ML20041F042

Joint Motion to Withdraw Fl Cities Intervention,Dismiss & Terminate Proceedings & Vacate ASLB 811211 Memorandum & Order.Settlement Moots Dispute Between Fl Cities & Util. Certificate of Svc Encl

ML20041F042
Person / Time
Site:	Saint Lucie
Issue date:	03/10/1982
From:	Bouknight J, Roth A FLORIDA CITIES (FLORIDA MUNICIPAL UTILITIES ASSOCIATE, FLORIDA POWER & LIGHT CO., FT. PIERCE, FL
To:	Atomic Safety and Licensing Board Panel
Shared Package
ML20041F039	List: ML20041F038 ML20041F042
References
ISSUANCES-A, NUDOCS 8203160121
Download: ML20041F042 (6)

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b CYJO x-4 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION c: i BEFORE THE ATOMIC SAFETY AND LICENSING BOARD t" >

In the Matter of )

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Florida Power & Light Company ) Docket No. 50-389A

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(St. Lucie Plant, Unit No. 2) ) Dated: March 10, 1982 '

JOINT MOTION TO WITHDRAW INTERVENTIONS, DISMISS AND TERMINATE PROCEEDINGS, AND VACATE MEMORANDUM AND ORDER Florida Power & Light Company ("FPL") and the Florida Cities hereby respectfully submit this joint motion to withdraw the Florida Cities' interventions, dismiss and terminate this proceeding, and vacate the Board's December 11, 1981, Memorandum and Order. The grounds for the motion are set forth below.

FPL and the Florida Cities have now reached a comprehensive settlement resolving all of the matters in dispute between them in this proceeding and in several other proceedings. / In accordance with the Settlement Agree-ment, a copy of which was provided to the Board on Feb-ruary 22, 1982, Florida Cities hereby advise the Board

• / In addition to this proceeding, the settlement covers the Miami civil antitrust litigation, both Cities' claims and FPL's counterclaim; Cities' request for a S 105a anti-trust hearing; several commercial disputes; and a proceeding before the Florida Public Service Commission which is now pending before the Florida Supreme Court.

8203160121 B20310 DR ADDCK 05000389 PDR

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that they accept the license conditions agreed to by FPL, the Department,.of Justice, and the NRC Staff and approved by the Board on April 24, 1981, and request leave to withdraw from this proceeding.

In light of the Settlement Agreement and prior agreements between FPL and other parties, none of the parties to this matter is now requesting or seeking further proceed-ings or relief, and there is no controversy among them with respect to this matter.* / The law is clear that, under these circumstances, the proceeding should be terminated. In the Matter of Georgia Power Company (Edwin I. Hatch Nuclear Plant, Unit No. 2) , LDP-74-52, 8 AEC 107 (1974).- /

The parties also request the Board to vacate its Memorandum and Order Concerning Florida Cities' Motion for Summary Disposition on the Merits, dated December 11, 1931 (" Memorandum and Order"). The settlement between FPL

• / The Orlando Utilities Commission moved to withdraw from the proceeding on June 20, 1980, prior to the imposition of the April 24, 1981, license conditions, and that motion is still pending. The Gainesville Utilities Department moved to withdraw on August 4, 1981; that motion is also pending.

On April 1, 1980, FPL and Fort Pierce agreed on the basis for a settlement. Fort Pierce has not previously requested to withdraw from the proceeding; however, it joins in this motion.

• • / An antitrust construction permit hearing is not required By statute; it occurs only in consequence of the Attorney General's advice under Section 105c(5) of the Atomic Energy Act or of an intervention. In that respect such a proceeding more closely resembles an operating license proceeding, related to health and safety or environmental matters, than a construction permit proceeding related to such matters.

It has been held to be appropriate to terminate such an oper-ating license proceeding when all admitted intervenors have withdrawn. See, e.g., In the Matter of Baltimore Gas &

(Footnote continued)

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1 and Florida Cities resolves and extinguishes all matters in controversy between them in this proveeding. The Settlement i Agreement and the covenants entered into pursuant to that t

Agreement would bar the further prosecution of this case as i between FPL and Florida Cities. The effect of such' settlement, I

I therefore, is to moot the dispute between FPL and the Florida Cities, and thus the Board's Memorandum and Order concerning

that dispute. See, e.g._, Black v. Amen, 355 U.S. 600 (1958) f (Frankfurter, J., concurring) ; Amalgamated Clothing and I

i Textile Workers Union v. J.P. Stevens & Co., Inc., 638 F.2d 4

7, 8 (2d Cir. 1980).

1 The established practice in dealing with a civil case that has become moot pending the decision on an appeal is to reverse or vacate the judgment below and remand with a direction to dismiss. United States v. Munsingwear, 340 t

U.S. 36, 39 (1950); Amalgamated Clothing and Textile Workers I

Union v. J.P. Stevens & Co., Inc., supra, 638 F.2d at 8. The l same practice has been held applicable to unreviewed adminis-trative orders that have become moot. A.L. Mechling Barge Lines, ,

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Inc. v. United States, 368 U.S. 324, 329 (1961); Tennessee l

(Footnote continued)

Electric Co. (Calvert Cliffs Nuclear Plant', Units 1 & 2),

LBP-73-15, 6 AEC.375, 377 (1973); Order Dismissing Pro-

< ceeding, In the Matter of Metropolitan Edison Co. (Three-Mile Island Station, Unit 1), Docket No. 289 (November 16, 1973); Memorandum and Order, In the Matter of Sacramento Municiaal District (Rancho seco, Unit 1),. Docket No. 50-312 (Decemaer 11, 1973); Petition for Derating of Certain Boiling j Water Reactors, LBP-74-3, 7 AEC 74 (1974); In the Matter of I Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear j Power. Station), LBP-74-8, 7 AEC 128 (1974); In the Matter of i

' Florida' Power and Light Co. (St. Lucie Plant, Unit 2), ALAB-661, NRC , slip op. at 11 (December 3, 1981).

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.J Gas Pipeline Co. v. Federal Power Commission, 606 F.2d 1373, 1382 (D.C. Cir. 1979).

For the foregoing reasons, the Board should grant this motion and enter an order permitting Florida Cities to withdraw from this proceeding, terminating the proceeding, and vacating as moot its Memorandum and Order of December 11, 1981.

Respectfully submitted, Lake Worth Utilities Authority, the Utilities Commission of the City of New Smyrna Beach, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Fort Meade, Homestead, Key West, Kissimmee, Leesburg, Mount Dora, Newberry, St. Cloud, Starke, Tallahassee and Vero Beach, Florida, and the Florida Municipal Utilities Association By: A .

Their Counsel Florida Power & Light Company By: [ ~

f Its Counsel Fort Pierce Utilities Authority By: ~

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43b Counsel

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f Z hr r UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 82 fMR 12 P1 :20 u:

• In the Matter of. ) 00w;m;a sn

) E R/, WH FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389A

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(St. Lucie Plant, Unit No. 2) ) Dated: March 10, 1982 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Joint Motion To Withdraw Interventions, Dismiss And Terminate Proceedings, And Vacate Memorandum and Order and letter from J.A. Bouknight, Jr.

to the Atomic Safety and Licensing Board, were served on the following persons by hand delivery (*) or by deposit in the U.S.

Mail, first class, postage prepaid this 10th day of March, 1982.

Peter'B. Bloch, Esquire Alan S. Rosenthal, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Robert M. Lazo, Esquire Christine N. Kohl, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Michael A. Duggan, Esquire Stephen F. Eilperin, Esquire College of Business Atomic Safety and Licensing Administration Appeal Board Panel University of Texas U.S. Nuclear Regulatory Austin, Texas 78712 Commission Washington, D.C. 20555 Ivan W. Smith, Esquire Atomic Safety and Licensing Docketing and Service Station Board Office of the Secretary U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Panel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 f

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2 Thomas Gurney, Sr., Esquire Robert R. Nordhaus 203 North Magnolia Avenue Van Ness, Feldman, Sutcliffe, Orlando, Florida 32802 Curtis & Levenberg 1050 Thomas Jefferson Street, N.W.

Robert E. Bathen. Seventh Floor Fred Saffer Washington, D.C. 20007 R.W. Beck & Associates P.O. Box 6817 Benjamin H. Vogler, Esquire Orlando, Florida 32803 Ann P. Hodgdon, Esquire Counsel for NRC Staff Robert A. Jablon, Esquire U.S. Nuclear Regulatory Alan J. Roth, Esquire Commission Spiegel & McDiarmid Washington, D.C. 20555 2600 Virginia Avenue, N.W.

Washington, D.C. 20037 Charles R.P. Brown, Esquire Brown, Paxton and Williams William C. Wise, Esquire 301 South 6th Street Suite 500 P.O. Box 1418 1200 - 18th Street, N.W. Fort Pierce, Florida 33450 Washington, D.C. 20036 George R. Kucik, Esquire Janet Urban, Esquire Ellen E. Sward, Esquire P.O. Box 14141 James H. Hulme, Esquire Washington, D.C. 20044 Arent, Fox, Kintner, Plotkin

& Kahn William H. Chandler, Esquire 1815 H Street, N.W.

Chandler, O'Neal, Avera, Washington, D.C. 20006 Gray & Stripling Post Office Drawer 0 Argil L. Toalston Gainesville, Florida 32602 Acting Chief Antitrust and Economic Analysis Donald A. Kaplan, Esquire Section Robert Fabrikant, Esquire U.S. Nuclear Regulatory Antitrust Division Commission U.S. Department of Justice Washington, D.C. 20555 Washington, D.C. 20530 Lynn Bergman, Esquire Reubin O.D. Askew Wilmer, Cutler & Pickering Creenberg, Traurig, Askew, 1666 K Street, N.W.

Hoffman, Lipoff, Quentel Washington, D.C. 20006

& Wolff, P.A.

1401 Brickell Avenue Miami, Florida 33131

. . BouKnight, Jr.

torney for Florida Power &

Light Company

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