ML20082B511
| ML20082B511 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 07/10/1991 |
| From: | Goldberg R, Strother C CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#391-11964 A, TAC-66288, TAC-68373, TAC-68880, NUDOCS 9107150235 | |
| Download: ML20082B511 (20) | |
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}/%Y UNITED STATES OF AMERICA ).r BEFORE THE NUCLEAR REGULATORY COMMISSION
,1 J1 10 P2 :08 v .
L' I :
In the Matter of ) u Ohio Edison Company (Perry Nuclear )
Power Plant, Unit 1) and Cleveland ) Docket Hos. 50-440A Electric Illuminating Company, et al. ) and 50-346A (TAC (Perry Nuclear Power Plan *, Unit 1 -) Hos. 66288, 68373, and Davis-Besse Nuclet
- Power ) 68880)
Station. Unit 1) )
10 C.f.R. 52. 714 (b) (1) SUPPLEMENT TO CONuIT77NAL PETITION TO INTERVENE OF '
THE CITY OF CLEVELAND, OHIO SUBMITTED IN CONNECTION WITH JULY 25, 1991 PREHEARING CONFERENCE To the Honorable, the Members of the Atomic Safety and Licensing Board Miller, Bechhoefer and Frye:
Pursuant to 10 C.F.R. 52. 714 (b) (1) , and consistent with the-June 13, 1991 notice of the establishment of Atomic Safety and Licensing Board (56 Fed. Reg. 28426) and the June 19, 1991
-" Memorandum and Order" of the Atomic Safety and Licensing Board s
(" Board") (56 Fed. Reg. 29292) setting a prehearing conference for July 25, 1991 and delineating certain matters for consider-ation, the City of Cleveland, Ohio (" Cleveland"), supplements its i
May 31, 1991 " Opposition to a Hearing With Respect to the Denial of Applications to_ Suspend Anti-Trust License Conditions-and Petition to Intervene in Event Hearing is Requested and is Granted".
INTRODUCTION As stated in its May 31 opposition, Cleveland opposes 9107150235 910710 PDR
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M ADOCK 05000346 PDR ;
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any trial-type or, for that matter, other kind of further hearing in this proceeding. As demonstrated by C1cycland in papers su' emitted previously in this proceeding (see Cleveland February 17, 1988 Answer to Ohio Edison Company's ("OEd) ApplicaVion), the Commission has no jurisdiction to consider a suspension of anti-trust conditions after an operating license has been issued.
Thus, this Board has no jurisdiction to consider the Applicants' contentions on alleged changes in nuclear plant costo. Neither the statutes, the Commission's regulations, nor the procedents provide Applicants with any right to a hearing beyond the pro-ceedings that have already taken place.
Moreover, the Commission has already determined, consistent with the Department of Justice's determinations and after extensive comments by Applicants, Cleveland, American Municipal Power-Ohio, Inc. (" AMP-Ohio") and others, that Applicants' changed circumstances allegations, which are disputed in any event, are immaterial to the Commission's authority to impose anti-trust conditions. To hear these allegations, the Board would be acting counter to the determinations of the Commission, the Director of Nuclear Reactor Regulation and DOJ.
Furthermore, it is completely unclear what more Appli-cants would wish to say, or would have the right to say, on these points that they have not said at length already. Apparently what Applicants have in mind is that they would simply say again in papers or on oral argument what they have already said, hoping to convince the Board that the Commission, the Director and DOJ were wrong, whereupon the Commission would again review the same
- issues it has aircady reviewed on substantively the same record as the Commission and Director considered in the first instance.
The proposed process is untenable and would be a waste of time and resources, even if Applicants had some right to further proceedings, which they do not. 11 0 further proceedings should be established by this Board.
Ti1E COMMISSIO!1'S REGULATIOllS DO 110T PROVIDE Tl!AT APPLICAllTS Call DEMA14D A IIEARI!JG The Commission regulations Applicants rely on for the relief they requested implicitly confirm that the Commission has no jurisdiction to consider that relief and specifically do not provide for a hearing even at the stage of a license proceeding where the Commission and tne Director would have the authority to consider certain changed circumstances.
Applicants in the present proceedings have expressly stated that their applications are made pursuant to 10 C.F.R. 52.100. Indeed they could make no other claim because Subpart A, 10 C.F.R. SS2.100 et. seq. are expressly applicable to " amend.nent of a license at the request of the licensec" and Applicants state that what they seek are license amendments. Moreover, Subpart A would govern despite any conflicting language contained in any other more general rule. 10 C.F.R. 52.3.
Although 52.100 is not written with the utmost clarity, it is certain that once a construction license is issued, with respect to anti-trust license conditions, changes in the condi-tions can be made only at the time of the issuance of the operat-ing license and then only upon a showing of r-ignificant material
4 changos in the licens.a's activitics or proposed activities "since tho completion of thn previous antitrust review in connoc-tion with tho construction permit". 10 C.F.R. 52.101 (c) (1) . !
Quito simply there is no provision and no authority for amending the licenso with respect to anti-trust conditions after the i operating licenso has issued as the Cleveland's earlier filings with-the Commission have demonstrated. Soo, e.g., Clevoland February 19, 1988 Answer to OE Application at 24-52. I Clovoland Electric Illuminating Company ("CEI") and Toledo Edison Company ("TE") rely (apparently solely for purposes of their answer to Cleveland's opposition to a hearing) on Florida Power & Licht Co. (St. Lucie Nuclear Power Plant, Unita 1 and 2), CLI-89-21, 30 N.R.C. 325, 330, n. 2 (1989), for the proposition that "[c]learly, if the Commisslun retains the power to imposo (licensing) conditions, the Commission retains the power to romove them." .CEI and TE Answer at 8. St. Lucie, however, is entirely inapposite. (OE apparently does not hazard the leap of faith entailed by any reliance on St. Lucio.)
In St. Lucie, Florida Power & Light Co. ("FP&L") sought an exemption from Commission regulations requiring air-supplied respirators for workers in radioactivo environmonts. Under the proposed exemption FP&L workers would in certain circumstances be able to use air purifying respirators. The Commission staff granted the proposed excmption and published a notico of-that action in the Federal Register without providing a notice of opportunity for hearing. The Commission determined, inter alia, that a local citizen who filed a petition for intervention and
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sought a hearing to oppose the exemption would not be affected by the exemption and therefore lacked standing. The Commission expressly did not reach the issue of whether the petitioner had raised a material issue of fact or the issue of whether Section 189(a) of the Atomic Energy Act provides the opportunity for an intervenor to request a hearing on a proposed exemption from a Commission regulation.
In denying the intervention, the commission, in pass-ing, in response to a " suggestion" by FP&L, stated that if it has authority to grant an exemption, it has authority to revoke that exemption. CEI and TE quote the Commission and indicate at the end of the quote "(citation omitted)". CEI and TE Answer at 8-9.
The only citation for the Commission's footnoted statement is the Commission's reference to a FP&L response. There is no statutory or case law authority cited for the statement and apparently Et2 Lucie itself is the only authority CEI and TE have been able to find for that statement.
Clearly, in St. Lucie the Commission was stating that regulation exemptions are implicitly revocable. As cleveland has previously demonstrated, anti-trust license conditions are not explicitly or implicitly revocable after the operating license has been issued. E.g., Cleveland February 17, 1988 Answer to OE Application at 24-81.*/
- / Applicants also take issue with tieveland's statement that the applications for suspension of license conditions do not constitute applications for " amendments" within the meaning of Soction 189(a). CEI and TE June 17 Answer to Cleveland opposition to Hearing at 5-6; OE June 17 Answer at 4, n. 3.
(continued...)
i
. If by some torturing of the language of the statutes, precedents and regulations, it was determined that Subpart A does e
indeed permit such amendments after the operating license has issued, Applicants are still not entitled to a hearing.1/ But making the wild assumption that such amendments are not pro-scribed, the only rules that would govern, inasmuch as there are no other rules for such amendments, provide that when it is determined that no significant change has occurred and after
- publication, notice and reevaluation of that determination, the Director of Reactor Regulation "shall deny the request and shall i
publish notice of no significant changes in the Federal Register.
The notice and finding become the final NRC decision thirty (30) days after being made and only in the event that the Commission has not exercised sua sponte review." 10 C.F.R. 52.101 (c) (2 ) and (3). It is beyond cavil that the Commission has not exercised sua sponto review. Further, by any fair reading, the Director's decision dated April 24, 1991 (notice published in the Federal Register May 1, 1991) is a finding that there were no significant changes, which explains the references in the Secretary's notice
- / ( . . . continued)
Applicants neglect to acknowledge that Cleveland's underlying assertion is that changes in a license that the Commission does not have the jurisdiction to grant cannot be " amend-ments" for which hearings must be granted under section 189(a). Congress could not have intended that the relief Applicants request would fall within the category of an
" amendment" under Section 189(a) when the Commission has no authority to act on such a request other than to deny it.
- / We cannot conceive how the language can be tortured to enter-tain such amendments. The rules expressly relate to a period
, prior to issuance of the operating license.
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4 published in the Federal Register and the Board's notice as to the Commission having decided the matter. Accordingly, the Director's decision has become final and is the Commission's r
final decision in the matter. Applicants' only recourse is an appeal to the courts.1/
If it were contended that the Director's decision is not a finding that, as a matter of law, there is no significant change, Applicants would still be without a right to a hearing under the Commission's rules. Under 10 C.F.R. 52.101 (c) ( 4 ) , if the Director finds that significant changes have occurred, then the provisions of 10 C.F.R. 52.101(d) apply.11/ Under S2.102 (d) (2 ) , if the Directot determines that such review is advisable on the ground that there have been significant changes "in the licensco's activities or proposed activities . . . sub-ses ent to the previous review of the Attorney General and the Commission under Section 105(c) in connection with the construc-tion permit", then the Director must refer the application (for an operating License) to the Attorney General as required by Section 105(c) of the Atomic Energy Act. 10 C.F.R. $2.102 (d) (1) .
The fact that no such referral has been made is further evidence that the Director has found no significant changes. Since no
- /- As Cleveland has already stated, howsoever approached, the conclusion is inescapable this so-called " amendment" cannot be entertairied by the Commission. E.g., Cleveland February 18, 1988 Answer in Opposition to OE Application at 24-81. If these rules do not apply, then there are no rules that apply, and there are no such rules because such " amendments" as are here involved are proscribed by the AEA.
l **/ The rules do not permit the Director to hold that a determi-l nation cannot be made. The director must say yea or nay.-
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referral as required by Section 105(c) of the AEA has been made, it is now untimely to consider a hearing even assuming, arguendo, that a significant changes finding had been made. However, referral to the Attorney General and roccipt of advice would not even then entitle Applicants to demand a hearing. Upon roccipt of the Attorney General's advice, the Director may either order referral to hearing or an intervonor may request a hearing. 10 C.F.R. $2.102(d)(3).
Thus, there is no provision for the Applicants to demand a hearing under the regulations they specifically relied upon in requesting relief in this proceeding. The Director has not ordered a hearing and no intervenor has requested a hearing.
Therefore, no hearing can be held.
The regulations are consistent with Section 189(a) of the Atomic Energy Act ("AEA"), 42 U.S.C. 2239(e), on this point.
As found in Carolina Power and Licht Co., 11 NRC 233 (1980), an operating license hearing can be initiated in only two ways: (1) a finding by the Commission that the public interest requires a hearing or (2) an interested person can intervene and request a hearing. See 10 C.F.R. S2.714.*/
- / CEI and TE cite 10 C.F.R. 52.714(b) preceded by a "212" for the proposition that if their request for a hearing were granted they would be required to submit specific contentions for which they seek litigation in a hearing and referenceu to supporting law and facts. This "QLx" form of citation is a tacit admission by applicants that 20 C.F.R. 52.714 does not apply to Applicants. 10 C.F.R. 52.714, consistent with Section 189(a), specifically limits requests for hearing to "any person whose interest may be affected by a proceeding" that has applied to intervene. Tnus, Applicants also tacitly concede that 10 C.F.R. 52.714 provides them no right to a hearing.
4 SECTION 189(a) PROVIDES ONLY INTERVDIORS, NOT APPLICANTS, A RIGHP TO A HPARING Applicants in their answers to Cleveland's opposition to a hee. ring apparently rely solely on Section 189(a), for their assertion that they hhvo the right to a hearing. CEI and TE June 17, 1991 Answer to Clevoland Opposition to a Hearing at 3-5; OE June 17 Answer at 2-3. App 11 canto cito no regulation or proce-dent, or even legislativo history, supporting their claim that Section 189(a) provides Applicanta a right to a hearing. The
. specific language of Section 189(a) states that the Commission "shall grant a honring upon the requect of any person whose interest may be affected by the procooding" and "shall admit any such norson ag_a__ party to such croceeding . "
. . . Clearly, the statute speaks in terms of potential intervenors as "affected persons" because the Applicants in overy instance would already be " admit (ted) as a party to such proceeding." In the normal course, Applicants have had their say to the Commission through their applications and other filings. It is other affected persons that Congress sought to bring into the administrativo process and to guarantee hearing rights under Section 189(a).
The Commission's regulations are consistent with the statuto.1/
- / As OE puts it (June 17 Answer at 3), procedents cited by Cleveland in its May 31 opposition to a hearing, Union of Eqngprned Citizeng v. HEC, 735 F.2d 1437, 1446 (D.C. Cir.
1984), cert. denied, 469 U.S. 1132 (1985) and Bellotti v.
HEC, 735 F.2d 1380, 1389 (D.C. Cir. 1983), "were concerned only_vith the hearing rights of potenti&1 intervenors, not the hearing rights of licensees." However, this is because hearing rights of potential intervenors are the only hearing rights provided under Section 189(a). For the same reasons, there are literally scores of NRC precedents discussing (continued...)
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l FURTHER HEARINGS ARE IN NO EVENT NECESSARY OR DESIRABLE AND WOULD SERVE NO PURPOSE As noted above, as stated in the May 1, 1991 Federal Register Notice (56 Fed. Reg. 20057), the Commission has already denied the two applications to suspend the anti-trust licensing conditions. As further noted above, this denial was based upon extensive presentations made by the applicants, Cleveland, American Municipal PoWor-Ohio, Inc. (" AMP-Ohio") and others; views expressed by the Department of Justice; and an evaluation by the impartial staff of the Commission's Office of Nuclear '
Reactor Regulation.1/
- /(... continued) intervenors' hearing rights under Section 189(a), but Appli-cants cite none for the proposition that Congress provided Applicants with hearing rights under that section.
r
- / OE'S attempt to characterize the Commission's Office of the Director of Nuclear Reactor Regulation as other than impar-tial is untenable. OE June 17 Answer to Cleveland opposition to Hearing at 5. The Commission staff made its evaluation based upon the public record made by the applicants and commenters--public except, perhaps, for a memo from OE's counsel's office appearing as Appendix B to NRC staff's June 20, 1991 Response to petitions to Intervene which was appar-ently never served on Cleveland). The Director and his office at that point in the proceeding acted in as much of an adjudicatory role and as impartially as any other adjudicato-ry official or body. (Clearly, 10 CFR S2.781, cited by OE, id., governing ex parte communications and separation of HRC staff functions did not apply to the Office of Nuclear Reac-tor Regulation at the stage of the proceeding when its evalu-ation took place.) Indeed, the Commission's regulations in many-circumstances provide for the Director to act in an ,
adjudicatory role subject only to Commission sua sponto review. See 10 C.F.R. 52.101 (e) (2 ) and (3). In connection with applications for operating license, the Director makes a determination of whether or not there have been significant changes since the completion of the previous antitrust review in connection with the construction permit. If Director determines there have been no such changes, his determination becomes the Commission's final determination 30 days after (continued...)
I Applicants and commenters, including Cleveland, havo +
said as much as need bo said for a " paper" hearing of the type apparently envisioned in Applicants' requests for hearing as clarified by their responses to Cleveland's opposition to a !
hearing. CEI and TE June 17 Answer at 6-7; OE Juno 17 Answer at 4-5. It is impossible to divine what more it is that Applicants would have to say about their issues of alleged changed circum-stances. Clearly there is no nood for additional paper for a determination, as the commission has mado, that as a matter of ,
law assertions that the nucicar plants are no longer " low cost" are not germane to the authority of the Commission to impose anti-trust license conditions. The Commission has decided that the alleged facts regarding " low cost", which Cleveland and others disputo, are immaterial. There would be no purposo to the discretionary hearing Applicants allege would be allowable under T
10 C.F.R. 52.104.- To proceed any further, tho Board would have to determine that such facts are material,. reversing the Commis-sion, as well as face and resolve jurisdictional and res judica-ta, collateral estoppel, law-of-the-case, laches issues, as a ,
precondition to evidentiary hearings on such facts and on other material facts. ,
San Luis Obispo Mothers for Peaca v. NBC, 751 F.2d 1287
- /(... continued) notice is published unless the Commission exercises review.
OE's real complaint is not lack of impartiality or separation of adjudicatory and litigation functions but that the Direc- >
tor of-Nuclear Reactor Regulation objectively reached a result OE'did not desire. This does not make the Director of Reactor Regulation any less impartial or inappropriate as a decision maker.
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(D.C. Cir. 1984), vacated in non-portinent part, 760 F.2d 1320 >
(D.C. Cir. 1985); and affirmed en banc in non-portinent part, 789 F.2d 26 (D.C. Cir. 1986) , cert denied, 479 U.S. 923 (1986),
relied upon by Applicants in their answers to Cleveland's opposi-tion to a hearing for other purpocos (CEI and TE Answer at 5-6),
is instructive on the lack of any justification for a hearing on Applicants' contentions. There the D.C. Circuit, found that even if petitioners had a right to a hearing under Section 189(a),
refused to remand to the Commission for a hearing becauso the evidence intervonors proposed to present was not material to the issues the Commission was to consider under the statute. The court stated "[wjo declino to require the commission to engage in t
a procedural exerciso whose outcome we already know would be adverso to petitioners." Id. at 1317.
As the Commission has a ready determined, the matters Applicants intend to raire at the lhearing" they sock are immate-rial to the reliot they seek. Here, as in. san Luis Obispo, the Board, and the Commission, should not engage in a procedural exercise whose outcome we already know.
Furthermore, assuming, arguendo, that additional proceedings on whether or not facts relating to " low cost" are material or are in any respect desirable or proper, such proceed-ings should be limited to oral argument unless and until the Board determines such facts are material and the Board should be the entity to decide whether oral argument is'necessary. Appli-cants have no right to oral argument and, unless it is desired by the Board, it is not of any inherent utility to have oral argu-
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mont. The papers already submitted in this proceeding are sufficient to support the Commission's determination on the threshold issue that the factual allegations Applicants would raise are immaterial and to dotormine the threshold issuo that the Commission has no jurisdiction to grant the relief requested.
LIST OF CONTD4TIONS
-or the reasons stated above and in Clevoland's May 31 Opposition, which was, consistent with the May 1 Federal Register l notico, filed concurrently with Applicants' requests for hearing, a hearing is not proper because
- 1. Applicants arc not " persons . . . whose interest may be affected" within the meaning of Section 189(a) of the '
AEA and no other provision of the AEA or Administrativo Procedure Act providos a right to Applicants for a further hearing (Cleveland May 31 opposition at 2-4).
- 2. Assuming, arguendo, that Section 189(a) conferred any hearing rights on Applicants, the applications to cuspend anti-trust licenso conditions do not fall within one of the categories enumerated in that Section (Id. at 4-5). The proposed suspension goes beyond any
" amendment" resulting in such profound changes to the operating license as to constitute, if granted, a
-revocation of the existing license and a grant of a new and very different licensa to Applicants. Moreover, since the Commission has no jurisdiction to grant the requested suspension, the suspension cannot be an "amondment" within the meaning of Section 189(a).
- 3. Assuming, arguendo, that Section 189(a) conferred como hearing rights on Applicants and that the temporary i
suspension of the anti-trust licenso conditions is one of the categories enumerated in Section 189(a), (1) no trial-type or other hearing is required by that section or the Administrativo Proceduro Act because Applicants' contentions must be rojected as a matter.of law (bo-cause, among other things, the Commission's determina-
, tion is correct for the reasons stated by it and by the
! DOJ) on bases involving no disputed and adjudicative (i.e.,_the issue of whether or not the alleged facts
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are material) facts;1/ and (2) Applicants have had 1/ Applicants attempt to mischaracterize Cleveland's position when they state that "there are no disputed material facts, and all parties agree as to the unfavorable economics con-cerning the Perry and Davis-Besse facilities." CEI and TE June 17, 1991 Answer to Cleveland's opposition to llearing at
- 6. See also OE June 17 Answer at 4. Cleveland's consistent position in this proceeding, which is consistent with the April 24, 1991 Director's determination adopted by the Com-mission, has been that Applicant's allegations as to the cost or " economics" of the output of the plants at issue, or alleged contrasts betwoon what certain persons may have thought such costs would be and what the actual costs as a matter of law (even if true) are legally insufficient and are immaterial to support the applications to suspend so that the issues of fact concerning Applicants' factual allegations need not be reached. Applicants' allegations and how those facts would be applied in a full-fledged anti-trust licensing conditions trial-type hearing raise broad ranging issues of material fact that could not be resolved without a trial-type hearing even if Applicants m.srcome the legal hurdles to any such hearing and came forward with a sufficient delineation of their allegations, whit > they have not. For instance, the capital cost of a plant doe not determine the cost of its energy occput and, whether or not the capital cost in high, does not determine what the output is or the price at which that output is or could be sold. Marcover, newer plants are typically relatively more expensive and decline in relative costs over time and as they are depreciated. As the Depart-ment of Justice determined
"(a) ' low cost' standard is inherently elusive, but in any event, it is noted that Petitioners' Annual Reports reflect that there are benefits that accrue from nuclear plant ownership. Because the NRC can deny the amendment requests solely on legal grounds, however, a long and resource inten-sive hearing on the costs and b9nefits of the subject nuclear plants is not necessary."
June 13, 1990 Advice Letter of DOJ, p. 3, n. 6. If a hearing were to be held on whether or not the nuclear plants have changed status (or changed for any meaningful amount of time) and become "high cost", whatever that means, and whether other benefits end attributes of the plants to applicants counter any alleged high-costs, Cleveland would in'end to participate demonstrating that the plants have not necessari-ly, fundamentally or over the long term changed in status and offer significant benefits to their owners beyond their construction costs. Such issues would require significant (continued...)
all the hearing that is required (id. at 5-7). See, by analogy, 10 C.F.R. $2.101(c).
- 4. There is no occasion for a hearing because the Commis-sion lacks the authority to grant the relief requested (id. at 7-8, incorporating by reference Cleveland's answers in opposition to the applications (see February 19, 1988 Cleveland Answer in Opposition to OE's Appli-cation, pp. 24-52)).*/
- 5. Res judicata, collateral estoppel, law-of-the-case and laches bar the grant of the relief requested by Appli-cants (Cleveland May 31 Opposition at 8 citing Cleve-land's Answer in Opposition to OE's Application at pp.
- /(... continued) discovery of Applicants. Cleveland would also present evi-donce of prior and recent anticompetitive acts by Applicants.
Again to reach such a hearing, Applicants would have to overcome such other legal hurdles as the Commission's lack of jurisdiction to alter anti-trust license conditions after the operating license stage, res judicata, collateral estoppel law-of-the case and laches. See, e.g., Cleveland February 19, 1988 Answer to OE Application.at 53-86.
- / Inasmuch as the Board has requested and will have before ,
it Applicants' applications, Cleveland requests that the Board also obtain from the Commission's public files the responsive materials filed by Cleveland as well as re-sponsive materials filed by other commenters such as American Municipal Power, Ohio Inc. (" AMP-Ohio"). The relevant materials filed by Cleveland include Cleveland's February 19, 1988 Answer in Opposition to OE's Applica-tion; Cleveland's September 13, 1988 Comments in Opposi-tion to CEI and TE's Application; and Cleveland's August 31, 1990 letter to the Director of the Office of Nuclear Reactor Regulations Responding to OE's July 24 letter and attachments. If the Board desires, Cleveland would be pleased to supply the Board with copies of such materi-als. They provide substantial detail as to some of the contentions of law and fact Cleveland would expect to address in any hearing depending upon the specific con-tentions Applicants would intend to pursue at this stage of this proceeding and the bounds of any " hearing" or-dered by the Board and/or Commission. Cleveland asks that these materials be deemed incorporated, as appropri-ate, as statements and explanations of the bases for Cleveland's contentions.
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53-86).*/
- 6. If, contrary to Cleveland's positions stated herein, a huaring is held on Applicants' underlying factual allegations that there are significant changed circum-stances that would support a suspension of the anti-trust license conditions, Cleveland would contend that those changed circumstar.ces do not exist, and thnt even if they did exist they would not support the requested relief and that, furthermore, other presently existing circumstances require maintenance of the existing anti-trust conditions. See footnotn at pages 14-15, supra.
CONCLUSION WHEREFORE, for the reasons stated above and in its previous filings in this proceeding, which it requests that the Board take notice of and incorporate where appropriate herein, Cleveland requests that the Commission and the Board deny Appli-cants' request for hearjng. Cleveland further requests that, if a hearing is granted, Cleveland's petition to intervene be
- / Like the Commission staff (see June 20, 1991 "NRC Staff's Response to Pequests for Hearing"), Cleveland cannot deter-mine predively what Applicants would intend to raise at a
" hearing" or how those issues would relate to their applica-tions to euspend herein or to issues they previously raised at the Commission or which could have been raised.
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4 granted and that it be admitted to the proceeding with fu'4 rights of a party.
Respectfully submitted, Craig S. Miller Director of Law June W. Wiener Chief Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44115 Telephone (216) 664-2000 Hft, /Wht, '
6i en Wj -
Reuben Goldberg Channing D. Strother, Jr.
Goldberg, Fieldman & Lotham, P.C.
1100 Fifteenth Street, N.W.
Washington, D.C. 20005 Telephone (202) 463-8300 Attorneys for City of clevoland, Ohio July 10, 1991
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UNITED STATES OF AMERICA i"! l 4 BEFORE THE NUCLEAR REGULATORY COMMISSION
'91 Ji 10 P7 :09 i
i In the Matter of : '
l Ohio Edison Company (Perry Nuclear -
. . .. j Power Plant, Unit 1) and Cleveland : Docket Hos. 50-440A 1 Electric Illuminating Company, et al. : and 50-346A (TAC (Perry Nuc1 car Power Plant, Unit 1 : Nos. 66288, 68373, and Davis-Besse Nuc1 car Power : 69880) 51Ation Unit 1) :
LERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "10 C.F.R. 52. 714 (b) (1) Supplement To Conditional Petition To Inter-vene Of The City of Cleveland, Ohio Submitted In Connection With July 25, 1991 Prehearing Conference" have been served upon the parties or their attorneys on the attached Service List, this 10th doy of July, 1991, by deposit in Washington, D.C. in the United States Mail, first class, postage prepaid, except those nancs followed by an asterisk, where service was made this same date by air courier or hand delivery.
A
'CEanning 31 ~t- thef,'JrY L{
/ Ohio Attorney (#r ity of Cleveland,[
l
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$t w
I 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 50-146A (TAC (Perry Nuclear Power Plant, Unit 1 ) Nos. 66288, 68373, and Davis-Besse Nuclear Power ) 68880)
Station, Unit 1) )
SERVICE LIST Joseph Mutberg, Esq. Michael J. Mishkin, Esq.
Sherwin E. Turk, Esq. Squire, Sanders & Dempsey Office of the General Counsel 1201 Pennsylvania Avenue, N.W.
U.S. Nuclear Regulatory Post Office Box 407 Commission Washington,- D.C. 20044 Washington, D.C. 20555 John P. Coyle, Esq.
Janet Urban, Esq. Gregg, D. Ottinger, Esq.
U.S. Department of Justice Duncan, Allen and Talmage Antitrust Division 1575 3ye Street, N.W.
Room 9816 JCB Washington, D.C. 20005 555 4th Street, N.W.
Washington, D.C. 20001 Hon. Howard M. Metzenbaum United States Senate David R. Straus, Esq. Warsington, D.C. 20510 Spiegel & McDiarmid 1350 New York Avenue, N.W.
. Anne Marie _ Gibbons, Esq.
Washington, D.C. 20005 American Public Power Association Justin T. Rogers, Jr. 2301 M Street, N.W.
President Third Floor Ohio Edison Company Washington, D.C. 20037 76 South Main Street Akroz, OH 44308 Marshall E. Miller, Esq.*
Chairman Gerald Charnoff, Esq. 1920 South Creek Boulevard Shaw, Pittman, Potts & Spruce Creek Fly-In Trowbridge Daytona Beach, FL 32124 2300 N-Street, N.W.
Washington, D.C. 20037
Charles.Bechhoefer, Esq.* Atomic Safet) nd Licensing
- Administrative Judge Board Panel Atomic Safety and-Licensing U.S. Nuclear Regulatory Com.
Board West Towers Building U.S. Nuclear Regulatory Com. 4350 East-West Highway West Towers Building Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 B. Paul Cotter, Jr.
Chief Administrative Judge John H. Frye, Esq.* Atomic Safety and Licensing Administrative Judge . Board Panel Atomic Safety and Licensing West Towers Building Board 4350 East West Highwav U.S. Nuclear Regulatory Com. Fourth Floor West Towers Building Bethesda, MD 20814 4350 East-West Highway Bethesda, MD 20814 Kenneth L. Hegemann, P.E.
President James P. Murphy, Esq. American Municipal Power-Ohio, Squire, Sanders & Dempsey Inc.
1201 Pennsylvania Ave., N.W. 601 Dempsey Road Washington, D.C. 20004 P.O. Box 549 Westerville, OH 43081 Samuel J. Chilk*
Secretary of the Commission Mark C. Schechter U.S. Nuclear Regulatory Antitrust Division Commission Department of Justice One White Flint North Judiciary Center Building Mail Stop 16 G15 555 Fourth Street, N.W.
-11555 Rockville Pike Washington, D.C. 20001 Rockville, MD 20852 Gerald Charnoff, Esq.
Shaw, Pittman, Potts &
Trowbridge 2300 N Street, N.W.
Washington, D.C. 20037 D.-Biard MacGuineas, Esq.
Volpe, Boske and Lyons 918 16th Street, N.W.
Suite 602 Washi.igton, D.C. 20006
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