ML18227D496

Florida Citiess Response to FPLs Letter to ASLB in Matter of Houston Lighting & Power Company

ML18227D496
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	03/29/1977
From:	Giacalone D, Jablon R Florida Cities, Spiegel & McDiarmid
To:	Frysiak J, Head D, Smith I Atomic Safety and Licensing Board Panel
References
Download: ML18227D496 (16)

Text

GEORGE SPIEGEL ROBERT C. MCDIARMID SANDRA J. STREBEL ROBERT A. JABLON JAMES N. HORWOOD ALANJ. ROTH FRANCES E. FRANCIS DANIELI. DAVIDSON THOMAS N. MCHUGH. JR.

t LAW OFFICES SPIEGEL 8v McDI~MID 2600 VIRGINIAAVENUE. N. W.

WASHINGTON, D. C. 20037 TELEPHONE I202) 333 4300 March 29, 1977 PETER K. MATT DANIELJ. 6VTTMAN BONNIE S. BLAIR DAVIDA. 6IACALONE JAMES CARL POLLOCK ROBERT HARLEY BEAR

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Evan W. Smith, Esquire, Chairman Atomic Safety 6 Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 John M. Frysiak, Esquire Atomic Safety 6 Licensing Board'anel U.S. Nuclear Regulatory Commission Washington, D.C.

20555 p-"(~P 4,

y )g7 Daniel M. Head, Esquire Atomic Safety &,Licensing Board Panel U. S. Nuclear Regulatory Commission Washington, D.C.

20555 Re:

Florida Power 6 Light Company (Turkey Point Units Nos.

3 and 4)

(St. Lucie Units 2)

Docket Nos.

0-250A,, 50-25 50-335A and 50-389A Gentlemen:

Florida Cities hereby respond to Florida Power a

Light Company's letter of March 21, 1977 to the Atomic Safety 6

Licensing Board in the-above-captioned dockets lodging with the Board the opinion of the Atomic Safety and Licensing Appeal Board in the Matter of Houston Li htin

& Power Com an (South Texas Project, Units 1 and 2), ALAB-381, Docket Nos.

50-498A and 50-499A,

issued, March 18, 1977.

FPSL statecl in its letter of Naroh 21 that the South

!texas opinion was '"pertinent" to the Company's arguments in its

Response

dated September 1,

1976.

Florida Cities contend that the South Texas opinion is not applicable to Florida Cities'equest, for a hearing and intervention in relation to St. Lucie Plant No. 2, because unlike South Texas no construct'on permit has yet been issued for that plant; nor has the related safety and environmental review been completed.

The opinion is neither controlling nor applicable to the other plants involved in this proceeding, because those plants have received operating licenses issued under Section 104(b) of the Atomic Energy Act, 42 USC 5 2134', rather than Section

103; thus, there is no statutory machinery or policy which would imply that the initiation of an antitrust hearing before this Board would be inappropriate subsequent to the issuance of con-struction permits or operating licenses for the plants in question.

Further, Florida Cities contend that. the establishment of this

Board, by notice dated August 13,

1976, and the delegation to it of powers pursuant to Sections 2.105, 2.700, 2.702, 2.714, 2.714a, 2.717 and 2.721 of the Commission's Regulations (as well as the general power of the Commission to so delegate authority to.the Licensing Board),

has effectively vested in this Board the jurisdiction and authority to entertain the Petition-of Florida Cities and grant the relief requested therein.~/

Respectfully submitted, cc:

Director of Nuclear Reactor Regulation Nuclear Regulatory Comm.

Washington, D.C.

20555 Attachment Robert A..JMlon vid A. Giacalone DAG:ps

"/ Florida Cities have previously filed with the Director of Nuclear Reactor Regulation, by a letter dated October 29, 1976, pursuant to Commission Regulat'on 2.206, a.request that a show cause order be served upon FPaL and a proceeding be instituted under 52.202 of the Commission's Regulations.

We have,

however, suggested that the Director withhold action until. this Board has ruled on Cities'etition.

So long as the matters raised in our Petition are passed upon on the merits and due process rights accorded, Florida Cities have no preference as to the internal procedures followed by the Commission for resolving our dispute with the Company.

However, to avoid any doubts as to this Board's power to grant Cities'etition and to avoid undue delay, by a separate filing, Florida Cities are asking the Commission to affirm the Board's authority or otherwise clarify the issue of where Cities'etition may be heard on the merits.

A copy of that bIotion for Commission Clarification of Proceduresis attached.

We do not seek delay in rulings by this Board.

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CERTIFICATE OP SERVICE I hereby certify that I have this day caused the fore-going Letter"/ from Robert A. Jablon and David A. 'Giacalone on behalf 'of'lorida Cities in Response to Applicant's Letter of March 21, 1977 to be served upon the following persons:

William C. Wise, Esquire Robert Weinberg, Esquire Suite 200 1019 19th Street, N.W.

Washington, D. C.

20036 Linda L. Hodge, Esq.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut

Avenue, NW Washington, D.C.

20036 William H. Chandler, Esquire

Chandler, O'Neal, Avera, Gray, Lang G Stripling P.O.

Drawer 0 Gainesville, Florida 32601 Lee Scott Dewey, Esq.

Office of Executive Legal Director Nuclear Regulatory Commission Washington, D X. 20555 David A. Leckie, Esquire Antitrust Division Department of Justice 1101 Pennsylvania

Avenue, N.W.

Washington, D.C.

20530 Robert H. Culp, Esq.,

Lowenstein,

Newman, Reis

Axelrad, 1025 Connecticut

Avenue, NW Suite 1214 Washington, D.C.

20036 Tracy Danese, Esquire Vice President, Public Affairs Plorida Power G Light Company P.O.

Box 013100 Miami, Florida 33101 John E. Mathews, Jr.

Esq.

Mathews, Osborne,

Ehrlich, McNatt, Gobelman

& Cobb 1500 American Heritage Life Bldg.

Jacksonville, Florida 32202 J.

A. Bouknight, Jr.,

Esa.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut

Avenue, NW Washington, D.C.

Chief, Docketing and Service Section Office of the Secretary Nuclear Regulatory Commission Washington, D.C.

20555 Ivan W. Smith, Esquire Atomic Safety and Licensing

,. Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 John M. Prysiak, Esquire Atomic Safety and Licensing Bmrd Panel Nuclear Regulatory Commission Washington, D.C.

20555 Daniel M. Head, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555

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~hot' Dated at Washington, D.C. this 29th day of March, 197

"/ Without Attachment vid A. Giacalone

UNITED STATES OF AMERICA BEFORE THE

'UCLEAR REGULATORY COMMISSION 00 CL 534t3 ttdnttC APR 1197py 4

~ Sew st ttte tteetett et~

"2 < setet deettc In the Matter of:

Florida Power and Light Company

=

(St. Lucie Plant, Units-Nos.

1 and 2)

Florida Power and Light Company (Turkey Point Plant, Units Nos..

3 'and

}

Docket Nos.

50-335A,

)

50-389A

}

Docket. Nos.

50-250A 4)

)

50-251A MOTION FOR COMMIS'SION CLARIFICATION OP PROCEDURES On August 6, 1976, Florida Cities~/ filed with the

'ommission a Petition~*/ invoking the'ommission's jurisdiction, under Sections

104, 185,

186, 187, and 188 of the Atomic Energy Act (42 U.S.C. Secticns

2134, 2235-2238),

and recuesting, in't'er alia, that a hearing be instituted tc determine whether licenses t

granted to Florida Power 6 Light Company in the 'above-captioned dockets should be revoked or modified due to alleged anticompetitive conduct and conditions under those licenses.

On Augus 13,

1976, an Atomic Safety and Licensing Board was established by James R.

Yore, Acting Chairman of the Atomic Safety and Licensing Board

Panel, to rule on Florida Cities'etition.

"/ "Florida Cities" consist of the Port Pierce Utilities Authority of the City of Fort Pierce, the Gainesville-Alachua County Regional Electric Nater and'ewer Utilities, the Lake North Utilities Authority, the Utilities Commission of the City of New Smyrna Beach, the Orlando Utilities Commission, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Daytona Beach, Fort Meade, Key Nest, Mount Dora, Newberry, Quincy, St.

Cloud and Tallahassee,

Florida, and the Florida Municipal Utilities Association.

~~/ "Joint Petition of Florida Cities for Leave to Intervene Out of Time; Petition to Intervene; and Request for Hearing,"dated August 6, 1976.

A copy of 0he Petition is attached, as are copies of Florida Cities'eply Brief of October 15I 1976I Staff's Answer of September 17, 1976 and FP&L's Response dated September 1,

1976.

Additional copies will be supplied upon request by the Commission.

Supporting affidavits and the transcript of oral arguments heard on February 1,

1977 are on file with the Commission.

The Commission Staff, in;its Answer dated September 17, 1976< took the position that Cities must use the procedure outlined in Section 2.206 of the Commission's Regulation (10 CFR 2.206) in order to request proceedings to modify, suspend or'revoke a license.

Cities specifically invoked Section 2.206 in their Reply Brief dated October 15, 1976 and filed a copy of their original Petition with the Director of Nuclear Reactor Regulation by letter dated October 29, 1976.

To avoid a conflict or duplication of procedures within the Commission, however, Cities stated in the letter to the Director of Nuclear Reactor Regulation tha

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they would not. object to his withholding action under Section 2.206 until after the established Licensing Board had ruled on Cities'etition.

"/

Opinion AIAB-381, in Houston Li htin 6 Power Comtian (South Texas Pro'ect, Units 1

G 2), Docket Nos.

50-498A, 50-499A, was issued on March 18, 1977.

Florida Power 6 Light Co.

has lodged that opinion with the Licensing Board in the above-captioned dockets by means of a letter dated March 21, 1977, stating that the opinion is pertinent to its Response to Cities'etition dated September 1,

1976-Cities believe that case to be inapposite

"/ Xn response to that letter, Mr. Ford, the Director of Nuclear Reactor Regulation, telephoned Cities'ounsel Mr. Jablon to determine why the Petition had been filed pursuant to Section 2.206.

Cities counsel quoted from Staff's Answer and stated that although he believed the matter would be more appropriately resolved by Atomic Safety 6 Licensing Boards, that are experienced in antitrust matters, he had filed with the Director's office for protective purposes.

While Staff has suggested the u'se of the 2.206 mechanism by Cities as procedurally more appropriate, we believe that FPGL's stance is more substantive:

the Company contends that no component of the Commission has jurisdiction to entertain such a Petition.

in relation to the St. Lucie No.

2 proceeding, because no construction permit has issued in that proceeding and, the safety and environmental review has not yet been completed; the decision is also inapplicable to the Turkey Point Units, Nos.

3 and 4, and the St. Lucie Unit No.

1 because those plants are operating under Section 104 licenses..

It is clear that the Commission is required under its statutory antitrust mandate to act on Cities'etition on its merits.

Florida Cities believe that the procedures initially established by the Commission (or its delegatees) is appropriate (i.e., the reference for ruling to the Atomic Safety and Licensing Board).

However, although the case is factually distinguishable, the South Texas case raises questions as, to-the internal procedures by which the Commission may desire "to rule on this matter.

Further, as to Docket Nos.

50-250A, 50-251A and'0-335A, involving the Section 104 plants, Cities'etition raises matters of first impression.

In view of the above situation, Florida Cities respectfully request that the Commission clarify procedures.

Florida Cities believe the Commission should clarify the authority of the Board, so that an antitrust panel already established may rule upon Cities Petition for a hearing and intervention."

However, the Commission may desire to rule on the matter itself or determine that the Director of Nuclear Reactor Regulation must first rule under Section 2.206 on Cities request for a modification hearing and show cause order (with a possible reference to the Atomic Safety

& Licensing Board).

Since Cities'etition nredominantlv raises antitrust.

issues, and those issued have been fully briefed and aartiallv arcrued before the established Licensincr Board, it arrears that the Board (which. is experienced in antitrust matters) is the most avvronriate forum to rule on the merits.

Cities have no objection, of course, to the Commission itself ruling ux>on their Petition.*/

Since the South Texas Appeals Board decision (and the position of staff counsel) creates doubt as to the proper procedures,. to avoid

.subsequent delay and to protect. the rights of the parties, Cities request that the Commission affirm the authority and jurisdiction of the present licensing board in this matter or otherwise determine the most appropriate procedural mechanism for the early resolution of the matters raised by Cities on the merits.'espectfully submitted, Robert A. J ion vid A. Giacalone Law offices of:

Spiegel 6 McDiarmid 2600 Virginia Ave.

NN Nashington, D.C.

20037 March 29, l977 Attorneys for the Fort Pierce Utilities Authority of the City of Fort Pierce, the Gainesville-Alachua County Regional Electric Nater and Sever Utilities, the Lake North Utilities Authority, the Utilities Commis-sion of the City of New Smyrna Beach, the Orlando Utilities Commission, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Daytona Beach, Fort Meade, Key Nest, Mount Dora, Nevberry, Quincy, St.

Cloud and Tallahassee,

Florida, and the Florid Municipal Utilities Association

"/ Cities also have no objection to the Director of Vi uclear Regulation handling their Petition under Section 2.206, but the Director s office has little antitrust experience and, thus, may not be the most appro-priate forum for the matter.

Since the end result of the Director's decision to institute the requested hearing will most probably be the establishment of a Licensing Board to hear -the case (see slip pages 20 and 12 of the'outh'exas opinion','upra),

awaiting his decision rather than confirming the Board's authority would probably cause needless delay.

CERTIFICATE OF SERVICE I hereby certify that I have this dav caused the fore-going Motion For Commission Clarification of Procedures"/ to be served upon the following persons:

William C. Wise, Robert Weinberg, Suite 200 1019 19th Street, Washington, D. C.

Esquire Esquire N.W 20036 Linda L. Hodge, Esq.

Lowenstein,

Newman, Rais Axelrad 1025 Connecticut Avenue, NW Wash'ngton, D.C.

20036 William H. Chandler, Esquire

Chandler, 0'Neal, Avera, Gray, Lang 6 Stripling P.O.

Drawer 0 Gainesville, Florida 32601 David A. Leckie,.Esquire Antitrust Division Department of'Justice 1101 Pennsylvania

Avenue, N.W.

Washington, D.C.

20530 Robert H. Culp, Esq.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut Avenue, NW Suite 1214 Washington, D.C.

20036 Tracy Danese, Esquire Vice President, Public Affairs Florida Power a Light Company P.O.

Box 013100 Miami, Florida 33101 John E. Mathews, Jr.

Esq.

Mathews, Osborne,

Ehrlich, McNatt, Gobelman 6 Cobb 1500 American Heritage Life Bldg.

Jacksonville, Florida-32202

.J.

A. Bouknight, Jr.,

Esq.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut Avenue, NN Washington, D.C.

Lee Scott Dewey, Esq.

Office of Executive Legal Director Nuclear Regulatory Commission Washington, D R.

20555 Chief, Docket'ng and Service Section Office of the Secretary Nuclear Regulatory Commission Washington, D.C.

20555 Ivan W. Smith, Esquire Atomic Safety and Licensing

.. Board Panel

. Nuclear Regulatory Commission Washington, D.C.

20555 John M. Frysiak, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 Daniel M. Head, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555

~ggED Q~ ~pe

~pP aeii~CS c'~"

<~~qSah Dated at Washington, D.C. this 29th day of March, avid A. Giacalone Without Attachments

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY.COMMISSION l

Cocx!t!9 USN2c APR 1 1s77 ~

CtfIco af the S~

Poc4ltny 5 Seajc-In the Matter of:

Florida Power and Light Company (St. Lucie Plant, Units Nos.

1 and 2)

Florida Power and Light Company (Turkey Point Plant, Units Nos.

3 and

)

Docket.Nos.

50-335A

)

50-389A

)=

)

Docket Nos.

50-250A 4)

)

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50-251A NOTICE OF APPEARANCE Notice is hereby given'hat David A. Giacalone ent'ers his appearance, in the captioned proceeding as attorney for:

Ft. Pierce Utilities Authoiity of the City of Ft. Pierce P.O.

Box 3191 Fort Pierce, Florida 33450 Gainesville-Alachua County Regional Electric Water and Sewer Utilities P.O.

Box 490 Gainesville, Florida 32601 Lake Worth Utilities Authority 114 College Street Lake Worth, Florida 33460 New Smyrna Beach Util'ties Commission P.O.

Box 519 New Smyrna Beach, Florida 32069 Orlando Utilities Commission 400 South Orange Avenue Orlando, Florida 32802 Sebring Utilities Commission 213 South Commerce Street Sebring, Florida 33870 City of Alachua P.O.

Box 8

Alachua, Florida 32615

Bartow City Electric Department 250 North Central, Box 1669 Bartow, Florida 33820 City of Daytona Beach P.O.

Box 551 Daytona Beach, Florida Fort Meade Electric Department P.O.

Box 856 Fort Meade, Florida 33841 Key West Utility Board P.O.

Drawer, 1060 Key West, Florida 33040 City of Mount Dora P.O.

Box 176 Mount Dora, Florida 32757 I

Newberry Board of Public Works P.O.

Box 368 Newberry, Florida 32669 Quince Municipal Electric Light 6 Water Department P.O.

Drawer 941 Quincy, Florida 32351 St. Cloud Electric

& Water Department 824 New York St. Cloud, Florida 32769 Tallahassee Electric Department 2602 Jackson Bluff Road Tallahassee, Florida 32304 Florida Municipal Utilities Association P.O.

Box 2402 Lakeland,, Florida 33803 Xn accordance with '10 'CFR Sec.'.713,'he following information is provided:

The address and telephone number of David A. Giacalone is Spiegel 6 McDiarmid 2600 Virginia Avenue, NW Washington, D.C.

20037 (202) 333-4500

Mr. Giacalone is eligible to appear as an attorney on behalf of the above-named entities, Florida Cities.

He is a member in good standing of the Dh.strict of Columbia Bar.

Respectfully submitted, David A. Giacalone Attorney for Florida Cities

CERTIFICATE OF SERVICE Linda L. Hodge, Esq.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut

Avenue, NW Washington, D.C.

20036 I hereby certify that I have this day caused the fore-going Notice of Appearance of David A. Giacalone to be served upon the following persons:

William C. Wise, Esquire Robert Weinberg, Esquire Suite 200 1019 19th Street, N.W.

Washington, D.

C.. 20036 William H. Chandler, Esquire

Chandler, O'Neal, Avera, Gray, Lang 6 Stripling P.O.

Drawer 0 Gainesville, Florida 32601 David A. Leckie, Esquire Antitrust Division Department'of Justice 1101 Pennsylvania

Avenue, N.W.

Washington, D.C.

20530 Lee Scott Dewey, Esq.

Office of Executive Legal Director Nuclear Regulatory Commission Washington, D R.

20555 Chief, Docketing and Service Section Office of the Secretary Nuclear Regulatory Commission Washington, D.C.

20555 Robert H. Culp, Esq.

Lowenstein,

Newman, Reis Axelrad 1025 Connecticut Avenue, NW Suite 1214 Washington, D.C.

20036 Tracy Danese, Esquire Vice President, Public Affairs Florida Power a Light Company P.O.

Box 013100 Miami, Florida 33101 John E. Mathews, Jr.

Esq.

Mathews, Osborne, Ehrlich, McNatt, Gobelman G Cobb 1500 American Heritage Life Bldg.

Jacksonville, Florida 32202 J.

A. Bouknight, Jr.,

Esq.

Lowenstein,

Newman, Reis 6

Axelrad 1025 Connecticut Avenue, NW Washington, D.C.

Ivan W. Smith, Esquire Atomic Safety and Licensing

.. Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 John.M. Frysiak, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 Daniel M. Head, Esquire Atomic Safety and Licensing Board Panel Nuclear Regulatory Commission Washington, D.C.

20555 Cp~

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C Qi Dated at Washington, D.C. this 29th day of March, id A. Giacalone

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