ML20082D441

Supple by American Municipal Power-Ohio,Inc to Petition for Leave to Intervene.* Facility Requests Addl Time to Mod Suppl.W/Certificate of Svc

ML20082D441
Person / Time
Site:	Davis Besse, Perry
Issue date:	07/10/1991
From:	Straus D AMERICAN MUNICIPAL POWER-OHIO, INC., SPIEGEL & MCDIARMID
To:	Atomic Safety and Licensing Board Panel
References
CON-#391-11969 A, NUDOCS 9107240083
Download: ML20082D441 (6)

Text

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' In the Matter-of )  ;

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OHI0 EDISON COMPANY ) I

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(Perry Nuclear Power Plant, ) l Unit 1) and ) Docket Nos. 50-346A l

) 50-440A CLEVELAND ~ ELECTRIC ) 1 l ILLUMINATING COMPANY, et al. ) ,

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i (Perry Nuclear Power Plant, )- Denial of Applications Unit 1, and Davis-Besse l:

' ) To Cuspend Antitrust '

Nuclear Power Station, ) License Conditions.

Unit'.1) )

SUPPLEMENT BY AMERICAN MUNICIPAL POWER-OHIO, INC.,

TO PETITION FOR LEAVE TO INTERVENE l

Pursuant to Section 2.714 (b) (1) of the Commission's

- Rules of Practice, which requires intervenors to present "a.-list of contentions which petitioner ceeks to have litigated in the hearing," American Municipal Power-Ohio,-Inc.-(" AMP-Ohio"), which petitioned for-leave to intervene herein on July 3,-1991, hereby-states as follows:

AMP-Ohio opposed the Applicants' requests for suspension L - of their antitrust license condition at every step of this proceeding, and intends to continue to do so. Accordingly, AMP-Ohio does not itself seek to have any contentions litigated, and

(' 'we fully agree with the' City of Cleveland that'no hearing in this i

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proceeding is either appropriate or permitted. However, if the Board rules otherwise, and if a hearing is to be held, AMP-Ohio will undoubtedly seek to challenge certain factual and legal .

assertions to be made by the Applicants. Specifically, AMP-Ohio will most likely s eek to respond to any claims made by the Applicants that the couts of nuclear energy, when appropriately measured, are not lower than the costs of other forms of energy and to any conclusions the Applicants may wish to draw from what appears to be their contrary view of the relative costs of various types of electric generation. Similarly, AMP-Ohio may well wish to contest any factual or legal arguments made by the

- Applicants concerning congressional activity related to this proceeding, as set forth in the Ohio Edison Request For A Hearing.

In addition, again only if a hearing is held at the request of the Applicants, AMP-Ohio may wish to demonstrate for the record continuing anticompetitive activity and license o

condition violations by one or more-of the Applicants. To protect AMP-Ohio's right to do so, we provide-the-following information in specific compliance with Section 2.714 (b) (2) of the Commission's Mules.

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. Succinctly stated, the issue referred to above is whether or not the-Applicants, or any of them, are violating the license conditions or otherwise creating or maintaining a situation inconsistent with antitrust laws. The bases of AMP-Ohio's belief that this question must be answered in the in-- r . . - . - , ,,,.,.,,,,,,.m.., ,,,.,_,,,..,,m.,. , , , , , .,,,y,,.,,m.., ,,y..,,, y yy,gv.,.m,--,w,, gyyp e

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affirmative are the direct knowledge of AMP-Ohio personnel obtained in the course of their direct dealings with the Applicants. A prominent, specific example of such activity is Ohio Edison's refusal to provide -- or even to discuss in detail

-- second delivery points for the City of Cuyahoga Falls and the Village of Hudson, Ohio. Not only were these delivery points required by license condition 2, which provides that the Applicants must give " interconnections upon reasonable terms and conditions" to any other entity in the CCCT (10 CFR 296 (1979)),

but Ohio Edison had a contractual obligation, as well, not to unreasonably refuse a request for additional delivery points.

This dispute was arbitrated, and the arbitrators ruled on July 13, 1990, by a 2-0 vote (with Ohio F31 son's party-appointed arbitrator not voting), that Ohio Edison had breached its contract. Ohio Edison's refusal to provide a delivery point, especially where required by contract to do so, represents an a fortiori violation of license condition no. 2.

The above discussion of potential hearing issues as to which AMP-Ohio would wish to participate is provided as required by Section 2.714 (b) (1) of the Rules, but it appears that those l

rules are not particularly well suited to this type of proceeding, in whict if a hearing is to be neld, it will be held at the request of the Applicants themselves. Therefore, depending upon future activities in this docket -- including

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whatever discussions are held at the prehearing conference on July 25, 1991 -- AMP-Ohio requests, in advance, whatever

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E additional time is deemed appropriate for modifying this supplement as such modification may appear necessary following that conference.

Respectfully submitted, Of Counsel: / IL.Sl(_ .v '

<lu.h John Bentine, Esq. b6vid'R. Straus Chester, lloffman, Willcox

& Saxbe Attorney for American 17 S. High Street Municipal Power-Ohio, Inc.

Columbus, Ohio 43215 (614) 221-4000 SPIEGEL i McDIARMID 1350 New York Avenue, N.W.

Suite 1100 Washing' con , D.C. 20005-4798 (202)879=4000 July 10, 1991 I

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Mk $ i g DOC 4ETED , l UNITED STATES OF AMERICA 2 -

NUCLEAR REGULATORY COMMISSION -

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00CKETWG & f5 SUWCE BRANCH p BEFORE THE ATOMIC SAFETY AND LICENSING BOAR ;% SE0YWRC ,(

f, In the Matter of )

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OHIO EDISON COMPANY ) l

)

(Perry Nuclear Power Plant, )

Unit 1) and ) Docket Nos. 50-346A

) 50-440A )

CLEVELAND ELECTRIC ) l ILLUMINATING COMPANY, et al. )

)

(Perry Nuclear Power Plant, ) Denial of Applications Unit 1, and Davis-Besse ) To Suspend Antitrust Nuclear Power Station, ) License Conditions Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that on this 10th day of July, 1991, a copy of the foregoing Supplement By American Municipal Power-Ohio, Inc. To Petition For Leave to Intervene was served upon each of the following by first-class mail:

Marshall E. Miller, Esq. John H. Frye, Esq.

Chairman Administrative Judge 1920 South Creek Boulevard Atomic Safety and Licensing Spruce Creek Fly-In Board Daytona Beach, FL 32124 U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Charles Bechhoefer, Esq.

Administrative Judge Joseph Rutberg, Esq.

Atomic Safety and Licensing Sherwin E. Turk, Esq.

Board Office of the General Counsel U.S.-Nuclear Regulatory Comm. U.S. Nuclear Regulatory Comm.

Washington, D.C. 20555 Washingtori, D.C. 20555

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Mark C. Schechter Antitrust Division

-Department of Justice Judiciary Center Building 555 Fourth Street, N.W.

Washington, D.C. 20001 James P. Murphy, Esq.

Squire, Sanders & Dempsey 1201 Pennsylvania Avenue, N.W.

P.O. Box 407 Washington, D.C. 20044

'D. Biard MacGuineas, Esq.

Volpe, Boskey and Lyons 918 Sixteenth Street, N.W.

Washington, D.C. 20006 Craig S. Miller June W. Weiner.

William M. Ondrey Gruber City Hall, Room 106 601 Lakeside Avenue Cleveland, Ohio 44115 Reuben Goldberg, Esq.

Channing.D. Strother, Jr. , Esq.

Goldberg, Fieldman & Letham 1100 Fifteenth Street, N.W.

Washington,-D.C. 20005 l-

' Gerald Charnoff, Esq.

Shaw, Pittman, Potts &

l= Trowbridge 2300 N. Street, N.W.

l Washington, D.C. 20037 l D&vid R. Straus '

l Spiegel & McDiarmid 1350 New York Avenue, N.W.

Suite 1100 Washington, D.C. 20005-4798

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