|
|
| Line 17: |
Line 17: |
| =Text= | | =Text= |
| {{#Wiki_filter:FPL'.6/5/81))FLORIDA'OWER | | {{#Wiki_filter:FPL'.6/5/81))FLORIDA'OWER |
| &LIGHTCOMPANY)(St.LuciePlant,UnitNo.2)))UNITEDSTATESOFAMERICANUCLEARREGULATORY COMMISSION BEFORETHEATOMICSAFETYANDLICENSING BOARDb~~6$0$~~0Q-IDocketNo.-389-"hDated:June5,1981RESPONSEOFFLORIDAPOWER&LIGHTCOMPANYTOBRIEFOFPARSONS&WHITTEMORE INOPPOSITION T~'ggIQAPPLICATION FORISSUANCE'OF'SUBPOENA'S | | &LIGHT COMPANY)(St.Lucie Plant, Unit No.2)))UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD b~~6$0$~~0 Q-I Docket No.-389-"h Dated: June 5, 1981 RESPONSE OF FLORIDA POWER&LIGHT COMPANY TO BRIEF OF PARSONS&WHITTEMORE IN OPPOSITION T~'g g I Q APPLICATION FOR ISSUANCE'OF'SUBPOENA'S |
| -''~~88I~Parsons&Whittemore, Inc.anditssubsidiaries | | -''~~88I~Parsons&Whittemore, Inc.and its subsidiaries |
| ['],latePetitioners tointervene inthisproceeding, havefiledapleadingstyledasa"BriefinOpposition toAppli-cationforIssuanceofSubpoenas." | | ['], late Petitioners to intervene in this proceeding, have filed a pleading styled as a"Brief in Opposition to Appli-cation for Issuance of Subpoenas." Though P&W's pleading is somewhat lengthy, FPL requests leave to file this brief*/response.- |
| ThoughP&W'spleadingissomewhatlengthy,FPLrequestsleavetofilethisbrief*/response.-
| | In general, P&W contends that the information |
| Ingeneral,P&Wcontendsthattheinformation
| | 'sought by the subpoenas is not relevant, that it is available to FPL through other avenues and that, in any event, the Board lacks authority to issue subpoenas prior to P&W's having been admitted as a party.FPL confines itself here to three points.l.The information sought is directly relevant to issues which must be resolved before P&W's Petition can be granted.The Petition is predicated on the assertion that P&W has a legal right to own and control both a solid waste processing facility in Dade County, Florida, and an electric generator"/The NRC rules make no provision for a"Brief" opposing an application for a subpoena.Though styled as such a"Brief," P&W's pleading is in substance a"Motion to Quash," to which FPL ordinarily would have 10 days to respond under NRC practice.10 C.F.R.g 2.720(f), g 2.730(c).FPL respect-fully requests that the Board accept this brief expedited response, both in accordance with the provisions cited above, and in order to facilitate the Board's decision.$0 8 1 0 6 1 P-0 3 t I'5o/, |
| 'soughtbythesubpoenas isnotrelevant, thatitisavailable toFPLthroughotheravenuesandthat,inanyevent,theBoardlacksauthority toissuesubpoenas priortoP&W'shavingbeenadmittedasaparty.FPLconfinesitselfheretothreepoints.l.Theinformation soughtisdirectlyrelevanttoissueswhichmustberesolvedbeforeP&W'sPetitioncanbegranted.ThePetitionispredicated ontheassertion thatP&Whasalegalrighttoownandcontrolbothasolidwasteprocessing facilityinDadeCounty,Florida,andanelectricgenerator | | J , N)'$I N'J N F I'Il V,d dd II N r d which will produce electricity from steam raised by the*/solid waste facility.-(Petition, App.A at 5).The late Petition failed to disclose to the Board that FPL's expressed reason for refusing to provide the services requested by p&W was the existence of at least one contract which gives FPL the legal right to own, operate and produce electricity from that electric generator. |
| "/TheNRCrulesmakenoprovision fora"Brief"opposinganapplication forasubpoena. | | It is FPL's position that P&W has no legal rights to the**/electric generator in question,-and that the assertions in its late Petition are demonstrably unfounded. |
| Thoughstyledassucha"Brief,"P&W'spleadingisinsubstance a"MotiontoQuash,"towhichFPLordinarily wouldhave10daystorespondunderNRCpractice.
| | This is hardly a"technical" point as P&W would have it.In its pleading responding to the Petition filed by P&W in the St.Lucie 2 operating license proceeding, FPL was able to provide to the operating license Board a contract between FPL and Dade County, Florida (P&W is obligated by contract to construct the waste disposal facility for Dade County)under which Dade County is committed to vest in FPL the ownership of the electrical generator, which FPL thereafter will operate.The contract was"/The assertion that P&W now"owns" the facility and that that should end the inquiry is disingenuous. |
| 10C.F.R.g2.720(f),
| | The most casual student of the law of real property appreciates that the concept of"ownership" is not that simple.If P&W holds some kind of legal title to the facility at this time (and FPL has no direct knowledge of whether it does or not), it matters whether P&W retains that title by breaching its contractual obligations to others and whether that title is subject to defeasance by the valid rights of others."*/Nor, it would appear from other contracts P&W omitted to mention, does P&W have any legal right to the solid waste treatment f acility. |
| g2.730(c).
| | one of several P&W omitted to mention in its late Petition.The subpoenas at issue here were requested upon the surfacing of another contract whose existence P&W failed to disclose, the so-called"Assumption Agreement." Under this Agreement P&W has apparently assumed the obligations of Dade County to FPL and has itself confirmed that FPL has the legal rights to the generating facility.The information sought regarding P&W's contractual obli-gations is squarely relevant in at least three respects.First, it evidently defeats any alleged legal right on P&W's part to control, ownership, or operation of the electrical generation facilities in question.Second, if the dispute between P&W and FPL results from FPL's assertion of its legitimate contractual position and not from any wrongful antitrust conduct directed at Parsons&Whittemore, no antitrust issue can credibly be asserted.Third, the facts underlying P&N's contractual obligations bear on P&W's claim that its extraordinary lateness'in filing should be excused.In many respects, the considerations which a licensing board is required to weigh in ruling on a late petition are equitable in nature.If it is shown that a person has filed a petition with this Commission merely as a ploy in its efforts to escape its contractual obligations, and if that is compounded by a failure fully to disclose the actual commercial situation in its filing with the Board, those con-siderations should weigh heavily against excusing lateness on the part of the Petitioner. |
| FPLrespect-fullyrequeststhattheBoardacceptthisbriefexpedited
| | It is true that the Board could deny the Petition without reaching these questions, on the grounds, inter alia, of lateness for which no good cause has been alleged and that it fails to allege either a situation inconsistent with the antitrust laws or any nexus between any such situation and activities under the license for St.Lucie Unit No.2.FPL intends to file, within the next week, a partial response to*/the Petition urging that the Board do so.~In the meanwhile, there is no equitable or legal reason for withholding subpoenas which merely compel the Petitioner to disclose the facts which underlie assertions on which its petition is inescapably grounded.2.The assertion that FPL can gain access to the evidence which it seeks by other means is not entirely accurate, but is immaterial in any event.FPL is making efforts to obtain the contracts of which it is aware, but there is no reason why FPL should be required to grope in the dark.A petitioner seeking intervention before this Commission has an obligation to come forward with the facts that establish vel non the basis on which he asserts he should be permitted to participate and this, of course, is particularly true vis-a-vis the extraordinarily late filing here.Yet from the outset, P&N has engaged in a sequence of maneuvers striving to avoid airing of the facts underlying its Petition."/FPL has refrained from doing so to date because of its reluctance to make serious allegations without more certain knowledge of the facts.FPL believes that it will be able to obtain at least some of the contractual documents between PaN and Dade County from the County within the next week. |
| : response, bothinaccordance withtheprovisions citedabove,andinordertofacilitate theBoard'sdecision.
| | It began by omitting from its Petition any mention of the contractual relationships which bear on the factual assertions on which the Petition is predicated. |
| $081061P-03tI'5o/, | | Next, following FPL's application for subpoenas, P&W moved the Board for an extension of time in order to"coordinate" with counsel handling other P&W litigation and assertedly"to do 4/the factual and legal research" necessary to meet the issue.-Now, after receiving this extension, P&W has come forward with a pleading that reveals nothing about the facts and instead contains refractory arguments and repeats the same assertions. |
| J,N)'$IN'JNFI'IlV,dddIINrd whichwillproduceelectricity fromsteamraisedbythe*/solidwastefacility. | | The existence of the Assumption Agreement, which was asserted by FPL as an important basis for seeking the subpoenas, is not even mentioned by P&W in its Brief, much less brought before the Board.Apparently having ascertained the facts, P&W has concluded its late Petition would not be advanced by having them brought forward.The question at issue here is a sub-stantial one, and should not be forced against a wall of non-**/dxsclosure.- |
| -(Petition, App.Aat5).ThelatePetitionfailedtodisclosetotheBoardthatFPL'sexpressed reasonforrefusingtoprovidetheservicesrequested byp&Wwastheexistence ofatleastonecontractwhichgivesFPLthelegalrighttoown,operateandproduceelectricity fromthatelectricgenerator. | | "/Motion of Parsons&Whittemore, Inc.and Resources Recovery (Dade County), Inc.Extension of Time to Respond to Florida Power&Light Company's Application for Issuance of Subpoenas (dated May 13, 1981)at 2-3.Obviously, FPL does not know all of the"critical facts" concerning P&W's contractual relationships.(Brief at 7).FPL has managed to learn enough about these relationships to demonstrate that P&W's assertions cannot be taken at, face value.This is hardly ground for suppressing further inquiry. |
| ItisFPL'spositionthatP&Whasnolegalrightstothe**/electricgenerator inquestion,
| | 3.Nor can PSW's resistance to disclosure of the facts be excused on the basis of its assertion that FPL's application is"procedurally defective." PGlrh's reliance on Rule 2.740(b)(1) is misplaced. |
| -andthattheassertions initslatePetitionaredemonstrably unfounded. | | In the first instance, Rule 2.740 is by its terms a general provision which goes to discovery on the merits.FPL does not here seek"discovery" as defined within Rule 2.740;it seeks subpoenas, for which any party may apply under Rule*/2.720;-a general provision of the NRC's regulations which is entirely separate from the provisions governing discovery among parties, which appear under separate heading at 10 C.F.R.5 2.740, et seq.Secondly, the argument that"discovery" is inappropriate until after the first special prehearing conference (10 C.F.R.5 2.751a)makes no sense here.That, conference has been held over four years ago.Moreover, FPL believes that the Licensing Board's mandate to rule upon petitions to intervene in accordance with the factors set forth in the regulations plainly encompasses the inherent authority to permit such discovery as is necessary to evaluate those factors;if not, the Board would be powerless to deny demonstrably groundless petitions."Standing to inter-vene, unlike the factual merits of contentions, may appropriately be the subject of an evidentiary inquiry before intervention is"/Rule 2.720 implements the subpoena authority vouchsafed to the Commission in Section 161 of the'Atomic Energy Act.42 U.S.C.5 2201.Under g 2.720 the authority to issue a subpoena is delegated to"the designated presiding officer." |
| Thisishardlya"technical" pointasP&Wwouldhaveit.Initspleadingresponding tothePetitionfiledbyP&WintheSt.Lucie2operating licenseproceeding, FPLwasabletoprovidetotheoperating licenseBoardacontractbetweenFPLandDadeCounty,Florida(P&Wisobligated bycontracttoconstruct thewastedisposalfacilityforDadeCounty)underwhichDadeCountyiscommitted tovestinFPLtheownership oftheelectrical generator, whichFPLthereafter willoperate.Thecontractwas"/Theassertion thatP&Wnow"owns"thefacilityandthatthatshouldendtheinquiryisdisingenuous.
| | granted." Consumers Power Com an (Midland Plant, Units 1 and 2), LBP-78-27, 8 NRC 275, 277 n.1 (1978).-*/Conclusion The basic question before the Board is whether the sub-poenas sought by FPL seek information which may assist the Board in ruling upon P&W's late Petition.The answer'o this**/question quite obviously is in the affirmative. |
| Themostcasualstudentofthelawofrealpropertyappreciates thattheconceptof"ownership" isnotthatsimple.IfP&Wholdssomekindoflegaltitletothefacilityatthistime(andFPLhasnodirectknowledge ofwhetheritdoesornot),itmatterswhetherP&Wretainsthattitlebybreaching itscontractual obligations toothersandwhetherthattitleissubjecttodefeasance bythevalidrightsofothers."*/Nor,itwouldappearfromothercontracts P&Womittedtomention,doesP&Whaveanylegalrighttothesolidwastetreatment facility.
| | -For this P&W's assertion that issuance of the subpoenas should be denied because they would cause"delay," is inexplicable, to say the least, given P&W's seven years'ate filing and its recent request for an extension of time in order to oppose the subpoenas. |
| oneofseveralP&WomittedtomentioninitslatePetition.
| | Absent that request the subpoenas could have been executed by now.Prompt execution of the subpoenas now would not delay this proceeding in any respect.FPL respectfully proposes that the Board order the subpoenas to be returned within 10 days from the date of their issuance.Not only'could the subpoenas be executed promptly, they plainly are not unduly burdensome. |
| Thesubpoenas atissueherewererequested uponthesurfacing ofanothercontractwhoseexistence P&Wfailedtodisclose, theso-called "Assumption Agreement."
| | In its first sentence P&W terms the subpoenas"massive." In the body of its pleading it is evident that what P&W finds"massive" is FPL's definition of the word"document." That FPL, like most prudent applicants for subpoenas, defined"docu-ment" carefully in a fashion unambiguously encompassing all paper writings is hardly a meritorious ground for complaint. |
| UnderthisAgreement P&Whasapparently assumedtheobligations ofDadeCountytoFPLandhasitselfconfirmed thatFPLhasthelegalrightstothegenerating facility.
| | The substantive subpoenas consist of merely two paragraphs and seek strictly those documents related to the P&W contractual arrangements in question.Unlike P&W, we do not understand the Board's April 24, 1981 Order to be in any respect a'"clear signal" that it would grant P&W's Petition.(Brief at 2-3).The Board simply stated that"the adequacy of the settlement" was not before it at that juncture and would"be open to litigation." Order, dated April 24, 1981 at 3 n.1.P&W's late petition must be judged by the standards pre-scribed in the Commission's regulations and decisions which apply these regulations. |
| Theinformation soughtregarding P&W'scontractual obli-gationsissquarelyrelevantinatleastthreerespects.
| | FPL believes that it is clear beyond reasonable dispute that the late Petition does not and cannot meet these standards and that when the Board addresses the issue it will indeed so find. |
| First,itevidently defeatsanyallegedlegalrightonP&W'sparttocontrol,ownership, oroperation oftheelectrical generation facilities inquestion. | | reason, FPL requests that the Board grant its application and issue the subpoenas, returnable within 10 days.Respectfully submitted, By.Bouknight, Jr.ouglas G.Green Lowenstein, Newman, Reis&Axelrad 1025 Connecticut Avenue, N.W.Washington, D.C.20036 Herbert Dym Covington&Burling 888 Sixteenth Street, N.W.Washington, D.C.20006 Attorneys for Florida Power&Light Company UNITED STATES OF A?%RICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of FLORIDA POWER&LIGHT COMPANY Docket No.50-389A (St.Lucie Nuclear Power Plant Unit No.2)CERTIFICATE OF SERVICE I hereby certify that copies of"Response of Florida Power&Light Company To Brief Of Parsons&Whittemore In Opposition To Application For Issuance Of Subpoenas" was served by hand delivery*or by deposit in the U.S.Mail, first class, postage prepaid this 5th day of June, 1981.Ivan W.Smith, Esquire Chairman Atomic Safety and Licensing Board U.S.Nuclear Regulatory Commission Washington, D.C.20555 Robert M.Lazo, Esquire Atomic Safety and Licensing Board U.S.Nuclear Regulatory Commission Washington, D.C.20555 Michael A.Duggan, Esquire College of Business Administration University of Texas Austin, Texas 78712 Docketing and Service Station Office of the Secretary U.S.Nuclear Regulatory Commission Washington, D.C.20555 Jerome Saltzman, Chief Antitrust&Indemnity Group U.S.Nuclear Regulatory Commission Washington, D.C.20555 Atomic Safety and Licensing Board U.S.Nuclear Regulatory Commission Washington, D.C.20555 Richard S.Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S.Nuclear Regulatory Commission Washington, D.C.20555 Joseph Rutberg, Esquire Lee Scott Dewey, Esquire Fredric D.Chanania, Esquire Counsel for NRC Staff U.S.Nuclear Regulatory Commission Washington, D.C.20555 Ann P.Hodgdon, Esquire Office of the Executive Legal Director U.S.Nuclear Regulatory Commission Washington, D.C.20555 Thomas Gurney, Sr., Esquire 203 North Magnolia Avenue Orlando, Florida 32802 Robert E.Bathen Fred Saffer R.W.-Beck&Associates P.O.Box 6817 Orlando, Florida 32803 1 |
| Second,ifthedisputebetweenP&WandFPLresultsfromFPL'sassertion ofitslegitimate contractual positionandnotfromanywrongfulantitrust conductdirectedatParsons&Whittemore, noantitrust issuecancrediblybeasserted. | | George Spiegel, Esquire Robert Jablon, Esquire Daniel Guttman, Esquire Spiegel 6 McDiarmid 2600 Uirginia Avenue, N.W.Washington, D.C.20037 William C.Wise, Esquire Suite 500 1200 18th Street, N.W.Washington, D.C.20036 William H.Chandler, Esquire Chandler, O'Neal, Avera, Gray&Stripling Post Office Drawer 0 Gainesville, Florida 32602 Janet Urban, Esquire U.S.Department of Justice P.O.Box 14141 Washington, D.C.20044 Donald A.Kaplan, Esquire Robert Fabrikant, Esquire Antitrust Division AU.S.Department of Justice Washington, D.C.20530 Charles R.P.Brown, Esquire Brown, Paxton and Williams 301 South 6th Street P.O.Box 1418 Fort Pierce, Florida 33450 George R.Kucik, Esquire Mare Gary, Esquire Ellen E.Sward, Esquire Arent, Fox, Kintner., Plotkin Kahn 1815 H Street, N.W.Washington, D.C.20006 Benjamin H.Vogler, Esquire U.S.Nuclear Regulatory Commission Washington, D.C.20555 la G.Gre n Lowenstein, Newman, Reis 6 Axelrad 1025 Connecticut Avenue, N.W.Washington, D.C.20036 (202)862-8400}} |
| Third,thefactsunderlying P&N'scontractual obligations bearonP&W'sclaimthatitsextraordinary lateness'infilingshouldbeexcused.Inmanyrespects, theconsiderations whichalicensing boardisrequiredtoweighinrulingonalatepetitionareequitable innature.IfitisshownthatapersonhasfiledapetitionwiththisCommission merelyasaployinitseffortstoescapeitscontractual obligations, andifthatiscompounded byafailurefullytodisclosetheactualcommercial situation initsfilingwiththeBoard,thosecon-siderations shouldweighheavilyagainstexcusinglatenessonthepartofthePetitioner. | |
| ItistruethattheBoardcoulddenythePetitionwithoutreachingthesequestions, onthegrounds,interalia,oflatenessforwhichnogoodcausehasbeenallegedandthatitfailstoallegeeitherasituation inconsistent withtheantitrust lawsoranynexusbetweenanysuchsituation andactivities underthelicenseforSt.LucieUnitNo.2.FPLintendstofile,withinthenextweek,apartialresponseto*/thePetitionurgingthattheBoarddoso.~Inthemeanwhile, thereisnoequitable orlegalreasonforwithholding subpoenas whichmerelycompelthePetitioner todisclosethefactswhichunderlieassertions onwhichitspetitionisinescapably grounded.
| |
| 2.Theassertion thatFPLcangainaccesstotheevidencewhichitseeksbyothermeansisnotentirelyaccurate, butisimmaterial inanyevent.FPLismakingeffortstoobtainthecontracts ofwhichitisaware,butthereisnoreasonwhyFPLshouldberequiredtogropeinthedark.Apetitioner seekingintervention beforethisCommission hasanobligation tocomeforwardwiththefactsthatestablish velnonthebasisonwhichheassertsheshouldbepermitted toparticipate andthis,ofcourse,isparticularly truevis-a-vistheextraordinarily latefilinghere.Yetfromtheoutset,P&Nhasengagedinasequenceofmaneuvers strivingtoavoidairingofthefactsunderlying itsPetition. | |
| "/FPLhasrefrained fromdoingsotodatebecauseofitsreluctance tomakeseriousallegations withoutmorecertainknowledge ofthefacts.FPLbelievesthatitwillbeabletoobtainatleastsomeofthecontractual documents betweenPaNandDadeCountyfromtheCountywithinthenextweek. | |
| ItbeganbyomittingfromitsPetitionanymentionofthecontractual relationships whichbearonthefactualassertions onwhichthePetitionispredicated.
| |
| Next,following FPL'sapplication forsubpoenas, P&WmovedtheBoardforanextension oftimeinorderto"coordinate" withcounselhandlingotherP&Wlitigation andassertedly "todo4/thefactualandlegalresearch" necessary tomeettheissue.-Now,afterreceiving thisextension, P&Whascomeforwardwithapleadingthatrevealsnothingaboutthefactsandinsteadcontainsrefractory arguments andrepeatsthesameassertions. | |
| Theexistence oftheAssumption Agreement, whichwasassertedbyFPLasanimportant basisforseekingthesubpoenas, isnotevenmentioned byP&WinitsBrief,muchlessbroughtbeforetheBoard.Apparently havingascertained thefacts,P&Whasconcluded itslatePetitionwouldnotbeadvancedbyhavingthembroughtforward.Thequestionatissuehereisasub-stantialone,andshouldnotbeforcedagainstawallofnon-**/dxsclosure.-
| |
| "/MotionofParsons&Whittemore, Inc.andResources Recovery(DadeCounty),Inc.Extension ofTimetoRespondtoFloridaPower&LightCompany's Application forIssuanceofSubpoenas (datedMay13,1981)at2-3.Obviously, FPLdoesnotknowallofthe"critical facts"concerning P&W'scontractual relationships. | |
| (Briefat7).FPLhasmanagedtolearnenoughabouttheserelationships todemonstrate thatP&W'sassertions cannotbetakenat,facevalue.Thisishardlygroundforsuppressing furtherinquiry. | |
| 3.NorcanPSW'sresistance todisclosure ofthefactsbeexcusedonthebasisofitsassertion thatFPL'sapplication is"procedurally defective." | |
| PGlrh'srelianceonRule2.740(b)(1) ismisplaced. | |
| Inthefirstinstance, Rule2.740isbyitstermsageneralprovision whichgoestodiscovery onthemerits.FPLdoesnothereseek"discovery" asdefinedwithinRule2.740;itseekssubpoenas, forwhichanypartymayapplyunderRule*/2.720;-ageneralprovision oftheNRC'sregulations whichisentirelyseparatefromtheprovisions governing discovery amongparties,whichappearunderseparateheadingat10C.F.R.52.740,etseq.Secondly, theargumentthat"discovery" isinappropriate untilafterthefirstspecialprehearing conference (10C.F.R.52.751a)makesnosensehere.That,conference hasbeenheldoverfouryearsago.Moreover, FPLbelievesthattheLicensing Board'smandatetoruleuponpetitions tointervene inaccordance withthefactorssetforthintheregulations plainlyencompasses theinherentauthority topermitsuchdiscovery asisnecessary toevaluatethosefactors;ifnot,theBoardwouldbepowerless todenydemonstrably groundless petitions.
| |
| "Standing tointer-vene,unlikethefactualmeritsofcontentions, mayappropriately bethesubjectofanevidentiary inquirybeforeintervention is"/Rule2.720implements thesubpoenaauthority vouchsafed totheCommission inSection161ofthe'AtomicEnergyAct.42U.S.C.52201.Underg2.720theauthority toissueasubpoenaisdelegated to"thedesignated presiding officer." | |
| granted." | |
| Consumers PowerComan(MidlandPlant,Units1and2),LBP-78-27, 8NRC275,277n.1(1978).-*/Conclusion ThebasicquestionbeforetheBoardiswhetherthesub-poenassoughtbyFPLseekinformation whichmayassisttheBoardinrulinguponP&W'slatePetition. | |
| Theanswer'othis**/questionquiteobviously isintheaffirmative.
| |
| -ForthisP&W'sassertion thatissuanceofthesubpoenas shouldbedeniedbecausetheywouldcause"delay,"isinexplicable, tosaytheleast,givenP&W'ssevenyears'ate filinganditsrecentrequestforanextension oftimeinordertoopposethesubpoenas. | |
| Absentthatrequestthesubpoenas couldhavebeenexecutedbynow.Promptexecution ofthesubpoenas nowwouldnotdelaythisproceeding inanyrespect.FPLrespectfully proposesthattheBoardorderthesubpoenas tobereturnedwithin10daysfromthedateoftheirissuance.
| |
| Notonly'couldthesubpoenas beexecutedpromptly, theyplainlyarenotundulyburdensome.
| |
| InitsfirstsentenceP&Wtermsthesubpoenas "massive."
| |
| InthebodyofitspleadingitisevidentthatwhatP&Wfinds"massive" isFPL'sdefinition oftheword"document."
| |
| ThatFPL,likemostprudentapplicants forsubpoenas, defined"docu-ment"carefully inafashionunambiguously encompassing allpaperwritingsishardlyameritorious groundforcomplaint.
| |
| Thesubstantive subpoenas consistofmerelytwoparagraphs andseekstrictlythosedocuments relatedtotheP&Wcontractual arrangements inquestion.
| |
| UnlikeP&W,wedonotunderstand theBoard'sApril24,1981Ordertobeinanyrespecta'"clearsignal"thatitwouldgrantP&W'sPetition.
| |
| (Briefat2-3).TheBoardsimplystatedthat"theadequacyofthesettlement" wasnotbeforeitatthatjunctureandwould"beopentolitigation." | |
| Order,datedApril24,1981at3n.1.P&W'slatepetitionmustbejudgedbythestandards pre-scribedintheCommission's regulations anddecisions whichapplytheseregulations. | |
| FPLbelievesthatitisclearbeyondreasonable disputethatthelatePetitiondoesnotandcannotmeetthesestandards andthatwhentheBoardaddresses theissueitwillindeedsofind.
| |
| reason,FPLrequeststhattheBoardgrantitsapplication andissuethesubpoenas, returnable within10days.Respectfully submitted, By.Bouknight, Jr.ouglasG.GreenLowenstein, Newman,Reis&Axelrad1025Connecticut Avenue,N.W.Washington, D.C.20036HerbertDymCovington | |
| &Burling888Sixteenth Street,N.W.Washington, D.C.20006Attorneys forFloridaPower&LightCompany UNITEDSTATESOFA?%RICANUCLEARREGULATORY COMMISSION BEFORETHEATOMICSAFETYANDLICENSING BOARDIntheMatterofFLORIDAPOWER&LIGHTCOMPANYDocketNo.50-389A(St.LucieNuclearPowerPlantUnitNo.2)CERTIFICATE OFSERVICEIherebycertifythatcopiesof"Response ofFloridaPower&LightCompanyToBriefOfParsons&Whittemore InOpposition ToApplication ForIssuanceOfSubpoenas" wasservedbyhanddelivery* | |
| orbydepositintheU.S.Mail,firstclass,postageprepaidthis5thdayofJune,1981.IvanW.Smith,EsquireChairmanAtomicSafetyandLicensing BoardU.S.NuclearRegulatory Commission Washington, D.C.20555RobertM.Lazo,EsquireAtomicSafetyandLicensing BoardU.S.NuclearRegulatory Commission Washington, D.C.20555MichaelA.Duggan,EsquireCollegeofBusinessAdministration University ofTexasAustin,Texas78712Docketing andServiceStationOfficeoftheSecretary U.S.NuclearRegulatory Commission Washington, D.C.20555JeromeSaltzman, ChiefAntitrust
| |
| &Indemnity GroupU.S.NuclearRegulatory Commission Washington, D.C.20555AtomicSafetyandLicensing BoardU.S.NuclearRegulatory Commission Washington, D.C.20555RichardS.Salzman,EsquireAtomicSafetyandLicensing AppealBoardPanelU.S.NuclearRegulatory Commission Washington, D.C.20555JosephRutberg,EsquireLeeScottDewey,EsquireFredricD.Chanania, EsquireCounselforNRCStaffU.S.NuclearRegulatory Commission Washington, D.C.20555AnnP.Hodgdon,EsquireOfficeoftheExecutive LegalDirectorU.S.NuclearRegulatory Commission Washington, D.C.20555ThomasGurney,Sr.,Esquire203NorthMagnoliaAvenueOrlando,Florida32802RobertE.BathenFredSafferR.W.-Beck | |
| &Associates P.O.Box6817Orlando,Florida32803 1 | |
| GeorgeSpiegel,EsquireRobertJablon,EsquireDanielGuttman,EsquireSpiegel6McDiarmid 2600UirginiaAvenue,N.W.Washington, D.C.20037WilliamC.Wise,EsquireSuite500120018thStreet,N.W.Washington, D.C.20036WilliamH.Chandler, EsquireChandler, O'Neal,Avera,Gray&Stripling PostOfficeDrawer0Gainesville, Florida32602JanetUrban,EsquireU.S.Department ofJusticeP.O.Box14141Washington, D.C.20044DonaldA.Kaplan,EsquireRobertFabrikant, EsquireAntitrust DivisionAU.S.Department ofJusticeWashington, D.C.20530CharlesR.P.Brown,EsquireBrown,PaxtonandWilliams301South6thStreetP.O.Box1418FortPierce,Florida33450GeorgeR.Kucik,EsquireMareGary,EsquireEllenE.Sward,EsquireArent,Fox,Kintner.,
| |
| PlotkinKahn1815HStreet,N.W.Washington, D.C.20006BenjaminH.Vogler,EsquireU.S.NuclearRegulatory Commission Washington, D.C.20555laG.GrenLowenstein, Newman,Reis6Axelrad1025Connecticut Avenue,N.W.Washington, D.C.20036(202)862-8400}}
| |
|
|---|
Category:LEGAL TRANSCRIPTS & ORDERS & PLEADINGS
MONTHYEARL-99-201, Comment Supporting Proposed Rules 10CFR50 & 72 Re Reporting Requirements for Nuclear Power Reactors.Fpl Followed Development of NEI Comments on Rulemaking & Endorse These Comments1999-09-0707 September 1999
Comment Supporting Proposed Rules 10CFR50 & 72 Re Reporting Requirements for Nuclear Power Reactors.Fpl Followed Development of NEI Comments on Rulemaking & Endorse These Comments
ML20206H4441999-05-0303 May 1999
Comment Opposing Proposed Rules 10CFR170 & 10CFR171 Re Rev of Fy 1999 Fee Schedules
ML20205J0461999-04-0101 April 1999
Comment Supporting Proposed Draft Std Review Plan on Foreign Ownership,Control & Domination.Util Supports Approach Set Forth in SRP Toward Reviewing Whether Applicant for NRC License Owned by Foreign Corp.Endorses NEI Comments
ML20205B3771999-03-16016 March 1999
Comment Opposing PRM 50-64 Re Liability of Joint Owners of Npps.Util Endorses Comments of NEI & Urges Commission to Deny Petition for Rulemaking
ML17355A2511999-03-0909 March 1999
Comment Supporting Amend to Policy & Procedure for NRC Enforcement Actions Re Treatment of Severity Level IV Violations at Power Reactors.Util Also Endorses Comments of NEI on Revs
L-98-306, Comment Opposing Proposed Rule 10CFR50 Re Requirements for Monitoring Effectiveness of Maint at NPP1998-12-10010 December 1998
Comment Opposing Proposed Rule 10CFR50 Re Requirements for Monitoring Effectiveness of Maint at NPP
L-98-272, Comment on Draft Reg Guide DG-4005, Preparation of Suppl Environ Repts for Applications to Renew Nuclear Power Plant Operating Licenses1998-10-28028 October 1998
Comment on Draft Reg Guide DG-4005, Preparation of Suppl Environ Repts for Applications to Renew Nuclear Power Plant Operating Licenses
L-98-252, Comment Supporting Proposed Rules 10CFR2 & 51 Re Streamlined Hearing Process for NRC Approval of License Transfers.Fpl Also Endorses Comments of NEI on Proposed Rule1998-10-0606 October 1998
Comment Supporting Proposed Rules 10CFR2 & 51 Re Streamlined Hearing Process for NRC Approval of License Transfers.Fpl Also Endorses Comments of NEI on Proposed Rule
L-98-248, Comment Supporting Statement of Policy on Conduct of Adjudicatory Proceedings.Fpl Also Endorses Comments of NEI on Policy Statement1998-10-0505 October 1998
Comment Supporting Statement of Policy on Conduct of Adjudicatory Proceedings.Fpl Also Endorses Comments of NEI on Policy Statement
ML17229A7551998-05-29029 May 1998
Comment Opposing Proposed Communication Re Augmented Insp of Pressurized Water Reactor Class 1 High Pressure Safety Injection Piping
ML20217P6691998-04-0202 April 1998
Comment Opposing Proposed Rule 10CFR50 Re Industry Codes & Standards,Amended Requirements
ML17354A8741998-03-27027 March 1998
Comment Opposing Proposed Generic Communication,Lab Testing of nuclear-grade Activated Charcoal (M97978)
ML20216C1991998-03-0303 March 1998
Comment on Proposed Generic Communication Re Yr 2000 Readiness of Computer Sys at Npps.Util Endorses Nuclear Energy Inst Comments.Comments Submitted on Behalf of Plant
ML17354B1061998-02-26026 February 1998
Submits Listed Requests for NRC EA Per 10CFR2.206 to Modify OLs for All FPL NPPs Until Licensee Can Demonstrate Open Communication Channels Exist Between NRC & Licensee.Also Requests EA to Address Alleged Discriminatory Practices
L-97-269, Comment on Pr 10CFR55, Initial Licensed Operator Exam Requirements1997-10-21021 October 1997
Comment on Pr 10CFR55, Initial Licensed Operator Exam Requirements
L-97-265, Comment on Proposed Rules 10CFR50 & 73, Frequency of Reviews & Audits for Emergency Prepardness Programs Safeguards Contingency Plan & Security Programs for Np Reactors1997-10-14014 October 1997
Comment on Proposed Rules 10CFR50 & 73, Frequency of Reviews & Audits for Emergency Prepardness Programs Safeguards Contingency Plan & Security Programs for Np Reactors
ML20217M0751997-08-13013 August 1997
Licensee Response to Supplemental 10CFR2.206 Petitions Filed by Tj Saporito & National Litigation Consultants.Petition Provides No Basis for Extraordinary Relief Requested. Petition Should Be Denied.W/Certificate of Svc
ML17354A5181997-05-27027 May 1997
Licensee Response to 10CFR2.206 Petition Filed by Tj Saporito & National Litigation Consultants.Petition Should Be Denied,Based on Listed Info.W/Certificate of Svc
ML17354A5631997-05-17017 May 1997
Second Suppl to 970423 Petition Requesting Enforcement Against Listed Util Employees by Imposing Civil Penalties, Restricting Employees from Licensed Activities & Revoking Unescorted Access
ML17354A5611997-05-11011 May 1997
Suppl to 970423 Petition Requesting Enforcement Action Against Util Former Executive Vice President,Site Vice President & Maint Superintendent by Imposing Civil Monetary Penalty
ML17354A5651997-04-23023 April 1997
Requests That NRC Take EA to Modify,Suspend or Revoke FPL Operating Licenses for All Four Nuclear Reactors Until Licensee Can Sufficiently Demonstrate to NRC & Public That Employees Encouraged to Freely Raise Safety Concerns
ML20137R4681996-12-10010 December 1996
Transcript of 961210 Proceeding in Atlanta,Ga Re Predecisional EC Re Facility Activities.Pp 1-151.Supporting Documentation Encl
L-96-137, Comments on Proposed Rule 10CFR50, Reliability & Availability Info for Risk-Significant Sys & Equipment1996-06-0606 June 1996
Comments on Proposed Rule 10CFR50, Reliability & Availability Info for Risk-Significant Sys & Equipment
IR 05000335/19960031996-03-0808 March 1996
Transcript of 960308 Hearing in Atlanta,Ga Re NRC Insp Repts 50-335/96-03 & 50-389/96-03.Pp 1-101.Supporting Documentation Encl
ML17228B3551995-12-0404 December 1995
Comment Opposing Proposed Generic Communication, Boraflex Degradation in SFP Storage Racks.
L-95-270, Comment Supporting Proposed Rules 10CFR2,50 & 51 Re Decommission of NPPs1995-10-15015 October 1995
Comment Supporting Proposed Rules 10CFR2,50 & 51 Re Decommission of NPPs
ML17228B2841995-09-12012 September 1995
Comment Supporting Rg DG-1043,Rev 2 to Rg 1.49, NPP Simulation Facilities for Use in Operator License Exams.
ML17228B2221995-07-13013 July 1995
Comment Supporting Proposed Generic Communication 10CFR50.54 Re Process for Changes to Security Plans W/O Prior NRC Approval
L-95-199, Comment Supporting Proposed Rule 10CFR50 Re Changes in Frequency Requirements for Emergency Planning & Preparedness Exercises from Annual to Biennial1995-07-10010 July 1995
Comment Supporting Proposed Rule 10CFR50 Re Changes in Frequency Requirements for Emergency Planning & Preparedness Exercises from Annual to Biennial
ML17353A2471995-06-27027 June 1995
Comments on Proposed Rule Re, Review of NRC Insp Rept Content,Format & Style.
ML17228B2101995-06-27027 June 1995
Comment Opposing Proposed GL Relocation of Pressure Temp Limit Curves & Low Temp Overpressure Protection Sys Limits.
ML20134N0421995-01-18018 January 1995
Partially Deleted Transcript of Interview W/J Kunkel on 950118 at Jensen Beach,Fl.Pp 1-40
ML20134N0621995-01-18018 January 1995
Partially Deleted Transcript of Interview W/A De Soiza on 950118 at Jensen Beach,Fl.Pp 1-40.Supporting Documentation Encl
ML20134N0281995-01-18018 January 1995
Partially Deleted Transcript of Interview W/Eo Poarch on 950118 at Jensen Beach,Fl.Pp 1-78
ML20134N0331995-01-18018 January 1995
Partially Deleted Transcript of Interview W/D Jacobs on 960118 in Jensen Beach,Fl.Pp 1-50
ML20134N0301995-01-18018 January 1995
Partially Deleted Transcript of Interview W/H Fagley on 950118 at Jensen Beach,Fl.Pp 1-63
ML17228A9851995-01-17017 January 1995
Comment Supporting Proposal to Issue GL Providing Guidance for Determining When analog-to-digital Replacement Can Be Performed Under Requirements of 10CFR50.59
L-94-325, Comment on Proposed Rule 10CFR50 Re Fracture Toughness Requirements for LWR Pressure Vessels.Endorses NEI Comments & Recommendations1994-12-29029 December 1994
Comment on Proposed Rule 10CFR50 Re Fracture Toughness Requirements for LWR Pressure Vessels.Endorses NEI Comments & Recommendations
L-94-329, Comment Supporting Proposed Rule 10CFR2 Re Policy Statement Rev, Policy & Procedure for Enforcement Actions; Policy Statement,Discrimination1994-12-22022 December 1994
Comment Supporting Proposed Rule 10CFR2 Re Policy Statement Rev, Policy & Procedure for Enforcement Actions; Policy Statement,Discrimination
L-94-304, Comment Supporting Proposed GL Re Reconsideration of Nuclear Power Plant Security Requirements for Internal Threat1994-12-0202 December 1994
Comment Supporting Proposed GL Re Reconsideration of Nuclear Power Plant Security Requirements for Internal Threat
ML17228A8751994-10-0303 October 1994
Comment Opposing Proposed Rule Re Pilot Program for NRC Recognition of Good Performance by Nuclear Power Plants
ML20072S5221994-08-25025 August 1994
Comment Opposing Petition for Rulemaking 9-2 Re Request for NRC to Revise Regulations of 10CFR9 to Provide Public Access to Info Held by Licensees But Not Submitted to NRC
L-94-206, Comment Opposing Proposed Change to Rule 10CFR26, Consideration of Changes to Fitness for Duty Requirements. Util Wants Current Scope of Drug Testing in 10CFR26 to Be Retained & Current Trustworthiness Programs to Be Improved1994-08-0909 August 1994
Comment Opposing Proposed Change to Rule 10CFR26, Consideration of Changes to Fitness for Duty Requirements. Util Wants Current Scope of Drug Testing in 10CFR26 to Be Retained & Current Trustworthiness Programs to Be Improved
ML20072B3251994-08-0101 August 1994
Comment Opposing Proposed Rule 10CFR26 Re Change Consideration of fitness-for-duty Requirements
L-94-150, Comment Supporting Petition for Rulemaking PRM-50-60 Re Amend to 10CFR50.54 by Changing Frequency W/Which Licensees Conduct Independent Reviews of Emergency Preparedness Program from Annually to Biennially1994-06-17017 June 1994
Comment Supporting Petition for Rulemaking PRM-50-60 Re Amend to 10CFR50.54 by Changing Frequency W/Which Licensees Conduct Independent Reviews of Emergency Preparedness Program from Annually to Biennially
ML17228A3121993-09-24024 September 1993
Answer of Florida Municipal Power Agency to FPL Response in Opposition to Petition for Enforcement Action. W/Vols I & II of Apps
ML17228A2981993-08-27027 August 1993
Response of Florida Power & Light Co in Opposition to Petition for Enforcement Action.
ML17309A7141993-07-0202 July 1993
Petition of Florida Municipal Power Agency for Declaration & Enforcement...Antitrust Licensing Conditions & to Impose Requirements by Order. W/Vols I & II of Apps to Petition
ML20045F2091993-06-24024 June 1993
Comment on Proposal Re Radiological Criteria for Decommissioning NRC-licensed Facilities.Supports Proposed Criteria
ML17349A8161993-04-22022 April 1993
Comment Endorsing NUMARC Comments Re Proposed Generic Communication, Availability & Adequacy of Design Bases Info.
1999-09-07
[Table view]
Category:PLEADINGS
MONTHYEARML17354B1061998-02-26026 February 1998
Submits Listed Requests for NRC EA Per 10CFR2.206 to Modify OLs for All FPL NPPs Until Licensee Can Demonstrate Open Communication Channels Exist Between NRC & Licensee.Also Requests EA to Address Alleged Discriminatory Practices
ML20217M0751997-08-13013 August 1997
Licensee Response to Supplemental 10CFR2.206 Petitions Filed by Tj Saporito & National Litigation Consultants.Petition Provides No Basis for Extraordinary Relief Requested. Petition Should Be Denied.W/Certificate of Svc
ML17354A5181997-05-27027 May 1997
Licensee Response to 10CFR2.206 Petition Filed by Tj Saporito & National Litigation Consultants.Petition Should Be Denied,Based on Listed Info.W/Certificate of Svc
ML17354A5631997-05-17017 May 1997
Second Suppl to 970423 Petition Requesting Enforcement Against Listed Util Employees by Imposing Civil Penalties, Restricting Employees from Licensed Activities & Revoking Unescorted Access
ML17354A5611997-05-11011 May 1997
Suppl to 970423 Petition Requesting Enforcement Action Against Util Former Executive Vice President,Site Vice President & Maint Superintendent by Imposing Civil Monetary Penalty
ML17354A5651997-04-23023 April 1997
Requests That NRC Take EA to Modify,Suspend or Revoke FPL Operating Licenses for All Four Nuclear Reactors Until Licensee Can Sufficiently Demonstrate to NRC & Public That Employees Encouraged to Freely Raise Safety Concerns
ML20082G8931991-08-0202 August 1991
Licensee Opposition to Petition for Hearing & Leave to Intervene.* Hearing Re Notice of Violation & Proposed Imposition of Civil Penalty Re Facility.Petition Should Be Denied Due to Listed Reasons.W/Certificate of Svc
ML20245J3891989-06-16016 June 1989
Intervenor Appeal of Initial Decision (Authorizing Spent Fuel Pool Reracking).* Appeals Board Decision Re Issues Surrounding Use of Boraflex in high-density Storage Racks.W/ Certificate of Svc
ML20236C3361989-03-0707 March 1989
NRC Staff Motion for Extension to File Proposed Finding.* Proposed Findings Will Be Served on Parties & Board on 890320.W/Certificate of Svc
ML20236A3651989-03-0707 March 1989
NRC Staff Motion for Extension to File Proposed Finding.* Proposed Findings Will Be Served on Parties & Board on 890320.Certificate of Svc Encl.Served on 890310.Granted for Board on 890309
ML20235V2091989-02-25025 February 1989
Licensee Motion for Transcript Corrections.* Util Hereby Moves Board to Accept Attached Proposed Transcript Corrections for Hearing in Proceeding Held on 890124-26. W/Certificate of Svc
ML20206J6501988-11-16016 November 1988
NRC Staff Motion on Behalf of Parties for Mod of Schedules.* Requests Direct Written Testimony of Witnesses Presently Scheduled to Be Filed on or Before 881122 Now Be Filed on or Before 881220.Certificate of Svc Encl
ML20154Q0261988-09-23023 September 1988
Intervenor Response to Licensee Motion for Summary Disposition of Intervenor Contention 6.*
ML20154Q0131988-09-23023 September 1988
Intervenor Response to Licensee Motion for Summary Disposition of Intervenor Contention 3.*
ML20154Q0301988-09-23023 September 1988
Intervenor Response to Licensee Motion for Summary Disposition of Intervenor Contention 7.* Certificate of Svc Encl
ML20196A7641988-06-17017 June 1988
Response of NRC Staff to Motion of Petitioner for Time Extension.* NRC Not Opposed to Reasonable Time Grant of 30 Days for All Deadlines.Extension Helpful to Petitioner in Preparing Discovery Request.Certificate of Svc Encl
ML20155F7881988-06-10010 June 1988
Licensee Opposition to Intervenor Motion for Amend of Hearing Schedule.* Intervenor Request to Modify Hearing Schedule by Extending Each Deadline by 90 Days Unwarranted & Should Be Denied.W/Certificate of Svc
ML20155C6621988-06-0707 June 1988
Licensee Motion for Oral Argument.* Requests Oral Argument Be Granted in Support of Util 880509 Notice of Appeal of ASLB 880420 Memorandum & Order Granting Request for Hearing & Petition for Leave to Intervene
ML20151W6191988-06-0303 June 1988
Petitioner Response to Licensee Appeal from Board Memorandum & Order Granting Petition to Intervene,Request for Hearing & Contentions.* Appeal Should Be Denied
ML20151W6081988-06-0303 June 1988
Motion for Amend of Hearing Schedule.* Requests 90-day Extension for Hearing Schedule Deadlines Based on Intervenor full-time Job & Other Work Activities That Severely Interfere W/Meeting Schedule
ML20197E0761988-05-23023 May 1988
Motion of NRC Staff for Extension of Time Equal to Time Extended to Petitioner.* Extension Until 880607 to Respond to Licensee Appeal Requested,Per 10CFR2.714a.Licensee & Petitioner Do Not Oppose Request.W/Certificate of Svc
ML20154H8221988-05-20020 May 1988
Request for Postponement of Deadline for Submission of Brief for Addl 14 Days.*
ML20150C9951988-03-14014 March 1988
Licensee Opposition to Petitioner Request for 92-day Postponement of Prehearing Conference.* C Rich Had Reasonable Amount of Time to Prepare for Prehearing Conference.Certificate of Svc Encl
ML20150C5781988-03-0909 March 1988
Request for Postponent of Hearing & Oral Argument for Addl 90 Days.* Petitioner Requests Extension to Prepare for Scheduled Hearing
ML20195J1201988-01-0202 January 1988
Request for Extension of Time in Which to File Request for Hearing & Petition for Leave to Intervene.* Extension Until 880212 Requested Due to Lack of Access to Relevant Documents During Nonbusiness Hours.Served on 880120
ML20236N7951987-11-0909 November 1987
NRC Staff Response to Ltr Hearing Request by C Rich.* Intervention Should Be Denied Unless Rich & Other Petitioners Amend Request to Cure Defects W/At Least One Admissible Contention.Certificate of Svc Encl
ML20236L7941987-11-0404 November 1987
Licensee Answer in Opposition to Request for Hearing.* Opposes C Rich 870930 Request for Public Hearing Re Proposed Amend to License to Increase Spent Fuel Storage Capacity. W/Notices of Appearance of Counsel & Certificate of Svc
ML20207N6691987-01-0909 January 1987
Licensee Response to Supplemental Request for Hearing.* Responds to J Pakavitch 861106 Request for Hearing.Request Deficient as Petition to Intervene & Should Be Denied. Certificate of Svc Encl
ML20212D6031986-12-16016 December 1986
Response of the NRC Staff to the Ltr of Eric Beutens.* Beutens Ltr Supporting J Paskovitch 861202 Request for Public Hearing Fails to State Requisite Interest & Untimely Filed.Certificate of Svc Encl
ML20211N0541986-12-10010 December 1986
Request for Hearing Re Commission Fulfillment of Purpose for Being,Concerning Spent Fuel Transfer Amend.Related Correspondence
ML20214X2741986-12-0808 December 1986
Response Opposing J Paskavitch Request for Hearing Re Util Proposed Amend to License NPF-16,transferring Unit 1 Spent Fuel Pool to Unit 2.Request Does Not Supply Min Info & Should Be Denied.Certificate of Svc Encl
ML20214Q7321986-12-0101 December 1986
Response Opposing J Paskavitch Request for Hearing Re Spent Fuel Transfer from Unit 1 to Unit 2.Notices of Appearance & Certificate of Svc Encl
ML20041F6671982-03-10010 March 1982
Withdrawal of 780828 Request That Commission Institute Section 105a Proceeding Against Util.Fl Cities Has Settled All Differences W/Util.Certificate of Svc Encl
ML20041F0421982-03-10010 March 1982
Joint Motion to Withdraw Fl Cities Intervention,Dismiss & Terminate Proceedings & Vacate ASLB 811211 Memorandum & Order.Settlement Moots Dispute Between Fl Cities & Util. Certificate of Svc Encl
ML20040C0581982-01-19019 January 1982
Motion to Extend Time Until 820126 for Parties to Reply to Objections to ASLB 811211 Memorandum & Order.Fl Cities Objections Were Not Received Until 820115 Due to Severe Weather.Certificate of Svc Encl
ML20039G5481982-01-14014 January 1982
Motion to Incorporate by Ref Re Bathen 760414 Affidavit & 760804 Supplemental Affidavit.Affidavits Referenced in Re Bathen 820114 Affidavit.Certificate of Svc Encl
ML20040A4151982-01-13013 January 1982
Amicus Curiae Brief & Proposed License Conditions,Filed Per ASLB 810805 & 1211 Memoranda & Orders.Util Should Not Be Allowed to Deny Competitors Access to Transmission Svcs Essential to Operation.Certificate of Svc Encl
ML20039G1221982-01-0808 January 1982
Motion for Order Extending Time to File Exceptions to ASLB 811211 Memorandum & Order Until 10 Days After Svc of ASLB Order Ruling on Parties' Objections to Memorandum & Order
ML20039E5911982-01-0505 January 1982
Lodging of Fl PSC 811230 Order Requiring Interconnection W/Petitioners' Facility
ML20039E2351982-01-0505 January 1982
Rejoinder to Fl Cities 811217 Answer to Util 811202 Motion to Lodge Recent Decision.No Legal or Logical Basis Exists for Commission to Institute Proceedings Under 105a of Atomic Energy Act
ML20039D0131981-12-29029 December 1981
Response Opposing Util 811222 Motion to Modify Procedural Schedule.Effect of Proposal Would Be to Delay Preparation & Presentation of Outline of Parties' Cases & Subj Fl Cities to Unnecessary Discovery Burdens.Certificate of Svc Encl
ML20069B0471981-12-22022 December 1981
Motion for Extension of Time to File Exceptions to ASLB 811211 Order Finding That Licensing Plan Would Create Situation Inconsistent W/Antitrust Laws.Certificate of Svc Encl
ML20069B0501981-12-22022 December 1981
Motion for Mod of Procedural Schedule Adopted in ASLB 811211 Order.Trial Briefs Should Not Have to Be Filed Until After Serious Consideration Given & Ruling Issued on Parties' Objections.Certificate of Svc Encl
ML20039B1321981-12-17017 December 1981
Answer to Util 811202 Motion to Lodge Us Court of Appeals, Fifth Circuit Decision,Fpl Vs Ferc.No Objection to Lodging Decision But Opposes Util Erroneous Interpretation. Certificate of Svc Encl
ML20038B3411981-12-0404 December 1981
Motion to Lodge Encl Decision in La Power & Light Co, 17FERC63020.Decision Relevant to Util Business Judgment Defense.Certificate of Svc Encl
ML20010J5731981-09-29029 September 1981
Motion for Leave to File Reply by 811019,to Intervenor Parsons & Whittemore Objections to ASLB 810805 Memorandum & Order.Certificate of Svc Encl
ML20010J5831981-09-25025 September 1981
Corrected Version of Objections to ASLB 810805 Memorandum & Order
ML20010H8341981-09-25025 September 1981
Objections to ASLB 810805 Order Denying Petition to Intervene & to Underlying Findings of Fact & Conclusions of Law.Ferc Remedy Incomplete for Listed Reasons.Notice of Appearance & Certificate of Svc Encl
ML20010J5771981-09-25025 September 1981
Corrected Pages to Petitioners' 810925 Objections to ASLB Order
ML20010F6561981-09-0808 September 1981
Motion for Extension of Time Until 810916 to File Response to Fl Cities 810827 Motion to Establish Procedures.Extension Needed Due to Filings Required in Antitrust Case & to Evaluate Effects of Settlement.Certificate of Svc Encl
1998-02-26
[Table view] |
Text
FPL'.6/5/81))FLORIDA'OWER
&LIGHT COMPANY)(St.Lucie Plant, Unit No.2)))UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD b~~6$0$~~0 Q-I Docket No.-389-"h Dated: June 5, 1981 RESPONSE OF FLORIDA POWER&LIGHT COMPANY TO BRIEF OF PARSONS&WHITTEMORE IN OPPOSITION T~'g g I Q APPLICATION FOR ISSUANCE'OF'SUBPOENA'S
-~~88I~Parsons&Whittemore, Inc.and its subsidiaries
['], late Petitioners to intervene in this proceeding, have filed a pleading styled as a"Brief in Opposition to Appli-cation for Issuance of Subpoenas." Though P&W's pleading is somewhat lengthy, FPL requests leave to file this brief*/response.-
In general, P&W contends that the information
'sought by the subpoenas is not relevant, that it is available to FPL through other avenues and that, in any event, the Board lacks authority to issue subpoenas prior to P&W's having been admitted as a party.FPL confines itself here to three points.l.The information sought is directly relevant to issues which must be resolved before P&W's Petition can be granted.The Petition is predicated on the assertion that P&W has a legal right to own and control both a solid waste processing facility in Dade County, Florida, and an electric generator"/The NRC rules make no provision for a"Brief" opposing an application for a subpoena.Though styled as such a"Brief," P&W's pleading is in substance a"Motion to Quash," to which FPL ordinarily would have 10 days to respond under NRC practice.10 C.F.R.g 2.720(f), g 2.730(c).FPL respect-fully requests that the Board accept this brief expedited response, both in accordance with the provisions cited above, and in order to facilitate the Board's decision.$0 8 1 0 6 1 P-0 3 t I'5o/,
J , N)'$I N'J N F I'Il V,d dd II N r d which will produce electricity from steam raised by the*/solid waste facility.-(Petition, App.A at 5).The late Petition failed to disclose to the Board that FPL's expressed reason for refusing to provide the services requested by p&W was the existence of at least one contract which gives FPL the legal right to own, operate and produce electricity from that electric generator.
It is FPL's position that P&W has no legal rights to the**/electric generator in question,-and that the assertions in its late Petition are demonstrably unfounded.
This is hardly a"technical" point as P&W would have it.In its pleading responding to the Petition filed by P&W in the St.Lucie 2 operating license proceeding, FPL was able to provide to the operating license Board a contract between FPL and Dade County, Florida (P&W is obligated by contract to construct the waste disposal facility for Dade County)under which Dade County is committed to vest in FPL the ownership of the electrical generator, which FPL thereafter will operate.The contract was"/The assertion that P&W now"owns" the facility and that that should end the inquiry is disingenuous.
The most casual student of the law of real property appreciates that the concept of"ownership" is not that simple.If P&W holds some kind of legal title to the facility at this time (and FPL has no direct knowledge of whether it does or not), it matters whether P&W retains that title by breaching its contractual obligations to others and whether that title is subject to defeasance by the valid rights of others."*/Nor, it would appear from other contracts P&W omitted to mention, does P&W have any legal right to the solid waste treatment f acility.
one of several P&W omitted to mention in its late Petition.The subpoenas at issue here were requested upon the surfacing of another contract whose existence P&W failed to disclose, the so-called"Assumption Agreement." Under this Agreement P&W has apparently assumed the obligations of Dade County to FPL and has itself confirmed that FPL has the legal rights to the generating facility.The information sought regarding P&W's contractual obli-gations is squarely relevant in at least three respects.First, it evidently defeats any alleged legal right on P&W's part to control, ownership, or operation of the electrical generation facilities in question.Second, if the dispute between P&W and FPL results from FPL's assertion of its legitimate contractual position and not from any wrongful antitrust conduct directed at Parsons&Whittemore, no antitrust issue can credibly be asserted.Third, the facts underlying P&N's contractual obligations bear on P&W's claim that its extraordinary lateness'in filing should be excused.In many respects, the considerations which a licensing board is required to weigh in ruling on a late petition are equitable in nature.If it is shown that a person has filed a petition with this Commission merely as a ploy in its efforts to escape its contractual obligations, and if that is compounded by a failure fully to disclose the actual commercial situation in its filing with the Board, those con-siderations should weigh heavily against excusing lateness on the part of the Petitioner.
It is true that the Board could deny the Petition without reaching these questions, on the grounds, inter alia, of lateness for which no good cause has been alleged and that it fails to allege either a situation inconsistent with the antitrust laws or any nexus between any such situation and activities under the license for St.Lucie Unit No.2.FPL intends to file, within the next week, a partial response to*/the Petition urging that the Board do so.~In the meanwhile, there is no equitable or legal reason for withholding subpoenas which merely compel the Petitioner to disclose the facts which underlie assertions on which its petition is inescapably grounded.2.The assertion that FPL can gain access to the evidence which it seeks by other means is not entirely accurate, but is immaterial in any event.FPL is making efforts to obtain the contracts of which it is aware, but there is no reason why FPL should be required to grope in the dark.A petitioner seeking intervention before this Commission has an obligation to come forward with the facts that establish vel non the basis on which he asserts he should be permitted to participate and this, of course, is particularly true vis-a-vis the extraordinarily late filing here.Yet from the outset, P&N has engaged in a sequence of maneuvers striving to avoid airing of the facts underlying its Petition."/FPL has refrained from doing so to date because of its reluctance to make serious allegations without more certain knowledge of the facts.FPL believes that it will be able to obtain at least some of the contractual documents between PaN and Dade County from the County within the next week.
It began by omitting from its Petition any mention of the contractual relationships which bear on the factual assertions on which the Petition is predicated.
Next, following FPL's application for subpoenas, P&W moved the Board for an extension of time in order to"coordinate" with counsel handling other P&W litigation and assertedly"to do 4/the factual and legal research" necessary to meet the issue.-Now, after receiving this extension, P&W has come forward with a pleading that reveals nothing about the facts and instead contains refractory arguments and repeats the same assertions.
The existence of the Assumption Agreement, which was asserted by FPL as an important basis for seeking the subpoenas, is not even mentioned by P&W in its Brief, much less brought before the Board.Apparently having ascertained the facts, P&W has concluded its late Petition would not be advanced by having them brought forward.The question at issue here is a sub-stantial one, and should not be forced against a wall of non-**/dxsclosure.-
"/Motion of Parsons&Whittemore, Inc.and Resources Recovery (Dade County), Inc.Extension of Time to Respond to Florida Power&Light Company's Application for Issuance of Subpoenas (dated May 13, 1981)at 2-3.Obviously, FPL does not know all of the"critical facts" concerning P&W's contractual relationships.(Brief at 7).FPL has managed to learn enough about these relationships to demonstrate that P&W's assertions cannot be taken at, face value.This is hardly ground for suppressing further inquiry.
3.Nor can PSW's resistance to disclosure of the facts be excused on the basis of its assertion that FPL's application is"procedurally defective." PGlrh's reliance on Rule 2.740(b)(1) is misplaced.
In the first instance, Rule 2.740 is by its terms a general provision which goes to discovery on the merits.FPL does not here seek"discovery" as defined within Rule 2.740;it seeks subpoenas, for which any party may apply under Rule*/2.720;-a general provision of the NRC's regulations which is entirely separate from the provisions governing discovery among parties, which appear under separate heading at 10 C.F.R.5 2.740, et seq.Secondly, the argument that"discovery" is inappropriate until after the first special prehearing conference (10 C.F.R.5 2.751a)makes no sense here.That, conference has been held over four years ago.Moreover, FPL believes that the Licensing Board's mandate to rule upon petitions to intervene in accordance with the factors set forth in the regulations plainly encompasses the inherent authority to permit such discovery as is necessary to evaluate those factors;if not, the Board would be powerless to deny demonstrably groundless petitions."Standing to inter-vene, unlike the factual merits of contentions, may appropriately be the subject of an evidentiary inquiry before intervention is"/Rule 2.720 implements the subpoena authority vouchsafed to the Commission in Section 161 of the'Atomic Energy Act.42 U.S.C.5 2201.Under g 2.720 the authority to issue a subpoena is delegated to"the designated presiding officer."
granted." Consumers Power Com an (Midland Plant, Units 1 and 2), LBP-78-27, 8 NRC 275, 277 n.1 (1978).-*/Conclusion The basic question before the Board is whether the sub-poenas sought by FPL seek information which may assist the Board in ruling upon P&W's late Petition.The answer'o this**/question quite obviously is in the affirmative.
-For this P&W's assertion that issuance of the subpoenas should be denied because they would cause"delay," is inexplicable, to say the least, given P&W's seven years'ate filing and its recent request for an extension of time in order to oppose the subpoenas.
Absent that request the subpoenas could have been executed by now.Prompt execution of the subpoenas now would not delay this proceeding in any respect.FPL respectfully proposes that the Board order the subpoenas to be returned within 10 days from the date of their issuance.Not only'could the subpoenas be executed promptly, they plainly are not unduly burdensome.
In its first sentence P&W terms the subpoenas"massive." In the body of its pleading it is evident that what P&W finds"massive" is FPL's definition of the word"document." That FPL, like most prudent applicants for subpoenas, defined"docu-ment" carefully in a fashion unambiguously encompassing all paper writings is hardly a meritorious ground for complaint.
The substantive subpoenas consist of merely two paragraphs and seek strictly those documents related to the P&W contractual arrangements in question.Unlike P&W, we do not understand the Board's April 24, 1981 Order to be in any respect a'"clear signal" that it would grant P&W's Petition.(Brief at 2-3).The Board simply stated that"the adequacy of the settlement" was not before it at that juncture and would"be open to litigation." Order, dated April 24, 1981 at 3 n.1.P&W's late petition must be judged by the standards pre-scribed in the Commission's regulations and decisions which apply these regulations.
FPL believes that it is clear beyond reasonable dispute that the late Petition does not and cannot meet these standards and that when the Board addresses the issue it will indeed so find.
reason, FPL requests that the Board grant its application and issue the subpoenas, returnable within 10 days.Respectfully submitted, By.Bouknight, Jr.ouglas G.Green Lowenstein, Newman, Reis&Axelrad 1025 Connecticut Avenue, N.W.Washington, D.C.20036 Herbert Dym Covington&Burling 888 Sixteenth Street, N.W.Washington, D.C.20006 Attorneys for Florida Power&Light Company UNITED STATES OF A?%RICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of FLORIDA POWER&LIGHT COMPANY Docket No.50-389A (St.Lucie Nuclear Power Plant Unit No.2)CERTIFICATE OF SERVICE I hereby certify that copies of"Response of Florida Power&Light Company To Brief Of Parsons&Whittemore In Opposition To Application For Issuance Of Subpoenas" was served by hand delivery*or by deposit in the U.S.Mail, first class, postage prepaid this 5th day of June, 1981.Ivan W.Smith, Esquire Chairman Atomic Safety and Licensing Board U.S.Nuclear Regulatory Commission Washington, D.C.20555 Robert M.Lazo, Esquire Atomic Safety and Licensing Board U.S.Nuclear Regulatory Commission Washington, D.C.20555 Michael A.Duggan, Esquire College of Business Administration University of Texas Austin, Texas 78712 Docketing and Service Station Office of the Secretary U.S.Nuclear Regulatory Commission Washington, D.C.20555 Jerome Saltzman, Chief Antitrust&Indemnity Group U.S.Nuclear Regulatory Commission Washington, D.C.20555 Atomic Safety and Licensing Board U.S.Nuclear Regulatory Commission Washington, D.C.20555 Richard S.Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S.Nuclear Regulatory Commission Washington, D.C.20555 Joseph Rutberg, Esquire Lee Scott Dewey, Esquire Fredric D.Chanania, Esquire Counsel for NRC Staff U.S.Nuclear Regulatory Commission Washington, D.C.20555 Ann P.Hodgdon, Esquire Office of the Executive Legal Director U.S.Nuclear Regulatory Commission Washington, D.C.20555 Thomas Gurney, Sr., Esquire 203 North Magnolia Avenue Orlando, Florida 32802 Robert E.Bathen Fred Saffer R.W.-Beck&Associates P.O.Box 6817 Orlando, Florida 32803 1
George Spiegel, Esquire Robert Jablon, Esquire Daniel Guttman, Esquire Spiegel 6 McDiarmid 2600 Uirginia Avenue, N.W.Washington, D.C.20037 William C.Wise, Esquire Suite 500 1200 18th Street, N.W.Washington, D.C.20036 William H.Chandler, Esquire Chandler, O'Neal, Avera, Gray&Stripling Post Office Drawer 0 Gainesville, Florida 32602 Janet Urban, Esquire U.S.Department of Justice P.O.Box 14141 Washington, D.C.20044 Donald A.Kaplan, Esquire Robert Fabrikant, Esquire Antitrust Division AU.S.Department of Justice Washington, D.C.20530 Charles R.P.Brown, Esquire Brown, Paxton and Williams 301 South 6th Street P.O.Box 1418 Fort Pierce, Florida 33450 George R.Kucik, Esquire Mare Gary, Esquire Ellen E.Sward, Esquire Arent, Fox, Kintner., Plotkin Kahn 1815 H Street, N.W.Washington, D.C.20006 Benjamin H.Vogler, Esquire U.S.Nuclear Regulatory Commission Washington, D.C.20555 la G.Gre n Lowenstein, Newman, Reis 6 Axelrad 1025 Connecticut Avenue, N.W.Washington, D.C.20036 (202)862-8400
