ML17212A255
| ML17212A255 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 05/06/1981 |
| From: | Bouknight J FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| Shared Package | |
| ML17212A256 | List: |
| References | |
| ISSUANCES-OL, NUDOCS 8107020501 | |
| Download: ML17212A255 (27) | |
Text
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UN TED STATES ',,OF AMERICA USNRO NUCLEAR REGULATORY COMMISSION ~
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 5tflE5 6f Ss Secret[
55MUhj 8 Senlce Se~h In the Matter o )
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FLORIDA PO4'ER 6 LIGHT COMPANY ) Docket No. 50-389-OL
)
(St. Lucie Nuclear Power Plant, )
Unit No. 2) )
RESPONSE OF FLORIDA POKER & LIGHT COMPANY IN OPPOSITION TO "PETITION TO INTERVENE AND REQUEST FOR HEARING" FILED BY PARSONS 6 VHITTEMOR:., INC. AND RESOURCES RECOVERY (DAD" COUNTY), INC.
Florida Power 6 Light Company (FPL), pursuant to 10 CFR 5 2.714(c) and this Board's order of April 17, 1981, hereby files its response in opposition to the "Petition For Leave To Intervene And Request. For Hearing" (Petition) filed by Parsons & Vhittemore, Inc. and its subsidiary, Resources Recovery (Dade County), Inc. (Petitioner) in res-ponse to the Commission's March 9, 1981 Notice of Hearing in this docket.
As will be explained in detail below, FPL opposes the Petition on three grounds: First, the Petition must be re-jected because it seeks to raise antitrust issues. These issues are beyond the scope of this proceeding, which is limited to health, safety and environmental matters by
.the Commission's March 9 Notice of Hearing. Second, contrary to the representations which Petitioner has made to this I
~ d tl Commission, it does not lawfully control a qualifying facility within the meaning of Section 201 of the Public Utility Regulatory Policies Act of 1978 (PURPA), (16 U.S.C.
gg 796) and the implementing regulations. (18 C.F.R. Part 292 (1980)). Therefore, the Petition cannot be read as demonstrating a cognizable interest which would support intervention in this or any other NRC proceeding. Third, no antitrust review has been initiated in connection with the operating license application for St. Lucie Unit No. 2.
Yo such review can be conducted until and unless the Commission, on its own motion, makes certain findings prescribed in Section 105c(2) of the Atomic Energy Act.
(42 U.S.C. 5 2135(c)(2)(1976)). Accordingly,'o petition for an antitrust hearing in connection with the operating lic-ense application can properly be entertained. In any event, the allegations contained in the Petition fall short of de-monstrating any basis for the Commission to make the findings required by Section 105c(2) for the initiation of an operating license antitrust review.
Finally, although the substance of the antitrust alleg-ations in the Petition need not be reached by this Board in order for it to dispose of the Petition, those allegations are without basis in fact or law.
Introduction and Back round On March 9, 1981, the Commission published in the Federal
Register a notice entitled "Florida Power & Light Co.; Re-ceipt of Application for Facility Operating License; Avail-ability of Applicant's Environmental Report; and Consider-ation of Issuance of Facility Operating License Opportunity of Hearing." (Notice of Hearing) (46 Fed. Reg. 15831 (1980)) ~
The Notice of Hearing offered an opportunity for any person "whose interest may be affected by this proceeding" to file b April 7 a petition to intervene and a request for hearing.
(Id.)
On April 7, Petitioner made the instant filing, in which it requested leave to intervene and asked the Commission "to hold a limited anti-trust hearing . . . ." (Petition, p. 1'). The filing consists of the Petition, a document entitled "Brief of Resources Recovery (Dade County), Inc. and Parsons & Nhxtte-more, Inc. In Support Of Their Petition For Leave To Intervene And Request For An Antitrust Hearing" (Brief) and Appendices. 1/
Petitioner states that it has "recently completed" con-struction of a solid waste processing facility in Dade County, Florida, which will process solid waste, convert combustibles into fuel, and burn the fuel to create steam. In conjunction 1/ Subsequently, on April 24, 1981, Petitioner filed a second petition which appears to be addressed to the Atomic Safety and Licensing Board presiding over the antitrust proceeding being conducted in the context of the St. Iucie Unit No. 2 construction permit pro-ceeding, Docket No. 50-389A. FPL intends to submit its response to the second petition to that Licensing Board, and will serve copies of that response upon the members of this Licensing Board.
with the solid waste processing facility, an electric generator will use the steam to generate electricity.
petitioner contends that it "owns and is test operating" the electric generator. (Brief, p.5). Petitioner asserts that the facility is a aualifying small power production facility within the meaning of Section 201 of PURPA, 16 U. S. C. 5 796, and the implementing regulations {18 CFR Part 292) promulgated by the Federal Energy Regulatory Commission (FERC). Petitioner also contends that "fZt] has complied with the recuirements of PURPA and has taken the necessary steps to secure the benefits to which it is entitled," by notifying the FERC that it is a aualifying facility under PURPA, and notifying FPL that it "will begin sales of electric energy to Florida Power 6 Light, Company" within a short time., {Brief> p.6). Finally, Petitioner contends that it has also sought to explore competitive opportunities for sales to other electric utilities and to that end has asked FPL to confirm that it "will transmit electricity in behalf of
[Petitioner] to potential customers other than FPL." (Petition, p.3) .
Petitioner alleges that if FPL is permitted to operate St. Lucie Unit No. 2 under the terms of the license conditions which were attached to the construction permit for St. Lucie
'nit No. 2 pursuant to an order by an Atomic Safety and
Licensing Board dated April 24, 1981-, a ii i situation inconsistent with the antitrust laws'ay be created or maintained." (Petition, pp.2-3). Petitioner's complaint concernsSection X of the license conditions, which, among other things, reouires that FPL provide transmission ser-vices for electricity produced by qualifying small power production facilities in circumstances and under conditions which Petitioner contends are unduly limited. (Petition, p.4),
On this basis, Petitioner contends that implementation of the license conditions will "significantly change" FPL's activities and proposed activities within the meaning of Section 105c(2) and that, consequently, the Commission should hold an operating license antitrust review, including a "limited" hearing in which it should be permitted to parti-cipate as an intervenor. Petitioner's stated "limited pur-pose" in intervening is "to be heard" on the "potentially de-trimental impact" of Section X of the license conditions on 2/ Florida Power 6 Li ht, Com an (St. Lucie Plant, Unit No.
2), Docket No. 50-389A, Memorandum and Order dated April 24, 1981. The order makes effective immediately certain license conditions proposed as part of a settlement among FPL, the United States Department of Justice and the NRC Staff, without, prejudice to the authority of the Licensing Board to impose additional or different conditions after a hearing has been conducted. Approval of the settlement among FPL, the Department of Justice and the Staff does not conclude the construction permit antitrust proceeding, as certain intervenors which have requested a hearing are not parties to the settlement.
its PURPA rights and competitive interests. (Petition, p.9) ~
I. The Issues Which Petitioner Seeks To Raise Are Beyond The Scope Of This Proceedin The Commission's March 9, 1981, Notice offered an oppor-tunity for "any person whose interest may be affected by this proceeding" to intervene and reauest a hearing. 46 Fed.
Reg. 15831. The issues to be considered in "this proceeding" are limited to health, safety, and environmental issues.
Petitioner does not seek to raise any contentions relating to such issues. As Petitioner states, it has sought to intervene and "[requests] a hearing to determine if certain specified activities under the operating license sought by FPEL 'would create or maintain a situation inconsistent with the antitrust )aws.'" (Brief, p.l).
Antitrust matters are beyond the scope of this pro-ceeding and, should an antitrust review in connection with the operating license be conducted, the Commission will order a separate proceeding. It is standard, and long-standing, Commission policy to review antitrust matters raised in connec-tion with the licensing of a facility "separately from the hearings held on matters of radiological health and safety" for the same facility. (10 CFR Part 2, Appendix A 5 X(e); See,
~e. . Duke Power (Oconee Nuclear Station, Units 1, 2, and 3),
4 AEC 592 (1971); Boston Edison Co. (Pilgrim Nuc)ear Power
~ Station), 4 AEC 666 {1971)). In fact. the Commission's rules specifically provide that "unless the Commission determines otherwise" a hearing on the antitrust aspects of an application will be considered at a proceeding other than the one convened to hear environmental and safety matters.
(10 CFR 5 2. 104 {d) ) .
Clearly the Notice of Hearing published on March 9, 1981, does not encompass antitrust issues. In determining whether the Petition raises issues within the scope of the proceeding, the Board is bound by the Commission's Notice of Hearing. By means of that Notice, the Commission sets the scope of the proceeding, and establishes the authority of this Board. Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit No. 1, ALAB-400, 5 NRC 1175 (1977));
Carolina Power & Li ht Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4) ALAB-577, 11 NRC 18, 25 (1980)).
Where a Board is convened to hear environmental, health, and safety issues, it lacks jurisdiction to grant a petition to intervene which seeks to raise only antitrust issues. Public Service Comtian of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167 {1976)). More-over, it is well settled that an Atomic Safety and Licensing Board appointed to rule on intervention petitions submitted in a proceeding cannot initiate a new or different proceeding in response to a petition. Houston Li htin and Power Co.
(South Texas Project, Unit Nos. 1 and 2), ALAB-381, 5 NRC 582
(1977); Carolina Power 6 Li ht. Co. (Shearon'arris Nuclear Power P'ant, Units 1, 2, 3, and 4), CLI-80-12, ll NRC 514, 516 (19SO))-
The Petition should be denied for the reason that.
it seeks to raise antitrust issues which are outside the scope of this proceeding.
II. Petitioner Lacks The Status On Nhich Its Claim Of Interest In Any NRC Pro-ceedino Is Based Even assuming that this was a proceeding in which Petitioner's claims were cognizable, Petitioner would have no standing to intervene, because Petitioner has no legally cognizable interest in the subject matter of this proceeding or any licensing proceeding for St. Lucie Unit No. 2. 3/
The Commission's rules require that, in order to be successful, the Petition must demonstrate (1) the nature of Petitioner's right under the Act to be made a party to the proceeding; (2) the nature and extent of Petitioner's property, financial, or other interest in the proceeding; and (3) the possible effect of any order which may be entered into the proceeding on Petitioner's interest." (10 CFR 5 2.714(d)) .
Petitioner's assertion of interest in any licensing pro-ceeding concerning St. Lucie Unit No. 2 rests on its repre-
-.3/ It shouldeffort made no be noted at the outset that Petitioner has to show any interest in the determination of the health, safety and environmental issues with which this proceeding is concerned, much less that any such interest may be affected by this proceeding. The Petition concerns antitrust matters alone.
sentations to the effect that it. lawfully owns and controls a solid waste processing facility in Dade County, Florida, as well as an electric generator which produces electricity from steam produced by the solid waste facility, (Brief, p.5) and that the facility is a "qualifying small power production facility" vithin the meaning of 4/
PURPA. Petitioner states that it has "complied vitk the requirements of PURPA and has taken the necessary steps to secure the benefits to which it is entitled [under PURPA]." (Petition, p.3). Such "necessary steps" include a notification to the FERC that it is a qualifying facility under the Act. 5/
Khat Petitioner has failed to disclose to the Commission is that contracts are in existence vhich defeat any legal right on Petitioner's part to title to the electric generator and to any right, title, or interest in the electric output from the facility.
FPL and Metropolitan Dade County (Dade County) are parties to a contract which provides that, upon completion 4/ Such a facility is entitled to certain benefits under PURPA and its implementing regulations. 16 U.S.C. 824a-3 (Supp. III 1979); 18 CFR 55 292.101-292.602.
g 5/ FPL intends to oppose Petitioners claim at the FERC and vill in file the appropriate pleadings with that agency the near future.
of construction and after certain technical tests have been satisfactorily completed, but before any electric energy has been produced by the facility, Dade County will transfer to FPL the title to the electrical generator and those directly associated transmission lines required to connect the electrical generator to the FPL grid. The re-after, FPL will own and operate the electric generators anc associated transmission facilities. The electric energy will go into FPL's system and be treated the same as all other energy which FPL generates to serve the needs of its customers. Dade County has also contracted to lease to FPL those portions of the site on which the electric gen-erator is located, so that FPL may use and occupy the sate to operate the electric generator and associated transmission lines to generate and transmit electric energy.
As is common in major commercial contracts of this nature, Dade County has warranted that it is legally authorized to perform its obligations under the contract and is legally obligated to comply with the terms and conditions set out 6/ A copy of the contract between FPL and Dade County is attached to the affidavit of J.T. Blount, FPL's Assistant Corporate Secretary, as Appendix A to this response.
therein. 7/ FPL is informed that there also exists a contractual relationship between Petitioner and Dade County, and that Dade County claims that Petitioner is in breach of its obligations under that contract. 8/
FPL is not directly involved in the dispute between Petitioner and Dade County. However, FPL is certainly entitled to rely on its contract with Dade County which is in full force and effect.
The burden is on the Petitioner to demonstrate the legitimacy of its claim of interest in any NRC pro-ceeding in which it seeks to participate. In this case, 7/ The contract between FPL and Dade County refers to Petitioner as Dade County's "contractor" for the con-struction of the facility. FPL has no direct know-ledge of the arrangements made between Petitioner and Dade County for ownership of the facility during construction. However, the contract between FPL and Dade County reflects that Dade County contemplates holding sufficient title to the site, the electrical generator, and the transmission facilities to permit the County to perform unconditionally its obligations to transfer to FPL ownership of such facilities and a leasehold interest in the underlying real estate.
8/ Attached as Appendix 8 is a letter from Petitioner to Dade County acknowledging the existence of such a contract and asserting Petitioner's alleged right to terminate that contract. Dade County filed suit against Petitioner in the U.S. District Court in Miami, but that suit was dismissed on the ground of want of diversity of citizenship between the parties. {Metropolitan Dade
~Count v. parsons s whittemore, Inc., et al. No. 80-3333-Cxv.-EDS (S.D. Fla. ) . FPL xs informed that some of the issues in dispute between Dade County and Petitioner have been submitted to arbitration.
that burden would reauire Petitioner to establish the inval-idity of solemn contractual commitments which demonstrate that FPL, not Petitioner, would be the owner of the electric generators when they are constructed. Even if an antitrust proceeding were pending in which the Petition could be con-sidered, it is not the function of the NRC to resolve a commercial contractual cxspute among private parties ~ In this ins.ance, the Petitioner avoided dealing with these questions in its Petition by simply not apprising the Commission of the existence of contracts which place a serious cloud over the claims made in the Petition.
Petitioner's failure to substantiate the claims on which its assertion of interest is based is a secon ond independent reason for denial of the Petition.
III. No Antitrust Review Has Been Ordered In Connection Nith The St. Lucie Unit No. 2 Operating License Application And The Petition Provides No Basis For Initiation Of Any Such Review Peti'tioner's stated concern is that one provision of the license conditions recently made effective may prov~de trans-mission service for power generated by small power production facilities that is not, as extensive as Petitionener would prefer. (Petition, pp. 4-8) Thus I contends Petitioner, the imple-
- mentation of those license conditions raises antitrust questions 0 which must be reviewed prior to issuance of the th o p crating lic-
ense for St. Lucie Unit No. 2. However, there is at pre-sent no antitrust review pending in connection with the St. Lucie Unit No. 2 operating license review. Such a review cannot be triggered by the filing of a petition of this sort in any event. Moreover, the allegations contained in this Petition do not constitute a valid basis for the Commission, on its own motion, to initiate an antitrust review in connection with the operating license application.
A. No Antitrust Proceedings Are Pending In Connection Kith The Operating License Proceedin For St. Lucie Unit No. 2 The NRC does not, as a matter of course, conduct an antitrust review in connection with an application for an operating license. Such an application will not lead to an antitrust review unless the Commission first "determines such a review is advisable on the ground that significant changes in the licensee's activities or proposed activities have occurred subsequent to the . . . review . . . in connec-tion with the construction permit for the facility. 9/ (Atomic 9/ Petitioner contends, erroneously, that the "antitrust review of FPL's construction license was completed on November 14, 1973." Apparently Petitioner misunder-s tands an the nature of the antitrust proceedings now pending in the construction permit proceeding regarding St. Luc 1 e Unit No. 2.
Energy Act, Section 105c (2); See, South Carolina Electric and Gas Co., CLI-80-21, ll NRC 817, 823 (1980) ) .
Petitioner, recognizing this, argues that the con-struction permit license conditions themselves, and FPL's intention to comply with those conditions, constitute the requisite "changed circumstances" for initiation of an operating license antitrust, review. Petitioner overlooks the fact, however, that the license conditions of which it complains were attached in the context of an ongoing anti-trust review in connection with the issuance of the con-struction permit for St. Lucie Unit No. 2. And in South Carolina, the Commission explained that in order for "signif-icant changes" to occur as required by Section l05c(2), the changes must occur after the publication of the advice of the Attorney General and after any antitrust hearing con-ducted at the construction permit stage by the Commission or its delegees. 10/ As this is the case, it is obviously impossible for the St. Lucie Unit No. 2 license con-ditions to represent "significant changes" in FPL's activities which have occurred subsequent to the previous review by the Attorne General and the Commission "in connection with 1o/ South Carolina, ll NRC at 825.
the construction permit for the facility." (Atomic Energy Act, Section 105c(2)). Thus, Petitioner has sought to intervene in a proceeding which does not exist, and in fact cannot exist until the construction permit antitrust review is terminated and a determination made that significant changes in the licensee's activities or proposed activities have occurred subseauent to termin-ation of the construction permit antitrust review.
B. Antitrust Proceedings Cannot Be Initiated B Filin Of A Petition Noreover, the Petition is not sufficient, in and of itself, to initiate an operating license antitrust review.
Appendix X to Part 2 of the Commission Rules explains the procedure which the Commission follows in implementing Section 105c of the Act. Persons who wish to have their views on the antitrust aspects of an application for an operating license presented to the Attorney General for consideration may submit such views to the'ommission within sixty days after publication in the Federal Receister of the notice of receipt of antitrust. information associated with the operating license review. The Commission, after con-sulting with the Attorney General, will determine, in accord-ance with the standard set forth in Section 105c(2) and in
" the sound exercise of its discretion, whether another anti-
trust review is advisable on the ground that significant changes have occurred subseouent to the construction permit antitrust review.
For the reasons noted in the foregoing section, the Commission has not yet begun the process of considering whether a second antitrust review should be conducted pur-suant to Section 105c{2). The first, and mandatory, anti-trust review, at the construction permit stage, has not been completed.
To the extent that the Petition may be treated as a recuest for the initiation of antitrust proceedings separate from the environmental, health and safety proceedings to which the March 9, 1981, Notice pertains, it should be denied as not in accordance with Section 105c of the Act or the Commission's regulations.
C. The Petition Does Not State A Valid Basis For Further Antitrust Proceedin s Even if the fatal procedural defects of the Petition were to be ignored, the substance of the allegations con-tained within it could not validly serve as the basis for initiation of antitrust proceedings in connection with the operating license application for St. Lucie Unxt No. 2.
These allegations fall short in at least four respects, each of which standing alone would be decisive.
First, the Petition is grounded upon the proposition that if FPL is permitted to operate St. Lucie Unit No. 2 on the basis of the license conditions provided in the settlement among FPL, the Department of Justice and the NRC Staff, "the effectuation of an important aspect of federal energy policy as reflected in PURPA may be frustrated . . ." (Petition, pp.2-3). That is not so, and cannot be so as a matter of law Any conditions attached to FPL's license for St. Lucie Unit No. 2 will serve solely to enjoin FPL, and will not defeat the authority of another federal agency with competent jurisdiction to impose additional regulatory requirements upon FPL. The settlement license conditions expressly acknowledge this in Section XIII(c), which provides: "Nothing herein shall be construed to affect the jurisdiction of FERC or any other reaulatorv aaencv." PURPA contains a comprehensive regulatory scheme regarding the obligations of electric utilities to deal with small power producers, including the obligations to provide wheeling and backup services. That scheme is un-affected by any license conditions imposed by this Commission.
Petitioner's complaint is nothing more than that. the settlement conditions do not provide it with significant
advantages i ion to those it receives under PURPA in a dd't t'hat The contention an injunctive condition does not go as far as one wou ld like is no basis for the allegation that activities under the license would create or maintain a situation inconsistent with the antitrust laws.
Second, and closely related to the first point, an injunctive license condition imposeo as a resu suit of an antitrust review at the construction permit stage cannot, logically or legally, provide a basis for finding under Section 105c(2) "that significant changes in the licensee'sf~
activities or propose ac tiiv'ities have occurred subsequent to .the previous review. The mere fact that the licensee intends to comply with an injunctive condition imposed by this Commission cannot be the significant change in proposed activities which justifies a second antitrust review. Xf that were the case, any resolutionn of antitrust issues in a construction permit proceeding which does not completely satis fy th e universe of potential intervenors would serve merely as the prelude for a second antitrust review. FPL came to the construction permit pro-ceeding free of any injunction regard'ng i its '
rovision of transmission service. Surely, its acce p tance of a compre-hensive injunction which does no t g o q uite so far as to
~
satisfy this Petitioner cannot in itselff be b the basis for an operating license antitrust, review.
Third, Petitioner makes no effort to allege any nexus between any situation inconsistent with the antitrust laws and activities under the operating license for St. Lucie Unit No. 2. This is not surprising in view of the absence of any factual basis for demonstrating such a nexus. The closest that it comes to acknowledging any such requirement is in paragraphs (18) and (19) of the Petition, where it states, in essence, that its interest will be a.fected by FPL's "intended implementation" of the settlement conditions. (Petition, p.9). As is demonstrated above, the settlement conditions affect Petitioner only in that they do not go as far as Petitioner would like in addressing what Petitioner contends is a situation inconsistent with the antitrust laws -- a "situation" which is not alleged to bear any nexus to activities under the license. The require-ment of such a nexus is jurisdictional, 11/ and Petitioner s failure to allege any such nexus is fatal to the substance of its allegations.
Fourth, as explained above, Petitioner's claim that it is a small power producer is unsubstantiated and question-able at best.
13/ Louisiana Power & Light Co. (Waterford Steam Electric Generating Station, Unzt 3), CLI-73-25, 6 AEC 619 (1973) .
For each of these reasons, it would not be appro-priate for antitrust proceedings to be initiated at any time or under any procedural circumstances on the basis of the statements contained in the Petition.
IV. There Is No Basis For The Antitrust, Allegations Contained In The Petition For the reasons stated in Sections I, II and III above, the Petition should be denied, and this Board should have no occasion to reach the question whether the Petition alleges a situation inconsistent with the antitrust laws. In any event, leaving aside the "nexus" question, the allegations contained in the Petition fail on their face to show a situation inconsistent with the antitrust laws, and what little is alleged in the Petition is demonstrably without merit,.
Petitioner's effort to allege a situation inconsistent with the antitrust laws apparently is contained in paragraphs (13)-
(16) of the Petition. 12/ Paragraphs (14)-(16) elaborate 12/ The Petition indicates, in paragraph {17), that the situ-ation described in paragraphs (13) (16) is "more fully analyzed in the accompanying brief." Apparently, aside from complaints about, the scope of the injunction con-tained in the settlement conditions, this full analysis consists of (a) a pejorative sentence supported by a quotation from a FERC opinion in an unrelated proceeding (Brief, p.9), {b) a citation to a Fifth Circuit opinion finding that FPL was party to territorial agreement in the mid-1960's, and (c) a list of allegations which certain Cities have made, and FPL has denied, in a civil antitrust suit pending in the U.S. District Court in Miami. (Brief, p.14). Petitioner does not assert that it which would support any of these allegations.
has any evidence
Petitioner's con ention that, the injunction contained in the settlement license conditions is not broad enough; nowhere in these paragraphs is there any allega-tion of improper conduct on FPL's part. Paragraph {13) charges that FPL "possesses monopolistic control over the provision of transmission services in southern and eastern Florida." FPL denies that allegation, and avers that it cannot credibly be maintained in any event by one which asserts that it is a small power producer, and thus would be entitled under PURPA to the assurance of access to transmission facilities, regardless of their ownership.
Moreover, the Petition does not, state how any situation inconsistent with the antitrust laws would affect competition in any relevant market.. The one specific reference to com-petition appears at page 17 of the Brief: "FP&L, of course, would rather buy electric power from qualified PURPA fac-ilities than compete with those facilities for sales to FP6L's other customers." The fallacy of this assertion is demonstrated b the footnote on the same page of the Brief, which acknow-ledges that an electric utility is required by FERC rules to p urchase electricity from small power producers at the utility's avoided cost. Thus a utility cannot under the law profit or
reduce the costs which its customers must pay as a result of making any such purchase. Contrary to Petitioner's glib assertion, FPL has no incentive to "compete" to make purchases under these circumstances.
Finally, Petitioner implies that FPL seeks to with-hold transmission service so that FPL will not lose whole-sale sales to municipal utilities. To the contrary, FPL has sought relief from the obligation to make additional wholesale sales, on the ground, inter alia, that the cost of providing such service exceeds incremental revenues de-rived by FPL. The proceeding in which that relief was denied to FPL is that referenced in the footnote on page 9 of the Brief. Apparently, Petitioner, in its haste to capture a quote out of that context, failed to acquaint itself with the subject matter of the FERC proceeding.
In summary, the Petition does not allege a situation inconsistent with the antitrust laws, and what is said about the alleged competitive relationship between FPL and the Petitioner is confused and inconsistent, even within the four corners of Petitioner's filing. There is no dispute between Petitioner and FPL which has competitive implications.
Nor has anyone who actually controls a small power production facility complained of FPL's dealings with it. This Petition is prompted by Petitioner's apparent desire to escape from its contractual obligations to Dade County and to take some-
thing that does not rightfully belong to it, but to which FPL is entitled under its own contract with Dade County. The idea of asserting antitrust claims is but an afterthought.
Conclusion For the reasons given above, FPL urges that the Petition be denied.
Respectfully submitted, J.A. Bouknight, Jr.
Lowenstein, Newman, Reis Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 Herbert Dym Covington & Burling 888 16th Street, N.W.
Washington, D.C. 20006 Attorneys for Florida Power &
Light Company DATED: May 6, 1981
UNITED STATES OF AhlERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
FLORIDA PO4ER E LIGHT COMPANY ) Docket No. 50-389-OL
)
(St. Lucie Nuclear Power Plant., )
Unit No. 2) )
NOTICE OF APPEARANCE OF J A BOUKNIGHTI JR ~
Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter on behalf of Florida Power 6 Light Company. In accordance with Section 2.713, 10 CFR Part, 2, the following information is provided:
Name: J.A. Bouknight, Jr.
Address: Lowenstein, Newman, Reis 6 Axelrad 1025 Connecticut Avenue, N.N.
ttlashington, D.C. 20036 Telephone Nu-.ber: (202) 862-8400 Admissions: Supreme Court of the United States Supreme Court of North Carolina District of Columbia Court of Appeals United States Court, of Appeals for the District of Columbia Circuit United States Court of Appeals for the Fourth Circuit Name and Address of Florida Po~er & Light. Company Party: P.O. Box 529100 Miami, Florida 33152 Respectfully submitted, I
- A. Bouk ight, Jr.
DATED: May 6, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
)
FLORIDA POKER & LIGHT COMPANY ) Docket No. 50-389-OL
)
{St. Lucie Nuclear Power Plant, )
Unit, No. 2) )
NOTIC~ OF APP ARANCE OF DOUGLAS G ~ GREEN Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter on behalf of Florida Power & Light Company. In accordance with Section 2.713, 10 CFR Part. 2, the following information is provided:
Name: Douglas G. Green Address: Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.N.
Yashington, D.C. 20036 Telephone Number: {202) 862-8400 Admissions: District of Columbia Court of Appeals United States District Court. for the District of Columbia United States Court of Appeals for the District of Columbia Circuit Name and Address of Florida Power & Light Company Party: P.O. Box 529100 Miami, Florida 33152 Respectfully submitted, Douglas G. Green DATED: May 6, 1981
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
FLORIDA POhrR & LIGHT COMPANY ) Docket No. 50-389-OL
)
{St. Lucie Nuclear Power Plant, )
Unit No. 2) )
NOTICE OF APPEARANCE OF HERBERT DYM Notice is hereby given that the undersigned attorney herewith enters an appearance in the captioned matter on behalf of Florida Power & Light Company. In accordance with Section 2.713, 10 CFR Part 2, the following information is provided:
Name: Herbert Dym Address: Covington & Burling 888 16th Street, N.W.
Nashington, D.C. 20006 Telephone Number: (202) 452-6257 Admissions: Supreme Court of the United States United States Court of Appeals for the District of Columbia Circuit United States District Court for the District of Columbia Name and Address of Florida Power & Light Company Party: P.O. Box 529100 Miami, Florida 33152 Respectfully submitted,
~L:$
Herbert Dym
>i Dated: May 6, 1981