ML19263C445
| ML19263C445 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 01/30/1979 |
| From: | Hodder M AFFILIATION NOT ASSIGNED |
| To: | |
| Shared Package | |
| ML19263C443 | List: |
| References | |
| NUDOCS 7902220258 | |
| Download: ML19263C445 (29) | |
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UNITED STATES OF AMERICA 'I -
NUCLEAR REGULATORY COMMISSION "
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SE FORE THE ATO.' TIC S A FETY AND LICENSING APPEAL 3 ,G# sno e.- .
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In the Matter of k';,/
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FLORIDA POWER AND LIGHT COMPANY Occket No. 50-389
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(St. Lucie Nuclear Power P l a n t' , Unit 2) )
INTERVENORS RESPONSE TO " OPPOSITION OF FLORIDA POWER AND LIGHT COMPAdf TO ' MOTION FOR A i4EW CO.4 TE 4 TION ' Ai4 0 ' 40 T IOl4 FOR 5TA(' "
Intervenors, out of necessity, as is stated in their Motion for Leave to File , have not until now responded to the Florida Power and Light Comoany (FPL) apposition to their motions for Stay and a new contention.
Once again in this case there occurs a graphic illustration of the inequity arising ' rom the disparity of wealth between parties.
This multi billion dollar utility comoany uses its great wealth and virtually inexhastible resources in its efforts to overcome impecunious opponents who all too often, can only cry like a voice in the wilderness, while wall-financed legions advance the cat;e of the utility on various fronts.
The Florida Power and Light Company made similar accu;ations , that the St. Lucia Intervenors or their counsel had made false or misleading stat,ements throughthe vehicle of an FPL Motion to Strike Portions of Petitioners Recly Brief filed with the U.S. Court of Appeals , District of Columbia Circuit August 15, 1978. Intervenors responded to that motion before the U.S. Court and incorporate by reference herein, their response entitled Petitioners Resconse to Intervenors Motion to Strike Portiens of Reoly 3rief filed wi:n the U.S. Cote: Iaptember 25, I?73.
Although, the resoonse incorporat'ed nerein, is sufficiently com?lete to refute the FPL charges, it does more. It oroves that the co.rcany misrecrasented their construction clans to the Intervenors and it is uo to this a?ceal board to decide whetner they were misl ed.
- n June 8, 1977, Mr. Ha rold D ais , Iscuire , Counsel fo r F?L , told t?.e ?arties and this Apoeal ?oarc at oral argum?nt in :atnesda, Y. tcat the comoany planned "'inishin; ne Ldl." during tna nax six months h i c .-
is li.7itad oy .lRC rule to celow grade acti/ity and which 7eant curing the next six months the Company would not brin; St. Lucie 2 abova prada (TX 76 lines 5-6 ALAE 6-3-77); wnile W. ?aton , Escui re , Counsel #or PC, 790222oP5Ts
JEL: tells us that as early as August 5,1977 F:L 's engineers had
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told tae JRC insoection and enforcament oso:le, the comoany olanned to usa the sli? forming method at St. Luci? 2, (See Latter '.'.D. :ston to 2 adder 9-5-7C).
- c. Oeis failed to notify the St. Lucie Intervences i' any cnance in tha com?any's construction schedule as he in di cated he ..o ul d "i f ::.at is wrong" at oral argurent June 8, 1977 in Esthesda, "d. (TR 75 lines 5-7
- LA3 June 8, 1977) thereby i rrecarably damaoing intervenors, aho mi;ht have filed a timely motion for Stay w ith this A?caal Board. Instead, on 30vemoer 8,1977, only five months to the day af ter 'tr. R e i s ' L'<! A for six mJnths recresentations to this A ?oeal 30ard at Cethesda,
- d . y on J une 8,1977, the St. Lucie 2 containment shield wall rose a' cove grada and was com;1etad 'y c .ovember 22, 1977 according to the nevisnacer, Via-i
'aviaw of Cec. 7, 1977- (also see letter '. 3. :aton to " odd?r o# 9-5-72.)
I'1e cor:any accomolished in 15 days .that was a normal la montn e f fo rt there;y achieving tha increlentalism the Intervenors wa rned this Acceal
- oard about on Juna 8, 1977 at TR 8.
The contents o f the Intervenors ' "otion for Stay of au gust 11, 1078
": the sole responsioility of their counsel. As counsel oro sa or for Intervenors, I have in no way sought to 1.m.ougn the integrity of my co-
- osing counsel, including fir. Harold Rais , ~scuire whose scholarly acilities I have always resoected. A:c a ren tl y , 't r . o.eis, as any at:Orney
..o u l d , rel i e d u pon the '/ .D . D a ni ckson A f f a da vi t of '!ay 2, 1977, . hen ha made his reoresentations to the A;?eal Board. There were many ~~L oersonnel oresent in the room on June 3, 1977, yet accarently no one of them corrected hi. as to the comoany's construction schedule clans.
Intervenors su:mit Mr. Reis would be b?ttar advised 3 3xclain wnat a?: ears to be at best an oversignt on the part of ni s client y 3 rather than commit this kind of attack uoan upon I3tervenors as was dona in the U.S. Court and before the NRC Acceal Ccurt. In tne incor-
- orated res:onse to the U.S. Court, : wrote:
" A f ter almos t five years of handlin; t?. i s c a s e wi t 3 o u t recomoensa, : lartin Marold "cdder, counsel O ro sa and for Detitioners, have exoended many of my c:s s a s si on s and, if it clease God, cained aerna:s a small degree :"
atonemen .
- have retained, however, my ost sacred cassessian. that is my carsonal honce. Since my c :onants nave 10: sean fi t to assail and seek to da? rive me of even that, : can and only do humbly ask this court to review carefully the argument oresented and take judicial no tice , be it in the record or not of all factual data that ! note here, cefora rendaring any decision.
I do not seek to 1.nougn the intagrity of any octher lavyer and never before have. I regret being a carticioant in any circumstances, vhich seemingly would cause a :ourt to have to insinuate itself into a cersonality conflict bet.;3en ooposing counsel."
In defense of 7.y personal honor, I ask this Soard to rule on this issue at their earliest convenience since the U.S. Court cas ignored both the utility and Intervenors pleadings on the FSL's otion to Strike.
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.ia rtin Harol d Modder Counsel oro se and for o stitioners 1131 1.I. E6 Street "iami, Fla. 33138 Tel. No. 305 751-3705 CERTIF'CATE OF SER'/ ICE
~ '1ereoy certify that cooies of a "?'o ti o n' f o r L e a v e t o File" and "Intervenors Rest nse to "Occa si tion of Fiorida Posar anc L1;n:
Comoany to "o:1on fc a .iew Con:an tion ' and 'iotion f o r 5 :ay ' "
nave oesn served, oymall tnis 30tn. cay of 'anuary, 1979, on tne folloaing:
Joseon '. Hendrie, Chairman ,illiam D. 3aton, Es:.
Juclear o.e;ulatory Conmission Counsel f o r .P.C S t a f f
.i a s h i n g t o n , D.C. 20535 U .S . :iucl e a r Reg ul a to ry Commi s sion Washington, D.C. 20555 Edward Luton, Esc.
Cnairman N o rm a n A . Coll, Esc.
Atomic Safety and Licensing McCarthy, Steel Hector S Davis 30ard First :lational B ank Buil dinc U .S . .luclear Regul ato ry Commis sion :liani , Fl a . 33131 dasnington, D.C. 20555 Dr. vttid L. Hetrick Parold F. Reis, Esc.
? ro fess cr, .;ucl ear Ingineering Lowenstain, Jewcan, o.eis i Axelrad university of Ari:ona 10~5 ",onnecticut t.vanus, 3.h.
T a:s on , Ari:on a 85 721 Washington, D.C. 20036 Dr. Frank F. Hooper Rasource Ecology 3 rogram, School o f !!a tural Resources University of Michigan A.1n A rbo r , :li en . 48104
'ichael C. Farrar, Esc. N
-tomic Safety and Licensin; '
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Juclear 0,es latory Commission
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Couns21 o ro s a and fo r Atomic Safaty and Licensinc II210n Es,
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Nuclear Regulatory Commission i 3I 3-
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Dr.W. Reed Johnson Atomic Safety and Licensing Appeal Soard
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Juclear Regulatory Commission Washington, D.C. 20535 - 3 ~ r,?
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September 25, 1973 George A. Fisher, Esq.
Cler, U.S. Court of Appeals for the District of Columbia Circuit United States Courthouse 3rd and Constitution Avenue, NW Washington, D.C. 20C01
Dear Mr. :
- sher:
MARTIM HAROLO HOODER, ET AL. V. U.S. NUCLEAR REGULATORY C O M.il S S I ON , ET AL., U.S.C.A., D.C. CIR., 30. 75-1709 Enclosed herewith for filing are the original and three copies of " Motion for Leave to file late Petitioners Response to Intervenors Motion to Strike Portions of Petitioners Recly Srief" and " Petitioners Response to Intervenors Motion to Strike Po rtions of Petitioners Reply 3rief" in the above-captioned case.
Please have your office stamp the enclosed copy of this letter to indicate th' date of filing and return it to 'e.
Thank you for your cooperation in this matter.
Sincerely, bd4b %
Martin Harold Hcdder Of f cc: Counsel of Record
UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT MARTIN HAROLD H0DDER, et al , ) Docket Numcers 75-1709 Petitioners, ) 78-ila9 vs. ) .
U.S. NUCLEAR REGULATORY ) M' COMMISSION and UNITED STATES / o S OF AMERICA, ) '& 7, Respondents.
) g "o \N3 '- 4 FLORIDA POWER & LIGHT @ fgjp* '
COMPA:lY, ) 'Oh Intervenor.
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MOTION FOR LEAVE TO FILE LATE PETITIONERS RESPONSE TO INTERVENORS MOTION TO STRIKE FORTIONS OF PETITIONERS REPLY 3RIEF.
Petitioners motion that oursuant to Federal Rule of Appell ate Pro-cedure 27(a) and General Rule of the Court 8(h) that they be granted leave 'to file late, their response to Intervenors Mo tion to Strike Portions o f Petitioners Recly Srief which was filed with the Court on August 16, 1978.
Petitioners have notified,by telephone, Daniel M. Cathey, Fi rs t Decuty Clerk of U.S. Court of Appeal s , of their intention to file this and a ccompanying pl eadings no l a te r than .c nday , S ec tembe r 25, 1973.
Tne Intervenor, Florida Power and Light Company, in addition to raising no rmal legal arguments in their response, has characteri:ed arguments presented by Petitioners counsel as aeing "f al se ' .* his is a serious accusation , though unfounded. and to properly refute it, i:
was necessary to obtain some discovery from the Commission.
"A similar pleading has been filed by the Utility Company with the Atomic Safety Liscensing and Aapeal Board also accusing Petitioners ,
nerein , o f making false and misleading statements. See Occosition af Florida :ower and Light Comcany to Motion for a New Contentions "c: ion for Stay, filed ALAS August 23, 1979.
This accusation by the Florida Powar and Light Comoany is an insult to the integri ty of the counsel for Petitioners , wno composed Petitioners Reply Scief and accepts full and sole resconsibility for its contents. I as counsel for Petitioners , he rein who we re In e rve-nors below, ref ute and categorically deny FDL 's allega tions tha t I have made any false statement or intentional misrepresentation to tnis or any other judicial fo rum .
Since several topics were addressed by FPL in their Motion to Strike it was necessary to do substantial informal di s cove ry wi th the cooperation of William Patoa, Esq. , U.S. Nucl ear Regul atory Commission ,
Office o f the Executive- Legal Di rector (GELD) , Mr. Birkell , St. Lucie Project Manager and tne NRC Offices of Insoection and Enforcement in Atlanta. This discovery took clace over a period of two weeks , in the latter part of August and early September, 1973.
Furthermore, it was necessary for counsel for Petitioners to make numerous long distance phone calls and to travel 120 miles one way on two occasions to the Indian River Community College, Public Document Room in Ft. Pierce, Florida where the documents relating to the St. Lucie
.1uclear Units are kept to obtain relavent data and information. Additio-nal ' trips to the University of Miami Law Library were also necessary to do the legal research required here.
This research and investigation was done by counsel for peti tioners ,
an impecunious environmental lawyer alone and with no financial or other assistance. Indeed, during the almost five years that this case has been in litigation, cour.sel for Petitioners has received no finan-ci al compensation for his ef forts as a lawyer and has exoended saastantial amounts o f his own funds in a David versus Goliath contest in tne truest sense, opposed by legions representing a mulii billion dollar utility company and the NRC.
The investigato ry and b rie fing ef fo rt, herein, has been necessarily punctuated by the need to provide food and mortgage payments for tne sustinence of my family (my financial standing being greatly imo a i re d due to my ef fort in this case) which is a moral and legal obligation, :
nave with at least as high a oriority as my resconsibilities in nis c'.sa.
_2
Therefore , fo r the foregoing reasons and others that may become accarent in Petitioners Resconse to Intervenors Mo tion to S trike Po r-tions of Petitioners Recly 3rief which I incoroc rate 'c y refe rence herein ,
I ask that this court grant my votion fo r leave to file late.
Additionally otner obligations relating to this case and its responsibilities such as errors in the Appendix and obligation to respond to the utility's pleadings before the NRC Aopeal Board have further infringed on my time.
10 N 0 Ma rtin Ha rol d nodcer Counsel oro se and for Petitioners 1131 :: . E '. 36 S t re e t Miami, Fla. 33133 Tel. No. 305 751-8706
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3 O-s v 4 gg.B p*v A UtlITED STATES COURT OF APPEALS b <M M Q FOR THE DISTRICT OF COLUMBIA CI?CUIT q .,
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MART!1 HAROLD H000ER, et al , )
P eti tione rs , Occket : lumbers
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76-1709 vs. ) 78-1149 U.S. NUCLEAR REGULATORY COMMISSI0il & UtlITED STATES OF AMERICA, )
Respondents,
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FLORIDA POWER AilD LIGHT COMPA1Y, In t e rv eno r . )
PETITIO lERS RESP 0:4SE TO I ITER'iE 10RS MOTIO 1 TO STRIKE PORTIO 15 0F PETITIOlERS REPLY 3RIEF.
Dated: September 26, 1978 '(h 6%/
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'll b Martin Harold Mcdcer Counsel cro se and for Petitioners 1131 N.E. 36 Street Mi ami , Fl a . 33138 Tel . Ilo . ( 30 5) 751 -8706
I INCREMENTAL RULEMAKING
.'*r. Mcrold Reis, counsel for the utility Florida Power and Light Company, writes that Petitioners have insultad him, his client and cractice before this court by their statements of f ac: on ?. 17 o f their Reply 3rief and he now motions to Strike Portions of that Reply 3 ri e f .
Petitioners refute and categorically deny Mr. Reis ' charges of a
" false" presentation in their reply brief. It is Mr. Reis, who confuses the issue by his charges and his distorted statement of the issue.
Mr. Reis tries to direct our attention to figures expressed in percent-ages that allegedly relate to degree of comolet:cn of St. Lucie 2 when the issue that petitioners have raised is that the unit was brought out of the ground ahead of time.
The fact is , that on June 8,1977, Mr. Reis acceared at oral argument before the Appeal B o a r d i n B e t h e s d a , .'i d . in opposing Petitioners
.'1otion for Stay and told the parties and the Appeal Board that the company planned " finishing the LWA" during the next six months, which was below grade activity and which meant that they would not bring the St. Lucie 2 unit out of the ground over that period of time. (See TR 75, lines 5-9, ALAB, 6-8-77.
The fact is , that at o ral argument in Bethesda , Md. on June 8,1973 that Mr. Reis relied uoan the W. 3. Derrickson affidavit which said "finisning the LWA" and had been filed with the Licensing Board on May 2, 1977 and was a . natter o f reco rd. (See Affidavit W.3. De rri ck son , F?L Project General Manager Acril 29, 1977,. filed wi th Resconse in accesi tion to Motion for Stay Order before ASLS.)
The fact is, the Affidavit of W.J. De rrickson of April 29, 1977 de fi ne c the work activities to be conducted in the six month period commencing by mid-June o f 1977 tc be o f the LWA tyoe , which was below grade activi ty as rel ated to Aopendix 3 cri teria (ICC.:R Part 50) and so eci fi caIly to the containment building.
The fact ir, Mr. Reis committed at oral argument to i nfo rm ne parties "if that is wrong' TR 75, line 5-7 ALA3 June 3,1977.
The fact is, that as early as August 5,1977 F L engineers nad announced plans to use the slip forming method at St. Lucie 2 to tne
.;RC inscection and enfo rcemen t pecole. (See letter W.C. ?ston o dodcer 9-5-73 Attachment 3)
The fact is , the petitioners were not timely notified of the change in the St. Lucie 2 construction schedule and the decision to use slip forming and they were therebyi rrecarably harmed.
The fact is , that on or about November 3,1977 the St. Lucie 2 containment shield wall rose above grade and according to the Miami Review newspacer was completed by lovember 23, 1977, purportedly accomp-lishing in 16 days what was a normal 14 month e f fo rt. (See letter Paton to Hodder 9-5-78 Attachment B;also see Miami Review and Daily Reco rd Dec. 7,1977 p.1 Attachment G .)
The fact is, the St. Lucie 2 contatement was both planned to be and actually was brought out of the ground prior to the expiration of the six month period referred to in the Derrickson affidavit and re-ferenced by.Mr. Reis on June 8, 1977, if one accepts a mid December, 1977 termination o f tha t period.
These are f acts of record and Petitioners stand on them as stat d at p. 17 of their Reply Brief. Petitioners will only concede that th ei r estimate of degree of completion of Unit 2 was over-stated at 50%.
This was, just that, an estimate on their part, made in good faith and based on a comparison of the Unit 1 FES of June 1973 and the Miami Review newspaper article which described the completion of the " containment b u i l d i n g." (See Miami Re,lew and Daily Record Dec. 7,1977 Attachment G herein, and compare with St. Lucie Unit 1 FES', also comaare photographs in each publication. )
The Unit 1 FES states:
" Site preoaration for the St. Luice Plant began in April ,1969 and , as of Decemhe r 31, 1972, construction was estimated to be 155 comoletei Fuel loading is scheduled to begin in September 1975- wi th ini ti al comme rci al coera-tion scheduled for Deceber, 1975."
-St. Lucie Unit 1 FES, I-2 June 1973.
Other recresentations by the parties during these proceedings concerning Unit 1 have indicated that this 45-50% degree of completion of Unit 1 inv ol'ved completion of containment.
Upon receipt o f the utility 's " Motion to S trike", Counsel fo r P eti-tioners contacted Mr. James R. Tourtellotte OELD, MRC Staff in an effort to obtain i n f o rm al discovery and arranged a telephonic interview with Ralph Birkell, MRC St. Lucie 2 oroject manager. On August 21, 1973, Mr. Birkell stated that the utility was his only source of informa: ion as to tne degree of comaletion of the St.Lucie nuclear clant. Mr. Birkell further told Petitioners counsel that he had not known of the sceed uo of the St. Lucie 2 construction schedule (i.e. slioforming of containmen:
prior to its comolation.)
-2
The OELD attorneys , William D. Paton and James R. Tourtellotte afso related they had not known of thn St. Lucie 2 slip-fo rming p ri o r to i ts completion in November, 1977. Mr. Birkell reccommended tna t the NRC Office of Inspection and Enforcement (I&E) might have known of the St.Lucie 2 slipforming and schedule change and *eccomended to counsel for Petitioners that they be interviewed. No interview was obtained, although it was requested of the NRC. Instead, through the of fices of Mr. William D. Paton of the NRC OELD, certain questions posed by counsel for Petitioners were answered in a letter by the NRC.
Mr. Paton wrote in a letter dated September 5,1978 that the NRC I and E inspectors had known of the slip forming method to be used since ea rly Augus t , 1977, less than two months af ter oral argument before the Apoeal Board:
"Setween August 2 and 5, 1977, FPL's Engineering Decartment told our inscector of their intent to use the slipform method af concrete placement."
-Letter Paton to Hodder, Sept. 5, 1973 attachment 3.
Mr. Paton's letter confirmed that the ISE inspectors actually saw the slipforms at St. Lucie in mid-September 1977.
"The St. Lucie 2 inspector fi~rst knew of permitee's latent to use the slipform method between September 13 and 15,1977 when he saw slip forms (not then in use)on the site."
-Letter Paton to Hodder, September 5, 1978 Attachment 3.
On/or about November 9, 1977, the shield wall for containment for St. Lucie 2 went above grade :
"2. The shield wall for containment fo r S t. Lucie 2 went above grade between November 3 and 11, 1377."
-Letter Paton to Hodde r Sectember 5,1973.
On November 23, 1977 according to the newscacer known as the Miami Review and Daily record and as depic:ed by anotographs oublished therein, it was recorted that the 192 ft. high St. Lucie 2 containment building was completed shortening a 14 month crocess to 15 days -
"NEW STATE-0F-The-ART cons truction techniques s aved Florida Power & Light Co. over 5500,000 in erecting the 192-f t.
high containment building for the seconc nuclear unit on Hutchinson Island. Using a "slipforming ' method cf concrete placement, the Houston basecH.A. Lott, Inc. was aole to pour 9,200 cu. yards of concrece and install T.o r e than 3,000,000 lbs. of reinfo rced s tell bars to construct the building in 16 days. The construction technicue encloyes movable platforms and sliding retainer braces for the three-ft. thick wall s to ris e wi th the building as the con crete i s continually poured. he ro un d-the -cl o ck coeratior , recuiring 390 craftsmen, started on Nov. 7 and ended on Nov. 23. By using a conventional metnod the containment building would have taken la months to complete. St. Lucie No. 2 designed to have an electrical output of 802,000 kilowatts, is scheduled for coeration in mi d-198 3. "
-Miami Review and Daily Record Dec. 7, 1977 Attachment G.
Up until'the time this court stayed construction at the St. Lucie site on Hutchinson Island in October 1975, the utility Florida Pow:.
and Light Company had sought and obtained from the NRC under 10CFR50 (e)(3)
(ii) a Limited Work Authorization known as a LWA 2, rather than the more restrictive LWA 1. The Commissions Rules of P ractice limited the amount of work that could be done under an LWA 2 as being below crade not above as pertains to structures ,sys tems and componnets subject to provisions of Appendix B to 10CFR Part 50 (Qality Assurance Criteria) ;
"(3) (1) The Director of Reaulation may autho rize an acclicant for a construction oermit for a nuclear oower reactor suoject to cne p rovisions o f earagrapn A of Appena1x 0 of Part 50 of this chacter to conduct, in add-ition to the activities described in caragraph (e)(1) of this section, the installation of structural foundations, includinc any necessary subsurface orecaration, for structures, systems anc comoonents wnicn are suoJect to the o rovisions or Accena1 x 8. '=
-10CFR 50.10 (e)(3)(1) *Emchasis Sucolied.
A reading of 10CFR Part 50 Appendix 3 Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants tells us that in addition to other plant safety systems, the containment building and auxilliary building were subject to Part 50 Appendix 3 criteri a and hence construction of portions of these structures above grade would represent something more than the work effort allowed under an.LUA. This is the coint the utility icnores in thetr Motion to S t ri ke .
After the puclication of the Initial 3ecision on Ap ril 19, 1977 and the issuance of a construction permit on .'tay 2, 1977 for St. Lucie 2, Petitioners sought various stays before this court, the Licensing Board and ultimately the Appeal Board. The Appeal Board held cral argument on Petitioners Motion for Stay on June 8,1977. in Bethesda, Vd. At that hearing , counsel for Petitioners warned of what he termed incremen-tai rulemaking and argued if construction of St. Lucie 2 were allowed to continue it might tip the cost benefit bal ance in f avor a # the Hutchinson Island si:e.(See TR 8 ALA3 Oral Argument Bethesda, Md. June 2, 1977) 1.
Responding to this argument the Appeal 30ard sought to establish what amount of work would be done over the next six months (or until Decemoer 8,1977) on S t. Lucie Unit 2. Mr. Salzman asked the ques' tion of Mr. Reis , counsel for the utili ty:
"Mr. S al zman : Ode tradi tional ground for stay as f ar back as I can remember the cases is to moot the decision.
I would like to know what will be spent in the next six months.
Mr. Reis: The LWA will be completed in the next six months and that is about seven percent.
Mr. Salzman: Seven percent of the total cost?
Mr. Reis: Seven percent of the forward costs. Less than one percent has been expended up to now. I would like to reserve an opportunity to send the board and all of the parties any correction , if that is wrong. The Cerrickson affidavit s ays , " finishing the LWA: and. that was filed with the licensing board and is on reco rd he re."
-TR 75-76 lines 21 -25 al-10.
Mr. Reis' response was made freely in ocen court and was based on the De rri ckson A ffidavi t* supra which he had previously filed with both this court and the Appeal Boa rd May 2,1977. Mr. Reis' response in-dicated quite manifestly that during the next six months constructica activity at St. Lucie 2 would constitute finishing the LWA which meant that structures such as the containment building would not be broc~ g ht above grade during that period of time and yet, it ul timately was, be-fore the experation of the six month period . Mr. Reis further stated on the hearin9 record that he would notify the parties "i f that is wrong" and yet he did not so notify petitioners during the six months next.
Until the Motion to Strike of August 16, 1977 Mr. Reis never notified the Petitioners of the degree of progress at St. Lucie 2 o r any possible change in that schedule.
"It snoula oe notea tnat tne cerrickson Affidavit althougn dated April 29, 1977, addressed a construction effort to begin 45 days after issuance of a construction permit on May 2,1977 or mid-June, 1977 before it was fully underway. See Affidavit W.D. Derrickson p. 2 line 21 p. 3 line 5 Acril 29, 1977; Then read Derri ckson at p. 3 line 12-12
" During the fi rst six months the work to be initially undertaken sill consist of that des cri bed in the LWA". -W .C . De rri cks on , suora, Tne six month period woul d therefore conclude mid-Decemcer, 1977.
Mr. Reis presented his argument to the Appeal Board on June 8,1977 in Bethesda, Md. with F?L personnel cresent in the hearing ro o m .
Petitioners submit that both the Licensing Board and the Acceal Board relied upon the Derrickson affidavit, which proved to be misleading.
Tne Licensing Board in the Order of May 11, 1977 cuoted portions of the Derrickson af fidavit to demonstrate that reliance.
The Appeal Board in ALA3 415 found inrelying upon the Derrickson Affidavit:
"At oral argument, intervenors acknowledged with commendable candor that "the amount of work the aoplicant seeks to do in the next few months" would have an "in-significant (environmental) effect" (APP TR 8).3/ Rather their claim of irreparable injury was bottomed entirely on the possibility that construction undertaken by the Apolicant while the apoeal is before us would prove suf ficient of itself to tilt the environmental co s t/ b enefi t balance in f a v o r of allowing the plant to be completed.
Ibid.2/
But our review of the record and our understanding of the nature and amount of wck likely to be comoleted in the next few months satisfies us nat in no event could that work significantly affect our ultimate decision on the appeal . "
-ALAB-415 June 23,1977 p. 3.
Petitioners have provided a chronology of Events at Attachment A for the Courts information and use. Pe ti tioners s ubmi t , contrary to suggestions in the utility's Motion to Strike Portions of Petitioners Reply Brief at p. 3, that indeed a change in the construction schedule did occur during 1977 and, moreover, they were no t timely noti fied o f i t.
The utility makes a point of construction effort on Nov. 7, 1977 being one month after the Appeal Board decision (ALAS 435 October 7, 1977) and "that they never requested any stay of construction af ter October 7, 1977." Petitioners had no new grounds for stay at that time and following the mandate of this court to " exhaust thei r admini strative remedies" they followed the only course at that time known to be available by filing a Petition for Review with the Commission on October 31, 1977.
Had Petitioners known of the changed construction schedule they might have sought a stay.
Petitioners refute the statement of the utility at p. A of tneir motion that construction at St. Lucia .10. 2 in levemoer was 3.55 not seven, as being a self-serving pronouncement on which they have had no accor-tunity to test thro ugh disco very o r cros s examin ation .
Petitioners have not sought to impugn 'tr. Reis' integrity nor do they now but they respectfully submit that Str. Reis might be better advised to explain what appears to be an oversight on his cart and that of his client, which has caused irreparable harm to the Petitioners ,
herein, rather than charge the petitioners with wrong doing.
The utility's citation of cases such as Dyer v. Securities &
Exchange Coamission, 291 F.2d 774, 781-782 (8th Cir. 1961). See also Ginsburgv. Stern, 295 F.2d 698 (3rd Cir. 1961); Tashman v. Community Imorovement Coro., 243 F.2d 96, 97 3rd Cir. 1957), is preposterous and not in point.
The statements of Petitioners are provable and do not represent any bald or unprovable assertions. Petitioners reply brief does not seek to assert any aspersion against judicial or adminis trative integrity.
Petitioners have not sought to attack or impugn the integrity o f cocosing counsel. Any insult inferred by other parties is gratuitous, since Petitioners have only sought to recort events as they occurred.
It is a different case, however, regarding the utility's motion to strike. The conduct that cannot be tolerated is Mr. Reis' improper, unfounded and scandalous and scurrilous attack on counsel for Petitioners.
Counsel for Petitioners motions that all scandalous and derogatory com-ments in Petitioners Motion to Strike be stricken. Cyer v. Securities and Exchange Commission, supra; Ginsburg v. S te rn , supra; Tashman v. Com-muni ty Improvement Corp , s u o ra .
Petitioners also wish to point out to this court that it aopears that their ef forts at informal discovery have been resisted by the utility company:
"It is our understanding that this in fo rma tion will be transmittad to legal counsel for the Nuclear Regulatory Commission, Mr. William Paton, in Washington, D.C., and he, in turn , will furnish it to all parties. We understand that you are requesting this information on behalf of Martin H. Hodder, an intervenor-l awyer to the p roceedings. Cur legal counsel has informed yours that f u rth e r-di s c o v e ry requests of this nature, unrelated to Routine 1 and E inqui ries , should procerly be conducted in the proceedings now pending.
-Letter from FPL's Robert E. Uhrig to Robert E. Wrignt ,
August 30, 1970.
_7
Therefo re , Petitioners motion here and now, that they be granted discovery rights to further develop the factual record of this case and clear the air of charges against the integrity of counsel for Petitioners.
After almost five years of handling t 'is case without recomoense, I Martin Harold Hodder, counsel pro se and for Petitioners, have ex-pended many of my possessions and, if it please God, gained perhaps a small degree of atonement.
I have retained, however, my most sacred possession-that is my persoral honor. Since my opponents have now seen fit to assail and seek to deprive me of even that, I can and only do humbly ask this court to review carefully the argument presented and take judicial notice, be it in the record or not of all factual data that I note here, before rendering any decision.
I do not seek to impugn the intrgrity of any brother lawyer and never before have. I regret being a participant in any circumstances, which seemingly would cause a court to have to insinuate itsel f into a personality conflict between opposing counsel .
Dated September 26, 1978
/dbb d g,d '
Martin Harold Hodder .
Counsel pro se and for Peti tioners 1131 NE 86 Street Miami, Fla. 33138 Tel. 10. (305) 751-8706 II MARTIN V. HUTCHINS0M ISLAND NEPA SITE COMPARISON The utility motions Petitioners argument be struck, that "since re pl a cemen t costs would be minimal or non-existant if the plant were re-located to the Martin site, following the rule in Aeschliman (Union of Concerned Scientists), supra, as relied uoan by the utility, no costs of replacement many be considered in a Martin v. Hutchinson Isl and NEPA site comparison; Petitioners submit that the Commission erred in allowing its reviewer John R. Young to .so weightthat cost benefit analysis." -Petitioners Reply Brief to Intervenor (FPL) 7-24-78.
Petitioners concede the utility is technicaliy correct in that the Aeschliman Rule, suora. on sunk costs had not previously been cited in any pleading of the Petitioners at the administrative level. At the administrative level the Petitioners had cross-examined about the Martin site development and argued the obvious superiority of the Martin si te compared to Hutchinson Island. Indeed, the Petitioners have danced all around the Rule in Aeschliman, suora. touching it, brushing it, but never embracing it until the utility opened the door to the issue at page 26, paragraph second of their Brief for Intervenor FPL of June 30, 1978. There they argued:
" Petitioners also seem to suggest that giving economic or environmental weight to the presence and work done on Unit No. 1 involves some imoer-missible attribution of sigqificance to " sunk co s ts ." ID B ri e f , at 14. That suggestion is contrary to the NEPA requirement of realistic consideration of alternatives "as thay exist and are likely to exist." Carolina Environmental Study Grouc v. United States, 166 U.S. Acc.
0.C. 415, 421, 510 F.2d 796, 301 (1975). In Union o f Concerned Scientists . v. AEC, 153 U.S.
aap 0.u. ca, / n. Ji, 4: e.ca avor, ivo- n. 47 (ive4), tne cour; s:a;ec cna reciacement coscs may oe cons 1 cerea 'i f construction of a suostitute racility couia reasonaciy oe expecceo as a conse-ouence or acanconmen;. ' see atso, mescasiman, i/c u.a. A c c . u .u . a; J35, n. 20,547 F.2d at 532 n.20. Here the need for"a base load plant ap-proximately the si:e of St. Lucie Uni: No. 2..",
ID, para. 36, 5 NRC at 1052-53 ; J . Acc . 113a-49a. is uncontested, and it was aporocriate to consider the comoaritive costs of building it elsewhere.
-Briaf for Intervenor Florida Power & Lign: Company June 30,1973 *Emohasis Sucolied.
It should be noted also, as is stated at further length of section IV of thi s b ri e f, that the utility misinterpreted Petitioners position on need as being " uncontested'. It was both proper and appropriate for the Detitioners te respond to this issue as raised, and belatedly acoly the Rule in Aeschliman to the instant case. The utili ty has now had two oppotuni ties , Reply Brief and Motion to Strike , to p resent thei r view on whether sunk costs were properly considered at- St. Lucie and no injustice would f all on any party if the court were to consider the sunk costs within the context of the Aeschliman Rule in reaching thei r decision.
Federal courts have held " Proper judicial administration requi res that e rro r relied upon should be asserted in appellants opening brief.
See Rule 28(a) FRAP. New issues cannot ordinarily
- be raised oy recly b ri e f. " liississippi River Corp . v. FTC 454 F.2d 1083 8th Cir, 1972.
- Emanasis Sucolied.
That court further found "In any event, we find the contention to be without meri t . " (Mississippi, supra. The reasoning for ordinarily requi ring all issues to be cresented at the outset is that it is for-ensically unfair or inequitable to allow an issue to be raised where there is no chance for rebuttal. (See Frederick v. United States 163 F.2d 536, 539 9th Ci r. cert den; 332 US 775 (1947).
Since the reasons for Rule 23 (a) are based on a concept of f air-ness ,in the main , Petitioners would point out to the court t'h a t although tney are embarassed by their belated application of the Aeschliman Rule, supra to their case, that no injustice or unf air outcome could result from the courts consideration of their argument aoplied to the facts herein, and that the issue presented is of sucn sucstantial imco rtance to the full consideration of the issues presented, tnat there is justification for allowing extraordinary consideration of the Aeschliman Rule, supra as applied by Petitioners. There is ample precedent for this outcome by the Court, Greyhound Corp. v. Bl akely :CA. Wash 1958, 262 F.2d 401; Indemnity Insurance Co. of Morth America v. Pioneer Valley Savings Sank, CA. Iowa 1965, 323 F.2d 634 The utility states , conce rning Petitioners argument.
- tne argument, which in any event is contrary to the f acts of the record.... 5/"
-Motion to S tri ke ?a rtion s o f ? e ti tione rs Reply 3 ri e f
- p. 7 by F?L August 15, 1973.
-10
It is the utility's position which is not reflected in the record.
John R. Young, the 3RC Battelle Pacific Northwest Laboratories Techni-cal Team Leader testified that his princioal reason for preferring the St. Lucie site on Hutchinson Island over the Martin site was the 69 million dollars advantage in sunk costs at Hutchinson Island which consisted of extensive back filling, construction of transmission lines, access. roads , laydown areas , warehouses , s to rage and adminis trative buildings, etc. (TR6034}(See also prepared written testimony of Orin Pearson and Clifford Kent p. 4, follows TR 5194)
The extensive backfilling at the St. Lucie site will be treated in a separate category than the other develooment at Hutchinson Island simoly because the reason for its need at the coastal St. Lucie site does not exist at inland sites such as the "artin si te .
The Unit I FES tells us about Hutchinson Island:
"1. Terrestial Hutchinson Island is typical of the offshore sand-bars which rises to about 15 ft. and a swale on the inland side which at the site of the reactor, the widest place on the island extends about a mile westward."
-Uni t 1 FES, p II-13, S ee al s o P a ra. 2. 7.1, p . 2-24 Uni t 2 FES .
At page IV -l the Unit I FES describes the extensive backfilling at the St. Lucie Hutchinson Island site which was a major cart of Sir. Young's 369 million NEPA cost benefit advantage.
"The primary impacts to the environgent havo resul ted from dredging 1,600,000 yd of scoil from the Big Mud Creek raising the ground elevation to the reactor to 18 f t. above mear sea level ."
-St. Lucie Unit I FES p. IV-1.
Examination of the Unit 1 FES explains the necessity of tne expensive placement of nearly 2 million yards of fill at the St. Lucie site:
"During severe storms the water elevation on the ocean side may pile up and any weak spot will afford a chance for the waters to rush througn and cut the island in two."
-Unit 1 FES p. IV -2.
Also see:
"(D) dredging of an access channel f rom the Intra-coastal waterway to the Plant site via Big Mud Creek not only opened the way to barge in heavy ecuionent and succlies, but also provided the fill needed to raise the site acove potential wave overrun levels,"
-Unit 1 FES :. IV 4 Dr. Feh-Fan-Yeh the utility's expert witness confirmed that Huteninson Isla. d was comprised mainly of sand (TR 1957, line 9) and the island was subject to cutting during hurricanes (Dr. Yeh orecared testimony p. 2, lines 1-7 follows TR 1838) although it had been designed
( t h ro u gn filling) to resist such erosion.
Petitioners have previously made the logical point which they reiterate here that at an inland site such as Martin the extensive and costly filling performed at Hutchinson Island would not be needed and hence its hasing been given weight in a NEPA cost benefit analysis by the MRC was error.
Petitioners have also argued the Licensing Board erred when it found at para. 26 cf the I.D.:
"While it is true there has been some envi ro n-mental impact at Martin due to the construction of two fossil units there, there are no facilities built other than access roads and some portion of a cooling pond reservoir (TR 5203)".
-Initial Decission April 19,1977 at o. 21, para. 25.
This finding as based on both the facts on this record and as they exist in the real world is erroneous. The Board went on to find:
"To build St. Lucie 2 at any other site would require the Applicant to construct, at a significant additional cost, facilities which St. Lucie 2 will be able to share because of St. Lucie 1." ( P e a rs o n -Ke n t
- p. 4) -I.D., supra at p. 21 para. 27.
Petitioners have maintained throughout their proceedings many of these shared facilities existed at the Martin site as well . 5ut they had difficulty establishing a record because it was necessary to build their case through cross examination of hos tile FPL witnesses , uno of ten pro fessed lack of knowledge on pertinent issues, such as Kent, Pearson anc Gardner. The NRC Staff witnesses possessed little knowledge on the company's plans for other sites. FPL 's wi tness Pearson testified, there are access roads and "perhaps some portion of a cooling reservoir" at the Martin site (TR 5203), which the Licensing Board relied upon, and a rail line into the Partin site (TR 5205). Finally, on cross examination by Counsel for Petitioners , F:L witness Pearson admitted at TR 5208 he did not know the stage of construction of the cooling pond at the 't artin site. (TR 5203) Witness :ent volunteered that "I tnink it is four o r six months hence we will begin filling the res e rvoi r . " TR 5208, line 9 12-
This testimony given December 1976, imolies that by Acril 19, 1977 when tne Initial Decision was published the cooling pond at the Martin site was complete rather than being a " port 1on" as recited in the I.D. at
- c. 21, pa ra 25.
Regarding transmission lines at the Martin site al though , Mr. Kent professed little knowledge of of the 500 kilovolt transmission corridor at the Martin si te. .$r. P e a rson , howe ve r, testified this transmission circuit would be completed by the time the Martin unit is brought into service. Mr. Reis tells us in his letter of August 8, ~1977 to the Appeal Board that a new accelerated schedule for the Martin units will place Martin 1 in service by mid-1980 and Martin 2 to be in service in 1981.
(H.F. Reis to Appeal Board Chairman Farrar, Augus t 8,1978, Attachment F)
The previous in service dates had been no later than 1984 fo r both units ,
so the I.D. erred by its failure to note the transmission lines as an additional shared facility in place at Martin site that would not have to be duplicated, since in any event such lines would have been completed by the in service date for St. Lucia 2.
Indeed, Mr. Pearson finally conceded at TR 5209 lines 2-7 that nuclear units at multi un:t sites such as Martin, DeSoto and South Dade would share numerous existing facilities such as transmission lines which are in place, access roads, lay down areas , warehouses , storage and ad-ministrative buildings, a deep water slip and/or rail road facilities and so fo rth. (See TR 5209 Pearson's affirmative response to question by counsel for Intervenors , line 8.)
Petitioners also relied on testimony in the record of Fpl vice pre-sident R.J. Gardner to the effect that the Martin site was under develoo-ment for two new oil-fired units with many shared f acilities avail able such as transmission lines , adminis trative buil dings , cooling pond, roads and other development. Mr. Gardners testimony generally from TP 6312-6313, though designed to show why the utility did not consider Martin an alternative to St. Lucie and hostile as to petitioners did imply the existance of shared f acilities such as the transmission lines, access road
- and cooling cond. (See R. J. Gardner testimony generally TR5305)
- It should be noted that the Licensing Board struck so much a# ti r . -areners testimony as intanded to demonstrate that the Martin site was not a suitaole alternative to the St.Lucie site in 1972 and 1973 as irrelavent to issues in this proceeding TR 6337.
On cross examinat' ion , Mr. Gardner confi rmed the Martin site was designed to accomodate future nuclear units (TR 6341) in addition to the twin oiT firec units initia'ly clanned, and that the size of the cooling pond was increased from 4000 acres to 7000 acres to accomodate these additional units (See Intervencrs Exhibits following TR 6357, Letter
'tarch 17, 1972 of Mid Valley Engineering, F?L interoffice memo-Corres-pondence of Oct. 7, 19 71 W . L. Williams and comment of R.J. Gardner).
(See also TR 6356)
The peti,tioners have painstakingly cited the record to show that shared f ac i'ities do exist at the Martin site that do not have to be duplicatec,. contrary to the arguments of counsel for the utili ty that the rec.ord does not so reflect.
However, the best and most current evidence of the validity of cetitioners arguments is found in the real world of new pacer announce-ments. An article in the Miami Herald of September 13, 1978 clearly and concisely shows that the Florida Power and Light Company now embraces the petitioners thesis that shared f acilities exist at the Martin site
'that constitute a significant economic advantage over other sites:
"And Tuesday the small coastal county north of '
Palm Beach County was selected as the site for FPL 's first two 700-megawatt coal-fired power plants. When they are completed, tne six plants in the Martin County area will generate 4,350 megawatts of power, one third of the total capacity of its owner, Florida Power and Light Co. The site location, near Indiantown , was announced by FPL officials at the Martin County Commission meeting.
.10ti fying Co un ty o f fi ci al s wa s the fi rs t stec in a lengthy process to get approval for the newalants.
Martin County was chosen af ter a detailed seven-month study that started with 270 cossible sites in 25 counties , :PL District Manager Gene L. Van-Curen said. The study showed that the company's existing 9,50L-acre site near incian;own was One Cneapes; 51;e al;n ;ne sea 5; uncesi rac i e en vi ron-men;at lapaC;. ne 5a10. vSing a soCa;1on ;na; aireacy nad ;ne iana ceveioCea w1;n an exts:1ng C0ot ing adAe anc ;ran50155lon 6ines W1st save One ComCany mit ilons or doitars, crL orricial tar;In Smith 5aiG. voncern acou; cos510iy Narmidi envi ron-men;ai 10,0 a C ; on !ne soCa; ion 15 nega;eO ceCause GT ;ne crevious Oeveio0 man;. .; woutC cos; 04:
- 0 Jav mi6 ilon ;o Guo6 1 Cite One Cocalng 73Clii;1es y N 1
- 5; den na r;1 n , Omi ;n said, as C r 3 n sm 15 51 o
Ine5 C05; 20 00 ai mi i;on Tor every ;Wo ml4es'.'*
-et i am i auraid, ..e Gn e S ca y , ce0 330er te, 17/: . 3.I2 1 A::cament H. *Emohasis Sucolied.
-l a-
III A THIRD ST. LUCIE MUCLEAR UNIT The Utility, Florida Power and Light Comoany, has coposed Petitioners arguments that there is a possibility that the utility may seek to construct a third nuclear unit at the St. Lucie site on Hutchinson Island at some future time and misinterpreted that argument to constitute an assertion:
"that , as a matter of f act FPL is engaged in planning to build a third nuclear unit on Hutchinson Island."
-Motion to Strike Portions of Petitioners Reply Brief by FPL p. 8, Aug. 16, 1978.
This is both inaccurate and unfair to petitioners.
While the Petitioners believe that there is evidence in this record indicating the possibility of a third nuclear unit being or having been considered for St. Lucie, they cannot no r have they suggested that the company has cresent plans fo r a thi rd nuclet.- unit. This utility company is well known for its alternating and unpredictable acceleration and deferral of generating units both fossil and nuclear. For examole (See cage of this brief infra) concerning South Dade and De Soto deferral).
While no present plans for such a nuclear unit exist acco rding to "r.
E. L. Bivans most recent affidavit of August 11, 1978.
Petitioners, nevertheless , submit that based on the hi s to ry o f pe r-formance of this utility company and their inclination to withhold i n fo rm a ti o n for proprietary reasons , a third St. Lucie is not outside the realm of possibility and must be given consideration in thei r argu-ments on incremental rule making and failure to comoly with NEPA in selecting the Hutchinson Island site. Petitioners still believe a very strong case based on this record can ba made for the recognition of tne fact that the utility might seek to construct a thi rd St. Lucie Unit and they argue that this recognition is most material and relavent for this courts consideration in this case.
In January,1979 the Florida Power and Light Company acclied to the Atomic Energy Commission for a licenia to construct a nuclear power plant at the c resent St. Lucie sita on Hutchinson Island to be known as tne Hutchinson Isl and Nuclear Power Plant.-FES Unit 1, o I-1, NRC Occket No.50-33E.
When the Hutchinson Island Plant Environmental Repo rt was fi rs t issued on May 20, 1971 it orginally addressed two nuclear units. How-ever, the utility, FPL, tabled the second nuclear unit shortly af ter submission of the Hutchinson Island Envi ronmental Recort. The re fo re ,
the subsequent AEC Final En vi ro nme n ta l Statement (FES) June,1973 fo r-mally addressed only one plant. (See Applicants Answers to Intervenors Interrogatories to Applicant Set no. 2 #1, Aug. 23,1976.) The fi rst nuclear unit was renamed St. Lucie Nuclear Plant- Unit No.1, NRC Docket No. 50-335. A construction permit for Unit I had been issued CPPR-74, on July 1, 1970 FES Unit 1, P. I-1.
Thereafter, on May 14, 1973 the utility filed an Application for litenses to construct a second nuclear unit on Hutchinson Island, now renamed the St. Lucie Plant Unit No. 2. One of the first distinct in-dications of the possibility of a third or more nuclear units acpears in that Application:
"The initial license requested power levels are 2570 Mwt, corresponding to 851 Mwe gross and 810 Mwe net. This project will be located on Hutchinson Island on the east coast cf Fl o ri da . The croject and oossible future additions" will occupy approximately 100 acres of tne si te; tne remainder will be set aside for a recreational and conservation development program."
-Florida Power and Light Company St. Lucie Plant Unit No. 2 Application for Licenses, May 14, 1973 by James Conghlin, V.P., FPL AEC Docket No. 50-389. *Emchasis Sucolied.
The future additions referred to can only be in addi tion to the al-ready acknowledged Uni t 1 and Uni t 2.
Although, during early planning stages the company hac referred to the Hutchinson Island site as a 2 unit site or " twin nuclear pcwer plants * ( Application for Licenses , supra at p. 5) by the time remandec alternate site hearings were held before the Atomic Safety and Licens-ing Board on the Intervenors (below) Al cernate site Contention 1.5(b),
in December,1976, the company had now begun referring to the St.
Lucie site on Hutchinson Island as a " multi uni t si te'. K e .i t and Pearson confirmed Martin, Desoto and South Cade wer2 also multi unit sites:
"To my knowledge they are considared mul ti unit sites,"
-Kent TR 5208, line 21 also see Pearson TR 5209, line 1.
'Comoa re wi tn E.L. Siv ans des cria tion o f F?L 's Manatee Pl ant as a two uni t si te in his August 11, 19 73 A ff1J3vit accomoanying ?L's Motion to Strike as Attachment C, "The foregoing description of advantages of constructing St. Lucie 2 at the Hutchinson Island site confirms its original selection as a mul ti-unit site *, and exclains why FPL anc many otner utli t ties seek to devglop any given site for multiole units."
-Joint Testimony of Orin F. P e a rs o n and Cli f fo rd S . Kent Relating to Alternate Sites for St. Lucie Unit No. 2 (Contention 1.6(b) Filed with the ASLS Nov. 24, 1976 by Florida Power and Light Co. *Emohasis Sucolied. 7a giga This change in terminology by the utility f rom "two uni t" o r " twin uni ts "
to " multiple units" was then and still .is , regarded by Petitioners as the proverbial " handwriting on the wall" and is a further indication that the utility might be planning mo re than two St. Lucie nuclear units. It is common knowledge that in the nuclear power plant siting jargon a " multi-unit site" is one where there are more than two nuclear units. Websters New Collegiate Dictionary defines the prefix multi as follows:
"Mul ti L. Multus a combining form meaning many, Specif.:(a) consisting o f, containing, or having many as in multicellular, multichase (b) manytimes over; in many respects ; as in mul ti millionaire (c) a f ten res trictedly, more th an two* (d) af fect-ing many parts........... .....
-Websters New Collegiate Dictionary based on Websters New In t e rn a ti o n al Dictionary Second Edition G&C Merri am Co .
Springfield, Mass , USA copyring 1976 *Emohasis Sucolied.
Clearly " multi" would not be a proper designation for a plant site where development is to be limited to only two units and yet FPL executives Kent and Pearson have described St. Lucie as a "mul ti unit si te" as recently as December, 1976.
Further insight is gained by examination of the utility's descrio-cion of their DeSoto and South Dade sites , which have been referred to by the utility as "nalti uni t si tes ."
The utility described the South Oade multi-unit site as follows:
" Current plans for develoament of the site include four electric generating units , each with a capacit/ of 1140 megawatts (MW), together with acess to roads , transmis sion f acili ties ,
water wells and other accurtenant structures.
Initially const ructea will be two nuclear units to begin operation i r, the soring of 1982 and 1986. Total cost of each unit is estimated to exceed 51 billion (1954 do l l a rs )
The remaining two units are scheduled for operation in 1988'and 1990. The South Dade site is believed by Florida Power and Light Comoany to have the ultimate capacity o f suoporting about 10,000 mw of generating capacity, or eight electric generating units."
-South Dade Project Summary P,eport on Site Cevelopment Florida Power and light Company, 1976 Concerning the De Soto site, a most detailed description over some 25 pages is given in the Florida Power and Light Comoany Ten Year Power Plant Site Plan 1976-1985, of April 1, 1976:
"2. Site Cacability The Florida Power and Light Comoany, De Soto Site, is presently believed to be cacable of supcorting. an ultimate generation capacity of 12,000 mw (e).
"3. Tyce Nuclear Generation is procosed for the site."
-Florida Power and Light Company Ten Year Power Plant Site Pl an 1976-1985, Ap ril 1, 1976.
In the suceeding years, Ten Year Site plan filed on April 1,1977 the utility changed the status of both the South Dade and De Soto plants:
"Both the South Dade and De Soto sites were identified as preferred sites in the company's 1976 Ten Year Power Plant Site Plan. Due to the events which have transpired since the last site plan, both sites have been re-cl assi fied as " potential sites" in accordance with forms and instructions of the Division of State Planning.
These are sites in which the Florida Power and Licht Co.
has cons 1 cered and is consi ce r1nc for tne oosslale io-cation of a future oower ciant, out for wnic.n :ne comoany has no inten:1on at :nis time to construct a clan: or se[<*
ce rti fi ca:1 on for sucn a pian .'
-Fl o ri da Powe r and Ligh t Como any Ten Y e a r P o'.ve r :l an t Site Pl an 1977-1986 April 1,1977 P. 74 submittec to la.
Dept. of Administration, Diviston of State Planning by Mr. E.L. Si vans V.P . FPL *Emchasis Sucolied.
The emphasized language submitted by Mr. Sivans in the last sentence of the quoted portion is of special significance because it i s ve ry similar to Mr. Sivans ASL3 hearing testimony and the last sentence of his a f fi davi t of August 11, 1973 contained as attachment C in the FDL Motion to Strike.
In his af fidavit Mr. Sivans wrote:
" Florida Power and Light Company has no plans for a third unit nuclear or fossil, at the 5t. Lucie site."
-E. L . Sivans , V.P . , FPL Affi davi t o f Aug . 11, 1978 as Attachment C with utility's Mo tion to Strike Portions of Peti tione rs Reply B rief filed Aug . 15, 1978 Petitioners have only pointed out to this court t h a t .'i r . Sivans tes tified' at hea rings in December 1976:
"A. (Witness Bivans) Mr. Hodder, at the cresent time
- we have no plans to build St. Lucie Unt: 3."
-E.L. Bivans, V.P. FPL Dec. 4, 1976 *Emohasis Sucolied.
This testimon/ of Mr. Sivans is not just a slio of the tongue as counsel for FPL argues and it does not negate the future possibility o f a thi rd St. Lucie unit. It denies only the existance of a cresent planning effort fo r i t. Petitioners have not indicated they disbelieve Mr. Bivans and submit it was improper for the utili ty's counsel to characteri:e this portion of their pleading as being "f alse" o r
' offensive to the integrity of FPL. (Motion to Strike by F?L at n. 9 Aug. 16',1978.)
The FPL's Motion to Strike further attempts to make cetitioners arguments , that the presence of a third 240 Kv transmission ci rcui t in the St. Lucie transmission circuit may cortend a third St. Lucie unit, look foolish by citing the Sivans affidavit describing the third transmission circuit as merely "a spare". While this may be the case presently, nothing bars the utility f rom future utili:ation of that " spare". Nor is a review of the entire record limited to consi-deration of only the three 2 0 Ky transmis sion ci rcuits since the Uni: 1 FES which treats this develocment in detail tells us that twice as much land right of way as is utili:ed by the three 220 Kv S t. Lucie ci rcui ts ,
has been acquired fo r " future exoansion" o f the St. Lucie transmission circuit:
"B. Transmission Lines The Applicant currently plans to cons truct transmission lines from the St. Lucie Pl ant traversing Indian River and joinin; 4 xi s ti ng no r*.h -s o uth trun ks a t the St. Lucie substation 12 1/2 miles wes: # rem tne a ant.
Fo r the overl anc co rtion o f the link ne a rl y 750 acres of rian:-of-way nave oeen a c c u i re c .v 1 :n n a l " :o ce used # 1r tnree 240 .< v c: rcu1:s a t annec fo r :ne ;iant anc :ne otaer nait aei c or future emoansion ' aca of :ne :a ra a 240 Kv ci rcul s nas :ne cacact:y c: carry :n? e n ti re l o a c .
-St. Lucie Unit 1 FES p !!!-5 'Emchasis Sutclied.
Such " future expansion" could only be additional St. Lucie generating units. It would appear as though the St. Lucie site on - -
Hutchinson Island was being planned as a multi unit site as early as 1970. The Army Corps of Engireers Permit 70-751 for transmission lines was issued Jan 14, 1971. Also, the State of Florida Trustees Internal Improvement Fund issued Permit 253.03 (7)-2307 to install transmission lines across the Indian River November 13, 1970. ( from S t. Lucie Unit 1 FES p. I-4.)
Finally, the Petitioners have found what may be an actual written reference to a third St. Lucie Muclear Unit among the documents and papers filed by the utility company in the Public Document Rocm of the Indi an River Community College. It is contained on a blueorint o' a Switchyard Elevation Sheet. It reads in pertinent part:
Detail #3 "This part of detail (in di ca ti ng ) is for main trans fo rmer tie lina, Hardware for" St. .ucie Mes. 1,2 and 3 a re by o the rs . "
-F rom Orawing 48770-G 122 Switchyard El evation , Sealed bv William 'dallace III Registered ?rofessional Engineer, State of Florida Certification 16391 dated June 17, 1970.
This drawings upper right hand corner and lower right hand corner are provided as attachments D and E respectively.
Petitioners, not wishing to mislead this court must state they are uncertain as to the technical significance of this document and its reference to St. Lucie No. 3 and hence, do not base their argument heavily upon this~ document since : hey lack the technical knowledge to croperly interpret it.
The following paragrach appears in identical form in each of the 1975,1975 and 1977 respectively FPL Ten Year ?ower Plant Site ?lans file. with the State of Florida:
"5. Generation Exoansion at Existina Sites.
Existing Fiorlaa Power and Lignt Comoany sites have some potential for expansion. The ootential will v a ry from site to site kepending on available land area, potential for cooling sys tem develocment, character of the surrounding deveicoments , access to fuel sucaly and transmission considerations."
"FPL Ten Year Power Plan Si ta Pl ans .197 5 at c. 59, 1975 at p. 151, 1977 at c. 102, suora.
Th ro ughou t the Unit 1 FES there are recurring references to " additional pl ants" at the St. Lucie site rather than "an additional plant" "A two ci rcui t system would be inadequate for additional clants* on the site"
-FES Unit 1, p XI-21.
Also see:
" Future clants* on this site could necessitate increasing tne number of towers."
-FES Unit 1 XI-19 *Emohasi s Sucol ied .
Or consider:
"Approximately 830 acres of the site will be retained in a natural state unless additional clants* are built on the site."
--Unit 1 FES p. II-5 *Emohasis Sucolied.
Or:
".....sebject to disturbance only 'f other cower clants*
are built. -Unit 1 FES II-l *Emohasis Sucolied.
The utility has motioned to strike the petitioners attemot to show that the construction of the three 240 Kv transmission ci rcuitssized*
to accomodate possible future plant additions at the St. Lucie plant was achieved prior to the issuance of a construction permit for Unit 2 and outside the scope of any ,*iEpA review pertaining to a second or other St. Lucie Unit.
It is interesting'to note that the Staff apoears to have agreed with petitioners reasoning in this respect in the Unit 1 FES, where it was written:
"A two ci rcuit system would be inadequate for additional plants or the site. By installing an additional ci rcui t at this time to provide the cacacity fo r a second power plant, the impact on Indian River would be minimized. However, sucn action would effectively preclude the evaluation of alternatives for transmission lines for such a plant. Cons i de rin g St. Lucie Unit I alone, the Staff concludes that a two circuit overhead transmission system is preferable to the proposed three circuit design." -Unit 1 FES ist para p. XI-2 The Staff concluded:
"In the Staff's opinion the crincipal justi#ication for third circuit is to provide cacacity fo an addi-tional unit at the cresent site. Conside ring St. Lucie Unit I alone, and balancing these cos ts and benefits, the Staff concl udes a two-ci rcui t overhead transmission system is oreferable to the proposed three circuit system."
-Unit 1 FES p. XI-27.
'It snoutc ce notec tnat the utility was also considering a four 220 Kv circu :
underground river crossing for the St. Lucie transmis sion/ci rcuit. See One Unit 1 FES o 'll-17 Unde rg ro und Indi an Ri ver cro s sing .
The Unit 2 FES tells us:
"3.8 Transmission Facilities The appitcant instailec a tnree-circuit, 240 kV transmission system for Unit No.1. Each ci rcui t has the capacity to carry the full output of I unit.
Therefore, no additional circuits will be required for Unit 2. With both units operating, there will still be one spara circuit. -Unit 2 FES P 3-36.
This means that the utility had built the three transmission circuits prior to May,1974 and outside theNEPA review for Unit 2.
For these reasons the petitioners have argued transmission lines in-place should have been given no weight in the subsequent NEPA cost-benefit analysis performed by the NRC Staff.
The utility confuses the issue when they argue that Peti tioners reference to a third St. Lucie Nuclear Unit has not been previously raised by the Petitioners and hence should be struck. Infact, the third unit concept has been mentioned at length at the administrative l ev el by raising it as an exception to the Appeal Board and in Peti-tioners Intervenors Petition fo r Review to the Commission at p . 5 on October 31, 1977. But more importantly, this recitation concerning a po s s'i bl e thi rd S t. Lucie unit is one of facts for the Court to consider.
It is not a legal argument per se, and hence the issue of whether or not it was previously raised should be rendered moot. The possibility of pl anning for additional St. Lucie units is a fact that must be taken into consideration by this Court just as it wculd consider and other f actual material before it. While legal arguments may be stricken, factual info rmation canno t be .
The utilities citation of and reliance uoan such ca:es as Dyer v.
5EC, supra, 291 F.2d at 781-82; Ginsburg v. Stern, supra, 295 F.2d at 698; and Tashman v. Community Improvement Co rp.they223 F.2d at 97 is simply not in point. Each of the cases to extent,/eIW Te discerned (in most if not all the briefs were stricken from the court record) there appear to have been bald assartions of "f alse and scandalous matter therein contained." -Ginsburg v. Stern, supra. No such thing has occured in this argument of Petitioners and we will not di g ni fy tne charge by further commenc.
IV NEED CONSIDERATIONS The utility suggests at page 12 of their 'totion to Strike that "for the fi rst time" Petitioners contest need calculations of the utility and motions to strike this portion of petitioners brief stating, "The argument comes too late." The Petitioners have "ever waivedtheir argument on need ror power or their position that the utility has grossly overstated need. Need considerations are part and parcel of alternative site consideration and the NRC Licensing Board recognized this when they granted Petitioners (Intervenors below) Motion to Reconsider Contention 1.3 Need fo r Power and Conservation o_f Enerov, July 28, 1976, during the renanded alternate site heirings held during December of 1976 on (Int ervenors below) Contention 1.6(b) .
Need for ~1eer has been an imoortant element of administrative and judicial decisions on Petitioners previous motions for stay. It cannot be ignored at this phase of judicial review. (See also Supple-ment to Inte rveno rs .'to tion to Reconsider Cen cca tion 1.3 Need for Power and Conservation of Energy, August 9,1976; Applicant's (FPL) Resoonse to Intervenors Motion to Reconsider Contention 1.3 Need for Power and Conservation of Energy Aucust 16, 1976; and Intervenors Second Supple-ment to the Motion to Reconsider Contention 1.3 Need for Power and Conservation of Energy, October 8,1976 and Aoplicant's (FPL) Resconse to Intervenors Second Supplement to the Motion to Reconsider Contention 1.3 Need for Power and Conservation of Energy, October 15, 1976; Intervenors Interrogatories to Applicant Set No. 3 and Resconses..)
In their second supolemental motion Petitioners (Intervenors below) stated their position on the Need for Power issue and that position remains unchanged to this date:
"The Intervenors have never challenged the prooosition that at some unspecified time in the future the additional base load generating capacity represented by St. Lucie Unit No. 2 will be needed. The question this Board must determine is, when is the earlies t date that this pl ant must be built. That is the issue that must be addressed if fair consideration is to be given to utilization of oossible alterna-tive sites for St. Lucie Unit No. 2......"
23-
Further on page 7 petitioners stated:
"That 1 ssue is : whether a nuclear plant should be built on Hutchinson Island or whether some other more suitable alter-native site is available. To f airly address this question, the Board must know accurate-ly within what time f rame reserve margin requirements in the FPL System must be met, in order to fully consider utilization of alternative sites."
-Intervenors second supplement to the Motion to Reconsider Contention 1.3 Need for Power and Conser-vation of Energy, October 8,1976.
When Petitioners filed their Intervenors Petition fo r Review before the U.S. Nuclear Regulatory Commission on October 31, 1977 pursuant to 10 CFR Part 2.786(b), their petition addressed in the very fi rs t paragraph that the Commission review "those findings of the Atomic Safety and Licensing Appeal Board in i ts decision entitled ALAS-435 dated October 7,1977 and served October 11, 1977 to the ex-tent that it deals with the alternative site review mandsted by tne National Environmental Policy Act of 1969 42 USC 4321 et seg, 1970 NEPA and its corollary issues includina but not limited to need fo r oower or conservation of enercy*and demographic considerations all as treated in section A of .ALAB." -Intervenors Petition fo r Revi ew, October 31, 1977. *Emohasis Sucolied.
The Petitioners did not address the issues including need for power in great depth, because by thei r understanding of the Commission's Rules of Practice at 10 CFR Part 2.736(b) as revised Ac ril 27, 1977 it was not their cetition but the entire record including earlier pleadings submitted previously by them that was subject to Ccmmission Review Petitioners take the position that need for power projections are an intrinsic consideration in any alternative sites analysis as they hav been in striking the NEPA balance in the instant case.
Althcugh, ?etitioners Brief on the Ini ti al Decision did not address Need for Power, it did state as a seventh issue:
"7 The seventh issue cresented to the Court cy Intervenors (Peti tioners) is: To what extent may a federal regulatory agency, here tne AEC/"RC Regul atory Staf f allow an Acolicant utility to control tne outcome o f the Envi ronmental S i ti n g Review by controlling the inout of data to One reculatory acency where that reculatorv acency relies mainly on data sucolied by tne acclicant utility."
(imon a s i s c ri ci na t ;
. eed fo r power based on this issue, as stated, was not fully develooed in the Petitioners Main Orief due to the press of time, si:e limitations on the brief and lack of counsel's excerience in pleading such a complex issue.
The utility company is in exclusive control of need projections as they relate to plant construction. The utility enjoying this ex-clusive control of need projections has constantly overstated need calculations and manipulated them through alternate deferral and ac-celeration of new plant schedules, and by shutting down existing plants.
The end result is that the utility has consistantly cortrayed an atmos-pnere of crisis to the .1uclear Regulatory Commission wnich has never materialized virtually threatening the lights will go out in Florida unless their plant expansion plans are allowed to go on unmolested.
This ci rcumstance prompted the Honorable Stichael C. Farrar to rem ark at oral' argument on June 8, 1978:
"Chai rman Fa rrar: Let me follow uo on Mr. Sal: man's point.
I have been sitting here four and half years and the story of the boy who cried wolf comes to mind.
You needed the L'.lA descerately two years ago and go t i r. , but then you couldn 't use it because you didn't have the state certificate. Then you told the Court of Appeals you haa to go ahead and they didn't let you go ahead. At each stage we are told tne lights will go out if there is any further delay but they never seeu to.
This argument-I dont want to say falls on dea f ears -
but I begin to be more skeptical of it than I might have been several yea rs ago ."
-The Honorable Michael C. Farrar, Chairman Acceal Board oral argument, June 8,1977, Sethes da , Md. at TR 79.
The record is voluminous on the alternate accelleration and de-ferral of plants in the FpL system. A recent examole is the acceleration of the Martin oil fired plants as is evidenced b the letter o f Mr.
Harold Reis to the Appeal Bo a rd Chai rman o f Aug us 1977 and inciuced cress release ( Attachment F)
An examole of :ne misleading ascects of the company's need cal-culation may be seen by examination of part 9.1.2.a o f thei r En vi ron-mental Recort where the Utility committed not to retire any of its presently existing units through 1982:
"9.1.2.2 Ucdating Existina Units or Delaying Scheduled Retirements Fiorloa rower and Lignt Company does not plan to reti re any of its presently existing units through 1982."
-FPL Envi ronmental Report Vol 2 cara 9.1.2.4 p 9.1-3 If wecompare that statement wi th what was actually done as s tated in the 1975 Ten Year Power Plant site, we see that the Miami Generating Plant is retired in January,1976 (FPL State of Florida Power Plant Siting Act 1975-1984 DSP Form 1 A Sheet 1 of 2 follows page 18.) and by further examination of the 1977 Ten Year Site plan, we see tnat seven (7) fossil units have been placed on extended cold standbys:
"Since the site plan of Aoril 1,19 75 S t . Lucie Unit 1 and Manatee Unit I have been olaced in comme rci al operation and seven (7) fossil units have been placed on extended cold standby status."
-FPL Ten Year Power Plant Site olan 1977-1986 Acril 1,1977, page 66. Al so testimony of E.L. Sivans p.20, lines 12,13 follows TR 4894 On page 68 of that document the units are identified, Cutler Units A ,5, and 6, Riviera Units 1 and 2, and Palatka Units 1 and 2 (a83Mw).
Need projections presented by the utility tnroughout the St. Lucie 2 hearings have consistently. po rtrayed an atmosphere of urgency even thougn the utility has actually exoerienced lower growth rates of kilo-watt hour sales than those they have projected over the same ceriods.
(31 vans TR 1965, 4966) For the foregoing reasons , Petitioners do not concede it was improper for them to address need in their reoly brief.
\ ~~
, . N '4 4 'b cGba W.g y UNITED STATES COURT OF APDEALS .
S FOR THE DISTRICT OF COLUMBIA CIRCUIT d VM*
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- 'ARTIN HAROLD H000ER, et al., ) A'8
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Petitioners, )
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U.S. NUCLEAR REGULATORY COMMISSIGN, e: al . , Nos. 76-l709, Respondents, )
73,3349 FLORIDA POWER & LIGHT COMPANY )
In te rveno r.
)
CERTIFICATE OF SERVICE I hereby, certify that copies o f the " Motion for Leave to file Late Petitioners Response to Intarvenors Motion to Strike Portions of Petitioners Reply 3rief" and " Petitioners Respense to Intervenors Motion to Strike Portions of Petitioners Reply Brief". have been served on the following by Deposit in the U.S. Mail on the 26 th. day of Seatemaer, 1978:
Stephen F. Eilperin , Esq. Harold F. Reis , Esq.
Solicitor Lowenstein, Newman, Reis & Axelrad U .S . Nucl ear Regul ato ry Commi ssion 1025 Connecticut Avenue, NU Washington, D.C. 20555 Washington, D.C. 20036 James W. Moorman, Esq. Norman A. Coll, Esc.
Assistant Attorney General Steel Hector & Davis Department of Justice 1400 S.E. First ;iational Bank Sidg.
Washington, D.C. 20530 Miami, Fl a . 33131 Attorneys for respondent A t to rney s f o r In te r.ve no r
( , / -
- W gN ' k Martin Harold Hodder Counsel pro se anc for Petitioners 1131 .'l . E . 36 Stree:
Miami, F1 a . 33133 Tel. No. (305) 751-8705 CHRONOLOGY OF EVENTS AT ST. LUCIE 2 Attachment A.
Fe b ru a ry 23, 1975 The Atomic Safety and Licensing Board (Licensing Board) issued a Partial Initial Decision (PID) autho rizing issuance of a Limited work Authorization to Flo rida Power and Light Co.
(FPL) to conduct certain limited below grade construction activities prior to issuance of a construction permit. 1 NRC 101, as supplemented 1 NRC 463, ( Ap ril 25, 1975)
Aarch 17,1975 Limited Work Authorization #
. was issued to FDL to construct certain limited below grade construction activity on St. Lucie 2. Pursuant to 10 CFR Part 5 0.10 ( e ) ^
~
Pititioners apoealed the PID to the NRC Apoeal Board.
June 29, 1976 The ?!RC Appeal 3 card affirmed in cart and reversed the part the PID of the NRC find-ing that the NRC Staff had failed to adequately consider alternative sites for the prooosed St. Lucie 2 ALAS-335, 3NRC 380. Pending completion of the Acceal the Apoeal Board lef t the LWA in e f fect wi th one member dissanting. ,
August 2, 1976 Petitioners brought thei r appeal , Case No.
76-1709 to the U.S. Court of Appeal , District of Columbia Circuit.
August 1976 Petitioners filed " Motion fo r Summary Q ev e rs al and Injunctive or 0:ner Relief.'
August 23, 1976 I n te rveno r , FPL, filed "Gooosition to Motion fo r Summa ry R ev e rs a i anc Infunctive o r Otner Re lie f. ' s uopo r:aa oy 50. Lucle 2 Projec General Man age r R. A. DeLorenzo and defining his scope of LWA activities as being below grade.
October 21, 1976 The United States Court of Appeals for the District of Columbia Circuit issued a Stay in Case No. 76-1706 staying the LWA cending completion of croceedings on remand and di rected tnat the Aopeal be held in aceyance until remanded alternative si te for St. Lucie Unit 2 hearings are comoleted before tne Licensing Boarc.
J an ua ry 17, 1977 Hearings comoleted before the Licensing Board, i.
April 19, 1977 - - The Licensing Board issued an Initial Decision (IO) autho ri:ing is suance of a Construction Permit, 5, NRC 1038, for St.
Lucie 2.
Aoril 27, 1977 Petitioners file Motion for Stay with the NRC Licensing Boaro.
Ap ril 29,1977 Date of Af fidavit of FPL St. Lucie 2 Project General Manager W. D. De rri cks o n i f per-mitted "during the first six months the work to be initially undertaken will consist of that described in the LWA".
May 2, 1977 FPL fil es "Resc'onse in Ocoosi tion to Motion fo r S tay Order" befo re tne Li censing Soard and. co-fi l es the W.O . Derri ckson Affidavit o f 4-29-77.
May 2, 1977 The 3RC issued a Construction Permit fo r S t. Lucie Unit 2.
May 5, 1977 FPL files "Intervenors resconse in Occosition to Motion for Court to in fo rce O rce r
May ll, 1977 Licensing Board denies Petitioners Motion fo r S tay o f 9-2 7.-77 relyi ng a t p. 2 upon afficay1t of utility's project general manager (W.D. Derrickson) that "during the first six months the work to be initially undertaken will be that described in the LWA".
(below grade activity. Peti tioners filed motion before U.S. Court of Appeals D.C.
Circuit " Motion to Enforce this Courts O rde r of October Zi, 1976,"
May 12,1977 U.S . Court of Apoeal s 0.C . .Ci r. ,no ting re-manded proceedings were completed and that Petitioners had not exhausted his ad-ministrative remedies in challengihg the April 19, 1977 I.O. dissolved the stay of the LWA , dismissed the motion as moot, and ordered that 75-1709 no longer be neid in abeyance.
May 13,19 77 Petitioners fil e 'Mo tion for Stay D an di n:
Review" befo re O.C. Co ur o- Acceai s .
fi.
May 23, 1977 Peti tione rs file "Inte rvenors Mo tion f o r S t'a y cendino Acceal and motion for Oral Arcumenet w1:n :ne 0.5. .inG sppeai scarc.
May 23,1977 Inte rveno r, FPL files "Intervenors Resconse in Occasition to De ti tione rs Motion fo r stay Pending Rev1ew" wi tn Order of tne Licensing Boarc of May il, 1977 as an attachment (Licensing Soard Orde r" states reliance o n a f fi davit of Project General Manager describing LWA activities Intervenors motion also incorporates by reference affidavit of W.D.
Derrickson filed May 6,1977 with the Court May 31,19 77 ALAB 404 order sets oral argument.on Detitioners Motions for June 8,1977 in Bethesda, Md.
June 1,19 77 Peti tioners Motion for Stay denied by the U.S. Ct. o f Appeal s D.C. Ci rcui t ac c e a ri n g that Petitioner had not exhausted his ad-ministrative remedies.
J une 2,1977 FPL files Occasi tion to Motion for Stay before tn NRC Apoeal B o a r d..
J une 8,1977 Appeal Board holds oral argument in Bethesda,
- Md. on " Motion for Stay". Utility argues work effort over the next six months involves
" completing the LWA" reserves the occortunity to send corrections to all the carties if that i s wrong" with FPL pecole cresent in the heari ng room. (See TR 75 of hearing.)
June 23, 1977 ALAB 415 Petitione rs Mo tion for Stay denied based upon the record and the Acceal 30ards understanding of the nature and amount of work to be comoleted.
August 2-5, 1977 FPL 's Engineering Jeo t, told NRC's Inscec:fon and Enforcement Division Inspecto r of their intent to use the"slipform" method of concrete placement at St. Lucie 2. See letter W.D. Paton OELD, NRC 9-5-88 to M.H. Hodder.
Sectember 13,16, 1977 NRC inspector saw slipforms (not in use) at St. Lucie 2 site. S ee l e tte r N . D'. D a to n O ELD ,
NRC 9-5-79 to M.u. Hodder.
Novemoer 3-il, 1977 Containment shield wall fo r St. Lucie 2 went above crade. Letter o ston to Hodder, suora. 9-5-73.
iii.
December 7,1977 Newspaper, Miami Review and Daily Record of Dec. 7, 1977 announces innovative const-
~
ruction of St. Lucie 2 containment shield wall accomplishing in 16 days a no rmal la month ef fo rt. (See A'fichm6nt-H. )
Mid-Late January, 1978 Petitioners counsel receives a cocy of Miami Review of Dec. 7,1977 and learns for the first time of the completad erection of the containement shiel d wall .
January 26, 1978 Counsel for Petitioners becomes ill and motions for an extention of time until Feb. 15, 1978 to file Brief on Case 76-1709.
iv.
"' UNITED STATES
, . NUCLsAA REGULA CRY COMMisslCN i D . '. : WASHINGTON. 3. O. 20555
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.a c'PD, 94 7 a Cocket No. 50-389 Af
(
.\/ h f'f: A Martin Harold Hodder, Esq. h,s p"y/ M 1131 N.E. 86th Street / pi * "qg f
Miami, Florida 33138
Dear Mr. Hodder:
You recently requested that I obtain infomation for you concerning construction of the two St. Lucie nuclear facilities. Because you st.:.ted you needed the information imediately, I agreed :o answer several brief questions over the phone but suggested that any additional information be sought on a more formal basis.
This is the information I read to you by telephone on Thursday, August 31, 1978:
- 1. The St. Lucie 2 inspector first knew of permittee's intent to use the "slipform" method of construction between September 13 and 16,1977 when he saw slip for ns (not then in use) on the site. Between August 2 and 5,1977, FP&L's engineering department told our inspector of their intent to use the "slipform" metnod of concrete placement.
- 2. The shield wall for containment for St. Lucie 2 went above grade between Novemoer 3 and 11,1977.
- 3. Regarding St. Lucie 1 - On October 23, 1970, containment was not acove grade. Between February 3 and 5,1971, FP&L was 39 feet above grade with ccncrete containment walls. 'de estimate, based on these facts, tnat they came acove grade with the St. Lucie 1 containment between January 3 and 5,1971.
Attached is a copy of a letter dated August 30, 1973 in which Florida Power and Light answer questions put to them by our inspector. I also read that lettar to you.
qSincerely, n
e'/
.'n 7
7:J / '/i-f William D. Paton Counsel for NRC Staff Attacnment See Page 2 AGMN O
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Augu:t 30.1973 L-70-233
.Mr. RoScrt W. L'right. Princips1 Inspector Office of Ins;r:ction and Enforce :ent, Regica II
- 11. 5. Truclear Regulatory Cc. nf s fon 101 ?'.3rietta S t. : t, Sui tc 3100 Atlanta. GacG is 30203 Cf 2r Mr. Wright:
Rc: St. Lucie Piant Unit ris. 2 D:09.et No. 50 -3Sg Ih Pur?cse of this letter is to respond to your telephone request of August 28, 1978. for answers to the- following ques tiens:
- 1. Q. On dat date did the Office of Ir.spection and Enforcecent of th2 r:e:1 err ileguIatory Cc:=f ssien fir:: k.: -r tha t the shieid t:ll for St. Lc=f e Plant Unit F. . 2 was to be slipfor:::d?
A. Flo;-ida re ::r s Licht C.:: pany dets .~;t have this infomstion.
- 2. Q. Ch vtu t c'.i te di d c n s t r ,1 t i on o f t.'r: shield wall for St. Lucie Picat U. aft I!c. 2 proceed above grad 2?
A. Cn F.:v=ter ?, I?77 the exterier stif eld =311 (ccncrete :hield( "
rose ai:cvu grsd level.
- 3. Q. C: what date did ccnst.ructien of the reactcr auxil t i y hilding
. gnd,_c_cytr.icticn of the int.g str::ct::re preceed above grade? _
- 4. Q. Co what date did construction of the reactor contain;.ent building, recctor auxiliar f building, and int.the strJcture proceed abcve grade for St. Lucie Plant Unit ?:o. I?
A. The sequence and cathed of cons tr. ction of St. Lucie Plant Unit No. 1 u.ss different f. s tha t for St. Litci e Pl ant Uni t F.c. 2.
Hctnever, above grade constructien was reached for each of t. hse stractvres for St. Lucie Unit No. I cn the fclicuins r P0ctiVC dates:
- 1) F.cacter c=ntair==n: vessel stael plate - J.:nu:ry 14, 1971
- 2) Reactor
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7 REFERENCE OPAWlHGS
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-aoa August 8, 1977 i ./.1 z
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5 Micliael C. Farrar, Esquire, Chairman
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Dr. W. Reed Johnson Richard S. Sal: man, Esquire United States Nuclear Regulatory Commission Washington, D. C. 20555 20: St. Lucie Nuclear Power Plant Unit No. 2 Cocket No. 50-389
Dear Members of the Scard:
I am transmitting herewith for your information copies of a press release issued ecday by Florida Power & Light Company announcing plans to accelerate the scheduled completion dates for the fossil-fueled Martin County Units 1 and 2.
The Initial Decision of April 19, 1977, in this proceeding referred to the flexibility in the constructicn schedule for the Martin Units and stated that:
"Under high growth conditions, Martin Unit 1 could be 1,rought en line in 1981 and Unit 2 in 1982; under icw growth conditions, Unit I would be scheduled for 1982 and Unit 2 for 1984 (3ivans, p. 21).*
5 NRC 1038, 1052, para. 35. The press release states that the new schedule calls for "=--i- Unit 1 to be in service by mid-1980 and Martin Unit 2 to be in service in 19*1.
We do not consider adoption of the new schedule to be material to the Initial Cecision. 5 NRC, sutra, at 1052-1053, paras. 36-38.
Nevertheless, .eed for power was an 'ssue which was decided by the Licensing Scard and its decision with respect to that issue is the subject of one of the exceptions new being censidered by the Appeal Scard. Consecuently, we are new inferming these 30ards and the parties of the new schedule. See Duke Pcwer Cemeany (William 3.
McGuire Nuclear Station, Units 1 ann 2), A;.A3-2.4 3 , O AIC, 623, 625-626 (1973).
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Cc-Counsel for Applicant s ::
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