ML18227D524
| ML18227D524 | |
| 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 | |
| Download: ML18227D524 (7) | |
Text
UNITED STATES OF AlTERICA NUCLEAR REGULATOPY COMMISSXON BEFORE THE COMMXSSIO I
In the Matter of
)
Florida Power
& Light, Company
)
Docket Nos.
(St. Lucie Plant, Units 1 and 2)
)
)
Florida Power a Light Company
)
Docket Nos.
(Turkey Point Plant, Units 3
),
and 4)
)
cQ II Ol 4 g'
@be 50-335 50-389A 50-250A 50-251A'PPOSXTION OF FLORIDA POL'KR LIGHT COMPANY TO CITIES'OTXON
'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 decisional record."
(Motion, p. 1.) Cities refer to their request in a number of ways; Hhil'e entitled "Motion to Lodge", the request is also 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-competitive conduct in an effort to influence the Commission in its consideration of Docket No. 50-389A.
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 proceedipgs 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
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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.
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(St. Lucie Unit No.
- 2) is now pending before 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 dispositive
~
The prejudicial nature of the offering supplies an
,independent additional ground for denial.
Even if the materials referenced in the Motion were 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" 4
in an adjudication.
-Documents and testimony are received in evidence 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 of conducting adjudications, on the basis of materials selected and freely characterized 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) z.s not apt.
The questron 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. issues,
- Indeed, substantive antitrust questions are not even included in the issues set down for revie Needless to say, FPL disagrees sharply with the allegations
/
and characterizations in the Notion.
FPL believes *that, if exposed to an evidentiary hearing, it would be demonstrated that some of the -factual allegations, and particularly several of those relied upon in the quoted portions of Dr. Taylor's testimony (pp. 8-9), ar'e simply not, true; in other instances, the meaning of documentary evidence has been distorted in the characterizations contained in the Motion.
Neither the Taylor testimony, nor any of the documents tendered have been admitted into evidence by the FERC or subjected to cross-examination or'respbnsive 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 l4 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 suppoxted by pounds of documents 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 anti-competitive I
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 lat'e date, when the Commission's consideration has narrowed to other" issues 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 infoxm the Commission that there is now at least one staff member in one administrative agency who's prepared to'give them some credence.
There being no established procedure for communicating such matters to the Commission, the Cities'I
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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'etition 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,
.A. Bouknzght, gr.
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owenstein, Newrh'an, Re'is
& Axelrad 025 Connecticut Avenue, N.W.
Washington, D.C.
20036 2:6, r= f~.~2, > /.
John E. Mathews, Jr.
- Mathews, Osborne, Ehrlich, McNatt, Gobelman a Cobb 1500 American Heritage'ife Building ll 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 ATOMIC SAFETY AND LICENSING BOARD Xn the Matter of Florida Power
& Light Company (St. Lucie Plant, Units No.
1 and No.
2)
Florida Power
& Light Company (Turkey Point Plant, Uni'ts No.
3 and No.
4)
)
)
)
)
)
)
)
e
)
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Docket Nos.
50-335A 50-389A I
Docket Nos.
50-250A 50-251A CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the following:
OPPOSITION OF FLORIDA POWER LIGHT COMPANY TO CXTIES'OTXON 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'tamped 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
Chairman Joesph M. Hendrie Office of the Commissioners U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Victor Gilinsky Office of the Commissioners U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Richard Kennedy Office of the Commissioners U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Commissioner Peter Bradford Office of the Comnissioners U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jeorme E. Sharfman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Richard S.
- Salzman, Esquire Atomic Safety and Licensing Aopeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert M. Lazo, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory 'Commission Washington, D.C.
20555 John N. Frysiak, Esquire Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert A. Jablon, Esquire Spiegel 6 McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 David.A. Leckie, Esquire Antitrust Department U.S. Department 'of Justice P.O.
Box 7513 Washington, D.C.
20530 Lee Scott Dewey, Esquire Counsel for the Staff U.S. Nuclear. Regulatory Commission Washington, D.C.
20555 C.R. Stephens, Supervisor (20)
Docketing and Service Station Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555 William C. Wise, 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 32602 Jerome Saltzman Chief, Antitrust and Indemnity Group U.S. Nuclear Regulatory Commission Vlashington, D.C.
20555 Ivan W. Smith, Esquire Atonic Safety and Licensing Boa'rd Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555