ML19329C670

Responds to Applicants' Motion for Leave to File Supplemental Answer.Recommends Denial.Certificate of Svc Encl

ML19329C670
Person / Time
Site:	Davis Besse
Issue date:	05/11/1973
From:	Goldberg R CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	US ATOMIC ENERGY COMMISSION (AEC)
References
NUDOCS 8002180175
Download: ML19329C670 (6)

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UNITED STATES OF AMERICA 5h~B I \

BEFORE THE ATOMIC ENERGY COMMISSION In the hiatter of )

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THE TOLEDO EDISON COMPANY and )

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THE C LEVELAND ELECTRIC ) Docket No. 50-346A ILLUMINATING COMPANY )

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Davis-Besse Nuclear Power Station )

RESPONSE OF CITY OF C LEVELAND TO MOTION OF APPLICANTS FOR LEAVE TO FILE SUPPLEMENTAL ANSWER Applicants have filed a Motion for leave to file a Supplemental Answer.

The City of Cleveland submits that the Motion should be denied. Applicant s '

Supplemental Answer is not addressed to the substance and merits of the City of Cleveland's Supplemental Answer to Staff's Supplementation of its original answer to the City of Cleveland's petition. Instead, the most recent Supple-i mental Answer of the Applicants, that they seek leave to file, is addressed l to matters entirely irrelevant to the important anti-trust review issue.

Applicants first feign confusion on the matter of the identity of the ,

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City of Cleveland's counse.' in these proceedings; is it Mr. Ardery or Mr. l i

3 Goldberg, they ask? They know, of course, that it is Mr. Goldberg since, l as Applicants acknowledge, Mr. Ardery " withdrew as counsel for the City

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by letter dated April 6,1973". [ Applicants' tendered Supplemental Answer, l

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I Applicants next contend that Mr. Vogler, Staff Counsel, did not extend 4

the City of Cleveland's time for submission to him of the City's letter of

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April 19, 1973 to Mr. Vogler. Applicants assert that Mr. Vogler had denied

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the request for an extension of time and that this denial was confirmed by Staff Counsel Mr. Verdisco in a conversation with Mr. Henry, Counsel for Toledo Edison. We cannot vouch for the accuracy of the statements attributed to Mr. V ardisco. We do know, however, that Mr. Vogler did not deny the City of Cleveland's request for additional time within which to submit its letter. Mr. Vogler advised Mr. Hart of the City's Law Department, when he, by telephone, requested additional time, that he could "take as much time as needed", but that Mr. Vogler could not wait for the City's letter

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before submitting Staff's recommendations to the Commission. When Mr.

Goldberg entered the case, Mr. Vogler confirmed this situation to Mr.

Croldbe rg. All this is, of course, irrelevant to the central issue in the case, but if the tendered Supplemental Answer were to be accepted by the Commission J

for filing, the record should be set straight.

Finally, Applicants feign confusion with respect to the City of Cleveland's request for relief. But here again there is no confusion. The I

City of Cleveland has clearly stated that it seeks to participate in the Davis-Besse nuclear plant to the extent of 200 MW of its proposed capacity either through ownership participation or purchase of unit power. The City of Cleveland has also stated clearly that in light of the recentiv filed application for the Perry Plant, it would accept 50 MW participation in Davis-Besse provided it could secure participation in the Perry Plant through ownership

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participation or purchase of unit power of 150 MW. The City of Cleveland has further stated that if there were a bar to ownership participation by reason of a State constitutional provision, ownership participation is avail-able nonetheless through American Municipal Power-Ohio (AMP-0), a non-profit organization (of which the City of Cleveland is a member) that is authorized to act on behalf of its member utilities. There is, therefore, in the words of Applicants "a concrete request from the City of Cleveland" (tendered Supplemental Answer, p. 3) for participation in Davis-Besse Nuclear Plant capacity.

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The constant refrain of the Applicants for a specific proposal by the City of Cleveland must be recognized for what it is - a tactic. Applicants thereby would convey the impression that they are prepared to open Davis-

Besse to participation to the City of Cleveland's Municipal Electric System, if only a specific proposal therefor were submitted. But, there is never l forthcoming from the Applicants any statement, definitive or otherwise, that the City of Cleveland or other non-CAPCO members are welcome to participate in the nuclear units. Nor is there ever any suggestion by the

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Applicants of the terms on which participation would be offered although they know full well what is required for effective participation and the terms

! on which such participation is available to the members of CAPCO. What

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we do find is that Applicants present only a negative face to participation l and raise only objections to participation by the City of Cleveland. Perhaps,

! this is not difficult to understand since, as pointed out in Mr. Goldberg's

letter to Mr. Vogler of April 19, 1973, it is Cleveland Electric Illuminating f

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1 Company's (CEI) avowed intention to obliterate the City's municipal electric system, with which CEI competes, from the face of the earth. Participation by the City of Cleveland in the nuclear units would not be compatible there-

with.

Recently, the City of Cleveland requested a meeting with officials of CEI to discuss the City's request for participation in the Perry Plant and membership in CAPCO. CEI's President has advised that the City of Cleveland arrange to meet with Mr. Howley, General Counsel and Vice President of CEI, to discuss these matters. At the same time, the City was put on notice by the President of CEI that "the CAPCO arrangements provide for joint ownership by five private corporations, making up the CAPCO group, of large generating units and transmission lines. Similarly, ownership to the Perry Plant is by the five private corporations, as tenants in common".

! Nonetheless, the City of Cleveland intends to meet with Mr. Howley to pursue the matter of membership in CAPCO and participation in Perry

! while at the same time, as in the Davis-Besse case, presenting its case to this Commission in order that the interests of the City are fully heard and I

protected.

, In preparation for the meeting and the submission of the City's pro-posal to Mr. Howley, he was requested to furnish the City copies of the CAPCO Basic Generating Capacity Agreement and CAPCO Basic Operating Agreement referred to in the September 14, 1967 CAPCO Transmission Facilities Agreement. The City was advised by Mr. Howley on May 3, 1973

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that the agreements "have not been executed at the present time by the CAPCO parties, but are still being negotiated". In the face of the fact that CAPCO has been operating since 1967 without consummation of specific agreements, Applicants' complaint that it has not yet received a specific proposal for participation in Davis-Besse comes with ill grace.

WHEREFORE, for each and all of the reasons aforestated, the Motion of Applicants for Leave to file a Supplemental Answer should be denied.

Respectfully submitted, i

CITY OF CLEVELAND, OHIO

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By k , , b ~ vif A fu n -

Reuben Goldberg Its Attorney

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Reuben Goldberg

! 1700 Pennsylvania Avenue, NW 2

Washington, DC 20006 I

Tel. : (202) 659-2333 Judge Herbert R. Whiting Robert D. Hart City Hall Cleveland, Ohio 44114 Tel. : (216) 694-2000 i Attorneys for City of Cleveland j May 11, 1973

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UNITED STATES OF AMERICA BEFORE THE ATOMIC ENERGY COMMISSION In the Matter of )

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THE TOLEDO EDISON COMPANY and )

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THE CLEVELAND ELECTRIC ) Docket No. 50-346A 1 ILLUMINATING COMPANY )

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Davis-Besse Nuclear Power Station )

Certificate of Service 4

' I hereby certify that copies of the foregoing Response of City of Cleveland To Motion Of Applicants For Leave To File Supplemental Answer were served this lith day of May, 1973 upon the following persons by depositing a copy thereof in the Un.: -d States Mail, with first class or air mail postage affixed:

Benjamin H. Vogler, Esq. Joseph J. Saunders, Esq.

Antitrust Counsel for Regulatory Staff Antitrust Division U. S. Atomic Energy Commission Department of Justice Washington, DC 20545 Washington, DC 20530 Atomic Safety and Licensing Board Lesslie Henry, Esq.

Panel Fuller, Henry, Hodge & Snyder

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U. S. Atomic Energy Commission 300 Madison Avenue i Washington, DC 20545 Toledo, Ohio 43604 Mr. Frank W. Karas, Chief Donald H. Hauser, Esq.

l Managing Attorney, The Cleveland Public Proceedings Branch Office of the Secretary Electric Illuminating Company U. S. Atomic Energy Commission 55 Public Square Washington, DC 20545 Cleveland, Ohio 44101 Bruce W. Churchill, Esq.

Shaw, Pittman, Potts & Trowbridge 910 - 17th Street, NW ,q Washington, DC 20006 / (,

Reuben Goldberg [

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