ML17266A466

Discusses Gf Landegger 810529 Ltr to NRC in Which Parsons & Whittemore Claim Title to Resource Recovery Plant.Ltr Should Not Be Entertained or Acted Upon.Ltr Withholds Matl Facts.Certificate of Svc Encl

ML17266A466
Person / Time
Site:	Saint Lucie
Issue date:	06/10/1981
From:	Bouknight J FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Chilk S NRC COMMISSION (OCM)
References
ISSUANCES-A, NUDOCS 8106120311
Download: ML17266A466 (6)

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LAW OFFICES LOWEHSTEIV, NENZLh&, REIS 8c AXELRAD IO2S CONNECTICUT AVENUE> N. W.

ROBERT LOWCNSTCIN JACK R. NLWHAN WASHINGTON> 0. C. 20036 HAROLD F. REI5 HAURICC AXCLRAD 202 862-8400

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KATHLCCN H, 5HCA J. A. BOUKNIOHT. JR.

HICHACL A. BAUSCR DOUGLAS B. ORECN C. ORCBORY BARNCS ALBERT V. CARR, JR. June 10, 1981 ANNE W. COTTINGHAH KATHLCCN A COX ROBERT H.CULP ~

PETER O. FLYNN STEVEN P.'RANTZ IIQPIJJ@

FREDERIC S BRAY ALVIN H. OUTTCRHAN DAVID 0 POWCLL+ ~ 198 ~"WHY DAVID B. RASKIN usHRC DONALD J. SILVCRHAN

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0,'i'c in- 5 Sst ice Branch Mr. Samuel J. Chilk Secretary of the Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555 Re: Letter of Mr. George F. Landegger, President,, Parsons & Whittemore, Inc.

Dear Mr. Chilk:

This letter is made necessary by the submittal to the Commission of a communication dated May 29, 1981 from G.F.

Landegger, on behalf of Parsons & Whittemore, Inc. and its subsidiary [P&W], a copy of which was recently received by the undersigned. In that letter, P&W claims that it "holds

. title" tgh "resource recovery plant" for processing sewage in Miami, Florida and that in declining to accede to various demands concerning that plant by P&W, Florida Power & Light Company [FPL] has somehow denied P&W NNRC-conferred rights" and violated the license conditions approved by the Licensing Board in Docket No. 50-389K vis-a-vis FPL's St. Lucie Plant, Unit No. 2.

There is no basis in the NRC's regulations for the Commission to entertain this letter or to act iri response to it. Moreover, P&W's letter not only hurls charges which a e demonstrably untrue, it withholds the material facts adverse to its allegations to such a degree that FPL feels compelled to apprise the Commission, with this brief response, of at least a few of the pertinent facts P&W omits:

1.. P&W's letter fails to inform the Commission that P&W has raised allegations based on the same set of alleged facts in two proceedings pending before the NRC. P&W has filed ggP

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LO%'EPSTEIN NEWMAN, Rzxs &

Mr. Samuel J. Chilk June 10, 1981 Page Two Petitions to Intervene in both the St. Lucie Unit No. 2 operating license proceeding, Docket No. 50-389-OL and the on-going antitrust proceeding Docket No. 50-389A.

P&W's petition was properly denied in the operating license proceeding by Order dated June 3, 1981."/

2. As is the case with other filings that P&W has made to %he Licensing Boards in the proceedings noted above, its letter 'fails to inform the Commission that contracts exist which deprive P&W of any valid legal interest in the "re-source recovery plant." In fact, P&W is acting in disregard of its own contractual obligations concerning that plant and in interference with the legal rights of FPL and the municipal-ity of Dade County, Florida. A brief description of the facts, to the'extent FPL has discovered them over P&W's resistance, may illuminate why they were not voluntarily disclosed -- they belie P&W's assertions.

P&W is apparently a construction company; it is under contract to construct the resource recovery plant for Dade County, Florida. The plant involves both a solid waste processing facility and an electric generator which is sup-posed to produce electricity from the steam raised in the solid waste disposal process. P&W's letter, and its prior pleadings, neglect to disclose to the Commission that FPL's expressed reason for refusing to accede to P&W's demands was the existence of a binding contract between FPL and Dade County, Florida, which vests in FPL the legal right to own, operate, and produce electricity from the part of the plant which is designed to produce electricity. FPL understands Shat Dade County is entitled to own and use the solid waste processing part of the facility. FPL's counsel is informed that there exists another contract, an "Assumption Agreement" between P&W and Dade County (which P&W has also failed to disclose to th'e Commission in any of its submissions) in which P&W apparently has assumed the obligations of Dade County to FPL and has itself confirmed that FPL has the legal right to the generating fac-ility.~*/ These facts defeat any claim on P&W's part to a law-ful right to control, ownership, or operation of the facility.

"/ The Petition, submitted however, its 'letter to was still pending the Commission.

at the time P&W

"*/ See, Application for Issuance of Subpoenas, dated May 8, 1981, addressed to the Atomic Safety and Licensing Board in Docket No. 50-389A.

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U Mr. Samuel J. Chilk June 10, .1981 Page Three None of these facts has been brought to the attention of the Commission or any Atomic Safety and Licensing Board by P&W. Indeed, before the Licensing Board in Docket No.

50-389A, PGW has vigorously resisted discovery into the basis of its assertions concerning the generator in question, and has argued that the Board should grant its petition to intervene whether its assertions are true or not."/

3. In asserting in its letter that it is a "qualifying facility" within the meaning of the Public Utilities Regulatory Policy Act, PGW did not mention that it has filed an appli-cation with the Federal Energy Regulatory Commission asserting such qualifications, that FPL has opposed the application and that FERC has not yet acted. FPL believes that application will be denied. FPL is in full compliance and intends to continue to comply with FERC regulations concerning qualifying faci ities, as well as with the license conditions imposed, by this Commission.

4. In its letter P&W claims that FPL is responsible for the "resource recovery plant" not, being currently used to generate electricity. That misstates the facts. Assuming the plant vill ope ate, an assumption that is subject to con-siderable doubt,*"/,.then...the reason- it .is not in operation now is that P&W Eas reneged on its o'utstand7ng contractual obligations. All that, would be necessary for the plant to begin"generating-electricity would be for P&W to comply with its commitments to transfer possession of the plant'to Dade County and FPL so that could be made to work and it if can be operated. If the facility P&W were truly motivated by the lofty national policy considerations it cites, and not by its own gain, FPL could begin promptly to generate electricity from

~/ See Brief of Parsons 6 Whittemore, Inc. and its Subsidiaries in Opposition to Application for Issuance of Subpoenas, dated June 1, 1981, in Docket No. 50-389A.

""'/ According to a Complaint filed against PGW by Metropolitan Dade County, Florida, in the United States District Court for the Southern District of Florida, the only previous such plant ever constructed by Parsons & Whittemore has failed to operate properly. Metro olitan Dade Count v.

Parsons a Whittemore, No. 80- 33-Czv. EPS, file Feb. 8, 981, Paras, 53-54. Accordingly, the County, which has dedicated to the project $ 128 million, the virtual entirety of its solid waste disposal funding, now fears that fruitlessly "exhausted all the funds available and" set it has aside for provision of necessary waste treatment. Para.

56(d) .

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Mr. Samuel J. Chilk June 10, .1981 Page Four the facility pursuant to its lawful right to do so. dis- And Dade County could equally promptly obtain the waste posal facilities which it needs. ,Instead, it is clear that P&W's motivation is considerably more materialistic than altruistic. FPL believes that P&W's objective, in flooding the NRC with its papers, is to gain leverage which (it hopes) will aid it in extracting (from Dade County and FPL) more money than it is entitled to under its contract.

In sum, there is no merit to P&W's complaint, and, more-over, P&W comes before the Commission with unclean hands. It has, by now on several occasions, submitted pleadings with significant omissions to the Commission and its instrumental-ities. The facts which'P&W have chosen not to disclose reveal commercial conduct on P&W's part which FPL believes should not be,. and will not be, found acceptable by any court or agency.

FPL believes that P&W's assertions have no relevance or materiality in any proceeding "before this Commission. However, if the Commission intends to consider any action based on P&W's letter, FPL respectfully requests the opportunity to present to the Commission a complete response.

Respectfuiiy submitted,

.A. Bouknight, Jr.

ttorney for Florida Power &

JAB/ar Light Company cc: Service List Mr. Merrett Stierheim

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~f UNITED STATES OF AMERICA bOCK~

NUCLEAR REGULATORY COMMISSION USMPC HUM $ 9 )98), >

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD! ~)

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FLORIDA POWER & LIGHT COMPANY ) Docket. No. 50-389A (St. Lucie Plant, Unit No. 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of letter to Samuel J. Chilk, U.S. Nuclear Regulatory Commission re letter of George F. Landegger, President, Parsons & Whittemore, Inc.

'was served by hand delivery

• or by deposit in the U.S. Mail, first class, postage prepaid this 10thday of June, 1981.

Ivan W. Smith, Esquire Atomic Safety and Licensing Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory U. S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555 Robert M. Lazo, Esquire Robert E. Bathen Atomic Sa'fety and Licensing Board Fred Saffer U. S . Nucle'ar. . R.W: Beck,.& Associates D.C.

Regulatory;-Commission'ashington, 20555 P.O. Box 6817 Orlando, Florida 32803 Michael A. Duggan, Esquire College of Business Administration Robert A. Jablon, Esquire University of Texas Alan J. Roth, Esquire Austin, Texas 78712 2600 Virginia Avenue, N.W.

Washington, D.C. 20037 Docketing and Service Branch Office of the Secretary William C. Wise, Esquire U.S. Nuclear Regulatory Commission Suite 500 Washington, D.C. 20555 1200 18th Street, N.W-Washington, D.C. 20036 Jerome Saltzman, Chief Antitrust & Indemnity Group William H. Chandler, Esquire U.S. Nuclear Regulatory Commission Chandler, O'Neal, Avera, Washington, D.C. 20555 Gray & Stripling Post Office Drawer 0 Thomas Gurney, Sr., Esquire Gainesville, Florida 32602 203 North Magnolia Avenue Orlando, Florida 32802

Janet Urban, Esquire H. Vogler I.'enjamin P.O. Box 14141 U.S. Nuclear Regulatory Washington, D.C. 20044 Commission Washington, D.C. 20555 Donald A. Kaplan,'squire Robert Fabrikant, Esquire

• George R. Kucik, Esquire Antitrust Division Mare Gary, Esquire U.S. Department of Justice Ellen E. Sward, Esquire Washington, D.CD 20530 Arent, Fox, Kintner, Plotkin 6 Kahn

.* Joseph Rutberg, Esquire 1815 H Street, N.W.

Lee Scott Dewey, Esquire Washington, D.C. 20006 Fredric D. Chanania, Esquire Counsel for NRC Staff Ann P. Hodgdon, Esquire U.S. Nuclear Regulatory Commission - Office-'of the Executive Legal Washington, D.C. 20555 Director Charles R.P. Brown, Esquire U;S. Nuclear Regulatory Brown, Paxton and Williams Commission 301 South 6th Street Washington, D.C. 20555 P.O. Box 1418 Fort Pierce, Florida 33450 Richard S. Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U. S. Nuclear Regulatory. Commission Washington, D. C. 20555 8.A. Bo knight, Jr.

owenstein, Newman, Reis 6. Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 862-8400 DATED: June 10, 1981