ML20101E126
| ML20101E126 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse, Perry  |
| Issue date: | 06/15/1992 |
| From: | Coyle J BROOK PARK, OH, DUNCAN & ALLEN (FORMERLY DUNCAN, ALLEN & TALMAGE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| CON-#292-13012 91-664-01-A, 91-664-1-A, A, NUDOCS 9206230073 | |
| Download: ML20101E126 (31) | |
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A[ /c3d / Z-4 00Cyt1ED ustWC UNITED STATES OF AMERICA BEFORE THE t/) ,fd 15 I , ,*, ,>
NUCLEAR REGULATORY COMMISSION i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) e
)
OHIO EDISON COMPANY ) Docket No. 50-440-A
) Docket No. 50-346-A (Perry Nuclear Power Plant, Unit 1 ) -
Facility Operating License ) (Suspension of No. NPF-58) ) Antitrust Conditions)
)
THE CLEVELAND ELECTRIC ) ASLBP No. 91-664-01-A ILLUMINATING COMPANY )
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) )
)
AMENDED PETITION OF THE CITY OF BROOK PARK, OHIO, FOR LEAVE TO INTERVENE OUT OF TIME Pursuant to Section 2.714(a) of the Commission's .
Rules of Practice (10 C.F.R. s 2.714(a)), the City of Brook Park, Ohio, (" Brook Park") hereby submits its amended petition for leave to intervene in these proceedings. Brook Park's initial petition to intervene was denied in the Board's order of October 7, 1991 (LBP-91-38, at pp. 36-39), as amended by the Board's order of November 5, 1991. The persons designated
, to receive service of pleadings, orders and other documents in connection with this proceeding on behalf of Brook Park are:
G 9206230073 920615 PDR ADOCK 03000346 2 M PDR
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David A. Lambros, Esq.
Law Director City of Brook Park -
6161 Engle Road Brook Park, Ohio 44142 Telephone: (216) 433-1300 Gregg D. Ottinger, Esq.
John P. Coyle, Esq.
Duncan & Allen Sui 9 ,00 _
1575 Eye Street, N.W.
Washington, D.C. 20005-1175 Telephone: (202) 289-8400 For the reasons set forth below, Brook Purk is entitled to intervene out of time in this proceeding as of right, because its establishment of a municipal electric system by adoption of Ordinance No. 7711-1992, which became effective on May 22, 1992, has eliminated the " hypothetical" nature of the injury-in-fact that Brook Park would sustain as the result of a favorable ruling on the Licensees' application in this proceeding, and thereby eliminated the principal _
ground for the Board's denial of Bror>k Park's initial motion for leave to intervene. In addition, Brook Park's creation of a municipal electric system places it squarely within the
" zone of interests" intended to be protected by the antitrust conditions at issue in this proceeding.
Alternatively, Prook Park is entitled to both intervention as of right and discretionary intervention in these proceedings because: (1) its formation of a municipal electric system within the service territory of the Cleveland
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Electric Illuminating Company gives it a direct and immediate interest in the continuation of the antitrust conditions at issue in this proceeding which cannot be represented adequately by other parties to this proceeding; (2) Brook Park's perspective, as a nascent municipal electric system within the service territory of one of the applicants in this _
proceeding, will substantially contribute to the development of a sound record in this proceeding; (3) Brook Parx's counsel bring significant expertise to this proceeding, based on their prior experience in the formation of municipal electric utilities in the State of Ohio, their participation in the administrative review process before the Staff in this proceeding and their experience in the application of antitrust principles in the electric utility industry; and (4)
Brook Park's participation will not inappropriately broaden or delay this proceeding.
I. BROOK PARK IS ENTITLED TO INTERVENTION OUT OF TIME AS OF RIGHT UNDER THE COMMISSICN'S RULES OF PRACTICE As set forth in the Board's order ot October 7, 1991 (LBP-91-38 at pp. 2-3), the Commission's notice of May 1, 1991 (56 Fed. Reg. 20,057) established May 31, 1991, as the date for filing petitions for intervention and requests for hearing in this proceeding. Brook Park filed its initial petition to intervene on August 8, 1991, and supplemented its petition at
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the Board's direction on September 4, 1991. As stated above, the Board denied Brook Park's initial petition to intervene by its order of October 7, 1991 (LBP-91-38, at pp. 36-39), as amended by the Board's order of November 5, 1991.
Brook Park's present, amended petition to intervene is " untimely" within the meaning of Section 2.714 (a) (1) of the _
Commission's Rules of Practice. Brook Park is nonetheless entitled to intervention as of right in this proceeding under the requirements of Section 2.714(a) and (d) of the Commission's Rules of Practice (10 C.F.R. 5 2.714(a) and (d)),
for the reasons set forth below. In particular, Brook Park has satisfied the "cause" requirement of the cited provisions of the Commission's Rules of Practice because its ability to satisfy the " standing" requirements articulated by the Board in LBP-91-38 was fully and finally resolved on the May 22,
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1992, effective date of its ordinance creating its municipal electric system.
The requirements for untimely intervention under the Commission's Rules of Practice are as follows:
10 C.F.R. 4 2.714(a)(1)
. . . Untimely filings will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on the petition . . . that the petition . . . should be granted based upon a balancing of the following factors in addition to those set out in paragraph (d) (1) of this section:
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-S-(i) Good cause, if any, for failure to file on time.
(ii) The availability of other means whereby the petitioner's interest will be protected.
(iii) The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
(iv) The extent to which the petitioner's interest will be represented by existing parties.
(v) The extent to which the petitioner's ,
participation will broaden or delay the proceeding.
10 C.F.R. 4 2.714(d)(1):
. . . (S)uch ruling body or officer shall, in ruling on a petition for leave to intervene, consider the following factors, among other things:
(i) The nature of the petitioner's right under the Act to be made a party to the proceeding.-
(ii) The nature and extent of the petitioner's property, financial or other interest in the proceeding.
(iii) The possible effect of any order that may be entered in the proceeding on the petitioner's interest.
In demonstrating Brook Park's compliance with the foregoing requirements, it is first necessary to review the
. process of Brook Park's establishment of its municipal electric system under Article XVIII of the Constitution of the State of Ohio. We then show: (1) that Brook Park unquestionably established the " standing" necessary to support its intervention in this proceeding on the effective date of its ordinance creating a municipal electric system, and
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therefore has the requisite "cause" for its untimely intervention; (2) that Brook Park's interests are not otherwise represented in this proceeding, and that its participation will contribute significantly to the development of a sound record herein; and (3) that Brook Park's participation in this proceeding will not inappropriately broaden or delay this proceeding.
A. The Creation of Brook Park's Municipal Electric System Under Articic XVIII of the Ohio Constitution The central objective of the antitrust conditions at issue in this proceeding is the protection of competition and the elimination of the " situation inconsistent with the antitrust laws . . .
(42 U.S.C. S 2135(c) (5)) that the Commission found applicants The Toledo Edison Company ("TECo")
and The Cleveland Electric Illuminating Company ("CEI") to have created. Toledo Edison Co x (Davis-Besso Nuclear Power Plant, Units 1, 2, and 3), ALAB-560, 10 NRC 265 (1979). As the Commission found in the underlying licensing proceedings, the significant source of c~mpetition in the product and geographic markets relevant to its inquiries was not other investor-owned utilities (with which TECo and CEI were found to have acted in a collusive and anticompetitive manner), but rather the small, consumer-owned, municipal and cooperative electric systems operating within those-markets. Id. at 274-
275. It is therefore essential, in deciding this motion and in deciding this case, that the Board have an appreciation for the process and the dynamics of the creation and operation of municipal electric systems under the Constitution of the State of Ohio, through which Brook Park's municipal electric system has lately come into being. _
- 1. Article XVIII of the Ohio Constitution Ohio's Constitutional Convention of 1912 added Article XVIII to the Ohio Constitution. Known generally as the "home rule amendment," Article XVIII confers upon Ohio municipalities extensive powers of self-governance, including the power to acquire, own and operate a municipal utility.
Thus, Article XVIII, Section 4 of the Ohio Constitution provides:
Any municipality may acquire, construct, own, lease and operate within or without its _
corporate limits, any public utility the product or service of which is or is to be supplied to the municipality or its inhabitants, and may contract with others for any such product or service.
Recognizing the significant commitment of a municipality's capital and other resources required for the establishment and operation of a manicipal utility, Article XVIII of the Ohio Constitution requires that the process of formation of a municipal utility proceed with deliberation and an appropriate opportunity for the citizens of the
-d municipality to participate in the decision to form such a-utility. Thus, Article XVIII, Section 5.of the Ohio constitution provides:
Any municipality proceeding to acquire, construct, own, lease or operate a public utility, or to contract with any person or company therefor, shall act by ordinance and no such ordinance shall take effect until after thirty days from its passage.
Finally, Article XVIII, Section 6 of the Ohio Constitution limits the ability of a municipal utility to engage in off-system sales to not more than fifty percent of the amount of power consumed within the corporate limits of the municipality.
- 2. Brook Park's Creation of Its Municipal Electric System Brook Park is a municipality located in Cuyahoga County, Chio, covering a land area of 8.8 square miles adjacent to the southwest corner of the boundary of the City of Cleveland. Brook Park has approximately 26,000 inhabitants, and its residents and businesses presently receive electric service from CEI, one of the applicants in this proceeding. Present annual electric energy consumption within Brook Park is approximately 760,000,000 kWh per year, and peak demand within Brook Park is approximately 135 MW.
As stated in its initial petition for leave to intervene in this proceeding, filed August 8, 1991, Brook Park
began to study the feasibility of establishing its municipal electric system during the late Spring and early Summer of 1991. Following the submission by its consultants of a preliminary feasibility study of the feasibility of Brook Park's establishment of a municipal electric system, Brook Park's City Council placed on the ballot for its November 1991 _
elections a referendum for the amendment of its Charter to establish a Division of Utilities within its municipal government in order to establish a municipal electric system.
On November 6, 1991, the citizens of Brook Park voted 77 percent in favor of the referendum establishing the City's Division of Utilities.
On April-21, 1992, following futher review and analysis of the establishment of a municipal electric utility, Brook Park's City Council unanimously passed Ordinance No. ,
7711-1992 (a copy of which is attached hereto as Exhibit A),
establishing a municipal utility in accordance with the requirements of Article XVIII, Sections 4 and 5 of the Ohio Constitution. Pursuant to Article XVIII, Section 5 of the Ohio Constitution, Ordinance No. 7711-1992 became effective on May 22, 1992.
Brook Park thus became only the second city in the State of Ohio to establish a new municipal utility in the past fifty years.1/
B. Brook Park Has Standing To Intervene In This Proceeding As An " Entity" Entitled to the Benefit of the Antitrust Conditions; The Need to Establish Standing Also -
Constitutes Cause for Late Intervention
- 1. Brook Park Is Within The " Zone of Interests" Sought to Be Protected By The Antitrust Conditions And Will Suffer Specific and Concrete Injury-In-Fact Should The Licensees' Application Herein Receive A Favorable Rulina In its order of October 7, 1991 (LBP-91-38, at p. 38
[as amended by its order of November 5, 1991]), the Board observed (footnotes omitted):
. . . [I]t is apparent that any injury Brook Park (purportedly) might suffer as a consequence of this proceeding is entirely hypothetical until it reaches its decision actually to (inctitute) a municipal electrical system. As counsel for Brook Park -
advised us during the prehearing conference, such a determination will not come, at the earliest, until November of this year. At that time, Brook Park citizens will vote on whether to amend the municipality's charter to establish an electrical system. If they do so, Brook Park's stake in this proceeding will then cease to be provisional and it will become subject to the same concrete injury-in-fact that could accrue to Cleveland or AMP-Ohio as a result of a determination in this proceeding in 1/ The only other Ohio city to establish a municipal electric system within the last fifty years is the City of Clyde, Ohio, which is surrounded by the service territory of applicant TECo. Clyde established its municipal system in July, 1987, and began to provide electric service to its first customer on April 16, 1989.
favor of the licensees. At present, however, the
-abstract, hypothetical nature of the injury to Brook Park is insufficient to establish its standing to intervene in this proceeding.
The facts set forth in Part A. above plainly establish that-the Board's concerns over Brook Park's t " standing" to intervene in this proceeding have been fully satisfied by Brook Park's establishment of a municipal electric utility through the adoption of Ordinance No. 7711-1992. In the most basic possible terms, Brook Park's establishment of a municipal electric utility through the adoption of Ordinance No. 7711-1992 made Brook Park an
" entity" within the meaning of the antitrust conditions in this proceeding -- i.e., "any electric generation and/or distribution system or municipality or cooperative with a statutory right or privilege to engage in either of these functions" (Toledo Edison Co., suora, 10 NRC at-405 n.480) --
which is entitled to invoke those conditions. Brook Park is located within the geographic market found to be relevant in the underlying licensing proceedings (the " Combined CAPCO company Territories" or "CCCT," which encompasses the service territory of CEI, within which Brook Park is located). Brook Park will compete with CEI in at least one product market found relevant in the underlying proceedings (the retail service market), and will be both a consumer and a competitor
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i in the other two product markets (regional power exchange transactions and coordination services) .
In developing sources of power supply for its newly created municipal electric system, Brook will need to invoke one or more of the following antitrust conditions at issue in this proceeding: Condition 1 (forbidding the licensees to impose.specified conditions on their sale or exchange of wholesale power or coordination services with-requesting entities); Condition 2 (requiring licensees to make available interconnections with requesting entities on reasonable terms and conditions) ; Condition 3 (requiring licensees to engage in wheeling for requesting entities); Conditions 5, 6 and 7 (requiring licensees to make available to requesting entities, respectively, maintenance power, emergency power and economy
-energy,- on terms and conditions no less favorable than those between or among the licensees themselves or other entities outside of_-the Central Area power Coordination ("CApCO")
- pool) ; and Condition 10 (requiring licensees to sell wholesale
_ power-to requesting entities on either a full requirements or partial requirements basis, at the requesting entity's
-option). See Toledo Edison Co., suora 10 NRC at 296-299.
In view of the foregoing,-it is clear, both from the Board's own prior decision concerning Brook Park's initial petition for leave to intervene and from the relevant l
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e precedent, that Brock Park has now satisfied the requirements of the " contemporaneous judicial concepts" of standing governing the Board's disposition of petitions for leave to intervene under Section 2.714 (a) of the Commission's Rules of Practice. Florida Power & Licht Co. (St. Lucie Nuclear Power Plant), CLI-89-21, 30 NRC 325, 329 (1989); Metronolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327 332-333 (1983). The foregoing discussion also makes plain that Brook Park is a " person whose interest may be affected" by this proc eding, within the meaning of Section 189a of the Atomic Energy Act of 1954, as amended (42 U.S.C. 5 2239 (a) (1) ) , and is therefore entitled to be admitted as a party to this proceeding.
- 2. Brook Park Has Shown Good Cause For Untimely Intervention The Board's disposition of Brook Park's initial petition for leave to intervene in LBP-91-38 (at p. 38) makes it self-evident that Brook Park has good cause for untimely intervention. Simply put, Brook Park attempted to intervene earlier in this-proceeding, and was met with a decision of this Board holding that it lacked standing and needed to fulfill-the legal requisites for establishment of a municipal
-electric system before it could demonstrate standing. Brook Park fulfilled the legal requisites for establishment of a municipal electric system under the Constitution and laws of
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the State of Ohio beyond peradventure when Ordinance No. 7711-1992 became effective on May 22, 1992. As the Board's disposition of Brook Park's initial petition in LBP-91-38 makes abundantly clear, this Board was not prepared to find that Brook Park had established standing prior to that time.
Accordingly, Brook Park has shown good cavse for its
" untimely" submission of its amended petition for leave to inte rvene .
C. Brook Park's Interests Are Not Otherwise Represented In This Proceeding; Brook Park's Participation Will Contribute Sianificantly To The Development Of A Sound Record The Board's order-of October 7, 1991 (LBP-91-38 at pp. 38-39) also questioned Brook Park's showings with respect to the third (and, implicitly, the fourth) factor governing disposition of untimely petitions to intervene under Section 2.714(a) of the Commission's Rules of Practice. As the Board indicated would be appropriate in LBP-91-38, Brook Park takes this opportunity to amplify these aspects of its showing in support of its petition.
- 1. Brook Park's Interests Are Not Otherwise Represented In This Proceedino Fundamentally, Brook Park's interest in this proceeding is unique. As observed above. Brook Park is only the second municipal electric system to be formed in the State of Ohio in the last fifty years. Brook Park's emergence as a
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municipal electric utility, and the challenges it confronts in the-process of implementing Ordinance No. 7711-1992, should reasonably be expected to provide " live" proof of the continuing need for, and the efficacy of, the antitrust conditions which the licensees seek to have eviscerated in this' proceeding.
The Board will recall that the gravamen of the Commission's findings in initially imposing the conditions at issue in this proceeding was that TECo, CEI and Ohio Edison had engaged in a lengthy course of anticompetitive conduct designed'to suppress and eliminate their municipal competitors. See Toledo Edison Co., suora, 10 NRC-at 278-282.
The initial application of TECo and CEI in this proceeding for
" suspension" of the antitrust conditions in their licenses argues in part (TECo/CEI Application at 29-33, and particularly at 31) --
in what Brook Park finds to be a particularly chilling economic solipsism -- that "the conditions threaten to exacerbate the erosion of CEI's and TE's municipal markets."Z/
2/ The notion that a market participant " owns" a market -- a suggested by CEI's and TECo's use of the possessive in the above-cited portions of their application -- is one that Brook Park finds novel in antitrust theory, and a notion that Brook Park sincerely hopes does not lose its novelty by obtaining acceptance in this or any other proceeding.
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Fairly read, then, both the decision imposing the conditions and the licensees' instant applications to
" suspend" those conditions put in issue in this proceeding whether the barriers to market entry found in the underlying proceedings to have_been anticompetitively erected and maintained by the applicants have been sufficiently attenuated _
(as applicants contend, by the "high cost" of nuclear power generation) to warrant giving the applicants a "second bite" at their municipal competitors, freed from the restraint of the conditions. The question of the impact of barriers to entry on the ability-of a market participant to maintain supracompetitive pricing, or otherwise to engage in anticompetitive conduct, is well recognized in the antitrust laws that the Commission is bound by Section 105c of the Act (42 U.S.C. 5 2135(c)) to uphold. C12 United States v.
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Ealstaff Brewina Co., 410 U.S. 526, 532-533 (1973). No party in this proceeding is in a better position than Brook Park to bear witness to the effect of the conditions on such barriers than Brook Park, as it struggles to overcome them as a new market entrant.
Brook-Park's interests are plainly not represented
-by American Municipal Power-Ohio, Inc. (" AMP-Ohio"). AMP-Ohio is a wholesale power supplier, which does not compete in the retail electric market with any applicant, as Brook Park will.
Moreover, Brook Park is not a member of AMP-Ohio, and AMP-Ohio is therefore not obligated to represent its interests in this proceeding, even if (as is not necessarily the case) those interests were otherwise aligned.
Brook Park's interests in this proceeding are also not represented by the City of Cleveland. Cleveland is a large and well established municipal system with a long history.of confronting the competitive (and anticompetitive) challenges posed by CEI. In contrast, Brook Park is an emerging municipal system, engaged in the process of exploring and acquiring power supply and relying, in a very real sense, on the continued existence of the antitrust license conditions at issue in this proceeding for its very survival as a
-municipal utility. Moreover, Brook Park believes that the limitation on off-system sales contained in Article XVIII, Section 6 of the Ohio Constitution would preclude Cleveland from providing Brook Park with wholesale full requirements service, although Brook Park does regard Cleveland as at least a potential competitor for the supply of a portion of Brook Park's power and energy requirements. It is thus clear that the respective interests of Brook Park and Cleveland in this proceeding are not coterminous.
The Board's description-of the interest of Alabama Electric Cooperative ("AEC") in this proceeding ought to
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suffice as an explanation why AEC cannot represent Brook Park's interests. AEC is not a competitor in the product and geographic markets found relevant by the Commission in the underlying proceedings.
Finally, neither the NRC Staff nor the Department of Justice-("DOJ") can properly represent the direct and unique interests of Brook Park in these proceedings. Both Staff and DOJ are. charged with the representation of the broadest public interest in these proceedings. Thus, although Brook Park is confident in the ef forts of Staf f and DOJ to advance and
- fend the important questions of public policy at issue in applicants' efforts to escape the restraints of their license antitrust conditions, the broad public interest responsibilities of both Staff and DOJ will likely preclude them from adequately representing Brook Park's direct and unique interest in this proceeding.
- 2. Brook Park's Participation Will Bring Substantial Legal and Technical ExDertise To This ProceediDS In addition to the unique and crucial perspective that Brook Park's interest in the protection and continuation of the antitrust conditions will bring to this proceeding, Brook Park's counsel have significant experience and expertise in a number of matters involved in this proceeding. Thus, Brook Park's counsel served as counsel to the City of Clyde,
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Ohio, in its efforts to create the f:.rst successful municipal electric system in the State of Ohio in the last fifty years.
They are thus thoroughly -- indeed, uniquely -- familiar with .
the broad range of legal issues involved in the creation and development of. municipal electric s'fstems in Ohio, and in ,
particular with the crucial role that the antitrust conditions at issue in this proceeding play in that process.
In addition, as-counsel for the City of Clyde, Ohio, Brook Park's counsel participated in the administrative review process before the Staff on the applications involved in these proceedings, filing comments on behalf of the City of Clyde with respect to the Ohio Edison application on February 5, 1988, and filing comments on behalf of the City of Clyde with respect to the TEco/CEI application on July 15, 1988. Brook Park's counsel have thus been actively . involved in, and have carefully followed the course of, this proceeding, from its outset. Their " familiarity with the OE and CEI/TE
. applications thus . . ." demonstrably does " match that of AMP-Ohio, which (like Brook Park's counsel] participated in the administrative review process before the Staff." (LBP-91-38 at.p. 39).
Finally, Brook Park's counsel both have extensive
- experience in.the application of antitrust principles to the utility industry, through inter plia their representation of
4 major and active intervenors in the following utility merger proceedings before the Federal Energy Regulatory Commission under Section 203 of the Federal Power Act (16 U.S.C. $ 824b),
each of which involved application of the principles of the Sherman and Clayton Acts to the utility mergers at issue:
Utah Power & Licht Co. and Pacif1 Corp. (FERC Docket No. EC88-2-000 and related dockets);
Eguthern California Edison Co. and San Dieco Gas &
Electric Co. (FERC Docket No. EC89-5-000);
Northeast Utilities Service Co. (Re Public Service Co. of New Hamoshire) (FERC Docket No. EC90-10-000 and related dockets);
Kansas City Power & Licht Co. and Kansas Gas &
Electric Co. (FERC Docket No. EC90-16-000); and
-Kansas Power & Licht Co. and Kansas Gas & Electric C Q_, (FERC Docke.t No. EC91-2-000)
Based on the foregoing, it is clear that Brook Park's counsel would bring to this proceeding a unique combination of experience in the creation and development of municipal electric systems in the State of-Ohio (within the service territories of two of the three~ applicants -- TECo (Clyde) and CEI (Brook Park)) -- and thorough familiarity with the legal and technicel issues involved in the application of antitrust principles to the utility industry. Brook Park's counsel also have thorough familiarity with the applications at issue here, and with the record of this proceeding from its outset.
D. Brook Park's Participation Will Not Inappropriately Broaden Or Delav This Proceedina Brook Park recognizes that. :: a consequence of the Board's order on its initial petition for leave to intervene, it must take the record in this proceeding as it exists at such time as it may be permitted to intervene. In particular, Brook Park recognizes that briefing and argument on summary stsposition of this proceeding have already occurred. In that regard, Brook Park gr.nerally supports Staff's April 1091 administrative dete.rmination to deny the amendment requests herein (the posi+. ions of Cleveland, AMP-Ohio, AEC and DOJ alrsady found sufficient by the Board (LBP-91-38 at p. 54, note 99) to satisfy the pleading requirements of Section 2.714(b) of the Commission's Rules of Practice), and generally supports the arguments advanced by Cleveland, AMP-Ohio, AEC and DOJ in connection with the motions for summary disposition.- If granted leave to intervene, Brook Park would propose to submit a formal ctatement, after detailed consideration of the pleadings, with respect to which specific portions of the arguments advanced by those parties it wishes to adopt. Brook Park will not seek individually to brief or argue summary disposition to the Board, but does wish to preserve its appeal rights with respect to whatever order the Board might issue on summary dispositio. )
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Should the Board determine to proceed with a factual inquiry on the applications, Brook Park will accept the
" bedrock legal issue" already stipulated by the parties.
Although Brook Park does not believe that any factual inquiry is appropriate on these applications, and has therefore not thoroughly ana3yzed the nature of whatever evidentiary _
presentation (if any) it might wish to make to the Board, Brook Park believes that any evidentiary presentation it might wish i to make would not encompass the testimony of more than two or three witnesses relating to Brook Park's particular interest in the proceeding, as described above.
Finally, Brook Park will accept whatever limitations of time and scope are already in place with respect to discovery in this proceeding.
Brook Park believes that the foregoing limitations on its participation are sufficient to ensure that such participation will not inappropriately broaden or delay this proceeding. However, Brook Park is also amenable to addressing on a reasonable basis whatever other legitimate concerns other participants might raise in this regard with respect to Brook Park's intervention.
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II. AT A MINIMUM, BROOK PARK HAS SATISFIED THE COMMISSION'S REQUIREMENTS FOR DISCRETIONARY INTERVENTION The Commission's seminal decision on discretionary intervention, Portland General Electric CQ2 (Pebble Springs Nuclear Plant, Units 1 and 2), CLI-76-27, 4 NRC (10, 616.
(1976), establishes that the Board is to consider essentially the same criteria set forth in Section 2.714(a) and (d) with respect to intervention of right in deciding whether to grant discretionary _ intervention. The principle difference between the treatment of intervention of right and the treatment of discretionary intervention is that discretionary intervention does not adhere to the Commission's strict standing requirements.
Brook Park believes that it has more than adequately established-that_it has standing, and has otherwise satisfied the Commission's requirements for granting untimely intervention as of right under the relevant proVi. ions of the RulesEof Practice. In any event, through the showing made above, Brook Park has clearly satisfied the Commission's requirements-for discretionary intervention. In particular, Brook Patk has shown significant ability to contribute on issues of law or fact which will not otherwise be properly raised or presented; has set forth those matters with appropriate specificity to allow evaluation; and has I
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demonstrated the .mportance and immediacy of those issues, justifying the time necessary to consider-them. The policies underlying the Commission's decision in Pebble Sorinas, 4 NRC at 617, are thus fully satisfied and Brook Park should, at a minimum, be granted discretionary intervention in this proceeding. -
III. CONCL SION For the foregoing reasons, Brook Park's amended petition for leave to intervene out of time should be granted as a matter of right. Alternatively, Brook Park should be granted discretionary intervention.
espectfu ly mitted, f
v pre d D. Ott4hger, q. -
P. Coyle, Esq.
foh
< Dun an & Allen u' e 300 g 1 5 Eye Street, N.W.
Washington, D.C. 20005-1175 Telephone: (202) 289-8400 David A.-Lambros, Esq.
Law Director City of Brook Park 6161 Engle Road Brook Park, Ohio 44142 Telephone: (216) 433-1300 Counsel for the City of Brook Park, Ohio Dated at Washington, D.C.
this 15th day of June, 1992.
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EXHIBIT.A TO AMENDED PETITION OF-CITY OF BROOK PARK, OHIO FOR LEAVE TO INTERVENE CITY OF BROOK PARK ORDINANCE NO. 7711-1992 (ADOPTED APRIL 21, 1992; EFFECTIVE MAY 22, 1992) h
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$l tadt WAVNA CITY OP BROOK PARK OHIO ORDINANCE NO: 9 ? # / $F2.
INTRODUCED BY: Mayor Coyne AN ORDINANCE DECLARINO IT NECESBARY TO ESTABLISH, ACQUIRE, AND OPERATE A MUNICIPAL ELECTRIC SYSTEM WHEREAS, this Council has an interest in keeping rates for electric service to the citizens of, and businesses in, the City of Brook Park as low as possible; and WHEREAS, Article XVI!!, Section 4 of the Ohio Constitution provides in part that " Any municipauty may acquire, construct, own, lease and operate within or without its corporato limits, any publio ut!Uty the product or ser-vico cf which is or is to be supplied to the municipauty or its inhabitanta, and may contract with othere for any such product or services" and WilERBAS, Artide XVllt, Section 5 of the Ohio Constitution provides in part that " Any municipauty proceeding to acquire construct, own. lease or operate a pubuc utiuty, or to contract with any person or company there-for, shall act by ordinance and no such ordinance shan take effect until after thirty days from its passagei" and WHEREAS, this Council has received, reviewed and discussed f6astbill-ty studice prepared by expert utility consultants, regarding the feasibility, costs, and benefits of establishing a municipal electric utility to serve the City and its inhabitants: and WHEREAS, based on the feasib!11ty studies referenced above, this Council has determined that it is in the pubuc interest to estabush a munici-pai electric utility owned and operated by the City of Brook Park in order to reduce electrical costs to the City, businesses and inhabitants of Brook Park; NOW, Tl!EREFORE, BE IT ORDAINED by the Council of the City of Brook Park, State of Ohio, that:
SECTION 1: That the City of Brook Park shall proceed to acquire, construct. own, lease and operate within or without its corporate limits, a public electric utility the product or service of which shall be suppued to the City and its inhabitants, and may contract with others for any such product or service.
SECTION 2: That the municipal electric system within the Division of Utilities shan tse named " Brook Park Pubuc Power." The Mayor shall have supervision over Brook Park Pubuc Power.
SECTION 3: That the City shall have and may exercise any and au legal powers ano duties necessary to implement Section 1 of this Ordinance, to provide reliable electric service to the City, businesses ar.d inhabitants of Brook Park, and may exercise all of the powers granted to municipal electric utility systems by the Conatitution and laws of Ohio and the Charter of the City of Brook Park. The Mayor le authorised and directed to oversee the im*
piementation of such powers and duties to the extent allowed by law, and tc perform the activities necessary to do so, including, but not limited to, the fo!!owing:
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Lp d' A. Develop plans for, and enter into negottettone- with third parties in:-
connection with all aspects of the establishment of Brook Park Pub-llo lower and its program for the purchase production, transmis-alon. distribution and tale of electric power and energy (ite " power p rogr am") .
B. Supevise the work of all consultante engaged by the Brook l Park Cit, founcil in connection with the establish.aent of Brook Park Pubha Power and its power program.
C. Review all proposed contracts or other engagemente relating to the:
establishment and operation of - Brook Path Pub!!c Power and its power program and make recommendations to the City Council con-carning proposed contracts or engagemente.
D. Have responsibtuty for the development of plans and procedures for the operation and maintenance of Brook Park Public Power and its 4 power progTam and supervise t% implementation thereof.
E. Have the responsibility ~ to recommend to the City Council rates for the use of electric service provided by Brook Park Public Power.
SECTION 4: It le the intention of Council that funding for acquial-tion, construction and improvement of Brook Park Public Power shall be ob-tained by the leeuance. from time to time as funds are required, of obuga-tions by the City. It is the intention of.this Council that, to the maximum ,
extent possible, such obilgatione shall be self-supporting obligatione, the '!
principal and interest and premium, if any, on which shall be paid from the '
revenues of the City's electrio utility. Such obligations may constat of reve-nue obligations authorised and issued by the City pursuant to Article XV!!!.
Section 12 of the Ohio Constitution, other revenue obligations- tesued under authority of Article XV!!! Section 3 of the Ohio Constitution or genera) obl!-'
gations of the City leeued in accordance with Ohio law. To the extent that this Council determinea it to be in the best interest of the City to do e thte 1 Couxt1 may authorise the leeuance of notes in anticipation of the teauance of long-term ob!!gations to provide financing for Brook Park Public Power.
SECTION 5: Prior to - the leeuanoe of any obligations, the City may )
use moneys in its general fund or other available funds to pey architectural, i engineering survey, consulting and legal costs in connection with the plan.
ning, organization and development of Brook Park Public Power, and to pay .
any coste of- acquiring.- constructing, equipping and operating Brook Park Public Power. To the extent that any such expenditures may be properly H-nanced with the proceeds of general obligations or revenue obligatione of the City under Ohio law, the City intende to reia Wurse itself for such expendi-tures with a portion of the proceeds of notes, bonde or other tax-exempt ob-ligations of the City. This Council intends that thle Ordinance shall conett--
tute the declaration of official intent of the City under Treas. Reg. Section 1.103-18. promulgated pursuant to the Internal Revenue Code of 1986, as 1 amended.
SECTION-4: If any .of the provisions of thle Ordinance are held in- ,
valid for any reason. the remaining provlefone shall remain in full force and - )
, effect to the extent they are not dependent on and inseparable from the in- -
valid provision.
SECTION 7: It la found that all formal actions of this Council con-corning and relating to the adoption of this Ordinance were adopted in an open meeting of this Council, and that all deliberations of this Counct! and of I any of its committees that resulted in such formal action, were .in meetings open to the public. In comp!!ance with all legal requiremente, including Sec- ;
tion-121.22 of the Ohio Revloed Code.
SECTION 8: The Clerk of this Counct! is hereby authortted and di-rected to mail e copy of this Ordinance to the current supplier of electric :
service to the City. The Cleveland E!*ctric illuminating Company, by certified '
mail, i
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BBCTl0N la That this Ordinat i e shall take effect and be in force from and after its passage at the earliest period allowed by law. provide d that, pursuant to Article XVIII. Beation 6 of the Ohio Constitution, if within
, thirty days from p6esage of this Ordinance, a petition algned by ten per t- centum of the electore of the City of Brook Park shall be flied with the exec
- ttive authority of the City demanding a referendum on thle Ordinance. It shall. not take effect until submitted to the electore and approved by a majort-ty of those voting thereon in accordance with Article XVill of the Ohio Con-stltution.
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% Nix UNITED STATES OF AMERICA BEFORE TIIE NUCLEAR REGULATORY COMMISSIor '92 JLN IS P1 :13 BEFORE THE ATOMIC SAFETY AND LICENSING BOARAq g. y ,
OvC M 'ma , !.slu
) ! v.tn n In the Matter of )
)
OHIO EDISON COMPANY ) Docket No. 50-440-A
) Docket No. 50-346-A ;
(Perry Nuclear Power Plant, Unit 1 ) >
Facility Operating License ) (Suspension of No. IIPF-58) .
) Antitrust Conditions)
)
THE CLEVELAND ELECTRIC ) ASLBP No. 91-664-01-A ILLUMINATING COMPANY ) .
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 The undersigned hereby certifies that one copy each of the foregoing Amended Petition of the City of Brook Park, Ohio, for Leave to Intervene and Notice of Appearance on Behalf of the City of Brook Park, Ohio has this day been served upon the following persons by first class United States mail, postage prepaid, except as otherwise noted, in accordance with the requirements of Section 2.712 of the Commission's Rules of Practice (10 CFR $ 2.712):
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2-Office of Commission Appoi' ate Administrative Judge Adjudication Charles Bechhoefer U.S. Nuclear Regulatory Comm. Atomic Safety & Lic. Bd.
Washington, D.C. 20555 Nuclear Regulatory Commn.
Mail Stop EW 439 i Washington, D.C. 20555 1 i
Administrative Judge Administrativo Judge G. Paul Bollwerk, III Marshall E. Miller, ,
Atomic Safety & Licensing Bd. Chairman ASLBP '
U.S. Nuclear Reg. Commission 1920 South Creek Blvd.
Mail Stop EW 439 Spruce Creek Fly-In Washington, D.C. 20555 Daytona Beach, FL 32124 (via Federal Express)
Sherwin L. Turk, Esq. David R. Straus, Esq.
Office of the General Counsel spie9c1 & McDiarmid U.S. Nuclear Reg. Commission 1350 New York Ave., N.W.
Mail Stop OWFN 15B18 Suite 1100 Washington, D.C. 20555 Washington, D.C. 20005 Gerald Charnoff, Esq.
Shaw, Pittman, Potts and Trowbridge 2300 N Street, N.W.
Washington, D.C. 20037 Deborah Charnoff, Esq.
Shaw, Pittman, Potts and Trowbridge 2300 ! Street, N.W.
Washington, D.C. 20037 James P. Murphy, Esq. June W. Wiener, Esq.
Squire, Sanders & Dempsey Chief Asst. Director of Law 1201 Pennsylvania Ave., N.W. City Hall, Room 106 Washington, D.C. 20044 601 Lakeside Avenue Cleveland, Ohio 44114 Reuben Goldberg, Esq. Philip N. Overholt Goldberg, Fieldman & Letham, P.C. Office of Nuclear Plant 1100 15th Street, N.W. Performance Washington, D.C. 20005 Office of Nuclear Energy U.S. Dept of Energy, NE-44 Washington, D.C. 20585 l
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l Janet R. Urban, Esq. D. Biard MacGuineas, Esq.
Antitrust Division Volpo, Donkey and Lyons Department of Jus"!/?M 918 16th Street, N.W.
555 4th Stroot, t y! Suite 602 Washington, D.C. TS1 Washington, D.C. 20006 Kenneth L. Hegoman, P.E. I President American Municipal Power-Ohio, Inc.
601 Dempsey Road, P.O. Box 549 Westerville, OH 43081 Justin T. Rogers President Ohio Edison Company 76 South Main Street Akron, Ohio -44308 B. Paul Cotter, Jr.
Chief Administrative Judge Atomic Safety and Licensing Board Panel West Tower Building 4350 East West Highway Bethesda, Maryland 20814 Mark C. Schechter, Chief Transportation, Energy and Agriculture Branch Antitrust Division Department of Justico 555 Fourth Street, N.W.
Washington, D.C. 20001 I
- Aff\ #
Dated at Washington, D.C.
this 15th day of June, 1992.