ML18088A549

Answer of the Department of Justice to Florida Power & Light Company'S Motion for Recall of Order in Light of Changed Circumstances

ML18088A549
Person / Time
Site:	Saint Lucie, Turkey Point
Issue date:	08/28/1978
From:	Berger M, Kaplan D, Shenefield J US Dept of Justice, Antitrust Div
To:	Atomic Safety and Licensing Board Panel
References
50-250A, 50-251A, 50-335A, 50-389A
Download: ML18088A549 (15)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION 1

In the Matter of FLORIDA POWER & LIGHT COMPANY Docket No. /~25k (St. Lucie Plant, Unit Nos. 1 50-389A and 2)

FLORIDA POWER & LIGHT COMPANY Docket No. 50-250A (Turkey Point Plant, Unit Nos. 3 50-251A and 4)"

ANSWER OF THE DEPARTMENT OF JUSTICE TO FLORIDA POWER & LIGHT COMPANY ' MOTION FOR RECALL OF ORDER IN LIGHT OF CHANGED CIRCUMSTANCES John H. Shenefield Joe Sims Assistant Attorney General Deputy Assistant At torney Antitrust Division 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

~C 0 0cKBEQ USggg Melvin G.. Berger Attorney, Energy Section pgg>g 187.8 P 39 Antitrust Division OoctalnO 8 eastactl

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Department of Justice P.O. Box 14141 Washington, D.C. 20044

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISS ION In the Matter of FLORIDA POWER 6 LIGHT COMPANY Docket No. 50-335A (St. Lucie Plant, Unit Nos. 1 50-389A and 2)

FLORIDA POWER & LIGHT COMPANY Docket No. 50-250A (Turkey Point Plant, Unit Nos. 3 50-251A and 4)

ANSWER OF THE DEPARTMENT OF JUSTICE TO FLORIDA POWER S( LIGHT COMPANY'S MOTION FOR RECALL OF ORDER IN LIGHT OF CHANGED CIRCUMSTANCES The Department of Justice (Department) submits this response to Florida Power and Light Company's Motion for Recall of Order in Light of Changed Circumstances and urges this Commission to deny the Motion on the grounds that it is without merit and 'is moot. The Department further urges the Commission to initiate a proceeding pursuant to Section 105a of the Atomic Energy Act, as amended (Act) (42 U.S.C. 2135a) for the reasons stated herein and in the Response of the Department of Justice, filed August 25, 1978.

On July 27, 1978 the Commission issued an Order requesting the parties in the above-captioned proceeding to express their views on certain questions regarding the initiation of a proceeding under Section 105a of the

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Act, in view of the decision of the United States Court of Appeals for the Fifth Circuit in Gainesville Utilities

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1 573 F. 2d 292 (1978). The Department filed its response to

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that Order on August 25,,1978. On August 14, 1978 the Court of Appeals issued a stay of its mandate in Gainesville.

Based on that stay, on August 18, 1978 Florida Power & Light Company (FP&L) filed a Motion for Recall of Order in Light of Changed Circumstances (Recall Motion).

FP&L, relying on the stay of the mandate issued by the Fifth Circuit Court of Appeals, urges this Commission to take an action which would in all likelihood lead to a delay in the 105a proceeding, the 105c proceeding presently pending before an NRC Licensing Board or both. The stay of the Gainesville decision will be in effect only until September 13, 1978 or until the Supreme Court disposes of FP&L's request for review. The chance of the Supreme Court granting such review is miniscule as very few petitions for writs of certiorari are granted. The likely consequence of waiting several months for the certiorari petition would be that this Commission will be faced with the prospect of either initiating a separate 105a proceeding or consolidating such proceeding with the ongoing 105c proceeding. As more fully explained in The Response of the Department of Justice filed August 25, 1978, either of these courses of action could

lead to delays in finally determining FP&L's antitrust liability and removing the cloud that now exists over the Company's Nuclear Regulatory Commission licenses and permit.

The wiser course of action would be for this Commission to initiate a 105a proceeding now which can run concurrently with the 105c proceeding. If, in the future, some event occurs which makes it inappropriate to continue that 105a proceeding the Commission can stay or sever that proceeding.

Under these circumstances, FP&L will not be prejudiced in any way; since the issues in both proceedings are similar, at worst FP&L will only have to engage in a minimal amount of additional discovery in litigating the 105a proceeding. All parties can, prepare for both hearings concurrently by conducting simultaneous or combined dis-covery. Most importantly, there will be no delay in finally adjudicating FP&L's liability.

Lastly, the Department would note that since the parties have already filed their responses to the Com-mission's July 27, 1978 Order, FP&L's Recall Motion should be denied as being moot.

In view of the above and the reasons stated in the Response of the Department of Justice filed August 25, 1978 the Department urges this Commission to deny FP&L's Recall

Motion, to initiate a 105a proceeding now and to consolidate said proceeding with the 105c proceeding that has been ordered with respect to FP&L'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 August 28, 1978

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of, )

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FLORIDA POWER 6 LIGHT COMPANY ) Docket No. 50-335A (St. Lucie Plant, Unit Nos. 1 ) 50-389A and 2) )

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FLORIDA POWER 8 LIGHT COMPANY ) Docket No. 50-250A (Turkey Point Plant, Unit Nos. 3 ) 50;251A and 4) )

Certificate of Service I hereby certify that copies of ANSWER OF THE DEPARTMENT OF JUSTICE TO FLORIDA POWER 6 LIGHT COMPANY'S MOTION FOR RECALL OF ORDER IN LIGHT OF CHANGED CIRCUMSTANCES have been served upon all of the parties listed on the attachment hereto by hand or by deposit in the United States mail, first class of airmail, this 28th day of August, 1978.

Melvin G. Berger Attorney Department of Justice Antitrust Division

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION-In the Matter of

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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) )

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SERVICE LIST Ivan 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. 26555

Robert E. Bathen R. W. Beck 6 Associates Post Office Box 6817

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Orlando, Florida 32803 Dr. John W. Wilson Wilson 6 Associates 2600 Virginia Avenue, N.W.

Washington, D.C. 20037 Commissioner Joseph M. Hendrie Office of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Commissioner Victor Gilinsky Office of the Commission U.S. Nuclear Regulatory 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 f o the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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