ML17209B244

Notice of Appeal of ASLB 810603 Order Denying Parsons & Whittemore,Inc & Resources Recovery,Inc Petition to Intervene & Request for Hearing.Brief Supporting Appeal & Certificate of Svc Encl

ML17209B244
Person / Time
Site:	Saint Lucie
Issue date:	06/15/1981
From:	Kucik G, Sward E ARENT, FOX, KINTNER, PLOTKIN & KAHN, PARSONS & WHITTEMORE
To:
References
ISSUANCES-OL, NUDOCS 8106170227
Download: ML17209B244 (15)

Text

0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COLL~:ISSION B" "ORE H" ATOMIC S.." ETY AND L 'ENSING F PPEAL BO.'D

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In the i~fatter of )

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FLORIDA PONER & LIGHT COMPANY ) Docket No. 50-(St. Lucie Plant, Unit No. 2) gap/pp Jgjy NOTICE OF APPEAL n Pursuant to 10 C.F.R. 52.714a, petitioners P "

Nhittemore, Inc. and Resources Recovery (Dade County), Inc.

appeal from the June 3, 1981 order of the Atomic Safety and Licensing Board denying their petition for leave to intervene and request for hearing in the captioned proceeding. The order was docketed and served on June 4. In support of this appeal, petitioners attach a brief as required by 10 C.F.R.

52. 714a (a) .

Respectfully submitted, George . Kuci qq> q g >act > El en E. Sward 5,

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Q~~LgtiQR 4 ~ Arent, Fox, Kintner, Plotkin 1815 H Street, N.tf.

6 Kahn 6' Washington, D.C. 20006 Telephone: (202) 857-6000 Counsel for Petitioners June 15, 1981

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LXCENSING APPEAL BOARD Xn the Matter of )

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FLORXDA POWER 6 LIGHT COMPANY ) Docket No. 50-389 OL

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(St. Lucie Plant, Unit. No. 2) )

BRIEF OF PARSONS 6 WHXTTEMORE, XNC . AND RESOURCES RECOVERY (DADE COUNTY), INC.

IN SUPPORT OF THEIR APPEAL FROM DENXAL OF THEIR XNTERVENTION PETXTION AND REQUEST FOR HEARING Parsons s Whittemore,. Inc. (PGW) and Resources Recovery (Dade County), Inc. (RRD) petitione'd-for leave to intervene in this proceeding for issuance of a license to operate Florida Power 6 Light, Company's St. Lucie Plant, Unit No. 2. The peti'tion was denied on June 3, 1981 on...

the ground that petitioners sought to raise only antitrust issues before a Licensing Board that was constituted to

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onl'y health, safety and environmental issues. 1/'onsider Pursuant to 10 C.F.R. 52'.714a, petitioners have appealed from 1

this order of denial.

The Federal Register notice under which peti'tioners sought to intervene did not, by its terms, limit the justiciable 1/ The Licensing Board's June 3 order denying intervention was served on petitioners the next day, June 4.

issues to health, safety and environmental matters. Moreover, the Board's order focused only on the antitrust aspects of petitioners'leading, ignoring petitioners'xpressed concern with protection of their rights under the Public Utility Regulatory Policies Act of 1978 (PURPA) (Petition, pp. 4-6).. Those rights have been adversely affected by a settlement agreement. entered into in the companion construction license proceeding, Docket No. 50-389A, involving St.

LucieNo. 2. Our petition to intervene in that proceeding is presently pending'. That petition raises the same PURPA and antitrust issues that petitioners seek to raise in this operating license proceeding.

Petitioners have noticed the instant appeal to protect their right to be heard by the NRC on the important issues that they have raised. Should the NRC decline to hear and address the 'merits of petitioners'ontentions in either proceeding, we would contend that the NRC had violated its statutory obligations as well as the due process clause of the Constitution. That issue, however, is not ripe for decision at this time, since the construction licensing intervention pleading has not yet been J

decided.

We respectfully submit, in these circumstances, that it would be appropriate for this Appeal Board to docket petitioners'ppeal but defer action upon it until after the Licensing Board decision in the construction licensing proceeding.

That decision might make it unnecessary for petitioners to pursue this appeal. The policy against piecemeal litigation, in any event, commends the idea that the Appeal Board should not rule upon the instant appeal without having the benefit of the Licensing Board's decision in the pehding companion .

matter. We will undertake to notify the Appeal Board of that decision promptly after it is rendered, and to apprise the Board of our. vi'ews as to its effect on the instant appeal.

BACKGROUND Petitioners own and operate a solid waste processing plant in Dade County, Florida. .The plant converts solid waste into refuse-derived fuel, and burns it to produce. steam, which.

is then converted,.into electric energy., This facility.'is complete and ready to begin. generating electricity from. waste.

On March 9,, 1981, a notice of receipt of an application for a facility operating license for FPGL.'s St. Lucie Unit No. 2, nuclear facility was published in the Federal Register, 46 Fed. Reg. 15831-32. The notice stated that the Commission

'ould consider 'issuing a license "which would authorize [FPGL]

to possess, use and operate the St. Lucie Plant, Unit. 2 in accordance with the provis'ions of th'e ['construction] license

[Emphasis added.] The notice further .stated that the Commission would have to find, prior to issuing an operating ~

license, that the application "complies with the requirements

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of the Atomic Energy Act of 1954, as amended, and the Commission's regulations in 10 C.F.R. Chapter l." Following its description of the proceeding, the Notice invited "any person whose interest may be affected by this proceeding [to] file a petition'or leave to int'ervene."

On April 7', 1981, petitioners filed a timely petition for leave to intervene and request for a limited antitrust hearing, alleging that issuance of the operating license (1) would create or maintain a situation inconsistent with the antitrust, laws in violation of the Atomic Energy Act, 42 U.S.C. 52135, and (2) would adversely affect their rights under the Public Utility Regulatory Policies Act of 1978 (PURPA). Petitioners were mostly concerned with Section X of a settlement agreement 2/

negotiated in the St. Lucie Unit 2,construction license proceeding.

The Construction Licensing Board issued an order on April 24, 1981, making the settlement agreement immediately effective without prejudice to the NRC's right "to impose different or additional conditions after a hearing" (Memorandum and Order, p. 1 and p. 3 at fn'. 2) .

The NRC Staff responded to petitioners'ntervention pleadings on April 22, 1981, asserting that the Board lacked jurisdiction to entertain the 'petition because it sought to

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2/ That agreement, for ex'ample, obligated FPGL to transmit electricity on behalf of small power producers within the meaning of PURPA, such as. petitioners, but allowed FPGL to condition the trans-mission in an unfair and discriminatory manner.

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raise only antitrust issues. The Staff argued the Board was constituted to hear health, safety and environmental issues only and could not consider antitrust claims. FPGL respon'ded to the Petition on May 6, asserting the same jurisdictional defense and'raising other issues not relevant to this appeal.

Petitioners then moved for leave to answer the opposition pleadings of FPSL and the NRC Staff. Permission to answer was denied on May 22, with the Board ruling that "it has sufficient information to consider the petition . . ." (Order, p. 2).

Thereafter, on June 3, the Board denied the petition, adopting the jurisdictional argument that petitioners had been denied an opportunity to answer.

For the reasons explained below, petitioners respectfully request that. the Licensing Board.'s June' order be reversed and set and,that this matter be remanded to the Board with instructions I'side to grant the petition for leave to intervene and request for hearing.

ARGUMENT A. THE COMMISSXON'S FEDERAL REGXSTER NOTXCE OF THE

'OPERATXNG..LICENSE PROCEEDXNG..DXD. NOT. EXCLUDE

ANTXTRUST, ISSUES'ROM THE AMBIT OF THE PROCEEDING The Licensing Board has ruled that the notice 'unde'r which. petitioners seek to intervene related exclusively to health, safety and environmental issues. That ruling, we contend, is erroneous.

The March 9 notice under which petitioner sought to intervene does not exclude antitrust issues. Rather, the operative intervention language is all-encompassing, inviting participation by "an erson whose interest may be affected b this roceedin

[Emphasis added.] The notice, moreover, does not expressly state tnat the proceeding is limited to consideration of health, safety and environmental issues. Here, too, the substantive issue framed 3/'ee by the notice is all-encompassing: whether a facility operating license should be issued. Antitrust issues must necessary.ly be considered by the Board in deciding whether such a license shall issue and under what circumstances and conditions. 42 U.S.C.

52l35 (c) .

Antitrust. considerations are of particular relevance in this matter, because the Federal Register notice specifically stated that the ultimate issue is whether @PEAL should be allowed to operate the St. Lucie Plant "in accordance with the rovisions of the [constructs.o n ] lz.'cense One p rovision of the construction license, currently in effect under the".:Board's April 24 order, is that FPGL transmit electricity for neighboring entities and qualifying PURPA'acilities. .The explicit purpose of this condition, is to mitigate negative antitrust implications (see the April 24 Order at, e.cC., pp. 3 fn. 2). Thus, antitrust issues must be relevant in the operating license proceeding.

3/ The Commission's Regulatory Guide 9.3 states Commission policy on what information will be considered in making this:statutory review of antitrust implications at the operating'l~icense stage.

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S Beyond this, the notice's neglect to mention antitrust issues is a violation of the Commission ' Statement o f General Policy and Procedure, l0 C.F.R., Part 2, App. A.Section X of that Appendix requires that the Commission's notice of receipt of application (for operating licenses as well as their construction counterparts) establish a procedure for raising antitrust issues. Specifically,Section X provides that the notice will state that persons who wish to have their views on the antitrust aspects of the application presented to the Attorney General for consideration shall submit such views to the Commission within sixty.

(60) days. [Emphasis added.]

No such statement appears in the March 9 notice; nor does the notice state that no opportunity to raise antitrust issues will be afforded, or that such an opportunity will be afforded at a later date. Antitrust issues are. simply ignored by the notice.

Furthermore,Section X(e) of the Statement. of General Policy.

and Procedure states that antitrust hearings will "generally" be held separately from hearings on radiological health and safety and common defense and security; therefore, separation of issues is not an absolute requirement.

Xn sum, the operative Federal Register notice, coupled with the NRC's preexisting policy statements, indicated that antitrust issues were to be open for consideration in this proceeding. Tf the Commission did not intend this result, its notice was defective.

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B. THE ORDER BELOW IMPROPERLY FAILED TO ADDRESS PETITIONERS'ECOND GROUND FOR'INTERVENTION--

THE ADVERSE EFFECT ON THEIR" PURPA'IGHTS sought to intervene not only on antitrust

'etitioners grounds but to protect their .rights under PURPA as, well. PURPA insures that small power-producing facilities shall have a market for their electricity by requiring that utilities, such as FPGL, purchase that electrici'ty at the utilities'voided costs. And the, settlement agreement in the construction license proceeding specifically deals with,PURPA facilities, in Section X. The Licensing Board erred by denying the petition to intervene without mentioning this aspect of'petitioners'nterest in the proceeding.=4g It must be emphasized that petitioners'eed to protect their PURPA rights before the NRC stems not from anything that 1 I petitioners have done or failed to do. Intervention is necessary at this time because of the earlier decision of FPGL, the NRC Staff and the Department',of Justice to cover PURPA facilities in the settlement agreement, without Federal Register notice and an opportunity for interested persons to be heard. The Licensing Board's continued 'failure to, allow petitioners to .be heard

, 4/ The rights of PURPA facilities under the settlement are less extensive than the rights of facilities which have not qualified under PURPA. That is one reason why petitioners'ights 'are adversely affected by the Section X conditions of the settlement agreement which became effective on April 24.

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in their capacity as .a qualifying PURPA facility is erroneous as a matter of law.

CONCLUS ION Petitioners'ppeal should be granted and the June 3, 1981, order of Atomic Safety and Licensing Board should be reversed and set aside. The matter should be remanded 'to the Board with instructions to grant petitioners'pril 7, 1981, petition to intervene and request for hearing.

Respectfully submitted, George R. Kucik E en E. Swar Arent, Fox,, Kintner, Plotkin 6 Kahn 1815 H Street, N.W.

Washington', D.C. 20006 Telephone:'(202) 857-,6000 Counsel for Petitioners

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June 15, 1981

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMXSSXON BEFORE THE ATOMIC SAFETY AND LXCENSING APPEAL BOARD Xn the Matter o f )

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FLORIDA POWER 6 LXGHT COMPANY ) Docket No. 50-389 OL

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(St. Lucie Plant, Unit No. 2) )

I hereby certify that copies of the foregoing Notice of Appeal and Brief of Parsons 6 Whittemore, Xnc. and Resources Recovery (Dade County), Inc. in Support of Appeal from Denial of Their Intervention Petition were served upon the following persons via first class mail or by hand* p osta g e p re p aid, this /5 th day of June, 1981.

Xvan W. Smith, Esquire Argil L. Toalston, Acting Chief Chairman Utility Finance Branch Commission Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Dr. Peter A. Morris Robert M. Lazo, Esquire Atomic Safety and Licensing Atomic Safety and Licensing Board Board Panel U.S.'uclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 Michael A. Duggan, Esquire Michael C. Farrar, Esquire College of Business Administration Chairman University of Texas Atomic Safety and Licensing Appeal Austin, Texas 78712 Board Panel U.B. Nuclear Regulatory Commission Elizabeth S. Bowers, Chairman Washington, D.C. 20555 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Dr. Oscar H. Paris Washington, D.C. 20555 Atomic Safety and Licensing Board Panel William D. Paton, Esquire U.S. Nuclear Regulatory Commission Counsel for NRC Staff Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 *Docketing and Service Section Office of the Secretary Peter G. Crane, Esquire U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jerome Saltzman, Chief Antitrust 6 Indemnity Group U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Atomic Safety and Licensing Board William C. Wise, Esquire U.S. Nuclear Regulatory Commission Suite 500 Washington, D.C. 20555 1200 18th Street, N.W.

Washington, D.C. 20036 Richard S. Saltzman, Esquire Atomic Safety and Licensing Appeal William H. Chandler, Esquire Board Panel Chandler, O'Neal, Avera, U.S. Nuclear Regulatory Commission Gray 6 Stripling Washington, D.C. 20555 Post Office Drawer 0 Gainesville, Florida 32602 Mr. Harold Denton Director of Nuclear Reactor Janet Urban, Esquire Regulation U.S. Department of Justice U.S.'Nuclear Regulatory Commission P. O. Box 14141 Washington, D.C. 20555 Washington, D.C. 20044 Joseph Rutberg, Esquire Donald A. Kaplan, Esquire Lee Scott Dewey, Esquire Robert Fabrikant, Esquire Fredric D. Chanania, Esquire Antitrust Division Counsel for NRC Staff U.S. Department of Justice U.S. Nuclear Regulatory Commission Washington, D.C. 20530 Washington, D.C. 20555 Charles R. P. Brown, Esquire Ann P. Hodgdon, Esquire Brown, Paxton and Williams Office of the Executive Legal 301 South 6th Street Director P. 0. Box 1418 U.S. Nuclear Regulatory Commission Fort Pierce, Florida 33450 Washington, D.C. 20555 Helen Shea Wells Thomas Gurney, Sr., Esquire 93 El Mar Drive 203 North Magnolia Avenue Jensen Beach, Florida 33457 Orlando, Florida 32802

• J. A. Bouknight, Jr., Esquire.

Robert E. Bathen Douglas G. Green, Esquire Fred Saffer Lowenstein, Newman, Reis R. W. Beck 6 Associates 6 Axelrad.

P. O. Box 6817 1025 Connecticut Avenue, N.W.

Orlando, Florida 32803 Washington, D.C.

20036'eorge Spiegel, Esquire *Herbert Dym, Esquire Robert. Jablon, Esquire Covington s Burling Alan J. Roth, Esquire 888 16th Street, N.W.

Daniel Guttman, Esquire Washington, D.C. 20006 Spiegel & McDiarmid 2600 Virginia Avenue, N.W. Atomic Safety and Licensing Appeal Washington, D.C. 20037 Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 One of Counsel for Petitio ers