ML20087E782
| ML20087E782 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 01/16/1992 |
| From: | Goldberg R, Strother C CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#192-12509 91-644-01-A, 91-644-1-A, A, NUDOCS 9201220139 | |
| Download: ML20087E782 (11) | |
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. Jhso9 DOLMEIED U5NRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Y2 JAN 17 P4 :07 9"0ChiisNG A y avocq fCE N SEChilARY 0
)
hRANP' In the Matter of
~)
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OHIO EDISON COMPANY
)
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Docket Nos. 50-440-A
.(Perry Nuclear Power P1, ant,
)
50-346-A Unit'1)
)
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THE CLEVELAND ELECTRIC
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ASLBP No. 91-644-01-A ILLUMINATING COMPANY
)
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THE' TOLEDO EDISON COMPANY
)
(Perry Nuclear Power Plant,
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Unit 1, and Davis-Besse
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Nuclear Power-State, Unit 7)
)
)
MOTION TO AMEND THE SCHEDULE FOR
SUMMARY
DISPOSITION MOTIONS To the Honorable, the Members of the Atomic Safety and Licensing Board:
Pursuant to 10 C.F.R.
S2.730, City of Cleveland, Ohio-(Cleveland), an Intervenor-Party, by its undersigned counsel, files this Motion to Amend the schedule for the submission of motions for. summary disposition to include in that schedule provision for a reply by the. City of Cleveland to Applicants' answer to the City of Cleveland's arguments in support of its position'that res iudicata, collateral estoppel, laches and law of the case.bar Applicant's appli-L cations.
In support of this motion Cleveland submits the following:
1.
The joint statement of issues submitted by all b
g 9201220139 920116 PDR ADOCK 05000346 M
-2 parties to the Board and approved by the Board included two issues as follows:
Is the Commission without authority as a matter of law under Section 105 of the Atomic Energy Act to retain antitrust license conditions con-tained in an operating license if it finds that the actual cost of electricity from the licensed nuclear powar plant is higher than the cost of electricity from alternative sources, all as appropriately measured and compared?
Are the Applicants' requests for suspension of the~ antitrust license conditions barred by res judicata,-or collateral estoppel, or laches, or the law of the case?
2.
By order of the Board of November 14, 1991, the following schedule was established for submission of motions for summary disposition and responses thereto:
Applicants' Joint Motion January 6, 1992 for Summary Disposition NRC Staff and Intervenor March 9, 1992 Cross-Motions for Summary Disposition / Responses to Applicants' Joint' Motion for Summary Disposition Applicants Joint Reply to April.27, 1992 NRC Staff and-Intervenor Cross-Motions for Summary Disposition / Responses to Applicants'-Joint Motion for Summary Disposition 3.
Under the-procedural schedule, it was
. Cleveland's understanding that Applicants were to address both issues in their motion for summary disposition.1/
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At the September 19, 1991, prehearing conference the procedural schedule was discussed only in terms of the first issue.
The Board's Octcber 8, 1991, order, mimeo (continued...)
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-.. -. -. _ _ -. ~ - -
. Yet, in their. January 6, 1992, motion for summary disposi-tion; p. 11, footnote 27, Applicants state that they "will address the second issue if and when intervonors choose to argue it.
Applicants simply note that they do not in any way intend to waive their right to oppose the second legal issue if it ir argued by another party."
Applicants do not provide any basis for any contention that intervonors (and, perhaps, NRC staff) intended to waive an issue addressed by them in previous filings, stated by the Board to be appro-priate for present consideration, and just recently made a part of.an-agreed upon joint statement consisting of only two issues.
4.-
Applicants apparently contend that intervenors should "go first" on the second issue, notwithstanding the
-fact that Cleveland's answers in opposition to the appli-cations. argued'the applicability of the doctr.ines.
Never-theless, irrespective of the fact that Applicants have essentially defaulted on the issue under the present sched-ule, _ Cleveland is willing tc "go first" on the issue but should be provided the-opportanity to reply to Aoplicants' answer to it which Applicants would'apparently intend to make on April'27 when they are scheduled to reply to Cleve-
- /(... continued) at p. 21,,n.
43, however, stated that res judicata and related issues were also appropriate for consideration at this stage of the proceeding.
Thus, the parties agreed to the second issue in the joint statement.
(
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land-and others' answers to their January 6 motion for summary disposition.
5.
That April 27 answer will be the first time Cleveland will see Applicants' position on the subject of i
i the applicability of the doctrines directed at Cleveland's arguments in support of its motion for summary disposition.
Without an amendment to the Schedule, Cleveland will have no assured opportunity to address Applicants' arguments on'this issue which opportunity Cleveland should have.
WHEREFORE, Cleveland requests that this motion be granted and that-the Order of November 14, 1991, of the Board, establishing the schedule for notions for summary disposition,-be amended to provide for a reply by Cleveland to be filed on May-27, 1992 to Applicants' arguments and the arguments of any other carty addressed to the arguments of Cleveland in-its motion for summary disposition with respect r
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,t 5-to the. applicability of the doctrines of res judicata, collateral estoppel, laches snd law of the case.
Respectfully submitted, Danny R. Williams Director of Law June W. Wiener Chief Assistant Director of Law William T.
1:1911 Assistant D; rector of Law Clty Hall, 1oom 106-601 Lakesidc: Avenue cleveland, Ohio 44115 Telephone-(216) 664-2800 ftchy i
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s Reuben Goldberg Channing D. Strother, Jr.
B. Victoria Br_ennan i
Goldberg, Fieldman & Lotham, P.C.
1100 Fifteenth Street, N.W.
Washington, D.C.
20005_
Telephone (202) 463-8300
' Attorneys for city of cleveland, Ohio
-January 16, 1992 1.
N L
Proposed Order UNITED STATES OF AMERICA NUCLEAR BEGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Marshall E. Miller, Chairman Charles Bechhoefer G.
Paul'Bollwerk, III
)
'In the~ Matter of
)
)
~ OHIO EDISON COMPANY
)
).
Docket Nos.50-440-A (Perry Nuclear Power Plant,
)
50-346-A Unit 1).
.)
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THE CLEVELAND ELECTRIC
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(Suspension of
' ILLUMINATING COMPANY
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Antitrust Conditions)
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THE TOLEDO EDISON COMPANY
)
.(Perry Nuclear Power Plant,
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ASLBP No. 91-644-01-A Unit'1, and Davis-Besse
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Nuclear Power State, Unit 1)
)
)
ORDER On January 16,-1992, the City of Cleveland, an
-Intervenor Party, by its counsel, filed a motion to amend the schedule for summary disposition motions and related
.submi'ssions established by the Board's Order of November 14, 1991 relative'to two issues set forth in a joint statement of the11ssues.
'In its motion Cleveland points out that the Appli-cants for suspension of antitrust license conditions have not addressed the following of the two issues:
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. "Are the Applicants' requests for suspension of the antitrust license conditions barred by res judicata, or collareral e**oppel, or laches, o r-the law of the case?"
Cleveland further points out that Applicants stated in their
-motion for sammary disposition that they "will address the second issue if and when intervenors choose to argue it" and do not " Waive their right to oppose the second legal issue if it is argued by another party."
Cleveland notes that in viewlof Applicants' failure to address the issue in its motion unless the schedule is amended to provide for a reply to Applicants' arguments in opposition to the arguments presented by Cleveland on the second issue in its motion for summary disposition, Cleveland is not assured of the oppor-tunity.for reply that it should have.
Cleveland requests that it have until May 27, 1992, 30 days after service of Applicant's answer to Cleveland's motion for summary disposition, for the submission _of a reply to Applicants / answer addressed to the second issue 7
and to the arguments.of any other party that has addressed the second issue.
Upon consideration of Cleveland's motion and the responses thereto, the schedule is amended to provide for a reply by Cleveland on May 27, 1992 to Applicants' arguments addressed in their answer to-the second issue and to the arguments addressed to the second issue by any other party.
-l j a.
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- It is so ORDERED.
For the Atomic safety and Licensing Board
-. Bethesda, Maryland i
1992 h
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UlIITED STATES OF AMl;1tICA flVCLEAR REGULATORY COMMISSIO!!
In the Matter of
)
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O'110 EDISoli COMPAliY
)
)
Docket llos. 50-440-A (1%try lluclear Power Plant,
)
f0-346-A Unit *A)
)
)
Tild CLEVE!AllD ELECTRIC
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ASLBl' lio. 91-644-01-A ILLUMIliATIllo COMPA!1Y
)
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Tile TOLEDO EDISOM COMPAliY
)
(Perry !!uclear PoWor Plant,
)
Unit 1, and Davis-Bosse
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tiuelaar Power Stato, Unit I)
)
)
CERTIFICATE OF SFRVICE hereby certify that a copy of the foregoing MOTIOlt TO 4
AMEllD Tile SCllEDULE FOR
SUMMARY
DISPOSITIoli MOTIO!1S has boon served upon the partica or their attorneys on the attached Servico List, th a 16th day of January, 1992, by deposit in Washington, D.C.
in the United States Mail, first class, postage a
pri. paid.
Y/1(kriY//?//I/V' Redbon C-ol.1 berg jf
UllI"'ED STATES Ol' AMElt!CA I Ut.nl 110 110CLEb llEGULATORY COMMIHulo!I UWRC
'92 JAN 17 P4 :08
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In the Mattor of
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p,cKt N6 5 ';! aviu m ; M ud ui, <
oo 01110 EDISON C0!!PANY
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hkMa
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Docket Hon. 50-440-A (Perry huolear Power Plant,
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50-346-A Unit 1)
)
)
Tile CLEVELAND ELECTRIC
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ASLl1D flo. 91-644-01-A ILLUM111ATING COMPAtlY
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i Tile TOLEDC EDISON COMPANY
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s (Perry li'icicar Power Plant,
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Unit 1, and Davic-Iloon.a
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Nuclear Power Stato, Unit 1)
)
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SEllVICE LIST Joseph Rutborg, Esq.
Justin T.
Itogora, Jr.
Offico of the General counsol Prooident U.S. 11uclear Regulatory Ohio Edison Company Commission 76 South Main Street Mail Stop OWFN 15Dia Akron, 011 44308 s
Washington, D.C.
20555 Gerald Charnoi(, Esq.
Janet Urban, Esq.
Deborah 13 Charnoff, Esq.
U.S. Department of Justico Margaret S.
Spencor, Ecq.
Antitrust Division Shaw, Pittman, Potto 4 Transportation, Energy and Trowbridge Agriculturo Section 2300 N Stroot, N.W.
Room 9816 JCB Uashington, D.C.
20037 555 4th Stroot, N.W.
Washington, D.C.
20001 James P. Murphy, Ecq.
Collren A. Conry, Esq.
David R. Strauc, Esq.
Squire, Sanders & Dempsey (Spiegel & McDiarmid 1201 Pennsylvania Avenuo, N.W.
1350 Now York.Avenuo, N.W.
Post Offico Dox 407 Suito 1100 Washington, D.C.
20044-0407 Washington,.D.C.
20005-4798 Kenneth L. Ilogen.b, P.E.
Offico of Commission Appo11ato President Adjudication American Municipal Power-Ohio, U.S. Nuclear Regulatory Inc.
Commission 601 Dompuoy Road
-Washington, D.C.
20555 P.O. Box 549 Westorville, vil 43081 All
.. Administrative Judgu John Dontino, Eng.
G.
Paul Dollwork, III Chest 9r, lloffman, Wilcox &
Atomic Safety and Licensing Saxbo Board 17 S.
High Street U.S. Nuclear Regulatory Columbus, Oli 43215 Comminaion Mail Stop EW/.39 Washington, D.C.
20555 Shorwin E. Turk, Esq.
Offico of the General Counsol U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Administrativo Judge Charlos Bochhoofor Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Mail Stop EN 439 Washington,-D.C.
20555 Administrativo Judge Marshall E. M111er, Chairman Atomic Safoty and Licensing Board 1920 South Crook Divd.
Spruco Creek Fly-In Datona Deach, FL.
32124 i
D. Blard MacGuineas, Esq.
Volpo, Bookey and Lyons 918 16th Stroot, N.W.-
Suite 602 Washington, D.C.
20006 Mr. Philip N. Overholt Office of Nucicar Plant Performanco.
Offico-of Nuclear Energy U.S. Department of Energy, NE-44 Washington, D.c; 20585 Stovon R. Hom,-Esq.
Offico of the General Counsol U.S. Nuclear Regulatory Commission Washington, D.C.
20555 l
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