ML17212A396
| ML17212A396 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 07/16/1981 |
| From: | Bouknight J FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8107240213 | |
| Download: ML17212A396 (38) | |
Text
F+7/16/Sl UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARDS In the Matter of FLORIDA POWER 6 LIGHT COMPANY (St. Lucie Nuclear Power Plant, Unit No.
2)
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MOTION OF FLORIDA POWER
& LIGHT COMPANY FOR g4 q+ g+
DECLARATORY ORDER, OR IN THE ALTERNATIVE TO DISMISS THE FLORIDA CITIES FROM THE PROCEEDING Florida Power G Light Company
("FPL") moves, pursuant. t 4/
10 CFR 52 '18(m), for an order declaring that the Florida Cities-("Cities" ) are estopped, by virtue of their commitments and representations made previously in this proceeding, from objecting to issuance of an operating license due to the pendency of this antitrust proceeding, or in the alternative, pursuant to 10 CFR 52.718(m), for an order dismissing Cities from the proceeding unless they desist from interposing any objection to issuance of an operating license.
I.
Introduction On August 6, 1976, thirty-one months after the final date for filing petitions for leave to intervene in this proceeding, 1/
The entities that comprise the "Florida Cities" have changed somewhat since the Petition for Leave to Intervene was filed in 1976.
The City of Orlando, for example, has compromised its dispute with FPL and has withdrawn from the proceeding.
- Today, the term "Florida Cities" refers to the Gainesville Regional Utilities, the Lake Worth Utilities Authority, the Utilities Commission of New Smyrna Beach, a
the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Fort Meade, Homestead, Kissimmee, Mount Dora, New-berry, St. Cloud, Starke and Tallahassee,
Sl072402l3 Sl07l6 PDR ADOCK 05000389 PDR
4, Cities filed a Petition for Leave to Intervene Out of Time and Request for a Hearing.
One of the important factors which the Cities addressed in their petition was the possible delay that their intervention would have on the construction or operation of Florida Power
& Light Company's nuclear units, including St. Lucie Unit No. 2.
The Cities expressly represented at that time to the Atomic Safety and Licensing Board appointed to rule on their intervention request
("Intervention Board" ) that they did not seek, and would not structure their actions in this proceeding so as to cause delay in the construction or the operation of any of FPL's nuclear units.
In granting the Cities'ate Petition, the Intervention Board made it clear that these representations were a predicate for its decision to allow Cities to intervene and maintain their claims.
This Motion is prompted by recent events wherein the Cities have repudiated these representations.
On June 2,
- 1981, counsel for FPL transmitted a written request asking that the Cities reaffirm their prior commitment not to seek delay in the operation of St. Lucie 2.
(Attach-ment A).
This request noted the pendency of FPL's application for an operating license, and indicated that under the anti-cipated time frame for that application, the operating license could well be issued prior to the resolution of this proceeding.
\\
On June ll, 1981, counsel for the Cities responded.
(Attachment B).
In that response, the Cities disavowed their
prior commitment not to seek delay of the St. Lucie Unit.
Further, Cities indicated their intention to object to and oppose operation of that unit, by reason of the pendency of their claims in this proceeding.
Cities stated they would seek such delay unless and until FPL agreed to accept, as a
condition, either procedural limitations upon pre-trial and trial proceedings as specified by Cities, or "interim relief."
FPL, by follow-up letter, asked the Cities to reconsider and state promptly whether Cities wou'ld by simple stipulation without "conditions" confirm their prior commitment to the Commission.
The Cities unequivocally refused to do so by
%/
letter dated June 30, 1981. (Attachments C and D).
The matter is important because of uncertainty surrounding the authority of the NRC to issue an operating license prior to the completion of this antitrust review.
The Commission has held that section 105c of the Atomic Energy Act "would not support the issuance of a construction permit. prior to a pre-licensing antitrust review, without the agreement of all the parties involved."
Louisiana Power and Li ht Com an (Waterford Steam Electric Generating Station, Unit 3), CLI-73-25, 6 AEC 619,622 (1973).
Neither the Commission nor its subordinate
"/ Similarly, on June 16,
- 1981, the Cities filed a Motion in Docket No. 50-389 OL seeking leave to respond to FPL's Answer to the Cities'etition to Intervene in that Docket.
In that pleading, the Cities averred that "absent a waiver, the operating license cannot be issued until completion of the antitrust review in the construction permit proceeding.
.." "Motion of Florida Cities for Leave to Respond,"
at 3.
~ A'ppeal or Licensing Board has had occasion to decide whether, in circumstances where a construction permit has been issued prior to completion of the prelicensing antitrust review by virtue of such an agreement of all the parties, section 105c poses any obstacle to issuance.of an operating license absent further agreement of all parties.+
FPL believes that an operating license may issue in these circumstances absent any further agreement of the parties.
However, in light of the contrary position espoused by the Cities, the one expeditious and certain means for assuring that the operating license will not be delayed is for there to be assurance that no party to this proceeding will object to issuance of the license.
The only party which has given any indication that it, intends to object is the Cities.
As is shown in more detail below, delay in issuance of the operating license would have a profound impact on FPL, the municipalities which are or expect to become joint owners of the unit and their ratepayers, as well as upon the general public. It is shocking to think that hundreds of millions of dollars of this society's scarce resources might be squan-dered in the cause of providing these Cities with a tactical advantage in their litigation with FPL.
"/
ALAB-323 holds that the "grandfather clause" contained in section 105c(8) of the Act does not authorize the NRC to issue an operating license prior to completing the review prescribed for a special class of licenses "grand-fathered" by the 1970 legislation.
That provision of the statute is not involved here.
The St. Lucie 2 construction permit issued by virtue of an agreement among all the parties, and that agreement did not explicitly or implicitly incorpor-ate any limitations which may be found in Section 105c(8).
Toledo Edison Com an (Davis-Besse Nuclear Power Station, Unit 1), ALAB-323, 3
NRC 331 (1976).
II.
Le al Basis for the Motion 0
FPL believes that the Cities are estopped, by virtue of commitments and representations that they have made in this docket, from interposing an objection to issuance of the operating license on the ground of the pendency of this pro-ceeding.
Clearly, this Board, which sits in the docket in which the Cities'ommitments and representations were made, has the authority to enter a declaratory order determining whether the Cities are estopped in the circumstances presented here.
Kansas Unit No. 1), CLI-77-1, 5
NRC 1 (1977).
In addition, the Commission indisputably has the inherent
- /
authority to protect the integrity of its processes, ensure that its proceedings are conducted in a "fair" manner (10 CFR 52.718),
and require parties to conduct themselves with "honor" (10 CFR 52.713).
That authority extends to the power to dismiss a party from a pro-ceeding in circumstances where such action is necessary to achieve
,"/
See Inter ool, Ltd. v. Pacific Westbound Conference, 48 Ad.L.2d 425 (FMC 1980), in which the Federal Maritime Commission (FMC) dismissed a proceeding because the complainant had willfullydis-regarded the presiding officer's orders and the agency's rules of practice.
In explaining the basis for its decision, the FMC stated as follows:
Although administrative agencies are expected to exercise more flexibilityand informality in their proceedings than do the courts, there are, nevertheless, limits to what the agencies may tolerate.
Agencies must protect their integrity and assure the orderly conduct of business in order to maintain their effectiveness.
Adherence to agency procedure is necessary to maintain the agency's integrity and to ensure the orderly conduct of agency business in a manner protective of the rights of all parties.
Id. at 431.
See also Penns lvania Power 6 Li ht Co.
(Sus-quehanna Steam Electric Station, Units 1 and 2), Nos.
50-387 and 50-388 (Atomic Safety and Licensing Board, May 21, 1981)
(Slip op. at 23-28);
Commonwealth Oil Refinin Co., Inc.,
47 Ad.L.2d 1147 (DOE OHA, 1980,.
these ends.
Penns lvania Power S Li ht Co.
(Susquehanna Steam Electric Generating Station, Units 1 and 2),
Nos.
50-387 and 50-388 (Atomic Safety and Licensing Board, May 21, 1981);
Inter ool, Ltd. v. Pacific Westbound Conference, 48 Ad.L.2d 425 (FMC 1980);
Commonwealth Oil Refinin Co.,
47 Ad.L.2d 1147 (DOE OHA, 1980).
The full extent of this authority has been delegated to this Board by the Commission.
See 10 CFR
$ 2.718(m).
Accord-ingly, this Board is vested with the power to dismiss from the proceeding a party which refuses to act consistently with its solemn representations and commitments, or to permit that party to avoid dismissal only by complying with those representations and commitments.
FPL respectfully asks that the Board decide these questions now, rather than deferring them until the eve of a decision on issuance of the operating license.
All petitions to intervene in the operating license adjudicatory proceeding dealing with 4/
- health, safety and environmental matters have either been denied or have been withdrawn.
Accordingly, that proceeding has been dismissed, (subject only to the disposition of appeals from the I
denial of two petitions, one by these Cities, which seek to raise
"/ Florida Power 6 Light Co.
(St. Lucie Plant, Unit No. 2),
No.
L tomic afety and Licensing Board Order Relative to Helen Shea Wells, Director Hutchinson Island Coalition, June 4, 1981).
Parsons
& Whittemore, Inc.,
and its subsidiary, Resources Recovery (Dade County), Inc.,
and the Cities as, well, have filed appeals from the order denying their intervention requests.
FPL submits that these appeals are clearly without merit.
Public Service Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2),
ALAB 322' NRC 328 (1976)
~
an'titrust issues).+
FPL anticipates that. the Staff's review of health, safety and environmental matters will be completed well prior to the projected fuel-loading date of October 1982. It appears that, at that time, the pendency of this proceeding will be the only possible impediment to commencement of operation.
FPL has no desire to delay this proceeding unduly.
Never-
- theless, the factual issues which the Cities have raised are wide-ranging in both time and subject matter.
It is relatively easy for the Cities to hurl charges and to attach to their pleadings certain unsponsored documents selected from the hundreds of thousands which FPL has produced.
The more form-idable task of placing events and documents in their proper con-text falls upon FPL.
That requires extensive discovery, which is made particularly difficult where the occurrences in issue allegedly took place years ago.
Many of the'ctors in these events are retired or employed elsewhere today.
FPL believes that, in light of the license conditions already imposed by the Board, it is unnecessary for the Board to resolve these disputes about past, events.
- However, as is evident from their pending motion for summary disposition, the Cities continue to assert these matters.
If those issues must be resolved here, very extensive evidentiary hearings will be necessary.
The change there is a possibility that this proceeding will not. be completed by the time that St. Lucie Unit No.
2 will be ready for operation.
"/ 'lorida Power 6 Li ht Co.
(St. Lucie Plant, Unit No. 2),
No.
50-389 OL (Atomic Safety and Licensing Board Order Dismissing the Proceeding, June 16, 1981); Id.
(Atomic Safety and Licensing Appeal Board Order, June 18, 1981).
"*/ 'ee
~e
., Cities "Petition to Intervene and Request for Consolidation," in Docket. No.
50-389 OL, filed on April 7,
- 1981, and the voluminous appendices attached thereto.
The Cities apparently perceive a tactical advantage to forcing FPL either to curtail its defense or to risk delay in operation of the unit.
In these circumstances, the question whether Cities are free to interpose an objection to issuance of the operation license should be decided promptly, in fairness to all concerned.
Declaratory relief is justified.
III.
The Cities Representations In This Docket That They Would Not Delay St. Lucie Unit No.- 2 Were Material To Decisions By The Licensing
- Board, The Appeal Board And The Commission As noted above, at the time the Cities request to intervene in this proceeding was filed more than two and a half years late, */
no NRC petition filed that late had apparently ever been granted.
Accordingly, in order to induce the Commission to grant their Petition the Cities took pains explicitly to assure both the NRC and FPL that Cities'ntervention would not be used to delay the licensing of any of FPL's nuclear facilities.
This assurance was unequivocal:
In view of the importance of nuclear development and costs associated with delay, and in view of the fact that the plants at issue are already in operation, or under construction, or planned to be under con-struction shortly, Cities do not s'eek a
dela in actual construction or o eration of the Turkey Point No.
3 and No.
4 or St. Lucie No.
1 and 2 nuclear units.
"/ Accordingly, the Appeal Board commented, in affirming the Intervention Board's decision to grant Cities'etition, that it had approached the case with "skepticism" and had "very much doubted" such a Petition could be (St. Lucie Nuclear Power Plant, Unit No.
2
, ALAB-420 6
NRC 8, 14 (1977).
"Joint Petition of Florida Cities for Leave to Intervene Out of Time; Petition to Intervene; and Request for Hearing," at 14 (August 6, 1976)(emphasis added).
The Cities repeated their assurances in their Reply Brief on the intervention question:
To be absolutely clear,
[Cities] do not seek dela of construction or o eration of the units and would not seek to tie the uestion of FPGL's abilit to continue con-struction or o eration of the units to FP&L's a reein to interim conditions (although Florida Cities do assume that FPL would comply with a Board order granting interim relief.
[sic] FPL seems, therefore, to be protected against whatever harms it may fear.
Florida Cities do not seek to hereb dela construction and oaeratxon of the sub ect units.
"Reply of Florida Cities to Responses of Florida Power and Light Company and Nuclear Regulatory Commission Staff," at 17, n.
1, (October 15, 1976)
(emphasis added).
More than a year later in their Brief to the Commission the Cities once again expressly assured the NRC and FPL that their intervention would not delay the operation of St. Lucie 2:
The Commission must be guided ulti-mately by the overall public interest.
In this case, the public interest would be best served by granting intervention.
Intervention will not dela construction or operate.on of the unzt a.n question so the pubis.c cannot bh xngured by Commission consideration of the serious antitrust questions
- raised, but absent such con-sideration, serious
[alleged] antitrust abuse might be permitted to go unchecked.
"Florida Cities Brief to the Commission," at 39-40 (November 11, 1977) (emphasis added) (footnote omitted).
Yet now that the Cities
10 have been permitted to intervene, they seek to deny the import of their prior representations.
The Licensing Board, the Appeal Board and the Commission all referred to the Cities'greement not to delay the licensing of the unit in their respective decisions granting the Cities'/
Petition for Leave to Intervene Out of Time.
- Indeed, the Licensing Board's reliance upon the Cities'epresentation led the Appeal Board to comment as follows:
The final factor is the extent to which [Cities'] participation would broaden the issues or delay the proceeding The [Licensingj Board considered the second consideration the more important and implied
- that, absent the municipalities'gree-ment to allow issuance of the St. Lucie 2 construction permit,
. it would have re-solved this factor against them and perhaps decided against granting the intervention petition.
We agree that this was a proper consideration for the Board below to have taken into account.
Petitioners'xcuse for tardiness was hardly so strong as to overcome the consequences of delaying the start of construction of this nuclear facility, which all parties to this proceed-ing agree is sorely needed.
St. Lucie 2, ALAB-420, supra, 6 NRC at. 23.
Judging from the attached correspondence between
- counsel, Cities'ow are prepared to advance two arguments in support of their posit,ion that they should not be held to their representations.
First, it is apparently contended that Cities'epresentations did not. extend to "operation."
As demonstrated
"/ Florida Power G Light Co.
(St. Lucie Plant, Units 1 and 2),
1BP- -,
NRC 9,
00-1 (1977), aff'd, ALAB-420, 6
NRC 8, 9
13'3 (1977) g aff d CLI 78 12' NRC 939'43 (1978)
above, that simply is not true.
For example, Cities expressly stated to the Commission:
"Intervention will not delay con-
- /
struction or operation of the unit in question," and earlier, to the Intervention Board:
"Cities do not seek a delay in actual construction or operation of Turkey Point No.
3 and No.
- /
4 or St. Lucie No.
1 and No.
2 nuclear units." These words could not be plainer.
Cities expressly committed not to delay operation of St. Lucie 2.
- Second, faced with the express representations noted above, Cities apparently adopt. the position that because the decisions on their late Petition refer to the avoidance of delay in issuing the St. Lucie 2 construction permit, and do not expressly refer to "operation," Cities'ommitment not to delay operation can be disregarded and was "not before the Board."
(Attachment B, at
- 2).
This second argument is equally without substance.
It is true, of course, that the Intervention Board referred to the avoidance of delay in issuing the con-struction permit.
But the Board clearly was concerned with this "delay" because it might push back the scheduled date of operation of the unit.
This is further evidenced by the language in the Appeal Board's decision emphasizing that
"/
"Florida Cities Brief to the Commission," at 39-40 (November ll, 1977).
"Joint Petition for Leave to Intervene Out of Time," at 14 (August 6, 1976).
Likewise:
To be absolutely clear,
[Cities] do not seek delay of construction or operation of the units See page 9,
~su ra.
l2 4/
delay should be avoided because of the need for the facility.
It is plain that the Board did not stress the need for con-,
struction to proceed expeditiously so that once completed the facility could sit idle, blocked by the Cities.
Yet this is the irrational situation that could result if the Cities'epresentations were construed to be limited contrary to their express wording -- to the issuance of the construction
- /
permit only.
The NRC did not overestimate the gravity of the consequences of delay in operation of St. Lucie 2.
According to materials requested by and supplied to the U.S. Department of Energy, delay of St. Lucie Unit No.
2 would cost rate payers of FPL
$ 49.0l6 million in a single month, and would cost the City of
- /
Orlando in excess of Sl.5 million in the same period.
In-
- deed, the Cities'efusal to stipulate that the operating license may issue notwithstanding the pendency of this St. Lucie 2, ALAB-420, supra, 6
NRC at 23.
That the decisions on the Cities'ate Petition did not expressly use the word "operation" is not surprising.
FPL's operating license application had not yet been filed.
Moreover, the Cities expressly represented to the Board that they would not seek delay of that application by reason of their presence in this pro-
- ceeding, were that application filed before this pro-ceeding concluded.
Thus the Cities'epresentations, unless assumed to be insincere, obviated the matter.
A majority of these costs would be passed directly to rate-payers as fuel adjustment, charges reflective of the costs of oil.
The remainder would ultimately be reflected in other increased costs compensable from ratepayers.
The (Footnote continued on page l3)
13 proceeding is curious in view of the fact that a delay in opera-tions would also financially injure a number of the Cities.
For
- example, those Cities who may wish to participate in the owner-W ship of the unit pursuant to the April 24, 1981 license conditions, as well as those Cities who purchase all or part of their power re-quirements from FPL at wholesale or participate with FPL in the economic dispatch arrangement now in effect peninsular Florida, would be advsersely affected by any delay in operations.
Further-
- more, the impact of such delay would not be strictly economic.
The operation of the unit on schedule would significantly reduce FPL's dependence upon foreign oil as a generating fuel.
The public interest implications of these impacts are
- enormous, and Cities'illingness to contenance such a result in order to improve their tactical position in indefensible.
In essence, the Cities, in order to induce the Board to permit them to intervene in this proceeding, represented that Cities:
(a) would not seek delay of the construction or opera-tion of St. Lucie 2; and (b) would not seek to condition their assent to the construction or operation of FPL's nuclear units
"**/ (Footnote continued from page 12) data from FPL are derived from a letter dated June 5,
- 1981, from E. A. Adomat, Executive Vice President, to Allen Starr, Chief, Source Technology
& Economics Branch, Divi-sion of Power Supply and Reliability, Department, of Energy.
The data for the City of Orlando are based upon a copy of that City's response, dated May 21, 1981, to the same DOE inquiry.
14 4/
upon FPL's willingness to submit to "interim conditions."
Undeni-ably, the Licensing Board, the Appeal Board and the Commission viewed
"/
With repect to (b), Cities now contend that the repre-sentation in their October 15, 1976, Reply Brief (p. 17, n.
1) was merely an "offer to stipulate" which was never accepted by FPL.
(Attachment B at 4).
The paragraph in
- question, which appeared under a subject heading "Florida Cities Do Not Seek a Delay in Construction or Operation of the.Units," reads as follows:
Florida Cities have offered to stipu-late issues, in order to eliminate uncertainty.
To be absolutely clear, they do not seek delay of construction or operation of the units and would not seek to tie the question of FP&L's ability to continue construction or operation of the units to FP&L's agreeing to interim conditions (although Florida Cities do assume that FP&L would comply with a Board order granting interim relief.
[sic]
FP&L seems, therefore, to be protected against whatever harms it may fear.
Florida Cities do not seek to hereby delay construction and operation of the subject units.
While the statement refers to past offers by the Cities to "stipulate issues," it then proceeds to make representations and present assurances to.the Board.
FPL believes an objective reader of the pleading would have to conclude, taking the Cities'ords at face value, that they were making a representation, and that they wished the Board to rely on that representation.
Furthermore, Cities'ost, hoc construction has neither weight nor meaning in light of the fact that the Cities made a further express representation not to delay construction or operation of St. Lucie 2 in their Brief to the Commission more than a year later, supposedly well after any offer to stipulate had elapsed.
See page 9,
~su ra
these representations as material.
Indeed.. if anything is clear in this matter, it is that had the Cities espoused their present, position at the outset, in lieu of their repeated assurances to eschew and avoid delay, their Petition for late intervention would never have been granted.
IV.
The Remedies Sought By FPL Are Necessary And Appropriate In The Circumstances'he foregoing section demonstrates, beyond question, that the course of procedural conduct which the Cities now propose to follow amounts to repudiation of their previous representations, which were made to the NRC and were material to its decisions permitting the Cities to intervene in this proceeding.
Once the Board so finds, there can be no serious question of its power to take such action as is necessary to compel the Cities, if they wish to remain parties to this proceeding, to conduct themselves -in accordance with their previous representations.
{See pp.
5-7,
~su ra).
Either of the two remedies sought by FPL is appropriate in the circumstances.
It is well settled that a party may be estopped from arguing on behalf of a position that is inconsistent with prior statements made to a tribunal in the same or different proceeding.
- Indeed, the inappropriateness of a party disavowing his representations is demonstrated by a long line of federal judicial authority.
For example, in Selected Risks Insurance Co. v. Kobelinski, 421 F.Supp.
431 (E.D. Pa.
1976),
the plain-
16 tiff was estopped from asserting that the Court had subject matter jurisdiction due to the plaintiff's prior assertion that the Court lacked jurisdiction.
The Court explained its decision by noting that "'Judicial Estoppel's a well estab-lished rule that a party may not assert contrary positions in the same or related proceedings."
Similarly, in Wade v.
Woodin s-Verona Tool Works, Inc.,
469 P.Supp.
- 465, 466-67 (W.D.
Pa.
1979),
the Court indicated that it intended to estop a
party from asserting a legal claim that was inconsistent with prior sworn representations which the party had submitted to the Court.
To the same effect,
- see, In Re Johnson
- v. Clark, 518 F.2d Inc. v.
Norma J.,
426 F.Supp.
- 537, 541-43 (S.D.N.Y. 1977);
H~enr J. Kaiser Co. v. McLouth Steel Corp.,
257 P.Supp.
- 372, 425-26 (E.D. Mich. 1966), aff'd, 400 F.2d 36 (6th Cir.
1968).'he policies underlying this rule were summarized aptly in Scarano
- v. Central Railroad, 203 F.2d 510 (3rd Cir. 1953),
where a party was estopped from claiming that he was physically fit to perform certain work in light of his prior representations in another suit that he was physically incapacitated.
The Court stated as follows:
Such use of inconsistent positions would most flagrantly exemplify that playing "fast and loose with the courts" which has been emphasized as an evil the courts should not tolerate And this is more than
[an] affront to judicial dignity.
For intentional self-contradiction is being used as a means of obtaining unfair advantage in a forum provided for seeking justice.
17
- Scarano,
~sn ra, 203 F.2d at 513.
These cited decisions are illustrative of the equitable relief that is called for when a party seeks to adopt a position A/
inconsistent with his prior position or representations.
- Here, there can be no legitimate argument on this score.
The repre-sentations in question are those upon which the Cities were allowed to participate in this proceeding in the first place.
For the Cities to be heard to disavow them now would permit them to effectuate the very result to which they piously pro-fessed abhorrence when it b'enefited them to do so--delay of the units.
There is no principled basis upon which this flip-flop of positions can be defended.
The consequences to FPL and the citizens in its service area could be enormous, to say nothing of the Cities'pparent willingness to wreak the same economic costs upon some of its own constituency.
The prejudice to the public interest is undeniable, and potentially profound.
Holding the Cities to their word would have no adverse effects
"/
In addition to principles of estoppel, the Cities'ctions are precluded by the doctrine of waiver.
The Cities voluntarily and intentionally relinquished their right to delay operation by virtue of the pendency of this proceeding by asserting that they would not do so at the time of their intervention.
- See, e.cc.,
Barber v.
- PacPe, 390 U.S.
- 719, 725 (1968); Johnson v. Zerbst, 304 U.S.
- 458, 464 (1938); J.H.
Cohn
& Co. v. American Appraisal Associates,
.Inc.,
62 F.2d 994 (7th Cxr. 1980);
Midwest Maintenance onstruction Co., Inc. v. Vela, 621 F.2d 1046, 1048 (10th Cir. 1980).
18
- /
upon anyone.
In these circumstances, equitable relief is clearly appropriate.
- Moreover, the Cities'illingness to disregard their pre-vious representations and commitments is so blatant, and the harm which would result if they succeed in delaying operation of St. Lucie Unit No.
2 so egregious, that the remedy of dis-missal is justified in the circumstances.
The course of conduct followed by the Cities reflects not only a cynical disregard of their obligations to this forum, but also a willingness to play fast and loose with the interests of several million electric consumers in the State of Florida.
V.
This Board's Jurisdiction With Respect to The Operating License During the course of a telephone conference call among the parties on June ll, 1981, Chairman Smith requested that the parties address the extent of this Board's jurisdiction with respect to issuance of an operating license.
FPL does not suggest that this Board may issue an order directing that an operating license be issued at any particular time.
Indeed, it seems clear that this Board's jurisdiction is limited to the antitrust aspects of the construction
~/
Plainly, there would be no detriment to the Cities to continue the litigation under the currently existing ground rules.
FPL believes this Licensing Board is fully capable of ensuring both that the proceeding is resolved in an expeditious
- fashion, and that the ele-ments of fairness to all parties are preserved.
19 permit proceeding.
In circumstances such as these, where it.
appears that no contested proceedings are likely to be con-ducted in the operating license docket, the authority to issue an operating license has been delegated by the Commission to the Director of Nuclear Reactor Regulation.
10 C.F.R.
g2.3.05(e).
- However, as discussed at 3-4,
~su ra, there is a possibility that the Director might find that the pendency of this construction permit antitrust proceeding prevents his issuing an operating
- license, should a party to this proceeding interpose an objection to issuance of the license.
All that FPL seeks of this Board is that it, by granting one of the forms of relief requested
- here, prevent the Cities from interposing an effective objection to issuance of the license.
In the absence of such an objection, FPL believes that the Director will issue an operating license notwithstanding the pendency of this proceeding, just, as he issued a construction permit in the absence of any such objection.
CONCLUSION For the foregoing reasons, FPL respectfully moves that the Board issue:
(1) an order declaring that the Cities are estopped from objecting to issuance of an operating license for St. Lucie Unit No.
2 on the ground of the pendency of this proceeding, or, alternatively, (2) an order dismissing the Cities from this proceeding unless they desist from interposing any such objection.
20 '-
Respectfully Submitted,
.A. Bo knight, Jr.
Lowenstein,
- Newman, Reis a 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
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
)
FLORIDA POWER
& LIGHT COMPANY
)
(St. Lucie Plant, Unit No.
2)
)
Docket No. 50-389A
,CERTIFICATE OF SERVICE I hereby certify that copies of "Motion of Florida Power Light Company for Declaratory Order, or in the Alternative to Dismiss the Florida Cities from the Proceeding" was served upon the following persons by hand delivery* or by deposit in the U.S.
Mail, first class, postage prepaid this 16th day of July 1981.
- Peter B. Bloch, 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 Business Administration University of Texas Austin, Texas 78712 Ivan W. Smith, Esquire Atomic Safety and Licensing Board U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Docketing and Service Station Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Jerome
- Saltzman, Chief Antitrus t
& Indemni ty. Group U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commis s ion Washington, D.C.
20555 Robert E. Bathen Fred Saffer R.W. Beck
& Associates P.O.
Box 6817 Orlando, Florida 32803
- Robert A. Jablon, Esquire Alan J. Roth, Esquire 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 P.O.
Box 14141 Washington, D.C.
20044 Donald A. Kaplan, Esquire Robert Fabrikant, Esquire Antitrust Division U.S. Department of Justice Washington, D.C.
20530 Joseph
- Rutberg, Esquire Lee Scott Dewey, Esquire Fredric D. Chanania, Esquire Counsel for NRC Staff U. S. Nuclear Regulatory Commission Washington, D.C.
20555 Charles R. P.
Brown, Esquire Brown, Paxton and Williams 301 South 6th Street P.O.
Box 1418 Fort Pierce, Florida 33450
- Bengamzn H. Vogler 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
- George R. Kucik, Esquire Narc Gary, Esquire Ellen E.,Sward, Esquire Arent, Fox, Kintner, Plotkin 6
Kahn 1815 H Street, N.W.
Washington, D.C.
20006 Richard S.
- Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.
20555 J.A.
B 'uknig t, Jr.
ILowenstein,
- Newman, Reis
& Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 (202) 862-8400 DATED: 7/16/81
ATTACHMENT A
LAYV OFFICES ROBCRT LOWCNSTEIN JACK R, NEWMAN HAROLD I; REIS MAURICE AXCLRAD KATHLECN H. SHCA J. *. SOVKNIGHT, JR.
MICHACLA. BAVSCR DOVGLAS G, GRCCN C. GRCGORY BARNCS ALBERT V. CARR. JR.
ANNE W COTTINGHAM K*THLCEN* COX ROBCRT H. CLILP PCTCR Gi FLYNN STCVCN P. FRANTZ FRCDCRIC S. GRAY ALVIN H. GVTTCRMAN DAVIDG POWCLLi DAVID S. RASKIN DONALD J. SILVCRMAN iADM.KCH.
LOWENSTEIN, NEWMAN, REIS 8c AXELRhD IO2S CONNECTICUT AVENUEIN. W.
WASHINGTON, D. C. 20036 202
~ 862-8400 June 2,
1981 Robert A. Jablon, Esquire Spiegel
& McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20006
Dear Bob:
Re:
NRC Docket No. 50-389A This confirms our telephone conversation of this morning xegarding a stipulation which would assure that the operating license for St. Lucie Unit No.
2 would not be delayed by the pendency of any antitrust proceeding.
When the Cities filed their pleadings in the fall of
- 1976, they represented to the NRC that "Florida Cities do not seek to hereby delay construction and operation of the subject units."
(Pleading filed 10/15/76, p.
17, n.l).
- However, you indicated to me this morning you doubted that thexe is in effect any stipulation that operation of the plant will not be delayed because of the pendency of an antitrust proceeding.
FPL requests that the Cities join it in a clear stipulation that issuance of the operating license and operation of the plant shall not be delayed because of the pendency of any antitrust proceeding.
A proposed form of stipulation is enclosed.
Such a stipulation would serve the intexests of all of the participants in St. Lucie Unit No.
2, including clients which you represent and have re-presented in this proceeding, as well as the public interest.
As E told you this morning, l would appreciate a prompt response to this request.
The Cities have recently filed a
~ W I
1 t
LowEHsTEIR, NEwM~, REIs 8c AK D
Robert A. Jablon, Esquire June 2,
1981 Page Two pleading suggesting that issues can be disposed of summarily on the basis of pleadings, and that, accordingly; some dis-covery can be avoided.
- However, FPL currently projects that it will need an operating license for St. Lucie Unit No.
2 in order to load fuel early in the fall of 1982.
Unless there is a stipulation, FPL will be forced to request that discovery proceed immediately on all issues, so that evidentiary hearings can begin and be concluded on a schedule consistent with the fuel loading schedule for the plant.
To reiterate, the stipulation proposed here would serve
'he economic interests of all of the participants in St. Lucie Unit No.
2 and their ultimate customers.
It would not adversely affect anyone.
Accordingly, I hope that the Cities'ssent will be forthcoming promptly.
Sine re y, J.A. Bouknight, Jr.
,Attorney for Florida Power 6
Light Company Bcc: Robert J.
Gardner Herbert Dym, Esquire
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of FLORIDA POWER
& LIGHT COMPANY (St. Lucie Plant, Unit No.
2)
)
)
)
Docket No. 50-389A
)
)
STIPULATION The undersigned parties to NRC Docket No. 50-389A un-conditionally stipulate and agree that the operating license for St. Lucie Unit No.
2 and any and all amendments thereto may issue at anytime notwithstanding the pendency and status of antitrust review proceedings with respect to St. Lucie Unit No. 2.
& Light Company By: Their Counsel By: Its Counsel NRC Staff By: Its Counse
ATTACHMENT B
I.4
'EORGE SPIEGEL. PC ROBERT C. MCDIARMID SANDRAJ. STREBEL ROBERT A. JABLON JAMES N. HORWOOD ALANJ. ROTH FRANCES E. FRANCIS DANIELI. DAVIDSON THOMASN. MCHUGH.JR.
DANIELJ. GUTTMAN PETER K. MATT DAVIDR. STRAUS LAW OFFICES SPIEGEL & MCDIARWIID 2600 VIRGINIAAVENUE, N.W.
WASHINGTON. D.C. 20037 TELEPHONE I202I 333-4500 TELECOPIER (202I 333.2974 June 11, 1981 RON M. LANDSMAN BONNIE S. BLAIR ROBERT HARLEY BEAR THOMAS C. TRAUGER JOHN MICHAELADRAGNA CYNTHIAS. BOGORAD GARY J. NEWELL MARC R. POIRIER MARTAA. MANILDI JOSEPH L. VAN EATON STEPHEN C. NICHOLS PATRICIA E. STACK OF COUNSEL SUSAN T. SHEPHERD J.A. Bouknight, Jr.,
Esq.
Lowenstein,
- Newman, Reis t Axelrad 1025 Connecticut Avenue N.W.
Washington, D.C.
20036 HAND DELIVER Re:
Florida Power 6 Li ht Com an NRC Doc'ket No. 50-389A
Dear Lon:
In your letter of June 2,
- 1981, you request a waiver by the Cities to permit. operation of St. Lucie 2 on schedule, regardless of the status of antitrust review at that time.
Any such waiver of rights would, of course, have to be approved by the Cities.
We are in the process of analyzing your request and shall make prompt recommendations to the Cities in this important matter.
The Cities share your concern that St. Lucie 2 should be able to operate on schedule.
Some or all of them will be owners of that unit and some Cities purchase power from FPL.
- Indeed, they are gravely concerned that the antitrust review is taking so long.
The problem should have been resolved by settlement, but the fact is that FPL has not been willing to offer sufficient capacity from St
~ Lucie 2 and other relief that the Cities believe would have justified settlement.
- Further, since FPL has made capacity available to some Cities but not to others, the Cities are faced with the Hobson's choice of sharing nuclear capacity among themselves, thereby cutting the amount of St. Lucie 2
capacity available to any one system, or of not sharing, in which case some intervenors would receive no capacity.
If the Cities were to agree to the unconditioned waiver that you propose, the plant could go into operation with many Cities getting no share or minimal capacity and all Cities getting what they deem insufficient antitrust relief.
FPL may then have little or no interest in speed in the antitrust review.
In any event, the plant would operate without the antitrust review contemplated by the Atomic Energy Act.
The solution to all these problems, it would appear, would be
= for all parties to stipulate to expeditious procedures.
The Cities have long been disturbed by the prospect that protracted litigation would force a sacrifice of their rights.
Certainly, if the Cities have valid claims, relief should be decided soon.
The Cities agree that operation of the plant should not be delayed.
Taking into account these considerations, we would be prepareQ to recommend to our clients that they sign your proposed stipulation, providing that a hearing schedule and procedures were agreed to that permit antitrust resolution by the Board before the operating license becomes effective and that there would be no stay of Board ordereQ license conditions, pending any review.
If the above it not acceptable, we would be prepared to recommend the waiver that you propose, if FPL agrees to interim relief to lessen the adverse impact on Cities from the operation of the plant before antitrust review is concluded.
- However, absent some constraint, an incentive could be created to unduly prolonged litigation.
I suggest an early meeting to resolve these matters.
One other point should be mentioned.
You imply that the Cities have waiveQ their rignts under the operating license,.
Plainly, they have not done so.
Their position, which was stated at pages 42-43 of their August 9, 1976 Petition to Intervene, is directly related to "construction":
"Although instituting a hearing at this time might have delayed construction of St. Lucie Unit No.
2, Cities do not seek such
~dela in construction.
Therefore, to the extent that FPEL is shown to be legitimately entitled to power from the St. Lucie plant, granting a
hearing at this time cannot delay availability of that power to the Company."
(Emphasis supplied).
At that time an application for an operating license would have been plainly premature.
While granting intervention could have delayed construction absent a waiver, such intervention would not have affected the operating license, which was notabefore the Board.
The matter Has discussed at length at the beginning transcript pages of the February 1,
1977 prenearing conference.
The only fair reading of that transcript is that an unqualified waiver was made with regard to construction.
~.cC., Tr. 11:
Mr. Jablon:
"On behalf of the Florida Cities, I state, first., that we are not opposed to
3 conditioning our intervention unqualifiedly upon our agreement that the construction permit shall issue;
- second, that we commit ourselves not to seek -- well, we have, your Honor, absolutely no intention wnatsoever, unqualifiedly, to seek a cessation of construction,
- and, indeed, it, would be against our interests to do so.
As a practical matter, we are hurting.
We are hurting by not having access to this
- power, and we hurt ourselves if we delay the plant..
In any event, I again repeat the strongest and most affirmative language I can that we seek intervention here.
We seek interim and permanent relief.
We do not seek delay in the construction, and we are willing to abide by that as a condition of our obtaining the intervention we seek."
In granting the Cities late intervention, the petitions Board plainly interpreted the Cities'ommitment as waiving rights with regard to the construction permit (LBP-77-23, 5
NRC 789, at 800-001, affirmed, ALAB-420, 6 NRC 8, 23, affirmed, CL1-78-12, 7
NRC 939~
(4)
Tne Extent to %sich the Petitioners'articipation Will Broaden the.Issues or Delay the Proceeding.
The first portion of the factor, of
- course, is not applicable to this petition
- because, unless the petition is granted, there will be no issues.
However the second factor is quite relevant to our consideration.
Ordinarily, if this Board were to order an antitrust hearing, the construction permit could not issue until that hearing is completed.
Louisiana Power 6 Li ht Co.
(Waterford Steam Electric Generation
- Station, Unit 3),
6 AEC 48, 50, n.2 (February 23, 1973);
6 AEC 619, 621-22 (September 28, 1973);
Duke Power Co.
(Catawba Nuclear Station, Units 1 and 2),
7 AEC 307, 309 (April 8, 1974);
Toledo Edison Co.
(Davis-Besse Nuclear Power Station, Unit 1
, ALB-323, 3
NRC 331, 340 (April 14, 1976).
However, in Waterford, Ibid., the Commission held that, with the agreement of all of the parties
- involveQ, prelicensing antitrust review would not be required.
Throughout the Joint Petition, and Petitioners'eply, references are made to the fact that Florida Cities Qo not seek to delay
the issuance of the St. Lucie 2 construction permit. E~, p.
43 Joint Petition, p.
61 Reply.
In addition, the board in oral arguments inquired exhaustively as to petitioners'tatement that no delay in the construction permit is requested nor expected.
The response was unqualified (Tr. 5-12).
Petitioners agree that the construction permit would issue (Tr. 11).
Likewise the NRC Staff, which does not favor the antitrust hearing in the first instance, agrees that the ordering of an antitrust hearing in this proceeding should not serve to delay the issuing of a construction permit (Tr. 17-18).
Because of the lateness of the petition we regard the agreement to permit the construction permit to issue before the completion of an antitrust hearing to be a
material aspect of the considerations underlying this Order."
In Florida Cities'ctober 19, 1976 Reply Brief at p.
17, n.
1, the Cities responded to the allegations by FPL that the relief sought with regard to the operating plants coulQ threaten FPL's ability to finance.
In that context, Cities stated a willingness to stipulate issues in order to eliminate uncertainty and that "they do not seek delay of construction or operation of the units and would not seek to tie the question of FPSL's ability to continue construction or operation of the units to FPEL's agreeing to interim conditions..."
- However, FPL never accepted the offer to stipulate and was ultimately successful in obtaining dismissal of Florida Cities'ntervention concerning the operating units, although this subject remains open as a question for the St. Lucie operating license.
In conclusion, we do not believe that the Cities have waived rights with regard to the operating license, but are in fact prepared to recommend such stipulation to our clients, provided that the procedures for resolution of issues are not such as to plainly disadvantage the Cities.
Sincerely, cc: Herbert Dym, Esq.
Robert.
A. Jablon Alan J.
Roth
ATTACHMENT C
ROSLRT LOWENSTCIN JACK R. NCWMAN HAROLD I; REIS MAVRICC*XCLRAD KATHLECN H. SHEA J. A. SOVKNIOHT, JR MICHAELA. SAVSER DOVOLAS 0, ORCCN E. OREOORY SARNCS
- LSCRT V. CARR, JR.
ANNE W. COTTINOHAM KATHLECN A. COX ROSCRT H. CVLP PETER O. FLYNN STEVEN P. FRANTZ FREDERIC S. ORAY ALVINH OVTTCRMAN DAVID O. POWELL DAVID S RASKIN DONALD J SILVCRMAN oADH, KCN, LAW OFF'ICES LOWENSTEIN, NEWM~, REIS 8: AXELMD ICI2d CONNECTICUT AVENUE, N. W.
WASHINGTON, D. C. 2OO36 202
~ 862-8400 June 12, 1981 Robert A. Jablon, Esquire Spiegel
& McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 Re:
NRC Docket No. 50-389A
Dear Bob:
I have received your letter of June ll, 1981.
As I told you during our first discussion about this matter over a week ago, the conditions described in the first two paragraphs on page 2 of your letter are unacceptable to FPL.
In your letter you indicated a desire that expeditious procedures be followed in the case.
You do not suggest that FPL has in the past engaged in dilatory tactics in the proceeding, nor could that fairly be suggested.
The proceeding is being conducted in a context where the regulations forbid dilatory tact-
- ics, (10 CFR 2.731(c)(4),
and under the direction of an experienced and capable Licensing Board.
Accordingly, there is no reason to expect that the proceeding will be delayed unduly.
I would appreciate hearing from you promptly as to whether the Cities are prepared to enter, without conditions, into the stipulation attached to my letter of June 2, 1981.
Sine y,
JAB/ar cc: Herbert Dym, Esquire J.A. Bouknight, Jr.
ATTACHMENT D
GEORGE SPIEGEL. PC ROBERT C. MCDIARMID SANDRAJ. STREBEL ROBERT A. JABLON JAMES N. HORWOOD ALANJ. ROTH FRANCES E, FRANCIS DANIELI. DAVIDSON THOMAS N, MCHUGH. JR.
DANIELJ. GUTTMAN PETER K. MATT DAVIDR. STRAUS LAW OFFICES SPIEGEL & MCDIARPIID 2600 VIRGINIAAVENUE. N.W.
WASHINGTON, D.C. 20037 TELEPHONE (202I 333-4500 TELECOPIER (202) 333-2974 June 30, 1981 RON M.LANDSMAN
~ BONNIE S. BLAIR ROBERT HARLEY BEAR THOMAS C.TRAUGER JOHN MICHAELADRAGNA CYNTHIAS. BOGORAD GARY J. NEWELL MARC R. POIRIER MARTAA. MANILDI JOSEPH L. VAN EATON STEPHEN C. NICHOLS PATRICIA E, STACK OF COUNSEL SUSAN T. SHEPHERD BY HAND J.
A. Bouknight, Jr., Esquire Lowenstein,
- Newman, Reis ('xelrad 1025 Connecticut
- Avenue, N.
M.
Washington, D.
C.
20036 RE:
Florida Power 6 Li ht Com an (St. Lucie Plant, Unit Vo.
2 NRC Docket, No. 50-389A
Dear Lon:
In your June 12, 1981 letter you have requested my letting you 'know "promptly as to whether the Cities are prepared to enter, without conditions, into the stipulation" that'you attach to your letter of June 2,
1981.
That proposed stipulation provides for a waiver of rights by the Cities that would permit ooeration of St. Lucie Unit 2 regardless of the status of antitrust review.
You appropriately recognize the importance of stipulations that would permit St
~ Lucie Unit 2 to operate on schedule.
I can assure you that the Cities share your concern.
- Indeed, as I pointed out in my June ll, 1981 letter, many will be owners of the unit or purchase electricity from Florida Power Light Company, and may later perceive it appropriate to grant a
waiver such as the one that you suggest.
You see) to resolve only FPL's concern, that of timely plant operation.
You fail to resolve our concern for timely NRC determination of the open issues in the current proceedings (which have been in issue since 1976).
There is still sufficient time to complete this antitrust review prior to plant operation by cooperation of counsel under an appropriate procedural schedule.
- Thus, you fail to"solve problems that would be created for our clients by antitrust review delay.
If the unit starts operation without completion of antitrust review and without an assurance of interim conditions to protect the Cities, then the Cities may suffer years of expensive and delayed litigation without consideration of the antitrust harms that may result from interim operation of the license without reasonable conditions.
Of course, FPL and the Cities may disagree as to what reasonable conditions are, but at the least you should agree that the Cities'oncern is real, and be prepared to meet with us in order that we can arrive at mutually acceptable and demonstrably fair procedural safeguards or interim conditions.
I suggest we meet to consider both relevant concerns.
M anwhile, as T. have indicated to you, we are in the process of discussing the matter with our clients.
However, if FPL is unwilling to consider the procedural needs of our clients and at the same time is unwilling to agree to further interim relief that would protect
- them, we can presently see little basis for the Cities waiving their rights, as you suggest, at this time.
Sincerely, g~p J~
Robert A. Jablon cc:
Herbert.
Dym, Esquire RAJ:bs
p 1
l V
I