ML20077G274
| ML20077G274 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 05/31/1991 |
| From: | Goldberg R, Strother C CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C. |
| To: | NRC COMMISSION (OCM) |
| Shared Package | |
| ML20077G246 | List: |
| References | |
| CON-#291-11833 A, TAC-66288, TAC-68373, TAC-68880, NUDOCS 9106250120 | |
| Download: ML20077G274 (13) | |
Text
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UNITED ST/sTES OF AMERICA
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BEFORE THE NUCLEAR REGULATORY CO!O'ISSION b-q-
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In the Matter of
' /'/(y,d50 4,4 PAN 7 Ohio Edison Company (Perry Nuclear Power Plant, Unit 1) and Cleveland Docket Nos.
A Electric Illuminating Company, et al.
and 50-346A (TAC (Perry Nuclear Power Plant, Unit 1 Nos. 66288, 68373, and Davis-Besse Nuclear Power 68880)
Station, Unit 1 OPPOSITION OF THE CITY OF CLEVELAND, OHIO, TO A HEARING WITH RESPECT TO THE DENIAL OF APPLICATIONS TO SUSPEND ANTI-TRUST LICENSE CONDITIONS AND PETITION TO INTERVENE IN THE EVENT HEARING IS REQUESTED AND IS GRANTED To the Honorable, the Commissioners of the Nuclear Pequlatory Commission:
The City of Cleveland, Ohio (Cleveland) responds to the Notice, published in the federal Register on May 1, 1991 (Vol.
56, No. 84, p. 20057).
That Notice concerns the Nuclear Regula-tory Commission's (liRC or Commission) denial of the applications of Ohio Edison Company (OE) and of Cleveland Electric Illuminat-ing Company (CEI) and Toledo Edison Company (TE) (collectively
Applicants " ).
Applicants sought suspension of the anti-trust cor.ditions contained in the Perry Unit 1 and Davis-Besse Unit 1 construction permits and operating licenses "until such time as there may be a factual basis for imposing [the conditions]"
(OE App. 80-81).
For the reasons hereinafter stated Cleic4and opposes any request for hearing by OE, CEI and/or TE respecting the Commission's denial of their applications or eny request for hearing by any person whose interest may be affected.
In the 9106250120 910607 PDR ADOCK 05000346 G
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2-hearing by any person whose interest may be affected.
In the event, however, that a request for hearing is filed and is granted Cleveland, additionally, includes herein a request for i
intervention.
1.
Cleveland is a municipal corporation, organized and existing under and by virtue of the Constitution and Laws of the State of Ohio and the charter adopted by its citizens.
2.
Cleveland owns and operates Cleveland Public Power (CPP), an electric distribution system in Cleveland serving the requirements for electricity of certain portions of Cleveland.
3.
CPP is in competition with CEI for the sale of electricity to residential, commercial and industrial customers in certain areas of the City of Cleveland, in many cases on a door-to-door basis.
Cleveland first shows that the Applicants are not entitled to a trial-type hearing.
Cleveland shows also that no hearing is required by the Atomic Energy Act or the Administra-tive Procedure Act on Applicants ' request or cn1 the request for hearing by a' person whose interest may be affected.
Cleveland finally shows that if a hearing is requested and granted, Cleve-land is entitled to intervention in the proceeding as a party-intervenor with full rights of participation as a party.
I.
Applicants Are Not Entitled to Demand A
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Hearing Either By Reason of the Provisions of the Atomic Energy Act or the Administra-tive Procedure Act and Na Hearing is Re-quired Because There Are No Genuine, Material Issues of Fact, Only A Question of Law I: Dresented.
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. The Notice published in the Federal Register scates that *the licensees (i.e., the Applicants), may demand a hearing with respect to the denial" of their applications for suspension l
of the anti-trust license conditions (material in brackets supplied).
The Notice does not cite to any provision of the Atomic Energy Act (AEA) or, for that matter, to any other statute that gives the Applicants the right to " demand" a hearing.
The Notico goes on to state that any " person whose interest may be affected by this proceeding may file a written petition for leave to intervene."
The Notice utilizes the language of Section 189(a) of-the AEA (42 USC S2239(a)).
From this language, and having searched in vain the AEA and the Administrative Procedure Act for a provision that supports the Notice's statement that the Applicants may " demand" a hearing, it appears that the Commission could only have reference to Section 189(a).
A.
Section 189(a) does not confer any hearing rights on the Applicants.
Section 189(a)l refers to, and confers upon, persons other than Applicants "whose interest may be affected" by the proceeding for the " granting, suspending, revoking, or amending of any license or construction permit" the right to request a
'hcaring and to be admitted as a party to the proceeding.
The intent of Congress in enacting Section 189(a) was to provide for public participation when any one of the categories enumerated in that'section is involved.
Union of Concerned Scientists v.
U.S.
Nuclear Reculatory Commission, 735-F.2d 1437, 1446, citing Circuit Judge Skelly Wright's dissenting opinion in Bellotti v.
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. NRC, 725 F.2d 1380, 1389 (D.C. Cir. 1983).
The court stated that in enacting Section 189(a), *we believe Congress vested in the public, as well as the NRC Staff, a role in assuming safe opera-tion of nuclear power plants".
(735 F.2d at 1447, emphasis supplied).
Consequently, it is beyond dispute that Section 199(a) confers no rights whatsoever on the Applicants respecting 1>r. rings, and as Cleveland shows, infra, pp. 5-8, no such hearing rights are conferred either on Applicants, or persons whose interest may be affected, in the circumstances of this case where genuine' issues of material fact are not raised by the requests.
Cf.- Union of Con;erned Scientists, 735 F.2d at 1448, citing BPI
- v. AEA, 502 F.2d 424, 428 (D.C. Cir. 1974) and National Souvenir Center, Inc. v. Historic Figures, Inc., 728 F.2d 503, at 512-513 (D.C. Cir. 1984).
i B.
Assuming, arguando, that Section 189(a) cont +r'
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hearing rigilts on Applicants, tha application-to suspend one of the license conoitions is nt.t.
one of the categories enumerated in that Sectaan L
The "right" to a hearing under Section 189(a) exists only if the proceeding is for one of the categories enumerated in that-Section.
San Luis Obispo Mothers for Peace v.
NRC, 751 F.2d 1287,-1312, 1314.(D.C. Cir. 1984).
The applications for tempo-rary suspension of a-condition of the license, not for suspension 1
of the license itself, is not one of the categories enumerated in Section 189(a).
The applications are not for the grant of a construction permit or a license.
They are not applications to suspend a license or construction permit.
They are not applica-tions to revoke a license or construction permit.
They are not
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. applications for amendment of the licenses, notwithstanding CEI's and TE's effort to describe them as amendments.
By no stretch of the. meaning or " amendment" is the temporary suspension of the anti-trust conditions an " amendment".
To "amenda is to improve, or to change for the better, or to correct an error, and an
" amendment" is a change for the better, or a correction, or an improvement, involving no change in the substance or essence.
Black's Law Dictionary, Revised Fourth Edition, p.
106.
Appli-cants' proposal to eliminate the anti-trust license condition which would free them to resume their anti-trust conduct can hardly qualify as correcting an error, a change for the better or an improvement, and certainly it is not a change that does not change the substance or essence of the license.
In fact, the elimination of these vital anti-trust license conditions would result in ef fectively issuing a new and very dif fere :t license to Applicants.
Moreover, because the applications do no'c fit any of the categories that confer on a person whose interest may be affected the right to request a hearing, such pe.rson is not entitled to a hearing under Section 189(a).
C.
Assuming, arquendo, that Section 189(a) confers L
- hearing rights on-Applicants and that the tem-l porary suspension of the anti-trust license conditions is one of the categories enumerated in Section 189(a), (1) neither a trial type of hearing nor any hearing is required either by-Section 189(a) or the Administrative-Procedure-Act, and (2) in any case, Applicants have had.
a hearing a.
Neither a trial-type hearing nor any hearing is required CEI and TE concede (Application, pp. 44-46) that i
6-neither Section 5 of the Administrative Act nor Section 189(a) require a trial-type hearing on the record and that no hearing of any kind is required.
"Under Section 5 of the Administrative Procedure Act ("APA"),
5 U.S.C.
S554 (Supp-1988), the formal hearing procedures set forth in APA sections 7 and 8 are applicable only if the adjudication in question 'is required by statute to be deter-mined on the record after opportunity for an cgency hearing Based on an exhaustive review of the legislative history of the Act, the Commission has held that Section 189 of the Act, discussed above, does not require a Section'554 nearing in every licensing or license amendment case.
Kerr-McGee Corporation, 15 N.R.C. 232 (1982).
Rather, the NRC found the legislative history to support the view that infor-mal procedures may be better suited than trial-type eviden-tiary hearing to certain adjudications:
'The emphasis, today, in the absence of a specific statutory directive as to the requisite form of 6 hearing, is on the requirements of a particular case, not on formalistic interpretations of statutory words "Id.
at 253 (quoting RCA Global Communications v.
FCC, 599 F.2d 881, 886 (2d Cir. 1977)).
Thus, the Commission conclud-ed that the word " hearing" in section 189(a) does not trigger the formal hearing requirements of APA Section 5.
"In this regard, the Commission has noted that a formal hear-ing is not required under Section 189 unless there are dis-puted adjudicative fccts to be resolved before a license is amended.
Kerr-McGee, 15 NRC at 255.
In applying the same principle, the courts have gone even further:
even where a statute imposes a requirement for an "on the record hearing" prior to agency action, thus triggering the hearing require-ments of APA Section 5, federal courts have repeatedly held that a formal evidentiary hearing is required only where there are genuine issues of material fact to be resolved.
See e.g.,
Vermont Department of Public Service v.
FERC, 827 F.2d 127 (1987); Consolidated Oil & Gas Co. v.
FERC, 806 F.2d 275 (D.C. Cir. 1986); Cerro Wire & Cable Co.
v.
FERC, 677 P.2d 124 (D.C. Cir. 1982).
'A hearing need not be commenced simply to resolve legal or policy issues.'
Kerr-McGee, 15 NRC at 255 (citing Independent Bankers, Ass'n v.
Board of Governors, 516 F.2d 1206, 1220 (D.C. Cir. 1975)).
" Consequently, neither the Atomic Energy Act nor the APA
[
require that any formal hearing be held with respect to this l
license amendment application, even if one should be request-1 l
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-. i ed by an interested party, where there are no genuine issues of material fact-to be resolved."
- CEI and TE could also have cited Cities Service Gas Co.
v.
- FPC, 535 F.2d 1278, 1290 (D.C. Cir. 1976), McCulloch Interstate Gas Corp. v.
FPC,-536 F.2d 910, 913 (CA lo, 1976); otter Tail Power Co., v.
FPC, 536 F.2d 240, 242 (CA 8, 1976); Appalachian Power Co.-v.
Environmental Protection Agency, 477 F.2d 495, 501 (CA 4, 1973).
There the court said that no formal evidentiary hearing is required "where there are no genuine, relevant, material, factual questions in dispute.'
In the present matter, there are no disputed adjudicative facts that need to be resolved.
Only i
legal issues are involved.
b.
Applicants Have Had Due Process; They Have Had a Hearing In their applications and in supplementary pleadings, in respouse to pleadings filed by the Department of Justice, Cleveland and others, the matter of the applications has been thoroughly canvassed, the Commission's decision addressed the contentions of the Applicants and the Commission has set forth the reasons for its conclusion that the applications should-be denied.
As is well-recognized in Federal administrative law, no other hearing is required, assuming that there is a requirement i
for 14aring.
Citizens For'Allegan County, Inc. v. FPC, 414 F.2d l
1125, 1129 (D.C. Cir. 1969).
D.
There is no occasion for a hearing because the Commission lacks the authority to grant the relief requested For the sake of brevity, Cleveland incorporates by
-.. -. ~. - -. -. -
8-reference its arguments on this point in fts answers to the applications of OC, CEI and TE (E.g., Answer in Opposition to OE's Application, pp. 24-52).
The Commission, having denied the applications, did not address Cleveland's arguments (Decision, p.
13, n.
18), but before the Commission orders and embarks upon a hearing on the basis of a request therefor by the Applicants or any one of them, or on the request of any person whose interests may be affected, the Commission must address Cleveland's argu-ments respecting the Commission's lack of authority to grant the relief requested.
In that connection, the Commission must also address Cleveland's arguments that res judicata, collateral estoppel and laches bar the grant of the relief requested by the Applicants (Answer in Opposition to OE's Application, pp. 53-86).
To proceed to a hearing where the Commission has no authority to grant the relief requested, would be a wasteful and useless undertaking.
II.
In The Event That The Commission Orders That A Hearing De Held,
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Cleveland Is Entitled To Intervention l
Cleveland is already a party in Docket Nos. 50-440A and 50-346A.
Cleveland was actively involved in the anti-trust j
review hearings that culminated in the inclusion of the anti-trust conditions, that the Applicants seek to obliterate, in the construction permit and subsequently in the operating license.
It appears, therefore, that Cleveland is not required to petition to intervene in order to have intervenor status in any hearing l
l that may be held.
Since, however, the Notice appears to require I
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. such a petition, out of an abundance of caution, Cleveland applies for intervention in the event a hearing is ordered.
As should be evident, however, from Cleveland's opposition to a hearing set forth above, Cleveland, although an interested person whose interests are affected, is not requesting a hearing under Section 189(a).
Cleveland is a beneficiary of the anti-trust corditions which the Applicanto seek to eliminate.
Therefore, its intererts would be affected, and affected adversely, if the anti-trust conditions were to be suspended.
The anti-trust conditions mandated access to CEI's transmission facilities and gave Cleve-land access to power from_ sources other than CEI with resulting substantial savings that hws enabled Cleveland's municipal electric operations to survive and to continue as a viable competitor of CEI, bringing to the citizens of Cleveland the important benefits of reasonably priced electricity.
To suspend the anti-trust conditions, even temporarily, would be to remove the constraints on anti-trust conduct by Applicants.
Applicants' suggestion that if they violate the anti-trust laws, Cleveland can bring a civil anti-trust action, is not-worthy of address by Cleveland or consideration by the Commission.
WHEREFORE, Cleveland requests that the Commission deny any and all requests for hearing whether by the Applicants or by persons whose interest may be affected, for each and all of the reasons heretofore presented in this pleading.
Applicants have
n.
. all of the above, if the Commission grants a hearing, Cleveland's petition to intervene be granted and that it be admitted to the proceeding with full rights of a party.
- .espectfu, y submitted Craig S. Miller Director of Law June W.
Wiener Chief Assistant Director of Law William M. Ondrey Gruber Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44115 Telephone (216) 664-2000
- f. s(hn;.I,
/k/'f nf QL Reuben Goldberg Channing D.
Strother, Jr.
Goldberg, Fieldman & Letham, P.C.
1100 Fifteenth Street, N.W.
Washington, D.C.
20005 Telephone (202) 463-8300 Attorneys for City of Cleveland, Ohio May-31, 1991
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OC(MIED UNITED STATES OF AMERICA
' C tit # 31 E91 f
BEFORE THE g'
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NUCLEAR REGULATORY COMMISSION cy,n g g OtC%ftflo f
' trute In the Matter of Ohio Edison Company (Perry Nuclear Power Plant, Unit 1) and Cleveland Docket Nos. 50-440A Electric Illuminating Company, et al.
and 50-346A (TAC (Perry Nuclear Power Plant, Unit 1 Nos. 66288, 68373, and Davis-Besse Nuclear Power 68880)
Station, Unit 1)
CERTIFICATE OF SERVICE I hereby certify that copires of the foregoing "Opposi-tion of the City of Cleveland,-Ohle, to a Hearing With Respect to the Denial of Applications to Suspend Anti-Trust License Condi-tions and Petition to Intervene in the Event Hearing is Requested and is Granted" have been served upon the parties or their attor-neys on the attached Farvice List, this 31st day of May, 1991, by deposit in Washington, D.C.
in the United States Mail, first class, postage prepaid.
et k W $ & f JReuben Goldberg //
Attorney for Cify of Cleveland, Ohio
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s UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION In the Matter of Ohio Edison Company (Perry Nuclear Power Plant, Unit 1) and Cleveland Docket Nos. 50-440A Electric Illuminating Company, et al. :
and 50-346A (TAC (Perry Nuclear Power Plant, Unit 1 Nos. 66288, 68373, and Davis-Besse Nuclear Power 68880)
Station, Unit 1)
SERVICE LIST Joseph Rutberg, Esq.
Michael J.
Mishkin, Esq.
Office of the General Counsel Squire, Sanders & Dempsey U.S._ Nuclear Regulatory 1201 Pennsylvania Avenue, N.W.
Commission Post Office Box 407 Washington, D.C.
20555 washington, D.C.
20044 Janet Urban, Esq.
John P.
Coyle, Esq.
U.S. Department of Justice Gregg, D.
Ottinger, Esq.
Antitrust Division Duncan, Allen and Talmage Room 9816 JCB 1575 Eye Street, M.W.
555 4th Street, N.W.
Washington, D.C.
20005 Washington, D.C.
20001 Hon. Howard M. Metzenbaum David R.
Straus, Esq.
United States Senate Spiegel & McDiarmid Washington, D.C.
20510 1350 New York Avenue, N.W.
Washington, D.C.
20005 Anne Marie Gibbons, Esq.
American Public Power Justin T. Rogers, Jr.
Association President 2301 M Street, N.W.
Ohio Edison Company Third Floor 76 South Main Street Washington, D.C.
20037 Akroz, OH 44308 Gerald Charnoff, Esq.
Shaw, Pittman, Potts &
Trowbridge 2300 N Street, N.W.
Washington, D.C.
20037
7j i
j Fed:ral Regist:r / Vol. So, No. 84 / Wednesday, Mav 1.1991 / Notices 20057 (Docket Mos. 50-4s0A AND $0-346Al Commission. Washington. DC. 20555
- 3. Discussion of Working Group and to Gerald Charnoff. Esq Shaw, actions.
Ohio Edison Co.; The Cleveland Pittman. Potts. and Trowbridge,2300 N.
A portion of the May 15th session will Electric tiluminating Co.; The Toledo Street. NW., Washington, DC'20037 be closed to the public.
Edison Co.t Notice of Dental of (attorneys for Ohio Edisoni, and to The bnefing on some cf the current hiicha el T. Mishkin. Esq, Sqm-activitics of OSTP necessanly will act i Opers g Ucen es an Sandns and Dempsey,21 involve discussion of material that is Opportunity for Heartn9 Pennsylvanis Avenue NW., P.O. Box formally classified in the interest of The U.S. Nuclear Regulatory 407. Washington. DC 20044 (attorneys national defense or for foreign reasor:s.
Commission (the Commission) hLs for Cleveland Electric I!!ummatmg and This is also true for a portion of the derued requests by the Ohio Edison Toledo Edison).
briefing on panel studies. As well, a Company, the Cleveland Electric For further details with respect to thi' portion of both of those briefings will Illummatmg Company, and the Toledo action. see (1) the applications for require discussion of internal personnel Edison Company (the licensees) for amendment dated September 18,1987 procedures of the Executive Office of amendments to Facility Operating and May 2,1988 (2) the Department of the President and information which,if Ucense Nos. NPF-58 and NPF-3, issued justice letter to the NRC, dated June 13, prematurely disclosed, would to the licensees for the operation of the 1990, and (3) the Commission's letter t sigmficantly frustrate the Perry Nuclear Power Plant. Unit 1, and the licensees, dated Apnl 24.1991.
implementation of decisions made the Davis-Besse Nuclear Power Station.
These documents are available for requiring agency action. These portions Umt 1. located in Lake County and public inspection at the Commission s of the meeting wdl be closed to the Ottaw a County, Ohio, respectively. The Pubuc Document Room, the Gelman public pursuant to 5 U.S.C. 552b.(c)(1),
application of Ohio Edison, dated Duilding 2120 L Street NW.,
(2), and (9)(D).
September 18.1987, pertained solely to Washington. DC.: at the Perry Public A portion of the discussion of panel Ucense No. NPF-58. while the joint Ubrary,3753 Main Street. Perry, Oh!
composition will necessitate the opphcation of Cleveland Electnc 44081: and at the University of Toled disclosure ofinformation of a personal Illanunatmg and Toledo Edison, dated Ubrary. Documents Department. 21 nature, the disclosure of which would May 2,1988, related to both licenses.
Dancroft Avenue. Toledo. Ohio 43000. A constitute a clearly unwarranted Notifications of receipt of these copy of item (3) may be obtained upon invasion of personal privacy.
amendment requests were published in request addressed to the U.S. Nuclear Accordmgly, this portion of the meetmg the Federal Register on December 22.
Regulatory Commission. Washington, will also be closed to the public, 1987 (52 FR 4M73) and on June 16,1988 DC 20555, Attention: Document Control pursuant to 5 U.S.C 552b.(c)(6).
(53 FR 22589).
Desk.
Because of advance security The purpose of the licensees' Dated at Rockville, Maryland, this 24th day arrangements, persons wishing to attend amendment requests were to suspend of Apnl1991.
the open portion of the meeting aboald the antitrust conditions in the two John N. Hannon-contact Ms. Kathleen Elim, at (703) 528-g opratmg hcense as they apply to these Director. Proicct Dirwetoivre 11/4 Division of 0090 prior to Msy 14,1991. Ms. Elim is respective licensees.no NRC staff has Rector Projects m/IV/V, Office ofNuclear also available to provide specific advised the licensees that the proposed ReactorRegulation, information regarding tima, place and 3
amendments are denied, based on the (FR Doc. 91-10:'a7 Filed 4-3401; eA5 ami agenda for the open session.
staff's evaluation of the arguments made sua.o coos ps.a.eus in support of the applications, the Dated: Apnl"8,1901.
extensive public comments received on
- Demar W. Itawkins, the proposed amendments, and the Executive Assistoat to D. Allan Bromley, OFRCE OF SCimCE AM views expressed by the Department of office ofScience and Technology Pblicy.
TECHNOLOGY POUCY Justice in a lune 13,1990 letter to the (FR Doc. 91-1Gn3 Filed 4-:8.et: 4 52 pm) l NRC. The licensees were notified of the National Adytsory Committee on suaea coce smw Commission's denial of the proposed Semkonductors amendments in a letter dated April 24 1991.
The purpose of the National Advisory OFFICE OF THE UNITED STATES Dy May 31,1991. the licensees, may Committee on Semiconductors (NACS)
TRADE REPRESENTATIVE demand a hearing with respect to the is to devise and promulgate a national s
i denial described above. Any person semiconductor strategy, including gy whose interest may be affecte d by this research and development. The
..i proceeding may file a written petition implementation of this strategy will Japanese Govemtr,ent Procurement j
for leave to intervene, assure the continued leadership of the Policies Affecting Architectural, A request for hearing or petition for United States in semiconductor Engineering and Construction-Helated a
leave to intervene must be filed with the technology.no Committee will meet on Services i
Secretary of the Commission, U.S.
Wednesday, May 15,1991 at Science Nuclear Regulatory Commission.
Applications Intemational Corporation AnzNcy: Office of the United States Washington. DC 20555, Attention:
(SAIC).1555 Wilson Boulevard 7th Trade Representative.
Docketing and Service Branch, or may Floor, Rosslyn. Virginia. The proposed Action: Notice of proposed be delivered to the Commission's Public agenda is:
determination pursuant to section 300 of Document Room, the Gelman Building.
- 1. Driefing of the Committee on its tha Trade Act cf1974 (the " Trade Act").
2120 L Street. NW., Washington, DC, by organization and administration.
as amended.19 U.S C 2416: and request l
the above date.
- 2. Presentations to the Committee by for public comment on proposed U.S.
A copy of any petitions should also be OSTP personnel and personnel of other action under section 301 of the Trade sent to the Office of the General agencies on proposed and ongoing Act' Counsel. U.S. Nuclear Regulatory studies regardmg semiconductors.
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