ML20136A798
| ML20136A798 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 01/04/1996 |
| From: | Uryc B NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| To: | Merschoff E NRC OFFICE OF INSPECTION & ENFORCEMENT (IE REGION II) |
| Shared Package | |
| ML20136A754 | List: |
| References | |
| FOIA-96-485 NUDOCS 9703100050 | |
| Download: ML20136A798 (1) | |
Text
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l UNITED STATES
- [88vg'o NUCLEAR REGULATORY COMMISSION 1
l 0 1 REGION 11 i U o 101 MARIETTA STREET, N.W., SUITE 2900 J U j ATLANTA, GEORotA 303234193 l January 4, 1996 MEMORANDUM TO: Ellis W. Herschoff, Director .
Division of Reactor Projec,ts FROM: Bruno Uryc, Director M k
\
Enforcement and Investigations Coordination Staff '
'/
SUBJECT:
PHIPPS V. FLORIDA POWER AND LIGHT COMPANY DEPARTMENT OF LABOR (DOL) CASE N0. 94-ERA-53 ,
Attached for your information and review is Florida Power and Light Company's !
(FP&L) response, dated December 11, 1995, to our " chilling effect" letters which were sent to FP&L on October 6 and 25, 1995, regarding the subject case.
The case involves the alleged discrimination (i.e., denial of overtime) against Mr. Gary L. Phipps for his engaginn in protected activities at the St. Lucie Nuclear Plant. On September 8, 1995, the DOL District Director found that discrimination was a factor in the actions taken against Mr. Phipps.
A chilling effect letter serves three purposes: 1) to notify the licensee of the NRC's concern about a potential discriminatory act; 2) to understand the basis for the licensee's position on whether or not discrimination occurred; and 3) to obtain a description of any remedial action the licensee plans to take to address any potential chilling effect.
Your review should focus on making a determination whether the potential act i of discrimination caused a chilling effect. For example, you should attempt to determine if the general plant population's awareness of the potential
~
discriminatory act will discourage other plant employees or contractor personnel from raising safety concerns. In addition, your review should also address your proposal for any enforcement action in the case.
Also be aware that on November 30, 1995, a DOL Administrative Law Judge issued a recommendation that this case be dismissed with prejudice, based on the settlement agreement between Mr. Phipps and FP&L. The settlement agreement is currently pending the Secretary of Labor's final decision.
Please provide us with the results of you review by January 19, 1996.
Attachments: 1. Ltr, Ebneter to Goldberg, dated October 25, 1995
- 2. Ltr, Ebneter to Goldberg, dated October 6, 1995
- 3. Ltr, Goldberg to Ebneter, dated December 11, 1995 cc w/atts: C. Evans \
W. McNulty 9703100050 970305 PDR FOIA BINDER 96-485, PDR _
October 25, 1995 EA 95-209 Florida Power and Light Company -
ATTN: Mr. J. H. Goldberg President - Nuclear Division P. O. Box 14000 Juno Beach, FL 33408-0420
SUBJECT:
COMPLAINT OF ALLEGED DISCRIMINATION
Dear Mr. Goldberg:
This letter refers to your telephone conversation with Mr. Jon R. Johnson of this office on October 17. 1995. in which you discussed our letter to Florida Power and Light Company, dated October 6, 1995. That correspondence addressed a Septemoer 8,1995. Department of Labor Assistant District Director finding
- f discr1m1 nation associated w1th a complaint filed by Mr. Gary L. Phipps against Florida Power and Light Company.
As a result of the aforementioned discussions, it was noted that the October 6.1995, letter was incorrectly docketed to your Turkey Point facility and was also distributed to the standard service list for Turkey Point. As stated in the text of the letter, the subject Department of Labor case is directly associated with your St. Lucie facility, although the complainant was previously employed at both sites.
This letter,. appropriately docketed and distributed for your St. Lucie facility, and its enclosure correct the official record in this matter.
Further, in consideration of this error and the information you provided during the October 17, 1995, discussion, we are extending the time of your required response to within 45 days of the date of this letter. In preparing your response, however, you should follow the instructions provided in the
- original letter.
Thank you for your cooperation in this matter. If you have any additional questions, please contact Mr. Johnson at 404-331-5501.
Sincerely, ORIGINAL SIGNED BY:
Jon R. Johnson /FOR Stewart D. Ebneter Regional Administrator Docket Nos. 50-335, 50-389 License Nos. DPR-67, NPF-16
Enclosure:
As stated cc w/ encl: See Page 2
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l FP&L 2 cc w/ enc 1: !
i D. A. Sager Bill Passetti '
Vice President Office of Radiation Control l St. Lucie Nuclear Plant Department of Health and ,
P. O. Box 128 Rehabilitative Services Ft. Pierce, FL 34954-0128 1317 Winewood Boulevard
- Tallahassee, FL 32399-0700 l H. N. Paduano, Manager
- Licensing and Special Programs Jack Shreve !
Florida Power and Light Company Public Counsel P. O. Box 14000 Office of the Public Counsel Juno Beach, FL 33408-0420 c/o The Florida Legislature 111 West Madison Avenue. Room 812 J. Scarola Tallahassee, FL 32399-1400 3 Plant General Manager '
St. Lucie Nuclear Plant Joe Myers. Director P. O. Box 128 Division of Emergency Prepareaness Ft. Pierce, FL 34954-0128 Department of Community Affairs 2740 Centerview Drive Robert E. Dawson Tallahassee, FL 32399-2100 Plant Licensing Manager ]
St. Lucie Nuclear Plant Thomas R. L. Kindred P. O. Box 128 County Administrator Ft. Pierce, FL 34954-0218 St. Lucie County 2300 Virginia Avenue J. R. Newman, Esq. Ft. Pierce. FL 34982 Morgan, Lewis & Bockius I 1800 M Street, NW Charles B. Brinkman Washington, D. C. 20036 Washington Nuclear Operations ABB Combustion Engineering, Inc.
John T. Butler, Esq. 12300 Twinbrook Parkway, Suite 3300 Steel. Hector and Davis Rockville, MD 20852
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4000 Southeast Financial Center Miami, FL 33131-2398 i
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UNITEo STATES NUCLEAR REGULATORY COMMISSION I REGION H a 101 MARIETTA STREET. N.W.. SUITE 2000
~, j ATLANTA. GEORGIA 3GRES 01SB
'%, %...../ October 6, 1995 i
EA 95-209 Florida Power and Light Company ATTN: Mr. J. H. Goldberg President - Nuclear Division P. O. Box 14000 ,
Juno Beach, FL 33408-0420 :
SUBJECT:
COMPLAINT OF ALLEGED DISCRIMINATION
Dear Mr. Goldberg:
On June-5, 1995, the U.S. Department of Labor's Wage and Hour Division in Fort Lauderdale. Florida. received complaints from Mr. Gary L. Phipps, an '
employee of Florida Power and Light Company's Turkey Point Nuclear Plant and St. Lucie Nuclear Plants. The employee alleged that he had been subjected to ,
discrimination as a result of raising safety concerns while performing his duties at the St. Lucie Nuclear Plant. In response to that complaint, the Wage and Hour Division conducted an investigation, and in a letter dated September 8, 1995, the Assistant District Director of the Wage and Hour Division, Fort Lauderdale, Florida, found that the evidence obtained during .
the Division's investigation indicated that the employee was engaged in a protected activity within the scope of the Energy Reorganization Act and that discrimination as defined and prohibited by the statute was a factor in the actions which comprised his complaint.
The NRC is concerned that a violation of the employee protection provisions set forth in 10 CFR 50.7 may have occurred and that +.he actions taken against the employee may have had a chilling effect on other licensee or contractor personnel.
Accordingly, pursuant to sections 161c, 1610, 182 and 186 of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 CFR 2.204 and 10 CFR 50.54(f), in order for the Commission to determine whether your license should be modified, suspended or revoked, or other enforcement action taken to ensure compliance with NRC regulatory requirements, you are required to provide this office, within 30 days of the date of this letter, a response in writing and under oath and affirmation that:
- 1. Provides the basis for the employment action regarding the employee and includes a copy of any investigation reports you have regarding the circumstances of the action; and
- 2. Describes the actions, if any, taken or planned to assure that this employment action does not have a chilling effect in discouraging other licensee or contractor employees from raising perceived safety concerns.
Your response should not, to the extent possible, include any personal privacy, proprietary, or safeguards information so that it can be released to kSOE80Y7Wf _ ._.
FP&L 2 the public and placed in the NRC Public Document Room. If personal privacy information is necessary to provide an acceptable response, then please provide a bracketed copy of your response that identifies the personal {
privacy-related information and a redacted copy of your response that deletes the personal privacy-related information. Identify the particular portions of- ]
the response in question which, if disclosed, would create an unwarranted I invasion of personal privacy, identify the individual whose privacy would be invaded in each instance, describe the nature of the privacy invasion, and indicate why, considering the public interest in the matter, the invasion of privacy is unwarranted. If you request withholding on any other grounds, you must specifically identify the portions of your response that you seek to have withheld and provide in detail the bases for your' claim of withholding (e.g.,
provide the information required by 10 CFR 2.790(b) to support a request for withholding confidential commercial or financial information).
After reviewing your response, the NRC will determine whether enforcement action is necessary at this time to ensure compliance with regulatory requirements.
l I
In accordance with 10 CFR 2.790 of the NRC's " Rules of Practice," a copy of this letter will be placed in the NRC Public Document Room.
The responses directed by this letter are not subject to the clearance procedures of the Office of Management and Budget as required by the Paperwork Reduction Act of 1980. Pub. L. No.96-511.
Sincerely,
%?
Sewa_rtY.Ebneter Regional Administrator
)
Docket Nos. 50-250, 50-251 License Nos. DPR-31, DPR-41 cc:
Department of Labor /ESA i
Wage and Hour Division I
ATTN: Ana R. Moreno Assistant District Director 299 E. Broward Blvd., Room 408 Fort Lauderdale, FL 33301 1
cc cont'd: (See page 3)
FP&L 3 cc cont'd: !'
Assistant Administrator John T. Butler, Esq. I Employment Standards Administration Steel, Hector and Davis Wage and Hour Division i Department of Labor 4000 Southeast Financial Center I Miami, FL 33131-2398 Room S-3502 200 Constitution Avenue, N.W. Attorney General Washington, D.C. 20210 Department of Legal Affairs The Capitol H. N. Paduano, Manager Tallahassee, FL 32304 Licensing & Special Programs Florida Power and Light Company Bill Passetti P. O. Box 14000 Office of Radiation Control 1
Juno Beach, FL 33408-0420 Department of Health and Rehabilitative Services !
- 0. E. Jernigan 1317 Winewood Boulevard Plant General Manager !
Tallahassee, FL 32399-0700 Turkey Point Nuclear Plant l P. O. Box 029100 Jack Shreve i Miami, FL 33102 Public Counsel !
Office of the Public Counsel T. F. Plunkett c/o The Florida Legislature Site Vice President 111 West Madison Avenue, Room 812 l Turkey Point Nuclear Plant Tallahassee, FL 32399-1400 l
P. O. Box 029100 Miami, FL 33102 Joaquin Avino .
County Manager of Metropolitan l T. V. Abbatiello Dade County Site Quality Manager 111 NW 1st Street, 29th Floor i Turkey Point Nuclear Plant Miami, FL 33128 P. O. Box 029100
~
Miami, FL 33102 Joe Myers, Director Division of Emergency Preparedness E. J. Weinkam Department of Community Affairs Licensing Manager 2740 Centerview Drive Turkey Point Nuclear Plant Tallahassee, FL 32399-2100 P. O. Box 4332 Miami, FL 33032-4332 J. R. Newman, Esq.
Morgan, Lewis & Bockius 1800 M Street, NW Washington, D. C. 20036
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- o,, UNITED STATES ON f g NUCLEAR REGULATORY COMMISSION
- ;; E WASHINGTON, D. C. 20555
- s.,*****/ AUG 171993 MEMORANDUM FOR: Thomas E. Murley, Director Office of Nuclear Reactor Regulation FROM: Jack R. Goldberg Deputy Assistant General Counsel for Enforcement
SUBJECT:
2.206 PETITION SUBMITTED BY FLORIDA MUNICIPAL POWER AGENCY, RE ST. LUCIE ANTITRUST LICENSE CONDITIONS On July 2, 1993, Robert J. Jablon, Esq. submitted a Petition pursuant to 10 C.F.R. S 2.206 on behalf of Florida Municipal Power Agency ("FMPA" or " Petitioner") to the Executive Director for Operations of the U.S. Nuclear Regulatory Commission (NRC). The Petition is being referred to your office for the preparation of a response.
In the Petition, FMPA requests that the NRC 1) declare that Florida Power & Light Company ("FPL" or " Licensee") is obligated to provide i network transmission among geographically separated sections of FMPA without imposing multiple charges for transmission among multiple delivery points; 2) issue a Notice of Violation of that obligation; 3) impose a requirement by order directing FPL to file with the Federal Energy Regulatory Commission a rate schedule that provides for transmission in a manner that complies with the antitrust conditions; 4) take such other action as may be proper, including proposed imposition of civil monetary penalties; and 5) publish notice of the Petition including when the NRC expects to decide whether take action in response to the Petition.
Specifically, the Petitioner alleges that the antitrust license conditions for the St. Lucie Plant, Unit No. 2, require FPL to i provide transmission of power over its network among the various i sections of FMPA on a network basis, that is, without imposing multiple charges for transmission among multiple FMPA receipt and delivery points. Petitioner alleges that FPL has refused to l provide such network transmission and is, thereby, in violation of I the St. Lucie Plant, Unit No. 2, license conditions.
The Petitioner advises the NRC that proceedings are pending before the Federal District Court and the Federal Energy Regulatory Commission ("FERC"), which present issues overlapping with those presented in the Petition. The Petitioner states that FMPA filed a lawsuit in Florida state court on December 13, 1991, asserting FMPA's right to network transmission under contract law and Florida's antitrust statute and that FPL removed) the case to the l M '%" l
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Contact:
E. Holler, OGC sna-100 ,
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Federal District Court for the Middle District of Florida, where i the case is docketed as Florida Municinal Power Aaency v. Florida Power and Liaht Co., Case No. 92-35-Civ-Orl-3A22, and scheduled for trial to begin in September 1993. The Petitioner further states that FPL submitted a tariff filing to the FERC on March 19, 1993, FERC Docket No. ER93-465-000, to which FMPA has filed a
- protest alleging that FPL's failure to file for network l transmission service is anticompetitive and inconsistent with FPL's obligations under the St. Lucie Plant, Unit No. 2, license conditions. Additionally, on July 9, 1993, the FERC published 1
notice that FMPA has filed a request asking the FERC to order FPL to provide network transmission service under sections 206 and 211 of the Federal Power Act (FERC Docket Nos. EL93-51 and TX93-4) .
Requests to intervene and protests to the latest FERC filings were due August 9, 1993.
I have enclosed the original Petition for your use. I have also enclosed a draft of a letter of acknowledgement to the Petitioner and a draft of a Notice for publication in the Federal Register.
Additionally, because this matter involves a petition under l 10 C.F.R. S 2.206 concerning antitrust license conditions, copies '
l of the Petition and the Federal Register Notice will be sent to the Licensee and the Attorney General for information. Geoffrey Grant,
-Acting Chief, ILPB, has concurred with the forwarding letters j prepared for this purpose by the Deputy Assistant General Counsel l for Materials, Antitrust and Special Proceedings. OGC will I dispatch the letters to the Licensee and the Attorney General when the Federal Register Notice is forwarded for publication.
Please insure that Joe Rutberg and I are provided copies of all correspondence related to the Petition and that we are asked to concur on all staff correspondence.
f7 ck R. Goldb g puty Assist eneral Counsel for Enforcement
Enclosures:
- 1. Petition (w/o Volumes I & II)
- 2. Draft Letter of Acknowledgement
- 3. Draft Federal Register Notice cc:
l J. Scinto, OGC S. Ebneter, RII .
L. Chandler, OGC C. Evans, RII J. Rutberg, OGC W. Lambe, NRR J. Lieberman, OE J. Norris, NRR
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$ uaNTapsTATES T NUCLEAR REGULATORY COMMINION
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DOC DT: 07/02/93
! FINAL REPLY:
DAVID E. POMPER, SPIEGEL & McDIARMID ATTORNEY FOR FLORIDA MUNICIPAL POWER AGENCY I
TO:
EXECUTIVE DIRECTOR FOR SIGNATURE OF: ** GRN ** CRC NO:
DESC: ROUTING:
2.206 PETITION OF FLORIDA MUNICIPAL POWER AGENCY W/O VOLUMES I & II l
TO ENFORCE THE ANTITRUST CONDITIONS ATTACHED TO TAYLOR i
FLORIDA POWER & LIGHT CO.'S ST. LUCIE PLANT UNIT 2 SNIEZEK NUCLEtR LICENSE' THOMPSON j BLAHA I DATE: 07/06/93 MURLEY, NRR l LIEBERMAN, OE l l ASSIGNED TO: CONTACT: EBNETER, RII i OGC SCINTO l SPECIAL INSTRUCTIONS OR REMARKS:
l l
l hRR RECEIVED: AUGUST 5,1993 NRR ACTION: PMAS:GODY , _ , _ , , , , ,
l NRR ROUTING: ACTION
! MURLEY/MIRAGLIA R
l DUE TO NRR DIRECTOR'S OFFIC
'CRUTCHFIELD NRR MAIL ROOM p_
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i lA.< U. < l l -Y 9302879
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4 Docket No. 50-389
)' (10 C.F.R. 5 2.206)
, Robert A. Jablon, Esq.
Spiegel & McDiarmid i 1350 New York Avenue, N.W.
Washington, D.C. 20005-4798
Dear Mr. Jablon:
This is to acknowledge receipt of " Petition Of Florida Municipal 4
Power Agency For Declaration And Enforcement Of Antitrust Licensing i Conditions And To Impose Requirements By Order" (" Petition") filed j by you on behalf of Florida Municipal Power Agency ("FMPA") on ,
July 2, 1993, with the Nuclear Regulatory Commission ("NRC"). The l j Petition has been referred to my office for consideration pursuant I l to 10 C.F.R. S 2.206.
The Petition requests that the NRC 1) declare that Florida Power l l and Light Company ("FPL" or " Licensee") is obligated to provide i netvork transmission among geographically separated sections of l FMPA without imposing multiple charges for transmission among multiple delivery points; 2) issue a Notics of Violation of that l obligation; 3). impose a requir'e ment by order directing FPL to file
! with the Federal Energy Regulatory Commission a rate schedule that
- provides for transmission in a manner that complies with the antitrust conditions; 4) take such other action as may be proper, including proposed imposition of civil monetary penalties; and 5)
{ publish notice of the Petition including when the NRC expects to
- decide whether take action in response to the Petition.
! Specifically, the Petition alleges that the antitrust license conditions for the St. Lucie Plant, Unit No. 2, require FPL to provide transmission of power over its network among the various
! sections of FMPA on a network basis, that is, without imposing i multiple charg u for trsnsmission among multiple FMPA receipt and 1
delivery points, The .?etition alleges that FPL has refused to j provide such network t.ransmission and is, thereby, in violation of 4
the St. Lucie Plant, Unit No. 2, licer.cs conditions.
.The Petition also advises the NRC that proceedings are pending i before the Federal District Court and the Federal Energy Regulatory 1 5 Commission ("FERC"), which present issues overlapping with those j presented in the Petition. The Petition states that FMPA filed a !
lawsuit in Florida state court on December 13, 1991, asserting i i FMPA's right to network transmission under contract law and
! Florida's antitrust statute and that FPL removed the case to the l Federal District Court for the Middle District of Florida, where
} the case is docketed as Florida Municipal Power Agency v. Florida 4 Power and Light Co., Case No. 92-35-Civ-Orl-3A22, and scheduled for trial to begin in September 1993. The Petition further states d that FPL submitted a tariff filing to the FERC on March 19, 1993, l
, FERC Docket No. ER93-465-000, to which FMPA has filed a protest !
I alleging that FPL's failure to file for network transmission
- service is anticompetitive and inconsistent with FPL's obligations ;
l under the St. Lucie Plant, Unit Nc. 2, license conditions.
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3 In accordance with 10 C.F.R. $ 2.206, the NRC staff will review the Petition, and I will issue a formal decision with regard to the specific issues raised in the Petition in the reasonably near I future. Additionally, because this Petition concerns antitrust i license conditions, copies of the Petition and the Federal Register l notice of receipt will be sent to the Licensee and the Attorney I General for information.
I have enclosed for your information a copy of the notice that is being filed for publication with the Office of the Federal Register.
Sincerely, Thomas E. Murley, Director
- Office of Nuclear Reactor Regulation
Enclosure:
Federal Register Notice i
.n 4
UNITED STATES NUCLEAR REGULATORY COMMISSION r
Docket No. 50-389 St. Lucie Plant, Unit No. 2 RECEIPT OF PETITION FOR DIRECTOR'S DECISION UNDER 10 CFR 2.206 i l Notice is hereby given tnat on July 2,1993, Robert J. Jablon, !
l Esq., on behalf of Florida Municipal Power Agency ("FMPA" or l
. l
" Petitioner") submitted a Petition dated July 2, 1993, to the U.S. !
Nuclear Regulatory Commission (NRC) pursuant to 10 C.F.R. S 2.206 regarding the St. Lucie Plant, Unit No. 2, of the Florida Power &
Light Company ("FPL" or " Licensee"). The Petition has been referred to the Office of Nuclear Reactor Regulation for preparation of a response.
1 The Petitioner requests that the NRC 1) declare that FPL is obligated to provide network transmission among geographically separated sections of FMPA without imposing multiple charges for j transmission among multiple delivery points; 2) issue a Notice of Violation of that obligation; 3) impose a requirement by order directing FPL to file with the Federal Energy Regulatory Commission a rate schedule that provides for transmission in a manner that complies with the antitrust conditions; 4) take such other action as may be proper, including proposed imposition of civil monetary penalties; and 5) publish notice of the Petition including when the NRC expects to decide whether take action in response to the Petition.
. . . -. . - - . . . - - - _ - - - . ---- _, . ~ - - . - - .
I J
Specifically, the Petitioner alleges that the antitrust license conditions for the St. Lucie Plant, Unit No. 2, require FPL to provide transmission of power over its network among the various sections of FMPA on a network basis, that is, without imposing multiple charges for transmission among multiple FMPA receipt and delivery points. Petitioner alleges that FPL has refused to provide such network transmission and is, thereby, in violation of the St. Lucie Plant, Unit No. 2, license conditions.
The Petitioner advises the NRC that proceedings are pending before the Federal District Court and the Federal Energy Regulatory l Commission ("FERC"), which present issues overlapping with those presented in the Petition. The Petitioner states that FMPA filed j a lawsuit in Florida state court on December 13, 1991, asserting ;
I FMPA's right to network transmission under contract law and !
Florida's antitrust statute and that FPL removed the case to the Federal District Court for the Middle District of Florida, where the case is docketed as Florida Municinal Power Acency v. Florida Power and Liaht Co., Case No. 92-35-Civ-Orl-3A22, and scheduled for trial to begin in September 1993. The Petitioner further states that FPL submitted a tariff filing to the FERC on March 19, 1993, FERC Docket No. ER93-465-000, to which FMPA has filed a protest alleging that FPL's failure to file for network transmission service is anticompetitive and inconsistent with FPL's ,
obligations under the St. Lucie Plant, Unit No. 2, license conditions.
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1
. . 1 l
l In accordance with 10 C.F.R. 5 2.206, appropriate action with l regard to the specific issues raised in the Petition will be taken within a reasonable time.
In accordance with NRC practice regarding petitions under 10 C.F.R. S 2.206 concerning antitrust license conditions, copies of the Petition and this Federal Decister Notice will be sent to the Licensee and the Attorney General for information.
A copy of the Petition is available for inspection at the Commission's Public Document Room at 2120 L Street, NW.,
Washington, DC 20555 and at the local public document room for the St. Lucie Plant, Unit No. 2, located at Indian River Community College Library, 3209 Virginia Avenue, Ft. Pierce, Florida 33450.
Cated at Rockville, Maryland, this day of 1993.
FOR THE NUCLEAR REGULATORY COMMISSION i
Thomas E. Murley, i Director, Office of Nuclear Reactor Regulation l 9
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- l. TERESA A FERRANTE DANIEL t DAVIDSON TELECOPiER 3202 393-2866 MATTHEW F. LINTNER DANIEL J GUTTM AN MARM S HEGEDUS PETER R MATT DAVID R STRAUS oF CouNSu SoNN,ES SLA.
ROSERT A SALT 2STEsN THOMAS C TRAUGER SRADLEv S wE SS so-N J CometrT GUY MARTIN CYNTMIAS SoGORAD GARY J NEWELL RENA 1. STEIN 20R P DANIEL DRUNER SCOTT M. STRAUSS SEN FINKELSTEIN STEPMEN M FELDMAN MARGARET A McGOLDRsCM PHAL 6P E CLAPP GOVERNMENT AFFAsRS DeRECTom Executive Director for Operations U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By Hand Delivery to:
NRC Public Documents Room 2120 L Street, N.W.
Washington, D.C.
Dear Executive Director,
l Enclosed please find the Petition of Florida Municipal Power Agency for Declaration and Enforcement of Antitrust Licensing conditions and to Impose Requirements by Order, which is a request for action pursuant to 10 C.F.R. S 2.206.
The NRC Public Documents Room staff is hereby requested to forward this letter and the enclosed petition, with its two attached appendix volumes, to your attention. The staff is also requested to time-stamp two copies of this letter and its enclosures and return them to my messenger.
Sincerely,
=
I David E. Pomper
! Attorney for FMPA Enclosures
! cc (by Federal Express): Joseph Rutberg, Esq., Deputy Assistant i General Counsel for Materials, Antitrust, and Proceedings W^
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l UNITED STATES OF AMERICA i BEFORE THE NUCLEAR REGULATORY COMMISSION
)
Florida Power & Light Company ) Docket No. 50-389A
)
(St. Lucie Plant, Unit No. 2) ) Operating License
) No. NPF-16
)
PETITION OF FIDRIDA MUNICIPAL POWER AGENCY FOR DECLARATION AND ENFORCEMENT OF ANTITRUST LICENSING CONDITIONS AND TO IMPOSE REQUIREMENTS BY ORDER Pursuant to 10 C.F.R. I 2.206, Florida Municipal Power Agency ("FMPA") requests several actions to enforce the Antitrust Conditions attached to Florida Power & Light company's St. Lucie Plant Unit 2 nuclear license. 1/ As demonstrated below, the Antitrust Conditions require FPL to transmit power "among" the various sections of FMPA on a network basis, i.e. without imposing multiple charges for transmission among multiple receipt and delivery points, and FPL is refusing to do so. This refusal flouts FPL's express obligations under the Anti. trust Conditions and sabotages the development of competitive bulk power markets, thereby injuring the public interest.
I 1
1/ The Antitrust Conditions were added dated May 26, 1981, to the St. Lucie Plant, Unit 2 license Permit Construction by Amendment No. 3,in Docket No. 50-389.
No. CPPR-144, They l
were' continued in the St. Lucie Plant, Unit 2 Facility Operating License, No. NPF-16, Appendix C, dated April 6, 1983. Additional antitrust license requirements appear at Appendix D to the '
Facility Operating License.
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- I. FACTS THAT CONSTITUTE THE BASIS FOR THE REOUEST
\
{, A. Background 2/ )
During the 1970's and early 1980's, a number of Florida cities brought legal actions against FPL, which included the j i l filing of antitrust and other claims in the Southern District of Florida, 2/ and petitions and interventions before this i
commission and its predecessor, the Atomic Energy Commission.
Before this Commission, the Justice Department and the NRC staff, as well as the Florida cities, sought to attach antitrust conditions to FPL's St. Lucie nuclear license. Florida Power &
Licht Comoany (St. Lucie Plant, Unit No. 2), NRC Docket No.
50-389A ("St. Lucie").
FPL, the NRC-Staff, and the DOJ entered into a settlement agreement to resolve their differences in the Ett Lucie proceeding. A/ FPL agreed to antitrust license conditions
(" Antitrust Conditions," Appendix A-13), which " assure the cities 2/ Additional details of the following history are supplied in the April 29, 1993 affidavits of Robert Bathen (Appendix A-11) and Nicholas Guarriello (Appendix A-12).
2/ Lake Worth Utils. Auth. v. FPL, Case No. 79-5101-CIV-JKL. In addition to raising claims for damages, the cities sought, among other things, access to FPL's transmission system to permit them to buy from and sell to various electric utilities and to
" coordinate" their generation; an " integrated Florida Power Pool" I to permit inter-utility planning and operations on a least cost l basis; rights to participate in FPL's nuclear monopoly; rights to purchase FPL wholesale power; and cessation of FPL's opposition i to their forming a joint action agency.
1/ Egg September 12, 1980 Joint Motion of Department of Justice, NRC Staff, and Applicant to Approve and Authorize Implementation -
of Settlement Agreement, St. Lucie, and appended Stipulation (Appendix A-14).
r
, .- . 1 s
I' that FPL will provide transmission service in accordance with the 4
license conditions during the operating life of St. Lucie Unit No. 2" and " set basic rules that FPL aust follow in providing transmission service." 1/ These " basic rules" include the I obligation to transmit "between two or among more than two"-
i receipt and delivery points of " neighboring entities," including
! FMPA. The Conditions also require FPL to make filings with the
> Federal Energy Regulatory Commission ("FERC") as needed to i implement the conditions'-bulk power supply policies, and in i
i particular, to file transmission service agreements in the event
) of a dispute with regard to the terms of requested service.
l The meaning of the transmission "among" requirement to which FPL agreed had been unambiguously established six years earlier by the Atomic Energy Commission. The AEC (acting through
} its Atomic Safety and Licensing Board and Appeal Board) defined i'
transmission "among" to require " transmission from any member of a coordinating group to any other member of such group," where l "(f]or each coordinating group of entities there shall be a
- single transmission charge." In the Matter of Louisiana Power !
I- and Licht Comoany (Waterford-Steam Generating Station Unit No.
$ 3), Docket No. 50-382A, 8 AEC 718, 733, 744 (Atomic Safety and Licensing Bd. 1974), aff'd, 1 NRC 45 (Appeal Bd. 1975) (" LEAL").
4 1 The AEC insisted on the "among" requirement because it found that i
5
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l 5/ August 7, 1981 Response of Florida Power & Light company to Cities' Motion to Establish Procrtures, for a Declaration of i Situation Inconsistent with the u.ntitrust-Laws and for Related Relief at 72, St. Lucie (Appendix A-15). ,
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- the multiplicity of transmission charges inherent in point-to-
! point rates would not permit coordinated operations and ;
]. development and therefore would not suffice to overcome a >
l situation inconsistent with the antitrust laws. Idz at 733-34. ,
- J The AEC explained that the purpose of this "among" requirement ;
"is to prevent multiple transmission charges for transmission of a contracted transmission entitlement among a coordinating group j of two or more entities." Idx at 737.
On February 11, 1982, March 3, 1982, and April 20, 1982, i
FPL entered settlement agreements with the various Florida
{
- l. cities. These settlements incorporate and build on the Antitrust j Conditions. f/ As envisioned in the settlement, 2/ FMPA began to i
4 develop into a functioning joint action agency providing power
! supply to participating members. To this end,' FMPA in 1983 l purchased a share of the St. Lucie nuclear power plant. In 1985 f/ For example, Section 13(a) of the March 3, 1982 Settlement Agreement (Appendix A-16) expressly provides that Florida cities will inform the NRC that "they accent the settlement License conditions" (emphasis supplied). Further, the agreed-upon covenant not to sue (Appendix A-16) barred the cities from maintaining, among other things, an action in any court or agency forum based on matters alleged in the settled district court antitrust action, "except for enforcement of the settlement Agreement...and the NRC License Conditions for St. Lucia Unit No.
2." The Antitrust Conditions are attached as Appendix A-13; relevant portions of other key documents memorializing the comprehensive FPL-Florida cities settlement agreement are attached as Appendix A-16. See Appendix A-17 for a list of other I documents memorializing the comprehensive settlement but not included in Appendix A-16 to avoid unnecessary copying.
2/ As part of the comprehensive settlement, FPL agreed to support Florida legislation enabling FMPA to issue revenue bonds. Egg Appendix A-16.
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i and 1986, FMPA purchased unit power shares from the Stanton coal plant. In 1985, FMPA became the All-Requirements supplier to several member cities which had no on-system generation resources j i of their own.
Each of these projects required use of the FPL transmission system for delivery of the relevant power to the participating FMPA members. FPL's agreement to provide 4
j transmission service therefore had to be in hand before FMPA
}
could sign ownership agreements or make timely commitments to obtain financing for these projects. Consequently, FMPA entered into several transmission service agreements ("TSAs"), each providing for delivery of specified generating resources to specified delivery points. In 1990, FPL entered into a " Restated and Revised" TSA, which superseded the 1985 TSA under which FPL agreed to provide specified transmission services for FMPA's "All-Requirements" Project. l j
The four existing TSAs under which FMPA receives lon'g-term wheeling service from FPL 3/ are:
(1) St. Lucie Delivery Service Agreement, dated June 27, 1983, FERC Electric Rate ;
i Schedule No. 72; 1/ The Agreement to Provide Specified Transmission Service, dated April 24, 1986, FERC Electric Rate Schedule No. 86, is an additional rate schedule which provides for shorter-term transmission for interchange-type transactions (itat, shorter term, economy and emergency services). Like the TSAs for lon -
term service, this rate schedule is restricted to point-to-po nt service and does not suffice to permit integrated planning, dispatch and operation. 333 June 3, 1992 Affidavit of Nicholas P. Guarriello at 5-7 (Appendix A-18).
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1
^
(2) Stanton Transmission Service Agreement, dated November 25, 1986, FERC Electric Rate
- l. Schedule No. 92; i I
- (3) Stanton Tri-City Transmission Service j
. Agreement, dated November 25, 1986, FERC j j Electric Rate Schedule No. 93; and j i
(4) Restated and Revised Transmission Service !
Agreement, dated October 2, 1990, FERC j Electric Rate Schedule No. 109 (superseding i FERC Electric Rate Schedule No. 84).
! None of the FPL-FMPA TSAs has been approved by the FERC. While 1
- they were accepted for filing, that does not constitute FERC approval. Egg 18 C.F.R. 5 35.4. Copies of these TSAs, and of j i
- 84) which was superseded by the Restated and Revised TSA, are attached as Appendix A-19.
l These FPL-FMPA TSAs provide transmission "between"' pairs of delivery points, but fall short of providing transmission "among" as defined by the NRC in LP&L, i.e. network transmission.
Although in each case FMPA requested network transmission, FPL
- refused and, in light of the time constraints on FMPA's economic
- resource commitments and the controlling necessity to obtain some
{ form of timely transmission commitment from FPL, FMPA was forced to accept point-to-point service limitations in those TSAs. Egg f
April 29, 1993 affidavit of Nicholas P. Guarriello (Appendix A-i 12). However, FMPA did so in connection with Transmission Service Agreement provisions that expressly preserved FMPA's l
rights to obtain network transmission service.
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. i Specifically, each FMPA-FPL TSA includes a " Unilateral )
Changes and Modifications" clause, expresely reserving to both FPL and FMPA broad rights to change the TSAs' terms, conditions, l and charges. Every TSA also contains an atypically broad no- )
waiver clause providing that "(a]ny waiver at any time by either Party hereto of its rights with respect to the other Party or with respect to any matter arising in connection with this !
Agreement shall not be considered a waiver with respect to any subsequent default or matter." Egg, e.o., All-Requirements TSA, Section 22.2. The All-Requirements TSA also contains an express
" independent rights" clause, Section 22.13, which provides:
4 "Nothing in this Agreement shall be construed as a waiver by FMPA
" The of any of its rights independent of this Agreement... .
independent rights clause was included in the TSA as originally l
executed in 1985, and as restated in 1990. The 1990 restatement also contains a clause providing for that TSA to be " supersede [d]
or replace (d]" at any time. FPL witnesses have testified that j the clause was added to facilitate replacing the TSA with one 4 that would provide transmission for FMPA's IDO project. 2/ l J
J 2/ Dean Gosselin, who negotiated with FMPA on behalf of FPL, testified on deposition (in the District Court case described that this provision was included "in contemplation of a below)ission transm service agreement for the integrated dispatch operation project," so that "Fi]n the event that a transmission service arrangement was negotdated which included the all-requirements cities, that this agreement would be able to be revised to accommodate such understanding that may have been reached." Egg Tr. 42-43 (Appendix A-4).
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The IDO project represents the logical next step in i
L FMPA's development. Integrating and coordinating its resources has been an important long-tern FMPA goal. 19/ FMPA has previously sought to establish a Florida-wide power pool and, failing that, a FMPA-FPL power pool, but those efforts were rebuffed by FPL. The IDO project would establish an integrated I
dispatch and operations pool of certain FMPA members, thereby permitting substantially more economic and efficient use of their existing resources and planning for more economic future resources. These economies, which are quantified in the April 29, 1993 Affidavit of Albert B. Malmsjo (Appendix A-20),
are projected to range from approximately $7.5 million in 1993 to '
almost $20 million in 2003 11/
Bushnell, Clewiston, Ft. Pierce, Green Cove Springs, Jacksonville Beach,-Key West, Lake Worth, Leesburg and Ocala have asked FMPA to provide their power supply through the IDO 12/ Network transmission was desirable, but not essential, to the prior FMPA projects discussed above. However, network transmission is essential to permitting FMPA to integrate its resources. As is discussed infra, FPL's refusal to sell network transmission prevents FMPA from planning and operating its generation mix on a least-cost basis in the way that FPL can plan and operate.
11/ Thus, IDO would effectuate the purposes ofIthe Federal Power 824a(a), which Act, as expressed in FPA 5 202(a), 18 U.S.C.
promotes pooling as a means to "assur(e) an abundant supply of electric energy throughout the United States with the greatest and FPA il 211 & 212(a), 18 U.S.C. 55 824j &
possible economy,"ilitate 824k(a), which fac transmission as a means to " promote the economically efficient transmission and generation of electricity," as well as the policies of the antitrust laws.
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~9-project. 12/ These cities are all located within or adjacent to Florida Power & Light Company's territory, or are interconnected i
directly or indirectly with FPL's transmission system. j FMPA began to actively consider the IDO project in June, 1987. Aware that FPL had refused previous roquasts to implement FMPA's right to transmission "among" through a TSA, FNPA did not begin negotiations for the requisite transmission arrangement until it had thoroughly studied the project's feasibility, had obtained agreements from interested members, and had drafted a proposed TSA, one sufficient to provide transmission for IDO and ready for filing,at FERC. FMPA sent 1
this proposal to FPL in September, 1989. Two years of attempts to negotiate with FPL followed, during which FPL never budged from its refusal to provide network transmission despite numerous l significant concessions by FMPA. As a result, FMPA has not been l l
able to implement its IDO project. l l
Finally convinced that litigation was necessary before l FPL would honor its obligation to provide network transmission, FMPA filed a lawsuit in Florida state court on December 13, 1991, 12/ The municipal electric systems of Bushnell, Clewiston, Green Cove Springs, Jacksonville Beach, Leesburg, and Ocala, which do not have on-system generation resources, presently receive their power suppl from FMPA through FMPA's "All-Requirements" project.
The IDO pro act represents an expansion of the All-Requirements project to nelude four FMPA members having on-system generation resources, namely the municipal electric systems of Fort Pierce, Key West, Lake Worth, and Vero Beach. For simplicity, the expanded probect is referred to herein as the "IDO project," and all the participating cities are referred to as "IDO participants.
YS
i 2 '
asserting FMPA's right to network transmission under contract law a
and Florida's antitrust statute. FPL removed the case to the 4
federal district court for the Middle District of Florida, where i it is docketed as Florida Municinal Power Acency v. Florida Power and Licht Co., Case No. 92-35-Civ-Orl-3A22 (" District Court case"), where discovery is largely complete 12/ and where trial is scheduled to begin this coming September. 11/ !
On March 19, 1993, FPL unilaterally submitted to the Federal Energy Regulatory Commission ("FERC") Commission (in FERC Docket No. ER93-465-000) a comprehensive restructuring of FPL's transmission, wholesale power, and interchange tariffs. FPL's 1
"open access" tariff filing purports to establish a new regime
} for transmission service to which the TSAs will be conformed. l I
l
- 12/ Numerous fruits of discovery from the District Court case are j cited in this petition and appended hereto. Unless otherwise ,
,l indicated, references to depositions and to documents from FPL's l
. files are to the District Court case discovery. A list identifying the various FPL deponents is attached as Appendix A-10.
4 Confidentiality restrictions relating to that discovery i' inhibit FMPA from revealing most of the other documents produced
- in that discovery. Egg Florida Cities' June 21, 1993 Motion for Discoven Order in FERC Docket No. ER93-465-000 (Appendix A-21).
i FMPA believes that the relief requested in this petition can and
- should be ordered without evidentiary hearing. However, if
~
hearings are determined to be necessary, discovery should be i
ordered to permit FMPA to further show, for example, FPL's
- anticompetitive intent. It is particularly inappropriate, in FMPA's view, that FPL will not permit FMPA to present to the Commission discovery which it has already received under the District Court's orders.
11/ After FPL removed FMPA's complaint to the Federal district 1
court, FMPA amended its complaint to assert claims under the
. Federal antitrust laws, based on the same facts as FMPA's
- original claims under the Florida antitrust laws.
+
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i Egg March 19, 1993 Letter from FPL Vice President William G.
Walker III to the FERC (" Transmittal Letter"), at 43-44 (Appendix A-22). However, this exclusively " point-to-point" regime is inconsistent with FPL's network transmission obligations under the Antitrust Conditions. Despite its !
[ obligation to provide transmission "between or among," and despite FMPA's persistent requests for such service (including the filing of a lawsuit), FPL proposes to provide only " access l l between generation resources and bulk-power loads connected to 4
FPL's system or (connected) to systers interconnected with FPL."
Transmittal Letter at 6 (emphasic added) (Appendix A-22). 11/
FMPA and those of its members which do business with FPL jointly filed a timely protest and motion to intervene in FERC Docket No. ER93-465-000. Among other challenges to FPL's filing, Florida Cities demonstrated that FPL's failure to file a tariff for network transmission service was both anticompetitive and inconsistent with FPL's obligations under the Antitrust conditions.
FPL has repeatedly sought to avoid a determination of its network transmission obligation. Indeed, FPL has raised technical jurisdictional objections to enforcement of the 11/ By letter Order dated May 18, 1993 (Appendix A-23), FPL's filing was found deficient in a number of respects, and FPL was ordered to make a conforming filing within 30 days. The deficiency letter did not reach the issue of network versus point-to-point service. FPL subsequently requested (and was granted) an extension until July 26, 1993 to submit a revised filing.
f
Antitrust Conditions by every forum called on to consider the issue. FPL has prevented enforcement by the Florida state
< courts, by removing FMPA's suit to federal district court; has unsuccessfully sought to dismiss that case from federal district court by arguing that this commission has exclusive jurisdiction; 15/ has asserted that FERC is not the proper proceeding for adjudicating FMPA's entitlement to the network access required for IDO, going so far as to claim that FERC lacks '
authority to enforce or even interpret the Antitrust conditions; 12/
and has argued in the District Court case that only FERC has jurisdiction to determine whether FERC-filed rate schedules comport with the Antitrust Conditions 11/ -- necessarily implying that this Commission lacks jurisdiction.
FMPA seeks a speedy determination of its right to purchase network transmission. As demonstrated below, the rate schedules filed (and proposed) by FPL to date clearly fail to fulfill FPL's Antitrust Condition obligations. Each day that FMPA is thereby prevented from integrating and coordinating its l
l l
15/ The District Court rejected this argument by Order of April 9, 1992 (Appendix A-27).
12/ Egg FPL's April 27, 1993 Answer in FERC Docket No.
ER93-465-000, at 260 (Appendix A-24).
11/ Egg FPL's March 20, 1992 Motion to Dismiss at 12-15 (Appendix A-25), and its April 15, 1993 Motion for Summary Judgment at 15-19 (Appendix A-26).
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resources costs the Florida economy tens of thousands of dollars in irrevocably lost efficiencies. 12/
1 i Notwithstanding FPL's arguments, the District Court. the i
! FERC, and this Commission all have jurisdiction to determine 4
FPL's network transmission obligation, and each has its own, j partially overlapping, array of remedies for FPL's breach of that j obligation. This Commission plainly has jurisdiction to enforce conditions attached to FPL's nuclear license, including the provisions of Antitrust Conditions X(b) and XII which require FPL to file implementing transmission rate schedules and agreements with the FERC. 22/ FMPA is filing this petition so as to leave .
{
no escape route for FPL's forum evasion tactics. LL/ :
B. The Antitrust Conditions Require FPL to Provide Transmission Over its Network Among Delivery Points of FMPA Without Imoosina Multiole Transr.ission Cnaraes Article X of FPL's Antitrust Conditions (Appendix A-13 at 24) requires FPL to provide transmission over its network "between two or among more than two neighboring entities, or 12/ FPL may be required to compensate FMPA for its losses through a damages award in the District Court case. Nonetheless, the opportunities for more efficient operation and planning of FMPA's resources that are being lost while FMPA fights to enforce its rights are lost to the public forever.
12/ The District Court has parallel jurisdiction to enforce FPL's obligations under its agreements and under the antitrust laws, and the FERC likewise has parallel jurisdiction to ensure that transmission rates are "just and reasonable," in the public interest, and in accordance with FPL's prior agreements.
21/ FMPA is also filing today a complaint with the FERC, to ensure that thosa remedies available exclusively from the FERC can be applied onca FMPA obtains a determination of its rights.
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sections of a neighboring entity's system which are geographically separated, with which, now or in the future, Company is interconnected." 22/ FPL's obligation under this requirement is clear. Long before the "among" requirement was I
agreed to by FPL, the term had been given a specific and'well-established meaning by the AEC in the LP&L case. Accordingly,
} the Commission should by summary disposition establish the legal i
- effect of FPL's unambiguous contractual obligation.
In LP&L, the DOJ, AEC Staff and LP&L proposed license
[i I
conditions that required LP&L to transmit only "between" pairs of ,
Louisiana entities, with a separate charge imposed for 4
transmission in each direction. Idm at 739-40. The AEC Atomic Safety and Licensing Board 22/ held a hearing to determine I whether this proposal was sufficient to overcome a situation inconsistent with the antitrust laws. Id at 733-34. The AEC recognized that, as a matter of straight-forward mathematics, LP&L's proposed transmission "between" commitment would result, for transmission connecting multiple entities, in charges totaling many times LP&L's standard transmission rate. 21/
A 22/ FMPA qualifies as a neighboring entity. Egg infra Part IV.C. i l
22/ The Licensing Board and the Appeal Boards exercise the delegated authority of the AEC, as testified by former NRC i
Commissioner Roberts, offered by FPL as an expert witness in the District Court case, and by former commissioner Gilinsky, offered
.' by FMPA. Roberts Tr. 15-16 (Appendix A-7); Gilinsky Tr. 53-54 (Appendix A-3). For convenience, we refer to the Licensing Board l
i as the "AEC" herein. 6 11/ The AEC found (idt at 732):
J
[ FOOTNOTE CONTINUED ON NEXT PAGE)
WS
i The AEC held that the imposition of multiple charges for l
i transmission connecting a single group of entities was )
unreasonable and inadequate to accomplish the purpose of the 4
license conditions:
, The payment of 6 to 20 or more transmission charges by a sinale aroun of entities is
. deemed unreasonable.
The limitation of [ transmission) "between two entities" in Applicant's Commitment i
No. 5 is not an ade pate provision designed to permit coordination (both operation and i development) sufficient to overcome a i situation inconsistent with the antitrust laws.
LP&L at 733-34 (emphasis added). The AEC found that because
. of the relatively small size of the entities in the area
" coordination will require transmission among three to five or more" entities. Id2 at 733. It concluded that even the j commitment to provide transmission among two entities "in either direction for a single charge" was inadequate because it was " limited to two entities thus foreclosing transmission among three or more entities." Idi at 732.
[ FOOTNOTE CONTINUED FROM PRECEDING PAGE)
If two small entities wish transmission from A to B and from B to A they must execute two contracts and pay two transmission charges... . This can be expressed mathematically as two permutations taken two at the time (P 2/2) which is 2 x 1 = 2 For three entities --
transmission charges.
the expression is P 3/2 -- 3 x 2 or six transmission charges. For four entities -- P 4/2 -- 4 x 3 or 12 transmission charges. For -
five entities -- P 5/2 -- 5 x 4 or 20 transmission charges.
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In order to permit coordinated operation of l generating resources controlled by smaller utilities, the l l
AEC revised the proposed license conditions to provide for ;
transmission "among" multiple entities, 14 at 734, that is
" transmission from any member of a coordinating group to any other members of such group," idt at 733. The AEC stated:
In. Schedule B [the revised conditions, q reprinted at 8 AEC 740-744), Condition 5 is the same as Commitment No. 5 of Schedule A
[the proposed conditions, reprinted at 8 AEC 738-740), except that "between two entities" has been changed to "among entities." The ouroose of th:.s chance is to orevent mu:.ticle transmiss:.on charaes for transniss:.on of a contracted transu:.ss:.on entitlement amona a coord:.nat:.na aroup of two or more entities.
To make the purpose of this change free from doubt, a clarifying sentence has been added.
Idt at 737 (emphasis added). The referenced " clarifying sentence" makes the meaning of the "among" requirement crystal clear: "For each coordinatina croup of entities there shall be a sinale transmission charae." Id at 744 (emphasis in original). 21/
Transmission "among" thus requires " network transmission." The coordinating group pays a single charge based on the amount transmitted on its behalf (at any one 21/ Of course, the number of transmission " charges" does not depend on the number of separate bills or items on an invoice.
Rather, whether it is a single or multiple charge depends on whether the coordinating group pays more for transmission of a given amount of power among multiple delivery points than it ,
would if that same quantity were transmitted from just one point to another. LEiL was concerned with substance, not form.
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I ' time) over the transmission network as a whole, without i I
regard to the distribution of that transmission among the
. delivery points of the coordinating group. The proposal in l-LEEL to transmit only "between" locations was rejected because it left room for multiplicative transmission charges i
< based on the number of receipt and delivery points at which '
a power is added to and taken from the network.
The same requirement for transmission "among," with the specific meaning that it carries under LP&L, was written into the FPL Antitrust conditions. Because Antitrust condition X(a) (2) (Appendix A-13) plainly and unambiguously requires more than transmission "between" delivery points, i
FPL cannot avoid summary disposition by claiming that it
. intended otherwise. Egg Hashwani v. Barbar, 822 F.2d 1038 (11th Cir. 1987). Significantly, the "among" requirement-appears only in condition X(a) (2); other Antitrust Condition provisions such as X(a) (1) (which applies to transmission of power from FPL power sources to neighboring utilities) omit the "among" language and require only transmission "between" multiple power resources and load centers and neighboring distribution systems. If "among" signified mere grammar or bare access connecting multiple points through a j concatenation'of point-to-point services, it would appear in J Condition X(a) (1) as well. 21/ .In any event, FPL must be 1
21/ As a matter of grammar, "among" signifies one joint relationship as distinguished from several bilateral (FOOTNOTE CONTINUED ON NEXT PAGE)
O V
presumed to have understood and intended that transmission "among" means network transmission. As the Supreme Court i stated in United States v. I.T.T. Continental Bakina co.,
1
- 420 U.S. 223, 240 (1975)
- "We must assume that the parties f here used the words with the specialized meaning they navs
- in the antitrust field, since they were composing a legal document in settlement of an antitrust complaint." See also l
I Robin v. Sun Oil Co., 548 F.2d 554, 558 (5th Cir. 1977) 3
! (lawyers who drafted settlement agreement presumed to know i
!i technical legal meaning of the words they chose).
l FPL is in no position to claim otherwise. Shortly
}
after it agreed to the Antitrust Conditions, FPL recognized l t '
- that their terms were carefully chosen to reflect AEC/NRC i I
precedent. In the November 7, 1983 Answer of Florida Power
& Light Company to Staff's Motion to Require Filing, Florida
!. Power & Licht Co., 26 FERC 1 63,019 (1984), vacated as moot,
! 30 FERC 1 52,230 (1985) (Appendix A-28), FPL (at 8) stated
! that "[t]he license conditions were negotiated over a long i
period of time with the NRC's antitrust staff. These negotiations included extensive discussion of the language
)
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! relationships. Egg, e.g., The New York Time 1 Manual of Style-and thanUsaae two when 12 (1979 ("between the i)tems are related is correct in reference severally to more and individually: ;
j i The talks between the three nowers ended in aareement to divide f
the resoonsibility amona them.") (emphasis retained); accord, l l
William Strunk, Jr. and E.B. White, The Elements of Style 40 (3d l ed. 1979). Thus, use of "among" to signify several point-to- y '
point services would be grammatically incorrect.
l 3 ,
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of the' conditions, much of which was honed by the NRC Staff in negotiations with other licensees over a period of I
years."
The transmission "among" requirement discussed in LP&L plainly falls within the category of well-honed i provisions to which FPL referred. LEAL points out (at 733) that the same requirement appears in the license conditions for the Grand Gulf nuclear plant, 38 Fed. Reg. 14877 (1973),
and (at 735) that "both Justice and Staff are familiar with, understand, and have agreed to such language" in the proceedings concerning that plant. Essentially identical language appears in numerous other utilities' license conditions, for example, PG&E's Sta'nislaus Commitments attached to its Diablo Canyon license, gag 41 Fed. Reg. 20225, 20227 (1976), and the conditions attached to Florida Power Corporation's license for the Crystal River Unit 3 nuclear plant, 331 37 Fed. Reg. 3782 (1972). 22/ The requirement of transmission "among" is a standard " laundry list" item in antitrust licensing conditions, whose specific meaning was widely understood long before FPL agreed to it. l l
This commitment requires FPL to sell defined transmission services to FMPA. 21/ In the Joint Motion and 21/ The Federal Register publications of the Stanislaus Commitments, Grand Gulf and Crystal River transmission requirements are attached as Appendix A-29.
21/ FPL must also sell transmission to other neighboring entities and neighboring distribution systems, including individual FMPA (FOOTNOTE CONTINUED ON NEXT PAGE)
l Stipulation expressing FPL's settlement with the DOJ and the NRC Staff, FPL committed to deal with neighboring entities i f
and neighboring distribution systems in conformance with the 1 l
Antitrust Conditions (footnotes omitted, emphasis added):
...The joint movants request that the conditions be made effective immediately without prejudice to this Board's author 1ty to impose different or additional conditions after a hearing. Grant:.no this motion wi:.1 assure that, effect:.ve :.mmediately, FPL wnll be comnitted to dea:L with other electr:.c utilit:.es in conformance with the cond:.tions.
September 12, 1980 Joint Motion of DOJ, NRC Staff, and Applicant to Approve and Authorize Implementation of Settlement Agreement at 1-2 (Appendix A-14).
If the motion to make the license conditions in their entirety effective immediately is not granted, FPL may withdraw its agreement to accept these conditions...; if such motion is granted, however, FPL will abide by these conditions....
September 12, 1980 Stipulation between DOJ, the NRC Staff and FPL at 1-2 (Appendix A-14).
FMPA qualifies as a neighboring entity under the definition set forth in Articis I(c) of the FPL Antitrust conditions and is specifically named as a neighboring entity in Article X(d). Therefore, FTL aust sell FMPA network transmission
-- transmission "among... sections of a neighboring entity's system which are geographically separated, with which... company (FOOTNOTE CONTINUED member cities.
FROM Individual PRECEDING FMPA member PAGE]ities c experience j additional adverse impacts from the unavailability of network !
service. l l
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l is interconnected." Article X(a) (2) (Appendix A-13). The l
coordinated system which FMPA has been contracted to operate currently includes FMPA's power sources and the points at which it delivers power to its members. The FPL network is interconnected with the geographically separate sections of FMPA's system either directly or through another utility (at locations referred to herein for simplicity as " delivery points,"
or sometimes as " receipt and delivery points.") Accordingly,
! FMPA is entitled to transmission among these separate sections.
I FPL cannot be heard to complain now that it did not understand the Antitrust Conditions to which it agreed. Like LP&L, FPL is prohibited from multiplying transmission charges for transmission connecting receipt and delivery points of a single
- coordinating group. By agreeing to the Antitrust conditions, FPL
! obligated itself, inter alia, to provide transmission "among" these geographically-separate sections of FMPA's system for a single charge.
FPL has refused to provide network transmission
- required by the trtnsmission "among" requirement of its !
- Antitrust Conditions and LP&L. FMPA has long sought a j transmission arrangement that would enable it to distribute a given quantity of transmission network usage among various 3
delivery points, without paying multiple monthly or yearly 1
transmission charges. In the existing TSAs under which FPL 1
a d
4 l transmits for existing FMPA power supply projects, during more than two years of negotiations and eighteen months of ensuing litigation over transmission for FMPA's IDO project, and in its "open access" tariff, FPL has refused to provide such transmission.
For example, if FMPA wishes to coordinate its resources economically so that on some days 50 MW go from point A to B, on other days 50 MW go from B to C, and on l still other days 50 MW go from C to A, FMPA must pay three i 1 50 MW contract demands; FMPA must pay for 150 MW of l transmission capacity, even though it will never use more than 50 MW of FPL's transmission network capacity at any one l
l time. Indeed, if FMPA wishes to transmit this same 50 MW of power in the other direction, e.q., from point C to B on some days, from point B to A on other days and from point A to C on other days, it must reserve and pay for yet another 150 MW of transmission capacity. Thus, to transmit a l
I l maximum of 50 MW of power flexibly among points A, 2 and C, ,
i l FMPA must pay FPL for 300 MW of transmission capacity. l I
The unreasonableness of this limitation is l increased by the fact that FPL's transmission charges have !
nothing to do with the cost of transmission from points A to B, etc., but rather reflect FPL's total transmission system I costs. Thus, if FMPA desires to ccordinate and integrate its generation on FPL's system in an economic.and efficient manner, it must pay multiples of FPL's per MW total system l
- 4.
~
l i r
transmission costs for each MW of system capability actually used (i.e., six times the 50-MW maximum usage at any one time in the examples above).
FPL is thus offering to transmit only "between" the various FMPA delivery points. Like LP&L, FPL seeks to impose multiples of its basic transmission charge as a function of the number of delivery points involved and a function of the maximum possible delivery to and from each I such point. In LEAL terminology, FPL is effectively offering transmission "from A to B and from B to A," with l further permutations for C, D, etc., all for a separate charge. In LP&L, such directional point-to-point transmission, with multiple charges imposed, was specifically rejected as only transmission "between," not transmission "among." LP&L, 8 AEC at 732. FPL's refusal to l
sell network service has large and harmful practical consequences: FMPA does not have the same transmission l
access that FPL does; FMPA would have to pay multiples of
! what FPL does to purchase anything approaching transmission use on a par with FPL; FMPA is assigned a disproportionate share of transmission system costs; and ultimately, FMPA is 1
injured in competition to the detriment of itself, its member cities, and all Florida ratepayers. -
- 1. Existina TSAs l
l Each of FPL's existing TSAs contains point-to-point restrictions, under which FPL provides service only "between"
?
e f
pairs of interconnection points where electricity is received l onto and delivered from the FPL system. FPL insisted on these restrictions despite FMPA's repeated requests, in negotiating ;
each TSA, for network transmission rights. 12/ I For example, the 1990 " Restated and Revised" TSA, as amended, provides for transmission of electricity to three FMPA member cities from each of their multiple power supply sources, but it does not provide for delivery of each resource among identified FMPA delivery points, as needed in a given hour.
Rather, the TSA provides for transmission of each specified resource, in amounts tied to each of the participating member cities separately and in one direction only, to the specified delivery point. For example:
FPL shall provide transmission service for the power and energy produced by each city's ,
Stanton Resources from the point of interconnection between FPL's transmission system and OUc's transmission system to each such city's delivery point... .
l FPL shall provide transmission service for the !
power and energy produced by each city's OUC I System Resources from the point of interconnection between FPL's transmission system and OUc's transmission system to each such City's delivery point. This transmission .
service shall be termed "OUc System l Transmission Service".
22/ As described in above, FMPA accepted these limitations due to the economic and practical necessity to obtain timely -
transmission commitments from FPL, while preserving rights to obtain network transmission service.
r'
.. l
. : . l t i 4
T FPL shall provide transmission service for the
- power and energy produced by each city's oUc ;
- system II Resources from the point of i t
interconnection between FPL's transmission l system.and OUc's transmission system for
- delivery to each such city's delivery point.
l This transmission service shall be termed "oUC 1 system II Transmission service".
Rate Schedule No. 109, as amended on May 1, 1991, at 13, 55 3.2,
- 3.4.1 and 3.4.2 (Appendix A-19). For each receipt-delivery point pair, FMPA must pay an additional, cumulative transmission
! charge. Egg idt, Articles VII and XI. FPL recently stated that i i
"[t]ransmission service provided by FPL to FMPA is priced on a
! )
' point-to-point' basis." FPL's April 15, 1993 Memorandum of Law !
- in Support of its Motion for Summary Judgment in the District !
i j Court case ("FPL Memo"), at 4 (Appendix A-26). "Under point-to-
- point pricing, FMPA must pay-separately for each ' contract j
)
i demand' between each point of receipt of power on FPL's system and each point of delivery from the FPL system." 1d2 at n.2 l j
) (Appendix A-26). j More accurately, FPL's transmission service is nriced on i a network basis, but cannot be used except on a point-to-point I
i basis. Each extra " contract demand" MW charged to transmission I
customers means that they pay for an extra share of the " rolled- * \
i in" cost of FPL's entire network. FPL prices transmission on a l
{
4 j " postage stamp" basis under which transmission customers pay a ;
1 i
share of the total cost of FPL's transmission network, not only l l the cost of the facilities located on a path between the receipt j and delivery points involved in a given transaction. FPL iJ l
l l 4
r l
. - --- . - . - .- . - . . _ - _ - - . ~ . . . . - . - . - - - - .
s .
- i i
i described this pricing methodology, approvingly, to the D.C.
i Circuit Court of Appeals in FPL's brief in Ft. Pierce Utils. !
l Auth. v. FERC, 730 F.2d 778 (D.C. Cir. 1984) ("D.C. Circuit j brief") (September 8, 1983, at 4, 5-6) (Appendix A-30):
j As part of its business of providing its customers with a reliable supply of electric enerW , Florida Power & Light Company, as-
- herein relevant has built and operates an electric transulssion network that extends
! over eastern and southern Florida and is j interconnected with neighboring utility
,' systems, including certain Florida cities... . l The Company recovers its transmission costs
. from all its wholesale and retail :
j customers. . . The specific rate design l methodolog by which FPL recovers transmission j
j costs is t rough a " postage stamp" rate. As the term implies, all FPL customers are i allocated a share of transmission costs j without specifically identifying the cost of transmission facilities on which the l electricity for each customer travels. This j is done because the determination of what i facilities are "used" by which customer in
]
what proportions, and what these facilities
- cost, is not possible. 2/ FPL's transmission i network is constructed to meet the peak demand i of all its customers inTherefore, its serviceallocation area of i throughout the year.
1 costs on the basis of peak demand on its i system is, and always has been, determined to ;
be the fairest method of apportioning transmission capacity costs... .
1/ This would be true even if electricity !
travelled through a transmission network on a shortest-distance-between-two-points basis.
But electricity does not; rather, it travels on a path of least resistance... . The path of electrons will change constantly as load conditions change.
va
i *
[
FMPA is not contesting this " postage-stamp" design; it is a sound basis for pricing a network rate. As the FERC 1- recently explained:
! The Commission has long held that an integrated transmission grid is a cohesive network moving enerW in bulk. Because the 4
grid operates as a single piece of equipment,
- the Commission has consistently priced transmission service based on the cost of the The Commission has rejected j grid as a whole.
, the direct cost assignment of grid facilities... .
i Nothing in the Commission's new pricing policy
! changes or undermines these fundamental i premises. There continues to be only one service -- service over the entire grid -- and j both native load and third-party customers "use" the entire grid, including any
- expansion.
! Public Service Company of Colorado, 62 FERC 1 61,013 at.61,061
i constrain transmission customers to buy extra " postage stamps"
! for each contract demand between two points. This postage-stamp-4 i per-contract-demand rate design is the basis on which FMPA is l ' being charged under each of the existing TSAs. 22/
i 29/ FPL is of two minds concerning whether its existing TSAs are i limited to point-to-point service. On the one hand, FPL states i that these TSAs " combine some features of point-to-point service
- with features of network service and thus provide EMPA with considerable flexibility." FPL's April 27, 1993 Answer in FERC Docket No. ER93-465-000, at 32 (Appendix A-24). In the District Court case, however, FPL has ar ued that FMPA's efforts to obtain network service for the IDO pro ect were " futile" because FMPA was aware that FPL had a "conti uing policy" under which FPL's '
j responses to requests for network service "were not merely
'no,'but ' hell no.'" FPL's April 15, 1993 Memorandum of Law in i
Support of Its Motion for Summary Judgment in the District Court (FOOTNOTE CONTINUED ON NEXT PAGE]
4 i
i O
4
l 1 *, .
l 1 i 28 -
! l i
i 2. Transmission for IDO j Throughout two years of negotiations in which FMPA l pursued transmission for the IDO project, FMPA requested the i
ability to distribute a given quantity of transmission network usage among various receipt and delivery points, without paying multiple transmission charges. That is, FMPA sought to have its j.
i transmission contract demand measured by the coincident FMPA transmission load on the FPL transmission system (and not by the i
l (FOOTNOTE CONTINUED FROM PRECEDING PAGE]
i case at 8-10 (quoting deposition of FMPA General Counsel Fred M.
- Bryant at Tr. 98-99) (Appendix A-26). However, whether FPL's l TSAs are shrginally more flexible than absolutely rigid point-to-point service is not the issue. The T5As contain substantial point-to-point restrictions which preclude economic coordination
- and breach FPL's Antitrust Condition obligations.
l As quoted in the text, FPL clearly recognizes that it i does not provide true network' service to transmission customers.
features" of i When it chooses to. depict the TSAs network service, FPL refers to several provisions as containing "in the Restated and Revised TSA (namely, " Replacement Transmission Service" 4
i' (Article IV) " Superseding Transmission Service" (Section 6.1) and transmission for "New FMPA Resources" (Section 6.5) and to t
less extensive replacement transmission provisions in other TSAs.
1 Egg Answer at 32 n.41 (Appendix A-24). The provisions make the
- TSAs in which they appear slightly less unreasonable than they would otherwise be, but do net.make those TSAs either reasonable or a sufficient vehicle for providing transmission among separate 2 sections of FMPA. Even witn these provisions, none of these TSAs i enable the resources transmitted thereunder to be used efficiently, i.e. integrated into a generation mix that is
- planned and operated together to supply changing loads. Rather, each TSA imposes multiplicative transmission charges calculated as a function of the contract demands hgothetically delivered l
8 from each resource to each city,-prohibiting integrated planning, i dispatch and operations and violating FPL's Antitrust Condition i obligation. The TSAs' inadequacy is especially damaging when the resources transmitted under them are part of a normal mix of transmitted generation -- one that is not artificially restricted 1
- to baseload units by restrictive transmission -- making delivery j flexibility more important.
i i
, .,s,s - ,- ,y.,- g---_v . ,, , , , , -
sum of the highest number of NW that could be delivered through each FMPA delivery point on a non-coincident basis). FPL never offered'to transmit on that basis. FMPA did not simply propose one network transmission rate and insist that FPL accept it.
Rather, FMPA suggested numerous potential network transmission l
arrangements, and invited FPL to propose others. However, FPL l adamantly rejected the network transmission concept and each implementing FMPA proposal.
FMPA repeatedly requested FPL to file a network rate at the FERC, pursuant to FPL's express obligation to file a rate schedule in the event there is no agreement regarding requested transmission services. Egg Antitrust Conditions X(b) and XII (Appendix A-13); see also Pacific Gas & Elec. Co., 31 NRC 595, 602 (1990) (concurring in District Court finding that PG&E had violated a similar filing obligation). FMPA repeated that I i
request through counsel in a March 25, 1993 letter from R. Jablon to L. Bouknight (Appendix A-31). FPL's councci responded, in a March 29, 1993 letter (Appendix A-32), with a resounding no. Egg id. at 2 (calling FMPA's request a " waste (of)... time").
Even FPL's " hub" concept, which was floated in l negotiations with FMPA, calls for multiple charges for transmission connecting a group of coordinating entities. 21/
21/ The hub concept, as described in FPL's April 27, 1990 letter to FMPA (Exhibit B to Appendix A-33), merely substitutes a hypothetacal "FMPA hub" as one end of each separate directional Thus, transaction to and from FMPA receipt and delivery points.
a transaction from B to A becomes one transaction (with one charge) from B to the hub and a second transaction (with a second
[ FOOTNOTE CONTINUED ON NEXT PAGE) 9
i j
Indeed, FPL's letter to FMPA describing the hub concept characterizes it as " modified point - point, directional l 4
l service." 22/ While the hub concept may appear on the surface to !
be a small step towards compliance with FPL's obligation to sell l network service, there is abundant evidence that it was put
! forward in bad faith. Numerous FPL witnesses have testified in the District Court case that the " hub" concept was never
- seriously studied by FPL. 22/ Moreover, FPL never told FMPA how it would develop the price for service under the hub concept. 21/
! Thus, FPL has not been willing to sell FMPA transmission j at a single charge reflecting FMPA's use of FPL's network. By l
I its own admission, FPL has insisted on multiple charges for l transmission connecting a single coordinated group -- charges (FOOTNOTE CONTINUED FROM PRECEDING PAGE]
charge) from the hub to A. A transaction from A to B on another i day would result in two more charges. In this example, even if !
j the maximum amount of electricity FMPA seeks to move on the FPL 4 i network at any one time is 100 MW, FPL would charge FMP) for 400 I
! MW of transmission or four times the amount it would charge for point-to-point transmission from A to B. By contrast, in this )
i example, transmission "among" would result in a charge for 100 MW l of transmission.
I 22/ A copy of this letter is appended to the April 30, 1993
- Affidavit of Nicholas P. Guarriello (Appendix A-33) as Exhibit B.
i As described in 1 16 of the Affidavit, in oral negotiations, FPL
' discussed several variants of its hub concept, but never i developed them in concrete terms, never proposed the rate that might apply, and ultimately took these variants off the table.
l al/ Rey Tr. 17 ( Appendix A-6) ; Enjamio Tr.122-23, 125-27 a (Appendix A-1); Locke Tr. 107-11 (Appendix A-5); Schoneck Tr. 119-20 (Appendix A-8); Stepenovitch Tr. 175-80 (Appendix A-I 9).
j 21/ Egg Gosselin Tr. 63-65 (Appendix A-4); Locke Tr. 182 ,
(Appendix A-5).
5 4
_ . ~ . . . . . . ._. _ . . . _. _ _ _ _ . . _ _ _ _ _ _ . _ _ _ . . _ - . _ ____ _ . _ . _ _ _
- u
i 1
i that vary with the number of FMPA receipt and delivery points 4
involved and the amount of power that can be delivered to and from each such point. FPL has not offered to charge based on 1
l HMEPA's proportionate (1.32, peak demand) use of the network.
- 3. "Onen Access" Tariff 4
FPL's "open access" transmission tariffs submitted to
. FERC in Docket No. ER93-465-000 (and currently being revised by f FPL, 333 supra) are part of a comprehensive revision of FPL's existing wholesale services (transmission, interchange, and 4
requirements power) and the framework for future wholesale l transactions. The proposed new regime would effectively govern all future FPL wholesale dealings. FPL proposes to conform its ,
existing TSAs to this new regime. 15/ This new regime, like ,
FPL's existing TSAs but unlike the Antitrust Conditions, would i only provide for point-to-point services. Egg, 32g2, Tariff j No. 1, Article VII, Section 7.3 at 27; Tariff No. 3, Articles I and VI, Sections 1.15 and 6.1 at 4, 15 (Appendix A-34). l Transmission customers must reserve and pay for separate contract s
demands equal to the maximum amount of transmission they will use from each point of receipt to each point of delivery. Tariff r No. 1, Article I, Sections 1.5, 1.19, 1.20 at 1-2, 5 (Appendix A-34). Despite its obligation to provide transmission "between or l,
4 among," FPL proposes to provide only " access between generation l resources and bulk-power loads connected to FPL's system or 1
)
15/ Egg Transmittal Letter at 44 (Appendix A-22).
i 4
i r*
o 1 /
/ '. ,
l (connected] to systems interconnected with FPL." Transmittal Letter at 6 (emphasis added) (Appendix A-22).
D. Sn==ary of Facts Constitutina the Basis for the Reauest
)
In sum, in its existing TSAs and the negotiations l preceding them, in its responses to FMPA's requests for transmission for the IDO project, and in its recent comprehensive FERC tariff filing, FPL has repeatedly violated the transmission obligations in the Antitrust conditions attached to its St. Lucie 2 nuclear license. Part of the roots of FPL's failure to heed the Antitrust Conditions were revealed in a November 19, 1992 deposition of FPL President and Chief Operating Officer Stephen Frank in the District Court case. Mr. Frank testified that he had never read the Antitrust Conditions or had them explained to him, has not issued policy statements, directives, guidelines, or the like to attempt to secure compliance, and that to his knowledge no FPL employee had conducted an audit to ascertain FPL's license condition obligations. Egg Frank Tr. 9-14 i
(Appendix A-2).
II. THE ACTION REOUESTED FMPA does not ask the Commission to set an actual rate or to involve itself with the details of utility rate-making (e.o. through establishing specific rates of return, depreciation cost or the like). FMPA does ask the Commission to enforce core provisions of the Antitrust conditions, which require FPL to provide "among" transmission service and require that in the
i : * .- ,
l l
event of a disagreement regarding transmission service, FPL shall 1 immediately file with the FERC a service agreement providing for such service, reflecting costs reasonably allocable to the
, service, and including a refund provision, so that FERC can resolve costing or pricing differences and so that service can begin. Egg Antitrust Conditions 55 X(b) and XII (Appendix A-13).
FMPA requests that the Director take several actions:
One, declare that FPL is obligated to provide network transmission among geographically separated sections of FMPA without imposing multiple charges for transmission among multiple delivery points.
Two, issue a Notice of Violation of that obligation, (
requiring FPL to submit a timely written reply admitting or denying that FPL is in violation of that obligation, setting forth the steps it is taking to ensure that its employees comply I with the Antitrust Conditions, and providing other compliance information. If/ i Three, impose a requirement by order directing FPL to immediately file with the Federal Energy Regulatory Commission a rate schedule that provides for transmission over the FPL system of the generating resources' involved in FMPA's IDO project to the delivery points involved in that project in a manner that complies with the Antitrust Conditions.
If/ A proposed form of Notice is attached, for the Director'sEgg convenience and as a further specification of this request.
Appendix B-1.
. l l
l Four, take such other action as may be proper, '
including, if necessary to achieve compliance with the Antitrust Conditions, ordering FPL to show cause why it should not be compelled to pay civil penalties or be subject to further ]
sanctions. !
Five, in accordance with Commission procedures, mas NRC Office of Nuclear Reactor Regulation, Procedures for Meeting NRC Antitrust Responsibilities, NUREG-0970 at 14 (1975), publish a Egderal Reaister notice of this petition within 30 days, and in I
doing so state when the Commission expects to decide whether to take action in response to this petition. Because proceedings which present issues overlapping with those presented herein are ;
pending before the District Court and FERC, FMPA requests that l the Commission publish in that notice an estimate of the time within which action hereon pursuant to 10 C.F.R. 5 2.206(b) may be expected, so that the District Court and FERC may be advised of the Commission's plans in scheduling their own proceedings.
To the extent that the Commission intends to defer to proceedings before the District Court and FERC, it should state that intention, so as to avoid'an Alphonse-and-Gaston situation of mutual deference. 12/
22/ Egg Pacific fagg and Elec. G2 (Diablo Canyon Nuclear Power Plant, Units 1 and 2), 31 NRC 595, 596-97 (Director of the Office of Nuclear Reactor Regulation 1990) (after meeting with parties to discuss where issues would be resolved, Director withheld decision "in anticipation of a resolution of the issues among the parties, either through a combination of negotiation, arbitration or litigation"); Florida Power i Liaht ConDany (St. Lucie Plant, Unit No. 2), 14 NRC 333, 339-40 (Atomic Safety & Licensing Bd.
[ FOOTNOTE CONTINUED ON NEXT PAGE]
_ . _ . . . _ . __________.._.__.___._..__._m _ _ _ _ _ _ _ _ - _
, l ..e o
i i
i No evidentiary hearing is required before the Director j
$ As demonstrated in Part I aggra, no may take these actions. )
genuine issues of material fact need be resolved in order to l declare that FPL's St. Lucie Unit 2 nuclear license requires i
j network transmission among geographically separated sections of i FMPA without imposing multiple charges for transmission among i
multiple points, and that FPL has refused and is refusing to l
provide such transmission. 11/ Similar action was taken without j i'
l
{
evidentiary hearing in, for example,'Mississioni Power and Licht i
! Comoany, (Grand Gulf Nuclear Station, Units 1 and 2), NRC Docket No. 50-416A and 50-417A, by letter and Notice of Violation dated i 1 May 29, 1980. Moreover, the compliance report requested above i
) requires no more than was ordered without an evidentiary hearing in that case and in Pacific Gas and Electric comoany (Diablo j Canyon Nuclear Power Plant, Units 1 and 2), 31 NRC 595, 596-97 &
l n.** (1990).
i i i !
t l I i
i i
[ FOOTNOTE CONTINUED FROM PRECEDING PAGE) 1981) (stating that NRC would deny intervention request to avoid a lengthy hearing on the merits of issues already before FERC, and regarding which FERC had expertise).
O 21/ If summary disposition is denied, an evidentiary hearing at j
which Florida Cities would have the opportunity to prove the
- above claims would be called for. ,
I l
i 1
%; "l ' * *
~ . n' III. CONCLUSION WHEREFORE, for the reasons stated above, the Director should act to enforce the Antitrust Conditions attached to FPL's nuclear license.
Respectfully submitted, i
Robert A. Jablon i Alan J. Roth SPIEGEL & McDIARMID Suite 1100 1350 New York Avenue N.W.
Washington, D.C. 20005-4798 Frederick Bryant MOORE, WILLIAMS, BRYANT, PEEBLES &
GAUTIER, P.A.
306 East College Avenue l Tallahassee, FL 32302 I (904) 222-5510 By: NI'!/ l i
Attorneys. for Florida Municipal Power Agency July 2, 1993 l
9
,. s.
1 CERTIFICATE OF SERVICE I hereby certify that I have this day caused the foregoing document, and its appendix volumes, to be served by hand delivery to Lon Bouknight, Esq., Newman & Holtzinger, P.C.,
1615 L Street, N.W., Washington, D.C.
Dated at Washington, D.C. this 2nd day of July, 1993.
David E. Pomper i Law offices of:
Spiegel & McDiarmid Suite 1100 1350 New York Avenue N.W.
Washington, D.C. 20005-4798 (202) 879-4000
t/s , -,_
l m. -
,. % , pausg
.? Ik UNITED STATES O' ' Y
[*. 1(l j NUCLEAR REGULATORY COMMISSION f WASHINGTON. D.C. 20666-0001 py
.mR 23 19W MEMORANDUM FOR: James Lieberman, Director Office of Enforcement FROM: Jack R. Goldberg Deputy Assistant General Counsel for Enforcement
SUBJECT:
THOMAS J. SAPORITO, JR., 2.206 PETITION REGARDING FLORIDA POWER AND LIGHT COMPANY Enclosed is a copy of a Petition filed with the Executive Director for Operations (EDO) March 7, 1994, by Thomas J. Saporito, Jr.,
(Petitioner) requesting that the NRC take action with regard to the Florida Power and Light Company. Specifically, the Petitioner requests that the NRC: (1) submit an amicus curiae brief to the Department of Labor (DOL) regarding 89-ERA--7/17 concerning the Petitioner's claim that the licensee retaliated against him for engaging in protected activity during his employment at Turkey Point Nuclear Station in violation of 10 C.F.R. 50.7; (2) institute a show cause proceeding pursuant to 10 C.F.R. 2.202 to modify, j suspend or revoke the licensee's licenses authorizing the operation of Turkey Point; and (3) institute a show cause proceeding pursuant to 10 C.F.R. 2.202 and order the licensee to provide the Petitioner with a "make whole" remedy, including but not limited to, immediate reinstatement to his previous position, back wages and front pay with interest, compensatory damages for pain and suffering, and a posting requirement to offset any " chilling effect" Petitioner's discharge may have had upon other employees at the Turkey Point and St. Lucie Nuclear Stations. The Petitioner's stated bases for his requests can be summarized as follows: (1) Although the NRC generally defers to the DOL process before taking action against a licensee, in this case the ALJ rendered a decision, enabling the NRC to take the action Petitioner requests, particularly to offset any " chilling effect" which may have resulted from the licensee's action; (2) under the Memorandum of Understanding (MOU) with DOL, there are times NRC actions are warranted notwithstanding the ongoing DOL process because of the significance of the issues to public health and safety; (3) the record in this case contains evidence which was ignored by the DOL Administrative Law Judge (ALJ), and the NRC should weigh the entire record in determining whether the licensee violated the Energy Reorganization Act (ERA) and 10 C.F.R. 50.7; (4) the ALJ erred in several respects as a
Contact:
Susan Chidakel f.g } .
- Q . Cf M IRhe-
,u210222 ,.Oaa m ' by massanesesemannesse. 4 p \
eq \ i'
N ,w l : matter of law in reaching his decision that the Petitioner was not discriminated against; (5) the adverse action by the licensee i occurred immediately after the Petitioner was in' contact with the
- NRC and filed complaints under the ERA with DOL; (6) the licensee's I i actions against the Petitioner constitute a " hostile work j environment" and the'NRC is mandated by Congress to ensure that a
- non-hostile work environment exists at NRC-licensed i
facilities; (7) the NRC has a duty to - ensure that licensee
- employers maintain a work environment which encourages employees to
! -raise safety _ issues, which is not the situation at Turkey Point because of the licensee's continuing retaliation against employees who do so; (8) the licensee illegally interrogated Petitioner j about his protected activity; (9) if the NRC fails to act, it will
(' contradict its own regulations that recognize the right of j employees to bypass management and report their concerns directly
- to the NRC; (10) the NRC has expressly defined. " protected
! activities"; (11) the licensee's request that Petitioner be
, examined by a company doctor was unjustified; (12) the licensee's i disparate treatment of Petitioner was illegal and must be challenged by the NRC; and (13) the NRC is required to act by I;
virtue of its regulations at 10 C.F.R. 50.9 which provide that the 4
DOL process is an extension of NRC authority.
! The Petitioner has submitted a document dated " Supplement to
! Petition Filed Under 10 C.F.R. 2.206 Against The Florida Power &
3 Light Company" dated March 13, 1994. We have reviewed this
- document and determined that, while it primarily repeats the
, information in'the Petition, it raises as additional grounds for i the requested action the fact that at least 18 pages of transcripts l in the DOL proceeding were missing from the official DOL record, '
which included testimony by the licensee's president that was extremely critical of the NRC.
I have enclosed a draf t letter of acknowledgement to the Petitioner ,
for your signature. Because there are other petitions filed by l
~ Mr. Saporito that are pending before NRR, please coordinate your !
response to th~is Petition with NRR. I am also enclosing a Notice ;
of Receipt of the Petition fer publication in the Federal Register.
If you want the licensee to respond reg'rding a these matters, we will assist your staff in drafting an appropriate letter. If you want more information from the Petitioner, we will be glad to assist your staff in draf ting a letter requesting this information.
t
- 4
l Please inform Susan Chidakel of my staff of the technical contact who will be involved in preparing a response to the Petition. Please ensure that I am provided copies of all correspondence related to the Petition and that I am asked to concur on all htaff correspondence.
l ek R. Goldbe )
Deputy Assistant General Counsel ;
for Enforcement l
Enclosures:
- 1. Copy of Petition and Supplement l
- 2. Draft Letter of Acknowledgement i
- 3. DrafC Federal Register Notice cc w/ enclosures: K. Cyr, OGC M. Malsch, OGC W. Olmstead, OCC L. Chandler, OGC W. Russell, NRR S. Ebneter, RII C. Evans, RII 4
I I
l
~
~~
i ACTION i
EDO Principal Correspondence Control
, FROM: DUE: 03/31/94 EDO CONTROL: 0009836 DOC DT: 03/07/94 FINAL REPLY:
Thomas J. Saporito, Jr.
TO:
EDO FOR SIGNATURE OF : ** GRN ** CRC NO:
DESC: ROUTING:
2.206 PETITION AGAINST THE FLORIDA POWER AND LIGHT Taylor CO. - TRUKEY POINT & ST. LUCIE Milhoan Thompson Blaha Murley, NRR Ebneter, RII DATE: 03/08/94 Lieberman, OE ASSIGNED TO: CONTACT:
OGC Ojr SPECIAL INSTRUCTIONS OR REMARKS:
9400824
4 I
THOMAS J. SAPORITO, JR. !
POST OFFICE BOX 7603, JUPITER, FL 33468-7603 i VOICEoFAXol-407-745-2118 l l
March 7, 1994 !
i Priority Mail Certified: !
P 282 384 450 !
Executive Director for Operations !
U.S. Nuclear Regulatory Commission !
Washington, D.C. 20555 i
Re: i Petition Filed Under 10 C.F.R. 2.206 Against The ;
Florida Power & Light Company {
1
Dear Sir:
COMES NOW,- Thomas J. Saporito, Jr., (hereinafter
" Petitioner") pursuant to 10 C.F.R. 2.206, and hereby files his (
request for specific action by .the U.S. Nuclear Regulatory Commission ("NRC") within a reasonable time against the Florida !
Power & Light Company (hereinafter " Licensee") and operator of {
the Turkey Point and St. Lucie nuclear stations located in the j State of Florida. ,
Specific Request:
i A. Petitioner requests that the NRC construct and submit -
an amicus curiae brief to the U.S. Department of Labor !
(" DOL") pursuant to 10 C.F.R. 50.9; 29 C.F.R. 18.10(d);
29 C.F.R. 18.12; and 10 C.F.R. 50.7 regarding issues of i fact in DOL Case Nos. 89-ERA-7/17 (consolidated) ,
concerning the Licensee's retaliatory conduct towards l Petitioner during Petitioner's period of employment at (
the Licensee's Turkey Point nuclear station in 1988 as )
a direct or indirect result of Petitioner having engaged in " protected activity" under 10 C.F.R. 50.7 )
and the Energy Reoganization Act of 1974 as amended
("Act"), 42-U.S.C. 5851, Section 210/211. i B. Petitioner requests that the NRC institute a show cause proceeding pursuant to 10 C.F.R. 2.202 to modify, J suspend, or revoke the Licensee's permissive '
operational licenses authorizing the operation of the i Turkey Point nuclear station. l I
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Executive Director for Operations U.S. Nuclear Regulatory Commission 2.206 Petition /FPL March 7, 1994 Page No. 2 C. Petitioner requests that the NRC institute a show cause proceeding pursuant to 10 C.F.R. 2.202 and Order the Licensee to provide the Petitioner with a "make whole" remedy, including but not limited to, immediate reinstatement to his previous job as an instrument control technician at Turkey Point, back wages, front pay, interest on back wages and front pay, compensatory damages for pain and suffering, and a posting requirement to offset any " chilling effect" Petitioner's discharge may have had on other Licensee employees at the Turkey Point and St. Lucie nuclear stations.
Basis and Justification:
- 1. The NRC generally defers to the DOL and does no take immediate action against a licensee when an aggrieved employee files an employment discrimination complaint with the DOL alleging illegal discharge because the l employee engaged in " protected activity". See, copy of NRC letter dated February 16, 1993, from James Lieberman, NRC Director, Office of Enforcement attached hereto. Mr. Lieberman states in his February 16, 1993, letter, in part, that:
...The NRC generally defers to the Department of Labor (DOL) process before taking action and normally does not take independent action with respect to alleged discrimination for the exercise of a protected activity prior to a decision by a DOL Administrative Law Judge (ALJ) absent a compelling safety reason..." Id at pp.1-2.
In Case Nos. 89-ERA-7/17 (consolidated), the ALJ rendered a decision in June of 1989. Therefore, the NRC can take action as requested above in this petition against Florida Power & Light Company. Moreover, the NRC should take action against the Licensee as requested in this petition to offset any " chilling ,
effect" which may have been instilled at the Licensee's facilities as a direct or indirect result of
Executive Director for Operations U.S. Nuclear Regulatory Commission v 2.206 Petition /FPL j March 7, 1994 Page No. 3 ,
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Petitioner's discharge from the Turkey Point nuclear i station in December of 1988.
- 2. The NRC and DOL have a long standing Memorandum of 5 Understanding ("MOU") which provides for the ;
cooperation of these two government agencies to work !
together on DOL discrimination complainants as in Case .
Nos. 89-ERA-7/17 (consolidated). See, 47 FR 54585; i December 3, 1982. Thus, while the NRC actions in discrimination cases are normally held in abeyance !
pending the DOL process, there are times, because of l the significance of the issues to public health and !
safety, that NRC actions are warranted notwithstanding ;
the ongoing DOL process. t
- 3. NRC action in complying with the requests set out above e ;
in this petition against the Licensee are warranted for l the following reasons:
(a) On June 30, 1989, the DOL ALJ issued a Recommended Decision and Order ("RDO") in Case Nos. 89-ERA- !
7/17 (consolidated) recommending that the case be !
dismissed. The ALJ's RDO was opposed by i Petitioner through his counsel in a March 2, 1994, l Reply Brief to the DOL Secretary of Labor (" SOL").
See, copy of Complainant's Reply Brief ("CRB")
dated March 2, 1994, and attached hereto.
(b) The entire record in Case Nos. 89-ERA-7/17 (consolidated) contains evidence which was completely ignored by the ALJ. The NRC should weigh the entire record in this case in determining whether the Licensee violated the ERA and 10 C.F.R. 50.7 in discharging Petitioner from the Turkey Point nuclear station in December of 1988. See, CRB at p.1.
(c) In Case Nos. 89-ERA-7/17 (consolidated), the parties and the ALJ agreed on the six elements that complainant was required to prove in order to establish a prima facie case. The ALJ's conclusion that complainant failed "to show that l
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Executive Director for Operations ;
- .U.S. Nuclear Regulatory Commission
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" 2.206 Petition /FPL '
' March 7, 1994 Page No. 4 i
the alleged discriminatory actions and eventual i discharge were motivated in any way by l complainant's protected activity," is not consistent with well established precedents on the l issue of causation. See, CRB at p.2. !
(d) The ALJ simply chose to ignore overwhelming '
1 evidence of timing in Case Nos. 89-ERA-7/17 (consolidated) when he concluded that there was no discriminatory motive established. Indeed, the most common fact used to establish retaliatory motive is evidence of timing. See, CRB at p.2.
Soon after complainant raised safety concerns in early May, 1988, he was subjected to discipline.
See, CRB at p.2-8. Additionally, the Licensee's animus was publicly demonstrated in front of Petitioner's coworkers at Turkey Point instilling a " chilling effect" at the station. ;
(e) FPL claimed it fired Petitioner for three reasons. 3 (1) for refusing to divulge his safety concerns to l Mr. Odom on November 23, 1988; (2) refusing to meet with Odom on November 30th (to divulge his safety concerns); and (3) refusing to submit to a physical exam by a . company doctor. See, CRB at p.8-9. The ALJ erred as a matter of law by ,
failing to find FPL's reasons pretextual or, in !
the alternative, to conduct a dual motive {
analysis. See, CRB at p.9.
i (f) The adverse action by FPL against Petitioner in November and December, 1988, including his termination on December 21, 1988, occurred immediately after Petitioner engaged in additional protected activity. Petitioner was in contact with the NRC between September and December of 1988, and he filed complaints under the ERA with the DOL in October and November of 1988. The Licensee, FPL learned these facts, which were common knowledge at Turkey Point, directly from the NRC, Messrs. George Jenkins and Oscar
9 i-1 i Executive Director for Operations
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i U.S. Nuclear Regulatory Commission 2.206 Petition /FPL l March 7, 1994 Page No. 5 j
DeMiranda and other NRC officials, during these
- months.
Odom's questioning of Petitioner on November 23, J 1988; FPL's placing of Petitioner on restricted status; demeaning job assignments; and Odom's attempted interrogation of Petitioner on November .
I- 30, 1988; related directly to Petitioner's l protected activity and shortly followed I t
Petitioner's contacts with the NRC and his filing
(g) The Licensee's-actions taken against Petitioner in j 1988 as described above constitute a " hostile work environment" under the law. All of the harassment incidents and adverse actions that occurred between May and December, 1988, more than satisfy a prima facie case of " hostile work environment."
! Mitchell v. APS/ANPP, Case No. 91-ERA-9, slip op.
! (h) The NRC is mandated by Congress to ensure that a l non-hostile work environment exists at facilities
- licensed to operate by the NRC. The NRC simply cannot tolerate a " hostile work environment" at j the FPL Turkey-Point nuclear station. Indeed, in i Case No. 91-ERA-9 and in Case No. 89-ERA-19, Sarah j C. Thomas v. APS/ANPP, the NRC took enforcement action because the licensee allowed a hostile work j environment to exist at the Palo Verde Nuclear Generating Station. The NRC's enforcement action
! taken against Arizona Public Service Company
- stated, in part, that
) ...Both situations are significant because discrimination may create'a chilling effect which could discourage individuals from raising safety issues. Such an environment cannot be tolerated if licensees are to fulfill their responsibility to protect the public health and safety. Thus, licensee management must avoid actions that
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A Executive Director for Operations i U.S. Nuclear Regulatory Commission ,
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i 2.206 Petition /FPL '
March 7, 1994 Page No. 6 l
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} discriminate against individuals for raising safety concerns, and must promptly and l effectively remedy actions that constitute i j discrimination...Therefore, to emphasize the !
j importance of maintaining an environment in
- i. which employees are free to provide information or raise safety concerns without j fear of retaliation or discrimination, I have
- been authorized, after consultation with the i Director, Office of Enforcement, and the i
Deputy Executive Director for Nuclear Reactor Regulation, Regional Operations & Research, j to issue the enclosed Notice of Violation and 4
' Proposed Imposition of Civil Penalties in accordance with the " General statement of I
Policy and Procedure for NRC - Enforcement l Actions" (Enforcement Policy), 10 CFR Part 2, s
Appendix C..."
i (i) The NRC is required to take the actions requested in this petition. The NRC has a mandated duty and ,
responsibility to ensure that licensee employerc !
! maintain a work environment which encourages '
l employees to raise safety issues. See, e.g., 55 l Fed. Reg. 10397, 10402 (Mar. 11, 1990). See also, Ellison v Brady, 924 F.2d 872 (9th Cir. 1991).
j have been dissuaded Licensee employees from l 1 raising safety issues concerning operations at l
l Turkey Point to the NRC because of FPL's ;
continuing retaliation against employees who do !
l so. Since Petitioner's termination from Turkey l Point in December of 1988, numerous other employees have_ filed DOL complaints under the ERA I
! against FPL complaining of retaliation for raising j safety issues about Turkey Point.
i (i.e. Richard Robaines and Terry Dysert and others).
I (j) The Licensee's interrogations of Petitioner about his
- j. protected activity in 1988 were illegal conduct under the law and j NRC regulations under Title 10 of the Code of Federal j Regulations. In Case No. 89-ERA-7/17 (consolidated), is
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U.S. Nuclear Regulatory Commission 2.206 Petition /FPL March 7, 1994 Page No. 7 a
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uncontested that on two occasions ' petitioner l refused to tell Odom, an FPL vice president,
- safety concerns that everyone involved knew had already been reported by Petitioner to the NRC.
l (i.e. DeMiranda and Jenkins and other NRC i officials).
t As a matter -of law, an employee's ,
' refusal to tell an employer about safety concerns >
communicated to the NRC cannot be considered
- insubordination. See, CRB at p.10.
)
- (k) The ALJ considered Petitioner's conduct to be 4
" insolent", " contemptuous" and " insubordinate" for I j refusing to be interrogated about his safety I
! concerns by an FPL vice president and for j
allegedly refusing to be examined by a company doctor after he returned to work from sick leave.
4 The ALJ's conclusion violates precedent of the j Secretary which states that:
i i "... employees engaged in statutorily-protected i activity may not be disciplined for
- insubordination so long as the " activity i (claimed to be insubordinate) is lawful and the j character of the conduct is not indefensible in its context." The right to engage in
- ' statutorily-protected activity permits some leeway for impulsive behavior, which is
- balanced against the employer's right to
! maintain order and respect in its business by correcting insubordinate acts. A key inquiry i is whether the employee has upset the balance j that must be maintained between protected activity and shop discipline. The issue of I whether an employee's actions are indefensible
+
under the circumstances turns on the i distinctive facts of the case..." See, 1 Kenneway v. Matlack, Inc., Case No. 88-STA-20, l slip op. of SOL, at 6-7 (June 15, 1989). l Case No. 89-ERA-7/17 (consolidated) is not a case j where the complainant shouted obscenities at j management, openly defied work orders or otherwise i
f i
i
i Executive Director for Operations U.S. Nuclear Regulatory Commission 2.206 Petition /FPL March 7, 1994 Page No. 8 actively disrupted the work place. In deed, while l FPL management was trying to "get rid" of complainant after May, 1988, by contrast, l complainant's immediate supervisor had a positive I impression of complainant's work performance and protected activities. Steven Greg Verhoeven testified that complainant was " safety conscious",
his safety concerns were " legitimate" and that he was correct "90 per cent" of the time.
Additionally, although complainant raised numerous safety concerns his immediate supervisor did not consider them to be disruptive. See, CRB at p.ll.
- 4. The NRC has enacted regulations to ensure that licensees cannot interfere with communications between licensee employees, like Petitioner, and NRC officials.
See, e.g., 10 C.F.R. 19. The NRC maintains that employees and NRC inspectors r ty communicate privately without interference from licensee employers as follows:
(a) Commission inspectors may consult privately with workers concerning matters of occupational l radiation protection and other matters related to I applicable provisions of Commission regulations and licenses to the extent the inspectors deem necessary for the conduct of an effective and thorough inspection.
(b) During the course of an inspection any worker may bring privately to the attention of the inspectors, either orally or in writing, any past or present condition which he has reason to believe may have contributed to or caused any violation of the act, the regulations in this chapter, or license condition... 10 C.F.R. 19.15 (emphasis added).
If the NRC fails to challenge FPL's position (i.e. by filing an amicus curia brief in this case), that employees should be " required to disclose... nuclear
Executive Director for Operations U.S. Nuclear Regulatory Commission 2.206 Petition /FPL March 7, 1994 Page No. 9 safety concerns to the licensee" (see, Respondent's Reply brief at 16), the NRC will contradict its own policies and regulations that expressly recognize the j right of employees to bypass management and report j
their concerns to the NRC directly. NRC Form 3 informs employees that they may contact the NRC directly without first reporting safety concerns to their employers. See, CRB at p.12.
- 5. The NRC has expressly defined " protected activities" under the ERA and NRC regulations at 10 C.F.R. 50.7(a) to include, but are not limited, *.o:
} (i) Providing the Commission information about
, possible violations of requirements imposed under [the ERA or the Atomic Energy Act);
a (ii) Requesting the Commission to institute action against his or her employer for the administration or enforcement of these requirements; (iii) Testifying in any Commission proceeding.
i
- 6. The interrogation of an employee about safety concerns
- he or she has communicated to the NRC constitutes dfscrimination under Section 210 and (now Section 211) of the ERA. See, C
- ?B at p.15-22.
]
- 7. The Licensee's request that Petitioner be examined by a company doctor in Case No. 89-ERA-7/17 (consolidated) was not justified and FPL did not prove that Petitioner was insubordinate. See, CRB at p.23-27.
4 8. The Licensee's disparate treatment of Petitioner was illegal and must be challenged by the NRC. See, CRB at p.28-30.
- 9. NRC regulations at 10 C.F.R. 50.9 provide that the DOL .
process is, in fact, an extension of the NRC's authority. Thus, the NRC is required to act on the requests set forth in this petition.
i Executive Director for Operations U.S. Nuclear Regulatory Commission
, 2.206 Petition /FPL March 7, 1994 Page No. 10 WHEREFORE, premises considered, the licensee cannot demonstrate to the NRC reasonable assurance that the Licensee did not illegally retaliate against Petition in terminating Petitioner's employment at Turkey Point in December of 1988, for i Petitioner having engaged in " protected activity" or that a '
" chilling effect" does not exist at the Turkey Point and/or the ,
St. Lucie nuclear facilities. Accordingly, it is appropriate for I the NRC to consider this petition under 10 C.F.R. 2.206 wherein the Petitioner has set forth the facts that constitute the basis I for the request. See, Philadelphia Electric Company (Limerick l Generating Station, Units 1 & 2), DD 85-11, 22 NRC 149, 154 (1985).
Respectfully submitted, l For the Environment, l C;:,
Thomas J. Taporito, Jr.
Post Office Box 7603 Jupiter, FL 33468-7603 Voice / FAX <>407-745-2118 cc: Hon. Joseph I. Lieberman Chairman, subcommittee on Clean Air and Nuclear Regulation United States Senate l Committee on Environment and Public Works Washington, D.C. 20510-6175 Hon. David Williams Inspector General U.S. Nuclear Regulatory Commission Office of the Inspector General Washington, D.C. 20500 Oscar DeMiranda, SACRII U.S. Nuclear Regulatory Commission 101 Marietta St., N.W., #2900 Atlanta, GA 30323 i