ML20091H716

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

ML20091H716
Person / Time
Site:	Davis Besse, Perry
Issue date:	12/19/1991
From:	Goldberg R CLEVELAND, OH, GOLDBERG, FIELDMAN & LETHAM, P.C.
To:	NRC COMMISSION (OCM)
References
CON-#491-12441 91-644-01-A, 91-644-1-A, A, NUDOCS 9112240094
Download: ML20091H716 (10)

Text

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-  :. /z fW UNITED STATES 10F AMERICA BEFORE THE 00 C

NUCLEAR REGULATORY COMMISSION TH DEC 20 P3 :53

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In'the Matter of ) DocketHos.T54644529]Qfd"[

) 50-346 @

OHIO EDISON COMPANY )

(Perry-. Nuclear Power Plant, )

Unit 1, Facility Operating )

Licento No. NPF-58) )

)

THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY )

THE TOLEDO EDISON COMPANY )

(Perry Nuclear Power Plant, ) ASLBP No. 91-644-01-A Unit 1, Facility Operating )

License No. NPF-58) )

(Davis-Bosse Nuclear Power ) ,

Station, Unit 1, Facility )

Operating License No. NPF-3) )

)

MOTION OF CITY OF CLEVELAND, OHIO, FOR COMMISSION REVOCATION OF THE REFERRAL TO ASLB AND FOR ADOPTION OF THE APRIL 24, 1991 DECISION AS THE COMMISSION'S DECISION Pursuant to 10 C.F.R. S2.730, City of Cleveland, Ohio

(" Cleveland"), an Intervenor-Party, files this motion for (1) revocation.of the reference to the Board of the decision of April 24, 1991, denying the application of Ohio Edison Company ("OE")

and the joint application of Cleveland Electric Illuminating Company ("CEI") and Toledo Edison Company ("TE") for suspension of the antitrust license conditions of the Perry and Davis-Besse Operating License ("OL"), and (2) for adoption of that decision as the commission's decision.1/

! 1/ The Commission's grant of Cleveland's appeal of the Board's L Prehearing Conference Order, pending before the Commission, l may moot this motion and the reference to the Board.

l 9112240094 911219

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The Notice of the April 24, 1991 decision published in 4

the Federal Register referred to the decision as "the Commis-sion's denial of_the" applications. 55 Fed. Reg. 200057, May 1, 1991. The'_ decision has, however, also been referred to as the Staff's-denial (Letter of April 26, 1991 from Senior Supervisory Trial Attorney to counsel for Applicants) and as the Director of Naclear Reactor Regulation's decision (Letter of April 24, 1991 from the Director of NRR to CEI, et al.) In its Prehearing ,

Conference Order of October 7, 1991, the Board appears to have ruled that the April 24, 1991 decision was only a " Staff determi-,

nation" (PHC Order 9-10). As recently as December 11, 1991, the Commission's Staff stated that "the Director of Nuclear Reactor Regulation denied.the applications based on an evaluation which concluded that they lacked legal merit." (NRC Staff's Response to Ohio Edison Company's Motion for Reconsideration of CLI-91-15,

p. 2).

Pursuant to the Commission's regulations under which the applications for suspension of the OL antitrust license conditions were filed (Section 2.101, et seq.), a Director's Ldecision-becomes the Commission's decision absent Commission gna snonte review of the decision or an application for Commission review by the Applicants.2 The Notice, therefore, correctly 2/ Applicants : filed under Section 2.101 apparently because there are no Commission regulations which provide for such applica-tions'since the applications involve a prohibited antitrust ,

raview after issuance of an OL. The applications are not authorized under section 2.101. However, since the applica-tions were accepted for filing under Section 2.101 and were

. processed.under those regulations, the Applicants cannot be (continued...)

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referred to the " Commission's denial" of the applications. If the decision is a Commission decision, or a Director of NRR decision which by force of the regulations became a Commission decision, reference to the board was inappropriate. A Commission decision is subject to review only by an appellato court. A Licensing Board has no authority to review or reverse a Commis-sion decision.

Assuming, arquendo, that the decision is "only" some other kind of determination not envisioned by the Commissic?'s regulations--perhaps to be called a " Staff determination"--there is still no warrant for the reference to the Board for determina-tion of a legal issue which the Applicants now concede wi'l be dispositive of the application, as a matter of law, if thw legal issue is decided against the Applicants.2/ The legal issue is ripe for decision by the Commission, withoIt the delay and 2/(... continued) heard to object to the application of those regulations to determine the status of the April 24, 1991 decision.

2/ The " bedrock" legal issue, by agreement of the parties, is 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 contained in an operating license if it finds that the actual cost of electricity from the licensed nuclear plant is higher than the cost of electricity from alternative sources, all as appro-priately measured and compared?

In addition to agreement on this statement of the " bedrock" legal issue, the parties also agreed that the applications are subject to motions for summary disposition based on the following issue:

Are the Applicants' requests for suspension of the antitrust license conaitions barred by res judicata, or collateral estoppel, or laches, or the law of the case?

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-expente of additional-briefing and without the delay and expense associated with reference to the Board of a purely legal issue, by the Commission's adoption of the Aptil 24, 1991 decision as the Commission's decision.

The legal issue has been fully briefed in the applica-tions filed byLthe Applicants; in responsive documents subse-quently filed by Cleveland, and other entities, and the Depart-mont of Justice prior to the issuance of the April 24, 1991 decision; and in Applicants' responses to those responses. The briefs that are to be filed per the Prehearing Conference Order of the Board, of necessity, will be repetitive of the arguments that are already available to the Commission. To require addi-tional briefing is an unnecessary expenditure of time and money and introduces unnecessary delay in presenting the legal issue to the Commission and an appellate court. This unnecessary expendi-ture of time and money-is'of itself sufficient reason for the Commission to revoke the reference to the Board and proceed to adopt the " Staff's determination" or " Director's decision" as the Commission's decision.

In filing this motion, Cleveland is not unmindful of

! the contention of OE (CEI and TE have not joined in that claim) l- that the Commission and its Staff have disqualified themselves as unbiased arbiters of the. legal issue because of alleged undue i

Congressional influence, which OE alleges has compromised the L

Staff's and Commission's ability to decide the legal issue of their own free will. OE originally unsuccessfully sought to disqualify the Commission from passing on OE's application when

it filed a complaint for a declaratory judgment on June 28, 1988 in the United States District Court for the District of Columbia (Ohio-Edison Co. v. Zech, et el,, Civil Action No. 88-1695), and subsequently ir. an unsuccessful appeal to the United States Court of Appeals for the District of Columbia Circuit (Ohio Edison Co.

v. Zech, et al., No. 89-1014). Fow, however, OE's effort at disqualification is directed at the Commission's Staff and would deprive the Commission and the hoard of giving any weight to the Staff recommendation reflected in the April 24, 1991, decision.

(See OE's Motion for Reconsideration of CLI-91-15, filed November 26, 1991, pp. 3-4).

The claim is f rivolc>us, whether directed at the Staff ,

or the Com_.ission,AI and undoubtedly was pursued by OE in an effort to extract a decision favorable to Applicants. As OE would have it, any decision against them on the legal issue by the Commission could only be the product of the alleged taint.

OE's claim that improper influence could taint a decision on a purely legal issue is frivolous and grossly over-states the Commission's role in star.utory construction. In E12 Pierce Utilitigs Authority v. Unitsd States, 606 F.2d 986 (1979), i the District of Columbia Circuit considered an issue of statutory construction of another Section of the Atomic Energy Act, namely Section 186(a). The D.C. Circuit there said (at 995):

4/ The frivolous nature of OE's claim is disclosed by even a casual reading of the April 24 decision. That decision relies heavily on the memorandum opinion filed with the Commission by the Department of Justice which OE cannot accuse of decisional bias due to Congressional interference.

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A h- ar 6-ji It'also is necessary, before turning to the mer-- j'

-its, to-_say a brief word about this court's scope-y .of review in:the-instant. case.. The issues pre-

. santed- here--(1) ; whether - section 18 6 (a) vests the l

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! Commission-with antitrust _ authority over operating licenses other_than_that provided in section-105, and (2).if_so,=whether section 186(a) authorizes y antitrust review of the section 104(b) operating R -1icenses at issue here--both turn on matters of- >

statutory interpretation. 'In this regard,'we are cognizant of the general rule that "[t]he con-struction put on a statute Liar the agency. charged with administering-it is entitled to deference by.

the courts, and ordinarily that construction will be affirmed if it has a ' reasonable basis in.

law.'" FEC v. Sloan, 436 U.S.'103, 118, 98 S.Ct '

1702, 1712, 56 L.Ed.2d 148 (1978) (quoting Volks-

_Wacenwerk v. FMC, 390 U.S._261, 272, 88 S.Ct.929, ,.

19 L.F.d.2d 1090 (1968)); accord, Udall v. Tallman, 390 U.S.E1, 16,-85 S.Ct. 792, 13 L.Ed.2d 616 *

(1965).

To accord.this deference, however, is not to abdi- -

cate our-own duty to construe the statute for we are also. mindful that "the courts.are the final- +

authorities on issues of statutory construction,

. . . and 'are not' obliged-to stand-aside and rubber-stamp their affirmance of administrative decision that they deem inconsistent with a statu-tory mandate or that frustrate the congressional policy underlying a statute.'"-SEC v. Sloan, su-

-pra,_436 U.S. at 118, 98.S.Ct..at 1712 (quoting Volkswacenwerk v. FMC,fsupra, 390 U.S. at 272, 88 S.Ct. 929).

W ' Taint orLno taint, on the matter of-the statutory construction of Section.105c required by the " bedrock" legal issue,-regardless-of where the Commir,aion comes down on the legal .

issue, an appellate court'will ultimately decide the issue of

. statutory. construction, subject only to review on certiorari by the Supreme Court. Indeed, as in Ft. Pierce, supra, the appel-

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late court-will-ensure that the Commission's statutory construc-tion ~of Section 105 was not affected by any Congressional undue influence.

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. y-Thus, granting this motion will not only save time and-money, it will expeditiously produce a decision by_an appellate court on the " bedrock" legal issue that no one, including the Applicants, could challenge as the product of alleged undue Congressional infir.once, thus putting to rest a frivolous chal-

) lenge of the commission's integrity.

For the foregoing reasons, this motion should be

granted.

Respectfully cubmitted, Danny R. Williams Director of Law June W. Wiener Chief Assistant Director of Law e

William T. Zigli Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue r Cleveland, Ohio 44115 Telephone (216) 664-2800

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q u?  %'*)'f1 Reuben Goldberg Channing D. Strother, Jr.

B. Victoria Brennan Goldberg, Fieldnan & Letham, P.C.

1100 Fifteenth Street, N.W.

Washington, D.C. 20005 Telephone (202) 463-8300 Attorneys for

. City of Cleveland, Ohio December 19, 1991

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UNITED STATES OF AMERICA 0%HC i BEFORE THE i NUCLEAR REGULATORY COMMISSION l

'91 TC 20 ' P3 :54 ;

1 QT'lCE0r5tcactAfy

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) 00CKEhNG A mvict^

-In the Matter of ) Docket Nos. 50-4 4 0-AR ANCH

) 50-346-A OHIO EDISON COMPANY )

(Perry Nuclear Power Plant, )

Unit 1, Facility Operating )

License No. NPF-58) )

)

THE CLEVELAND ELECTRIC )

ILLUMINATING COMPANY )

THE TOLEDO EDISON COMPANY )

(Perry Nuclear Power Plant, ) ASLBP 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) )

)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that-on this 19th day of December, 1991, a-copy of the foregoing MOTION OF CITY OF CLEVELAND, OHIO, FOR COMMISSION REVOCATION OF THE REFERRAL TO ASLB AND FOR ADOP-TION OF THE APRIL 24, 1991 DECISION AS THE COkH.:SSION'S-DECISION was mailed first class, postage prepaid, to each of the follow-ing:

Samuel J. Chilk Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 l

Ivan Selin, Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555 Kenneth C. Rogers,-Commissioner U.S. Nuclear Regulatory Commission p Washington, DC 20555 l

James R. Curtiss, Commissioner U.S. Nuclear-Regulatory Commission

-Washington, DC 20555

.Forrest J. Remick, Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555

, lion.- Marshall E. Miller, Chairman Atomic Safety and Licensing-Board Panel U.S. Nuclear Regulatory Commission 1920 South Crock Boulevard Spruce Creek Fly-In Daytona Beach, FL 32124 Ilon. Charles Bechhoefer Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555 lion. G. Paul Bollwerk,.III Atomic Safety and Licensing Board Panel U.S.-Nuclear Regulatory Commission Washington, DC 20555 Joseph Rutherg, Esq.

Sherwin E. Turk, Esq.

Steven R. Ilom, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555 9

Mark C. Schechter, Esq.,

Janet Urban, Esq.

Transportation, Energy and Agriculture Section Antitrust Division Department of Justice Judiciary Center Building 556 Fourth Street, NW Washington, DC 20001-Gerald Charnoff, Esq.

Deborah B. Charnoff, Esq.

Margaret S. Spencer, Esq.

Shaw, Pittman, Potts & Trowbridge 2300 N Street, NW Washington, DC 20037

' James P. Murphy, Esq.

-Squire, Linders & Dempsey 1201 Pennsylvania Avenue, NW P.O. Box 407 Washington, DC 20044

y.. .

June W. Weiner, Esq.,.

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

Assistant Director of Law City Hall, Room 106 601 Lakeside Avenue Cleveland, OH 44114 D. Biard.MacGuineas, Esq.

Volpe, Boskey and Lyons 918 Sixteenth Street, NW Washington, Dn 20006 David R. Straus, Esq.

Spiegel.& McDiarmid 1350 New York Avenue, NW Suite 1100 Washington, DC 20005-4798 John W. Bentine, Esq.

Chester, Hoffman, Willcox and Saxbe 17 South High Street Columbus, OH 43215 l f}V n/ fW/g4 Re%en G616 berg /

Goldberg, Fieldman A Letham, P.C.

1100 Fifteenth Street, NW Washington, DC 20005 (202) 463-8300

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