Licensing Board Robert E.
Zahler, Esq.
F.oley, Lardner, Hollabaugh Jay H. Bernstein, Esq.
and Jacobs Shaw, Pittman, Potts &
815 Connecticut Avenue, N.W.
-Trowbridge Washington, D.C.
20006 1800 M Street, N.W.
Washington, D.C.
20036 Ivan.W. Smith, Esq.
Atomic Safety and Licensing Frank R. Clokey, Esq.
Board' Special Assistant, Attorney Nuclear Regulatory Commission General Washington,-D.C.
20555 Room 219 Towne House Apartments John M.
Frysiak, Esquire Harrisburg, Pennsylvania 17105
?.tomic Safety and Licensing Board Donald H. Hauser, Esq.
Nuclear Regulatory Commission Victor A.
Greenslade, Jr., Esq.
Washington, D.C.
20555 The' Cleveland Electric Illuminating Company Atomic Safety and Licensing 55 Public Square Board Panel Cleveland, Ohio 44101 Nuclear Regulatory Commission Washington, D.C.
20555 Leslie Henry, Esq.
Michael M. Briley, Esq.
Docketing and Jervice Section Roger P. Klee, Esq.
Office of the Secretary Paul M.
Smart, Esq.
Nuclear Regulatory Commission Fuller, Henry, Hodge & Snyder Washington, D.C.
20555 Post Office-Box 2988 Toledo, Ohio 43604 Reuben Goldberg, Esq.
David C. Hjelmfelt, Esq.
Russell J.
Spetrino, Esq.
Goldberg, Fieldman &
Thomas A. Kayuha, Esq.
Hjelmfelt Ohio Edison Company 1700 Pennsylvania Avenue, N.W.
47 North Main Street Suite 550 Akron, Ohio 44308 Washington, D.C.
20006 Steven B.
Peri, Esq.
Terence H. Benbow, Tsq.
James B.-Davis, Director of A.
Edward Grashof, Esq.
Law Steven A.
Berger, Esq.
-Robert D. Hart, 1st Assistant Winthrop, Stimson, Putnam Director of Law
& Roberts City of Cleveland 40 Wall Street 213 City Hall New York, New York 10005 Cleveland, Ohio 44114 Thomas J. Munsch, Esq.
General Attorney Duquesne Light Company 435 Sixth Avenue Pittsburgh, Pennsylvania 15219 1
)
)
I h-i
m David Olds, Esq.
Joseph Rutberg, Esquire William S. Lerach, Esq.
Office of.the Executive Reed, Smith, Shaw & McClay-Legal Director
. Union Trust Building Nuclear Regulatory Commission Box _2009 Washington, D.C.
20555 Pittsburgh,' Pennsylvania 15230 William J. Kerner, Esquire-Lee A.
Rau, Esq.
Office of the General Attorney i
Joseph-A. Rieser, Jr., Esq.
The Cleve2.and Electric Reed, Smith,-Shaw & McClay Illuminating Company Suite 900
' Post Office Box 5000 1150 Connecticut Avenue Cleveland, Ohio 44101
' Washington, D.C.
20036 Alan P. Buchmann, Esquire Edward A.'Matto, Esq.
Squire, Sanders & Dempsey Richard M. Firestone, Esq.
1800 Union Commerce Build ng Karen H. Adkins, Esq.
Cleveland, Ohio 44115 Antitrust Section 30 E. Broad Street 15th Floor
' Columbus, Ohio 43215 Christopher R.
Schraff, Esq.
Assistant Attorney General Environmental Law Section 361 E.
Broad Street 8th. Floor Columbus, Ohio 43215 James R. Edgerly, Esq.
Secretary and General Counsel Pennsylvania Power Company One East Washington Street New Castle, Pennsylvania -16103 John Lansdale, Esq.
Cox, Langford &-Brown
'21 Dupont Circle, N.W.
Washington, D.C.
20036 Michael R.
Gallagher, Esq.
-Gallagher,-Sharp, Fulton, Norman'& Mollison.
630 Bulkley Building Cleveland, Ohio.44115 Jack R. Goldberg, Esq.
Benjamin H. Vogler, Esq.
Roy P.
Lessy, Jr., Esq.
Office of the General Counsel Nuclear Regulatory' Commission Washington, D.C.
20555 G
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Betwe:n-THE CITY OF CLEVELAND
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'And J
THE CLEVELAND ELECTRIC ILLL11INATING COMPANY i
WEREAS, the City of Cleveland (hereinaf ter " city") and The Cleveland Electr'ic Illuminating C.apany (hereinafter "CEI") are the Plaintiff 4
and a Defendant, respectively, in an antitrust action now pending before the United States District Court for the Northern District of Ohio, being Civil t
Action No. C75-560 on the docket of said court; and WEREAS, the City and CEI are also engaged in numerous.other legal and administrative actions with laims and counterclaims being nade by each of the contending parties; and 1
WEREAS, subsequsnt to the co==encement of said litigatior, the
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in-City and CEI have conducted various negotiations with respect te the resolution of, the aforementioned litigation, including the sale of part or all of the
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facilities of the Municipal Electric Light Plant (hereinafter "MELP"),
s owned by the City; and N
WEREAS, as a result of the foregoing, the Administration of the
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Cit, and the manage =ent of CEI have reached an agreement in principal with respect to the sale of MELP to CEI; NOW, TI!EREFORE, it 'is-agreed by and between the City, through its Mayor on behalf of the Administration of the City of Cleveland, and CEI, through ito.T esident on behalf. of the canagement of CEI, that:
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1.
As consideration of the sale, transfer and conveyance
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to-CEI of the assets of MELP described in Par graph 2 hereof, CEI chall* pay to the City the sum of ?158,500,000, payable-as follows:
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$38,500,]00 shall be paid in cash to the City at.the closing of this transaction; and (b) The balance of.$120,000,000 to be paid to the City at the rate of $4,000,000 per annum, adequately
,4f secured, payable on the last day of each year, commencing Dbcember 31,.1977.
2.
The City shall transfer and convey to CEI all pcuperty, plant and equip =ent of MELP, including land, set forth as l,d
?I assets in tha December 31, 1975 balance sheet of FELP, excluding cash on deposit in the City. Treasury, which
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includes operating funds, sinking funds and encumbered
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bond funds, as agreed upon by R. W. Bech & Company and
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f.*l Gilbert Associates, Inc. (consultants to the City ar.d CEI, respectively), subject to the following terms and conditions:
N (a) HELP shall guarantee that its gross accounts s1.
receivable shall be not less than $3,500,000.
f' (b) The net book value of all other current assets of MELP shall be not less than ninety percent (90%)
of the net book value as of December 31, 1975, provided that any of said current assets which shall have been incorporated in or become a part of the property,, plant and equipment transferred i
hereunder shall not be deemed to diminish the value L
of current arsets. The unaudited book value as of 77 December 31, 1975 for all other current assets was as follows:
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-3 Current Assets
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Unbilled & Accrued Receivables S 847,696
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Accrued Interest Receivable 45,370 Stores !!aterials & Supplies
$3,030,655 Less Reserve for Obsolesence 394,021 2,686,634 57,796 i
Prepaid Expense Undistributed Work Orders 216,268 (c) The book value of the property, plant and equipment of MELP at the date of transfer shall be not less than $52,513,196, the book value of h."[
kh such prop'erty, plant and equipment as of December 31, 4
,1975, adjusted for~ normal depreciation and normal additions and retirements.'
(d) MELP shall guarantee that the gross unencumbered
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funds reserved for plant expansion as shown in bond construction accounts on December 31, 1975 shall nnt be less than $984,570, unless reduced by expenditures or certification of funds for property, plant and s,
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equipment after January l',
1976.
(e)
If upon audit as hereaf ter provided, the gross accounts receivable to be transferred to CEI are less than $3,500,000, or if the net book value of all other current assets is less than ninety percet.t (90%) of net book value as of December 31, 1975, as adjusted pursuant to Section 2 (b) hereof, or if the gross unencu=bered funds reserved for plant expansion as s
shown in bond construction accounts on December 31,
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1975, is les's than $984,570,.unless reduced by expendi-tures or certification of funds for property, plant
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and cquipn t efter January 1,'1976, er 1.
'ha b2ok value of the property, plant and equipment'of MELP at the date of transfer is less than $52,513,196,
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the book value of s';ch property, plant and equipment as of December 31, 1975, adjusted for normal deprecia-tion and normal additions and retirements, a deduction in the amount of said deficiency shall be made from e
CEI's initial cash payment of $38,500,000 at the L.
(l time of closing.
3.
IfCENatitssole.discretiondeterminestodisposeofany interest in real property bordering upon Lake Erie (hereinaf ter s
"lakefront land") transferred by the City at the closing of
.1 this transaction, CEI shall, before dis' posing of its interest
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in said lakefront land to any other person or entity, notify the Mayor of the City in writing. of its intent to dispese of its interest in said lakefront property and offer to the City
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the opportunity to repurchase said interest in land at its
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i then appr.aised value.
If the City is interested in the repur-chase of said interest in lakefront property, it shall so notify the President of CEI in wr'iting within thirty (30) days of the receipt of said notice from CEI.
The repurchase price
. shall be established by a recognized real estate appraiser mutually agreed upon by the City and CEI. Said interest in i
lakefront property may be repurchased at said appraised price i-by the City.
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-S-f CEI agrees to employ not less than eighty (80) qualified
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HELP cmployees, who shall be designated by CEI within sev l
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- - 7i days from the date of the passage of a ratifying ordinance b
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Council and employed by CEI at the time of the closing of this l
in transaction, it-being understood that any employces of IELP an occupation coming within the purview of CEI's collective
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,,: Je.J bargaining agreement shall, as a condition of their employment e,
- * '9 by 'CEI, join Local 270 WUA for collective bargaining purposes M
f If any MELP ceployee designated by CEI declines emp f
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shall be' obligated to hire another tELP cmployee in his or i
stead, the tenor of' this Pa'ragraph 4 being that upon the
- UMI consummation of this transaction, CEI thall have employed
_ l, not less than eighty (80) MELP employees.
- 5. "The City agrecs that it shali pay to CEI from the down ll noneys owing ng
. payment specified in Paragraph 1. (a) hereof, a 4 M'Q' +/i which may be to CEI, except a su a not to exceed $10,000,000,
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withheld and paid to CEI upon the following terms and condition
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The City shall pay to CEI any balance owing to CEI over a period of thirty (30) years, or during such i ;..
lesser period as the City shall determine, with interest on the unpaid balance of principal and interest computed annually at three-quarters (3/4) of the Cleveland Trust,
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Company prime rate as of January 1 of cach yea'r, comme
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d In no event shall the city be required
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to pay interest in excess of a rate of eight percent per annum.
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The pt.cipal amount owing to CEI sha be.
amortized by equal annual payments up to'a maximum of thirty (30) years.
Larger principal payments may be'made by the City at any time, and payments of
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interest owed by the City may be deferred by the City at its sole discretion for the initial period of.five (5) years, provided + hat ulti= ate paycents of such deferred interest
.c be made in a manner c+
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which insures equal' amortization of the deferred 1
interest payments over the remaining years of the City's obligation to CEI. The first payment by the City pursuant to this paragraph' 5 shall be made on PD4.i December 31, 1977, with subsequent payments to be made on the last day of each succeeding year.
- 6.. Prior to the date of the transfer of the assets of the Division of Light and Power to the Company, the City will have s.
conducted at its expense a certified audit of 'the assets of
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the D". vision of Light and Power by the public accounting fitu of Pea 1-Marwick-Mitchell & Co.
CEI may retain at its own expense the nublic accounting firm of ' Price, Waterhouse & Co.
to make l'.s own independent audit and to review any accounting records, working papers or other information pertaining to said audit or the results of said audit as may be necessary to render its own opinion. Any differences shall be recon-t-
ciled by the respective independent public accountants as of
'2 bi January 10, 1977.*
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- 7. 'The terms of the present street lighting service contract betwee'n the City and CEI shall be extended as folloks:
(a) With respect to street lights presently bj serviced and maintained within the City by CEI, the terms of'the'present contract shall
-be extended through December 31, 1977.
(b) With respect to street lights presently h, j p.)
serviced and maintained by MELP, the terms of the present street lighting contract between the City and CEI adjusted for size and type of fixtures where necessary shall be applicable
- ,1 r;.1 through December 31, 1978.
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--(c)
On and after January 1, 1979, all street lights within the City now serviced and raain-tained by either CEI or HELP shall be controlled p,.
by the rates and conditions established in the Q
street lighting service contract next negotiated by the City and CEI cffective on and.dter January 1, 1978.
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It is further agreed that CEI shall provide electricity for water pumpiig and all other City accounts at the lowest industrial
. rate where applicable, otherwise, at the prevailing approved l
rate schedule for the particular use in-Sived.
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Th2 tr sacti:n c:ntemplated by this i.emors:ndum and the terms herein set forth shall be authorized by the.
Board of Directors of CSI not later than October 8, 1976
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and shall-thereafter constitute a firm offer by CEI to
~1 the City of the terms and conditions hereof, which offer
.shall remain in effect through a~nd including January 10, 1977. This transaction shall also be subject to a-3rization
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,by the Council of the City not later than November 30, 1976.
.9. - As a condition of the transfer of.the assets by the City
.and the paycent of money by CEI, as hereinabove described, the City. vill make provision for the discharge of what is now estimated to be $10,164,180, constituting principal and interest upon !!ortgage Revenue Bonds of the City of Cleveland P
. secured by the-Indenture of IIortgage between the City of -Cleve-land ar.d the Union, Bank of Commerce Company, as Trustec i
, dated October 1,1948, and as supplemented by Supplemental Indenture s
s of Mortgage dated October 1, 1954, August 1, 1960, and January 1
1963, respectively.
The City may satisfy said lien and Mortgage at the time of the execut, ion of the sale documents, either by making direct payment to the Trustee of the principal and interest on said Bonds, or the City may, in its sole discretion authorize and direct CEI to make payment, on 'the City's behalf to said Trustee or to an escrow agent designated by the City f rom the proceeds of the initial gross payment of $38,500 000
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amount sufficient c. satisfy the principal and interest due and t"('
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,owing upon said lien and Mortganc. All benefits or savings resultir.; from the discharge of said Mortgage Revenue Bonds, whether discharged directly by the City or
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from the initial gross payment, shall inure to t.he benefit of the City.
10.
Co'ntemporaneous with the closing of this transaction, CEI I
.and the City shall take all necessary steps to terminate with
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prejudice their participation in all litigation before either administrative agencies or courts of lav and to extinguish
- all money judgments or other claims or disputes between them arising as a consequence o'. the City's operat. ion of MELP.
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- 11. The transaction contemplated by this Memorandum of 0
Understanding shall be closed on or before January 10, 1977, unless further.cxtended by agreement of the parties.
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C OF CL LAND By utd!
/ Hayor
'IllE CLEVELAN-ELECTRIC ILLUMINATING COMPANY V
By f_
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President /
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UNITED STATES NUCLEAR GEGULATORY COMMISSION WA SHINGTON. D. C. 20S5S REQUT,ST FOR REPORTING SERVICE orrect OF.THE SECRETARY TOLEDO EDISON COMPANY, et al (Davis-Besse 1, 2 & 3)
Case: CLEVELAND ELECTRIC ILLUMINATING COMPANY, et al (Perry 1 & 2)
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Docket No.: 50-44DA', 441A Add'ress of:'- Prehearing Hearing NRC Public Hearinct Room, 5th Floor East-West Towers Building, 4350 East-West Highway r
Bethesda, Maryland l
Duration:
Prehearing Ilearing One day flearing 10h76 Date of:
Prehearing Hearing 11:00 am Time oi:
Prehearing Service Required:
Prehearing.
Hearing echerint E-1 Type of llearing: Antitrust - Special Board Boa.rd: Chairman Lazo
- Members Goodhooe, Head' Copies of the transcript may be sold.
Date of oral request: 10-6-76 Date of confirmation: 10-6-76 i
By:
j C. R. Stephens Docketing and Service Section ec:
Dr. Lazo SPECIAL INSTRUCTIONS:
Mr. Rutberg Mr. Salzman i
TRec. Tac. Br.-
Controller
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