ML17207A406

Opposition to Fl Cities 790809 Motion to Lodge FERC Decision Concerning Util.Decision Was Not Issued by Agency of Competent Jurisdiction;Therefore,Motion Will Prejudice Proper Consideration of Matters.Certificate of Svc Encl

ML17207A406
Person / Time
Site:	Saint Lucie, Turkey Point, 05000355
Issue date:	08/24/1979
From:	Bouknight J, Gribbon D COVINGTON & BURLING, FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
NUDOCS 7909260009
Download: ML17207A406 (5)

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0 i UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

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Florida Power & Light Company ) Docket No. 50-335A (St. Lucie Plant, Unit No. 1) )

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Florida Power & Light Company Docket No. 50-250A Point Plant, Units 3 )

)'Turkey 50-251A and 4) )

RESPONSE OF FLORIDA PORTER 6 LIGHT COMPANY TO CITIES MOTION TO LODGE On August 9, 1979, the Cities moved to "lodge" a decision of the FERC in FERC Docket No. 78-19 which concerns Florida Power 6 Light Company (FPL).. 2/ FPL opposes the motion.

Section 105a of the Atomic Energy Act authorizes the. Commission N

to act on the basis of a finding "by a court of competent juris-diction" that a licensee has violated the antitrust laws " in the conduct of the licensed activity." The FERC is not a court of competent jurisdiction, and it did not, by the terms of its decision, determine the existence of any violation of the anti-trust laws. Moreover, a decision concerning the justness and reasonableness of a tariff provision submitted in 1977 (and which never took effect) cannot conceivably have any relevance to the 1/ Due to a'lerical error, counsel for FPL was not served with the Motion and did not receive it until August 24- Counsel for the Cities has authorized FPL's counsel to represent that the Cities have no objection to filing of this response out of time.

2/ The decision of the FERC is subject to reconsideration and judicial 'review. FPL intends to request reconsideration.

question before this Commission whether- certain findings by the United States Court of Appeals for the Fifth Circuit con cerning events which took place before 1970 establish a violation of the antitrust laws "in the conduct of the licensed activity which warrants initiation of proceedings by this Commission The FERC decision, which was issued on the basis of an expedited hearing schedule which did not permit adequate discovery into or consideration of the truth or falsity of antitrust allegations, does not purport to determine antitrust issues The decision is subject to reconsideration by the FERC and to judicial review, and is, therefore, by no,means final. Moreover, it is not relevant to any of the issues pending here. The Motion seeks only to prejudice the Commission's consideration of the matters properly before it. FPL requests that it be denied Respectfully Submitted Dana.el M. Grzbbon Herbert Dym Covington 6 Burling 888 16th Street, N.W Washington, D~C~ 20006 J.A. Bouknight, Jr Lowenstein, Newman, Reis, Axelrad Toll 1025 Connecticut Avenue, N.W Washington, D~ C ~ 20036 John ED Mathews, Jr Mathews, Osborne, Ehrlich, McNatt Gobelman & Cobb 1500 American Heritage Life Bldg ll East Forsyth Street Jacksonville, Florida 32202

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/ J.A. Bouknxght, Jr i

Counsel for Florida Power 6 Light Company August 24I 1979

UNITED STATES OF AY%RICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of: )'

Florida Power 6 Light Company ) Docket No. 50-335A (St. Lucie Plant, Unit No. 1) )

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Florida Power & Light Company ) Docket No. 50-250A (Turkey Point Plant, Units 3 ) 50-251A and 4) . )

CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the following:

RESPONSE OF FLORIDA POWER 6 LIGHT COMPANY TO CITIES MOTION TO LODGE have been served on the persons shown on the attached list by deposit in the United States Mail, properly stamped and addressed on August 24, 1979.

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Lowenstein, Newman, Reis, Axelrad 6 Toll 1025 Connecticut Avenue, N.N.

'b Washington, D.C. 20036 Counsel for Florida Power G Light

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Chairman Joseph M. Hendrie Robert A. ablon, Esauz.re Office of the Commissioners Spiegel 6 McDiarmid U.S. Nuclear Regulatory Commission 2600 Virginia Avenue, N.W.

Washington, D.C. 20555 Washington, D.C. 20037 Commissioner Victor Gilinsky Melvin G. Berger, Esquire Office of the Commissioners Antitrust Division U.S. Nuclear Regulatory Commission U.S. Department of Justice Washington, D.C. 20555 P.O. Box 14141 Washington, D.C. 20044 Commissioner Richard Kennedy Office of the Commissioners Lee Scott Dewey, Esquire U.S. Nuclear Regulatory Commission Counsel for the Staff Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 r' Commissioner Peter Bradford Office of the Commissioners C.R. Stephens, Supervisor (20)

I U.S. Nuclear Regulatory Commission Docketing and Service Station Washington, D.C. 20555 Office of the Secretary of the Commission I Commissioner John F. Ahearne U.S. Nuclear Regulatory Commission Office of the Commissioners Washington, D.C. 20555 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 William C. Wise, Esquire Suite 200 Alan S. Rosenthal, Esquire 1019 19th Street, N.W.

Atomic Safety and Licensing Washington, D.C. 20036 Appeal Board Panel U.S. Nuclear Regulatory Commission William H. Chandler, Esquire Washington, D.C. 20555 Chandler, O'Neal, Avera, Gray, Lang & Stripling Jerome E. Shar fman, Esquire P.O. Drawer 0 Atomic Safety and Licensing Gainesville, Florida 32602 Appeal Board Panel U.S. Nuclear Regulatory Commission Jerome Saltzman Washington, D.C. 20555 Chief, Antitrust and Indemnity Group Richard S. Salzman, Esquire U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel /

U.S. Nuclear Regulatory Commission Samuel J. Chilk Washington, D.C. 20555 Secretary U.S. Nuclear Regulatory Commission Robert M. Lazo,.;.Esquire'." . Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Ivan W. Smith, Esquire Chairman, Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Valentine B. Deale, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555