|
---|
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
[Table view] |
Text
.
. _.
'
.
.
.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
,
-
.
.
Before the Atomic Safety and Licensing Appeal Board
.
. .
In the Matter of .
)
)
THE TOLEDO EDISON COMPANY and )
THE CLEVELAND ELECTRIC ILLUMINATING ) NRC Docket No. 50-346A -
COMPANY )
)
(Davis-Besse Nuclear Power Station, )
Unit 1)
'
)
,
SUPPLEMENTAL MEMORANDUM OF
, THE DEPARTMENT OF JUSTICE
, Steven M. Charno
'
Ruth Greenspan Bell Attorneys Antitrust Divisiori Department of Justice
.
March 24, 1976 8002260708 m
.
_
- . . _ _ _
. .
.
I INTRODUCTION .,
!
,
..
In the course of oral argument on March 11, 1976 on the l applicability of "grandfathering" to the above*-captioned p.ro-
-
.
.- ~ceeding, the Board asked the Department to square the general
,
~
. scheme of prelicensing antitrust review with section 105c(6)
- of the Atomic Energy Act which, in the words of Member Salzman,'
'
- ,, ,
'
-
.__..,says that "even if adverse antitrust consequences will result,
.
the. commission has the authority to allow the plant to operate
- -
- . .-
an'yway." (Tr. at 56)
The Department was asked if its reading of tho Atomic -
-
, Ene pya Act does not lead to an " absurd result" (Tr. at 60). On
- I the one hand, it was noted an unconditioned license might issue after extended antitrust proceedings (during which a plant". mig'ht'
'
sit " idle," Tr. at 58), despite a finding of adverse antitrust -
consequences. On the other hand, with the exception of two
. clear instances set.forth by Congress, even if all other phases a .
of. the licensing process were completed, a license could not issue in advance of the antitrust finding being made.
,
The - Board
. further asked whether such an " absurd result," does not suggest that Congress did not really intend for antitrust review to pre-date the issuance of construction and operating licenses,
, de' spite. the otherwise clear requirements of the statute. The Board asked, 'in the words of- Member Farrar, "We have flexibility
. at 'the end of a hearing. Why do we not have flexibility earlier
. .W.
. .r . .,
-
. .: 1 -
%Y: -
-
.
ei.
'e D ,
__ ._, .. . ..
_
.., _ . _
..
' -
.
l 4
1 in the hearing before the Applicant has been found guilty." (Tr. -
at 60)- The Board suggested that it might have the obligation ,
,
'
to make " harmonious" those. "two results."
,
(Tr. at 60)
These specific questions were not among those which the \ {'\
]., ,
Board in its Order of January 8,1976, asked the parties to ,
1 address. Regretably, therefore",' we did not at the argument
-
cite precedents which we think are dispositive of the questions.
In this memorandum, we show that a requirement of prelicensing antitrust review, even when the Commission has final discretion (as one of a number of possible remedial options) to grant an unconditioned construction or operating license af ter~ findings of adverse antitrust consequences, is not absurd; indeed, such
.
a result is totally consistent with analogous statutory requirements that Government agencies consider fully, in advance of final action, the impact' of the propos'ed action on certain fundamental, national values. -
Section 105(c)(6) of the. Atomic Energy Act is Consistent
'
.
With Other Federal Legislation in Which dangress Has .
-
Required That Federal Agencies Consider, Before Acting the Consequences of Their Prepared Action.
.
The requirement that antitrust revie" take place before issuance of operating and construction permits represents a legislation which similarly requires that federal agencies con-sider certain specified factors before taking final action.
The Courts have refused to allow agencies to dispense with the procedural reg'uirements of such legislation despite attemp .s to
'
create excep'diops to those requirements.
2 .
.
l
'
. - .
__
mm .hm_=
_. .- .
. *
.
.
.
The most important example of such legislation is the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C.A.
S 4321, et seq. N' EPA established a national policy requiring
- federal agencies to give full consideration to environmental effpcts in planning their programs. NEPA, as this Commission well knows, is a procedural requirement. At the end of its -
analysis, an agency may determine that the environmental costs
.
of the contemplated action are outweighed by other benefits, and
~
may proceed accordingly. Nevertheless, the agency is required to make this analysis in advance of action. Calvert Cliffs' Coord. Com. v. United States Atomic Energy Commission, 449 F.2d
.
. 1109 (D.C. Cir."1971). See also, Scientists' Inst. for Pub.
Info. v. Atomic Energy Commission, 481 F.2d 1079 (D.C. Cir.
1973), United States v. SCRAP, 412 U.S. 669, 693, 695 (1972),
.
.
Aberdeen & Rockfish R. Co. v. SCRAP, 422 U.S. 289 (1974).
.
In the Calvert Cliffs case, procedural prelicensing environmental review was tested against the same arguments which were raised'by this Board during the oral argument on
.
March 11, 1976. The .
'
Atomic Energy Commission argued that Congress could not have
'
intended that procedural requirements should interfere with or, create unreasonable delays in the construction and operation of [ urgently -needed] nuclear power plants . . . .
"
449 F.2d at I 1119. The Court of , Appeals for the District of Columbia emphati ally dismissed this argument'.' Making clear that the
' '
4 3
.
a
'
.
,
. , _ _ _ . . . . . . - . . . -e. ~~ ---~~~-*--=--~~-~. w~
.
.
requirements of NEPA are procedural, the Court nevertheless stated that the Act mandates strict compliance; " considerations '
of administrative difficulty, , delay or economic cost'will not ,
suffice . . . " to allow an agency to forego this review. 449 F.2d at 1115.
NEPA's procedural requirements are prerequisites and can-not be disregarded, even when weighed against other cerious substantive concerns of the agency. In Calvert Cliffs, the
-
,
Commission further argued that the procedural requirements of NEPA were vague and lef t room for discretion and should be disregarded when compared to the Commission's perceived mandate
-
to provide solutions to the " pressing national power crisis."
The Court of Appeals recognized that consideration of environ-mental issues may in some cases delay the licensing of some
"
power plants; nevertheless,-it pointed out: ,
'
. Whether or not the spectre of a national power .
crisis is as real as the Commission apparently '
. believes, it must not be used to create a ;
blackout of environmental consideration in the :
agency review process. 449 F.2d at 1122. j
.
In sum, numerous Courts have found that a procedural re- !
quirement.that agencies consider the environmental consequences s.
l,
.
of their activities is not rendered a nullity or an absurdity {
by the decision of Congress to require an agency to review in 4
. I
'
advance all factors, and thereaf ter to authorize the agency to
.
O
.
-
.'
.
. . .! . '
4
.
1
.=m m.<_ -=s_ i
.
'
-
.
allow values other than environmental impact to predominate. */ ,
'
\
Courts have refused to carve into the Act exceptions which might \
\ u facilitate the realization at an earlier stage of other, albeit \
important, national policies.
.
_.
'd '
-
- The procedural requirements discussed above are fully con--
.]
, istent s with other legislative requirements that agency decision
')
making must observb statutory procedures and take into account those factors which Congress has said must be considered, even though having done so, the agency may decide to take final action
- which advances only one of a number of considered factors. See, e.g., Moss v. C.A.B., 430 F.2d 891 (D.C. Cir. 1970), McLean Trucking Co. v. United States, 321 U.S. 67 (1942), Schaffer Transp. Co. v. 0,11ted States, 355 U.S. 83 (1957).
Similarly, in the Atomic Energy Act, Congrsss has required that this Commission consider in its decision making the impact of plant licensing on the fundamental values embodied in the
-
antitrust laws. That the Commission is left some room ulti-mately to determine that, in some cases, other values should be
- / In Calvert Cliffs, there is an even more striking parallel
-
to the arguments made before this Board. The Commission there
'
argued that even if pre-action environmental review was held to be a general obligation of the agency, special exceptions should be recognized for a class of nuclear facilities in which " full NEPA consideration of alternatives and independent action would
,
cause too much delay at the pre-operating license stage." 449 F.2d at 1127. This class was . defined as "those for which con-l struction permits were granted without consideration of environ-
mental issues, but for which operating licenses have yet to be issued." 449 F.2d at 1127. This exception, too, was rejected.
a 5
? -
. -
,
4
. _ . _ . _ _ _ . . . - - - . _ . . - --- _ - .
,..
_.
.
. . _.
,
- *
. .
m -
.
.
given precedence, cannot be employed to undermine the basic
'
requirements of the statute. Indeed, in the case of antitrust review, th(reuuirements ~t'QF of 10Sc go beyond the procedural The Com.nission must not only weigh the competitive effects, but must also make findings. And, it is only in the most
" extraordinary" of circumstances that it may accept consequences inconsistent with the antitrust laws in order to promote some other count'ervalling value. H. Rept. No. 81-1470 by the Joint
.
Committee,on Atomic Energy at 31 (September 24,.1970).
Respectfully submitted, Steven M. Charno
,
6 .
1
.. ; .
Ruth Greenspan Bell
,; Attorney
.. . Department of Justice e
~ . ';,
, .
.
.
e .a*
.
I. ah
!
.1 .
~ ., . .- y
.
'
. .
.
.
. .
!! arch 24,1976 -
!
,
,
.
.
~ .ft; .
e
..C ~p
.. . - .... . . - - . . . . .. . -
. ..--.;
'
. .
.. ~
.
IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUNDIA CIRCUIT
.
)
THE TOLEDO EDISON COMPANY and )
THE CLEVELAND ELECTRIC ILLUMINATING ) NDC Dockct No. 50-346A COMPANY ) .
)
(Davis-Besse. Nuclear' Power Station, )
Unit 1) )
.
CERTIFICATE OF SERVICE -
I hereby certify that copies of MOTION FOR PERMISSION TO FILE
, AN OTHERWISE UNAUTHORIZED PLEADING and SUPPLEMENTAL MEMORANDUM OF
'
THE DEPARTMENT OF JUSTICE have been served upon the following
- parties by either hand delivery or deposit in the United States mail, first class, as below indicated, this 24th day of March, 1976:
.
,
Hand Delivered
,
Gerald Charnoff, Esq. Alan S. Rosenthal, Esq.
Wm. Bradford Reynolds, Esq. Chairman Robert E. Zahler, Esq. Atomic Safety and Licensing Jay H. Bernstein, Esq. Appeal Board Shaw, Pittman, Potts & U.S. Nuclear Regulatory Commission Trowbridge Washington, D. C. 20555 1800 M Street, N.W.
Washington, D. C. 20006 Richard S. Salzman, Esq'.
. Atomic Safety and Licensing Michael C. Farrar, Esq. Appeal Board Atomic Safety and Licensing U.S. Nuclear Regulatcry Commission Appeal Board Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 2055'5 -
-
+
.
I
_. _ - . . _ _ . _ . _ . _.. - - _-- _ ----- -
' '
.
.
Deposited in Mail I
Douglas V. Rigler, Esq. Wallace E Brand, Esq.
Chairman i Pearce & Bland Atomic Safety and Licensing Suite 1200 Board ,
'
. 1000 Connecticut Avenue, N.W.
Foley, Lardner, Hollabaugh Washington, D. C. 20036 and Jacobs Chanin Building - Suite 206 Frank R. Clokey, Esq.
815 Connecticut Avenue, N.W. Special Assistant Washington, D. C .- 20006 Attorney General
~ /
-
Room 219 Ivan W. Smith, Esquire Towne House Apartments Atomic Safety and Licensing Harrisburg, PA 17105 Board Panel ,
U.S. Nuclear Regulatory Commission Mr. Raymond Rudukis Washington, D. C. 20555 Director of Public Utilities .
City of Cleveland .
John M. Frysiak, Esq. 1201 Lakeside Avenue Atomic Safety and Licensing Board Cleveland, Ohio 44114 Panel U.S. Nuclear Regulatory Commission James B. Davis, Director Washington, D. C. 20555 Robert D. Hart, Esq.
Departmernt of Law Atomic Safety and Licensing 1201 Lakeside Avenue Board Panel Cleveland, Ohio 44114 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Donald H. Hauser, Esq.
Victor A. Greenslade, Jr., Esq.
Mr. Chase R. Stephens The Cleveland Electric Docketing and Service Section Illuminating Company U.S. Nuclear Regulatory Commission 55 Public Square 1717 H Street, N.W. Cleveland, Ohio 44101
-
Washington, D. C. 20006 John Lansdale, Esq.
Benjamin H. Vogler, Esq. Cox, Langford and Brown Roy P. Lessy,'Jr., Esq. 21 Dupont Circle , N.W. ,
Jack R. Goldberg, Esq. Washington, D. C. 20036 Office of the Executive Legal
-
Director Leslie Henry, Esq.
U.S. Nuclear Regulatory Commission Michael M. Briley, Esq.
Washington, D. C. 20555 Roger P. Klee, Esquire Fuller, Henry, Hodge & Snyder Reuben Goldberg, Esq. P. O. Box 2088 David C. Hjelmfelt, Esq. Toledo, Ohio 43603 Michael D. Oldak, Esq.
Goldberg, Fieldman & Hjelmfelt ,
1700 Pennsylvania Ave., N.W.
Washington, D. C. 20006
.
2
,
Y t*- + .
mmg
,
. . - . - - - - - - ~***=*--e**
J
'.. *
.
.. '
. .
Russell J. Spetrino, Esq. Lee A. Rau, Esquire s Thomas A. Kayuha, Esq. Joceph A. Rieser, Jr., Esq. '
Ohio Edison Company Reed Smith Shaw & McClay '
47 North Main Street Madison Building - Room 404 '
Akron, Ohio 44308 1155 - 15th Street, N.W.
Washington, D. C. 20005 \
'
Terence H. Benbow, Esq. _' '
.
A. Edward Grashof, Esq. Edw'ard A. Matto, Esquire Steven A. Berger, Esq. Richard M. Firestone, Esq.
Winthrop,' Stimson, Putnam Karen H. Adkins, Esq.
& Roberts Antitrust Section 40 Wall Street 30 E. Broad Street, 15th Floor v New York, New York 10005 Colnmbus, Ohio 43215 Thomas J. Munsch, Esq. Christopher R. Schraff, Esq.
General Attorney Assistant Attorney General Duquesne Light Company Environmental Law Section -
435 Sixth Avenue 361 E. Broad Street, 8th Floor Pittsburgh, PA 15219 Columbus, Ohio 43215 David Olds, Esq. James R. Edgerly, Esq.
William S. Lerach, Esq. Secretary and General Counsel Reed Smith Shaw & McClay Pennsylvania Power Company Union Trust Building One East Washington Street Box 2009 New Castle, PA 16103 Pittsburgh, PA 15230
.
.
Ruth Greenspan Bell Attorney Department of Justice
.
.
.
-
.
.
March 24, 1976 x* *
--
. ._ c ._.. -- -- ---
y-