ML18227D549
| ML18227D549 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point, Midland  |
| Issue date: | 07/11/1977 |
| From: | Bouknight J, Mathews J Florida Power & Light Co, Lowenstein, Newman, Reis & Axelrad, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| 50-250A, 50-251A, 50-335A | |
| Download: ML18227D549 (25) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safet and Licensin A eal Board Florida Power 6 Light Company ) Docket No. 50-335A (St. Lucie Plant, Unit No. 1) )
)
Florida Power 6 Light Company ) Docket No. 50-250A
.(Turkey'oint Plant, Unit Nos. ) 50-20DA 3 and 4)
BRIEF OF FLORXDA POWER & LIGHT COMPANY IN OPPOSITION TO APPEAL OF FLORXDA CITIES Florida Power 6 Light Company ("FPL," or the "Licensee" )
1/
opposes the appeal taken by the Cities -< from the April 5, 1977, Memorandum and Order of the Atomic Safety and Licensing Board, which dismissed the Cities' petition and request for initiation of antitrust proceedings to modify or revoke operating licenses that FPL holds for Turkey Point Units No. 3 and 4 and St. Lucie Unit No. 1 (the "Operating Plants" ).
Statement of the Case On March 25, 1966, FPL applied for licenses to construct and
'.operate. Units 3 and 4 at the Turkey Point plant. 2/
The application
'4 I
-~"Cities" consist of the Fort Pierce Utility Authority of the City of Fort Pierce, the Gainesville-Alachua County Regional Elec-tric 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, Quincy, St. Cloud and Tallahassee, Florida and the Florida Municipal Utilities Association.
-~ Docket Nos. 50-250 and 50-251.
requested licenses pursuant to Section 104b of the Act. 3/ On April 29, 1967, the Commission -< 4/ issued construction permits for the Turkey Point facilities. 5/
On July 19, 1972, the Commission issued an operating license for Turkey Point Unit No. 3 6/ and, thereafter, on April 10, 1973, an operating license was issued for Turkey Point Unit No. 4. 7/ All such licenses were issued pursuant to Section 104b of the Act, and no antitrust review pursuant to Section 105c was requested by any person or conducted by the Com-mission in connection with any of the licenses described above.
The application for licenses for Unit No. 1 of the St. Lucie plant, submitted on January 29, 1969, also requested licenses pursuant to Section 104b. 8/ A construction permit was issued by the Commission on July 1, 1970, 9/ followed by issuance of an 3/ The Atomic Energy Act of 1954, as amended, 42 U.S.C. 2011
~et se . (the "Act") .
4/ The Nuclear Regulatory Commission succeeded to the licensing responsibilities of the Atomic Energy Commission pursuant to 42 U.S.C. 5841, enacted October 11, 1974. Throughout this brief the term "Commission" refers without differentiation to the Nuclear Regulatory Commission and its predecessor, the Atomic Energy Commission.
5/ 3 AEC 195.,
6/ Operating License No. DPR-31, Docket No. 50-250.
7/ Operating License No. DPR-41, Docket No. 50-251.
8/ Docket No. 50-335.
-/
9/ 4 AEC 373.
license on March 1, 1976. Both such licenses were 10'perating issued pursuant to Section 104b, and no antitrust review pursuant to Section 105c was requested by any person or conducted by the Commission in, connection with. either license.
At no stage of the licensing or operation of any of these three plants was any request for a hearing on antitrust. matters received from any member of the publi'c until the Cities'etition was submitted on August 6, 1976.
The Cities'etition of August 6, 1976, requests "Commission review of the operating licenses issued to [FPL]," and requests that a hearing be held to determine "whether and under what terms and conditions the operating licenses for [the Operating Plants] should lip be revoked or modi f ed. " All of the contentions in the petition i
relate to the antitrust laws. The petition cites Sections 104b, 183, 185, 186 and 187 of the Act as jurisdictional bases for granting of the requested relief. The same petition also 12(
requests late intervention and an antitrust hearing with respect to FPL's St. Lucie Unit No. 2, NRC Docket No. 50-389A. That matter is separately pending before the Appeal Board.
wl g - c s ""
J / h 10 Operating L'icense No. DPR-67, Docket No. 50-335.
"Joint Petition of Florida Cities for Leave to Intervene out of Time; Petition to Intervene; and Request for Hearing,"
dated August 6, 1976, pp. 2-3.
"~ Id. p. 2.
On August 13, 1976, an Atomic Safety and Licensing Board was established to "Rule on Petitions" in the present dockets and in Docket No. 50-389A. 13/
FPL opposed the petition as it, concerns the Operating Plants on two grounds. FPL argued first that the Atomic Safety and Licensing Board lacked jurisdiction to grant the petition under the NRC's regulations, and, second, that, regardless of the dis-:
position of the procedural question, there is no statutory basis for the Commission to conduct. the requested antitrust review of the Operating Plants'icenses or to revoke or modify them on the antitrust grounds alleged by the Cities. 14/
The NRC Staff opposed the petition as to the Operating Plants on the procedural ground of want of jurisdiction in the Licensing Board. On the statutory issues, the Staff argued that the Cities'etition could not be considered under Section 104b of the Act, but did not take a position on whether the Commission has juris-diction under one or more of Sections 183, 185, 186 or 187 of the Act to grant the relief requested by the Cities. 15/
Florida Power a Light Company (Docket Nos. 50-335A, 50-389AI 50-250A and 50-251A), Establishment of Atomic Safety and Licensing Board to Rule on Petitions, August. 13, 1976.
'"Response of Florida Power G Light- Company in Opposition Peti7tion'f Fl'orida'Citie's 'for Leave'.to 'Intervene "Out "..
to: =Joint of Time; Petition to Intervene; and Request for Hearing," filed on September 1, 1976, p. 10, ~etee
/ "Answer of NRC Staff to the Petition to Intervene Out of Time and Request for Hearing by Certain Cities," filed on September 17, 1976.
The Cities requested and were granted leave of the Licensing Board to file a reply to FPL's and the Staff's pleadings, and a "Reply of Florida Cities to Responses of Florida Power and Light
" was submitted Company and Nuclear Regulatory Commission Staff on October 15, 1976..
On April 5, 1977, the Licensing Board issued a Memorandum and Order dismissing the Cities'etition as to the Operating Plants on the sole ground that it lacked jurisdiction to grant the petition under the Commission's regulations, citing Houston Li htin 6 Power Com an (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582 (1977).
16/ The Licensing Board did not reach the issue of the Commission's statutory authority to grant the requested relief. It is this decision of the Licensing Board which is under review in the present proceedings.
While the present proceedings have progressed before the Licensing and Appeal Boards, the Cities have taken two related actions in other contexts within the NRC.
By letter dated October 29, 1976, the Cities "lodged" their petition of August 6, 1976 with the Director of Nuclear Reactor Regulation (the "Director" ), referring in their letter to 10 CFR 52.206. On April 18, 1977, following the Licensing Board's decision,- the Cities wrote once again to. the Director, this, time
' A ~ 2 requesting, pursuant to 10 CFR 52.206, that an order be issued requiring FPL to show cause why the licenses for the Operating Plants should not "be revoked, amended or modified" on the anti-16/ Memorandum and Order of April 5, p. 4.
trust grounds stated in the Cities 'ugust 6, 1976,. petition. The Director issued, on May 16, 1977, a notice of receipt of the Cities'equest, and the notice was published in the Federal on Nay 26, 1977. No further action has been taken by 17'eceister Director on the Cities'equest as of this date. 18'he Second, on March 29, 1977; the Cities filed a'"Motion for .
r Commission Clarification of Procedures," which was addressed to the Commission. Essentially, the Motion requested that the Com-mission designate, by a ruling in the nature of a declaratory order, the appropriate procedural context for consideration of the
'Cities'equest for initiation of antitrust proceedings with respect to the Operating Plants, and suggested that the Commission itself might rule directly on the Cities'ugust 6, 1976, petition. On June 23, 1977, the Commission issued a Memorandum and Order denying the Cities'otion as not properly before the Commission. The Commission recognized that the Cities'.Motion raised the legal question of whether the Commission has statutory authority to modify the licenses for the Operating Plants; acknowledged that it could address these legal issues on its own motion; but, noting A
K r
'17' 27071.
42 Fed. Reg.
18/ On July 5, 1977, FPL wrote to the Director suggesting that the Cities'equest for issuance of an order to show cause should be denied because of an absence of statutory authority for granting of the relief requested. That letter was served on this panel and on all parties to the present proceedings.
the pendency of the present appeal and the availability of proce-'ures provided in 10 CFR 52.206, concluded that the legal issues should "be first addressed by the Appeal Board or the fDirector];
after an opportunity for briefing." 19/
On April 29, 1977, the Cities filed a "Notice of Appeal and Appellate Brief" appealing to the Appeal Board the Licensing Board's Memorandum and'Order'f April 5, 1977, insofar .as it dis-missed the Cities'etition with respect to the Operating Plants.
On May 5, 1977, the Chairman of the Appeal Board Panel issued an Order deferring further proceedings on the Cities'ppeal pending the Commission's disposition of certain matters then pending before it in Houston Li htin & Power Com an (South Texas Project, Units 1 and 2), Docket Nos. 50-498A and 50-499A, on the ground that "Chere is a reasonable possibility that. the Commission's disposition i
of the South Texas matter will also resolve the issues which Florida Cities'ending appeal would have us'ecide." 20/
19/ Florida Power 6 Li ht Com an (St. Lucie Plant, Unit Nos. 1 and 2; Turkey Point Plant, Unit Nos. 3 and 4), Docket Nos.
50-335A,'0-389A, 50-250A and 50-'251A, Commission Memorandum and Order, CLI , NRC , (June 23, 1977).
Pe'r'haps .another. consideration which weighed against the.,
Commission's addressing the merits of 'the legal i;ssues'as 'the limited participation of Chairman Rowden. Id., footnote on p. 3.
Without the participation of Chairman Rowden, the Commission would have lacked a quorum of three members.
20/ Appeal Board Order of May 5, 1977, p. 2.
On June 16, 1977, this Appeal Board issued an Order noting that the Commission's decision in South Texas issued on June 15, 1977, affording Cities the opportunity to file a supplemental brief confined to consideration of the Commission's South Texas decision, and fixing a time for filing of briefs in support or opposition to the appeal. These times were extended by Order of
'une 21, 1977, and Cities submitted their.'upplemental brief on June 29, 1977.
FPL now submits this brief in opposition to the Cities'ppeal within the time specified in the June 21, 1977, Order.
ARGUMENT I .
The Licensing Board Correctly Dismissed the Cities Petition for Lack of Jurisdiction The Licensing Board held that it lacked procedural jurisdiction under the Commission's xegulations to grant the Cities',petition for initiation of antitrust proceedings concerning the Operating~
Plants. This result is, as the Licensing;Board properly found,.
I required by ALAS-381, ~su ra, and the Licensing Board's decision in this regard should, be affirmed on the basis of ALAB-381.
The issue in ALAB-381 was characterized by the Appeal Board as follows:
"[T]he inquiry comes down to whether (1) licensing boards have been given by Commission regulation the power to reopen a concluded construction permit proceeding for the purpose of commencing a hearing to determine antitxust conditions should be imposed upon if the permit; and (2) if not, whether a board may ordex such a hearing in the absence of a pending construction permit or operating licensing proceeding." 5 NRC at 589-590.
The Appeal Board answered both questions in the negative and held that: "As no one appears to dispute, the licensing boards have no independent authority to initiate any form of adjudicatory proceeding. Nhat is required is the prior issuance, by some other component of the Commission, of one of the five types of orders or notices" specifi.ed v
int'0 CFR 2'. 700 ..'.." *'(Id."' at; '591'-592) .' """ "
In an order issued on March 31, 1977, the Commission expressly stated that it had determined not to review ALAB-381.
As the Commission subsequently noted, this, of course, does not mean that it agreed with everything stated in that opinion. Houston Li htin a Power Co. et al. (South Texas Project, Unit Sos. l~a2, CLZ-77- , NRC , Slap Op. p. 8 (June 15, 1977). Nevertheless the determination not to review leaves ALAB-381 the most authoritative precedent within the Commission with respect, to the issues it decided.
No construction permit or operating license proceeding is, or was at the time the petition was filed, pending with respect to FPL's Operating Plants; and no order specified in 10 CPR 2.700 has been issued by any component of the Commission.
Therefore, the Licensing Board was bound to dismiss the Cities'etition as to the Operating Plants.
II The'Question of the Commission's Statutory Authority. to Grant the Relief Requested by Cities is Ripe for Decision Although the Licensing Board disposed of the petition as to the Operating Plants on the narrow procedural ground discussed in the preceding section, the basic question whether the Commission has statutory authority to grant the relief requested by the Cities is ripe for decision by this tribunal. The statutory question has been thoroughly briefed by the Cities, both to the Licensing Board and in their briefs, particularly of June 29, to this Appeal Board. Moreover, the Commission, by directing that this legal issued first be addressed by the Appeal Board or the Director of Nuclear. Reactor Regulation, clearly contemplated that the issue 22/
could be resolved in these pending proceedings.
The alternative to this tribunal's addressing the issue in the present, case is the conduct of further proceedings before the Director of Nuclear Reactor Regulation on the Cities'ending request 22/ Commission Memorandum and Order of June 22, 1977, pp. 3-4.
10
for issuance of an order to show cause. In light of what FPL believes to be the clear guidance of the Commission's South Texas decision, nothing would appear to be gained by further prolonging NRC proceedings involving this same legal question. Accordingly, FPL urges that the Appeal Board address and,decide in these proceedings the question of whether the Commission has statutory authority to grant the relief requested by the Cities.
III The Commission Lacks Statutory Authority to Modify or Revoke the Operating Plants'icenses on Antitrust Grounds This case does not involve a request that the Commission act, pursuant to Section 105a of the Act, on the basis of a court finding of antitrust violation, nor does it concern the enforcement of any existing antitru'st license conditions. The claim that 0he Commission has authority to revoke or modify the Operating Plants'icensees rests upon two building blocks: {i) that the Commission
.has continuing authority to police the activities of its licensees
.;::-..,:':, with., regard,.t'o,the-,,antitrust';.laws,'an'd.*,:{ii).-,that; such.authority;extends.,
to licenses issued under Section 104b of the Act. If either proposition is rejected, the Cities argument must fail. FPL submits that. both elements of the Cities'rgument must be rejected.
11
A. Th ommission Lacks C ti A th 't to Police the Activities of its Licensees with re ard to the Antitrust Laws.
Zn Houston Li htin a Power Corneas, et al. (South Texas Project, Unit Nos. 1 6 2) CLI , NRC (June 15, 1977),
the Commission for the first. time considered the reach of its antitrust jurisdiction and concluded that such jurisdiction is specifically defined and limited by the Act:
"Some of the parties'rguments would assign us a broad and ongoing antitrust enforcement role; they envision that we would have a continuing policing responsibility over the activities of licensees throughout the lives of operating licenses'. As we shall show, we believe that the Congress envisioned a narrowe'r role for this agency, with the responsibility for initiating antitrust review focused at the two-stop licensing process." (Slip Op., at 9).
And:
"Xn summary then, we conclude that Congress had no intention of giving this Commission authority which could put utilities under a continuing risk of antitrust review.
Had Congress agreed with the proposition that this Commission should have broad antitrust policing powers independent of licensing, the statute that emerged [from the hearings and debate before and in Congress] would have looked quite different."
(Xd., p. 24). 23/
The South Texas case involved efforts to amend, construction
'permits on-santitrus't grounds .in*the- interim,', betweeno'issuance- of s
23/ The Commission's decision contains and is grounded upon a it developed through Congressional thorough analysis of the Act as action in 1946, 1954 and 1970, including a review of the legislative history of each enactment. Slip Op., pp. 9-24.
12
the construction permit and formal docketing of an application for operating licenses. It was unchallenged there that Section 105c(2) of the Act authorizes the Commission to conduct a further antitrust review at the operating license stage upon a proper finding that such further review is "advisable on the ground that significant changes in the licensee's activities or proposed activities have occurred subsequent to the 24/
review ... in connection with the construction permit...."
Accordingly, the Commission d,id not have before it and did not decide "whether antitrust review'ay be initiated....where
'significant changes'ccur after an operating license is 3.ssued ~ "
25/
Nonetheless, the basic reasoning of the South Texas decision foretells the result of such a case, when and if it is presented. The Commission reasoned that its antitrust responsibilities are defined by Section 105 of the Act:
"Ne find the specificity and completeness of Section 105 striking. The section is comprehensive; on which it allegations addresses each occasion of anticompetitive behavior in the commercial nuclear power industry may be raised, and provides a procedure to be followed in each instance." .
(Id., p. 14) .
Section 105c(2) of the Act.
25/
South Texas, ~su ra, Slap Op., p. 26.
13
Moreover, it found that "the Commission's antitrust authority is defined not by the broad powers contained in Section 186, but
" (Zd., p. 24) by the more limited scheme set forth in Section 105. .
Thus, it is beyond doubt that any authority to conduct antitrust proceedings after an operating license is issued must be founded upon Section 105, not upon some general provision of the Act. 26/ Nithin Section 105, such authority appears to be conveyed only by Section 105a, which permits the Commission to act only after an antitrust violation has been found by a court.
Section 105c provides. for antitrust review at the time of receiving an application for a construction permit and for the possibility of a further, limited review at the operating license stage in the event of "significant changes" as specified in Section 105c(2).
Any review based upon changes in circumstances after the construction permit stage is thus grounded in Section 105c.
Xt is difficult to conceive of a theory - other than one which attacks the licensing antitrust review(s) on the ground of fraud, mistake, undiscovered evidence or something similar which allows Section 105c to be construed to authorize a post-operating license antitrust review. Xt is impossible logically to devise a rationale for conducting a post-operating license anti. trust. review
-where. the 'licenses are not even'.".subj'ect,to Section,105c..-'.
The Commission's reasoning with respect to Section 186 applies with equal force to Sections 183, 185 and 187, on which Cities rely.
14
B, Th is No Basis for Conduct a Post-Operating License Antitrust Review with respect to Unconditioned Licenses Issued Under Section 104b As has been shown, the first element of the Cities'rgument depends upon the extremely dubious proposition that the Act permits some kind of post-operating license antitrust review in some circumstances. The second element of the argument is that this continuing policing authority is extendable to the Operating Plants'icenses, which were issued under Section 104b of the Act without antitrust review or conditions.
It is clear beyond any possible dispute that the antitrust review provisions of Section 105c do not apply to these licenses which were issued under Section 104b. The Commission so held prior to the 1970 amendments to the Act and was sustained by the. Courts. Cities of States-ville v. AEC, 441 F.2d 962 (D.C. Cir. 1969) . Moreover, Congress, acting in 1970 with the Statesville decision before it, deliberately decided not to apply the antitrust review provisions of Section 105c to operating license proceedings where the construction permit had been issued under 27/
Section 104b.
Nor is there any other basis in Section 105 for conducting any kind of antitrust review with respect to the Operating Plants. Section 105a authorizes Commission action only where an antitrust violation has been
......fou'nd-. by a:.court,",'and Section 105b involves. reporting'of-,information .
regarding antitrust violation to the Attorney General.
27/ See Section 102b of the Act. Also see H.R. Rep. No. 91-1470 S. Rep. No. 92-1247), 91st Cong. 2nd Sess. 26-28. Congress (identical to elected to apply the antitrust. review provisions of Section 105c to certain operating license proceedings where the construction permit had included been issued under Section 104b, but the present facilities were not in this group. See Section 105c(8) of the Act.
15
To look beyond Section 105 for such authority would conflict with the Commission's holding in South Texas.
However, the Cities nonetheless argue that the provision of Section 104b that, " 'the Commission shall impose the minimum amount of such regulations and terms of license as will permit the Commission to fulfill its obligations under this chapter'"
somehow authorizes a post-operating license antitrust review for plants licensed under Section 104b. 28/ ~
Aside from begging the question of where, other than in Section 105c, the obligation to conduct an antitrust review can be found "under this chapter,"
this argument fails for two reasons. First, if Section 104b had been read by the court to require some kind of antitrust review, the Statesville case would have been decided differently. Second, it is clear that Congress deliberately decided, in 1970 after the Statesville decision, not to subject 104b plants to antitrust review.
The only argument left in favor of the Cities'osition is the argument that the Commission has a general responsibility to enforce the antitrust laws with respect to its licensees and that such responsibility transcends the specific provisions of Section 105.
Although this matter will be touched on briefly in the following section, it is clear that such an argument cannot be maintained
.in -the.'wake, of. South.. Texas"..
Nhat then is the NRC's antitrust responsibility with respect to licenses previously issued under Section 104b?
28/
Supplemental Brief of Florida Cities, dated June 29, 1977, p.8.
The South Texas decision is eminently clear:
"With respect to 104(b) licenses, the Commission could only suspend, revoke, or take other action 'with respect to a license as necessary after a court it deemed finding of monopoly." (Slip Op., p. 17, footnote 10).
The quoted language speaks to the holding in the Statesville case.
However, the point is underscored by the deliberate action of Congr'ess in deciding, after the Statesville decision was issued, not to apply Section 105c to Section 104b licenses.
C. The Cities Effort to Distin uish South Texas In their supplemental brief the Cities candidly state that in significant respects they simply disagree with the 29/
Commission's South Texas decision. However, they make an effort to distinguish it from the present case by arguing that the "equitable principles" which underlie the South Texas decision do not apply here, since there has been no antitrust review of the 30/
Operating Plants under Section 105c.
The essence of the Cities'istinction is that, since an antitrust review under Section 105c is so clearly unobtainable &
here at-any time,'here is no 'conflict, between Sections 105 and Supplemental Brief of Florida Cities, dated June 29, 1977,
- p. 1.
30/ Id.g po 7 ~
17
186 in this case and, therefore, Section 186 should be applied here and an antitrust review initiated.
This is not a distinction of, but an attack upon, the South Texas decision.
At the outset it should be clear that the Cities intend to invoke the portion of Section 186 which permits revocation of a license for violation of the Act-. 31~ The Cities cannot argue, as did the NRC Staff in South Texas, that Section 186 should be invoked to condition a license on grounds inconsistency with the antitrust laws determined pursuant to the standards of Section 105c which would have justified its revocation or conditioning initially.
The Operating Plants'icenses could. not have been conditioned initially by virtue of Section 105c, because, as has been shown, Congress chose not. to apply Section 105c to them.
Thus the Cities'distinction" stands on the same ground which underlies their pre-South Texas arguments, that the Act vests the Commission with a broad, general responsibility to enforce the antitrust laws as regards its licensees. This argument was made by the Cities to the Commission in an amicus curiae brief filed in the South Texas proceeding and was explicitly rejected by the 31/
Xd., p.'6, footnote 2 (text of which appears on p. 7).
18
Commission.
32/ Moreover, it conflicts with the entire thrust, of the South Texas holding that Section 105 comprehensively defines the NRC's antitrust responsibility and authority.
It is of the ilk of the arguments previously made by Florida Cities to the Commission which "avoid or strain the language of Section 106.u South Texas, ~su ra, p. 14,.
Finally, the Cities'iew that where Section 105c does not apply it is perfectly acceptable to seek out some other basis for conducting an antitrust zeview demonstrates an unwillingness to accept the central teaching of South Texas, which is that the NRC's antitrust function is a limited one.
6 '~
32/ South Texas, ~su 6
ra, pp. 15-16, footnote S. Although persuasive in the context of the Atomic Energy Act, significant to note, that not even one of the cases cited, it by the Cities there supports the pzoposition that an agency with general public interest responsibilities is empowered is to commence antitrust proceedings against the holder of a previously issued license. That proposition is different, in quality from the concept that certain agencies have a general responsibility to consider antitzust policies in performing other, e.g., licensing, functions. See Cit. of Lafa ette Louisiana v.6 SEC,-454 F. 2d 94'1,(D.C. Cir. 1971 , affz.rmed 61:~,.16
---;* sub. nom,. Gulf States- Utilities Compan .v;. Federal, Power,.-.
Commz.ssion",: 411 U;S. 747 1973'-: also'ited at p. 30 of-the'"
Cities'pril 29 brief); Cit of Pittsbur h v. FPC, 237 F.2d 741 1975), af firmed, 426 U. S. 271 (1976); Federal Maritime Commission v. Svenska Amerika Linien, 390 U.S. 238 1968);
Mansfield Journal Co. v. FCC, 180 F. 2d 28 (D.C. Cir. 1950);
Denver and Rxo Gzande Western Railroad Co., v. United States, 387 U.S. 485 (1967).
19
See, especially, South Texas, ~su ra, pp. 21-23. There is no reason to expect to find in the Act a remedy for antitrus't problems which arise after issuance of an operating license. As the Commission said:
"But in the post-licensing posture, this Commission's capacity to act, is not unique. There is no longer any question of 'ockI;ing] the barn door before the horse is stolen.... 'tatement of Senator Pastore, III Legislative History of the Atomic Energy Act of 1954, at 3107 (1955).
When nuclear power plants have been constructed and are operating, anticompetitive behavior can be remedied only by modifying or conditioning 'existing behavior. Whatever form of remedy the agency can offer is not appreciably different from that which may be fashioned by the traditional antitrust forums. In this posture, we recognize, as did the Congress, that there are more suitable forums for antitrust enforcement."
Id., at 22-23.
Conclusion Wherefore, FPL respectfully requests that the Appeal Board af firm the Licensing Board' dismissal of the Cities 'etition on both of the grounds stated above.
Respectfully Submitted,
> ..., .,g/Wn J.A. Boukniggp; Jr'. / /
Lowens tein:5Jewman / Re is 6 Axelrad 1025 Connecticut Avenue, N.W..
Washington., D.C. 20036 s
John E. Mathews, Jr.
Mathews, Osborne, Ehrlich, McNatt Gobelman 6 Cobb 1500 American Heritage Life Bldg.
11 East Forsyth Street Jacksonville, Florida 32202 Counsel for Florida Power & Light Company 20
UNITED STATES OF Aj!AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Appeal Board In'he Matter of )
)
Florida Power 6 Light Company ) Docket No. 50-335A-(St. Lucie Plant, Unit No. 1) )
)
Florida Power 6 Light Company ) Docket No. 50-250A (Turkey Point Plant, Unit Nos. ,) 50-251A 3 and 4) )
CERTIFICATE OF SERVICE I HEREBY CERTIFY that copies of the following:
BRIEF OF FLORIDA POWER 6'IGHT COMPANY IN OPPOSITION TO APPEAL OF FLORIDA CITIES 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 July ll, 1977.
By: r/
.A. Bouknight,
~
~
Jr.~
h~owenstein,
~
Newman, Reis & Axelrad
~
1025 Connecticut Avenue, N.W.
Washy;ngton, D.C. 20036
'-'-"Counsel for Flori.d'a'Power': 6"Light;"".
Company
l Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board Panel t
Lee Scott. Dewey, Esquire Counsel for the Staff U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 C.R. Stephens, Supervisor (20)
Jerome E. Sharfman, Esquire Docketing and Service Station Atomic Safety and Licensing Office of the Secretary of the Appeal Board Panel Commis sion U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Richard S. Salzman, Esquire Secretary Atomic Safety and Licensing U.S. Nuclear Regulatory Appeal Board Panel Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 William C. Wise, Esquire Suite 200 Robert M. Lazo, Esquire 1019 19th Street, N.W.
Atomic Safety and Licensing Washington, D.C. 20036 Board Panel U.S. Nuclear Regulatory William H. Chandler, Esquire Commission Chandler, O'Neal, Avera, Washington, D.C. 20555 Gray, Lang 6 Stripling P.O. Drawer 0 John M. Frysiak, Esquire Gainesville, Florida 32602 Atomic Safety and Licensing 33oard Panel Jerome Saltzman U.S. Nuclear Regulatory Chief, Antitrust and indemnity Commission Group Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Ivan W. Smith, Esquire Nuclear Reactor Regulation Atomic Safety and Licensing Washington, D.C. 20555 Board Panel U.S. Nuclear Regulatory Commis sion Washington, D.C. 20555 Robert A. Jablon, Esquire 2600 Virginia Avenue, N.W.
Washington, D'.C. 20037 David A. Leckie, Esquire Antitrust Division Department of Justice P.O. Box 7513
'~ Washington, D.C. 20530