ML20030D970
| ML20030D970 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point, Saint Lucie  |
| Issue date: | 09/16/1981 |
| From: | Vogler B NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | NRC COMMISSION (OCM) |
| References | |
| ISSUANCES-A, NUDOCS 8109170229 | |
| Download: ML20030D970 (8) | |
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UNITED STATES OF AMERICA flVCLEAR REGULATORY C0!dISSI0ft
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BEFORE THE C0fEISSION g
t, In the Matter of FLORIDA POWER & LIGHT C0f1PAfiY
)
(St. Lucie Plant, Unit flos.1 & 2)
Docket f!os. 50-335A
)
50-389A (Turkey Point Plant, Unit flos. 3 & 4)
Dc:ket flos. 50-250A
)
50-251A ANSWER OF fiRC STAFF IN OPPOSITI0fl TO FLORIDA CITIES' f!0 TION TO ESTABLISH PROCEDURES Benjamin H. Vogler Counsel for NRC Staff Dated:
September 16, 1981 SDL AD O
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September 16, 1981 UNITED STATES OF AMERICA NUCLEAR REGULATORY C0ftMISSION BEFORE THE COMMISSION In the Matter of
)
FLORIDAPOWER&LIGkTCOMPANY (St. Lucie Plant, Unit Nos.1 & 2)
)
Docket Nos. 50-335A
)
50-389A (Turkey Point Plant, Unit Nos. 3 '& 4)
Docket Nos. 50-250A 50-251A ANSWER OF NRC STAFF IN OPPOSITION TO FLORIDA CITIES' MOTION TO ESTABLISH PROCEDURES On August 27, 1981, Florida Cities, in a pleading entitled "liotion To Establish Proce'dures" moved the Commission to institute a Section 105a proceeding in the captioned matter.
Florida Cities' request is triggered by the settlement and subsequent dismissal of a treble damage action brought by the City of Gainesville, Florida, against the Applicant.
For the reasons set forth below, the NRC Staff (Staff) oppo'ses the ibtion.
BACKGROUND Florida Cities first requested the Commission to consider instituting a Section 105a proceeding against Florida Power & Light Co.
(Applicant) on November 29, 1978. The basis for that tiotion was the Fifth Circuit's opinion in Gainesville Utilities v. Florida Power &
Light Co., 573 F.2d 292, (5th Cir. 1978), c
- c. denied 439 U.S. 966 (1978) wherein the Court held that Florida Power & Light Co. 'had entered 4
into an illegal conspiracy to divide the wholesale power market in Florida. The Fifth Circuit remanded the case to the District Court for proceedings concerning relief.
The Commission, after receiving the views of interested parties, held on December 21, 1979, that it would not institute the requested Section 105a proceeding at that time, but would await the outcome of the remanded District Court proceeding.
In a Joint Motion filed on September 12, 1980, in a separate but related proceeding $/ the Staff, bepartment of Justice and the Applicant advised the presiding Atomic Safety and Licensing Board (Board) that they had reached a full and canplete settlement of their differences and moved the Board to incorporate into the St. Lucie Unit 2 construction permit a set of license conditions. The license conditions were to be effective inuediately but were without prejudice to the Board's authority to sub-sequently impose different or additional canditions after a hearing.
Florida Cities did not join in this motion and are still participating in that proceeding.
In a stipulation, also attached to the Joint Motion, the Department of Justice and the Staff stipulated in part as follows:
2.
Subject to paragraph 4 hereof, the Department and the NRC Staff are of the opinion, which they will communicate to the Board, that the licensing of St. Lucie Plant, Unit No. 2 under these conditions will not create or maintain a situation inconsistent with the antitrust laws. The Department will withdraw its request that the NRC conduct a 1/
Construction Pennit Antitrust Review, pursuant to Section 105(c)5 of the Atomic Energy Act, as amended, In the flatter of Florida Power
& Light Co. (St. Lucie Plant, Unit No. 2) Docket No. 50-389A.
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3-proceeding against FPL under Section 105a of the Atomic Energy Act by reason of Gainesville Utilities Department v. Florida Power & Light Company, 573 F.2d 292 (5th Cir.), cert. denied, 439 U.S. 966 (1978).
The Staff will communicate to the Commission its opinion that the licensing of St. Lucie Plant, Unit No. 2 under these conditions will eliminate any need for any proceeding against FPL under Section 105a of the Atomic Energy Act of 1954, as amended, by reason of Gainesville, supra.
On April 24, 1981, the Board, by itemorandum and Order, approved the proposed settlement and incorporated, effective immediately, the license conditions into the St. Lucie Unit 2 licensas.
On May 28, 1981, the Department of Justice, pursuant to the above stipulation, withdrew its request for a Section 105a proceeding against the Applicant and by Memorandum dated June 12, 1981, the Staff informed the Commission that the incorporation of the antitrust license conditions into the St. Lucie Unit 2 license eliminated any need for a proceeding against the Applicant under Section 105a of the Act.
Subsequently, the City of Gainesville entered into a settlement of its district court action against the Applicant and on August 4,1981, the U.S. District Court for the Middle District of Florida, dismissed Gainesville'e proceeding against the Applicant.
As noted earlier, the Staff and the Department of Justice have already advised the Commission that the settlement agreement and incorporation of the license conditions into the St. Lucie Unit 2 licenses climinates any need for any proceeding against the Applicant under Section 105a of the Act insofar as the public interest is concerned.
In addition, the Florida Cities are actively participating in the St. Lucie Unit 2 construction pemit antitrust review which is now in progress.
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Staff's opinion, the construction permit antitrust review proceeding will consider all of the antitrust concerns expressed by Florida Cities in their present motion. Thus, Florida Cities have an NRC forum to hear their concerns.
For the above reasons Staff opposes Florida Cities' Motion and requests the Commission to dismiss it.
Respectfully submitted, dl*
f i-I Benjamin H. Vogler Deputy Antitrust Counsel i
Dated at Bethesda, Maryland, this 16th day of September, 1981.
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UNITED STATES OF AMERICA NUCLEAR REGULATORY C0f01ISSION BEFORE THE COMMISSION In the Matter of FLORIDA POWER & LIGHT COMPANY
)
NRC Docket Nos. 50-335A (St. Lucie Plant, Units 1 and 2)
)
50-389A
)
FLORIDA.'0W2R & LIGHT COMPANY
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NRC Docket Nos. 50-250A (Turkey Poi.it Plant, Units 3 and 4)
}
50-251A CERTIFICATE OF SERVICE I hereby certify that copies of " ANSWER OF NRC STAFF IN OPPOSITION TO FLORIDA CITIES' MOTION TO ESTABLISH PROCEDURES" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or, as indicated by an asterisk through deposit in the Nuclear Regulatory Connission's internal mail system, this 16th day of September,1981:
- Chairman Palladino
- Alan S. Rosenthal, Chairman Office of the Commission Atomic Safety and Licensing Appeal U.S. Nuclear Regulatory Commission Panel Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Commissioner Gilinsky 4
Office of the Commission
- ltr. Thomas S. Moore U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Appeal Washington, D.C.
20555 Panel U.S. Nuclear Regulatory Commission
- Commissioner Bradford Washington, D.C.
20555 Office of the Commission U.S. Nuclear Regulatory Commission
- Ms. Christine N. Kohl Washington, D.C.
20555 Atomic Safety and Licensing Appeal Panel
- Commissioner Ahearne U.S. Nuclear Regulatory Commission Office of the Commission Washington, D.C.
20555 U.S. Nuclear Regulatory Commission Washington, D.C.
20555
- Peter B. Bloch, Esq., Chairman Administrative Judge
- Commissioner Roberts Atomic Safety and Licensing Board Office of the Commission U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission.'
Washington, D.C.
20555 Washington, D.C.
20555
/
Michael A. Duggan, Esq.
J. A. Bouknight, Jr., Esq.
Administrative Judge E. Gregory Barnes, Esq.
College of Business Administration Lowenstein, Newman, Reis, University of Texas Axelrad & Toll Austin, Texas 78712 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036
- Robert M. Lazo, Esq.
Administrative Judge' Tracy Danese, Esq.
Atomic Safety and Licensing Board Vice President for Public Affairs U.S. Nuclear Regulatory Commission Florida Power & Light Company Washington, D.C.
20555 P. O. Box 013100 Miami, Florida 33101
- Ivan W. Smith, Esq.
Alternate Member
- Peter G. Crane, Esq.
Atomic Safety and Licensing Board Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Washington, D.C.
20555
- Argil L. Toalston, Acting Chief Janet Urban, Esq.
Utility Finance Branch P. O. Box 14141 U.S. Nuclear Regulatory Commission Washington, D.C.
20044 Washington, D.C.
20555 Jack W. Shaw, Jr., Esq.
- Atomic Safety and Licensing Board John E. Mathews, Jr., Esq.
U.S. Nuclear Regulatory Commission Mathews, Osborne, Ehrlich, McNatt, Washington, D.C.
20555 Gobelman & Cobb 1500 American Heritage Life Building
- Atomic Safety and Licensing Appeal 11 East Forsyth Street Panel Jacksonville, Florida 32202 U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Robert E. Bathen Fred Saffer
- Docketing and Service Section R. W. Beck & Associates Office of the Secretary P. O. Box 6817 U.S. Nuclear Regulatory Commission Orlando, Florida 32803 Washington, D.C.
20555 Robert A. Jablon, Esq.
Thomas Gurney, Sr., Esq.
Alan J. Roth, Esq.
203 North Magnolia Avenue Spiegel & McDiarmid Orlanda, Florida 32802 2600 Virginia Avenue, N.W.
Washington, D.C.
20037
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l William C. Wise, Esq.
Suite 500 120018th Street, N.W.
Washington, D.C.
20036 Donald A. Kaplan, Esq.,
Robert Fabrikant, Esq.
Antitrust Division U.S. Department of Justice Washington, D.C.
20530 William H. Chandler, Esq.
Chandler, O'Neal, Avera, Gray, Land & Stripling Post Office Drawer 0 Gainesville, Florida 32602 Daniel M. Gribbon, Esq.
Herbert Dym, Esq.
Joanne B. Grossman, Esq.
Covington & Burling 1201 Pennsylvania Avenue, N.W.
P. O. Box 7566 Washington, D.C.
20044 99 Benjacin H. Vogler Deputy Antitrust Counsel 1
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