ML17209B260

Motion Requesting ASLB Defer Consideration of Fl Cities 810527 Motion to Establish Procedures & Not Require Util to Answer on Motion Merits Until Further ASLB Order.Nothing Useful Can Be Accomplished by Motion.W/Certificate of Svc

ML17209B260
Person / Time
Site:	Saint Lucie
Issue date:	06/12/1981
From:	Bouknight J FLORIDA POWER & LIGHT CO., LOWENSTEIN, NEWMAN, REIS, AXELRAD & TOLL
To:	Atomic Safety and Licensing Board Panel
References
ISSUANCES-A, NUDOCS 8106190262
Download: ML17209B260 (6)

Text

FPL:6/12/81 JUN 18 1981~

yzgz ~~ gtaMTORX UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 6'FQRE THE ATOMIC SAFETY AND LICENSING BOARD

/PL In the Matter of )

)

FLORIDA POWER 6 LIGHT COMPANY ) Docket No-.~50-389A (St. Lucie Plant, Unit No. 2) o~

) June 12, TF81 +<<>

0(go4 MOTION OF FLORIDA POWER 6 LIGHT COMPANY FOR DEFERRAL OF CONSIDERATION OF MOTION FOR

SUMMARY

DISPOSITION On May 27, 1981, the Cities filed a "Motion to Establish Procedures, for a Declaration that- a Situation Inconsistent, with the Antitrust Laws Presently Exists and for Related Relief.", During the course of a conference call on June 11, 1981, the Cities advised the Board that they intend their plead-ing as a motion for summary disposition filed pursuant to 10 CFR 52.749. In these circumstances and for the reasons given below, FPL respectfully requests that the Board defer consideration of the Cities'otion and not require FPL to answer it on the merits until further order of the Board. The requested deferral could take the form either. of denial of the motion as premature, without prejudice to its refiling after discovery has progressed further, or of an order permitting FPL to defer filing of its response until ordered to do so by the Board. FPL requests this relief for two basic reasons.

First, discovery has not yet progressed to the point 1e

where FPL should be required to respond to a motion which, on its face, seeks disposition of all issues in the case other than relief. Cities have not yet responded to the interrogatories directed to them in this case. In the litigation pending in the U.S. District Court in Miami, FPL has had document discovery of most of the Cities, but not of the City of Lake Helen or the Florida Municipal Utilities Association (FMUA), which are parties to this proceeding but not to the Miami case. Some depositions have been taken in the Miami case, but depositions of the Cities are far from being completed; of course, no depositions have been taken of Lake Helen, FMUA or any expert witness who the Cities may designate when they file responses to interrogatories in this case.

Second, it is unlikely that anything useful can be accomplished by consideration of the motion in its present form, particularly at a time when issues have not been more clearly defined. There may be instances in which consideration of a motion for summary disposition'at an early stage of discovery can be appropriate and helpful, particularly where the motion is addressed to one or more sharply defined issues which involve the application of law to facts which are genuinely not subject to dispute. The Cities motion is not such a pleading. It is vague and discursive and relies on a list of "Material Facts Not Genuinely in Dispute" which consists of sweeping, highly argumentative generalizations.

These generalizations, in turn, are grounded on assumptions--

which FPL believes are unfounded that the Cities will succeed

in persuading the Board of their theories of markets, market

• /

power and competition. The Cities'otion is more in the nature of a prematurely filed trial brief than a motion for summary disposition, although it lacks the specificity which would be expected in a trial brief. Nothing would be accomplished at this time by FPL's taking the considerable time and effort "necessary to respond to.this lengthy motion or the Board's devoting its time to,wading through the evid- =

entiary materials" placed before it by the Cities. **/

Item 1 in the list of undisputed "facts" proferred by the Cities is illustrative. It includes the following: "FPL has an effective monopoly control over [nuclear facilities in Peninsular Florida], which it has used to advantage it-.

self in competition." That statement appears to rest on the assumptions that (1) nuclear generation is the relevant product market, (2) "Peninsular Florida" is the relevant geographic market, (3) FPL has monopoly power in the alleged market, and (4) FPL is engaged in some kind of undefined competition with Cities in some unspecified market. FPL contests each of these propositions. Moreover, the charge that FPL "has used [such monopoly control] to advantage it-self in competition" obviously has no place in the "short and concise statement of material facts" required by 10 CFR 52.749; The Cities have placed essentially the same factual pre-sentation that appears in their Motion before the U.S. District Court in Miami in papers filed in response to a motion by FPL for summary judgment of Tallahassee's claim that titled under the antitrust laws to access to FPL's it is en-nuclear plants. Florida Cities'nswer to Motion of FPL for Summary Judgment of Tallahassee's Nuclear Access Claim (No. 79-5101-Civ-JLK, May 15, 1981). The purpose of the Cities're-sentation to the Court is to convince the Court that genuine issues of material fact must be tried and that, therefore, FPL's motion for summary judgment should be denied; the Cities apparently did not consider their presentation sufficiently strong to justify their filing of a cross motion for summary judgment in the Miami case. Thus, we have the peculiar situation of the Cities'aving filed essentially the same presentation in two forums, claiming in one forum that absence of any material factual issues and it in demonstrates the the other that it demonstrates just the opposite.

Court on the motion could be of considerable The decision of the District assistance to this Board, and the Court's findings as to what factual propositions are and are not genuinely in issue could be very helpful. That is another reason for deferring 'consideration of the Cities'otion here.

FPL submits that it is not useful for the parties at this stage to argue the merits of their cases in an unfocused manner.

A far better use of the parties'ime and resources would be an effort to define with some specificity the matters that remain in issue in the wake of the settlement license conditions which were attached to the construction permit pursuant to the Board's Order of April 24, 1981. The first step in this process is for the 'Cities, as directed by the Board in the June ll, 1981, conference call, to submit a clear and unambiguous statement of the issues as they perceive them together with a specific state-ment of the additional relief which they seek. At the same time discovery can move forward, so that it will be possible to resolve expeditiously the issues so defined either upon motions for summary disposition or after a focused hearing.

WHEREFORE, FPL respectfully moves that the Cities motion for summary disposition be denied as premature, without prejudice to refiling at a future date, or that FPL be permitted to defer filing of its response to the Cities'otion until the Board issues a further order calling for a response.

R spectfu ly submitted, A. Bouknight, Jr.

L wenstein, Newman, Reis 6 Axelrad 1025 Connecticut Avenue, N.W.

Washington, D.C. 20006 Herbert Dym Covington & Burling 888 16th Street, N.W.

Washington, D;C. 20006 Attorneys for Florida Power 6 Light Company DATED: June 12, 1981

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389A (St. Lucie Plant, Unit No. 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of "MOTION OF FLORIDA POWER

& LIGHT COMPANY FOR DEFERRAL OF CONSIDERATION OF MOTION FOR SUN~DRY DISPOSITION" was served by hand delivery* or by deposit, in the U.S. Nail, first class, postage prepaid this 12th day of June, 1981.

• Ivan W. Smith, Esquire Atomic Safety and Licensing Chairman Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, D.C. 20555 Washington, D.C. 20555

• Robert M. Lazo, Esquire Robert E. Bathen Atomic Safety and Licensing Board Fred Saffer U.S. Nuclear Regulatory Commission R.W. Beck & Associates Washington, D.C. 20555 P.O. Box 6817 Orlando, Florida 32803 Michael A. Duggan, Esquire College of Business Administration

• Robert A. Jablon, Esquire University of Texas Alan J. Roth, Esquire Austin; Texas 78712 2600 Virginia Avenue, N.W.

Washington, D.C. 20037 Docketing and Service Station Office of the Secretary William C. Wise, Esquire U.S. Nuclear Regulatory Commission Suite 500 Washington, D.C. 20555 1200 18th Street, N.W.

Washington, D.C. 20036 Jerome Saltzman, Chief Antitrust & Indemnity Group William H. Chandler, Esquire U.S. Nuclear Regulatory Commission Chandler, O'Neal, Avera, Washington, D.C. 20555 Gray & Stripling Post Office Drawer 0 Thomas Gurney, Sr., Esquire Gainesville, Florida 32602 203 North Magnolia Avenue Orlando, Florida 32802

h 0 ~

• Janet Urban, Esquire *Benjamin H. Vogler P.O. Box 14141 U.S. Nuclear Regulatory Washington, D.C. 20044 Commission Washington, D.C. 20555 Donald A. Kaplan, Esquire Robert Fabrikant, Esquire Ann P. Hodgdon, Esquire Antitrust Division Office of the Executive Legal U.S. Department of Justice Director Washington, D.C. 20530 U.S. Nuclear Regulatory Commission Joseph Rutberg, Esquire Washington, D.C. 20555 Lee Scott Dewey, Esquire Fredric D. Chanania, Esquire

• George R. Kucik, Esquire Counsel for NRC Staff Narc Gary, Esquire U. S. Nuclear Regulatory Commission Ellen E. Sward, Esquire Washington, D.C. 20555 Arent, Fox, Kintner, Plotkin 6 Kahn Charles R.P. Brown, Esquire 1815 H Street, N.W.

Brown, Paxton and Williams Washington, D.C. 20006 301 South 6th Street P.O. Box 1418 Fort Pierce, Florida 33450 Richard S. Salzman, Esquire Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555 J.A. Bo nag t, Jr.

Xjowenstein, Newman, Reis 6 Axelrad 025 Connecticut Avenue, N.W.

Washington, D.C. 20036 (202) 862-8400 DATED: June 12, 1981