ML17207A373
| ML17207A373 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 07/16/1979 |
| From: | Bouknight J, Jablon R FLORIDA POWER & LIGHT CO., FLORIDA, STATE OF, LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL, SPIEGEL & MCDIARMID |
| To: | |
| References | |
| NUDOCS 7909120427 | |
| Download: ML17207A373 (52) | |
Text
7//~/Pf UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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cS'n the Matter of FLORIDA POWER
& LIGHT COMPANY (St. Lucie Plant, Unit No.
2)
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Docket No. 50-389A
)
SECOND JOINT MOTION OF APPLICANT AND FLORIDA CITIES FOR SUSPENSION OF DISCOVERY PROCEDURES TO PERMIT SETTLEMENT DISCUSSIONS TO BE PURSUED On April 23, 1979, tne Board issued an Order which granted a delay in discovery activities from May 1, 1979, to August 1,
- 1979, so that Applicant and Florida Cities could explore possible settlement.
Since this delay was granted, Applicant and Florida Cities have conducted intensive negotiations towards resolving their differences.
Although no agreement has been
- reached, both parties feel that progress has been made and thus further exploration of settlement prospects is warranted.
They wish to continue to concentrate on settlement negotiations for three additional months, and, if possible, avoid the expense and disruption that would accompany extensive discovery.
Accordingly, Applicant and Florida Cities respectfully request that the Board grant an additional three-month extension, from August 1 to November 1, 1979, of the'ate for the parties to prepare a schedule for completion of discovery, and suspend discovery until November 1,
- 1979, so that. the parties may continue settlement negotiations.
Counsel for the NRC STaff 77~9'/Z~ 4D 7
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and the Department of Justice have authorized the undersigned to represent that these parties have no objections to the granting of this extension.
Respectfully submitted, Robert A.
ablon Daniel Guttman Spiegel 6 McDiarmid 2600 Virginia Avenue, N.N.
>lashington, D.C.
20037 (202) 333-4500 Counsel for the Florida Cities Daniel M. Gribbon Herbert Dym Joanne B. Grossman Covington 6 Burling 888 Sixteenth Street, N.W.
Washington, D.C.
20006 (202) 452-6000 J.A. Bouknight, Jr.
E. Gregory Barnes Lowenstein,
- Newman, Reis, Axelrad
& Toll 1025 Connecticut
- Avenue, N.N.
Washington, D.C.
20036 (202) 862-8400 John E. Mathews, Jr.
Jack N. Shaw, Jr.
- Mathews, Osborne,
- Erhlich, McNatt, Gobelman
& Cobb 1500 American Heritage Life Building ll East Forsyth Street Jacksonville, Florida 32202 (904) 354-0624 Attorneys for Florida Power 6 Light Company July 16, 1979 By A. Bouknig
, Jr.
I
UNITED STATES OF AFRICA NUCLEAR PXGULATORY CONFESSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
Florida Power 6 Light Company
)
(St. Lucie Plant, Unit No.
2)
)
Docket. No. 50-389A CERTIFICATE OF SERVIC I hereby certify that copies of SECOND JOINT MOTION OF APPLICANT AND FLORIDA CITIES FOR SUSPENSION OF DISCOVERY PROCEDURES TO PERMIT SETTLEMENT DISCUSSIONS TO BE PURSUED have been served on the persons shown on the attached list by hand delivery
- or deposit in the United States mail, properly stamped and addressed on July 17, 1979.
.A. Bouknight, Jr.
Lowenstein,
- Newman, Reis, Axelrad i
Toll 025 Connecticut
- Avenue, N.W.
Washington, D.C.
20036
k jl
Xvan W. Smith, Esquire
- Chairman, Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert A. Jablon, Esquire Daniel Guttman, Esquire Spiegel 6 McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 Valentine B. Deale 1001 Connecticut
- Avenue, N.H.
Washington, D.C.
20036 Robert M. Lazo, Esquire Ato'mic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Jerome Saltzman Chief, Antitrust 6 indemnity Group U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert E. Bathen R.W. Beck
& Associates Post Office Box 6817 Orlando, Florida 32803 Docketing and Service Station Office of the Secretary U.S. Nuclear Regulatory Commi s s ion Washington, D.C.
20555 Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Lee Scott Dewey, Esquire Frederick D. Chanania, Esquire David J.
- Evans, Esquire U.S. Nuclear Regulatory Commission Antitrust Division Room 112'09 7735 Old Georgetown Road
- Bethesda, Maryland 20014 Jerome E. Shar fman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard S.
- Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Melvin G. Berger, Esquire Mildred L. Calhoun, Esquire Antitrust Division Department of Justice 1101 Pennsylvania
- Avenue, N.W.
Washington, D.C.
20530
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UNXTED STATES OF AEIERXCA NUCLEAR REGULATORY CO)MISSION In the Matter of
)
FIORIDA PORKIER 8r, LIGHT COMPANY
)
(St. Lucie Plant, Unit No. 2)
Docket No. 5Q-389A ORDER By joint motion dated April 20, 1979 Applicant and Florida Cities request a delay in discovery activities from May 1, to August 1, 1979 so that the parties may explore the possibility of settlement.
The NRC Staff and the Department of Justive have no objections.
The iaotion is granted.
XT XS SO ORDERED.
FOR THE ATOMIC SAFETY AND
.- LICENSXNG BOARD Ivan W. Smit
, (.hairman Dated at Bethesda, Maryland this 23rd day of April, 1979.
UNITED STATES OF'MERICA NUCLEAR REGULATORY CO:QiISS ION In the Matter of
)
)
FLORIDA POWER AND LIGHT COMPANY
)
)
(St. Lucie Plant, Unit No.
2)
)
)
)
)
)
Docket No. (s) 50>>389A CERTIFICATE OF SERVICE I hereby certify that I have this day served the foregoing document(s) upon each person designated on the official service list compiled by the Office of the Secretary of the Commission in this proceeding in accordance x'ith the requirements of Section 2.712 of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Commission's Rules and Regulations.
Dated at Vashington, D.C. this day of
/
VCR Office f/the Secretary of the ommission
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
)
)
FLORIDA POWER AND LIGHT COMPANY
)
)
(St. Lucie Plant, Unit No. 2)
)
)
Docket No.(s) 50-389A SERVICE LIST Ivan
'W. Smith, Esq.,
Chairman
~ Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 J.A.. Bouknight, Jr.,
Esq.
Lowenstein,
- Newman, Reis
& Axelrad 1025 Connecticut
- Avenue, N.W.
Washington, D.C.
20036 Valentine B. Deale, Esq.
1001 Connecticut
- Avenue, N.W.
Washington, D.C.
20036 Robert M. Lazo, Esq.
. Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Joseph
- Rutberg, Esq.
Antitrust Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 John E. Mathews, Jr.,
Esq.
- Mathews, Osborne,
- Ehrlich, McNatt, Gobelman and Cobb 1500 American Heritage Life Building Jacksonville, Florida 32202 Robert A. Jablon, Esq.
Spiegel and McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 William C. Wise, Esq.
1019 19th Street, N.W., Suite 200 Washington, D.C.
20036 Michael C. Farrar, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Jerome D. Saltzman, Chief Antitrust and Indemnity Group William H. Chandler, Esq.
Office of the Nuclear Reactor Regulatioxghandler, O'Neal, Avera, Gray, U.S. Nuclear Regulatory Commission Lang
& Stripling Washington, D.C.
20555 P.O.
Drawer 0 Gainesville, Florida 32602 Melvin G. Berger, Esq.
Antitrust Division U.S. Department of Justice P.O.
Box 481 Washington, D.C.
20044 Jerome E. Sharfman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board
-~:- U.S'; Nuclear Regulatory Commission
- Washington, D.C.
20555 Richard E. Salzman, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
r~
f
50-389A Daniel h. Gribbons, Esq.
Herbert Dym, Esq.
Covington and Burling 888 16tn Street, il. W.
Washington, D.
C.
20006
C 1
UNXTED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD Xn the Matter of
)
)
Florida Power
& Light Company
)
)
(St. Lucie Plant, Unit No.
2)
)
Docket No. 50-389A CERTIFICATE OF SERVICE I hereby certify that copies of JOINT MOTION OF APPLICANT AND FLORIDA CITIES FOR SUSPENSION OF DISCOVERY PROCEDURES TO PERMIT SETTLEMENT DISCUSSXONS TO BE PURSUED have been served on the persons shown on the attached list by hand delivery
- or deposit in the United States mail, properly stamped and addressed on April 20, 1979.
A. Bo night, Jr.
owens tein, Newman, Reis, Axelrad a Toll 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036
UNITED STATES OF NUCLEAR REGULATORY AMERICA COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter 'of Florida Power 6 Light Company (St. Lucie Plant, Unit No.
2)
Docket No. 50-389A SERVICE LIST
- Ivan W. Smith, Esquire
- Chairman, Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.C.
20555
- Valentine B. Deale 1001 Connecticut
- Avenue, N.W.
Washington, D.C.
20036
- Robert M. Lazo, Esquire Atomic Safety and Licensing Board U.
S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary U. S. Nuclear Regulatory Commission Washington, D.C.
20555
- Lee Scott Dewey, Esquire
- Frederick D. Chanania, Esquire
- David J.
- Evans, Esquire U.
S. Nuclear Regulatory Commission Antitrust Division Room 11209 7735 Old Georgetown Road
- Bethesda, Maryland 20014 Richard S.
- Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.
20555
- Melvin G. Berger, Esquire
- Mildred L. Calhoun, Esquire Antitrust Division Department of Justice 1101 Pennsylvania
- Avenue, N.W.
Washington, D.C.
20530
- Robert A. Jablon, Esquire
- Daniel Guttman, Esquire Spiegel 6 McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 Jerome Saltzman Chief, Antitrust 6 Indemnity Group U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Mr. Robert E. Bathen R.
W. Beck S Associates Post Office. Box 6817 Orlando, Florida 32803 Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Jerome E. Sharfman, Esquire Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.
20555
UNITED STATES OF Ai41ERICA NUCLEAR REGULATORY Cali>iXS S ION BEFORE THE ATOiMIC SAFETY AND LICENSING BOARD In tne Hatter of FLORIDA PONER 6 LIGHT COi~lPANY (St. Lucie Plant, Unit No.
2)
).
)
}
Docket No. 50-389A JOINT NOTION OF APPLICANT AND FLORIDA CXTXES FOR SUSPENSION OF DISCOVERY PROCEDURES TO PER iIT SETTLEMENT DISCUSSIONS TO BE PURSUED On i~larch 28, 1979, the Board issued a "Second 2lemorandum and Order on Discovery" which, among other things, directed the parties to propose to'the Board by i4ay 1,-1979, a schedule for com"letion of discovery in this proceeding.
The Applicant and the Florida Cities have met, subsequent:
to issuance of the Board's Order, to consider the prospects for settlement of the proceeding.
Applicant and the Florida Cities have resolved to explore thoroughly the prospects for settlement on an intensive 1/
and expedited basis.
They desire to concentrate their efforts on settlement negotiations for the forthcoming three months and, if settlement is reacned, to avoid the expense and disruption of commencing extensive file searches.
Accordingly, Applicant and the Florida Cities respectfully request that the Board extend from &lay 1 to August 1, 1979, the date for the parties to prepare a schedule for completion of
~/
Applicant is also discussing the possibility of settlement with the NRC Staff and the Department of Justice.
0
,I
discovery and suspend discove";. until August 1,
- 1979, so tnat the parties may conduct settl=-.,ent negotiations.
Counsel for the NRC Staff and the Depart.===. t of Justice have authorized the undersigned to represent
=hat those parties have no objec-tion to the granting of this "elief.
Respectfully submitted, sy4 I~k Robert A. Jablon Daniel Guttman Spiegel
& McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.
C.
20037 (202) 333-.4500 Counsel for the Florida Cities Daniel M. Gribbon Herbert Dym Joanne B. Grossman Covington
& Burling 888 Sixteenth Street, N.N.
Washington, D.
C.
20006 (202) 452-6000 J.
A. Bouknight, Jr.
E. Gregory Barnes Lowenstein, Newman, Reis,
. Axelrad
& Toll 1025 Connecticut
- Avenue, N.W.
Washington, D. C.
20036 (202) 862-8400 John E. Mathews, Jr, Jack W.
Shaw, Jr.
- Mathews, Osborne,
- Ehrlich, McNatt; Gobelman
& Cobb 1500 American Heritage Life Building ll East Forsyth Street Jacksonville, Florida 32202 (904) 354-0624 Attorneys for Florida Power Light Company April 20, l'979.
J.
. Boukn ght, J
g4 wr UNITED S ATES F AMERICA In the Natter of FLORIDA POWER 5 LIGHT COMPANY (St. Lucie Plant, Units No.
1 and No. 2)
NRC Docket Nos NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION yg pS ig Qp>
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~389 FLORIDA POWER 5 LIGHT COMPANY (Turkey Point Plant; Units No.
3 and No. 4)
NRC Docket Nos.
50-250A 50-251A STAFF
RESPONSE
TO'FLORIDA CITIES'ARCH 28, 1979 AND APRIL 2, 1979 MOTIONS 1/
By motions dated March 28, 1979 and April 2, 1979, Florida Cities request the Commission to initiate an antitrust hearing in the above cap-2/
tioned matters pursuant to Section 105(a) of the Atomic Energy Act.
This request is based upon the Commission's July 27, 1978 Order asking for advice as to whether, in view of the Fifth Circuit Court of Appeal s decision in Gainesville v. Florida Power Il Li ht, 573 F.2d 292 (1978), cert..denied, U.S.,
47 USLW 3329 (No. 78 476)(ll/14/78),
an antitrust pro-ceeding at the NRC should be initiated and, if so, when it should be initiated and whether it should be consolidated with the current antitrust hearing in Docket 50-389A for St. Lucie Unit 2.
In urging the Commission 1/ Florida entities involved in this petition include the Fort Pierce Utilities Authority of the City of Fort Pierce, the Gainesville-Alachua County Regional Electric Water and Sewer Utilities, the Lake Worth Utilities Authority, the Utilities Commission of New Smyrna
- Beach, the Orlando Utilities Commission, the Sebring Jtilities Commission, and the Cities of Alachua, Bartow, Fort Meade, Key West, Lake Helen, Mount Dora, Newberry, St. Cloud, and Tallahassee,
~2 The only substantial difference between the two motions appears to be that the March 28, 1979 Motion requests that a Section
'i05(a) pro-ceeding be initiated while the April 2, 1978 motion requests that the Section 105(a) proceeding be consolidated with the pending Section 105(c) proceeding involving Florida Power 5 Light's St.
Lucie Unit 2.
2>>
to initiate this hearing Florida Cities cite the recent U.S. Court of Appeal 's opinion in Ft..Pierce Utilities Authorit of the Cit of Ft. Pierce, et. al. v. Nuclear Re ulator Commission which specifically refers to 3/
the Commission's authority over matters pertaining to Section 105(a).
Florida Cities also point out that Commission action is now more appropriate then it was at the time of the July 27, 1978 Order in view of the Supreme 4/
Court's denial of certiorari of the Fifth Circuit's decision in Gainesville.
5/
Staff's response to the Commission's July 27, 1978 inquiry was that there was no need to institute a Section 105(a) proceeding against Florida Power
& Light Company regarding the Gainesville matter since the same issues were already incorporated in an ongoing Section 105(c)
NRC
,f antitrust proceeding involving the licensing of St.
Lucie 2 in Docket 50-389A.
He further pointed out that if a separate 105(a) proceeding was determined to be necessary, then to avoid duplication of trial efforts such a proceeding should be formally consolidated with the St. Lucie Unit 2 proceeding,
'~3 F.2d (D,C, Ci r. 1979), Dkt. Ho. 77-1925, et al., Slip Opinion pps.
30-31; March 23, 1979.
In this regard, the Court stated that,
"...Section 105(a) not only provides that nothing in the Act preempts the normal operation of the antitrust laws, but,also vests the Commission with authority to revoke or modify FP&L's operating licenses in the event that a court finds that FP&L has violated those laws in the course of licensed activity, thereby confirming the Commission's antitrust authority in this regard."
4/ See November 29, 1978 letter from Mr. Jablon to Commission Secretary Chilk, enclosing a copy of the denial of certiorari.
5/ August 25, 1978 HRC Staff Response to Commission Order of July 27, 1978.
Neither the developments noted by the Florida Cities nor their argu-ments based on those developments warrants the action they have requested of the Commission.
The Ft. Fierce case to which they refer has no bearing on the manner in which the Commission may implement Section 105(a).
Similarly, the 'Gainesville case is not relevant to the matter of whether a separate Section, 105{a) proceeding may be instituted.
Nothing in these cases or in the Florida Cities argument in support of their requests alters the Staff's position reflected 'in its August 25, 1978 brief with respect to the Commission's authority to initiate a separate proceeding
- n'this matter.
Accordingly, the Florida Cities motions should be denied.
Respectfully submitted, p~
Lee Scott Dewey Counsel for NRC Staff
~~'c.
~&~me ~
< Cg~
edric D. Chanania Counsel for NRC Staff David J.
Evans Counsel for NRC Staff Dated at Bethesda, Maryland this 17th day of April 1979.
In the Matter of UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION FLORIDA POWER 5 LIGHT COMPANY (St. Lucie Plant, Units No.
1 and No. 2) 1 FLORIDA POWER 8( LIGHT COMPANY (Turkey Point Plant, Units No.
3 and No. 4)
NRC Docket Nos.
50-335A 50-389A NRC Docket Nos.
50-250A 50-251A J.A. Bouknight, Jr.,
Esq.
E.
Gre go ry Ba mes, Es q.
Lowenstein,
- Newman, Reis 8 Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Tracy Danese, Esq.
Vice President for Public Affairs Florida Power 5 Light Company P.O.
Box 013100 Miami, Florida 33101 CERTIFICATE OF SERVICE I hereby certify that copies of STAFF RESPONSE TO FLORIDA CITIES'ARCH 28, 1979 AND APRIL 2, 1979 MOTIONS,in the above-captioned proceeding, have been served on the following by deposit in the United States
- mail, first class, or, as indicated by an asterisk, through deposit in the Nuclear Regulatory Commission's internal mail system, this 17th day of April 1979.
Ivan W,.Smith, Esq.,
Chairman Atomic Safety and Licensing Board Panel U,S, Nuc'lear Regulatory Commission Washington, D,C.
20555 Valentine B. Deale, Esq.
Atomic Safety and Licensing Board Panel 1001 Connecticut Avenue, N.W.
Washington, D,C.
20036 Robert M. Lazo, Esq.,
Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Section Office of the Secretary U,S, Nuclear Regulatory Commission Washington, D.C.
20555 Jerome
- Saltzman, Chief.
Antitrust 5 Indemnity Group U.S, Nuclear Regulatory Co"...-ission Washington, D,C.
20555 Jack W. Shaw, Jr.,
Esq.
John E. Mathews, Jr.,
Esq.
- Mathews, Osborne, Ehrlich, McNatt, Gobelman 8 Cobb
'500 American Heritage Life Building 11 East Forsyth Street Jacksonville, Florida 32202 Harry W. Wright Executive Vice President Seminole E'lectric Cooperative, Inc.
Suite 108 2410 East Busch Boulevard
- Tampa, Fl o ri da 33512
w 2'r.
Robert E. Bathen Nr., Fred Saffer R,W.
Beck
& Associates P.O, Box 6817 Orl a ndo, Flori da 32803 Dr,. John W, Wilson Wilson
& Associates 2600 Yirginia Avenue, N.W.
Washington, D.C.
20037 Thomas Gurney, Sr.,
Esq.
203 North Hagnolia Avenue Orlando, Florida 32802 Robert A. Jablon, Esq.
Daniel J.
- Guttman, Esq.
Alan J, Roth, Esq.
2600 Yirginia Avenue, N.W.
Washington, D,C.
20037 Donald A. Kaplan, Esq.
David A. Leckie, Esq.
P,O.
Box 14141 Washington, D.C.
20044 William H. Chandler, Esq.
- Chandler, O'Neal, Avera, Gray, Land
& Stripling Post Office Drawer 0
Gainesville, Florida 32602 Daniel H. Gribbon Herbert Dym Covington
& Burling 888 Sixteenth Street, N.W.
Washington, D.C..
20006 Chairman Hendrie Office of the Commission U.S. Nuclear Regulatory Corrmission Washington, D. C.
20555
- Commissioner Gilinsky Office of the Commission U.S. Nuclear Regulatory Commission Washington, D. C. '0555
- Coranissioner Kennedy Office of the Corrmission U.S. Nuclear Regulatory Corrmission Washington, D. C.
20555
- Coragssssoner Bradford Office of the Corrmission U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- Coranissioner Ahearne Office of the Commission U.S. Nuclear Regulatory Commission Washington, D. C.
20555
- William C. Wise, Esq.
Robert Weinberg, Esq.
Suite 200,1019 19th Street, N.W.
Washington, D.C.
20036 Mr. David Springs Southern Engineering Company 1000 Crescent
- Avenue, N.E.
Atlanta, Georgia 30309 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington,'.C.
20555 Fredric D. Chanania Counsel for NRC Staff
UNITED STATES OF AMERICA
,6 NUCLEAR REGULATORY COMMISSION
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Q~o In the Matter of FIORIDA POWER 5 LIGHT COMPANY (St. Lucie Plant, Unit No. 2)
)
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)
Docket No. 50-389A
)
)
)
ORDER
.h~~>
On August 6,
- 1976, the Fort Pierce Utilities Authority of the City of Fort Pierce, the Gainesville-Alachua County Regional Electric Water and Sewer Utilities, the Lake Worth Utilities Authority, the Utilities Commission of the City of New Smyrna Beach, the Orlando Utilities Commission, Bartow, Bushnell, Chattahoochee, Daytona
- Beach, Fort Meade, Key West, Iake Helen,
- Leesburg, Mount Dora,
- Newberry, Quincy, St. Cloud, Tallahassee, and Williston, Florida, and the Florida Municipal Utilities Association, petitioned for leave to intervene and requested a hearing in the above-captioned proceeding.
By motions variously dated, the Cities of Bushnell, Chattahoochee, Daytona Beach,
- Leesburg, Quincy and Williston, Florida, have requested leave to withdraw from bp
participation in the instant proceeding; The Board grants the motions of the Cities of Bushnell,. Chattahoochee, Daytona Beach,
- Leesburg, Quincy and Williston, Florida, to withdraw their participation in the instant proceeding.
BY ORDER OF THE BOARD.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smi, C airman Dated at Bethesda, Maryland this 28th day of March, 1979.
/o o<"~'c D
A UNITED %TATES OX AMERI.CA NUCLEAR REGULATORY COMMISSION'g9
$9L..
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gocle
~zqiKoa In the Matter of FIDRIDA POWER
& LIGHT COMPANY (St. Lucie Plant, Unit No. 2)
)
)
tJl
)
Docket No.
50-389A
)
)
SECOND MEMORANDUM AND ORDER ON DISCOVERY The parties. have fiZed. memoranda"and-=requests--in-*"-
response to the Board's Memorandum and Order on Discovery 1/
dated February 9,
1979.
We now
~ supplement =our discovery-rulings as a result of the responses.
Cutoff Date Applicant requests -that the Board rule that the same cutoff date applies to a-ll.discovery -requests'-dealzxg with'imilar subjects no matter which party propounded them.
Specifically Applicant requests a ruling that the 1965 cut-off date does not relieve the Cities from responding to pre-1965 requests
- where, under comparable circumstances, the Applicant 's Memorandum Concerning Discovery (dated March 2, 1979); Joint Response of the Department of Justice and the NRC Staff to Board 's February 9,
1979 Order (dated March 2, 1979);
Response
of Florida Cities to--Board--Memorandumwnd-Order on-Discovery-(dated March 2, 1979); Cities'esponse to Applicant's Memo-randum Concerning Discovery (dated March 12, 1979);
and Applicant's Response to Memoranda on Discovery of Florida Cities and Government Parties (dated March 12, 1979).
t
-Board allowed-pra=l9&5-discovery-uf Applicant;-" A~omparison table is attached as an appendix to Applicant's memorandum.
About 65 of Applicant's discovery requests are affected.
Since no discovery of the U.S.
Government parties is re-quested they did not respond.
Cities answers Applicant's request agreeing-in.
principle, but, with respect to four of the Applicant's discovery requests, Cities seeks relief.
We grant the relief requested by Cities because it results in substantial parity or fairness in discovery and because it removes-ineMicienW burden-.upon-.".Cities;.
...~-,
Cities agrees to produce all releva'nt documents, and
.-.-mor e in-respons~o!"Ap~w'ca~M~guest~~zzdM'62.
Applicant cites Cities'equests 5 and 6 as the comparable requests allowed by the Board.
Cities'equests 5 and 6
seek only documents from Applicant.
Parity will be realized by Cities'roposed document production.
We note also that additional information may be produced in response to Applicant's Request 60 in the course of interviews by Cities.
Applicant's Request 79.seeks information. from 1955.
on the purchase, sale or exchange of bulk power.
Applicant's Request 84 inquires about joint planning and development in generation and. transmission.
Cities requests
.that.the.pre-..
1965 response to these requests be limited primarily to
document production, suggesting that if more information is
- required, Applicant may use depositions or other means less burdensome to Cities.
Applicant cites several requests to it as comparable requests allowed by the Board.
Of, these
- requests, Joint Requests 24, 25, 33, 39 and Cities'equest 9 seek only.documents.from-Applicant:- Joint Request 8 requires Applicant to name the membership of certain com-pany committees and is not analogous to Applicant's Requests 79 and 84.
Joint Request 41 requires information about wheeling from Applicant since 1960.
It is not limited to" documents, and is somewhat +elated to the subject of Applicant's Requests-'79-and~'84-
=The Boar'd grants.&he
'rel'ief'requested by Cities with respect to Applicant's Requests 79 and 84 even though point-by-point parity in comparison with Joint Request 41 will not result.
If any incident occurring between 1950 and 1965 covered by Applicant's Requests 79 and 84 was so insignificant that a documentary record was not made of it, it is unlikely that the incident would justify the exhaustive interviews re-quired to fully respond.
The same reasoning could be said to apply to Joint Request 41, but -Applicant has not re-quested relief from responding to that request and answers
-=to--Joint--Request-.
4X can=-be-effic~tly "produced=-from-.the Company considering its cohesive continuing management.
In any event> if Cities'ocument production indicates the need for further discovery, Applicant can follow with depositions or other means.
This is exact parity with the
~elief requeste~y the.>pplican~nd
.granted by~eMoard 2/
with respect to Cities'equest 18.
Discovery.Concerning. Natural. Gas..
Having withdrawn its objectiohs to the Joint Requests 79-82 concerning natural gas,.Applicant-continues to press its objections-Co-Cities"'-Requests-57=59 and.= l2-73 on -that-subject.
Applicant sites-tha~Ci4ies-'atural-.-gas dis-
~
covery requests".are
";.:-an apparent-effort-to-utilize the-NRC discovery process to-=obtain information-for-use before other federal agencies...",
and is intended for use in 3/
connection with asserted violations-of the Natural Gas Act.
There is nothing in the history of this proceeding and the South Dade proceeding to indicate that counsel for Cities would misuse the NRC's discovery process.
Some of the Cities-'- na tura 1-g~~l anions c ould -leadMo "~tua trons ---
- -- =2/-
3/
Board-'s-discovery order;-p-.--31-;"
- --=--- --
Applicant's Memorandum Concerning Discovery, p.
4 and Applicant's Response to Memoranda on Discovery, pp. 6-8.
cognizable under the -antitrust =laws--ref erred 'to-in Section 105a of the Atomic Energy Act, particularly Section 5 of the Federal Trade Commission Act.
On the other hand, Cities'equests also seem to be strongly oriented to a Natural Gas Act proceeding.
This does not suggest anything--more -than-that"-Cities>
oounsel.-
are well informed on that subject.
The Board is satisfied that Cities'atural gas requests have been submitted in good faith.
- Further, they could lead to the discovery of admissible evidence in an antitrust proceeding.
Neverthe-
- less, as a judgment call, the Board denies Cities'equests 57-59 and 72-73 in order to place reasonable bounds upon the
-length+and scope ~his~roceedimg=an'd~o~educe burden-wn. ~
discovery.
In making.this ruling,.we..have also. considered Applicant's observation that Cities could obtain relevant information "... more easily and directly by deposing the individuals whom Applicant will be required to name in response to Joint Request No. 79(b)."
Joint Requests 56 and 76 The relevance of Joint Requests 56 (a) and 76 to the post-1964 period was not clear so we declined to rule until further
""justi<icaCion~aa submi~ed~We-.are~ow~ersuaded~h 4/
the requests should be enforced.
With respect to Joint Request 56(a),
the requesting p'arties explain that examples of the alleged anticompetitive activities are restraints on the resale of power, pricing agreements,.wc@.tusive~aLin~xzaagements~
an~eSusals-ta-.----
deal except on anticompetitive terms and conditions.
We do not necessarily disagree or agree with Applicant's arguments concerning the current relevance of these examples.
We assume nothing concerning the merits.
Our
-=
. =--consider ati on~asevhe4herxthe
-:pre=-1965=--everrtmeasonab8 y~s=..;-= =;:==--
could lead to the production of evidence bearing upon the
. ~=~situate.on".aC4ez~anuary~
~465;..~he examples wubmi~ed by the U.S. Government parties,. accepted. for. the purpose of discovery. only-, demonstrate-that-the-requests-are-ap=-"-
propriate.
We have also accepted Cities'rguments per-taining to acquisition attempts and maintenance of wholesale territories, for pre-1965 discovery.
0/
The. 33oard.. intended ta a.pprove 3:oint Mequest.
56.(a.)
and (b) for the post-1964 period in its original order.
It was only the relationship of. the pre-1965 events to the post-1964 period that was not clear.
Joint Request 56(b) relates to current company policy and was not meant to be covered by the Board's order.
Similarly, with respect to Joint Request 76, the Board understands that the significance of establishing delivery points relates to the possession and use of market power and the effects of its use.
Moreover, Joint Request 76 relates only to Applicant's position and policy on the establish-ment of delivery points, thus excluding relatively 'un=
important information.
Important events in the pre-1965 period could have continuing effects, and the parties are entitled to discover whether this is the case.
Therefore we approve Joint Requests 56(a) and 76.
Cities'equests 39 40 and 42 The Board permitted Cities to submit arguments as to why Cities'equests 39, 40 and 42 to the extent they pre-date 1965 should be allowed.
Cities states that it needs the data covered by its Request 39 since 1960 in anticipa-tion of a "legitimate business purposes" defense by Applicant.
Applicant did not address this justification in 5/
its response.
Therefore the Board grants discovery to 1960 on Cities'equest 39 unless Applicant concedes to the satis-faction of Cities that the information will not be required defensively.
5/
Applicant's response to memoranda on discovery, pp. 4,5.
Predicated'-upon-Cities "-assertions-of.-speci fic-- *'=--
instances of refusals to deal and discriminatory dealings with five named Florida cities the.Board grants Cities'.
request 40 for the period since 1955.
We also accept Cities'price squeeze" explanation as to why its Request 42 should
- -- -be--granted-bac~o-MG~nd-approve.m~or~hat-per iod;"---".
Cities 'equest 14 By leave of"the.Board- -Cites-has-modified-its-"
Request 14, but not to the satisfaction of the Applicant.
We agree wiCh-Applicant -that-the-request-is-still'over=
broad in that it relates to Applicant's activities in any state-election.-and.-possibl~rretevant-municipal-elections
Since the request has no limitations on the nature of the state elections (Whey. could*-be-on. environmental matters,--
general corporate matters or other irrelevant subjects) the reference to state elections is deleted from Request 14.
The request as it relates to municipal elections is further modified to provide "... (2) municipal elections in municipalities (a) where there is a municipal electric system and where the municipal election relates to the 6/
municipa 1 e lectric sys tern or (b )
6/
Modification"to page ll-of-Response-of:-Florida-Cities-to Board Memorandum and Order on Discovery.
Cities should restate-.all of Request,.14 to reflect its. modifica-tion and the Board's modification.
Cities 'equest
.18 -.---
Cities requests a clarification of the Board's Order on Cities'equest 18.
Our ruling was intended to spare Appli-cant unnecessary burden in producing the requested informa-tion and to promote efficiency.
A fair sharing of the burden and greater efficiency--will result if-Applicant.-responds--to Cities'equest 18 to the extent it relates to the functions of the named company officials.
Therefore the Board approves for discovery the first two sentences of Cities'equest 18.
Cities'equest 20A At Cities'equest, we have considered again our ruling on Request 20A -and arrive.at.a"different conclusion:
Request 20A was denied because we believed that providing information to consumers, as-in advertising, is fundamental to competition.
We now understand that evidence of inducing customers to choose Florida Power 5 Light over another power supplier may establish that competiton does exist between the affected utilities.
This would be a basis upon which the information requested by 20A (a) could be justified.
However the Board will not now enforce subpart (a).
We must balance the utility of using consumer advertising to prove competition against Applicant's First Amendment rights and the essentially pro-competitive aspects of consumer
10 advertising:
-We -do-not-'see-consumer advertising as an efficient way to prove competition.
Request 20A (a) is denied.
However, if, in the course of this proceeding, it becomes apparent that discovery in the form of subpart (a) would be needed to produce evidence materially helpful in
~- resolving- -issues-ef-competition,~v&11-reconsider-thic"-------
ruling.
We are persuaded by Cities'LCOA type arguments to 7/
grant Request 20A (b) for the limited purpose stated.
Subpart (c) however, supports neither a competition theory nor a-thrusted-"monopol~-theory.,"=and.-is denied-.-Mccordingl~y '--=".-
the Board reverses its earlier.wuling.and...grants 20A.to the extent-'haW mequxr e~r odu~~crf"~~orma~cnr~r ~pcnee== -'- =- -.
8/
to subpart (b).
Cities 'equest 64 The Board grants Cities'odified Request 64 but only to the extent that the Applicant must provide the best current 7/
Cities cites:
United States v. Aluminum Co.. of America;- 148 =2.2d-416, per curiam, 47 U.S.
521 (1954).
8/
Applicant. agrees Co-withdraw Request 176.- - Response,
- p. 11.
As a result of this order, Applicant's Request 176(a) and (c) are deemed withdrawn.
9/
information. on.projected outages and off-line"time.
Cities has not explained the relevance to this proceeding of the reported damages to the Turkey Point Units.
Applicant's Requests 173-175 Cities'equests 24, 26, and 34 were denied by the Board because we declined to support the "government bounty" theory of antitrust in the discovery process.
Cities now asserts that Applicant's Requests 173-175 are analogous to its Requests 24, 26, and 34 and should be denied for the same reasons Applicant's Requests 173-175 are quite different in concept.
They relate, as Applicant states, to market definition, the amount and nature of retail com-petition and Applicant's powers in the relevant market(s).
They are founded upon traditional antitrust theories and cannot be denied for the reasons advanced by Cities.
Pre-hearing Schedule The parties shall proceed with the sequence of pre-hearing events in the Special Prehearing Conference Order 9/
Modification appears in
Response
to Florida Cities to Board Memorandum and Order,
- p. 13.
12 of October 26; 1978; The" parties may negotiate a modifi'ca-tion of the pre-hearing
- schedule, but, if the parties cannot agree, the first interim report on. the progress of discovery will be due May 1, 1979.
BY ORDER OF THE BOARD.
FOR THE ATOMIC SAFETY AND LICENSING BOARD Ivan W. Smith, Chairman Dated at Bethesda, Maryland this 28th day..of March, 1979..
13 INDEX OF DISCOVERY REQUESTS
[References are to page numbers]
Joint Request Numbered:
Request Ruling on Mentioned Request 24, 25, 33,39 41 56 76 79 (b) 79-82 3,4 5,6,7 5,7 5
4,5 Cities'equest Numbered:
5,6 9
14 18 20A 24, 26, 34 39 40, 42 57-59 64 72-73 Applicant's Request Numbered:
60 79, 84 162 173-175 176 Request Mentioned 2
3 8
4,9 9 10 ll 7
7,8 4,5 10, ll 4,5 Request Mentioned 2,4 2 p 3 2,4ll 10 Ruling on Request 8
9 10 7
8 5
10, ll 5
Ruling on Request 2,4 2,4 2,4ll 10
UNITED STATES OF AiiZRXCA NUCLEAR REGULATORY CO:DiXSSXON In the Hatter of
)
)
FLORXDA POVER AND LIGHT COiWANY
)
)
(St. Lucie Plant, Unit No. 2)
)
)
)
)
)
CERTIFICATE OF SERVICE Docket Ão.(s) gO 389A
't hereby certify that y have this dsy served the foregoing document(s)g upon each person designated on the official service list compiled by.
the Office of the Secretary'of the Commission in this proceeding in accordance with the requirements of Section 2.712-of 10 CFR Part 2-Rules of Practice, of the Nuclear Regulatory Comwission's Rules and Regulations.
Dated at Mashington, D C. this day od
'/PM-I<
197 /.
'ffice/ fi'the Secretary of the ommission
+(-gd,P ~d~C ~ ~/28l7$
g.L~ 4~<<~K Again.~ a.gas A~~
>/~e(~q
UNITED STATES OF AMERICA NUCLEAR REGULATORY COKHSSION In the Matter of
)
)
FLORIDA POWER AND LIGHT COMPANY
)
)
(St. Lucie Plant, Unit No. 2)
)
)
Docket No.(s) 50-389A SERVICE LIST Ivan W. Smith, Esq.,
Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Valentine B. Deale, Esq.
1001 Connecticut Avenue, N.W.
Washington, D.C.
20036 Robext M. Lazo, Esq.
Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.'C.
20555 Joseph
- Rutberg, Esq.
Antitrust. Counsel U.S. Nuclear Regulatory Commission
,Washington, D.C.
20555 J.A. Bouknight, Jr.,
Esq.
Lowenstein, Newman, Reis
& Axelrad 1025 Connecticut
- Avenue, N.W.
Washington, D.C.
20036 t
John E. Mathews, Jr.,
Esq.
- Mathews, Osborne,
- Ehrlich, McNatt, Gobelman and Cobb 1500 American Heritage Life Building Jacksonville, Florida 32202 Robert A. Jablon, Esq.
Spiegel and McDiarmid 2600 Virginia Avenue, N.H.
Washington, D.C.
20037 William C.. Wise, Esq.
1019 19th Street, N.H., Suite 200 Washington, D.C.
20036 Mr. Jerome D. Saltzman, Chief Antitrust and Indemnity Group William H. Chandler, Esq.
Office of the Nuclear Reactor Regulatiorghandler, O'Neal, Avera, Gray, U. S. Nuclear Regulatory Commission Lang 6 Stripling Washington, D.C.
20555 P.O. Drawer 0 Gainesville, Florida 32602 Melvin G. Berger, Esq.
Antitrust Division U.S. Department of Justice P.O.
Box 481 Washington, D.C.
20044 Jerome E. Shaxfman, Esq.,
Chairman Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Hashington, D.C.
20555 Michael C. Farrar, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard E. Salzman, Esq.
Atomic Safety and Licensing Appeal Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555
50-389A daniel il. Gribbons, Zso.
.ikerbert Dym, "sq.
Covin@ton and Burl"ng 883 l6th Street,
". Ol.
Washington, D.
C.
20006