ML20077G255

Request for Hearing Re Denial of Application to Amend Perry Operating License to Suspend Antitrust Conditions Insofar as Conditions Apply to Ohio Edison Co.* W/Certificate of Svc

ML20077G255
Person / Time
Site:	Davis Besse, Perry
Issue date:	05/31/1991
From:	Charnoff G OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	NRC COMMISSION (OCM)
Shared Package
ML20077G246	List: ML20077G255 ML20077G259 ML20077G266 ML20077G274
References
A, NUDOCS 9106250102
Download: ML20077G255 (4)

Text

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COKMISSION

'91 W.Y 31 P 1 :07 BEFORE THE NUCLEAR REGULATORY COMMISSION ,,

In the Matter of )

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OHIO EDISON COMPANY ) Docket No. 50-440A

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(Perry Nuclear Power Plant, )

Unit 1) )

REQUEST FOR A HEARING WITH RESPECT TO THE DENIAL OF THE APPLICATION TO AMEND THE PERRY OPERATING LICENSE TO SUSPEND THE ANTITRUST CONDITIONS INSOFAR AS THEY APPLY TO OHIO EDISON COMPANY Pursuant to the Not!ce of Denial of Applications for Amend-ments to Facility Operating Licenses and Opportunity for Hearing, 56 Fed. Reg. 20057 (May 1, 1991), Ohio Edison Company ("OE")

i hereby requests a hearing with respect to the denial of OE's Application to amend the Perry operating license to suspend the antitrust conditions insofar as they apply to OE, dated September 18, 1987.

Specifically, OE requests a hearing on the following five issues:

(1) Does the Perry Nuclear Power Plant afford OE a competitive advantage when-Perry's actual costs are such that the plant does not pro-vide OE a lower average cost.of bulk power supply than would non-nuclear generation options OE could have exercised in the same time frame (see 10 C.F.R. Part 50, App. L, SS 11.11, 11.12)?

l 9106250102 910607 PDR ADDCK 05000346 C PDR i

- (2) If the Perry Nuclear Power Plant does not afford OE a competitive advantage, can OE's ownership share of Perry " create or maintain a situation inconsistent with the antitrust laws" (Section 105c(5) of the Atomic Energy Act, as amended) such that NRC is authorized to impose or retain license conditions?

(3) If the Perry Nuclear Power Plant does not afford OE a lower average cost of bulk power supply than would non-nuclear generation options OE could have exercised in the same time frame, does imposition or retention of license conditions under Section 105c of the Atomic Energy Act, as amended, deny OE equal protection and due process under the Fifth Amendment of the U.S. Constitution?

Preliminary to the determination c the issues set forth above, and before consideration of the recommendations of the NRC and Department of Justice ("DOJ") staffs, OE requests that the following issues be resolvedt (4) Did the 1988 legislative proposal by Senator Howard M. Metzenbaum providing that "[t]he Nuclear Regulatory Commission shall not sus-pend or modify the application of any anti-

. trust provision contained in the Perry operating license No. NPF-58, as such provision applies to any licensee of the Perry Nuclear Powerplant, Unit 1," the debate thereon in the Senate on March 29, 1988, as reflected in the Congressional Record of that date, pp. S 3257-59, and any related communi-cations between the NRC staff and the legis-lative branch, compromise the actual or apparent impartiality of the staffs of the NRC and the DOJ in connection with their con-sideration of OE's application and, if so, should the Licensing Board and the Nuclear l Regulatory Commissioners give no weight to the recommendations of the NRC and DOJ i staffs?

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(5) Were the NRC or DOJ staffs predisposed to deny OE's application, as suggested by Sena-tor J. Dennett Johnston's statements in the Congressional Record, 134 Cong. Rec. S 3258, 3259 (March 29, 1988), regarding "a strong rumor" that "the NRC has indicated that they have no intention of approving this applica-tion," and, if so, should the Licensing Board end the Nuclear Regulatory Commissioners give no weight to the recommendations of the NRC and DOJ staffs?

Re pectful submitted, ,

M

O'erald Charnof f )

Robert E. Zahler f\

Deborah B. Charnoff Margaret S. Spencer SHAW, PITTHAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 Counsel for Ohio Edison Company Dated: May 31, 1991 S 162 mss 5458.91 l

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9) nM 31 p 1.07 CERTIFICATE OF SERVICE ,

t ro I HEREBY CERTIFY that a copy of the foregoing Request for a Hearing with Respect to the Denial of the Application to Amend the Perry Operating License to suspend the Antitrust Conditions Insofar as They Apply to Ohio Edison Company was mailed first class, postage prepaid, this 31st day of May, 1991, to:

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Mark C. Schechter Chief Transportation, Energy and i.griculture Section Antitrust Division Department of Justice Judiciary Center Building 555 Fourth Street, N.W.

Washington, D.C. 20001 James P. Murphy Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, N.W.

P.O. Box 407 Washington, .C. 20044 9

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%>ra10"Charnoff SHAW, PITTMAN, POTTS & TRO kIDGE 2300 N Street, N.W.

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Washington, D.C. 20037 (202) 663-8000 S 172 mss 54SB.91