ML18088A573

Petition for Review

ML18088A573
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	12/16/1977
From:	Jablon R Florida Cities, Spiegel & McDiarmid
To:	Atomic Safety and Licensing Board Panel, Office of Nuclear Reactor Regulation, US Federal Judiciary, District Court for the District of Columbia
References
Download: ML18088A573 (31)

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BXXATZDCOIGKSPONDZNCE dp IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT POCKETED DEC20 1S77 >

Ft. Pierce Utilities Au hority. of the, )

City of Ft. Pierce, )

Gainesville-Alachua Countv Regional '

)

Electric. Water and Sewer Utilities, '

Lake Worth Utilities Authority, '

Utilities Commission of New Smyrna , =)

Beach, ')

Orlando Utili ies Commission, -

-) OOCYTEl >~U<~>~@

Sebring Utilities Commission,':., ) pgpL g, UQQ-"$~g City of Alachua, Florida, -

)

City of Bartow, Florida,,: .',-, )

VSHEq'uclear City of Fort Meade, Florida, ,. . .)

City of Key West, Florida, =

)

ry, Florida, .'-,

City of Newbe )

City of St. Cloud, Florida, ).

City of Florida Tallahassee, Florida,'.

Munic'pal Utilities Association,'

. )

)

Petitioners, )

)

V~ ) No.

)

Regulatory Commission, )

and the United States of America, )

)

Respondents. ")

PETITION FOR REVIEW Pursuant to Section 189(b) of the- Atomic Energy.Act of 1954, 42 U.S.C. 52239(b), and 28 U.S.C. 52342, the Ft.'ierce Utilities Authority of the City, of Ft. Pierce, the Gainesville-Alachua County Regional Electric Water and Sewer Utilities, the Lake Worth Utilities Authority, the Utilities Commission of New Beach, the Orlando Utilities Commission, the Sebring Uti- 'mryna lities Commission, and the Cities of Alachua, Bartow, Fort Meade, 't Key West, Newberry, St. Cloud and Tallahassee, Florida, .and the

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Florida Municipal Utilities Association ("Florida Cities" ). re-spectfully petition this Court for review of the Decision is-sued on August 23,= 1977, by an Atomic Safety and Licensing Ap-I peal Board of the Nuclear Regulatory Commission in Florida Power h . ( . *' .

1). R . 50- 35 and:(Turkey Point Plant, Units No. 3 and No. 4), Docket Nos.

50<<250A and 50-251A, ALAB-428, a copy of which is attached hereto (Attachment A) .

On September 8,. 1977, Florida Cities petitioned the N'uclear Regulatory Commission for review of the Atomic Safety and 'Licensing Appeal Board's August 23, 1977 Decision, pursuant to Section 2.786 of the Commission's Rules of Practice, 10 C..F.R.

E 52.786. Zn its Order of October 25, 1977, the Commission de-clined to review ALAB-428, thus making its Appeal Board's action final and reviewable by this Court under 28 U.S.C. $ 2343.

A copy of the Commission's October 25, 1977 Orde'r is attached hereto (Attachment B).

Each of Florida Cities, or its related public authority, owns and operates an electric system for the benefit of its and ratepayers. Nine of the Cities generate some or

'itizens all of the electricity necessary to meet their loads, while the remainder operate distribution systems and purchase their full requirements at wholesale. 1/ The Florida Municipal Utilities gl Alachua, with somewhat more than half a megawatt share of (cont'd, p. 3)

Association is a membership organization of municipally owned electric utilities in Florida, established, among other reasons, to assist in solving problems encountered by such electric systems. Xt sought intervention and a hearing below on behalf of its member cities, and on their behalf seeks review of the Commission' action below.

Florida Power & Light Company ("FP&L") holds the operat-ing licenses for St. Lucie Unit No. 1 and Turkey Point Units No.

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3 and No. 4, which comprise by far the bulk of nuclear generat-ing capacity in Florida. 1/ With the exception of FP&L's St.

Lucie Unit No. 2 presently under construction 2/, no additional nuclear generation is actively being planned for Florida. 3/

(/1 cont'd) Florida Power Corporation's Crystal River Unit the remainder of its requirements from Florida Power No.',

purchases Corporation under a partial requirements wholesale for resale contract.

1/ Florida Power Corporation put its 825 mw nuclear generating unit into commercial operation in March 1977.

2/ Contemporaneously with their Petition to Xntervene and Request for Hearing as to FP&L's St. Lucie Unit No. 1 and Turkey Point.

Units No. 3 and No. 4, Florida Cities sought intervention and a -.

hearing in Florida Power & Liqht'o.. (St. Lucie Plant, Unit No. 2),

Docket No. 50-389A. -The Atomic Safety and Licensing Board to rule on Florida Cities petition granted intervention in-desig-'ated Docket No. 50-389A on April 5, 1977. Xn Nay 1977, the NRC issued FP&L a construction license in that docket subject to any'ondi- .

tions found to be appropriate as a result of the antitrust hear-ing ordered. Although FP&L has commenced construction of St.

Lucie Unit No. 2, the Company has also been vigorously contest-ing the Licensing-Board's decision and the Appeal Board's affir-The matter is now pending before the 'full Commission.

mance thereof.

3/ FP&L filed applications for licenses to construct two (cont'dg p 4)

In addition to FP&L's control over the lion's share of operat-ing nuclear capacity and over all nuclear capacity under con-struction 1/, the Company controls bulk transmission facilities in the State. It serves the largest load in the State; it has described. itself as "the nation's fastest growing electric h

utility." 2/ In its September 1977 financial statement (unaudited),

FP&L reported that "[a]fter providing for estimated revenue re-funds, there was a net increase of 18% in operating revenue for the twelve months ended September 30, 1977 over the same .period for 1976." (p. 3). Florida Power & Light Company enjoys a clear and'undenied position of market power in peninsular Florida.

Moreover, the Company has used 4

its dominant position in Florida to enhance and expand its market control to the anti-

• competitive injury of the smaller publicly'owned electric utili-ties with which it competes. The Department of Justice, in its (g3 cont') nuclear units early in.1976. F1orid'a Power '&'i'ght Co. (South Dade Plant), Docket No. P-636-A. Flora.da Cities .sought and were granted intervention in that docket and 'antitrust pro-ceedings were initiated.. Early in 1977, FP&L announced th'at to postpone the proposed South Dade units and proceed- it'ntended ings in Docket No., P'-'636-A have been. suspended.

1/ Xf the Nuclear Regulatory Commission affirms its Appeal Board's decision in S't. Lucie Unit'o. 2, Docket No. 50-389A (see p. 3, n.

2, ~sn ra), and rf the Lrcensing Beard after hearing orders the St. Lucie license to be conditioned, FP&L would probably in.-some

, way be required to share tike advantages of owning,St. Lucie Unit No. 2 with .its competitors.

2/ November 14, 1973 Advice -Letter of the Department of Justice concerning FP&L's proposed St. Lucie Unit No. 2.

Brief to the Commission filed in t', Lucie Unit No. 2, Docket No. 50-389A, has succinctly described the situation from which Florida Cit'es seek relief:

"In the present case, there is little doubt that suf- *

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ficient allegations have been made against FP&L to constitute a situation inconsistent with the antitrust laws that would be created or maintained by the license activities, if they are proven. FP&L has allegedly denied access to nuclear units to virtually all pub-licly-owned competing electric systems, generally re-fused to wheel, refused specific wheeling reauests, placed unlawful restrictions in wholesale power con-tracts, refused to sell wholesale power on over half.

a dozen occasions, preconditioned the sale of whole.-

sale power on anticompetitive terms, subjected comie-titors to a price squeeze, engaged in illegal t'erri- ..

torial agreements and otherwise denied .competitors access to coordinated operation and development in an attempt to acquire those competing systems. Further-more, the Licensing and Appeal Boards had before them a substantial amount of documentary evidence which de-monstrated that most of the above-noted allegations have a substantial basis in fact and are not frivo-lous. . . ." 1/

In large part, the three nuclear units here at issue provide the means whereby FP&L can, without fear of competitive reprisal, engage in the conduct described by the Department of Justice.

FP&L has a virtual monopoly over nuclear facilities.

It has been using its dominance over 'nuclear and other facili-ties to block smaller systems from alternative power supply sources and ma kets. Its refusals to deal and other anticompetitive 1/ Florida Power & Li ht Co. (St. Lucie Plant, Unit No. 2),

Docket No. 50-389A, "Response of the Department of Justice" (November 11, 1977), at pp. 10-11.

conduct threaten the independent existence of at least some smaller systems. The Nuclear Regulatory Commission has continu-ing jurisdiction under Sections 1, 3, 104, 105, 161, 183 andh 186 of the Atomic Energy Act, 42 U.S.C. 55 2011, 2013, 2134, 2135, 2201, 2233 and 2236, including the authority to revoke a license ". . . for violation of, or failure to observe any,.

of the terms'and provisions of this chapter or of any regulation of the Commission," 42 U.S.C. 52236 (a) .

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The Appea'1 Board below held in ALAS-428 that, since

'he licensing procedures for FP&L's operating. nuclear units have been terminated, the Commission is without jurisdiction to initi-ate antitrust review of its licensee s activities, citing the Commission's June 15, 1977 Memozandum and 0"dez issued in Hous-ton Li htin & Power Comtian, et al. (South Texas Project, Unit Nos. 1 & 2), Docket Nos. 50-498A, and 50-499A. 1/'"

While the facts surrounding the South Te'xas decision are different from those in the instant case in some important respects, the Commission in both cases made its determinations based upon an interpretation of its jurisdiction under the Atomic Energy Act far narrower than intended by Congress, or as ha~ been held previously, by Commission or Courts. The Commission has erroneously interpreted its authority indeed, its responsibilities--

1/ The Commission's South Texas decision is presently on appeal before this Court, docketed as Central Power

'Case Nos. 77-1464 and 77<<1654.,

&'i ht Co. v. NRC,

under the Act and its refusal to even order an evidentiary hear-ing to consider the serious antitrust issues raised by petitioners is abusive of its discretion and an abdication of its antitrust enforcement responsibilities under the Act, contrary to Section 189 of the Atomic Energy Act, 42 U.S.C. 52239, and Section 10 of the Administrative Procedure Act as amended, 5 U.S.C. 55702, 703.

It is clearly within the jurisdiction of the Nuclear Regulatory Commission -itself to consider the antitrust implica-tions of any activities being pursued under its licenses. This Court has held so. Cities of Statesville v.'EC, 441 F.2d 962 (D.C.Cir. 1969).

4 WHEREFORE, for the reasons and grounds stated herein, Florida Cities respectfully petition this Court for review of Decisions issued August 24, 1977, and October 26,, 1977 by the Nuclear Regulatory Commission in Florida Power 6 Li ht Co. (St.

Lucie Plant, Unit No. 1), Docket No. 50-33SA, and (Turkey Point Plant, Units No. 3 6 No. 4), Docket Nos. 50-250A and 50-251A.

Respectfully submitted, Robert A. Jablon Attorney for Florida Cities Law Offices of:

Spiegel & McDiarmid 2600 Virginia Avenue, N.N.

Washington, D .C . 20037 December 16, 1977

0 . 0 ATTAC NT A

@~Au AU6 2-.':;", j UNITED STATES OF A'"~RICA NUCLEAR REGULATORY COa~~i1IS S ION O~g q 7

~o ATOMIC SAFETY AHD LICHENS'ING APPEAL BOARD m I

Alan S. Rosenthal, Chairman O~o>'-'

g(I g~

Richard S. Salzman Jerome E. Sharfman /

)

Zn the Mattex of )

)

FLORIDA PO>T"R AND LIGHT COMPANY ) Docket: No. 50-335A (St. Lucie ?lant, Unit Ho. 1) )

FLORIDA PONER AND LIGHT COMPANY

). Docket Hos. 50-250A

)

(Turkey Point Plant, Units Ho. 3 & 4) ) 50-251A

)

Mr. Alan J. Roth, tlashington, D. C., argued the cause zor the petitioners, Fort Pierce Util'ies Authority, et al., aoaellarats; with h'm on the br'efs were Messrs. Robert A. Jablon and David A. Giacalone, Washington, D. C.

Ness s. J. A. Boukni ht, Jr., washington, D. C., and John =. Mathews, Jr., Jacksorville, Florida, argued the cause and filed a brief xox t:he licensee, Florida Power and .L'he Company, aooellee.

Nr. Ben amin H. Voc3.er argued the cause for the Nuclear Regulatory Commiss'on staff; Messxs. Lee Scott Dewey

'nd Michael D. Jones on the briex.

DECISION August, 23, 1977 (ALAB-42S)

Opinion of the Board bv Mr. Salzman in which Mr. Rosenthal

'pins-. Mr. Shar~man 'o'ns in gart ~".8 concurs in the result:

A number of Flo ida municipal electr'c systems and the Florida Municipal U ilities Association (Florida Cities)

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A appeal from a Licensing Board order denying their joint petition for leave to intervene out of time-and for an antitrust hearing respecting three nuclear power plants. 1/

The plants, owned by the Floz'da Power and Light Company and operated under Commission license, are Unit No. 1 of FP&L's St.'ucie facility and Units No. 3 and 4 of its Turkey Point ~acility. The denial was based on our ruling in. another case that'"a licensing board has not been bestowed with ju isdiction to direct a hea"ing on antitrust matters by a grant of an intervention petition or other-

. wise. .inthe absence of a pending construction permit. or operating license proceeding". Houston. Liahtincr and Powe Co. (South Texas Project, Units 1 and 2), ALAB-381, 5 NRC 582,;592 (1977) . 2/ .

The Conmission has allowed our zuling in ALAS-381 "o

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stand (see unpublished Commission order of March 31,'1977, referred to in CLZ-77-13, 5 NRC (June 15, 1977) (slip LBP-77-.23, 5 NRC 789 (April 5, 1977) . Zn the same order,

'..~-the *LZcensing Board granted Florida Cities'equest for like relief in connection with Unit No..2 of the St. Lucie facility. Re affirmed that action in ALAB-420, 6 NRC (July 12, 1977) (petition for Ccmmission review pending) .

2/ Unlike the three operating reactors unde present con-side at,'on, St. Lucie 2 was the subject of an on-going construction permit proceeding at the t'me the Licensing Boazd entered its April 5 order. For th's reason th Licensing B rd indisputably had the jurisdict'on to grant an ant trust hear.'ng with zespect. to that reactor.

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opinion, p. 8)), and we decline Florida Cities 'nvitation to zeconsider its corx'ectness. Thus, all that the Florida Cities'ppeal requires us to decide is whether the Licen-sing Board jus ifiably concluded that the ruling governs here. Given the fact that the ope ating license proceed-ings for the three reactors were long ago concluded, the answer obviously must be in the affirmative. Xn these circumstances we ordinarily would have simply affirmed the Licensing Board summarily. A superven ng development, how-.

ever, has prompted us to examine a broader question not pre-

" sented to, or decided by, the Board below.

Not content with the prosecution of an appeal to its intervention petit'on for us'rom the denial of want of Licensincr Board juxisdiction to grant it, Florida, Cities moved'efore the Commission for a "cia ification ox pro-cedures." Xntezpneting that motion as seekinc, 'inten alia, a declaratory order regarding "the most appropriate pro-cedural mechanism foz resolution of the Cities'ntitrust allegations respect'ng the St. Lucie and Turkey Point reactoxs," the Commission determined that the issues raised by the motion should be first addressed by either us or the 3/ C13-77-13 is discussed in==a, op. 9-11.

Directo of Nuclear Reactor Regulation. CLI-77-15, 5 NRC g ( June 22, 1 9 77) . Upon the receipt of that ref ezra 1 and the briefs of the respective parties in the .wake of it, we called for and heard oral argument on whether, even though the Licensing Board may lack the authority at this juncture to tr'gger a hearing to explore Florida Cities'ntitrust grievances, such authozity nevertheless resides in the Director of Nuclear Reactor Regulation. 'On' full consideration of the arguments put before us we hold that.

that power is lacking. Particularly in light of the Com-mission's own recent. analysis of -the statutory scheme> we are constrained to conclude that, (with certain exceptions not applicable here) once the operating license proc ed-ings terminated this agency's antitrust responsibilities relating .to these 'reactors came to an end. 4/

4/ Also before us are mot'ons by two of the Florida Cities, Quincy and Daytona Beach, for leave to withdraw.

Quincy's motion is opposed by Florida Power and Light Company.. Insofar as the motions are d'rected to the proceedings now before us. i.e., respecting St. Luc'e Unit No.-l and Turkey Point Units 3 and.4, the motions are dismissed as moot; insofar as leave is sought to withdraw from proceedings involving two other FP&L

..facilities, St. Lucie Unit No. 2 and the Soutn Dade plants, these matters are not-before us and the motions a e therefore denied without prejudice to renewal, before the appropriate Licensing Board.

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The former Atomic Energy Commission licensed the con-struction of all'three nuclea power reactors now before us not as commercial facilities subject to section 103 but. as "xesearch and development" reactors undex section 104b of the Atomic Energy Act of 1954. 5/ Construction permits for them were issued before section 105c of the Act (defining Commission antitxust procedure) was amended to its present form in 1970. At the time. these permits were issued, prelicensing ant't ust review by the Commis-sion was neither4 required nor expected in the case of sect'on 104b projects. Cities of Statesville v. Kc.C, 441 F.2d 962 (D.C. Cir. 1969) . This of. course explains why none was-undertaken fox these th ee reactors.

Florida Cities seize upon these circumstances as a reason why this Commission ought, to considex the antitrust.

charges they now level against the licensee of the plants.

In their view, if antitrust. review is xefused, the Commis-sion will have licensed what are in fact three large ccmmer-cial power plants to operate for 40 years and, Floxida 5/ 42 U.S.C. 552133, 2134(b) .

6/ 42 U.S.C. 52135(c).

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Cities stress, the Commission will have done so without ever having given thought to the resulting anticompetitive ramifications.

Here this a matte of first impression, Florida lightly.

Cit'es'rguments could not be brushed aside One need look'o further than Judge Leventhal's concurxing opinion in Statesville, sunna, 2oz an impsessive collection of authorities or the proposition that (441 F.2d at 987):

a statute providing for 1'censing or other regulation is presumed to petit consideration of antit ~st pzinciples, with the harmonizing approach jus" outlined, unless a contrary intenQ appears expressly ox by necessary impliCation. 7/

Accord: Gulf States Util'ties Co. v. F C, 411 U.S. 747 759-61 (1973) .

But this is not a new matter. The legislative his ory of section 105c relevant to this point was previously perused by us in the "Gxandfather Clause" case. 8/ We there noted that the Congress had considered this class 7/ Neither the majority nor the dissenters in Statesvi le disagreed. See 441 F.2d at 974, and 993-95. And see

'ansas City Gas and Electric Co., (Wolf C eek Gener-ating Station, Unit Vao. 1), ALAB 279' NRC 559'68 (1975) and cases there cited.

8/ The Tol do =c'son Co. (Davis-Besse FTuclear Power Sta 'on, Unit 1), ALAB-323, 3 VRC 331 (1976).

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reactors -- viz., those authorized to be built as research and development projects before the 1970 antitrust amend-ments but which might latex'e determined to possess commer-cial utility when an opexating 1'cense was sought for them-and elect d to exclude them from antitrust review under section 105c (except in limited circumstances not present in this casa). 9/

Florida Cities'esponse is that antitrust review 's nevertheless available before this Commission under section 186a . of the Act. 10/ That section, pertaining to license revocations, provides in pertinent part that 4

Any license may be revoked for any mater'al false statement in the appl'cation ox'ny statem nt of fact reauired under section 182, or because of conditions revealed by such application ox statement of fact or any report, record, o insp'ection o other means which would wa an" the Commission to xefuse to grant a license on an original applica-tion * * * ~

G Florida Cities reason that,'because the Commission may refuse an operating license on antitrust grounds (at least where circumstances change following issuance of the con-struction permit), section 186a empowers it to revoke a license previously granted on those grounds.

9/ See 3 HRC at 340-'41.

10/ 42 U.S.C. 52236(a).

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Even if we assume azcCuenlo that sootion 186a means what Florida Cities assert 't does, their cause is not.

advanced. The nuclear power plants in .question were licensed under section 104b. As we have alreadv explained, by Cong essional mandate antitrust considerations were not grounds for refusing operating licenses to such "resea ch and developmen " facilities.

Florida Cities would get over- this second hu=dle by

.having us g've a "common sense" reading to section 186a that requires us to treat these reactors as what. they really are: viable commercial generating facilities that

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could only be licensed today under section 103. There to be no support fo this reading of the section 'ppears in the legislative history of the Atomic Energy Act and petitioners cite none. Nor is the "meaning" which Flo-ida Cities ascribe to section 186a necessarily so "plain" as they suggest. But even accepting everything they say, no construction of section 186 'need be made here. As we explain in Part IIX, other grounds compel rejection of their contentions. I

3'n its own South Texas decision,11/ the Commission recently cons'dered at length the extent of its authority to hold antitrust hearings. The precise issue in that case involved when an antitrust proceeding under sect'on 105'ay be ordered after a construction pexmit has been issued but'. before the necessary additional license to commence operations has been granted. The Coaanission did not confine its South Texas opinion to that relatively narrow cuestion; instead it chose to address the broad spec~ of NRC antitrust responsibilities. In so doing, I

it manifested the judcment in no uncertain terms Rat the NRC's supervisory antitrust juxisdiction over a nucleax

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reactoz licensee does not extend over the ull 40-year term of the opexat,'ng license but ends at its inception.12/

11/ Houston Li htin and Power Co. (South Texas Project),

CXI-77-13, 5 HRC {June 3.5, 1977) (petition xor

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judicial review pending). This decision was zqt rendered on appeal from ALiB-381 (ou South '2eras ruling, suora) hut in an independent proceeding on a s aff recommenda-tion that an antitrust hearing be convened in that case in the exercise of the Commission s discretion.

'~12 Except pezhaps as necessary to enforce the terms of a license ox to revoke one fraudulently obtained, or in circumstances where a plant is sold or so significantly modified as to recuire a new license. See CLI-77-l3, sun=a, 5 NRC a" (slip opinion at pp. 25-26) .

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10 The Commission said that Congress had no intention of giv.-'ng this Commission authority which could put utilities under a continuing risk of antitrust review.

Had Congress agreed with the proposition that this Commission should 'have broad anti-'st policing powers independent of licensing, tha" erne ged from these discussions the'tatute would have looked quite different. Lit le:

• attention would have been paid to defining a review process. The terminology of 'wo-step all participants in the drafting process would not have been focused so directly on "pre-licensing" review. And, if a broad, ongoing police power in the antitrust area had been assumed, the language in 105(a) authorizing the Commission to act with respect to 1'censes already issued, in light of the ant't=ust find-ings of courts would have been, if not super-ffind that luous f certain ly - edundant. -'. Cons eauent lv., we the Covunission's antitrus authority is defined no= bv the broad powers containe'd in Section 186) but bv the more limited schemes set :orth 'n Sect'on '05.

5 NRC at (footnote omitted, emphasis supplied) (slip opinion at 24)-

Any lingering doubt about. the Commission's view of the limited role Section 186 plays in antitrust matters is put to rest by its further pronouncement in that same case that, on the "question whether Section 186 expands the antitrust hearing settings defined in Section 105, * *

• we find that the generality of Section 186 should be treated as subordinate to the speci ic, limited regime adopted by Congress as recently as the 1970 amendments to the Ac Zd. at 13 T ~

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11-To put tne whole ma"te another way, arguments to this Board about the most="common sensical" way to inter-pret the antitrust provisions of the Atomic Energy Act in general, or section 186 in particular, fall wide of the mark EThether we agree with those arguments or not, they are. made in the wrong forum. Unless and until the Commis-sion elects to modify its South Tevas rulings, or is inst ucted to do so by Congress or the courts, this Board is of course constrained,to apply'hem.

The result for this case is bus ineluctable. Pre-

. 'Licensing antitrust review of these reactors was proscribed

' 4 by Cong ess and, even we e that not true, post-licensing review is foxeclosed by 'the Commission's South Texas decision. The Director of Nuclear Reactor Regulation is not. an island of independent authority; his off'e is a piece of the Commission, "a part of the main". Thexefore, the=.Florida Cities .need'not send to the Director to Learn for whom a'ntitrust jurisdiction tolls when an oper.

ating license issues; it tolls for him.

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l2-For the foregoing reasons, we (1) af irm that, portion of the Licensing Board's April 5, 1977 order rom which the Flor'da Cities appeal and (2) declare that the Director of Nuclear Reactor Regulat'on has no authority to in'tiate an antitrust review in connection with any of these three power reactors on the basis of the petition now before us.

Xt is so ORDERED.

FOR THE ATOMIC SAFETY AND LZCENSXNG APPEAL BOARD 2+irgaret Z. Du Flo Secretary to the

~ '. Appeal Board tThe concurring opinion of Nr. Sharman follovs.]

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Concu "r'. Ooin cn of Kfr. Shar man:

I join in the opinion of my colleagues except with respect to one point. They would af ixm the Licensing Board's dismissal of the petition 'nsofa as it relates to the three fully ':censed reactors on the basis of their holding in gout n 'Tesas (ALAB-381, sunna) that a licensing board is ba ed by 10 C.F.R. 52.717{a) from granting a late petition fo= an antitrust hearing azter 'all environ-mental and safety proce d'ngs with espect to issuance of the construction permit have concluded. I disagreed with that holding, zor reasons which I stated at length in my concurring opin:on in that case. 1/ As's true wz.th a denial of certiorari 'n the Supreme Court, the Commission's election not to review one of our decisions does not nec-essarilv constitute an endorsement oz it. In this partic-ular instance, the'.Commis'sion went out of its way to make that clear. In .its own decision on the other aspect of South Texas, it said: "In declining to review ALAB-381, .

of course, we are not to be taken as having agreed with everything that the Appeal Board had said in that opini'on."

The Commission apparently was content simply to let the 1/ 5 3RC 595.

2/ CLI-77-13, 5 NRC > (slip opinion, p. 8) (June 15, 1977) .

result in MAB-381, a result in which I fully concurred, stand. I therefore pex'sist 'n my disagreement with the majority of this Board as to its constx'uction of 10 C.P.R.

62. 717 (a) .

Because, in my view, 52. 717 (a) does not provide any basis for the denial of the petit'on, it is necessary, as I stated in South Texas, to see whether the grant of an antitrust hearing axter all proceedings on licensing have concluded would be consistent. with the-legislative intent underlying Section 105c of the Atomic Energy Act. 3/ The Commission has, howevex, alreadv given's its v'ews in 4,

South Texas on the intent of Cong ess with respect to our antit st jurisd'ction ovex reactors as to which licenses have already been cr anted. As the majority opinion shows,'hose views leave not the slightest room fo- doubt as to what our decision in this case must be.

3/ 5 NRC at 598-99.

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~s ATTACPJ4ENT B UNITED STATES OF AMERICA NUCLEAR REGULATORY COl'dlISS ION

) r COMMISS IOHERS:

Joseph M. Hendrie, Chairman ig Q'Io

)qf> lU Victor Gilinsky q Richard T. Kennedy Ot~',:,'~i>e Peter A. Bradford In the Hatter of )

FLORIDA POMER 5 LIGHT COMPANY Docket Hos. 50-335A

) 50-250A

. (St. Lucie Nuclear Power Plant, Unit 1) ) 50-251A (Turkey Point Plant, Units 3 and 4} )

)

ORDER to The Commission has decided not/review ALAB-428. 'I

>le note, however, 4

the request of the petitioners that if the Commission fails to grant the Petition, a reference of their allegations be made to the Attorney General.

In a recent decision, In the Matter of Houston Li htina 5 Power

~Con an (South Texas Project, Unit Ros. I R 2), we discussed our anti-trust responsibilities, as set forth in Section 105 of the Atomic Energy Act, as amended, 42 U.S.C. 2135. There we stated that "antitrust alleaa-tions might be raised outside the license review context. Subsequent allegations that licenses are being used in such a way as to violate the antitrust la<<s are to be referred to the Department of Justice for investigation and possible enforcement action ...." The Florida Cities petition contains such allegations.

The sta f is therefore directed promptly to refer to the Attorney General the allegations of the Florida Cities, as well as "any t related]

'information it may have Lif any] with respect to any utilization of special nuclear material or atomic energy which appears to violate or to tend toward the violation" of any of the antitrust laws. 42 U.S.C.

2135(b).

It is

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so ORDERED.

By the Commission, SAMUEL J CHILK Secretary of t e Commission Dated at ttashington, D.C.

this 25th day of October, 1977.

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~ CERTIFICATE OF SERVICE I hereby certify that I have this day caused the foregoing Petition for Review to be served, by first class mail, upon the following persons:

Ivan W. Smith, Esquire, Chairman Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 John M. Frysiak, Esquire, Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D. C. 20555 Robert M. Lazo, Esquire, Member Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Stephen F. Eilperin, Solicitor U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington D.C. 20555 Chairman Hendrie Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Gilinsky Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Kennedy Office of the Commission U.S. Nuclear Regulatory D.C. 20555 Commission'ashington,

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Commissioner Bradford Office of the Commission U. S . Nuclear Regulatory Commis sion Washington, D.C. 20555 Jerome Saltzman, Chief Antitrust & Indemnity Group U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Lee Scott Dewey, Esquire Counsel for the Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Alan S. Rosenthal, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Jerome E. Sharfman, Esguire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear< Regulatory Commission Washington, h.C. 20555 Richard S. Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Robert H. Culp, Esquire Linda L. Hodge, Esquire J. A. Bouknight, Jr., Esquire Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20036 Tracy Danese, Esquire Vice President for Public Affairs Florida Power & Light Company P.O. Box 013100 Miami, Florida 33101 John E. Mathews, Jr., Esquire .

Mathews, Osborne, Ehrlich, McNatt, Govelman 6 Cobb 1500 American Heritgage Life Building Jacksonville, Florida 32202 Dated at Washington, D.C., this 16th day of 'December 1977.

Robert A. 'Jablon v rc