ML19329C476

Responds to Applicants' Interrogatories & Requests for Production of Documents

ML19329C476
Person / Time
Site:	Davis Besse, Perry
Issue date:	09/05/1975
From:	Aluvalasit A, Berger M, Charno S JUSTICE, DEPT. OF
To:	Atomic Safety and Licensing Board Panel
References
NUDOCS 8002140855
Download: ML19329C476 (27)

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

__. BEFORE THE ATOMIC _ SAFETY AND LICENSING BOARD In the Matter of )

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The Toledo Edison Company )

The Cleveland Electric Illuminating ) Docket No. 50-346A Company -

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(Davis-Besse . Nuclear Power S tat ion) )

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The Cleveland Electric Illuminating ) Docket Mos. 50-440A Company, et al. ) and 50-441A (Perry Plant, Units 1 and 2) )

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The Toledo Ed ison Company, et al. ) Docket Nos. 50-500A (Davis-Besse Nuclear Power Station, ) and 50-501A Units 2 and 3) )

RESPONSE CE DEPARTMENT OF JUSTICE TO APPLICANTS '

INTERROGATORIES AND REQUESTS FOR THE PRODUCTICN CF DCCUMENTS THOMAS E. KAUPER Assistant Attorney General Antitrust Division JOSEPH J. SAUNDERS STEVEN M. ChARNO Attorney, Department Of Justice MELVIN G. BERGER ANTHONY G. AIUVALASIT, JR.

Attorneys, Ge;

• men Of Justice i

September 5, 1975

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UNITED STATES OF AMERICA NUICLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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The Toledo Edison Company )

The Cleveland Electric Illuminating ) Docket No. 50-346A Company . )

(Davis-Besse Nuclear Power Station) )

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The Cleveland Electr ic Illuminating ) Docket Nos. 50-440A Company, et al. ) and 50-441A (Perry Plant, Units 1 and 2) )

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The Toledo Edison Company, et al. ) Docket Nos. 50-500A I (, Davis-Besse Nuclear Power Station, ) and 50-501A l Units 2 and 3) )

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RESPGNSE OF DEPARTMENT OF JUSTICE TO APPLICANTS '

INTERRCGATORIES AND REQUESTS FOR THE PRODUCTICN CF DCCUMENTS The Department of Justice (hereinafter Department) su bmi ts the following responses to discovery requests served upon it by Applicants in the proceeding captioned Davis-Besse Nuclear Power Station, Units 2 and 3 (NRC Decket Nos. 50-500A and 50-501A). Answers made herein are complete to the knowledge and belief of the undersigned representatives of the Department as of September 5, 1975. The Department's answers will be supplemented as necessary to comply with Section 2.740(e) of

! the Commission's Rules of Practice and the agreement of counsel embod ie d the letters from Mr. Reynolds to Mr. Charno dated August 12, 1975 and Mr. Charno to Mr. Reynolds dated August 18, 1975.

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RESPONSES TO DISCOVERY REQUESTS INTERROGA10R'1 NUMBER 1 By letter dated April 19, 1974, the Nuclear Regulatory Commis-sion's predecessor agency, the Atomic Energy Commission, requested that the Department render antitrust advice pursuant to Section 105 of the Atomic Energy Act on an application for a license for the Davis-Besse Nuclear Power Station,' Units 2 and 3. This request was forwarded to the Public Counsel and Legislative Section of the Antitrust Division for furthe r processing. The following professional staff members participated in the inquiry in it iat ed in response to the AEC's request:

(1) Mr. Donald I. Baker, Deputy Assistant Attorney General, who reviewed staff recommendations; (2) Mr. Joseph Saunders, Chief of the Public Counsel and Legislative Section, who filled a supervisory role; (3) Mr. Milton Grossman, Assistant Chief of the Public Counsel and Legislative Section, whose duties were similar to those of Mr. Saunders; and (4) Messrs. Steven M. Charno anc Melvin G. Berger, attorneys with the Public Counsel and Legislative Section, who handled the day-to-day work associated with this inqu ir y.

Th is inquiry was initiated by sending le t t e rs to the following

{ parties, each of which had alleged with respect to the Davis-Besse l

t Nuclear Power Stat ion, Un it 1 and/or the Petry Nuclear Power Station, 2

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1 Units 1 and 2, facts which might constitute a situation or situations inconsistent with the antitrust laws:

American Municipal Power-Ohio, Inc.;

Director of Utilities, City of Cleveland, Ohio; Law Director, City of Painesville, Ohio; C. Emerson Duncan, II, Esquire; Buckeye Power, Inc.: and Light & Water Works, B ryan , 'Oh io.

Subsequently, additional letters were sent to the Cities of Painesv ille and Cleveland, Ohio. Written responses were received f rom all, parties but American Municipal Power-Ohio, Inc. The Department also telephoned Robert F. McCabe, Jr., Esquire, and requested that he send the Department a copy of the complaint filed by the Borough of Pitcsirn against Duquesne Light Company. By letter dated December 3, 1974, a copy of tne complaint was sent to the Department.

The nature of the information requested by the Department and the nature of the information provided in response thereto is contained in the documents herewith produced in response to Document Request Number 1.

Formulation of the Department's advice was also based in pa r t upon prior inquiries conducted by the Department. For materials responsive to th is interrogatory and Document Request Number 1 con-cerning these inqu ir ies , Applicants are referred to information con-tained in the documents and the interrogatory answers provided in Items 1 through 4 of the Response of Department of Justice to Appli-cants' First Request for Production of Documents and Answers to 3

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l Interrogatories (hereinafter " Response") dated November 27, 1974, wh ich is hereby incorporated by reference.

The inquiry was concluded on February 14, 1975, when an advice letter was sent to the Nuclear Regulatory Commission by the Depart-ment.

INTERROGATORY NUMBER 2 The requested activities of each of the Applicants are listed separately:

A. The Cleveland Electric Illuminating Company (hereinaf ter CEI)

The Borough of Pitcairn, Pennsylvania (hereinaf ter Pitcairn),

requested participation in the CAPCO Pool in a December 5, 1967, letter to CEI. By letter dated December 18, 1967, CEI turned down Pitcairn's request, thereby depriving Pitcairn of access to the competitive cenefits of coordinated operation and development.

Without such access, Pitcairn's continued existence was threatened, and it was eventually forced to abandon self-generation.

Since at least June of 1971, the City of Painesville has been

, engagec in negotiations to establish an interconnection with CEI

to allow for coordinated operation. After years of prolonged nego-tiation, an agreement was finally reached in early 1975. Du r ing the period of negotiation, Painesville was denied the benefits of in te r - j connected operation. This agreement appears to be the culmination ,

l of a plan by CEI to attempt to eliminate the Painesville system by l

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entering into interconnection agreements with oppressive terms.

In June 1974, CEI refused a general request by Painesville to wheel third party power, thus preventing its competiter f rom obtaining access to sources of bulk power other than CEI.

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In April 1973, Painesville requested access to nuclear fac il-i ities but to date no meaningful of fer of access has been made by CEI, thus preventing Painesville from gaining access to nuclear facilities.

i On December 12, 1973, CEI explicitly ref used to allow Cleveland to participate in the CAPCO Pool thus denying Cleveland access to the competitive benefits of coordinated operation and development.

Although numerous discussions have taken place from 1972 until the present regarding Cleveland's repeated requests for access to the nuclear generating facilities owned by CEI, the Department is unaware of any meaningful offer by CEk relating to Cleveland's parti-cipation in such facilities. This conduct effectively precludes Cleveland f rom access to the competitive benefits of coordinated

- operation and development.

Since at least January 1970, Cleveland has sought a permanent interconnection witn CEI to permit coordinated operation between the two utilities. Al though CEI has in the past offered to in te rconne c t with Cleveland, such of fers have been conditioned in a highly anticom-petitive manner such as cond itioning interconnection on the require-ment that Cleveland engage in a price-fixing agreement with CEI.

When CEI ascertained that the FPC might order an in te rconnect ion if CEI did not provide one voluntarily, CEI considered alternate proposals {

for interconnection and chose the alternative which appeared to place  !

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the maximum financial burden upon Cleveland and which would also take the longest time to complete. This course of conduct has weakened the competitive viability of Cleveland and is apparently in furtherance of CEI's avowed goal of eliminating that system as a competitor.

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CEI has provided some emergency power to Cleveland, but in a way which maximized the financial burden on the City wh.le doing the minimum possible to improve the reliability of the Cleveland system. These actions had an adverse competitive impact on the Cleveland's system and were apparently in furtherance of CEI's avowed goal of eliminating that system as a competitor.

l On August 30, 1973, af ter professing at length its unconditional willingness to negotiate, CEI ref used tc wheel power for AMP-O to Cleveland. This refusal was explicitly based on antico>apetitive gec_..as and was apparently in furtherance of CEI's avowed goal of eliminating the Cleveland system as a competitor.

CEI has also refused to enter into an interchange agreement with Cleveland, making it more difficult for Cleveland to continue to i

compete with CEI by denying Cleveland the competitive benefits of coordinated operation.

CEI has hao a long history of acquiring electric utilities located in ano adjacent to the area in wh ich it provides service, thus lessening direct competition.

B. Duquesne Light Company (hereinaf ter Duquesne)

Pitcairn requested admission in the CAPCO Pool in a December 5, 1967, letter to Duquesne. Th is request was denied by a letter from Duquesne dated January 2, 1968. This denied Pitcairn, a competitor of Duquesne, access to the ompetitive benefits of coordinated opera-tion and development.

Prior to the dates of the acquisition of the Etna and Sharpsburg municipal electr ic systems, Duquesne ref used requests f rom these 6

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r 4 municipalities to purchase power for resale with the ef fect of fore-closing competition and furthering Duquesne's goal of acquiring these

systems.

In the pe r iod 1965 to 1966 prior to its acquisition of the Aspinwall municipal electr ic system, Duquesne refused a request by h Aspinwall to purchase power for resale with the ef fect of foreclosing competition and furthering Duquesne 's goal of acq _ iring th is system.

In 1968, Duquesne refused to sell power for resale to Pitcairn.

! In 1968, Duquesne refused to sell partial requirements power to Pitcairn. In 1968, Duquesne refused to enter into an in te rchange agreement witn Pitcairn. In 1968, Duquesne refused to interconnect wi.th Pitcairn for any purpose other than supplying standby emergency power. In 1968, Duquesne refused the reque:t of Pitcairn for parti-cipation in a nuclear unit. In 1968, Duquesne, by agreement with the other CAPCO members, refused CAPCO membership to Pitcairn in order to i

further Duquesne Light Company's goal of acquiring that system. These activities have nad tne ef fect of foreclosing Pitcairn's competitive l

options, decreasing its competitive viability and furthering Duquesne's l i  !

i goal ot acquiring this system. In 1966, Duquesne r e f us ed to sell i Ellwooo City power for resale, thereby foreclosing that system's com-i petitive options and limit ing its competitive viability. l l

C. Ohio Edison Company (hereinaf ter Ohio Edison) l Pitcairn requested participation in the CAPCO Pool by a December 5, 1967, letter to Ohio Edison. In a reply letter dated January 2, 1968, Ohio Edison refused this request thereby denying Pitcairn the benefits of coordinated operation and development.

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Prior to 1973, Ohio Edison enforced provisions in its wholesale power. contracts witn municipal systems which allocated customers and territories thereby restricting competition between itself and the municipal systems.

Prior to 1972, Ohio Edison refused to enter into wholesale con-tracts with municipal systems for any shorter period than ten years.

In 1974, Ohio Edison repeatedly refused to wheel power for its wholesale municipal customers. These acts ef fectively foreclosed bulk supply alternatives. .

Ohio Edison has eliminated the ability of its wholesale municipal customers to compete with it for industrial customers by (1) the aforementioned allocation agreements, (2) setting it s indus t r ial power rates equal to, or lower than, its wholesale municipal power rates, and (3) refusing, since at least 1970, the requests of the Niles and Cuyanaga Falls municipal ei.actr ic systems that Ohio Edison file rates for 138 kv service.

In 1962, Ohio Edison of fered a substantial subsidy to the Hiram municipal electric system's largest customer to switch over to

, Ohio Edison in order to further its goal of acquiring that system.

In 1965, Ohio Edison refused to sell the Newton Falls municipal electc ic system power for resale thereby denying it the benefits of coordination.

In 1970, Ohio Edison refused to bid for the Norwalk municipal electric system's generation f acilities unless the sale of these facilities was tied to a sale of Norwalk's distribution system thereby I

eliminating the municipal system's ability to compete with Chio Edison at retail.

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In 1971, Ohio Edison refused to wheel power from Buckeye Power ,

Inc. to Norwalk in order to further its goal of acquiring that system.

At least prior to 1971, Ohio Edison had a territorial allocation agreement with Firelands Rural Eluctric Cooperative with respect to new customers.

In 1965, Ohio Edison entered into an agreement with Ohio Power Company that should Buckeye Power, Inc. be d issolved, the rural electric distribution cooperatives purchasing Buckeye generated power f rom Ohio Power through Ohio Edison would become Ohio Edison customers again.

1 In 1966, Ohio Edison attempted to foreclose competition with Buckeye, Inc. in supplying bulk power by offering Firelands Rural Electric Cooperative a new delivery point if it would withdraw from membership in Buckeye Power, Inc.

Since 1968, Ohio Edison has repeatedly refused and/or delayed providing new delivery points to rural electr ic cooperatives thereby inhibiting their ability to compete for new customers.

In 1968, Ohio Edison entered into an agreement with the Ohio Power Company that restricts the sale of power by rural electric cooperatives to municipal wholesale power customers of Ohio Edison thereby foreclosing competition in supplying bulk power.

Since the mid-1960's, Ohio Edison has had an agreement with CEI l

. that restricts competition between the two with respect to new cus- '

I tomers.

I Ohio Edison has eliminated, through acquisition, competing municipal electr ic systems, includ ing the following systems which 9

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had their own generation capability: Norwalk, Hiram, and East Palestine.

1 D. Pennsy'.vania Power Company (hereinafter PPC) j Pitcairn requested participation in the CAPCO Pool in a December 5, 1967, letter to PPC. By reply letter dated January 2, 1968, PPC ref used th is request, thereby denying Pitcairn the competitive benef its of coordinated operation and development.

1 PPC had, and has, a corporate policy of restricting compe t it io n between municipal electric systems and itself for industr ial cus-tomers.

In 1959, PPC refused to sell partial requirements power to Grove City municipal electr ic system, with the intent and ef fect of prevent ing i

4 competition with the municipal system for industr ial customers. Prior to 1966, PPC had restrictive provisions in its wholesale contracts which prevented the resale of power by wholesale customers to ind us-J trial customers, thereby eliminating compet ition f or such industrial customers.

S ince mid-1966, PPC has enforced ter r itor ial customer allocation prov is ions in its contracts with its municipal wholesale customers thereby eliminating these systems' ability to compate with it for l

industrial, commercial, and residential customers at retail.

During the period 1965 to 1966, PPC refused to supply maintenance i

power to .the Grove City municipal electric system, thereby weakening the competitive viability of the municipal system.

PPC had, and has, a corporate policy of re f us ing to file a cate for 69 kv service to its wholesale municipal customers, the r e b y 10 i

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restricting the municipalities' ability to compete with it for ind us-trial. customers.

1 i E. The Toledo Edison Company (hereinafter Toledo Edison)

Toledo Edison is a party to an agreement with Buckeye Power, Inc. which is anticcmpetitive in na tu re in that (1) it requires a f

wholesale customer of Toledo Edison to operate as an isolated system for 90 days if it wisnes to purchase power from Buckeye, and (2) it imposes a territorial restriction, on the sale of Buckeye power.

Pitcairn requested participation in the C: PCO Pool in a December 5, 1967, letter to Toledo Edison. By a reply letter dated December 19, 1967, Toledo Edison refused tb" request. This denied Pitcairn access to the competitive benefits ot coordinated operation and development.

On at least two occasions between September 1971 and March 1972, Toledo Edison refused to consider joint ownership with the City of Napoleon of large-scale generating fac il it ie s . This denied Napoleon access to coordinated development and planning, as well as economies

of scale not otherwise available to it .

On at least three occasions between September 1971 and March 1972, Toledo Edison refused to wheel power from the Ohio Power Company's transmission facilities to the City of Napoleon, except upon anticom-petitive terms.

On at least three occasions between September 1971 and March 1972, Toleco Edison ref used to engage in coordinated operation with the City of Napoleon. Because of Toledo Edison's dominance of transmission facilities, th is prevented Napoleon f rom achieving any coordinated operation.

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Toledo Ediscn blocked Bryan, Ohio, from obtaining relatively

. low cost electr ic power f rom North Western Electric Cooperative, Inc., headquartered in Bryan , Ohio, by ref using to allow its trans-mission facilities to be used except on anticompetitive terms.

Toledo Edison is a party to various agreements with its whole-sale customers which are anticompetitive in natu re. These agree-ments place limits on how the municipal customers can utilize or sell the power which they have' purchased f rom Toledo Edison.

They also restrict competition for customers between Toledo Edison and the municipal systems involved.

Toledo Edison has eliminated the ability of its municipal wholesale customers to compete with it for industrial customers by setting its retail rates for industrial customers at levels equal to, or lower than, its wholesale rates for sales to municipal -

systems.

! Toledo Edison is a party to an agreement or understanding with

Consumers Power Company which is anticompetitive in nature in that both companies have agreed not to serve customers in the other company's state. This agreement prevented the Southeastern Michigan -

Electric Cooperative from obtaining electric power at wholesale from Toledo Edison.

Toledo Edison has refused to sell either partial or total re-quirements power at wholesale in an attempt, which was successful, to put the Waterville Municipal Electric System out of business.

Toledo Edison has had a long history of acquiring electric entities in its general service area, thus lessening competition.

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The foregoing activities are all those of which the Depart-ment is presently aware which are responsive to this Interrogatory.

At this time, the 9epartment has not yet received all of the docu-ments responsive to its 1974 discovery request to the Applicants.

In addition, the Department has not yet received transcripts of all of the depositions taken in this proceeding. The Department has, therefore, been unable to confer with its expert witnesses

! on a comprehensive basis concerning Applicants ' activities. We therefore reserve the right to present evidence of additional activities af ter completing our review of the materials secured curing discovery and consultation with our experts.

The Department is not required to contend nor does it contend i that each of the above activities must be and is " incons is ten t with the antitrust laws.' An aggregate of all such activities which are relevant, together with any other appropriate facts, may com-I prise a " situation inconsistent with the antitrust laws." Thus, the Department has not formulated any basis on which each such activity should be deemed " inconsistent wit. the antitrust laws,"

not has it identified any specific policies or statutes in th is '

context.

1 INTERROGATORY NUMBER 3 The situations inconsistent with the antitrust laws relevaat to this proceeding are comprised policies, practices and/or indus-trial structure of the Applicants, individually and collect ively, which run counter to the policies underlying the antitrust laws 1

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or are violative of those laws. Those activities detailed in response to' Interrogatory Number 2 which are not part of a situa-tion involving collective or concerted action by Applicants are contended by the Department to be part of a situation involv ing an individual Applicant.

i In response to the remainder of this Inter rogatory, the i

f Department relies on its answer to Discovery Request Number 6 in j the Response. -

J INTERROGATORY NUMBER 4 The Department has not de te rm ined , at th is time, what license cond it ions it will seek to have imposed in the event that the Licensing Board should conclude that conditions should attach to the Davis-Besse 2 and 3 licenses. Such a determination should properly be mace only when the actual parameters and exact nature of a situation inconsistent w ith the antitrust laws have been established on a full factual record.

INTERRCGATORY NUMBER 5 The basis for the quotec portion of the advice letter was acditional comments and information which we re received by the Department in response to inquir ies by the Department of th e parties listed in the answer to Interrogatory Number 1.

The parties from whom the additional evidence was obtained, when and by whom it was received, the type of communication in-volved, the nature of the evidence , and the Applicant (s) to whom l

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it pertains are all detailed in documents being provided Appli-cants herewitn in response to Document Request Number 1. j 14

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4 INTERROGATORY NUMBER 6

'Yes. CAPCO allows its members to achieve many economic and operating benefits flowing f rom coordinated operation and develop-ment which are not available to a smaller electric entity which is not a CAPCO member. Denial of access to CAPCO by the Appli-cants therefore constitutes a refusal by those who control an essential resource to grant access on equal and nondiscriminatory terms to all others engaged in 'a given business. Further, such a denial by~ individual Applicants constitutes the exercise of market power by a supplier at one level of distribution to adversely affect competition at another level.

. INTERROGATORY NUMBER 7 Yes. The reasons for th is response are identical to those set out in the answer to Interrogatory Number 6.

INTERROGATORY NUMBER 8 i

The quoted statement referred to Pitcairn 's request to ]

Duquesne, and the Cleveland and Painesville requests to CEI.

Pitcairn, prior to 1969, attemptec to engage in coordinateo 1

operation with Duquesne, wh ich refused to sell or exchange bulk 1

power with Pitcairn on terms comparable to those on which Duquesne dealt with larger utilities. Nothing more about th is 1

allegation was known at the time the advice letter was written.

l It is the Department's belief that Pitcairn presently purchases all of its requirements from Duquesne.

Communications embodying requests for an interconnection between CEI and Painesville originally began in about 1964.

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In the early 1970's, these communications were renewed. The Department believed that some of these communications were oral and some were written. The Department believed that these communications we re between Mr. Howley of CEI and Mr. Milburn of Painesville. CEI responded in a manner which lengthened the discussions or negotiations as long as possible. CEI also imposed on Painesville the maximum burden possible. At the time the advice letter was wri,tten, the Department was not aware of the exact nature of the requests or~the responses thereto.

At the present time, CEI and Painesville have an interconnec-tion agreement which is being implemented.

At the time the advice letter was written, the Department

.'was aware that communications embodying requests for an in te r -

connection between the City of Cleveland and CEI had been going on since the early 1960's. In 1969, a new round of communica-tions on an interconnection were started. The Department believed that some of these communications were written and some were oral. The Department also believed that most of these communications were between Messrs. Howley and Hauser of CEI and the Director of Utilities, City of Cleveland; The Commissioner of Power & Light, City of Cleveland; and counsel for the City of Cleveland. While CEI responded to these requests by discussing an interconnection agreement, it did so in a manner which l'engthened such discussions or negotiations as long as  ;

possible and maximized the' burden on the City of Cleveland. The 16 i

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Department was not aware of thE exact nature of these requests or j the responses theteto, except as they may have been ind ica ted in the documents which have been previously produced to Applicants by the Department. At the present time, CEI and Cleveland have an in te r connect ion ,

j i INTERROGATORY NUMBER 9 The basis for the quoted statement is an af fidavit from i

Mr. William M. Lewis , Jr. , dated January 19, 1973, wh ich has j .

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been provided Applicants. The nature of the " attempts" to join Toledo Edison in coordinated development of generating resources and the mannet in which those attempts were frus-

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trated are detailed in Mr. Lewis ' af f idav it. The terms for

, which this Interrogatory seeks a definition were those employed i

i by Mr. Lew is . The Department would define "coord inated develop-1 ment of generating resources" in the manner employed by the Licensing Board in Prehearing Coference Order Number 2, dated July 25, 1974 at page 9. The Department would, at th is time ,

define "large-scale generating resources" to be generating units larger in size than could reasonably be built by Napoleon acting alone.

_INTERRGGATORY NUMBER 10 The basis for the quoted statement was, among other th ing s ,

a letter dated October 14, 1974, written to the Department by J

Raymond Kudukis, Director of the Department of Public Utilit ies, Cleveland, Oh io , and a letter dated November 4, ,

1974, written to 17

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the Secretary of the U.S. Atomic Energy Commission by David C.

Hjelmfelt, Counsel for the City of Cleveland.

It is the Department 's position tha t CEI has been respon-sible f or the alleged pattern of lengthy negotiation" by not making or accepting any meaningful offers for participation in the nuclear units. Thus, CEI has, for example, set anticom-petitive preconditions to even entering into negotiations with the City of Cleveland. CEI has also formulated of fe rs of parti-cipation in nuclear units which it believed to be violative of, and imposs ible to implement under, the Constitution of the State of Ohio.

INTERRCGATORY NUMBERS 11 and 12 The basis for the quoteo statement is two letters, one datea November 8, 1974, and written to the Department by '

e Charles F. Jack, Chief Engineer, Buckeye Power, Inc. and one dateo January 12, 1973, and written to the Department by Howard A. Cummions, Executive Managet of Buckeye Power, Inc.

l The information requested in parts (b)-(d) is contained in the 4

two referenced letters which are produced herewith in response to Document Request Number 7.

d INTERRGGATORY NUMBER 13 With respect to the Bryan, Ohio, system, the allegation was a

made orally by Mr. C. W. Eppard on or about May 10, 1971, to 4,

Mr. William L. Jaeger. There was no additional information on 18 l

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l this allegation other than that contained in the document pro-

' duced by the Department in response to Document Request Number 10.

i With respect to the Napoleon, Ohio, system, the allegation was made by Mr. William M. Lewis, Jr., in writing on or about

January 19, 1973. The inf o rmat ion requested by parts (b)-(d) is'containea in the af fidavit of Mr. Lewis which was produced 2

for Applicants on or about December 2, 1974, along with the Response.

INTERROGATORY NUMBER 14 The basis for the quoted statement was testimony made at hearings before the Cleveland City Council, and/or various Committees thereof, as well as media comment on the possible

acquisition of MELP.by CEI. The Department is unaware of any evidence that CEI has abandoned such exploration at the present time.

INTERROGATORY NUMBER 15 l This allegation was made orally by Mr. C. W. Eppard on e

j or about May 10, 1971, to Mr. William L. Jaeger. No other j requested information is presently known by the undersigned I other than what is contained in the document produced by the

,i j Department in response to Document Request Number 10.

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t DOCUMENT REQUEST hDMBER 1 In addition to the documents produced herewith, the answers to documents produced in response to Discovery Requests 2, 4, 8 and 9 of the Response may also be re spons ive .

DOCUMENT REQUEST NUMBER 2 There are no documents not otherwise produced herewith or in response to Discovery Requests 2, 4, 8 and 9 of the Response which are responsive to th is Request .

DOCUMENT REQUEST NUMBER 3 In addition to the documents produced herewith, all of which are specifially made subject to the Licensing Board's Protective Order, documents produced in response to Discovery Requests 2, 4, 8 and 9 of the Response may also be responsive.

DOCUMENT REQUEST NUMBER 4 There are no documents not otherwise produced herewith or in response to Discovery Requests 2, 4, 8 and 9 of the Response which are responsive to th is Request .

DOCUMENT REQUEST NUMBER 5 There are no documents not otherwise produced herewith or in response to Discovery Requests 2, 4, 8 and 9 of the Response which are responsive to th is Request .

, DOCUMENT REGUEST NUMBER 6 There are no documents not otherwise produced herewith or in response to Discovery Requests 2, 4, 8 and 9 of the Response which are responsive to this Request.

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DOCUMENT REQUEST NUMBER 7 In addition to the documents produced, all of which are specifically made subject to the Licensing Board's Protective Oroer, herewith, documents produced in response to Discivery Requests 2, 4, 8 and 9 of the Response may also be responsive.

DOCUMENT REQUEST NUMBER 8 In addition to the documents produced herewith, all of which are specifically made subject to the Licensing Board's Protective Order, documents produced in response to Discovery Requests 2, 4, 8 and of the Response may also be responsive.

DOCUMENT REQUEST 9 There are no documents not otherwise produced herewith or  ;

in response to Discovery Requests 2, 4, 8 and 9 of the Response I which are responsive to this Request . l l

DOCUMENT REQUEST 10 l l

There are no documents not otherwise produced herewith or l l

in response to Discovery Requests 2, 4, d and 9 of the Response I

which are responsive to this Request.

DOCUMENTS FOR WHICH THE DEPARTMENT ASSERTS CLAIMS OF PRIVILEGE

1. February 13, 1975 memorandum from Donald I. Bak: r : Deputy Assistant Attorney General, to Joseph J. Saunders, Chief, Public Counsel & Legislative Section, with copies to Steven M. Charno, l

Melvin G. Berger, Susan B. Cyphert, files and correspondence.

Analysis and discussion of staff recommendation concerning the

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1 Davis-Besse 2 and 3 advice letter. Privileges asser ted:

attorney-client and work product.

2. May 20, 1975 hancwritten notes by Melvin G. Berger relating to potential witnesses in this proceeding and containing a legal and factual analysis. Privilege asserted: work product.

3. Undated handwritten notes by Melvin G. Berger re la t ing to potential witnesses in this proceeding and containing a legal and factual analysis. Privilege asserted: work product.

4. Undated handwritten notes of Melvin G . Berger containing a legal analys is of var ious aspects of th is proceeding. Privilege asserted: work product.

5. November 21, 1974 notes of W. Lambe supplied to the Depar tment by the Staff of the Nuclear Regulatory Commission r ela t ing to the development of factual te s t imony in this proceed ing. Privileges asserted: a t to r ney-cl ie nt and work product.

6. Uncated handwritten notes of Anthony G. Aiuvalasit, Jr.,

r e la t ing to informarion received from potential witnesses and containing a legal and factual analysis thereof. Privilege asserted: work product.

7. Undated handwritten notes of Anthony G. Aiuvalasit, Jr.,

relating to information received from potential witnesses and containing a legal and factual analysis thereof. Privilege asserted: w^rk product.

B. July 16, 1975 letter and attachments from Benjamin H.

Vogler, Assistant Chief Antitrust Counsel f o r N RC S t a f f , to 22 N -

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. Susan B. Cyphert relating to the development of factual testimony in this proceeding. Privileges asserted: attorney-client and l

work product.

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Respectfully submitted, i

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I STEVEN M. CHAR:40

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MELV IN G. BERGER

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ANTHONY G. AIUVALASIT, J R. j i

< Attorneys, Antitrust D iv is ion Department of Justice Washington, D.C. 20530

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w Subscr ibed and swo rn to before me this 5th day of September, 1975.

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NOTARY PUBLIC My commission expires ']<h/j(~~,'

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. s UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

The Toledo Edison Company )

The Cleveland Electric Illuminating ) Docket No. 50-346A Company , )

(Davis-Besse Nuclear Power Station) )

)

The Cleveland Electric Illuminating ) Docket Nos. 50-440A Company, et al. ) and 50-441A (Perry Plant, Units 1 and 2) )

)

The Toledo Ed ison Company, et al. ) Docket Nos. 50-500A (Davis-Besse Nuclear Power Station, ) and 50-501A Units 2& 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of RESPONSE OF DEPARTMENT OF JUSTICE 10 APELICANTS' INTERRGGATORIES AND RECU ESTS FOR ThE PRODUCTICu Cf DOCUMENTS have been serveo upon all of the parties listed on the attachment hereto by deposit in the United States mail, first class, airmail or cy hand delivary, th is 5th day of September 1975.

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ANTSONY G. AIUVALASIT, JR.

Attorney, Antitrust D iv is ion Department of Justice a

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, . s 1 ATTACHMENT Douglas Rigler, Esquire Andrew Popper, Esquire

. Chairman Benj amin H. Vogler, Esquire Atcntic Safety and Licensing Roy P. Lessy, Jr., Esquire (

j Board Office of the General Counsel

Foley, Lardner, Hollabaugh Nuclear Regulatory Commission

& Jacobs Washington, D.C. 20555  :

815 Connecticut Ave., N.W.

Washington, D.C. 20006 Gerald Charnoff, Esquire t William Bradford Reynolds, Esquire I John H. Brebbia, Esquire Shaw, Pittman, Potts & Trowbridge Atomic Safety and Licensing 910 Seventeenth Street, N.W.

Board . Washington, D.C. 20006 Alston, Miller & Gaines 1800 M Street, N.W. Lee C. Howley, Esquire l

j Washington, D.C. 20036 Vice President & General Counsel i The Cleveland Electric j John M. Frysiak, Esquire Illuminating Company

]

Atcmic Safety and Licensing Post Of fice Box 5000 Board Panel Cleveland, Ohio 44101 Nuclear Regulatory Commission Donald H. Hauser, Esquire i

Washington, D.C. 20555 Corporate Solicitor Atomic Safety and Licensing The Cleveland Electric Board Panel Illuminating Company i Nuclear Regulatory Commission Post Office Box 5000 Washington, D.C. 20555 Cleveland, Ohio 44101 3 Frank W. Karas John Lansdale, Jr., Esquire Chief, pup 1.ic Proceedings Cox, Langford & Brown Staff 21 Dupont Circle, N.W.

Office of the Secretary Washington, D.C. 20036 Nuclear Regulatory Ccmmission

Washington, D.C. 20555 Chris Schraff, Esquire Office of Attorney General j Abraham Braitman State of Ohio Office of Antitrust and State House Indemnity Columbus, Ohio 43215 i Nuclear Regulatory Commission

. Washington, D.C. 20555 Karen H. Adkins, Esquire Assistant Attorney General

Herbert R. Whitting, Esquire Antitrust Section l Robert D. Hart, Esquire 30 East Broad Street

! Law Department 15th Floor l City Hall Columbus, Ohio 43215 l Cleveland, Ohio 44114 Leslie Henry, Esquire Reuben Goldbarg, Esquire Fuller, Henry, Hodge j David C. Hjelmfelt, Esquire & Snyder 1700 Pennsylvania Avenue, N.W. 300 Madison Avenue

! Suite 550 Toledo, Ohio 43604

! Washington, D.C. 20006 l

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

__.__-...,..._._.,r,__ -m, _ _ _ - . . _ . _ _ _ _ . , , , , , , . . _ . . _ , - , ~ _ , , _ - _ . , - - - - - - - ,

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t Thomas A. Kayuha, Esquire James B. Davis, u ~:u , .

Ohio Edison Company Robert D. hart, 47 North Main Street Akron, Ohio Director of Law 44308 City of Cleveland 213 City Hall David M. Olds, Esquire Cleveland, Ohio 44114 Reed, Smith, Shaw & McClay 747 Union Trust Building Pittsburgh, Pennsylvania 15219 Mr. Raymond Kudukis .

Director of Utilities City of Cleveland 1201 Lakeside Avenue Cleveland, Ohio 44114 Wallace L. Duncan, Esquire Jon T. Brown, Esquire Duncan, Brown, Weinberg

& Palmer 1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Ecward A. Matto, Esquire Assistant Attorney General Chief, Antitrust Section 30 East Broad Street 15th Flcor Columbus, Ohio 43215 Richard M. Firestone Assistant Attorney General Antitrust Section 30 East Broad Street 15th Flcor Columbus, Ohio 43215 Victor F. Greenslade, Jr., Esquire Principal Staff Counsel The Cleveland Electric Illuminating Company Post Office Box 5000 Cleveland, Ohio 44101 Rsbert P. Mone, Esquire Gcorge, Greek, King, McMahon

& McConnaughey Columbus Center 100 East Broad Street Columbus, Ohio 43215

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