ML17209B080

Discusses Petitioners' Resistance to Applicant 810507 Application for Issuance of Subpoenas.Subpoenas Should Be Issued W/O Delay.Parties May File for Protective Orders. Certificate of Svc Encl

ML17209B080
Person / Time
Site:	Saint Lucie
Issue date:	05/13/1981
From:	Green D FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Smith I Atomic Safety and Licensing Board Panel
References
ISSUANCES-A, NUDOCS 8105200272
Download: ML17209B080 (7)

Text

.4. f LAW OFFICES LOWENSTEIN, NEWMAN, REIS 8c AXELRh.D IO2S CONNECTICUT AVENUES N. W.

ROBERT LOWCNSTCIN WASHINGTON'. C. 20036 ACK R, NCWMAN HAROLD F. RCIS MAURICE AXELRAD 202 862-8400

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KATHLCEN H,SHCA J. A. SOVKNIGHT, JR.

MICHAEL A. SAVSCR DOUGLAS G. GRCEN May 13, 1981 E. GRCGORY SARNCS

~~'l ALSCRT V. CARR, JR 6' ANNE W. COZTINGHAM KATHLECN A. COX ROSCRT H,CVLP PETER G. FLYNN STCVCN P. FRANTZ FREDERIC S. GRAY ALVIN H. GVTTCRMAN DAVID G. POWCLL DAVID S. RASKIN DOCKETED DONALD J SILVERMAN UsNRc ADM. KCN.

MAY g4198) ~ 2 cn Office of t'e Sccrctae BY HAND l Docketing & Service Branch Ivan W. Smith, Esquire C>

Chairman U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: In the Matter of Florida Power & Light Company (St. Lucie Plant, Unit No. 2),

Docket No. 50-389A

Dear Chairman Smith:

Late yesterday afternoon the undersigned, counsel for Applicant Florida Power & Light Company (FPL), received a copy of a letter from counsel for Parsons & Whittemore, Inc.

(P&W) and its subsidiary Resources Recovery, Inc. (RRD),

recent joint Petitioners for late intervention in the above-identified proceeding. The topic of the letter, insofar as it bears on this proceeding, is Petitioners'ntention to respond to FPL's filing of May 9, 1981."/ On that date FPL filed an Application for Issuance of Subpoenas which seeks

+/ Petitioners have filed two virtually identical petitions to intervene on antitrust grounds, the first in the operat-ing license health and safety environmental proceeding (Docket No. 50-389 OL) and the other in the instant pro-ceeding (Docket No. 50-389A). FPL has responded to the petition filed in the operating license proceeding, and has pointed out that that petition is deficient sub-stantively, procedurally, and factually. Response dated l)~~

May 7, 1981. Petitioners'etter states that Petitioners intend to file some undefined form of motion for extension of time in the operating license proceeding as well as i/~

in this case.

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LOWE N STEIN> NEWMAN&> RE IS 8C AX AD Ivan W. Smith, Esquire May 13, 1981 to probe the basis of the principal factual representations upon which the late petition is predicated. The Application was accompanied by a Motion for Extension of Time to permit the subpoenas to be fruitfully executed. In counsel's letter, Petitioners now state that they will resist the discovery into the factual representations in their petition sought by FPL, and that they will move the Board for an extension of time to permit formulation of such an argument."/ On this basis, the letter requests the Board to defer any action on FPL's Application for Issuance of Subpoenas or its accompanying motion.

Because this request is plainly counterproductive, and because Petitioners'etter is not clear on the procedures Petitioners apparently are following, FPL submits this brief response.

It is FPL's position issued without that the requested subpoenas should be delay. Under NRC rules subpoenas are ordinarily issued on an ex parte basis. 10 C.F.R. 5 2.720. The rules provide procedures wheere ay parties may obtain protective orders against such subpoenas -- if they can be demonstrated to be unreasonable. Id. The process has two parts: (1) issuance of the subpoenas and (2) resolution of any motions for protection. The first stage ordinarily does and should proceed without delay. The second stage is ordinarily resolved in an expeditious fashion by the licensing tribunal. Petitioners now seek delay both in issuing the subpoenas and (via their motion for an extension of time) in addressing the question of whether the subpoenas are reasonable. Such two-staged delay would be without basis in any instance, but, is particularly inappropriate here where it is sought in order to block factual inquiry into a patently untimely petition. For these reasons, FPL believes that the requested subpoenas should be issued forthwith.

When Petitioners file their motion, the Board may, in its discretion, set up expeditious procedures to deal with any request for protective orders that motion may contain. In the meantime, however, the subpoenas should issue and be served.

In this way, if the Board concurs with FPL that the petitions should be disposed of on an informed record and does not accept

"/ The letter advised that the motion for such an extension of time would be filed late yesterday or today.

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LowENsTEIN NEMAN, REIs & Ax AD

'H Ivan W. Smith, Esquire May 13, 1981 Petitioners'rguments to resist discovery, that discovery may proceed without delay.

e ectfu 1 s bmitted, g G. Green ounsel for Florida Power & Light Company DGG:lkf cc: Service List

UN ED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389-OL

)

(St. Lucie Nuclear Power Plant, )

Unit No. 2.) )

CERTIFICATE OF SERVICE I hereby certify that copies of letter to Ivan W. Smith, Esquire from Douglas G. Green were served by hand delivery

• or by deposit in the U.S. Mail, first 'I class postage prepaid this 13th day of May, 1981.

• Ivan W. Smith, Esquire

• Dr. Oscar H. Paris Chairman Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555

• Robert M. Lazo, Esquire Atomic Safety and Licensing Board Docketing and Service Station U.S. Nuclear Regulatory Commission Office of the Secretary Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Michael A. Duggan, Esquire Washington, D.C. 20555 College of Business Administration University of Texas Jerome Saltzman, Chief Austin, Texas 78712 Antitrust & Indemnity Group U.S. Nuclear Regulatory William D. Paton, Esquire Commission Counsel for NRC Staff Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board

• Elizabeth S. Bowers, Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Board Commission Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Richard S. Salzman, Esquire Atomic Safety and Licensing

• Dr. Peter A. Morris Appeal Board Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Panel Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

'oseph Rutberg, Esquire Donald A. Kaplan, Esquire Lee Scott Dewey, Esquire Robert Fabrikant, Esquire Fredric D. Chanania, Esquire Antitrust Division Counsel for NRC Staff U.S. Department of Justice U.S. Nuclear Regulatory Washington, D.C. 20530 Commi ss ion Washington, D.C. 20555 Charles R.P. Brown, Esquire

• Ann P. Hodgdon, Esquire Brown, Paxton and'illiams 301 South 6th Street Office of the Executive Legal P.O. Box 1418 Director Fort Pierce, Florida 33450 U.S. Nuclear Regulatory Commission Helen Shea Wells Washington, D.C. 20555 93 El Mar Drive Jensen Beach, Florida 33457 Thomas Gurney, Sr., Esquire 203 North Magnolia Avenue

• George R. Kucik, Esquire Orlando, Florida 32802 Mare Gary, Esquire Ellen E. Sward, Esquire Robert E. Bathen Arent, Fox, Kintner, Plotkin & Kahn Fred Saffer 1815 H Street, N.W.

R.W. Beck & .Associates Washington, D.C. 20006 P.O. Box 6817 Orlando, Florida 32803 George Spiegel, Esquire Robert Jablon, Esquire Daniel Guttman, Esquire Spiegel & McDiarmid 2600 Virginia Avenue, N.W.

Washington, D.C. 20037 William C. Wise, Esquire Suite 500 1200 18th Street, N.W.

Washington, D.C. 20036 William H. Chandler, Esquire Chandler, O'Neal, Avera, Gray & Stripling Post Office Drawer 0 Gainesville, Florida 32602 Janet Urban, Esquire U.S. Department of Justice u as . Green P.O. Box 14141 owenstein, Newman, Reis &

Washington, D.C. 20044 Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 DATED: May 13, 1981 (202) 862-8400

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