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UNITED STATES OF AMERICANUCLEAR REGULATORY COMMISSION

Before the Atomic Safety and Licensing Board

In the Matter of ))

The Toledo Edison Company and ) Docket Nos.bO _dThe Cleveland Electric Illuminating ) 50-500A

Company ) 50-501A4

(Davis-Besse Nuclear Power Station, )Units 1, 2 and 3) )

)The Cleveland Electric Illuminating ) Docket Nos. 50-440A

Company, et al. ) 50-441A(Ferry Nuclear Power Plant, )

Units 1 and 2) )

ANSWER OF THE CITY OF CLEVELAND, OHIO,TO APPLICANTS' REFILED MOTION FOR

SUMMARY DISPOSITION

Pursuant to Section 2. 749 of the Commission's Rules of Practice

and the Board's statements during the September la,1975, Prehearing

Conference, the City of Cleveland (Cleveland) files this answer to Applicants'

Refiled Motion for Summary Disposition.

Cleveland is h,ndicapped in its ability to answer Applicants' motion

in that it is not clear what Applicants are seeking. Because Applicants'

motion is argued in conclusory terms and refers to prior motions for

summary disposition relating to specific nexus arguments raised only by

AMP-O which is no longer a party, it is presently unclear what Applicants

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are arguing with respect to Cleveland's contentions.1/ Indeed, the state-

ment of material facts and affidavits incorporated by reference by Appli-

cants relate solely to contentions raised by AMP-O and have nothing what-

soever to do with any issues raised by Cleveland. 2/

Applicants make it very plain that the present motion is merely a

renewal of their original motion of August 15, 1974. On October 21, 1974, 3/

Applicants characterized their original motion as calling upon the Board,

for the first time,

to determine whether there exists a genuine issue ofmaterial fact regarding the blanket assertions in AMP-Ohio's pleadings that installation of Perry Nos. 1and2 will (a) eliminate the present capability of the CEIsystem to accept and transmit 30 mw of PASNY powerto the City of Cleveland's Municipal Electric Lightand Power (MELP) plant, (b) disrupt the pattern ofpower flows on the CEI system (assuming after instal. ,

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lation, a temporary loss of the Perry generating ortransmission facilities) so as to create an overloadcondition on the facilities handling the PASNY deliv-eries, or (c) cause an unstable situation on the CEIsystem which would lead to an interruption in thetransmission of 30 mw of PASNY power.

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Renewing the motion at this time when AMP-O is no longer a party

to these proceedings makes no sense. Neither Cleveland, the NRC Staff,

nor the Department of Justice has argued that the unlawful refusal to wheel;

1,/ Applicants' prior motions for summary. disposition have been repeatedlydenied.

2/ The attached document obtained from CEI during discovery demonstratesthat CEI at one time did take the position that it lacked transmissioncapacity to transmit the PASNY power. Accordingly, Mr. Davidson'saffidavit is at best disingenuous. I

3/ Applicants' Reply to the Several Memoranda Filed by the Other Partiesin Opposition to Applicants' Motion for Summary Disposition, at page 5.See also Applicants' Proposed Order Granting Summary Disposition.

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PASNY power was relevant to this case for the reasons addressed by the

motion for summary disposition. 4/ Applicants beat a dead horse.

Cleveland's statement of the relevance of the unlawful refusal to

wheel PASNY power is fully sot forth in its Answer in Opposition to Appli-

cants' Motion for Summary Disposition, filed with the Board on October 10,

1974. Cleveland's position with respect to the relevance of the unlawful

refusal to wheel was also described in its September 5,1975, statement

of the nature of its case. Applicants' separate short and concise statement

of material facts as to which Applicants contend that there is no genuine

dispute is completely irrelevant to the contentions made by Cleveland. For

that reason alone, Applicants' motion should be denied for failure to comply

in any realistic fashion with Section 2. 749 of the Commission's Rules of

Practice. Even if the statement of material facts and affidavit were

relevant, they fail to address the effect of the installation of Davis-Besse

Units 2 and 3. Cleveland, of course, is a party to Davis-Besse 2 and 3

and has raised the same issue with regard to the unlawful refusal to wheel

PASNY power in that proceeding. !1

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Despite Applicants' repeated assertions that the parties have raised '

the unlawful refusal to wheel PASNY power as an isolated incident, such is

clearly not the case. Cleveland does believe that CEI's unlawtal refusal to

wheel PASNY power is by itself a situation inconsistent with the antitrust

laws and does alone have the requisite ne:cus to the Applicants' activities

4/ Nor does Cleveland deny that AMP-O's contentions are valid, especiallyin light of the CEI document attached hereto.

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under the sought for license to require conditions to be placed upon a license

should such a license be issued. However, in th's case, the unlawful refusal

to wheel is not an isolated incident. Attempts by Applicants to isolate the

un1>~ful refusal to wheel are simply a sham.

Inasmuch as Cleveland, NRC Staff and the Department of Justice

have raised a number of matters which, taken together, prove the existence

of a situation inconsistent with the antitrust laws, they are not required to

prove that each constituent part of that situation, taken in isolation, would

have the required nexus. This Board has already ruled that

the nexus which the Commission referred to in itsWaterford opinion is the connection between a " situ-ation" inconsistent with the antitrust laws and "acti-vities" under the license. 1/

The fact that many of the activities of Applicants which make up the

" situation" would, if they existed in isolation, be by themselves " situations"

is no justification for treating them in isolation now. b/

In fact, Applicants n1 awful refusal to wheel PASNY power to

Cleveland is an attempt by CEI to maximize the competitive advantage it

' will gain through its monopoly access to nuclear power from Ferry and

Davis -B e s s e. This alone establishes a clear nexus between the unlawful

refusal to wheel and the activities under the license.

Applicants attempt to argue in their renewed motion that a grant of

the motion would in some manner narrow the present evidentiary hearing.

1/ Ruling of the Board with Respect to Applicants' Proposal for Expeditingthe Antitrust Hearing Process.

6/ Generally relevant to Applicants' motion is the Appeal Board's decisionin Wolf Creek, ALAB-279.

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Yet Applicants admit, at page 4 of their motion, that evidence of the unlaw-

ful refusal to wheel would still be admissible to prove a situation inconsis-

tent with the antitrust laws. Since precisely the same evidence is to be

admitted, it is difficult to understand how the evidentiary hearing would be

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narrowed.

The uncontestable fact remains that CEI will not wheel power for

Cleveland if doing so will improve Cleveland's ability to cornpete. Although

CEI's unlawful refusal to wheel PASNY power is by itself inconsistent with

the antitrust laws, it is also evidence of CEI's more general refusal to

wheel power for Cleveland.

Applicants' Renewed Motion for Summary Disposition fails to

address the nexus contentions of Cleveland, NRC Staff and the Department

of Justice. It addresses contentions mooted by AMP-O's withdrawal from

the proceedinge It is confusing and ambiguous and can only divert the

parties' time and energy at a time when they are laboring to prevent

further delays in the hearing schedule. Given its irrelevancy to any party's

contentions, it boarders on .he frivolous.

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WHEREFORE, the City of Cleveland prays that Applicants' motion

for summary disposition be denied and that they be directed not to file the

same motion yet again in this proceeding.

Respectfully submitted,

bebM /N/

$~kTfgp/A+

Reuben GoldbeDavid C. HjelmfeltGoldberg, Fieldman & Hjelmfelt1700 Pennsylvania Avenue, N. W.Washington, D. C. 20006Telephone (202) 659-2333

i Attorneys for City of Cleveland, Ohio

James B. DavisDirector of Law

Robert D. HartFirst Assistant Director of Law

City of ClevelandCity Hall, Room 213Cleveland, Ohio 44114

September 26, 1975

Attachment

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':he struc.cli 6 CicycLend limicipal Light Flant is c11rsing t3 a otrav in en

attc=pt to keep its head cbove vnter, ace = ding to Lee C. IIcvicy, l'11"-4"nti g

Cc:p:ny vice precident and General cc= col.

The strav the 1in:y plcnt is clirusi 3 to is the hope that it can inport*

hydroelectric power fras Ucv York Stato. According to FAynend 111dukis, city

utilitics director, 30 =cc:vatts of pover, or cbcut a third of the plant's

Potcatial, can bo purchtcod frem the poucr Authority of the Ctate of k!cu York (p/E'Y).

'% overuhn1-*"; barriers atend in the U:y of thic hcps," caid IIculef. '71rct

they =nst get the pcuer, cnd cccand, they =n:t to Oblo to trcnsnit it. !

"It is a vell4.:notn fact that cento scocr chcrtcscs cra c:Uccted en the cast

cccat,:,mrticula-ly in the event cf a ocvere vinter. 15ct cact ecc3t C = crating

plants re27 cn oil as a fuel ccurce, cnd cil is in critical supply. Pablic power

cc=p:nics in Veie.=t end penn '1vania cro ec:.;ating with Clevc1?vd for the pcuor/ m'~

titich ::ifat be cvM'+10 frns tha p!EiY scol. With tho chundanco of coal in Chio, -,

it is hichly ur'4'*?Iy that Clwelcud uculd trin cut ever the castern states.

"1W/ vculd e:Geet to wheel the power et:r The Illt=inatins Cc :;c y's inter ..

ecenceted tr==ic:ics 14"ce. This is 1:3o:31513 at this ti=c. 1*ith the c c cy

chcrtcso, it is i=perativa that to keep thcce lines cpan for the use of theseentual ec::. ccnco

c=penies with then to her/---2.W- 1:-~l ecreecnts. This is for the

protectica of cur oss cuct =c 3.

"O2 ring tha p0st coveral ajcars, va herc demo cvor;,@.ing 30cciblo to cosict

the Ihmicipal Li ht IGcnt, often cupplying for techs at a tino up to 30 percent

of its reclirc. cats, etcut the encunt :M/ teuld ::ccive fres L*cv York. 1-fe trill

continue this cccict:nce in cry tny rc:3:=blo.

"Dat va c=nct jacp:rdi:2 cur chility to curly power to cur cin cust=:rc,

in order to supply :in:7 cus'cencrs. t'a c hply c = ot relcaca the uco of cur

trc: uric ics lines for the uno of the r=icipal 71:nt," Ecul'y c= sh: iccd.. |

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CERTIFICATE OF SERVICE

I hereby certify that service of the foregoing Answer of the City of

Cleveland, Ohio, to Applicants' Refiled Motion for Summary Disposition

has been made on the following parties listed on the attachment hereto this,

26th day of September,1975, by depositing copies thereof in the United

States mail, first class, postage prepaid,

f dI!- bbh)W ~

David C. HJ4Lmfelt

Attach.ncnt

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ATTACHMENT

Atomic Safety and Licensing Board Jon T. Brown, Esq.

U. S. Nuclear Regulatory Commission Duncan, Brown, Weinberg & Palmer

Washington, D. C. 20555 Suite 7771700 Pennsylvar.ia Avenue, N. W.

Mr. Frank W. Karas, Chief Washington, D. C. 20006Public Proceedings BranchOffice of the Secretary John C. Engle, President

U. S. Nuclear Regulatney Commission AMP-O, Inc. .

".Vashington, D. C. i.0555 Municipal Building.i0 High Street

Douglas V. Rigler, Esq. Chairman Hamilton, Chio 45012

Atomic Safety and Licensing BoardFoley, Lardner, Hollabaugh Melvin C. Berger, Esq.

and Jacobs Joseph J. Saunders, Esq.Schanin Building Steven Charno, Esq.

815 Connecticut Avenue, N. W. Antitrust Division

Washington, D. C. 20006 Department of JusticePost Office Box 7513

Zvan W. Smith, Esq. Washington, D. C. 20044Atomic Safety and Licensing Board

Panet William T. Clabault, Esq,

U. S. Nuclear Regulatory Commission David A. Le ckie, Esq.

Washington, D. C. 20555 Department of JusticePost Office Box 7513

John M. Frysiak, Esq. Washington, D. C. 20044Atomic Safety and Licensing BoardU. S. Nucle - Regulatory Commis sion Gerald Charnoff, Esq.

Washington, D. C. 20555 Shaw, Pittman, Potts & Trowbridge910 17th Street, N. W.

Benjamin H. Vogler, Esq. Washington, D. C. 20006Joseph Rutherg, Esq.Office of the General Counsel Frank R. Clokey, Esq.

Regulation Special Assistant Attorney GeneralU. S. Nuclear. Regulatory Commission Room 219 - Towne House Apartments

Washington, D. C. 20555 Harrisburg, Pennsylvania 17105

Robert J. Verdisco, Esq. Thomas J. Muns ch, Jr. , Esq.

Roy P. Les sy, Jr. , Esq. General Attorney

Office of the General Counsel Duquesne Light CompanyRe gulation 435 Sixth AvenueU. S. Nuclear Regulatory Commission Pittsburgh, Pennsyh ania 15219Washington, D. C. 20555

David McNeil Olds, Esq.

Abraham Braitman, Esq. _ John McN. Cramer, Esq.Office of Antitrust and Indemnity Reed, Smith, Shaw & McClay

U. S. Nuclear Regulatory Commis sion Post Office Box 2009Washington, D. C. 20555 Pittsburgh, Pennsylvania 15230

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Pags 2 ATTACHMENT (Continusd)

John R. White, Esq. Leslie Henry, Esq.

Thomas A. Kayuha, Esq. Fuller, Henry, Hodge & SnyderOhio Edison Company 300 Madison Avenue47 North Main Street Toledo, Ohio 43604

Akron, Ohio 44308John Lansdale, Jr. , Esq.

Pennsylvania Power Company Cox, Langfo rd & Brown

1 East Washington Street 21 Dupont Circle, N. W..

New Castle, Pennsylvania 16103 Washington, D. C. 20036,

Lee C. Howley, Esq. Donald H. Hauser, Esq.

Vice President and General Counsel Corporate SolicitorThe Cleveland Electric Illuminating Co. The Cleveland Electric Illuminating Co.

Post Office Box 5000 Post Office Box 5000Cleveland, Ohio 44101 Cleveland, Chio 44101

Alan S. Rosenthal, Chairman Richard S. Salzman, Chairman

Atomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Bd.U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulatory Commis sionWashington, D. C. 20555 Washington, D. C. 20555

Dr. John H. Buck Michael C. FarrarAtomic Safety and Licensing Appeals Board Atomic Safety and Lic, asing Appeals Bd.U. S. Nuclear Regulatory Commission U.S. Nuclear Regulatcry Commission

Washington, D. C. 20555 Was hingto n, D. C. 20555

Dr. Lawrence K. Quarles Dr. W. Reed JohnsonAtomic Safety and Licensing Appeals Board Atomic Safety and Licensing Appeals Ed.U. S. Nuclear Regulatory Commis sion U. S. Nuclear Regulato ry Commis sionWashington, D. C. 20555 Was hington, D. C. 20555

Edward A. Matto Karen H. AdkinsAssistant Attorney General Richard M. FirestoneChief, Antitrust Section Assistant Attorneys General30 East B road Street, 15th floor Antitrust Section

Columbu s , Ohio 43215 30 East Broad Street, 15th floor

Columbus , Chio 43215Christopher R. Schraff, Esq.As sistant Attorney General Howard K. Shapar, Esq.Environmental Law Section Executive Legal Director361 East Broad Street, 8th Floor U. S. Nuclear Regulatory Commis sionColumbus, Ohio 43215 Wa shin gton, D. C. 20555

Andrew F. Popper, E sq. Joseph Rieser, Esq.

Office of the Executive Legal Director Reed, Smith, Shaw & McClay

U.S. Nuclear Regulatory Commis sion 1155 Fifteenth Street, N. W. , Suite 440

Washington, D. C. 20555 Washington, D. C. 20005|