ML20010D230
| ML20010D230 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 08/20/1981 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| References | |
| ISSUANCES-OL, NUDOCS 8108240114 | |
| Download: ML20010D230 (85) | |
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1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 2
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In the Matter of a
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(St. Lucie Plant, Unit No. 2) 7 s
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Fifth Floor Hearing Room 9
4350 Esst "est Highway Bethesda, Maryland to Thursday, August 20, 1981 11 Oral argument in the above-entitled matter was 12 convened, gursuant to notice, a t 10:55 a.m.
13 14 BEFORE ADMINISTR ATIVE JUDGES:
15 ALAN S. ROSENTHAL, Chairman 16 DR. JOHN H. BUCK 17 CHRISTINE N.
KOHL 18 19 20 21 22 23
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24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHING t JN, D C. 20024 (202) 554-2345
2 1 APPEARANCES:
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2 On behalf of the Applicant, Florida Power & Light Company:
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J.
A.
BOUKNIGHT, Esq.
4 PETER G.
FLYNN, Esq.
HAROLD F. REESE, Esq.
I 5
Lowenstein, N e wm a n, Reis E Axelrad 1025 Connecticut Ave., N.W, Suite 1214 6
s HEREEST DYM, Esq.
7 Covington & Burling 888 Sixteenth St.,
N.W.
8 Washington, D.C.
9 On behalf of Petitioner f o - Leatre to Intervene, 10 Parsons & Wittimore:
11 GEOPGE KUCIK, Esq.
Arent, Fox, Kintner, Plotkin & Kahn 12 1815 H St.,
N.W.
Washington, D.C.
20006 13 14 On behalf of Florida Cities:
15 ROBERT A. JABLON, Esq.
DANIEL GUTTMAN, Esq.
18 Spiegel E McDiarmid Watergate Office Building 17 2600. Virginia Avenue, N.W.
Washington, D.C.
18 19 On behalf of the Nuclear Regulatory Commission:
20 JAMES THESSEN, Esq.
JOSEPH BLACKBURN, Esq.
21 Nuclear Regulatory Commission 1717 H St.,
N.W.
22 Washington, D.C.
23
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24 25 O
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D C. 20024 (202) 554 2345
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BY MR. JABLON ON BEHALF OF FLORIDA CITIES 6
5 BY MB. KUCIK ON BEHALF OF PARSONS & WIITIIMORE 14 8
BY MR. BOUKNIGHT ON BEHALF OF FLORIDA POWER 7
& LIGHT COMPANY 32 8 BY HR. THESSEN ON BEHALF OF NUCLEAR REGULATORY COMMISSION 50 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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2 (10:55 a.m.)
3 CHAIRMAN ROS ENTH AL:
If the reporter is ready, we 4 will go on the record.
5 This Board is hearing oral argument today on the d appeals taken by Parsons E Wittimore and Florida Cities from 7 the Licensing Board's June 3, 1981, order in this operating 8 license proceeding involving Unit 2 of the St. Lucie nuclear 9 f acility.
10 In that order, the Licensing Board denied the 11 A pp ellan t 's petitions for leave to intervene in the 12 proceeding on the ground that it had no jurisdiction to 13 entertain the issues which the Appellant sought to raise.
14 The order below is supported on the appeals by the d
15 Applicant, Florida Power E Light Company, and the NBC staff.
16 This oral argument is governed by the terms of our 17 July 21 order.
As provided therein, each party is being t
18 allotted a total of 40 minutes for the presentation of 19 argument, to be divided equally between the parties on that 20 side unless some other division of time has been agreed upon.
21 I will now call upon counsel for the respective 22 parties to identif y themselves formally for the record and 23 to advise the Board as to the division of time as well as O
24 with resoect to which ceurse1 wt1 eraue ftest on the 25 particular side.
And we will start with counsel for Parsons O
ALDERSON REPCRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345
4 1 E Wittimore.
2 MR. KUCIK My name is George Kucik.
We have 3 agreed with Mr. Jablon th a t we will divide the time 25 s
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4 minutes for Parsons E Wittimore and 15 minutes for Florida 5 Cities, and that Florida Cities will go first.
6
.5 S. KOHL:
Florida Cities will go first.
Very 7 vell, Mr. Kucik.
For Flo rida Cities.
8 MR. JABLON:
Your Honor, Robert Jablon.
With me 9 is Daniel Guttman.
10 CHAIRMAN ROSENTHAL:
All right, Mr. Jablon.
11 And for the Florida Power & Light Company.
12 MR. BOUKNIGHT:
Mr. Chairman, J.
A.
Bouknight, 13 J r.
With me is Peter G. F1lan and Harold F.
Reese.
We and 14 the staf f will divide the time equally, and we will go first.
15 CHAIRMAN ROSENTHAL.
And for the NBC staff?
16 MR. THESSEN:
Good morning, Mr. Chairman and 17 members of the Board.
My name is James Thessen of the 18 Office of Executive Legal Director.
With me this morning is 19 Mr. Joseph Blackburn of our office.
20 CHAIRMAN ROSENTHAL:
All right, we will proceed 21 with the oral argument for the Appellants.
Let me ask 22 counsel for the Appellants, did you plan to reserve any time 23 f or rebuttal?
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'our 25 Honor.
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CHAIRMAN ROSENTHAL:
On whose time is this?
2 MR. JABLON:
On Florida Cities.
3 CHAIRMAN ROSENTHAL:
Very well.
4 MR. KUCIK:
For Parsons C Wittimore, we also plan 5 to reserve ten minutes for rebuttal.
6 CHAIRMAN ROSENTHAL:
Well, now, wait a minute.
7 How much time 're you taking in total?
8 MR. KUCIK:
We are taking a total of 40 minutes 9 between us.
10 CHAIRMAN RCSENTHAL:
How much for Parsons C 11 Wittimore?
12 MR. KUCIK:
Fifteen minutes for opening 13 presentation and ten minutes for rebuttal.
14 CHAIREAN ROSENTHAL:
Now, you are planning to take 1515 minutes for which you want to reserve ten for rebuttal, 16 Mr. Jablon?
17 MR. JABLON:
Your Honor, essentially, all we want 18 to do is rely on our brief, and I would' simply reserve any 19 time if something came up.
I can express our position 20 really in a minute.
21 CHAIRMAN ROSENTHAL:
Well, you may be able to 22 express your position in a minute, but it is possible that 23 the Board has a few questions with regard to that position.
24 All right, we will see how it goes in that 25 regard.
I would remind both of you gentlemen that rebuttal O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
6 1 is reserved to a response to matters that your adversary had 2 put forth during the argument.
There can be no new matters 3 raised during rebuttal.
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All right, then, on that understanding, Mr.
5 Jablon, you may proceed.
6 ORAL ARGUMENT ON BEHALF OF FLORIDA CITIES 7
BY MR. JABLON 8
MR. JABLON:
Thank you, Your Honor.
9 On page 6 of our brief, we intended to cito the 10 Commission's South Texas decision, so our citation is 11 vrong.
And in a f ootnote the citation should have been to 12 6 8 0 (c ).
13 As Your Honors know, I represent the Florida 14 Cities.
We sought interven tion below in the operating 15 proceeding as a protective measures in the fear that had we 16 not done so we would have been deemed to have waived rights.
17 However, we recognize that the Board below and the 18 Staff take the position that the Board below did not have 19 jurisdiction to rule on the matter one way or the other I
20 because we were raising antitrust concerns.
We think that l
l 21 the re is suf ficient la titude in the notice so that the Board 22 could ha ve taken jurisdiction.
23 CHAIRMAN ROSENTHAL:
Let us leave the notice aside 1
24 and go to the statute, section 105(c)(2) of the Atomic 25 Energy Act of 1954, as amended.
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1 Now, as I read tha t section -- and you can tell me 2 in what respect I am wrong -- on the operating-license level 3 the review is to be confined to, and I quote, "significant 4 cha nges in 'he Licensee's activities or proposed 5 activities," and I would add the word "which," "have 6 occurred subsequent to the previous review by the Attorney 7 General and the Commission under the subsection in 8 connection with a construction permit for the facility."
9 Now, as I understand it, the antitrust review on 10 the construction permit level is still underway.
Your 11 client is one of the parties to that proceeding.
And I do 12 not understand how, consistent with that statutory 13 provision, one can be talking about an antitrust review on 14 the operating-license level, because by definition there 15 cannot have been significant changes in the Licensee's 16 activities nr proposed activities occurring subsequent to 17 the construction permit antitrust review.
18 MR. JABLON:
Yes, Your Honor.
It is a question of l
19 statutory interpretation.
If you deem -- first of all as a 20 f ac tual ma tter, the unit is now under construction -- if you 21 deem the subsequent review -- that is, the operating license 22 antitrust review -- to be able to take place only af ter the 23 conclusion of a constructior pe rmit an titrust review, then
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24 the purport of your question is correct.
25 However, I believe there would be leeway to O
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1 consider the construction permit review as the initial 2 stages of that review and to permit the simultaneous
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3 review.
Otherwise, you run into the situation that you V) 4 approach the operating license date and you do not start the 5 subsequent review.
6 There was somewhat of an analogous situation faced 7 in South Texas, I believe, where the Commission decided to 8 advance the operating license review to mak e the process 9 work better.
10 MS. KOHL:
Where in the statute do you find that
- 1 leeway?
12 MR. JABLON:
The question is -- o h, excuse me -- I 13 think the question is the scope you give to the words 14 " construction permit review."
And I just want to take a 15 second to find the statutory phrase.
16 CHAIRMAN ROSENTHALs Did you look at the 17 legislative history of this particular provision, Mr. Jablon?
18 MR. JABLON:
Yes, Your Honor.
l 19 CHAIRMAN ROSENTHAL:
And does it provide any 20 assistance in terms of your suggested construction of it?
21 MR. JABLON:
I think it is clear that Con /ress l
22 intended, as the "1preme Court said, in power reactors a l
23 two-stage proceeding, and the question is what happens when 24 construction permit antitrust review is not complete, so 25 tha t the processes can be deemed merged together.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 Let me be very pract? al here.
I believe that 2 whether we get or are denied the rights we a;e seeking in 3 the construction permit antitrust review, either way, that 4 there ought not to be a need for a subsequent review, 5 because the standards would be the same.
6 In other words, I think you finish the 7 construction permit antitrust review, the construction 8 license conditions would attach, they would become part of 9 the operating license, and there would be a scintilla in 10 tim ? where, okay, the construction permit review is 11 finisaed, you look at the operating license review, 12 obviously the facts would be the same.
Therefore, we are 13 talking about the same thing.
14 To the extent that there were a possibilit.y that 15 the standards might be different or that you might look at 16 dif feren t things, i tmakes sense to me to look at the l
17 possible antitrust problems in connection with operation 18 now, becauce you are coming up before operation will take 19 place.
20 MS. KOHL:
What if the Commission completes its 21 review of the operating license proceeding before the l
22 antitrust review is completed, can the Commission issue the 23 operating license?
Is there anything in the statute that 0)
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24 would preclude that?
26 MR. JABLON:
I would think under your Davis-Besse ALDERSON REPORTING COMPANY,INC, l
400 VIRGIN'T AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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1 decision, the grandfathered case, that you cannot, I would 2 think that the sensible thing to do would really be to merge 3 the or to consolidate the operating license and construction
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4 permit antitrust proceedings and, therefore, you have 5 touched all the bases.
6 MS. KOHL 4 Let us assume that there is no 7 antitrust proceeding in conjunction with the operating 8 license, there is only the ongoing antitrust proceeding that 9 ve have now in conjunction with the construction permit.
10 MR. JABLON4 Well, for the reasons stated in the 11 grandf ather case, except, of course, upon stipulation of the 12 par ties, I would say that you could no t.
13 CHAIRMAN ROSENTHAL.
Supposing the construction 14 permit proceeding comas to an end, the antitrust 15 cor struction permit proceeding comes to an end with whatever 16 result may be reached in it, could the following day the 17 Commission issue an operating license?
It has had its full 18 antitrust review on the construction permit level, which 19 presumably encompa ssed all of the Applicant's proposed 20 activity or actual activities right up until the time of 21 decision.
And down come ths, Licensing Board decision on, 22 s a y, September 1.
Could on September 2 the Commission issue 23 an opera ting license?
And if not, why not?
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24 MR. JABLON:
If you look technically a t the 25 sta tute and the Commission 's regulations, I would think not, ALDERSoN REPORTING COMPANY,iHC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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11 1 because the Commission would have to issue a notice.
They
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2 would have to do the antitrust review, the Staff or whoever,
/~T 3 look at the antitrust review, notice in the Federal Register V
4 the possibility of an operating license, and go through the 5 procedures for --
6 CHAIRMAN ROSENTHAL:
The question is whether there 7 have been significant changes subsequent to the construction 8 parmit review.
Now, obviously, if the operating license 9 issues withirt a day of the completion of the CP re'riew, 10 there is precious little room for any kind of significant 11 change.
12 What I am getting at is this:
I read this statute 13 -- and you can tell me if I am wrong -- as dealing with or U
14 envisaci7g the normal situa tion where the construction 15 permit antitrust review is completed well before the plant 16 is up for operating license, and when the plant comes up for 17 operating license there has to be given an opportunity for 18 someone to come in and say, " Wait a minute.
Between the 19 time you have completed tha t construction permit review and 20 now, the Applicant has become a pirate and is willy-nilly 21 knocking off competitors."
22 And, therefore, the result in the construction 23 permit antitrust proceeding should not be the last antitrust
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24 word, and so we are providing this opportunity to claim tha t 25 there have been some significant changes in the interim.
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Now, if, however, the construction permit gs 3 proceeding goes right up -- I am talking about the antitrust d
4 aspects, obviously -- goes right up to the door of the OL, 5 that construction permit proceeding presumably will have 6 considered all of the Applicant's activities along the 7 line.
And there is obviously in that circumstance no real 8 possibility of there being a significant change in that 9 pleading interim.
10 Now, why am I wrong in that analysis?
11 MR. JABLON:
Unless Florida Power E Light were 12 awf ully fast 13 CHAIRMAN ROSENTHAL:
Yes, well, I am assuming that 14 they are not that fast.
15 MR. J ABLON:
I think that speaking for Florida 16 Cities, for people in Florida Cities, speaking for people 17 who were involved in the construction permit process, that 18 the Commission could know this, that there just was not the 19 time f or a change.
20 The South Carolina cases at least imply that there 21 ought to be notice to other parties.
As far as Florida 22 Cities are concerned, that would be perf ectly acceptable.
23 DR. BUCK:
Excuse me.
It is your view then that
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24 the Commission has to do something positive no matter how 25 short the time?
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V ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 MR. JABLON:
I would think so, yes.
2 DR. BUCK:
Where do you find the specific 3 requirement either in the statute or in the regulation to 4 that effect?
5 MR. JABLON:
I would 6
CHAIRMAN ROSENTHAL:
Where does the regulation 7 say, in this hypothetical th t we have posed to you where the 8 construction permit antitrust review is completed and the OL 9 is ready to go, that the Commission must issue come kind of to notice?
11 MR. JABLON:
I find support for my statement 12 primarly in the South Carolina cases, the two Commission 13 decisions which spoke about the situation of Central Co-Op,
14 I believe it is, and the lack of notice it was perceived to 15 have.
I think, borrowing from the grandf ather case, Your 16 Honors wrote at some length and some persuasion as to 17 sta tutory interpia:ation.
I just tt. ink it makes sense not 18 to intepret the language as precluding starting operating 19 license review before the completion of the construction 20 permit.
21 But if you disagree, all we are trying to do is 22 protect ourselves in the event that somebod y might argue 23 tha t the construction permit antitrust conditions did not
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24 automatically attach to the operating license.
25 CHAIRMAN ROSENTHAL:
Let me ask you this D
,J ALDERScN REPcRTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTcN, D.C. 20024 (202) 554-2345
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1 questions With respect to anything that Florida Power E 2 Light has done up to this point which your clients regard as 3 having anticompetitive im plica tionc, have those been thrown 4 into the antitrust proceeding th t is now pending?
5 MR. JABLON:
Yes, Your Honor.
And if the Roard 6 merely said, if this Board merely said, that it is apparent 7 that anything that could be raised in the operating license 8 can be raised as part of the constrution permit review and 9 the license conditions would automatically attach, we have 10 no problem.
11 In other words, the reason I said I would only 12 take a minute, although I have taken longer, all we wanted 13 to sa; to you is that, as we have said in our brief, as far T
14 as we are concerned we have no problem with affirming the 15 Licensing Board either on grounds that the issue is q
16 premature or on grounds that the antitrust conditions 17 automatically attach so long -- and all we wanted to do is 18 protect our position -- that there was no adverse 19 consequence from not having an operating license proceeding.
20 CHAIRMAN BOSENTHALs Thank you.
21 Mr. Kucik.
22 ORAL ARGUMENT ON BEHALF OF PARSONS E WITTIMORE 23 BY MR. KUCIK
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24 MR. KUCIK4 Mr. Chairman, members of the Board, I 25 wanted to make a preliminary procedural point involving the ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345 m
15 1 relationship f rom Pa rsons & Wittimore's point of view of its
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2 petition in the construction licensing proceeding and its 3 position in the operating license proceeding.
4 We are here solely on an appeal f rom a denial of 5 our petition to intervene in the operating license 6 proceeding.
On August 5, as the Board is aware, in the 7 construction license proceeding, which is pending in the 8 context of an antitrust hearing, we were denied leave to 9 intervene.
to CHAIRMAN ROSENTHALs We are fully aware of that.
j 11 Can you tell me, just as a matter of vital interest, whether 12 you are planning to file objections with the Licensir.g Board 13 by September 4 or come before the Appeals Board by September 14 8?
Or has that not been decided yet?
15 MR. KUCIK4 I do not think it has been 16 definitively decided.
But I think what we will do is file 17 objections by September 4 with the Licensing Boa rd, with the 18 expectation that should the Board adhere to its position, 19 then we would appeal.
20 CHAIRMAN ROSENTRAL:
Before you get into your 21 argument, I would like to ask you a question with regard to 22 your brief.
The Licensing Board, as you are fully aware, i
23 decided this matter solely on the basis of our Marble Hill t ()
24 decision.
It thought that our Marble Hill decision was l
25 controlling authority for the proposition that it had no O
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1 jurisdiction to entertain antitrust issues.
2 Now, I think in that circumstance I wa s justified 3 in being somewhat curious as to what position your clients
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4 were taking with respect to Marble Hill.
And I read your 5 brief f rom cover to cover, and I do not find any reference 6 to the case.
7 Now, is it not fair for me to assume tha t if you 8 thought that decision was either distinguishable or in error 9 and worthy of our reconsideration, you would have said so?
10 And that normally is the case if a lower tribunal rests its 11 decisions on a single decision of the tribunal to which the 12 appeal is being taken, the appellant will either endeavor to 1
i 13 distinguish the case or will again, alternatively, claim 14 tha t it is worthy of reconsideration.
i 15 So I must say I was very puzzled by the absence of 16any reference in your brief to Marble Hill, and I just 17 wanted to know whether it is fair to assume that you 18 recognized that that really is controlling authority, since 19 you did not mention it?
l 20 MR. KUCIKs Marble Hill is controlling authority.
21 We think Marble Hill is distinguishable because of the 22 nature of the notice in Marble Hill and the f actual l
23 circumstances in this case.
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24 MS. KOHL:
Why did you not attempt to distinguish 25 i t in the brief?
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ALDERSoN REPORTING COMPANY,INC, l
400 VIRGINIA AVE., S.W., WASHINGTON. D C. 20024 (202) 554 2345
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CHAIRMAN RCSENTHAL:
Yes, why did you not?
2 MS. KOHL:
Is that not basic appellate practice?
3 CHAIRMAN ROSENTHALs In fairness also to your 4 opponents, who I think, if you thought it was 5 distinguishable, I think you should have indicated that i 6 your brief and given them an opportunity to respond to it in 7 writing.
8 MR. KUCIK4 I did not intend today but to argue 9 the antitrust aspects of the matter.
The point has been I 10 was not intending to distinguish Marble Hill, although I am 11 prepared to discuss that, if the Court wishes.
12 MS. KCHL:
But regardless of how you view the 13 relevance of Marble Hill, was that not the sole legal basis O
14 tha t the Licensing Board gave for its decision that you have 15 appealed here?
16 MR. KUCIKs Yes.
17 MS. KCHLs Regardless of what you think of it, I 18 assume you would have addressed it in some form.
It does 19 no t go, certainly, to the merits of the antitrust issues; it 20 arguably relates to a need for an operating license 21 proceeding to include and encompass antitrust issues, and 22 that is the essence of your petition to intervene below.
23 MR. KUCIK Yes.
24 MS. KOHL:
It makes it difficult for us, as a 25 reviewing body, to understand really where you really come O
ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1out on the very decision which you have appealed.
We can 2 only assume that you concede somehow th relevance of Marble 3 Hill and the way the Licensing Board employed it in its
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4 decision.
5 MR. KUCIKa Basically, our position was thisa 6 that we felt that because of the ongoing antitrust 1 proceeding in the construction license, that that was where 8 the antitrust issue was raised by Parsons C Wittimore, which 9 was new issues, ought to be heard.
This petition was filed 10 merely as a protective matter.
Both cases have been moving 11 along at the same time.
12 Marble Hill does sta te that, absent a clear 13 statement to the contrary, that a board that is designated O
14 to do environmental safety and health review does not do 15 antitrust review.
16 CHAIRMAN ROSENTHAL Is that what this board was 17 designated to do?
What was the composition of the Licensing 18 Boa rd?
Who was on it?
I mean by discipline; I do not mean 19 their names.
Was it three lawyers?
Was it one lawyer and 20 two scientists?
21 MR. KUCIK It was two scientists --
22 CHAIRMAN ROSENTHAL:
And one lawyer.
I realize 23 that you are not generally involved in our proceedings.
But 24 the f act of it is that this Commisalon has a practice of 25 assigning to proceedings which involve radiological health ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
19
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1 and saf ety and environmuntal issues, boards composed of two 2 scientists and a lawyer.
Antitrust boards, as you 3 appreciate, are generally either three lawyers or two 4 lawyers and perhaps an economist.
5 Now, I do not think there was any doubt in 6 anybody 's mind that this Board was established f or the 7 purpose of considering, assuming that there was a successful 8 petition for leave to intervene, the environmental and 9 radiologic 1 heal'_h and safety aspects of this application.
10 Certainly, while notice concedely did not 11 specifically exclude antitrust, neither did it indicate that 12 an titrust issues were to be within its ambit.
And if it had 13 indicated that, as Marble Hill points out, that would be 14 entirely contrary to the customary policy of this agency, 15 which is an understandable policy.
16 You do not have antitrust issues normally 17 considered by a board on which only one of the three members 18 is a lawyer.
19 MR. KUCIK.
As I say, we did argue in our brief, 20 as we construe the broad language of point 4 of the Federal
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21 Register Notice, the operating license proceeding, that it 22 was not limited to health and safety and environmental 23 issues.
But the antitrust aspects, insofar as Parsons C
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24 Wittimore was concerned, are before the Licensing Board now l
25 in the construction proceeding, and we have been denied l
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2 CHAIRMAN ROSENTHA L:
On the grounds that you are 3 inexcusably late and that the other four facters did not 4 balance in your f avor; is that correct?
5 MR. KUCIK4 Yes.
That we were denied intervention 6 on an appraisal of the late-filing criteria and on an 7 appraisal of the intervention standards.
8 The preliminary point I wanted to make was that in 9 tha t memorandum order Chairman Bloch said, at page 26, "We 10 conclude that 3RD's claim is a PURPA claim and not an t
11 antitrust claim.
It should not be admitted in this 12 proceeding. "
13 The order under review right now by this Appeal n
14 Boa rd states, at page 4,
"There is no question that the 15 interest of the Petitioners lies solely in antitrust 16 concerns.
The petitions are identical."
17 MS. KOHLa Is tha t not how you yourself 18 characterized them in your petition?
19 MR. KUCIK4 In pa rt, no.
I think the answer to 20 t ha t l
21 MS. KOHLS Maybe we should address a more i
22 f undamental issues How can the NBC, either the Commission 23 itself or any of its adjudicatory boards, enf orce or take 24 a ny action under PURPA?
Where do you get -- your brief 25 again f ails to cite to any specific provisions of the O
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-234f
_ - - - - - - ~ _ _ - -,. - -. - - _ - -... _.
I 21
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1 statute that would confer jurisdiction on this agency to 2 entertain any claims or right under that statute.
3 MR. KUCIK We are not asking the NRC to entertain 4 any claims under PURPA.
5 MS. KOHL:
Well, then we can forget about that, 6 and you are limited then to your antitrust issues?
I mean 7 you have to decide.
About a minute ago you just said that 8 you were raising claims under PURPA.
Are you or are you not?
9 MR. KUCIK.
No, what I said was we have PURPA 10 claims.
I would like to explain that for a moment, because 11 I think there may be some misunderstanding.
We are not 12 asking this Board to enforce PURPA.
'J h a t we are asking this 13 Board to do is to protect our rights under the Nuclear 14 Regulatory Commission's settlement conditions that apply to 15 qualifying facilities under PURPA.
16 What we are saying is that the settlement 17 agreement entered into gives certain rights to f acilities 18 such as us, and it is those rights tha t we are interested in 19 having protected.
We have two grounds for protecting them 20 One is antitrust, and the other is simply that in our status 21 as a qualif ying PURPA facility, we are impacted by those 22 con ditions.
23 MS. KOHL:
Well, assuming that you are e so-called
()
24 qualifying facility under PURPA, I still do not understand 25 where you get the jurisdictional basis for saying that the O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
22 1 NRC in any proceeding, whether it is this appellate
{}
2 per
'eding, whether it is the OL case or whether it is the 3 CP antitrust case, where can this agency intervene to
_ cotect and preserve those rights?
5 Secondly, the settlement agreement that you refer 6 to, as I understand it, that was only conditionally 7 approved, and the Licensing Board involved in that case 8 indicated tha t it permitted that to take effect subject to 9 any findings that the agency may make at a later point in 10 time to assure that the parties are in compliance with the 11 statutes th a t this agency is mandated to enforce.
12 MR. KUCIK:
That is true, but the review that is 13 going to go on is solely an antitrust review.
Our poin t is 14 this:
We are a qualifying facility within the meaning of 15 PUP A.
16 MS. KOHL:
Do we have to accept your word for 17 that?
I assume that that in itself is a legal issue and one 18 that the Nuclear Regulatory Commission, as I read PURPA, is 19 not entitled to make.
It would seem to me that that is a 20 judgment for the Federal Energy Be gula tory Commission.
21 MR. KUCIK:
As of the moment, we elected to file a 22 notice of qualification under the regulations of the Federal 23 Energy Regulatory Commission, and after that would have been
()
24 filed 54 days Florida Power & Ligh t, a postdate.
And that 25 matter is now pending.
l
(~l) l ALDERSON REPoRDNG COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
1
23 1
The opposition was based on'this contract dispute
()
t l
2 which has been brought up to your attention somewhat
{
3 obliquely, too.
But Judge Bloch, in ruling on the question 4 of whether we had a sufficient interest in the facility to 5 intervene in the antitrust proceeding, said he believed we 6 did.
He believed that our interest in the facility, despite 7 the contract dispute, was sufficient to allow us to 8 intervene had we not been late.
9 We did plead that we are a qualif ying facility, 10 and, as I say, Judge Bloch and the Licensing Board found 11 that we had a sufficient interest to assert those rights.
12 Section 10(a)(5) of the settlement agreement imposes some 13 transmission ob1?,Ttalons on Florida Power & Light.
They O
14 aff ect q ualif ying facilities under PUPRA specifically, and 15 we are within the geographic area covered.
I 16 So it is our position that we have a right to be 17 heard on those.
We have a right to be heard on the question 18 of whether they are adequate, whether they should be more 19 stringent, whether they she ld be dif ferent or supplemented.
I 20 CHAIJhAN ROSEN I still do not see where you 21 find the jurisdict ' ont
.oe in this agency for the
(
22 consideration of thos questions.
We do not enforce, as f ar l
23 a s I am aware, that statute.
We enforce th e Atomic Energy 24 Act.
We enforce the National Environmental Policy Act.
And 25 we enforce those specific antitrust statutes which are O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 enumerated in section 105(a) of the Atomic Energy Act.
2 Now, if you have got some rights that you are 3 claiming under PURPA, my impression is that those rights 4 have to be ascertained and enforced as they exist by the 5 Federal Energy Regulatory Commission.
6 MR. KUCIK:
I think the difference is that we are 7 not claiming here any rights under PURPA.
We are claiming 8 rights under a Nuclear 3egulatory Commission approval of the 9 settlement conditions which conf ers rights to PUEFA 10 f acilities.
11 MS. KOHLS Assuming all of that, then are you not 12 more argusbly -- should you not arguably be involved in the 13 CP antitrust proceeding?
How does any of that relate to the
'd 14 issue before us now, and that is, whether or not you are 15 entitled to raise any of these arguments whether you 16 characterize them as PURPA arguments or settlement agreement 17 arguments, how can you raise that in this particular 18 operating license proceeding?
19 MR. KUCIKs Well, here is our position on tha t a l
l 20 The operating license proceeding, when concluded, when the l
l 21 license issues, will import all of the conditions that are 22 presently attached to the construction permit and that will l
l 23 become attached to the construction licensing proceeding m
24 when it is concluded.
Florida Power E Light has conceded as 25 much in its papers in opposition to the Cities' brief.
s O
ALDERSoN REPORTING CoMPAN(,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 That means that section 10(s)(5) conditions on 2 transmission that affect Parsons C Wittimore will become
{
3 eff ectiva in connection with the operating license issued --
4 CHAIRMAN ROSENTHAL:
Is it the case if you have 5 something that you have a right to be heard on by this 6 agency, I would have thought that it grew out of the 7 antitrust proceeding on the construction permit level, that 8 is where you belong now?
9 You may not be entitled to get in there because to you are late, but you cannot, assuming that the Licensing 11 Board was correct -- and I do not know whether it was or 12 not, and I gather something will eventually will come to 13 grips with or may come to grips with -- assuming that the
, O 1e Licensing Board was right that you were inexcusably late in 15 your endeavor to get into the CP proceeding and that the 16 other f actors did not balance into your favor, I do not see 17 how you can then turn around and say, "Well, we can overcome 18 the otherwise consequences of our inexcusable lateness by 19 raising these things in an operating license proceeding."
f 20 MR. KUCIK:
Let me look at it this way for a i
21 second There are admittedly conditions in effect now and 22 that will become in ef fect in the opecating license that 23 aff ect Parsons C Wittimore.
The conditions were never that b
24 -- the fact that those kinds of conditions were under 25 scrutiny was never publicly noticed.
The January 15th O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
26
()
1 notice that the settlement agreement was under 2 consideration, the Federal Register Notice, simply listed 3 three questions.
None of them related to the kinds of
[}
4 issues that we are raising.
None of them mentioned that the 5 settlement acreement affected qualifying f acilities under 6 PURPA.
And the settlement agreement was --
7 CHAIRMAN ROSENTHAL:
This all may be --
8 MS. KOHL 4 Assuming all that is true, this is not 9 the proceeding in which you raise this.
This proceeding did 10 not even come into effect until March of 1981, when this 11 particular OL proceeding was noticed.
You may have 12 perf ectly sound arguments, but I do not understand how they 13 can be made in tha context of this particular case.
14 3R. KUCIK:
The difficulty, though, is this:
15 There are two proceedings pending.
We have asked to 16 intervene in both, and we have been denied in both.
It is 17 our position that we have a right to be heard.
l 18 Now, it is true that --
19 MS. KOHL 4 But you would admit, though, that in 20 an y judicial or quasi-judicial context, if you want to get 21 into something you have to meet certain basic procedural 22 prerequisites and satisfy standing requirements and so on, 23 regardless of the nature of the case.
There are plenty of
()
24 people that may have very good causes or very good arguments 25 to make, but unless you satisfy certain fundamental I
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ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 requirements that the tribunal might have, you are not going 2 to be able to make them.
Richt?
3 MR. KUCIKs Yes.
The timeliness argument, though, 4 is something we are going to bring up on appeal.
5 CHAIRMAN ROSENTHALs That belongs, I think, on j
6 your appeal if one comes up in the other matter in the 7 denial of your petition.
My point was simply thiss that if 8 you are entitled to press these points before this 9 Commission at this time, it would seem to me that your i
10 entitlement is in the construction permit antitrust 11 proceeding and not here.
And I think that is particularly 12 so in view of the statutory language that I discussed with 13 Mr. Jablon.
14 MR. KUCIKs Well, our situation is different from 15 his, and I can address that for a second.
But let me just 16 sake my concluding point on my preliminary poin t.
17 It seems to me that we have had two fundamentally 18 different opinions as to our pleading by the ts= licensing 19 boa rds.
One says it is a PURPA pleading, and one says it is 20 antitrust.
And each denies it.
21 I think the appropriate wa y to resolve this is to 22 have a consolidation of these f or decision at the appellate 23 level because I do not think it is a reasonable way to go 24 about the decision for each to say we should have done 25 something in the other and for us to be denied in both.
O ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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MS. KOHL:
Well, we cannot consolidate when we do 2 not even have an appeal in the other case yet.
3 MR. KUCIK:
Well, what I was suggesting was that O
4 MS. KOHL:
If you are arguing tha t the decisions 5 are inconsistent, you know, that is one thing.
But you have 6 had since August 5 to bring that to our attention and to 7 move for leave to make that kind of argumen+,.
8 MR. KUCIK We did.
We argued --
9 MS. KOHL:
It was received yesterday, your copy.
10 We, of course, were aware of it before, but we never 11 received it until yesterday, the copy of the opinion you 12 undertook to file.
13
.MR.
KUCIK:
What happened with that was that the
()
14 opinion came down while all of the lawyers on this case were 15 out of the office, and we just got back the day before 16 yesterday and just had to -- but we had asked initially that 17 this Board hold this appeal as a protective appeal until 18 resolution of the issues in the construction licensing 19 proceeding.
And I think the Board can still do that.
The question here is a little bit perplexing and 20 is novel.
This is the first settlement agreement that we 21 know of, the first license condition tha t the Nuclear 22 Regulatory Commission has ever issued that specifically 23 deals with qualif ying f acilities under PURP A.
There are no
()
24 procedures for giving PURPA facilities t.ie right to be heard 25 ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
29
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1 on those conditions.
2 And I think it is fair to say that they should 3 have the right to be heard.
The conditions do affect them, 4 and at some point when they have no discipline, they should 5 be entitled to be heard on them.
6 MS. KOHL:
Where do you derive that right?
Do you 7 derive it from PURPA itself or do you derive it from the 8 statutes that we are mandated to enforce?
9 MR. KUCIK Fron section 189 of the Atomic Energy 10 Act, as amended, which says that a person has the right to 11 be heard before this agency.
12 MS. KOHL:
Is that an absolute and unqualified 13 right without regard to certain procedural and other
(")
\\/
14 prerequisites that the agency might enforce or apply?
15 MR. KUCIKs No.
The agency is en titled to make 1S reasonable conditions.
17 CHAIRMAN ROSENTHAL Does i',have to be an 18 interest which is within the zone of interests inter ded tc 19 be protected by the statutes involved?
Now, I do not know 20 syself of any statute we are called upon to enforce that has 21 within its particular zone of interest the kind of PURPA 22 claim that you are now making.
23 MR. KUCIK I think it has to be within the zone
()
24 of interest of the statutes enforced by the Nuclear 25 Regulatory Commission because it is a condition of a Nuclear O
l A_ son e.ee_ c_.,Nc.
400 VIRGINIA AVE., S.W., WASHINGTON. D C. 20024 (202) 554-2345
30 1 Regulatory Commission license.
The transmission provisions
{}
2 that we are interested in being heard on are in the Nuclear 3 Reg ulatory Commission license.
4 We are not asking this Commission to enforce 5 PURPA, but simply to give us an opportunity to be heard on 6 its imposition of transmission conditions on f acilities 7 having our status.
I think that means that it is within the 8 ambit of the proceeding for the licensing of St. Lucie 9 Number 2, and the proreefing is broken up between operating 10 license and construction license.
11 CHAIRMAN ROSENTHAL Even assuming that also, 12 where do you find the basis for your claim that you can 13 insert these concerns into an opera ting license proceeding, 14 particularly in the light of the language of section 15 105 ( c ) ( 2 ), unless you are arguing that does not apply 16 because you are not cominc in under antitrust provisions?
l 17 MR. KUCIK4 On this aspect of our argument, the 18 argument that we have rights of status as a qualifying 19 f acility, 105 does not apply.
l 20 CHAIRMAN ROSENTHAL:
This is not antitrust claim, 21 then, right; notwithstanding the f act that it was 22 characterized as an antitrust claim?
23 MR. KUCIK Well, what we said was that we had two
()
24 reasons for having our rights enforced.
One was because 25 Florida Power C Light had committed -- a chain of O
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1 circumstances occurred:
They refused to wheel for us, which 2 is a violation of the antitrust laws and also because these
(}
3 conditions, transmission conditions, were put into the j
4 license.
5 CHAIRMAN ROSENTHAL.
Your full time has expired.
6 I will give you a little rebuttal time in light of the fact j
7 that a lot of your 25 minutes was consumed in questions.
8 MR. KUCIK4 I just would like to make one other 9 comment, if I might.
Under section 191 of the Atomic Energy 10 Act, the licensing boards have been delegated authority to 11 modify, amend, grant, or deny any license under the 12 provisions of the A tomic Energy Act or any other provision 13 of law.
O 14 MS. KOHL:
Mr. Kucik, I just have one question by 15 wa of background.
When did your client, Pa rsons C Wittimore 16 and Resources Recovery, come into existence?
17 MR. KUCIK4 They were in existence, I believe in 18 -- I am not certain.
The contracts, they would have to have 19 been in existence in 1976, and it was sometime before that, between '72
'76, for Resources Recovery.
Parsons C l
20 l
Wittimore has been in existence a long time.
21 MS. KOHL:
So you have been around since the 22 inception of the CP case?
23 MR. KUCIK4 Parsons & Wittimore has existed.
We s
24 did not know that anything was happening in the CP case that 25 (a~h J
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 would affect our opera tion of the facility in Dade County.
2 In f act, va did not learn that until late March or early
(}
3 April when a copy of the settlement was, wi th ou t public 4 register notice, put into the file at the Nuclear Regulatory 5 Commission.
There never was a public notification that any 6 of this was going to occur.
7 CHAIRMAN ROSENTHAL:
Mr. Bouknight.
8 ORAL ARGUMENT CN BEHALF OF FLORIDA POWER & LIGHT COMPANY 9
BY MR. BOUKNIGHT 10 MR. BOUKNIGHT:
Mr. Chairman, members of the 11 Board, you have before you two petitioners who filed papers 12 requesting for what they style as " antitrust hearings."
13 They filed it beore a licensing roard which is authorized to O
14 conduct a hearing on health and safety and environmental --
15 CHAIRMAN ROSENTHAL:
Now, you say " authorized."
I 16 read the notice issued in this instance, and I did not see 17 anything that specifically limited the hearing to 18 environmental and health and safety issues.
Was I wrong 19 about that?
Can you point me to the language which has that 20 restriction in it?
l 21 MR. BOUKNIGHT:
No, I could not quote you the 22 language which has that restriction in it.
I would say two 23 things to you:
The first is that this is the kind of formal 7s
(_)
24 notice specifying what this board was to hear which was 25 bef ore the Appeal Board in the Marble Hill case.
And that O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
33 1 case would be determinative.
However, there is another 2 point here --
3 CHAIRMAN ROSENTHAL:
Well, now, wait a minute, 4 bef ore you go further than tha t, I have not taken the 5 trouble to go back into the files and extract the Marble 6 Hill notice.
7 MR. B3UKNIGHT:
I do not purpcrt to have done so 8 either.
9 CHAIEMAN RCSENTHAL:
I do not think it is quoted 10 directly in tha decision, but I was under the impression 11 that it might have been a little more specific than was this 12 notice.
13 MR. BOUKNIGHT You may well be correct.
I think 14 the point, however, even if one were to assume, which I 15 think one should not, tha t this notice could have 16 encompassed antitrust issues, there is another point here, 17 and that is there cannot be an operating license antitrust 18 proceeding pending anywhere before this Commission until the l
19 findings specified in section 105(c)(2) have been made.
So 20 you have a dif f erent situation than you had in Marble Hill, 21 and Harble Hill you had a construction permit proceeding 22 where an titrust issues, where consideration of antitrust l
23 issues is mandatory.
24 The issue before this Appeal Board was whether the l
25 Health and Safety Licensing Boa rd in Marble Hill could also O
l l
l ALDERSoN REPORTING COMPANY,INC, 400 VIRGINTA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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()
1 entertain antitrust petitions.
You decided that it could
]
2 not.
In this instance, you have a situation where there 3 could not be an operating license antitrust proceeding
{}
4 pending anywhere before --
5 CHAIRMAN ROSENTHAL:
'd e ll, let us leave the matter 6 of section 105(c)(2) to one side for the moment, and let us 7 just focus on Marble Hill.
8 Ms. Kohl was kind enough to provide me with a copy 9 of the notice of hea ring in Marble Hill, and I can assure 10 you it does set out specifically the issues which are to be 11 considered.
The first issue is pursuant to the Atomic 12 Energy Act, then issues pursuant to NEPA, then issues 13 pursuant to limited work orders.
14 DR. BUCK:
In addition to that, it sets out the 15 licensing board amendments.
i 16 CHAIRMAN ROSENTHAL:
So one would have to, !
17 think, agree that this notice is an entirely different breed 18 of cat f rom the notice that we have got here in terms of its l
19 specificity on the issues to be considered.
I 20 Now, if you will accept my word on that for the 21 momen t, where does that lea ve your Marble Hill argument, as 22 such, leavino aside again section 105(c)(2)?
23 MR. BOUK NIGHT 4 I think it leaves my Marble Hill
()
24 argument with two strings to my bow.
The first is that if 25 you read the notice that was issued in this case, it gave no l
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35
()
1 hint that antitrust issues would be entertained.
It 2 certainly indicated thLt other matters would be considered.
(J~T 3
And secondly, as the Appeal Board observed in 4 Marble Hill, there is a reason why these antitrust issues 5 are not ordinarily considered by a licensing board 6 designated to consider health and safety issues.
7 And in light of Marble Hill, for a notice which 8 was merely silent on antitrust concerns to be interpreted as 9 a decision by the Commission in this particular instance to 10 depart from its unvarying oractice in the past and to 11 entrust both antitrust and health and safety matters to the 12 same licensing board I think would be completely 13 inconsistent with the Marble Hill decision.
O 14 MS. KOHL:
Is there anything in the Atomic Energy 15 A ct, though, to preclude the Commission from ordering any 16 licensing board that has been convened to hear an operating 17 license proceeding from entertaining also in the context of 18 that same proceeding antitrust issues?
19 MR. EOUKNIGHT No, Ms. Kohl, there is not.
I 20 think that assuming, as the chairman asked me to assume, 21 tha t we did not have the 105(c)(2) problem, the question 22 would be whether they intended to do that through this 23 notice.
If the question were arising as a matter of first
(
24 impression, it might be one thing.
But where the matter was 25 litigated in another context, in Marble Hill, and where a O
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36 1 decision was handed down holdin( tha t the legisla tive
( ';
2 history contemplated that except in very exceptional 3 circumstances the Commission would designate dif f erent 4 boards to do it and where this notice gives you no hint that 5 it is an effort by the Commission to make this one of those 6 extraordinary circumstances, then it seems to me that is a 7 pretty compelling case.
8 MS. KOHLa But does not Marble Hill really address 9 a different circumstance?
Does not Marble Hill just simply 10 say that it is a matter of long standing and good Commission 11 policy that we will have separate licensing boards here, 12 antitrust issues, and safety and environmen tal issues?
13 Whereas in this case the real issue, is it not, whether or
}
14 not this particular operating license proceeding should hear 15 antitrust issues when the antitrust review in the CP case 16 has not yet been completed?
17 MR. BOUKNIGHTa I think not.
18 MS. KOHLa It is not quite the same issue.
19 MR. BOUKNIGHT:
I think there are a few jumps 20 there which I cannot make.
And one of those jumps is the l
21 195 ) c s ( 2 ) finding.
It is important here.
In the absence of 22 the 105(c)(2) finding, I do not think, first, that the 23 Commission without -- this notice said explicitly, "We will
()
24 entertain antitrust petitions in response to this notice 25 without the Commission first having made the 105(c)(2)
O( -
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1 finding," then the notice would have been illegal and I 2 think would have been set aside.
Those proceedings would
~}
3 have been set aside on appeal.
4 And where that finding has not been made, there 5 a re a lot of jumps to make to begin specula ting as to what 6 would happen in the future were that finding once made and 7 were the Commission --
8 CHAIEMAN ROSENTHAL:
You say that findirg cannot 9 be made here at this time because the construction permit 10 antitrust review has not been completed?
Is that your 11 position?
12 ME. FOUKNIGHT.
I think I am saying two things.
I 13 think I am saying that without regard to the status of the O
14 construction permit antitrust proceeding, that 105(c)(2) 15 finding cannot be made here at this time and could not have 16 been made by that licensing board below.
17 And I am saying, secondly, that under the l
l 18 Commission's decisions, the Commission or its delegee, the 19 Director of Nuclea r Reactor Regulation, cannot make that 20 finding until the construction permit proceedings are over.
21 DR. BUCK 4 All right, then, could not this notice 22 of hearing be an invitation to anyone?
And, by the way, 23 this notice of hearing of this case says nothing about 24 anything except the interest of people who viSh to 25 intervene, and certainly antitrust problems can be of ALDERSON REPORTING COMPANY,INC, 400 VIRGINtA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 interest to them.
2 Now, could this notice of hearing not be read as a 3 request that if you know anything in the antitrust hearing, 4 let us know and asybe we will be put up a separate hearing?
5 It does not say that there is going to be one 6 hea ring.
This is a notice of opportunity f or hearing in 7 matters of interest.
8 MR. BCUKNIGHT.
Dr. Buck, first of all, I do not 9 think the notice can be f airly read that way.
But even if 10 you were --
11 DR. BUCK:
Well, I fail to see where you say it 12 cannot be read tha t way.
13 MR. 20UKNIGHT:
Well, it does not say anything 14 about an titrust issues.
15 DR. BUCK:
It says " interest."
That le all it 16 sa y s.
That's all it says about anything.
17 MR. BOUKNIGHT:
But I thinkyou have to look at the I
18 ba ;kground.
Once again, the background includinc the Marble 19 Hill case.
The Commission was not writing on a blank i
20 sla te.
It knew that in the past there had been people who, 21 in response to notices in the health and safety arena, had 22 filed petitions seeking to raise antitrust issues and that l
23 the question of whether those could be entertained had been
()
24 litigated.
l 25 And I do not think that in this instance there i-l ALDERSoN REPORTING COMPANY,INC, i
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1 anything about that notice that is uncommon in contrast to 2 the notices of the health and safety operating license 3 notices tha t the Commission is publishing today.
4 DR. BUCK.
I find it very peculiar that in the 5 Marble Hill case the Commission went to extremes in setting 6 out the issues to be taken care of, nimbering tnem, setting 7 them os It named the licensing board panel, which is 8 obviously two scientists and a lawyer, and obviously they 9 are not going to do your antitrust hearing.
That was the 10 decision tha t was made by the appeal panel.
11 Now, there is a vast difference between that and 12 this recent notice in this case for an opportunity of 13 hearing, because that very carefully says that the 14 petitioner's right under the Act to bn made a party to the 15 proceeding, the nature and the ertent of tue petitioner's period.
16 property, financial, and other l'terest 17 MR. BOUKNIGHT:
Dr. Buck, I would make a second 18 point, if I may, and that is, even if you were to read that 19 notice as inviting the submittal of views on antitrust 20 matters, then those views would be submitted to the 21 Commission and the Commission then, in its discretion, if it 22 wanted to make the finding under section 105(c)(2) and felt 2'3 tha t it was not barred by its decision in the South Carolina
()
24 case and the statute, then the Commission would do that.
25 What we have got here is a licensing board which O
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1 clearly did not have the authority to make tha t section 2 105 (c ) ( 2 ) finding.
3 CHAIEMAN ROSENTHAL:
What is your response to Mr.
4 Kucik's argument that insofar as he is asserting PURPA 5 claims, they do not f all within section 105 at all?
e 6
MR. BOUKNIGHTs Well, I certainly have a response 7 to Mr. Kucik's view on that.
I will summarize it for you 8 briefly here, but I think you may be hearing it again in a 9 month or two.
First, the Atomic Energy Act does not create 10 any PURPA rights.
That seems to me to be quite obvious.
11 Secondly, the license conditions that Mr. Kucik 12 has cited to you did not in any way restrict and could not 13 be read to restrict anything that Parsons & Wittimore can do 14 under PURPA or any relief that the FERC can give Parsons &
15 Wittimore under PURPA.
16 I just find it difficult to put any logical 17 parameters around an argument that PURPA gives someone a 18 right to be heard before this Commission.
19 CHAIRMAN ROSENTHAL:
Let me ask you this, Mr.
20 Bouknigh t.
Do you think that Florida Power & Light can get 21 an operating license for this f acility before the antitrust 22 proceeding now underway is completed?
MR. BOUKNIGHT:
Yes, sir, I do.
23 CHAIRMAN ROSENTHALs So this is really a "Ca tch-22" situation, is it not, that on the one hand if 25 ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
41 1 they cannot raise antitrust issues in connection with the
(}
2 operating license because the construction permit review has 3 not been completed, and yet notwithstanding the fact that 4 the construction permit proceeding is not complete, an 5 operating license can issue, so that everything works in 6 f avor of Florida Power & Light, does it not?
7 MR. SOUKNIGHT:
Well, something is working very 8 strongly against Florida Power & Light Company, and that is 9 that that construction permit proceeding is going on and we
~
10 are not at the evidentiary hearing stage yet.
11 Now, Mr. Kucik petitioned to intervene in that 12 proceeding, and his petition was denied for two reasons.
13 And I think there are more reasons why it should have been w
14 denied.
15 CHAIRMAN RCSENTHAL:
Well, we are not going to 16 litigate this morning the question of whether it was l
17 pro perly or improperly denied.
That i s going to be a 18 separate matter, if it comes to us at all.
19
- 35. KOHL:
What if the operating license is ready 20 to be issued and in f act issued by the Director and at a 21 subsequent point in time the antitrust review is completed 22 and it is the determination of the licensing board that 23 certain conditions tha t Florida Power E Light is in
()
24 violation of the antitrust laws and tha t ce rtain conditio s 25 should be or should have been applied to both the CP and th O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345 I
1
42 l
1 OL.
Then what happens?
Is tha t just tough luck for Florida
()
2 Cities and Parsons & Wittimore and any other potentially 3 aggrieved party?
Or is there sone recourse that the 4 Commission would have at that point?
5 MR. BOUKNIGHT:
The Commission attached a S condition to the construction permit provid in g that the 7 construction permit was subject to whatever conditions might 1
l 8 eventually be ordered in this proceeding th a t is now going 9 on.
It is my understanding that that condition would carry 10 over just like all the other antitrust conditions to the 11 operating license.
12 dS. KOHL:
Even though the operating license would 13 have already been issued?
14 MR. EOUKNIGHT:
Yes.
We are in the same situation 15 a s --
16 MS. KOHLS But that antitrust licensing board then 17 would have the authority, a s you see it, to add subsequent 18 conditions to an already-issued operating license?
19 MR. SOUKNIGHT:
Yes, they would, as I understand 20 i t.
As I understand it, the decision to go ahead and issue 21 tne construction permit, no twith standing the pendency of 22 that proceeding, was based on the attachment of a condition 23 tha t any order subsequently issued by that licensing board
()
24 or the Commission would attach, or any conditions contained 25 in those orders would attach to that permit.
And as I see O
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()
1 it, that would carry over directly to the operating license.
2 MS. KOHL Could those conditions be retroactive 3 to take recount of any injury that parties may suffer in the
{}
4 time period between the issuance of the operating license 5 and the subsequent conditioning of that license by the 6 antitrust licensing board?
7 MR. BOUKNIGHT:
No, I do not think they can be.
8 That would really be a question of assessing damages, and I 9 do not believe the Commission --
10 CHAIRMAN ROSENTHAL:
Assessing damages?
The point 11 is you have gotten an operating license before the antitrust 12 review was completed.
Now, is it not a matter of simple 13 equity that if, when that proceeding is completed, it turns O
14 out that there should have been certain conditions on the 15 operating license from the outset in order to rectify an 16 anticompetitive situation and any injury that was suffered i
i 17 in the interim be remedied ?
18 ER. BOUKNIGHT:
N o, sir, I do not think so.
19 CHAIRMAN ROSENTHAL:
I am sure your client does 20 not think so.
But I would like to know the reasons.
21 MR. BOUKNIGHT:
8? ell, I think that the reason is 22 that there is a difference netween being able to impose 23 remedial relief in the sense of license conditions and being
(
24 able to go back and order someone to pay money to someone 25 else.
Now, maybe I misunderstanding you.
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l 44 1
MS. KOHL:
Is that not in itself remedial effect, 2 ordering somebody to pay damages or to take some other 3 action?
Those are all forms of remedies.
4 MR. BOUKNIGHT:
Well, I do not read the Atomic 5 Energy Act as permitting the Commission to assess money 6 damages againnt an Applicant as a result of an antitrust 7 review.
8 MS. KOHLa Well, then, let us say the 7ommission, 9 aware of this potential situation, decides upon completion 10 of the operating license proceeding to withhold issuance of 11 the license until the antitrust review is complete.
Is that 12 within the agency 's authority?
13 MR. BOUKNIGHT:
It could well be within the 14 agency 's authority.
I am not certain of that.
If the 15 agency were to do that, the penalty on the customers in 16 Florida would be quite substantial.
17 I think the only other two points that I would 18 m a k e --
19 CHAIRMAN ROSENTHAL:
Your time is run. ting short.4 20 MR. BOUKNIGHT:
-- are:
The 105(c)(2) point, 21 which is, v ery simply, that that finding ha s not been made; 22 there cannot be an operating license antitrust proceeding 23 until it is made and that the only way it can be made is O
24 either er the Commission or its de1eeee, the 01 rector of 25 Nuclear Reactor Regulation O
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45 1
CHAIRMAN ROSENTHAL:
Could it be made before this 2 construction permit antitrust proceeding is completed?
3 MB. BOUKNIGHT:
Mr. Rosenthal, I do not think so.
4 I have two reasons for not thinking so.
The first is --
5 CHAIRMAN ROSENTHALs Have you looked at the 6 legislative history of this provision?
7 MR. BOUKNIGHT:
Yes, I have.
8 CHAIRMAN BOSENTHAL4 Does it provide any 9 assistance on that question?
10 MR. BOUKNIGHT:
It provides no direct assistance.
11 The indirect assistance tha t you f oresee from the 12 legisla tive history is that the purpose of the second 13 optional review is to make certain that after you have 14 completed your first review that someone has not turned 15 around 180 degrees on what you thought he was going to do in 16 the first review.
17 MS. KOHL 4 I do not understand wha t you mean by 18 the "second optional review."
19 MR. BOUKNIGHTa My understanding is that under 20 section 105(c)(2) the Commission ic not required to do 21 anything.
The Commission has the 22 MS. KOHLS Are they precluded from doing anything?
23 E3. BOUKNIGHT No, they are not.
They have the 24 discretion.
25 MS. KOHLS They are not?
We have the discretion O
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46 1 in this case to take a look at the antitrust aspects of this 2 matter in conjunction with the operating license.
3 MR. SOUKNIGHTs Let me put it this way:
I do not 4 mean they are not precluded from doitig anything; they are 5not precluded from making the finding provided in the 6 statute so long as there is a f actual basis for their making 7 that finding, unless they can find reasonably that there 8 have been significant changes in the Licensee's activities 9 or proposed activities, then as I read the statute, they 10 cannot hold an antitrust review in connection with the 11 operating license.
12 DE. BUCK:
Is the burden of that entirely upon the 13 Commission?
14 MR. EDUKNIGHT:
I think it is, Dr. Buck.
I think 15 that the provision is there simply to give the Commission an 16 opportunity to deal with the situation where someone has 17 turned a round f rom what he indicated he was going to do 18 during 19 DR. BUCK:
He does not know if nobody comes in and 20 tells him, "Look, something is happening down here and the 21 company is going wild," nobody says a thing to the 22 Commission; you say it is the Commission's responsibility to 23 sea rch this out before the operating license then?
O 24 Ma. e0UKurGHr=
se, eie, I 4o not thinx =ae 25 Commission has any responsibility under section 10E(c)(2) to O
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1 search anythino out.
The Commission has the power --
2 DR. BUCK:
How does it make a finding then?
r 3
MR. POUKNIGHT:
Well, it does not have to.
It
(]s t
4 does not have to.
And indeed, I think, in the early cases, 5 until the case involving the Texas u tilities arose, no 6 thought was given to section 105(c)(2).
7 CHA!RfAN ROSENTHAl:
It is your thought -- let us 8 take wha t I would hope would be a more customary situation; 9 namely, the construction permit antitrust review is 10 com pleted, several years later the plant is coming op for 11 operating license.
12 Now, at that point, I take it tha t any competitor,
13 potential comoetitor, could come to the Commission and say, 14 "We believe that in those ensuing years since the 15 construction permit review has been complete, there have 16 been significant changes in the Applicant's way of doing 17 business, and therefore we would like affirmative 18 significant changas determination in a hearing"?
They could 1
l 19 do that?
20 MR. BOUKNIGHT:
Yes, sir.
21 CHAIRMAN ROSENTHAL:
All right.
Now, absent that, 22 nobody comes to the Commission and says anything, your view 23 is that the Commission has no statutory responsibility to
()
24 itself to look at what the Applicant has been doing over 25 tha t course of years and to reach an independent conclusion O
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1 as to whether significant changes have or have not occurred?
2 MR. BOUKNIGHT:
Yes, sir, that is my view.
- Now, g~g 3 in practice, the Director of Nuclear Peactor Regulation does V
4 look at that.
5 CHAIRMAN RCSENTHAL:
Does he require the Applicant 6 to come forth -- now we are at the OL stage -- and tell him 7 just how he is conducting business and in what respect there 8 have been changes since the antitrust review at the CP level 9 was completed?
10 MR. BOUKNIGHT:
He has promulgated a regulatory 11 guide requesting that kind of information.
And moreover, it 12 is the practice of the Director of Nuclear Reactor 13 Regulation to solicit comments of others who may be involved.
s/
14 CHAIRMAN ROSENTHAL:
All right. But if the l
15 Director, getting this information, finds no problem and 16 nobody has come to the Director and sought affirmatively a 17 significant-changes determination, the Director, I take it, 18 does not issue something formally which says, "I have looked 19 a t this and I see no significant chnge"?
20 MR. BOUKNIGHT:
The Commission has issued a i
l 21 proposed regulation under which the Director would do that.
22 CHAIRMAN ROSENTHAL:
In every case, it would have 23 to be a " yea" or "nly," sort of like the nega tive l ()
24 declaration in the environmental field?
25 MR. BOUKNIGHT:
Yes, sir, tht is the scheme of the O
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l 14 9 1 proposed regulation.
+
2 CHAIRMAN ROSENTHAL:
That regulation has not been 3 adopted?
4 MR. POUKNIGHT:
That is my understanding.
5 DR. BUCK:
How long has it been proposed, do you 6 know?
7 MR. BOUKN!JHT:
I believe it has been -- I have 8 the Federal Register notice back at my desk.
it has been 9 proposed for several months.
10 CHAIRMAN ROSENTHAL:
Well, I am sure staff will 11 tell us about that.
12 MR. BOUKNIGHT:
Mr. Chairman, may I make one more l
13 point?
14
. Ch;JR M A N ROSENTHAL:
Yes.
15 MR. B3'1K NIGHT :
Mr. Jablon has suggested that 16 perhaps the Board should, in denying his petition, give him 17 some words of solace about the scope, respectively, of the 18 construction permit and operating license proceedings.
I 19 submit that someone who files a petition in a proceeding 20 tha t is not pending with the wrong licensing board is 21 entitled to nothing more than to have the petition denied.
22 Thank you.
23 CHAIRMAN ROSENTHAL:
A forthright declaration.
O 24 sr. Tae sen.
25 ORAL ARGUMENT ON BEHALF OF THE NUCLEAR REGULATORY O
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COMMISSIGN, BY MR. THESSE3
{}
2 MR. THESSEN:
Members of the Board, I would like 3 to return to what I think is the central question presented 4 by this appeals whether the licensing board below properly 5 defined the scope of its jurisdiction.
6 I believe the answer to that question depends upon 7 two f actors.
First, that the petitions of Farsons &
8 Wittimore and Florida Cities raise only matters of antitrust.
9 CHAIRMAN ROS ENTH AL:
That is denied by your i
10 adversary.
Your adversary claims it also raises EURPA 11 matters which are not antitrust.
12 MR. THESSEN:
I am prepared to si.ow to the extent 13 Parsons E Wittimore raises PURPA matters which are also (s
14 cognizable within the scope of the A tomic Energy Act, that s
15 those matters are, in essence, only antitrust matters.
Let 16 me show you how that is the case.
17 If we look at the petition of Parsons E Wittimore 18 on the question of PURP A rights, we can see that it hinges 19 completely on section 10 of the license conditions imposed 20 in the antitrust proceeding.
Now, the antitrust board in 21 that license proceeding was empowered to consider only 22 antitrust matters.
It imposed those conditions to ensure 23 that a situation inconsistent with the antitrust laws would i ()
24 not be crea ted and ma in ta in ed.
25 To the extent Parsons C Wittimore 's petition is l
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1 within the scope of the authority and within the scope of 2 the statutes that the Commission can consider, it must 3 therefore be an antitrust matter when it de pends on 4 antitrust conditions imposed by an antitrust board for an 5 antitrust purpose.
6 So I lelieve, to the extent the PURFA right 7 depends upon paragraph 10 of the settlement order, it really 8 is only an antitrust complaint.
To the extent that it 9 depends upon something other, it is outside the scope of 10 this agency 's jurisdiction, and clearly the agency could not 11 have delegated authority which it did not also have it 12 itself.
13 Let me go to the question of the jurisdiction of
(]
14 this licensing board.
The threshold inquiry is to determine 15 the parameters of the Federal Register notice, and that is 16 wha t was done by the licensing boa rd below.
As in Harble l
17 Hill, the critical inquiry was:
What does the notice say, 18 and wha t helps us decide what is the scope of that notice?
19 CHAIRMAN ROSENTHAL:
You do agree that the notices 20 in the two instances were quite diff erent in the sense that 21 the Marble Hill notice spelled out with considerable 22 specificity the Atomic Energy Act, National Environmental 23 Policy Act, and limited work authorization issues that were 24 to be considered?
25 MR. THESSENs Yes, sir.
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CHAIEMAN EGSENTHAL:
Nobody could have had any
{}
2 doubt in that notice that antitrust issues were not included?
3 ME. THESSEN That is correct.
The notice was (J-)
4 quite different, as was pointed out previously.
5 But the form of analysis in Marble Hill is the 6 same form of analysis which applies here.
And that is the 7 step of looking at the notice, reading it, and, to the 8 extent there is any ambiguity, looking at related matters.
9 In Marble Hill, the board considered two things:
the 10 wording of the notice, and the fact that a previous 11 antitrust review had already been noticed prior to this 12 aotice in issue.
13 I think the same form of analysis applies here.
14 The licensing board looks at the notice before it to I
l 15 determine the scope of its j urisdiction.
It is the 16 principal instrument of delegation.
17 When it reads the notice, to the extent there are 18 any ambiguities, it looks to three factors at the operating 19 license stage s 20 The first factor is section 105(c) of the Act; 21 The second factor is the long-standing Commission 22 practice which separates ant;'. rust issues from matters of 23 health, safety, and environment;
()
24 And the third factor, I think, which has not been
(
25 raised yet this morning, is the Summer decision -- I believe O
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1 it is CLI-80-28 -- in which the Commission looked at the 2 whole issue of significant changes.
3 Let me start with the Summer decision.
In Summer,
{}
4 the Commission was f aced with an analogous issue:
whether a 5 materially identical Federal Register notice, the notice 6 tha t we have before us today, of March 9, whether that 7 materially identical notice put Intervenors and warned them 8 of the need to raise antitrust concerns.
9 It was important because in that case a petitioner 10 had filed f or a significant-changes determination several 11 months late, in tne sense that the operating license had 12 been previously no tice d about a ye.r and a half before.
The 13 Commission had to determine whether that notice put the O
14 Intervenors on warning of their need to raise antitrust 15 questions.
i 16 The Commission looked at that notice which was, 17 again, materially identical to the one before us, and 18 indicated that the notice dealt exclusively with matters of 19 health, safety, and environment, and concluded that it did 20 not put the --
21 MS. KOHL:
Counsel, how does a party with a 22 legitimate antitrust claim lay that issue in the context of 23 an operating license proceeding?
()
24 MR. THESSEN:
The statute section 105(c) sets 25 forth the procedure, and the Commission has held that, in O
i ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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54 1 South Texas, that the procedure at the operating license 2 stage is part of a two-step process, and only within the 3 context of licensing will antitrust questions be considered.
O 4
The petitioner f or intervention must read that 5 statute and determine whether the previous antitrust review 6 has been com pleted.
On the facts of this case, there is no 7 dispute that that proceeding has not been completed.
8 CHAIREAN ROSENTHAL:
What represents completion?
9 MB. THESSEN:
Under the Commission's standards in 10 Sunmer, it requires at the very least the a ntitrust review 11 by the Attorney General, with his letter, and any subsequent 12 hearings of the Commission on the ma tter.
13 CHAIRMAN ROSENTHAL:
Well, now, if it goes to 14 heardag before a licensing board, the licensing board 15 re.nders its decision, is that the end of it?
Or suppose 16 there is an appeal and, as I think is common knowledge, the 17 appeal boards are not exactly swift in the disposition of 18 antitrust a ppeals.
Now, supposing, as, you know, in the 19 recent Farley case which was up here for a couple of years, 20 appeal is pending, is the antitrust review complete?
Could 21 you come in then seeking a significant-changes 22 determination?
And if so, as of when did the significant 23 change have to have occurred?
O 24 MR. THESSENs Your question is when did the V
25 previous antitrust review end?
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1 CHAIEMAN ROSENTHAL:
Well, the sta tute, yes, talks V
2 in terms of --
3 MS. KOHL.
It just says " previous review."
It 4 does not use the word "conplete.?
5 CHAIPMAN ROSENTHAL:
" Subsequent to the previous 6 review by the Attorney General and the Commission under th.is 7 subsection. "
Now, does the previous review have to se 8 complete?
And if su, what represents completion?
9 MR. THESSEN:
Let me answer that question in two 10 parts.
On the facts of this case, the Summer decision is 11 controlling.
When continuing hearings are ongoing in 12 connection with the construction permit antitrust review, 13 subsequent to the finding that significant changes be O
14 subsequent to cannot be mad e, and the Commission so held in 15 Summer.
16 Now, let us take the hypothetical, which 17 admittedly is dif ferent from th facts of this case, where a 18 decision has been rendered at the construction permit 19 antitrust stage.
The Commission has not answered this 20 q ue stion.
I think what we would have to do to answer it is 21 to look at section 105(c) of the statute and look behind 22 that statute to understand its purposes.
23 And I think that analysis is also at the heart of I
24 the ambiguities and uncertainties which petitioners have 25 here.
That 105 proceeding requires the Commission prior to O
1 l
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56 1 issuing a license to consider all significant elements.
2 Whether that is --
3 MS. KOHL:
But the Commission cannot issue an nU 4 operating license until the antitrust review is complete?
5 MR. THESSEN4 That is the Staff's position, based 6 on the Commission's analysis in Water Firth and --
7 CHAIRMAN ROSENTHAL:
They can or cannot?
8 MR. THESSENs They cannot issue a license.
9 CHAIRMAN R OS ENTH A L:
So you and Mr. Bouknight do 10 no t see eye to eye on that?
11 MR. THESSEN:
I think that is correct.
12 CHAIRMAN ROSENTHAL:
So that we could look down 13 the road, presumably, and see yet another battle in this
(~)
V 14 case?
15 MR. THESSENs The staff believes the Water Firth 16 decision of the Commission as well as the appeals board 17 decision in Davis-Besse make it clear that licenses will not 18 issue until the previous antitrust review has been completed l
19 unless all parties agree.
And that is the positin of the 20 Staff as well.
21 MS. KOHL:
Where in the statute do you get the 22 support for holding up the issuance of the license on that 23 basis?
Would that not be agency action unlawfully withheld
)
24 under the APA?
25 MR. THESSEN First, we are not faced with that O
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1 situation here.
let me point ' nat out initially.
2 ES. KOHL:
It is something that we cannot be CJ}
3 completely ignorant of in our considera tion of this case.
4 We are talking about closing the door on parties and 5 eliminating them from a proceeding.
And since it is likely 6 that this particular operating license will not go through 7 adjudication, it may well be issued in the near future.
And 8 given this current posture of the antitrust review case, it 9 is likely that that will not be resolved in the near 10 f uture.
So we may well be f aced down the road with this 11 particular hypothetical situation.
12 MR. THESSEN:
let met see if I can be responsive 13 in this fashion.
In the present proceedina what we are O
14 asking is what is the jurisdiction of the operating license 15 hearing board?
That is the issue before us.
Whether 16 Parsons E Wittimore has some forum someplace in this agency 17 is not the question.
18 So, first of all, we must focus on the operating 19 license antitrust -- excuse me -- the operating license 20 hearings board's jurisdiction when we decide the merits of 21 this particular case.
22 With respect to what authority the Staff points to 23 for its conclusion that an operating license cannot issue
(
24 until the antitrust review is completed, I think we must 25 look at the same legislative history that this appeal board O
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i 58 1 and the Commission canvassed when they decided Davis-Besse
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2 and Water Firth, respectively.
N 3
That legislative history makes clear.that Congress 4 was ref erring to a pre-license antitrust re vie w.
It was 5 important that that review be completed so the Applicant 6 knows where he stands before he builds an expensive plant 7 and because once the license is issued incentives a re 8 dif ferent for cooperation on matters and what not.
9 The timeliness f actor is also considered.
This 10 antitrust revev could go on forever if we did not have it as 11 a pre-license proceeding.
12 CHAIEMAN R OS ENTH A.L:
But it has been going on 13 forever anyway, has it not?
14 MS. KOHL:
I assume that was a rhetorical question.
15 If what you say is true, you are basing your 16 a rg umen t on the legisla tive history.
How do you deal with 17 the actual language of the statute itself, which, of course, 18 is always what you resort to firsts tha t is, 105(c)(6)?
19 That seems to give the Commission the authority not only to 20 issue or to continue a license, to refuse to issue a 21 license, but also to rescind a license or amend it on the 22 basis of findings that an Applicant might be operation or 23 maintaining a situation inconsistent with the antitrust laws.
()
24 Does not the fact that that language appears and 25 seems to permit recision or amendment of an already-issued O
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1 license, that would seem to suggest that the OL can be 2 issued before the an titrust review is complete but the
()
3 Commission would have the opportunity to come in at that 4 time and apply relevant conditions on it?
5 MR. THESSEN I think your argument is persuasive 6 if it is not read also in the light of the Water Firth 7 decision.
The Commission is foreclosed --
8 MS. KOHL:
It is the statute that the Commission 9 is obliged to act in compliance with, not nece ssarily its 10 own interpretation or decisions.
11 MR. THESSEN No; I agree.
I agree.
And I think 12 if the Commission felt that its previous interpretation of 13 the sta tute was inaccurate, it would be, I think, in the
,()
14 first instance for the Commission to make that determination 15 bef ore the Staf f or any other board could conclude 16 dif f erently.
And that is the basis.
We read the l
17 legisla tive history the same as the Commission does.
l 18 MS. KOHL So your view is that a licensing board 19 and an appeal board are bound by prior Commission decision 20 a nd in no instance could authorize the issuance of an 21 operating license prior to the completion of the antituust l
22 review?
I I
23 MR. THESSEN The decision in Water Firth and the 24 language there is pretty straightf orward and would be hard j
25 to distinguish, I believe.
And the Commission clearly
(
l l
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1 intended that an operating license not issue.
2 But let us look at what is at stake in this 3 proceeding and how that may affect the issuance of an 4 operating license.
It is clear that the operating license 5 must be held in obeisance to the construction permit 6 antitrust review which is still ongoing.
It is also clear 7 tha t that construction permit antitrust review can consider 8 every significant event and every significant element in the 9 antitrust posture of the A pplicant, Florida Power C Light.
10 CHAIRM AN ROSENTH AL:
If there are significant 11 changes from the time that the antitrust proceeding started, 12 s a y, the thing is before a licensing board and it went 13 bef ore the licensing board two years ago and it is wending 14 its weary way on.
And if 'at some point during that period 15 there is a significant change, that could be considered by 16 the licensing board in the CP antitrust proceeding?
17 MR. THESSENs If it has not rendered its final 18 decision.
19 CHAIRMAN ROSENTHAL:
I am assuming that it is 20 ongoing.
l 21 MR. THESSEN:
Yes.
22 CHAIRMAN ROSENTJAL:
And now a party who was 23 already in the proceeding could move for leave to amend its
()
24 petition to assert these new contentions ba sed upon 25 significant change?
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MR. THESSEN.
Tha t is correct.
2 CHAIRMAN ROSENTHAL:
And a party that was not in 3 the proceeding could at least seek intervention, assuming as 4 justification for its tardiness the fact that it was only 5 these new developments that gave it concern ?
6 MR. THESSEN:
Had good cause because the 7 developments did not previously exist.
8 CHAIRMAN ROSENTHAL:
Now, would you agree, 9 therefore, that the purpose of 105(c)(2) was simply to cover 10 any interval of time which might exist between the 11 completion of the CP antitrust review and the operating 12 license?
13 MR. THESSEN:
Yes, that ir correct.
14 CHAIRMAN ROSENTHALs Does the legislative history 15 make that clear?
l 16 MR. THESSENs I think, yes, it does, and I think 17 f or this reason:
What is enshrined in 105 is the principle 18 that the Commission, when it finally authorizes the 19 operation of a nuclear power plant, that the Commission is 20 satisfied that that operation will be consistent with the 21 antitrust law.
22 The Congress set forth the two-stage proceeding 23 for the benefit of Applicants to make sure that before they
()
24 made a huge investment in these power plants that they knew 25 what their antitrust conditions would be.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 t
62 1
MS. KOHL:
But that is not really relevant here, 2 because they were granted the construction permit and began 3 in 1977 before the antitrust proceeding was even --
4 MR. 1:ESSENs Yes, but all parties agreed to the 5 issuance of that permit.
6 MS. KOHLS Who were the parties that agreed to 7 that at the time?
8 MR. THESSEN:
I believe at the time Florida Cities 9 was involved in the proceedinc, the Staff was involved in 10 the proceeding, Justice Department, and the A pplicant.
11 Parsons & Wittimore had not yet come on the scene.
12 CHAIRMAN ROSENTHAL:
Now, can you refer me to some 13 specific legislative history that cupports your construction 14 o f the purpose underlying 105(c)(2)?
15 MR. THESSE N:
I would point to the amendments of 16 10 5 ( c) in 1970.
And the legislative history which was 17 canvassed by this appeal board in Marble Hill and in 18 Davis-Besse and the Commission's look at the same l
19 legislative history in South Texas.
20 And I forget the chairman of the committee's name 21at the time, but he makes clear his concern that the second 22 antitrust review be an entirely new proceeding which goes 23 over all the same grounds.
24 And he says, "Look, there will be no end to 25 litigation, there vill be no finality to the Applicant's I
O ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
-- _,-. _.-_~. --,-. _ _,. _
63 1 investment decisions, and we just do not want to do that.
2 Tha t would be unfair.
What we do want to do, however, is 3 make sure that we do not miss any significant elements.
So 4 we will put in this limited second phase.
If any 5 significant changes take place, we will allow the Commission 6 to have a hearing, having made that determination."
7 DR. EUCK Well, maybe I am not understanding all 8 this legal arg umen t, but it seems to me that there is a 9 problem here.
Supposing the construction antitrust hearing to finishes up and comes out with a decision, and that decision 11 suggests certain conditions.
Now, the next dqy the 12 operating license is issued on the basis of that.
13 What does a person do or a rompany do tha t looks 14 a t those conditions and says, "My gosh, this, as far as I am 15 concerned, interferes with my rights under the antitrust 16 Act"?
He was not in the case before, did not know those 17 conditions were coming down, and yet here a re the conditions 18 which he now believes are infringing on his rights.
What 19 can he do about that?
l 20 MR. THESSENs I think he has two recourses.
21 Parsons & Wittimore has gone through both proceedings and is 22 still involved.
23 DR. BUCK:
He has only got 24 hours2.777778e-4 days <br />0.00667 hours <br />3.968254e-5 weeks <br />9.132e-6 months <br /> to do O
24 enything, is thet right2 25 ER. THESSEN:
What you are suggesting is that ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
64 1 the re wa s no publica tion of the conditions prior to --
()
2 DR. EUCK I am saying that the license conditions 3 were proposed a nd so on, bu t the licensing board, the 4 antitrust board, comes up and puts on some conditions that 5 nobody had really considered before, and this is what 6 happens sometimes with antitrust boards, some completely new 7 conditions.
And the reactor is ready to go.
The Commission 8 says, "Ckay, we do not have to do any more about this," and 9 issues the license.
l 10 MS. KOHL:
Or, as a va ria tion, they were i
11 conditions that all of the parties to the particular 12 proceeding formulsted and were in agreement with, but they 13 were to the detriment of outside third parties.
14 DR. BUCKS That is what I am talking about:
15 working to the detriment of outside third party who was not I
l 16 in the thing at all, who sees that condition, maybe he does 17 not see the conditions for a week.
And yet, in the 18 meantime, the license was issued.
l 19 MR. THESSEN:
I think there are two principles, or l
20 several principles, here which would be looked to to address 21 this question.
First of all, the conditions apply only to l
l l
22 the behavior of the Applicant.
To the extent a party is 23 disadvantaged, it would not mandate anything affirmative on
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24 the part of that party.
party can always come in under 2.206 as 25 Now, a O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
~
65 1 soon as it finds out about the conditions and ask the
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2 Director of Nuclea r Reactor Regulation to issue a show-cause 3 order why the permit should not be modified.
4 Of course, finally, the petitioner could attempt 5 to intervene,in the appeal at that point and assert that the 6 decision should be stayed, the operating license should not 7 be issued.
8 DR. BUCK:
Well, he cannot appeal, suppose nobody 9 appeals?
10 MR. THESSEN:
You would have to intervene 11 successf ully first.
12 I think, though, that that situation is unlikely 13 and is clearly not the situation here.
The conditions which O
s/
14 are complained about have already been imposed.
Parsons C 15 Wittimore clearly has notice now what those conditions are, 16 is attempting to use what legal remedies it has to correct 17 wha <. it sees as problems with those conditions.
And it will 18 h' v e a t least another year bef ore the operation of this 19 plant commences, as I understand it.
So we are not talking 20 about the situation before us.
We are not talking about a 21 midnight imposition of conditions with a subsequent 22 operating license issuance.
23 I think, as well, the conditions, the situation
()
24 you describe, would not be in any way helped by a reading of 25 sectin 105(c) because whatever the conditions are themselves O
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
66 1 would not provide an opportunity for a significant-changes 2 determination.
You would have to have that determination 3 bef ore you could institute a second proceeding.
4 So even in those situations, if we read the right 5 to an operating license proceeding --
6 DR. BUCK:
They might involve significant enanges 7 to the third party that was not in the proceeding a t all.
8 The conditions put on by the licensing board might, to that 9 party, represent significant changes in operation by the to power company.
That is all I am saying.
11 What confuses me is, particularly in this notice 12 of hearing, it reems to me that the Commission is really 13 playing fast "nd loose with the definition of the word 14 "in te re st," because in some cases " interest" means a "whole 15 interest" and in other cases it only means " partly interest" 16 and so on.
I 17 But I am just concerned as to wha t happens here.
18 We seem to be caught in the riddle because of antitrust 19 hearings going on so long.
They always do.
And I am 20 concerned that something can drop between the cracks here, l
21 and I do not know how the party gets out of it, or the third i
22 p a r ty, for example.
23 MR. THESSEN:
I think in this case what your O
24 co cera is is thet 9 ree== c wittimore aes deem ter#ea dow-25 in the antitrust review.
They have been turned down here.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W. WASHINGTON, D.C. 20024 (202) 554 2345
67 1 And they do not know where to go.
2 However, let us look at the issue bcfore us right 3 now.
It is whether this operating license proceeding has 4 authority over antitruct questions.
Parsons & Wittimore's 5 complaint, to the extent it goes to matters within the 6 jurisdicton of the Commission, is concededly witin the 7 authority of the antitrust review board now empaneled at the 8 construction permit phase.
9 N obody denies, to the extent they allege issues 10 within the cognizance of our statutes, that that board has 11 the authority to consider the merits.
So there is a forum.
12 N ow, their hurdle is late intervention, and their hurdle is 13 the other procedural requirements, the nexus, interest, and 14 wha t not.
15 Now, in the BPI versus AEC case, the Court of 16 Appeals indicated that the Commission can put procedural 17 requirements on petitioners to intervene, that the 189 of 18 the state a authority to intervene is not absolute, and that 19 the interest that the Intervenor must show are interest 20 within the scope of the jurisdiction of both the board and, 21 more broadly, of the Commission.
22 Now, to the extent Parsons & Wittimore alleges 23 interest within the scope of the sta tu te, the broader 24 notion, they have an opportunity in the construction permit 25 phase, if they meet these proredural requirements.
Judge O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
68 1 Bloch has ruled tha t they d o not.
If they think that was 2 improperly applied, th ey have an appeal.
3 That does not mean, however, that because they may 4 allege interest within the broader scope of the statute, 5 that they necessarily have the right in this narrower 6 proceeding.
The case would be different if there were no 7 proceeding at all that could address the me rits of their 8 com plaint.
9 But that is concedely not the case here.
10 AdmitteCly, to the extent that they allege issues beyond the 11 scope of any statute we enforce, they are outside the scope i
~
12 of any proceeding we have.
13 CHAIRMAN ROSENTHAL:
Your time has expired.
14 MR. THESSENs Let me make one final point.
I 15 think the jurisdiction of the licensing board in this case l
16 is clea rly limited to the consideration of health, safety, 17 and environmental questions.
18 The Commission could not have delegated anything 19 broader than that in the light of section 105(c), in the 20 light of its long-standing Commission practice of 21 separation, a practice which is so engrained cha t it would 22 only modify it with a specific delegation that it was to be 23 overt;;rned.
24 CHAIRMAN ROSENTHALs You have made this argument 25 already, Mr. Thessen.
O l
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69 1
MR. THESSEN4 Fin e.
Thank you.
(}
2 CHAIRMAN ROSENTHAL:
All right.
3 MR. JABLON:
You raised the question just now 4 whether an operating license could issue in view of the 5 authority to terminate the operating license.
6 Unf ortunately, I tried that issue and lost before the Court 7 of Appeals in Fort Pierce on the grounds of the Commission's 8 thorough antitrust responsibilities under 105.
The question 9 was asked more generally (1 ether an operating license can 10 issue before the completion of a constreaction permit, again 11 absent waiver.
12 I think Da vi s-Be sse rested on the grounds that the 13 section 105(c)(5) finding of whether there was a situation 14 inconsisten t with the antitrust laws had to be made.
The 15 specific question on Davis-Besse was whether there was an 16 exception in the circumstances possibly cr.vered by 105(c)(8).
17 I think the Appeal Board decision in Da vis-Besse l
18 properly recognized that there was a dual interest in 19 obtaining the electricity from the plants and an interests 20 in not having the Commission issue licenses which 7ay give 21 injury to antitrust concerns.
22 Dr. Buck, you commented on the endless antitrust 23 proceedings.
If counsel representing a party is permitted
()
24 to be rhetorical, there is a canard is that the best defense 25 to an antitrust claim in delay.
ALDERSoN REPORTING COMPANY. INC, 400 V:RGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 Now, under the interim settlement conditions, many 2 of my clients will own an interest in the pla n t, so that 3 they do have an interest in the operation of the plant on 4 time.
They also have an interest, however, in efficacious 5 antitrust revies, and what this Russian roulette does, 6 perhaps, is r>cus she mind to get resolution of the issues.
7 In any event, it was a statutory question which 8 was decided in Davis-Besse.
9 The question was asked by the Chairman as to the to general 105(c)(6) authority to condition a license to 11 provide for retroactive relief in the event, contrary to my 12 position, that an operating license did issue.
I think the 13 words used in 105(c)(6) is upon a finding of a situation 14 inconsisten t, the Commission is granted the authority to 15 grant relief in the "public interest."
This statutory i
16 language, especially in the context of the FERC cases, 17 Scenic Hudson, for example, this kind of statutory language, 18 has been interpreted to give broad remedial powers to 19 Commistions.
I would also cite a "iagara-Mohawk case.
In 20 a ny event, the question is not before you.
21 The question was asked -- Mr. Bouknigh t closed his 22 argument saying that he hoped you gave us dismissal but not 23 solace.
On the solace point, I can assure you -- I cannot
()
24 aasure you, but I can surmise that in view of the Federal 25 Register notice, had Florida Cities not moved to intervene (v')
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
71 1 on the operating license, that we certainly would have
()
2 expected to have heard arguments, and I think you would have 3 heard arguments, that by not intervening th en that we had 4 waived our rights.
5 The only solace we ask is I think what is the 6 function of this f o rum, which is law cla rification, that we 7 have not, if you rule against us on the law -- that is, 8 either we were premature or in articulated ground so that we 9 cannot be deemed to have waived rights.
10
'd e are not seeking anything more than to be placed 11 in no worse of a position that we would have otherwise by 12 not intervening.
13 Vith regard to the question of the Board which 14 focused on Mr. Ecuknight, of the statutory construction, I 15 agree with the tenet of some of the Board questions that the 16 105 (c ) ( 2 ) language -- specifically, the words should be 17 " prev 3ous review," where the proposed activities have 18 occurred subsequent to the previous review -- would be 19 consistent with an interpretation that the previous re'iew 20 did not have to encompass the entire review.
21 The statute does not say so.
The institutional 22 agency purpose to be served by such interpretation is not to 23 g e t yourself in the dilemma which many of your questions
()
24 raised. where you are dealing with a scintilla of time and 25 you are forcing decisions into a scintilla of time, when GV ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 I
72
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1 everybody knows and the world knows that there are 2 cognizable antitrust claims.
3 Firally, I agree with Mr. Pouknights Of course, 4 Florida Cities do not seek to actually hear antitrust terms 5 with a board not ronstituted to do so.
I think this agency 6 has authority to consolidate operating license and 7 construction terms in one antitrust board.
8 And t h.' appropriate practical resolution of the 9 matter vould be either to make a finding that there are 10 g rounds tha t significant changes exist and have a 11 consolidation or to have the law clarification that I 12 suggest.
13 Thank you.
14 CHAIRMAN RGSENTHAL:
Now, I take it, just before 15 you sit down, that any significant change in the utility's 16 ope ra tions, proposed operations, which might affect your 17 clients, you could now inject into the construction permit 18 antitrust proceeding?
19 MR. JABLON:
I certainly could if you say so.
And 20 that is my position.
21 CH AIRMAN ROSENTHAL:
Well, you sa y you cannot 22 amend your petition to reflect changes?
23 MS. KOHL:
Or seek leave to --
()
2; 4R. JABLON:
As a practical matter, I think I 25 can.
I am certain I can, because the grounds of O
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1 intervention were significantly broad that I can raise 2 certainly anything I would propose to raise --
3 CHAIRMAN ROSENTHAL:
Is it not normally the case 4 if there is a new significant development that affects the 5 merits of a particular case, I thought antitrust or not, it 6 was alwa ys open to a party to come in and say, "Look, there 7 has been a very significant change in opera tion s.
It is 8 f raught with enormous antitrust significance, and we wish, 9 if necessary, amend our petition to accomplish this to purpose.
Bring this to the attention of the Board and have 11 it factored into the case."
12 MR. JABLON:
I agree with you on two grounds.
The 13 grounds you state; but, in addition, there is authority at
\\-
14 least on the licensing board level that all the petitions j
15 board does is grant intervention and then the job of the 16 antitrust licensing board is to determine --
17 CHAIR %AN ROSENTHAL:
This is the merits board, is 18 it not?
19 MR. JABLON:
Yes, it is the merits board now.
20 Chairman Smith, in the St. Lucie boa rd, had ruled that in 21 f ac t the petitions to intervene had no relevance once a 22 merits board was convened.
So, in fact, there would be the 23 authority you seek on that grounds also.
()
l 24 CHAIRMAN ROSENTHAL:
Thank you.
25 Mr. Kucik.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
_ _ _. ~
l 74 1
MR. KUCIK Both Appellees argue tha t the petition 2 filed by Parsons & Wittimore was solely an antitrust 3 petition.
That simply ignores the plain language of the 4 petition.
The rights we claim solely in our status as a 5 qualifying facility in paragraphs 8 to 12, in paragraph 22 6 we said specifically those rights "can be separately 7 considered and protected without an antitrust hearing."
l 8
We then filed a brief and attached it to the 9 petition.
The brief it was devoted solely to the antitrust 10 concerns.
But in a footnote it said the rights we had in 11 our status as a PURPA f acility form "an independent basis 12 for allowing intervention without the necessity of a finding 13 tha t FPCL's circumstances have changed."
14 CHAIEMAN ROSENTHAL:
But would the licensing 15 board, in order to entertain that claim, have to make a 16 determination that you in fact were a qualifying facility?
17 HR. KUCIK No, I do not believe so.
I believe 18 tha t issue was taken up.
No, I do not believe so.
19 In any event, that question was raised before the 20 construction licensing boad, and Judge Bloch ruled tha t we 21 had a sufficient interest in the facility to support 22 intervention.
l 23 CHAIRMAN ROSENTHAL:
Judge Bloch might have been 24 wrong about that.
We are not bound by that determination 25 any more than we are bound by the determinations of the O
ALDERSON REPoFJING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
75 1 other licensing boards which you are challenging.
2 MR. KUCIK4 Cf course not, this board is not 3 bound.
But I would think the issue is between Florida Power 4 C Light and us at another: tribunal below the appellate level 5 would be ces judicada.
Florida Power C Light litigated that 6 question with us, the identical question, at the lower level.
7 This board has the power to reverse or to affirm.
l 8 But I think that issue as between the parties has been 9 adjudicatef.
10 It is true that in the construction permit the t1 ruling was we were untimely.
And I do not want to argue 12 tha t here.
But what happened was these license conditir'%
13 t ha t identified a class of persons, qualifying f acilj ties 14 under PURPA, were made effective on April 24 We had found 15 out about them without any public notice somewhat earlier 16 when we filed this intervention petition in this pending 17 proceeding on April 7.
18 CHAIRMAN RCSENTHAL:
I do not really want to hear 19 about that at this late date.
As you correctly point out, 20 tha t is not before us.
And we have to assume for the l
21 present purposes that your petition in that case was 22 properly denied.
It may or may not have been.
That will be 23 up here on appeal.
O 24 rue er== e t taet re=r eavereerie exe 1 taet 25 you had a remedy -- that was a timely petition for leave to O
ALDERSCN REPORTING COMPANY,iNC, 400 VIRGINIA AVE S.W., WASHINGTON, D.C. 20024 (202) 554-2345
76 1 intervene in the construction permit antitrust proceeding 2 and that the question of whether you were properly denied 3 intervention in that proceeding is, of course, for another 4 day.
They said that was the proceeding you belonged in, and 5 if, in fact, you were properly denied intervention on the 6 basis that you slept on your rights, then you have no 7 complaint here.
8 MP. KUCIKs That is what I was getting at.
9 CHAIRMAN RCSENTHAL:
Well, why is that not right?
10 MR. KUCIK:
Because, forpetting the antitrust 11 aspects of it, which is the other case, prior to April 24 12 there was no public notice that any class of persons 13 denominated qualified facilities under PURPA would be 14 aff ected by this.
15 Our right to be heard on the settlement conditions 16 that af f ect us could not have possibly arisen until the 17 conditions were approved by the board or at least until we 18 had notice that they were made.
19 CHAIRMAN ROSENTHAL Well, that may be an argument 20 you can advance in support of your claim that the licensing 21 baord erroneously denied your petition for leave to 22 intervene.
23 MS. KOHL:
Your complaint is with that licensing O
24beare, ene thet they eid net pub 11sh er give edegeate notice 25 of that settlement agreement prior to April of this year.
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
77 1
MR. KUCIK:
That is certainly one aspect of it.
2 But there is another aspect of it.
3 MS. KOHL:
What complaint do you have with this O
4 particular licensing board in this OL case?
5 MR. KUCIK:
That there was a broad notice, that 6 the notice said tha t it would take into account all aspects 7 of the matter pending and then issue an operating license.
8 lt said any person with an interest should intervene.
And 9 the f act is that we have an interest in the settlement l
10 con ditions.
11 CHAIRMAN ROSENTHAL4 Well, if we read this notice l
l 12 contrary to your interpretation of it, we conclude that this 13 notice is f airly read as limiting this operating license v
14 proceeding to health and safety and environmental issues, 15 then do you have anything left to complain about with 16 respect to this Licensing Board as opposed to the licensing 17 board in the antitrust proceeding?
18 MR. KUCIK4 Yes.
I think that what we have to 1
19 complain about is if both licensing boa _ds are right, 20 qualif ying facilities under PURPA will have no opportunity 4
l 21 before the Commission, if they are both right.
c 22 CHAIRMAN ROSENTHALa But the poin t is I am asking j
23 you what is the basis you insist that this notice was broad O
24e===oa -- 1
- te1x1== eao=* the "otice 1" the
=eret1=9 25 license proceeding -- you insist that it was broad enough to O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
_, _ _ _ _. _ _ _ _ _ _. -.. _. ~ _... _.. _
78 i e mb race PURPA antitrust issues, alike.
g 2
Now, what I as asking you is:
If we do not agree 3 with you on that, if we say, "No, this notice could be 4 f airly read and properly read as being limited in scope to 5 environmental and health and safety issues," what remaining 6 grievance do you have against this Licen sin g Boa rd ?
7 Now, you still have a grievance against the other 8 licensing board, because you apparently believe that you 9 were entitled to intervene in that proceeding, 10 notwithstanding the la teness of your petition.
11 But I am not looking at this Board and this Board 12 alone.
And that is all that is before us this morning is 13 whether this Board correctly or incorrectly denied your 14 petition f or leave to intervene in the OL proceeding on the 15 gro und that it had no jurisdiction to entertain the issues.
16 Now, what is your griesance with that board if we 17 do not agree with your interpretation of the notice?
18 MR. KUCIK Our a rgunent is, in those 19 circumstances, that the Commission had the obligation to delegate to this Boa rd the right to hear the claims of 20 interested persons under the settlenent agreement --
21 CHAIRMAN ROSENTHAL4 All right.
Were there not 22 proceedings going on in which they could have been 23 litigated, and at least if you had timely filed your petition?
25 O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 234G
79 O
sa xuc x-8t taet 1eea t
e rec = tier re==1t-2 We are interested in settlement conditions that occur in the 3 con text of our status as a qualifying facility.
In order to 4 get into the ongoing antitrust case and in order to litigate 5 those interests, we have to show a changed circumstance.
6 But all we are really talking about is a right to be heard 7 on a settlement condition that affects us.
8 Now, we do argue and we have 9
XS. KCHL:
He just stated that your complaint is to with the Commission's delegation of authority, that they did 11 not delegate enough authority to the operating licensing 12 boa rd.
13 MR. KUCIK4 On the assumption in Mr. Rosenthal's O
t 14 question, yes, that they would have had an obligation to 15 allow --
16 MS. KOHL:
But is not your proper recourse then 17 not to appeal the decision of the licensing board but ra th e r 18 to file a petition with the Commission itself, challenging 19 its delegation of authority ?
20 MR. KUCIKa I suppose we could do that.
I think 21 it was not unreasonable for us to chcose to intervene in the l
22 pending proceedings, and I think tha t we h a'l filed a l
23 petition directly with the Commission first, that would be 24 subject to the argument tha t there were proceedings we could 25 have brought it up in.
There was no good way.
There was no O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
00 1 good way, in these circumstances, where the antitrust
(}
2 proceeding had been going on, and the conditions affecting 3 PURPA facilities did not come out until April 1979.
4 But I would say this:
I know of no case in court 5 or no administrative decision where a party covered by a 6 decision of an agency by an approval of a condition, a party 7 who was directly within the class affected has been denied 8 an opportunity to participate when they lea rned promptly of 9 what had happened.
The problem here is that it is being 10 killed on technicalities, circumstances on the scope of 11 hea rings, on the delega tion of authority to various boards.
12 MS. KOHL:
Timeliness of intervention, timeliness 13 of expression about party's interests in a matter in which 14 tha t party argues it has substantial claims.
15 MR. KUCIKa But that is only as to antitrust.
As 16 to the claims in our status, where Judge Bloch held was that 17 tha t is only an antitrust hearing and he cannot take into 18 account the claims that are not based upon antitrust changed 19 circumstances.
20 So it is sort of a dilemma there.
This Licensing 21 Boa rd ca nnot take in'to account the antitrust claims because 22 of the delegation, and Judge Bloch cannot take into account 23 the othe'; claims because of the scope of the ongoing
()
24 h ea ring..
And we do not have any remedy.
25 MS. KOHL:
Let us assume that the Commission's fm
\\~)
ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
81 1 delegation of authority to the licensing board, the OL
{}
2 boa rd, was extremely broal, as broad as you want to read it, 3 and let us assume or acree with your interpretation that the 4 OL notice in this case, tha t it wa s broad.
In other words, 5 it excluded nothing; it was an open invitation to anybody 6 with any kind of interest.
7 Is there not a higher restriction on what the 8 Commission can undertake to review in any given proceeding ?
9 In other words, is not the broad construction of a Federal 10 Register notice and broad construction of the delegation of 11 authority inherently limited by the agency's jurisdiction a s 12 gra nted by Congress?
13 MR. KUCIKs All we would say to that is that the 14 agency necessarily had jurisdiction to impose these license 15 conditions, because it did it.
It did it.
They affect us.
i l
16 And we were not parties at the time the agency did it.
I 17 would think it would be a strange result to hold that the 18 agency did this ultra vires and now we cannot get in to have 19 our say about the impact on us.
20 CHAIRMAN ROSENTHAL:
Your time has expired.
l 21 MR. KUCIK Thank you.
1 l
22 CHAIRMAN ROSENTHAL:
On behalf of the entire 23 Board, I once again wish to apologize for the delay in our
()
24 commencement this morning.
And we thank counsel for the
.or their helpful submissions.
25 respective parties
(
ALDERSON REPoRTINo COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 And on that note, the appeals will stand submitted.
2 (Whereupon, at 12:49 p.m.,
the Board adjourned.)
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