ML20039E235

Rejoinder to Fl Cities 811217 Answer to Util 811202 Motion to Lodge Recent Decision.No Legal or Logical Basis Exists for Commission to Institute Proceedings Under 105a of Atomic Energy Act

ML20039E235
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	01/05/1982
From:	Bouknight J FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	NRC COMMISSION (OCM)
References
ISSUANCES-A, NUDOCS 8201070052
Download: ML20039E235 (7)

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FPL - Januagg,79982

, UM PC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

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In the Matter of ) .

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FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-389A

) 50-335A (St. Lucie Plant, Unit Nos. 1& 2), ) 50-250A Turkey Point Plant, Unit Nos. 3& 4) ) 50-251A REJOINDER OF FLORIDA POWER & LIGHT COMPANY

TO FLORIDA CITIES' ANSWER TO f\

l MOTION TO LODGE /~ [ ' ~ '

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On December 17, 1981, Florida Cities filed a pleading .

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, . .f styled as a " Answer" to Florida Power & Light Company's ,.gf Ne December 2, 1981MotiontoLodgearecentdecisionofNhe- '

Fifth Circuit.-*/ Cities' pleading, however, is largely devoted not to FPL's Motion, which is unopposed, but to the presenta-tion of argument, and at some length, on two contentions not addressed in FPL's Motion. Cities' pleading argues: (1) that whether or not the court decision in Gainesville Utilities Dept.

v. Florida Power & Light Co., standing alone, warrants institution of a new antitrust proceeding by the Commission under Section 105a, when that decision is " combined" wich FERC Opinion No. 57, such warrant exists; and (2) assuming the Commis-sion determined to institute such a proceeding, it could be con-solidated with the on-going Section 105c antitrust proceeding in light of the recent partial decision in that' matter by the Licensing Board. Because these arguments are demonstrably wrong,

• / That decision was Florida Power & Light Company v. Federal Energy Regulatory Commission, No. 80-5259, Nov. 6, 1981.

8201070052 820105 050E PDR ADOCK 05000250 M PDR,

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and because they were not addressed in FPL's Motion, FPL respect-fully requests leave to respond to the Cities' " Answer" as set forth below.

1. The Commission under Section 105a acts on findings of "a court of competent jurisdiction" and is limited to pro-ceeding on the terms of the court's findings. Cities would have it that, if those findings are insufficient, the deficiency can be supplied by characterizing administrative decisions. The statute is to the contrary. Cities' argument embodies the view that a court finding acts under Section 105a as some kind of a triggering mechanism for a general post-licensing antitrust review, in which the Commission may couple a court's findings with a hodge-podge of other charges and determine whether it wishes to commence an antitrust proceeding. This would not only contravene the statute but would result in the sort of post-licensing antitrust review which the Commission has already twice held is outside of its statutory power.~*/

• • /

As FPL has pointed out in other pleadings,-- the Commis-sion's jurisdiction under Section 105a exists only where there

• / Houston Lighting & Power Co. (South Texas Project, Unit Nos.

1 and 2), CLI-77-13, 5 NRC 1303 (1977); Florida Power &

Light Co. (Saint Lucie Unit No. 1, Turkey Point Unit Nos.

3 and 4), ALAB-428, 6 NRC 221, review denied, CLI-77-26, 6 NRC 538 (1977) aff'd sub nom. Ft. Pierce Utilities Authority

v. NRC., 606 F.2d 9E6 (D.C. Cir), cert denied, 444 U.S. 842 1979).

• • / Memorandum by Florida Power & Light Co., pp. 6-11 (August 25, 1978); Response of Florida Power & Light Co., pp. 4-11 (Sept. 16, 1981).

g are court findings of violation of the antitrust laws "in the conduct of the licensed activity." The Gainesville case has nothing whatever to do with the condact of any activity authoriz-ed by an NRC license. Thus there is no basis in law (or in fact) for the commencement of a section 105a proceeding.

Throughout their " Answer," Cities urge the Commission "to exercise its discretion," based on FERC Opinion No. 57, to institute antitrust proceedings under Section 105a. We have pointed out above that Cities ignore completely the absence of the statutorily required jurisdictional pre-requisites, which cannot flow from that Opinion. But moreover, the Cities have not provided any creditable reason why the Commission should dedicate the resources necessary to institute such a proceeding given the fact that a comprehensive antitrust review proceeding is now on-going in Docket No. 50-389A regarding FPL's St. Lucie Unit No. 2 -- a proceeding whose results will be effective for the life of the unit, anticipated to be over 30 years. In fact, Cities have levelled all of their contentions regarding FERC Opinion No. 57 in that Docket,

• /

for what they are worth,- and have indeed sought to rely on

-*/ The Fifth Circuit decision lodged by FPL points out that Opinion No. 57 did not " amount to a finding of any specific anticompetitive activity" by FPL much less an antitrust violation. Slip Op. at 12,820. Since Section 105a pro-ceedings by statute must be based on antitrust violations, and as the Court has ruled that Opinion No. 57 found neither violation nor anticompetitive conduct, that Opinion pro-vides neither legal nor rational cupport to Cities here.

(footnote continued)

that Opinion rather than attempt to prove any of their allega-tions. Institution of a Section 105a antitrust proceeding here plainly would be unwarranted, as the NRC Staff and the Justice Department have recognized.

2. Finally, Cities' " Answer" suggests that "in view of the procedural status" of the on-going construction permit antitrust proceeding, Docket No. 50-389A, if the Commission does determine to institute a section 105a antitrust proceeding, it could readily be consolidated with the 105c proceeding.

This suggestion is both disingenuous and incorrect. Cities fail to advise the Commission that they have-asserted the position that so long as the 105c proceeding is pending, the Commission may not authorize an operating license for FPL's St. Lucie Unit No. 2 without Cities' consent. Cities have repeatedly indicated that they.will seek to delay the plant by this means. If anything is clear from the number of motions, answers, and supplemental motions that have been filed in this matter, at least under the Cities' view of the scope of a Section 105a proceeding. such a proceeding would involve the (footnote continued)

Cities' misunderstanding of the Fifth Circuit's decision is evident in their statement that it results in the " absence or limitation of a FERC remedy" as to cransmission to redress anticompetitive conduct.

" Ar swer" at 3. The Court expressly found it need not rei:ch the question of the compass of FERC's remedial powers be:ause such powers plainly did not exist "in the absence of findings of specific anticompetitive activities or artitrust violations." Slip Op. at 12,821. The Court found ??L had engaged in neither.

g, Commission in an intricate and complex inquiry into events more than fifteen years past.

The Cities note that the Licensing Board has decided to render a partial summary decision (although it has indicated it will consider objections to that decision) . Even in the t;nlikely event the Licensing Board were to reject all of th3 objections to its decision, it is uncertain that the pro-ceeding, even as circumscribed by the Board, can fairly be completed in time to accommodate fuel loading in October, 1982.

Cities' suggestion that the Commission " consolidate" the on-going 105c proceeding with another under Section 105a would needlessly proliferate the Ccamission's proceedings in a manner which accords the Cities tactical leverage and which could delay operation of St. Lucie Unit No. 2.

For these reasons, and the reasons previously briefed to the Commission, there is no legal or logical basis for the Commisrion instituting proceedings under Section 105a in this matter.

1Res j ctfully submitted, WJ.A. B M- @@@'

nigh , Jr.*

• Douglas G. Green Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 862-8400 Herbert Dym Covington & Burling 3201 Pennsylvania Avenue, N.W.

Washington, D.C. 20044 (202) 662-5520 Attorneys for Florida Power &

Light Company

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UNITED STATES OF AMERICA 00GEIED

( NUCLEAR REGULATORY COMMISSION WPar Before the Commission 82 Jm -5 P 4 76 In the Matter of )

) T'r FLORIDA POWER & LIGHT COMPANY ) Do"cYdh[ o D hbb389A

) 50-335A (St. Lucie Plant, Unit Nos. 1& 2), ) 50-250A Turkey Point Plant, Unit Nos. 3& 4) ) 50-251A CERTIFICATE OF SERVICE I hereby certify tiet copies of the foregoing " Rejoinder of Florida Power & Light Company to Florida Cities' Answer to Motion to Lodge" was served on the following persons by hand delivery (*) or by deposit in the U.S. Mail, first class, i postage prepaid, this 5th day of~ January, 1982.

• Chairman Nunzio Palladino Peter B. Block, Esquire Office of the Commissioners Chairman U.S. Nuclear Regulatory Atomic Safety and Licensing Board Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555

• Commissioner John F. Ahearne Robert M. Lazo, Esquire Office of the Commissioners Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555

Washington, D.C. 20555 Michael A. Duggan, Esquire

• Commissioner Victor Gilinsky College of Business Administration Office of the Commissioners University of Texas U.S. Nuclear Regulatory Austin, Texas 78712 Commission Washington, D.C. 20555 Ivan W. Smith, Esquire Atomic Safety and Licensing Board

• Commissioner Thomas M. Roberts U.S. Nuclear Regulatory Commission Office of the Commissioners Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Washington, D.C. 20555 Appeal Board Panel U.S. Nuclear Rcgulatory Commission

• Commissioner Peter A. Bradford Washington, D.C. 20555 Office of the Commissioners U.S. Nuclear Regulatory Chase R. Stephens, Supervisor Commission Docketing and Service Station Washington, D.C. 20555 Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 2

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• Office of the General Counsel A. Toalston, Chief U.S. Nuclear Regulatory Utility Finance Branch Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission Washington, D.C. 20555 Benjamin H. Vogler, Esquire Ann P. Hodgdon, Esquire

• Robert A. Jablon, Esquire Counsel for NRC Staff Alan J. Roth, Esquire U.S. Nuclear Regulatory Spiegel & McDiarmid Commission 2600 Virginia Avenue, N.W.

Washington, D.C. 20555 Washington, D.C. 20037 Samuel J. Chilk, Secretary Office of the Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Janet Urban, Esquire U.S. Department of Justice P. O. Box 14141 Washington, D.C. 20044 Donald A. Kaplan, Esquire Robert Fabrikant, Esquire Antitrust Division U.S. Department of Justice Washington, D.C. 20530 i i <

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wenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Counsel for Florida Power & Light Company V .. ..- - .- . _ . - _ - - .._ -.