ML18088A576
| ML18088A576 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, Turkey Point  |
| Issue date: | 11/01/1977 |
| From: | Bouknight J, Mathews J Florida Power & Light Co, Lowenstein, Newman, Reis & Axelrad, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb |
| To: | NRC/OCM |
| References | |
| 50-250A, 50-251A, 50-335A, 50-389A | |
| Download: ML18088A576 (6) | |
Text
UNITED STATES OF AMERICA REGULATOPY COMMISS XON BEFORE THE COI SSION Dl
>I) V-In the Matter of )
)
yO pP Florida Power. & Light Company ) Docket Nos. 50-335 50-251A'UCLEAR (St. Lucie Plant, Units/ 1 and 2) ) 50-389A N3
)
Florida Power 6 Light Company ) Docket Nos. 50-250A (Turkey Point Plant, Units 3 )
and 4) )
OPPOSITXON OF FLORIDA POWER LIGHT COMPANY TO CITIES) MOTXON TO LODGE DOCUMENTS Florida Cities-(" Cities" ) have filed a "Motion to Lodge Documents",which requests that certain documents (described therein by a number and summary) "be permitted to be lodged with the Commission and made a,part of the deci'sional record.",
(Motion, p. 1.) Cities refer to their request in a number of ways. While entitled "Motion to Lodge", the request is also
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described as a supplement to a petition to intervene (Motion,
- p. 9). In fact, the Motion is an unfair attempt to place before the Commi.ssion selected bits and pieces 'of evidence of alleged anti-competi:tive conduct in an effort to influence the
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Commission in its consideration of Docket No. 50-389A.
I Florida Power 6 Light Company (FPL) opposes the. motion..
The Motion refers in its caption to Docket Nos. 50-250A, 50-251A and 50-335A,. as well as to Docket No. 50-389A. The first three of these proceedings are no longer pending before the NRC "in any context. + The other proceeding, Docket No. 50-389A
+See letter from Director of Nuclear Reactor Regulation denyincr request for issuance of order to show cause, dated September':9, .
1977; Commission Order denying the Cities'etition to review ALAB-428, dated, October 25', 1977.
(St. Lucie Unit No. 2) is now penRing befoxe the Commission on
.review of ALAB-420. Two specific questions have been designated
'<<for review, and neither concerns in any way- the allegations made in the Cities'otion. This consideration alone should be dxspositive. /
t The prejudicial nature of the offering supplies an
.independent additional ground for denial. Even if the materials referenced in the Motion w'ere pertinent to some question now before the Commission (which they are not), the Commission's rules do not,. for good reason, provide that evidentiary material may be "lodged" by pleading and "made part-of the decisional record" l
in an adjudication. Documents and testimony are received in evi'dence in accordance with settled procedures, so that witnesses may be cross-examined and documents placed in context. through the testimony of witnesses other than the sponsor of the material. The unfairness
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of conducting adjudications, on the basis of materials selected and freely characteri'zed .by counsel for one party are illustrated by this Motion.
Cities'itation to Scenic Hudson Preservation Conf. v. FPC, 354 F.2d 608 (2d. Cir. 1965) i.s not apt. The question tTtere was whether the FPC properly rejected, solely on the basis of untimeliness, testimony which vsas central to matters under adjudication in a proceeding.
The only question before the Commission here is whether to institute a proceeding upon a late petition. The Commission is not here engaged in making findings on substantive antitrust antitrust questions. are not even included inissues. Indeed, substantive the issues set down for revie
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Needless to say, FPL disagrees sharply with the allegations and characterizations in the Notion. FpL believes 'that, evidentiary hearing, it if exposed to an would be demonstrated that some of the factual allegations, and particularly several of those relied in the quoted portions of Dr. Taylor's testimony (pp. 8-9), are simplyupon in other instances, the meaning of documentary evidence has beentrue; not distorted in the characterizations contained in the Notion. Neither the Taylor testimony, nor any of the documents tendered have been admitted into evidence by the FERC or subjected to cross-examination or resp'onsive testimony in the FERC proceeding.
The request for leave to amend the Cities'etition for intervention comes some 45 months after the date to file a petition for intervention in the only matter now before the Commission
. (Docket No. 50-389A); some 14 months after the petition was filed;
",after the Licensing Board and the Appeal Board have acted upon 'the petition; and after the Commission has narrowed the issues for deter-
'mination to two specific legal questions. The Cities'ugust 1976 petition consisted primarily of allegations of "recent anti-competitive
'practices" by Applicant, allegedly supported by pounds of documen'ts appended to the petition and supporting affidavits. The material's referenced'n the instant Motion involve the same allegations. Those
'allegations are not now before the Commission, because the Licensing Board was unable to find that "the alleged recent'nti-competitive practices by 'Applicant have so materially changed [Cities '] circumstances that these practices alone constitute substantial good cause for the lateness 'of their petition." (Licensing Board Order. of April 5, p. 20)
The Appeal, Board did not upset this finding or rely in any way on
'those allegations in affirming the Licensing Board's order granting the
'petition. (ALAB-420).
Now, at this late date, when the Commission s consideration has narrowed to other'ssues those which the Appeal Board determined in ALAB-420,, the Cities wish to remind the'ommission of the flavor of their initial petition and, while none'of these inflated allegations have ever been sustained by any tribunal, to inform the Commission that there is now at least one staff member in one administrative agency 8
who's prepared to"give them some credence. There being no established procedure for communicating such matters to the Commission, the Cities".
P chose to file their Motion.
The Motion 'is not appropriate under any established NPC procedure and is not relevant to any matter now pending before the Commission.
Acceptance of the tendered materials for "lodging" or as a supplement to the Cities petition would be extremely prejudicial to FPL.
WHEREFORE, FPL respectfully requests that the Commission
'deny the Motion, and that the Commission disregard the Motion's contents for purposes of its adjudication in this proceeding.
Respectfully 'submitted, f,(. /y, / ),P-~
.A. Bouknzght, gr.
~ ~ >/
owenstein, Newrh'an, Re'is 6 Axelrad
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025 Connecticut Avenue, N.W.
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Washington, D,C. 20036
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jl.
John E.
r= f4 Mathews,
~,
Jr.
>. I Mathews, Osborne, Ehrlich, McIJatt, Gobelman 6 Cobb 1500 American Heri'tage'ife Building 11 East Forsyth Street Jacksonville, Florida . 32202 Counsel for Florida Power & Light Company November', 1977
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSXON BEFORE THE ATOMXC SAFETY AND LICENSXNG BOARD In the Matter of )
)
Florida Power & Light Company ) Docket Nos. 50-335A (St. Lucie Plant, Units No. 1 ) 50-389A and No. 2) )
)
Florida Power & Light Company ) Docket Nos. 50-250A (Turkey Point Plant, Units ) 50-251A No. 3 and No. 4) )
CERTXFICATE OF SERUICE I HEREBY CERTIFY that copies of the following:
OPPOSITXON OF FLORIDA POWER &
LIGHT COMPANY TO CITIES'OTION TO LODGE DOCUMENTS have been served on the persons shown on the attached list by hand delivery or deposit in the United States Mail, properly stamped and addressed on November 1, 1977
.<'A. Bouknight Jr.
owenstein, Newman, Reis & Axelrad uite 1214 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 Counsel for Florida Power
& Light Company November 1, 1977
Chaixman Joesph M. Hendrie Robert A. Jablon, Esquire Of fice of the Commissioners Spiegel 5 McDiarmid U.S. Nuclear Regulatory Commission 2600 Virginia Avenue, N.W.
Washington, D.C. 20555 Washington, D.C. 20037
'ommissioner Victor Gilinsky David .A. Leckie, Esquire Office of the Commissioners Antitrust Department U.S. Nuclear Regulatory Commission U.S. Department of Justice Washington, D.C. 20555 P.O. Box 7513 Washington, D.C. 20530 Commissioner Richard Kennedy Of'fice of the Commissioners Lee Scott Dewey, Esquire U.S. Nuclear Regulatory Commission Counsel for the Staff Washington, D.C. 20555 U.S. Nuclear, Regulatory Commission Washington, D.C. 20555 Commissioner Peter Bradford Office of the Commissioners C.R'. Stephens, Supervisor (20)
U.S. Nuclear Regulatory Commission Docketing and Service Station Washington, D.C. 20S5S Office of the Secretary of the Commission Alan S. Rosenthal, Esquire U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Regulatory Commission Secretary Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jeorme E. Sharfman, Esquire Atomic Safety and Licensing William C. Wise, Esquire Appeal Board Panel Suite 200 U.S. Nuclear Regulatory Commission 1019 19th'treet, N.W.
Washington, D.C. 20555 Washington, D.C. 20036 Richard S. Salzman, Esquire William H. Chandler, Esquire Atomic Safety and Licensing Chandler, O'Meal, Avera, Gray, Appeal Board Panel Lang 6 Stripling U.S. Nuclear Regulatory Commission P.O. Drawer 0 Washington, D.C. 205S5 Gainesville, Florida 32602 Robert ?1. Lazo, Esquire Jerome Saltzman Atomic Safety and Licensing Chief, Antitrust and Indemnity Board Panel Group U.S. Nuclear Regulatory 'Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 John N. Frysiak, Esquire Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Ivan W. Smith, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555