ML20039B177
| ML20039B177 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 12/17/1981 |
| From: | NRC ATOMIC SAFETY & LICENSING APPEAL PANEL (ASLAP) |
| To: | |
| References | |
| ISSUANCES-A, NUDOCS 8112220375 | |
| Download: ML20039B177 (83) | |
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'D ATOMIC SAFETY AND LICENSING APPEAL BOARD ORAL ARGUMENT l
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FLORIDA POWER & LIGHT COMPANY DOCKET NO. 50-389A (St. Lucie Unit No. 2)
December 17, 1981 1 - 83 e.
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1 UNITED STATES OF AMERICA 2
NUCLEAR REGULATORY COMMISSION O
4 ATOMIC SAFETY AND LICENSING APPEAL BOARD 5
ORAL ARGUMENT 6
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_____x 8 In the matter ofs t
8 FLORIDA POWER & LIGHT COMPANY a
Docket No. 50-389A 10 (St. Lucie Unit No. 2) 11 - - - - - - - - - - - - - - - -x 12 Fifth Floor Hearino Room 13 East-West Towers Building t]
4350 East-West Highway 14 Bethesda, Md.
20555 15 December 17, 1981 16 The oral argument in the above-entitled matter was l
17 l
convened, pursuant to notice, at 9:30 a.m.,
18 BEFORE:
19 ALAN S.
ROSENTHAL, Chairnan 20 CHRISTINE N. KOHL, Administrative Law Judge 21 STEPHEN F. EILPERIN, Administrative Law Judge j
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ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2346
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1 APPEARANCES:
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On behalf of the Regulatory Staffa
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BENJAMIN H. V0GLER, Esq.
4 STEPHEN LEWIS, Esq.
JOSEPH RUTBERG, Esq.
5 Office of the Executive Legal Director U.S. Nuclear Regulatory Commission 6
Washington, D.C.
20555 7
On behalf of the Applicants:
8 J.A.
BOUKNIGHT, Esq.
STEVEN P.
FRANTZ, Esq.
9 Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Ave.,
N.W.,
Suite 1214 10 Washington, D.C.
20036 11 Cn behalf of the Appellants, Parsons C Whittemorea 12 GEORGE P.
KUCIK, Esq.
Arent, Fox, Kintner, Plotkin & Kahn 13 1815 H Street, N.W.,
Suite 900
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Washington, D.C.
20006 15 16 17 18 l
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2346
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ORAL ARGUMENT ON BEHALF OF 3
4 By Mr. Kucik 4
1 5 ORAL ARGUMENT ON BEHALF OF THE APPLICANT 6
By Mr. Bouknight 28 ORAL AGRUMENT ON BEHALF OF 8
THE REGULATORY STAFF 9
By Mr. Vogler 47 10 REBUTTAL ARGUMENT ON BEHALF OF 11 APPELLANT, PARSONS & WHITTEMORE l
12 By Mr. Kucik 65 13 0
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(9:30 a.m. )
3 CHAIRMAN ROSENTHAL:
This Board is hearing oral 4 a rg umen t today on the appeal of Parsons E Whittemore and the 5 subsidiary thereof from the Licensing Board's denial of 6 their petition for leave to intervene in this antitrust 7 proceeding involving Unit 2 of the St. Lucie nuclear 8 facility.
9 The argument is governed by the terms of our i
10 November 10 order.
As provided therein, each party has --
11 each side has been allotted a total of 45 minutes for the 12 presentation of argument.
The Appellants m ay, if they so 13 desire, reserve a portion of their time for rebuttal.
O 14 I will now call upon counsel for the respective 15 parties to identify themselves formally for the record.
Mr.
16 Kucik?
17 MR. KUCIKs My name is George Kucik and I am 18 counsel for Parsons E 'Jhittemore, the A ppellants in this 19 proceeding.
This is my colleague.
20 CHAIRMAN ROSENTHAL:
Thank you, Mr. Kucik.
21 Mr. Bo uk nigh t?
22 MR. BOUKNIGHT:
Mr. Chairman, I am J.E. Bouknight 23 from the firm of Lowenstein, Newman, Reis E Axelrad.
With
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24 me is Steven Frants, also, appealing for Florida Power E 25 Light in this case.
Jill A.
Grant is with us.
She-will be O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
ta 1 sworn into the bar tomorrow.
She has not filed an 2 appearance in this case.
And Mr. John E. Blount, who is the 3 Director of the Lsv Department of Florida Power E Light 4 Company; and Lawrence Adams, District Vice President of 5 Florida Power E Light Company.
S CHAIRMAN ROSENTHAL:
Thank you, Mr. Bouknight.
7 Mr. Vogler?
8 MR. V0GLER:
Thank you.
I am Ben Vogler, Deputy 9 Antitrust Counsel for the NRC Staff.
With me this morning 10 is Mr. Joser h Rutberg, Assistant Chief Hearing Counsel for 11 the NPC Staff, and Mr. Steve Lewis, counsel for the NRC 12 Sta f f.
13 CHAIRMAN ROSENTHAL:
Okay.
Mr. Vogler, has there O
14 been an agreement reached between yourself and Mr. Bouknight 15 as to the division of time on your side of the argument?
16 MR. V0GLER:
Yes, sir.
The staff will go last and 17 Mr. Eouknight will take 25 minutes and the staff would like 18 to have 20 minutes.
19 CHAIRMAN ROSENTHALa Thank you, Mr. Vogler.
20 Mr. Fucik, you may proceed with your arqument.
21 ORAL ARGUMENT ON BEHALF OF APPELLANTS, 22 PARSONS E WHITTEMORE 23 MR. KUCIK4 Thank you, Mr. Chairman.
24 What I would propose to do would be to argue for 25 approximately 30 minutes and to sa ve 15 minutes for ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 rebuttal.
I would plan to address in my affirmative 2 argument three points:
3 I would like to take a moment to acquaint this 4 Appeal Board with the present status of the facility in Dade 5 County, Florida, with the process that led to our being 6 here, and to discuss the antitrust points that we think are 7 raised by our petition, and to discuss the additional point; 8 to point out, we believe regardless of antitrust and 9 regardless of whether Congress had ever enacted PURPA, that 10 we would have standing to be heard on the settlement 11 agreement conditions simply as a member of a defined class 12 covered by the conditions.
13 I would like to begin simply by putting the case O
14 in some context.
We are here on an appeal from the denial 15 of an April 24, 1981, petition to intervene in the antitrust 16 a spects of the construction license proceeding.
We had 17 earlier filed on April 7 a petition to intervene in the 18 operatingno license proceedino.
That had been denied, and 19 that denial wa s recently af firmed by the Appeal Board.
20 The facility that we are talking about is an 21 resource recovery facility located in Dade County, Florida.
22 CHAIRMAN R OS ENT H Al:
Mr. Kucik, I think that you 23 can assume that this Board is quite f amilia r with many of
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24 the background facts here.
It might save your time if you 25 got down really to the heart of your petition.
O ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 MR. KUCIKs.The point I wanted to make out of that 2 is this facility, which is one of the la rgest resource
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recovery facilities in the United States, is not 3
4 functioning.
It has not been functioning ever since it was 5 constructed.
It is ready to generate electricity and it is 6 sitting idle.
7 And the reason that we are here and the reason 8 that we have been in this combat with Florida Power & Light 9 in all of the proceedings that have been called to this 10 Board 's attention is that Parsons E Whittemore is trying to 11 get the facility operating while the other disputes are 12 being resolved.
We have so f ar not been successf ul, and 13 what is at stake here is the question whether this f acility, O
14 which is a potential competitor of Florida Power & Light and 15 which is an alternative and competitive fuel source to 16 nuclear power, will be viable in the near future or at all.
f 17 We, Parsons & Whittemore, got into this proceeding 18 in the following way.
In January of 1981, under the 19 contracts tha t had been in existence with Dade County, 20 Parsons E Whittemore certified the facility as substantially 21 complete for the county.
The county rejected the 22 certification.
That meant that Parsons & Whittemore under 23 the contracts retained title to the facility and had to do
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24 something with it.
25 The county refused to pay.
We believed the O
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1 facility was substantially completed and the county 2 disagreed.
3 Immediately after that Parsons E Whittemore took 4 the following stepr; It moved for arbitration of the 5 dispute.
It terminated the contracts pursuant to their 6 terms.
It qualified the f acility with the FERC as a small 7 power producer within the meaning of PURPA.
8 JUDGE KOHL 4 What do you mean by that, Mr. Kucik ?
9 You say it qualified it with FERC.
I thought that was still 10 subject to litigation before FERC.
11 Has there been a final ruling that the PCW 12 f acility is in f act a qualifying facility under PURPA?
13 MR. KUCIK:
There has been no deternination by O
14 FERC.
What I mean, as we read the FEPC rules the 15 qualification was a self-certification.
We filed the 16 requisite notices and we did not institute a proceeding.
17 JUDGE KOHL But your notice has been challenged, 18 has it not, by FPL?
So there is an adjudication of some I
19 sort tha t is going on there.
We do not have any final 20 ruling f rom FERC that we could take official notice of?
21 MR. KUCIK4 No.
In fact, there would not be that 22 kind of ruling right now in any event, because the 23 proceeding is pending the equivalent of a motion to dismiss
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24 by Parsons & Whittemore, where we have taken the position 25 that there is no issue to be adjudicated by the FERC.
And O
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1 so that even if we were to prevail, it would simply mean 2 that the self-certification procedure was apprcpria te, and 3 if we were to lose then there would be another proceeding 4 that would begin.
5 But we did that, we qualified the facility.
And 6 then we asked Florida Power & Light to purchase electricity 7 from the facility, and then we asked Florida Power C Light 8 to wheel electricity to distant customers.
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Florida Power & Light refused to do either, and we 10 intervened in the operating license proceeding and then 11 ultimately in this proceeding.
12 JUDGE EILPERIN:
What period of time are you 13 claiming is the point from which your intervention is O
14 measured?
Is it the January '81 point at which Dade County 15 and Parsons & Whittemore formalized their dispute?
Is it 16 some point later, is it some point earlier?
17
.MR. KUCIK:
We would say that that would be the 18 earliest time, and that it would be, from our point of view, 15 some time later, because there was no public notice in these 20 proceedings, the NRC proceedings, that would have led us to 21 know that there was somethina at issue that could have 22 aff ected us.
23 Now, we found out about that largely accidentally
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24 af ter we had 25 JUDGE EILPERIN:
You're talking about the O
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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 settlement agreement?
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MR. KUCIK 4 Yes.
3 JUDGE EILPERIN:
It is my understanding that the
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4 settlement agreement does not impose any obligations on 5 anyone other than FPL.
Is that inaccurate?
6 MR. KUCIK4 No, that is accurate.
7 It is our position on the set:lement agreement 8 tha t the settlement agreement does two things:
first, that 9 it does not cure whatever the transmission anticompetitive 10 problems were that the staff and the Justice Depa rtm ent were 11 trying to reach, and it certainly does not cure it for 12 f acilities such as our facility; and secondly, that as a 13 member of the class covered by the agreement we have a right O
14 to be heard on it, not because it imposes obligations on us, 15 but simply because there is a constitutional right to be 16 heard on something that affects you, and to ask that it be 17 changed, that it affect you differently.
18 CHAIRMAN ROSENTHAL:
- 4 ell, what is, precisely is 19 the nexus that you have alleged in your petition between the 20 operation of this nuclear plant and whatever problems you 21 may be having with Florida Power & Light?
As you are aware, 22 the Commission 's second Waterford decision specifically 23 sta ted that the Intervenor must plead and prove a meaningful
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24 nexus between the activities under the nuclear license and 25 the situations alleged to be inconsistent with the antitrust ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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i 1ews.
2 Now, just what is it about this nuclear plant or 3 any of Florida Power E Light's nuclear plants which can be 4 said to be at the root of your problems?
Wouldn't these 5 problems have existed to the same extent if Florida Power E 6 Light had nothing but fossil fuel plants on its system?
7 ER. KUCIKs Our position is that we have a nexus 8 with the operation of this plant under the license 9 conditions that are currently being implemented on the 10 construction permit and that are under consideration for the 11 operation of the plant.
12 The statute requires not that you have a nexus 13 with the f acility as such, but with the license under which O
14 the facility will operate.
This license takes into account 15 FPEL's entire transmission grid.
16 CHAIRMAN ROSENTHAL:
But this license, as I 17 understand it, does not confer any rights upon Florida Power 18 E Light.
The conditions of the settlement agreement imposes 19 simply obliga tions upor it.
Now, I do not understand 20 of f hand how in those circumstances you can use tha existence 21 of these license conditions, which you regard as 22 unsatisf acto ry, as providing the requisite nexus.
23 Somehow you have got to tie your problems to the 24 f act th a t Florida Power E Light is opera ting or will be 25 operating certain nuclear units.
And it just seemed to me, ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2345
____________.___________________________________..____..___________________J
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1 as I said before, that the problems that you have would have 2 existed in the same manner and to the same extent if Florida 3 Power & Light simply employed fossil units.
4 MR. KUCIKa If I may, let me break that into a 5 couple of separate points for my answer.
First, our 6 complaint with the obligations imposed by the license 7 conditions on Florida Power C Light is very simple.
One of 8 the obligations is a transmission obligation and they will 9 not transmit for us.
10 And so we feel we have a right to come before the 11 agency and a rgue on an titrust and other grounds that, 12 whatever their position is on that, that the license 13 condition ought to be modified to take account of the fact O
14 that we are not being -- we are not being accorded whatever 15 it was that we were supposed to be under those license 16 conditions and it ought to be modified to allow us to.
17 JUDGE EILPERIN:
What exactly are the conditions 18 that you would like to receive in this antitrust proceeding, 19 and in what fashion are those conditions which you would 20 like to see attached to this license not available, say from 21 FERC?
What are the specific license conditions you would 22 want the NRC to impose?
23 MR. KUCIK:
They have to do with the transmission
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24 provisions of section 10 of the conditions that are 25 conditionally in effect on the construction permit.
It was O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 654-2346
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1 -- our basic point was we wanted a clean wheeling provision, 2a wheeling provision that did not give Florida Power E Light
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3 the option to refuse to wheel on a lot of technical 4 grounds.
5 Secondly, we wa nted a wheeling provision that did 6 not require us to weise our rights under PURPA in order to 7 take advantage of the wheeling; that we did not have to give 8 up, for example, the right to have Florida Power E Light buy 9 f rom us or sell to us at retail in order to have a wheeling 10 rig h t.
11 And thirdly, we wanted the conditions made clear 12 that, regardless of our status under PURPA, regardless of 13 the dispute about the question whether we are certified or O
14 no t, tha t we are a resource recovery f acility located in 15 this area, we are a potential competitor of Florida Power E 16 Light 's, and therefore we should be covered by these 17 conditions on antitrust grounds, regardless of whether we l
18 a re technically or not now because they sim ply --
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19 JUDGE EILPERIN:
That goes to your contractual 20 dispute, doesn 't it, of whether or not you are going to be l
21 stuck with the plant or whether or not you are going to be 22 able to transfer the plant to Dade County and FPL?
23 MR. KUCIK4 No, I do not think so.
I think, first
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24 o f all, the dispute between Dade County and Parsons E 25 Whittemore right now is largely about money.
I do not think ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 -- and it is in the discovery stage.
But I do not think the 2 issues have gotten down to the point yet where there is any 3 question about whether there will be specific performance or 4 damages.
5 Unless there is some claim by the county for 6 specific performance of the agroement -- and that is 7 doubtful, because when the county sued us in December 1980 8 they asked for rescission.
So unless there is some claim 9 for specific performance, we are going to end up owning the 10 plant.
e 11 The only question is going to be as to whether we 12 pay damages, they pay damages, how the money is balanced 13 around.
So in those circumstances we have title now and it
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14 appears as though we will have title certainly for a long 15 time and perhaps forever.
Our point is --
16 JUDGE EILPERIN:
You tre not trying to tender the 17 plant upon receipt of your contract price of 7100 million or 18 so?
19 MR. KUCIK:
Well, we did do that and they refused 20 i t.
So the question is going to be whether we prevail.
I 21 mean, if we prevail on our point that they have to pay us 22 the centract price, then we have to give them the plant, 23 y es.
But the county is not --
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24 JUDGE EILPERIN:
That is in arbitration right 25 now?
O ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W. WASHINGTON, D.C. 20024 (202) 554-2345
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1 MR. KUCIX:
Yes, it is.
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2 JUDGE EILPERIN:
What is the status of that j
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3 arbitration?
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MR. KUCIK4 It is in discovery.
I do not believe 5 a hearing date has been set.
6 JUDGE KOHLS If you had not had these problems, 1
7 these contract problems with the county, and the county 8 would have taken title to the plant and begun operations, I
9 would they have had the same concerns, antitrust concerns 10 with this settlement agreement and the proposed license 11 conditions that PCW has?
12 MR. KUCIK I do not know that.
I think they l
13 could have.
I think that the license conditions that we 14 have dif ficulties with, the difficulties that we have are l
15 not unique to Parsons E Whittemore.
I think the idea that i
16 we would like a clean wheeling condition is what everyone 17 would like in these circur. stances.
18 JUDGE KOHL:
But I an just concerned why some 19 entity, whether it was PCW or Dade County, did not pe tition t
20 to intervene in this proceeding earlier.
Your argument with 21 the license conditions is, as I understand it, is that they l
22 d o not go far enough.
23 But could you not have petitioned at an earlier 24 time to preserve whatever interest and negotiate license 25 conditions on your own that would cover whatever interest O
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MR. KUCIK4 I think the answer to that is no.
By 3 the contracts we were bound to tender the facility to Dade 4 County.
Until the facility was substantially complete, 5 there were two difficulties with intervening.
One was did j
6 not have a facility.
We did not have a f acility that was l
7 operable.
And secondly, we had a contractual obligation to i
8 offer it to Dade. County, which if they accepted we could not i
9 be in the position we are in now.
l 10 So until it was substantially completed in January l
11 ve did not have -- I think surely we did not have standing 12 to come in and ask 13 JUDGE KOHL:
So it is the fact of your becoming gV f
14 the entity with title to this facility that is critical, not 15 the settlement agreement or when there might have been a l
16 notice about the settlement agreement?
i 17 MR. KUCIK I think it is when they both came 18 together.
10 JUDGE KOFL:
Well, assume that there has been no 20 settlement agreement, no proposed license conditions, no 21 January 1989 Federal Register notice.
Assume the same
- 22. events have occurred.
What would your argument then be as 23 to the good cause for late intervention?
W ha t do you 24 premise it on?
25 MR. KUCIKa Our argument is premised on the fact G
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1 that we did not until January have any rights that 2 susceptible of notice by the N uclea r Regula tory CommissiobS[,, }
s 3 Promptly after that, when we determined that the monopoly' 4 power of Florida Power E light over the transmission grid in <
5 southern Florida was at issue here, we moved to intervene.
6 JUDGE KOHLa That is not exactly the way I 7 understood -- what was the goed cause for late ~ intervention 8 that you aserted in your petition to intervene?
As I 9 '2 nderstood it, you tied it directly to the settlement 10 agreement.
11 Now you seem to be arguing something different.
12 MR. KUCIK:
I was trying to answer your question.
13 Your question was, if I understood it, was forgetting the
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14 settlement agreement and our qualification under PURPA, uhat 15 would our goof cause have been.
And I think my answer was 16 tha t our good cause would have been, at the time we knew 17 that we were going to have to cperate t his facility and wo 18 then lea rned tha t the monopoly transmissiongri{vasat 19 issue in this proceeding, we would have intervened.
20 In fact what did happen was that we, learned of; the 21 settlement conditions.
We learned that not-only was the, 22 tra nsmission monopoly at issue, but there had been som9 23 steps taken to abate it.
And we took some steps.We, felt T
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24 ve were in a defined class covered by the agreenent, we[wer'e 25 a qualified f acility within the meaning of PURPA in section A
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.So the reason the petition does not speak 2
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Let me a sk you this, if I
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6 sight,,Mr. Kucik.
An antitrust proceeding has commenced and
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7 at the time it has commenced there is the utility, the
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8 Department of Justice, the NRC staff, and whatever 9 competitors there might be at that time of the Applicant f or 10 the nuclear license.
11 Are you suggesting that if along the line in this 12 proceeding the Applicant picks up additional competitors and 13 new people have entered the field, that every time that a O
14 new comper'*7" comes into the field it can come into the i
..a a matter of right to ensure that its interests 15 proceedi..
16 are protected?
17 MR. KUCIK:
i4h a t I am suggesting is the extent to l
18 which the proceedinc, the operation under the license, will 19 aff ect the new competitor, that competitor has rights to 20 intervene.
21 CHAIRMAN ROSENTHAL:
So that at any stage no one 22 knows who is coing to be the parties to the proceeding, 23 because there is always the possibility along the line as s
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24 the proceeding goes on, four, five, six years or whatever, I
L 25 tha t there will be a new entrant into the field.
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1 municipality gets involved in electric generation or a new 2 cooperative appears on the scene or, as in this instance, a
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3 Parsons C Whittemore turns up.
4 So the Applicant never really knows as it is 5 litigating this case thcough this period of time what 6 parties he has to contend wi th.
Is that the sum and 7 substance of your position?
8 MR. KUCIKs I do not think so.
a 9
CHAIRMAN ROSENTHAls All right.
Then how do you 10 distinguish -- I thought your case really rested on the fact 11 that you are a new competitor; you could not have come in at 12 a previous point because you had had no standing.
But here 13 rou are now, and against your, perhaps, will, your client 0
14 against your client's will, it has been forced into the 15 electric generation business, and so it has a right to come l
16 in.
17 Now, how do you differentiate your client's 18 position from that of any other possible new entrant into 19 the field who is concerned about competitive relationships l
20 between itself and the nuclear Applicant?
21 MR. KUCIK4 What I thought I premised my answer l
22 bef ore your last question on is that if there is something l
23 occurring in connection with the nuclear license th a t would p)/
24 aff ect the new competitor, then that new competitor would s
l 25 have the right to in tervene.
Here what is happening that l
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-be5 l
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1 affected us is that there are transmission conditions that 2 are purportedly intended to abate a monopolistic position, 3 and that we do not think are effective.
4 Now, I do not believe that any new competitor 5 could come in to simply make whatever antitrust arguments 6 --
7 CHAIRMAN ROSENTHAT.:
We are very interested in 8 whatever terms and conditions this case is either settled on 9 or is adjudicated on.
What is the difference?
10 MR. KUCIK4 I think the difference is two
- One, 11 this case purports in the settlement conditions to cover a 12 class of persons, a class of competitors of which we are 13 one.
It did that.
We were not there when it did that and O
14 that was a determination made independently of us, and it 15 purports to af f ect us.
16 Secondly, we did not just say we are interested in
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17 wha tever is happening and let us know what is happening.
We l
i 18 asked Florida Power C Light to wheel for us and Florida l
l 19 Power C Ligh t said no.
And so we have a concrete dispute 20 that occurred outside of the Nuclear Regulatory Commission, 21 but tha t the operations under the license will have an 22 impact on.
23 CHAIRMAN ROSENTHAL:
But you could litigate that,
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24 could n ' t you, beforo FERC7 As I understand your position, 25 it is that you have certain rights quaranteed by PURPA, tha t O
l ALDERSoN REPORTING COMPANY,INC.
400 VfMGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 564 2345
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1 Florida Power C Light is denying you.
Now, if that is the 2 case why, instead of your beino an eleventh hour Intervenor
'3 in this antitrust proceeding which has gone on for these
{)
4 many years, shouldn't you be over litigating your problems 5 with FPCL before FERC?
6 I take it that none of the conditions of this 7 settlement agreement would have any effect at all upon your 8 right to obtain relief from FERC.
Is that not true?
9 MR. KUCIK:
I do not think that is true literally, 10 and if I might take a minute to explain becaust I do not 11 think that is an obvious answer.
There is a savings 12 provision in the agreement which says it shall not impinge 13 on the jurisdiction of FERC.
That as I read it is nothing O
14 more than what the law requires.
The Nuclear Regulatory 15 Commission cannot impinge on the jurisdiction of FERC.
16 On the other hand, the conditions for rransmission 17 for qualifying facilities require that in order to get 1
18 tra nsmission you waive rights under PURPA.
That raises an 19 issue, it seems to me, as to whether, ha.* ring chosen 30 transmission, an Applicant such as Parsons C Whittemore 21 would have made a conscious and knowing relinquishment of 22 its PCRPA rights.
23 To that extent, we would be giving up rights that l'/
(.
24 ve have another statute.
It is not because the Nuclear 25 Regulatory Commission took thom away.
It woulf be because l
l ALDEPSON REPORTING COMPANY. INC.
l 400 vinGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202) 554 2345
21
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I the choice that was imposed upon us as a matter of law would 1
2 let Florida Power & Light argue waiver.
3 In fact, it seems to me that that would be the 4 only reason for putting those provisions in that way.
If 5 there was no intention to take PURPA f acilities and put then 6 in the bind of waiving certain rights in order to get 7 others, why write them that way?
8 The second aspect of your question is, we cannot 9 litigate this before the FERC.
First, the FERC has no 10 jurisdiction over the wheeling conditions of the Nuclea r 11 Regulatory Commission license.
12 Secondly, the FERC has some limited power to order 13 wheeling, it is true, but last month in a case brought by O
14 Florida Power E Light the Fifth Circuit decided that the 15 FERC did not have wheeling power under the general 16 preexisting conditions of the Federal Power Act, that there 17 was e new section of the statute that has never been 18 construed yet, which is laced with provisos and 19 com plica tions, under which the FERC in certain circumstances 20 might order wheeling.
21 JUDGE EILPERIN:
What is the name of the case?
22 MR. KUCIK:
The case is Florida Power & Ligh t 23 versus FERC.
It is November 1981.
It is in the Fifth
()
24 Circuit, I believe.
I might be wrong on this.
It is now a 25 panel that is in the Eleventh Circuit.
Tha t was the ALDERSON REPORTING OoMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
22
()
1 decision.
2 But that decision says two things:
First off all,
({}
3 that generally speaking the FERC has no power to order 4 wheeling; and secondly, that the new statutory amendments 5 that PURPA enacted into the Federal Power Act could enable 6 the FERC to order wheeling in certain circumstances that i
7 have not yet been adjudicated.
So the answer is that we 8 cannot get the relief that we are asking for.
9 And thirdly, while it is true there is a public 10 interest provision in the wheeling requirements of the 11 Federal Power Act, and the general law is that under the 12 public interest provisionc FERC can take into account and 13 should take into account antitrust considerations, this O
14 Commission itself has noted in a number of cases that there 15 are just significant differences in the ways in which the 16 FERC and the Nuclear Regulatory Commission evaluate those 17 f actors, which make the two proceedings inapposite.
l 18 So for all of those circumstances, we cannot get 19 the ruling before FERC and there is no proceeding pending 20 bef ore FERC which is remotely close to even raising issue on 21 that.
The only proceeding before the FERC right now is a 22 motion by Florida Power E Lighn for a declaration to revoke 23 our qualification and a motion in ef fect to dismiss by us
(%
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24 saying that the qualification was self-authenticating and 25 t ha t there is no authority in FERC to revoke it at this fs N
ALDERSoN REPORTING COMPANY,INC, j
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I point.
2 JUDGE EILPERINs Could you explain briefly exactly 3 how it is that the operations of this power plant would
(]}
4 maintain a situation inconsistent wi th the antitrust laws, 5 to your detriment?
6 MR. KUCIK Well, this case involves the 7 transmission monopoly.
That was the subject of a recent 8 finding several days ago in a rather long opinion t:r the 9 Licensing Board.
The Board found that Florida Power C 10 Light, I believe, had 81 percent of the transmission 11 facilities.
That is the only grid to which our f acility can 12 connect.
We either connect with Florida Power C Light or we 13 do not connect anywhere.
We do not sell to anyone other O
14 than Florida Power E Light unless they wheel for us.
That 15 is a fact of life.
16 The license conditions, apparently in an effort to 17 aba te that monopoly power, provided that Florida Power E 18 Light in certain circunstances has to wheel.
It is our 19 contention that that affects us because it does not do what 20 it set out to do; and secondly, that by sort of making 21 believe that it does it makes things worse, because nov 22 under the auspices of a Federal Gove rnmen tal agency, Florida 23 Power & Light has license conditions that it will argue
()
24 sanction it in refusing to wheel for us and in whoeling only 25 und er theco circumstances.
And we do not feel that tha t O
ALDERSON REPof4 TING COMPANY,INC, a
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1 abates the monopoly.
2 CHAIRMAN ROSENTHAL:
So it is not actually
)
3 anything that Florida Power E Light is doing under its 4 license in the sense of operating the plant, but rather I 5 gather it is the conditions that have been imposed upon 6 Florida Power C Light in connection with that operation?
Am 7 I right, it is not that it is anything intrinsic, inherent 8 in the operation of the nuclear power plant?
9 MR. KUCIK:
If what you are saying, Mr. Rosenthal, 10 is that this Commission did not have to get into the 11 transmission orld and that therefore this would be a 12 different case, I quess the answer is yes.
But as I 13 understand the license conditions, Florida Power E Light O
14 cannot opera te that plant without accepting and abiding by 15 the license conditions.
16 So therefore its operation of the plant is 17 affecting us, because we feel we have rights under the 18 license --
19 CHAIRMAN ROSENTHAL:
Supposing there were no 20 license conditions at all.
Supposing that there had been no 21 antitrust hearing on St. Lucie a t all or, alterna tively, th e 22 hearing had resulted in an order by the Licensing Board to 23 the eff ect that there is no situation inconsistent with the
()
24 antitrust laws here, there is no necessity for any kind of 25 conditions, relief or anythina else; everybody go home.
O
^
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 Now, if that had been the case would you still say that 2 there was a nexus between the operation of this plant and 3 your problems?
4 MR. KUCIK To the extent to which the Nuclear 5 Regulatory Commission was taking into account the 6 transmission monopoly, I would think there would be a 7 nexus.
Now, obviously in the case that you posited the 8 nexus would be -- would act be as clear as it is here.
9 It seems to me that if the Nuclear Regulatory 10 Commission were to find, for example, that there was no 11 monopoly, we could argue that there is.
But that is a 12 dif ferent case.
'4 h a t we are talking about here is a case 13 where the Nuclear Regulatory Commission is taking into O
14 account the transnission monopoly, they have found that it 15 exists and that we indisputably are dependent upon it.
And 16 that is a stronger nexus case.
17 I think that one of the points that gets distorted 18 by looking at the antitrust aspects of it solely is the l
19 argument that we have presented and that I believe that was 20 alluded to in the af firming order in the other case, in the i
21 operating license case, is tha t simply as a person covered 22 by the license conditions we have a righ t to be heard on 23 them; we do not have to prove that they violate any law, and O)
(,
24 we do not have to do anything other than simply sa y that we 25 are affected -- and that.is indisputable -- and that we have l
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ALDERSoN REPORTING COMPANY. INC.
400 VIRGINIA AVE., S.W, WASHINGTON, D.C. 20024 (202) 554-2345
26
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1 points that we would like the Commission to take into 1 account, because we believe we can persuade you to change.
(])
3 JUDGE EI1PERIN:
How are you a person covered by 4 the license conditions?
5 MR. KUCIK The license condition specifically i
6 covers all small power production facilities within the 7 meaning of the FERC PURPA regulations.
We contend that we 8 are that.
9 In the decision below, Judge Block ruled that 10 Parsons C Whittemore had sufficient interest in this 11 facility to assert the facility's rights.
So the facility 12 --
13 JUDGE EILPERIN:
Is tha t dependent upon whether O
14 you are a PURPA qualifying facility or is it dependent upon 15 your siza?
16 MR. KUCIK:
The size is one of the factors in a 17 qualif ying PURPA facility.
18 JUDGE EI1PERIN:
I want to know if it is dependent 19 upon what FERC does.
Assume for a moment that FEEC does not 20 find you are a qualifying facility.
Are you nevertheless 21 covered by FERC's conditions?
22 MR. KUCIKs We would be covered as a neighboring 23 entity within the terms of the conditions, and we have
(
24 asserted both points in our petition.
So that the answer 25 is, to take the hypothetical a step further, if instead of O
v ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554 2345
27
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1 being a 77 megawatt facility we were an 82 megawatt 2 facility, FERC would be totally irrelevant, so would PURPA;
(}
3 yet we would still be covered and all of the issues we are j
4 talking about here, the antitrust issues, would be the 5 same.
6 Because the bottom line in the case is this is a l
l 7 resource recovery facility, it is a potential competitor of 8 Florida Power & Light's, it is an alternative and 9 competitive fuel source to nuclear, it has asked Florida 10 Power & Light to wheel for it, Florida Power E Light said 11 no.
And this facility is standing there now idle, in the 12 process at 580,000 a day in interest.
13 Surely it cannot go on forever that way, and the 14 ef f ect, if not the intent, of what is happening will be to 15 kill a competitor, and there is not any public interest to
(
Ta be served by any of that.
And so our bottom line position 17 here is that whether you look at it as antitrust or simply 18 as a person covered by the Nuclear Reculatory Cc= mission, 19 that we were hero prom ptly upon the knowledge that we would 20 be in this dilemma, we set fortli our position simply and I 21 think with reasonable clarity, and tha t we have a right to 22 intervene and be heard.
23 CHAIRMAN ROSENTHAL:
You have taken about a half j
24 an hour.
25 MR. KUCIK:
I would like to reserve the rest.
O ALDERSoN REFORTING COMPANY. INC.
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1 CHAIRMAN ROSENTHAL:
Thank you, Mr. Kucik.
2 Mr. Pouk nigh t?
3 ORAL ARGUMENT ON BEHALF OF THE APPLICANT
{}
4 MR. BOUKNIGHT:
Mr. Chairman, members of the 5 Board:
6 I would like to begin, if I may, by expending just 7 one minute on the facts.
T Anow that the Board is 8 thoroughly f amiliar with the f actual statements tha t the 9 parties have put in.
10 I think that Mr. Kucik suggested on two or three 11 occasions that the facility is sitting idle and that his 12 client's only objective is to keep the facility from sitting 13 idle.
That is just not the case.
The case is that Florida O
14 Power & Licht Company as much as anybody else wants the 15 f acility to move.
We do not Want it to sit idle.
16 The question comes down to money.
Mr. Xucik's 17 client wants to operate the facility in the interim on his 18 terms, at his price, under conditions where he owns and 19 operates it.
That costs Florida Power & Light Company's 20 ratepayers money, and the company just cannot voluntarily 21 acquiesce in giving up its contract rights and giving up 22 that money.
23 JUDGE KOHL:
Is that why FPL refuses to transmit
(~
(_-
24 for them?
l 25 MR. BOUKNIGHT:
Xs. Kohl, the r.nrwer is yes, but f'\\
%s ALDERSoN REPORTING COMPANY,INC, i
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4 29
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1 the refusal to transmit is not -- should not be the emphasis 2 in this case.
Florida Pcwer & Light Conpany refuses to 3 treat these people as if it were their facility.
If it were
)
4 their facility, there is no question but that Florida Power l
5 C Light would transmit for them.
This case does not in volve 6 what Florida Power & Light will do for qualifying 7 facilities.
It involves whether this thing belongs to these 8 people, 9
JUDGE KOHL:
Our concern is -- what concern is it 10 of FPEL whose f acility this is, whether it is Dade County's 11 or PCW's?
12 MR. BOUKNIGHT:
Because it is ours under the 13 contracts.
14 JUDGE KOHL As I understand it, that is still
~
15 subject to arbitration.
16 CHAIRMAN ROSENTHAL:
I do not understand that 17 argument at all.
I know you made it in your brief.
I do 18 n o t understand how you can clain that at this point title to 19 this facility is vested in FPEL in circumstances where, as I 20 understand it, not one penn y has been paid to PCW for its 21 construction.
22 MR. BOUKNIGHT:
Mr. Rosenthal, we do not claim 23 that legal title is vested in us.
W e do cl aim
()
24 JUDGE KOHL:
What kind of title, illegal title?
25 MR. B3UKNIGHT:
Equitable title, beneficial O
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 o wn e rshi p.
Under Florida law, it is our view that the 2 beneficial owner of this facility is Florida Power & Light
(])
3 Company and the beneficial owner under the contract is 4 entitled to whatever benefits are associated with the 5 facility.
6 Now, we are in the middle.
Florida Power & Light 7 Company is not in the position of trying to do anything to 8 Parsons & Whittemore or to Dade County.
We had a full 9 airing of these contractual disputes among the three parties 10 before the Florida Public Service Commission two weeks ago 11 on December u.
12 CHAIRfAN ROSENTHAL:
Is this all really relevant 13 to the question that is before us?
It may well be that if O
14 this issue ever got to the merits before a Licensing Board 15 you would have a defense along the lines that you are l
l 16 suggesting to any claim on the part of Parsons & Whittemore 17 t ha t there should be wheeling conditions.
l 18 But we are dealing here with a question of the 19 entitlement of Parsons & Whittemore to participate in this 20 proceeding to have its claims litigated.
And I am speaking, l
21 of course, only for myself, that I am hopeful that we can 22 resolve that without having to get into the intricacies of 23 Florida law on equitable ownership or the like.
)
24 "R.
BOUKNIGHTs I agree, Mr. Chairman.
I do not 25 sea n to digress.
I will move quickly to these legal t
l
(~)
\\_/
1 I
l ALDERSoN REPORTING COMPANY,INC.
400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 issues.
2 The only point I want to make to you is that we C) 3 cannot stand silent in the face of an accusation that we are v
4 wearing the black hat.
We are not.
We are in the middle 5 and trying to --
6 JUDGE EILPERIN:
When do you think Parsons C 7 Whittemore should have tried to enter the Commission 8 proceeding?
9 ER. BOOKNIGHT:
I do not know what was in Parsons 10 C Whittemore 's mind.
I would give you the answer, in 1973, 11 or at the latest 1976.
12 CHAIRMAN ROSENTHAL:
How could they have done 13 that?
At that point, as I understand it, they had not the O
14 slightest reason to believe that they were going to end up, 15 as they saw it, in the electric generation business.
I 16 mea n, their hope was, as I understand it, that under these 17 various contractual relationships, their role was rimply 18 going to be as an operator of.+.he garbage f acility that 19 gener'tted the steam.
l l
20 And now how can you say that they should have l
1 21 interve9ed at a point prior to the time when it became 22 painfully apparent to them, from their standpoint at least, 23 that they might be in the electric generation business?
24 HR. BOUKNIGHT:
Ihat is really not any different 25 from the case that you had before you in ALAB 582 and ALAB
(
ALDERSoN REPORTING COMPANY,INC.
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1 526, where somebody comes along and says:
I moved in near 2 this power plant two years after the notice of hearing went 3 out, and now I want to intervene and r.y nood cause for 4 intervening two years late is I did not live here two years 5 ago.
6 The Commission has taken the position and this 7 Board has taken the position that that is just not good 8 cause, that you came along late, or otherwise a proceeding 9 would never end.
10 CHAIRMAN ROSENTHAL:
Not in an antitrust context; 11 I wouldn't say that those principles would automatically 12 carry over.
13 MR. ROUKNIGHT:
3r. Rosenthal, I would say this.
O 14 I would say that the excuse that one only recently acquired 15 a status that would support intervention is not a sufficient 16 showing of good cause.
17 JUDGE EILPERIN:
Say it is.
When do you contend l
l 18 would be the earliest time they could intervene?
Would you l
19 agree with the January 1981 date?
l l
20 MR. BOUKNIGHT:
The trouble I have with that, when 21 you begin -- when you look at Parsons & Whittemore's theory, 22 it is coherent -- I think it is untenable, but it is 23 completely coherent.
The good cause and the nexus arguments
()
24 blend together.
All are tied to the settlement agreement.
25 JUDGE EILPERIN:
There are two arguments, as I h
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2346
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1 understand it.
One is the settlement agreement and the 2 other is the situation inconsistent with the antitrust laws 3 relating to FPL's monopoly control of the transmission.
4 There are two separate arguments.
j 5
MR. BOUKNIGHT:
I really cannot find that second 6 argument.
But if I were to accept a rguendo all tha t, that 7 these people had come in and made a coherent allegation that 8 their ptoblem is that they cannot get transmission service, 9 and when should they firrt have known that they were going 10 to have a problem of transmission service, the date is some 11 time well before December of 1980.
12 December of 1980 is when Dade County sued them.
13 There is no doubt that some time before December of 1980 14 Parsons C Whitte'more was well aware that it was in a thorny 15 contractual dinpute with Dade County.
16 JUDGE EILPERIN:
What sort of con tention would 17 they have tendered in the antitrust proceeding at that t
l 18 point ?
What would their contention have looked like if at l
19 t ha t point it was just a nascent contractual dispute with 20 Dade County?
21 MR. BOUKNIGHT:
I think the same contention they 22 are making now.
They say they have legal title and that is 23 enough.
They had the legal title then they h ave now.
I do
()
24 not think they can pla y that both ways.
If that is the 25 interest and if that justifies their coming in here and
/3 N_)
ALDERSoN REPORTING COMPANY. INC.
400 VIRGIN!A AVE., S.W., WASHINGTON. D.C. 20024 (20 0 554-2345 L
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1 making these contentions, it justified their making those 2 contentions back then.
3 But certainly, as of December of 1980, if you take drs 4 the thing even a step further, as of December of 1980, when 5 Dade County actually filed suit against them, then under any 6 theory at that point these people were in a position to say 7 anything they wanted to say in this proceeding.
8 JUDGE EILPERINs Have you been prejudiced by the 9 passage of time between December 1980 and this time?
10 3R. BOUKNIGHT:
We are in a construction permit 11 proceeding in which Florida Cities has taken the position 12 tha t an operating license that FPL believes it's going to 13 need in December 1982 cannot be issued.
O 14 CHAIRMAN BOSENTHAL:
That would only apply, 15 wouldn' t it, that argument, in the context of Florida 16 Cities' own particular antitrust problem?
17 MR. BOUKNIGHT:
I really do not think so.
18 CHAIRMAN ROSENTHAL:
Let us assume that Florida 19 Cities prevails on that condition.
As I understand, the i
l 20 Licensing Board has decided that the issue is premature at 21 this point.
So assume that wha tever problems Florida Cities l
22 has are worked out one way or the other, either by l
23 settlement or by Licensing Board determination, and wha t
()
24 remains are Parsons C '4hittemore 's problems.
25 Now, how would Florida Cities be in a position to O
ALDERSoN REPORTING COMPANY,INC,
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1 oppose at that point the issuance of an operating license 2 because of the pendency of Parsons & Whittemore's problems 3 if Parsons E Whittemore has agreed, as I understand it has 4 agreed, to have the operating license issue in advance of 5 the resolution of its issues?
6 I mean, I would think that Florida Cities would 7 have, to use that tiresome word, no standing to insist that 8 the operating license abide the resolution of somebody i
9 else's problems.
10 MR. BOUKNIGHT:
That question seems to posit a 11 phased hearing and that is not what would happen in 12 reality.
What would happen in reality is if you grant this 13 petition then we are going to have two Intervenors sitting 14 at two tables, instead of one Intervenor in the hearing 15 room.
And we are going to have all the evidence on at one 16 time, and these people's participation in the proceeding is 17 going to complicate the proceeding vastly.
18 And moreover, since the contract dispute is a t the 19 center of their contentions, we are going to require 20 discovery and it is going to take time.
Now, as I 21 understand how the hearing process works, that is going to 22 g e t interwoven with the Cities' case and it is going to 23 delay the whole schedule, or if it does not delay the whole O)
(_
24 schedule the reason will be that Florida Power E Light 25 Company had to forego some discovery and some opportunities ud ALDERSoN REPORTING COMPANY,1:4C, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
36
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1 to defend itself that it felt it needed.
u 2
CHAIRHAN RCSINTHAL:
Is it necessarily so, in this 3 rather unusual situation, that there would have to be a 4 comingling of the Florida Cities and Parsons C Whittemore 5 issues?
It might well be that there would be equitable 6 considerations which would justify winding up the Florida 7 Cities aspects of this and then taking on Parsons &
8 Whittemore subsequently.
9 MR. BOUKNIGHT:
Well, I am not aware of any such 10 procedure.
But let me say one other thing about that --
11 JUDGE EILPERIN:
What if the Licensing Board just 17 entered an order that postponed all discovery and held in 13 abeyance any claims that Parsons & Whittemore had pending
)
14 the completion of the antitrust proceeding as it r,o v 15 exists?
16 MR. BOUKNIGHTs Then I do not know where we are as 17 a matter of law.
At that point the Chairman has posited 18 t ha t perhaps the Cities would not have standing to assert t
19 that the license could be delayed.
I have trouble with 20 tha t.
21 The Cities' theory is that under the statute the 22 license cannot issue unless everybody who is a party to the 23 proceeding agrees, unless the antitrust proceeding is over.
i
(_3 2
)
24 If the antitrust proceeding is not over, we have still got a l
25 delay problem.
But the focus should not just be on tha t.
-s ALDERT.oM REPof' TING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2346
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1 That is the problem that obviously is of the most acute 2 interest to the Florida Power C Light Company.
3 But the idea that somebody who comes in very late 4 with no good cause should be permitted to be heard merely 5 because we can find a way to prevent the delay of the 6 license, I do not think is good law.
7 CHAIRMAN ROSENTHAL When you say "no good cause,"
8 does that rest exclusively upon your reliance on the cases 9 in which we held tha t a newcomer to the area cannot plead 10 recent residence as a basis for late intervention?
Or are 11 there other considerations?
12 MR. BOUKNIGHTa By no means.
The theory stated by 13 the petitioner in his petition, in his brief and in his O
14 argument to you this morning is that the linchpin of his
~
15 case is the settlement agreement, that the reason he should 16 be permitted to intervene now is that he learned of the 17 settlement agreement only in the spring of 1981.
He thinks 18 that the settlement agreement hurts him in that it is not 19 strong enough, and he walks into the case.
That is what he 20 alleged.
That is what he ought to be held to.
21 If he is going to come forward with a second 22 theory, if he is geing to come forward with the theory 23 posited by Judge Block below, then I think he owes two
()
24 thingss The first is to set forth in his petition or in an 25 amended pe ti tion, which he never did, a theory of exactly f"\\
V ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S W, WASHINGTON, D.C. 20024 (202) 554 2345
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I when it was that he learned of all of these things, when it 2 was that he knew he was going to have a problem, and why he
()
3 waited a few months after that before filing the petition.
4 He also has an obligation --
5 JUDGE EILPERIN:
It was January 1981 when he 6 tendered the plant to Dade and Dade did not take the plant.
7 MR. BOUKNIGHT:
Mr. Eilperin, he said that.
He 8 has not said to you that he did not know that situation was 9 going to come to pass some months before.
The sworn 10 testinony in the record of the Florida Public Service 11 Commission case, put in by the assistant county manager of 12 Dade County, is to the effect that the discussion was held 13 some time in the summer of 1980, that the parties were at O
14 that impasse, and then that Dade County finally sued them in 15 December of 1980.
16 I do not think it is terribly dif ficult for 17 Florida Power E Light Company to make a negative case on 18 this kind of thing, when the petitioner has not made a 19 positive case on it.
He has not told us when he alleges 20 that he knew all of this.
But we have some pretty good 21 evidence that he knew all of thic some time much earlier in 22 1980 than December of 1980.
23 Now, there was not a hearing on that below.
There
(
24 were not evidentiary proceedings on that.
What happened is 25 that he filed th e pe ti ti o n, we filed next a request for
()
l l
ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 subpoenas.
We wanted to look into these things and make a 2 case on them.
3 The Licensing Board withheld a decision on our 4 request for subpoenas.
We then filed a partial response to 5 the petition, and then we went to a conference.
When we got 6 to that conference, there was absolutely nothing in the 7 record about good cause other than an allegation about the 8 settlement agreement, nothing else.
Everything else 9 happened orally at the hearing below.
10 But even orally, at the hearing below the 11 petitioner did not come forward and say, okay, I have a 12 second theory and here it is.
There was never any of that.
13 The second theory was expressed from the bench by Judge
\\^
14 Block.
And we responded at the time that we can produce 15 evidence demonstrating that tha t intent arose some time in 16 early 1980, and we are still in a position to do that.
17 But I do not know why it should be turned around.
18 We have here a large corporate petitioner, represented by a 19 large and able law firm, and they did not allege it.
My own i
20 view of why they did not allege it is that what they did 21 allege is a coherent theory.
It also entails a nexus.
That 22 is really the heart of this thin g.
The petitioner cannot i
23 find any nexus between what he claims and this power plant
()
24 unless his theory is right, that the nexus has to be between l
l 25 the license conditions and his interest, ra ther than between
()
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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I his interest and the power plant.
2 Knowing that he could not allege an interest or 3 nexus any other way, his whole theory is built aro und tha t, 4 and his whole theory is predicated on the settlement 5 agreement, and that is the one that he chose to ride in 6 filing his petition and that he has chosen to emphasize 7 throughout the case.
And I think he ought to be judged on 8 the basis of that.
9 And I think he is just wrong on both counts, that 10 the nexus has to be between activities in operating or 11 constructino the power plant and the petitioner's situation 12 and the complaint.
It cannot be that the petitioner does 13 not like license conditions that have been promulgated.
And O
14 moreover, the idea that every time license conditions were 15 promulgated in an NEC proceeding that anybody who did not 16 like those then had a right to be heard wocid disrupt this 17 Commission 's processes.
18 For example, we have license conditions in this 19 case that are in the settlement agreement that define 20 neighboring entities, and about half of the municipal 21 electric systems in Florida are included within that 22 definition.
The other half are not.
Nobody in the state of 23 Georgia is included in that definition of neighboring O
24 entities.
25 Under petitioner's theory, every one of those
(
ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345
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1 people had a right, as soon as that settlem ent agreement was 2 entered into the record, to file petitions to intervene and 3 to be heard on thst.
And that just cannot be the law.
4 Incidentally, Florida Power & Light Company 5 believes very strongly that this facility is not a 6 neighboring entity.
That issue was put before the Director 7 of Nuclear Reactor Regulation when these people requested an 8 enforcement order.
He denied the enforcement order without 9 reaching the question.
10 CHAIRMAN ROSENTHAL:
Do we need to reach it?
11 HR. BOUXNIGHT:
No, sir, you do not.
But I cannot 12 let his statemennt stand just like that.
13 JUDGE EILPERIN:
Can they amend their petition to O
14 allege more clearly the antitrust theory, rather than 15 hinging everything on the license settlement conditions?
16 MR. EOUKNIGHT:
Mr. Eilperin, at some point, as 17 you know, in our pleading we have taken issue with the 18 so-called antitrust contention that they included in this 19 petition.
But I know that the Commission, in instances 20 where a citizen who lives near a power plant site comes in 21 and files a petition to intervene that is defective for lack 22 of the assistance of experienced counsel, is sometimes 23 lenient in allowing amendments.
()
24 CHAIRMAN ROSENTHAL:
What about the Wolf Creek 25 antitrust case?
Isn't it true that when Wolf Creek first ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 came to us on an appeal from the Licensing Board's grant of 2 intervention, we held that the grant of intervention was
)
3 improper on that petition, the petition was deficient in 4 some respects, and then sent it back with, as I recall it, 5 instructions to allow the petitioner to amend?
The 8 petitioner did amend and I think eventually we held that the 7 amended petition was adequate.
8 So we are not now talking simply about unlettered 9 Intervenors in construction permit cases.
10 MR. BOUKNIGHT:
But Mr. Rosenthal, that case as I 11 recall it, that was a situation where the petition was in 12 the form of the kind of notice pleading that one would file 13 in federal courts.
It did a t least in that broad outline O
14 state an interest and an antitrust contention.
And the 15 first decision that this Board issued in the Wolf Creek case 16 was really a case of first impression, in which this Board 17 defined what kind of particularity was required to be in a 18 petition in an antitrust case.
19 And I think that is f ar different than someone who 20 simply comes along, ignores the existing law on nexus and 21 good cause, comes forth with a theory that cannot fly under 22 the existing law, and when he has now the benefit of the 23 Chairman of the Licensing Board and the members of the
}
24 Appeal Board explaining to him that perhaps, had he followed 25 another theory, he would be closer to in court.
f' ALDERSON REPORTING COMPANY,INC.
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1 The idea of letting this fellow go back and amend 2 does not seem to me to be justified.
("}
The other two points which are made in our brief 3
4 are points which the Licensing Board did not agree with us 5 on, and we respectfully submit that we should have prevailed 6 on those.
The first was the point of standing or interest 7 to participate in the proceeding, and the second is the 8 question of the specificity and particularity of the 9 antitrust contention that was contained in the petition.
10 And I do not think that it is necessary for me to add 11 anything to what is stated in our brief on those two 12 points.
13 Mr. Kucik during his argument described to you the g
O 14 proceedings that are going on before the FERC and, as with 15 most other things that are before you this morning, he and I i
16 do not agree on tha t.
Mr. Kucik filed a piece of paper 17 which says on its f ace tha t it is a notice of I
18 qualification.
Florida Power C Light Company did not simply l
19 come in and ask that it be revoked.
Florida Power & Light l
l 20 asked the Commission to issue an order saying it was a 21 nullity from the outset and the Commission -- Mr. Kucik then 22 filed a piece of paper saying to the Commission that, my 23 notice of qualifica tion is effective until revoked.
)
24 Instead of issuing an order saying, you are right 25 about that, the Commission issued a noticed published in the
()
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 m -m
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1 Federal Register inviting people to file petitions to 2 intervene and suggesting to all of us that there are going 3 to be further proceedings before anybody wins at FERC.
4 CHAIRMAN ROSENTHAL:
Now, assuming that Parsons C 5 Whittemore is entitled to some relief against
.orida Power 6 & Light, could they get all of that relief, in your 7 jadquent, from the FERC?
8 MR. BOUKNIGHT4 Yes, sir, they could.
9 CHAIRMAN ROSENTHALs Mr. Kucik disputes that.
10 MR. BOUKNIGHT:
Well, he does.
But as I recall 11 what he said, that the only way that they can s receitre 12 wheeling from the FERC is under some obscure new provision 13 with a number of provisos in it.
That provision is,, called O
14 PURP A.
That is the thing that created Mr. Kucik 's client,k 15 that got us all here today, and the provisos that are in s
16 there, these technical provisos, are that the Commis'sion '
17 cannot issue a wheeling order unless it first finds that s
18 there is not an undue burden on the person required to do 19 the wheeling or uncompensated economic loss for the person 20 required to do the wheelino or a loss in reliabilit y.
21 Now, it seems to me that if you are going to claim 22 -- if you are going to come into this Commission or anyplace 23 else claiming that there in a national policy expressed by
()
24 PURPA in f avor of letting you do something, that the 25 qualifications that are put on that by the very sta tute that O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 created those ribhts are an integral part of it.
2 The position that he is in --
~
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3 JUDGE EILPERIN:
You are arguino, then, t ha t tha t A),
4 PURPA statute -preempts the Commission from imposing any
\\
s.
\\
5~ additional antittuit considerations?
6 MR. BOUKNIGHT:
No, Mr. Eilperin.
We have agreed
~
7 to a license' condition which would require FPL, without
\\
8 going through this.PORPA hearing process, to wheel power 9 from a qualif ying f cility to a neighboring entity or 3
10 neighboring distribution system.
It has a qualification in 11 there and that qualification is that whoever getting that 12 power wheeled to him will assume any oblications FPL has to 4
13 provide backup to that qualifying facility.
Now, that goes O
14 right to the heart of those standards, such as undue burden 15 and uncompensated economic loss.
16 Mr. Xucik can taks either route that he wants to 17 t a k e.
He can ignore the NRC license conditions.
He can go 18 to FE2p and c'ontider the question of wheeling.
I believe 19 t hat technically tre person to whom the power is being 20 wheeled v'ould be the Applicant in such a case.
21 But in a case in which a wheeling order were 22 sought with respect to a qualifying facility, one of the 23 questions would be if it is necessary for us to back these
()
24 people up for power that is being wheeled outside of our 25 service area, is that an undue burden to place upon FPL; and ALDERSoN REPORTING COMPANY,INO.
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1 moreover, under PURPA do we have an obligation to back 2 somebody up under those circumstances.
3 Fe can fight that out in that forum, or he can 4 come over here and he can take his wheeling without any 5 further proceedings, without any findings under PUEPA.
But 6 he cannot take the cream from here and the cream from here 7 and mix them.
That is all hat is provided.
8 JUDGE EILPERINs That is a merits question.
9 HR. BOUKNIGHT:
I do not think that is a merits 10 question, no, sir.
I think the conditions in the NRC 11 license, the key thing is that it imposes an obligation on 12 FPL -- it is a qualified obliga tion -- but it imposes no 13 obligation on PEW.
But what is crucial to it is that it O
14 stands completely independent from what he can do under 15 PURPA over here.
16 All the rights that he had under PURPA the day 17 before that condition was made ef f ective, he has today.
He 18 has some additional and different richts over here from the 19 NRC.
He.1ust does not think they are enough.
20 CHAIRMAN ROSENTHAL:
Your time is expired.
i 21 MR. BOUKNIGHT:
Thank you, Hr. Chairman.
22 CHAIRMAN ROSENTHAL:
We vill take a ten-minute 23 recess and then hear f rom the staff.
()
24 (Recess.)
25 CHAIRMAN ROSENTHAL:
Mr. Vogler?
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1 ORAL ARGUMENT ON BEHALF OF THE REGULATORY STAFF 2
MR. V0GLER:
May it please th e Board 1 3
This petition shculd be dismissed because of its 4 failure to state an adequate nexus to this proceeding.
The i
5 Licensing Board dismissed the petition on that ground alone, 6 on this independent ground, in addition to the failure to 7 satisfy the requirements for late intervention under 2.714 8
The fact of the matter is this petitioner has l
9 still yet to describe a situation inconsistent with the
(
10 antitrust laws and whether FPCL's activities under that il license and their connection to the relationship with the 12 situation inconsistent --
13 JUDGE EILPERIN:
Why is it the settlement O'
14 agreement then entered into by the staff and the Department 15 of Justice and FPL deals with wheeling rights for potential 16 competitors?
Isn't that the nexus, and isn't it plain that 17 tha t is the nexus because that is in fact covered by the 18 settlement agreement?
19 HR. V0GLER:
I submit that it is not.
20 JUDGE EILPERIN:
Why did you include things like 21 tha t in the settlement agreement?
Why did you negotiate for 22 rights such as that, for potential competitors to have 23 access to transmission f acilities, in the settlement O
\\_/
24 agreement if you do not think that that has some tie-in to 25 whether or not there is a situation inconsistent with the V
ALDERSON REPORTING COMPANY,INC.
400 VIRGINIA AVE, S.W, WASHINGTON, D.C. 20024 (202) 554-2345 -
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1 antitrust laws?
2 MR. V0GLER:
That would be secondary to access to' 3 the nuclear unit.
Access to St. Lucie was one of the (1-)
4 primary emphases that the staff and the Department of 5 Justice was puttine on the license conditions in an effort 6 to relieve what was perceived to be a situa tion inconsistent 7 in Florida.
8 Access in and of itself, access alone, without l
9 anything else, is meaningless.
In order to have access to 10 low-cost baseload nuclear power, you must have the means to 11 get it away.from the plant, and that is called 12 traasmission.
And the movement of that transmission is 13 called wheeling.
tO ss 14 JUDGE EILPERIN:
This potential competitor says 15 the same thing.
In order for him to compete, he has to have 16 access to that grid.
17 MR. YOGLER:
The potential competitor's nexus is 18 with the license conditions and not with the situation 19 inconsistent with the antitrust laws.
If he is dissatisfied' 20 with the license conditions he could come in here under 21 another provision of our rules and seek the relief that he 22 is seeking.
23 It is not necessary, if you are dissa tisfied with
()
24 one of our license conditions, to come in and lead under the 25 provisions of 2.714 and become a full party in interest to O
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1 the entire proceeding.
2 CFAIRMAN ROSENTHAL:
What is this remedy he has in 3 the Commission?
g%s) 4 MR. V0GLER:
It is 2.206, Your Honor.
He can seek 5 enforcement of the license conditions without going through 6 all of the requirements set forth in 2.714.
7 CHAIRMAN ROSENTHAL:
To seek enforcement of the 8 license conditions thst are imposed in the antitrust 9 proceeding, is that correct?
10 MR. V0GLER:
Yes.
11 CH AIRMAN ROSENTHAL:
But he claims, as I 12 understand it, that those conditions are inadequate.
If I 13 understand the position of the Appellants, it is that even 14 if there is scrupulous adherence that these conditions 15 that have been arrived at by the staff, Justice and the 16 utility are not enough to protect their position.
So how 17 could they -- ! mean, if their view is that those conditions 18 do not protect them, what good would it be to them to file a
(
19 2.206 seeking enforcement of these assertively inadec aa te 20 conditions?
21 MR. V0GLER:
He may also seek, under 2.206 of the 22 Commission 's ruler, v.odification of the Commission's license 23 conditions, as well as specific enforcement thereof.
()
24 CHAIRMAN ROSENTHAL:
Well, if he can do that, I
j 25 isn't it better as a matter of the orderly resolution of
()
i ALDERSON 4EPOATING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 such questions to have them considered in this proceeding 2 rather than have them taken up in 2.206?
3 MR. V0GLER:
No, primarily because the lengthy 4 negotiations and discussions with the license conditions are 5 over.
The license conditions have been accepted by the 6 Licensing Board and are incorporated in the St. Lucie 7 license and are effective today.
And if you want to have 8 some enforcement or some modification of existing license 9 conditions already in effect, the staff submits that 2.206 10 is the proper approach for relief.
11 JUDGE KOHL:
But aren't the licensing conditions 12 that you say have already been approved by the Licensing 13 Board -- haven't the been approved just as minimum O
14 conditions?
As I understand, PEW is asking for something 15 additional.
Why wouldn't it make more sense for that matter 16 to be pursued in the course of the pending hearing?
17 Florida Cities has not agreed to the license 18 conditions.
They have still got some other matters that i
19 they are pursuing.
l 20 MR. V0GLER:
That is true, Your Honor.
They are, l
21 the license conditions are a floor upon which Florida l
l 22 Cities, after proving the situation inconsistent with the 23 antitrust laws -- and I am aware of the opinion that came
()
24 o ut within the past few days -- can then establish what else l
25 is necessary for their complaint.
The petitione:
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1 JUDGE KOHL:
Doesn't that put them in the same 2 posture as PEW?
3 MR. V0GLER:
No, I do not think so.
I submit to 4 you that the petitioner, if it wants to show as a party in 5 interest what is wrong with the license conditions and where 6 else va must modify them or amend them, and he wants to come 7 in here under 2.714, he must first meet the criteria set 8 forth by the Appeal Board in Wolf Creek and the Commission 9 in Waterford.
And I submit that they have not done that.
10 They have not established --
l 11 JUDGE KOHL:
We have shifted gears.
We were 12 discussing the adequacy of the 2.206 provision.
You have 13 now moved away from that and you are back to this proceeding 14 and arguing that they have certain requirements here.
I 15 think the matter that we were really addressing was exactly 16 wha t is -- how adequate is the 2.206 as a remedy, which you 17 assert in your brief.
l 18 MR. V0GLER:
I submit that it is a complete remedy 19 for the petitioner.
I am going on what the petitioner has 20 pled and he is claiming nexus to our license conditions, not 21 the situation inconsistent with the antitrust laws, tha t he l
l 22 has not established.
He is upset with one of our license 23 conditions involving transmission, and if he can come in
()
24 here under 2.206 to the Director of Nuclear Reactor 25 Regulation and establish what the problem is, I submit that l
l l
i ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON D C. 20024 (202) 554-2346
52 O
' *a
- i=
aere the re11er 11e= ror the a ture of th1=
2 petitioner's claim.
3 CHAIRMAN ROSENTHAL:
Can he do that right now or 4 would he have to wait until after the antitrust proceeding 5 is concluded?
6 MR. V0GLER:
He does not have to wait until the 7 antitrust proceeding is concluded.
But he has put forth 8 since the inception of this matter his key to the Nuclear 9 Regulatory license conditions.
It has been the PURPA.
And 10 he may have difficulty cnming in here claiming to be a 11 qualifying facility under PURPA, because that is the 12 petitioner's choice.
He has used that as a lever to get 13 into the license conditions or into the proceeding, and he 0
14 is not a qualifying facility at this time.
15 JUDGE KOHLa Well, he claims that was only one 16 prong of his argument, that PCW has rights that are not 17 PUR PA-re la ted, that they are strictly rights to be free of 18 the situation created by FPL that would be inconsistent with 19 the antitrust.
20 MR. V0GLER:
His pleadings to date have alleged 21 PURPA, Your Honor.
I am aware of what he said this 22 morning.
If we could take a look at his allegations, I 23 might be better prepared to answer that.
At the present hV 24 time --
25 JUDGE KOHL:
What if h e were to plead better, in ALDERSoN REPORTING CC.JPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 your view, before the Director in the 2.206 proceeding that 2 you said he could file now?
3 MR. VOGLER4 I did not get the question.
4 JUDGE KOHL:
You argue that there is a pleading 5 inadequacy in this proceeding, but you also argue that he 6 has a complete remedy in filing a 2.206 petition.
And you 7 ind ica ted, I believe a few minutes ago, that there would be 8 no time problem; he could file that now.
9 What if he did a better job of pleading in that 10 case.
Would there be any impedinents that you could'see to 11 his pursuing a 2.206 petition under the circumstances?
12 MR. V0GLERs No.
If he comes in alleging a 13 qualifying facility as his key to come in under 2.206, he O
14 must first satisfy that.
If he comes in, as he said this 15 morning, as a competitive entity, which he alleges, and 16 seeks enforcement of the license conditions, we will have to 17 take a look at dhat he has to say.
18 My point is that he has not established s 19 situation inconsistent with the antitrust laws.
He has not 20 established nexus under 2.714, the requirement set forth in 21 Wolf Creek.
He has not s.atisfied the requirement of 2.714 22 f or late intervention, and he does not belong in this 1
23 proceeding f or those reasons.
()
24 And I was addressing myself to relief, where can 25 ve respond to this petitioner's claims, and I submit it is O
ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 564-2346
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' 2 2o5-2 JUDGE KOHL:
What is the nature of the staff's 3 particular concern in this case?
What detriment to the 4 staff position or to our adjudicatory processes do you see 5 from the admission of PCW at this point?
6 I understand what FPL's concern is.
They 7 presumably have something to lose if there are additional 8 conditions that might be imposed on their license as a 9 result of this.
But I am curious as to the nature of the 10 staff's concern here.
11 MR. V0GLER:
The staff -- most of the response to 12 that question can be found in th e p:3 tition in the 13 requirements under 2.714(a) for late intervention.
We are O
14 concerned about dolay in this proceeding.
We are concerned 15 about the development of extranecus matters possibly in our 16 record.
We are also concerned about the licensing of the 17 nuclear unit.
18 JUDGE KOHL:
What do you mesn, you are concerned 19 about extraneous ma tters in th e record?
20 MR. V0GLER:
We do not as of this time -- as of 21 this morning, this petitioner's claims are based upon his 22 status under PURP A, and we maintain that the proper forum 23 would be the Federal Energy Regulatory Commission, the FERC,
()
24 for addressing the claims that this petitioner has raised.
25 We maintain that there is another forum whereby this
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N.)g ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 petitioner's interests would be protected.
2 However, if the petitioner elects to select this 3 agency, the Nuclear Regulatory Commission, for its relief, 4 staff submits it is 2.206 and not 2.714, with all of the J
5 basis requirements, that is necessary to establish 6 standing.
7 CHAIRMAN ROSENTHAL:
Mr. Vogler, you insist that 8 apart from what you perceive to be the deficiencies in the 9 petition in terms of, among other things, nexus, that 2.714 10 has not been complied with insof ar as the lateness aspect is 11 concerned.
Now, at what earlier point as a practical matter 12 could PCW have intervened?
11 How could they have come in in response to the O
14 notice seven years ago?
At that point they were not in the 15 electric generating business.
Had they endeavored to come 16 in at that point, I~ feel perfectly certain that the staff 17 would have opposad their petition on the ground of want of 18 satisf action of the interest requirement.
19 MR. V3GLERs Possibly.
I cannot speculate.
20 CHAIRMAN ROSENTHAL:
You cannot specula te?
21 MR. V0GLER:
I cannot speculate as to what we 22 would have said seven years ago.
23 CHAIRMAN ROSENTHAL:
If someone petitioned for
()
24 leave to intervene in an antitrust proceeding and that 25 individual was not involved in the generation of O
1
/
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1 electricity, had no relationship to the utility or the 2 utility's activities, is it possible or certain that the r
3 staff would have imposed an objection on the ground of want
(>]
4 of interest?
5 If it is merely possible, I do not understand the 6 staf f 's litiga ting position in a number of other cases.
7 ER. V0GLER:
Staff's litigative position in the 8 cases you are referring to, the Fermi and the Catawba, were 9 based on the circumstances of that case.
As a general rule, 10 you must state an interest in the proceeding, and as a 11 general rule in the past we have denied it on the lack of 12 standing and the lack of an interest that is affected.
13 I was tsking the very broad prospect of what would 14 have happened seven years ago and said possibly.
That was 15 the basis of my answer.
I do not --
16 JUDGE EILPERIN:
When do you think these people 17 should have filed to be in the proceeding?
18 MR. V0GLERs That goes to the good cause 19 requirement, and the staff, af ter reviewing the pleadings, 20 has taken the position that they should have known long 21 before January of 1981, which is the date that they have 22 selected.
The reason for that is --
23
-CHAIRMAN ROSENTHAL Don't give me "long before."
()
24 Let's pick out a particular time.
What was the event long 25 bef ore that January which should have triggered at the very O
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1 latest the intervention petition?
2 MR. V0GLER:
The staff pointed out in its brief, 3 and we advised this petiticner before he filed his appeal 4 brief herein at the oral argument before Judge Block and the 4
5 panel below, that the arrangements for the settlement and 6 the fact that the settlement had been reached was placed in 7 the public record in September of 1980.
8 JUDGE KOHL:
What do you mean, "placed in the 9 public record"?
10 MR. V0GLER:
Pardon me?
11 JUDGE XOHL:
What do you mean, put into the public 12 record?
That phrase appears throughout your pleadings, and 13 some other ones.
14 MR. V0GLER:
As a general rule, Your Honor, 15 whenever we make a formal action of any type we put it into 16 the public record, which means it goes into the reading room 17 lib ra ry available to the public in the area where the 18 nuclear plan t is being constructed and on the basement 19 floor, the ground floor, of our H Street office here in 20 Washington, - D.C.
21 In addition to that --
l 22 JUDGE KOHLS No Federal Register no tice?
23 MR. V0GLER:
The Federal Register notice came out
()
24 in January of
'81.
But I would like to be heard a little 25 bit further on this.
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1 JUDGE EILPERIN:
If in fact they did not think 2 that they would be -- that they would have the plant at tha t
~
3 point, why should they have intervened then?
4 MR. V0GLER:
I would like to address th t.
And a
5 the staff takes the position -- and we quarrel with the 6 petitioner on this -- we do no t have here apro se 7 Intervenor.
We do not have a single individual or a group 8 of individuals coming in here and inartfully attempting to 9 express their fears and their concerns over the construction 10 of a nuclear unit.
11 You have a multi-million dollar corpora tion 12 engaged in a multi-million dollar projects.
You have 13 millions of dollars at stake.
This petitioner has attorneys O
14 in Miami, in.:ahington, and from what I understand in New 15 York City.
And most certainly, if the petitioner was 16 unaware of this proceeding actually, the petitioner knew or 17 should have known long before April 24, 1981, when it came 18 in with a pe ti tion.
It most certainly had the means to do 19 it.
20 And I also submit that when you a re engaged in i
21 asking a county for a $90 million down payment and when you 22 are engaged in the construction of a facility that costs l
23 this much money, these problems do not arise overnight.
()
24 N ow, we have heard the summer of 1980.
We have heard the 25 f all of 1980.
We have heard January of 1981.
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1 The staff, not being in Miami, Florida, or the 2 Dade County area, not being a party to the arbitration 3 7toceeding and the negotiations that have cone on, knows 4 less about when the date actually took place.
But the staff 5 submits that a petitioner of this corporate size and these 6 f acilities available to its means knew or should have known 7 long before it filed this petition.
8 JUDGE KOHL:
Known about what?
The existence of 9 this particular proceeding, or known that they would be in a 10 position in the future where they might find themselves 11 affected by the license conditions that are imposed here?
12 MR. V0GLER:
Both, both.
They have been engaged 13 in, f rom wha t I read f rom petitioner 's brief and f rom the O
14 Applicant's brief, they have been engaged in negotiations 15 and discussions with Dade County involving a 590 million 16 payment in the fall of 1980, and I submit that these matters 17 do not a rise overnight.
They know where they are going, 18 where the relations are.
There is too much involved, and 19 they should have kno wn long before they came in in April, 20 a nd they have not satisfied the good cause requirement under 21 2.714 for that reason.
22 CHAIPMAN ROSENTHAL:
Mr. Vogler, I think in 23 response to a question of Mr. Eilperin you indicated that
()
24 the wheeling aspects of the settlement agreement were tied 25 to providing access to the power being generated by the
~
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1 nuclear plant.
Is that correct?
2 MR. V0GLER:
That is one of the reasons for the
(~S 3 wheeling provisions, to make access to nuclear power V
4 meaningf ul.
5 CHAIBMAN ROSENTHAL:
You say that was the nexus 6 between that wheeling condition and the operations or 7 activities under the license?
8 MR. V0GLER It was connected to access to the 9 plant, which we regarded as the primary nexus.
Access to 10 the low base power of St. Lucie 2 without the ability to 11 have it wheeled would be useless to these petitioners.
12 CHAIP. MAN ROSENTHAL:
All right.
That is the 13 reason why that wheeling provision has a nexus to the 14 opera tion of the S t.
Lucie plant?
15 MR. V0GLER:
That is correct, Your Honor.
16 JUDGE EILPERIN:
Are there any other entities that 17 could take advantage of that wheeling provision other than 18 those who want access to the plant?
19 MR. V0GLER:
Yes, they can.
But they are going to 20 have to take advantage of it with someone who has been 21 granted access to the nuclear plant and thereby come under 22 the jurisdiction of the license conditions.
In other words, 23 if you had a croup of cities and City A has access to the
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24 nuclear pIsnt, then City B, which does not have access to L
25 the nuclear plant, can most certainly obtain wheeling O
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1 through the city that has access and share in that nuclear 2 power with the city that does have access.
3 CHAIRMAN ROSENTHALs The beneficiaries of tha t 4 wheeling, the intended beneficiaries of tha t wheeling 5 provision, are all people directly or indirectly who are 6 deriving St. Lucie power, is that correct?
7 MR. V0GLER:
Yes.
8 CHAIRMAN ROSENTHAls All right.
9 MR. V0GLER:
But we have cities who have not 10 intervened who have been included -- would be included as a 11 neighboring distribution system under that definition or a 12 neighboring entity under that definition, who would be able 13 to partake.
In other words, the license conditions were O
14 made broad enough to include other cities, include cities 15 other than just the intervening cities within the service 16 area of the Florida Power C Light Company.
17 JUDGE EILPERIN:
So that how does Parsons C 18 Whittetaore stand in a different relationship to St. Lucie 19 than these other entities?
20 MR. V0GLER:
This petitioner is seeking entrance 21 herein on the basis of a qualif ying facility status under 22 PURP A, and under that they do not fit in at this present 23 time.
One, they have not been granted that status and
()
24 therefore they do not fit in with the class of entities th a t 25 the Department of Justice, the Commission and the Applicant O
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1 determined or negotiated.
2 JUDGE EILPERIN:
I thought I heard Mr. Kucik cay 3 this morning that it is not cependent upon what FERC does,
{"
4 that they would seek access on the ground that they are a 5 neighboring entity in addition to the ground that they are a 6 qualifying facility.
7 MR. V0GLERs I disagree.
I was handed a note and 8 I may have missed the last part.
Is your q uestion directed 9 to whether or not they are a neighboring entity under our 10 license conditions?
11 JUDGE EILPERIN:
I do not know whether they are or 12 they are not.
Mr. Kucik said -- I thought he said they 13 would base their claim on that, the conditions, that PCW is O
14 a qualifying facility.
15 MR. V0GLER:
Staff disagrees with Mr. Kucik on 16 tha t point.
We heard it this morning for the first time, 17 and a literal reading, at least of our license conditions, 18 does not include the petitioner at this time as a 19 nelghboring entity.
20 JUDGE KOHL:
Would it include them as anything?
21 MR. V0GLER:
At this time?
22 JUDGE KOHL:
Yes.
Is there any -- under any 23 construction, do they fit within the scope of this 24 agreement?
25 MR. YOGLER:
They would fit as a qualifying ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345
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1 facility, which is what they have pled up until this 2 morning, when they expanded it.
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3 JUDGE KOHL:
I thought you just said that tney V
4 were not a qualifying facility yet.
5 MF. V3GLER:
They are not.
6 JUDGE KOHL:
So your argument is if they fit 7 anywhere it would be as a qualifying f acility, assuming that 8 their claim to that holds up.
9 MR. V3GLER:
That is correct.
10 JUDGE EILPERIN:
Why are they not a neighboring 11 entity?
12 MR. V0GLER:
They are not a neighboring entity at 13 this time because -- we are becinning to repeat ourselves O
14 here.
They are not a qualifying facility under PURPA.
That 15 is the first.
16 The second, the standard definition of neighboring 17 entity is when the - staff and the Department of Justice lookc 18 a t the situation in the area where the Applicant is located 19 and we look at it in the competitive antitrust sense.
We 20 have included other public -- other organizations who either 21 are or will be a utility, either a municipal utility, a 22 rural electrical coop, or another privately owned utility.
23 JUDGE EILPERIN:
Do you include them by name?
()
24 MR. V0GLER:
No, as a generic class.
If you are a 25 utility or are proposing to be a utility, subject to some O
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1 form of regulation either from the FEPC or from the Florida 2 PSC or if you are legally exempt from that regulation by 3 law, which municipalities are, for example, then you are a
)
4 neighboring entity.
The Florida Power & Light Company is 5 required to take you into consideration under these license 6 conditions.
7 It eliminates individual concerns for competitive 8 purposes at the level of the Sherman Act and the Clayton Act 9 and the Federal Trade Commission Act that we are looking 10 a t.
In oth9r words, they are not a neighboring entity the 11 way I read the definition as of this morning.
They do not 4
12 fit within the requirement.
13 JUDGE EILPERIN:
'#ould you say they are just a
'")
14 consumer?
I thought before you said because they they_ were 15 a consumer.
16 If they a re going to have this plant and they 17 cannot arranga tu transfer the plant, aren't they going to 18 be some sort of generating facility, selling that 19 electricity?
They are not just going to be a gonsumer, are 20 they?
21 MR. V0GLER:
If they become, as the contracts in 22 arbitration -- if arbitration goes the way they feel that it 23 should, they will become a qualifying facility and then be (O
_j 24 able to use the transmission grid of the Florida Power &
25 Light Company.
At the present time they are not subject to O
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1 any form of regulatio;-, either at the federal or the state 2 level, and they are not required under the license 3 conditions to do business with the Florida Power E Ligh t r-}
b 4 Company -- I have that backwards.
5 Florida Power E Light Company is not required to 6 do business with them under the license conditions.
7 Now, I am not barring any independent negotiations 8 that may take place between the parties.
9 CHAIRMAN ROSLNTHALs Your time has expired, M r.
10 Vogler.
11 Mr. Kucik?
12 MR. V0GLER:
I would like to make a correction to 13 the record.
I have just been informed, with regard to 14 wheeling, wheeling is not tied with access to St. Lucie -- I 15 am sorry.
Wheeling is tied to access to St. Lucie.
You 16 were correct, Mr. Chairman.
17 CHAIRMAN ROSENTHAL:
Thank you, Mr. Vegler.
18 MR. V0GLER:
Thank you.
19 CHAIRMAN ROSENTHAL.
Mr. Kucik?
20 REBUTTAL ARGUMENT ON BEHALF OF THE APPELLANT, 21 PARSONS E WHITTEMORE 22 MR. KUCIK:
I wanted to begin with a poin t tha t I 23 did not make earlier because I thought that it would have
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24 been settled definitively and everyone would have understood 25 it.
And I gather from the argumen t that that is not the O)
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1 case.
2 This Board, the Appeal Board, ruled on December 3 3 that our petition was an antitrust petition, and it affirmed
)
4 the ruling in the operating license proceeding to that 5 effect.
That is the law of the case as I understand that 6 ruling.
7 CHAIRMAN ROSENTHAL:
We did not say it was an 8 adequate antitrust petition.
We said it sought to raise 9 antitrust issues..We certainly did not rule on either the 10 matter of whether a sufficient nexus had been alleged or the 11 matter of whether the petition with requisite specificity 12 set forth a situation inconsistent with the antitrust laws.
13 We just said it was an antitrust-flavored petition.
N) 14 MR. KUCI :
Right, precisely.
And I heard Mr.
15 Rutberg say that we should go to FERC because this is a 16 PURPA petition, and it was my understanding that under the 17 law of the case, with all of the same parties in both 18 proceedings, that to the extent to which the decision below 19 -- and it did rest on the idea that that wa s a claim under 20 P UR P A -- t h a t that was basically reversed, and,that we have 21 pleaded an antitrust complaint, adequate or not, to be 22 decided in this appeal.
But antitrust has been 23 ad j udica ted.
Now --
24 JUDGE EILPERIN:
Why didn't you plead a situa tion 25 inconsisten t with the antitrust laws from the outset?
Can O)
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1 you show me where you did that?
2 MR. KUCIKa First we said the settlement 3 conditions did maintain a situation inconsistent.
4 Ju?GE EILPERIN Other than the cettlement 5 agreement?
6 MR. KUCIKa What we did is we pleaded the refusal 7 to wheel, and it came up this way.
We asked FPCL by letter 8 to wheel.
They did not answer before we filed the April 7 9 petition.
The April 7 petition in the operating license 10 proceeding was attached in total to th e petition in this 11 proceeding when we filed it on April 24, and here is what we 12 said.
We said this.
13 We wrote to FPCL and a sked, as an alternative to O'
14 the exclusive sale of energy to FPCL, we wished to explore 15 competitive opportunities f or sales to other electric 16 utilities.
That letter asked FPCL to confirm that it will 17 " transmit electricity on behalf of RED to potential 18 customers other than FPCL."
19 Then we go on to says "FPCL has been asked by RRD 20 to respond by April 17 to its request for access to FPL's 21 transmission lines.
An unconditional affirmative answer 22 f rom FPL would make it unnecessary to pursue the petition 23 for leave to intervene."
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24 We said that it would --
25 JUDGE EILPERIN Whe re was tha t said in the O
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1 intervention?
2 MR. KUCIK:
This is on page 6 of the attached 3 brief.
In the intervention petition-we pleaded what we had eg b
4 asked them to do, and in the brief we said, if they agree to 5 do it that will make it unnecessary to pursue the petition.
6 But to protect ourselves against the eventuality of an 7 unwarranted refusal, we were petitioning.
8 Now, Judge Block picked that up and he asked some 9 questions about it.
But it was not Judge Block's theory, it 10 was our theory.
And the reason it never got articulated 11 beyond the statement that I read to you is that the refusal, 12 the formal refusal from FPEL, did not come until April 29, 13 which wa s five days af ter we had filed the petition.
And b'l 14 since there were no further filings because the case got 15 tied up in a request for subpoenas by Florida Power & Light 16 and a lot of ancillary pleadings, we never expressly made 17 the point that you just mentioned, that we knew they were 18 not going to wheel and therefore that would be an l
19 independent ground.
l l
20 But we had laid the aroundwork for it and asked 21 the question in the brief.
And Judge Block picked it up.
l 22 This Appeal Board in reading our papers read that 23 they sounded antitrust and I think that_they fairly did.
()
24 JUDGE EILPERIN:
Why could you have not alleged a t l
25 the outset that there was a situation inconsistent with the A
l l
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1 antitrust laws because of their monopoly power over the 2 transmission grid and you needed access to that grid, 3 whether or not you knew what they would do?
Why couldn 't O( s 4 you have alleged tha t that is what was required to remedy 5 the antitrust situa tion ?
6 MR. KUCIK:
I thought that we did do that.
7 JUDGE EILPERIN:
Where?
8 MR. KUCIK There are a lot of pages in the paper 9 and I cannot point out to you precisely where we said that.
10 I do know that we quoted the finding of the Justice 11 Department initially in this case about the transmission 12 monopoly and we pointed out that we needed access in order 13 to be viable, that they were denying us access in order to A
14 make us competitively -- to render us less of a com pe titive 15 threat.
16 Those statements are throughout the entire paper.
17 And while I do not think I could read you one right now 18 without taking a moment, certainly the thrust of our point 19 the entire time had been the transmission monopoly, that we 20 connect up with their grid or nowhere.
And that happens to 21 be where it is righ t now, and we made that point repeatedly 22 in the briefs and in the petitions.
23 CHAIRMAN BOSENTHAL:
What is your tie to St.
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24 Lucie?
Now, we hear from your adversaries, particularly the 25 staf f, that the wheeling conditions that were includec in O
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1 the settlement agreement were designed for the purpose of 2 assuring that the access to St. Lucie would be meaningful, 3 tha t people would have the opportunity to take advantage of
[
4 tha t access, which would not be present in the absence of 5 that kind of wheeling condition.
6 Now, that is a clear tie to the activities under 7 the license and I have no problem with that at all.
Now I 8 coud back to your client and I do not see where your client 9 has a tie to this nuclear plant, or indeed, any other 10 Florida Power & Light nuclear plant.
11 It seems to me your situation, as I said when you 12 were up before, is no different than it would have been if 13 Florida Power C Ligh t were simply running a fossil plant and 7_.
(_)
14 you were in the position you are in now and want to get them 15 to wheel your power being generated from this garbage-fired 16 plant.
17 Just where am I off the track?
l 18 MR. KUCIK.
Let r.e just take two -- as a poin t of 19 law, in the Wolf Creek decision, condition two was the nexus i
20 t o a wheeling license condition.
That was one of the bases 21 on which the petitioner was claiming a nexus with the l
22 proceeding.
It was a wheeling license condition.
23 So to thst extent --
)
24 JUDGE EILPERIN:
Do you know of the particular 25 plant being licensed?
}
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1 MR. KUCIK The decision said it was a license 2 condition which was coming of f of the license f or a 3 particular plant, but was not necessarily limited to it.
4 Now, as to Mr. Vogler's point, that is the first I 5 have heard of that.
First of all, the settlement conditions 6 do not say that.
We have asked the Justice Department to 7 give us access to the preliminary negotiation documents and 8 they have refused.
And we had a Freedom of Information Act 9 request denied on that.
10 JUDGE EILPERINs The settlement conditions --
11 MR. KUCIK The settlement conditions do not say 12 that wheeling is tied to access to the nuclear facility, and 13 indeed as a matter of logic it does not make sense.
14 PURPA-qualifying facilities generate their own power.
They 15 do not want to be -- they do not want to own a share of a 16 nuclear f acility.
They are specifically covered in the 17 transmission provisions.
18 Now, why cover them unless there is some reason to 19 do so?
The reason cannot be to get power from the nuclear 20 f acility for them.
That is not what they want.
21 So I must say that, although I do not know, the 22 logic of the document as d raf ted ref utes that point.
It 23 cannot be the sole reason.
But also, the fact that PURPA
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24 facilities are covered I think necessarily means there was a 25 broader reason.
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1 I believe that Judge Block is getting at it in the 2 summary judgment motion.
He cd make some findings tha t t
3 suggest a connection between the trar.c'ission monopoly and 4 Florida Power & Light's nuclear generation capacity.
- Now, 5 he did not fully explicate them and there is more to happen 6 in that proceeding and we were not a part of it.
So I do 7 not pretend to be making our own judgment on what happened.
8 But he surely said that.
He surely said it was all 9 connected up together.
And we think that is our nexus.
10 We think we have a nexus with operations under 11 this license.
I do not think it is an answer to say that 12 there could have been a different license.
It could be tha t 13 the nuclear plants might not have to be licensed and then r~s 14 there would not be any reason to be here at all.
But the 15 f act is that nuclear plants must be licensed, the NRC has 16 the power to condition the licenses, and we are going to be 17 aff ected by operations under this particular license.
And I 18 believe that is what the case's nexus is.
19 CHAIRMAN ROSENTHAL:
And you are only going to be 20 af fected because of the conditions.
If there had been no 21 conditions, if there had been no antitrust proceeding at 22all, and Florida Power & Light just turned on the switch 23 with no NBC-imposed antitrust conditions at all, then you
()
24 would not be here, is that right?
25 MR. KUCIKa We would be affected at that point by
/"
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1 the transmission monopoly.
Whether we would be able to d'
2 raise it here I think would have depended to some extent on 3 wha t was happening here.
4 It is true that the ability of petitioners to shov 5 a connection with an NRC proceeding depends to some extent 6 on matters outside their control.
It depends on what the 7 NRC chooses to bring into its petition within the limits of 8 the law, to bring into its proceeding-in deciding -- I got 9 that mixed up.
10 The power of a petitioner to come into the NRC 11 depends in part on wha t the NRC chooses to adjudicate in its 12 licensing proceeding.
Now, the NRC has some legal 13 restrictions in what it can take into account and it has O
\\_/
14 some legal requirenents.
15 I say we would have been affected by the 16 transmission monocoly and the ref usal to wheel whether the 17 license conditions were in effect or not.
18 JUDGE EILPERIN:
On the good cause point, do you 19 dispute that you knew or should have known prior to December 20 1980 tha t you were going to have a problem with Dade that 21 might result in your holding this plant?
22 MR. KUCIK:
I can tell you one thing about that 23 for certain.
There has been a lot of talk in these
(])
24 proceedings about -- by lawyers who sinply do not know what 25 happened.
There was evidence before the Florida Public Ov ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345
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1 Service Commission last week, Mr. Bouknight mentiobed Dade 2 County's testimony about discussions ea rl'ie r.
In that 3 proceeding there was evidence about a December 3,
- 1980, 4 letter from George Landigger, the president of Parsons S 5 Whittemore, to Dade County saying, we intend now and we have 6 always intended to comply Jith our obligations under the 7 contracts.
We simply wanted to talk to you about them.
8 And the next day the county filed suit.
9 JUDGE EILPERIN:
Didn't you know you were going to 10 lose something like tens of millions or hundreds of millions 11 of dolla rs?
12 ER. KUCIK:
There was a judgment made that we 13 wanted to renegotia te the contracts.
14 JUDGE EILPEFIN:
That is not complying with the 15 contracts.
That is renego tia ting the contracts.
16 MR. KUCIK Eut we never said in the course of the 17 renegotiation discussions that we would not comply.
It is 18 not as though for the first time af ter several years we came 19 u p to Dade County and said, let's talk.
We had talked 20 bef ore.
21 JUDGE EILPERIN:
When did you know that -- under 22 the contracts as written, when did you know that you would 23 suf fer, suf f er very substantial losses if you were held to
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24 the conditions of the contract?
25 MR. KUCIK I am not certain that anybody really ALDERSoN REPORTING COMPANY,INC.
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75 1 knows that right now, in the sense of very, very substantial
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2 losses.
I think there is a dispute in the arbitration about 3 the figures.
4 It is trae that in 1980, early 1980, there were 5 discussions to rs'egotiate the pricing terms.
The 6 discussions necessa rily came about because Parsons C 7 Whittemore wanted more favorable terms and the county did 8 not.
There was no statemen t by Parsons C Whittemore that it 9 would not comply with the contracts if the renegotiations 10 f ell through.
11 As a matter of f act, think about it.
If we had 12 decided, Parsons & Whittemore, in February of 1980, that it 13 would not comply with the contract, why did it finish the 14 plant -- one-third of all the construction took place 15 between February 1980 and January 1981 -- and thereafter 16 spend millions and nillions of dollars to get ourselves into 17 this bir d?
18 Florida Power C Light argues not only did we know 19 that we were going to operate it, but we should have known 20 that they would be no help, tha t they would not wheel or 21 connect up for us.
22 Now, to get ourselves the privilege of throwing 23 millions of dollars after this pipe dream -- and it surely
()
24 has proved to be that, up to this point we do not have any 25 connection and no one is wheeling for us -- it made no ALDERSoN REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
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1 sense.
The fact is we were going through the contracts and 2 trying to work a better deal out at the same time.
3 We offered them the plant, and Dade County on 4 January 23, 1980, had the option of giving us $90 million, 5 and if they did that we would not be here.
But they did not 6 do that.
And I do not see how anyone can argue that a 7 minute before that we had any rights, because Dade County 8 would come back and say, you never offered it to us, we had 9 the right to refuse it at least.
10 JUDGE EILPERIN:
So you think the test is not when 11 you knew or should have known you would have a problem, but 12 when a formal rejec'
- on f rom Dade County came forth?
i 13 MR. KUCIKa I think that is right.
I think the O
14 test is when we have standing, and right after that we moved 4
15 as promptly as human beings can.
We sta rted the 16 arbitration.
We filed the qualifying papers with the FERC, 17 and we filed before NFC.
18 And I just wanted to make one tag-on point.
A big 19 point is made about there is a dispute about FERC, about' our 20 ownership.
We filed on March 13 before FERC and said --
21 that pleading nays we own the facility.
52 days later the 22 dispute about ownership came up.
Interestingly enough, the 23 dispute about ownership came up after we filed the
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24 intervention petition here.
25 Nobody touched the FERC pa per.
We filed the FERC O
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paper as a notice of qualification and it sat there for 52 1
2 days and nobody said a word about it until we tried to 3 intervene here.
All of a sudden we did not have any rights g\\J 4 before FERC and that was no place to be anyway and the 5 intervention was late.
6 JUDGE EILPERINs Do you know when a ruling might 7 come down f rom FERC about your sta tus?
8 MR. KUCIKs Florida Power & light periodically 9 says a ruling is going to come down immediately, and one 10 never comes down.
So the answer is I really do not know.
11 They filed the papers several months ago to the Florida 12 Public Service Commission sayinc the FERC was going +;o 13 rule.
But the FERC never ruled.
O k-14 I do not think that TERC is noted for promptness.
15 CHAIR AN EOSENTHAL:
Er. Bouknight cited our cases 16 in non-antitrust contexts in which we held the fact that an 17 individual had come into an area, the area of a nuclear, 18 proposed nucipar power plant late in the gane was not good 19 cause f or la te inte rvention.
And how would you distinguish 20 those cases?
21 MR. KUCIK:
Well, I tnink there are two 22 distinctions.
One is simply the practical distinction.
23 There are not an awful lot of competitors building plants
()
24 around and they do not come up like that.
25 And secondly, my quess is tha t someone might have O
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1 standing if after he moved in the plant determined or a 2 judgment was made by the utility that they were going to
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3 bury the nuclear wastes right next to his backyard.
And I 4 think it depends on -- you cannot just come into, move into 5 an area and complain about the fact that there is a nuclear 6 plant going up there.
But I do not think that that means 7 that you have then given the utility a license to do 8 anything to you that they choose.
9 And our case is very similar to that.
We did ask 10 them to wheel and we reaffirmed it after -- we asked them to 11 wheel, as a matter of fact, on April 3 while the settlement 12 was pending.
On A pril 24, when it was provisionally 13 approved, we renewed the request.
And they denied it both 14 times.
15 JUDGE EILPERINs How would you avoid delay in th e 16 licensing proceeding if you were admitted?
17 1R. KUCIK I think we have already contributed to 18 tha t.
We declined to participate in the sunmary judgment 19 proceeding unless there wa s something the Board felt we 20 could help on, because our reading of the issues indicated 21 that they did not really affect us directly and there was 22 not much point in simply reading the record and trying to be 23 clever.
}
24 But we had a point and we felt it was connected 25 with what was going on before, but it did not involve our ALDERSoN REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W. WASHINGTON, D.C. 20024 (202) 554-2345
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1 being all over the case.
And we said that we would not 2 oppose the issuance of the operating license, and we adhere 3 to that.
And we said that'we would act reasonably, and we gs 4 have tried to do that already in response to everything that 5 has been asked of us.
6 What I think we would do would be try to integrate 7 our particular proof into any reasonable scheme that the 8 L'icensing Board was going to establish for the hearing.
9 JUDGE EILPERIN But you would no t be willing to 10 hold your case totally in abeyance until the Licensing Board it completed the Florida Cities aspect?
12 MR. KUCIK I think we would be willing to do 13 that.
That was never suggested until just toda y.
But I 14 think that would be something that we would consider.
15 Our biggest single problem is that at the moment 16 the plant is not -- is sit ting idle.
So I can say to your 17 question, well, we need something quicker than that.
On the 18 other hand, I am sitting idle now and if you ask me, would I 19 rather sit idle subject to the right to be heard a little 20 bit later, I sa y yes.
I sa y that we would acree to that if 21 that were a condition.
22 I would hope a condition could be worked out that 23 would enable us to work into the flow without being
()
24 disruptive.
25 JUDGE EILPERIN4 Why do you think you will get O
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1 why do you have a hope of more favorable license conditions 2 from the NRC than you do from FEPC?
3 MR. KUCIK Well, I think part of it is the fact
)
4 that the FERC case is pending on a motion to dismiss.
It 5 has been pending 15 minutes, whatever.
I think one of the 6 reasons why nothing ever gets done before the FERC is the 7 FERC never does anything.
It takes forever.
And this 8 proceeding is going on.
9 Secondly, this Commission ha s alrea dy demonstrated 10 some sensitivity to the problen and has issued decisions 11 which are directed in the right area.
And we simply want to 12 speak to that.
We do not have any reason to believe that a 13 reasonable Licensing Board will not listen to us.
14 Also, the FERC -- without cetting into PURPA, M r.
15 Bouknight has it wrong about the wheeling conditions and how 16 you go about getting them.
But the poin t is that they are 17 untested, they are complicated, and we are coing to be 18 litigating about then forever.
We are going to be in the 19 Court of Appeals.
20 I mean, Florida Power C Light is down here telling 21 the Nuclear Regulatory Commission th a t wheeling is no 22 problem.
At the same tir e they are in the Fifth Circuit 23 arguing you cannot get wheeling under one statute, but maybe
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24 you can get it under another statute, but we vill talk about 25 the other statute later.
ALDERSON REPORTING COMPANY. INC.
400 VIRGINIA AVE, S.W., WASHINGTON, D.C. 20024 (202) 554 2345
l 81 j
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You know, they keep telling us they do not want to LJ 2 hurt us, they like us a lot.
On the other hand, they do not 3 connect up with us, and since they are the monopolist in the 4 area we sit idle.
5 CHAIRMAN ROSENTHAL:
Your time has expired.
6 MR. KUCIK:
Thank you.
7 MR. BOUKNIGHT4 Mr. Chairman, may I make one 8 motion before the matter is submitted to the Board?
I would 9 like to make a motion to submit a portion of the record of 10 the Florida Public Service Commission proceeding by letter 11 tomorrow to the Board.
12 Mr. Kucik characterized the proceedings there.
He 13 accurately characterized the position taken by his client 14 there.
There is sworn testimony of Dennis I. Carter, 15 assistant county manager of Dade County, which contradicts 16 those statements.
And if Mr. Kucik's representations are to 17 be before the Board, I would respectfully move to be 18 permitted to put in Mr. Carter's direct and 19 cross-examination.
20 CHAIRMAN ROSENTHAL:
Any objection, Mr. Kucik?
21 MR. KUCIK:
I would agree with that, if the entire 22 transcript is put in.
I do not think that I am in a 23 position to agree to put in part of it.
I do not have it 24 before me.
25 But I do not have any problems with tha t, and we ALDERSoN REPORTING COMPANY. INC, 400 $/1RGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554 2345
82
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I would supplement the record for the Board with whatever 2 briefs that the Board would like.
3 CHAIRMAN ROSENTHA L:
Just a moment.
4 (Board conferring.)
5 CHAIRMAN ROSENTHAL:
Well, I think, bearing in 6 c'ad tha t we are not going to rest our decision on any oral 7 representations that are made during the course of this 8 argument that do not have a foundation in our own record, 9 that nonetheless if you wish, for what it is worth, to 10 supply the whole transcript, the Board will allow that.
11 But I have to tell you, Mr. Bouknigh t, I am not so 12 certain that this is going to have very much relevance to 13 our decision.
)
14 MR. BOUKNIGHT:
I understand, Mr. Chairman.
And 15 with your leave, I will submit the entire transcript and 16 direct the Boari's attention to the very few pages which I 17 had in mind.
f 18 CHAIRMAN ROSENTHAL:
Is that agreeable?
19 MR. KUCIK:
Subject to on? caveat.
The county is i
20 a party to this proceeding.
The county chose not to appeal l
21 and chose not to pa rticipa te.
So that I think whatever the 22 county has to say in another proceeding is not entitled to 23 any particular weight in this one.
(
24 CHAIRMAN ROSENTHAL:
Well, I think you can count r
25 on us to recognize that.
I am not so certain, as I CE) l L
ALDERSON REPORDNG COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 l
i 83 1 indicated to Mr. Bouknight,. th a t this is going to be a very 2 large factor in our decision.
3 On that note and with our expression of 4 appreciation to all counsel for their helpful presentations 5
morning, the appeal will stand submitted.
6 (Whereupon, at 11: 32 a.m.,
the argument wa s 7 adjourned.)
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ALDERSON REPORTING COMPANY,INC, 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554 2346
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.h NUCLEAR REGULATORY COMMISSION O
This is to certify chat the attached proceedings before the h
ATOMIC SAFETY AND LICENSING APPEAL BOARD O
in the satter of:
Florida Power & Light Company (St. Lucie Unit No. 2)
Date of Proceeding:
December 17, 1981 Docket flumber:
50-389A Place of ?roceeding.
Bethesda, Maryland I
were held as herein appears, and that this is the original transcript thereof for the file of the Cc=sission.
David S. Parker Official ?.eporter (Typed)
O W
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(SIGNATURE OF REPCRTER) 2 i
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