ML17209B255

Motion for Leave to Respond by 810715 to Util 810526 Answer Opposing 810407 Petition to Intervene.Aslb Should Rule Issue Is Moot.Ol Cannot Be Issued Until Completion of Antitrust Review in CP Proceeding.W/Certificate of Svc

ML17209B255
Person / Time
Site:	Saint Lucie
Issue date:	06/16/1981
From:	Jablon R FLORIDA CITIES (FLORIDA MUNICIPAL UTILITIES ASSOCIATE
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-OL, NUDOCS 8106190118
Download: ML17209B255 (6)

Text

BEFORE THE UNITED STATES

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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD "'>0<@ >q

)eke(;p g ~W In the Matter of Florida Power Light Company S ) -389- L

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(St. Lucie Plant, Unit No. 2) ) Date: July 16, 198

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CITIES MOTION OF FLORIDA k

FOR LEAVE TO RESPOND l

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By petition of April 7, 1981, Florida Cities have requested intervention in antitrust proceedings'elated to FP operating license and consolidation of such proceedings, with construction permit antitrust review. FPL states in an answer dated May 26, 1981, that Cities'etition to intervene is mocnR "It is an established principle of NRC prac-tice that antitrust conditions attached to a construction permit remain in effect after the issuance of an operating license. In every case in which antitrust license conditions have been attached to a construction permit, the NRC has extended those license conditions upon the issuance of an operating license for the time span of the license. The Cities allege no basis for suspecting that the Commission would not do the same here.

Accordingly, the Cities'etition is moot by its own terms. Their intervention is predicated upon the defense of an established tenet of NRC practice which FPL does not contest. On this basis alone, the Cities'etition should be denied."

(Answer, pp. 4-5)

Additionally, FPL argues that "antitrust contentions are i

beyond the scope of this proceeding". In a parallel argument the Company states:

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"No Antitrust Review has been Ordered in Connection with the St. Lucie Unit No. 2 Operating License Review."

and that:

"An Operating License Antitrust Review Cannot be Initiated by the Filing of a Petition."

Finally, the Company argues at length and with slight restraint the merits of its position.

FPL appears to argue, but does not quite state, that Florida Cities'ights to relief under an operating license proceeding and construction permit proceeding would be the same.

If Florida Cities'etition is to be denied on grounds that if the petition is dismissed, they lose no rights, then there is no need for response. Further, if FPL arguments are accepted that this Board has no authority to rule one way or the other on antitrust matters or that the Petition is premature, Florida Cities would similarly not seek to respond, although they would then respectfully request that their Petition be forwarded within the Nuclear Regulatory Commission to whoever has the authority to rule and that appropriate procedures be instituted. In all events, they request consolidation with the construction permit proceedings to avoid wasteful duplication of litigation time and effort.

However, if the Board is prepared to rule on the. merits, in view of the content and nature of FPL's arguments on the merits, they seek a right to respond no later than July 15, 1981.

They note that the July 15th date is requested after consultation

with counsel for Florida Power G Light Company, who does not object to such date, assuming that a response would be appropriate.

CONCLUSION (1) The Board should rule that the issue is moot because, absent a waiver, the operating license cannot be issued until completion of the antitrust review in the construction permit proceeding and, unless waived, Florida Cities may raise all issues and obtain all relief in the construction permit proceeding that they could obtain in, the operating license proceeding; if the issue is thus ruled moot, the Board may dismiss the Cities'etition; (2) If not ruled moot, the Board should rule that it has jurisdiction over the Cities'ntitrust contentions in this proceeding and grant Cities'eave to respond in accordance with this motion; (3) If the Board rules that it lacks jurisdiction, it should forward Cities'etition and this pleading to the appropriate officials of the Nuclear Regulatory Commission or the Commission Staff for a ruling.

Respectfully submitted, Robert A. Jablon Attorney for Florida Cities June 16, l98l Law offices of Spiegel 6 McDiarmid 2600 Virginia Avenue, N.W.

Washington, D.C. 20037

UNITED STATES OF AMERICA~

LEAR REGULATORY COMMISSI~~,

Florida Power 6 Light Company Docket Nos. 50-389-OL (St. Lucie Plant, Unit No. 2)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing were served by hand delivery (*) or by deposit in the United States Mail, first class postage prepaid this 16th day of June, 1981.

Ivan W. Smith, Esquire *Docketing 8 Service Section Chairman Office of the Secretary Atomic Energy and Licensing Board Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Jerome Saltzman, Chief Robert, M. Lazo, Esquire Antitrust & Indemnity Group Atomic Safety and Licensing Board Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Joseph Rutberg, Esquire Michael A. Duggan, Esquire Lee Scott Dewey, Esquire College of Business Administration Fredric D. Chanania, Esquire University of Texas Counsel for NRC Staff Austin, Texas 78712 Nuclear Regulatory Commission Washington, D. C. 20555 William D. Paton, Esquire Counsel for NRC Staff Richard S. Salzman, Esquire Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D. C. 20555 Appeal Board Panel Nuclear Regulatory Commission Elizabeth S. Bowers, Chairman Washington, D. C. 20555 Atomic Safety. and Licensing Board Panel Thomas Gurney, Sr., Esquire Nuclear Regulatory Commission 203 North Magnolia Avenue Washington, D. C. 20555 Orlando, Florida, 32802 Dr. Peter A. Morris William C. Wise, Esquire Atomic Safety and Licensing Board 1200 18th Street Panel Suite 500 Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 William H. Chandler, Esquire Dr. Oscar H. Paris Chandler, O'Neal, Avera, Gray Atomic Safety and Licensing Board S Stripling Panel Post Office Drawer 0 Nuclear Regulatory Commission Gainesville, Florida 32602 Washington, D. C. 20555

Janet Urban, Esquire J. A. Bouknight, Jr ., Esquire P. O. Box 14141 Lowenstein, Newman, Reis &

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

Donald A. Kaplan, Esquire Washington, D. C. 20036 Robert Fabrikant, Esquire Antitrust, Division Herbert Dym, Esquire Department of Justice Covington & Burling Washington, D. C. 20530 888 16th Street, N. W.

Washington, D. C. 20006 Charles R. P. Brown, Esquire Brown, Paxton and Williams Ben Vogler, Esquire 301 South 6th Street Nuclear Regulatory Commission P. 0. Box 1418 Washington, D. C. 20555 Fort Pierce, Florida 33450 Ann P. Hodgdon, Esquire George R. Kucik, Esquire Nuclear Regulatory Commission Mare Gary, Esquire Washington, D. C. 20555 Ellen Sward, Esquire Arent, Fox, Kintner, Plotkin &

Kahn 1815 H Street, N. W.

Washington, D. C. 20006 Robert A. J ion Attorney for Florida Cities Law offices of:

Spiegel & McDiarmid 2600 Virginia Avenue, N. W.

Washington, D. C. 20037