ML17266A263

Response Before Us Court of Appeals for DC Circuit,In Opposition to Petitioners' Motion for Expedited Consideration of Civil Action 80-1099.Certificate of Svc Encl.Related Correspondence

ML17266A263
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	09/25/1980
From:	Bouknight J, Dym H COVINGTON & BURLING, FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:
References
ISSUANCES-A, NUDOCS 8009300476
Download: ML17266A263 (5)

Text

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ZN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 6 ~+Rc Spp No. 80-1099 em@

fg<c Spy FT. PIERCE UTILITIES AUTHORITY OF THE CITY OF FT PIERCEA ET AL

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PETITIONERS, V.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, RESPONDENTS.

FLORIDA POWER 6 LIGHT COMPANY and THE CITIES OF HOMESTEAD@ KISSIMMEEg and STARKE, FLORIDA, ZNTERVENORS.

ON PETITlON FOR REVIEW OF AN ORDER OF THE NUCLEAR REGULATORY COMMISSION RESPONSE OF INTERVENOR FLORIDA POWER &

LIGHT COMPANY TO MOTION FOR EXPEDITED CONSIDERATION Inte venor Florida Power a Light Companv ("FPL")

opposed. petitioners'otion for expedited consideration be-cause petitioners have not shown how their interests or the public interest would be'rejudiced we'e this matter to be conside ed unde the Court's normal scheduling.

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The issue in this case is whether the Nuclear Regulatory Commission ("NRC") abused its discretion in determining not to institute a hearing under Section 105a of the Atomic Energy Act of 1954, 42 U.S.C. g 2135(a) it until had an opportunity to consider the result of trial court proceedings on remand from Gainesville Utilities De artment v. Florida Power & Li ht Company, 573 F. 2d. 292 (5th Cir.), cert. denied, 437.U.S. 966 (1978) . These remanded proceedings, the NRC determined, could shed light on whether the threshhold, jurisdictional test under Section 105a had been met and also whether relief in addition to what may be provided by the trial court was necessary or appropriate.

Zn asking that this matter be considered out-of-turn, which could prejudice other litigants before this Court anxious to -have their cases considered, petitioners do not even suggest that the antitrust violation found by the Fifth Circuit in Gainesville is continuing in effect, tnus requiring expeditious consideration by this Court and the NRC. On the contrary, as shown in FPL's brief (pp. 15-17) and not disputed by the petitioners, the conspiracy found in Gainesville terminated long ago. Nor do petitioners contend that they lack forums in which to air asserted antitrust grievances against FPL and that, for this reason, I

expedited consideration of this case is called for. On the contrary, litigat.ion instituted by petitioners against FPL in the District Court for the Southern District of Florida,

j, Ps before the NRC, and before the Federal Energy Regulatory Commission demonstrate that expedited consideration of this case is not necessary in order tha petitioners may have remedies for asserted antitrust violations.

The only reason advanced by petitioners for expedited consideration of this matter is their contention that, if they were to prevail before this Court and if the NRC were to order a hearing under Section 105a, that hearing could be consolidated with a proceeding pending before the NRC under Section 105c of the Atomic Energy Act, 42 U.S.C. g 2135(c), thus eliminating unnecessary duplication.'n view of recent developments in the Section 105c proceeding, however, there is no longer any basis for believing that consolidation of any Section 105a hearing with the Section 105c proceeding is realistic.

As shown by the attached Joint Motion and Stipulation which were filed with the NRC on September 12, 1980, the Depar tment o f Justice, the S ta ff of the NRC, and FPL have reached a ull and complete settlement of the dif erences between them in the Section 105c proceeding. 1/ lf the Joint Motion is granted, this settlement will serve to simpli y and expedite that proceeding, a proceeding that would 1/ The Stipulation also recites the position of the Govern-ment parties with respect to the need for any proceeding against FPL under Section 105a. Even i this Court were to reverse the NRC determination at issue in this case, the NRC would still have to determine whether, if the license conditions attached to the Stipulation go into effect, there is any basis whatever for any Section 105a proceeding against FPL.

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, it be unduly delayed were to be 0

consolidated with any Section 105a hearing. Zt is thus apparent that the premise underlying petitioners'urrent motion the asserted desirability of a consolidated proceeding were a Section 105a hearing to be held--is invalid. The motion should be denied.

Respectfully submitted, P~ l~f Dp/

Herbert Dym ~

Covington & Burling 888 16th Street, N.N.

Nashington, D.C. 20006

.A. Bou ight, Jr.

Lowenstein, Newman, Reis, Axelrad

& Toll 1025 Connecticut Avenue, N.N.

Nashington, D.C. 20036 Attorneys for Florida Power &

Light Company DATED: September 25, 1980

CERTIFICATE OF SERVICE I hereby'ertify that the foregoing "Response of Intervenor Florida Power & Light Company to Motion for Expedited Consideration" has been served on the following persons by depositing copies in the United States mail, first class, postage prepaid, this 25th day of September, 1980:

Honorable Benjamin R. Civiletti Attorney General of'he United States U.S. Department of Justice Washington, D.C. 20530 Sanford M. Litvack, Esquire Peter G. Crane, Esquire Assistant Attorney General Office of the General Counsel U.S. Department of Justice U.S. Nuclear Regulatory Washington, D.C. 20530 Commis s ion Washington, D.C. 20555 Robert Nicholson Esquire James Laskey, Esquire Appellate Section Antitrust Division U.S. Department of Justice Washington,.D.C.= 20530 Robert A. Jablon, Esquire Ron M. Landsman, Esquire Spiegel' McDiarmid 2600 Virginia Avenue, N.W.

Washington, D.C'. 20037 Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Leonard Bickwit, Jr., Esquire General Counsel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen F. Eilperin, Esqui e Solicitor U.S. Nuclear Regulatory Commission Washington, D.C. 20555 S.A. Boukn ht, Lowenstein, Newman, Reis, Axelrad a Toll 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036