ML20101K210

Applicants Request That Licensing Board Disregard Factual Issues Discussed During Oral Argument.* Foregoing Issues Represent Factual Issues Which Board Should Disregard in Disposition of Phase One of Case.W/Certificate of Svc

ML20101K210
Person / Time
Site:	Davis Besse, Perry
Issue date:	06/29/1992
From:	Singley M CLEVELAND ELECTRIC ILLUMINATING CO., OHIO EDISON CO., SHAW, PITTMAN, POTTS & TROWBRIDGE, TOLEDO EDISON CO.
To:	Atomic Safety and Licensing Board Panel
References
CON-#392-13047 91-644-01-A, 91-644-1-A, A, NUDOCS 9207020141
Download: ML20101K210 (11)

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UNITED STATES OF AMERICA MEC NUCLEAR REGULATORY COMMISSION 32 JLN 29 PS :31 BEFCRE THE ATCMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

)

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

) 50-346-A (Party Nuclear ?over Plant, Unit 1, )

-Facility Operating License ) (Suspension of No. NPF-38) ) 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) )

)

APPLICANTS' REQUEST THAT THE LICENSING BOARD DISREGARD FACTUAL ISSUES DISCUSSED DURING THE ORAL ARGLHENT l

Cn June 10, 1992 the Atomic Safety and Licensing Board

(" Board") convened an oral argument regarding the pending motions for summary disposition on the stipulated bedrock legal issue and the affirmative defense issues raised by the City of Cleveland.1#

1/ Previously, all parties and the Board agreed that the first phase of this proceeding would address only the disposition of the following legal issues:

i rootnote continued on next page.

9207020141 920629 PDR ADOCK 05000346 M PDR (yb 0

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At the conclusion of the June _10, 1992 oral argument, and'subse-quently in its June 12, 1992. Memorandum and order, the Board pro-vided all parties with "an opportunity to identify any signifi-cant factual assertions made by counsel during the argument that should not be considered by the Board in the context of resolving the ' bedrock' legal issue." June 12, 1992 Order at 1; see also Transcript at 437-46. Accordingly, Applicants submit this request.

The Board's Memorandum and Order properly redirects focus to

,a metion for summary disposi-the posture of the present case -

tion. All of the parties have agreed that the bedrock legal issue and Cleveland's affirmative defense claims are ripe for Footnote continued from previous page.

i 1. Is the Commission without authority as a mat-

, ter of law under Section 105 of the Atomic l Energy Act to retain antitrust license condi- f tions contained in an operating license if it finds that the actual ost of electricity from the licensed nuclear power plant is higher than the cost of electricity from i

alternative sources, all as appropriately measured and compared?

i

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

l See Ohio Edison Co. (Perry Nuclear Power Plant, j Unit 1) CLI-91-15, 34 N.R.C. 269 (Nov. 20, 1991),

! amended by Order (Nov. 21, 1991).

- - - -.-. - - _- . -- =- . . . . . .- .- , .- - -.

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resolution. This necessarily means that there are no disputed issues of fact needed for resolution of Phase One of this case.

Notwithstanding the posture of the case, factual issues have been raised that are irrelevant for resolution of the pending motion for summary disposition of the cost' issue "as a matter of lav,"

although some of these factual matters may be appropriate for resolution-in the subsequent phase of the proceeding concecning the actual cost of Perry and Davis-Besse power and their -

alternatives. !

-At ordingly, the followina fc' ml issues raised at the oral argumer.t should be disregarded by !..e Board in resolving Phase One of this proceeding:

2/

.' The determination by certain parties, particularly AMP-0, to divert the case from the pending legal issues to extraneous issues of fact was similarly evident in the briefs. See, e.g., Brief of American Municipal Power-Ohio, Inc. in Oppo-sition to Applicants' Motion for Summary Disposition and Cross-Motion for Summary Disposition, March 9, 1992, at 3 n.4, 5, 18-22, 30 n.19; but see Applicants' Reply to Opposi-tion Cross-Motion for' Summary Disposition and Responses to Applicants' Motion for Summary Disposition, May 7, 1992, at-71-80. While Applicants felt-obliged to challenge some of these misstatements of fact in their Reply Brief, they did so after first reaffirming their position that these diver-sionary allegations were irrelevant to the proper resolution of Phase One of this case. Id. at 71. ,

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1. Actual Cost of Nuclear Power and i__ts Alternatives Several times at the oral argument, the parties addressed the actual or projected cost of nuclear power and the appropriate i

components of cost. These f actual matters will become relevant if the Applicants' motion for summary disposition is granted and an evidentiary hearing takes place on the cost issue. But the actual cost of nuclear power is not relevant to the legal deter-mination of whether a high cost nuclear plant can " create or maintain a situation inconsistent with the antitrust' laws," the

, bedrock legal issue here.

Accordingly, the Board should disregard the following: *

(i) discussion between-the Board and Mr. Murphy concerning which costs should be measured (Transcript at 322 in. 21 to 324 in.

13); (ii) Mr. Straus' extended commentary, including quotations from various tources, of the Applicants' alleged extra record statements concerning the future costs of nuclear power and its alternatives (Transcript at 388 In. 4 :n 391 In. 12); (iii) dis-cussion between Ms. - Charnof f and the c, .cd concerning - the rela-tive cost of Ohio Edison's nuclear power (Transcript at 409 In.

-11 to 410 in, 3); and (iv) Mr. Straus' assertions about the com-ponents of-transmission costs (Transcript at 423 In. 1 to 424 In.

10).

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2. Existing Relationships between --'

Applicants and the Opposition At the oralt argunent, the parties addressed factual issues '

concerning the existing commercial relationships among the par-ties. These relationships are not relevant i n determining the bedrock legal issue, since they do not bear.on-the Commission's authority under Section 105(c) of.the Act to continue to impose license conditions when a nuclear power plant i s high cost. The Board should therefore disregard: (i) Mr. Goldberg's alleged l

-" factual" description of transmission access around Cleveland (Transcript at 374 In. 18-to 376 in. 9); (ii) Ms. Charnoff's and '

Mr. Straus' discussion of AMP-O's purchases from Ohio Edison and, ,

particularly, Mr. Straus' allegation that Ohio Edison has refused to offer AMP-O the opportunity to buy short-term power (Tran-script at 418 in. 20 to 420 in. 15); and (iii) Mr. Straus' state-ments concerning AMP-O's efforts to amend the Ohio constitution (Transcript at 392 in, 11 to 393 in. 11).

Similarly, the parties addressed various aspects of the wheeling and other license conditions currently imposed on the Applicants, Wheeling, and its burden, may be-relevant as one indicia that the antitrust conditions have some practical impact and that the bedrock legal issue presents an actual case or con-troversy. But speculation by the parties concerning the impact 4

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of_ removal of the conditions and the adverse impact on Applicants  ;

of their continued imposition are issues of fact which are not i relevant to deternining the Commission's authority, as l

a matter of law, to continue to inpose the license conditions. Accord- '

ingly, the Board should disregard: (i) the discussion between Mr.

Murphy and the-Board.regarding the economic burden of the wheel-ing requirements upon the Applicants (Transcript at 313 in. 8 to 316 In. 8); (ii) the discussion between Ms. Charnoff and the Board addressing the inclusion of embedded costs in wheeling fees (Transcript at 411 in. 20 to 412 In. 4); and (iii) Mr. Straut' comments describing the alleged components of wheeling fees (Transcript at 423 in. 6 to in. 24).

3. Administrative Costs The Board should disregard the comments by Mr. Hom-concern-ing any administrative costs NRC might incur in reviewing the relative cost of nuclear power and its alternatives (Transcript

- at 429 In. 21 to 432 In. 10). These-factual speculations are not relevant-to resolving the legal question of whether NRC is with-out authority, as a matter of law, to impose antitrust license conditions on-a relatively high-cost nuclear facility.

4 a

In summary, the foregoing issues all represent factual issues which the Board should disregard . its disposition of Phase One of this case.

Respectfully submitted, k 4 James P. Murphy Gerald Charnoff /* fr Colleen Conry Deborah B. Charnoff Mark A. Singley

• SQUIRE, SANDERS & DEMPSEY 1201 Pennsylvania Avenue, N.W. SHAW, PITTMAN, POTTS &

Washington, D.C. 20044 TROWBRIDGE (202) 626-6600 2300 N Street, N.W.

Washington, D.C. 20037 Counsel for The Cleveland (202) 663-8000 Electric Illuminating Company and The Toledo Edison Company Counsel for Ohio Edison Company Dated: June 29, 1992

) t e l ;i l'

) UNITED STATES OF AMEAICA J >w l-NUCLEAR REGULATORY CCHAISSION

'92 JJ: 29 P5 01 BEFORE THE ATCMIC SAFETY AND LICENSING BOARD i ,,

)

In the Matter of )

)

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 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. NTl-58) )

(Davis-Besse Nuclear Power Station, )

Unit 1, Facility Operating License )

No. NPF-3) )

)

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29th day of June, 1992, a copy of the foregoitig Applicants' Request that the Licensing Board Dis- "

regard Factual Issues Discussed During tua Oral Argument was B

served by hsnd delivery to those pa:'..es indicated by asterisk

(*) below and by Federal Etctess to all other parties:

Samuel J. Chilk g Secretary of the Cot.aission U.S. Nuclear Regulatorv Co nnission

'1555 Rockville Pike

.kville, Maryland 20852

• t' 3rles Bechhcafer Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Coraission 4350 Tss: West Highway, 4th Floor Bethesca, Maryland 20814

i G. Paul Bollverk, 111 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th Floor Bethesda, Maryland 20814 Marshall E. Miller, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 1920 South Creek Boulevard Spruce Creek Fly-In Daytona Beach, Florida 32124

• Joseph Rutberg, Esq.

Sherwin E. Turk, Esq.

Steven R. Hom, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852 office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, Maryland 20852

• Mark C. Schechter, Esq.,

Janet Urban, Esq.

Transportation, Energy and Agriculture Section Antitrust Division Department of Justice Judictary Center Building 555 Fourth Street, N.W.

Washington, D.C. 20001

6 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 Lav City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44114

• Reuben Goldberg, Tsq.

Channing D. S t ro . .te r , J r . , Esq .

Goldberg, Fieldman & Letham, P.C.

1100 Fifteenth Street, N.W.

Washington, D.C. 20005

• D. Biard MacGuineas, Esq.

Volpe, Boskey and Lyons 918 Sixteenth Street, N.W.

Washington, D.C.

20006 Philip N. Overholt Office of Nuclear Plant Performance Office of Nuclear Energy U.S. Department of E'ergy, NE-4.

19901 Germantown Road, Room E-478 Germantown, Maryland 20585 Kenneth L. Hegemann, P.E.

President American Municipal Pover-Ohio, :nc.

601 Dempsey Road P.O. Box 539 Westerville, Ohio 43081

• David R. Straus,-Esq.

Spiegel & McDiarmid 1350 New York Avenue, N.W.

Suite 1100 Washington. D.C, 20005-4798 Anthony J. Alexander, Esq.

Vice President and General Counsel Ohio Edison Company 75 South Main Street 19th Floor Akron,LOhio 44308 l

l l

l

i Gregg D. Ottinger, Esq.

John P. Coyle, Esq. -

Duncan & Allen Suite 300 1575 Eye Street, N.W.

Washington, D.C. 20005-1173 David A. Lambros, Esq.

Lav Director City of Brook Park '

6161 Engic Road Brook Park, Ohio 44142

[M '

SHAW, PITTMAN, POTTS & TROWBRIDGE

/ (/

2300 N Street, N.W.

Washington, D.C. 20037 (202) 663-8000

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