ML19329D121

Responds in Opposition to Applicants' 780201 Motion for Extension of Time to 780227 for Filing Supplemental Briefs. Extension Would Allow Parties Leave to File Briefs Discussing Applicability of CPC Decision to Current Case

ML19329D121
Person / Time
Site:	Davis Besse, Perry, Midland
Issue date:	02/02/1978
From:	Goldberg R, Hjelmfelt D CLEVELAND, OH, GOLDBERG, FIELDMAN & HJELMFELT
To:	NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP)
References
NUDOCS 8002250828
Download: ML19329D121 (8)

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, UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In the Matter of )

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The Toledo Edison Company and ) Docket Nos.' 0-346A The Cleveland Electric Illuminating) 50-500A Company ) 50-501A (Davis-Besse Nuclear Power Station,)

Units 1, 2 and 3) )

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The Cleveland Electric Illuminating) Docket Nos. 50-440A Company, et al. ) 50-441A (Perry Nuclear Power Plant, )

Units 1 and 2) )

ANSWER OF THE CITY OF

. CLEVELAND IN OPPOSITION TO MOTION OF APPLICANTS FOR AN ENLARG2 MENT OF TIME IN WHICH TO FILE SUPPLEMENTAL ! 'EFS f

The Licensing Board's initial decision in these pro-ceedings was issued January 6, 1977. By September 20, 1977 the matter had been fully briefed and argued before the Appeal Board.

On December 30, 1977 the Appeal Board issued its first decision in a full scale antitrust review proceeding. Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-452, 6 NRC . No party to this proceeding requested leave to file supplemental briefs discussing the impact of Consumers Power on these pro-ceedings. Nevertheless, the Appeal Board, sua sponte, on Janu-ary 12, 1978, issued its order granting the parties leave to file supplemental briefs confined to a discussion of the applicability to this case of Consumers Power. On February 1, 1978, Appli-8 0 02 250 M8 m

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cants filed a motion requesting an extension of time until February 27, 1978, for filing supplemental briefs. City of Cleveland (City) opposes Applicants request for an extension of time in which to file supplemental briefs.

In its decision the Licensing Board found Applicants guilty of numerous anticompetitive acts amounting to violations of the antitrust laws. To obviate and rectify the anticompet-itive situation found to exist the Licensing Board ordered the attachment of conditions to the licenses for the Davis-Besse and Perry units. Although those license conditions are now in effect, much uncertainty surrounds them pending a final decision in this case. This uncertainty renders it difficult if not im-possible for any small utility to take advantage of the power supply alternatives made available by the license conditions.

For example, negotiations with regard to pool membership or participation in nuclear units are hampered by uncertainty as to the final outcome. Moreover, it would be virtually impossi-ble to sell securities to finance participation in the Davis-Besse and Perry units pending a final resolution of the case.

CEI has recently filed with the Federal Energy Regu-latory Commission a wheeling schedule which clearly violates condition 3 of the license conditions. City has requested NRC to commence enforcement proceedings. Moreover, the wheeling <

l schedule, by its terms, would terminate immediately upon issu-ance of a decision in this case by the Appeal Board no matter what the decision may be. In the light of the termination pro- I vision, the Cities of Cleveland and Painsville would act at l

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l their peril in contracting for a block of power which could I only be utilized if wheeling is available for a certain known period of time.

The City is aware of two civil antitrust actions pending in United States District Courts against the Appli-cants: that of the City now scheduled for trial March 13, 1978, and one recently filed by the Cities of Ellwood City and Grove City against Pennsylvania Power Company. Many of the same fact issues appear in both these proceedings and the pending civil actions. A final decision in the NRC proceeding will facili-tate resolution of the civil a ctions, thereby resulting a saving of time and expense. Thus, there is a strong public interest in an early decision by the Appeal Board in this case.

Applicants have failed to show good cause for an ex-tension of time. The allegations in support of the motion are vague and general. There has been no showing of any manner in which weather conditions in Ohio could impact upon the prepara-tion and filing of Applicants' brief. Weather has in no way impeded preparation of City's brief.

The fact that counsel for Applicants had other triefs to be filed in February is not good cause to delay this pro-ceeding. Applicants marshalled a dozen attorneys to prepare their init:.al brief on exceptions. Surely one of the twelve has had time to read the Consumers Power decision and analyze ]

its impact on this case.

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WHEREFORE, the City of Cleveland requests that the Applicants motion be denied.

Respectfully submitted, YC Reuben Goldb g

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+e David C. Hjelmfelt Goldberg, Fieldman & Hjelmfelt, P.C.

1700 Pennsylvania Avenue, N.W.

Washington, D.C. 20006 Telephone (202) 393-2444 Jack M. Schulman Law Director Robert D. Hart First Assistant Director of Law City of Cleveland 213 City Hall Cleveland, Ohio 44114 Telephone (216) 694-2737 Attorneys for City of Cleveland, Ohio February 2, 1978

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I CERTIFICATE OF SERVICE I hereby certify that I have served a copy of the foregoing " Answer of the City of Cleveland in Opposition to Motion of Applicants for an Enlargement of Time in Which to File Supplemental Briefs" on the parties listed on the attach-ment hereto, this 2nd day of February, 1978, by depositing copies thereof in the United States mail, first class postage prepaid.

i DAVID C.gflJELb}TELT Attachment b

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N ATTACHMENT Christopher R. Schraff, Esq.

Douglas V. Rigler, Esq. Assistant Attorney General Foley, Lardner, Hollabaugh and Jacobs Environmental Law Section 815 Connecticut Avenue, N. W. 361 East Broad Street, 8th floor Washington, D. C. 20006 Columbus, Ohio 43215 Alan S. Rosenthal, Chairman Ivan W. Smith, Esq.

Atomic Safety and Licensing Appeal Board John M. Fryslak, Esq.

U. S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Washington, D. C. 20555 U. S. Nuclear Regulatory Commission Washington . D. C. 20555 Richard S. Salzman Jerome E. Sharfman Andrew L. Goodhope, Esq.

Atomic Safety and Licensing Appeal Board 3320 Estelle Terrace U.S. Nuclear Regulatory Commission Wheaton, Maryland 20906 Washington, D. C. 20555 Robert M. Lazo, Esq. , Chairman Howard K. Shapar, Esq. Atomic Safety and Licensing Board Panel Executive Legal Director U.S. Nuclear Regulato y Commission U. S. Nuclear Regulatory Commission Washington, D. C. 20355 Washington', D. C. 20555 Daniel M. Head, Esq. , Member Mr. Frank W. Karas, Chief Atomic Safety and Licensing Board Panel Public Proceedings Branch U. S. Nuclear Regulatory Commission Office of the Secretary Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Atomic Safety and Licensing Appeal Board Panel Abraham Braitman, Esq. U.S. Nuclear Regulatory Commission Office of Antitrust and Indemnity Washington, D. C. 20155 U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Joseph Rutberg, Esq.

Jack R. Goldberg, Esq.

Frank R. Clokey, Esq. Office of the Executive Legal Director Special Assistant Attorney General U.S. Nuclear Regulatory Commission Towne House Apartments, Room 219 Washington, D. C. 20555 Harrisburg, Pennsylvania 17105 Benjamin H. Vogler, Esq.

Edward A. Matto, Esq. Roy P. Le ssy, Jr. , E sq.

Assistant Attorney General Office of the General Counsel Chief, Antitrust Section Regulation 30 East Broad Street, 15th floor U.S. Nuclear Regulatory Commission Columbus, Ohio 437,15 Washington, D. C. 20555

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- i ATTACHMENT (continued) i David McNeill Olds, Esq.

Melvin G. Berger, E sq. William S. Lerach, Esq.

I Joseph J. Saunders, Esq. Reed, Smith, Shaw & McClay David A. Leckie, Esq. Post Office Box 2009 l Janet R. Urban, Esq. Pittsburgh, Pennsylvania 15230 l Antitrust Division Department of Justice Terrence H. Benbow, Esq.

i Post Office Box 7513 Steven B. Peri, Esq.

Washington, D. C. 20044 Winthrop, Stimson, Putnam & Roberts

' 40 TVall Street Karen H. Adkins, Esq. New York, New York. 10005 i Richard M. Firestone, Esq.

Assistant Attorneys General Alan P. Buchmann, Esq.

Antitrust Section Squire, Sanders & Dempsey 30 East Broad Street, 15th floor 1800 Union Commerce Building 2 Columbus, Ohio 43215 Cleveland, Ohio 44115 Russell J. Spetrino, Esq. Leslie Henry, Esq.

Thomas A. Kayuha, Esq. Michael M. Briley, Esq.

Ohio Edison Company Roger P. Klee, Esq.

47 North Main Street Fuller, Henry, Hodge & Snyder Post Office Box 2088 Akron, Ohio 44308 Toledo, Ohio 43604 John Lansdale, Jr. , Esq.

, Cox, Langford & Brown James R. Edgerly, Esq. ,

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21 Dupont Circle, N. W. Secretary and General Counsel Washington, D. C. 20036 Pennsylvania Power Company i

One East Washington Street i Richard A. Miller, Esq. New Castle, Pennsylvania 16103 Vice President and General Counsel The Cleveland Electric nluminating Co. Donald H. Haurer, Esq.

, Post Office Box 5000 Victor A. Greenslade, Jr. , Esq.

Cleveland, Ohio 44101 The Cleveland Electric Hluminating Co.

Post Office Box 5000 Gerald Charnoff, Esq. Cleveland, Ohio 44101 Wm. Bradford Reynolds, Esq.

Robert E. Zahler, Esq. Thomas J. Munsch, Jr. , Esq.

- Jay H. Berstein, Esq. General Attorney Shaw, Pittman, Potts & Trowbridge Duquesne Light Company 1800 M Street, N. W. 435 Sixth Avenue 2

Washington, D. C. 20036 Pittsburgh, Pennsylvania 15219 Atomic Safety and Licensing Board Panel Docketing and Service Section U.S. Nuclear Regulatory Commission Office of the Secretary

- Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Washington, D. C. 20555

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ATTACHMENT (continued)

Joseph A. Rieser, Esq.

Reed, Smith, Shaw & McClay 1150 Conneeticut Avenue, N. W.

Washington, D. C. 20036 John C. Engle, President AMP-O, Inc.

20 High Street Hamilton, Ohio 45012 i Michael R. Gallagher, Esq.

j 630 Bulk 16y Building 1501 Euclid Cleveland, Ohio 44115 J

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