ML18227B297
| ML18227B297 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie, Turkey Point  |
| Issue date: | 09/05/1978 |
| From: | Berger M US Dept of Justice, Antitrust Div |
| To: | Office of Nuclear Reactor Regulation |
| References | |
| Download: ML18227B297 (20) | |
Text
0 lg UNITED STATES OF AMERICA
~v NUCLEAR REGULATORY COMMISSION x/~j~a b ~~a~ ~
In the Matter of )
)
FLORIDA POWER & .LIGHT COMPANY ) Docket No. 50-'335A (St. Lucie Plant, Unit Nos. 1 ) .50-389A
- and 2) )
)
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50 2'jggL (Turkey Point Plant, Unit Nos. 3 ) 50-2'51A and 4) )
RESPONSE OF THE DEPARTMENT OF JUSTICE.
John H. Shenefield: Donald L. Flexner Assistant Attorney Deputy Assistant Attorney Division General'ntitrust General Antitrust Division Communications with respect .to this document should, be addressed to:
Donald A. Kaplan Acting Chief, Energy Section Antitrust Division, Department of Justice Washington, D.C. 20530 Melving G. Berger
- Attorney,, Energy Section Department of Justice P.O. Box 14'141 Washington, D.C. 20044 September 5, 1978
I UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
'LORIDA POWER & LIGHT COMPANY ) Docket,No. 50-335A (St. Lucie Plant, Unit Nos. 1 ) 50-389A and 2) )
)
FLORIDA POWER & LIGHT COMPANY ) Do'eke t No. 50-.250A (Turkey Point Plant, Unit Nos. 3 .) 50-251A and 4) )
RESPONSE OF THE DEPARTMENT OF JUSTICE The Department of Justice (Department) submits this response to the Memorandum of Florida Power & Light Company (FP&L), filed August 25, 1978 and urges this Commission to ini'tiate a proceeding pursuant to Section 105a-of the Atomic Energy Act, as amended .(Act) (42 U.S.C. 2135a) at this time and to consolidate such proceeding with the Section 105c proceeding on Florida Power & Light Company's application for its St. Lucie. No. 2 unit.
BACKGROUND By Order dated July 28, 1978, this Commission request-ed the views of interested parties on certain questions regarding the initiation of a proceeding under Section 105a of the Act in view of the decision of the United States Court of Appeals for the Fifth Circuit im Gainesville
II 0 Utilities Department v. Fl'pride Poser & Li ht Com an , 573 F.2d 292 (1978) ("Gainesville"). Pursuant to the Commission's Order interested parties submitted their initial responses on August 25, 1978. 1/ Leave was granted for the filing of
-replies, if such replies were received by September 5, 1975.
In filing this reply the Department reiterates the position .
stated in its filings of August 25'and 28, 1978, and urges this Commission to initiate a 105a proceeding now and consolidate said proceeding, with the 105c proceeding that has been ordered with respect to FP&L's St. Lucie No. 2 Nuclear Unit.
DISCUSSION The Memorandum of Florida Power & Light Company points out the numerous findings that must be made in a 105a proceeding. However, rather than demonstrating the difficulties which would attend immediate initiation and consolidation, FP&L s arguments illustrate why init'iation of a .proceeding now is the only realistic approach for deter-mining what, action, if any, is. appropriate under 105a in view of Gainesville.
1/ FP&L also filed a Motion for Recall of Order in Light of Changed Circumstances on August 15, l978. The Depart-ment filed its response to that Motion on August 28, 1978.
'L FP&L's argument I
that institution of a 105a proceeding at this time is inappropriate is based on four premises:
- 1) an unsubstantiated and unverified recitation of the
~ facts surrounding the Gainesville decision, 2) inter-pretation of Section 105a and the leg'islative history thereof, 3) an alleged lack of nexus between the licensed activity and Gainesville, and 4) a highly questionable interpretation of conspiracy under Section 1 of the Sherman Act.
At pages 2-6 of FP&L's Memorandum the Company briefly recapitulates the procedural history of Gainesville by characterizing the issues before the Fifth Circuit, commenting on the District Court's charge to the jury and otherwise supplying details of the litigation. However, many of these procedural matters cannot, be gleaned from the Fifth Circuit's opinion and can only be established by reviewing portions of the record which are not now before this Commission..
FP&L's arguments on the three other premises have been intertwined in order to reach the desired conclusion. Thus, FP&L has contended that the last antitrust violation found by the Fifth Circuit occurred on October 24, 1966 when FP&L refused to deal with Gainesville because of the existence of a territorial agreement between FP&L and Florida Power Corp.
This "finding" leads FP&L to conclude that it was impossible to have violated the antitrust laws in the conduct of NRC
0 licensed activities (as required by 105a) because the Company did not obtain NRC licenses until April 27, 1967.
Since no overt act in furtherance of the illegal agreement took place after the NRC issued licenses to FP&L, the Company concludes that the requisite nexus between the antitrust violation and the NRC licensed activities is absent. (FP&L Memorandum at 6-11).
~ There is little legislative history to support FP&L's interp'retation of Section 105a (FP&L Nemorandum at 6).
However, even if we assume tha" FP&L's reading of Section 105a is correct the Company's argument still fails because FP&L's assumption that its antitrust violation ended on October 24, 1966 is incorrect as a matter of law.
Once a conspiracy is shown to exist, it is presumed to d . ~b, 268 .
Cir. 1957); United States v. Perlstein, 126 F.2d 789, 798 d 56, 63 ( d (3rd Cir. 1942). Further, a conspiracy is not presumed to have ended simply because an important overt act in furtherance of it is accompli'shed. United States v. Kissel, 218 U.S.
601, 609 (1910); United States v. ~Hde, 225 U.S. 347, 368 (1912). As explained in the antitrust case of United States
- v. Swift, 186 Fed. 1002, 1013 (N.D. Ill. 1911):
A conspiracy agreement to accomplish an unlawful object is, in its very nature, a continuing arrangement between the con-spirators,,the duration of which vill depend upon the nature of the object which they propose to accomplish. . . . So long as the parties contemplate further action, if necessary to the attainment of their ultimate object, the agreement or confedera-tion still exists. This further action ma consist alone in accer)tin the benefits of an a reement revxousl made. (Emphasxs added).
0 41 Zn sum, FP&L's characterization of the Gainesville record and arguments on nexus clearly involve questions of fact that will have to be decided on the basis of evidence which is not now before this Commission. Its interpretation of Section 105a, as FP&L admits, has very scant legisla-tive support (FP&L Memorandum at 6). Finally, FP&L ignores well settled principles of the law of conspiracy. Thus, FP&L is asking this Commission to adopt each of,the Company's factual and legal arguments without the benefit of a factual record or the views of a Licensing and Appeal Board on the legal issues. At bottom, FP&L is urging this Commission to hold its own 105a proceeding now based only on the pleadings before it and to decide, without the benefit of a factual record or a preliminary decision that it is not appropriate to modify the Company's existing NRC licenses. Such a request should be rejected.
The only appropriate way to handle this case, which is one of first impression, is to initiate a proceeding before a Licensing Board and allow all parties to make legal arguments and factual presentations in support of their positions. Only in that way can the Commission be assured that it vill be making its first decision under 105a with a complete record before it. The most efficient way to develop that record and consider those arguments is in the parallel and related 105c proceeding. Should FP&L prevail on the issues it raises neither proceeding will be seriously prejudiced by the improper joinder and much in the way of time and resources would be conser'ved.
0 CONCLUSION In view of the above and the August 25 and 28, 1978 filings of, the. Department i'..is submitted that this Commission should initate a 105a proceeding now and consolidate that proceeding with the 105c proceeding that has been ordered with respect to FPGL's St. Lucie No. 2 nuclear unit.
Respectfully submitted; John H. Shenefield Assistant. Attorney General Melvin G. Berger Antitrust Division Attorney, Energy Section Antitrust Division Donald A. Kaplan Acting Chief Energy Section Antitrust Division
.September 5, 1978
0 Ol UNITED STATES OF AMERICA.
NUCLEAR REGULATORY COMMISSION In the Matter of )
)-
FLORIDA POWER. & L'IGHT COMPANY ) Docket No. SO-33SA (St. Lucie Plant, Unit Nos. 1 ) 50-389A and 2) )
)
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-25'OA .
(Turkey Point Plant, Unit Nos. 3 ') 50-251A and 4) )
Certificate of Service I hereby certify that copies of RESPONSE OF THE DEPARTMENT OF JUSTICE have been served upon all of the par.ties listed on the attachment hereto by hand or by deposit in the United States, mail, first class of airmail, this 5th day, of September, 1978.
Pkd."~~ P n Melvin G. Berger Attorney Department of Justice Antitrust. Division
0 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSXON
)
In the Matter of )
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-335A (St. Lucie Plant, Unit Nos. 1 ) 50-389A and 2) )
) Docket No. 50-250A FLORIDA POWER & LIGHT COMPANY ) 50-251A (Turkey Point Plant, Units Nos. 3 )
and 4) )
)
SERVICE LIST Xvan W. Smith, Esq. J. A. Bouknight, Jr., Esq.
Chairman, Atomic Safety and Lowenstein, Neuman, Reis Licensing Board & Axelrad U. S. Nuclear Regulatory Commission 1025 Connecticut Ave., N.W.
Washington, D.C. 20555 Washington, D.C. 20036 Valentine B. Deale Robert A. Jablon, Esq.
1001 Connecticut Ave., N.W. 2600 Virginia Avenue, N.W.
Washington, D.C. 20036 Washington, D.C.. 20037 Robert M. Lazo, Esq. Jerome Saltzman Atomic Safety and Chief, Antitrust & Indemnity Licensing Board Group U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Washington, D.C. 20555 Commission
-Washington, D.C. 20555 Atomic Safety and. Licensing Board Panel Tracy Danese, Esq.
U.S. Nuclear Regulatory Commission Vice President for Public Washington, D.C. 20555 Affairs Florida Power & Light Co.
Docketing and Service Section Post Office Box 013100 Office of the Secretary Miami, Florida 33101 U. S. Nuclear Regulatory Commission Washington, D.C. 20555 John E. Mathews, Jr., Esq.
Mathews, Osborne, Ehrich, Joseph Rutberg, Esq. McNatt, Gobelman & Cobb Lee Scott Dewey, Esq. 1500 American Heritage Life Office of Executive Legal Building Director Jacksonville, Florida 32202 U. S. Nuclear Regulatory Commission Washington, D.C. 20555
~ ~
Robert E. Bathen R'. W. Beck G Associates Post .Office Box 6817 Orlando, Florida 32803 Dr. John W. Wilson Wilson 6 Associates 2600 Virginia Avenue, N.W.
Washington, D.C. 20037 Commissioner Joseph N. Hendrie Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Victor Gilinsky Office of the Commission U. S. Nuclear Regu'latory Commission Washington, D.C. 20555 Commissioner Richard Kennedy Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Peter Bradford Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555
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