ML20085K826

Informs NRC of Factual Error Contained in Licensing Board Prehearing Conference Order Re Application of Util to Suspend Antitrust License Conditions.W/Svc List

ML20085K826
Person / Time
Site:	Perry
Issue date:	10/21/1991
From:	Charnoff D OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE
To:	Atomic Safety and Licensing Board Panel
References
CON-#491-12319 A, LBP-91-38, NUDOCS 9111010118
Download: ML20085K826 (4)

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CEBORAM S CMAANCrr October 21, 1991 Marshall E. Miller, Chairman

' Charles Bechhoefer, Administrative Judge G. Pabi Bollverk, III, Administrative Judge Atomi; Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Wcsh:ngton, D.C. 20555 Re: Application of Ohio Edison Company to suspend Antitrust License Conditions (Perry Nuclear Power Plant, Unit 1),

NRC Docket No. 50-440A Gentlemen:

Ohio Edison Company would like to direct the Licensing Board's attention to a factual error contained in the Licensin-Board's Prehearing Conference Order, LBP-91-38 (Oct. 7, 1991),

and to ensure that there is no misunderstanding on the part of any of the parties with respect to the filing by the Applicants of a single dispositive motion for summary disposition.

In LBP-91-38, the Board indicated that in its initial Appli-cation, Ohio Edison had placed in issue the competitive behavior of the Applicants. Specifically, in footnote 98 of LBP-91-38 at page 53, the Board stated, In their applications, both OE and CEI/TE initially argued that suspension of the Perry and Davis-Besse antitrust license conditions vould be appropriate because the competitive environment and their competitive behavior had changed from what was found to exist at the time the conditions were imposed. See Tr. 152-55, 166-67. Both, however, no longer rely on such assertions as a basis for the relief they seek. _I_d .

This statement is incorrect as to Chio Edison. At no point in this proceeding has Chio Edison argued that suspension of the 1

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Letter to Messrs. Miller, Bechhoefer and Bollwerk October 21, 1991 Page Two Perry conditions would be appropriate because of changes in Ohio Edison's competitive behavior. Rather, in its initial Septenber 18, 1987 Application, Ohio Edison made clear that the issue of competitive behavior was not relevant to its amer.dment request:

[T]he NRC's factual predicate for imposing antitrust license conditions on OE was that it was anticipated that the construction and operation of Perry, in fact, would create or maintain a situation inconsistent with the antitrust laws. There were two elements to this conclusion. First, that a situation inconsistent with the antitrust laws existed in the OE service area for which OE was responsible. . . . . As to the first e l. e -

ment -- dealing with the situation inconsis-tent with the antitrust laws -- for purpoy.gs of this license amendment application, OE will assume arquendo that the Licensino and Apoeal Board findings are correct and that the situation is unchanced from the mid-1970's.

Ohio Edison Application (Sept. 18, 1967) at 28 (emphasis added).

This position was confirmed most recently at the September 19, 1991 Prehearing Conference:

We assume, arguendo, and I can refer you to a page in Our application, that our competitive behavior hasn't changed at all --

that it makes no difference what our competitive behavior is or what the situation is in the

, marketplace. That is not a necessary find-ing, nor is it a relevant finding to resolu-tion of the issue that we put forward in our application.

Preh. Conf. Tr. (Sept. 19, 1991) at 155 (counsel for Chio Edison); see also id. at 149 (competitive issues are not relevant to Ohio Edison's Application).

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Letter to Messrs, Miller, Bechhoefer and Bollverk.

October 21, 1991 Page Three Thus, Ohio Edison's position in this case was set forth in September, 1987 and has not char.ged in the four years that have elapsed since that time. Issues of competitive behavior are and always have been irrelevant to Ohio Edison's Application.

Finally, Ohio Edison would like to respond briefly to the Licensing Board's unanticipated directive to the Applicants to submit a joint motion for summary disposition. While 'ie have no objection to proceeding in this fashior., we do request that this action not preclude the possibility of our proceeding separately at any oral argument that might-be set in this matter, nor that this procedure necessarily apply to any other subsequent matters, 4 e.a., the litigation of the issue of costs. In addition, it is important that the submittal of a joint brief by the Applicants not be misconstrued by any of the parties as altering the approach that Ohio Edison has taken in this proceeding from the beginning, viiich has been & proceed independently f rom Cleveland Electric Illuminating Co. and Toledo Edison Co.

Sincerely yours, n i k.b.b Deborah B. Charnoff cc: Samuel J. Chilk Service List 02L4/C34dbc.91

SHAw PITTMAN. PoTTs & TRoWBRIDGE

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SERVICE LIST Joseph Rutberg, Esq'. David R. Straus, Esq.

Sherwin E. Turk, Esq. Spiegel & McDiarmid-Steven R. Hom, Esq. 1350 New York Avenue, N.W.

Oft' ice of the General Counsel suite 1100 U.S. Nuclear Regulatory Commission Washington, D.C. 20005-4798 Washington, D.C. 2C555 Mark C. Schechter, Esq., Chief henneth L. Hegemann, P.E.

Roger W. Fones, Esq., President Assistant Chief American Municipal Power-Ohio, Janet Urban, Esq. Inc.

Transportation, Energy and 601 Dempsey Road Agriculture Section Post Office Box 549 Antitrust Division Westerville, Ohio 43081 Department cf Justice 555 Fourth Street, N.W.

Washington, D.C. 20001 James P. Murphy, Esq. Philip N. Overholt Squire, Sanders & Dempsey Office of Nuclear Plant 1201 Pennsylvania Avenue, N.W. Performance Post Office Box 407 Office of Nuclear Energy Washington, D.C. 20044 U.S. Department of Energy, NE-44 Washington, D.C. 20585 June W. Weiner, Esq.,

Chief Assistant Director of Lsv

-William M. Ondrey Gruber, Esq.,

Assistant Director of Law William T. Zigli, Esq.,

-Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 Reuben Goldberg, Esq.

[ Channing D. Strother, Tr., Esq.

Goldberg, Fieldman & Letham, P.C.

1100 Fifteenth Street, N.W.

Washingtan, D.C. 20005 D. Biard-MacGuineas, Esq.

Volpe, Boskey and Lyons -

918 S.xtee7th Street, N.W.

Washington, D.C. 20006

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