ML18227D510
| ML18227D510 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, Turkey Point  |
| Issue date: | 10/15/1976 |
| From: | Jablon R Florida Cities |
| To: | NRC/OCM |
| References | |
| Download: ML18227D510 (9) | |
Text
UNITED STATES OF AMERICA BEFORE -THE NUCLEAR REGULATORY COMMISSION Florida Power S Light, Company ) Docket Nos. 50-335A (St. Lucie Plant, Units No. 1 ) 50-389A and No. 2) .)
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Florida Power a Light Company ) Docket Nos.(~~+
(Turkey Point, Plant, Units No. ) 50-251A 3 and No. 4) )
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JOINT 140TION OF FLORXDA CXTXES FOR LEAVE TO REPLY TO ANSI'/ERS TO PHTXTXON TO INTERVENE AND REQUEST FOR CLARXFXCATXON Florida Cities move that the Board grant them leave to file a roply to the answers submitted by Florida Power 6 Light ("FPGL") and the Commission. Staff to Cities'oint Petition for Leave .to Intervene. Cities also move that the Board set October 15, 1976 as the da"e for filing section 2.706 may already give a 'right to reply. Xn'
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that case, Cities merely requests the Board,'for the reasons stated below, to allow Cities to file such Reply no later than October 15, 1976. Should the right to reply be deemed to be d'cretionary, for the reasons stated below, Cities request leave to file a reply, with the filing date set as October 15, 1976.
XNTRODUCTXON Cities claim that Florida Power 6 Light has mono-polired nuclear capacity in the State of Florida and that it
refuses to enter into an ingegrated power pool or grant general transmissiona access as requested by Cities, thereby substantially increasing Cities'ower supply costs and, indeed, limiting their ability to compete. If Cities are correct on the merits, FP6L's use of nuclear power becomes the direct means by which competition is diminished or destroyed.
Cities contend that, within the powers granted the Commission by the Atomic Energy Act, and as defined by case law,,the Commission has the authority to prevent nuclear power from being .the means of putting utility systems out of business. Cities further contend that, as the agency most directly concerned with the licensing and supervision of nuclear generation, the Commission has the responsibility to so act.
In their answers to Cities'etition to Intervene, FPGL and Staff have argued that no such authority here exists. Both have made arguments relying on extensive statutory and case citations. The issues raised by Cities have great importance to Florida consumers. Th'e resolution of these issues will determine whether, in its judgment, the Commission has legal authority to deal effectively with abuses of nuclear power. Given the fact that the pleadings in opposition rest ontechnical interpretations of, the law and given the importance of the issues presented, Cities
.respectfully request the opportunity to respond. They further
wish to discuss the very recent order of the Atomic Safety and Licensing Board granting intervention and an antitrust hearing in Houston Li htin and Power Com an (South Texas Pro'ects, Units 1 and 2), Docket Nos. 50-498A, 50-499A (September 9, 1976)..
GROUNDS FOR GRANTXNG LEAVE TO REPLY NRC Rule 2.714, 10 CFR Sec. 2.714, neither allows nor prohibits replies to answers. They are, therefore, discretionary. This discretion should be exercised so as to promote the goals of the Atomic Energy Act, enable the Board to be fully informed before resolving a complex and important issue, and give fair treatment to all who will be affected by its ultimate decision.
The procedural rules of the Federal courts are analogous and support the usefulness and desirability of reply briefs. Both Rule 28(c) of the Federal Rules of Appellate Procedure and Rule 40(4) of the U.S. Supreme Court Rules allow reply briefs as a matter of right. Rule 7(a) of the Federal Rules of Civil Procedure allows a reply .to an answer when ordered by the court. Thus, such reply briefs are an accepted part of adjudication, to be used when they will enhance the tribunal's understanding of the issues in dispute.
FPGL has (at 34-5 of its Response) accused Cities of filing their original Petition with a "casual attitude" or inthe.attempt to make a mockery of procedural rules
or create chaos. To the contrary, Cities filed the Petition to Intervene with full knowledge of the gravity and import of its filing and with the strong conviction that their claims were fully supportable and that their interests could only be effectively preserved by such action.
Especially in view of the unsupported pejorative nature of FPGL's response, fairness dictates a right of reply.
Remarks made by the Staff and FPGL in their answers also show the need for further 'larification by Cities. Staf f suggests that some confusion exists as to f
whether Cities invoked the procedural mechanism of 10 CFR Sec. 2.206 in calling for a review of certain operating licenses (at ll of Staff's Answer) and as to Cities'osition on the relationship of the antitrust review in South Dade to their present Petition to Intervene (at pages 6 and 8). These important matters should be clarified before the Board rules on Cities'etition. Staff, at, page 4, n. 5 of its Answer, states that the existence of grounds for independent action by the Commission is irrelevant to Cities'otion to intervene. Cities should be allowed to fully explain their position on this contention. FPGL complains, at page 36, n. 63 of its Answer, that Cities has not discussed the burden of petitioners under Section 2.714(a) nor mentioned I
leading Commission decisions. Since the Board has now received lengthy arguments against intervention grounded. on Section 2.714 and related precedents, Cities deserve the opportunity to provide it with their analysis of the authorities cited. FP&L also seems confused, about Cities'osition as to
the relationship of the South Dade proceedings to its petition to intervene (pp. 50-51 of FPGL's-Response); further explanation C
by Cities will allow the Board to act with full deliberation.
Finally, FPGL has strenuously argued that to Intervene deprives FPGL of its right to the Cities'etition resolution without delay of antitrust issues involving its St. Lucie 2 plant and that Cities'ffer not to block the commencement of construction does not prevent that deprivation or alleged injury to its financial position., (At 52-54).
Further explanation of Cities'osition that it would not, seek to bar construction may remove a major objection to the proposed antitrust hearing. Cities should also be given the chance to show that FPGL's desire for a speedy resolution of the antitrust issues surrounding St. Lucie 2 implies a consensus that. may make an antitrust review of the St. Lucie 2 unit prior to or simultaneous with the South Dade antitrust proceeding preferable to all parties.
III.
REQUEST FOR CLARIFICATION BY FPGL On page 3 of its Response, FP&L argues that:
Even though the Petition wholly lacks merit, the very fact that it is pending could have an. adverse impact upon FPGL.'s ability to obtain needed capital on favorable terms by the sale of securities to the invest'ing public.
Petitioners do not believe that this is a realistic likelihood.
Indeed, investors may be reassured by the 'knowlege that these questions regarding FPGL activities, and the development of state-wide power supply coordination and cooperation, will be
resolved at the threshold by an administrative agency having
- the necessary jurisdiction and expertise. FPGL cites no-:
specific facts or evidence to support its contentions, making it difficult for Cities to respond. Prompt clarification would aid Cities in replying.to FPGL's Response and would assist the Board in evaluating FPGL's allegations.
Petitioners are prepared, at, the threshold of this case, to. enter into all- appropriate stipulations, procedural and substantive, necessary to eliminate any real adverse impact on FPGL. Accordingly, Petitioners hereby.
request a statement of particulars from FPGL concerning this matter, along with its recommendations as to desirable stipula-tions, so that the parties and Commission Staff can take prompt steps. If FPGL takes the view that nothing would suffice except withdrawal of Cities'etition to Intervene, it should also state its views as to how'the Commission can preserve
'ities'ight to make their instant. good faith argument in favor of intervention and antitrust hearings without substan-tially affecting FPGL's ability to finance on favorable terms.
IV.
PROPOSED DEADLINE FOR FILING REPLY Cities request that it be given until October 15, l976 to file a Reply brief. That date has been chosen with reference to other activities and deadlines involving related dockets. In particular, the attorneys for both FPGL and Cities, as well as Staff counsel, have been occupied for some time with data requests by the parties. Those data requests will monopolize
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much of counsel' t:ime into the beginning of Oci:ober. See E Order dated September 21; 1976 of the Atomic Safety and Licensing Board, in Docket No. P-636A, setting the final date for service of objections to interrogatories and requests for production of documents as October 8, 1976.
Thus, to avoid overlap in deadlines and to provide tim for a meaningful Reply by Cities,'we have asked that. the Board set October 15, 1976 as the date for: filing such Reply.
We have been authorized to stat:e that Staff does not contest either our request ior leave to file a reply or the October 15th deadline for filing. Ne understand that 1"PGL vill..rontest our. ~j.qnt.to .respond.
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that the Board grant Cities leave to file a Rep3.y to Answers submitted in response to their Petition to Intervene.
Cities further 'request that the date for such Reply be'et as October 15, 1976.
Respectfully submitted, Robert A, Jab3.on Ati:orney f'r the Port. Pierce Utilities Author3.ty of the City 0 '"'orf PierceI t;he Gainesville-Alachua County Regional Electric Water and Sewer Uti3.ities, the 3:ake Worth Utilities Authority, the
'Uti3.ities Co";imission of the City of Nev Smyrna Beach, the Orlando Vtilitics Commission, the Sebring Utilii;'es Commis-sion, and the Cit:ies of Alachua, Bari:o>>,
J3ushnell, Chat tahooc! i(. e, Daytona Beach g Port Keade, Lake Helen, Leesbu -g, l1ount Dora, Hewberry, Quincv, St. Cloud, Wil3.i' t:on <<'nd Tallahassee, Florida, and the 1" lorida Hunicipa1 Uti litie Association
CERTIFICATE OF SERVICE I hereby certify that I have this day caused the foregoing Petition to be served, by first class mail, upon the following persons:
Daniel M. Head, Esquire Atomic Safety 6 Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C. 20555 John M. Frysiak, Esquire Atomic Safety S Licensing Board Panel
'U.S. Nuclear Regulatory Commission Washington, D.C. 20555
.Ivan N. Smith, Esquire Atomic Safety s Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Tracy Danese, Esquire Vice President for Public Affairs Florida Power 6'ight Company P.O. Box 013100 Miami, Florida 33101 J. A. Bouknight, Esquire Linda Hodges, Esquire Robert H. Culp, Esquire Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 Lee Scott. Dewey, Esquire Counsel for Nuclear Regulatory Commission Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 David A. Leckie, Esquire Joseph J. Saunders, Esquire Antitrust Division U.S. Department of Justice P.O. Box 7513 Washington, D.C. 20044 Chief, Antitrust 6 Indemnity Group Office of Nuclear Reactor Regulation U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Chief, Docketing and Service Section Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Dated at Washington, D.C., this 24th .day of September, 1976.
Robert A.,Gablon Attorney for Florida Cities II