ML20091C770

Suggests That Certain Items Be Included on Agenda for Prehearing Conference Re Cleveland Electric Illuminating Co & Toledo Edison Co Request for Hearing

ML20091C770
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/25/1991
From:	Jerome Murphy CLEVELAND ELECTRIC ILLUMINATING CO., SQUIRE, SANDERS & DEMPSEY, TOLEDO EDISON CO.
To:	Bechhoefer C, Bollwerk G, Mark Miller Atomic Safety and Licensing Board Panel
References
CON-#391-12055 91-644-01-A, 91-644-1-A, A, NUDOCS 9108070125
Download: ML20091C770 (3)

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July 25. 1991 1

Marshall E. Miller, Chairman j Administrative Judge  ;

1920 South Creek Boulevard l Spruce Creek Fly-In Daytona Beach, Florida 32124 Charles Bechhoefer Administrative Judge G. Paul Bollwerk, III Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission West Towers Building 4350 East-West Highway Bethesda, Maryland 20814 Re: The Cleveland Electric Illuminating Co. and The Toledo Edison Co. Request for Hearing (Docket Nos. 50-440A and 50-346A; ASLBP No. 91-644-01-A)

Dear Board Members:

I respectfully suggest that certain items be included on the agenda for the prehearing conference, i.e., a determination of (a) the proper parties, (b) the relevant issues, (c) the sequencing of the resolution of those issues, and (d) a briefing schedule.

In an effort to expedite the resolution of this matter, The Cleveland Electric Illuminating Company ("CEI") and The Toledo Edison Company ("TE") suggest the proceedings be conducted in two phases. The first phase would resolve certain issues of law. The second phase would be an evidentiary hearing to resolve certain factual issues. More specifically, CEI and TE request that issues 1 through 4 below, all of which are questionc of law, be resolved first on briefs and argument. Then, depending on how '

the legal rulings on issues 1 through 4 were resolved, an evidentiary hearing on issue 5 would be held. The issues are:

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t pu,n. cLo An s 't ,,yu,.y Messrs. Miller, Bechhoefer and Bollwerk July 25, 199)

Page 2 A. LEGAL ISSUES i

(1) Assuming arguendo that Perry's and Davis-Besse's actual costs are higher than the costs of non-

! nuclear power, can the Perry and Davis-Besse Nuclear Power plants, as a matter of law, afford CEI and TE a competitive advantage?

(2) If the answer to Issue (1) is no, can CEI's and TE's ownership shares of Perry and Davis-Besse, as a matter of law, " create or maintain a situation i

inconsistent with the antitrust laws" (Section 105c(5) of the Atomic Energy Act, as amended) such that NRC is authorized to impose or retain antitrust license conditions?

(3) Assuming arguendo that Perry's and Davis-Besse's actual costs are higher than the costs of non-I nuclear power, does imposition or retention of the license conditions under Section 105c of the Atomic Energy Act, as amended, as a matter of law, deny l CEI and TE equal protection and due process under l the Fifth Amendment of the United States l Constitution?

l l (4) For the purposes of Issues (1) and (3), as a matter of law, should Perry's and Davis-Besse's actual 30-year levelized costs be compared to the costs of any non-nuclear plant CEI and TE might have built in lieu of the Perry and Davis-Besse plants? See 10 C.F.R. Part 50, App. L. SS II.ll, II.12. If not, what is the appropriate cost comparison for purposes of Issues (1) and (3)?

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, B. FACT ISSUE l

(5) Are Perry's and Davis-Besse's actual costs higher than the costs to which they are to be compared?

, Our overall purpose in suggesting this bifurcation is (a) to determine first whether an evidentiary hearing of any sort is appropriate, and (b) to focus the scope of any evidentiary hearing to the extent possible.

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A I f,4 W, $. f fif fff' P t / fol/b ant ij Messrs. Miller, Bechhoefer and Bollwerk

-July'_25, 1991 Page 3 We appreciate the consideration that you give to these suggestions, and we hope to have an opportunity to discuss them at the prehearing conference.

Sincerely yours, s _.

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y James P. Murphy JPM/CAC:pge cc: Samuel J. Chilk, Secretary Gerald Charnoff, Esq.

- Roger W. Fones,-Esq.

l Reuben Goldberg,-Esq.

William M. Ondrey Gruber,_ Esq.

Kenneth.L. Hegemann, P.E.

l' i Steven R. Hom, Esq.

D. Blard MacGuineas, Esq.

Craig S. Miller, Esq.

l Joseph Rutberg, Esq.

Mark Schechter, Esq.

David R. Straus, Esq.

Sherwin Turk, Esq.

l' Janet Urban, Esq.

j_ June W. Weiner, Esq.

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