ML18228A250
| ML18228A250 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, Turkey Point  |
| Issue date: | 09/20/1977 |
| From: | Bouknight J, Mathews J Florida Power & Light Co, Lowenstein, Newman, Reis & Axelrad, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb |
| To: | NRC/OCM |
| References | |
| Download: ML18228A250 (9) | |
Text
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- g. geo UNZTED STATES OF AMERZCA BEFORE THE NUCLEAR REGULATORY CONMZSSZON Florida Power 6 Light Company ) Docket Nos. 50-335K (St. Lucie,Plant, Unit No. 2) )
)
Florida Power 6 Light Company ) Docket Nos. 50-(Turkey Point Plant, Units ) 50 251 No. 3 and No. 4) )
September 20,. 1977 ANSWER OF FLORZDA POWER LZGHT COMPANY ZN OPPOSZTZON TO'ETZT'ZON'FOR REVZEW Pursuant to 10 CFR 52. 786 (b) (3), Florida Power &, Light Company ("FPL") responds to Florida Cities (" Cities" ) Petition For Review, dated September 8, 1977. Cities seek review of ALAB-428, a decision issued August 23, 1977, by the Appeal Board in the above-captioned dockets. That decision affirms an April 5, 1977, decision of the Licensing Board- established by the Commission to rule on Cities'ntimely petition for leave to intervene and request for an antitrust hearing. FPL opposes Cities'etition For Review in all respects.
1/ Florida Power S Li ht.'ompan (St. Lucie Plants, Units No. 1 and 2; Turkey Point Plant, Units No. 3 and 4), LBP-77-23, 5 NRC 789 (1977) .
Summary of the Decision of Which Review is Sou ht On August 6, 1976, Cities filed a petition for leave to intervene and request for initiation of antitrust proceedings to modify or revoke the operating licences held by Applicant for Turkey Point Units No. 3 and 4 and St. Lucie Unit No. 1 (the "Operating Plants" ). These plants are presently operating under licenses received by FPL under Section 104b of the Atomic Energy Act ("Act") . 2/
Xn its Memorandum and Order of April 5, 1977, the Licensing Board dismissed Cities'etition as to the Operating Plants on the ground that it. lacked jux:isdiction to grant the petition, citing the Appeal Board's South T'exas Decision. 3/ The Appeal affirmed in ALAB-428, and Cities'equest for 'oard Commission review followed.
Cities have taken two other actions relating to this request for review. On October 29, 1976, Cities "lodged" their August 6, 1976 petition with the Director of Regulation. On April 18, 1977, after the Licensing Board's unfavorable decision, 2/ Cities also docJ eted the untimely petition in Docket No. 50-389A, with respect to Applicant's St. Lucie Plant, Unit No. 2.
The Licensing Board ruled favorably on Cities'etition in its April 5, 1977, decision, and the Appeal Board affirmed. Florida Power 6 Li ht Company (St. Lucie Nuclear Power Plant, Uni~o. 27, (July 12, 1977).
3/ Houston Lightin and Power Compan (South Texas Project, Units 1 and 2 , ALAB-381, 5 NRC 582 (1977) .
Cities requested the Director of Nuclear Reactor Regulation to act on their filing under 10 CFR 52.206 to require FPL 6o show cause why the Operating Plant licenses should not be "revoked, amended or modified". The Acting Director denied Cities'equest by letter of September 9, 1977.,
On March 29, 1977, Cities filed with the Commission a pleading entitled "Motion for Commission Clarification of Procedures". Zn a memorandum and order dated June 22, 1977, the Commission denied that motion, ruling that the matter was not properly before it and that the issues raised by Cities should in the first instance be addressed by the Appeal Board or the Director of Nuclear Reactor Regulation after briefing. 5/
The Decision of ffhich Review is Sought is Cl'e'arl' Correct The instant Petition raises no new important questions of antitrust law or policy. ALAB-428 merely applies principles earlier established by this Commission, and the Petition For 4/ Letter Edson G. Case to Robert A. Jablon, dated September 9, 1977, in Dockets 50-335A, 50-250A and 50-251A.
5/ Florid'a Power 6 Li ht Com an (St. Lucie Plant, Units Nos.
1 and 2; Turkey Point Plant, Unxt Nos 3 and 4), Commission Memorandum and Order, CLI , NRC (June 23, 1977).
Review does no more than reiterate Cities'ontinuing an(
emphatic disagreement with those principles. Xt suggests no new basis for that disagreement or significant distinguishing factor in this proceeding.
The Appeal Board's conclusion in ALAB-428 stands on two fully independent grounds. First, the Appeal Board concluded that, except in limited circumstances not present in this case, NRC authority .over antitrust matters "does not extend over full 40-year term of the operating license but ends at its 'he inception. 6/
This result was clearly mandated by the Commission's earlier conclusion that its antitrust authority is defined "not by the broad powers contained in section 186, but by the more limited scheme set forth in section 105. . .;" that the 1970 amendment to the latter section established a "particularized regime" relating to the consideration of antitrust matters by the Commission; that that regime focuses upon the licensing process and does not lodge "ongoing antitrust enforcement responsibility. . . in this agency;"* and that only "traditional antitrust remedies are available. . . both licenses having been granted. . . "-
7/ The Appeal Board's determination here involved 6 ALAB-428, Slz.p Op. pp. 7, 9 ~
7/ Houston Li htin and Power- Compan, (South Texas Project, Unit Nos. 1 and 2)
Slip Op. pp. 9, CLl-77-,
18, 19, 21, 24; see also NRC (Wne 15, 1977)-,
13, 15.
pp.
did no more than follow those principles, and the Cities make I
no effort to distinguish the Commission's South Texas holding.
Instead, the petition (E.g., pp. 4, 6, 7) merely reiterates the Cities'iew of the "broad powers" contained in section 186.
That view has already been presented to the Commission by the Cities-8/.in the South Texas proceeding and has already been rejected.
The second, independent, ground for the Appeal Board's con-elusion was that the antitrust review provisions of section 105(c) do not apply to licenses, such as are here involved, issued pursuant to section 104(b) of the Act. The Appeal Board emphasized what is indisputable that when the 1970 amendments were enacted "Congress had considered this class of reactors and elected to exclude them from antitrust review under section 105c (except in limited circumstances not present in this case)."
aLES-428, ~en ra, Slip Op. pp. 6-8. Except for again invoking 8/ See "Brief Amicus Curiae of Florida Cities", filed with the Commission in Docket Nos. 50-498A and 50-499A, May 11, 1977.
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section 186-9/ and its description (p. 9) of the conclusion as "surprising", the petition does not even suggest where the error lies.
Conclusion Wherefore, FPL respectfully requests that the Commission deny Cities 'etition For Review of ALAB-428.
Respectfully submitted, J. 'A. Bouffniaht, Jr.
Linda L. odge Lowenstein, Newman, Reis 6 Axelrad 1025 Connecticut Avenue, N.W.
Washington, D. C. 2-036 (202) 833-8371 J~ i. N(~'Auu John E. Nathews,
. J>.
Jr.
Mathews, Osborne, Ehrlich, HcNatt Gobelman 6 Cobb 1500 American Heritage Life Building 11 East Forsyth Street Jacksonville, Florida 32202 (904) 354-0624 Counsel for Florida Power &
Light'ompany Dated: September 20, 1977 9/ Cities again cite a particular passage from dicta of Statesville v. AEC, 441 F.2d 962 (D. C. Cir. 1969),in inCities of thea.r theory of the general police powers of the NRC in support anti-trust matters. (Petition For Review, pp. 8-9) . As the Cities construe that passage, it case and Congress'ubsequent would negate both the holding in the action in 1970. As noted by the Commission in South Texas "[t]his dictum is a weak foundation upon which to build a claim of such wide ranging powers." Slip Op. at p. 23.
)ag'f W UNITED STATES OF 2QKRICA gq Q )1 NUCLEAP. REGULATORY CORI'TISSION ~a'~
In the Matter of )
)
) Docket No. 50-335A
)
)
Florida Power & Light Company ) Docket No. 50-250A (Turkey Point Plant, Unit Nos. ) 50-251A 3 and 4) )
CERTIFICATE OF SERVICE I HERBY CERTIFY that copies of the following:
"Answer of Florida Power G Light Company in Opposition To Petition For Review" 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 Linda L. H ge Lowenstein I Newman, Reis 6 Axelrad 1025 Connecticut Avenue, N.W.
Washington, D. C. 200 36 DATED: September 20, 1977 Counsel for Florida Power &
Light Company
Alan S. Rosenthal, Esquire Lee Scott Dewey, Esquire Atomic Safety and Licensing Counsel for the Staff Appeal Board Panel U. S. Nuclear Fegulatory Commission U.S. Nuclear Fegulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 C.R. Stephens, Supervisor (20)
Docketing and Service Station Richard S. Salzman, Esquire Office of the Secretary of the Atomic Safety and Licensing Commis sion Appeal Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Secretaiy U.S. Nuclear Regulatory Commission Jerome E. Sharfman, Esquire Washington, D.C. 20555 Atomic Safety and Licensing Appeal Board Panel William C. Wise, Esquire U.S. Nuclear Regulatory Suite 200 Commission 1019 19th Street, N.W.
Washington, D.C. 20555 Washington, D.C. 20036 Robert M. Lazo, Esquire William H. Chandler, Esquire Atomic Safety and Licensing Chandler, O'Neal, Avera, Board Panel Gray, Lang a Stripling U.S. Nuclear Regulatory P.O. Drawer 0 Commission Gainesville, Plorida 32602 Washington, D.C. 20555 Jerome Saltzman John lt. Frysiak, Esquire Chief, Antitrust and Indemnity Atomic Safety and Licensing Group Board U.S. Nuclear Regulatory Commission Nuclear Regulatorv Nuclear Reactor Regulation Panel'.S.
Commission Washington, D.C. 20555 Washington, D.C. 20555 Commissioner Victor Gilinsky Ivan W. Smith, Esquire Office of the Commissioners Atomic Safety and Licensing U. S. Nuclear Regulatory Commission Board Panel Washington, D. C. 20555 U.S. Nuclear Regulatory Commission Commissioner Richard T. Kennedy Washington, D.C. 20555 Office of the Commissioners U. S. Nuclear Regulatory Commission Robert A. Jablon, Esquire Washington, D. C. 20036 Spiegel 6 NcDiarmid 2600 Virginia Avenue, N.W. Chairman Joseph H. Hendrie Washington, D.C. 20036 Office of the Commissioners U. S. Nuclear Regulatory Commission David A. Leckie, Esquire Washington, D.'C. 20036 Antitrust Division U.S. Department of Justice Commissioner Peter Bradford P.O. Box 7513 Of fice of the Commissioners Washington, D.C. 20530 U. S. Nuclear Regulatory Commission Washington, D. C. 20036