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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20212J1581999-09-30030 September 1999 Order Approving Transfer of License & Conforming Agreement. Orders That License Transfer Approved,Subj to Listed Conditions ML20205D4901999-02-22022 February 1999 Transcript of 990222 Informal Public Hearing on 10CFR2.206 Petition in Rockville,Md.Pp 1-105.Supporting Documentation Encl ML20198L1911998-12-21021 December 1998 Submits Comments Re Proposed Rule to Revise 10CFR50.59, Changes,Tests & Experiments ML20198L1361998-12-15015 December 1998 Comment Opposing Proposed Rule 10CFR50.65 Re Requirements for Monitoring Effectiveness of Maint of NPP ML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20155F4561998-08-26026 August 1998 Demand for Info Re False Info Allegedly Provided by Wh Clark to Two NRC Licensees.Nrc Considering Whether Individual Should Be Prohibited from Working in NRC-licensed Activities for Period of 5 Yrs ML20236V5261998-07-20020 July 1998 Computer Access & Operating Agreement Between Cleveland Electric Illuminating Co & NRC PY-CEI-NRR-2284, Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal1998-05-21021 May 1998 Comment Opposing Proposed Generic Communication, Lab Testing of Nuclear-Grade Activated Charcoal ML20216B5111998-04-0909 April 1998 Order Imposing Civil Monetary Penalty.Denies Request for Remission of Violation C,Ea 97-430 & Orders Licensee to Pay Civil Penalty in Amount of $50,000 within Next 30 Days PY-CEI-NRR-2269, Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective1998-04-0303 April 1998 Comment on Proposed Rule 10CFR50.NRC Should Demonstrate That Not Only Is Code Process Flawed,But That Proposed Change Justified from Cost Versus Safety Protective ML20217J2161998-03-27027 March 1998 Comment on Proposed Generic Communication Re Lab Testing of nuclear-grade Activated Charcoal ML20217F5361998-03-25025 March 1998 Comment Opposing Draft Regulatory Guide DG-1071, Std Format & Content for Post-Shutdown Decommissioning Activities Rept ML20217J0661998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Dqe, Inc & Allegheny Power System,Inc ML20216G3821998-03-11011 March 1998 Order Approving Application Re Merger Agreement Between Duquesne Light Co & Allegheny Power Systems,Inc ML20199J4651998-01-22022 January 1998 Comment Opposing Draft RG-1070, Sampling Plans Used for Dedicating Simple Metallic Commercial Grade Items for Use in Npps. RG Unnecessary Based on Use of EPRI Guideline & Excellent Past History of Commercial Grade Items at DBNPS ML20198P9311997-11-0707 November 1997 Comments of American Municipal Power-Ohio,Inc.NRC Should Require Allegheny Power Sys,Inc to Affirm That Capco Antitrust License Conditions Will Be Followed ML20148M6421997-06-17017 June 1997 Comment on Proposed NRC Bulletin 96-001,suppl 1 Re Control Rod Insertion Problems.Nrc Should Review Info Provided in Licensee 970130 Submittal & Remove Statements of Applicability to B&W Reactors from Suppl Before Final Form ML20134L3401997-01-22022 January 1997 Resolution 96-R-85, Resolution Supporting Merger of Centerior Energy Corp & Ohio Edison Under New Holding Co Called Firstenergy ML20133B6941996-12-18018 December 1996 Submits Ordinance 850-96 Re Approval of Merger of Centerior & Oh Edison Into Firstenergy ML20135F4731996-12-0606 December 1996 Memorandum & Order CLI-96-13.* Commission Reverses & Vacates ASLB LBP-95-17 Which Granted Motion for Summary Disposition Submitted by Ocre & Hiatt.W/Certificate of Svc.Served on 961206 ML20132A8461996-12-0202 December 1996 Resolution 20-1996 Supporting Merger of Ohio Edison & Centerior Corp Under New Holding Company Called Firstenergy ML20134M6191996-10-28028 October 1996 Proclamation of Support by City of Sandusky,Oh Re Merger of Ohio Edison and Centerior Energy Corp ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20108B7571996-04-26026 April 1996 Licensee Brief on Review of Licensing Board Decision LBP-95-17.* Recommends That Commission Reverse Board Memorandum & Order Issued 951004.W/Certificate of Svc & Svc List PY-CEI-NRR-2034, Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl1996-03-11011 March 1996 Comment Opposing Proposed Rule 10CFR20 Re Reporting Requirements for Unauthorized Use of Licensed Radioactive Matl ML20097G5731996-02-13013 February 1996 Comment Supporting Petition for Rulemaking PRM-50-63 Re Use of Potassium Iodide ML20097B8911996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement or in Alternative,For Severance of Issue & Expedited Hearing Procedures ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20096E9781996-01-0808 January 1996 Comment on Proposed Suppl to GL 83-11, Licensee Qualification for Performing Safety Analyses in Support of Licensing Actions ML20096E2471996-01-0303 January 1996 Comment on PRM 50-64 Re Stockpiling Ki for Use as Thyroid Protectant in Event of Nuclear Accident.Supports Distribution of Ki to Public ML20094N1951995-11-17017 November 1995 Oh Edison Application for License Transfer in Connection W/ Sale & Related Transactions ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20087J3611995-08-14014 August 1995 Comment Opposing Proposed Rule 10CFR2 Re Rev of NRC Enforcement Policy ML20086M8241995-06-29029 June 1995 Comment on Proposed Review of NRC Insp Rept Content,Format & Style ML20083M8701995-05-10010 May 1995 Comment on Proposed Rule 10CFR50 Re Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactor ML20081C8841995-03-0303 March 1995 Comment Re NRC Proposed Generic Communication Suppl 5 to GL 88-20, IPEEE for Severe Accident Vulnerabilities. Util Ack NRC Efforts to Reduce Scope of GL 88-20,but Believes That Proposed Changes Still Overly Restrictive ML20077M5831995-01-0404 January 1995 Comment Opposing Proposed Rule 10CFR50 Re Shutdown & low-power Operations for Nuclear Power Reactors ML20072K3611994-08-16016 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Plans for Storage of Sf at Davis Besse NPP ML20072K4411994-08-14014 August 1994 Comment Opposing Proposed Rule 10CFR72 Re Dry Storage of Nuclear Waste at Facility in Toledo,Oh ML20072K5261994-08-12012 August 1994 Comment Supporting Proposed Rule 10CFR72 Re Addition of Standardized NUHOMS Horizontal Modular Storage Sys to List of Approved Sf Storage Casks ML20072B1581994-08-0909 August 1994 Comment Opposing Proposed Rule 10CFR72 on List of Approved Spent Fuel Storage Casks:Addition ML20029D8221994-04-19019 April 1994 Comments on Proposed Rule 10CFR50 Re Codes & Stds for Nuclear Power Plants;Subsection IWE & Subsection Iwl ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20064N6341994-03-21021 March 1994 Affidavit of RW Schrauder in Support of Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.W/Certificate of Svc 1999-09-30
[Table view] Category:PLEADINGS
MONTHYEARML20198D9711998-11-0909 November 1998 Petition Per 10CFR2.206 Requesting That Facility Be Immediately Shut Down & OL Be Suspended or Modified Until Such Time That Facility Design & Licensing Bases Properly Updated to Permit Operation with Failed Fuel Assemblies ML20112J8281996-06-18018 June 1996 Licensee Reply Brief on Review of Licensing Board Decision LBP-95-17.* W/Certificate of Svc ML20112D8721996-05-29029 May 1996 Intervenor Brief in Support of Commission Affirmation of LBP-95-17.* Commission Should Affirm Licensing Board Decision.W/Certificate of Svc ML20097B8721996-01-23023 January 1996 Petition of City of Cleveland,Oh for Expedited Issuance of Nov,Enforcement of License Conditions & Imposition of Appropriate Fines,Per 10CFR2.201,2.202,2.205 & 2.206 ML20101B5841996-01-23023 January 1996 Motion of City of Cleveland,Oh for Partial Summary Judgement Or,In Alternative,For Severance of Issue & Expedited Hearing Procedures.W/Certificate of Svc ML20094M5941995-11-15015 November 1995 Intervenors Answer to Licensees Petition for Review.* Intervenor Conclude That Commission Should Not Review Board Decision.W/Certificate of Svc ML20094J9141995-11-0707 November 1995 Petition for Review.* Submits That Commission Review of Board Decision Appropriate Under 10CFR2.786. W/Certificate of Svc & Svc List ML20093N9491995-10-23023 October 1995 Licensee Request for Extension of Time to File Petition for Review.* Requests That Commission Grant Extension Until 951107 of Deadline for Filing Petition for Review. W/Certificate of Svc ML20065L3571994-04-0505 April 1994 Intervenors Answer to NRC Staff Response to Intervenors Motion for Summary Disposition & Licensees Cross Motion for Summary Disposition.* Urges Board to Deny Licensee Cross Motion.W/Certificate of Svc ML20064N6081994-03-21021 March 1994 Licensee Cross Motion for Summary Disposition & Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Motion for Summary Disposition.* Moves for Decision in Licensee Favor on Ocre Contention ML20063L4621994-02-0707 February 1994 Motion for Summary Disposition.* Intervenors Request That Board Grant Summary Disposition Favorably & Issue Declaratory Relief by Finding Challenged Portion of Amend 45 to Be in Violation of Aea.W/Certificate of Svc ML20058P4451993-12-13013 December 1993 Licensee Answer to Ohio Citizens for Responsible Energy,Inc & SL Hiatt Supplemental Petition for Leave to Intervene.* W/Certificate of Svc ML20059B0701993-10-12012 October 1993 Motion to Defer Consideration of Remanded Issue.* Requests That Licensing Board Defer Consideration of Remanded Issue Pending Outcome of Commission Review of 2.206 Process.W/ Certificate of Svc ML20126D5171992-12-23023 December 1992 City of Brook Park Answer to Petitions for Review.* Opposes Applicants 921208 Petitions for Review Based on Fact That ASLB Decision in proceeding,LBP-92-32,adequately Addressed Issues Raised in Petitions.W/Certificate of Svc ML20126D5461992-12-23023 December 1992 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* Commission Should Deny City of Cleveland Petition.W/Certificate of Svc ML20126D5781992-12-23023 December 1992 Answer of American Municipal Power-OH,Inc in Opposition to Petitions for Review of Oh Edison Co & Cleveland Electric Illuminating Co/Toledo Edison Co.* W/Certificate of Svc ML20126D5801992-12-23023 December 1992 NRC Staff Answer in Response to Petitions for Review Filed by Oh Edison Co,Cleveland Electric Illuminating Co,Toledo Edison Co & City of Cleveland.* W/Certificate of Svc ML20126F6501992-12-23023 December 1992 Answer of City of Cleveland,Oh,Intervenor,In Opposition to Petitions for Review of 921118 Decision of Aslb.* Petitioners Petitions for Review Should Be Denied. Certificate of Svc Encl ML20126D4761992-12-22022 December 1992 Alabama Electric Cooperative Answer to Applicants Petitions for Review.* Applicants 921208 Petitions for Review Should Be Denied.W/Certificate of Svc ML20126A5751992-12-0808 December 1992 Petition for Review.* Requests That NRC Review LBP-92-32, 921118 Board Decision in Proceeding.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underpinning of Statute.W/Certificate of Svc ML20126A5871992-12-0808 December 1992 Petition for Review.* Requests That NRC Review ASLB 921118 decision,LBP-92-32.Board Erroneously Interpreted Section 105(c) of AEA by Ignoring Fundamental Underplanning of Statute.Certificate of Svc Encl ML20126A7651992-11-18018 November 1992 Limited Petition for Review of City of Cleveland,Oh of 921118 Decision of Aslb.* City of Cleveland Petition for Review Should Be Granted.W/Certificate of Svc ML20116M4671992-11-16016 November 1992 Licensee Response to Lake County Commissioners 10CFR2.206 Petition.* Petition Should Be Denied.Certificate of Svc Encl ML20116E7941992-09-29029 September 1992 Petition for Action to Relieve Undue Risk Posed by Const of Low Level Radwaste at Perry Plant.* Requests Public Hearing Be Held Prior to Const of Storage Site & Const Should Be Suspended Until NRC or Util Produces EIS on Risks ML20101N5131992-07-0808 July 1992 City of Cleveland Opposition to Applicant Request That Licensing Board Disregard Certain Arguments of City of Cleveland Counsel in Oral Argument.Certificate of Svc & Svc List Encl ML20101N6401992-07-0707 July 1992 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 ML20101K2101992-06-29029 June 1992 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 ML20098D5181992-05-26026 May 1992 Reply of City of Cleveland,Oh to Arguments of Applicants & NRC Staff W/Respect to Issues of Law of Case,Res Judicata, Collateral Estoppel & Laches.* W/Certificate of Svc & Svc List ML20096A6281992-05-0707 May 1992 Applicants Reply to Opposition cross-motions for Summary Disposition & Responses to Applicants Motion for Summary Disposition.* Applicants Conclude NRC Has No Authority to Retain Antitrust Licensing Conditions.W/Certificate of Svc ML20090F4261992-03-31031 March 1992 Motion for Summary Disposition of Intervenor,City of Cleveland,Oh & Answer in Opposition to Applicant Motion for Summary Disposition.* City of Cleveland,Oh & Applicant Motions Should Be Denied.W/Certificate of Svc ML20094K3791992-03-18018 March 1992 Applicants Motion to Amend Summary Disposition Schedule.* Applicants Request That Motion to Amend Summary Disposition Schedule Be Granted.W/Certificate of Svc ML20094J2891992-03-0909 March 1992 Response of DOJ to Applicant Motion for Summary Disposition.* Urges ASLB to Resolve Bedrock Legal Issue in Negative & Concludes That Commission Possess Legal Authority to Retain License Conditions.W/Certificate of Svc ML20091N1241992-01-24024 January 1992 Applicants Answer to Cleveland Motion to Amend Schedule for Summary Disposition Motions.* Applicants Have No Objection to Request for Opportunity to Submit Reply.W/Certificate of Svc ML20087E7821992-01-16016 January 1992 Motion to Amend Schedule for Summary Disposition Motions.* Cleveland Requests That Motion Be Granted & 911114 Order Establishing Schedule for Motions for Summary Disposition Be Amended.W/Certificate of Svc & Svc List ML20086U5371992-01-0606 January 1992 Applicants Motion for Summary Disposition.* Requests That Board Grant Applicants Motion for Summary Disposition Due to Lack of NRC Authority to Retain Antitrust License Conditions.W/Certificate of Svc ML20086J4821991-12-31031 December 1991 Reply Brief of City of Cleveland,Oh in Support of Notice of Appeal of Prehearing Conference Order Granting Request for Hearing.* Appeal Should Be Granted,Ref to Board Revoked & Applications Dismissed.W/Certificate of Svc ML20086Q9231991-12-27027 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply & Reply to Applicants Answer to City Motion for Commission Revocation of Referral to ASLB & for Adoption of 910424 Decision as Commission Decision.W/Certificate of Svc ML20086Q3001991-12-24024 December 1991 Applicant Answer to 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 ML20091H7161991-12-19019 December 1991 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 ML20086N4601991-12-17017 December 1991 Licensees Response to Ohio Citizens for Responsible Energy, Inc & SL Hiatt Amended Petition for Leave to Intervene.* Determines That Intervenor Failed to Demonstrate Interest in Proceeding.W/Certificate of Svc & Svc List ML20086J4741991-12-0909 December 1991 Motion of City of Cleveland,Oh for Leave to File Reply Brief.* Motion to File Reply Should Be Granted for Listed Reasons ML20086G4001991-11-26026 November 1991 Ohio Edison Co Motion for Reconsideration.* Util Respectfully Requests That NRC Vacate CLI-91-15 & Direct Forthwith Answer to Licensee Motion to Compel.W/Certificate of Svc ML20079Q0301991-11-0606 November 1991 Oec Motion to Compel NRC Staff to Respond to Interrogatories.* Util Moves Board to Compel NRC to Respond Completely,Explicitly & Properly to Licensee Interrogatories.W/Certificate of Svc ML20083B5841991-09-0606 September 1991 Licensee Answer to Oh Citizens for Responsible Energy,Inc & SL Hiatt Petition for Leave to Intervene & Request for Hearing.* Ocre Has Shown No Interest in Proceeding.W/Notice of Appearance,Certificate of Svc & Svc List ML20076D0481991-07-18018 July 1991 Answer of Cleveland Electric & Toledo Edison to Petition of American Municipal Power-Ohio for Leave to Intervene.* Utils Believe That 910703 Petition Should Be Granted.W/Certificate of Svc ML20076D1611991-07-18018 July 1991 Answer of Ohio Edison Co to Petition of American Municipal Power-Ohio,Inc (AMP-Ohio) for Leave to Intervene.* Util Does Not Object to Admission of AMP-Ohio as Intervenor on Basis of Status as Beneficiary.W/Certificate of Svc ML20081K8961991-06-20020 June 1991 Alabama Electric Cooperative Reply to Oppositions Filed to Petition to Intervene.* Informs of Util Intention to Assure Vindication of Proper Legal Principle.W/Certificate of Svc ML20079D2211991-06-17017 June 1991 Answer of Ohio Edison Co to Opposition of City of Cleveland, Oh to Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene in Event Hearing Requested & Granted.W/Certificate of Svc ML20079D2391991-06-17017 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Opposition of City of Cleveland,Ohio,To Hearing W/Respect to Denial of Applications to Suspend Antitrust License Conditions & Petition to Intervene.* ML20079D2151991-06-14014 June 1991 Answer of Ohio Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* Alabama Electric Cooperative,Inc Petition for Leave to Interveve Should Be Denied.W/Certificate of Svc 1998-11-09
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v i
, /SW rotkr.iro U%C UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'92 D01 -8 P 2 :22 BEFORE THE NUCLEAR REGULATORY COMMISSION
)
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, )
Fac.411ty Operating License )
No. NPF-58) )
(Davis-Besse Nuclear Power Station, )
Unit 1, Facility Operating License )
No. NPF-3) )
)
PETITION FOR REVIEW Pursuant to 10 CFR S 2.786, Ohio Edison Company ("OE")
respectfully requests that the Nuclear Regulatory Commission
(" Commission" or "NRC") review LBP-92-32, the decision of the Atomic Safety and Licensing Board in the above-captioned matter that was issued on November 18, 1992. In granting summary dispo-sition in favor of the NRC Staff and intervenors and against OE and the other applicants, The Cleveland Electric Illuminating Company ("CEI") and The Toledo Edison Company ("TECo"), the Licensing Board erroneously determined that, as a matter of law, the Commission retains authority under Section 105(c) of the Atomic Energy Act to impose antitrust license conditions on a 9212210132 921208 PDR ADDCK 05000346-H PDR f v7
i nuclear facility's operating license where the cost of nuclear power is greater than alternative sources, all as appropriately measured and compared. OE submits that this legal determination is incorrect. In addition, the treatment of the so-called agency bias issue by the Commission and by the Licensing Board in LBP-92-32 involves procedural error that prejudiced OE's right to be heard on this issue.
I.
SUMMARY
OF DECISION AND STATEMENT OF ISBUES RAISED OE is a co-owner of the Perry Nuclear Power Plant. In 1987, OE filed a license amendment request with-the NRC Staff.1I That request sought the suspension of the Perry licenso conditions that imposed antitrust restrictions on OE. A parallel request subsequently was filed by CEI and TECo.2/ Three years later,SI 1/ See Application to Amend the Perry Operating License to Sus-pend the Antitrust Conditions Insofar as they Apply to OE (Sept. 18, 1987) ("OE Application").
2/ See Application to Amend the Perry and Davis-Besse Operating Licenses to suspend the Antitrust Conditions (May 2, 1988).
1/ In the interim, relief had been sought by OE in the federal courts on certain issues of agency bias stemming from dia-logue concerning the disposition of the pending application that apparently had taken place between representatives of the NRC and certain senators opposed to OE's application.
See Ohio Edison Company v. Zech, No. 89-1014, slip op. (D.C.
DIr. Apr. 27, 1989).
e !
the NRC Staff denied these requests.1/ A hearing was convened, and summary disposition motions were filed by the parties on the dispositive " bedrock" legal issue that formed the basis for the applicants' license amendment requests.E/ LBP-92-32 resolves that bedrock legal issue.
r OE seeks Commission review of the following question of law erroneously decided by the Licensing Board:
L A/ Letter from T. Murley to M. Lyster, CEI, and D. Shelton, TE (Apr. 23, 1991) (transmitting NRC Staff-Evaluation of Appli-cations for License Amendmentsoto Suspend the Antitrust License Conditions).and Notice of Denial of Applications for Amendments to Facility Operating Licenses and Opportunity for Hearing (Apr. 24, 1991). See also~ Notice:of Denial of Applications for Amendments to Facility-Operating Licenses and Opportunity for Hearing, 56 Fed. Reg. 20,0S7 (May 1, 1991).
5/ The issue-of-law raised in the bedrock legal issue was first raised by OE in the OE Application. After counsel for the various parties agreed on its formulation, the bedrock legal issue was incorporated into the Licensing Board's Prehearing Conference Order. LBP-91-38, 34 NRC 229, 258-59 (1991),
aff'd, CLI-92-11, 36 NRC (August 12, 1992), petition for review filed, No.- 92-1532 (D.C. Cir. Oct. 9, 1992). OE-filed two briefs addressing the bedrock legal issue, Appli-cants' Motion for Summary Disposition (January _6,-1992)
(# Applicants' Motion"); Applicants' Reply to Opposition Cross-Motions for Summary Disposition and Responses to ,
Applicants' Motion for Summary Disposition (May 7, 1992)
(" Applicants' Reply"), and argued the_ bedrock legal. issue
.before the Licensing Board at oral argument. See Transcript of June 10,.1992' Argument before the Licensing Board-("Tr.") 4 at pp. 251-305, 397-437.
, , , . ~ ~ . . . _ __ _ _ - _ . . _ . - , . _ - _
e i
Is the Commission without authority as a mat-ter of-law under Section 105 of the Atomic i Energy Act to retain the antitrust. license conditions contained in an operating license if it finds that the actual cost of electric-ity from the licensed nuclear power plant is higher than the cost of electricity from e alternatives sources, all as appropriately measured and compared?6 /
The Licensing Board answered the issue in the negative, and found that as a-matter of law the Commission has authority under Sec-tion 105(c) to retain antitrust license conditions even if the [
actual cost of electricity from a licensed nuclear power plant is higher than the cost of electricity from alternative sources.1/ ,
OE also seeks review of the Licensing Board's sua sponte decision to dismiss the agency bias issues,8/ which the NRC never .
heard.E/
i 6/ LBP-92-32, slip-op. at 6. See also Tr. at 244 (bedrock "
legal issue read into record).
1/ See LBP-92-32, slip op, at 60-61.
8/ The agency bias issues were raised below by CE and admitted for contention by-the Licensing Board. . See LBP-91-38, 34 l NRC at 255'58. See also-Letter from'G.-CharnoffEto Licens-
! ing Board (July 25, 1991) (containing enclosure setting
( forth congressional interference and staff. bias contentions).
2/ Before the agency bias issues could be heard by the Licens-ing Board, the Commission sua sponte orderedEthat those
~
matters be held'in abeyance. CLI-91-15, 34 NRC at 271. In LBP-92-32, the Licensing Board sua sponte dismissed the agency bias issues. LBP-92-32, slip op, at 68.
l l
__ . . _ . - _ _ . - . . - _ _ _ - _ . , _ _ _ . _ _ _ _ __a_ .
o II. THE LICENSING BOARD'S DECISIONS ARE ERRONEOUS A. The Bedrock Legal Issue The Licensing Board's holding on the bedrock legal issue is erroneous and should be reviewed by the Commission. LDP-92-32 is based on an incorrect interpretation o'f Section 105(c) of the Atomic Energy Act. That statute allows the imposition of anti-trust license conditions only where the activities of the licensed facility would " create cr maintain a situation inconsis-tent with the antitrust laws."1S/ The Licensing Board has ignored the " particularized regime" of antitrust review estab-lished by Section 105(c).
First, the Licensing Board's decision is based on the faulty position that the addition of a high cost facility may be compet-itively advantageous to an operator. Such a facility would increase the cost of the operator's power, necessarily allowing its competitors greater competitive freedom to take advantage of the operator's higher costs to attract new customers.11/
Second, the Licensing Board has ignored the fact that Sec-tion 105(c) is not a grant of plenary authority over antitrust matters.1S! Other agencies, including the Department of Justice lE/ 42 U.S.C. S 2135(c).
11/ See Applicants' Motion at 57-68; Applicants' Reply at 29-39.
11/ See Applicants' Motion at 16-34.
, 1 i
i 1
and FERC, have continuing authority co review the competitive l implications of actions taken by operators of nuclear facilities, j In contrast, the Commission's authority under Section 105(c) is I limited to thi competitive impact of the licensed nuclear facil-ity. Review under Section 105(c) is not the same as a plenary l antitrust review, afd the Licensing Board was mistaken when it invoked a " market power" test rather than the cost-based test ,
applicable to Section 105(c).11/
Several indicia support the position advanced by OE. First, contrary to the " interpretation" of the Licensing Board, a fair and objective review of the legislative history of Section 105(c) discloses that the record is replete with statements by witnesses and legislators addressing the need for the imposition of Section 105(c) antitrust review because of the anticipated low cost of nuclear power.11/ The Licensing Board also ignored the broader context in which the amendment of Section 105(c) took place.1El The Licensing Board's decision is contrary to legal prece-dent. As OE argued before the Licensing Board, a number of com-i mission decisions and Department of Justice advice. letters 12/ See LBP-92-32, slip op, at 39; compare Applicants' Reply at 19-29. 'i id/ See Applicants' Motion at 34-45 (reviewing legislative'his-tory); Applicants' Reply at 40-57 (reviewing legislative history),
lE/ See Applicants' Reply at 57-62 (reviewing " practical value" ,
legislative history).
.i 1.
- , - - . . , -- .. .. . , . . . . ,.m._- ., . . . . . . ~ , . . , - .
b address the critical importance of the anticipated cost advantage i of nuclear power.15/ These cases turn upon the anticipated cost l advantage of nuclear power and the potential for misuse of this cost advantage by a nuclear operator.-
Finally, the Licensing Board's interpretation of the statute ;
violates OE's right to equal protection as guarantead under the Due Process Clause of-the Fifth Amendment. A statute must be 1
rationally related to a legitimate government objective to sat-isfy equal protection requirements.11/ The Licensing Board's interpretation of Section 105(c) violates this requirement. If the cost of nuclear power is not competitively advantageous when compared with other sources of electricity (such as coal and oil), there is no rational basis for continuing to impose restrictive antitrust. license conditions not imposed on identi-cally situated operators of non-nuclear facilities.
B. The Agency Bias Issue OE sought to discover and present the facts concerning the- .
incident (s) of congressional interference and agency bias that 15/ See Applicants' Motion at 45-68-(reviewing NRC cases and DOJ ,
advice letters); Applicants' Reply at 62-70-(reviewing.NRC cases); see also Applicants' Motion at 68-76 -(other factors have no significance under Section 105(c)_-in the absence of a_ low-cost facility).
12/ City of Cleburne-~v. Cleburne Living Ctr., 4 7 3 . U '. S . 432, 440
-(1985). .See Applicants' Motion at 75-85; Applicants' Reply at 81-90.
n - _ _-_. - - _ . . . _ . _ _ . - , _ ~ - . _ _ . . . ..._.._..._..._2..___a._.._.-
occurred in this case.18/ OE not only has been denied that ..
opportunity, but it twice_has-been given-no notice or opportunity to address the fact that these issuesiwould be first tabled 1E/
~
and then dismissed 22/ without having been addressed at all by OE.
These procedural' errors violated OE's due process rights.
III. THE COMMISSION SHOULD EXERCISE ITS POWER TO REVIEW THE y= LICENSING BOARD'S DECISION BECAUSE THE DECISION IS-H t CONTRARY-TO LAW AND. ESTABLISHE
D. PROCEDURE
, AND BECAUSE -
THE BEDROCK LEGAL ISSUE RAISES AN IMPORTANT QUESTION OF LAW AND POLICY LBP-92-32 erroneously interprets Section 105(c) and, accord-ingly, should be reversed by the Commission. It-also contains the procedural error of dismissing OE's agency biac contentions without providing any opportunity to OE to address-either the merits of those issues or the appropriateness of their dismissal.
7 Moreover, the bedrock legal issue raises a substantial ques-
, tion of law and policy. Antitrust matters are.not'the fundamen-tal business of the-NRC. This case raises an important question about the legality,-propriety and, indeed, reasonableness, of
_ continued exercise by the NRC of this peripheral authority when a--
nuclear power plantLis no longer competitively advantageous. As 18/ Letter from G. Charnoff to Licensing Board-_(July 2d, 1991)
(containing enclosure setting forth congressional interfer-ence_and staff bias contentions). See'also LBP-91-38,- NRC.at 255-58 (admitting issues.for contention).
~
12/. CLI-91-15,.34 NRC'at 271.
llE/ LBP-92-32, slip op, at 68.
i 1,
.s i
such, it goes to the very heart of continuing Commission author-ity over licensed nuclear' facilities. The Commission should make a determination on this question. Furthermore, the agency bias issue should be heard on the merits and certainly should not be dismissed without providing OE any opportuni.y to address the procedural merits of such an action. The agency's credibility is at issue here; the issue merits the Commission's attention.
In summary, in LBP-92-32 the Licensing Board has erroneously interpreted Section 105(c) of the Atomic Energy Act by ignoring the fundamental underpinning of the statute - the anticipated -
cost advantage of nuclear power. Without that advantage, OE sub-mits that the 9camission is without authority to continue to impose antitrust license conditions on OE. In addition, LBP-92-32 contains procedural error. Accordingly, Commisaion review of the decision is appropriate.
s ectfully submitted,-
i ,
/ Geral'd Charnoff Charnoff Deborah B.
Mark A. Singley SHAW, PITTMAN, POTTS &
TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037-(202) 663-8000 counsel for Ohio Edison Comp iry Dated: December 8, 1992 4
- ;t ei it D u AikC UNITED STATES OF AMERICA '92 DEC -8 P2
- 22 ;
NUCLEAR REGULATORY COMMISSION
, s sia a Cf 6f BEFORETHENUCLEARREGULATORYCOMMISSIONfj
)
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. NPF-58) )
(Davis-Besse Nuclear Power Station, )
Unit 1,-Facility Operating License )
No. NPF-3) )
)
CERTIFICATE OF BERVICE I HEREBY CERTIFY that on_this 8th day of December, 1992, a copy of the foregoing Petition for Review was served by first class mail postage prepaid (except where otherwise indicated) on each of tne following:
I L Secretary of the Commission l U.S. Nuclear Regulatory Commission L 11555 Rockville Pike Rockville, Maryland 20852 l Attention: Docketing and Service Branch (BY HAND) l
s' 1
4 Charles Bechhoefer Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 4350 East West Highway, 4th Floor Bethesda, Maryland 20814 G. Paul Bollwerk, III 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 : s Joseph Rutberg, Esq.
Sherwin E. Turk, Esq.
Steven R. Hom, Esq.
1 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 i 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 Judiciary Center Building 555 Fourth Street, N.W.
Washington, D.C. 20001 l
4.
4 t
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 Law City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44114 Reuben Goldberg, Esq.
Channing D. Strother, Jr., 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 Energy, NE-44 19901 Germantown Road, Room E-478 Germantown, Maryland 20585 Kenneth L. Hegemann, P.E.
President American Municipal Power-Ohio, Inc.
601 Dempsey Road P.O. Box 549 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, Ohio 44308
4 A
Gregg D. Ottinger, Esq.
John P. Coyle, Esq.
Duncan & Allen Suite 300--
1575 Eye Street, N.W.
Washington, D.C. 20005-1175 David A. Lambros, Esq.
Law Director City of Brook Park 6161 Engle Road Brook Park, Ohio 44142 James P. Murphy, Esq.
Colleen A. Conry, Esq.
Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, N.W.
Washington, D.C. 20044-0407 k n Mark A. Singley/ /
SHAW, PITTMAN, POTTS & TROWBRIDGE 2300 N Street, N.W.
Washington, D.C. 20037 (202) 663-8000 m:0036:151mxa,92