ML20086Q300

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Applicant Answer to Motion of City of Cleveland,Oh for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision. * W/Certificate of Svc
ML20086Q300
Person / Time
Site: Davis Besse, Perry  Cleveland Electric icon.png
Issue date: 12/24/1991
From: Charnoff D, Jerome Murphy
CLEVELAND ELECTRIC ILLUMINATING CO., OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, SQUIRE, SANDERS & DEMPSEY, TOLEDO EDISON CO.
To:
NRC COMMISSION (OCM)
References
CON-#491-12457 91-644-01-A, 91-644-1-A, A, NUDOCS 9112300103
Download: ML20086Q300 (7)
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Text

{{#Wiki_filter:. - . j)L f b?" 00LMCl[0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION  ; 91 DEC 25 N1:12 M E N ![Ciif1ARY BEF0RE THE COMMISSION # D'jy 'M In the Matter of 

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                                                      )

OHIO EDISON COMPANY ) Docket No. 50-440-A 

                                                      )                50-346-A (Perry Nuclear Power Plant, Unit 1.       )

Facility Operating License ) No. NPF-58) ) (Suspension of 

                                                      )     Antitrust Londitions)

THE CLEVELAND ELECTRIC ILLUMINATING ) COMPANY ) ASL8P No. 91-644-01-A THE TOLEDO EDISON COMPANY ) 

                                                      )

(Perry Nuclear Power Plant, Unit 1, ) Facility Operating License ) No NPF-58) ) (Davis-Besse Nuclear Power Station, ) Unit 1, Facility Operating License ) No. NPF-3) ) 

                                                      )

APPLICANTS' ANSWER TO " MOTION OF CITY OF CLEVELAND, OHIO, FOR COM-MISSION REVOCATION OF THE REFERRAI. TO ASLB AND FOR ADOPTION OF THE APRIL 24, 1991 DECISION AS THE COM-MISSION'S DECISION" On December 19, 1991, the City of Cleveland filed a motion > designed to block consideration of the pending case by the Atomic Safety and Licensing Board assigned by the Commission to consider it. Applicants Ohio Edison Company, The Cleveland Electric Illu- - minating Company and The Toledo Edison Company respectfully request the Commission to summarily deny Cleveland's Motion. 9I12300103 911224 DR ADDCK 05000 6 3 

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The decision on which Cleveland's Motion is based is the April 24, 1991' referral to the Licensing Board of the NRC Staff's denial of the subject license amendment applications. Cleveland also objects in its Motion to a ruling of the Licensing Board in its October 7, 1991 Prehearing Conference Order, LDP-91-38. To  ! say that Cleveland's Motion is late is a generous understatement. Cleveland already has appealed LBP-91-38, and cannot now raise new'or redundant arguments in support of that appeal. It also is far too late to object to the April 24, 1991 referral of this case to the Licensing Board. In fact, Cleveland's recent Motion is based entirely on arguments which Cleveland raised at the Prehearing Conference-on l September 19, 1991, but which Cleveland chose not to include in its brief in support of its appeal of LBP-91-38.1/ Cleveland has therefore waived these arguments. Philadelphia Electric Co. ' (Limerick Genarating Station, Units 1 and 2), ALAB-828, 23 N.R.C. 13, 20 n. 18 (1986) (issue raised before Licensing Board but not 1/ Specifically, Cleveland reasserts in its Motion three points that it raised at the September 19, 1991 Prehearing Confer-ence: (1) that the April 24, 1991 decision was a Commission , decision, not the Staff's, see Cleveland Motion at 2-3; Preh. Conf. Tr. at 121-26; (2) that even if_that decision L was-the. Staff's,.there was no need to refer that legal mat-l ter to the Licensing Board, see Cleveland Motion at 3-4; Preh. Conf.-Tr. at 134-38; and (3) that Ohio Edison's con-  ; cern regarding congressional interference is without merit; 

                         ,see Cleveland Motion at 4-6; Prehearing Conference Tran-                                                                           -

script at 103-105. Having thus valved these arguments, Cleveland cannot raise them in the-guise of the present Motion. 

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addressed-in an appellate brief is considered to be waived); Pub-lic Service Electric and Gas Co 1 (Salem Nuclear Generating Stu-1 tion,-Unit 1). ALAB-650, 14 N.R.C. 43, 49-60 (1981) (exceptions
           .that are not fully. briefed on appeal will not be considered),

aff'd, sub nom. Township of Lower kiloways Creek v. Public Ser-vice Electric and Gas Co., 687 F.2d 732 (3d Cir. 1982). Cleve-land should not be permitted to have a second bite at the apple by reasserting these arguments in a new Motion which is nothing more than an untimely supplement to its appellate brief. While Cleveland complains about the " unnecessary expenditure of time and money" that would be involved in presenting arguments 

          . before the Licensing Board, it fails to mention the fact that it declined'to file this Motion for many months, instead waiting until a-few weeks before Applicants' motion for summary disposi-tion in this case is due.2/ obviously, the " time and money" of concern to Cleveland is not the Applicants' time and money, as a very_ substantial portion of Applicants' effort necessarily has now been spent.

Finally, Applicants note that there are factual matters at issue in this case which would only be mooted by successful 

          . 2/    Under the Commission's rules of procedure, Applicants' response to Cleveland's_recent Motion is due Friday, January 3, 1992, which is one business day before the January 6, 1992 due date set by the Licensing Board for Applicants to file their Motior. for Summary Disposition.

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              ' litigation by Cleveland and others of the so-called bedrock legal issue.               These are matter properly before a licensing board.

Cleveland's determination to at least distract Applicants, if not the entire agency,-from the r.rits of this case should not be encouraged. Accordingly, if the commission is going to give any consideration to the substance of Cleveland's Motion, Appli-cants respectful request ten (10) days from January 6, 1992, the date on which our-Motion for Summary Disposition is due, in which to respond. Respectfully submitted, J f. /: 

                                                                       /dik9 ht.It / k L_) ( A n v 7' 7)

Gerald Charnoff Deborah B. Charnoff - 

                                                             ' Margaret S. Spencer SHAW, PITTMAN, POTTS.& TROWBRIDGE 2300 N Street, N.W.

Washingt'on, D.C. 20037 ' (202) 663-8000 counsel for Ohio Edison Company James P. Murphy Colleen Conry . SQUIRE, SANDERS & DEMPSEY 1201 Pennsylvania Avenue, N.W. Washington, D.C. 20044 (202) 626-6600 Counsel for The Cleveland Elec-tric Illuminating Company and The Toledo Edison Compcny - Dated: December 24, 1991 

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4 1 q-UNITED STATES OF AMERICA UCOnElfD NUCLEAR REGULATORY COMMISSION UiNRC 71 KC 26 N1:12 BEFORE THE COMMISSION  ; OF8 tCE gi 3ECR[Ttsy 00CXiIING A MiiVlff; 

                                                     )                 BRANM In the Matter of                           )
                                                     )

OHIO EDISON COMPANY ) Docket No. 50-440-A 

                                                     )                    50-346-h (Perry Nuclear Power Plant, Unit 1,     )

Facility Operating License ) No. NPF-58) ) (Suspension of 

                                                     )     Antitrust Conditions)

THE CLEVELAND ELECTRIC ILLUMINATING ) COMPANY ) ASLBP No. 91-644-01-A THE TOLEDO EDISON COMPANY ) 

                                                     )

(Perry Nuclear Power Plant, Unit 1, ) Facility Operating License ) No. NPF-58) ) (Davis-Besse Nuclear Power Station, ) Unit 1, Facility Operating License ) No. NPF-3) ) 

                                                     )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 24th day of December, 1991, a copy of the foregoing Applicants' Answer to " Motion of City of Cleve-land, Ohio, for Commission Revocation of the Referral to ASLB and for Adoption of the April 24, 1991 Decision as the Commis-sion's Decision" was mailed first class, postage prepaid, to each of the following: Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 a

Ivan Solin, Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Kenneth C. Rogers, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 James R. Curtiss, Conmissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Forrest J. Remick, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Charles Bechhoefer Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 G. Paul Bollwerk, III Atomic Safety and Licensing Boaro Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Marshall E. Miller, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 1920 South Creek Loulevard + Spruce Creek Fly-In Daytona Beach, Florida 32124 Joseph Rutberg, Esq. Shervin E. Turk, Esq. Steven R. Hom, Esq. Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 , Mark C. Schechter, Esq., Janet Urban, Esq. Transportation, Energy and Agriculture Section Antitrust Division Department of Justice Judiciary Center Building 555 Fourth Street, N.W. Washington, D.C. 20001 b

1 James P. Murphy, Esq. Squire, Sanders & Dempsey 0 1201 Pennsylvania Avenue, N.W. P.O. Box 407 Washington, D.C. 20044 June W. Weiner, Esq., - Chief Assistant Director of Law 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 Reubea Goldberg, Esq. Channing D. Strother, Jr., Esq. Goldberg, Fieldman & Letham, P.C. 1100 Fifteenth Street, N . W. . Washington, D.C. 20005 D. Biard MacGuineas, Esq. c Volte, Boskey and Lyons 918 Sixteenth. Street, N.W. Washington, D.C. 20006 David R. Straus, Esq. Spiegel & McDiarmid 7.350 New York Avenue, N.W. Suite 1100 Washington, D.C. 20005-4799 - Kenneth L. Hegemann, P.E. President American Municipal Power-Ohio, Inc. 601 Dempsey Road P.O. Box 549 . Westerville, Ohio 43081 Philip N. Overholt Office of Nuclaar Plant Performance Office of Nuclear Energy U.S. Department of Energy, NE-44 Washington, D.C. 20585 I w n r. , - 

                                                                                                                                                        -{.h.i,<ll Deborah B. Charnoff                                     i SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000 t M:/0214/037DBC.91 

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