ML18227D527
| ML18227D527 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, Turkey Point  |
| Issue date: | 10/25/1977 |
| From: | Jablon R Florida Cities, Spiegel & McDiarmid |
| To: | Office of Nuclear Reactor Regulation, US Federal Judiciary, District Court for the District of Columbia |
| References | |
| Download: ML18227D527 (29) | |
Text
0 E@LATZ3 COarugrOmZNCE 1 lo/zeal~ oC IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT POCK ETEO PsHtg Ft. Pierce Utilities Authority of the 8 DEC 20 1~77 >
City of Ft. Pierce, ~lay 5 Gainesville-Alachua County Regional ~'ec6ae Electric Water and Sewer Utilities, Lake Worth Utilities Authority, Utilities Commission of New Smyrna .".,
Beach, Orlando, Utilities Commission, ) pppKEt'mVi6ER,'- .
Sebring Utilities Commission, ) >R00. 5 UTO' City of Alachua, Florida, )
City of Bartow, Florida, SO- ~5M,~ ld City of Fort Meade, Florida, City of Key West, Florida, )
City of Newberry, Florida, )
City of St. Cloud, Florida, )
City of Tallahassee, Florida', )
Florida Municipal Utilities Association, )
)
Petitioners, )
)
Vo ) No
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Nuclear Regulatory Commission, )
and the United States of America, )
)
Respondents. )
PETITION FOR REVIEW Pursuant to Section 189(b) of the Atomic Energy Act of 1954, 42 U.S.C. $ 2239(b), and 28 U.S.C. g2342, the Ft. Pierce Utilities Authority of the City of Ft. Pierce, the Gainesville-Alachua County Regional Electric Water and Sewer Utilities, the Lake Worth Utilities Authority, the Utilities Commission of New Smryna Beach, the Orlando Utilities Commission, the Sebring Uti-lities Commission, and the Cities of Alachua, Bartow, Fort. Meade, Key West, Newberry, St. Cloud and Tallahassee, Florida, .and the
C Florida Municipal Utilities Association ("Florida Cities" ). re-spectfully petition this Court for review of the Decision is-sued on August 23, 1977, by an Atomic Safety and Licensing Ap-peal Board of the Nucle'ar Regulatory Commission in Florida Power and (Turkey Point Plant, Units No. 3 and No. 4), Docket Nos.
50-250A and 50-251A, ALAB-428, a copy of which is attached hereto (Attachment A).
On September 8, 1977, Florida Cities petitioned the Nuclear Regulatory Commission for review of the Atomic Safety and Licensing Appeal Board's August 23, 1977 Decision, pursuant to Section 2.786 of the Commission's Rules of Practice, 10 C.F.R. 4 52.786. ln its Order of October 25, 1977, the Commission de-clined to review ALAB-428, thus making its Appeal Board's action final and reviewable by this Court under 28 U.S.C. 52343.
A copy of the Commission's October 25, 1977 Order is attached hereto (Attachment B).
Each of Florida Cities, or its related public authority, owns and operates an electric system for the benefit of its citizens and ratepayers. Nine of the Cities generate some or all of the electricity necessary to meet their loads, while the remainder operate distribution systems and purchase their full requirements at wholesale. 1/ The Florida Municipal Utilities 1/ Alachua, with somewhat more than half a megawatt share of
- " (cont'd, p. 3)
Association is a membership organization of municipally owned electric utilities in Florida, established, 'among other reasons, to assist in solving, problems encountered by such electric systems. Zt sought intervention and a hearing below on behalf of its member cities, and on their behalf seeks review of the Commission's action below.
Florida Power & Light Company ("FP&L") holds the operat-ing licenses for St. Lucie Unit No. 1 and Turkey Point Units No.
~ I 3 and No. 4, whi.ch comprise by far the bulk of nuclear generat-ing capacity in Florida. 1/ With the exception of FP&L's St.
Lucie Unit No. 2 presently under construction 2/, no additional nuclear generation is actively being planned for Florida. 3/
(1/ cont'd) Florida Power Corporation's Crystal River Unit No.
3, purchases the remainder of its requirements from Florida Power Corporation under a partial requirements wholesale for resale contract.
1/ Florida Power Corporation put its 825 mw nuclear generating unit into commercial operation in March 1977.
2/ Contemporaneously with their Petition to Intervene and Reauest for Hearing as to FP&L's St. Lucie Unit No. 1 and Turkey Point.
Units No. 3 and No. 4, Plorida Cities sought intervention and a hearing in Florida Power & Li ht Co..(St. Lucie Plant, Unit No. 2),
Docket No. 50-389A. The Atomic Safety and Licensing Board desig-to rule on Florida Cities'etition granted intervention in 'ated Docket No. 50-389A on April 5, 1977. In May 1977, .the NRC issued FP&L a construction license in that docket subject to .any condi-tions found to be appropriate as a result of the antitrust hear-ing ordered. Although FP&L has commenced construction of St.
Lucie Unit No. 2, the Company has also been vigorously contest-ing the Licensing Board's decision and the Appeal Board's affir-mance thereof. The matter is now pending before the full Commission.'/
FP&L filed applications for licenses to construct two
--. (cont'd, p..4)
J
In addition to FP&L's control over the lion's share of operat-ing nuclear capacity and over all nuclear capacity under con-struction 1/, the Company controls bulk transmission facilities in the State; It serves the largest load in the State; it has described itself as "the nation's fastest growing electric utility." 2/ In its September 1977 financial statement (unaudited),
FP&L reported that "[a]fter providing for estimated revenue re-funds, there was a net increase of 18% in operating revenue for the twelve months ended September 30, 1977 over the same period for 1976." (p. 3) . Florida Power & Light Company enjoys a clear and undenied position of market power in peninsular Florida.
Moreover, the Company has used its dominant position d,
in Florida to. enhance and expand its market control to the anti-competitive injury of the smaller publicly owned electric utili-ties with which it competes. The Department of Justice, in its (g3 cont') nuclear units early in 1976. Florid'a Power &'ight Co. (South Dade Plant), Docket No. P-636-A. Flora.da Cities sought and were granted intervention in that docket and antitrust pro-ceedings were initiated. Early in 1977, FP&L announced that intended to postpone the proposed South Dade units and proceed-it
- ings in Docket No. P'-636-A have been. suspended.
1/ Xf the Nuclear Regulatory Commissi.on affirms its Appeal Board's decision in S't. Luc'ie Un'it: No. 2,'ocket No. 50-389A (see p. 3, n.
2, suura), and if the Lrcensing Board after hearing orders the St. Lucie license to be conditioned, PPBL would probably in some way be required to share tive advantages of owning St. Lucie Unit No. 2 with its competitors.
2/ November 14, 1973 Advice Letter'f the Department of Justice concerning FP&L's proposed St. Lucie Unit No. 2.
V
Brief to the Commission filed in t', Lucie Unit: No. 2, Docket No. 50-389A, has succinctly described the situation from which Florida Cities seek relief:
"ln the present case, there is little doubt that suf-
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ficient allegations have been made against FP&L to constitute a situation inconsistent with the antitrust ..
laws that would, be created or maintained by the license activities, if they are proven. FP&L has allegedly denied access to nuclear units to virtually all pub-licly-owned competing electric systems,, generally .re-.
fused to wheel, refused specific wheeling recruests, =
placed unlawful restrictions in wholesale power con-tracts, refused to sell wholesale power on over half a dozen occasions, preconditioned the sale of whole-sale power on anticompetitive terms, subjected compe-titors to a price saueeze, engaged in illegal terri-P torial agreements and otherwise deni'ed competitors access to coordinated operation and development in an
~
attempt to accruire those competing systems. Further-.
more, the Licensing and Appeal Boards had before. them a substantial amount of, documentary evidence which de-.
monstrated that mos't o" the above-noted allegations have a substantial basis in fact and are not frivo-lous. . . ." 1/
Zn large part, the three nuclear units here at issue provide the means whereby FP&L can, without fear of competitive reprisal, engage in the conduct described by the Department of Justice.
FP&L has a virtual monopoly over nuclear facilities.
Zt has been using its dominance over nuclear and other facili-ties to block smaller systems from alternative power supply sources and ma kets. Its refusals to deal and other anticompetitive 1/ Florida Power '& Li ht Co. (St. Lucie Plant, Uni.t No. 2),
Docket No. 50-389A, "Response of the Department of Justice" (November 11, 1977), at pp. 10-11.
conduct threaten the independent existence of at least some smaller systems, The Nuclear Regulatory Commission has continu-ing jurisdiction under Sections 1, 3, 104, 105, 161, 183 and 186 of the Atomic Energy Act, 42 U.S.C. 55 2011, 2013, 2134, 2135, 2201, 2233 and 2236, including the authority to revoke a license ". . . for violation of, or failure to observe any of the terms and provisions of this chapter or of any regulation of the Commission," 42 U.S.C. 52236(a) .
The Appeal Board below held in ALAB-428 that, since the licensing procedures for FP&L's operating. nuclear units have been terminated, the Commission is without jurisdiction to ini i-ate antitrust review of its licensee s activities, citing the Commission's Zone 15, 1977 Memorandum and Order issued in Hous-ton Li htin & Power Comoan, et al. (South Texas Project, Unit Nos. 1 & 2), Docket Nos. 50-498A and, 50-499A. 1/
%bile the facts surrounding the South Texas decision are different from those in the instant case in some important respects, the Commission in both cases made its determinations based upon an interpretation of its jurisdiction under the Atomic Energy Act far narrower than intended by Congress, or as has been held previously, by Commission or Courts. The Commission has erroneously interpreted its authority indeed, its responsibiliti s 1/ The Commission's South Texas dec'sion is presently on appeal before this Court, docketed as Central Power & Li ht Co. v. NRC, Case Nos. 77-1464 and 77-1654.
under the Act and its refusal to even order an evidentiary hear-ing to cons'ider the serious antitrust issues raised by petitioners is abusive of its discretion and an abdication of its antitrust enforcement responsibilities under the Act, contrary to Section 189 of the Atomic Energy Act, 42 U.S.C. 52239, and Section 10 of the Administrative Procedure Act as amended, 5 U.S.C. 55702, 703.
It is clearly within the jurisdiction of the Nuclear Regulatory Commission itself to consider the antitrust implica-tions of any activities being pursued under its licenses. This Court has held so. Cities of Statesville v." AEC, 441 F.2d 962 (D.C.Cir. 1969).
WHEREFORE, for the reasons and grounds stated herein, Florida C'ties respectfully petition this Court for review of Decisions issued August 24, 1977, and October 26, 1977 by the Nuclear Regulatory Commission in Florida Power & Li ht Co. (St.
Lucie Plant, Unit No. 1), Docket No. 50-335A, and (Turkey Point Plant, Units No. 3 & No. 4), Docket, Nos. 50-250A and 50-251A.
Respectfully submitted,
.c.c .MgWY Robert A. Jablon Attorney for Florida Cities Law Offices of:
Spiegel & McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C. 20037 December 16, 1977
ATTAC NT A Bp@)
JUG p UNITED STATES OF A'~~HZ CA NUCLEAR REGULATORY COMMIS S ZON ~ <~'
~og ATOMIC SAFETY AND LICENSING APPEAL BOARD Alan S. Rosenthal, Chairman Richard S. Salzman Jerome E. Sha <<man 3
)
In the Matt.er of )
)
FLORIDA POWER AND LIGHT CO'i~ANY ) Docket No. 50-335A
{St. Lucie Plant, Unit No. l) )
) .
FLORIDA POWER AND LIGHT COMPANY ) Docket Nos. 50-250 (Turkey Point Plant, Units No. 3 & 4) ) ~
)
Alan J. Foth, Washington, D. C, argued the cause
'r.
for the petitioners, Fort Pierce Utils et al., anoella.".ts; with him on the br'zs were Author'y, Messrs. Robert A. Jablon and David Ae Giacaloneg Washington, D. C.
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Messrs. J. A. Bouknicnt, Jr., Washing on, D. C., and John =. Mathews, J I Jacksonville, Flo ida argued
~ p the cause and ziled a brief zor the licensee, Florida Powe .and L'ht: Company, aooellee.
Hr. Ben amin H. Vocle argued the cause for the Nuclear Regulatory Cormiss'on staff; Messrs. Lee Scott Deweer
'nd Michael D. Jones on the briez.
DECISION August 23, 1977 (ALAB-42S)
Oninion of the Board bv Mr. Salzman 'n which Mr. Rosenthal l
joins;.Mr. Shar=man o'ns'n part a".d' ncurs in the resul+:
A number of Flo ida municipal electr:c systems and the Florida Municipal U 'lities Association {F'lorida Cities) p l l
1 appeal from a Licensing Boa d order denying their joint petition or leave to intervene out of time ana for an antitrust hearing respecting three nucl'ear power plants. 1/
The plants, owned by the Flor'da Power and Light Company and operated under Commission license, are Unit No. 1 of FPGL's St. Lucie facility and Units No. 3 and 4 of its Turkey Point ~acility. The denial was based on our ruling in anothex case that "a licensing'oaxd has not been
\
bestowed with jurisdiction to direct, a hearing on antitrust
.matters by a gx'ant of an intervention petition or other-wise. in the absence of. a penaing construction permit or operating license proceeding". pious"on Lichtina and Powe Co. (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582, 592 (1977) . 2/
The Commission has allowed our ruling in MAB-381 to stand (see unpubl'shed Commission order of March 31,'977,.
referred to in CLX-77-13, 5 NRC (June 15, 1977) (slip t
~l LBP-77-.23, 5 NRC 789 (Ap il 5, 1977) . Zn the
'~Me;*Licensing Boara granted Florida Cities'equest for same orde like relief 'n connect'on w'th Unit No. 2 of the St.
Ne affirmed that action in ALBA-420, 6 HRC Luc'acility.
(July 12, 1977) (pet't"'on or Comission rev'ew pending).
2/ Unlike the three operat'ng reac ors unde presen" eon-
'ideration, St. Lucie 2 was the subject of an on-going construction permit proc ed'ng at the time ihe Licensing Board entered its Ap il 5 order. For th's reason th Licensing B ~rd indispu ably had the jurisdict'on to grant an ant~trust hear.ng with respect to that reactor.
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opinion, p. 8)), and we decline Florida Cities'nvitation to reconsidex its correctness. Thus, all that the Florida Cities'ppeal requires us to decide is whether the Licen-sing Board jus ifiably concluded that the ruling governs here. Given the fact that, the operating license proceed ings for the three reactors were long ago concluded, the answer obviously must be in the affirmative. Zn these circumstances we ox'dina ily would have simply af ixmed the Licensing Board summarily. A supervening development, how-,
ever, has prompted us to examine a broader question not pre-
" sented to, or decided by, the Board below.
Not. content with the prosecution of an appeal to the denial of its interven ion petit.'on or want of us'rom Licensinc Board jurisdiction to grant it, Florida Cities moved before the Commission fo- a ."clarification of pro-ceduzes." Zntezpzeting.that motion as seeking, intez alia, a declaratory order xegarding "the most appropriate pro-cedural mechanism for resolution of the Cities'ntitrust allegations respecting the St. Lucie and 'Purvey Point reactors," the Commission determined that the issues xaised by the motion should be first add essed by either us or the 3/ CI,1-77-13 is discusseu in za, up. 9-11.
Director of Nuclear Reactor Regulation. CLX-77-15, 5 NRC g ( June 22, 1 9 7 7 ) . Upon the receipt of that ref ezra 1 and the briefs of the respective parties in the wake of it, we called for and heard oral argument on whether, even though the Licensing Board may lack the authority at this juncture to tr'gger a hearing to explore Plorida Cities'ntitrust grievances I such authority nevertheless resides in the Director of Nuclear Reactor Regulation. 'On a full consideration of the azgumerts put before us we hold that.
that power is lacking. Particularly in light of the Com-mission's own recent analysis oz the s atutozy scheme, we are constrained to conclude that (with certain exceptions not applicable here) once the operating license proceed-ings terminated this agency's antitrust responsibilities relating .to these eactors came to an end. 4/
'+4 Also before us are mot:ons by two of the Flo ida Cit'es,
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Quincy and Day ona Beach, -fox leave to witndraw.
Quincy's motion is opposed bv Florida Powe and Light Company. Insofar as the motions are directed to the proceedings now before us. i.e., respec 'ng St. Luc'e Unit No. 1 and Turkey Point Units 3 and 4, the motions
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aze dismissed as moot; insofar as leave is sought to withdraw =rom proceedings involving two other PP&L
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,facilities, St. Lucie Unit No. 2 and the South Dade plants, these matters axe not-before us and the motions a e therefore denied without, pxejudice to renewal before the appropriate Licensing Board.
~,
The former Atomic Energy Commission licensed the con-struction of all three nuclear power reactors now before us not as commercial facili 'es subject to section 103 but as "research and development" reactors under sect'on 104b of the Atomic Energy Act of 1954. 5/ Construction permits for them were issued before section 105c of the Act (defin'ng Commission antitrust procedure) was amended
(
to its present form in 1970. At the time, these permits were issued, prel'censing ant'trust review. by the Commis-sion was neither reauired nor expected in the case of s etio~ 104b projects. Cities of Stat sville v. AZC, 441 F.2d 962 (D.C. Cir. 1969) . This of course eyplains why none was.undertaken or these'th ee reactors.
Florida Cities seize upon these circumstances as a reason why this Commission ought to consider the antitrust charges they now level against the licensee of the plants.
In their view, if antitmst. rev'ew is refused, the Commis-sion will have 1'censed what are in fact three large commer-cial power plants to operate for 40 years and, Florida 5/ 42 U S ~ C 552133 I 2134 (b) ~
6/ 42 U.S.C. 52135(c).
h ~
Cities stress, the Commission w-'ll have done so without ever having given thought to the resulting anticompetitive ramifications.
Here th's a matte of first impression, Florida could not be brushed aside lightly. One need Cit'es'rguments look no fund.er than Judge Leventhal.'s concurring opinion in Statesville, snore, for an imoressive collection o" I
authorities =or the proposition that (441 F.2d at 9S7):
a statute providing for 1'censing or other regulation is -resumed to pe~it consideration of antitrust principles, with the harnonizing approach jus out 'ned, unless a contrary inteng appears expressly or by necessary impliCation. 7/
Accord: Gul= States Ut'1'ties Co. v. FPC, 411 U.S. 747 759-61 (1973).
But this is not a new matter. The legislative history of section 105c elevant to this point, was previously perused hy us in the "Grandfather Clause" case. 8/ We there noted that the Congress had considered this class 7/ Neither the majority nor the dissenters in Statesville disagreed. See 441 F.2d at 974, and 993-95, And see Kansas City Gas and 5" ect='c- Co., (Wolf C=eek Gener-ating S"ation, Unit No. l), ZLZZ 279' NRC 559I 568 (1975) and cases there cited.
S/ The Tole"o = 'son Co. (Davis-Besse Nuclear Power Station, Unit .l), ~-323, 3 NRC 331 (1976) .
~ ~ ~ 4 s ~ I
reactors -- viz., those authorized to be built as research and development projects before the 1970 antitrust amend-ments but which might late be determined to possess comm r-cial utility when an operating lic nse was sought for them-and elected to exclude them f om antitrust review under section 105c (except in'imited circumstances not present in this case) . 9/
Florida Cities'esponse is that an itrust review 's nevertheless available befoze this Commission under section 186a . of the Act.
10/ That section, per aining to license revocat'ons, provides in pertinent part that Any license may be revoked for any material false statement in the appl'cation or any statement of =ac" re uired under section 182, or because of condit'ons revealed by such application or statement oz fact or any report, record, or insp'ection or other'eans which would warrant the Comwssion to refuse to grant* a license on an original applica-tion * *.
Florida Cities reason that, because the Commission may refuse an operating license on antitrust grounds (at least'here circumstances change following issuance o the con-struction pezmi ), section 186a empowers it to revoke a license previously granted on those grounds.
9/ See 3 NRC at 340-41.
'0/ 42 U.S AC. 52236(a) ~
Even if rrre assume ~az uendo that section 186a means what Florida Cities assert it does, their cause is not advanced. The nuclear power plants in, question were licensed under section 104b. As we have already explained, by Cong essional mandate antitrust considerations were not grounds for refusing operating licenses to such "research and development" facilities. II Flo ida Cities would get over this second hu=dle by having us give a "common sense" reading to sec ion 186a that recruires us to treat these reactors as what thev really are: viable commercial generating facilities that could only be licensed today under section 103. There to be no support for this reading of the section 'ppears in the legislative history of the Atomic Energy Act and petitioners cite none. Nor is the "meaning" which Florida Cities ascribe to section 186a necessarily so "plain" as they suggest. But even accepting everything they say, no construction of section 186 'need be made here. As we explain in Part III, other grounds compel rejection of I
their contentions.
7-
In its own S'outh Texas decision, 11/ the Commission recently cons'dered at length the extent of its authority to hold antitrust hear'ngs. The precise issue in that case involved when an ant'trust proceeding unde secton 105c may be ordered after a construction permit has been issued but before the necessary additional license to commence operations has been granted. The Corrznission did not confine its South Texas opinion to that relatively narrow auestion; instead it chose to address the broad spectrum of NEC antitrust responsibilities. In so doing,
't 4 manifested the judgment in no uncertain tems that the NRC's supervisory an itrust jurisdiction ove a nuclear reactor licensee 'does not extend over the full 40-year term of the operat'ng license but ends at its inception. 12/
'11 Houston Li htin and Power Co. (South Texas Project),
CLI-77-13, 5 iuRC (June 15, 1977) (petition for judicial review pending). This decision was act rende d on appeal z=om ASS-381 (our South Texas ruiingr sutra) but in an independent proceeding on a sia== recominenda-tion that an antitrust hearing be convened in that case in the exercise of the Commission s discretion.
+12 Except perhaps as necessary to enforce the, terms o a license o to revoke one fraudulently obtained, or in circumstances where a plant is sold oz so significantly :
modified as to reaui e a new license. 'ee CLI-77-13, suo a, 5 NRC at (slip opinion at op. 25-26) .
10 The Commission said that. Congress had no intention of giv-'na this Commission author'ty which could put utilities under a continuing risk of antitrust review.
Had Congress agreed w'th tne proposition that this Commission should have broad anti rust policing powers independent of licensing, tha erne ged = om these discussions the'tatute would have looked quite different. Little attention would have been paid to defining a two-step review process. The terminology of all participants in the drafting process would not have been ocused so directly on "pre-licensing" review. Zaa, iz a broad, ongoing police power in the antitrust area had been assumed, the language in 105(a) authorizing the Commission to act with respect to licenses already issued, in lignt of the ant't"ust find- .,
ings oz courts would have been, fluous, ce tainly redundant..
if not supe~-..:.,":.',.;,'.,-.~.',"-,
Co<.seauentlv,'";iie Chat the Coo.~ission's antitrust authc iiv
"=..-".".'ind cefinec not bv "he broad powers contained
's in Section 186, but bv the more limi ed schemes-set forth 'n Sec 'on 105.
5 NRC at, (footnote omitted, emphasis supplied) (slip opinion at 24)-
. Any lingering doubt about. the Commission's view of the limited role Section 186 plays in antitrust matters is put to rest by its further pronouncement in that same case that, on the "question whether Section 186 expands the antitrust hearing settings defined in Section 105, * *
- we find that the generality of Section 186 should be treated as subord'nate to the specific, limited regime adopted by Congress as recently as the 1970 amendments to the Act."
Ed. at 13. ~. ~
r-To put the whole matte another way, arguments to thi's Board about the most "common sensical" way to inter-pret the antitrust provisions of the Atomic .Energy Act in:
general, or section 186 in particular, fall wide of the mark. fthether we agree with those arguments or not, they are made in the wrong forum. Unless and until the Commis-sion elects to modify its South Tevas rulings, or is instructed to do so by Congress or +he courts, this Board is of cou se cons =ained to apply them.
The result for this case is thus ineluctable. Pre-
'licensing antitrust review of these reactors was proser'bed 4
by Cong ess and, even we e that not true, post-lxcensxng review is foreclosed by the Commission's Sou h ezas decision. The Director o Nuclear Reactor Regulation is not an island of independent authority; h's office is a piece of the Commission, "a part of the main". Therefore, the-Florida Cities .need'not'. send to the Director to learn for whom antitrust jurisdiction tolls when an ope=
ating license issues; it tolls for him.
12 For the foregoing reasons, we (1) affirm that portion of the Licensing Board's April 5, 1977 order from which the Florida Cities appeal and (2) declare that the Director of Nuclear Reactor Regulat'on has no authority to initiate an antitrust review in connection with any of these three power reactors on the basis of the petition now before us.
Et is so ORDERED.
FOR TE" ATOMIC SAFETY AND LZCZifSING APPEAL BOARD i~rgaret E. Du Flo Secretary to the Appeal Board
[The concurring opinion of Mr. Sharfman follows.]
13 Concu r'n Oainion of Nr. Sharfman:
I join in the opinion of my colleagues except with respect to one point. They vould affirm the Licensing .
Board's d'smissal of the petition insofar as it relates to the three fully lic nsed reactors on the basis of their holding in south Texas (ALM-381, ~su xaI thata licensing board is barred by 10 C.P.R. 52e717(a) from granting a late petition fo= an antitrust hearing after 'all environ-mental and safety proceeVings with respect to issuance of the construction permit have concluded. I disagreed vith that. holding, for reasons vhich I stated'at length in my concurring opin'on in that case. 1/ As z.s true with a denial of certio ari in the Supreme Court, the Commission's election not to ev'ev one of our decisions does not nec-essarily constitute an enVorsement, of it. In this partic-ular instance, the'.Commission went out of its way to make that clear. In.its own decision on the other aspect of South Texas, it said: "In declining to review ALAB-381, of course, we are not to be taken as having agreed vith everything that the Appeal Board had said in that opini'on." "
The Commission apparently vas content simply to let, the 1/ 5 MRC 595.
2/ CLX-77-13, 5 NRC, (slip opinion, p. 8) {June 15, 1977) .
~ s
g 14 result in BZAB-381, a result in which I fully concurred,
. stand. therefore persist 'n my disagreement with the majority of this Board as to its construction of 10 C.F.R.
- 62. 717 (a) .
E Because, in my view', 52.717(a) does not provide any basis for the denial of the petition, it is necessary, as I stated in South Texas, to see whether the grant of an antitrust hear'ng after all proceedings on licensing have concluded would be consistent with the legislative intent underlying Section 105c of the Atomic Energy Act. 3/ The Commission has, however, already given us its views in South Texas on the intent of Congress with respect to our antitrust jurisd'tion over reac ors as to which licenses have already been crranted. As the majority opinion shows, those views leave not the slightest room fo- doubt as to what our decision in this case must be.
3/ 5 NRC at 598-99.
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L.,~
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1
TTACP~NT B UNITED STATES OF At<ERICA NUCLEAR REGULATORY COf'21ISS ION COMf IISS IONERS:
Joseph M. Hendrie, Chairman , ~cgt
+
Yictor Gilinsky gC qgO lU; Richard T. Kennedy c(' '
Peter A. Bradford 0 ~u" ~On r
In the Hatter of FLORIDA POliER 5 LIGHT COMPANY ) Docket Nos. 50-335A
) 50-250A
. (St. Lucie Nuclear Power P1ant, Unit 1) 50-251A (Turkey Point Plant, Units 3 and 4)
OROER I
Co The Commission has decided not/review ALAB-428. >le note, however, I
the request of the petitioners that if the Commission fails to grant the Petition, a reference of their allegations be made to the Attorney General.
In a recent decision, In the Matter of Houston Li htino 5 Power
)
~Com an (South Texas Project, Unit Ros. I S 2), we discussed our a.nti-
'3 C, trust responsibilities, as set iorth in Section 105 of the Atomic Energy Act, as amende'd, 42 U.S.C. 2135. There we stated that "antitrust allega-tions might be raised outside the license review context. Subsequent allegations that licenses are being used in such a way as to violate the antitrust laws are to be referred to the Department of Justice for investigation and possible enforcement action ...." The Florida Cities petition contains such allegations.
The staff is therefore directed promptly to refer to the Attorney General the allegations of the Florida Cities, as well as "any Irelated]
information it may have I if any] with respect to any utilization of special nuclear materia1 or atomic energy which appears to violate or to tend toward the violation" of any of the antitrust laws. 42 U.S.C.
2135(b).
It is so ORDERED.
By the Commission, SAMUEL J CHILK Secretary of t i e Commi ss on Dated at klashington, D.C.
this 25th day of October, 1 977.
hP e ~ ih ~ ~ tg - ~ ~
CERTIFICATE OF SERVICE I hereby certify that I have this day caused the foregoing Petition for Review to be served, by first class mail, upon the following persons:
Ivan W. Smith, Esquire, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John M. Frysiak, Esquire, Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 2055'5 Robert M. Lazo, Esquire, Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen F. Eilperin, Solicitor U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington D.C. 20555 Chairman Hendrie Office of the Commission U.S. Nuclear Regulatory Commission Washington,'.C. 20555 Commissioner Gilinsky Office of the Commission U.S. Nuclear Regulatory 'Commission Washington, D.C. 20555 Commissioner Kennedy Office of. the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555
Commissioner Bradford Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jerome Saltzman, Chief Antitrust & indemnity Group U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lee Scott Dewey, Esquire Counsel for the Staff 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 Jerome E. Sharfman, Esguire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear, Regulatory Commission Washington, b.C. 20555 Richard S. Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robert H. Culp, Esquire Linda L. Hodge, Esquire J. A. Bouknight,, Jr., Esquire Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C. 20036 Tracy Danese, Esquire Vice President for Public Affairs Florida Power & Light Company P.O. Box 013100 Miami, Florida 33101 John E. Mathews, Jr., Esquire Mathews, Osborne, Ehrlich, McNatt, Goyelman & Cobb 1500 American Heritgage Life'uilding Jacksonville, Florida 32202 Dated at Washington, D.C., this 16th day-of December 1977.
Robert A. 'Jablon; vr