ML20101N640

Reply by American Municipal Power-Ohio,Inc to Applicant Request That Board Disregard Factual Issues.* Applicant Requests Board Disregard Irrelevant Assertions by All Parties.W/Certificate of Svc

ML20101N640
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/07/1992
From:	Straus D AMERICAN MUNICIPAL POWER-OHIO, INC., SPIEGEL & MCDIARMID
To:	Atomic Safety and Licensing Board Panel
References
CON-#392-13080 91-644-01-A, 91-644-1-A, A, NUDOCS 9207100084
Download: ML20101N640 (6)

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In the Matter of )

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OHIO EDISON COMPANY ) Docket ilo. 50-440-A

) Docket No. 50-346-A (Pern Nuclear Power Plant Unit 1 )

Facility Operating License, )

No. NPF-58) ) (Suspension of THE CLEVELAND ELECTRIC ILLUMINATING

) Antitrust Conditions)

)

COMPANY ) ASLBP No. 91-644-01-A THE TOLEDO EDISON COMPANY )

)

(Pern Nuclear Power Plant, Unit 1, )

Facility Operating License )

No. NPF-58) )

(Davis-Besse Nuclear Power Station, )

Unit 1, Facility Operating License )

No. NPF-3) )

)

REPLY BY AMERICAN MUNICIPAL POWER-OHIO, INC.

TO APPLICANT'S REQUEST THAT THE BOARD DISREGARD FACTUAL ISSUES Pursuant to the Order issued July 1, 1992, American Municipal Power-Ohio, Inc. (" AMP-Ohio") hereby responds to the

" Applicants' Request That The Licensing Board Disregard Factual Issues Discussed During the Oral Argument," filed June 29, 1992.

AMP-Ohio, like all of the other parties, discussed

" facts" as part of its written pleadings and oral argument, largely to provide an appropriate factual framework for the legal issue presented for decision at this stage. In the firm and continuing belief that the members of the Board are fully capable of distinguishing between irrelevant factual issues and relevant 9207100084 920707 PDR M

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s legal ones, and in the further belief that a factual backdrop helps those deciding legal issues, AMP-Ohio did not avail itself of its opportunity to ask the Board to disregard any of the factual assertions made and relied upon by the Applicants.

However, never foregoing an opportunity either to make a lengthy filing or to take a pot-shot at AMP-Ohio (see e.c., footnote 2 at page 3), Ohio Edison (along with the other applicants) has proposed a lengthy although incomplete list of " factual issues" it believes the Board should disregard.

Again, AMP-Ohio believes that, as a general matter, it is probably unnecessary to debate in detail the merits of Ohio Edison's list and its omissions. However, in several instances, the Applicants have identified as inappropriate AMP-Ohio responses to factual assertions made by the Applicants themselves without identifying those assertions, giving the impression that AMP-Ohio, to use the Applicant's words (at footnote 2, page 3),

was attempting to inject " extraneous issues of fact" into this case and that the Applicants would never have stooped to such a tactic.

Among the " factual issues" Ohio Edison seeks to have disregarded is AMP-Ohio's " extended commentary" presenting the Applicants' own statements concerning the relative costs of '

nuclear power and its alternatives (Request at 4). However, as stated by counsel for AMP-Ohio on the record (Tr. 387), he was offering the Applicants' statements concerning relative power costs specifically in reaction to assertions made by Applicants in the reply brief (at 77-78) that there is no reasonable risk

that their nuclear facilities will ever be lower in cost than alternatives and in response to the statement at oral argument by counsel for Ohio Edison (at Tr. 280-81) that there was no real possibility of what she called the "yo-yo effect."

Those statements by the Applicants had been offered as a factual rebuttal to AMP-Ohio's appropriate and relevant argument that interpretation of the Atomic Energy Act encompasses a rationality test and that it cannot reasonably be concluded that Congress intended license conditions to come and go as costs changed over time. Surely, if AMP-Ohio's admittedly factual demonstration concerning the Applicants statements of the declining and even disappearing gap between the costs of nuclear energy and its alternatives is irre19vant and should be disregarded, so too chould the Applicants' factual (and questionable) claims that the price differentitJ is so wide that the "yo-yo effect" should be of no concern. 1/

A second example of the Applicants' selective inclusion of factual assertions that should be disregarded is their identification of AMP-Ohio's statements concerning efforts to amend the Ohio constitution to permit joint ownership of the subject nuclear power plants, which appear at Tr. 392-93 and are identified at page 5 of the Applicants' request. Once again, as 1/ Similarly, counsel for Centerior's statement (at Tr. 305) that "there are indeed alternatives available to our competitors at considerably lower costs than the costs of nuclear plants that we have in operation" and his further statement that his clients' concern is " based on the current cost and operating situation out in northern and central Ohio" (Tr. 310) could have been, but were not, identified by the Applicants as those which should be disregarded.

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shown on the transcript (Tr. 392), those remarks were made specifically in response to a statement by counsel for centerior (at Tr. 312) that "nobody e)se wants a piece" of its nuclear power plants. This factual assertion was made by Applicants in support of their factual assertion that nuclear plants do not now give them a competition advantage. Once again, AMP-Ohio's remarxs are no less relevant than those to which they responded, and while we have no problem with the Board " disregarding" botr.

sets of comments, we do have a problem with the Applicants' assertion that AMP-Ohio's remarks were intended to be diversionary rather than helpful.

For the foregoing reasons, AMP-Ohio respectfully suggests that, without the " help" of the Applicants or the other parties, the Board should base its determination of the legal question before it on relevant legal issues and should disregard the irrelevant factual assertions by all parties.

Respectfully submitted,

' OAA)

Dav R. Straus" -

Of Counsel: SPIEGEL & McDIARMID John Bentine, Esq. 1350 New York Avenue N.W.

Chester, Hoffman, Willcox Suite 1100

& Saxbe Washington, D.C. 20005-4798 17 S. High Street (202) 879-4000 Columbus, Ohio 43215 (614) 221-4000 Attorney for American Municipal Power-Ohio, Inc.

Dated: July 7, 1992

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD. ,

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In the Matter of ) *

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ORIO EDISON COMPANY ) Docket No. 50-440-A ,

) Docket No. 50-346-A r (Pern Nuclear Power Plant, Unit 1 )

Facility Operating License )

No. NPF-58)- ) (Suspension of THE CLEVELAND ELECTRIC ILLUMINATING

) Antitrust Conditions) -

)

COMPANY ) ASLBP No. 91-644-01-A THE TOLEDO EDISON COMPANY )

)  ;

(Perg Nuclear Power Plant, Unit 1, )

Facility Operating License )

No. NPF-58) )

(Davis-Besse Nuclear Power Station, )

Unit 1, Facility Operating License )

Mo. NPF-3) )

)

l CERTIFICATE OF SERVICE I hereby certify that on this 7th day of July, 1992, a copy of the foregoing Reply By American Municipal Power-Ohio, i

i Inc. to Applicant's Request That The Board Disregard Factual Issues were served upon each of the following by hand or by Federal Express:

Marshall E. Miller, Esq. Charles Bechhoefer, Esq.

Chairman Administrative Judge l 1920 South Creek Boulevard Atomic Safety and Licensing Spruce Creek Fly-In- Board Daytona Beach,'FL 32124 U.S. Nuclear Regulatory Comm.

4350 East West Highway, 4th F1 Washington, D.C. 20555 I

. , - - . _ . - - - - - - - . - . - . _ _ , . . . . . . _ _ -_ -_ a -- -.

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G. Paul Bollwerk, III Craig S. Miller Administrative Judge June W. Weiner Atomic Safety and Licensing William M. Ondrey Gruber Board City Hall, Room 106 U.S. Nuclear Regulatory Comm. 601 Lakeside Avenue 4350 East West Highway, 4th Fl. Cleveland, Ohio 44115 Washington, D.C. 20555 Reuben Goldberg, Esq.

Joseph Rutberg, Esq. Channing D. Strother, Jr., Esq Sherwin E. Turk, Esq. Goldberg, Fieldman & Letham Office of the General Counsel 1100 Fifteenth Street, N.W.

U.S. Nuclear Regulatory Comm. Washington, D.C. 20005 11555 Rockville Pike Rockville, Maryland 20852 Gerald Charnoff, Esq.

Shaw, Pittman, Potts &

Mark C. Schechter, Esq. Trowbridge Janet Urban, Esq. 2300 N Street, N.W.

Antitrust Division Washington, D.C. 20037 Department of Justice Judiciary Center Building Philip N. Overholt 555 Fourth Street, N.W. U.S. Department of Energy, NE-Washington, D.C. 20001 19901 Germantown Rd., Room E-4 Germantown, Maryland 20585 James ?. Murphy, Esq.

Squla., Sanders & Dempsey Gregg D. Ottinger, Esq.

1201 Pennsylvania Avenue, N.W. Duncan & Allen P.O. Box 407 1575 Eye Street, N.W.

Washington, D.C. 20044 Suite 300 Washington, D.C. 20005 D. Biard MacGuineas, Esq.

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

Washington, D.C. 20006 Dav' .

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

Suite 1100 Washington, D.C. 20005-4798

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