ML18023B052

St. Lucie Units 1 and 2 and Turkey Point Units 3 and 4 - Response of Florida Power & Light Company to Motion for Clarification of Procedures

ML18023B052
Person / Time
Site:	Susquehanna, Turkey Point
Issue date:	04/08/1977
From:	Bouknight J A, Mathews J E Florida Power & Light Co, Lowenstein, Newman, Reis & Axelrad, Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb
To:	NRC/OCM
References
Download: ML18023B052 (7)

Text

0 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION cg~g's~ic lf~~g77~.5,.g O~Before the Commission In the Matter.of g p PP Florida Power&Light Company (St.Lucie Plant, Units No.1 and 2)Florida Power 6 Light Company (Turkey Point Plant, Units No.3 and 4))))))).Docket Nos.50-250A)-.'0-251A I RESPONSE OF FLORIDA POWER 6 LIGHT COMPA"K TO MOTION FOR CLARIFICATION OF PROCEDURES The Florida Municipal Utilities Association and a group of Florida Cities (Cities)have moved that the Commission clarify the procedures that the Cities must follow in order to obtain consideration of a request that proceedings be instituted, on antitrust grounds, to modify operating licenses which Florida Power and Light Company (FPL)holds for three reactors which are now in operation of FPL's system.-FPL opposes the Motion for/the reasons given below: Back round On August 6, 1976, the Cities filed a single document containing a"Petition...for leave to Intervene out of Time" with respect to St.Lucie Unit No.2 (Docket No.50-389A)and a"Petition to Intervene; and Request for Hearing" as to the-The three"Operating Plants" are Turkey Points Units Nos.3 and 4 (Docket Nos.50-250A and 50-250A, Operating License Nos.DPR-31 and DPR-41)and St.Lucie Unit No.1 (Docket No.50-335A, Operating License DPR-67).For reasons stated hereafter, the questions raised by the Cities'otion do not concern St.Lucie Unit No.2 (Docket No.50-389A).

Operating Plants.On April 5, 1977,=subsequent to the date of filing of the Cities'otion, the Atomic Safety and Licensing Board ruled on the Cities'etition, granting their request for intervention and an antitrust hearing with respect to St.Lucie Unit No.2, and dismissing the Petition with respect to the Operating Plants on the-basis of Houston Li htin 6 Power~Com an (South Texas pxoject, Units 1 and 2), ALAS-381 (March 18, 1977).'..The Licensing Board noted, as Cities indicate in their Motion, that"On October 29,'976, with reference to 10.CFF.Section 2.206, Florida Cities'lodged'their Petition]with the Director of Nuclear Reactor Regulation."-The Licensing Board does not say whether the Cities have requested any action by the Director of Nuclear Reactor Regulation, and FPL, 0 likewise, is reluctant to interpret or characterize the Cities'ague letter of October 29, 1976.-However, the Licensing/Board stressed that"ft]he papers filed with the Director of Nuclear[Reactor]Regulation are not before us for disposition."-Florida Power&Li ht Com an (St.Lucie Plant, Units 1 and 2;Turkey Point Plant, Units 3 and 4), Dockets Nos.50-335A, 50-389A, 50-250A and 50-251A, Memorandum and Order of Atomic Safety and Licensing Board (April 5, 1977).-Ibid, at oage 5 of slip opinion.-The Cities letter of October 29, 1976, to the Director of Nuclear Reactor Regulation is attached as Attachment A.-Licensing Board Memorandum and Order, p.5.

It is with this background that the Cities'otion comes before the Commission.

The'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 early'resolution of the matter raised by Cities on the merits."-FPL's Position on the Motion 1.The Motion does not point to any basis, nor is FPL aware of any basis, for submittal of a pleading of this sort to the Commission.

2.In light of the Licensing Board's action of April 5, 1977, along with ALAB-38l (~sn ra), there is no apparent reason for any"clarification of procedures."'It is quite clear that any request to initiate proceedings to modify a license should be submitted to the Director of Nuclear Reactor Regulation, n pursuant to 10 CFR 52.206.-/3.An apparent purpose of the Motion is to gain the Commission's implicit approval of the Cities'osition that.Motion, p.4./There never has been any dispute that the Cities'etition with respect to St.Lucie Unit Ho.2, for which no construction permit has yet issued, was properly before the Licensing Board for decision.Licensing Board Memorandum and Order, page 5.The Cities'rgument that ALAB-381 does not apply to St.Lucie Unit No.2 is superfluous, certainly in light of the Licensing Board's intervening action.

~~"[iJt is clear that the Commission is required under its statutory antitrust mandate to act on Cities'etition on its merits." FPL's position is that the Commission does not have statutory-authority to modify the licenses for the Opexating Plants as requested by the Cities.Zn part, this disagreement involves questions similar to those on which the Commission has requested briefs in another case.However, an additional consideration is present here, in that the licenses for FPL's Operating Plants were issued pursuant.to Section 104 of the Atomic Energy Act, under statutory pro-visions which deliberately exempted: these plants from the antitrust review provisions of Section 105c.-FPL would not object to the Commission's ruling on these legal issues prior to any action by the Director of Nuclear Reactor Regulation pursuant to 10 CFR in response to a properly submitted request 52.206.-'owever, such a ruling/-See Commission Order of March 31, 1977, in Houston Li htin 6 Power Company (South Texas Pxoject, Units 1 and 2).Dockets Nos.50-498A, 50-499A./-See Sections 102c, 105c (2).and (3).-However, these legal arguments are not the only basis/for denying a request to initiate proceedings to modify the licenses for the Operating Plants.There are sound reasons why the Director of Nuclear Reactor Regulation should not act even if he finds authority to act.Accordingly, the Director should, at some point, be afforded the opportunity to exercise his discretion with respect to any request submitted pursuant to 52.206.Xt is entirely possible that, if this matter were left for consideration by the Director in the first instance, the Director might deny a request on grounds independent of the question of legal authority.

would hardly be in the nature of"clarification of procedures." Xf the Commission elects to consider the question of legal authority, FPL requests that the parties be permitted to submit legal briefs before a decision is made.In any event, such basic questions of statutory construction should not be decided implicitly in ruling on a Motion for"clarification of procedures." WIKREFORE, FPL requests that: the Cities'otion be denied;and, if the Commission elects to rule upon the legal issues-presented by the Cities'equest.

for modification of the Operating Plants licenses, an opportunity for briefs and argument be afforded.Respectfully Submitted,.A.Boukn', J Lowenstein, Newman, Reis G Axelrad 1025 Connecticut Avenue, H.W.Washington, D.C.20036 (202)833-8371 O'~A~/.fP,,~py7m~John E.&fathers, Jr Mathews, Osborne, Ehrlich, NcNatt Gobelman 6 Cobb 1500 American Heritage Life Building Jacksonville, Florida 32202 (904)354-0624 Counsel for Florida Power 6 Light Company April 8, 1977 gO+<~c,+@~UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD'n the Matter of Florida Power&Light.Company (St.Lucie Plant, Units No.1 and No.2)Florida Power&Light Company (Turkey Point Plant, Units No.3 and No.4))))))).)))Docket Nos.50-335A 50-389A Docket Nos.50-250A 50-251A CERTXFICATE OF SERVICE I HEREBY CERTIFY that copies of the following:

RESPONSE OF FLORIDA POKER&LIGHT CO?iPANY TO MOTION FOR'LARXFICATION OF PROCEDURES have been served on the persons shown on the attached list by hand delivery or deposit in the United States Mail, properly stamped and addressed on April 8, 1977.By: J A.Bouknig , Jr.owenstein,~ewman, Reis&Axelrad Suite 1214 1025 Connecticut Avenue, N.N.washington, D.C.20036 Counsel for Florida Power&Light Company Atomic Safety and Licensing Appeal Board Panel U.S.Nuclear Regulatory Commission Washi'ngton, D.C.20555 Robert,A.Jablon, Esquire Daniel J.Guttman, Esquire 2600 Virginia Avenue, N.W.Washington, D.C.20037 Atomic Safety and Licensing Board Panel, U.S.Nuclear Regulatory Commission Washington, D.C.20555 Commissioner Richard T.Kennedy Office of the Commissioners U.S..Nuclear Regulatory Commission Room H-1109 1717 H 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 32602 David A.Leckie Antitrust Division Department of Justice P.O.Box 7513 Washington, D.C.'20044 Lee Scott Dewey, Esquire Counsel for the Staff U.S.Nuclear Regulatory Commission Washington, D.C.20555 John M.Frysiak, Esquire Atomic Safety and Licensing Board Panel U.S.Nuclear Regulatory Commission Washington, D.C.20555 Chairman Marcus A.Rowden Office of the Commissioners U.S.Nuclear Regulatory Commission Room P-414B 7920 Norfolk Avenue Bethesda, Maryland 20555 Jerome Saltzman Chief, Antitrust and Indemnity Grou=Nuclear Reactor Regulation U.S.Nuclear Regulatory Commission Washington, D.C.20555 Commissioner Victor Gilinsky Office of the Commissioners U.S.Nuclear Regulatory Commission Room H-1101 1717 H Street, N.W.Washington, D.C.20036 Daniel M.Head, Esquire Atomic Safety and Licensing Board Panel U.S.Nuclear Regulatory Commission Washington, D.C.20555 Secretary, U.S.Nuclear Regulatory Commission Washington, D.C.20555 Ivan W.Smith, Esquire Atomic Safety and Licensing Board Panel U.S.Nuclear Regulatory Commission Washington, D.C.20555 C.R.Stephens, Supervisor Docketing'nd Service Station Office of the Secretary of the Comm.Washington, D.C.20555 William C.Wise, Esquire Suite 200 1019 19th Street, N.W.Washington, D.C.20036