ML17208A998
| ML17208A998 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 09/15/1980 |
| From: | Jablon R, Landsman R FLORIDA CITIES, SPIEGEL & MCDIARMID |
| To: | |
| References | |
| ISSUANCES-A, NUDOCS 8009190091 | |
| Download: ML17208A998 (6) | |
Text
-C~NDENUE NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, RESPONDENTS. -'-';
FLORIDA POWER
& LIGHT COMPANY and THE CITIES OF HOMESTEADF KISSIMMEEF and
., ~o Q P g 8 PROD, OQ. 'i P'tip IN THE F80 UNITED STATES COURT OF APPEALS
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FOR THE DISTRICT OF COLUMBIA CIRCUIT t
.i'
~
No. 80-1099,
<Mao
'FT.
PIERCE UTILITIES AUTHORITY OF" THE
", e pygmy CITY OF FT.
- PIERCE,
'PETlTTONERS,.
'~@'cog>~ <
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>encl "vs ON PETITION FOR REVIEN OF AN ORDER OF THE NUCLEAR REGULATORY COMMISSION MOTION FOR EXPEDITED CONSIDERATION
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Petitioners hereby move for expedited consideration of their petition for review of an order of the Nuclear Regulatory Commission.
Briefing is completed, so the case can be heard at any time.
He have been advised by the Clerk' office that, if the motion is not granted, the case will not be 'argued until some time in the early months of 1981-Both antitrust litigation and administrative proceedings suffer fro'm delay, and this case presents egregious examples of delays in both settings:
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jjr ooooxoo g'P/
1.
Intervenor-Respondent Florida Power
& Light Co.
conspired in a violation of the Sherman
- Act, 15 U. S.C.
5 1, to allocate markets from the early 1950s and, Florida Cities allege, have continued to act anticompetitively, re-enforcing the harm from that conspiracy to the present day.
Suit brought in 1968 by one of the cities, Gainesville, was not finally resolved on the merits -- in the plaintiff' favor -- until a full decade later.
See Gainesville v. FPL, 573 F.2d 292, 293 (5th Cir.
1978), cert.
- denied, 000 U.S.
000 (1979),
reflecting the Fifth Circuit's exasperation with the ten-year course of that case.
- Moreover, further proceedings on remand to determine damages are still pending.
2.
Petitioners here promptly sought the relief to which they believe they are entitled under Section 105 (a) of the Atomic Energy Act, 42 U. S. C.
5 2135(a)
NRC failed to act for a year and a half, despite repeated requests; it did not finally issue its short, insubstantial order until shortly after these same petitioners sought mandamus from this Court.
1/.
Expedited consideration by this Court may go some way toward mitigating the effects of these delays.
1/
See Brief of Petitioners, pages 6-8, and Reply Brief for Petitioners, pages 3-4
~
Petitioners urged NRC to consolidate', the proceeding sought in this case with a proceeding under a related statutory provision, Section 105(c) of the Atomic Energy Act, 42 U.S.C.
5 2135(c),
involving the same parties and similar issues.
The question under Section 105(a) is whether FPL
- planned, constructed or used its three existing nuclear plant licenses in connection with i.ts wholesale customer allocation conspiracy, found in Gainesville v..=.-FPE.
The question in the Section 105(c) proceeding is whether FPL's operation of a fourth nuclear plant would create or main-tain a situation inconsistent with the antitrust laws.
The two proceedings are closely related, and both the Antitrust Division of the Department of Justice and the NRC staf f, as well as petitioners, originally urged NRC to combine the two investigations.
1/
The Section 105(c) proceeding is still in discovery sta-ges so that if the Court gave this case expedited consideration, NRC would still be able to conduct the two investigations jointly.
Without expedited consideiation, the Section 105(a) investigation could follow the Section 105(c) investigation and require all new proceedings.
1/
Response
of the Department of Justice (August 25, 1978),
pages 4-6 (J. A. 29-31');
NRC Staf f Response to Commission Order of July 27, 1978 (August 25, 1978) pages 5-8 (J.A.
52-55)
~
VV
4 Exped.ited consideration would not be unfair to any party.
Except to the extent FPL is interested in postponing any relief 'against it as long as possible, it will not be hurt by prompt c'onsideration of petitioners'laims.
- Xndeed, FPL as well as petitioners and government respon-1 dents will enjoy the economies of consolidated proceedings before NRC.
We are authorized to state that counsel for FP&L do.
not join in this motion and have not decided whether to oppose it and that counsel for government respondents have not yet taken a position but will indicate their position in a response.
Respectfully submitted, Robert A. J ion Ron M.
Lan sman Attorneys for Petitioners and Entervenors Homestead, Kissimmee and Starke, Florida September 3.5, 1g80 Law Offices of:
Spiegel
& McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 202-333-4500
CERTIF XCATE OF SERVICE I hereby certify that the accompanying "final MOTION FOR I =
EXPEDITED CONSXDERATION has been served on the following persons by depositing copies in the United.States mail, fi;rst class, postage
- prepaid, this 15th day of September-,
3.980.
Robert B. Nicholson, Esq.
James
- Laskey, Esq.
Antitrust Division U.S.
Department of Justice Washington, D.C".
20530 Leonard Bickwit, Esp.
General Counsel Stephen F. Eilperin, Esq.
Solicitor Peter G.
- Crane, Esq.
Nuclear Regulatory Commission Washington, D.C.
20555 Samuel J. Chilk Secretary Nuclear Regulatory Commission Washington, D.
C.
20555 Herbert
- Dym, Esp.
Covington
& Burling 888 16th Street, N.
W.
Washington, D.C.
20036 J.
A. Bouknight';= Jr.,
Esq.
Lowens te in,
- Newman, Re is, Axelrad
& Toll 1025 Connecticut
- Avenue, N.
W.
Washington, D.
C.
20036 John E.
Mathews, Jr.
Esp.
- Mathews, Osborne,
- Ehrlich, McNatt, Gobelman
& Cobb ll East, Forsyth Street Jacksonville, Florida 32202 Ron M.
Lan sman Attorney for Petitioners and Intervenors Homestead, Kissimmee and Starke, Florida