Text

Answer of Florida Municipal Power Agency to FPL Response in Opposition to Petition for Enforcement Action. W/Vols I & II of Apps
	ML17228A312
Person / Time
Site:	Saint Lucie
Issue date:	09/24/1993
From:	Jablon R; FLORIDA MUNICIPAL POWER AGENCY, SPIEGEL & MCDIARMID
To:	; NRC
Shared Package
ML17228A313	List: ML17228A312; ML17309A713;
References
	NUDOCS 9309290329
	Download: ML17228A312 (40)
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UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION

.I Fibida=PO>>er--a i ight Company ) Docket No. 50-389A

)

(St. Lucie Plant, Unit No. 2) ) Operating License

) No. NPF-16

)

ANSWER OF FLORIDA MUNICIPAL POWER AGENCY TO FLORIDA POWER AND LIGHT COMPANYiS RESPONSE IN OPPOSITION TO PETITION FOR ENFORCEMENT ACTION On August 27, 1993, FPL requested dismissal of FMPA's July 2, 1993 Petition for enforcement of antitrust conditions attached to FPL's St. Lucie Unit 2 nuclear license. The Antitrust Conditions require that FPL transmit power "between two or among more than two neighboring entities, or sections of a neighboring entity's system which are geographically separated."

Antitrust Condition X(a). The Conditions further require, In the event that the Company and a requesting entity are unable to agree regarding transmission services required to be provided under this section X, Company shall, upon the request of such entity, immediately file a service agreement at the Federal Energy Regulatory Commission or its successor agency providing for such service.

Rate schedules and agreements, as required to provide for the facilities and arrangements needed to implement the bulk power supply policies herein, are to be submitted by the Company to the regulatory agency having jurisdxction thereof.

Antitrust Conditions X(b) and XII.

PDR N 'DR 9309290329 930924 ADOCK 05000389',

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In spite of repeated requests, FPL has refused to sell FMPA network ( among ) transmission services, as required by Section X(a), +1 and has refused to file a tariff, rate schedule, or service agreement at the Federal Energy Regulatory Commission

("FERC") for the sale of such services. +2 FPL has thereby prevented FMPA from planning and operating generation for its participating members on a combined least-cost basis, thereby unnecessarily costing FMPA, and ultimately the public, millions of dollars. FMPA has asked this Commission to order that FPL

'le move, towards compliance -with. the Antitrust Conditions by filing with FERC to provide for network transmission.

In pleadings before the FERC and in its August 27, 1993 Response to this Commission, as well as in pleadings before the District Court, FPL has proffered a myriad of legal, factual, and policy arguments for not requiring it to sell FMPA network transmission services on the terms that FMPA requested. FPL misses'he point. The Antitrust Conditions require that in the event of a dispute, FPL "shall, upon the request of that entity, immediatel file a service a reement at the Federal Energy

+1 See Louisiana Power & Li ht Co. (Waterford Steam Generating Station Unit, No. 3), Docket No. 50-382A, 8 AEC 718 (Atomic Safety

& Lic. Bd. 1974), ~aff', 1 NRC 45 (Appeal Bd. 1975) ("LP&L").

FPL has also refused to sell wholesale power to FMPA in violation of Antitrust Condition IX. See FMPA's Motion for Leave

+2 to File Supplemented Amended Complaint in Florida Munici al Power A enc v. Florida Power & Li ht Com an , Case No. 92-35-CIV-ORL-3A22 ("District Court case") (October 6, 1992) (Appendix 8), the correspondence attached thereto, and the Supplemental Amended Complaint (also included in Appendix 8) at $ $ 17(c) and 17(d).

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Regulatory Commission~ (Section X(b), emphasis added); the plain intent is to prevent FPL from delaying or avoiding service while debating the terms.

The Antitrust Conditions are carefully structured to protect FPL's legitimate interests, while preventing FPL from causing competitive injury by failing to provide required services. FPL is protected because it is permitted to determine, subject to regulatory review, the rates, terms and conditions that will apply to the requested services. Thus, FPL may make a it filing which ~believes "compensates it for its costs of transmission reasonably allocable to the service."

Condition X(b). FPL's customers (including FMPA) are also protected, by regulatory review and because FPL is required to include terms and conditions providing that "if the rates become effective prior to the resolution of contested issues associated with the new rate schedules," appropriate refunds will be made retroactively. See Condition XII. Most important, competition is protected because FPL is not permitted to withhold service by disagreeing with the customer's proposed rates, terms and conditions.

Under the structure of the Antitrust Conditions the NRC need not, become involved in determining the precise rates, terms and conditions for transmission services. All that is required is for the licensee to file with FERC its (good faith) version of an appropriate transmission service agreement ('TSA ) that provides for the requested services and thereby invokes FERC's

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jurisdiction. That is what FPL has refused to do and still refuses to do.

Considering that the Antitrust Conditions permit FPL to sell network transmission on a basis which FPL (in the first instance) determines compensates fully for its resulting transmission costs, one must wonder why FPL has refused to do so.

The answer is that FPL seeks to withhold transmission services so that it can extract monopoly rents in the markets upstream and

.downstream of the transmission bottleneck. By refusing to file,

'FPL can delay .the onset of competition through negotiation, retrogression, litigation, forum evasion and empty promises precisely what the Antitrust Conditions were designed to prevent.

FPL's obligation to sell network service is plain from the "among" language of the Antitrust Conditions and from LPSL. +3 While it is unnecessary to go beyond the language of the Antitrust Conditions and LP&L, FMPA notes that this obligation

~3 is also confirmed by the August 20, 1993 affidavit of Dr. Gordon T.C. Taylor, the former FERC Director of Economics and Finance who advised the"Department of Justice in negotiation of FPL's settlement license conditions. Dr. Taylor's affidavit was referenced and attached in the recent FERC pleadings being lodged herewith, but has since been withdrawn from FERC Docket No.

ER93-465-000 by its sponsor (Seminole Electric Cooperative) after FPL moved to strike it. In withdrawing the affidavit, Seminole explained that "[t]his action does not relate to the truthfulness or accuracy of the affidavit," and stated:

Seminole wishes to underscore the fact that its filing today of the referenced Notice of Withdrawal and the present Answer does not in any way alter Seminole's outstanding position that the St. Lucie License conditions require that FPL make comprehensive network transmission service available to Seminole.

Seminole's September 23, 1993 Notice (at 1) and Answer (at 2 n.2)

(Appendix 9).

Yet FPL asserts four excuses for not filing a network transmission rate at FERC, all of them patently inadequate:

(1) that "FPL Has Agreed To Respond To A 'Good Faith Request'or Network Transmxssion Service Pursuant To New Section 211 Of The Federal Power Act And To Abide By A FERC Decision Pursuant To Sections 211 And 212 Of The Federal Power Act" (Response at 2) i.e., that FPL deigns to obey the Act; (2) that FMPA has not supplied FPL with information necessary to evaluate FMPA's request (Response at 3 and no.3) i.e., that FPL's outright rejection of the principle of network transmission purportedly left it with unanswered questions concerning the details of how FMPA proposed to implement it; (3) '=that FMPA-is "Bound By Contracts" that it accepted "Rather than seek Enforcement of the License Conditions" (Response at 4 and 7) i.e., that because FPL has violated the Antitrust Conditions before and FMPA did not petition for enforcement at that time, FMPA has forever waived the right to obtain network service; and (4) that "The St. Lucie Antitrust Conditions Do Not Guarantee FMPA 'Network'ervice On The Terms That FMPA Demands~ (Response at 10) i.e., that FMPA has not only invoked the basic principle of network transmission but has also proposed specifzc rates, terms, and conditions to implement that principle.

FMPA has dissected these excuses in its FERC pleadings, which we

'supply, and..supplement herein. ~4 FPL responded to FMPA's Petition by filing with this Commission its Answer to the Complaint filed by FMPA at FERC, and Q4 by incorporating and supportinq that Answer in additional arguments made to this Commissa.on, and by moving for dismissal of the Petition. FMPA has refuted FPL's arguments in pleadings pending before the FERC. FMPA hereby lodges, these pleadings to supplement its petition and in response to FPL's motion for dismissal. Relevant portions of the following FERC pleadings are attached:

1. FMPA's July 2, 1993 Complaint, Application and Motion for Summary Disposition in FERC Docket Nos. EL93-51-000 and TX93-4-000 (Appendix 10) ("FERC Complaint" );

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I. IF FPL IS GENUINELY WILLING TO PROVIDE FMPA WITH A FORM OF NETWORK TRANSMISSION SERVICE, THEN IT SHOULD FILE WITH FERC TO PROVIDE FOR SUCH SERVICE FPL implies that this Commission need not bother with FPL's refusal to file a TSA at FERC providing for network service because FPL is, in fact, willing to provide for such service:

It hasnegotiate will been and remains FPL's position that to replace these five existing it transmission service agreements with an agreement providing comprehensively a form of "network" transmission service so long as (1) the reliability of FPL's system is not jeopardized, (2) FPL receives fair compensation and its other customers do not subsidize FMPA, and =(3) the arrangement allows FPL prudently to plan and operate its transmission system.

Response at 2-3. If FPL is willing to provide network service,.

if let file. FPL may request rates and terms "which compensate[]

it for its costs of transmission reasonably allocable-.to the service," Antitrust ConditionsSection X(b), but under the Antitrust Conditions, FPL cannot refuse to file. +5

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2. FMPA's September 9, 1993 Response to Motions in FERC Docket Nos. EL93-91-000 and TX93-4-000, with its.attachments (Appendix 11);

3. Florida Cities'ugust 24, 1993 Amended Protest, etc. in FERC Docket No. ER93-465-000 (Appendix 12); and

4. FMPA's September 21, 1993 Protest, etc. in FERC Docket No. ER93-922-000 (Appendix 13).

Q5 To be sure, the Antitrust Conditions provide for limitations such as that "the services can reasonably be accommodated from a technical standpoint without significantly jeopardizing Company's reliability or its use of transmission facilitzes~

(Section X(a)(3)) and that reasonable advance notice be provided (if FPL had promulgated a reasonable notice timetable)

(Section X(a)(4)). But there can be no issues here with respect

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The Commission must judge.FPL's statement that it "has been" FPL's position that it is willing to negotiate for what it calls "a form of 'network'ransmission service" against FPL's contention that FMPA's court claims for network transmission are time-barred because FPL has long made clear that it would never.

sell network transmission:

[N]o later than 1982 it was FPL's policy not to provide the network pricing that FMPA sought and now claims it was entitled to under the "Contract.>> FMPA never believed that policy would change.

[Because] FPL's responses to requests for network service were not merely no, but "hell no," there is simply no room for FMPA to claim a factual dispute over whether, in the Eleventh Circuit's words, FMPA had "reason to believe" that FPL's policy, reiterated during five previous contract negotiations,."did not.

still stand." The "messages" in the long-standing commercial relationship between these parties were crystal clear. +6 it has not been willing to actually sell network transmission, nor to permit any forum to proceed to a determination of whether

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to these points. See FERC Complaint at 72-82 (Appendix 10); see infra'art II.files In any event,-such at concerns can be addressed by whatever FPL FERC.

See FPL's April 15, 1993 Summary Judgment Memorandum at 6-10 (footnote omitted) (Appendix 16). To the same effect, in its

+6 August. 17, 1993 pre-trial statement in the District Court case, FPL claims that one of the factual issues for trial is "[w]hether FMPA has ever believed and has ever had any basis for assuming its policy not to priceat 18.

that FPL would change or had changed basis."

transmission service on the network (Appendix 17)

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FPL's excuse for not doing so is legal. After two years of fruitless negotiations seeking network transmission for its Integrated Dispatch and Operations ("IDO") project, FMPA was forced to file a lawsuit to protect its rights. Q7 FPL removed the case to federal court and then filed a motion to dismiss, claiming that the court lacked jurisdiction because of this Commission's exclusive jurisdiction to enforce FPL's agreement to adhere to the Antitrust Conditions. Q8 FPL subsequently asserted that because transmission rates are involved, the FERC has exclusive jurisdiction. Q9 On March 19, 1993, FPL filed a transmission tariff expressly limited to "point-to-point" transmission service. ~10 When FMPA protested the exclusion of network transmission service, FPL contended that FERC .lacked jurisdiction under Federal Power Act Section 205 to order FPL to file a network transmission rate, but was limited to assessing the justness and reasonableness of the, point-to-point services for which FPL had filed; FPL stated that FMPA's claim to network

+7 FMPA claims that FPL's refusal to abide by the Antitrust Conditions breached FPL's settlement agreements with the Department of Justice, the NRC Staff and Florida Cities and violated antitrust statutes.

+8 FPL's motion was denied by Order of April 9, 1992 (Petition Appendix A-27).

~9 See, e.cC,, FPL's Summary Judgment Memorandum at 11, 15-19 (Appendix 16) .

~10 See, e.q,, FPL's proposed Tariff No. 1, Sections 1.5, 1.19, 1.20, and 7.3 (Petition Appendix A-22). See also the transmittal FPL's March 19, 1993 FERC filing at 6 letter accompanying A-22).

(Petition Appendix

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rights should be dealt with by FMPA's filing a separate Section 206 Complaint or Section 211 Application. ~11 However, after FMPA did in fact file a complaint and application at FERC requesting FERC to order FPL to provide for network transmission service,'FPL argued for dismissal, claiming that FERC cannot order the service under Sections 205 and 206 and that FPL's claimed willingness to sell network service in response to a "good faith" request moots FMPA's Section 211 Application. ~12 Now, after having told the FERC and the District Court that only

'his Commission can enforce the Antitrust Conditions, FPL tells this Commission that because FPL is willing to provide "a form

~11 See FPL's April 27, 1993 Answer in FERC Docket No. ER93-465-000 at 35-37 (Appendix 18).

~12 See FPL's August 23, 1993 Answer at 55-58; 61-62. Federal Power Act Sections 205 and 206 are the longstanding rate-setting provisions directing that all wholesale power and transmission rates shall be "just and reasonable," not unduly discriminatory or preferential,. and in .the public interest... By failing to make a Section 205 filing and raising jurisdictional objections to a Section 206 filing, FPL is attempting to remit FMPA to proceeding, if at all, under new Section 211 procedures pursuant to the Energy Policy Act of 1992. See id. at 2-3, 55-58. FPL apparently hopes to further delay resolution of FMPA's claim to network service by forcing FMPA to bear the weight of a test case, requiring FMPA to overcome every inventive technical defense that FPL can read into the new Act. FPL's latest delay strategy is unavailing. FERC has ample jurisdiction to proceed under Sections 205 and 206. See Amended Protest at 21-66 (Appendix 12); FERC Complaint at 36-70 (Appendix 10); Response to Motions at 26-27 (Appendix 11). Moreover, when FPL agreed to the license conditions (long before the 1992 Act), it contemplated that FERC would have "plenary" authority to review plainly FPL's filings for consistency with the Antitrust rules" under Sections 205 and 206. See Petition Appendix Conditions'basic A-15 at 72 n.2.

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10 of" network transmission service, this Commission can safely ignore the matter and FMPA's Petition should be dismissed.

If the FERC and this Commission do as FPL requests, FMPA and the public stand to lose still more -years .in negotiations and litigation, and FPL still will not be providing network transmission service, to the detriment of the public interest and the authority of both Commissions. We reiterate: this is precisely the kind of conduct which Antitrust Conditions X(b) and XII (requiring that FPL "immediately" make all FERC filings

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necessary to implement the Antitrust Conditions'ulk power supply policies) were intended to prevent. See Pacific Gas &

Electric Co., 31 NRC 595, 602 (1990), in which the director censured PG&E for "circumventing ... [FERC's] jurisdiction by failing to file required service schedules,",.thereby "potentially forcing those parties to take service under whatever terms PG&E provides" and violating its license conditions.

Moreover, there is every reason to believe that FPL's statement thatit is willing to agree. to network transmission is disingenuous, if not downright dishonest. The statement that FPL is willing to agree to "a form of" network transmission is highly qualified. In light of FPL's recent "discovery" that its TSAs, which it had previously characterized as -point-to-point, in fact provide "close to" network transmission, there is reason to believe that FPL intends to label point-to-point service network

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11 service, and to continue its refusal to deal. ~13 It was just this kind of linguistic slight-of-hand, suggesting a commitment to one policy while following another, which led to this Commission's antitrust review of FPL. ~14 II. FPLiS CONTENTION THAT IT NEEDS MORE INFORMATION DOES NOT JUSTIFY DELAY FPL s suggestions that FMPA somehow has not made an adequately informative, definite, or comprehensive transmission request are nothing short of incredible. FPL witnesses have testified that FPL understands exactly what FMPA wants. ~15

~13 FPL's Answer to the FERC Complaint states (at 14) that "[i]n its recent Policy Statement, the Commission stated that thereOn xs a continuum from point-to-point to full 'network'ervice.

this continuum, the [FMPA/FPL] All-Requirements Agreement is close to full network service.>> Heretofore, FPL had made clear that it did not -believe that-either the TSAs or the proposal FPL floated during negotiations provided for network transmit.ssion service. See, e.cC., April 27, 1990 letter from W.C. Locke, Jr.,

to Calvin Henze; Schoneck Tr. 126-127 (Appendix 5).

~14 Antitrust review was ordered -when FPL's statements to the, the Orlando Utilities Commission and previous commitments to Department of Justice that it would make available future nuclear capacity were found to mean- less than had been understood. See In the matter of Florida Power & Li ht Co. (St. Lucie Nuclear Power Plant, Unit No. 2), 6 NRC 8, 13-2 (Appeal Bd. 1977);

~corn are November 14, 1973 letter from the DOJ to the NRC (Appendix 19) at 7 with March 2, 1976 letter from the DOJ to the NRC (Appendix 20) at 3. (FPL's failure to follow through on a commitment to "seriously consider" municipal participatxon in its next nuclear unit "surprised" the DOJ and led to antitrust investigation). Florida Power & Li ht Co., 8 FERC $ 61,121 at 61,457, 61,460-61 (1979) found a similar pattern.

~15 See Smith Tr. 73 (Appendix 6); Schoneck Tr. 83-87 (Appendix 5); Locke Tr. 578 (Appendix 4); Frank Tr. 5 (Appendix 2); Taylor Tr. 46-47 (Appendix 7); and Enjamio Tr. 107 (Appendix 1). Cites to testimony herein are to depositions taken from the District Court case, which are grouped at the beginning of the attached appendix volume. See also Response to Motions at 10-15 (Appendix 11).

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12 When FMPA formally requested network transmission for the IDO project, it provided FPL with a draft contract, suitable for filing, modeled after a contract which neighboring Florida Power Corporation had accepted. ~16 FMPA has made repeated requests ,

for network transmission and has supplied FPL with all reasonable information. The attached Affidavit of Albert B. Malmsjo, consulting engineer for FMPA who participated in the negotiations (Appendix 14), details how FMPA bent over backwards to supply FPL the information it requested and to meet FPL's purported concerns.

Moreover, during negotiations FPL had no hesitation in stating that it could interconnect FMPA's resources and loads through a concatenation of point-to-point services. ~17 Although "FPL's.proposal was a sham, designed merely.to .pretend compliance with FPL's obligations, that FPL made it obviates arguments that FPL lacked sufficient information to respond to FMPA's request.

III. FMPA NEVER WAIVED ITS ANTITRUST CONDITION RIGHTS

" FPL's. next argument is .,that by provisionally agreeing to pay for transmission under individual TSAs on a point-to-point

("between") basis, FMPA forever lost its right to the network

("among") transmission service required by the Antitrust

~16 See September 8, 1989 letter from Robert C. Williams to W.C. Locke, Jr. (Appendix A to Appendix 14) (attaching draft contract).

~17 See April 27, 1990 letter from W.C. Locke, Jr. to FMPA General Manager Calvin Henze (Appendix 15); Gosselin Tr. 57-60; 119-120 (Appendix 3); Schoneck Tr. 132-133 (Appendix 5).

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13 Conditions. At the same time, perhaps recognizing the flimsiness of its arguments, FPL says that it is willing to "renegotiate" the TSAs under which FPL claims FMPA gave up its rights. FMPA never, ever, waived its rights to the transmission,.services. that the Antitrust Conditions require FPL to sell. FPL has recognized that these rights provide the <<basic rules under which it must deal with FMPA. ~18 The transmission agreements on which FPL relies include not one word stating that FMPA waived future rights to network

'ervice. " FPL does not"claim that it ever requested such a waiver, nor does it claim that FMPA ever agreed to such a waiver request. FPL cites to no filing before this Commission modifying the Antitrust Conditions. None exists.

The facts are that when.FPL illegally refused to sell network transmission service, in order to get service necessary to get power from its generating resources to its member cities and to obtain financing for those resources, FMPA agreed to

". - .individual.TSAs .which expressly preserved,FMPA's rights to obtain network transmission in the future. Had FMPA not agreed, it risked losing its ability to invest in the St. Lucie nuclear project (as provided for in the Antitrust Conditions), its ability to invest in the Stanton Coal Project, and its ability to sell power to its all-requirements members. Indeed, it would have risked the future of the agency itself. See April 29, 1993

~18 See Petition Appendix A-15 at 72 n.2.

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14 Affidavit of Nicholas P. Guarriello at $$ 13-15 (Petition Appendix A-12).

Although network transmission would have been

advantageous to. those projects=earlier, they'commenced without it. As FPL concedes (Answer to FERC Complaint at 14) St. Lucie.

is a-baseload resource for which scheduling flexibility was less important when other resources were not also being transmitted.

In contrast, network transmission was absolutely essential to FMPA's IDO project, in which FMPA committed to plan and operate

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its generation on an integrated least cost basis (like FPL does).

FPL argues that by not suing after FPL's refusal to give it network transmission for St. Lucie, FMPA gave up the benefits of "among" transmission for all time and that the efforts of the NRC," the Justice Department and the..Florida. Cities to,correct a "situation inconsistent" were negated. ~19 FPL ignores that the TSAs are expressly provisional arrangements subject to change in the future. Each of these TSAs expressly permits both parties to

~ file for. changes. to institute-network service, FPL under Section 205 of the Power Act (applicable to sellers) and FMPA under Section 206 of the Power Act (applicable to purchasers). ~20

~19 Amazingly, FPL states that, FMPA cannot have'he Antitrust Conditions enforced because <<[t]he St. Lucie License Conditions gave FMPA the option of requiring FPL to file unilaterally with the FERC unexecuted contracts for transmission service."

Response at 7. That is what FMPA has repeatedly asked FPL to do and is petitioning this Commission to order. FPL rebuffed FMPA's requests and now asks this Commission to dismiss FMPA's Petition.

~20 See, e.cC,, St. Lucie TSA (Petition Appendix A-19) 5 12.1; see also FERC Complaint at 11-12 (Appendix 10) (reviewing reopener

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15 Indeed, FPL has filed with FERC to make substantial changes in these same TSAs, including a proposal that FMPA be required to purchase an unwanted FPL generation service in order to obtain access to FPL's monopoly transmission facilities. ~21 Moreover, the TSAs contain express reservation of rights and non-waiver clauses. FMPA remains entitled, and FPL remains obligated, to .

submit any rate filings required to permit FMPA to obtain network transmission. ~22 IV. FPL S CLAIMS THAT THE ANTITRUST CONDITIONS DO NOT GUARANTEE FMPA ITS REQUESTED TERMS DO NOT JUSTIFY FPL'S FAILURE TO

'FILE TO. PROVIDE NETWORK TRANSMISSION UNDE ANY TERMS FPL has not filed for network transmission. FPL's claim that it "already provides network transmission service 'among'MPA members pursuant to the existing TSAs" (see Response at 10)

>>is untrue. The,.TSAs,clearly do not.permit .FMPA.to vary its scheduling of transmission among various delivery and receipt-

[FOOTNOTE CONTINUED FROM PRECEDING PAGE]

clauses in the other TSAs); Gosselin Tr. 42-43 (Appendix 3)

(reopener provision added to the All-Requirements TSA when restated and revised in 1990 was included "in contemplation of a it was transmission service agreement for the integrated dispatch operation project," so that <<[i]n the event that a transmission service arrangement was negotiated which included the all-requirements cities, that this agreement would be able to be revised to accommodate such understanding that may have been reached").

~21 See FMPA Protest at 7-9 and 36-38 (Appendix 13).

~22 United States v. Pacific Gas & Elec. Co., 714 F.Supp. 1039, 1052 (N.D. Cal. 1989), on which FPL wrongly relies (Response at 5-7), holds that where rates for discrete services contain re-opener clauses, neighboring entities may, and licensees must, invoke them as necessary to implement rights granted by license condition settlements. See Response to Motions (Appendix 11) at 29-31.

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16 points without paying multiplicative charges. See Petition Appendix A-19; FERC Complaint at 25-31 (Appendix 10). FPL has repeatedly confirmed that they contain stringent point-to-point restrictions. See FPL's .Summary Judgment Memorandum at 6 6 n.2 (Appendix 16), in which FPL relied on affidavits to demonstrate that "transmission service provided by FPL to FMPA is priced on a

"'point-to-point basis .... Under point to point pricing, FMPA must pay separately for each 'contract demand'etween each point of receipt of power on FPL's system and each point of delivery

~ 'from the FPL system." --FERC has..made clear that such service is not network transmission. ~23 This Commission long ago made clear that such service does not "permit the coordination (both operation and development) sufficient to overcome a situation inconsistent with the antitrust laws by a group of municipal utilities" required to correct a 'situation inconsistent,'>> see LP&L 8 AEC at 733-34, and this Commission unambiguously required FPL to provide network ("among ) transmission instead.

, FPL,must file to provide network transmission service.

If FPL disagrees that the rates, terms and conditions that FMPA has suggested are appropriate, FPL is free to file its own (good faith) proposals. But it cannot stand on that disagreement as an excuse for not filing. See Antitrust Conditions X(b) and XII..

FERC recently defined network transmission as "transmission service that allows the user to vary its schedule and points of

~23 delivery and receipt on the grid without paying an additional charge for each change." See Policy Statement, 58 Fed. Reg.

38,964 at 38,966 (1993).

17 CONCLUSION FPL is obligated to file a network transmission rate at FERC. FPL has not filed. FPL's promises and excuses cannot alter-these fundamental facts. For the foregoing reasons, FMPA's

'Petition'should not be dismissed and FPL's -license conditions .--

should be enforced.

Respectfully submitted, Robert A. ablon Bonnie S. Blair Cynthia S. Bogorad David E. Pomper SPIEGEL 6 McDIARMID Suite 1100 1350 New York Avenue N.W.

Washington, D.C. 20005-4798 Frederick Bryant MOORED WILLIAMS@ BRYANT/

PEEBLES & GAUTIER, P.A.

306 East College Avenue Tallahassee, FL 32302 (904) 222-5510 Attorneys for Florida Municipal Power Agency September 24, 1993

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CERTIFICATE OF SERVICE I hereby certify that I have this day caused the

'foregoing document, and its Appendices, to be served by- hand delivery to Lon Bouknight, Esq., Newman & Holtzinger, P.C., 1615 L Street, N.W., Washington, D.C.

Dated at Washington, D.C. this 24th day of September, 1993.

Robert A. ablon Law offices of:

Spiegel & McDiarmid Suite 1100 1350 New York Avenue N.W.

Washington, D.C. 20005-4798 (202) 879-4000

UNITED STATES OF AMERICA BEFORE THE NUCLEAR REGULATORY COMMISSION

)

Florida Power & Light Company ) Docket No. 50-389A

)

(St. Lucie Plant, Unit No. 2) ) Operating License

) No. NPF-16 APPENDICES TO ANSWER OF FLORIDA MUNICIPAL POWER AGENCY TO FLORIDA POOWER AND LIGHT COMPANY'S RESPONSE IN OPPOSITION TO PETITION FOR ENFORCEMENT ACTION VOLUME I OF II Robert A. Zablon Alan J. Roth David E. Pomper SPIEGEL & McDIARMID Suite 1100 1350 New York Avenue N.W.

Washington, D.C. 20005-4798 Frederick Bryant MOORED WILLIAMS'RYANT/

PEEBLES & GAUTIER, P.A.

306 East College Avenue Tallahassee, FL 32302 Attorneys for Florida Municipal Power Agency September 24, 1993

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INDEX TO APPENDICES ANSWER OF FLORIDA MUNICIPAL POWER AGENCY TO FLORIDA POWER & LIGHT COMPANY'S RESPONSE IN OPPOSITION TO PETITION FOR ENFORCEMENT ACTION Testimon from Florida Munici al Power A enc v. Florida Power &

Li ht Co. Case No. 92-35-CIV-ORL-3A22 1~ Deposition of Juan E. Enjamio, November 4, 1992, p. 107.

2 ~ Deposition of Stephen Frank, November 19, 1992, p. 5.

3 ~ Deposition of Dean R. Gosselin, November 2, 1992, pp.

42-43, 57-60, 119-120.

4 ~ Deposition of William. C. Locke, Jr., January 12, 1993,

p. 578.

5~ Deposition of William Robert Schoneck, November 10-11, 1992/ pp 83 87'26 127'32 33 6 ~ of William Smith, February 23, 1993, p. 73.

'eposition 7 ~ Deposition of Richard Larry Taylor, November 17, 1992,

p. 46-47.

ML17228A312

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