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Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARML20198L1911998-12-21021 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 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 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 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 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 ML20108D9571996-05-0303 May 1996 CEI Response to City of Cleveland 2.206 Petition.Nrc Should Deny Petition ML20097G5731996-02-13013 February 1996 Comment Supporting Petition for Rulemaking PRM-50-63 Re Use of Potassium Iodide 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 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 ML20096E9781996-01-0808 January 1996 Comment on Proposed Suppl to GL 83-11, Licensee Qualification for Performing Safety Analyses in Support of Licensing Actions 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 ML20062M4011993-12-28028 December 1993 Comment Supporting Petition for Rulemaking PRM-21-2 Re Commercial Grade Item Dedication ML20046A9561993-07-19019 July 1993 Comment on Proposed Rules 10CFR170 & 171, FY91 & 92 Proposed Rule Implementing Us Court of Appeals Decision & Rev of Fee Schedules;100% Fee Recovery,FY93. ML20056C8951993-07-19019 July 1993 Order Extending Time within Which Commission May Rule on Petitions for Review of LBP-92-32.W/Certificate of Svc. Served on 930720 ML20045F8321993-06-22022 June 1993 Comment on Proposed Rule 10CFR26 Re Mods to fitness-for-duty Program Requirements.Concurs W/Proposed Rule in Reducing Random Testing Rate of Licensees to 50% & Disagrees W/ Maintaining Random Testing Rate of 100% for Vendors ML20044E2781993-05-13013 May 1993 Comment Supporting Petition for Rulemaking PRM-50-58 Re VEPCO Petition to Change Frequency of Emergency Planning Exercise from Annual to Biennial ML20044E1561993-04-29029 April 1993 Comment Supporting Petition for Rulemaking PRM-50-58 Re Frequency Change of Emergency Planning Exercises ML20127L8781993-01-19019 January 1993 Comment Supporting Comments Submitted by NUMARC Re Draft Reg Guide DG-1020 ML20127A6171993-01-0606 January 1993 Order.* Time within Which Commission May Rule on Petitions for Review of Board Order LBP-92-32,dtd 921118,extended Until 930208.W/Certificate of Svc.Served on 930106 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 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 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 ML20126A5461992-12-10010 December 1992 Order.* Requests That Answers to Petition for Review Be Filed No Later than 921223.W/Certificate of Svc.Served on 921210 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 ML20115E1771992-10-0808 October 1992 Comment Supporting Draft Mgt Directive 8.6,GL 92-05 ML20105C8971992-09-16016 September 1992 Comment Opposing Proposed Generic Communication Re Generic Ltr Concerning analog-to-digital Replacements Under 10CFR50.59 ML20114A8841992-08-17017 August 1992 Designation of City of Brook Park,Oh of Adopted Portions of Summary Disposition Pleadings.* Brook Park Not Advancing Any Addl Argument or Analysis in Connection W/Designation,Per 920806 Memorandum & Order.W/Certificate of Svc ML20099E1821992-07-28028 July 1992 Comment Supporting Proposed Rules 10CFR20 & 61 Re LLW Shipment Manifest Info & Reporting ML20099A4051992-07-17017 July 1992 Comment on Proposed Rules 10CFR20 & 50 Re Reducing Regulatory Burden on Nuclear Licensees.Supports Rules ML20101R4831992-07-0808 July 1992 Comment Supporting Proposed Rule 10CFR50 Re Receipt of Byproduct & Special Nuclear Matl 1998-03-27
[Table view] Category:PLEADINGS
MONTHYEARML20101B5841996-01-23023 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 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 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 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 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 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 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 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 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 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 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 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 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 ML20079D2161991-06-14014 June 1991 Answer of Cleveland Electric Illuminating Co & Toledo Edison Co to Petition of Alabama Electric Cooperative,Inc for Leave to Intervene.* AEC Has Not Met Burden of Satisfying Regulatory & Common Law Requirements.W/Certificate of Svc ML20077G2551991-05-31031 May 1991 Request for Hearing Re Denial of Application to Amend Perry Operating License to Suspend Antitrust Conditions Insofar as Conditions Apply to Ohio Edison Co.* W/Certificate of Svc ML20077G2591991-05-31031 May 1991 Request for Hearing Re Denial of Application to Amend Perry & Davis-Besse Operating Licenses to Suspend Antitrust Conditions Insofar as Conditions Apply to Cleveland Electric Illuminating Co & Toledo Edison Co.* W/Certificate of Svc ML20077G2741991-05-31031 May 1991 Opposition of City of Cleveland,Ohio to Hearing Re Denial of Applications to Suspend anti-trust License Conditions & Petition to Intervene in Event Hearing Requested & Granted.* W/Certificate of Svc ML20077P6731988-09-13013 September 1988 Comments of City of Cleveland in Opposition to Application for Suspension of OL Antitrust Conditions.Centerior Suspension Application Should Be Denied Based on Listed Reasons.W/Certificate of Svc & Svc List ML20151E2551988-07-15015 July 1988 Opposition of City of Clyde,Oh to Application to Amend Plants OLs to Suspend Antitrust Conditions ML20215D6741987-06-12012 June 1987 Suppl 4 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.Ucs Reply to Responses from NRC & B&W Owners Group.* Certificate of Svc Encl ML20210C4191987-04-0606 April 1987 Principal Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Petition Should Be Denied ML20205F2911987-03-23023 March 1987 Suppl 3 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Requests That Listed Names Be Added to List in Paragraph 1 of 870210 Petition ML20210C2691987-03-0606 March 1987 Initial Response of B&W Owners Group to Petition Filed Under 10CFR2.206 by Ucs.* Request for Immediate Suspension Should Be Summarily Denied.W/Certificate of Svc ML20211F5091987-02-20020 February 1987 Suppl 2 to Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W.* Lists Names to Be Added to 870210 Petition & Corrects Address for Save Our State from Radwaste ML20210N4861987-02-10010 February 1987 Petition for Immediate Action to Relieve Undue Risk Posed by Nuclear Power Plants Designed by B&W Co.* OLs & CPs for Facilities Should Be Suspended Until Listed NRC Actions Taken ML20211K3101986-11-12012 November 1986 Response to State of Oh 861024 & Toledo Coalition for Safe Energy & SA Carter 861028 10CFR2.206 Petitions Requesting Suspension of Ol.Petitioners Identified No Evidence of Violation of NRC Regulations.Certificate of Svc Encl ML20211G6821986-10-27027 October 1986 Petition of Toledo Coalition for Safe Energy & SA Carter Demanding That NRR Require Util to Show Cause Why OL Should Not Be Suspended or Terminated & That Commission Issue Immediate Restraining Order from 861104 Restart.W/Svc List ML20214T6941986-09-29029 September 1986 Response to Util 860918 Filings Re Facility Onsite Burial of Waste.Licensee Proposed Burial Spot Possess Physical Characteristics Likely to Cause Failure of Disposal Facility.Certificate of Svc Encl 1996-01-23
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O^ 000.& Ulli fAC.IO' N d UNITED STATES OF AMERICA
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BEFORE THE ATOMIC ENERGY COMMISSION In the Niatter of )
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THE TOLEDO EDISON COMPANY and )
) Docket No. 50-346A THE CLEVELAND ELECT'AIC ILLUMINATING )
COMPANY )
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-% Davis-Besse Nuclear Power Station )
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RESPONSE OF CITY OF CLEVELAND TO
-) SUPPLEMENTAL ANSWER OF APPLICANTS TO
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CITY OF CLEVELAND'S PETITION TO INTERVENE
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'; ; c/t4 - F City of Cleveland (City) hereby responds to the Supplemental Answer
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V.[t' '~ ~ofh.Applicants
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. to the City's Petition to Intervene.
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I Applicants state that the Attorney General has advised the Commis-sion that an antitrust hearing would not be required (Supp. Ans. Par.
No. 1). This is not quite an accurate statement of the Attorney General's advice letter to the Commission.
In his letter of advice dated July 9,1971, the Attorney General said:
In these circumstances, we cresently are of the view that an antitrust hearing would not be required pursuant to the reservation of authority contained in the Commission's construction permit. (emphasis supplied) 8002180/'/ 3
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The " circumstances" to which the Attorney General referred were the City's application to the FPC for a permanent interconnection with Cleveland Electric Illuminating Company (CEI) and to CEI's stated will-
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ingness to enter into an arrangement for such an interconnection. It appears from the Attorney General's advice letter that he was of the im-pression that the function and purpose of the interconnection was to give the City of Cleveland's Municipal Electric Light Plant (MELP) access to coordinated development and planning, the economies of scale associ-ated with large-scale generating units, reserve sharing, and other types of economic benefits which the Attorney General recognized as bearing on competition for load growth at the retail level. Under "these circum-stances," it is not surprising that the Attorney General was of the view,
" presently," that an antitrust hearing would not be required to protect the City. Contrary to the Attorney General's impression, however, the
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interconnection involved in the FPC proceeding and which, by FPC Opin-l ion No. 644, was directed to be established for the limited primary term of five years, may be used only "to supply emergency service to the City" and does not provide the benefits envisioned by the Attorney General.
Fully informed of the limited nature of the emergency intercon-nection and that MELP would continue to be excluded from the benefits of coordinated development and planning that CEI and its CAPCO associates (Central Area Power Coordination Group) have made their exclusive domain, the Attorney General's recommendation would clearly have been for a hearing.
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a in sum, the attorney General's advice to ths Jommission was not unqualified. It was based upon certain invalid premises, which if they ever did obtain, clearly do not obtain today.
II Applicants quote from the Staff's Supplemental Answer, in which Staff stated that:
A review of the antitrust aspects of the FPC proceeding by the Staff has not revealed any evi-dence concerning anticompetitive practices or antitrust conduct by CEI.
Applicants also quote the statement of the Staff that it is " inclined to agree with the Attorney General's view of the competitive situation in the area of concern that there is apparently no anticompetitive situation for the Commission to consider. "
As already noted, the Attorney General's conclusions were based upon invalid premises. The Staff's conclusion in its Supplemental An-swer is similarly based on invalid premises.
We do not know whether Staff reviewed the total record before the FPC or some selected portions. If Staff reviewed the whole record then it is aware that the question of CEI's anticompetitive conduct, although put into the proceeding by the City, was never really pursued. Thus, the Presiding Administrative Law Judge observed from the Bench (FPC Record in Docket No. E-7631, p. 453):
This may be a pro forma issue, but I don't detect any sign at this stage in the proceeding that it is being pressed as a genuine issue of fact.
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Simply put, the allegations of anticompetitive practices were not pursued because they were superflucas to the specific request for the relief sought from the FPC.
Moreover, denial of a license or issuance thereof with appropri-ate conditions by the Commission is not dependent upon proof of violation of the antitrust laws. The Commission is not required to find that CEI's activities under the license will constitute a full-fledged violation of the antitrust laws. It is sufficient that the Commission find that there is a reasonable probability that CEI's activities would run counter to the policies underlying these laws. Report by the Joint Committee on Atomic Energy to accompany HR 18697, enacted as P. L.91-560. Con-sequently, any FPC finding on antitrust violation by CEI is not decisive of the Atomic Energy Commission's responsibilities under Section 105c of the Atomic Energy Act. Under Section 105c, if a situation inconsist-ent with the antitrust laws or the policies underlying these laws will be created by the issuance of an unconditioned license to CEI and Toledo Edison, it is immaterial that a situation inconsistent with the antitrust laws had theretofore not been maintained. Further, as was stated in S. Rep. No. 91-1247, 91st Cong. , 2d Ses s. , at p. 14:
It is important to note that the antitrust laws within the ambit of Subsection 105(c) of the Bill are all the laws specified in Subsection 105(a). These include the statutory provisions pertaining to the FederalTrade Commission, which normally are not identified as anti-trust law. Accordingly, the focus for the Commis-sion's finding will, for example, include consideration of the admonition in Section 5 of the Federal Trade Com-mission Act, as amended, that ' Unfair methods of com-petition in commerce, and unfair and deceptive acts in commerce, are declared unlawful. ' l l
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C l l h..n , as (:ity will prove at the hearing on antitrust review, employed unt.ii r inethods of competition and unfair and deceptive acts against the
('ily in ,in elTort to de:st roy t he City ai+ a vi.ilele competitor. Sisi h inet h-
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...iri .in 1 a. I:n h.ive included haranument and i ne rci."i of M 1:1.l"s i nnt ome rn until they agreed to discontinue taking service from MELP and switch to CEI; disconnecting MELP's service facilities to customers without authorization and substituting CEI's services; making of cash payments by CEI to induce existing and potential customers of MELP to take serv-ice from CEI, and generating of lawsuits to jeopardize MELP's ability to maintain a competitive stance.
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III Applicants refer to the fact that at a meeting on March 1, 1973, with the Commission's Staff, the City was requested to submit within three weeks a statement of the specific relief it sought. Applicants state that no such submission has been made by the City. They con-tend that this " failure" is "more impressive" because City had made no response to a letter from CEI dated April 11, 1972, in which it re-
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<ineste<l a statement f rom the City of its proposal for participation in the Davis-Besse plant. Applicants argue that under these circumstances e
the Staff's recommendation for an antitrust hearing and appointment of g
a 11oa rd is unwa rranted.
It is true that the City of Cleveland did not withis three weeks respond to the Staff's request made at the March 1,1973 meeting. It
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ei c.in.nll y l e ine, luiwev e r, lli,it f lic (:st y e nininions e .ilcol willi . oien .cl I..e a t .I .ni.I flic fie.i s t .nnt n r. n re.1 a g recincnt in ent.ii g e nient .. tem sonc r...
response. For a number of reasons, including the City's employment of new special counsel, additional time was required for response, and in this connection it should be observed that the Staff's request was for the City to state its view of the " nexus" between the anticompetitive activ-ities of CEI, of which the City complains, and the joint ownership and operation of the Davis-Besse Nuclear Power Station by CEI and The Toledo Edison Company, from which the City has been excluded by the Applicants.
Furthermore, a submission has been made in response to the Staff's request under date of April 19, 1973. This submission has been served upon counsel for the Applicants. Among other things, it speci-fies the relief requested, which was never obscure to the Applicants and had been previously stated.
IV Applicants contend that an antitrust hearing and creation of a Board is not warranted because "as the Staff points out, the dispute between petitioner and CEI 'does not involve in any manner the majority share-holder and operating utility, The Toledo Edison Company'".
The fact that there is a partner in the ownership of Davis-Besse that may or may not be involved in anticompetitive conduct vis-a-vis the City does not make inapplicable to the project the provisions of Sec-
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. tion 105c of the .. comic Energy Act where one of sne partners has en-
- gaged in anticompetitive conduct, and it does not immunize the project from a finding that unconditioned licensing thereof would maintain or create a situation inconsistent with the antitrust laws or the policies underlying such laws. Additionally, the assumption is incorrect that Toledo Edison is not involved in the review of antitrust conduct. Part of that antitrust conduct is the exclusion by CAPCO of the City from the benefits of coordinated operation and planning. Toledo Edison is a mem-
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ber of CAPCO, and the benefits of Davis-Besse are restricted by action of Toledo Edison and CEI to CAPCO members only.
V With respect to Applicants' contention that an antitrust hearing and the submission of the issues to a Board are unwarranted on the ground that the City cannot be a joint owner in the nuclear plant, that contention is without merit. The City seeks participation either through owner-ship or the purchase of unit power. There is no legal bar to the pur-chase of unit power by the City. Moreover, even if the City itself may not lawfully share in the ownership of the Davis-Besse station, there is no legal impediment to an ownership arrangement through American Municipal Power of Ohio, Inc. (AMP-0), as is evident from the fact that, unlike the Applicants in this case, the Applicants for the Zimmer Nucle'r Plant license, Dayton Power and Light Co. and Cincinnati Gas and Electric Company, have offered ownership participation in that plant to AMP-O.
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Finally, Applicants contend that it " clearly is not the function sif this Commission to compel owners of nuclear units to supply energy in any manner to another merely because of its inability to supply it-s el f". Assume this premise to be true -- it has nothing f.o do with the present case. The City is requesting participation in the nuclear station on the ground that exclusion of the City from participation is a violation of the requirements of the Atomic Energy Act. If the City sustains its burden of proof, which it fully expects to do at a hearing, Section 105c of that Act requires conditioning of the license, if one were to be issued, to provide for participation in the nuclear unit by the City, together with such other conditions as are necessary to make such participation a reality.
WHEREFORE, for each and all of the reasons stated, Applicants' objections to Staff's recommendation in Staff's Supplemental Answer are
invalid and should be disregarded.
Respectfully submitted, CITY OF CLEVELAND April 19, 1973 By d Reuben Goldberg //
Reuben Goldberg Its Attorney 1700 Pennsylvania Ave.
Washington, DC 20006 Judge Herbert R. Whiting Robert D. Hart City Hall Cleveland, Ohio 44114 Attorneys for City of Cleveland
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