ML20086J474

Motion of City of Cleveland,Oh for Leave to File Reply Brief.* Motion to File Reply Should Be Granted for Listed Reasons

ML20086J474
Person / Time
Site:	Davis Besse, Perry
Issue date:	12/09/1991
From:	Goldberg R, Strother C CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C.
To:	NRC COMMISSION (OCM)
Shared Package
ML20086J476	List: ML20086J474 ML20086J482
References
CON-#491-12408 91-644-01-A, 91-644-1-A, A, NUDOCS 9112110274
Download: ML20086J474 (4)

Text

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/&f62 Pothi LED U$tlilC UNITED STATES OF AMERICA BEFORE Tile NUCLEAR REGULATORY COMMISSION y (EC 10 P3 52 a>w g) y mffitff-e, '- jun -

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In the Matter of ) Docket Nos. 50-440-A

                                                       )                    50-346-A OHIO EDISON COMPANY                      )

(Perry Nuclear Power Plant, ) Unit 1, Facility Operating ) License No. NPF-58) )

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THE CLEVELAND ELECTRIC ) ILLUMINATING COMPANY ) THE TOLEDO EDISON COMPANY ) (Perry Nuclear Power Plant, ) ASLDP No. 91-644-01-A Unit-1, Facility Operating ) License No. NPF-58) ) (Davis-Besse Nuclear Power ) Station, Unit 1, Facility ) Operating License No. NPF-3) )

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MOTION OF CITY OF CLEVELAND, OHIO FOR LEAVE TO FILE REPLY BRIEF To_the Honorable, the Commissioners of the Nuclear _ Regulatory Commission: City of Cleveland, Ohio (Cleveland), by its undersigned counsel, files this motion for leave to file the attached reply brief to the joint brief of Ohio Edison Company, Cleveland Electric Illuminating Company and Toledo Edison Company (collec-tively-" Applicants") and the briefoof the Commission Staff.

              -Those briefs _werc_ filed in purported answer to the initial brief of Cleveland in support-of its Notice of Appeal of the Board's Prehearing Conference Order of-October      7, -1991.

Having found no provision in the Commission's Rules of Practice and Procedure providing for the filing of a reply brief 9112110274 911231 PDR 0g i M ADOCK 05000346 5 PDR \ i

in connection with appeals under Section 2.714a, this motion for leave to file a reply brief is filed.1/ The purpose of the attached reply brief is not to repeat the arguments of Cleveland's initial brief. The reply that Cleveland cooks leave to file exposes the fallacios and distortions inherent in the arguments advanced by Applicants and Staff in their briefs. Cleveland should have the opportunity to reply to these fallacies and distortions and the commission f- should have the benefit of these replies in evaluating the [ arguments. Moreover, in this reply Cleveland addresses arguments that Applicants and Staff raise for the first time that Cleveland could not have foreseen and addressed in itt appeal of the Licensing Board's order. For instance, at the prehearing confor-ence Staff counsel stated that he had found no statutory authori-ty for Commission review of Applicants' applications for amend-ment, but that as a matter of policy such review authority should y exist. Obviously, Staff's answering brief goes beyond those - statements. Further, Applicants' and Staff's briefs for the first time put forth an argument that the impact of removal of the antitrust license conditions, including the condition that , require Applicants to provide wheeling services, on Cleveland and other beneficiaries of the antitrust conditions is irrelevant and __ of no consequence and is not to be considered in disposing of Applicants' applications. Surely, Cleveland should have the 1/ We note that with respect to motions, it is expressly provid-ed that the moving party has no right to reply "except as permitted by the presiding officer or the Secretary or the Assistant Secretary".

opportunity to reply to that argument and the Commission is entitled to the benefit of Cleveland'n views on that contention f in evaluating it. Moreover, on brief, Applicants seem to make the entirely new argument that the antitrust licensing conditions may be suspended because they have become " inequitable." Lereto-fore, Applicants have argued that suspension involves only legal / jurisdictional issues and that the conditions must be suspended regard 1cus of equities; that is, regardless of any continuing anticompetitive acts by Applicants. Finally, Appli-cants argue that Section 105 supports the Licensing Board's action, a section not relied upon by the Board itself in its order. This is the first case, as far as Cleveland has been able to ascertain, where the licensees have sought removal of antitrust license conditions. Cleveland believes the uniqueness of this proceeding also justifies the filing of a reply brief. The issues concerning Cleveland's appeal are of great importance - not only for the parties to the herein proceedings, but to the Commission's jurisdiction and jurisprudence generally. Commis-sion consideration of the issues presented will benefit from the reply brief because it will more fully illuminate the issues and < the parties' positions thereon. In this connection, Cleveland notes that the briefing schedule with respect to the so-called " bedrock" issue provides for the filing of motions for summary disposition and supporting briefs by Applicants, Staff and Intervenors, and a reply to Staff and Intervenors motione and supporting briefs by Applicants.

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Similarly, an opportunity for reply is appropriate in this appeal. Cleveland as the appellant should have the right to open and close, that is, to file an initial brief and to file a reply brief. WHEREFORE, Cleveland's motion to file the attached reply brief should be granted. Respectfully submitted Danny R. Williams I Director of Law June W. Wianter Chief Assictant Director of Law William T. Zigli Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44115 Telephone (216) 664-2800

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n' 4bc/b '940. . 4/- ew;. _ Reuben oldberg Channing D. Strother, Jr. B. Victoria Brennan Goldberg, Fieldman & Letham, P.C. - 1100 Fifteenth Street, N.W. Washington, D.C. 20005 Telephone (202) 463-8300 Attorneys for City of Cleveland, Ohio December 1991 _ -}}