ML20005B956
| ML20005B956 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 09/14/1981 |
| From: | Jablon R, Roth A FLORIDA CITIES (FLORIDA MUNICIPAL UTILITIES ASSOCIATE, JABLON, R.A., ROTH, A.J. |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8109160184 | |
| Download: ML20005B956 (200) | |
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Florid 2 Citico 9/14/81 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: q Peter B. Bolch, Chairman p OCYETED ,
Michael A. Duggan 22 UUiRO --B SEP 15198, Robert M. Lazo u >
Ivan W. Smith, Alternate CN g d g7 "
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FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389A
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(St. Lucie Plant, Unit No. 2) ) September 14, 1981
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FLORIDA CITIES'- SUPPLEMENTAL MEMORANDUM m d
- IN RESPO..iSE TO BOARD QUESTIONS AT -
ORAL ARGUMENT OF AUGUST 17-18, 1981 t .
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Robert A. Jablon \
Alan J. Roth 4I Daniel Guttman IO Marta A. Manildi Attorneys for the Lake Worth Utilities Authority, the Utilities Commission of New Smyrna Beach, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Ft.
Meade, Homestead, Key West, Kissimmee, Mt. Dora, Newberry, St.
Cloud, Starke and Tallahassee, Florida, and the Florida Municipal September 14, 1981 Utilities Agency Law offices of:
Spiegel & McDiarmid 2600 Virginia Avenue N.W. N bp a
, Washington, D.C. 20037 p 5'A O
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A .s TABLE OF CONTENTS Page Table of Authorities ................................ ii 9
I. ACCOP. DING TO THE CASE LAW AND RELATED CONSIDERATIONS, COLLATERAL ESTOPPEL IS NOT PRECLUDED IN THIS CASE BY ANY SHIFT IN THE BURDEN OF PERSUASION. .................... 1 A. There Is No Shift In The Burden Of Persuasion Here. ........................ 2 B. Any Arguable Shif t Is Irrelevant; The Prior Case Did Not Turn On Any Burden That Might Shift Here. .............. 5 C. The Case Law Applies Collateral Estoppel Notwithstanding Shifts In The Burden Of Persuasion. ............... 8 II. FPL DEALS WITH SOME MUNICIPAL SYSTEMS OUTSIDE ITS RETAIL SERVICE AREA; ITS REFUSALS TO DEAL WITH OTHERS HAS NO
, FOUNDATION IN ANY INDUSTRY CUSTOM AND IS INCONSISTENT WITH ITS RETAIL SALES TO NONCONTIGUOUS AREAS. ......................... 14 III. THE DOCUMENTS APPENDED TO CITIES' MAY 27, 1981 MOTION AND AUGUST 7, 1981 RESPONSE ARE ADMISSIBLE AND DETERMINATIVE. ..................... ............ 17 IV. INTERIM REPORT: TWO ADDITIONAL FMUA MEMBERS ARC CONSIDERING SEZKING RELIEF IN THIS PROCEEDING .............................. 19 V. ADDITIONAL DOCUMENTS ............................ 21
- 1. FPL's attempted acquisition of Homestead. ............................ 21 l
- 2. FPL's reliance on coordination. ....... 22
- 3. FOC, FCG. ............................. 23 24 CONCLUSION ..........................................
APPENDED DOCUMENTS A-F (separately bound) l
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TABLE OF AUTHORITIES CASES: Page Associated Press v. United States, 326 U.S.
1 (1945) .......................................... 23 City of Anaheim v. Southern California Edison Co., C.D. Cal. No. CV-78-810-MML (May 19, 1981) ............................................. 8 Consumers Power Company (Midland Plant, Units; 1 and 2), ALAB-452, 6 NRC 892 (1977) . ............... 14 Consumers Power Company (Midland Plant, Units 1 and 2), LBP-75-7, 2 NRC 29 (1975) . . ............... 4, 14 Estate of Nye, 299 N.E.2d 854 (Court of Appeals of Indiana, Second District, 1973), rehearing denied, 301 N.E.2d 786 (1973) ..................... 8 Florida Power & Light Co., Opinion Nos. 57 and 57-A, 32 PUR 4th 313 (FERC 1979) .................. 2, 3, 5, 7 Florida Power & Light Co., Opinion No.
. 517, 37 FPC 544 (1967), reversed, 430 F.2d 1377 (5th Cir. 1970), --
reversed, Florida Power & Light
. Co. v. FPC, 404 U.S. 453 (1972) ................... 23 Gainesville Utilities Dept. v. Florida Power
& Light Co., 573 F.2d 292 (5th Cir.), cert.
denied, 439 U.S. 966 (1978) ....................... 6, 21 Harding v. Carr, 83 A.2d 79 (Supreme Court of Rhode Island 1951) ............................. 9 Lappin v. National Container Corporation, 37 N.Y.S.2d 800 (Supreme Court, New York County, 1942) ..................................... 12 Telaro v. Telaro, 306 N.Y.S.2d 920 (Court of Appeals 1969) ..................................... 12 ii -
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- Tolo Edison Company, (Davis-Besse Nuclear iWwer Station, Units 1, 2 and 3), LBP-77-1, 5 NRC 133 (1977) .................................. 4 1
I United States v. DiGilio, 538 F.2d 972 (3d Cir. 1976), cert. denied, 429 U.S.
1058 (1977) ....................................... 10 United States Fire Insurance Company v.
Adirondack Power & Light Corporation, 201 N.Y.S. 643 (Appellate Division, Third Department, 1923) ................................. 11 MISCELLANEOUS:
Sectin 2.732 of the NRC's Regulations, 10 CFR 2.732 ......................... 3 Rule 402 of the Federal Rules of Evidence) . . . . . . . . . . . . 17 Restatement (Second) , Judgments $68.1 (Tentative Draft No. 1, 1973) .................... 10 0
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Florida Cities: 9/14/81 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Af'ninistrative Judges:
Peter B. Bolch, Chairman Michael A. Duggan Robert M. Laro Ivan W. Smith, Alternate
)
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389A
)
(St. Lucie Plant, Unit No. 2) ) August 14, 1981
)
FLORIDA CITIES' SUPPLEMENTAL MEMORANDUM IN RESPONSE TO BOARD QUESTIONG AT ORAL ARGUMENT OF AUGUST 17-13, 1981 Florida Cities hereby file their Supplementary Memorandum in response to Licensing Board questions, some of which were also addressed to Florida Power & Light Company ("FPL") of August 17-l 18, 1981.
l I. ACCORDING TO THE CASE LAW AND RELATED CONSIDERATIONS, COLLATERAL ESTOPPEL IS NOT PRECLUDED IN THIS CASE BY ANY SHIFT IN THE BURDEN OF PERSUASION.
This is in response to the Licensing Board's request (Tr.
10197, 10374-5) for cases on the question whether collateral estoppel is inapplicable where the party a.Jainst whom estoppel is sought had the burden of persuasion in the initial action, but e
I 2-the burden has shif ted to the adversary in the. subsequent action.
The case law is sparse; but all of the jurisdictions in which we have found cases on point now hold that collateral estoppel 4
applies whether or not there is a shif t in the burden of persua-sion. The rationale of the case law applies with special vigor in this case, where the evidence in the initial action was over-whelming and the decision did not turn on burden of persuasion.
The rationale of the case law extends to all actions, exc ept perhaps where the prior case involved an even balance of evidence and the decision turned on burden-of-persuasion considerations.
Before discussing the case law, we 'briefly show that there is no shift in the burden of proof here, certainly FPL has not demon-strated any shift, and that any arguable shift would be irrele-vant here because the prior case was expressly decided on the basis of the overwhelming preponderance of the evidence and did not turn on burden-of-persuasion considerations.
A. There Is No Shif t In The Burden Of Persuasion Here.
Cities seek to preclude FPL from relitigating here the issues that were decided by the FERC in Opinion No. 57. FPL argues (FPL August 7, 1981 Fesponse, pages 91-93 and Tr. 176-199) that it should not be estopped by Opinion No. 57, because FPL had the burden of persuasion in the FERC proceeding (Cities agree), but the burden has shifted to the Cities on antitrust-related issues in the NRC proceeding (Cities disagree).
Cities submit that FPL has the burden of persuasion in this
, NRC proceeding, for the same reason that it had the burden of
persuasion in the FERC proceeding. It is up to the applicant to justify its application. Accordingly, once the adverse parties a
have met any burden they may have to come forward with evidence of anticompetitive behavior and effect, then the burden of per-suasion is on the applicant to prove that its application for a rate or license is not anticompetitive. 32 PUR 4th at 325, footnote 23, slip opinion p. 17, footnote 23.
The NRC's pertinent regulation provides, "Unless otherwise directed by the presiding officer, the applicent or the proponent of an order has the burden of proof." 10 CFR 2.732. FPL is the proponent of an order. Although this phase of the Commission's proceeding does not involve the operating license directly, it does involve license conditions. Putting substance above form,
! Cities submit that FPL is the applicant for and proponent of a I
license without license conditions (other than those it has l
l i conccded in the Settlement Agreement). Admittedly, the Cities I are also the proponents of an order, which would impose further license conditions. With two proponents of orders, the quoted regulation becomes ambiguous; but that ambiguity is resolved by the principle which has guided the FERC: the applicant has the ultimate burden of persuasion on antitrust-related issues as well as other issues once the other rarties have come forward with adverse evidence. 1/
1/ If the ambiguity in the NRC regulation is not resolved by the principle governing FERC proceedings, the regulation expressly FOOTNOTE CONTINUED ON NEXT PAGE h . - - - - - _ _ . .
In Consumers Power Company (Midland Units 1 and 2),
LBP-75-79, 2 NRC 29, 45 (1675) [FPL August 7, 1981 Response, page 91], the Licensing Board assigned the burden of persuasion to the Department of Justice, the NRC Staff and intervenors on antitrust-related issues. Cities submit that the Licensing Board was wrong in that case and that the applicant should have the burden of overcoming evidence of anticompetitive behavier, as in FERC proceedings. 1/
In Toledo Edison Company, (Davis-Besse Units 1, 2 and 3),
LBP-77-2, 5 NRC 133, 253-54 (1957) [FPL August 7, 1981 Response, page 91], the Licensing Board analyzed the whole record "to determine whether the opposition parties carried their burden of proof with a preponderance of the reliable probative and substantial evidence. . . " However, the assignment of the burden was dictum because the Licensing Board immediately added that the FOOTNOTE CONTINUED FROM PREVIOUS PAGE l authorizes the presiding officer to resolve the ambiguity by assigning the burden of proof. 10 CFR 2.732. Since FPL has twice before been found to have acted inconsistently with the antitrust laws, in judicial and administrative litigation, the presiding officer should here assign to FPL the burden of persuasion as to antitrust-related considerations properly raised by other parties. In that event, there would be no shift, and FPL should be estopped as to all matters decided by Opinion No.
57.
- 1/ The Appeal Board discussed the degree of prcof required Consumers Power Company, ALAB-452, 6 NRC 892, 926-927 (1977).
However, the Appeal Board did not discuss which party had the burden of persuasion; it appeared to have no occassion to do so, deciding all evidentiary issues according to the weight of the
~
evidence without resort to burden-of-persuasion considerations for deciding any issue.
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evidence was " overwhelming" and the burden of proof was irrele-vant.
Thus, the FERC precedent remains persuasive: on antitruct-related issues and on other properly raised issues the applicant has the burden of persuasion.
B. Any Arguable Shift Is Irrelevant; The Prior Case Did Not Turn On Any Burden That Might Shift Here.
Even if a pertinent shift in the burden of persuasion would preclude collate;_1 estoppel, any shif t is irrelevant to this case. The FERC's Opinion No. 57 rested on the weight of the evidence and did not turn on burden of persuasion with regard to market, anticompetitive conduct, or other antitrust-related considerations. Collateral estoppel should therefore apply whether or not, as an irrelevant technical matter, any burden has shifted.
The FERC expressly held that in "the case before us a full record has been compiled .." 1/ The FERC elaborately described 1/ 32 PUR 4th at 326; slip opinion p. 18.
"However, as noted, supra, p. 314, conduct may l be relevant to our assessmelt of the justification for and purpose of a service limitation. In the case before us a full record has been compiled and we are further aided by a recent decision of the court of appeals for the fif th circuit 25/ in fully 25/ Gainesville Utilities Dept, v. Florida Power &
Light Co. (CA5th 1978) 573 F.2d 292, cert den (1978) US , 99 S Ct 454. This opinion was
. issued af ter Judge Wagner wrote his initial decision.
l FOOTNOTE CONTINUED ON NEXT PAGE
that evidence and decided according to the weight of it, withcut
, any occasion to invoke burden-of-persuasion for resolving an evidentiary equipoise. Indeed, the FERC characterized FPL's .
1 presentation as " essentially a demurrer" in the face of "volumunious evidence of the cities and the staff relating to -
l anticompetitive conduct .. " 1/ 32 PUR 4th at p. 326; slip l FOOTNOTE CONTINUED FROM PREVIOUS PAGE understanding the anticompetitive effects of FP&L's rate proposals. 26/ Moreover, the documentary l evidence of staff and cities, largely obtained from :
i company files, is frequently incongruous with the testimony of company witnesses. 27/ By and large the testimony of witnesses presented by staff and the cities is a summary recapitulation of hundreds of pages of correspondence and internal company documents contained in over 200 exhibits. This evidence has been of significant assistance in probing the effects of FP&L's alleged need to restrict the availability of service under Schedules SR-2 and PR.
26/ This evidence confirms our conclusion that FP&L has monopoly power in the relevant markets.
l Judge Wagner was also concerned by what he characterized as " disturbing episodes of Florida Power and Light Company's past conduct which raise serious antitrust questions." Initial decision at p.5. However, time constraints led him to defer l
' to the commission or the Justice Department.
l 27/ See, Gainesville Utilities Dept. v. Florida l Power & Light Co., supra, 573 1.2d at p. 301, footnote 14 l 1/ FPL demurred even though it had long confronted and continued I to confront opposition on antitruct bases in formal proceedings:
l Gainesville Utilities Dept. v. Florida Power & Light Co., 573 F.2d 292 ( 5th Cir. ) , c ert. denied, 439 U.S. 966 (1978); Florida t
- Power & Light Co. (South Dade Units) , NRC Docket No. P-636A; I Florida Power & Light Co. (St. Lucie Unit No. 2), NRC Docket No.
EOOTNOTE CONTINUED ON NEXT PAGE l
opinion p. 15. In that circumstance, the FERC's decision on the antitrust-related issues would be the same no matter who had the burden of proof -- the Cities, the Staff, or FPL.
The FERC characterized FPL as having failed to carry its bur-den of persuasion in a different context, irrelevant here. The Commission observed that a utility with monopoly or market power was not per se precluded from imposing tariff restrictions that were anticompetitive if it proved a " countervailing public interest" in favor of the restrictions, 32 PUR 4th at pp. 314, 325 and 339; slip opinion pp. 2, 17, 40. However, the Commission found that FPL had failed to carry its burden of proving a countervailing public interest in favor of die anticompetitive restrictions. 1/
That burden of proving a countervailing pablic interest under the Federal Power Act does not shift here, '>ut would remain FPL's burden 2/ (even assuming the NRC has juri sdiction to countervail FOOTNOTE CONTINUED FROM PREVIOUS PAGE 50-389A; Florida Power & Light Co. (on FPL's application to acquire the electric system of Vero Beach), FERC Docket No.
E-9574. FPL has also confronted Justice Department and other antitrust investigations. The foregoing and comparable matters are summarized from the 1977 perspective in "A Status Report on Litigation with Antitrust Implications," dated March 16, 1977, from FPL's retained counsel to FPL. Cities received that Report (appended as Appendix A) from FPL in diccovery.
1/ The FERC suggested that restrictions might be justified under the Federal Power Act, even if anticompetitive, if the restric-tions were necessary to " ameliorate some legitimate operational problem .." 32 PUR 4th at 340; slip opinion p. 40.
2/ FPL would carry the burden of proof on See its affirmative defen-Toledo Edison, 5 NRC ses at the NRC as well as at the FERC.
at 254, footnote 169 and related text; Opinion No. 57, 32 PUR 4 th at 314-15, 325, and 339-40; slip opinion pp. 2, 17, and 39-40.
8-antitrust considerations) . With no shift in burden on that
. score, Opinion No. 57 should be given collateral estoppel eff ect entirely.
C. The Case Law Applies Collateral Estoppel Notwithstanding Shifts In The Burden Of Persuasion.
The governing case law applies cellateral estoppel whether or not there has been a shift in the burden of persuasion, 1/ except in cases of evidentiary equipoise.
In Estate of Nye, 299 N.E.2d 854 (Court of Lppeals of Indiana, Second District, 1973), rehearing denied, 301 N.E.2d 786 (1973), the decedent had executc3 a will in Indiana and later executed a dif ferent will it. Florida. The proponents of the Indiana will sued in Florida to invalidate the Florida will, but they lost. At about the same time the proponents of the Indiana suit also proceeded in Indiana to effectuate the Indiana will.
The proponents of the Florida will then sued in Indiana to con-l test the Indiana will on the basis tnat it had been superceded by a valid Florida will. In the Florida suit, the proponents of the Indiana will had the burden of persuasion; in the Indiana suit, the proponents of the Florida will had the burden of persuasion.
i i
1/ In addition to the cases in this section, see also the pre-viously presented case of City of Anaheim v. Southern California Edison Co., C.D. Cal. No. CV-78-810-MML (May 19, 1981), attached to Cities' May 27, 1981 Motion as Attachment No. 5. The case is cited in Cities' Motion at page 12 and Cities' August 7, 1981 Response at page 23. That case estopped a utility on the basis of a FERC decision, where the utility had the burden of l persuasion; the estoppel was applied in an antitrust action where the complainants against the utility apparently have the burden.
Thus, if there never had been a Florida suit, the proponents of the Indiana will would have won had the plaintiff proponents of the Florida will failed to meet their burden of persuasion.
However, notwithstanding the shift in the burden of persuasion, the Indiana Court of Appeals held that in the Indiana suit the Flcrida decision estopped the proponents of the Indiana will from resisting the validity of the Florida vill. 299 N.E.2d at 863-865. The Court held that the essential issue was the vali-dity of the Floride will, which had been litigated, and that the policies in favor of collaterial estoppel and against relitiga-tion therefore should apply notwithstanding the shift in burden of persuasion.
In Harding v. Carr, 83 A.2d 79 (.9upreme Court of Rhode Island 1951), plaintiff had been injured by the negligence of a driver who was not the owner of the automobile.
Plaintiff sued the owner's insurer and later sued the owner himself. In the suit against the insurer, the plaintiff had the burden of proving that the owner permitted or consanted to the driver's operation of the automobile. The owner appeared as a witness for the insurer and testified that he had not consented. The jury returned a special finding that at the time of the accident the driver did not have the owner's consent, and the defendant insurer was held not liable. In the second suit, the burden of proof shifted to the owner-defendant to prove he had not consented to the driver's operation of the automobile. The Court held that the plaintiff was estopped by the first case from r
relitigating the consent issue.
i Harding v. Carr makes gaad sense. The plaintiff had every motive in the first case to prove consent. If the preponderance of the evidence in the first case nevertheless disproved consent, then plainly the plaintiff shculd be collaterally estopped in the j
second case. Only if the evidence were evenly balanced in the I first case would there be a question about the propriety of collateral estoppel. However, the possibility of equipoise seems l
l 1
so slight 1/ that it should not counterbalance the sound public policy in favor of collateral estoppel and against relitiga-tion. 2/
l i
l 1/ In United States v. DiGilio, 538 F.2d 972, 988 (3d Cir.
~
1976), cert. denied, 429 U.S. 1038 (1977), the Court held that the government nad the burden of proving the defendant competent to stand trial, partly on the basis that
" Allocation of the burden of proof will be sienificant, i
l in theory at 1 cast, only in the rare case whea, assuming the evidence is weighed by the preponderance of evidence l standard, the conflicting evidence is in equipoise in the mind of the fact finder. At that point the triability of a defendant will depend on where the burden of proof is placed. To put the question another way, what we are determining is a rule of law, of due process dimensions, that e defendant, about whom the evidence of competency to stand trial is in equipoise, should or should not be tried. If, as the Court has made clear, the concept of competency to stand trial is grounded in notions of fundamental fairness in the operation of the judicial process [ citation omittad] the question can only be answered in the negative .."
l 2/ The Restatement ( Second), Judgments $68.1 (Tantative Draft No.
I 1, 1973) [FPL August 7, 1981 Response, p. 93] relies on the dis-sent in Harding v. Carr and would provide that, as an exception to the general rule favoring collateral estoppel, relitigation should not be precluded where "the burden has shifted to his adversary ..." The Draft cannot be taken at face value. It would permit relatigation even where the shift could not help the i
l l FOOTNOTE CONTINUED ON NEXT PAOE l
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Collateral estoppel was not applied in United States Fire
- Insurance Company v. Adirondack Power & Light Corporation, 201 N.Y.S. 643 (Appellate Division, Third Department, 1923), because the cuidence on the first case was evenly balanced. The decedent had died because of a gas leak. His beneficiaries sued the gas distributor for negligence. To avoid liability in that case, the defendant had the turden of proving contributory negligence L;r the decedent. "The case was a close one ., 201 N.Y.S. at 646, and the jury held for the decedent's beneficiaries. In the second case, the decedent's insurance company sued the gas distributor. The insurer asserted collateral estoppel against the gas distributor oa the issue of the decedent's contributory negligenc e . However, the Court refused to apply collateral astoppel because in the second case the insurer had the burden of proving no contributory negligence, and the evidence on contribu-tory negligence in the first case had been "close." (The Court also declined on other grounds to apply collateral estoppel. )
FOOTNOTE CONTINUED FROM PREVIOUS PAGE loser of the first case, i.e., where the loser did not have the burden in the first case but lost anyway, and he has the burden in the second case. If hypothetically the burden of persuasion had besn on the Cities in the FERC proceeding and the Cities prevailed, then surely FPL should be estopped whether or not the burden shifted to FPL in this NRC proceeding. Yet, on the face of the Draft Restatement the bare fact of a shift in the burden of persuasion would apparently entitle FPL to relitigate. Citics l
! submit that the policy in favor of collateral estoppel and against relitigation should confine the Restatement's exception so that relitigation is allowed in shifted burden cases only
' where it is evident that burden of persuasion did matter, that is, where it appears that the evidence in the prior action was evenly balanced.
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l In Lappin v. National Container Corporation, 37 N.Y.S.2d 800 (Supreme Court, New York County, 1942), the Court cited Adirondack and declined to apply collateral estoppel where the defendant had the burden of persuasion on the issue of contributory negligence in the first case, but the burden shifted to the plaintiff in the second case. However, there is no indication on the face of the Lappin opinion that the evidence was evenly balanced in the first case on the issue of contributory negligence. Lappin seems therefore inconsistent with }Dri j and with Harding v. Carr, and Lappin is not saved by the special circumstance of eq91 poise in the Adirendack case.
In a more recent decision by New York's highest court, Telaro
- v. Telaro, 306 N.Y.S.2d 920 (Court of Appeals 1969), collateral estoppel' was enplied notwithetanding an apparent r.hift in the burden of proof.1/ The husband and wife had a brokerage account l
in both their names. In the first case the husband had sought to have the account declared entirely his. However, after a review of the evidence the trial court in the first case held that the ;
husband had " utterly failed to meet" his burden of persuasion.
306 N.Y.S.2d at 925. As the Court of Appeals later observed, "there must have been a strong case" for the wife. 306 N.Y .S.2d at 927. In the second action, the wife sued the husband to retrieve her share of the money, which he had withdrawn from the brokerage account. She wa s granted collateral estoppel to 1/ The case is analyzed in Nye, 299 N.E.2d at 864.
preclude the husband from attempting to show that the account was entirely his. As the Indiana court observed in Nye, when it analyzed Telaro, "there appears to have been a reversal of the burden of proof in the second case, but collateral estoppel .was enforced without mention of the burden of proof" as between the husband and wife in the New York case. 299 N.E.2d at 864. 1/
Those are the only cases we have found directly on point.
Lappin aside, those cases hold that collateral estoppel applies notwithstanding a shift in the burden of persuasion except in the unusual circumstance where the evidence in the prior case was close and the decision therefore turned on burden of persuasion.
To hold against those cases would presume that the prior decision turned on burden of persuasion, a presumption which seems unjustified generally and especially here and which contradicts
- the sound public policy in favor of collateral estoppel and against relitigation.
I
{
l 1/ Nye also discusses Towson v. Towson, 102 S.E. 48 (Supreme Court of Appeals of Virginia 1920) . However. we are uncertain whether there was a shift in the burden of proof in Towsor.
. II. FPL DEALS WITH SOME MUNICIPAL SYSTEMS OUTSIDE ITS RETAIL SERVICE AREA; ITS REFUSALS TO DEAL WITH OTHERS HAS NO FOUNDATION IN ANY INDUSTRY CUSTOM AND IS INCONSISTENT WITH ITS RETAIL SALES TO NONCONTIGUOUS AREAS.
In response to contrary assertions by FPL counsel (e.g., Tr.
1291), Cities ' counsel stated that investor-owned utilities do make firm sales of power to electric systems outside the perimeter of the utility's retail service area (Tr. 1313-140).
As proof of an example we refer to Detroit Edison's sale of firm bulk power to the Michigan Municipals and Cooperatives Power Pool, a noncontiguous customer. The sale was noted in Consumers Power Company (Midland Units 1 and 2), ALAB-452, 6 NRC 4
892, 1045, n. 569 (1977). Attached are pages from Detroit Edison's 1978 FPC Form 1 and a tariff sheet attached to a unanimous 1979 settlement in a Detroit Edison rate case, showing the sale (Appendix B). If the issue becomes pertinent for trial, we shall prove numerous other examples of utility sales to electric systems outside the perimeter of the util,ity's retail l service area. However, the issue seems moot here (as well as elsewhere) for three reasons.
First, FPL appears to recognize that it is obligated to deal with Gainesville at least for unit participation and with Green l
l Cove Springs generally (Tr. 1304-5). ,l/ Neither City is within l
l l -
1/ In a June 2, 1981 deposition of Robert J. Gardner, he testified that "We have made service available at Green Cove
! Springs." (Depos. Tr. 535-6). FPL's September 4, 1979 l
FOOTNOTE CONTINUED ON NEXT PAGE l
l
I the perimeter of FPL's retail service area. Green Cove Springs is near but outside that area, and Gainesville is more remote. 1/
Tallahasaee is no more remote from FPL than Gainesville or Green Cove Springs, electrically speaking; they all can reach FPL through the interconnected system in peninsular Florida. FPL has suggested no real basis for distinguishing Tallahassee or others from Gainesville and Green Cove Springs except 'more is worse, '
which does not rest on geographic market.
Seccnd, the Gainesville case expressly identified a potential market for noncontiguous dealings between Power Corp. and municipalities within FPL's border and between FPL and FOOTNOTE CONTINUED FROM PREVIOUS PAGE Application for Rehearing of Opinion No. 57 (FERC Docket No.
ER78-19) stated in the footnote at page 3 that FPL is also "willing to provide service to" Key West, another noncontiguous municipal electric system. Key West is separated from FPL by the Keys Cooperative, which is served by FPL. FPL's Application for i Rehearing also stated it would provide service to Lake Helen, Clewiston, and Jacksonville Beach, other municipal electric systems outside FPL's retail service area. (Lake Helen subsequently has decided to sell its system to Floride Power Corporation.) We should add that Lake Helen, Clewiston, and Jacksonville Beach, like Green Cove Spril 's, are close to or at the perimeter of FPL's retail service area, though outside it.
1/ According to FPL's map of its service area, which is attached to its Joint Motion and Stipulation of September 12, 1980 for approval of license conditions, neither Gainesville nor Green
! Cove Springs nor any other municipality listed in the license conditions is within FPL's service area except Ft. Pierc e ,
Homestead, Lake Worth, New Smyrna Beach, Starke, and Vero Beach.
Thus, Gainesville and Green Cove Springs have been outside FPL's service area as well as noncontiguous to FPL, yet FPL is willing to deal with them . Alternatively, if FPL now considers Green
. Cove Springs as within its service area, that provee FPL accepts some noncontiguous systems as within its service area and is willing to serve them.
municipalities within Power Corp.'s border. Examples are recited by the Fif th Circuit under the heading "Same Old Story." 573
. F.2d 292, 297-299.
Third, FPL's own retail service area is itself discontinuous.
(It is far from unique.) The short and long arms of FPL's J-shaped retail service area are completely and widely separated by the Glades and Lee County Cooperatives, and the top of the long arm is broken into service islands over a broad area by the Clay and Okefenoke Cooperatives. Evidently, FPL is willing to serve noncontiguous areas at retail but will serve further wholesale customers at regulated rates only after being compelled (e.g. ,
Tr. 1279). Cities call that monopolization. See Cities' May 27, 1981 Motion, pp. 17-24,90-114, and Cities' August 7, 1981 Response, pp. 34-36.
l III. THE DOCUMENTS APPENDED TO CITIES' MAY 27, 1981 MOTION AND ,
. AUGUST 7, 1981 RESPONSE ARE ADMISSIBLE AND DETERMINATIVE. i The Licensing Board asked the Cities to state why each of the documents appended to their May 27, 1981 Motion and August 7, 1981 Response is admissible and determinative (Tr. 1411). We attach a table listing and numbering those documents, with a separate explanation for each nurabered document stating why the document -is admissible and what is proves, determinatively (Appendix C).
With regard to admissibility, we have not bothered to add to the explanations that each document is relevant (Rule 402 of the Federal Rules of Evidence), according to the Cities' theories of the case, for the same reason it is determinative. Also, we may show other bases of admissibility (such as Rule 803(6) concerning business records) to the extent Cities' motion for summary disposition is not granted.
i Many of the documents prove facts also proved by other documents (as noted on each document), so that the admissible documents are determinative even if some documents are deemed inadmissible at this time for purposes of summary disposition.
Finally, many or most of the documents prove matters already l
determined in Gainesville and in Opinion No. 57, supra. If those decisions are given collateral estoppel effect, the overlapping documents are unnecessary. Alternatively, if those decisions are not given collateral estoppel effect, they should be considered l
l pursuant to Rule 803(8)(C) as admissible fact findings, which i
l l
l
alone or in conjunction with the documents provide a basis for summary disposition in the face of FPL insubstantial cr incredible contentions to the contrary (FPL's contrary contentions are identified on the attached document explanations).
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IV. INTERIM REPORT: TWO ADDITIONAL FMUA MEMBERS ARE CONSIDERING SEEKING RELIEF IN THIS PROCEEDING.
The Licensing Board requested Florida Cities to report whether any additional FMUA members are requesting relief in this proceeding through FMUA, in addition to the relief sought by the
- named intervenors, including Homestead, Kissimmee and Starke (Tr.
1430). Counsel for Florida Citics have contacted all FMUA members and informed them of the Board's request. FMUA seeks the a
elimination of anticompetitive barriers to power supply and to wholesale sales as do other intervenors. However, Leesburg and Vero Beach are the only additional FMUA members considering seeking an order permitting them specific access to FPL's nuclear
, units. 1/
j At p. 39 of their August 7, 1981 Response, Florida Cities stated that all Cities seeking relief should be entitled to St.
Lucie Unit 2 access on the same basis as those entities in
! License Conditions I and VII. See also Florida Cities' Response l
l to Board Questions, pp. 44-45. If such parity of treatment were 1
gr'.nted, FPL would be obligated to offer 46.5 additional megawatts of St. Lucie Unit 2, including 4.5 megawatts to the City of Leesburg. 2/
1/ Those Cities' city managers are recommending to their Cities that they seek the relief. These recommendations are subject to formal action by the Vero Beach and Leesburg municipal governing i boards, which are meeting this week.
, 2/ No additional megawattage would be offered to Vero Beach, which received entitlements under the settlement license conditions.
l
At pp. 40 and 48-49, Florida Cities requested that FPL be ordered to Offer to Cities access to FPL's operating nuclear units rsn a load-ratic basis or, alternatively, an opportunity to purchase economical base load power, as stated in that pleading.
The amount of megavatts for Florida Cities, including Vero Beach and Leesburg would be 164 megawatts. Leesburg's share would be 9.8 megawatts and Vero Beach's share would be 18.1 megawatts.
9 l
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V. ADDITIONAL DOCUMENTS Pursuant to the Board's permiesion (Tr. 1409), Florida Cities submit the following in support of their motion for a declaration that a situation inconsistent with the antitrust laws presently l exists:
l
! 1. FPL's attempted acquisition of Homestead. Cities submit pages 7 and 30-32 of the deposition testimony of Robert H.
Fite, former President of Florida Power & Light Co., Gainesville Utilities Department v. Florida Power Corporation and Florida Power & Light Co., Docket No.68-305 CIV-J (Appendix D). This deposition testimony shows that FPL proposed to lease or purchase the Homestead system, that it had originated acquisition proposals before, but that at least one earlier proposal had come from Homestead. Cities offer this document now in answer to statements of counsel for FPL (Tr. 1414 and Appendix A, pages 37-38 to FPL's August 7, 1981 Response). FPL implies that it did not initiate a proposal to purchase the Homestead system. The deposition shows that it did. To the extent that FPL's point is that Homeste .d did not entertain 'FPL's offer seriously, because it did not want to sell or for other reasons, such point is i
unresponsive to Florida Cit 'es contention that FPL has sought acquisitions.
1/ Gainesville Utilities Department v. Florida Power & Light Co. , 573 F.2d 292 '(5th Cir. ), cert denied, 439 U.S. 966 (1978).
l
- 2. FPL's roliance on coordination. Cities submit exc erpts from direct testinony of J. L. Howard on behalf of Florida Power & Light Company and excerpt from Statement BC of FPL's wholesale rate filing of July 2, 1981 before the Federal Energy Regulatory Commission, FERC Docket No. ER81-588-000 (Appendix E). This material is supplied now because the date of the filing was after the date of the Cities' Motion to Establish Proc edures, etc. 1/
In FPL's rate filing application, Mr. Howard reaffirms the benefits to FPL from the " Energy Broker" program, which includes utilities throughout Peninsular Florida. Further, Mr. Howard reaffirms the benefits to the Company from the purchase of firm power from Tampa Electric Company. In Statement BC the Company states:
Interconnections are also considered in determining generation reliability since thef have the same effect as increasing the amount of generation available to a company. Florida Power & Light Company is interconnected with other generating electric systems of the Florida Electric Coordinating Group, Inc.
through ele:tric transmission line's. Because of these interconnections, Florida Power &
Light Company has been able to maintain lower generating reserves while at the same time maintaining an equivalent level of reliability for its customers ....
These materials admit the continued validity of the findings 1/ Florida Cities' Response to Board Questions was filed August 7, 1981. However, counsel had not fully reviewed FPL's rate filing at that time. Moreover, the submitted material is responsive to FPL's August 7, 1981 Response, especially to the Affidavit of Ernest L. Bivans (Appendix B to FPL pleading).
of the Federal Power Commission in Opinion No. 517, Florida Power & Light Company, Docket No. E-7210, set aside, Florida Power & Light Co. v. FPC, 430 F.2d 1377 (5th Cir. 1970),
reversed, FPC v. Florida Power & Light Co., 404 U.S. 453 (1972),
that FPL does not operate as a self-sufficient utility and that it benefits from Florida coordination. Id., at 551-552.
Florida Cities submit that the demonstrated benefits to FPL from its joint action with other Florida utilities prohibit its justifying its refusals to deal on the basis of geography.
Associated Press v. United States, 326 U.S. 1 (1945). 1/
- 3. FOC, FCG. The Licensing Board requested the chater or bylaws of the Florida Electric Power Coordinating Group
("FCG") and the Florida Operating Committee ("FCC") (Tr. 1227).
We append (Appendix F) an unsigned 1972 agreement of the FCG and an October 2, 1958 le '9r from FPL's President Fite to Tampa Electric 's President MacInnes, copy to Power Corp. 's President Clapp, proposing the formation of a Florida operating committee.
See also Appendix I 89 - I 110 to Cities' May 27, 1981 Motion (numbered Document No. 104 in Appendix C hereto).
1/ Also, with regard to another facet of FPL's refusals to deal, Cities refer the Board to the colloquy at Tr. 1412-1413 and call attention to Document 44 appended to Florida Cition' Motion to Establish Procedures, etc., Appendix D-122, which identifies the author of the memorandum concerning " Guidelines for Power Generation from Municipal Solid Waste Operations" .
e
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CONCLUSION
, For the foregoing reasons, and the reasons stated in Cities' May 27, 1981 Motion and August 7, 1981 Response, Cities urge the Board to grant their motion.
Respectfully submitted, Robert A. Jablon Alan J. Roth Daniel Guttman Marta A. Manildi 00 e:- ,
By /
/2
,r Attorneys for the Lake Worth
. Utilities Authority, the Utilities Commission of New Smyrna Beach, the Sebring Utilities Commission, and the Cities of Alachua, Bartow, Ft.
Meade, Home;4tead, Key West, Kissimmee, Mt. Dora, Newberry, St.
Cloud, Starke and Tallahassee, Florida, and the Florida Municipal Utilities Agency September 14, 1981 ;
l Law offices of:
Spiegel & McDiarmid 2600 Virginia Avenue N.W.
Washington, D.C. ~ 20037 l
l 1
,,, , . , - .-,. .- ,_ .,, , . _ . , . --,n . . . - - . . . . . - , , _ . - -. .. .--
Florida Citico 9/14/81 BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
. Before Administrative Judges:
- Peter B. Bolch, Chairman Michael A. Duggan Robert M. Lazo Ivan W. Smith, Alternate I )
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-389A
)
(St. Lucie Plant, Unit No. 2) ) September 14, 1981
)
\
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing were served
. upon the following persons by hand delivery or by hand delivery to a messenger for redelivery (*) or by deposit in the U. S.
i Mail, first class, postage prepaid this 14th day of September, 1981.
- Peter B. Bloch, Esq. Michael C. Farrar, Esq.
Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing Board Appeal Board Nuclear Regulatory Commission Nuclear Regulatory Commission Washington, D. C. 20555 Washington, D. C. 20555 Michael A. Duggan, Esq. Donald A. Kaplan, Esq.
Administrative Judge Robert Fabrikant, Esq.
College of Business Antitrust Division Administration Department of Justice University of Texas Washingto , D. C. 20530 Austin, Texas 78712
- J. A. Bouknight, Jr., Esq.
- Robert M. Lazo, Esq. Lowenstein, Newman, Reis &
Administrative Judge Axelrad Atomic Safety and Licensing Board 1025 Connecticut Avenue, N. W.
Nuclear Regulatory Commission Washington, D. C. 20036 Washington, D. C. 20555 John E. Mathews, Jr., Esq.
Ivan W. Smith, Esquire Mathews, Osborne, Ehrlich,
. Alternate Member McNatt, Gobelman & Cobb Atomic Safety and Licensing Board 1500 American Heritage Life Nuclear Regulatory Commission Building Washington, D. C. 20555 Jacksonville, Florida 32202 (
Jerome E. Sharfman, Chairman Reubin O. D. Askew Atomic Safety and Licensing Appeal Greenberg, Traurig, Askew, Board Hoffman, Lipoff, Quentel Nuclear Regulatory Commission & Wolff, P.A.
Washington, D. C. 20555 1401 Brickell Avenue Miami, Florida 33131 William C. Wise, Esq. Robert R. Nordhaus 1200 18th Street, N. W. Van Ness, Feldman, Sutcliffe, Suite 500 Curtis & Levenberg Washington, D. C. 20036 1050 Thomas Jefferson St. N.W.
7th Floor William H. Chandler, Esq. Washington, D. C. 20007 Chandler, O' Neal, Avera , Gray, w Lang & Stripling '
Janet Urban, Esquire P. O. Drawer 0 Department of Justice Gainesville, Florida 32602 P. O. Box 14141 Washington, D. C. 20044
- Daniel H. Gribbons, Esq.
Herbert Dym, Esq.
- Chase Stephens, Chief Covington & Burling Docketing & Service Section 1201 Pennsylvania Ave. ' .W. Nuclear Regulatory Commission Washington, D. C. Washington, D. C. 20555 Florida Power & Light Company ATTN: Dr. Robert E. Uhrig Vice Pre. . dent c
Advanced Systems & Technology P. O. Box 529100 Miami, Florida 33152 l
Benjamin H. Vogler, Esq.
- Ann P . Hodgdon, Esq.
l Counsel ."or NRC Staff Nuclear Re.?ulatory Commission Washington, D. C. 20555 ,
By -
September 14, 1981 a
Law offices of:
' Spiegel & McDiarmid 2600 Virginia Avenue N.W.
Washington, D.C. 20037 l
l
Florida Cities 9/14/81 BEFORE THE UdITED STATES NUCLEAR REGULATORY COMMISSION
(]
ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chairman Michael A. Duggan Robert M. Lazo Ivan W. Smith, Alternate
)
Florida Power & Light Company )
) Docket No. 50-389A (St. Lucie Plant, Unit No. 2) )
)
INDEX OF DOCUMENTS APPENDED TO FLORIDA CITIES' SUPPLEMENTAL MEMORANDUM IN RESPONSE TO BOARD QUESTIONS AT ORAL ARGUMENT OF AUGUST 17-18, 198_
Appendix A Letter, from John E. Mathews, retained counsel for FPL, to Mr. Robert Wall, FPL Senior Vice President, re: A Status Report on Litigation with Antitrust Implications, March 16, 1977.
Appendix B Pages 412 and 413 from Detroit Edison Company's 1978 Form 1, filed with the FERC, showing contractual sales of power and energy to Michigan Municipal Cooperative Power Pool; and settlement agreement in Detroit Edison Company, FERC Docket No. ER80-100, dated December 11, 1979; and tariff sheet relating to sale by Detoir Edison Company to Michigan Municipal Cooperative Power Pcol.
Appendix C Table of documents appended to Cities' May 27, 1981 Motion and August 7, 1981 Response, together with an explanation why {
'Yll each document is admissible and determinative. '
INDEX TO DCCUMENTS (cont ' d)
Appendix D Excerpts from deposition of Robert H. Fite, FPL President and General Manager, taken Decembar 4, 1972, in Gainesville Utilities Department and City of Gaines: Alle v. FPL, M.D.
Fla. Docket No. 68-305-Civ-J, re: FPL offers to acquire Homestead in 1967.
I Appendix E .
Excerpts from Direct Testimony of J.L. Howard, FPL Chief Financial Officer, filed on behalf of FPL in FERC Docket No.
ER81-588-000, on July 2, 1981, re benefits to FPL from coordinated activities with other utilities.
Appendix F Florida Electric Power Coordination Group, Agreement (unsigned), Effective October 1, 1972; and Letter, from Robert H. Fite, President and General Manager, FPL, to W.C.
MacInnes, President, Tampa Electric Company, proposing formation of a Florida operating committee, October 2,1958.
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) Appendix A 4
i Letter, from John E. Mathews, retained counsel for FPL, to Mr.
Robert Wall, FPL Senior Vice President, re: A Status Report on Litigation with Antitrust Implications, March 16, 1977.
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.c March 16, m7 e - .. ,m... -
FK!ULECCD mig CM!F10EitTIAL
. FEEFARED toi.ELY FOR LGi 07 CTHS1 Mr. Robert Wall -
IN C0! E Cil0il'..~it! .
I Senior Vice President FP & L LEO.I. d' .llW l Florida Power & Light'Co=pany ': - -
Post OfHce Box 3100 .
Miami, Florida 33101 Re: A Status Recort on Lititntion with Antitrust I=clications
Dear Bob:
' In aci:ordance with our recent meeting in, Miami, I am making this attempt to summarize my understanding of the present status of the various pieces of litigation with antitrust implicatiens in whicJ3 J'lorida Power l , & Light is involved. "The common denominator, of course, in all these .
' cises,1s that the Washington law firm of Spiegel & McDiarmid is involved in some menner in representing the opposition in each of them. By copy of this letter, I am asking those attorneys who have primary responsibility in the active management of the proceedings to correct any erroneous assump-tions I.may have. -
g 1. South Dade Antitrust Hearing - NRC Docket No.' P-636A.
s This particular proceeding is being hard. led on behalf of Florida Power & Light by the two firms of Lowenstein, Newman, Reis & A:<etrad and Mathews, Osborne, Ehrlich, McNatt, Cobelman & Cobb, with J. A. Bouknight, -
Jr. and the undersigned directing the activity on behalf of the two firms involved.
To simplify things, I am attaching a copy of my Status Report dated November 3,197G. Since that time, 'of course, a great many things have transpired, including the announcement by Florida Power & Light thrt the South Dade projects, as such, are cancelled.
Technically, the application for two nuclear plants to be erected during the 1980s by Florida Power & Light at 'an undetermined site is still pending before the Nuclear Regulatory Commission and the antitmst redow is
.still under consid,eration by the Licensing Joned. .
O_'. -
1
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MATHcws.cssonsc. cnnLics, McNArt, ocacLMAN & cCES i
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Mr. Robert Wan ..
l Page Two
- March 16,1977 .
l
! Recognizing that the management decision of Florida Power
& Light, whether to continue with the nr titrust review concerning this -
appucation =ight take some time, the Licensing Board has temporarily suspended the discovery proceedings which had begun pending notification by Florida Power & Light as to whether the application would be withdrawn.
l
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Hearings in the nature of a pre-trial conference on discovery matters were held before the Licensing Board on January 31, 1977 Prior
~
to these hearings, Florida Pswer & Light had already produced a considerable volume of documents and had answered some interrogatories. A judgment decision was made to continue the general document search of Florida Power
& Light's files under our supervision, recognizing the fact that, even if the appucation for the two new nuclear plants is withdrawn, the same type of /
discove j win probably be required in the event the Licensing B'oard grants ,
the pet dien for intervention by a* number of Florida municipalities request-f ing antitrust hearings with reference to the proposed nuclear plant at i E"+44*=on's Isisad, known as St. Lucie No. 2 The status of that proceeding l win be commented upon later herein. Because many of the data requs.;ts in the Federal Power Commission proceeding, involving the acquisition of Vero Beach duplicate document requests in this proceeding, the document researchers are working with personnel of Steel, Hector & Davis and with Dick' Merri=ts ;. of Reid & Priest, as wen as counsel in this docket, in trying to e1N8"ste duplication of effort and to assure consistency of response.
Ton will recan that the infamous CAPCO decision, rendered
. by the Licensing Board containing two of the same members as the Licensing Board in the instant proceeding, has indicated a philosophy on the part of the Nuclear Regulatory Commission to require appucants for licenses to give to their opposition a great deal more than we presently feel the basic a=ti-
- trust laws d===d as a pierequisite for a non-conditioned license.
. We anticipate no further actunilitigation in what has been referred to as the South Dade proceedings until management decides what official position to take with reference to either conti=uing this a=titrust c.I hearing or wit'.'. drawing the application. -
2 Cider Nuclear Plants - NRC Docket Nos. 50-3355 and 50-389A. '
L' A petition to i=tervene requesting antitrust hearings and license O
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' ], MATH Ews. cs sCRN E. EH RucM. McNAir. GCEEL.M AN & Cc E E f
't Mr. Robert Wan
' .I Page Three ,.
March 16,1977 ,
conditions for the existing nuclear plants now owned and operated by ' '
Florida Power & Light, or in the process of construction, was filed by the firm of Spiegel & McDiar=id on behalf of a nu=her of municipal ~
electric systems after a preHmi"*ry hearing in the South Dade matter in which the Licensing Board had indicated that it would not allow the nn=icipanties represented by Spiegel & McDiar=id to litigate in the South Dade proceeding a claimed entitlement to an ownership share of the older
- plants. The thrust of the petition for intervention, which was originally filed on behalf of 22 mu=icipals, was a contention that because of changing conditions and continued anti-competitive actions supposedly practiced by Florida Power & Light since licenses were granted for the older plants, a Licensing Board should be created by the Nuclear Regulatory j . Commission to re-open the licenses on those plants and impose conditions giving direct access to the older plants by the i=tervening cities. The Nuclear Regulatory Co= mission did create the same Licensing Board -
i which was already h=W"ag the South Dade matter to consider whether or not to grant the petitions for intervent ion and to hold any required antitrust review with reference to the older plants. Because of the becad sweep of the anegations, the' Licensing 3 card created held oral arguments .
in Washington on February 1,1977 and we are waiting for a decision as to whether the fan-scale hearings win be held. .
The attorneys representing the i=tervecing cities are Spiegel
& McDiarmid and Florida Power & Light is represented by the Lowenstein, Newr..an, Reis & Axelrad arui Mathews, Osborne, Ehrlich, McNatt, ~
Gobel=an & Cobb fir:ns. Several of the original petitioners for intervention have withdrawn, while a few others seek t'o be added. .
Pra"mi"*ry indM*Hans from the Licensing Board are that they are seriously considering showing the intervention on behalf of cities as to the plant under construction, (St. Lucie No. 2), and have not yet de-termined whether to grant the petition with reference to St. Lucie No. I and the Turkey Point plants. E the petition is granted in any manner, it was apparently originaHy contemplated that the hearings would be simultaneously conducted with the South Dade hearings. The rural electric cooperatives, n who are involved in the South Dade henrings, have not, as yet, tried to inter-vene in the older plants proceeding, but their attorneys have indicated that
) the matter is under consideration.
As a mattair of policy, you win recan thnt the Cc=pa=y decided to necept license conditions for a reasonable entitlement to St. Lucie No. 2 nmm --B - . _ . _ _ . _ _ -
~
MArarws, osacnNE, EHR1,1CH, McNATr. Go8 E!. MAN & Cos5 Mr. Robert Wan .
P47e Four L' Arch 15,1977 '
for the cities of Ecmastead and New Smyr=a Eeach and the cooperatives which secure a portion of their power supply from Florida Power & -
LifA. Intensive negotiations have been conducted with the EIAs and Nee Smyrna Beach, and offers of entitlement have been made, but, as -
yet, no final agreement ha.s been reached with any of them. We have been asked by the 1.icansing Scard to fue a written memorandum as to what is the present status of the St. Lucie No. 2 license conditions in i
view of the petition for intervention. We have written the 3 card a letter ar.d win file a memot**A"m' brief on March 21st saying thnt we consider l
Florida Power & Light bonid by the negotiated license conditions on St.
- Lucie No. 2 except for any party that is participating in the interven
- ion.
This means, in essence, that, at the present time, we recognize the license conditions for the cooperatives and for Homestead, but not for .
New Smyrna Beach which is one of the intervening cities. We have, under consideration, the question of whether to go ahead and try to work out something with New Smyrna Beach on St. Lucie No. 2 also.
t i
R has been our' opinion, in trying to guess what is going to happen in the future cor.cerning this proceeding, that one of the fonowing will occurt -
(a)
It we co-ti=ne the South Dade proceeding, the Licensing Board 2 =ay grant the petitior. .ar intervention with reference to St. Luciu No.
We are hopeful they will deny it with reference to St. Lucie No. I and -
l Turkey Point.
(b) If the South Dade application is withdrawn, it is almost 't a certainty that the Board will order a full-scale antitrust hearing with .
reference to St. Lucia No. 2 and may seriously consider including St. Lucie No. I and Turkey Point. .
(c) It is our intention to appeal immediately any decision of the Licensing Board grunting intervention either as to'St. Lucia No. 2 or St. Lucie No. I and Turkey Point.
N 3
(d) The Board is obviously making some legal distin,ction be- r-
/ tween the status of St. Lucie No. 2, the application for which was made sub- -
sequent to the 1970 amaadm-d: to the Atomic EnergyIet, which authori=ed antitrust older plants. reviews in connection with licensing of nuclear plants and the three The three older units were actunny licensed under a different e e .
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Y . . . . . . .2 h( MAm tws. ossoRNC. cHRt.!CH McNATT. GCECLMAN & COBS Mr. Robert Wan '
Page Five March 16,1977
- provision of the law at a time when an antitrust redew was not required.
There is a real question as to whether the Licensing Board.has the *
- jurisdictics to re-open the license conditions of plants which are already in cperatics, and it is our belief that they do not. We further strongly e
' believe that they do not have the right to re-open St. Lucie No. 2 where t the potentiallitigation ar.d a=titrust review was settled by Florida Power
& Light agreeing to license conditions with reference to the only entities which requested the same. ,0f the intervening cities, it appears that those which did not receive an entitlement as to St. Lucie No. 2 i simply never made a.'.y timely request for the same, with the possible - !
exception of Orlando, which is taking the position that Florida Power &
Light, in some way, promised them access to any new plants if they would e request the same for St. Lucie No. 2 ,.
3 Geinesvine vs. Florida Power & Lirht.
This is a treble d= mage action brought by the City of l
Gainesvine in tne Federal District Court in Jacksonvius wherein a fury found Florida Power & Light was not guilty of any violation of antitrust laws aHeged. Spiegel & McDiarmid, together with the Washington firm ",
of Rowley & Scott, represented the plaintiff and Mathews, Osborne, Ehrlich, McNatt, Gobelman & Cobb represented Florida Power & Light. The case is on appeal to the Fifth Circuit Court of Appeals in New Orleans with oral arguments having been held in December 1978, r.nd we are waiting for the -
Court to render its opinion. It has been our position that the Appellate -
Court would uphold the lower Court judgment in favor of Florida Power & :
Light.' -
F
- 4. 'New Smyrna Beach - Transmissic.. of Power from Florida :
Power Corporation's CrystalIliver Nuclear Plant to '
New Smyrna Beach over the Transmission Lines of Florida Power Ayaht.
- Extensive negotiations have been held but no contract ever entered into as to the charge to be made and the conditions under which the power 9 owned by New Smyra Beach wiu be transmitted to New Smyrna Beach from Crystal River. r' Q to what Florida Power & Light is doing and is charging for this service.
Spiegel & McDisrmid represent New Smyrns Bench and the fim of Reid &
Priest and Steel, Hecto.y & Davis have the primary responsibility for handling i
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I M Arx tws, ca n C R N E. EH R U CH, M cN Arr, G C e E1.M AN & CC s 3
\
. Mr. Rchert Wall .
i
. Page Six -
March 16,1977 ' "'
i any litigation that ensuus before the Federal Power Commission.
l .
The nrms of Lowenstein, Newman, Reis & Axelrad and 1
Mathews, Osborne, Ihrlich, McNatt, Gobelman & Cobb have actively -
participated in the negotiations and have been kept fully informed and have had input i=to the antitrat aspets of this matter.
- 5. Vero Beach - Accuisition.
At the present time, there are two separate pieces of Iltiga-I tion involved in the potential acquisition of Vero Beach municipal power system by Florida Power & Light. One is a State Court action in the ,
Circuit Court by three individuals seeking to stop the acquisition which is being directed by the firm of Steel, Hector & Davis. It is our understanding that since the original filing of pleadings and motions directed theret'o by the def="d="*r, there has been little activity in this case except for written discovery requests. Consideration should be given to other discovery, in-
"T" ding de;.csitions, which is in the p1=""4" stage. I have not personally seen the p1=* ding nie in this matter.
The second action i=volves the same three indibduals who have Sled a petition with the Federal Power Commission seeking an antit:;ust hearing as to alleged a=ti-competitive practices by Florida Power & Light prior to Federal Power Commi351cn approval by the acquisition. There are some collateral matters, such as IRS approval of the defeasance of municipal bonds, but the primary delaying factor in the Vero Beach sii sat.on at the present dime is the Federal Power Commission proceeding. -
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A hearing has,been scheduled in this ~atter to begin in Washington on June 27,1977 with a very rigid time schedule for discovery, data requests and prefimi"=ry matters. Florida Power & Light is represented by the firm of Steel. Hector & Davis, as general counsel, and the nem of Reid & Priest, with Matthew Childs and Richard Mer?. man, of the two respective nrms, actually primarily h="d14" and directing the work.
')
We have been coordinating with them on the data requests and person =e1 frec cur of5ce are actively participating in the sea,rch of the documents and in deciding which request will warrant objection.
l Meanwhile," negotiations under the dirwtion of Senior Vice
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Mr. Robe $t Wall
- Page Seven .
l March 16,1977 -
i President Ralph Mulholland, with Matthew Childs and others from the i firm of Steel, Hector & Davis, have been in progress with Vero Beach
- l l
officials to . secure more time before final acco=plishment of the -
acquisition. .
i 7ere Beach, which is an active party before the Fedaral Power Commission at the present time, seems to be taking the same position as Florida Power & Light, that is, that the intervention by the i
three individuals has no merit. Spiegel & McDiar=id c.re represe: ting the three individuals who are the active intervenors. The same essential antitrust issues are involved here as in the proceedings before the '
Nuclear Regulatory Commission. Florida Power & Light is taking the posture that it will do everything possible to expedite an early favorable completion of the hearings before the Federal Power Commission. .
g 8. Justice Denar6:ent - Antitrust Investiration. ,
On behalf of the Florida Municipal Utilities Acsociation, city attorney Osee Fagan of Gainesville on July 21,1975 wrote the Justice Department, Antitrust Division, asking for a full -scale investigation of -
Florida Power & Light alleging anti-competitive conduct and monopolistic practices he eT=f red were having a very harmfel effect on the various
' =mnicipal operations in the State. The thrust of the allegations was that Florida Power & Light monopolized z= clear energy and tra=smission hnes, refused to wheel, and, specifically, to file a general wheeling tariff with '
i the Federal Power Commission, refused to participate in a "true" state-wide power pool in pool theand active coordfen*fon and wanted no part of an integrated , ,
State.
Department and a clear indication Several was conferences mannestedhave by the been Justice held with the Justic9:
Departmet
' 9, attorneys that they might wellinstitute legal proceedings to stop the ac- ..
quisitics of the Vero Beach system. In addition to the usual antitrust .
l questions, they also brought up the natural gas supply of Florida Power &
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- Ligttas possibly havd.ng antitrust ramifications.'
The Justice Department has been kept advised of the Vero Beach sitcatica and, beesuse of the Federal Power Ccmmission hearing f i and the fact that no final date has been specified to accomplish tHir.acquisi-JG tion, it appears that they are simply going to watch while continuing their investigation without any specific action being taken. The Justice Depart-mest is not participating as they have a right to do in the several =stters N --____==__-__---__J ~_ .-.-N.--_-_--.-. A. --- - - .
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MATHEWs. ossoRN E cHRUCH McNATT. CCSELMAN & Cces
( '
Mr. Robert Wall l
Page Eight . .
l March 16,1977 .
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pending before the Nucles.: Regulatory Commission involving the licensing ,
conditions of' nuclear plants. ,
In addition to the Lowenstein and Mathews' firms, the firm ,
of Covingt=n & Burli=g, in Washington, are representing Florida Power &
Light in this matter. In addition, Tom Capps of Steel, H?tter & Davis has participated in talks with the J2stice Department.
It was feared, when there was a definite date pending for ts T4 ing the acquisition of Vero Beach, that Justice might well file a lawsuit in Federal District Court seeking to enjoin the same. There has been scue reluctance, however, for the Justice Department to relitigate ,
. any cf the Ctter Tail type issues involving the electric industry in Federal Court. Their posture seemed to be to use their interpretation of Otter Tail to force cencessions from investor-cwned utilities in ar8mi Nrative pro-caeiings, rather than to take the chance that the Federal Courts and the United States Supre=e Court might li=it the Otter Tail require =ents as interpreted by Justice. ,
Under the new 1976 statute granting the Justice Department all of the powers that any other Federal agency has in subpoeusting witnesses and requiring document production, Justice ccrdd unquestionably enter into a discovery phase paralleling and duplicating that in other p'roceedings if they ,
, so desired.
. it is one strong belief that the Fagan letter, which started the Justice Department inquiry, was probably written by someone frem Spiegel
& McDiar..Si and that they are conH mhg to have input into the Justice Department.
l g 5. St. Lucie'No.' 2 - Present' License Conditions. '
At the present time, construction on St. Lucie No. 2 has stopped
. .because of Court orders and other matters involving either site selection, safety, or environmental consideratiens. It had been felt that an antitrust hearing on license conditions for St. Lucie No. 2 had been obviated when the Company agreed witn the staff of the Nuclear Regulstory Commission to accept certain
'h v conditions in con =ection with the construction permit for St. Lucie No. 2, giving direct access by way of reasonable ownership shares to the cities of Homestead and New Smyrna Beach and other cooperatives which purchased
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MATHcws, osacnNc. rMauCx, wenArr, conc 1. MAN & CC55
( Mr. Robert Wan Page Nine .
March 16,1977 .I l Power from Morida Power & Light. -
Negotiations have been rather extended in trying to resolve just what ownership shares should be grs=ted to the cities and cooperatives, ,
it being the renamental position of Merida Power & Light that it should be related to their previous peak loads proportionate to the amount of power that had been purchased from Morida Power & Light.
Concer.ing Homestead and New Smyrna Beach, the basic issue has been how much power they should receive. Homestead has been offered two =egawatts, but has not, as yet, indicated they would be wining to actuany pu:~h-e the same.and has requested extensions of time in .
l
. order to make a decision. '
New Srnyrna Beach is represented by Spiegel & McDiarmid and they Lave, at times, asked for entitlement shares that would give them a higher nuclear mix than Morida Power & Light. Controversy and negotiations have resulted in an interchange agreement actually being negotiated by the parties and the i=terchange is under construction now.
No agreement has been reached as to the amou=t of their ownership .
entitlement. .
Concerning the cooperatives, the two basic matters to be resolved are, (a) the ownership shares, and (b) whether or not Florida Power & Light must aggregate the entitlement of the various cooperatives to their generation entity k=own as " Seminole". The cooperr.tives take the '
position that they have individuany, in certain " hen and high water" contracts, given all the responsibility for their generation needs to a super co-op kncwn as " Seminole". Morida Power & Light has taken the position that the license conditions require it only to sen to the individual co-ops, but that it win contract with Semble provided the individual co-ops win an cedractuany obligate themselve<s to the financial requirements of St. Lucie No. 2, inchtding not only the generation of power and the cost ,
associated therewith, but also to the ecst incurred with shutting down the plant, nuclear disasters, or having to ter .J.nate production because of national nuclear energy policies. Negotiations which had been dragging .
recently have been activated again in this field with tha hope that if some r!
, agreement could be reached with the co-ops, they would not inte:rr,ene in
- the older plants proceedings before the Licensing Board of the Nucinar 1 - - ..
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N M ArH CWs, Os 3 C R N C, CH R LICH, M cN Arr, G C e CLM AN da CC e 5 Q
(
Mr. Robert Wall Page Ten ,
March 16,1977 -
F.egalatory Commission discussed above. -
- 6. Gas Transmissicn Cas'es.
Spiegel & McDiar=id are obviously involved in this and the matters are being bandled on behalf of Merida Power & Light by Steel,
. Hector & Davis ar.d Reid & Priest. -
. 7 Ft. Pierce.
At the request of the city of Ft. Pierce, some preliminary discussicas werd held concerni=g the sale cf the Ft. Pierce system to
. Merida Power & Light. Spiegel & McDiar=id are involved in some way
- in trying to prevent Ft. Pierce and Merida Power & Light from reaching an agreemes and it can be anth ipated that they wiu find individuals who will be the pro forma parties in the event they decide to institute litigation.
At the present time, Merida Power & Light is taking a rather " wait and see" attitude to see how the Vero Beach situation finally works out before attempting '
to reach a= agreement with Ft. Pierce.
8;, Davtona Beach Frenchise.
\
The present franchise of Florida Power & Light to serve Daytona Beach expires in the fall of 1977. For over a year, various elements of the City of Daytona Beach, including the local newspaper, have been -
waging a strong campaign to try to get Daytona Beach not to renew the fran- -
chise but to start its own municipal operation and to purchase the lines and equipme=t of Florida Power & Light. The City of Daytona Beach has recently hired the firm of Spiegel & McDiarmid to represent them in the negotiations for a new franchise. There are acmally two' activities going on-sf-hecusly - one is the attempt to negotinte a new franchise agreement, and the second is the enort on behalf of certain elements in the City to start up a municipal operation. -
Florida Power & Light, under the direction of Jim Spencer, is represented by Steel, Hector & Davis and by loe- counsel, Kedt
] Coble. .It is hoped that a referendu= election will be held by ea:4,7 su=mer of 1977 concerning the new franchise. A'new 30-year agreement has been
\ offered by Morida Power & Light, but. Taarterbacked by Spiegel &
McDiarmid, every roadblock in the way of effectuating the same is being .
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M ArH cws. cs soRN C. EH R UCH, McN Arr, co S CLM AN !s CoSB O. .
\ .Mr. Robert Wan Page Fleven . .
March 16, 1977 . s l -
thrcwn up. Certain unreasonable data requests have been made by the City concerni=g the value of the Florida Power & Light operation in Daytoca Beach and the undersigned has been cooperating with the attorneys ,
and others i=volved in trying to respond in accordance with the bect ,
interests of the Company, taking into account an of the antitrust' considerations that ~ight be advanced.
- 9. Present Rate Cases Before the. Florida Pu$lic Service Commission.
. Following some hearings, the basic temporary relief sought by Florida Power & Light was denied by the Florida Public Service Com=ission with only a small portion of the rate reHet bel =g granted.
Hearings are now being conducted as to per anent rate relief sought. So far, we.have not been able to see any direct activity by Spiegel & McDia. id '
in these proceedings, although everyone is suspicious that they could appes.r at any time. The broad scope of the inquiry by the staff of the Public Service Co= mission, involving the possible sale of power from ,
mothbaned generating units at Florida Power & Light to municipalities and/or the coops or other private companies, appears to -be =ctivated by * ,
factors that are not directly inspired by the usual Spiegel & McDiarmid type of anegation. When and if Spiegel & McDiarmid enters the picture, we will be apprised by Steel, Hector & Davis who are actively h=hg the hearings on behmtf of Florida Power & Light so that prompt counter-action =sy be taken. . ..
( . .
10 At our recent meeting in Maf, you also mentioned possible -
Spiegel & McDiarmid activities in connection with South Beach and some other =atters. We' win continue to respond and advise with any antitrust considerations involving these =stters. . .
- r. . , .. ., .s, . .
As we cone'e ive our role 'in the immediate' future. we win conti=ne to exercise our responsibiHty in the nuclear regulatory matters, '
the Justice' Department matter, the Gainesvine suit, and other areas'where we are involved in direct participation. On the matters being handled by general counsel and the other firms, we win be kept advised and win be consulted on trying to coordinate all matters having to do with antit:.tst .
considerations. We win do our best to be informed, make ourg recom=endations and to keep you and Tom Capps funy apprised 'of the
. vh curre=t situation with periodic status reportc.
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MATH CWS. CsBORN C. CHRUCH. McNATT. oC S CI.M AN & CC Bs O(
Mr. Robert Wall -
' Page Twelve .
March 16,1977 Since this is the first atte=pt to give an overall picture of just where we are o= the advance battle Ifnes, I would appreciate any suggestions you might have as to format or othe ways of =aking sure . -
that you, Tom Capps and othars at all times have a general overall view ,
of all that is happening. We deem one of the most important aspects of this is to make sure that we are consistent in pleadings and respe=ses te data requests in each of the proce'edings.
, Sincerely, '
s- . - J i.
- I -
JIM,Jr/Im , ,. J . Mathews, Jr.
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cc: Tom Capps, Esquire ' :
Tracy Dar.cse, Esquire :
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- 7. A. Bouknight, Jr., Esquire -
Richard W. Med. man. Esquire
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Appendix B i Pages 412 and 413 from Detroit Edison Company's 1978 Form 1, filed with the FERC, shaving contractual sales of power and energy to Michigan tiunicipal Cooperative Powsr Pool; and settlement agreement in Detroit Edison Company, FERC Docket No.
ER80-100, dated December 11, 1979; and <:.ariff sheet relating to sale by Detroit Edison Company to Michigan Municipal Cooperative Power Pool.
I i
,,,,,,,,,,,,,, The Detroit Edison Company ,eee enee, o,,e..,, 3 i ,,78 5Alf 5 FOR RESALE (Accewns 447) i Resort sa;es dw rong vest to enhef electees weehsees and se essees or temer e ee n eeneracion er echee purtheses DP. for dump r.e-ee (). tur eenee pbwe aushernere for deserstmes.en se .Jtemaae tenewmers esher P' ate an "e'* en telwmn ec s .f ease emmesees consett arreos a seaec 2 reesede e=bheadents and slasa.fv seies as se ill hecesord 'Juhteen, bne Group eegeehet eases reded *s" en suiven er i be eense .or reune, s sh 'Wenaseeciaeed Ddetare. ill %4unscapel.ases. tal Coopermesees. and (1) of ortein. peevedong a subecesi for each sease s ee rawnees of dele.ert en Oehet P biic A=ehera.es far ee<* rear eesiansee esauseecas cJane.heae.en caiwans .ti and .pe .waabs, .aenseAed .a coa.mn ies 4e soewmnibien.. F P. for Arm p=ce e ppi ing sesal . seem eey ee. 3 Report separasch hem. 4.ney. and eener pe.ee seed ee che same ments er e wesomee er tesel reqwstemenes as a specs Ac peone of deleserv. es lee, tiretriew ehe naewee of an eau staesence as Other Po-ce. res...
IPCL fee Arin pm.ee supplemg total sosiem requiremenes of cassemee er th' unai req arements as a speesAc pe.ns of deh=erv mesh credia alle=ed cus. 4 f f cele *er, is maoe as a ovessas.en indicaee e=,mevehey in casumn sfL immer fee sea.labee meanoby. FrePt. fee Arm pe=ce espp*emene ag eise. thee respondene e=ned or leased. R S. s vosomer ,=ned or leased. C3 s*
. E = se E es e8 Demeat e [sneerfy wh'thi
- se ,e j4 !I v 'I *s ne e' oe+ o , *
- -eee . ,e.
sj J.i .j =2 3 C*"'=' mea ~e me s.m.m
. w . m J semead ]','"*y*" eemend les fb6 lal (d) let 181 191 rhi M (1) Associated Utilities i None 2
3 (2) Nen- Associated Ut!Ilties e Consumers Pewer Co. FP 5 Portlac. MI RS CS 212,702 206,626 215,208 s
e F Ccmmonwealth Edison C o. - (5) 16 - - - -
8 Total e
'O (3) Municiralities
" City of Crerwell FP 2 Croswell, M! R$ 4,752 4,141 i 5,004 12 I 13
,a ,
I
'3 Village of Clinton FRP 6 Clfaton, M! RS 2,480 2,233 2,530 se er
.a I te g Village of Sebewaing FP(*8) 18 , Sebewaings MI RS 2,500 1,406 1,632 29 h 22 23 24 TCt*I 2s (4) R. E. A. Cooeerstives ! l -
2e Thumb Electric Coop. FP 4 Delaware Twp. , MI RS 1,107 S48 1,02S 21 2t ,
2, 30 CS 15,060 10,961 14,730 FP(Pp ; Ubly, MI (7) 3' Moore Twp. , MI (7) CS FP(q 32 '
FP(M Wells Twp., MI(7) CS 33 3'
Sour.heastern Michigan FP(P 14 Clinton, MI CS 4,701 2,930 3,561 35 i
Rural Electric Coop. #
3e p
3r .
2s Total
! l 1* (5) Cther Public Authcrities l !
i Interconnections with l A ac Michigan Municipal FP(P 20 -
20,000
- 23,333 30,000 V a' 42 Coop. Power Pool Constmen Pow er Co.
- 3 Tetal Sales for Resali da 482 *** l ' 0 * ** f l
l
,, . , . . - . ..e--
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.,,,,s The Detroit Edison Company ,,,, ,., e.. . .., 3 , , , , 7 S 1A&&5 Pod tssALI (Aessmas 447) (Candaued) s:r.n.4 6.ww .r. ua -w. s. m . , a n.n,- #wa w .n 4 w ene q .. .w..
amw , uw - m, w. m ~4 . = , n. n
= p....
.a5,. ,...,..
. .. . m = ,i n. .
s.---.s - r s,. . .. . .a cm.. i.: n .. see ., ,,
... 4 a. .n... 4 .w..m..m a <o .ww n. w t w ..
.ni, 4 q. ..a wwn n.4 . .m ., a .n. t w . . . . . .. w p . . a ei . . 4 ...a dee. .o d era d ch.,y. Sh.= i. c q) .wpe 4 d w a .i.cwn e.eegy .,. ere.. ed as .h pm a. .us n 6r. ..,b, w .( . is,se..,se .. , dt ,.e aw Veemp.
.* r 'i.-.a. ad o.=. e. . tea.
-. ~ ~ .. ~
'* aw- e to w m t.) m t.i m to 3 5 $ $ c.a .
i 3
3 1,155,195,588 13,059,600 19,638,325 3,209,3821 1)
- 60 Min. Integ. 40,000 120,000 64,08012) 3 24,000!4) 35,995,387 3.11
- 345,000 - - -
1795.549 7.795.549(0) -
11,093,011
- 1,155,195,588 13,059,600 19,638,325 43,790,936 3. 11(8) 9 to t,0 Mis. Intes. 9,320 23,418,436 291,072' 409,323 64, S76(1) 2 I 9, 234t,2) 2 15,000(3) 1, 200(4) 791,205 3.38 is 60 Min. Integ. 4,160 17,058,174 163,108 299,518 47,1709) ,,
3, 148(2) ,7 13,00043) ,,
1, 200r,4) 531,144 3.11 ,,
60 Min. Integ. 2,400 18,977,385 91,223 332,104 51,983(jl) go 6,391(p) 28 12,000(p) 22 t, 200(4) 495,401 2.61 23 59,453,995 545,403 1,040,445 231,902 1,317,750 3.05 2 3s .
60 Min. Integ. 12,500 4,611,094 62,323 30,694 12, 397(ji) i to t, t04(p , 2r 2s 12,000(p) l U' 1, 200(4) a70,223l3.f9 so 60 Min. Integ. 40,000 31,941,000 798,608 1,433,968 231,327(;1) 3'
.. 21,477(p) 32 3,600f'p ) 2,483,9SO ?' 3.04 33 l
I 3 60 Min. Integ. 40,000 16,932,600 200,316 296, 320 47,042(p) 4, $12ff)
- 1. 200(4) 550, 190 3.25 ,
103,484,694 1,061,752 1,310,982 336,659 3,209,393 3.10 2a 39 614,721(1) 80 170,000 204,000,000 1,500,800 3,468,000 (G) 60 Min. Integ.
40,432(-) *'
138,000 2.75 42 345,000 1.200(4) 5.625,153 1,522, 134, 277 16,167,555 25,957,752 12,317,925 54,443,232 3.06(8l42
e
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UNITED STATES OF AMERICA BEFORE THE F 'AL ENERGY REGULATORY COMMISSION In the Matter of The Detroit )
Edison Company ) Docket No. ER80-100
)
I SETTL'!? TENT AGREEMEW The Detroit Edison Company (hereinaf ter referred to as " Detroit Edison") and The City of Croswell, Thumb Electric Cooperative, Consumers Power Company, The Village of Clinton, The Southeastern Michigan Rural Electric Cooperative, The Village of Sebewaing, The Michigan Municipal Cooperative Power Pool, (hereinafter referred to as
" wholesale customers") ,
WITNESSETH:
( NHEREAS, Detroit Edison's electric service agreements with the wholesale customers contain provisions contractually permitting Detroit Edison to file superseding rates pursuant to Section 205 of the Federal Power Act; and
. WHEREAS, Detroit Edison on November 21, 1979, filed with the Federal Energy Regulatory Commission its historical cost of service i
analysis for the twelve month period ended June 30, 1979 (Period I) .
and for the twelve month test period ending December 31, 1980 (Period II) with respect to the electric service rendered by Detroit Edison to l
its wholesale custonars; and WHER~'S, Detroit Edison informed its wholesale customers of its intention to make the cost of service filing; and I
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! WHEREAS, discussions between 3etroit Edison aru its wholesale j customers ensued with respect to rate level 4 and other terms and conditions or leu ric service between them; and WHEREAS, these discussions have resulted in settlement and com-promise of all issues outstanding between thea in this caser /
- NOW, THEREFORE, in consideration of the mutual covenants and I .
. prt:snises herein contained and for other good and valuable consider-
.e l ation the parties have agreed to a settlement and comprcmise as f . , . ' sb l gg11owsg , ,y 9 ~< pf .1
_V I
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- l. Detroit Edison and_ the wholesale customers agree that this Settlement- Agreement Nnsti tes a full settlement and compromise of
- .~ , e. .
all issues arising- front Detroit Edison's cost of service analysis for;yy
. 1
. . r, . ,.s _
..n , . -
d my the twelve month period e.sded June 30,1979 (Period 1) and for the [. .I
. < , . ~ :,e , . - . . . ,
twelve month test period; ending December 31,1980' (Period. II) .filedm[e ': . ,
a
..: L. , u,; ;
2I[1979 with the rederal... .:
- :. . ..>...r . .- .
ca trovember Enerw Regulatory Commission in ;,s;.3 ejs: 3. ? >?: :-,.
- J2 . 3, .m_ f.)
,7 l
l .
support of Detroit Edison's notice of its intention to cause new
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. a2.%;}
l rates, charges, terms and conditions of electric sor rice to become
. . ,..... . . m _ . m .g,
[ effective. _,
- $M k , ( .M,,". '; ' . ~ .
, . ., $$fd
- ,. , . .. . . ~ . , , . < . , . - wn;g i 2. The wholesale customers agree for the purposes of the e .w .
- s
, Settlement Agreement that the settlement rates, designed to increase .
- ,.s .. , -- - . . .#6 l
! Detroit Edison's wholesale revenues in the aggregate by approximately
~..
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$4,181,000, based on the twelve month test period ending December 31,
- 1980 are appropriate and that Fourth Revised Sheet Nos. 4, 5, 6, 7,
' 8, 9 and 10 submitted for inclusion in Detroit Edison's FERC Electric
! Tariff Volume No.1, each of which is contained in Exhibit A at tached hereto and made a part hereof, represent just and reasonable rates.
The parties agree that Exhibit A sets forth rates, charges, terms l
I Pnd conditions which shall become effective on April 1, 1980 for 1
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' =
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- i service on and after that date.
i 3. Detroit Edison and the wholesale customers agree that i
certain revisions to the General Terms and Conditions for Wholesale l
for Resale Service shall be made for wholesale electric service on l
and af ter April 1,1980. These revisions are incorporated in Exhibit A. These revised provisions concern (1) scheduling of meter
/
tests; and (2) an experimental interruptible rate option.
- 4. Detroit Edison agrees as part of this Settlement Agreement that it will not place in effect prior to June 1,1981 an increase in its rates under Sections 205 or 206 of the Federal Power Act
- applicable to the wholesale customers which are parties to this t Settlement Agreement in excess of the rates provided for here19, but it is agreed that this limitation shall not apply to the effective-ness of changes in rates under Detroit- Edison's fuel adjustment
{ '
i :lause nor to the recovery of taxes, nor to assessments or charges
?
imposed by duly constituted authorities upon Detroit Edison including assessments or charges to be collected by it from its customers.
- 5. The parties agree that, (1) if the Commission has not issued an order approving this Settlement Agreement in accordance with Paragraph 8 hereof within sixty days of its filing with the Commission, or (2) if any person, party or other entity shall within l 30 days of the date of the Commission order approving this Settlement
~
- Agreement petition for rehearing of such order, then Detroit Edison I may, at its option, notify the Commission and the other parties i
' hereto of the cancellation of this Settlement Agreement, in which case it shall be void and shall not be a part of the record of this I
- proceeding or be used for any other purpose whatsoever.
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- i l 6. This Settlement Agreement shall not constitute or be deemed in any respect an admission or concession by Detroit Edison or the wholesale customers that any contention or allegation which
, might be made in the absence of settlement, would be untrue or invalid l
and this Settlement Agreement ..uall not establish principles nor shall it be deemed to for aclose Detroit Edison and the wholesale
/
customers frem making any contention or allegation in any other pro-ceeding or investigation.
- 7. The acceptance of the Settlement Agreement by the Commission shall not be deemed nor shall it constitute in any respect a deter-mination by the Commission as to the merits of any of the contentions or allegations which might be made by any of the parties hereto in the absence of settlement.
B. The discussions which have produced this Settlement Agree-ment have been conducted on the express understanding, pursuant to
)
Section 1.1S(e) of the Commission's Rules of Practice and Procedure,
' hat t all offers of settlement and discussions relating thereto are and shall be privileged, shall be without prejudice to the position of any party or participant presenting any such offer or participating
. in any such discussion, and are not to be used in any manner in connection with this proceeding or otherwise. The Settlement Agree-1 ment is submitted on the condition that, in the event the Commission
- does not accept it without modification (other than the possible i.
,j requirement of further filings to satisfy procedural requirements)
I within sixty days of its filing with the Commission, Detroit Edison may, at its option, withdraw its acceptance of this Settlement 2 = , Agreement, in which case the Settlement Agreement shall be deemed i void and shall not constitute any part of the record in this pro-I ceeding or be used for any other purpose whatsoever.
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! 9. The parties agree that (1) they shall jointly make such filings as are appropriate under the Commission's rules for processing settlements urging the commission to permit the settlement rates, charges, terms and conditions of service to become effective on the dates set forth in Paragraph 2 above without change, condition, sus-pension or further procedural requirements, and (2) all parties thereto shall cooperate in securing Commission approval of this Settlement Agreement and in meeting any further procedural require-ments.
IN WITNESS WHERECF, the parties hereto have set their respective
~
hands and seals. - -
' Exocuted by and on behalf of the parties listed below.
THE'DETRCIT EDISON COMPANY , ,
--2 - , ,
. ( Roc ~ert O., Wagner.
As Rstant Vice-President-RatesNd' Financial Evaluation Dated: December 11, 19 0 CAI 1
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' EXHIBIT A
- 1 TMt DETRolf EDISON Cowe AmY Fevrth Revised Sheet Me. 10 F.g.9.C. Electric Terfff. Volume No. I l$wporsedes Third Revised Sheet No. 103
' Rete Schedule No. 20 RATE SCMt0Utt 00venNING senytCE To The utenteen heaterpet Ceepere+Ivo Powee
- set mAff PER MONTwa A Customer Charge of t
' $350.00 per sonth i
! A Deeped Charge oft l 19.00 per kilewett of t>llt ing geoemd per meeth t ~
f An Es trgy Charge of - ~
l 2.0Sd per kileestthour- ,
. FUEL ADJUSTMENT AND PURCHA$ED POWER ADJUSTMENT: The Energy Charge in the a bove rete Is subject to the previstems of Tariff Peregraph 3.3 et tue-Ceepony's Tariff. ,
LAft PAYMENT CHARGCs See Tarif f Peregraph 2.$ of the Ceepony's Tarif f MINIMUM CHARGES Customer Charge plus the Deeend Charge es stated above.
Monthly stiffne Oe end The monthly tptlling demand Is the centract cepecity.
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4 Appendix C 1
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i Table of documents appended to Cities' May 27, 1981 Motion and i August 7, 1981 Response, together with an explanation why each
(
docume'nt is admissible and determinative.
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__. ..__._.._-_...___m___ r_ _ _.- . _ _ ._ __ _. . _ . , _ _ . _ _ , _ . _
BEFORE THE UNITED STATES 7-(_) NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chairman Michael A. Duggan Robert M. Lazo Ivan W. Smith, Alternate
)
In The Matter Of )
) Docket No. 50-389A i Florida Power & Light Company )
)
(St. Lucie Plant, Unit No. 2) )
)
INDEX TO DOCUMENTS Page Appendix A l
l 1. Deposition of Robert J. Gardner, April 10, 1981 1-258 l
Appendix B
- 2. Excerpt from "A 111 story of Florida Power &
Light Company," Gardner Ex. 1 B1-8
- 3. Excerpts from U . S. Central Statiot. Nuclear Electric Generating Units: Significant Milestones, (Status as of July 1, 1980),
September, 1980, U.S. Department of Energy, Gardner Ex. 1 B9-49
- 4. FPL Expenditure Requisitions for Turkey Point Plant, December 1968, Gardner Ex. 1 B50-51
- 5. Documents showing FPL awareness of cooperative and municipality interest in nuclear plants, 1959 B52-71
[Page reserved] B72
}
l l
O Appendix B (cont'd) Page
- 6. Minutes of Meeting on Nuclear Power, November 27, 1961, Office of W.J. Clapp, Florida Power Corp., Gardner Ex. 4 B73-75
- 7. FPL letter from George Kinsman to Fischer S. Black of Tampa Electric Co. re formation of Atomic Power Committee, January 8, 1962, Gardner Ex. 5 B76
- 8. Letter from W.J. Clapp to W.B. McGuire of Duke Power Co. re: Savannah River Nuclear Power Project assessments, February 7, 1964, Gardner Ex. 8 B77-78
- 9. Letter from R.H. Fite to Harllee Branch, The Southern Company rer competition in nuclear power field, December 4, 1959, Gardner Ex. 16 B79-80
[Pages reserved] B81-88
- 10. Excerpts from Light Water - How the Nuclear Dream Dissolved, I.C. Bupp &
J. Derian, Basic Eooks, Inc., Gardner Ex. 20 B89-96
[Pages reserved] B97-100
[Page reserved] B101 I [Page reserved] B102 l
- 11. Excerpt from report given by R.H. Fite at Annual Stockholders Meeting, May 15, 1961, Gardner Ex. 28 B103-05 l 12. Letter from J.R. Brice. J.T. Logan, and K.S. Buchanan of Tampa Electric Co. to l H.W. Page of FPL re: report entitled "A Coordinated Plan for the 1970 Generation
! and Transmission Requirements for the l Electric Utilities of Florida," May 9, 1960, Gardner Ex. 29 B106-220
- 13. Letter frcm H.K. McKean of Florida Power Corp. to Cc9rge Kinsman re data being furnished to Federal Power Commission for National Power Survey, February 18, 1963, Gardner Ex. 30 B221-36 l
l l
O Appendix B (cont'd) Page
prepared by Florida Operating Committee with Cooperation of Orlando Utilities Commission, June 1961, Gardner Ex. 31 B237-388
- 15. Letter from R.H. Fite to J. Dillon Kennedy, Commissioner of City of Jacksonville re: request for power i supply study data, November 3, 1964, Gardner Ex. 32 B389-391
- 16. Letter from Long-Range Study Group of Florida Operating Committee to Lester Ulm, Jr . , Chairman re: Interim Report of Long-Range Generation-Transmission Planning Study, July 8, 1966, Gardner Ex. 33 B392-426
[Page reserved] B427-440
- 17. Internal FPL memorandum on pros and cons of acquisition of Homestead electric system, 10/18/67, Gardner Ex. 35 B441-50
[Pages reserved] B451-70
- 18. Handwritten notes re: Division Managers' meeting of October 18, 1973 re: Antitrust -
j Homestead, Gardner Ex. 46 B471
- 19. Letter from J.J. Kearney of Edison Electric Institute to Policy Committee on Atomic Power re: attached " Remarks of John B. -
Anderson - Changing Times for the Nuclear Power Industry," September 16, 1968, Gardner Ex. 47 B472-82 l
- 20. Documents re: Armour & Company chemical processing plant, 1966, Gardner Ex. 49 B483-90 i
! Appendix C l
[Pages reserved] Cl-6
[Pages reserved] C7-8
(
Appendix C (cont'd) Page
[Pages reserved] C9-24
[Page reserved] C25
[Pages reservea] C26-31
- 21. In the Matter of Florida Power & Light Company, AEC Docket No . 50 , " Application for Licenses Under the Atomic Energy Act of 1954 As Amended," for Turkey Point Nuclear Power Project., March 22, 1966 C32-44
- 22. Letter from W.J. Clapp of Florida Power Corp. to Parks E. Baker of Seminole Electric Cooperative, December 7, 19f5 C45
- 23. Press Release, U.S. Department of Agriculture, Rural Electrification Administration, Re Atomic Power Plants Described at REA Conference, May 15, 1996 C46
- 24. FPL Form 12, 1970, 1971, 1972 C47-50
[Pages reserved] C51-67
[Pages reserved] C68-77
[Pages reserved] C78-84
[Pages reserved] C85-89
[Page reserved] C90 f.Page reserved] C91
[Pages reserved] C92-132
~
[Pages reserved] Cl33-35
[Page reserved] Cl36
- 25. Excerpts from Cities' answer to.
FPL interrogatory Cl37-83
- 26. Report to Florida Operating Committee Working Group, "A Florida Electric Power Pool," by Power Pooling Task Force, February 25, 1975 C184-298 1
- 27. Excerpt from affidavit of Harry C. Luff, NRC Docket Nos. P-636-A and 50-389A,
() April 13, 1976 C299-305
4
' Appendix C (cont'd) Page
- 28. FPL memorandum, E.L. Bivans to Tracy Danese, re: Affidavit of Harry C. Luff, NRC Docket Nos . P-636-A and 50-389A, April 26, 1975 C306-09
- 29. FPL memo.andum, W.E. Coe to H.L. Allen, re: New Interchange Contracts with Florida Power Corp. and Tampa Electric Co., February 20, 1976 C310
- 30. Excerpt from examination of E.L. Bivans, FERC Docket Nos . ER78-19, eti al. C311-12
- 31. Energy Broker Summary Report, 4/11/77 C313
[Pages reserved] C314-42
[Pages reserved] C343-69
[Pages reserved] C370-85
[Pages reserved] C38t -92
[Pages reserved] C39',-98
- 32. Excerpts from transcript, Florida Power
& Light Co., FERC Docket No. E-9574, 9/28/77 C399-402
- 33. Excerpt from Exhibit to Application filed by FPL to acquire Vero Beach,
" Evaluation of the Impact of the Offer by Florida Power and Light Company to Purchase the Vero Beach Electric System,"
Ernst & Ernst, 7/76 C403-404 ,
- 34. FPL Presentation of Offer Made by FPL for purchase of Vero Beach Electric Syctem C405-410 Appendix D
- 35. FPL internal documents showing FPL awareness of early Key West, Vero Beach and New Smyrna Beach interest in nuclear pcwer Dl-3 ha
() Appendix D (cont'd) Page
- 36. Letter from Atomic Energy Commission to Alex Radin of American Public Power Association re: feasibilty of small nuclear plants, March 2, 1961 D4-5
- 37. Handwritten notes re: 1966 Homestead Turkey Point request, January 13, 1966 D6-9
- 38. Letter from R.H. Fite to O.R. Pearson of ,
Homestead re: response to Homestead request for wholesale power, October 3, 1967 D10-ll
- 39. FPL Open Letter to Residents of Vero Beach re: benefits of FPL ownership of electric system, September 4, 1976 D12
- 40. Preliminary Proposal of Electric Utility Service for New Smyrna Beach by FPL, 1974 D13-30
- 41. " Comparative Analysis of Municipal &
Investor Owned Utilities and the Benefits to Their Customers," Financial Planning, December 11, 1973 D31-33
- 42. Documents showing FPL municipals-cooperatives strategy, 7/30/76 D34-39
- 43. Excerpts from Cities' answer to FPL interrogatory D40-121
- 44. FPL Memorandum from R.J. Gardner to F.E. Autrey re: solid waste disposal, power generation, September 19, 1973 D122-30
- 45. Letter from R.F. Risavy of Allis-Chalmers to E. Bivans re: enclosed paper by R.E.
Bathen on proposed Florida Municipal Power Pool, March 30, 1966 D131-54
- 46. Letter from W.J. Clapp to F.S. Black, R.H. Fite, C.A. Lilly, Jr. re: R.E.
Bathen's " Potential Florida Municipal Power Pool," 7/11/67 D155-58
- 47. FPL Memorandum from H.W. Page to M. Mcdonald re: legislation for municipal electric cooperatives; municipal power pool, December 21, 1971 D159 O
l l
Appendix D (cont'd) Page
- 48. Report, " Yankee-Dixie Coordinated Plan For Providing Low Cost Power to the Eaatern United States," June 1966 D160-205 l
- 49. Report, "The Twelve City Story," Robert E. Bathen, R. W . Beck & Associates, October 26, 1970 D206-222
- 50. FPL Memorandum from B.H. Fuqua to A.M.
Davis re: legislation for municipal electric cooperatives, 5/3/71 D223-24
- 51. Handwritten notes of J.G. Spencer re:
threat of municipal ownership D225
- 52. FMUA documents re: possibilities cf municipal interconnection throughout Florida D226-33
( 53. Excerpts from reports on New Snyrna
) Beach Utilities Commission meeting, 12/12/66 D234-38
- 54. Letter from John R. Kelly of Gainesville to A.B. Hopkins of Tallahassee re Gainesville
- 55. Agenda packet for Senior Management Council meeting of 8/6/75 D241-53
- 56. Proposal for New Charter for Senior Managemer.t Planning Council, 8/26/75 D254-58
- 57. Documents showing FPL efforts to "
obtain industrial load, 1978 D259-64
[Pages reserved] D265-79
[Pages reserved] D280-308
- 58. Excerpt from National Power Survey of 1964, re: coordinated planning D309-10
[Pages reserved] D311-18
- 59. Excerpt from "Brief of Petitioner Florida Power & Light Company," FPL v. FERC, Case No. 80-5259, July 28, 1980 D319-24 (Vg
O Appendix D (cont'd) Page
- 60. Newspaper advertisement, The Wall Street Journal, March 30, 1976, "In Support of Nuclear Energy," Edison Electric Institute D325
- 61. Excerpt from transcript, Florida Power
& Light Co., FERC Docket No. E-9574 (Phase I & II), 6/27/77 D326-28 Appendix E
- 62. Florida Power Corp. internal memorandum from S.A. Brandimore to File re interconnection with Tallahassee, 9/8/66 El-3
- 63. Minutes of Power Supply Committee meeting ,
E4-7 6/15/67
- 64. Florida Power Corp. internal memorandum from M.F. Hebb, Jr . to File re : contract negotiations with City of Tallahassee, E8-9 4/11/67
- 65. Proposal for Feasibility Study from R.W. Beck & Associates to Mayor, City Commission, City Manager and City Auditor-Clerk re: revenue bonds to E10-22 finance 44 MW generating unit, 4/1/67 l 66. Florida Power Corp. internal memorandum I frc> .1./. Hebb, Jr. to A. H. Eines, Jr.
re: 6/8/67 meeting between Florida Power Corp. and City of Tallahassee E23-25
- 67. Florida Power Corp. internal memoranaum from M.F. Hebb, Jr. to A.P. Perez re: E26-29 meeting of 2/13/67 meeting with Tallahassee
- 68. Letter from W.J. Clapp to F.S. Black, R. H .
Fite, C.A. Lilly, Jr. re: R.E. Bathen's
" Potential Florida Municipal Power Pool,"
l E30-33 l 7/11/67
- 69. Minutes of meeting of Homestead City l
l Council, 7/27/67 E34-35 E36
[Page reserved]
() [Page reserved] E37 l
l 1
~-
~
O Appendix E (cont' d) Page
- 70. Correspondence between Gainesville and Florida Power Corp. re: ownership participation in Crystal River nuclear plant E38-43
[Pages reserved] E44-47
[Pages reserved] E48-49
[Pages reserved 3 E50-57
[Pages reserved] E58-70
- 71. Florida Power Corp. internal memorandum from A.H. Hines, Jr. to File re: proposed territorial agreement and interconnection with City of Tallahassee, 3/14/67 E71-73
- 72. Florida Power Corp. internal memorandum from A.H. Hines, Jr. to File re:
territorial agreement, 9/29/66 E74-75
- 73. FPL Memorandum to File re: electric service to City of Homestead, 10/23/73 E76-80
[Page reserved] ESl Appendix F
- 74. Excerpts from pages 1-247 of deposition of George Kinsman, April 30, 1981 Appendix G
- 75. " Project Agreement for Investigation, Design, Construction and Operation of Large Scale Nuclear Power Plant," 4/30/56, Kinsman Ex. 3 Gl-3
- 76. Letter from F.S. Black of Tampa Electric Co. to R.H. Fite and W.J. Clapp re Minutes of Meeting on Nuclear Power, 11/27/61, Kinsman Ex.17 G4-7
(%
k-)
03 kJ Appenidix G (cont'd.)
- 77. Documents showing FPL awareness of cooperative and municipality interest in nuclear plants, 1959, Kinsman Ex. 28 G8-25
- 78. AEC Press Release re: Proposals for Small-Scale Nuclear Power Demonstration Reactors, 2/7/56, Kinsman Ex. 29 G26-27
- 79. Memorandum to B. Fuqua re: Vero Beach interest in nuclear plant, 2/29/60, Kinsman Ex. 30 G28-29
- 80. Newspaper article, Key West Citizen re:
Key West interest in nuclear plant, l 3/5/56, Kinsman Ex. 31 G30 1
- 81. Letter fr. 9m W.J. Clapp of Florida Power Corp. to P.E. Baker of Seminole Electric Cooperative re: wheeling of energy generated by nuclear plant, 12/7/55, Kinsman Ex. 32 G31-32
- 82. Power Pool, March 30, 1966, Kinsman Ex. 33 G33-56
- 83. Appalachian Coals, Inc. correspondence and memoranda setting up Coals Committee meeting of 7/7/57, Kinsman Exs. 45-48 G57-61 Appendix H
[Pages reserved] H1-18
[Pages reserved] H19-24
[Pages reserved] H2S-77 .
[Pages reserved] H78-81 Appendix I j 84. Florida Power & Light System Planning I Department Appraisal of Potential Market for Firm Power, July 9, 1976 11-12
- 85. Presentation / Proposal by Florida Power
& Ligth to New Smyrna Beach for Purchase of Municipal System, 1974 113-36 l
l
O k/ Appendix I (cont'd.)
- 86. Letter from Sebring citizen Regarding Acquisition of Sebring System by Florida Power & Light, March 15, 1962 I37
- 87. Letter from R.C. Fullerton, Executive Vice President, FPL, in response to letter from Sebring citizen, with cover letter sent to J.S. Gracy, Senior Vice President, Florida Power Corp. I38-39
- 88. Internal and external exchange of letters concerning FPL's refusal to consider purchase of Lake Helen municipal system, 1958, 1956 I40-43
- 89. Letter from W.J. Clapp, President ,
Florida Power Corp., to Parks E. Baker, President, Seminole Electric Cooperative (with blind copy sent to R.Hs Fite, President, FPL) I44
- 90. Excerpt from editorial, Public Service Magazine, July 1956 (quoting R.H. Fite, President, FPL, in opposition to municipal ownership of Lake City power), showing municipal recognition of importance of nuclear power I45
- 91. Exchange of letters on refusal to sell
- 92. wholesale power to City of Arcadia
- 93. ( from City of Florida Power Corp., from W.J. Clapp to R.H. Fite, R.H. Fite to W.J. Clapp I46-48
- 94. Telegram to Citizens Committee, City of Winter Garden, from L.H. Fite, refusing ,
to sell wholesale power to a municipal within FPL's service area (copy sent to W.J. Clapp), 1963 I49
- 95. Report of Fact Finding Committe to Haines City, reporting unave.ilability of outside wholesale power to replace franchise of Florida Power Corp. I50-54
- 96. Excerpts from FPL advertising, showing that it held itself out as competing throughout Florida against municipal utilities I55-57 O
Appendix I (cont'd.)
- 97. Article from Electrical World, FPL Communications Coordinator A.P.X. Bothwell, stressing importance of statewide rate comparisons I58-59
- 98. Memorandum by R. Gardner, FPL Vice President for Planning, 1976 I60-72
- 99. F'<L internal memorandum detailing FPL opposition to construction of generating plant by Seminole Electric Cooperative, 1952 173-76 100. Second page of letter from R.H. Fite to Senor Smathers (blind copy to W.J. Clapp) I77 101. Letter from A.B. Wright, FPL to J.T.
Bensley, Director of Utilities, New Smyrna Beach, November 25, 1970 I78-79 l 102. Excerpts from deposition of Richard C.
Fullerton, Chairman of Board of Directors, FPL, Gainesville Utilities v. FPL, M.D.
Fla. No. 68-305-Civ-J I80-84 103. FPL Reply Memorandum, filed before Federal Energy Regulatory Commission, Docket No.
ER77-550, June 1, 1978 I85-88 j
104. Unsigaed territorial agreement between Florida Power Corp. and FPL (with cover letter dated January 30, 1961)
I89-110 105. FPL internal memorandum from R.J. Gardner I
on planning, February 12, 1976 I111-127 -
106. Excerpts from May 12, 1981 deposition of Marshall Mcdonald, Chairman and Chief Executive Officer of FPL, taken in City of Gainesville, et al. v. FPL 1128-132 107. Letter from McGregor Smith to W.J. Clapp, August 1, 1962 I133-134 108. Letter from W.J. Clapp to R.H. Fite, July 24, 1964 Il35 l
()
(
3ppendix I (cont'd.)
109. Excerpts from FPL Annual Report, 1980 Il36-139 110. Excerpts from Memorandum of FPL in opposition to Motion to Dismiss , filed in Gainesville Regional Utilities, et al.
- v. FPL, Docket No. 79-5101-Civ-JLK, l September 30, 1960 1140-147 111. Consent Decree, United States v. Florida Power Corp. and Tampa Electric Co.,
M.D. Fla. No. 68-297-T, filed July 19, 1971 Il48-153 112. Excerpts from FPL Annual Report, 1979 Il54-155 i
(
l l
O
BEFORE TIIC UNITED STATES O NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chairman Michael A. Duggan Robert M. Lazo Ivan W. Smith, Alternate
)
In The Matter Of )
) Docket No. 50-389A Florida Power & Light Company )
)
(St. Lucie Plant, Unit No. 2) )
)
FLORIDA CITIES' RESPONSE TO BOARD QUESTIONS INDEX OF ATTACHMENTS 113.
Attachment 1 Florida Power & Light Company, FERC Docket Nos. ER78-19, et al., " Order Denying Rehearing, Accepting for Filing and Suspending Rats Schedules and Denying Motion for Extension of Time", February 6, 1980 (and Erratum Notice, February 26, 1980) 114.
Attachment 2 Florida Power & Light company, FERC Docket No.
ER78-19, et al., " Order Directing the Submission of a Transmission Tariff in Substitution for Individual Rate Schedules", -
December 21, 1979 115.
Attachment 3 City of Homestead, Florida v. Florida Power &
Light Company, FERC Docket No. EL78-28, " Order Terminating Proceeding", November 8, 1979 116.
Attachment 4 Florida Power & Light Company, FERC Docket No.
EL78-4, " Order Terminating Proceeding, November 8, 1979 117.
Attachment 5 Florida Cities v. Florida Power & Light Company, FERC Docket No. EL78-4, " Order'to Show Cause", June 12, 1978 i
O us-Attachment 6 Florida Cities v. Florida Power & Light _
Company, FERC Docket No . EL78-4, ' Staff Investigation Report", April 7, 1978
119.
Attachment 7 Florida Power & Light Company, FERC Dccket No .
ER78-19 (Ph'ase II), Excerpts of testimony of Robert J. Gardnor as to FPL"s willingness t';
file wholesale power rate for power at the bus bar, November 15, 1979 120.
Attachment 8 Florida Power & Light Company, FERC Docket Nos. ER78-19 (Phase I) and ER78-81 Excerpt from " Application for Rehearing of Florida Power & Light Company", September 4, 1979 121.
Attachment 9 Letter from Calvin R. Henze to William Lesnett dated July 3, 1979, transmitting
" Proposal for a Joint Transmission System in the State of Florida by the Florida Municipal Power Agency to the Technical Advisory Group of the Florida Electric Power Coordinating Group" 122.
Attachment 10 Excerpts from 1970 National Power Survey (Part II), Federal Power Commission.
123.
Attachment 11 Gulf States Utilities Company, FERC Docket No.
ER76-816, " Order Approving Settlement Subject to Condition", October 20, 1978 l
l O
l
BEFORE THE UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Peter B. Bloch, Chairman Michael A. Duggan Robert M. Lazo Ivan W. Smith, Alternate
)
In The Matter Of )
) Docket No. 50-389A Florida Power & Light Company )
)
(St. Lucie Plant, Unit No. 2) )
)
FLORIDA CITIES' RESPONSE TO BOARD QUESTIONS INDZY Or ADDITIONAL ATTACHMENTS 124.
Attachment 12 Florida Power & Light Company, FERC Docket Nos. ER78-19 and ER78-81, " Testimony of Dr.
Gordon Taylor (FERC Staff economic witness)",
March 24, 1978 125.
Attachment 13 Florida Power & Light Company, FERC Docket No.
ER78-19, " Exhibits cited in Opinion No. 57 (32 PUR 4th 313 (1979))"
(1) Exhibit GT-29 (Sl. Op. at 7, 28; 32 PUR 4th at 318, 332)
(m) Exhibit GT-34 (Sl. Op. at 23; 32 PUR 4th at 329)
(3) Exhibit GT-52 (Sl. Op. at 23; 32 PUR 4th at 329)
(4) Exhibit GT-62 (S1. Op. at23; 32 PUR 4th at 329)
(5) Exhibit GT-28 (Sl. Op. at 32; 32 PUR 4th at 335)
(6) Exhibit GT-22 (St. Op. at 36; 32 PUR 4th at 337)
_ _ - _ _ _ _ ___ ____=_ ____ - __ _ _ _.
Document No. 1(1)
Appendix A Cited in Cities' Motion, May 27, 1981 at 34, fn. 1.
Desc ription:
Deposition of Robert J. Gardner (Vice President, FPL) taken April 10, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 106-108; 8, 17.
Basis for Admissibility:
, Sworn testimony.
l Detenninativeness :
Mr. Gardner's deposition proves that FPL's specific coordination assumptions in planning its nuclear units cannot be determined because, he testified, that either FPL never wrote down its final plans for constructing its nuclear units, nor the assumptions used in planning the units, or that it has lost many of its planning documents.
Cities note that in September, 1981, following their request in connection with the Gardner deposition, FPL provided Cities with additional documents, some of which appear to bc planning documents. Cities have not yet analyzed these fully, nor have they had an opportunity to l examine Mr. Gardner or other FPL officials in deposition l concerning the newly received documents.
l l
- 1.1 -
O
l Document No. 1(2)
O aggendix a Cited in Cities' Motion, May 27, 1981 at 20, n.l.
Description :
Deposition of Robert J. Gardner (Vice President, FPL) taken April 10, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 90-94;98-108.
Basis for Admissibility:
Sworn testimony.
Determinativeness:
Mr. Gardner's deposition proves that its operating nuclear units were planned during the time of FPL's market division conspiracy with Power Corp. and Tampa Electric.
Mr. Gardner testified that FPL entered into contracts with Westinghouse for a nuclear steam supply system (turbine and nuclear fuel) about May 1966, with an effective date November 15, 1965; contracts were signed with Bechtel Corporation for engineering and construction services associated with the nuclear plants at about the same time.
He further testified that it was in the mid-1960's that FPL began to consider nuclear power.
l FPL does not contest that it planned nuclear units in the 1960's.
l t
(
I 1.2 -
O
Document No. 2 Appendix Page Nos. B1 - B8 Cited in Cities' Motion, May 27, 1981 at 28, n. 2 Desc ription:
l Exc erpt from "A History of Florida Power & Light Company, A Half Century of People Serving People, 1925-1975."
Basis for Admissibility:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own l statement.
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness: This document i
! 1. Together with other documents
- proves FPL engaged in joint activities with other large utilities to develop a basis for its own investment in nuclear generation. FPL's corporate history explains that FPL " decided to pool interests and resources to build a nuclear plant with government help" in 1955 (see also Document No. 75), that
! contracts were prepared and "the Florida firms committed to the pro j ec t. " This experience was relied on in an FPL application to the AEC for a permit and license (see Document No. 21).
- 2. Proves FPL not an innovator or risk-taker .Aun regard to nuclear generation. The publication explains that dhe project did not proceed in 1955 because "The Atomic Energy Commission would not agree to pick up any excess costs ...
Neither would the Florida firms." In other words, FPL was willing to into nuclear power only so long as the initial risks of an unproven technology were absorbed by the government.
FPL's history also states that 12 nuclear units were in operation by the time FPL decided to go forward with the Turkey Point units (B3). Thus, FPL not only was not an innovator in nucler.? technology, but was not even among the i first utilities to adopt the technology.
l Document Nos. 6, 7, 21, 75,
_f
() - 2.1 -
l
Document No. 2 (cont'd)
O 3. Together with document nos. 9 and 58 (and documents referenced therein) proves FPL did not solely bear the risks associated with construction of its nuclear plants.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early jof.nt nuclear planning and its coor-dination arrangements with other utilities played no role in FPL's decisions to const ruct nuclear facilities (at pages 8, 109).
That FPL has been innovative and, by contrast, that Cities have been inefficient (pages 14, 41, 43, 47).
That FPL bore all risks associated with its decision to construct nuclear units (at page 32).
C
- 2.2 -
l O
l
Document No. 3 Appendix Page Nos. B9 - B49 O Cited in Cities' Motion, May 27, 1981 at 44, n.1, 47 Desc ription:
Excerpts from U.S Central Station Nuclear Electric Generating Units; Significant Milestones (Status as of July 1, 1980),
September, 1980, U.S. Department of Energy.
i Basis for Admissibility:
l l Rule 803(8) - Public records and reports.
Determinativeness:
This document proves the sizes and timing of various nuclear units in the United States. The document was provided by FPL in connection with Mr. Gardner's affidavit, and the information contained in the document is not disputed.
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, Document No. 4 i
l Appendix Page No. B50 - B51
() Cited in Cities' Motion, May 27, 1981 at 45 Desc ription:
l FPL Expenditure Requisitions for Turkey Point Plant, December 1968.
Basis for Admissibflity:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own
(
- statement.
Determinativeness:
FPL's requisition form shows that in planning Turkey Point it assumed peak loads of over 6,000 megawatts by 1971-1972. (FPL does not contest this fact. ) Thus, FPL was large enough to build a nuclear plant alone, as contrasted with the necessity for smaller cities to coordinate in order i to make nuclear investments.
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4 Document No. 5 Appendix Page Nos. B52 - B71: Same as Document No. 77, exc ept this incl. des B54, B55, and B58-B60
(])
Cited in Cities' Motion, May 27, 1981 at 46
Description:
See description of Document No. 77: In addition, B54-B55 are news clippings received from FPL's files re: Fort Pierce expression of interest in nuclear reactor, 10/6/59 and 10/10/59. B56-B60 is an AEC press release announcing its invitation for proposals for small size nuclear power plant.
I 8/3/59.
Basis for Admissibility:
Documents from FPL files, showing notice to FPL.
Rule 803(16) - Documents 20 years old or older.
Determinativeness:
This document together with other documents
- proves FPL knew of the interest expressed by various Florida cities in participation in nuclear power projects.
- / Document Nos. 18, 19, 37, 52, 53 70, 77, 79, 80, 90.
Document No. 6
() Appendix Page Nos. B73 - B75 Cited in Cities' Motion, May 27, 1981 at 27 Desc ription:
Minutes of Meeting on Nuclear Power, Nov. 27, 1961, Offices of Mr. W.J. Clapp (Power Corp.) (copy dated 12/1/61) . Shows those present at the meeting to be Clapp (President, Power t Corp.), Robert H. Fite (FPL), H.K. McKean (Power Corp.) and
( F.S. Black (Executive Vice President, Tampa Electric) .
Basis for Admissibility:
Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the subject.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the l relationship.
l Rule 801(d)(2)(E) - Admission of a party-opponent by a l
statement made by a co-conspirator, in this case judicially determined.
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness:
i Document No. 6, together with other documents
- proves
! FPL engaged in joint activities with other large utilities to develop a basis for its own investment in nuclear geaeration.
Minutes show the intent of the three companies (FPL, Power Corp., Tampa Electric) to form an Atomic Power Commintee spe- <
cifically to study nuclear reactor types, " indicating the potential feasibility where it is apparent that the reactor type has possibilities of becoming competitive." This experience was relied on in an FPL application to the AEC for a permit and license (see Document No. 21) .
- / Document Nos. 2, 7, 21, 75.
O - 6.1 -
Document No. 6 (cont'd)
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclsar planning and its coor-dination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
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1 Document No. 7 Appendix Page No. B76
(])
Cited in Cities' Motion, May 27, 1981 at 27 j Desc ription:
FPL letter from George Kinsman (Vice President, FPL) to l Fischer S. Black (Executive Vice President, Tampa Electric)
- re
- formation of Atomic Power Committee, Jan. 8, 1962 1
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
Document No. 7, together with other documents
- proves FPL engaged in joint activities with other large utilities to develop a basis for its own investment in nuclear generation.
Letter shows that the plans set forth in Document No. 6 to establish a joint Atomic Power Committee had the agreement and cooperation of FPL's Vice President. This experience was relied on in an FPL application to the AEC for a permit and license (see Document No. 21).
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coor-dination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
! */
Document Nos. 2, 6, 21, 75.
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Document No. 8 Appendix Page Nos. B77 - B78 O Cited in Cities' Motion, May 27, 1981 at 27
Description:
Letter from W.J. Clapp (President, Power Corp.) to W.B.
McGuire (President, Duke Power Co.) re: Savannah River Nuclear Power Project assessments, February 7, 1964.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
Docusent proves that while Tampa Electric and Power Corp. were interested in committing funds and personnel to study a nuclear power project jointly, Mr. Fite had reservations about FPL participation. (Mr. Kinsman testified that FPL did not participate in the project. Deposition, 4/10/81, Tr. 62-64. Tr. 64 is included in Cities' Appendix F.)
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL is a nuclear innovator and risk-taker (pp.14, 41, 43, 47).
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Document No. 9 Appendix Page Nos. B79 - B80 Cited in Cities' Motion, May 27, 1981 at 28, n.1.
Desc ription:
Letter from R.H. Fite (President, FPL) to Harllee Brsncy , Jr. (President, The Southern Company) re: nuclear power not yet competitive, 12/4/59. Blind copies to W.J. Clapp (Power Corp.), W.C. MacInnes (President, Tampa Electric) and L.T. Smith, Jr. (President, Gulf Power Co.)
3 asis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Rule 803(16) - Documents 20 years old or older. Doc ument from FPL files showing notice to FPL.
Determinativeness: This document
- 1. Together with other documents
- proves FPL followed the activities of others in nuclear power as the basis for its own investment in nuclear generation. FPL was keeping Power Corp. and Tampa Electric (as well as Gulf) informed of its decisions regarding nuclear power, although it was not sharing the same information with city officials.
- 2. Proves that FPL was a risk-avoider and follower, not an innovator, in nuclear technology and therefore is not l
entitled to the benefits of the "high technology" caes, such as Berkey Photo, Inc . v . Eastman Kodak Co., 603 F.2d 263 (2d Cir. 1979) , cert. denied, 444 U.S. 1093 (1980), to the extent they might provide a defense. The letter is explicit that FPL did not enter the nuclear power field early, when it was being developed and had not yet been shown to be commercially feasible. The letter states that "our Company undoubtedly will enter the nuclea.: power field when it becomes competitive .... It is our thought that a lot more development and research will have to take place before nuclear power can compete either here or in New England."
- /
Document Nos. 2, 6, 7, 21, 75.
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Documsnt No. 9 (cont'd)
- 3. Together with document nos. 2 and 58 (and documents
() referenced therein) proves FPL did not solely bear the risks associated with construction of its nuclear plants.
Specifically, it did not bear risks associated with the development of nuclear technology, and it was not among the first utilities to adopt that technology.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL has been innovative and, by contrast, the t Cities have not been (pages 14, 41, 43, 47).
That FPL did not rely on the efforts of others in connection with its nuclear planning (at page 32) .
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Document No. 10 Appendix Page Nos. B89 - B96 O Associated with Document Nos. 8, 9, 74(2)(3) and (4) cited in Cities' Motion, May 27, 1981 at 27-29.
Description:
Excerpts from Light Water - How the Nuclear Dream Dissolved, I.C. Bupp & J. Derian, Basic Books, Inc . , Gardner Ex. 20 Basis for Admissibility:
803(24) - Documents having guarantees of trustworthiness:
historical facts reported in a book.
Determinativenes s:
This document proves that FPL was not an innovator of nuclear technology, and was not among the utilities that first adopted the technology.
The book shows that FPL's purchases of nuclear plants came at the time of a " great bandwagon" (B93):
"In 1966-67 a ' Great Bandwagon Market' for nuclear plante developed as U.S. utilities places firm orders for 49 plants, totalling 49,743 Mw of capacicy . . . By the end of 1967, U.S. utilities had ordered 75 nuclear plants totalling more than 45,000 Mw of generating capacity. More than 80 percent of these orders were placed in 1966-67."
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL has been innovative and, by contrast, that Cities have not been (pp. 14, 41, 43, 47).
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Document No. 11 Appendix Page Nos. B103 - B105 Cited in Cities' Motion, May 27, 1981 at 30-31
Description:
Exc erpt from report given by R.H. Fite (President, FPL) at FPL Annual Stockholders Meeting, May 15, 1961.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Rule 803(16) - Documents 20 years old or older.
Determinativeness: This document
- 1. Together with other documents
- proves FPL engaged in joint planning and coordination with other large utilities in developing a basis for planning its own generatior (including nuc lear) . Proves that FPL benefitted from its jo_m ac tivities .
- 2. Together with Document Nos. 13, 16, and others, proves a peninsular-wide market in coordination and pooling.
Mr. Fite explained to the company's stockholders that FPL is part of a " state-wide electric system," that it has joined with Tampa Electric and Power Corp. to form the Florida Operating Committee (FOC) "for the purpose of planning ways and means of complete cooperation in the design and operation of our systems in a manner that will obtain the most efficient and economical results." He explained the benefits of coordination, including reserve-sharing. He stated the objective was to plan individual systems as though part of one integrated, state-wide system, including plant expansion programs. FPL, as Mr. Fite's statements reveal, proclaimed " pooling" to include more than mere " dealing with emergencies and maintenance. " FPL mischaracterizes the nature of Mr. Fite's comments by isolating out the words
" individual plant expansion program" (FPL Response, Aug. 7,
- p. 114, n.1). Mr. Fite said (B105) that " coordination of our individual plant expansion programs ... can result in ...
important economies ..."
- / Document Nos. 2, 6, 7, 21, 75, 13, 15, 20, 24, 58, 107, 109, 112, 12, 14, 16, 103, 74(7), 104.
- 11.1 -
Document No. 11 (cont'd) i O Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL rejected formal pooling for legitimate business reasons (at p. 76).
That FPL's early joint nuclear planning and its coor-dination arrangements with other utilities played no role in ,
FPL's decisions to construct nuclear facilities (at pages 8, 109).
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Document No. 12 Appendix Page Nos. 9106 - B220 Cited in Cities' Motion, May 27, 1981 at 22-23, 41, 31 Desc ription:
l Letter from Brice, Logan, and FPL's K.S. Buchanan, H.W.
Page, FPL re enclosed report: "A Coordinated Plan for the 1970 Generation and Transmission Requirements Fcr the Electric Utilities of Florida, Prepared by the Planning Committee For Florida Operating Committee, of Florida Power &
Light Company, Florida Power Corp. , Tampa Electric Company, April, 1960."
Basis for Admissibility:
Rule 891(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the subject.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Document No. 12 proves a peninsular-wide market in l coordination. The cover letter states explicitly Ehat "The entire state east of the Apalachicola River is treated as if it were served by one fully integrated electric company."
The report itself reflects this approach; it analyzed the 3-company system as one, and recommends pooling installed and operating reserves, construction of generr. ting and trans-mission facilities on the system of one company to meet the overall requirements of natural load areas served by two companies, installed-reserve and operating-reserve sharing, and economy interchange transactions (see p. B 116) . It says savings would result through integrated plannirg and expansion under a "one system" approach (see p. B 111).
The report disproves Mr. Bivans' assertion that the FOC did not engage in joint planning. (Bivan Aff. Par. 11; FPL Response, pp. 113-114). While the FOC may have taken as its l
starting point the individual members' generatien systems, it i
provided analysis which would permit the individual systems to do future planning on the basis of sharing and
! coordination. Document No.12 also disproves Bivans' affida-vit statement (Par. 11, FPL Response, Aug. 7, 1981, pp.
I 113-114) that the FOC was only concerned with uncontrolled power flows. (Bivans Aff. Par. 9; FPL Response, at p. 113).
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Document No. 12 (cont'd)
() 2. Together with other documents
- proves FPL engaged in joint olanning and coordination in developing a basis for planning its own generation (including nuclear), and that FPL planned for the building and operation of an electric system in peninsular Florida without including Cities, which served loads within those areas.
The repcrt states (B 111) that " substantial savings in investment would result through integrated planning and expansion under the 'one system' approach by avoiding dupli-cation of facilities."
I 3. Specific admission and recognition that the geographic area (including municipal systems within Florida Power Corp.'s area) forms a unit for joint planning, investment and operation, eliminating any factual basis for refusing to deal with "outside" cities and providing direct " nexus" between activities under the license, the " situation inconsistent" and the need for relief.
! Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coor-dination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
That FPL would not benefit sufficiently from pooling (pp. 74-76).
i
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 58, 107, 109, 112, 14, ; 5, 103, 74(7), 104.
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Document No. 13 Appendix Page Nos. B221 - B236 Cited in Cities' Motion, May 27, 1981 at 32 and 32, n.1 Desc ription:
Letter frcm H.K. McKean (Vice President, Power Corp.) to G. Kinsman (Vice President, FPL), enclosing data furnished to the Federal Power Commission for the National Power Survey, 2/18/63 l Basis for Admissibility: This document Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
- 1. Together with other documents
- proves FPL engaged in joint planning and coordination with other large utilities in developing a basis for planning its own generation (including nuclear) and transmission. FPL represented to the Federal Power Commission, together with Power Corp., Tampa Electric and apparently Orlando, that coordinated planning of the generation and transmission facilities of scose four utili-ties had been done, and that it had resulted in a general plan which was serving as the basis for those systems' expan-sion until 1970.
- 2. Together with Document Nos. 11, 16 and others proves a peninsular-wide market in coordination. The report states explicitly that the plan is based on the " single system" approach, "taking into consideration ... pooling of reserves, the sharing of units, area protection with inter-area transmission ties ... (B222-B223).
For purposes of the report, contacts were made with Tallahassee and Lakeland, in order to include their plans for the study period. The fact that it believed operation data from Lakeland and Tallahassee was relevant to the report
- / Documen'. Nos. 2, 6, 7, 21, 75, 11, 15, 20, 24, 58, 107, 108, 109, 112, 12, 14, 16, 103, 74(7), 104.
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Document No. 13 (cont'd) reveals that it was planning for the area which included o)
(_ them; it was planning in coordination with Tampa Electric and Power Corp. but not with the Cities.
Refutos FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
) that FPL's early joint nuclear planning and its coor-dination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, i
109).
l That Cities have not defined a geographic market (pp.
14, 54, 55).
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Document No. 14 Appendix Page Nos. B237 - B388 O Cited in Cities' Motion, May 27, 1981 at 31-32 Desc ription:
" Florida Power Corporation, Florida Power & Light Company, Tampa Electric Company, Joint Planning Study,1964 -
1965, Prepared By The Florida Operating Committee With the Cooperation of the Orlando Utilities Commission," June 1961 Basis for Admissibility:
I Rule 801(d)(2)(C) - Admission of a party-opponent through a j statement made by a person authorized to make statemento on the sub ject.
t Rule 803(16) - Documents 20 years old or older.
Determinativeness: This document Together with other documents
- proves FPL engaged in joint planning and coordination with other large utilities in developing a basis for planning its own generation and transmission.
The report analyzes transmission and generation of the combined systees, noting that a transmission system was to be developed which would be compatible with the " general long range program already jointly studied by the three companies l and to pave the way for greater mutual cooperation and joint planning for capacity and lines to be added by the three com-i panies ..." (B241) The report concludes in part that Orlando facilities could fit into the integrated system planned for 1964.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coor- ,
dination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 56, 107, 108, 109, 112, 12, 16, 103, 74(7), 104.
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Document No. 15 Appendix Page Nos. B389 - B391 Cited in Cities' Motion, May 27, 1981 at 33
Description:
Letter, R.H. Fite (President, FPL) to J. Dillon Kennedy (Commissioner of Jacksonville) re: request for power supply study data, Nov. 3, 1964. Cover notation showing that letter was signed by Mr. Fite and sent out.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Together with other documents
- proves FPL engaged in joint planning and coordination with other large utilities in developing a basis for its own planning of generation (including nuclear) and transmission. Mr. Fite's letter shows that FPL was planning, together with Orlando, Jacksonville, Power Corp. and Tampa Electric long range joint study of power supply, to be used as the basis for generating and transmission additions, and to facilitate coordination to mutual advantage.
- 2. Together with Document Nos. 12, 26 and others proves a peninsular-wide market in coordination. (other evidence of joint study, see Document Nos. 6, 7, 8).
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning -nd its coor-dination arrangements with other utilities played ne role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 20, 24, 58, 107, 108, 109, 112, 12, 14, 16, 103, 74(7), 104, 1
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Do'ument No. 16 Appendix Page Nos. B392 - B426 Cited in Cities' Motion, May 27, 1981 at 33 Desc ription:
Letter from Long-Range Study Group of Flor _, erating Committee to Lester Ulm, Jr. (Chairman), July 8 1966 enclosing the Intarim Report of Long-Range Generation-Trans-mission Planning Study, by Long Range Study Group of Florida Operating Committee, July 1966.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent o servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Together with other documents
- proves FPL engaged in joint p7.anning and coordination with other large utilities in developing a basis for its own generation (including nuclear) .
- 2. Together with Document Nos. 11, 13 and others proves a statewide market in coordination.
This report treated the participating utilities (FPL, Power Corp., Tampa, Orlando and Jacksonville) as "a single unit." (B395.) Planning of nuclear units is expressly envisioned by this report, which considered investments in a range of nuclear units.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coor-dination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, ,
i 109).
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 58, 107, 108, 109, 112, 12, 14, 103, 74(7), 104.
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Document No.17 Appendix Page Nos. B441 - B450 0 Cited in Cities' Motion, May 27, 1981 at 48 i
Desc ription:
Internal FPL memorandum on pros and cons of acquisition of Homestead electric system, 10/18/67, Gardner Ex. 35 Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Detenninativeness : This document
- 1. Proves franchise competition.
- 2. Proves FPL knew Citi.es were interested in gaining access to economies of scale and coordination, including nuclear power.
Document states (B442): "FP&LCo. can provide lower rates for the citizens. Mass production and diversities provide greater economy. Small plants are not flexible."
- 3. Proves use by FPL of its in nuclear power to try to extend its retail service monopoly.
At p. B445: "With FP&LCo.'s new Turkey Point Plant, and from other work planned in the area, the citizens of Homestead could expect more reliable service. "
- 4. Proves FPL perceived itself as in competition with Cities for new industrial load.
At B443: "The Homestead area would be more attracted
[ sic] to new business and industry with FP&LCo. power capabilities."
i Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
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Document No. 17 (cont'd) n U
That FPL has a legitimate business reason for refusing to deal in nuclear powers that FPL planned its nuclear generation only to serve its existing customers (pp. 31-32, 46, 53, 118).
That acquisition of new municipal load would hurt FPL's customers and shareholders (pp. 64-66).
That the Cities have not been interested in coordination in the past (p. 116).
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Document No. 18 Appendix Page No. B471 O Cited in Cities' Motion, May 27, 1981 at 79-80, 80 n.l.
Desc ription :
Handwritten notes obtained from FPL files re: division managers' meeting of October 18, 1973. Cities note that they have t.5ked FPL, by letter cf April 21, 1981, for further identification of these notes. As yet they have received no response.
l l Basis for Admissibility:
Apparently Rule 801(d)(2)('s) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Proves that FPL was aware of Cities' interest in access to transmission.
- 2. Together with other documents,* proves that FPL was aware of Cities' interest in nuclear power.
The notes state " Cities want to share ownership and wheeling, etc."
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordination
! in the past (p. 116).
- / Document Nos. 5, 19, 37, 52, 53, 70, 77, 79, 80, 90.
Document No. 19 Appendix Page Nos. B472 - B482 Cited in Cities' Motion, May 27, 1981 at 47
Description:
Letter from J.J. Kearney of Edison Electric Institute to Policy Committee on Atomic Power (including FPL President R.H. Fite), September 16, 1968, Attaching Remarks of John B.
Anderson (Member, Joint Committee on Atomic Energy), Before the Briefing Conference on Nuclear Power, September 6, 1968.
Basis for Admissibility:
Document from FPL files, showing notice to FPL.
Determinativeness:
Together with other documents
- proves early FPL awareness of interest of smaller systems in coordination and nuclear access.
The remarks of Mr. Anderson include specifically the fact the publicly and cooperatively-owned utilities want to participate in economies of scale and in nuclear facilities.
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Document Nos. 5, 18, 37, 52, 53, 70, 77, 79, 80, 90.
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Document No. 20 Appendix Page Nos. B483 - B490 Cited in Cities' Motion, May 27, 1981 at 51, 52.
Desc ription :
Correspondence between Armour & Company, 1966, and between FPL and Tampa Electric concerning Armour & Company, 1966.
Specifically,
- 1. Letter, William Prince (Chairman of the Board, Armour
& Company) to McGregor Smith (Chairman of the Board, FPL),
7/11/66
- 2. Letter, W. Prince (Chairman of the Board, Armour &
Company) to McGregor Smith (Chairman of the Board, FPL),
enclosure: fact list re proposed nuclear plant, 7/11/66
- 3. Letter, M.E. Lewis (Vice President, Armour & Company) to McGregor Smith (Chairman of the Board, FPL) 9/13/66
- 4. Letter, McGregor Smith (Chairman of the Board, FPL) to M.E. Lewis (Vice President, Armour & Company) 9/16/66
- 5. Letter, W.C. MacInnes (President, Tampa Electric) to McGregor Smith (Chairman of the Board, FPL) 9/19/66
- 6. Letter, McGregor Smith (Chairman of the Board, FPL) to W.C. MacInnes (President, Tampa Electric) 9/16/66 Basis for Admissibility:
Items 1, 2, 3, 5: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Items 4, 6: Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document Together with other documents
- proves FPL engaged in joint planning and coordination with other large utilities in
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 24, 58, 107, 108, 109, 112, 12, 14, 16, 103, 74(7), 104.
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Document No. 20 (cont'd) devu'oping a basis for planning its own generation (including O nuc tuar) .
The correspondence reveals FPL's willingness to cooperate with investor-owned utilities, in this case Tampa Electric, by participating in joint ventures or purchasing surplus energy in order to make feasible the development of a nuclear plant to serve a Tampa customer. This correspondence occurs at the same time that FPL refused to deal with
( municipals in coordination or with Seminolo Electric Coop. in i its generation building.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL did not engage in coordinated planning; FPL did not plan on the basis of its coordinated operations (pp. 8, n., 32, 112-115).
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Document No. 21 Appendix Page Nos. C32 - C44 O Cited in Cities' Motion, May 27, 1981 at 25-26 Desc ription :
In the!<atter of Florida Power & Light Co., AEC Docket No.
50- , " Application for Licenses Under the Atomic Energy Act of I3T4 As Amended," for Turkey Point Nuclear Power Project, Mnrch 22, 1966.
Basis for Admissibility:
l Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
Document No. 21, together with other documents
- proves FPL relied on joint activities with other large utilities in nuclear power as the basis for its expertise sufficient to warrant licensing of its nuclear power plants. The application states that FPL is qualified to construct a nuclear power plant because of joint study done with Power Corp. and Tampa Electric (see p. C39).
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL did not engage in coordinated planning; FPL did not plan on the basis of its coordinated operations (pp. 8, l n., 32, 112-115).
The company cannot dispute the importance of such stu-dies, when it has expressly relied on them as the basis of its technical competence in applications to this Commission for licenses.
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Document Nos. 2, 6, 7, 75.
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' Document No. 22 Appendix Page Nos. C45 O
Description:
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Document duplicated among pages described as Document No. 81.
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Document No. 24 Appendix P0ge Nos. C47 - C49 Cited in Cities' Motion, May 27, 1981 at 36, n.1 Desc ription:
Excerpts from FPL Form 12, filed with the Federal Energy Regulatory Commission, for the years 1970, 1971 and 1972.
Basis for Admissibility:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own statement.
Rule 803(8) - Public records and reports.
Determinativeness: This document
- 1. Together with other documents
- proves FPL relied on joint planning and coordination with other large utilities in developing a basis for its own planning of generation (including nuclear) .
- 2. Proves that FPL received power from other systems that it needed to serve its customers at the time of its system peak demand, and that it bought mora than it sold during these times. These purchases were possible only because of interconnected operations. This is salient because these years were ones intervening between FPL's initial decision to l build nuclear units (1965-1966) and the operational date of l Turkey Point (1972).
FPL might hsve been precluded from constructing nuclear units, with their long lead-time before operation, if it could not have relied on coordination with others to permit it to meet the load demands on its system. Absent these opportunities, it would have been forced to build smaller units facter to meet its immediate load needs, and would perhaps have found any nuclear plant investment uneconomical ,
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- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 58, 107, 108, TO9, 112, 12, 14, 16, 103, 74(7), 104.
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Docu nsnt No. 24 (cont'd) as a result. However, regardless of whether FPL would havo
() constructed the same units without coordination, this document shows that FPL did in fact operate its system in light of peninsular coordination. See Florida Pcwer & Light Co., 38 FPC 544, 551-552 (1967), af7Irmed, FPL v. FPC, 404 U.S. 453 (1972), reversing 430 F.2d 1.177.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coordination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
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Document No. 25 O Appendix Page Nos. Cl37 - C183
Description:
Excerpts from Cities' Answers to FPL Interrogatories, submitted in Gainesville Regional Utilities v. FPL, S.D. Fla.
No. 79-5101-Civ-JLK.
Cities do not assert that this document is admissible.
It summarizes Cities' views on FPL's refusals to deal with Cities in interconnection and transmission, on the basis of documents that are included in Cities' appendices , filed herein, or are akin to those documents.
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Document No. 26 I
Appendix Page Nos. C184 - C298 O Cited in Cities' Motion, May 2 7, 1981 at 37-38, 41
Description:
Report to the Florida Operating Committee Working Group, "A Florida Electric Power Pool," By Power Pooling Task Force, 2/25/75. One of submitting authors is FPL official K.S.
Buchanan Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the sub j ec t.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
- 1. Document shows benefits to FPL from formal pooling. The report concludes that centralized dispatch and increased coordination would result in economies for all Florida utilities (C188, C191, C290). FPL is specifically identified as likely to achieve significant benefits from centralized dispatch (see C294-C295). Cities note that the issue is not the exact amount of coordination that should be ordered, which is a question for relief, but the demonstrated pattern of FPL's refusals to deal. Document No. 26 shows that FPL itself recognized benefits to greater pooling.
- 2. Proves peninsular-wide market in coordination.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL then rejected formal pooling for legitimate l business reasons (p. 76).
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l Document No. 27 Appendix Page Nos. C299 - C305 Cited in Cities' Motion, May 27, 1981 at 38 Desc ription:
Exc erpt from affidavit of Harry C. Luff, filed in this docket and in NRC Docket No. P-636A, dated April 13, 1976 Basis for Admissibility:
Affidavit - sworn testimony.
Determinativeness:
- 1. Document No. 27 proves that FPL has acted to exclude cities from coordination benefits.
- 2. Document No. 27 proves that FPL believes itself to be in competition with Cities.
Mr. Luf f testifies that it was believed, and supported by studies, in the late 1960's that there were advantages to be had as the result of coordination, and that in 1972 Mr.
Bivans of FPL expressed interest in development of coordinated generation with Orlando and Jacksonville. Mr.
Luff details the negotiations which followed, including FPL's subsequent change of position so that by October 1975 FPL stated, through Mr. Bivans, an unwillingness to participate in any pooling arrangement in Florida. Mr. Luff states: "In my discussions with Florida Power and Light over the course of time, Florida Power and Light has indicated that one of their najor concerns in entering into cooperative arrangements with municipally-owned utilities is that such arrangements might reduce power costs for municipal utilities and thereby strengthen their competitive position as compared with Florida Power and Light Company."
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
i 14, 27-30).
)
That FPL then rejected formal pooling for legitimate
( business reasons (p. 76).
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 15).
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I, Document No. 28 ,
Appendix Page Nos. C306 - C309 Cited in Cities' Motion, May 27, 1981 at 38-39 Desc ription:
Memorandum, E.L. Bivans to Tracey Danese re: Affidavit of Harry Luff (Document No. 27), dated April 26, 1976 Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
- 1. Document No. 28, together with Document No. 27, proves that FPL has acted to exclude Cities from coordination benefits.
- 2. Document No. 28 proves that FPL believes itself to be in competition with cities.
Mr. Bivans admits that FPL withdrew all support from a power pool. He further admits that part of the basis for this withdrawal of support was the company's perception that it would benefit other, smaller utilities.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
That FPL then rejected formal pooling for legitimate business reasons (p. 76). (See also document Nos. 12, 26.)
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Document No. 29 Appendix Page No. C310 Cited in Cities' Motion, May 27, 1981 at 39, 59, 64
Description:
FPL memorandum, W,E. Coe to H.L. Allen re: New Interchange Contracts with Power Corp. and Tampa Electric, 2/20/76 Basis for Admissibility:
i Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
Document No. 29, together with other documents
- proves FPL's policy to exclude Cities from access to the benefits of pooling. Coe records that FPL Board Chairman Marshall Mcdonald directed the company to secure uniform bilateral interchange contracts as a deterrent toward pooling.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
I That FPL then rejected formal pooling for legitimate business reasons (p. 76).
- / Document Nos. 26, 27, 28, 30, 105.
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l Document No. 30 Appendix Page Nos. C311 - C312 Cited in Cities' Motion, May 27, 1981 at 41
Description:
Exc erpt from examination of E.L. Bivans, FERC Docket Nos. ER78-19, et al.
Basis for Admissibility:
Sworn testimony before FERC l
Determinativeness:
Together with other documents
- proves FPL's intent to exclude cities from coordination.
Mr. Bivans here states that FPL never completed any study of the benefits to FPL of centralized dispatch or state-wide power pooling. Elsewhere he asserts that there are no such benefits (Document No. 28) . Document No. 26 shows that a preliminary FOC study, recommended by FPL's own official Ken
! Buchanan, found that there would be benefits to FPL from centralized dispatch. In Mr. Bivans' testimony, he claims that if there were a study showing such benefits, FPL would s " consider" participation in it. In light of the FOC studies (Document Nos. 12 and 26) and Mr. Bivans' testimony here, FPL's continued opposition to such a pool appears to be more in the nature of continuous " study" of a plan as a means of preventing cities have gaining access to its benefits.
Compare Document No. 105.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL rejects formal pooling for legitimate business reasons (p. 76).
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- / Document Nos. 26, 27, 28, 29, 105.
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Document No. 31 l Appendix Page No. C313
() Cited in Cities' Motion, May 27, 1981 at 41
Description:
Energy Broker Summary Report, 4/11/77 Basis for Admissibility:
Rule 803(6) - Recorda of regularly conducted activity --
issue of authenticity waived by FPL.
Determinativeness.
I Document No. 31 proves FPL benefits from coordination.
FPL saves substantial sums through participation in the power broker. l FPL admits that it achieves savings through the recently instituted Power Broker (FPL, pp. 77). The Power Broker is a form of pooling, providing some benefits of centralized '
dispatch. FPL admits this (id.).
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Document No. 32 Appendix Page Mos. C399 - C402
( Cited in Cities' Motion, May 27, 1981 at 86, n.1.
Desc ription:
Excerpt of transcript reflecting citizen statement at FERC hearing on Sept. 28, 1977.
Basis for Admissibility:
Sworn testimony in FERC proceeding.
Determinativeness:
Document No. 32 proves that FPL denied access to nuclear power to Vero Beach.
i Mr. Kramer testified that participating in a nuclear unit jointly with FPL was not "an alternative that is even available to this community," in part because "It has not been offered to them . . . "
l Mr. Kramer's testimony was available for cross-examina-4 tion, but counsel for FPL, while present, did not challenge this statement.
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Document No. 33
~ Appendix Page Nos. C403 - C404 Cited in cities' Motion, May 27, 1981 at 57, 86, n.l.
Description:
Exc erpt from Exhibit to Application filed by FPL at the FERC, to acquire Vero Beach, " Evaluation of the Impact of the Offer by Florida Power and Light Company to purchase the Vero Beach Electric System," Ernst & Ernst, 7/76.
i Basis for Admissibility:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own statement.
Rule 803(8) - Public records and reports.
Determinativeness: This document
- 1. Proves FPL's refusal to wheel.
- 2. Proves franchise competition.
- 3. Proves FPL's use of its control over transmission to extend its retail monopoly.
FPL's filing shows that at the same time that it was i
seeking to acquire Vero Beach it had been refusing it l wheeling, thereby denying it access to other alternatives.
Indeed, FPL relies on this as a reason to approve the acquisition, stating:
" Arrangements would have to be made for wheeling of power if the system on which the project is built is not adjacent to Vero Beach. Wheeling will add additional costs to incoming power. No current wheeling options are available." <
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- 4. Proves that FPL was willing to share its resources including nuclear resources. FPL sought to acquire Vero Beach and was therefore prep tred to serve that additional load with its generation, including nuclear.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
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4 Document No. 33 (cont'd) 4 O 2a t rat w 1 etti ete wu ine re on ror teru ine to deal in nuclear power that FPL planned its nuclear generation only to serve its existing customers (pp. 31-32, 46, 53, 64-66, 118).
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Document No. 34 Appendix Page Nos. C405 - C410 0 Cited in Cities' Motion, May 27, 1981 at 86, n.l.
Description:
Vero Beach notes on FPL presentation of offer to acquire the Vero Beach Electric System (document obtained from Vero Beach files).
Basis for Admissibility:
Rule 803(8) - Public records and reports.
Determinativeness: This document
- 1. Proves use by FPL of its dominance in nuclear power to extend its retail service monopoly.
The Vero Beach notes state that (C407) "FP&L SHOWS INCREASING SYSTEM % FOR NUCLEAR POWER 22 - 27% and "ST. LUCIE
- 7 COMES ON LINE THIS YEAR."
- 2. Proves FPL refusal to sell wholesale power and use of FPL's monopoly power in wholesale to extend its retail service monopoly.
One option reviewed by the document is purchase of power for resale by Vero Beach. At C410 the document states:
"FP&L WOULD NOT SELL UNLESS FORCED BY COURT ORDER."
- 3. Proves franchise compeition.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
I
! That there is nr competition between Cities and FPL (pp.
14, 27-30).
That FPL had legitimate business reason's for its refusals to deal (pp. 14, 55).
That FPL has a legitimate business reason for refusing to deal in nuclear power: that FPL planned its nuclear generation only to serve its existing customers (pp. 31-32, 46, 53, 64-66, 118).
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Document No. 35 Appendix Page Nos. D1 - D3 Cited in Cities' Motion, May 27, 1981 at 46, n.1.
Description:
These pages are the same as Document Nos. 79 and 80. See those documents.
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Document No. 36 P
Appendix Page Nos. D4 - DS ,
O Cited in Cities' Motion, May 27, 1981 at 46 Desc ription: O Letter from AEC to Alex Radin of American Public Power Association, regarding the feasibility of small nuclear plants, March 2,1961 (obtained from files of APPA) .
Basis for .1nissibility:
Rule 803(16) - Documents 20 years old or older.
Determinativeness:
Document No. 36 proves that Cities needed access to coordination for joint participation, in order to make nuclear generation practical for them.
The AEC letter explains that it did not make any awards to those submitting proposals in connection with the Small Nuclear Power Plant invitation, because the AEC had determined that small units were not sufficiently economical.
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Documsnt No. 37 Appendix Page Nos. D6 - D9
() Cited in Cities' Motion, May 27, 1981 at 63, n.l.
Description:
Handwritten notes, internal FPL re: 1966 Homestead request for Turkey Point power, January 13, 1966. Obtained from FPL files in discovery.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Proves FPL refusal to deal in nuclear power.
- 2. Together with other documents
- proves early FPL awareness of cities' interest in nuclear power.
Document No. 37 shows that Mr. Pearson of Homestead asked about the possibility of Romestead's purchasing power from the Turkey Point plants when completed. The answer, "No, it is not our policy to sell power for Municipal Distrib[ution]" proves both a refusal to deal in wholesale power generally and specifically a refusal to deal in nuclear generated power.
Refutes FPL Contentions, asserted in Respense of FPL, Aug. 7, 1981:
That cities did not make requests, or legitimate requests, for nuclear participation until late 1976 (pp. 31, 62).
That FpL has a legitimate business reason for refusing to deal in nuclear power: that FPL planned its nuclear generation only to serve its existing customers (pp. 31-32, 46, 53, 64-66, 118).
- / Document Nos. 5, 18, 19, 52, 53, 70, 77, 79, 80, 90.
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l Docum3nt No. 38 Appendix Page Nos. DlO - D11 Cited in Cities' Motion, May 27, 1981 at 48, 84.
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Description:
Letter from R.H. Fite (President, FPL) to C.R. Pearson i
(Homestead) re: response to Homestead request for wholesale power, October 3, 1967.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Proves FPL's anticompetitive intent.
- 2. Proves that FPL used its dominance in transmission and
( in economical bulk power to try to extend its retail monopoly.
- 3. Proves franchise competition.
When Homestead. in 1967_ requested an interconnection and wholesale power from FPL, FPL countered with an offer to acquire the system. Mr. Fite wrote (DlO):
"You will recall when ve met last that the Council, in addition to requesting proposals for an interconnec-tion or a wholesale power contract, agreed (without too much enthusiasm I admit) to consider a proposal at the same time to purchase or lease your system. We have been working on such a proposal in addition to the arrangements covering interchange or wholesale contract."
l Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That FPL never refused or conditioned an interconnection unlawfully (p. 68, n.1).
That FPL has, only sought to acquire 2 franchises since World War II, New Smyrna Beach and Vero Beach, and those were at the request of those cities (p. 79).
l Documsnt No. 39 Appendix Page No. D12
() Cited in Cities' Motion, May 27, 1981 at 49
Description:
i l FPL advertisement, Open Letter to Residents of Vero Beach re:
benefits of FPL ownership of electric system, including nuclear power, September 4, 1976 Basis for Admissibility:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own statement.
Determinativeness: This document
- 1. Proves use by FPL of its dominance in nuclear power to extend its monopoly in the retail electric market.
I 2. Proves franchise competition between FPL and Cities.
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- 3. Proves yardstick competition among all utilities in i Florida.
I In this advcrtisement, FPL specifically sought to win the Vero Beach voters to support the sale of the city system to FPL on the basis that "We expect to have a new nuclear generating unit at St. Lucie in service in the near future.
This should bring annual fuel savings of more than $100 million that will be passed directly to our customers through a reduction in the fuel adjustment ... " FPL also here advertises its rates as among "the lowest in Florida." This documents prove that FPL was fully prepared to let St. Lucie help serve a new vero Beach load, which as retail load would be charged at average system cost.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
l 14, 27-30).
That FPL has a legitimate business reason for refusing to deal in nuclear power: that FPL planned its nuclear generation only to serve its existing customers (pp. 31-32, 46, 53, 64-66, 118).
That acquisition of new municipal load would be detrimental to FPL's customers and shareholders (pp. 64-66) .
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l Document No. 40 I
Appendix Page Nos. D13 - D30 0 Cited in Cities' Motion, May 27, 1981 at 49-50
Description:
Document No. 40 is duplicated by pages described at Document No. 85.
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l Document No. 41 Appendix Page Nos. D31 - D33 Cited in Cities' Motion, May 27, 1981 at 50
Description:
" Comparative Analysis of Municipal & Investor owned Utilities and the Benefits to Their Customers," FPL Financial Planning, December 11, 1973 Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Document from FPL files, showing FPL awareness.
Determinativeness:
Proves FPL awareness of Cities' interest in interconnection and coordination. Document shows FPL knew that the small size of most municipal units prevents them from realizing scale econoinies, and that this was the "rnjor contributing factor" in the high cost of electricity to their customers.
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Documsnt No. 42 Appendix Page Nos. D34 - D39 Q Cited in Cities' Motion, May 27, 1981 at 50-51 l
Description:
Document No. 42 is duplicated by pages described as Document No. 98.
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Document No. 43 Appendix Page Nos. D40 D121
Description:
Excerpts from Cities Answers to FPL Interrogatoties, submitted in Gainesville Regional Utilities v. FPL, S.D. Fla.
No. 79-5101-Civ-JLK.
Cities do not assert that this document is admissible.
It summarizes Cities' views on FPL's refusal to deal with Cities in wholesale power, coordination and pooling, and nuclear power, and FPL's takeover attempts, on the basis of documents that are included in Cities' hppendices, filed herein, or are akin to those documents.
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Document No. 44 Appendix Page Nos. D122 - D130 Cited in Cities' Motion, May 27, 1981 at 65 i
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Description:
Internal FPL memorandum from R. Gardner (Vice President, FPL) to F.E. Autrey (Executive Vice President, FPL) discussing acquisitions of waste disposal generation in Dade County;
, attached " guidelines for power generation from Municipal l Solid Waste Operations."
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of amployment and during the relationship.
Determinativeness: This document l
- 1. Proves FPL believes itself to be in competition with Cities.
- 2. Proves FPL intended to monopolize power supply alternatives in order to deter competition from cities.
- 3. Together with Document No. 98, and other documents ~~
proves a perinsular-wide bulk power market.
l Document No. 44 states that FPL's interest in the solid I waste generation was not in meeting its own requirements,
( because the plant output is small, but in the deterrence of "the competitive threat of municipal generation." Moreover, the perceived Ehreat and planned anticompetitive actions extended "throughout Florida (D127).
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
l That Cities have not defined a geographic market (pp.
14, 54, 55).
That there is no peninsular Florida bulk power market (pp. 21, 54, 56).
That FPL had lagitimate business reasons for its refusals to deal (pp.14, 55).
That there is no competition between Cities and FPL (pp.
14, 27-30).
Q Document No. 45 Appendix Page No. D131 - D154 (but D144-D154)
Cited in Cities' Motion, May 27, 1981 at 75
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Description:
Letter from F.R. Risavy (Allis-Chalmers) to E. Bivans, 3/30/66, enclosing paper by R. Bathen (R.W. Beck) "The Case For A Florida Municipal Power Pool."
Also, at D144-D154, " Florida Municipal Power Pool, A Must for Yankee-Dixie, " by R. Bathen, June 2-3, 1966.
Basis for Admissibility:
Documant from FPL files, showing notice to FPL.
Determinativeness:
Document 4 . 45 proves FPL a*aureness that Cities were interested in acordination in the 1060's.
The Bathen reports show that Cities, excluded from coordination by the private utilities, considered forming their own municipal pool. The fact that Cities considered such a costly alternative as forming a separate pool reveals their interest in achieving the benefits of coordination.
The cover letter from Allis-Chalmers to Mr. Bivana proves that FPL was aware that Cities were considering forming a
, pool, and therefore knew that Cities needed and wanted j coordinated operations.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, .'.981:
l That the Cities have not been interested in coordination in the past (p. 116).
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Docum:nt No. 46 j Appendix Page Mo. D155 - D158
() Cited in Cities' Motion, May 27, 1981 at 75 Desc ription:
July 11, 1967 letter from W.J. Clapp (President. Power Corp.)
to F.S. Black (Executive Vice President, Tampa Electric) ,
R.H. Fite (President, FPL) , C. A. Lilly, Jr. , (President and General Manager, Gulf Power Co. ) re: Bathen ' s ' Potential Florida Municipal Power Pool," and enclosing a Powe; Corp.
analysis of such a pool, ar.d a map of the proposed pool.
Basis for Admissibility:
Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-concpirator, in this case judicially determined.
Document from FPL files, showing notice to FPL.
Determinative ?ss:
- 1. Pros as that FPL was aware of the Cities' interest in pooling and coordination.
These documents show that the private companies were very concerned about the possibility c . a municipal power pool,. and also that in their analysis a 32nicipal pool could not achieve the economies of scale to compete effectively with the " Florida Power Pool, " that is , the Florida Operating Committee s f the largest utilities.
- 2. Proves that ?PL vinws Cities as a competitive threat.
l Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
I 14, 27-30).
That the Cities have not been interested in coordination in the past (p. 116),
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Docum nt No. 47 Appendix Page No. D159
() Cited in Cities' Motion, May 27, 1981 at 76
Description:
FPL memorandum from H.W. Page (Vice President, FPL) to Marshall Mcdors.1d (President and Chief Executive Officer, FPL) 12/21/71 re: municipal electric cooperatives and municipal power pool.
Basis for admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by a agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Fru"es that FPL was aware of the Cities' interest in pooling and coordination.
This document shows that FPL was concerned about the (
possibility of a municipal power pool, and also that in their analysis a municipal pool could not achieve the economies of scale to compete effectively with the " Florida Power Pool,"
that is, the Florida Operating Committee of the largest utilities.
! 2. Proves that FPL views Cities as a competitive threat.
l l Document No. 47 shows that FPL knew that Cities were interestad in coordination, and were actively seeking access to coordinated operations. Also shows that FPL viewed a municipal pool as a crmpetitive threat and was concerned about infringement of its own territory ("You may wish to read it all [ paper by city consultant] but the map is a must.").
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 26-30).
That the Cities have not been interested in coordination in the past (p. 116).
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I Documsnt Noo. 48 and 49 Appendix Page No. D160 - D205; D206 - D222 Cited in Cities' Motion; May 27, 1981 at 76
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Description:
Dccament No. 48 : Report, " Yankee-Dixie Coordinated Plan for Providing Low Cost Power tc the Eastern United States," June 1966.
Document No. 49: Report, "The Twelve City Story," R.E.
Bathen (R.W. Beck & Associates) October 26, 1970.
Basis for Admissibility:
Rule 803(24) - Escuments having guarantees of trustworthiness.
Determinativeness:
Document Nos. 48 and 49 prove that Cities considered joint activities among municipal systems, primarily those receiving power from Power Corp. , in an effort to avail themselves of ~ power supply opportunities and economies which had been foreclosed to them by FPL and Power Corp.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordirstion in the past (p. 116).
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Documsnt No. 50 Appendix Page No. D223 - D224
() Cited in Cities' Motion, May 27, 1981 at 76
Description:
FPL memorandum from B.H. Fuqua (Vice President, FPL) to A.M.
Davis, 5/3/71, enclosing Fuqua's comments on H.B. 1539 re:
municipal electric cooperative.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent
! or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Proves that FPL was aware of Cities' efforts to gain access to coordination.
- 2. Proves that FPL was unwilling to provide wheeling for municipalities.
- 3. Proves that FPL considered municipal access to an integrated system to be a competitive threat ("Let us suppose that the Yankee-Dixie project became a reality, with the Florida municipal electric cooperative grid as its southern l anchor. It is readily seen what a problem that would pose l for the investor owned electric companies in Florida.")
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interestel in coordination in the past (p. 116).
l That FPL has not refused to deal in transmission (p. 72, n.1).
l That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
That there is no competition between Cities and FPL (pp.
14, 27-30).
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Document No. 51 Appendix Page No. D225
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() Cited in Cities' Motion, May 27, 1981 at 76
Description:
Handwritten notes to FPL's J.G. Spencer (Vice President) re:
threat of municipal ownership, discussing newspaper item announcing proposal by Cities within the perimeter of Power Corp.'s service area to build eneir own power production system.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employmer,t and during the relationship.
Determinativeness: This document
- 1. Proves competition.
FPL here expresses concern about a competitive threat from Cities outside the area of its own retail service.
- 3. Proves FPL aware of Cities' interest in coordination.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
4 14, 27-30).
That the cities have not been interested in coordination in the past (p. 116).
That there is no peninsular Florida market in bulk power (pp. 21, 54, 56).
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Documnnt No. 52 Appendir Page Nos. D226 - D233
() Cited in Cities' Motion, May 27, 1981 at 76-78
Description:
FMUA documents re: possibilities for interconnected operations of municipalities throughout Florida, 1966 - 1967.
Specifically,
- 1. Letter, T.W. Bostwick (Manager, Power Production, Jacksonville and chai rman of Interconnection Committee) to Members of the Interconnection Committee, FMUA (J.R. Kellv, C.H. Stanton, C.D. McIntosh, F.C. Gossett, J.B. Dykes),
6/9/66
- 2. Map of Florida, drawn by T.W. Bostwick, no date
- 3. Draft o* attachment to Letter Questionnaire regarding the formulation of a " Florida Power Exchange," no date
- 4. Report, E.C. Shreve (Co-Chariman, Power Supply Committee, FMUA) to FMUA Board of Directors, 7/28/67 Basis for Admissibility:
Rule 803(24) - Documents having guarantees of trustworthiness.
t j Determinativeness:
- 1. Document No. 52 proves Cities' interest in access to coordination, and helps prove that they could not get access through the Florida Operating Committee. FMUA formed committees to consider ways in which smaller systems could gain access to coordinated operations, They reveal Cities' awareness that the private companies (and Jacksonville and Orlando, in tho FOC? Would not permit them to participate in the FOC's own coordinated operations.
- 2. Document No. 52, together with other documents
- proves that the Cities were interested in gaining access to nuclear generation (D230).
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordination in the past (p. 116).
() */ Document Nos. 5, 18, 19, 37, 53, 70, 77, 79, 80, 90.
, Docum2nt No. 53 Appendix Page No. D234 - D238
() Cited in Cities' Motion, May 27, 1981 at 78, 79
Description:
FPL internal documents on New Smyrna Beach, 1966.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Proves FPL was aware of Cities' interest in coordination in the 1960's.
The first report, D234, shows that FPL knew that New Smyrna Beach Utilities Director John Little was interested in interconnecting municipal systems in order to achieve competitive economies.
- 2. Together with other documents,* proves early FPL awareness thst Cities were interested in access to nuclear power.
' At D235 it is evidenced that FPL knew of Mr. Little's interest in a small atomic plant.
- 3. Proves FPL refusal to sell wholesale.
- 4. Adds proof, if Gainesville not determinative, of the FPL-Power Corp. territorial division.
The third report, D237, reveals that New Smyrna Beach's plans resulted from FPL's refusal to sell wholesale power and from the FPL-Power Corp. territorial agreement which precluded access to Power Corp. as an alternative power supplier.
- 5. Proves FPL use of power in certain markets (here, transmission, coordination, and wholesale power) to extend its retail monopoly.
- /
Document Nos. 5, 18, 19, 37, 32, 70, 77, 79, 80, 90.
O - 53.1 -
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Document No. 53 (cont'd)
Taken together, these documents show that F?L knew that O if it could prevent successful coordination among ,
municipalities it would have effectively denied them access to any alternative except isolated operations or selling out to FPL.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That Cities have not shown any impact due to the territorial conspiracy (p. 9).
That FPL does not have the power to exclude competition (pp. 25-27, 54, 61).
That the Cities have not been interested in coordination in the past (p. 116).
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Document No. 54 Appendix Page Nos. D239 - D240 Cited in Cities' Motion, May 27, 1981 at 79, 83, carryover n.
Description:
Letter, from John R. Kelley, Acting City Manager, Gainesville, to Arvah B. Hopkins, City Manager, Tallahassee re: Gainesville v. Power Corp., intertie cases before the Federal Power Commission, 7/16/68.
Basis for Admissibility:
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness :
Document No. 54 proves that other Cities were aware that access to the state-wide transmission grid through intercon-nection could only be obtained, if at all, through litigation.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordination in the past (p. 116).
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Document No. 55 Appendix Page Nos. D241 - D253 Cited in Cities' Motion, May 27,1981 at 85 Descrip'. ion:
Duplicate of Document No. 98.
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Document No. 56 Appendix Page Nos. D254 - D258 O Cited in Cities' Motion, May 27, 1981 at 85
Description:
FPL internal document, A Proposal For a New Charter For the Senior Management Planning Council, 8/26/75 Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Proves competition between EPL and Cities, among others.
- 2. Proves that FPL viewed itself in competition with other systems in Florida, including municipalities.
At D256, the proposal sets forth "A Proposed List of Major Problem Areas," which included " Competition - The l
Florida Electric System," and lists REAs (cooperatives),
! municipalities, private utilities, other energy sources, interchanges, rates , joint projects, franchises, and regulation.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That Cities have not defined a geographic market (pp.
i 14, 54, 55).
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Document No. 57 Appendix Page Nos. D259 - D264 1
() Cited in Cities' Motion, May 27, 1981 at 87
Description:
Documents showing FPL offers to obtain industrial load, 1978.
Specifically:
- 1. Letter, from W.M. Klein (Vice President, FPL) to Mr.
Hans Leimgruber (Siemens AG Company) February 24, 1978; i
( 2. Two FPL expenditure authorizations related to industrial
! expansion; ;
- 4. Letter from Paul P. McGavin, FPL's Economic Development department to P.L. Farmer, 6/11/79; -
- 5. Letter from P.L. Farmer to FPL, June 4, 1979.
Baais for Admissibility:
Items 1-4: Rule 801(d)(2)(D) - Admission of a pcrty-opponent by an agent or servant made within the scope of employment
~'
and during the relationship.
Item 5: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a ststement made by others.
Determinativeness:
Document No. 57 proves FPL actively seeks to add large industrial load.
Refutes FPL Conter'_l'ns, asserted in Response of FPL, Aug. 7, 1981:
That 'o ; ' as a legitimate business reason for refusing to dea l in .:.S car powers that FPL planned its nuclear gene.ation v :; so serve its existing customers (pp. 46, 118).
That FPL requires its capacity to meet the load require-ments of its existing customers (pp. 46, 118).
That new municipal load is hurtful to FPL's current customers and shareholders (pp. 64-66).
O Document No. 58 Appendix Page Nos. D309 - D310 Cited in Cities' Motion, May 27, 1981 at 45
Description:
Excerpts from the National Power Survey of 1964 re:
coordinated planning.
Basis for Admissibility:
nule 803(8) - Public records and reports.
Determinativeness:
Document No. 58, together with document nos. 2 and 9, and documents showing FPL engaged in coordination and joint planning
- with other large utilities, proves that FPL did not assume all risks itself in building nuclear generation.
The survey explains economies which can be achieved through reserve pooling and coordinated planning. It states explicitly that reserve pooling, like insurance, involves the pooling of risks (D310)
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
, a.i.
That FPL bore all risks associated with its decision to construct nuclear units (at page 32) .
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 107, 108, 109, 112, 12, 14, 16, 103, 74(7), 104.
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Document No. 59 Appendix Page Nos. D139 - D324
() Cited in Cities' Motion, May 27, 1981 at 59, n.1.
Description:
Excer?t from "Brief of Petitioner Florida Power & Light Company," FPL v. FERC, Case No. 80-5259, July 28, 1980.
Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the sub j ec t.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
FPL's brief opposing FERC jurisdiction to order wheeling proves that it continues to resist providing transmission services on a tariff (that is, uniformly available) basis.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL has not refused to deal in transmission (p. 72, n.1).
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Document No. 60 Appendix Page Nos. D325 O Cited in Cities' Motion, May 27, 1981 at 111
Description:
Newspaper advertisement, The Wall Street Journal, March 30, 1976, "In Support of Nuclear Energy," Edison Electric Institute (including FPL).
Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the sub j ect.
. s Determinativeness:
l Document No. 60 is evidence that FPL considers nuclear power to be an essential facility. Cities do not contend that this document is dispositive for summary disposition i purposes; nor do they have to prove that nuclear power constitutes a separate product market in order to prevail on summary disposition. See Cities' Answer to Board Questions, August 7, 1981, pp. 36 M . If it is determined by the Board that it is necessary to prove that there is a separate market for nuclear powery however, Cities will prove it in hearing.
Document No. 60 would be part of such proof.
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Document No. 61 Appendix Page Nos. D326 - D328 l$h Cited in Cities' Motion, May 27, 1981 at 86-87
Description:
Excerpt of testimony of FPL official J.L. Howard in Florida Power & Light Co., FERC Docket No. E-9574 (Phrie I and II),
June 27, 1977.
Basis for Admissibility:
Sworn testimony.
Determinativeness: This document
- 1. Proves FPL did not plan its generation, including nuclear, solely for existing customers. Mr. Howard testified that acquisition of the Vero Beach system, which had not been previously served by FPL, would in the long run benefit FPL's existing customers.
- 2. Proves franchise competition.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That FPL has a legitimate business reason for refusing to deal in nuclear power: that FPL planned its nuclear generation only to serve its existing customers (pp. 46,
, 118).
l That FPL requires its capacity to meet the load requirements of existing customers (pp. 46, 118).
That new municipal load is hurtful to FPL's current customers (pp. 64-66).
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l-~________.___ _ _ _ _ _ __ _ . _ _ _ _ _ _ _ _.
Document No. 62 Appendix Page Nos. El - E3
( Cited in Cities' Motion, May 27, 1981 at 80
Description:
Power Corp. internal memorandum, from Power Corp. official S.A. Brandimore, . . rile re interconnection with Tallahassee, 9/8/66.
Basis for Admissibility:
Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined.
Determinativeness: This document
- 1. Proves that Cities (in this case, Tallahassee) were denied access to transmission and coordination.
- 2. Proves that Tallahassee sought to become a member of the Florida Operating Committee in 1966.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordination in the past (p. 116).
That Cities were not excluded from the FOC (pp.112-116).
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i Document No. 63 Appendix Page Nos. E4 - E7
} Cited in Cities' Motion, May 27, 1981 at 80-81
Description:
Minutes of FMUA Power Supply Committee meeting, 6/15/67.
Basis for Admissibility:
Rule 603(24) - Documents having guarantees of trustworthiness.
Determinativeness:
- 1. Proves that Cities believed that the large, private utilities would not let Cities into their coordination activities.
- 2. Proves that Cities were interested in access to coordination.
- 3. Proves refusals to deal in wholesale power by Power Corp. (attributable to FPL, as Power Corp. 's co-conspirator, if Gainesville is determinative, or if Gainesville and other documents determine a territorial division conspiracy) . See also Do<:umant Nos. 73, 101, -10 2~.- - -- --
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- 4. Proves fran'_hise competition.
The document records (at ES): "Mr. Dykes suggested joint municipal and company transmission.
"It was suggested that a municipally owned central generation and transmission system would be large enough for them to try to negotiate with the private companies on an equal basis, it was pointed out that Florida Power Corp. was using the high wholesale rates to small municipals to buy out the municipal system."
Refutes FPL Contentions, asserted in Response cf FPL, Aug. 7, 1981:
That there ic no competition between Cities and FPL (pp.
14, 27-30).
l That the Cities have nos been interested in coordination in the pact (p. 116).
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DocumOnt No. 64 Appendix Page Nos. E8 - E8A, E9 ,
Cited in Cities' Motion, May 27, 1981 at 81-82 O
Description:
- 1. Power Corp. internal memorandum, from M.F. Hebb, Jr.
(Vice President, Power Corp.) to file re: study (as described in Tallahassee Democrat article (Item 2) by Tallahassee's engineers cf inter alia, interconnection and coordination arrangements, April 11, 1967.
- 2. Newspaper article, " Electric Utility Study Proposed For Tallahassee," Tallahassee Democrat, 4/6/67.
Basis for Admissibility:
Item la Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined.
Both items: Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativenese: This document
- 1. Proves Tallahassee was interested in interconnection and access to coordination and pooling.
- 2. Proves that Power Corp. acted to impede study by Tallahassee of interconnection and pooling alternatives.
(Acts attributable to FEL, as Power Corp. 's co-conspirator, if Gainesville is determinative, or if Gainesville and other documents prove a territorial division conspiracy.) -
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordination in the past (p. 116).
That FPL has not unreasonably denied Cities' access to coordination (pp. 74-76; 112-116).
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Docum:nt No. 65 Appendix Page Nos. E10 - E122
() Cited in Cities' Motion, May 27, 1981 at 82
Description:
Letter Proposal for Feasibility Study, from R.W. Beck &
Associates to the Mayor and City Commission of Tallahassee, April 1, 1967.
Basis for Admissibility:
l Rule 803(24) - Documents having guarantees of trustwcrthiness.
Determinativeness: This document
- 1. Proves Tallahassee was interested in access to interconnection and coordination.
- 2. Proves Tallahassee was interested in access to nuclear power.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That the Citias have not been interested in coordination in the past (p. 116).
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Document No. 66 Appendix Page Nos. E23 - E25
() Cited in Cities' Motion, May 27, 1981 at 83
Description:
Power Corp. internal memorandum from M.F. Hebb, Jr. (Vice President, Power Corp. ) to A.H. Hines, Jr. re: 6/8/67 meeting between Power Corp. and Tallahassee officials and engineers regarding interconnection negotiations.
Basis for Admissibility:
Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this caso judicially determined.
Rule 803(24) - Documents having guarantees of trustworthi-ness.
Determinativeness: This document
- 1. Proves Tallahassee was interested in interconnection and access to coordination and pooling.
- 2. Proves that Power Corp. was willing to negotiate for interconnection only if it was tied to a territorial -- - -
agreement with the City (attributable to FPL, as Power Corp.'s co-conspirator, if Gainesville is determinative or if Gainesville and other documents prove a territorial division conspiracy).
- 3. Proves that Power Corp. acted to prevent Tallahassee from retaining R.W. Beck & Associates (who had studied alternative means of gaining access to power supply and coordination) (attributable to FPL, as Power Corp.'s co-conspirator, if Gainesville is determinative or if l Gainesville and other documents prove a territorial division conspiracy).
I Document states in part:
"At the opening of this meeting we expressed a strong l willingness to continue negotiating with Tallahassee on an
, interconnection as long as there was any chance of Beck &
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Document No. 66 (cont'd)
Associates being in the Tallahassee power supply problem . . .
Q "Mr. Roy Rhodes, acting as City Attorney, stated the City's position that, while they are in agreement as to the territorial boundary, they would not be willing to go into a full territorial agreement concurrent with the limited 69 KV interconnection agreement. He said Tallahassee would lose their bargaining power in the negotiations for the temporary interconnection . . . We replied . . . we have taken a position t in the Gainesville case -- no territorial agreement, no interconnection. "
l Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL never refused or conditioned an interconnection unlawfully (p. 68, n.1).
That the Cities have not been interested in coordination in the past (p. 116).
That FPL never acted to block coordination (pp. 74-76).
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Document No. 67 Appendix Page Nos. E26 - E29 Cited in Cities' Motion, May 27, 1981 at 82
Description:
Power Corp. internal memorandum from M.F. Hebb, Jr. (Vice President, Power Corp.) to file re meeting of 2/13/67 to discuss proposed interchange agreements with Tallahassee.
February 15, 1967.
Basis for Admissibility:
l l
Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined.
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness: This document
- 1. Proves Tallahassee was interested in interconnection and access to coordination and pooling.
l 2. Proves that Power Corp. acted to impede study by Tallahassee of interconnection and pooling alternatives.
(Acts attributable to FPL, as Power Corp. 's co-conspirator, if Gainesville is determinative, or if Gainesville and other documents prove a territorial division conspiracy.)
Memorandum records that "Mr. Dunn [ Power Corp. official]
made it emphatic to Mr. Hopkins [ Tallahassee official 3 that if Mr. Gecrge Spiegel and Mr. Robert Bathen [ engineering consultant to Tallahassee 3 were in any way whatsoever involved with Tallahassee, we could not go any further with our interchange negotiations. "
- 3. Together with Document Nos. 63, 68, and others, proves franchise competition.
Memorandum records: "Mr. Dunn pointed out to Mr. Mayo
[ Florida Public Service Commission representative] that there was a real threat of Mr. Bathen's municipal grid plan tak' 1g seed with the municipals, thereby resulting in uneconomical expansion of facilities which would be to the detriment of the utility industry in general in Florida. Mr. Mayo made the surprising observation that if such a grid were to be developed, he, Mr. Mayo, would tend to blame Power Corp. He
() - 67.1 -
i Docum nt No. 67 (cont'd)
() cited his reason as being, that while we give lip service to the thought of coordination and interconnections, we tend to terrify the municipals by threatening to take them over in any way at our disposal."
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That the cities have not been interested in coordination in the past (p. 116).
That FPL never acted to block coordination (pp. 74-76).
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Document No. 68 Appendix Page Nos. E30 - E33 Cited in Cities' Motion, May 27, 1981 at 83-84
Description:
- 1. Letter, W.J. Clapp (President, Power Corp.) to F.S.
Black (Executive Vice President, Tampa Elec tric ) , R.H. Fite (President, FPL) and C.A. Lilly, Jr. (President and General Manager, Gulf Power Co. ) re: R.E. Bathen's proposed municipal power pool. July 11, 1967.
- 2. Comments on the Haines City Fact-Finding Committee Report, prepared by Power Corp. and enclosed in Clapp's 7/11/67 letter.
- 3. Map prepared by R.W. Beck, of potential municipal pcwer pool, also enclosed in Clapp's 7/11/67 letter.
Basis for Admissibility:
Items 1 and 2: Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined.
Item 3: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Determinativeness: This document
- 1. Proves concerted resistance among the private utilities to greater coordination and power supply opportunities for the cities.
- 2. Together with Document Nos. 63, 67, and others, proves franchise competition.
Clapp's letter states in part:
"I know each of you is familiar with the activities of George Spiegel, Washington attorney, and R.W. Beck and Associates , engineers, in the furtherance of public power efforts in Florida. Perhaps you have already received copies of the enclosed map, " Potential Florida Municipal Power Pool," which Bob Bathen of Beck and Associates has been advocating among the municipal utiities of the state ...
- 68.1 -
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I Document No. 68 (cont'd)
) "Bathen's most recent appearance in our territory was before a committee appointed by the City Commission of Haines City to investigate the pros and cons of their establishing a municipal electric utility system versus the renewal of our franchise ...
"All of this is being sent to you so that you can be ale ted to the fact that a concerted effort is being made by Spiegel and Bathen in the furtherance of public power and, no doubt, they are going to make every effort to contact all communities whose franchise might be expiring within the next few years."
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That the Cities have not been interested in coordination in the past (p. 116).
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Document No. 69 Appendix Page Nos. E34 - E35
. Cited in Cities' Motion, May 27, 1981 at 84
Description:
Minutes of meeting of Homestead City Council, 7/27/67 Basis for Admissibility:
Rule 803(8) - Public records and reports.
Determinativeness:
- 1. Document No. 6 roves that FPL opposed Homestead's hiringGeorgeSpieg/el as its legal counsel.
- 2. Together with Document Nos. 66, 67, and 68 this document proves competition between Cities and FPL.
- 3. Together with Document N' o s. 66, 67, and 68 this document proves that FPL acted to block coordination.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL never acted to block coordination (pp. 74-76).
That there is no competition between Cities and FPL (pp.
14, 27-30).
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Documsnt No. 70 Appendix Page Nos. E38 - E43
() Cited in Cities' Mo * ' Lc. , Ma y 2 7 , 1981 at 84
Description:
Correspondence between Gainesville and Power Corp. ret ownership participation in Crystal River nuclear plant.
Specifically,
- 1. Letter, A.P. Pe~ ez (Director and hief Executive Officer, Power Corp.) to John R. Kelly (Director of Utilities, Gainesville), June 17, 1968:
- 2. Letter from John Kelly to A.P. Perez, June 12, 1968
- 3. Letter from A.P. Perez to John Kelly, June 17, 1968.
Basis for Admissibility:
All items: Rule 803(24) - Documents having guarantees of trustworthiness.
Items 1 and 3: Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined; Item 2: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Determinativeness: This document
- 1. Proves refusal to deal in nuclear power by Power Corp.,
attributable to FPL, as Power Corp. 's co-conspirator, if Gainesville is determinative, or if Gainesville and other
! documents prove a territorial division conspiracy.
I
- 2. Together with other documents
- proves early FPL awareness of Cities' interest in nuclear power.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That Cities did not make requests, or legitimate requests, for nuclear participation until late 1976 (pp. 31, 62).
- / Document Nos. 5, 18, 19, 37, 52, 53, 77, 79, 80, 90.
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Document No. 71 Appendix Page Nos. E71 - E73 Cited in Cities' Motion, May 27, 1981 at 82, n.l.
Description:
Power Corp. internal memorandum from A.H. Hines, Jr.
(Division Operations, to file, copies to various FPL officials re: territorial agreement and interconnection with Tallahassee, March 14, 1967.
Basis for Admissibility:
l Rule 801(d)(2)(E) - Admission of a , party-opponent by a stat sment made by a co-conspirator, in this caso judicially determined.
Rule 803(24) - Documents having guarantees of trustworthi-ness.
Determinativeness: This document
- 1. Proves Tallahassee was interested in interconnection and access to coordination and pooling.
- 2. Proves that Power Corp. was willing to negotiate for interconnection only if it was tied to a territorial agreement with the City (attributable to FPL, as Power Corp.'a oc-conspirator, if Gainesville is determinative or if Gainesville and other documents prove a territorial division conspiracy).
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordination in the past (p. 116).
That FPL never refused or conditioned an interconnection unlawfully (p. 68, n.1).
i Document No. 72 Appendix Page Nos. E74 - E75 Cited in Cities' Motion, May 27, 1981 at 82
Description:
Power Corp. internal memorandum f rom A.H. Hines, Jr.
(Division Operations) to file with copies to various FPL officials re: negotiations with Tallahassee for interconnection and territorial agreement, September 29, 1966.
l Basis for Admissibility:
Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined.
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness: This doc umm +.
- 1. Proves Tallahassee was interested in interconnection and access to coordination and pooling.
- 2. Proves that Power Corp. was only willing to negotiate for interconnection if it was tied to a territorial agreement with the City (attributable to FPL, as Power Corp.'s co-conspirator, if Gainesville is determinative or if Gainesville and other documents prove a territorial division conspiracy) .
- 3. Proves that Power Corp. acted to impede study by Tallahassee of interconnection and pooling alternatives.
(Acts attributable to FPL, as Power Corp. 's co-conspirator, if Gainesville is determinative, or if Gainesville and other documents prove a territorial division conspiracy.)
Memorandum states in part that: "I indicated that the company was concerned that we were off to a bad start for any fruitful negotiations, that we were at cdds with R.W. Beck in a number of other matters ... I advised that we were thinking l
of an Orlando type of arrangement including a territorial agreement ... "
l l
l Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That the Cities have not been interested in coordination in the past (p. 116).
That FPL never refused or conditioned an interconnection
() unlawfully (p. 68, n.1).
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l Documsnt No. 73 Appendix Page Nos. 276 - E80
{} Cited in Cities
- Motion, May 27, 1981 at 55, n.3.
Description:
FPL memorandum to file re: Electric Service to City of Homestead, 10/23/73.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Rule 803(6) - Records of regularly conducted activity --
issue of Luthenticity waived by FPL.
Determinativeness:
Proves FPL's refusal to sell " wholesale" power, in this case to Homestead. It sold what it termed " emergency" power, which was priced higher than the wholesale power sold by FPL to the REA cooperatives. See also Document Nos. 63, 101, 102.
Pefutes FPL Contentions, asserted in Response of.FPL, Aug. 7, 1981:
That FPL does not have the power to control prices (pp.
24-25, 54, 61).
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
i O
Documsnt No. 74(1) ,
appendix Page No. 27 Cited in Cities' Motion, May 27, 1981 at 48, n.1.
[}
i
Description:
Deposition of George Kinsman (Vice President, FPL) taken April 30, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 27-28.
Basis for Admissibility:
Sworn testimony.
Determinativeness:
i Document No. 74(1) proves that FPL had no excuse for FOC
, agreement not to share information with FOC information with
. non-FOC members.
I
- 74.1 -
()
Documsnt No. 74(2)
Appendix F
() Cited in Cities' Motion, May 27, 1981 at 28, n.2.
Description:
Deposition of George Kinsman (Vice President, FPL) taken April 30, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 44-45.
Basis for Admissibility:
Sworn testimony.
Determinativeness:
Document No. 74(2.) proves that FPL was not a nuclear innovator. Mr. Kinsman testified that, after initial consideration of a joint nuclear plant with Power Corp. and Tampa Electric, the companies dropped the project and Tampa and Power Corp. continued their research, but FPL did not participate.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL has been innovative and, by contrast, that Cities have not been (pp. 14, 41, 43, 47).
- 74.2 -
O
I Document No. 74(3) )
Appendix F
() Cited in Cities' Motion, May 27, 1981 at 29. (Incorrectly cited as Tr. 20-21. The correct pages for the citation are 54-55. Tr. 54 does not apear in the appendix *: Tr. 55 does appear.)
Desc ription:
Deposition of George Kinsman (Vice President, FPL) taken April 30, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 54-55.
Basis for Admissibility:
Sworn testimony.
Determinativeness:
Document No. 74(3) proves that FPL was not a nuclear innovator. Mr. Kinsman testified that FPL did not in fact conduct continuing studies on specific nuclear reactor types through the " Atomic Power Committee," but that Mr. Kinsman kept abreast of developments in the field generally.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL has been innovative and, by contrast, that Cities have been inefficient (pp. 14, 41, 43, 47).
- / Tr. page 54 is attached hereto.
1 i
l l
- 74.3 -
O
,l 1 documents, Mr. Kineman?
. 2) '
A Yes. 8 1
3! Q Was an Atomic Power Committee formed?
4 A Yes. !
5 1 t
O Were you the chairman o f that comnitece? '
6li A I don't know. Ray Welch was, too. Three of 7 us were. .
I 8 Q Ion were involved in that committee? t e
9 A -' ss 'That was just a three-man committee .
l jn m . ;c ; .-. '
10 ,
s Q * - ..How did. that committee ccme to ha formed?
4
_* 2. . + .q, >.W. . :- ,
j 11 - A. ;This corr,.espondence explains th G . ;
~ n. %**c. Tp.19w \n; ;;~...
- s' ; - *
._s -
- 12. .Q aWas the committee formed to invectigate the g.;. p',C .-..
. - '?' -
(N,^ 13 General Atomic proposal?
.. , ~ . . , . . .
Was that the basis?
g g
i
- , , w w n.~.9 - G r d sr L-s n 14 l yA~ Possibly, among others. I don't remember i .
mg.;;;;,, .. ,
j ,
r c 0 f q w ... . ~
15 i specifically. But the idea, I think, is explained. I ,
l ,f - y f,93.Y v . 4 l tiink the gist o(ik:.~is in the last paragraph, where it 16 !
17 says, " Atomic Power Committee formed. -
Evaluate them as t
- , . > 7 , . y.; . . . .
i 18 - they progre s s ed . ".- . . ... . .
. l . , !.
i i
19 ' Q .Was any other utility asked to join this t
20 committee, if you know?
21 A Not that I know o f. This is an offchoct of !
22 ; the Florida Nuclear Group, in a way. -
l 23 -
Q That press releasa that you juc: referred 24 to says that the committee will, in the second paragraph,
[((]1
~
25 l carry on continuing studies. Did it, in fa ct , car: y Gn !
NEW YOPK NATIONAL REPORTING SERVICE l is count sr. "
MARTY LESHAW W MI ii orricias. couar namentru ""
l 11f 23 r2 3 2444 CAMCulf COURT or THE 1't rie Ju O rctAt. c a c.Jt?. C A 34 O O'J N TY. #1. *.
*3:5" 373 7*$5 i.
l i
Documsnt No. 74(4)
Appendix F
() Cited in Cities' Motion, May 27, 1981 at 29, n.l.
Description:
Deposition of George Kinsman (Vice President, FPL) taken April 30, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 56-57.
Basis for Admissibility:
Sworn testimony.
Determinativeness: This document
- 1. Proves that FPL, in studying nuclear power, shared information with other large utilities it Florida, but not with Cities.
- 2. Proves that FPL was a foll6wer, not an innovator, in nuclear power.
t Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
I That FPL had legitimate business reasons for its refusals to deal (pp.14, 55).
l That FPL has been innovative and, by contrast, that Cities have not been (pp. 14, 41, 43, 47).
l t
i
- 74.4 -
1 O
m
Document No. 74(5)
Appendix F
() Cited in Cities' Motion, May 27, 1981 at 27 Description s i
Deposition of George Kinsman (Vice President, FPL) taken April 30, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 101-111.
Basis for Admissibility:
Sworn testimony.
Determinativeness :
Document No. 74(5) proves that .%r. Kinsman's responsibilities included receiving the 1959 Atomic Energy Commission solicitation of proposals for a small size nuclear pcwer plant (Tr. 105, see Document No. 78).
- 74.5 -
i O
Docum3nt No. 74(6)
Appendix F Cited in Cities' Motion, May 27, 1981 at 27.
Desc ription:
Deposition of George Kinsman (Vice President, FPL) taken April 30, 1981, in City of Gainesville, et al. v. FPL, S.D.
Fla. No. 79-5101-Civ-JLK. Pages 159-165.
Basis for Admissibility:
Sworn testimony.
Determinativeness
\
Document No. 74(6), together with Document No. 83 proves that FPL excluded Cities from a meeting among a coal-promoter and other larger utilities in Florida considering possible benefits of coal as a fuel.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
2
- 74.6 -
O
l Document No. 74(7)
Appendix F
() Cited in Cities' Motion, May 27, 1981 at 36 Descripticn:
Deposition of Georga Kinsman (Vice President, FPL) taken April 30, 1981, in City of Gainesville, et al. v. FPL, S.D.
4 Fla. No. 79-5101-Civ-JLK. Pages 293-294 (inadvertently omitted from appendix). 1/
Basis for Admissibility:
1 Sworn testimony.
Determinativeness :
Document No. 74(7) together with other documents 2/
I proves FPL engaged in joint activities and coordination with other large utilities in deve'oping a basis for planning its own generation (including nuclear) . Mr. Kinsman testified that in the 1960's FPL, Power Corp. , and Tampa Electric were operating their interconnected systems "as one operation."
i Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coordination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 109).
8, 1/ Tr. pp. 293-294 are attached hereto.
2/ Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 107, 108, 109, 112, 12, 14, 16, 103, 104.
1
() - 74.7 -
29J t it ceyo, "Wo roduco tho uncortcintico by nogoticting 2 f avo rable comme rcial terms . " Who actually did the O 3 negotiations?
Om 4 A Mr. Smith.
5 0 Were y u involved in the negotiations?
g! A No, not as to decisions as to "ye s " or "no "
7 or "how much."
8 Q Was Mr. Gardner?
9 A Yes, I'm sure he was. He was Mr. Smith's 10 executive assistant at the time.
11 Q Do you have personal knowledge of those 12 negotiations?
y 13 A Some aspects o f it , yes, certain levels.
14 Not the final -- well, " sign right here ," no .
15 Q Is your knowledge complete; do you know 16 everything that went on in the negotiations?
17 A No. There is not one person that knows 18 overything.
ig Q Were you sharing reserves with Tampa and 20 Florida Power in 1965; did you have reserve-sharing 21 arrangements?
22 A I don ' t know wha t you mean.
23 Q of course, you know what generating electric l 24 reserves are.
lC
' b r^T 9 ,
'5 A Well, we operate the th ree systems as one h l NEW YORK NATIONAL REPORTING SERVICE is couar sr.
MARTY LESHAW MIAMI orriCiAL Coum? necoavan " * * "'" ***
CIRCUIT COURT oF T>es livu JUO4CIAL CIR Culf. DADE COUNTY. FLA.
un
~
1 Oporation. Ecch.dopendo on what thoir planto put cut. If 2 we had power and they needed it, they got it. And vice-L 3 versa.
C'1 v
4 Q This was in the '60's?
5 A Yes.
6 0 At the time that you were planning the 7 Turkey Point units and the St. Lucie units, you were 8 engaging in this kind of --
9 MR. RUPP : Objection.
10 i
MR. GUTTMAN: I will withdraw the question.
11 Thera have been some documents which were 12 not adequately readable er legible. ,
-3 13 MR. RUPP :. We have been spendiniJ a great W4 14 deal o f time in connection with the reques ts that you made
~
15 after the Gardner deposition .
16 Nhat we are finding -- and it's not altogether 17 complete -- all documents responsive to your original 18 request were turned over and we're really not going to be 19 that favorably disposed to a rolling request af ter each l
l 20 deposition.
21 MR. GUTTMAN: You are in a position to 22 reciprocate. I'm not trying to make a big deal in the
, 23 record. I'm merely saying that we should discuss it --
l 1 i p.4 MR. RUPP: In a company like Florida Power l ,r .
lk'b 25 & Light, we will comply in good faith, as we have. It b ,
NEW YORK NATIONAL REPORTING SERVICE is count sr. '
MARTY LESHAW MIAMI orrie,iai. count aspontra cincuit count or rus inn suoic As. cincuir. 44os counrr. ri.A.
4
, l i
i Documsnt No. 75 i
Appendix Page Nos. G1 - G3 f () Cited in Cities' Motion, May 27, 1981 at 27
Description:
! Project Agreement, among Power Corp., Georgia Power &
Light, Tampa Electric, FPL, and two nuclear plant manufac-turers, For Investigation, Design, Construction and Operation l of Large Scale Nuclear Power Plant, signed and dated April 30, 1956.
Basis for Admissibility:
Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Rule 803(16) - Documents 20 years old or older.
Determinativeness: This document 4
- 1. Together with other documents
- proves FPL engaged in joint activities with other large utilities to develop a basis for its own investment in nuclear generation. The signed agreement expressly confirms previous conversations, and defines the project undertaken to be "the investigation,
- design, construction, and operation of a large nuclear power i plant to be located at an appropriate rite to be acquired in the State of Florida within suitable transmission distance of the systems of all three Florida Companies."
(A jointly-owned nuclear plant was not built as a result of these studies and plans. Ironically, it was because FPL was averse to taking risks that the plans for joint plants in the 1950's failed. See Document Nos. 2, 9.)
- 2. Proves that Cities were excluded from the joint planning process. The agreement expressly provides that no report, proposal, document or data relating to the project would be disclosed to any non-party to the agreement without unanimous approval of all the parties hereto.
1
- 75.1 -
O
l i Document No. 75 (cont'd) i Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coordination arrangements with other utilities played no role i in FPL's decisions to construct nuclear facilities (at pages 8, 109).
l */
Document Nos. 2, 6, 7, 21.
I
- 75.2 -
Document No. 76 O' Appendix Page Nos. G4 - G7 Cited in Cities' Motion, May 27, 1981 at
Description:
12/1/61 letter from F.S. Black (Executive Vice President, Tampa Electric) to R.H. Fite (President and General Manager, FPL) and Wm. J . Clapp (President, Power Corp. ) enclosing draft minutes of Meeting on Nuclear Power (enclosed minutes are same as Document No. 6) .
Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the subject.
Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator.
Determinativeness:
See Document No. 6 1 l
1 l
l
Document No. 77 Appendix Page Nos. G8 - G25 O Cited in Cities' Motion, May 27, 1981 at 27, 29, n.1
Description:
Series of documents obtained from FPL's files, showing FPL awarness of cooperative and municipality interest in nuclear plants, 1959. Specifically:
- 2. Note to file by E. Wende, Acting Manager, Oak Ridge Operations ( AEC contracter) G. Kinsman (Vice President, FPL),
8/6/59;
- 3. Letter from E. Wende, Acting Manager, Oak Ridge Operations ( AEC contracter) to Gentlemen, 1959;
- 4. Letter from S.R. Sapirie, Manager, Oak Ridge Operations to Gentlemen, inviting proposals in small size reactor, 8/3/59;
- 5. AEC Initial Proposal for small size nuclear power plant, 8/3/59;
- 6. AEC Information Sheet on proposals for small size nuclear power plant Seg also Document No. 5.
Basis for Admissibility:
Documents obtained from files of FPL, showing FPL awareness.
Determinativeness:
Document No. 77, together with other documents,* proves FPL's awareness that municipalities and cooperatives were interested in nuclear power in the 1950's. Documents contain explicit statements by the AEC and by FPL's own personnel that various cities or REA coops had expressed interest in participation in small size nuclear power reactors.
- / Document Nos. 5, 18, 19, 37, 52, 53, 70, 79, 80, 90.
O Document No. 78
( Appendix Page Nos. G26 - G27 Cited in Cities' Motion, May 27, 1981 at 27, 29, n.1
Description:
AEC Press Release, 2/7/56, "Seven Proposals For Small-Scale Nuclear Pcwer Demonstration Reactors Received by Atomic Energy Commission."
Basis for Admissibility-Rule 803(16) - Documents 20 years old or older.
Deterrinativeness:
Proves interest of small municipalities, cooperatives, and others (University of Florida, Gainesville) in small-sized nuclear systems. FPL was aware of such interest (see Document No. 7'-(5)). Shows that the federal government and small systems other than FPL were willing to take risks in development of commercial nuclear power.
]
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL has been innovative and, by contrast, that Cities have not been (pp. 14, 41, 43, 47).
i l
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-s -- , , - _ . , . . , _ . _ , _ . _ _ . , _ _ . . . _ _ . . . , _ . . _ _ _ , , . . . . . _ _ _ , , _ _ _ , . , _ . . _ _
Document No. 79 Appendix Page Nos. G28 - G29 O Cited in Cities' Motion, May 27, 1981 at 27, 29, n.1
Description:
Item 1: Internal FPL memorandum to Ben Fuqua (Vice President, FPL) re: Fort Pierce and Vero Beach interest in nuclear plants, 2/29/60.
Item 2: News clipping from Vero Beach Press Journal, 2/25/60, discussing Vero Beach rates and making reference to Vero Beach expression of interest in U.S. atomic reactor plant.
Basis for Admissibility:
Item 1: Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Both items: Rule 803(16) - Documents 20 years old or older.
Both items: Obtained from files of FPL, showing FPL awareness.
Determinativeness:
- 1. Document No. 79, together with other documents
- proves early FPL awareness that Cities were interested in nuclear power.
- 2. Preves Cities were willing to take risks associated with early application of nuclear technology.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981-That FPL has been innovative and, by contrast, that Cities have not been (pp. 14, 41, 43, 47).
- / Document Ncs. 5, 18, 19, 37, 52, 53, 70, 77, 80, 90.
O
Document No. 80 Appendix Page No. G30
() Cited in Cities' Motion, hay 27, 1981 at 27, 29, n.1 Desc ription:
Newspaper article, hey West Citizen, re Key West interest in nuclear plant, 3/5/56 (obtained from FPL files) .
Basis for Admissibility:
l Rule 803(16) - Documents 20 years old or older. Obtained l from FPL files, showing notice to FPL.
Determinativeness:
- 1. Document No. -) proves that Key West actively pursued the opportunity to build a small atomic power plant and that FPL was aware of its efforts. See also document Mos. 5,.18, 19, 37, 52, 53, 70, 77, 79, 90.
- 2. Document No. 80 proves Cities were willing to take risks associated with early application of nuclear technology.
Refutes FPL Contention, asserted in Rasponse.of FPL, Aug. 7, 1981:
That FPL has been innovative and, by contrast, that Cities have not been (pp.14, 41, 43, 47).
l ,
l O
i l
l l
Document No. 81 Appendix Page Nos. G31 - G32
() Cited in Cities' Motion, May 27, 1981 at 27, 29, n.1
Description:
Item 1: Letter from W.J. Clapp (President, Power Corp.) to Mr. Parks E. Baker (President, Seminole Electric Coop. ) with blind copy to Robert H. Fite (President, FPL) refusing to provide standby power and transmission necessary to make feasible Seminole's proposal to build a small nuclear plant, 12/7/55.
l l Item 2: Press release of the Department of Agriculture, REA, stating in part that lack of standby power and transmission had made it impossible for Seminole to proceed with a nuclear power plant, 5/15/56.
Basis for Admissibility:
Item 1: Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined.
Item 2: Rule 803(8) - Public records and reports.
Both items: Rule 803(16) - Documents 20 years old or older.
Determinativeness: This. document ,
- 1. Proves that, in furtherance of the FPL-Power Corp.
market division, the companies were mutually refusing to deal in products and services essential to the development and participation in nuclear power by small systems other than themselves.
- 2. Proves refusals to deal in transmission and power, attributable to FPL through the conspiracy.
, 3. Proves the two companies kept eitch other informed of competitive developments in nucl ear power. See also Document Nos. 91-93.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That Cities have not shown any impact due to the
- territorial conspiracy (p. 9) .
That FPL has not refused to deal in transmission (p. 72, n.1).
That FPL had legitimate business reasons for its
[} refusals to deal (pp. 14, 55).
l f
i
- l 1 l
- Document No. 82 l
l Appendix Page Nos. G33 - G56 1
Description:
l Document No. 82 is duplicate by pages described as
( Document No. 46.
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1 .
(
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i Document No. 83 Appendix Page Nos. G57 - G61
() Cited in Cities' Motion. May 27, 1981 at 27
Description:
Correspondence between Appalachian Coals, Inc. and FPL and two internal FPL memoranda concerning the coal project.
Specifically:
- 1. Letter, J.E. Tobey (President, Appalachian Coals, Inc . )
to R.H. Fite (President, FPL), 4/15/57
- 2. Letter, George Kinsman (Vice President, FPL) to J.E.
Tobey, 6/28/57
- 3. FPL internal memorandum, George Kinsman to R.H. Fite, 7/10/57
- 4. Letter, J.E. Tobey to R.H. Fite, 3/25/57
- 5. FPL internal memorandum, B.H.F. (Ben Fuqua, Vice President, FPL) to Jack Moore, 3/29/57 Basis for Admissibility:
Items 1, 4: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Items 2, 3, 5: Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
All items: Rule 803(16) - Documents 20 years old or older.
Determinativeness:
Document No. 83, together with Document No. 74(6) proves FPL intended to exclude Cities from its consideration, with other large systems, of potentially beneficial fuel supply arrangements.
The correspondence between Appalachian Coals and FPL shows that FPL vas arranging meeti 's between the coal company and certain utilities, in . der to learn about coal as a fuel for Florida. A letter from Mr. Tobey of the coal company to Mr. Fite, on 3/25/57, expressed Appalachian Coal's interest in including certain municipal systems in the group.
An internal memorandum from Ben Fuqua to Jack Moore, 3/29/57
()
\
t l
l Document 83 (cont'd) i l
l ) (G61) makes explicit FPL' e intent to exclude all municipal systems from any benefi<".a1 study or meeting, including joint r,tadies or meeting. Mr. Fuqua's memorandum states: "Mr. Fite does not feel that we should offer to assist Mr. Lammers
[ Appalachian Coals] in his contacts with the municipal properties. I notice he rnentions Orlando, Gainesville and Jacksonville. Also, he is considering Ft. Pierce, Lakeland and Tallahassee. It is hardly appropriate for us to try to make these arrangements. "
The meeting that was arranged included only the three major Florida utilities (G59).
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL had legitimate tusiness reasons for its refusals to deal (pp. 14, 55).
- 83.2 -
l O
Document No. 84 Appendix Page Nos. I 1 - I 12
() Cited in Cities' Motion, May 27, 1981 at 73-74
Description:
Internal FPL document, " Market Assessment, Firm Interchange, Peninsular Florida Systems, 1977-1985", 7/9/76.
Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the subject.
This document was admitted into evidence and subject to examination in FERC Docket No. ER78-19, et,al.
This document was admitted into evidence and subject to l
examination in FERC Docket No. ER78-19, et al.
Determinativeness: This document I
- 1. Proves a peninsular Florida market in bulk power.
- 2. Proves competition in the bulk power market. This document explicitly recognizes the existence of a peninsular market for firm power, and views systems throughout peninsular Florida as competitors with it in that market.
- 3. Proves relationship between the availability of markets throughout peninsular. Florida for bulk power ard FPL's scheduling of in-cervice dates for units.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That Cities have not defined a geographic market (pp.
14, 54, 55).
That there is no peninsular Florida bulk power market (pp. 21, 54, 56).
That there is no competition between Cities and FPL (pp.
14, 27-30).
Document No. 85 Appendix Page Nos. I 13 - I 36
Description:
/)
Preliminary Proposal of Electric Utility Service for New Smyrna Beach by FPL, 1974, and Financial Presentation to Commissioners of New Smyrna Beach, 7/5/74.
l Basis for Admissibility:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own l
I statement.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationehip.
- Determinativeness
l Document No. 85 proves use by FPL of its dominance in nuclear power to extend its retail monopoly.
FPL relied on its nuclear generating units and diversified fuel mix in seeking to persuade New Smyrna Beach to sell its system to FPL. FPL told New Smyrna Beach that its operating efficiencies were limited by its size, so its ratepayers would save money by being served by FPL at retail.
FPL was prepared to sell electricity to New Smyrna Beach at retail from its generating mix.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL has a legitimate business reason for refusing to deal in nuclear power: that FPL planned its nuclear generation only to serve its eristing customers (pp. 31-32, 46, 53, 64-66, 118).
O w a #
Document Nos. 86 and 87 Appendix Page Nos. I 37 - I 39 O cited in cities- action, say 27, 1981 et ee Desc ription:
- 1. Letter from Sebring citizen regarding acquisition of Sebring system by FPL, March 15, 1962;
- 2. Response of R.C. Fullerton (Exec . Vice-Pres . FPL),
3/21/67;
- 3. Cover letter from Fullerton to J.S. Gracy (Senior Vice-President, Power Corp.), 3/21/62.
Basis for Admissibility:
Items 2 and 3: Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Item 1: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Determinativeness:
- 1. Document Nos. 86 and 87 add proof, if the Gainesville decision is not determinative, that FPL and Power Corp.
divided territories and refused to compete with each other across the territorial boundary. They prove that FPL sought to assist Power Corp. in its acquisition efforts within Power Corp.'s area.
- 2. Document Nos. 86 and 87 prove franchise competition.
Refutee FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
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, n . _ , . . _ . . - . . _ . - . , , _ - _ . - _ - _ . _ _ . - .- _ _ _ _ _ _ _ _
\
Documsnt No. 88 Appendix Page Nos. I 40 - I 43 l Cited in Cities' Motion, May 27, 1981 at 66-67
- I l Desc ription
l Internal and external exchange of letters concerning FPL's refusal to consider purchase of Lake Helen municipal system. Specifically,
- 1. Letter, Bob (R.H. Fite, President, FPL) to Bill (W.J. Clapp, President, Power Corp.), 6/23/78
- 2. Letter, A.B. Wright (Vice President, FPL) to Louise A.
Roberts (City clerk, Lake Helen), 11/21/56
- 3. FPL internal memorandum, A.B. Wright to Ben Fuqua, 11/19/56
- 4. Letter, Louise A. Roberts to FPL, Daytona Beach, 11/16/56 Basis for Admissibility:
Items 1, 2, 3: Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made .within the scope of employment and during the relationship.
Item 4: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
All items: Rule 803(16) - Documents 20 years old or olders Determinativeness:
- 1. Document No. 88 adds proof, if the Gainesville decision is not determinative, that FPL and Power Corp. divided I territories and refused to compete with each other across the l territorial boundary.
- 2. Document No. 88 proves franchise competition.
! Refutes FPL Contentiens, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
l 14, 27-30).
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l Document t?o. 89 Appendix Page No. I 44 Cited in Cities' Motion, May 27, 1981 at 67, n.l .
Description:
l l Document No. 89 is duplicated by Document No. 81, p. G31.
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Document No. 90 l Appendix Page No. I 45 gS Cited iri Cities' Motion, May 27, 1981 at 67, n.l.
O Desc ription:
i Excerpt from editorial, Public Service Magazine, July, 1956, quoting R.H. Fite in opposition to municipal ownership of Lake City power, and showing municipal recognition of importance of nuclear power.
Basis for Admissibility:
Rn: 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness: This document ,
- 1. Proves franchise competition.
- 2. Together with other documents
- proves early FPL awareness of municipal interest in nuclear power. Part of the reason given in the editorial for rejecting municipal ownership was that small systems might become obsolete "due to atomic power developments."
Refutes FPL Contention:
That there is no competition between Cities and FPL (pp.
14, 27-30).
Document Nos. 5, 18, 19, 37, 52, 53, 70, 77, 79, 80.
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Document Nos. 91, 92, 93 Appendix Page Nos. I 46 - I 48 O Cited in Cities' Motion, May 27, 1981 at 67-68
Description:
Correspondence showing refusal to sell power to City of Arcadia. Specifically, 1.
Letter, City Attorney of Arcadia, to Power Corp., 2/3/56
- 2. Letter, W.J. Clapp (President, Power Corp.) to R.H.
Fite, 2/7/56
- 3. Letter, R.H. Fite to W.J. Clapp, 1/13/56 Basis for Admissibility:
Document Nos. 91, 92: Rule 801(d)(2)(B) - Admission of a party-opponent by manifestation of belief in a statement made by others.
Dacument No. 93: Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant rade within the scope of employment and during the relationship.
All documents: Rule 803(16) - Documents 20 years old or older; documents admitted and relied on by Fif th Circuit in Gainesville Determinativeness:
These documents help prove, if Gainesville is not determinative, that the territorial division between Power for franchises, Corp. and FPL assigned " acquisition rights" and was enforced by each company's refusal to supply alternatives for an existing franchise in the other's
" territory" that wished to consider municipal ownership.
thanking him Mr. Fite's letter of February 7, 1956 tostated Clapp, that "I sure for his refusal to deal with Arcadia, "
This FPL did (see hope we have an cpportunity to repay you.
Document No. 94) .
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That EPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
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Documnnt No. 94 Appendix Page No. I 49 Cited in Cities' Motion, May 27, 1981 at 68 O Desc ription:
Telegram to Citizens Committee, City of Winter Garden, from R.H. Fite (President, FPL) refusing to sell wholesale power to a municipal in Power Corp.'s " territory." 1/11/63. Blind copy was sent to Mr. Clapp (President, Power Corp.).
Basis for Admissibility:
Relo 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Adds proof, if Gainesville not determinative, of FPL-Power Corp. territorial division.
Document No. 94 shows FPL's refusal to ds;l with Winter Garden because it was in Power Corp.'s " territory."
- 2. Proves FPL policy of refusal to deal in wholesale power.
Mr. Fite's telegram states that even if Winter Garden were in FPL's " service area," "We do not supply municipal systems firm wholesale power for distribution throughout a municipal distribution system."
Refutes FPL Contention, asserted in Response or FPL, Aug. 7, 1981:
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
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Document No. 95 Appendix Page Nos. I 50 - I 54
() Cited in Cities' Motion, May 27, 1981 at 69-70
Description:
Report of City's Fact Finding Committee to Haines City, reporting unava.. lability of outside wholesale power to replace franchise of Power Corp. , 1/11/67.
Basis for Admissibility:
Rule 803(8) - Public records and reports.
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness: This document
- 1. Proves franchise competition.
- 2. Adds proof, if Gainesville is not determinative, of FPL- -
Power Corp. territorial division. (
The language of the report reveals (quoted in part in Cities' Motion, pages 69-70) that Haines City, in considering whether to seek to enter the electric distribution market, or generation and distribution ma rkets, expected refusals to 4 deal by FPL and Power Corp. Haines City was aware of and influenced by FPL's earlier refusal to supply Winter Garden with a power supply alternative which precluded Winter Garden's entry into the business (see Document No. 94. See also Document No. 68.)
- 3. Proves a peninsular Florida market in bulk power.
Refutes FPL Contentions, acserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
~
14, 27-30).
That there is not a peninsular Florida market in bulk power (pp. 21, 54, 56).
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Documsnt No. 96 Appendix Page Nos. I 55 - I 57
- Cited in Cities' Motion, May 27, 1981 at 70-71 Desc ription
FPL advertising to renew Daytona Beach franchise (1977) and to acquire the Vero Beach franchise (9/4/76) .
Basis for Admissibility:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own statement.
Determinativeness: This document i 1. Proves franchise and yardstick competition.
i These advertisements prove that FPL is in competition with Cities for franchises, that it perceives itself to be in such competition, and that it is in yardstick competition with all utilities in Florida. FPL's advertising focused on rate comparison between FPL and municipal systems throughout Florida.
- 2. The Vero Beach advertisement proves that FPL seeks to use its dominance in nuclear generation to extend its retail monopoly, and that it gets benefits from actions that raise rates of municipal electric systems in Florida, regardless of their location. See Document No. 39.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That Cities have not defined a geographic market (pp.
14, 54, 55).
That there is no competition between Cities and FPL (pp.
14, 27-30).
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l Document No. 97 Appendix Page Nos. I 58 - I 59 Cited in Cities' Motion, May 27, 1981 at 72 Desc ription:
Article from Electrical World, FPL Communications Coordinator A.P.X. Bothwell, 9/15/77.
Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the sub j ec t.
l Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
Document No. 97 proves franchise and yardstick competition.
Mr. Bothwell expains at length the use and effectiveness of state-wide rate comparisons in FPL's Daytona Beach campaign, which resulted in renewal of FPL's franchise in Daytona Beach. He makes specific reference to rate comparisions between private enterprise and government utilities. This constitutes an admission by FPL that it is not only in franchise competition, but in rate competition with municipal utilities throughout Florida.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That Cities have not defined a geographic market (pp.
14, 54, 55).
l That there is no competition between Cities and FPL (pp.
14, 27-30).
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Document No. 98 Appendix Page Nos. I 60 - I 72 Cited in Cities' Motion, May 27, 1981 at 50-51 Desc ription:
FPL Senior Management Council Planning documents, prepared by R. Gardner. Specifically:
- 1. Agenda by RJG (Robert Gardner) Eighty-second meeting of the Senior Management Council 7/30/76 l
- 2. Outline, "Recent Significant Developments in Competitive Relations" from Eighty-Second medeting of the Senior Management Council, no date.
- 3. List of five Propositions by RJG (Robert Gardner) from Eighty-Second meeting of the Senior Management Council, date illegible.
- 4. Municipals and Co-operatives Situation Analysis by RJG (Robert J. Gardner), from Eighty-Second meeting of the Senior Management Council, 7/30/76
- 5. Table, Utility Economic Model, from Eighty-Second meeting of the Senior Management Council, no date.
- 6. List of Alternatives for Municipals and Co-operatives, from Eighty-Second maeting of the Senior Management Council, date illegible.
- 7. Table of Unit Additions and Growth Rates by RJG (Robert Gardner) from Eighty-Second meeting of the Senior Management Counc il, 7/29/76.
- 8. Table of Cost Impact by RJG (Robert J. Gardner)
Alternative Addition Strategies -- Low Growth (4%), from Eighty-Second meeting of the Senior Management Council, 7/30/76.
- 9. Proposition, by RJG (Robert J. Gardner), from Eighty-Second meeting of the Senior Management Council, 7/28/76.
- 10. List of Inter-Utility Relations Strategy Possibilities by RJG (Robert J. Gardner), from Eighty-Second meeting of the Senior Management Council, 7/76.
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Document No. 98 (cont'd)
- 11. Schematic Drawings " Single Businesa Model" and
() "Two-Business Model," from Eighty-Second meeting of the Senior Management Council, no date.
- 12. Table, " Differences Between Bulk Power and Electric Service Businesses," by RJG (Robert J. Gardner), from Eighty-Second meeting of the Senior Management Council, 7/30/76.
- 13. List of " Possibilities" (for inter-utility relations) by RJG (Robert J. Gardner) from Eighty-Second meeting of the Senior Management Council, 7/76, rev. 8/76.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
This document was admitted into evidence and subject to examination in FERC Docket No. ER78-19 et al.
Determinativeness: This document
- 1. Proves a peninsular Florida bulk power market.
- 2. Proves competition between FPL and Cities in the bulk power market.
At I 62 (Same as Document No. 38) FPL Vice President I Gardner states that the company needs to v'aw its business as including both an electric service business and "a bulk power business," which, he later explains (I 72) consists of
" statewide" wholesale transactions regulated by FERC. Thus, FPL knew that other systems in Florida, public and private, are potential buyers and sellers in the bulk power market, and Gardner states that FPL competes in this market. Page I 65 reflects competition with municipals and cooperatives.
FPL ellewhere specifically identifies, among others, Tallahassee, Gainesville, Lakeland and Orlando as competitors in the bulk power market ( see Document No. 74, p. I 3). None of these four Cities are within the perimeter of FPL's retail service area.
Document also states that an attack on municipal financing advantages would make " competition more equal. "
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Document No. 98 (cont'd)
() 3. Proves FPL's awareness of Cities' desire to participate in coordination, because alone they are too small to add economical generation. FPL's document states that municipals want " statewide generation planning, multiple-unit sharing, and full coordination. "
- 4. Proves franchise competition. "Municipals presently having franchises with FPL will be encourage to go public."
- 5. Proves anticompetitive intent in FPL's activities. The paper considers a shift from nuclear power to coal specifically for the purposes of thwarting the opportunity for others to invest in FPL generation pursuant to the Atomic Energy Act.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
i 14, 27-30).
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
That there is no peninsular Florida bulk power market (pp. 21, 54, 56).
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Documsnt No. 99 Appendix Page Nos. I 73 - I 76
{} Cited in Cities' Motion, May 27, 1981 at 52 Desc ription:
FPL internal memorandum detailing FPL opposition to construction of generating plant by Seminole Electric Cooperative, to be located within perimeter of Power Corp. 's service area. April 4, 1952.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made withiza the scope of employment and during the relationship.
Rule 803(16) - Documents 20 years old or older.
Determinativeness: This document
- 1. Together with Document No.100 proves that FPL intended to block access to alternatives for systems located within the perimeter of Power Corp.'s service territory.
- 2. Proves that FPL believes itself to be in competition with systems throughout . peninsular Florida.
Document reveals efforts by FPL to oppose the building of generation plants by Seminole, which were p1hnned for sites within the area served by Pcwer Corp. FPL states concern about the perceived threat from any smaller system gaining access to economies of joint generation and transmission.'
- 3. Proves a peninsular Florida market in bulk power.
Refutes FPL Con- wtions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That there is no peninsular Florida bulk power market (pp. 21, 54, 56).
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Documant No. 100 Appendix Page No. I 77 Cited in Cities' Motion, May 27, 1981 at 52 Desc ription :
Second page of a letter from R.H. Fite to Senator George A.
Smathers, May 8, 1952.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent l
or servant made within the scope of employment and during the relationship.
Rule 803(16) - Documents 20 years old or older.
Determinativeness: This document
- 1. Together with Document No. 99 proves that FPL intended to block access to alternatives for systems located within the perimeter of Power Corp.'s service territory.
- 2. Proves that FPL believes itself to be in competition l with systems throughout peninsular Florida.
FPL states that it was concerned that proposed new generation in Power Corp.'s territory be stopped, "because we believe if these two agencies [ Seminole and the Southeastern Power Administration] get started it will be only a short time until our territory becomes involved."
- 3. Proves a peninsular Florida market in bulk power.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That there is no competition between Cities and FPL (pp.
14, 27-30).
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
That there is no peninsular Florida bulk power market (pp. 21, 54, 56).
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Document No. 101 )
Appendix Page Nos. I 78 - I 79 Cited in Cities' Motion, May 27, 1981 at 58
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Desc ription:
Letter from A.B. Wright (Vice President, IPL) to J.T. Bensley (Director of Utilities, New Smyrna Beach), November 25, 1970.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness:
Document No. 101, together with Document Nos. 63, 73, and 102 proves refusal to deal in wholesale power. FFL's Wright states that power provided to New Smyrna Beach by FPL "should not be interpreted in any manner as firm power but rather as stated, on the basis of availability."
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Document No. 102 Appendix Page Nos. I 80 - I 84 Cited in Cities' Motion, May 27, 1981 at 58 Desc ription:
Excerpts from deposition of Richard C. Fullerton (Chairman of Board of Directors, FPL) taken in Gainesville v. FPL, MD.
Fla. 68-306-Civ-J.
Basis for Admissibility:
Sworn testimony.
Determinativeness:
Proves FPL's refusal to deal in wholesale power.
Mr. Fullerton testified both that FPL had a policy of refusing to sell wholesale power to municipals, and that it imposed resale restrictions in REA wholesale power agreements in order to prevent the coopo from selling to municipals.
Thus, FPL both refused to deal in essential products and blocked Cities' alternatives for dealing with others. See also Document Nos. 63, 73, 101.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
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Documsnt No. 103 i
Appendix Page Nos. I 85 - I 88
(]) Cited in Cities' Motion, May 27, 1981 at 40
Description:
Reply memorandum of Florida Pcwer & Light Company, filed before FERC in Docket Nos. ER77-539 (Tampa Electric Company),
ER77-550 (FPL), and ER77-516 (Florida Power Corporation),
, June 1, 1978 Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the subject.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Determinativeness: This document
- 1. Together with 6ther documents
- proves FPL engaged in j joint activities and coordination with other large utilities in developing a b', sis for planning its own generation (including nuclear) .
- 2. Together with Document Nos. 29, and 105 proves FPL's intent to exclude Cities from the benefits of coordination that it enjoyed.
FPL represents in its brief that it is participating fully in coordi stion studies being conducted by the Florida Coordinating Grs (FCG), which it actively supports; but takes the position that FERC has no jurisdiction to order pooling.
This expression of opposition to pooling was in dockets in which FERC was reviewing FPL's bilateral interchange contracts with Tampa Electric and Power Corp. FPL employed such bilaterni contracts specifically in an effort to avoid pooling (see Document No. 29) .
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 107, 108, 109, 112, 12, 14, 16, 74(7), 104.
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Document No. 103 (cont'd)
O Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coordination arrangements with other utilities played no role in FPL's decisions to conFtruct nuclear f8Cilities (at pagGs 8, 109).
That FPL rejects formal pooling for legitimate business reasons (pp. 74-76).
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Documsnt No. 104 Appendix Page Nos. I 89 - I 110 Cited in Cities' Motion, May 27, 1981 at 19, n.2.
4 (1) Desc ription:
Unsigned territorial agreement among FPL, Power Corp.,
and Tampa Electric, with cover letter dated Jan. 30, 1961, from H.K. McKean (Vice President, Power Corp.) to Harry W.
Page (Vice President, FPL).
Basis for Admissibility:
Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially 3 determined.
' Rule 803(16) - Documents 20 years old or older.
Determinstiveness:
- 1. Document No. 104 adds proof, if the Gainesville decision is not determinative, of a conspiracy among FPL nd Power Corp. as well as Tampa Electric, to divide territories.
- 2. Document No. 104, together with other documents
- proves FPL engaged in joint activities and coordination with other larger utilities in developing a basis for its own generation (including nuclear) . The contract reflects consideration by k the companies of operation of generation and transmission on an " integrated basis" (Section 3 1), reserve sharing (section 3.4), establishment of size and location of generating unit:3 on the " basis of the integrated systems requirements"(Section 4.1), planning timion of new units on that basis (Section 4.2), and the establishment of an Operating Committee to coordinate cperations (Section 3.3) .
Mr. Bivans has stated that "I am not aware of any instance in which any FOC member ever commented on the generation plans of another member. It was understood that such decisions were solely within the prosrince of the individual members." (Bivans Aff. Par. 11; FPL Response, Aug. 7, 1981, p. 114.) Although Mr. Bivans was not aware of such comments, Document No. 104 shows that they were made.
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 20, 24, 107, 108, 109, 112, 12, 14, 16, 103, 74(7).
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Documsnt t o.104 (cont'd) i Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coordination arrangements with other utilities played no role in FPL's decisions to construc t nuclear facilities (at pages ,
8, 109).
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Documsnt No. 105 Appendix Page Nos. I 111 - I 127 Cited in Cities' Motion, May 27, 1981 at 31, n.1; 39-40 O
Description:
Cover memorandum from R.J. Gardner (Vice President, FPL) to other FPL personnel, 2/12/76, enclosing system planning materials.
Basis for Admissibility:
Rule 801(d)(2)(D) - Admission of a party-opponent by an agont or servant made within the scope of employment and during the relationship, also offered to show FPL state of mind Determinativenesst
- 1. Document No.105 proves FPL awareness that cities were
- intercated in both coordination and nuclear power.
- 2. Doc ument No . 105, together with Document Nos. 29 and 103, proves FPL's intent to exclude most cities from coordination.
The materials state that "Because of the relative size of the other systems in Florida and the economic advantage of nuclear generation and large-scale units, there is almost certainly an advantage to their entering into jointly-owned pro j ec ts . Mutual benefits which can be derived from interconnections, may also make jointly-owned transmission
( lines look attractive to these smaller utilities." (B113)
The materials also state that, although state and federal agencies favored state-wide planning, FPL would seek to l
control joint studies and " educational actions" so that it would be in "^ better position to define, establish, and defend our position."
- 3. Document No.105 proves that FPL was willing to forego innovations o: possibilities for greater efficiencies through pooling because it was adverse to including cities in such ventures.
Refutes FPL Contentions, asserted in Response of FPL, Aug. 7, 1981:
! That FPL has been innovative and, by contrast, that Cities have not been (pp. 14, 41, 43, 47).
That FPL rejects formal pooling for legitimat.e business reasons (pp. 70-71, 74-76).
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Docum nt No. 106 Appendix Page Nos. I 128 - I 132
Description:
Excerpts from May 12, 1981 deposition of Marshall Mcdonald, Chairman and Chief Executive Officer of FPL, taken in City of Gainesville, et al. v. FPL, S.D. Fla . No. 79-5101-Civ-JLK Basis for Admissibility:
Sworn testimony.
Determinativeness: This document
- 1. Proves that FPL benefitted from its interconnected operations with other large utilities. In 1973, FPL was short of capacity and did not have adequate reserves, so the company relied on other power sources. Mr. McDorsld stated (I 132):
I think this [available sources of purchased-power in 1973] was known to Mr. Bivano and others who were working with the Florida Operating Committee because they knew independently the availability of all plants of what the maintenance schedules were and what the growth of the individual systems were and what the disposition of those companies were toward selling power for a period of time.
- 2. Proves that FPL perceived that it needed additional capacity, which some of the municipals could have provided, during the same time period that it was resisting pooing with Cities.
- 3. Together with other documents
- proves that FPL engaged l
in joint activities and relied, in fact, on coordination with I other large utilities in developing a basis for planning its own generation.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That there is no peninsul.tr Florida bulk power market (pp. 21, 54, 56).
That FPL had legitimate business reasons for its refusals to deal (pp. 14, 55).
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 58, 107, 108, 109, 112, 12, 14, 16, 103, 74(7), 104.
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l Documsnt Noc.107 ond 108 Appendix Page Nos. I 133 - I 134; I 135 Cited in Cities' Motion, May 27, 1981 at 35, n. (carryover)
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Description:
Document No. 107: Letter from McGregor Smith (Chairman of the Board, FPL) to W.J. Clapp (President, Power Corp.)
August 1, 1972.
Document No. 108: Letter from W.J. Clapp to R.H. Fite (President, FPL), July 24, 1964.
Basis for Admissibility:
Document 107 : Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Document No.108: Rule 801(d)(2)(E) - Admission of a party-opponent by a statement made by a co-conspirator, in this case judicially determined.
Determinativeness:
Document Nos. 107 and 109, together with other documents
- prove FPL engaged in joint activities and coordination with other larger utilities in developing a basis for planning its own generation (including nuclear) .
Smith discusses FPL's need for additional interconnection in order to support FPL's planned unit at Canaveral. He explains that "one of the main reasons for putting in a plant at Canaveral is to be able to contribute more to you and Tampa Electric in return for what we would hope to get."
l Clapp stated in his letter that Power Corp. maintained certain facilities and operations solely for the benefit of FPL.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coordination arrangements with oth6r utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
l */ Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 109, 112, l 12, 14, 16, 103, 74(7), 104.
- 107 - 108 -
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- Documsnt No. 109 Appendix Page Nos. I 136 - I 139 Cited in Cities' Motion, May 27, 1981 at 37, 41-42 l C)
Desc ription:
Excerpt from FPL Annual Report, 1980 Basis for Admissibility:
l Rule 801(d)(2)(A) - Admission of a party-opponent by his own statement.
Determinativenass:
- 1. Document No.109 together with other documents
- proves FPL engages in joint planning and coordination with other larger utilities in developing a basis for planning its own generation (including nuclear) .
- 2. Document No.109 proves FPL benefits from coordinated operations. Tne report boasts economic advantages accruing to FPL from interchange on the Power Broker system.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
That FPL's early joint nuclear planning and its coordination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 107, 108, 112, 12, 114, 16, 103, 74(7), 104.
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Documsnt No. 110 '
Appendix Page No. I 140 I 147
() Cited in Cities' Motion, May 27, 1981 at 52
Description:
Excerpta from Memorandum of FPL in Opposition to Mohion to Dismiss, filed in Gainesville Regional Utilities et al. v.
FPL, Docket No. 79-5101-Civ-JLK, September 30, 1980.
I Basis for Admissibility:
i !
l Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorized to make statements on the sub j ec t.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of employment and during the relationship.
Document associated with Document Nos. 33, 50, 54, 59, and .
62.
Determinativeness:
This document proves that FPL continues to resist dealing in tariff-based transmission services with Cities, and continues to deny Cities an opportunity to invest in the peninsular Florida transmission grid.
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s Documsnt No. 111 Appendix Page Nos. I 148 - I 153 Cited in Cities' Motion, May 27, 1981 at 19, n.1.
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Description:
Final Judgment Order, J. Tjoflat, M.D. Fla., in settlement of U.S. antitrust suit against Power Corp. and Tampa Electric, in Civil No. 68-297-T, filed July 19, 1971.
Basis for Admissibility: Order of United States District Court, Middle District of Florida Determinativeness:
i Thie document proves agreement of Power Corp. and Tampa l
Electric (TECO) not to enforce or agree to territorial or market limitations on the sale for resale of t.1k power.
Refutes FPL Contention, asserted in Rusponse of FPL, Aug. 7, 1981:
That there is no peninsular Florida bulk power market (pp. 21, 54, 56).
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Docum:nt No. 112 Appendix Page Nos. I 154 - I 155 Cited in Cities' Motion, May 27, 1981 at 37
Description:
Excerpt from FPL Annual Report, 1979 Basis for Admissibility:
Rule 801(d)(2)(A) - Admission of a party-opponent by his own s ta t ement .
Determinativeness:
Document No. 112, together with other documents
- proves FPL engages in joint planning and coordination with other larger utilities in developing a basis for planning its own generation (including nuclear) . It notes that coal units planned jointly with Tampa 31ectric were deferred because unit power from another coal Unit owned by Tampa was to be
~~'
purchased'by FPL instead. ' '
~
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
l That FPL's early joint nuclear planning and its coordination arrangements with other utilities played no role in FPL's decisions to construct nuclear facilities (at pages 8, 109).
l
- / Document Nos. 2, 6, 7, 21, 75, 11, 13, 15, 20, 24, 107, 108,
( 109, 12, 114, 16, 103, 74(7), 104.
l l
l l
l l
. ..g.
- 112 -
()
l l
l l
Documsnt Nos. 113 and 114 l
Cities' Response to Board Questions, j Attachments 1 and 2
() Cited in Florida Cities' Response to Board Questions, Aug. 7, 1981, at: 10, n.2, 21, n.l.
Desc ripri.on:
Document 113: Florida Power & Light Company, FERC Docket Nos. ER78-19, et al., " Order Denying Rehearing, AcceptTng for Filing and Suspending Rate Schedules and Denying Motion for Extension of Time",. February G, 1980 (and Erratum Notice, February 26, 1980)
Document 114: Florida Power & Light Company, FERC Docket No.
ER78-19, et al., " Order Directing the SubmissioToTa Transuission Tariff in Substitution for Individual Rate Schedules",
, . , . December .21, A979 Basis for Admissibility:
Rule 803(8)(B) - Public records and reports.
Orders of the Federal Energy Regulatory Commission Determinativeness:
Proves Ehat FPL filed individual interchange transmission agreements with FERC for Tampa Electric, New Smyrna Beach, and Orlando, even after the FERC ordered FPL to i file a single tariff for application to all interchange transmission serviccs.
i
- r. - - 3--
,33 l
l
- 113 - 114 -
O
Documsnt Noc. 115 and 116 Cities' Response to Board Questions, Attachrents 3 and 4
) Cited in Florida Cities' Response to Board Questions, Aug. 7, 1981, at: 19, n.1.
Desc ription :
Document 115 : City of Homestead, Florida v. Florida Power &
Light Company, FERC Docket No. EL78-28, " Order Terminating Proceeding, November 8, 1979 Document 116: Florida Power & Light Company, FERC Docket No.
EL78-4, " Order Terminating Proceeding, November 8, 1979 Basis for Admissibility:
Rule 803(8) - Public records and reports.
Orders of the Federal Energy Regulatory Commission Determinativeness:
This document proves termination of dockets to determine the legality of FPL's proposed cancellation of partial requirements service to Homestead, and of FPL's refusal to sell wholesale power to Ft. Pierc e , following the issuance of Opinion No. 57. . . . .
- 115 - 116 -
O
Docurent No. 117
, Cities' Response to Board Questions, Attachment 5
() Cited in Florida Cities' Response to Board Questions, Aug. 7, 1981, ats 19, n.1.
Description s Florida Cities v. Florida Power & Light Company, 13RC Docket No. EL78-4, " Order to Show Caurv", June 12, 1978 l
Basis for Admissibility:
Rule 803(8) - Public records and reports.
Orders of the Federal Energy Regulatory Commission Determinativeness:
This document proves the initiation of an investigation by the Federal Energy Regulatory Commission to determine whether FPL violated its tariff obligations and the Federal Power Act, by its refusal to sell wholesale power to Ft.
Pierc e . Together with Opinion No. 57, it proves the matters as to which Cities claim collateral estoppel.
- 117 -
i I
e l
Documsnt No. 118 Cities' Response to Board Questions, Attachment 6
() Cited in Florida Cities' Response to Board Questions, Aug. 7, 1981, at: 19, n.1.
Description:
Florida Cities v. Florida Power & Lioht Company, FERC Docket No. EL78-4, " Staff Investigation Report", April 7, 19'/8 Basis for Admissibility:
Rulo 803(8) - Public records and reports.
Determinativeness:
i These findings by the FERC Staff prove that FPL violated its tariff obligations and the Federal Power Act, by its refusal to sell wholesale power to Ft. Pierc e .
I r
l
- 118 -
l l
l O
I
Documsnt No. 119 Cities' Response to Board Questions, Attachment 7
() Cited in Flortda Cities' Response to Board Questions, Aug. 7, 1981, at: 48, n.1; 52, n.l.
Description:
Florida Power & Light Company, FERC Docket No. ER78-19 (Phase II), Excerpts of testimony of Robert J. Gardner as to FPL's willingness to file wholesale power rate for power at the bus bar, November 15, 1979 Basis for Admi6sibilityr Sworn testimony.
Determinati"aness:
This document proves that FPL, through its Vice President Robert Gardner, has committed itself to price wholesale power at bus bar.
i l
- 119 -
i O
I i
Document No. 120 Citiee' Response to Board Questicn1, Attachment 8 O-Related to Argument in Florida Cities' Response to Doard Questions, Aug. 7, 1981, at 18-24 in support of collateral estoppel.
Desc ription:
Florida Power 'A Light Company, FERC Docket No. Ef,3-19 (Phase I), and ER78-81, Exc erpt from " Application for Rehearing of Florida Power & Light Company," September 4, 1979.
Basis for Admissibility:
Rule 801(d)(2)(C) - Admission of a party-opponent through a statement made by a person authorir.ed to' make statements on the subject.
Rule 801(d)(2)(D) - Admission of a party-opponent by an agent or servant made within the scope of suployment and during the relationship.
Det.erminativeness :
Document No. 120 proves that FPL's defense against collateral estoppel of Opinion No. 57, that it did not have a full and fair opportunity to litigate the issues, should be rejected here because that claim was raised before the FERC in FPL's application for rehearing, and was rejected.
Refutes FPL Contention, asserted in Response of FPL, Aug. 7, 1981:
, That FPL did not have a full and fair opportunity to litigate antitrust issues before the FERC (pp. 93-98).
- 120 -
l l
O
Documant No. 121 Cities' Response to Board Questions, Attachment 9
) Cited in Florida Cities' Response to Board Questions, Aug. 7, 1981, at p. 39 (incorrectly cited as " Attachment 10").
Description:
Letter from Calvin R. Henze to William Lesnett dated July 3, 1979, transmittinc " Proposal for a Joint Transmission System in the S?. ate of Florida by the Florida Municipal Power Agency to the Technical Advisory Group of the Piorida Electric Power Coordinating Group" Basis for Admissibility:
Rule 803(24) - Documents having guarantees of trustworthiness.
Determinativeness:
This document proves that the Florida Municipal Power Agency has transmitted to the Florida Coordinating Group, of which FPL is a member, a propocal for a joint transmission aystem which would include transmission investments by Florida Cities.
i f
f
- 121 -
n U
l
Docum nt No. 122 Cities' Response to Board Questions, Attachment 10 Cited in Florida Cities' Response to Board Questions, Aug. 7, 1981, at: 7, n.l.; 39, n.1.
Desc ription t Excerpts from 1970 National Power Survey (Part II), Federal Power Commission.
Basis for Admissibility:
Rule 803(8) - Public records and reports.
Determinati venes ';
This document provos coordination in peninsular Florida among Power Corp., FPL, Tampa Electric, Jacksonville and Orlando.
'4
- 122 -
1 O
Documsnt No. 123 Cities' Response to Board Questions, Attachment 11 O Citea ia 11oriae citie - Re vo# e to soera ou tio# - ^ue. 7 1981, at: 47
Description:
Gulf States Utilities Company, FERC Docket No. ER76-816,
" Order Approving Settlement Subject to (.ondition", October 20, 1973 Basis for Admissibility:
Rule 803(8) - Public records and reporto.
Order of the F ederal Energy Regulatory Commission Determinativenesst This document proves that the FERC has held restrictions on resale of energy to be anticompetitive.
123 -
. ., s I
l i
l O
l Docum:nt Noc.124 and 125 ;
Cities' Response to Board Questions, Attachments 12 and 13
() Cited in Florida Cities' Response to Board Questions, Aug 1981, at: 29 7,
Desc ription:
Document 124: Florida Power & Light Company, FERC Docket Nos. ER78-19 and ER78-81, " Testimony of Dr.
Gordon Taylor (FERC Staff economic witness)",
March 24, 1978 Document 125 : */ Florida Power & Light Company, FERC Docket No.
ER78-19, " Exhibits cited in Opinion No. 57 (32 POR 4th 313 (1979))"
- 1. Exhibit GT-29 (Sl. Op. at 7, 28; 32 PUR 4th at 318, 332) re: FPL's refusing firm pewer to Homestead
- 2. 2xhibit GT-34 (Sl. Op. at 23; 32 PUR 4th at 329) re: FPL's attempt to acquire the Vero Beach system
- 3. Exhibit GT-52 (S1. Op. at 23; 32 PUR 4th at 329) re: FPL's attempt to acquire the Vero Beach system l 4. Exhibit GT-62 (Sl. Op. at 23; 32 PUR 4th at 329) re: FPL's attempt to acquire the l Vero Beach system Basis for Admissibility:
I Document No. 124: Sworn testimony.
Document No.125 : Has been relied on by FERC: Rule 803(24) -
Documents having guaranteec of trustworthiness.
Determinativeness:
Adds proof, if Opinion No. 57 is not determinative, of the facts found in that Opinion. These documents were relied on by FERC in reaching its decision in Opinion No. 57.
i */ Also included in Document No.125 were Exhibits GT-28 and l GT-22. Those inclusions were mistaken. Cities had intended to include Exhibit 28 (REB-AX) and Exhibit 22.
( - 124 - 125 -
l
I O
l l
l i
\
APPENDIX D
, Excerpts from deposition of Robert H. Fite, FPL President and l General Manager, taken December 4, 1972, in Gainesville Utilities l Department and City of Gainesville v. FPL, M.D. Fla. Docket No.
68-305-Civ-J, re: FPL offers to acquire Homestead in 1967.
l l
i i
O l
\
r !!
n i o o 1 !- IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DIST"sICT OF FLORIDA -
2" JACRSONVILLE DIVISION -
f u
!! 3 11 i .t ,
o e '
. GAINESVILLE UTILITIES DEPARTMENT '
6 and CITY OF GAINESVILLE, FLORIDA, t
'3 g Plaintiffs, .
- r
/ 7 ? vs . '
f No. 68-305-Civ-J -
5 '
FLORIDA POWER CORPORATION and i LORIDA P04~E.R AND LIGHT COMP ANY, '
~
.: 9; '
i' Defendants.
10 ;' .
t
. 9 11 ' .
10 i .
13 l
'I ii * *
. s, , .
16 16 p DEPOSITION OF: ,
ROBERT H. FITE 17 TAKEN: Pursuant to notice by counsel for C plaintiffs 13 DATE: December 4,.1972 19 :.
. PLACE: Florida Power and Light Office 20h Miami, Florida *
, 21 TIME:
9:20 o' clock a.m.
22 BEFORE: Gerald N. Eichar, Jr.
ll Notary Public 23 .. State of Florida at Large 24 ..
t.zz A.:c N;;ooz .rx, :: :.
C E "3 * ' r i g : 3 - ? 4 *" M A '. O M E ' A' E M 8". M ' 3 % : ! 1. A . 5 . :' "3
- 4. 3s. v_.** # Jiu .
_._ __. , . _ . ~ . _ _ _ _ , _ _ - . _ _ , _ _ , _ _
1 i
i 1 And then in 1941 I went down to Washington, 2 D. C. and opened an. office for,Ebasco Services, l
! 3 Incorporated and in charge of that office until 1945, i O
4 r.t which time I returned to Florida Power and Light :
1 5
Company as vice-president.
S 6 I was made president in 1954 and was president 7
of the company for 15 years. That will take you to l8 i
'69, and I became vice-chairman of the board and I 9 reached that magic age when you have to retire in May l10 of 1972. ,
II Q When you were vice-president, were your I2 responsibilities or duties limited to any specific 1 f
I3
', area? i 14 A Generally. limited at first to commercial I
i is activities and rates and matters that had to do with .
16 the public and the public relations and.the regulatory ,
i II end of the business. i l
18 Subsequently I was made vice-president and 19 date that was --
l general manager -- I've forgotten what o 20 and I was second in command in all matters in the 21 MacGregor Smith, who was then president, was company.
22 chief executive officer.
. .; 23l Q Mr. Fite, as you probably know, this lawsuit I
~
o4
~
has its roots in an attempt by the City of Gainesville ,
to inter-connect with other utilities.
h 25 7
LEE ANo NICoDEMUS, INC.
CERTIFIED $HORTh AND REPCRTERS FIRST F EDEN AL BUILDING ,
T AMP A, FLORID A 33602 .,
a ,li
'l !! i e
]I ;l 1,
j lot of cubs.s.dy and is a lot of subsidy it , l, t ii - 11 supported by taxpayers and, then, as a '
- , 11 :
j
- i; part of that whole movement, our opinion
- ( F hy 4y was that the companies, particularly ,
i P
j 5 !i;; Florida Pouer and Light, had aided in the
'I 6 'n '
- l subsidy by taking a lower rate than was n
7 ['!.,
economic and it didn't carry its share 6'
4, of the cost as compared to what the other l,
j 3l. l classification of rates' carried, and so
., a 10
, a we didn't want to spread that to a t l 11.;
municipal opera. tion which, in reality, 7, i g is a bus ~fness operation. It's one that 13 '
q , is certainly not in the category of a i
14
- s. n non profit activity. 'It's a proprietary I 15 business. It's a -- that's'the best way i s1
, I can express it. I think that's what I
!! that word means. Did I use the right word, Mr. Scott?
i 19 "
l i j MR. SCOTT: I think so.
8
'O
~ '
,, g BY MR. SCOTT:
~ll!
a Q Do you know, his to rica,1ly , how the Homestead no i mun.3.cipal system started?
03
~ , .n! A No.
o['4
- Q The next paragraph of your memorandum indicates
(}, tha't- ycu dl.: poin:sd cut to d 'em2scend "that an incer-30 LEZ AN D N'iCO c E*.'3. li .C.
Ct = *i- I: 5-:a - - TI- z < t .
ra,.:..... -
.m. ' . .. . .
n 3 H H
.O i: h
![ change careement may be moie desirable to the City than n ,, s
- ii ti a wholesale contract." Why was that true? '
3 i A I don't remember..
Q The next sentence says "We emphasized again
] 4 ll
,j t j that purchase of the Homestead facilities, or lease of
- I 63themshouldbeconsideredalso."
- t A Where is that? ,
': !: /
i' 8
- i Q That's.the second sentence in the last ji 't
.g paragraph, page two.
- I 10 j
p A Yes. ,
1 a 11 14 Q Do I understand,then, from this memorandum, 1,, d from your summary'of the meeting, that the proposal to
- 13 '
- p purchase or lease the Homestead facilities came from the i "
!; " n Power and Light representatives?
h a i, 15 ' ,. A Yes.
>; .I 16 Your sente,nce says "We emphasized again." Had Q
I
- i h the subject come up earlier?
18
. .. A Ch, yes. .
S 'n 19 ':
a Q Do you recall where the impetus of the proposal l
., 90 to lease or purchase the' Homestead system came from on
~
0
- 1'
~
the earlier occasions?
22 j -A Yes. 9 st originated with the Florida Power
- 23) and Light Company, sanerally speaking.
Now, let me see. Thinking back, again, maybe 9 4a a
1 chink one of the fi=st
~
that ts= c exacely t=ue.
O.
31 ,
LEE AND NICooE!.1US. INO.
CI.*Tirit: 3-ca?-4< #48 M7285 8 86* *t:Ede:. t...- *J 7244A,p ,;2, f , , , + ,
a n ,
li 't ,
1 ll 1 ;I! efforts in connection with loacing or purchasing
.. c ti e o y - h Homestead actually came from Homestead. I didn't :
s e- II II :
" participate in it to any great extent. MacGregor Smith
([) 1
!j 4ildid, and it came, I believe, from this fellow who e name
!! H il 5 is in this memo here, Turner,
'- ~
j * !'; Q City Attorney of Homestead?
9 i.
) 7l A Yes. So I'll have to retract what I said j 8;;there at the beginning about the company being the
- i 9 ..
l' 3 originator. I think it.really came from Homestead or i F 10 "
i, . rather fron Mr. Turner. -
ijllli Eaar in mind that was prior to all this
.i to -
~
',' negotiation that tock place as described in this letter.
13/ Q Well, now, as your memory appears to be coming i i , .
! 14 back about some of these things, does it help you to 15
. recall what happened later about the wholesale contract?
l' :! A No, sir..
?
l l_' t q ,, Q Do you recall any subsequent discussions at 18 all about whether Power and Light -- this is in 1967 --
19 any subsequent discussions about whether Power and Light n
J 90r 0, wculd serve Homestead at wholesale?
i 01 A No, I don't recall any more about it in detail.
n,
,: Our Mr. Gene Autrey took over these negotiations and I 23 withdrew pretty much from them as time went on after 24-this period.
Q T.c: really do call Mr. Autrey Gene? ,
32
, L E I A N o NI C o o I.'.:U I t i.M c .
c =-,eis:s.:< -a : (ts- ?: s s n:- ' -. . .
..1 c. a : - - -
n ,,
'i i .
- i
- " ii
- 1dc A We also have a Betty Crocker that works for us, it ,h '
- ! O too. .
l -
ll 3 -l Yes, I noticed that.
Q
() lj h4 Il Mr. Fite, are you aware that a written p
II i
i 5 :"i territorial agreement was subsequently made with the
~
l!
]63CityofHomestead? '
,s a '
j 7o
.n :
.4, A That's my understanding; yes, sir.
ll g Q Lid you also. note that it was filed for i
li 9 .i ll .! approval with the Florida Public Service Commisrion?
!.! V 10 '
[ :l A Yes. , ,
ll 112. Q Have you ever participated in the development
' 10 "
of the reasons to give the Public Service C;cmission for
'3
, ' .; approving territorial agreements; that is.for finding g h a
14 I chem to'be in .he t public interest?
- . i..
1 15 : , A My memory is very hazy about it. I can't
. s 16 recall any details at all; no, sir.
- i. IIji h Q I think it has already been developed in these 18 i
depositions Mr. Fuqua has testified at a number of these 19 proceedings before the Public Service Commission as to 20f the reasons for approving the agreements.
21 j Have you ever discussed it with Mr. Fu s ua or
- on
'! - ;i been consulted by Mr. Fuqua as to what reasons should n ,
o3 j j, be gi 3en to the Public Service Commission for approving 24 ' a territorial agreement?
A 1 O L.{. ' t I;OGmber Cnything in detailj no, Ulr.
33 lI LEE ANo NiCCCEMU3. ImC.
OZw?triC sac 4 * = 4 . asv:9* e5
ei ?t: .... .
= s .1, tr e :
O APPENDIX E f
Excerpts from Direct Testimony of J.L. Howard, FPL Chief Financial Officer, filed on behalf of FPL in FERC Docket No.
ER81-588-000, on July 2, 1981, re: benefits to FPL from coordinated activities with other utilities.
E o
O
. ._ - . . .~ __ _. - - .
~
FEDERAL ENERGY REGULATORY COMMISSION DOCKET NO.
DIRECT TESTIMONY OF
- 3. L. HOWARD ON SEHALF OF FLORIDA POWER & LIGHT COMPANY 1 Q Please state your name and business address.
2 3 A Joe L. Howard,9250 West Flagler Street, Miami, Florida.
g . .
5 Q , By whom are you employed and in what capacity?
~
6 7 A I am Vice President-Treasurer and Chief Financial Officer for 8 Florida Power & Light Company (FPL).
9
- 10 Q Mr. Howard, will you pleash desbribe your educational in L1 background and experience?
4" 12 - - - - - - - -
13 A I received a bachelor of science degree in economics from 14 Texas Technological University at Lubbock, Texas in 1963, and 15 a master of business administration degree from the same 16 school in 1968.
17 18 I joined FPL in 1973 as a Senior Financial Analyst. I l
19 subsequently held the position of Manager of Financial 20 Planning, Assistant Treasurer and Treasurer before being 21 appointed Chief Financial Officer in 1979. Prior to joining l 22 FPL, I held various positions in the Finance Department of -
23 Northern Natural Gas Company in Omaha, Nebraska.
24 l 25 Q What are your current responsibilities?
l 26 27 A In addition to being Chief Financial Officer, I am directly l 20 responsible for all the Company's banking and financing l 29 activities. This includes planning and securing through 30 negotiation er competitive bidding all long-term and short-31 term financing for the Company. The need to raise substantial 32 amounts of new money each year requires me to have 33 numerous contacts witn investors and members of the 34 financial community. I am also responsible for investor 35 relations, economic evaluations and management of the assets 36 of the employee benefit plans.
N l
1 an additional $200 million of CWIP in rate base in the form of 2 an adjustment in 1982, 3
O 4 5
We have entered into arrangements with the Southern Company and with the Tampa Electric Company (TECO) to 6 purchase coal-fired capacity and energy to replace more 7 expensive oil-fired capacity on our system. These purchases 8 will allow us to postpone the construction of units which we 9 would otherwise have to build to meet system demands. Along 10 with other utilities in Florida, ve are participating in economy 11 energy transactions in order to efficiently use the lowest cost 12 power. We have undertaken many energy conservation 13 programs and have impraved the operating efficiency at a 14 number of our generating plants so as to reduce both present 15 operating expenses and construction costs. These and other 16 steps being taken will be di<maed in more detail later in my 17 testimony.
18 19 Despite these steps, the Company's financial condition has 20 deteriorated to seriously low levels. We must continue our 21 . construction progr?.m to meet demands on our system. CWIP
.. 22 in rate base is absolutely essential if we are to do so.
23 24 Q Please summarize how CWIP in rate base will help alleviate 25 FPL's financial hardship. '
26 '
s 27 A If CWIP is allowed in rate base, we would expect our cash flow f 28 situation to improve significantly. With more internal cash 29 generaticn, less external financing will be required, thereby 30 helping to hold down embedded capital cost rates. AFUDC as 31 a percentage of earnings would be expected to decline to a 32 reasonable level.
33 34 While such improvernents would not suddenly cure the 35 Compan/s deteriorating financial condition, they would help 36 alleviate our present situation. In the absence of CWIP in rate 37 base, FPL's financial condition is expected to deteriorate still 38 further, placing our entire construction program in jeopardy.
39 40 Q Are you sponsoring einibits which you have prepared or caused ,
41 to be prepared under your supervision, direction and control?
._ 42 43 A Yes. My first exhibit, designated as Exhibit (3LSI),
44 consists of 10 dccuments which I will use in connection with 45 certain points I will discuss ir. my direct: testimony. My 46 exhibits designated as Exhibit _
(3LS2) through 47 Exhibit (3L S 5) will include the required 48 Statements AC, AN, AV and AW for Period 1. My other 49 exhibits, designated as Exhibit (3LS6) through 50 Exhibit (3LS9), will include the required
$1 Statements AC, AN, AV and AW for Period II.
1 Q Has the establishment of Land Resources Investment Company 2 (LRIC) increased financing flexibility and enabled the 3 Company to obtain lower cost financing?
O 4 5 A Yes. LRIC, a wholly-owned subsidiarv, was established in 1974 6 to obtain conventional real esc .e financing on certain 7 oroper+y. LRIC allows us to finance a higher percentage of 3 the investment than is allowed under FPL's Mortgage and Deed 9 of Trust. The interest rates on this type of financing can be 10 lower than those on our mortgage bond financing. ,
~
11 12 Q What measures has FPL taken to ensure efficient management 13 and control of your construction program costs?
y~
14 15 A In addition to the use of expenditure monitoring and control
~
16 programs and rfstems, FPL takes an active role by assuming 17 direct control over several of the functions necessary on major 18 construction projects. The goal of our efforts is to assure 19 ~. ourselves at each step and for each activity that we are 20 minimizing the total cost of construction, which is to the 21 ultimate advantage of our customers. We continuously look 22 for ways to reduce construction costs and to improve the 23 reliability and economic operation of our units. We believe 24 that nur efforts are among the most progressive and 25 innovative within the electric utility industry and that .our 26 customers will benefit in both the near-term and long-term'.
27 v 28 Q Would you discuss how the Company has participated in 29 economy interchange in order to efficiently use the lowest 30 cost power?
31 '
32 A PTL participates in an Energy Broker program to identify non-33 firm short term eenomy transactions made available by the .
34 utilities of the Fior% Electric Power Coordinating Group Inc.
35 (FCG). The Energy Broker program is a coordinated effort by 36 FPL and 14 other generating utilities that allows participants 37 to exchange electricity for the immediate benefit of the 38 customer. This program has increased the level of activity of 39 economy energy transactions in Florida and has saved FPL 40 customers approximately $10.5 million in 1980. Other 41 interchange transactions with the Southern Companies during 42 the same period have brought the total 1980 savings to our 43 customers to approximately $19.5 million.
44 45 Q What operational procedures has FPL established to operate 46 more efficiently and economically?
47 48 A We have developed unique methods for operating more 49 efficiently. For example, we have implemented a new
- 50 operating procedure, known as sliding pressure operation, at 51 fifteen of our large fossil steam units. This procedure, which 52 allows power plant control center operators to reduce boiler
- 53 steam pressure during low demand periods, has resulted in
1 more highly cerrosive-resistant alloys have become available 2 as condenser tubing. These alloys should provide extremely 3 good condenser integrity, which would improve overall unit availability and reliability.
Q 4 6 Q Can you describe other availability improving ac*1vities?
7 3 A Another availability improving feature adopted by FPL h that 9 of maintaining spare components for critical eculpment to 10 reduce outage time. New tooling and material such as reactor 11 coolant pump tooling, turbine overhaul equipment and 12 troubleshooting instrumentation have all been purchased for l ,
13 expediting outage time.
14 15 As previously discussed, we have already realized 16 improvements in availability of both our raclear and fossil 17 units as a result of these activities.
18 19 Q What else are you doing to keep your present genera:lon
~
20 available?
21
.. ' 22 A ' FPL is spending mere money than ever before on maintenance 23 expenses in order to improve availability. Because of the age 24 of the equipment in our system, we can foresee increasing 25 maintenance expenses. However, we- feel that extending the 26 operating life of existing plants with additional maintenance 27 expenditures is more prudent than the much more costly 28 - alternative of building new generation.
C) 29 30 Q What else has FPL done to defer the need for new plant 31 construction and also decrease dependence on oil.
32 33 A As I said earlier, FPL has contracted with TECO for *he 34 purchase of additional power of approximately 292 MW for 35 1985,208 MW for 1986 and 104 MW for 1987 from TECOs coal 36 fired Big Bend Unit No. 4. The cost to FPL customers under 37 this contract will be less than an equivalent amount of oil-38 generated power.
39 40 FPL and the Southern Companies have amended their existing 41 interchange contract and executed an additional contract for 42 increased coal-by-wire purchases. Under the terms of the 43 contracts, FPL will increase purchases from the 1981 level of 44 100 MW to a total of 300 MW by August 1982, upon completion 45 of the first 500 KV interconnection. Upon completion of the 46 second 500 KV interconnection, purchases will increase to 650 47 MW starting in 1983 and lasting through 1987. In 1983 total 48 purchases will increase to 1,000 MW and remain at this level 49 through 1992.
50 51 As a major benefit of importing coal generated power from 52 the Southern Companies, FPL may be able to defer p 53 construction of new generating plants. Completion of the two
~ 1 500 KV transmission lines between Florida and Georgia which 2 win be jointly owned with Jacksonville Electric Authority, in 3 addition to 240 KV transmission network expansion, will O 4 5
increase the Southern Companies firm transfer capability to Peninsular Florida from 400 MW to approximately 800 MW 6 with the first line and in excess of 1,000 MW with the second 7 line. An August 1982 in-service date is projected for the first 8 line and January 198? fer the second line.
9 10 These coal-generated purchases are expected to save FPL 11 approximately 7 million barreia of oil per year starting in 1983 12 and 13 million barrels of oil per year after 1987, depending on
~ 13 unit availability in the Southern Company system. Moreover, ,
s '- 14 based on construction costs, it is anticipated that the total
- 15 cost of the Florida portion of the 500 KV interconnections, 16 including substation and right-of-way costs, would be sated in i 17 approx!mately 1-2 years, as a result of avoided fuel costs.
18 19 . In addition to increased purchases from the Southern 20 Companies beginning in 1981, other sources of firm coal power 21 are under consideration for purchase. FPL is investigating 22 unit power purchases of up to 600 MW from the Seminole 23 Electric Cooperative 1,200 MW coal plant in Putnam County, 24 scheduled for 1985, and 100 MW from the Orlando Utilities 25 Commission 1,200 MW coal plant, scheduled for 1986. . , ,,
26 27 Another effort by FPL to replace oil with coal-power is the
- 28 joint venture with the Jacksonville Electric Authority (3EA) to 29 build two coal-fired units. FPL will own a portion of these t 30 units and.will have a firm power purchase contract for another
- 31 portion, for a total of one-half the output of the two units or 32 about 550 MW. Present projections are for in service dates of 33 1985 for the first unit and 1987 for the second.
I 34 35 Q Mr. Howard, you indicated that tpe Company has undertaken 36 conservation and load management programs designed to 37 minimize the need to build ne y generation. What is FPL's role 38 in energy conservation?
39 40 A We are intensely committed to energy conservation and have 41 allocated substantial resources to this endeavor. FPL 42 recognizes the importance of energy conservation in 43 prolonging the life expectancy of existing energy sources while 44 future energy alternatives are under development. We also 45 know that implementation of certain energy conservation 46 strategies will enable us to defer expensive new construction 47 projects.
48 49 We believe our conservation program to be the most 50 comprehensive energy conservation plan in Florida and perhaps 51 even the nation. In January 1978, FPL initiated a major 52 management action to intensify and broaden its energy
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EXHIBIT (EJT-8)
StatemenTDC Period II Page 1 of 9 FLORIDA POWER & LIGHT COMPANY AND SUBSIDIARIES 1 GeneraMon Reliability 2 A public utility must make every effort to provide sufficient capacity to meet the 3 load imposed on its system said assure tae reliability of the power supply. For planning 4 purposes, FPL utilizes both " reserve margin" and " Loss of Load Probability" (LOLP), as 5 measuring indices of reliability. Reserva margin is defined as the amount of installed 6 generating capacity over and above the forecasted load level This value is normally 7 expressey as a percent of the anraal peak demand. The LOLP is a probabilistic index that 8 represents the expectation of having insufficient generating capacity available to serve 9 the load. This number is usually expressed in terms of " days per year" that the load 10 cannot be served. It should be noted that these indices are not independent of one il another, because as the reserve margins increase, the LOLP decreases, and conversely, as
/ 12 the reserve margin deacses the LOLP increases.
w- 13 14 FPL currently and in the past four years has used a reserve margm of 20-25% as a 15 guideline for generation planning purposes. If the reserve falls below this level, the risk 16 of service interruptions increases to unacceptable levels. Consequently, additional 17 generating resources must be installed or purchased to restore reserves to acceptable 18 levels.
l 19 20 Iitterconnections are also considered in determining generation relie.bility since they
,p 21 have the same effect as increasing the amount of generation available to a company.
l v 22 Florida Power & Light Company is interconnected with nine other generating electric 23 systems of the Florida Electric Power Coordinating Group, Inc. through electrical 24 transmis::fon lines. Because of these interconnections, Florida Power & Light Company 25 has been able to maintain lower generating reserves while c.t the same time maintaining 26 an equivalent level of reliability for its customers. In addition, FPL has been 27 interconnected with Georgia Power since December 1979, thus adding support to FPL's 28 system.
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APPENDIX F Florida Electric Power Coordination Group, Agreement (unsigned),
Effective October 1, 1972; and Letter, from Robert H. Fite, President and General Manager, FPL, to W.C. MacInnes, President, Tampa Electric Company, proposing formation of a Florida operating committee, October 2, 1958.
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FLORIDA ELECTRIC POWER COORDINATING GROUP AGREEMENT Effective October 1,1972 l
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CONTENTS Artido Page 1 Na m e a nd Stru ctu .1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 Purpose of Organization ........................................ 1 3 Membership ................................................. 1 l
4 O rganizatio n . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 .
5 Expense...................................................... 3 .
6 Term........................................................ 3 A p p e n dix . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 l
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O AGaeeManT. effective as of Octeeer i. is72. eeiween 18e eteCTaiC SvSreMS shown in (q
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Appendix 1, hereafter refericd to separately as a Membc- System, collectively as Member Systems.
WITNESSETH: -
Each Member System is concerned witn the reliability and economy of bulk power supply in the area in which it serves.
ARTICLE 1 NAME AND STRUCTURE 1.01 This organization shall be known as the Florida Electric Power Coordinating Group (FCG).
1.02 An Executive Committee shall conduct the affairs of FCG as directed by the general membership.
1.03 There shall be a standing committee known as the Florida Operating Committee charged with the responsibility of actively coordinating the planning, construction and utilization of generatica and transmission facilities in Florida. The Florida Operating Committee shall establish subcommittees and task forces as required.
1.04 There shall be a standing committee known as the Environmental Committee charged with the responsibility of actively pursuing environmental matters affecting the plannirig, con-struction and utilization of generation and transmission facilities in Florida. The Environmental Committee shall establish necommittees and task forces as required.
1.05 Other committees, subcommittees ud task forces shall be established by FCG as required to accorrplish its purposes.
ARTICLE 2 PURPOSE OF ORGANIZATION I
1 1 2.01 The purpose cf FCG is to assure an adequate and reliable electric power supply in Florida at the lowest possib:e cost consistent with economic factors and environmental standards estab-lished in the public interest. To this end, FCG will:
l (a) through its several committees and member systems engage in active coordination of l planning, construction and utilization of generation and transmission facilitiesin Florida; (b) serve as electric industry liaison with appropriate governmental bodies; (c) invite appropriate governmental bodies to participcte in meetings of FCG as required.
ARTICLE 3 MEMBERSHIP 3.01 Florida Electric Power Coordinating Group Any electric system operating facilities in Florida for service to the public shall be eligible for membership in FCG.
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') ?.02 Florida Operating Committee Any generating electric system member of FCG having an installed generating capacity of 75 mw net, or more, may be represented on the Florids Operating
] Committee.
In addition, one representative from each of the following categories of electric systems, (s) municipal and other government owned systems not qualifying ab'ove, and (b) rural electric cooperative systems not qualifying above, _
will be selected by the systems involved to be a member of the Flori'da Operating Committee.
Any member of FCG may attend meetings of the Florida Operating Committee as an observer.
3.03 Environmental Committee Any member of FCG may be represented on the Environ-mental Committee.
3.04 Other Committees FCG will choose from its membership ano designate members as required.
ARTICLE 4 ORGANIZATION 4.01 The affairs of FCG shall be administered by a representative of each Member System.
The representative shall be the principal operating officer of the Member System; however, he may designate any other bona fide, full time employee of the Member System as a representative.
4.02 A representative may designate an alternate to represent him at any meeting. Such alternate shall also be a bona fide, full time employee of that Member System.
4.03 in any matter on which a vote of FCG membership is necessary election of officer administrative budgets, and other administrative matters (except as limited by Paragraph 5.03 below) each Member Systemshall have one vote, plus one additional vote for each 100 mw by which its net 60-minute peak load in the preceding calendar year exceeded 100 mw, provided, however, that no Member System shall have more than 40 votes.
A simple majority of tctal FCG votes shall be sufficient to adopt any proposal before FCG, provided, however, that at least ten Member Systems must vote in the maj,ority to carry an issue.
Member Systems may not vote by proxy. A quorum shall bc required for votmg on any proposal, and such quorum shall be deemed to be present when there ere representatives or alternates present havmg a total of two-thirds of the total votes of FCG.
4.04 Regular meetings of FCG shall be held on the first Thursday of May and Alovember in I each year, except that these dates may be changed at the discretion of the Executive Committee.
! Special meetings may be called by the Executive Committee upon request of two or more members, and with at least ten days written notice to each of the Member Systems. As far in advance of each meeting as practical, an agenda therefor shall be distributed to the Member Systems.
I 4.05 Annually, after 1972, at the November meeting, the members of FCG shall elect the following officers to serve on a calendar year basis,(except that the first term shall extend from July 12,1972 to January 1,1974): Chairman, Vice Chairman, and Secretary-Treasurer.
4.06 To permit the closing of business one month prior to the November meeting, FCG shall use the period October 1 - September 30, as its fiscal year.
4.07 FCG shall provide for a Maff, including a Manager, to carry out the objectives of the '
organization, it may be necessary to occasionally employ professional assistance.
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3 d 4.08 The Executive Ccmmittee shall consist of the Ch' airman, the Vice Chairman, the l f' Secretary Treasurer, the immediate past Chairman, and three additional FCG mernbers who are to x be appomted by the Chairman, (except that for the first term there shall be four additional FCG .
members appomted). Each segment of FCG membership (investor-owned, municipal, rural l electric cooperative) shall have representation on the Executive Committee at all times. The Manager shall serve on the Executive Committee as an ex-officio member.
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4.09 The Chairman shall conduct all FCG meetings and shall be responsible for the preparation .
of the agenda therefor. In his absence, the Vice Chairman shah :erve in his place. In the absence ,.
of both the Chairman and Vice Chairman, the immediate pit Chairmn shall serve.
i 4.10 The Secretary Treasurer shall distribute the agenda of meetir.gs; prepare and distribute l the minutes thereof; and receive and disburse the fur..;s of FCG,in accordance with the authorized I annual budget.
l 4.11 FCG shall, within the scope of Artiris 2, periodically review matters affecting the reliability of bulk power supply.
ARTICLE 5 EXPENSE 5.01 The expenses of each member of FCG,its committees, subcommittees, and task forces, shall be borne by the party by whom he is regularly employed. Administrative expenses of FCG itself, including the salary of the Manager, will be authorized by FCG through the adoption of an annual budget. Such administrative expenses shall be shared in proportion to voting rights of the Member Systems, and shall be billed in advance.
5.02 The expenses associated with the functioning of thevarious committees, subcommittees, and task forces, including administrative expenses, professional tervices and special studies, will be shared equitably, according to benefits derived, by those systems participating in the activities of the specific committee.
l 5.03 The Florida Electric Power Coordinating Group, its Executive Committee, other committees, subcommittees, and task forces, have no power to bind any Member System for payment of any sum of money for any project or action, other than administrative costs and staff salaries, without approval of the Member System.
ARTICLE 6 i
TERM l
6.01 This Agreement shall continue until terminated by agreement of the parties on the basis of the sating procedare as provided in Paragraph 4.03 above, but any party to this Agreement may cease to be such by giving the others at least six months written notice of its intention. Any such party shall nevertheless continue to be liable for any obligation it may have had to pay a share of the expenses of FCG incurred prior to the end of the fiscal year in which such notice is given.
IN WITNESS WHEREOF, the parties listed in Appendix 1 have caused this Agreement to be duly adopted by individual letters of endorsement. Appendix 1 will be updated by the Secretary-Treasurer and distributed to the members of FCG as changes in membership occur.
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0 0 FLORIDA ELECTRIC POWER COORDINATING GROUP O AGREEMENT EFFECTIVE OCTOBER 1,1972 APPENDIX 1 n-Name of Organization Endorsement my Data l
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c= fir 1=g our discussion of yesterday, I a= vri-' g to suggest hat sc=ecne f c= each of the -' ee panias. Ta==a, Florida Power -
and Ficrida ?cwer & 'ight =cet, fec= ti.=e to i=a, to discuss the interec :ected operation of the a.v.s s=s of the '"_ee ec=panies and
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Cooperstic: in the past has been splendid but, as we discussed
.v e s t a:da.v ea ch cc=.can.v could undoubtedi.v benefit fu. ther if we had a= estah'ished inic al ec ' ttee -lst could call a saeting when necessary to cit down and d.iacuss the varica.4 =atters e._ich arise
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After leaving your effice yests: day, I visited with Bill clapp and he, 11'c.e cu selves, thought that such a ec-' ttee would be a gecd s .,
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c=ul'. ::=4 c w.: and s. ecd a2 =uch ti=a a.s requ. ired en that d.ata .
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laave tha i: you .wo no dacida, prevedis Please '. a : =e k=cv if thaso plans are O.K. We the dato is satisfac:=:f.
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Jamary 20, 1959 Mr. J. D. Hicks, Tampa Electric Company, Ta=pa, Horida Mr. Lester Ulm, Jr., Ta=pa neetric Company, Tampa, Florida Mr. W. B. Sbonds, norida Power Corporation,. St. Petersburg, Morida Mr. A. P. Perez, norida Pcuer Corporation, St. Petenburg, Florida Mr. H. V. Street, Florida Power & Light Company, Miami, norida .
The first =eeting of the Comittee vill be held in the Operations
' Building of norida Pcuer Corporation, St. Petersburg, Ja=uary 23rd, -
at 10 a.m.
The following agenda has been sugges,ted: .
- 1. Coordination of overhaul schedules and outages for -
natural gas conysrsicn.
- 2. Communications'- discussion of the desirability and -
economics of 14*4rg the dispatching offices in Miami,
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St. Petersburg and Ta=pa with a permanent voice chamiel.
- 3. Interchange of reactive between FPC and TEC on east side
, of TE:C's system and the effect on the two syste=s.
, '4. Interchange of power between FPL and FFC at Live Cak and Sanford and the effect on the two syste=s. ,
- 5. In etunection with proble=s such as Ite=s 3 and 4 above, it vill be desirable to set up simple log sheets for the
' three companies so that si n1taneous check readings can
, ,be periodically recorded at the request of the Co=mittee
'. for study and analysis. .
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- 6. Name for the Co=mittee. .
- 7. Any other L,.1=iness.
The fomation of this Cor:=ittee vill offer many opportunities for the three ecmpanies to benefit collective 1v and individually. Please thre/ on the table any matter that you believe should be considered.
ldul V H. W. Page ". ,
Chaim.an .
5.'P/ess
\ , Five copics to each addressee '
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M l-59 February le n.
e FLCR7DA 0?r.?ATII:S CO'f'IT~!E
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? Qj Minute *: of Mnetinc 9 January 23, 1959 s
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- The first =eeting of the Florida Operating Cc-4 ttee was held
- in the 0;erations burg, Florida, January Building of Florida Fever Corporatics, St. Peters-23, 1959, 10 a.=. to 4
- 30 p.=. "[
Present: Fr. J. D. Hicks )
Fr. Lester Uh , Jr. ) Ta=pa Electric Cc=pany a Fe. H. A. Moshell, Jr.) .
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- Fr. A. P. Ferez )
j Fr. W. 3. Si=onds )
Mr. J. T. Logan ) Florida Poi:ar Corporation Mr. C. C. Rousseau )
Mr. R. B. Lee ) )
Fr. H. W. Page )
V:. H. V. Street) Florida Fever & Light Cenpany the recting:Following is a brief record of the discussions and results of
- 1. The Chair-presented a tentative overhaul schedule based OVI"2A UL cn the previcusly reported pla=s of the three ec panies. SCHEDULIS There vere several conflicts involving large units of all three companies.
It was agrsed that these cculd be re- l solved by shifting the dates allott,ed to several FPL and TEC units. Mr. M:shell agreed to forward revised dates . i for his cc pany; a=d on receipt, the coordinated schedules '
are to be printed and dictributed.
2.
A prop: sal by FPL to link the dispatching offices at Tampa. DIFICT St. Petersburg and Mia=1, with a pe=anent vcice channel CO:MINICATION vas discussed at sc:a length.
FPL has a leased line frc= EE'NEEN TAFFA Mia=1 to Punta Gorda, and this line could be extended to ST.PETE"SSL?G pick up the Sarasota area of FPL and then en to the Ta=pa AND MIAMI St. Petersburg area, with each cc=pany paying for mileage etc. in its cvn territory. Mr. Page presented esti=stea costs for such a line, as well as experience data for acts 600 miles of leesed vire used by FPL. There was seco discussion as to the possibility of TEC and FPC using existing =ic:cuave facilities as cart of the link. It was l agreed that =any operating cdvantitges vould result frc=
having dependable ec: unications between the thrce dis-patching offices, but the natter vas lef t withcut ree:=-
. tendation, pending further invectice.tien by TEC and FPC .
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