ML18227D489

Motion for Commission Clarification of Procedures

ML18227D489
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	03/29/1977
From:	Giacalone D, Jablon R Florida Cities, Spiegel & McDiarmid
To:	NRC/OCM
References
Download: ML18227D489 (10)

Text

UNITED STATES OF AMERXCA BEFORE THE NUCLEAR REGULATORY COMMISSION ss poa(BED QSHkPa MAR29 >~~~ +

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In the Matter'f:

Florida Power and Light Company (St. Lucie Plant, Units Nos.

1 and 2)

Florida Power and Light Company (Turkey Point Plant, Units Nos.

3 and 4)

)

Docket Nos.

50-335A 50-389A

)

Docket Nos. ~~~A

)

50-,251A MOTION FOR COMMISSION CLARIFICATION OF PROCEDURES On August 6, 1976, Florida Cities"/ filed with the Commission a Petition"*/ invoking the Commission's jurisdiction, under Sections

104, 185,

186, 187, and 188 of the Atomic Energy Act (42 U.S.C. Sections

2134, 2235-2238),

and requesting,'nter alia, that a hearing be instituted tc determine whether licenses granted to Florida Power

& Light Company in theabove-captioned dockets should be revoked or modified due to alleged anticompetitive conduct and conditions under those licenses.

On August 13, 1976/

an Atomic Safety and Licensing Board was established by James R.

Yore, Acting Chairman of the Atomic Safety and Licensing Board

Panel, to rule on Florida Cities'etition.

"/ "Florida Cities" consist of the Fort Pierce Utilities Authority of the City of Fort-Pierce, the Gainesville-Alachua County Regional Electric Water and Sewer Utilities, the Lake Worth Utilities Authority, the Utilities Commission of the City of New Smyrna Beach, the Orlando Utilities Commission, the Sebring Utilities Commission, and the

. Cities of Alachua, Bartow, Daytona Beach, Fort Meade, Key West, Mount Dora, Newberry, Quincyg St.

Cloud and Tallahassee,

Florida, and the Florida Municipal Utilities Association.

~*/"Joint Petition of Florida Cities for Leave to Intervene Out of Time; Petition to Intervene; and Request for Hearing,"dated August 6, 1976.

A copy of the Petition is attached, as are copies of Florida Cities'eply Brief of October 15, 1976, Staff's Answer of September 17, 1976 and FPGL's Response dated September 1, 1976.

Additional copies will be supplied upon request by the Commission.

Supporting affidavits and the transcript of oral arguments heard on February 1,

1977 are on file with the Commission.

I

The Commission Staff, in its Answer dated September 17, 1976, took the position that Cities must use the procedure outlined in Section 2.206 of the Commission s Regulation (10 CFR 2.206) in order to request proceedings to modify, suspend or revoke a license.

Cities specifically invoked Section 2.206 in their Reply Brief dated October 15, 1976 and filed a copy of their original Petition with the Director of Nuclear Reactor Regulation by letter dated October 29, 1976.

To avoid a conflict or duplication of procedures within the Commission, however, Cities stated in the letter to the Director of Nuclear Reactor Regulation that they would not object to his withholding action under Section 2.206 until after the established Licensing Board had ruled on Cities'etition.

~/

Opinion ALAB-381, in Houston Li htin

& Power Com an (South Texas Pro'ect, Units 1

& 2), Docket Nos.

50-498A, 50-499A, was issued on March 18, 1977.

Florida Power

& Light Co. has lodged that opinion with the Licensing Board in the above-captioned dockets by means of a letter dated March 21, 1977, stating that the opinion is pertinent to its Response to Cities'etition dated September 1,

1976.

Cities believe that case to be inapposite

~/ In response to that letter, Mr. Ford, the Director of Nuclear Reactor Regulation, telephoned. Cities'ounsel Mr. Jablon to determine why the Petition had been filed pursuant to Section 2.206.

Cities'ounsel quoted from Staff's Answer and stated that although he believed the matter would be more appropriately resolved by Atomic Safety

& Licensing Boards, that are experienced in antitrust matters, he had filed with the Director's office for protective purposes.

While Staff has suggested the use of the 2. 206 mechanism by Cities as procedurally more appropriate, we believe that FP&L's stance is more substantive:

the Company contends that no component of the Commission has jurisdiction to entertain such a Petition.

in relation to the St. Lucie No.

2 proceeding, because no construction permit has issued in that proceeding and the safety and environmental review has not yet been completed; the decision is also inapplicable to the Turkey Point Units, Nos.

3 and 4, and the St. Lucie Unit. No.

1 because those plants are operating under Section 104 licenses.

It is clear that the Commission is required under its statutory antitrust mandate to act on Cities'etition on its

'I I'erits.

Florida Cities believe that the procedures initially established by the Commission (or its delegatees) is appropriate (i.e., the reference for ruling to the Atomic Safety and Licensing Board).

However, although the case is factually distinguishable, the South Texas case raises questions as to the internal procedures by which the Commission may desire to rule on this matter.

Further, as to Docket Nos.

50-250A, 50-251A and 50-335A, involving the Section 104 plants, Cities'Petition raises matters of first impression.

. In view of the above situation, Florida Cities respectfully request that the Commission clarify procedures.

Florida Cities believe the Commission should clarify the authority of the Board, so that an antitrust panel already established may rule upon Cities'etition for a hearing and intervention.

However, the Commission may desire to rule on the matter itself or determine that the Director of Nuclear Reactor Regulation must first rule under Section 2.206 on Cities'equest for a modification hearing and show cause order (with a possible reference to the Atomic

)

Safety

& Licensing Board).

Since Cities'etition vredominantlv raises antitrust

issues, and those issued have been fullybriefed'nd uartiallv arqued before the established Licensinq Board, it arrears that the Board (which.is experienced in antitrust matters) is the most anoropriate forum to rule on the merits.

Cities have no objection, of course, to the Commission itself rulinq upon their Petition.*/

Since the South Texas Appeals Board decision (and the position of staff counsel) creates doubt as to the proper procedures, to avoid subsequent delay and to protect the rights of the parties, Cities request that the Commission affirm the authority and jurisdiction of the present licensing board in this matter or otherwise determine the most appropriate procedural mechanism for the early resolution of the matters raised by Cities on the merits.

Respectfully submitted, Robert A. J ion ed%

S'id A. Giacalone Law offices of:

Spiegel 6 McDiarmid 2600 Virginia Ave.

NW Washington, D.C.

20037 March 29, 1977 Attorneys for the Fort Pierce Utilities Authority of the City of Fort Pierce, the Gainesville'Alachua County Regional Electric Water and Sewer Utilities, the Lake Worth Utilities Authority, the Utilities Commis-sion of the City of New Smyrna Beach, the Orlando Utilities Commission, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Daytona Beach, Fort Meade, Key West, Mount Dora, Newberry, Quincy, St.

Cloud and Tallahassee,

Florida, and the Florid Municipal Utilities Association

"/ Cities also have no objection to the Director of Nuclear Regulation handling their Petition under Section 2.206, but the Director's office has little antitrust experience and, thus, may not be the most appro-priate forum for the matter.

Since the end result of the Director's decision to institute the requested hearing will most probably be the establishment of a Licensing Board to hear the case (see slip pages 20 and 12 of the'outh Texas opinion,'upra),

awaiting his decision rather than confirming the soard's authors.ty would probably cause needless delay.

CERTIFICATE OF SERVICE I hereby certify that I have this day caused the fore-going Motion For Commission Clarification of Procedures"/ to be served upon the following persons:

William C. Wise, Esquire Robert Weinberg, Esquire Suite 200 1019 19th Street, N.W.

Washington, D. C.

20036 William H-Chandler, Esquire

Chandler, O'Neal, Avera, Gx'ay, Lang

& Stripling P.O.

Drawer 0 Gainesville, Florida 32601 David A. Leckie, Esquire Antitrust Division Department of Justice 1101 Pennsylvania

Avenue, N.W.

Washington, D.C.

20530 Robert H. Culp, Esq.

Lowenstein, Newman, Reis a

Axelrad 1025 Connecticut Avenue, NW Suite 1214 Washington, D.C.

20036 Tracy Danese, Esquire Vice President, Public Affairs Florida Power

& Light, Company P.O.

Box 013100 Miami, Florida 33101 John E. Mathews, Jr.

Esq.

Mathews, Osborne, Ehrlich, McNatt, Gobelman 6 Cobb 1500 American Heritage Life Bldg.

Jacksonville, Florida 32202 J.

A. Bouknight, Jr.,

Esq.

Lowenstein, Newman, Reis Axelrad 1025 Connecticut Avenue, NW Washington, D.C.

Linda L. Hodge, Esq.

Lowenstein,

Newman, Reis 6

Axelrad 1025 Connecticut Avenue, NW Washington, D.C.

20036 Lee Scott Dewey, Esq.

Office of Executive Legal Director Nuclear Regulatory Commission Washington, D R.

20555 Chief, Docketing and Service Section Office of the Secretary Nucleax Regulatory Commission Washington, D.C.

20555 Ivan W. Smith, Esquire Atomic Safety and Licensing

.. Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 John M. Frysiak, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission

'ashington, D.C.

20555 Daniel M. Head, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 Dated at Washington, D.C. this 29th day of March, 1977.

C avid A. Giacalone Without Attachments

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY.COMMISSION In the Matter of:

Florida Power and Light Company (St. Lucie Plant, Units Nos.

1 and 2)

Florida Power and Light Company (Turkey Point Plant, Units Nos.

3 and 4)

)

Docket.Nos.

50-335A

)

50-389A

)

)

Docket Nos.

50-250A

)

50-251A NOTICE OF APPEARANCE Notice is hereby given'hat David A. Giacalone enters his appearance in the captioned proceeding as attorney for:

Ft. Pierce Utilities Authority of the City of Ft. Pierce P.O.

Box 3191 Fort Pierce, Florida 33450 Gainesville-Alachua County Regional Electric Water and Sewer Utilities P.O.

Box 490 Gainesville, Florida 32601 Lake Worth Utilities Authority 114 College Street.

Lake 'Worth, Florida 33460 New Smyrna Beach Utilities Commission P.O.

Box 519 New Smyrna Beach, Florida 32069 Orlando Utilities Commission 400 South Orange Avenue Orlando, Florida 32802 Sebring Utilities Commission 213 South Commerce Street.

Sebring, Florida 33870 City of Alachua P.O.

Box 8

Alachua, Florida 32615

Bartow City Electric Department 250 North Central, Box 1669 Bartow, Florida 33820 City of Daytona Beach P O. Box 551 Daytona Beach, Florida Fort Meade Electric Department.

P.O.

Box 856 Fort Meade, Florida 33841 Key West Utility Board

.P.O.

Drawer 1060 Key West, Florida 33040 City of Mount Dora P.O.

Box 176 Mount Dora, Florida 32757 Newberry Board of Public Works P.O.

Box 368 Newberry, Florida 32669 Quince Municipal Electric Light 6 Water Department, P.O.

Drawer 941 Quincy, Florida 32351 St.

Cloud Electric

& Water Department 824 New York St. Cloud, Florida 32769 Tallahassee Electric Department 2602 Jackson Bluff Road Tallahassee, Florida 32304 Florida Municipal Utilities Association P.O.

Box 2402 Lakeland, Florida 33803 In accordance with '10 'CFR Sec.'.713, the following.

information is provided:

The address and telephone number of David A. Giacalone is!

Spiegel 6 McDiarmid 2600 Virginia Avenue, NW Washington, D.C.

20037 (202) 333-4500

Mr. Giacalone is eligible to appear as an attorney on behalf of the above-named entities, Florida Cities.

He is a member in good standing of the District of Columbia Bar.

Respectfully submitted, David A. Giacalone Attorney for Florida Cities

t t

CERTIFICATE OF SERVICE I hereby certify that I have this day caused the fore-going Notice of Appearance of David A. Giacalone to be served upon the following persons:

William C. Wise, Esquire Robert Weinberg, Esquire Suite 200 1019 19th Street, N.W.

Washington, D. C.

20036 William H. Chandler, Esquire

Chandler, O'Neal, Avera, Gray, Lang

& Stripling P.O. -Drawer 0 Gainesville, Florida 32601 David A. Leckie, Esquire Antitrust Division Department of Justice 1101 Pennsylvania

Avenue, N.W.

Washington, D.C.

20530 Robert H. Culp, Esq.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut Avenue/

NW Suite 1214 Washington, D.C.

20036 Tracy Danese, Esquire Vice President, Public Affairs Florida Power

& Light Company P.O.

Box 013100 Miami, Florida 33101 John E. Mathews, Jr.

Esq.

Mathews, Osborne, Ehrlich, McNatt, Gobelman

& Cobb 1500 American Heritage Life Bldg.

Jacksonville, Florida 32202 J. A. Bouknight, Jr.,

Esq.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut Avenue",

NW Washington, D.C.

Linda L. Hodge,.Esq.

Lowenstein,

Newman, Reis -&

Axelrad 1025 Connecticut

Avenue, NW Washington, D.C.

20036 Lee Scott Dewey, Esq.

Office of Executive Legal Director Nuclear Regulatory Commission

'ashington, D Z. 20555 Chief, Docketing and Service Section Office of the Secretary Nuclear Regulatory Commission Washington, D.C.

20555 Ivan W. Smith, Esquire Atomic Safety and Licensing

.. Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 John M. Frysiak, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 Daniel M. Head, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 Dated at Washington, D.C. this 29th day of March, 1977.

id A. Giacalone

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