ML20116K478

Requests That NRC Rule Expeditiously That Refusal to Provide Wheeling Svc at Issue in Count 1 Is Violation of Antitrust License Condition 3 & to Impose Appropriate Sanctions,In Light of FERC Decision

ML20116K478
Person / Time
Site:	Davis Besse, Perry
Issue date:	08/13/1996
From:	Strauss S SPIEGEL & MCDIARMID
To:	NRC OFFICE OF INFORMATION RESOURCES MANAGEMENT (IRM)
References
A, NUDOCS 9608150090
Download: ML20116K478 (3)

Text

.

i SPIEGEL & McDI ARMID EEORGE SPIEGEL, PC

, PETER J. HOPKIN5

{0,8,',RT C. ,M,aoi n ,gARMio 1860 NEW YORK AVENUE. NW P D A,V,1,0 l3,0,M , P E R,

' ROBERT A. JABLON WASHINGTON. DC 20306 4798 CAROLYN P. CARMooy JAMES N. woRWooo' WENov s. LAoER kANCES E MANCl3 TELEPHONE (202) 879 4000 j g,T T HE W DANIEL 4. DAVIDSON FAC81 MILE (202) 393 2866 *."yLE K

CH ADWiC ppgY A H RZ K

P,E T E R Kl ,M A,T T EMAIL SPIEGELOSPIEGEL.BECLTD.COM SONNIE 4. BLAIR THOMAS C. TRADOER LEE C. WHITE JOHN J. CORSETT P. DANIEL DRUNER i CYNTHIA S. 30 GOR AD MARGARET A. McGOLDRICK GARY J. NEWELL

, SCOTT H. STRAUSS PusL86 Ar, Alas Diescion l "l,,'""."",,,,,

,, August 13,1996 ".'"."!.'.': ^ .?f.5, j

! L'1% Mf,*a'."

."'.E 3"'R

.C, )

4 .

F .:::::::::::::::::: l ii U.S. Nuclear Regulatory Commission  !

Attn.

Document Control Desk j i

One White Flint North 11555 Rockville Pike 1

Rockville, MD 20852-2738 Re: . In the Matter ofCleveland Electric illuminating Company, j Docket Nos. 50-440 and 50-346 i 1

s

Dear Sir or Madam:

On July 31,1996, the Federal Energy Regulatory Commission ("FERC") issued )

an order directing Cleveland Electric Illuminating Company ("CEI") to provide the {

wheeling service at issue in Count 1 of the City of Cleveland, Ohio's January 23,1996,  !

Section 2.206 Petition in the above-referenced proceeding. Draft and final copies of the l FERC's order were furnished to the NRC by CEI by letters dated August 2 and 8,1996, l respectively. (The FERC ruling can also be found at 76 FERC 161,115.)

Consistent with Cleveland's position in Count 1, the FERC ruled summarily that CEI's refusal to wheel Cleveland's proposed 40 MW purchase from Ohio Power Company was in violation of the Company's obligations under its Transmission Tariff No.1 (Slip op. at 5-7), a tariff filed to comply with an NRC license condition. CEI ignores this holding in its August 2 letter, stating only that the FERC found that the transaction at issue in Count I was "not prohibited" under Federal Power Act Section 212(h). In fact, FERC's ruling with respect to the statute (Id. at 8) followed its finding that CEI "is obligated to provide the requested transmission service under [its]

currently effective transmission service agreement." Id. at 5.

The FERC did not reach the issue of whether CEl's failure to wheel was also in violation of NRC Antitrust License Condition No. 3, stating that " Cleveland Electric's . 'l transmission service agreement [ Tariff No.1] provides a sufficient basis to decide this dispute." Id. at 12-13, g

9608150090 960813 *

(

PDR ADOCK 05000346 H PDR

I

\

. l August 13,1996 Page 2 In light of the FERC decision, Cleveland renews its request that the NRC rule expeditiously that CEI's refusal to provide the wheeling service at issue in Count 1 is a violation of Antitrust License Condition No. 3, and to impose appropriate sanctions. As CEI itself stated in its May 10 " Response" to the Cleveland Petition, the "NRC's responsibility is to take enforcement action if and when it is determined that CEI is refusing to wheel power in a manner consistent with the FPA and FERC rulings." CEI Response at 10 n.4. Assuming arguendo that CEl's statement is accurate, the Company cannot plausibly deny that FERC has now " determined" that CEI has refused to wheel power as required by its FERC tariff and the Federal Power Act. The NRC should now exercise its enforcement " responsibility."

Finally, CEl's expressed willingness (August 8 letter) to comply now with its wheeling obligations does not excuse the Company's unwarranted refusal to wheel absent a directive from a federal agency, and should not preclude the imposition of severe l sanctions. As pointed out by Cleveland in its Petition (at 25), CEI is a "' repeat offender'"

with respect to violations ofits license conditions, and as such the Company "needs and should receive another effective and enforceable reminder that the Company must comply i with its license condition obligations."

l Sincerely, I h& N htse ~

David R. Straus Scott H. Strauss Attomeys for THE CITY OF CLEVELAND, OHIO cc: Service List l

. .~. wa,

~ma.~,- e .. ~ . . - . .~ - , _ , . . ~. ao. w .._: a. .aw., .- ~.n _ . . a ~ _ ., ,_ w w _ . _ ..

it

. 1 i '

! S I'I E G E L & Mc D I A lt M I D I

- ;l oso NEW YORK AVLNUE, N W WASHINGTON. D C- 20005-4798 J

0 '

g cN> p i

F U.S. NUCLEAR REGULATORY COMMISSION s

ATTN: DOCUMENT CONTROL DESK

~

f' ONE WHITE FLINT NORTH 11555 ROCKVILLE PIKE ROCKVILLE, MD 20852-2738 i

N

• Wed %CG% C ED - I HAND DELIVERY '

atao sp. NW &h4'L46  :

kt -

c,34 -3al3 T.6o B '^ '

l

+

A b f; A .

i ew. .

--mm- : ,

- -m&

___-._____m- ____.__._mmm__ _ . - _ _ . _ _ - - _ . . -____._m.- _ _m--_.-._w___.a____.___ ___m__m______m_ .___.___1.,_._oa - m ,.ie_ , -w. wey-- ,% , . - - . . + -ze e ,-w-.- ne-n--.=e-- .g ai~.mo-e. -_