ML20005C091
| ML20005C091 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 11/16/1981 |
| From: | Lewis S, Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| References | |
| ISSUANCES-A, NUDOCS 8111180377 | |
| Download: ML20005C091 (27) | |
Text
UtlITED STATES OF A!! ERICA flVCLEAR REGULATORY COMt1ISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD sh JJ m
In the Matter of
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S FLORIDA POWER & LIGHT C0t1PANY
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Docket No. 50-389A l
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RESPONSE OF NRC STAFF TO THE APPEAL 0F PARSONS & WHITTEt10RE, INC., AND RESOURCES REC 0VERY (DADE COUNTY) INC., FR0t1 THE DENIAL 0F THEIR INTERVENTION PETITION AND RE00EST FOR A HEARING Benjanin H. Vogler Deputy Antitrust Counsel Joseph Rutberg Stephen H. Lewis Assistant Chief Hearing Counsel for NRC Staff Counsel / Antitrust Counsel flovember 16, 1981 4
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UNITED STATES OF AftERICA NUCLEAR REGULATORY COMillSSION b
BEFORE THE AT0f-IIC SAFETY AND LICENSING APPEAL BOARD In the 11atter of
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FLORIDA POWER & LIGHT C0f1PANY Docket No. 50-389A (St. Lucie Plant, Unit No. 2)
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RESPONSE OF NRC STAFF TO THE APPEAL 0F PARSONS & WHITTEf10RE, INC., AND RESOURCES RECOVERY (DADE COUNTY) INC., FR0f1 THE DENIAL OF THEIR INTERVENTION PETITION AND REQUEST FOR A HEARING Benjanin H. Vogler Deputy Antitrust Counsel Joseph Rutberg Stephen H. Levis Assistant Chief Hearing Counsel for NR' Staff Counsel / Antitrust Counsel November 16, 1981
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1-Page s
INTRODUCTION............................................
1 I.
ST AT EM E NT O F TH E C A S E...................................
1 II.
APPLICABLE REGULATIONS..................................
4 III.
ARGUltENT................................................
8 A.
Availability Of Other fleans Whereby Petitioner's Interest will Be Protected.........................
8 B.
Good Cause Fo r Late Fil ing.........................
11 C.
The Extent To Which Petitioner's Participation Will Lengthen Or Delay The Proceeding..............
14 D.
The Extent To Which Petitioner's Participation liay Reasonably Be Expected To Assist In Devel opi ng A Sound Record..........................
14 1.
An t e u s Cu t-i a e.................................
15 E.
The Extent To Which Petitioner's Interest Will Be Represented By Othe r Parties....................
16 F.
Concl us ions On La te In tervention...................
17 G.
Nexus..............................................
18 IV.
CONCLUSION..............................................
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JUDICIAL OPINIONS The Easton Utilities Commission v. Atonic Energy Connission, 424 F.2d 847 (D.C. Cir 1970)...................................
13 NRC OPINIONS Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3),
ALAB-431, 6 NRC 460 (1977)...................................
11 Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3),
ALAB-615, 12 NRC 350 (1980)..................................
7 1
Florida Power & Light Co. (St. Lucie Plant, Unit 2), CLI 12, 7 NRC 939 (1978).........................................
2, 11 Florida Power & Light Co. (St. Lucie Plant, Unit 2), Docket No. 50-389A, Directors Decision Under 10 C.F.R. 6 2.206, D D 15, Au g u s t 7, 19 81.....................................
10 i
Kanses City Gas and Electric Co., (Wolf Creek Generating Station, Unit No.1), ALAB-279,1 NRC 559 (1975) [ Wolf Creek 1].....................................................
6 Louisiana Power and Light Co. (Waterford Steam Electric Station, Unit 3), CL1-73-7, 6 AEC 48 (1973) [Waterford I]....
6
.l Louisiana Power and Light Co. (Waterford Stean Electric Station, Unit 3), CL1-73-25, 6 AEC 619 (1973) [Waterford 11]..........................................................
6 Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Un i ts 1 and 2), ALAB-130, 6 AEC 423 (1973)...................
5 Nuclear Fuel Services, Inc. (West Valle; Reprocessing Plant),
CL1-75-4, 1 NRC 273 (1975)...................................
7 Pacific Gas and Electric Co. (Stanislaus Nuclear Project, Unit 1), LBP-77-26, 5 NRC 1017 (1977)........................
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i i i Page Pacific Gas and Electric Co. (Diablo Canyon, Units 1 and 2),
C L I 5, 13 NR C 3 61 ( 19 81 )..................................
7 Portland General Electric Co. (Pebble Springs Nuclear Plant, Uni ts 1 and 2), CLI-76-Of7, 4 NRC 610 (1976).................
7 I
Puget Sound Power & Light Co. (Skagit Nuclear Power Project, Units 1 and 2), ALAB-554, 10 NRC 162 (1979)..................
13 STATUTES I
Public Utility Regulatory Policies Act of 1978.
Pub.L.
No.95-617, 92 Stat. 3144 (1978).............................
3, 9 REGULATIONS 10 C.F.R. 6 2.714(a)(1)..............................
7 10 C.F.R. 5 2.714(a)(2)........................................
4, 5 10 C. F. R. Q 2. 714 ( d )...........................................
5 i
18 C.F.R. 9 292.303............................................
9 11ISCELLANE0VS Commission Statenent of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533-28534, itay 27, 1981..........
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s November 16, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0liMISSION BEFORE THE ATOMIC SAFETY AND LICENSING APPEAL BOARD In the Matter of Docket No. 50-389A FLORIDA POWER & LIGHT COMPANY
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(St. Lucie Plant, Unit No. 2)
RESPONSE OF NRC STAFF TO THE APPEAL OF PARSONS & WHITTEMORE, INC., AND RESOURCES REC 0VERY (DADE COUNTY) INC., FROI THE DENIAL OF THEIR INTERVENTION PETITION AND REQUEST FOR A HEARING On August 5,1981, the presiding Atonic Safety and Licensing B0ard (Licensing Board) denied the Petition to Intervene and Request for Antitrust Hearing filed on April 24, 1931, by Parsons & Whittemore, Inc.,
and Resources Recovery (Dade County) Inc. (hereinafter collectively referred to as RRD).
On October 2, 1981, the Licensing Board modified its Memorandun and Order of August 5 to a limited extent and reaffirmed its denial.
On October 26, 1981, RRD filed its appeal.
I.
STATEMENT OF THE CASE This construction permit antitrust proceeding was initiated in May 1973 when Florida Power & Light (FP&L) submitted the antitrust portion of its application to construct and operate the St. Lucie Plant, Unit No. 2.
After receiving advice from the Attorney General, a notice was duly published in the Federal Reaister giving the opportunity to file a request for an antitrust hearing by December 28,1973(38 Fed. Reg. 32158, November 21,1973). Approximately thirty-one months later,
2-Florida Cities, Intervenors currently participating in the proceeding, filed a petition to intervene and a request for an antitrust hearing.
The Commission, after reviewing decisions by the Licensing Board and the Appeal Board affirmed the determination to allow this very late intervention "in the unusual circumstances of this case."1/
In reaching its conclusion to allow intervention, the Commission directed the 4
Licensing Board that was to preside at any hearing to take affirmative action in expediting the proceeding and to consider the lateness of the-Intervenor's petitions in setting schedules and considering ap'propriate relief.2/
Approximately three years later and well over seven years after the i
i December 1973 Federal Register notice RRD filed a petition to intervene in this antitrust proceeding.
RRD, a wholly owned subsidiary of Parsons
& Whittemore (P&W), has constructed a solid waste resources recovery facility (SURRF) in Dade County, Florida.
(Petitioner's Appeal Brief, 1
i hereinafter Appeal Brief, at 2). The contracts for the construction of the SWRRF have spawned a nunber of legal proceedings in addition to the instant matter.
Based upon the pleadings that have been filed by RRD and FP&L, the Staff is aware that there has been a Federal District Court proceeding initiated by Dade County Florida to resolve the contractual disputes with RRD (FP&L Partial Response to Petition to Intervene at 16) 1/
Florida Power & Light Company (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC at 944 (1978).
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Id_. at 948, 949.
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which we understand has been dismissed due to lack of diversity; an arbitration proceeding involving the same contractual disputes (Appeal Brief at 6; FP&L Partial Response at 16); a proceeding before the Florida Public Service Connission ( Appeal Brief at 44); and a proceeding before I
the Federal Energy Regulatory Conmission initiated by RRD to determine its status as a " qualifying small power producer" under the Public Utility Regulatory Policies Act of 1978 (PURPA).3/ (Appeal Brief at 5; FP&L Partial Response at 13). Although RRD has filed for qualifying status under PURPA, the filing as been protested and FERC has not yet determined RRD's status.
The essence of RRD's expressed concern in the pending matter is related to a Settlement Agreement entered into by FP&L, the U.S.
Department of Justice and the NRC Staff. The Licensing Board on April 24, 1981, approved the settlement and ordered that the license conditions contained therein be imposed immediately upon the St. Lucie, Unit 2 construction permit. The settlement agreement contains license conditions which provide among other things transmission benefits for certain small power production facilities as defined in PURPA. However, 1
the benefits granted by these license conditions are separate and distinct from any rights that may accrue to small power producers under PURPA.
The Settlenent Agreement was the product of more than a year of negotiations. The existence of the negotiations was well docunented in 3/
Public Law No.95-617, 92 Stat. 3144 (1978); amending 16 U.S.C. 792, et seq.
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. t the public record. As early as November 1979 the Licensing Board issued I'
an Order suspending discovery in this natter for two months so that the Department of Justice, the NRC Staff and the Applicant could continue settlement negotiations.S/
In April 1980 the same parties notified the Licensing Board of the progress that was being nade with respe.t to settlement.5/ On September 12, 1980, the Joint flotion of the Department of Justice, NRC Staff and Applicant to Approve and Authorize Inplementa-tion of Settlement Agreement, was filed with the Licensing Board.
In the joint motion, the Staff and the Department of Justice advised the l
Licensing Board, among other things, that in their opinion the licensing of St. Lucie, Unit 2 under the settlement license conditions would not 1
create or maintain a situation inconsistent with the antitrust laws.
The notice of hearing concerning the Settlenent Agreenent was published in the Federal Register on January 15, 1981 (46 Fed. Reg. 3686, January 15,1981), and a public hearing was held by the Licensing Board on February 2, 1981.
II.
THE APPLICABLE REGULATIONS i
A petition to intervene or a request for an antitrust hearing in a Commission proceeding must comply with the provisions of 10 C.F.R.
4/
Order dated November 6,1979.
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Letter fran Department of Justice, NRC Staff, and Applicant to the Honorable Ivan W. Smith, et al., dated April 11, 1980.
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Section 2.714(a)(2) of the Commission's Rules of Practice. This Section 4
requires that the petition ascribe:
(1) the interest of the petitioner in 'the proceeding; (2) how that interest may be affected by the proceeding; (3) the specific aspects of the subject matter of the proceeding as to which intervention is sought.
In order for a hearing request to be granted, the Board designated to rule on the request nust find that these requirements are satisfied.5/
In addition,10 C.F.R. Section 2.714(d) of the Commission's Rules 4
states:
The Atomic Safety and Licensing Board designated to rule on petitions to intervene and/or requests for hearing shall, in ruling on a petition for leave to intervene, consider the following factors, among other things:
(1) The nature of the petitioner's right under the act to be made a party to the proceeding.
(2) The nature and extent of the petitioner's property, financial or other interest in the proceeding.
( 3)
The possible effect of any order which may be entered in the proceeding on the petitioner's interest.
6/
Mississippi Power and Light Co. (Grand Gulf Nuclear Station, Units 1 and 2), ALAB-130, 6 AEC 423 (1973); Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-77-26, 5 NRC 1017, 1021-1025 (1977).
i
6-1 In determining whether a hearing request is sufficient to invoke the Commission's antitrust jurisdiction, the request must also meet requirements set forth in Wolf Creek:
(1) describe the situation allegedly inconsistent with the antitrust laws which is the basis for intervention; (2) describe how that situation conflicts with the policies underlying the Sherman Act, Clayton Act, or Federal Trade Comnission Act; (3) describe how the situation allegedly inconsistent with the antitrust laws would be created or maintained by activities under the license; (4) identify the specific relief sought; and (5) explain why the relief sought fails to be satisfied by the license conditions, if any, which have been proposed by the Department of Justice.2/
The Licensing Board did not extensively review the antitrust intervention criteria set forth in Wolf Creek I, supra.
In addition, the criteria for i
7/
Kansas City Gas and Electric Co. (Wolf Creek Generating Station, Unit No.1), ALAB-279,1 NRC 559 (1975) (Wolf Creek I). See also Louisiana Power & Light Co. (Waterford Stean Generating Stati'on, j
Unit 3), CLI-73-7, 6 AEC 48 (1973) (Waterford I); Louisiana Power &
l Light Co. (Waterford Stean Generating Station, Unit 3), CLI-73-25, 6 AEC 619 (1973) (Waterford II); Pacific Gas and Electric Company (Stanislaus Nuclear Project, Unit 1), LBP-77-26, 5 NRC 1017 (1977),
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7-the granting of discretionary intervention was not discussed by the Licensing Board in its Order or raised by RRD in its Appeal Brief.8_/
Finally, a late intervention petitioner must also address the five pertinent factors in 10 C.F.R. s 2.714(a)(1), and " affirmatively demonstrate that on balance they favor his tardy adnission into the proceeding."AI That section provides that untimely filings will not be entertained absent a determination that the petition should be granted I
based upon a balancing of the following factors:
1.
Good cause, if any, for failure to file on time.
2.
The availability of other mean:: whereby the petitioner's interest will be protected.
3.
The extent to which the petitioner's participation may reasonably be expected to assist in developing a sound record.
4.
The extent to which the petitioner's interest will be represented by existing parties.
5.
The extent to which the petitioner's pai+icipation will broaden the issues or delay tre proceeding.
The Commission has recently enphasized *. hat licensing boards are expected to demand compliance with the specificity and lateness requirements of 10 C.F.R. 5 2.714. EI 8f Portland General Electric Co., (Pebble Springs Nuclear Plant, Units 1 and 2), CL1-76-027, 4 NRC 610 (1976), sets forth the Coma:ssior.'s standards for discretionary intervention.
--9/
Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3),
ALAB-615, 12 NRC 350, 352 (1980); Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4,1 NRC 273, 275 (1975).
1_0/ Pacific Gas and Electric Company (Diablo Canyon, Units 1 and 2),
0 CLI-81-5, 13 NRC 361, (1981); Statement of Policy on Conduct of Licensing Proceedings, 46 Fed. Reg. 28533-28534, May 27, 1981.
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3 III. ARGUI1ENT Af ter reviewing portions of the intervention requirements set forth in 10 C.F.R. 6 2.714, the Licensing Board at page 4 of its August 5
!!emorandun and Order (Order) states:
... we consider it more important to apply to this case the standards governing late intervention. On balance, we find that those standards require that RRD's intervention petition be denied.
i Thus, the Licensing Board determined that RRD's late petition failed to satisfy the five requirenents set forth in 10 C.F.R. Q 2.714(a)(1),
supra, concerning late intervention. The Staff aarees that RRD has, on balance, failed to satisfy the five late intervention factors set forth in 10 C.F.R. 6 2.714(a)(1).
For purposes of clarity the Staff in commenting on these five factors will follow the format used by the Licensing Bnard in its Order of August 5.
A.
The Availability Of Other fleans Whereby Petitioner's Interest Will Be Protected The Licensing Board relied upon three other proceedings, which have f
been initiated, as providing forums before whom the interests RRD seeks to protect in this proceeding can and are being protected.
(Order at 4-10.) The proceedings are (1) before FERC to determine whether RRD is a " qualifying small power producer" under PURPA, (2) an arbitration-proceeding between RRD and Dade County involving their contract dispute, L
c and (3) a proceeding before the Florida Public Service Conaission on the i
petition of RRD for an interconnection order against FP&L.
Although RRD argues that the arbitration proceen.
cannot provide the remedy it seeks before the NRC (Appeal Brief at 44), ataff believes the Licensing Board correctly perceived that should the arbitration results be favorable to RRD it would no longer need the remedy it seeks from the NRC or, for that natter, from FERC or the Florida PSC.
(Order at7) As Staff sees it, the multiplicity of proceedings instituted by RRD (before NRC, FERC, and the Florida PSC) have been brought to protect RRD's interests in the event it is unsuccessful in asserting its contract claims through arbitration.
The Licensing Board was particularly influenced by the availability of a remedy fron FERC.
(Order at 6) As Staff understands FERC's authority under PURPA, if it determines RRD to be a " qualifying small power producer" FERC can order FP&L to purchase any power made available to it by RRD or, in 1.'eu of that obligation and with the agreement of RRD, FP&L nay wheel the power to a neighboring electric utility.b In Mdition, once FERC detemines RRD's status, additional remedies may be available at the NRC.
If RRD is determined to be a qualifying small power facility the NRC license conditions would obligate FP&L to wheel I
power from it to third parties at RRD's request.
(Settlement condition X(a).) But RRD's rights under this condition would arise only if it is first determined by FERC to be a qualifying small power facility. At 4
11/ See i 210 of PURPA, (16 U.S.C. 9 824i), and FERC's implementing regulations at 18 C.F.R. 5 292.303.
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. that point, if RRD requested wheeling by FP&L and the request were denied, RRD would have available to it an enforcement proceeding under
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license condition X(a).E Thus, RRD has available at FERC a renedy to a substantial portion of its claims, in the event it is unable to secure a favorable arbitration ruling on its contract dispute.
For these reasons it was proper for the Licensing Board to rely upon the availability of a remedy at FERC as a factor weighing against the allowance of RRD's late intervention petition.
RRD also argues on appeal that the Licensing Board erred in ruling that it is "possible" that RRD's claims could be resolved by the Florida PSC.
(Orderat7)
It is apparent that the Board placed only minor reliance on the availability of this forum, since it had not been informed of the issues in that proceeding.
(_Id. ) Based upon RRD's Appeal Brief, the Staff understands the PSC proceeding to be concerned with interconnection between RRD and FP&L.
(Appeal Brief at 44) The 1
interconnection order sought from the PSC would presumably be based on a theory other than that RRD is a qualifying facility under PURPA.
Whatever may be the completeness of the remedy available from the PSC, Staff believes that tne arbitration proceeding represents a forum for l
potentially complete resolution of RRD's grievances and that FERC l
represents a forum for substantial resolution of RRD's grievances in the event it does not prevail in arbitration. The Licensing Board's conclusion that there are other remedies available to RRD for the 12/ See Florida Power & Light Company (St. Lucie Plant, Unit No. 2),
2 1
0D-81-15 (Director's Decision Under 10 C.F.R. 2.206), August 7, 1981, a t 4.
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protection of the interests which it seeks to protect in this proceeding 13/
(Order at 10) was, therefore, correct B.
Good Cause For Late Filing-The first factor in 10 C.F.R. 6 2.714(a)(1) concerning late intervention is whether there is good cause for the filing delay. The Commission in commenting on this factor in an earlier proceeding in this docket advised:
. The qualification we envision in the application of' the intervention regulation involves a somewhat nore stringent application of 9 2.714, particularly in assessing the good cause factor. *** However, as the time for issuance of the construction pennit draws closer, licensing boards should scrutinize more closely and carefully the petitioner's claims of good cause. A very late petition must present a very strong reason for late intervention.14/
(emphasis added)
The Appeal Board has held that where no good excuse is tendered for the lateness of a petition, a petitioner's demonstration on the other factors must be particularly strong.3EI 13/ Since it is the Staff's position that any remedy which RRD might have at the NRC would not be in this proceeding, the cases cited by RRD to establish the differences in antitrust standards between FERC and NRC are not relevent.
See Appeal Brief, at 39-41.
14/ Florida Power & Light Company (St. Lucie Plant, Unit 2), CLI-78-12, 7 NRC at 946-947 (1978).
--'15/ Duke Power Company (Perkins Nuclear Station, Units 1, 2 and 3),
ALAB-431, 6 NRC at 462 (1977).
e
In view of the importance placed upon this factor by the Concission and the Appeal Board and the fact that the petition is well over seven n
years late, Staff would expect a strong presentation by RRD on its reasons for lateness. However, the only reason initially advanced by RRD for their failure to file on time is that it was only after RRD 1
" unearthed" the proposed Settlement Agreement that they realized FPM. was using this proceeding to " undercut their rights as a qualifying PURPA facility" (Petition to Intervene of April 24, at 7-8).
RRD blames the
" secrecy of the Settlement process" for the tardiness of their petition (11. at 7-8).
Interestingly enough, RRD has not responded to the fact that the proposed Settlement Agreement has been publicly available since September 12, 1980.
Its Appeal Brief is silent on this point even after it was put on notice by Staff's comments at the Conference of Counsel on July 20, 1981, where Staff stated:
MS. H0DGDON: No, excuse me.
I think the point I was going to make is that they argue that they had no standing, no need to intervene, until such time as they became aware of the settlement license condition. And they say that it was only recently made public.
It was recently that I was going to address myself to.
The settlement license condition was in fact made public on September 12, 1980, and they petitioned to come in here on April 24th, 1981, more than seven months later. They dismissed that seven months entirely by saying it was only recently that it was made public, and they say, so even granting their argument that it did create a need to intervene, it did create standing on their part, it did create everything else that they say was created by that settlement license condition, they still haven't shown good cause why they should be allowed to come in here seven months late, after a settlement agreement has already been negotiated by the parties to the proceeding and accepted by the Board for e
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innediate implementation and has now becoca part of the license.
(Tr. 61-62).
In addition as Staff has noted earlier a Notice of Ilearing
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concerning the Settlenent Agreement was published in the Federal Register on January 15, 1981, at page 3683 and a hearing on the Agreement was held by the Licensing Board on February 2,1981.
Lack of knowledge of the existence of the publicly available Settlement Agreement cannot constitute good cause for lateness.
RRD having sat, knowingly or thoughtlessly, on the sidelines while this proceeding was running its lengthy course and while the parties hereto r.egotiated a settlement which has been accepted by the Licensing Board and has become part of the St. Lucie, Unit 2 license cannot now use their I
dissatisfaction with a part of that settlement as good cause for such I
extreme lateness.El Staff also agrees with the Licensing Board's I
determination that there was a substantial, unexplained delay between the period when RRD may have known of its serious contractual impass with Dade County, Florida, and the filing of its Petition to Intervene in this matter.
(Orderat15-16).
For the reasons set forth above Staff concurs with the Licensing Board's conclusions on page 16 of its Order that RRD has failed to show good cause for its late filing.
l i
M/ The Easton Utilities Commission v. Atomic Energy Conmission, 424 F.2d 847, 851 (D.C. Cir.1970); Puget Sound Power & Light Co.
(Skagit Nuclear Power Project, Units 1 and 2), ALAB-554,10 NRC 162(1979).
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C.
The Extent To Which The Petitioner's Participation Will Lengthen Or Delay The Proceeding In its appeal brief at pages 41-42; 46-48, RRD reiterates its contentions that its late intervention will not delay this proceeding.
1 2
l Staff does not agree with RRD lack of delay assertions. The relief sought by RRD is completely different from, and not related to the relief l
sought by the Intervenor, Florida Cities.
As noted earlier, RRD's claim involves an interpretation of PURPA and its implenentation.
As such the Licensing Board if it decided to resolve RRD's clains would be faced with determining whether RRD is a "qualifing small power producer" under PURPA, a determination clearly within the jurisdiction of FERC.
In many ways, granting intervention to RRD at this tine would be tantamount to I
instituting a whole new proceeding.
The addition of these issues to the ongoing St. Lucie 2 proceeding militates against RRD's lack of delay assertions. Thus, Staff agrees with the Licensing Board's conclusions that the granting of RRD's petition, will complicate and delay this l
proceeding.
(
D.
The Extent To Which The Petitioner's Participation liay i
Reasonably Be Expected To Assist In Developing A Sound Record RRD, in its Petition of April 24, at pages 9-10, alleges that it will assist in developing a sound record because PURPA facilities have i
l been afforded less favorable treatment than other entities under the Settlement Agreement and only RRD has intervened to protect these interests.
The Licensing Board disagreed with RRD and found that its principal interest concerns the relationship between a " single commercial dispute" l
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and the operation of the antitrust laws and further, that record elaboration of this " tiny facet" of FP&L's overall conduct is unlikely to be probative of whether the operation of St. Lucie 2 would create or maintain a situation inconsistent with the antitrust laws (Order at 18-19). The Licensing Board also noted that RRD's involvenent would require an inquiry into the complicated commercial dispute between the Petitioner and FP&L and inquiry into this issue would not contribute to the development of a sound record.
(Jd. at 19). The Staff agrees with the conclusions of the Licensing Board especially in view of the multiparty, multifaceted legal dicpute that presently exists in Dade County, Florida.
(See Background Section, p. 2, supra.) Staff submits that RRD's participation will complicate rather than contribute to the development of a sound record herein.
1.
Amicus Curiae Af ter determining that RRD's participation herein will not contribute to the development of a sound record, the Licensing Board did, however, grant the Petitioner the conditional status of amicus curiae. This conditional status was granted for the limited purpose of assisting the Licensing Board in fashioning relief for PURPA facilities.
(Orderat19). This limited purpose would come abor' only in the event the Licensing Board determines that the operation of the St. Lucie, Unit 2, with settlement license conditiore. attached, will nevertheless create or maintain a situation inconsistent with the antitrust laws.
(Jd. at 19).
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The Staff cannot agree with the Licensing Board that the granting of the conditional status of amicus curia ( to RRD is appropriate in this proceeding.
In view of the conplete failure of RRD to satisfy any of the factors governing late intervention set forth in 10 C.F.R. 6 2.714(a)(1) 4 and the fact that the thrust of its conplaint is cognizable before FERC, Staff sees no need for the granting of this conditional status.
In addition, the Licensing Board notes on pages 20-21 of its Order that if 1
it were to find a situation inconsistent with the antitrust laws based on evidence presented by the Florida Cities it would be in a position to fashion appropriate relief to protect all affected entities, including PURPA facilities.
Finally, Staff notes that RRD on pages 50-51 of its appeal brief finds the granting of the conditional status of amicus curiae to be inadequate for its pruposes and declines to accept it.
E.
The Extent To Which Petitioner's Interests Will Be Represented By Existing Parties RRD naintains that no other party to this proceeding has raised the same antitrust issues and therefore its interest cannot be represented by existing parties ( Appeal Brief at 49). The Staff disagrees.
RRD's success herein depends on some party establishing the jurisdictional requirement that the operation of St. Lucie 2 would create or naintain a situation inconsistent with with the antitrust laws that would justify the relief RRD desires.
(Orderat20).
In this regard, Florida Cities have indicated an intention to establish before the Licensing Board that the operation of St. Lucie 2 with the settlement license conditions will
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create or naintain a situation inconsistent with the antitrust laws affecting RRD. As the Licensing Board has noted, the Florida Cities have e
obtained some documents concerning FP&L's conduct towards incipient PURPA
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facilites and apparently intend to pursue that issue.
(Orderat20.) As such, Florida Cities represent interests similar to RRD's in this aspect of the proceeding.
With regard to its PURPA claims, RRD naintains that its antitrust allegations are grounded in its PURPA capacity as a potential competitor of FP&L ( Appeal Brief at 49).
Staff maintains that RRD's PURPA allegations belong before the FERC. As such, Staff believes RRD's PllRPA claims have no nexus with this proceeding.
(Staff's views on nexus are discussed infra).
F.
Conclusions On Late Intervention After reviewing the five factors governing late intervention the Licensing Board found that the balance is " heavily weighted" against intervention (Order at 21).
The Licensing Board stated that unless it found that one or more of the factors weighed heavily in favor of intervention it would exclude RRD solely on its failure to show good cause for late intervention or solely on its failure to show that other neans are not available to protect its interests (Id. at 21). The Staff
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believes that the Licensing Board's conclusions on the five factors-governing late intervention reflect an accurate analysis of the situation i
and should be sustained by the Appeal Board.
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an G.
Nexus The Licensing Board, after reviewing the contentions of the parties concerning nexus, concluded the RRD had not established the required nexus to this proceeding (Order at 24).
The Staff agrees.
At page 24 of its Order the Licensing Board analyzed RRD's position in this dispute as follows:
RRD's petition is extraordinary.
It is not a municipal utility or cooperative engaged in the regular business of selling power at wholesale.
Unlike such businesses, it is not concerned about the impact of nuclear power or its cost structure.
It does not depend on its ability to sell power at competitive prices, and it is not concerned that the opening of a nuclear plant will adversely affect its ability to conpete.
In this proceeding, RRD does not seek to obtain a share in St. Lucie or to purchase unit power.
If it were granted such rights, they would not help it.
Since it has no obligations to supply retail power and is not interested in competitively bidding for retail franchises, these rights would be of no value to it.
On pages 18-21 of its Appeal Brief RRD extensively reviews the cases concerning the nexus requirenent for intervention in Commission antitrust natters. What RRD fails to establish in this review is how it comes
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within the ambit of these cases.
Staff views this failure as significant in view of the Licensing Board's analysis of RRD's petition as set forth above.
In addition, Staff submits that because of RRD's unique position as a potential qualifying facility under PURPA and because its claims for relief, regardless of what they are called, are PURPA claims, RRD cannot meet the nexus requirements of the cases it cites.
L
RRD's allegations that the settlement license conditions negotiated by the parties dismiss FP&L fra1 its PURPA obligations are groundless
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5
( Appeal Brief at 21,22,23).Section XIII(c) of the settlement license conditions provide as follows:
"Nothing herein shall be construed to affect the jurisdiction of FERC or any other regulatory agency."
The above-quoted language appears in one form or another in all NRC license conditions to recognize the fact that the regulatory bodies i
having appropriate jurisdiction over a licensee will continue to exercise l
that jurisdiction notwithstanding the NRC license conditions. That's the i
very purpose for placing the language in license conditions.
In the present matter, it is clear that the FERC under PURPA has competent jurisdiction over small power producers such as RRD and those electric utilities who are required to deal with snall power producers J
such as FP&L. The settlement license conditions as stated explicitly in Section XIII(c), do not and could not dininish or dismiss FP&L's obligations to comply with the PURPA requirements.
RRD, under PURPA, has transnission rights that are not affected by the settlenent license l
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'tions and its allegations concerning FP&L's transmission monopoly snppeal Brief at 21) and its ability to escape the requirenents of PURPA through the settlement license conditions (Id. at 21, 22) are without merit. The Petitioner has not, indeed cannot, establish any nexus i
between its allegations and FP&L's activities under the license and the operation of the St. Lucie, Unit 2 plant. Therefore, Staff submits its Petition should also be dismissed for the lack of nexus.
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IV.
CONCLUSION In view of the foregoing, Staff submits that the appeal of RRD from the denial of its April 24, 1981 Petition to Intervene should be denied.
Respectfully submitted l
t p/YY b Benjamin H. Vogler #
3 Deputy Antitrust Counsel MA S M. M Stephen 'i. Lewis Counsel for NRC Staff Dated at Bethesda,fiaryland this 16th day of November,1981 i
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMitISSION BEFORE THE AT0'11C SAFETY AND LICENSING APPEAL BOARD In the Matter of FLORIDA POWER & LIGHT COMPANY Docket No. 50-389A (St. Lucie Plant, Unit No. 2)
CERTIFICATE OF SERVICE I hereby certify that copies of " RESPONSE OF NRC STAFF TO THE APPEAL OF PARSONS &
WHITTEMORE, INC., AND RESOURCES REC 0VERY (DADE COUNTY) INC., FROM THE DENIAL 0F THEIR INTERVENTION PETITION AND REQUEST FOR A HEARING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Commission's internal mail system, this 16th day of November,1981:
.
- Alan S. Rosenthal, Chairman Michael A. Duggan, Esq.
Atomic Safety and Licensing Appeal Administrative Judge Panel College of Business Administration U.S. Nuclear Regulatory Commission University of Texas Washington, D.C.
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- Ms, Christine N. Kohl
- Robert M. Lazo, Esq.
Atomic Safety and Licensing Appeal Administrative Judge Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 L'ashington, D.C.
20555
- Mr. Stephen F. Eilperin
- Ivan W. Smith, Esq.
Atomic Safety and Licensing Appeal Alternate Member Panel Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555 t
- Peter B. Bloch, Esq., Chairman Tracy Danese, Esq.
Administrative Judge Vice President for Public Affairs Atomic Safety and Licensing Board Florida Power & Light Company U.S. Nuclear Regulatory Commission P. O. Box 013100 Washington, D.C.
20555 Miami. Florida 33101
-_ a
a.-
1.
Jack W. Shaw, Jr., Esq.
Janet Urban, Esq.
John E. Mathews, Jr., Esq.
P. O. Box 14141 Mathews, Osborne, Ehrlich, McNatt, Washington, D.C.
20044 Gobelman & Cobb 1500 American Heritage Life Building Donald A. Kaplan, Esq.
11 East Forsyth Street Robert Fabrikant, Esq.
Jacksonville, Florida 32202 Antitrust Division U.S. Department of Justice Robert E. Bathen Washington, D.C.
20530 Fred Saffer R. W. Beck & Associates J. A. Bouknight, Jr., Esq.
P. O. Box 6817 E. Gregory Barnes, Esq.
Orlando, Florida 32803 Lowenstein, Newman, Reis, Axelrad & Toll Robert A. Jablon, Esq.
1025 Connecticut Avenue, N.W.
Alan J. Roth, Esq.
Washington, D.C.
20036 Spiegel & McDiarmid 2600 Virginia Avenue, N.W.
Marc Gary, Esq.
Washington, D.C.
20037 Arent, Fox, Kintner, Plotkin & Kahn 1815 H Street, N.W.
Thomas Gurney, Sr., Esq.
Washington, D.C.
20006 203 North Magnolia Avenue Orlando, Florida 32802
- Peter G. Crane, Esq.
Office of the General Counsel William H. Chandler, Esq.
U.S. Nuclear Regulatory Commission Chandler, O'Neal, Avera, Gray, Washington, D.C.
20555 Land & Stripling Post Office Drawer 0
- Argil L. Toalston, Acting Chief Gainesville, Florida 32602 Utility Finance Branch U.S. Nuclear Regulatory Comission William C. Wise, Esq.
Washington, D.C.
20555 Suite 500 1200 18th Street, N.W.
- Atomic Safety and Licensing Board Washington, D.C.
20036 U.S. Nuclear Regulatory Commission l
Washington, D.C. 20555 Daniel M. Gribbon, Esq.
o Herbert Dym, Esq.
- Atomic Safety and Licensing Appeal Panel Joanne B. Grossman, Esq.
U.S. Nuclear Regulatory Cor.nission Covington & Burling Washington, D.C.
20555 1201 Pennsylvania Avenue, N.W.
P. O. Box 7566
- Docketing and Service Section l
Washington, D.C.
20044 Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C.
20555
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Benjamih H. Vogler
/
Deputy Antitrust Counsel