ML17212A250
| ML17212A250 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 06/25/1981 |
| From: | Green D FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-OL, NUDOCS 8107010321 | |
| Download: ML17212A250 (13) | |
Text
s il
~ e ss UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMXSSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter. of FLORIDA POWER
& LIGHT COMPANY
)
)
)
Docket No. 50-389 OL
)
)
(June 25, 1981)
(St. Lucie Plant, Unit No.
2)
,C I
BRIEF OF FLORIDA POWER
& LXGHT COMPANY IN 9
OPPOSITION TO "BRIEF OF PARSONS
& WHXTTEMORE, INC.
AND RESOURCES RECOVERY (DADE COUNTY),
IN'N SUPPORT OF THEIR APPEAL.FROM DENIAL OF THEIR INTERVENTION PETITION AND REQUEST FOR HEARING" I'/g Florida Power
& Light Company (FPL) hereby submits its brief in opposition to the appeal of Parsons
& Whittemore, Inc.
and Resources Recovery (Dade County), Inc. (Petitioner) from the Licensing Board's June 3,
1981 "Order Relative to Petitions to Intervene Concerning Antitrust Matters" (Order) in this docket,.
On March 9, 1981 the Commission published in the Federal
~Re ister a notice entitled "Florida power
& Ligllt Co.; Receipt of Application for Facility Operating License; Availability of Applicants'nvironmental Report; and Consideration of Issuance may be affected 'by the proceeding" to file by April 7 a petition to intervene and a recfuest for hearing.
(Id.
On April 7, Petitioner filed a "Petition For Leave OCKG'<0 usgRO 3
)UNg 6)S81p cf.
Office 4f~f'~~
Qotfs~~ESSn'0 Qggtlll 0$
SX O'F0 X 0~/
of Facility Operating License Opportunity of Hearing."
(46 Fed. +gy~
S
~Re
. 15831 (1980) )
(Notice of Hearing).
The Notice of Hear-I /(
ing offered an opportunity for any person "whose interest
/ ~',
h V
/'ll I
I~I y
C 8 f
v )j' J'
CI
~
7 Intervene and Request for Hearing" (Petition) in which it requested leave to intervene and asked the Commission "to hold a limited antitrust hearing."
(Petition, p. 1).
Both FPL and the NRC Staff opposed the Petition on the grounds, among others, that it sought to raise only antitrust issues in a proceeding convened to consider the health, safety and environmental considerations associated with operation of St.
Lucie Unit No. 2.
On June 3,
1981 the Licensixg Board
- /
issued its Order," in which it explained that the Notice of Hearing provided an opportunity for hearing on health, safety, and environmental matters associated with issuance of an operating license for St. Lucie Unit No. 2; observed that I
there is currently an ongoing proceeding to review the anti-trust aspects of the construction permit for St. Lucie Unit No. 2; and found that Petitioner sought to raise only anti-trust issues and that such issues were outside the scope of its jurisdiction.
Consequently, the Licensing Board, rely-ing on the Appeal Board's pronouncements in Marble Hill (Public Service Co. of Indiana (Marble Hill Nuclear Gen-crating Station, Units 1 and 2), ALAB-316, 3
NRC 167 (1976))
"/
FPL also demonstrated in its response that Petitioner has no cognizable interest which would support its intervention in this, or any other, NRC proceeding; that there is no pending antitrust proceeding associated with the Commission's review of the St. Lucie Unit No.
2 operating license; and that the Petition was insufficient to cause the Commission to initiate such a review.
dismissed the Petition.*/
(Order, p. 4).
On June 15, 1981 Petitioner noted its appeal from the
- /
Licensing Board's Order.
In its Brief supporting its appeal Petitioner argues that the Board committed reversible error in two respects, described below.
For the reasons hereinafter
- /
set forth, FPL opposes the appeal in both respects.
"Order Relative To Petitions To Intervene Concerning Antitrust Matters."
That order also dismissed a petition by certain Florida cities to intervene on antitrust grounds.
On June 16, 1981, the sole Petitioner for intervention on non-antitrust grounds having withdrawn, the Licensing Board issued an "Order Dismissing The Pro-ceeding."
On June 18, 1981, this Board issued an Order in which'it noted the instant appeal and stated that the finality of the Licensing Board's June 16 Order is de-pendent upon the determination of the appeal.
"Brief of Parsons i Nhittemore, Inc.
and Resources Recovery (Dade County), Inc,'n Support Of Their Appeal From Denial Of Their Intervention Petition And Request For Hearing" (Brief).
In its Brief, Petitioner advances a strange procedural suggestion.
As Petitioner notes, it now has pending before the Atomic Safety and Licensing Board presiding over the St. Lucie Unit No.
2 construction permit anti-trust review a petition to intervene (filed seven years and four months late).
Petitioner suggests that this appeal be docketed by the Appeal Board but that action be deferred on the matter "until after the Licensing Board decision" (Brief, p.
2) on its late petition to intervene.
Petitioner believes that the Appeal Board, before ruling on the instant appeal, should have "the benefit of the Licensing Board's decision in the pending companion matter."
(Id. at=3).
Petitioner's suggestion is without merit and should not be heeded by the Appeal Board.
Petitioner erroneously assumes that the issue presented by this appeal is in some way related to the issues raised in its late petition to intervene in the construc-tion permit antitrust proceeding.
This, of course, is not the case.
The issues presented by its late petition to intervene in the construction permit docket include, among others, whether Petitioner can show good cause for filing its petition seven years and four months late.
However, the issue raised in this appeal is simply whether antitrust issues can be heard in a proceeding convened to hear health, safety, and environmental matters.
The answer to that question is quite clear<
and there is no need for the Appeal Board to delay its decision on that point)
I.
The Issues Which Petitioner Seeks To Raise Are Beyond The Scope Of This Proceeding And The Licensing Board Was Correct In Denying The Petition To Intervene In its Brief, Petitioner contends that the Licensing Board erred when it determined that antitrust issues were not within the scope of the proceeding initiated pursuant to the Notice of Hearing.
Petitioner argues that the Notice of Hearing "coupled with the NRC's preexisting policy statements" specifically indicates that antitrust issues were to be included, and states that "[i]f the Commission did not intend [to include antitrust issues], its notice was defective."
(Brief, pp. 5-7).
Finally, Petitioner contends that the failure of the Notice specifically to mention antitrust issues violates the Commission's Statement of Policy,Section X of Appendix A to Part 2 because, says Petitioner, that provision compelled the Commission to offer an opportunity for an antitrust hear-
- /
ing when it published the March 9 Notice.
(Brief, p.').
"/
Petitioner supports its assertions with respect to the requirements of Section X by quoting in its Brief that part of Section X which provides that, under certain circumstances, a Notice will state that persons who wish to have their views on the antitrust aspects of the application presented to the Attorney General for consideration shall submit such views to the Commission within sixty (60) days.
[Emphasis added by Petitioner]
(Brief, p.
7)
This is true so far as it goes, of course.
But what seems to escape Petitioner is that the opening clause in the sentence which Petitioner quotes states, in relevant part, that When an application for
. an operatinq license for a facility under section 103 of the Act sub'ect to antitrust review under sec-tion 105 is received, the notice
. wall state (emphasxs added)
(10 C.F.R. Part 2, App.
A 5 X (b) (1980) )
thus making it clear that such notice provisions are applicable only to antitrust proceedings.
Petitioner's arguments reflect a misunderstanding of the Commission's dual licensing process.
It is standard, and long-
- standing, Commission policy to review antitrust matters raised in connection with the licensing of a facility "separately from the hearings held on matters of radiological health and safety" for the same facility.
(10 C.F.R. Part 2, App. A g X(e)
{1980);
- See,
~e
, Duke Power Co.
(Oconee Nuclear Station, Units 1, 2, and 3),
4 AEC 592 (1971); Boston Edison Co. (Pilgrim Nuclear Power Station),
4 AEC 666 (1971)). In fact, the Commission's rules specifically provide both with respect to construction permits and operating licenses that "unless the Commission determines otherwise" a hearing on the antitrust aspects of an application will be considered at a proceeding other than 4/
the one convened to hear environmental and safety matters.
(10 C.F.R. 5 2. 104 (d)
(1980) ).
Moreover, the Appeal Board has previously been faced with a situation virtually identical to that here that is, an intervenor seeking to raise antitrust issues in a health and
~/
It is clear that if the Commission chose to do so, it could order a combined antitrust/health and safety hearing; separation of the two is not an absolute requirement.
{See,
~e 10 C.F.R. Part 2, App.
A 5 X(e)
(1980) "If a hearing on antitrust aspects of [an] application is [ordered].
, it will matters of radiological health and safety.
..")
(emphasis added).
In this instance,
- however, the Commission has issued no such order and it is well settled that the Licensing Board could not have initiated a new or different proceeding in response to the Petition.
(Houston Lightin and Power Co.
(South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582 (1977); Carolina Power and Li ht Co.
(Shearon Harris Nuclear Power Plant, Units 1, 2, 3 and 4), CLI-80-12, ll NRC 514 (1980) ).
safety proceeding and has determined that the Commission's policies with respect to convening separate boards to consider antitrust matters apart from health,
- safety, and environmental matters associated with the same nuclear generating facility "are neither unreasonable nor unfair."
(Marble Hill, ~su ra at 171).
In fact, the Appeal Board found that policy to be a direct consequence of the expressed intention of the Congress when, in 1970, it adopted the present prelicensing antitrust review provisions of the Atomic Energy Act, Section
- 105c, and concluded that not to conduct separate proceedings "would con-flict with Congressional expectations."
(Marble Hill, ~su ra at 171-172).
Under the system which has been established, the Commission's Notice sets the scope of the proceeding and establishes the authority of the Licensing Board, and where as here a Licensing Board is convened to hear health, safety
- /
and environmental issues-it lacks jurisdiction to grant a
petition to intervene which seeks to raise antitrust issues.
"/
Petitioner's emphasis on the failure of the Notice to specifically state that antitrust issues are excluded is misplaced.
Petitioner fails to comprehend what the Notice includes.
The Notice announces receipt of Applicant's application for a facility operating license and environ-mental report for St. Lucie Unit No.
2 and is therefore limited to the matters set forth therein.
The matters in those documents are limited exclusively to the health, safety and environmental effects of operation of the facility.
In inviting participation to those whose interest may be affected by "this proceeding" the Notice mental/safety and health proceeding in which antitrust issues are not involved.
(See, ~e, Pacific Gas
& Electric Co.
(Stanislaus Nuclear Project, Unit No. 1), ALAB-400.,
5 NRC 1175 (1977); Carolina Power 6 Li ht Co.
(Shearon Harris Nuclear Power Plant, Units 1,
2, 3 and 4), ALAB-577, ll NRC 18< 25-26 (1980); Marble Hill,
- /
~su ra).
Finally, no opportunity to raise antitrust issues could have been offered by the Notice, because no proceeding to review antitrust matters associated with the review of the operating license for St. Lucie Unit No.
2 has been ordered by the Commission.
As FPL pointed out in its Response (pp.
13-14),
such a proceeding cannot be initiated until the con-struction permit, antitrust review has been completed,
- and, even then, only after the Commission, following the advice of the Attorney General, makes the finding that "significant changes" have occurred in FPL's activities after completion of the construction permit antitrust review.
(Atomic Energy Act g Section 1 05 (c) (2); South Caro 1ina E 1ectric and Gas Co.
CLI-80-28, ll NRC 817, 823 (n.ll), 825 (1980) ),
Here, the construction permit antitrust review has not been completed and no such finding has been made.
II.
The Licensing Board Did Not Frr In Failing To Treat Se aratel Petitioner's Asserted PURPA Interests Petitioner further argues that its Petition presented a
- second, independent, ground for intervention in the proceeding,
"/
- See, "Response Of Florida Power a Light Company In Opposition to 'Petition To Intervene and Request For Hearing'iled by Parsons 6 Whittemore, Inc. and Resources Recovery (Dade County), Inc."
May 6, 1981, pp. 6-8, (Response),
for an additional description of the manner in which the Commission carries out its antitrust responsibilities and the case authorities.
viz., the claimed adverse effect of the settlement license con-ditions on its asserted rights under the Public Utility Regulatory Policies Act (PURPA),
16 U.S.C.
g 824a-3 (Supp. III 1979).
Petitioner alleges that the Licensing Board erred in dismissing its Petition without mentioning its allegations with respect to the effects of the proceeding on rights to which it claims it is entitled under PURPA.
(Brie'f, pp. 8-9).
Petitioner's assertion that the Licensing Board should have treated its PURPA allegations as a separate grounds for intervention is without merit.
First, the Petition repre-sented that it was being filed to "re uest the Commission to hold a limited antitrust hearin
, as described
- below, on FP&L's application."
(emphasis added)
(Petition to Intervene, p.
- 1).
Moreover, the Petition stated that "Petitioner's PURPA rights are interrelated with their antitrust concerns."
(Petition, p. 10).
Clearly it was rational for the Board to h
characterize PaW's assertions as dealing "solely" with "anti-,
trust concerns."
Petitioner made no effort before the Board below (and makes no effort before this Appeal Board) to show any interest in the determination of the health, safety and environmental issues with which the Notice was concerned, much less that any such interest might be affected by any proceeding ordered pursuant to that. Notice.
In any event. Petitioner's assertions with respect to how
~
~
any rights to which it might be entitled under PURPA may be affected by action taken by the NRC are groundless.
Even if Petitioner did lawfully own or control a Qualifying Facility, which Licensee disputes (Response, pp. 8-12), its arguments that the settlement license conditions somehow affect adversely
- /
Petitioner's rights under PURPA-are without substance.
Qualifying Facilities are entitled to certain benefits under PURPA.
(16 U.S.C.
g 824a-3 (Supp. III 1979)).
The Federal Energy Regulatory Commission (FERC) is the federal agency charged with administering PURPA and in fact the FERC has promulgated rules which govern both qualification of facilities and benefits conferred on those facilities by PURPA.
(18 C.F.R.
5, 292 (1980) ).
PURPA contains a compre-hensive regulatory scheme regarding the relationship between electric utilities and small power producers.
That scheme is
- /
unaffected by any license'conditions imposed by this Commission and therefore Petitioner's appeal should be dismissed on these grounds as well.
"/
FPL assumes that this assertion is the thrust of footnote 4, p.
8, in Petitioner's Brief.
However, that footnote is not a model of clarity, and it is difficult to tell what point Petitioner attempts to make.
"*/
The settlement license conditions expressly acknowledge this in Section XIII(c) which provides:
"[n]othing herein shall be construed to affect the jurisdiction of FERC or any other regulatory agency."
10 III.
Conclusion For.the reasons given above, FPL submits that the Order of the Licensing Board should be upheld and Petitioner's appeal denied.
Respectfully submitted, ouglas G. Green Lowenstein,
- Newman, Reis 6 Axelrad 1025 Connecticut
- Avenue, N.
W.
Washington, D. C.
20036 Herbert Dym Covington a Burling 888 16th Street, N.
W.
Washington, D. C, 20006 Attorneys for Florida Power
& Light Company DATED:
June 25, 1981
UNITED STATES OF SJKRICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING-APPEAL BOARD In the Matter of
)
)
FLORIDA POWER 6 LIGHT COMPANY
)
)
(St. Lucie Nuclear Power Plant
)
Unit No.
2)
)
Docket No. 50-389 OL CERTIFICATE OF SERVICE I hereby certify that copies of "Brief of Florida Power 6 Light Company in Opposition to 'Brief of Parsons 6 Whittemore, Inc. and Resources Recovery (Dade County), Inc. in Support of Their Appeal from Denial of Their Intervention Petition and Request for Hearing'", dated June 25, 1981, were served upon the following persons by hand delivery* or by deposit in the U. S. Mail, first class, postage prepaid this 25th day of June 1981.
- Alan S. Rosenthal, Chairman Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555
- Dr. John H. Buck Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555
- Christine N. Kohl Atomic Safety and Licensing Appeal Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Ivan W. Smith, Esquire Chairman Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.
C.
20555 Robert M. Lazo, Esquire Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Michael A. Duggan, Esquire College of Busines's Administration University of Texas Austin, Texas 78712 Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Jerome
- Saltzman, Chief Antitrust a Indemnity Group U. S. Nuclear Regulatory Commission Washington, D. C.
20555 Atomic Safety and Licensing Board 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
- William D. Paton, Esquire Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D. C.
20555
~
~
P Joseph Rutbexg, Esquire Lee Scott Dewey, Esquire Fredric D. Chanania, Esquire Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D.
C.
20555 Ann P. Hodgdon, Esquire Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Thomas Gurney, Sr., Esquire 203 North Magnolia Avenue Orlando, Florida 32802 Robert E. Bathen Fred Saffer R.
W. Beck
& Associates 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, Average Gray
& Stripling Post Office Drawer-0 Gainesville, Florida 32602 Janet Urban, Esquire U.S. Department of Justice P. 0. Box 14141 Washington, D. C.
20044 Donald A. Kaplan, Esquire Robert Fabrikant, Esquire Antitrust Division U,S. Department of Justice Washington, D. C.,
20530 Charles R. P.
Brown, Esquire Brown, Paxton and Williams 301 South 6th Street P.
O. Box 1418 Fort Pierce, Florida 33450
- George Kucik, Esquire Mare Gary, Esquire Ellen E. Sward, Esquire Arent, Fox, Kintner, Plotkin
& Kahn 1815 H Street, N.
W.
Washington, D. C.
20006 Benjamin H. Vogler, Esquire U.S. Nuclear Regulatory Commission Washington, D. C.
20555 Norman A. Coll, Esquire
- Steel, Hector
& Davis Southeast, First National Bank Bldg.
Miami, Florida 33131 s
G, Green owenstein,
- Newman, Reis
& Axelrad 1025 Connecticut, Avenue, N.
W.
Washington, D. C.
20036 (202) 862-8400