ML20040A415
| ML20040A415 | |
| Person / Time | |
|---|---|
| Site: | Saint Lucie  |
| Issue date: | 01/13/1982 |
| From: | Weinstein P PARSONS & WHITTEMORE |
| To: | Atomic Safety and Licensing Board Panel |
| References | |
| ISSUANCES-A, NUDOCS 8201210041 | |
| Download: ML20040A415 (26) | |
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UNITED STATES OF AMERICA 9
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BEFORE THE ATOMIC SAFETY AND LICENSING BOARD el 9./,
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- '*7 !k% 6 In the Matter of
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Docket No. 50-389A O '
FLORIDA POWER & LIGHT COMPANY )
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AMICUS CURIAE BRIEF AND PROPOSED LICENSE CONDITIONS SUBMITTED BY PARSONS & WHITTEMORE, INC. AND RESOURCES RECOVERY (DADE COUNTY), INC.
Peter D. Weinstein Vice President and General Counsel Parsons & Whittemore, Inc.
Suite 2300 200 Park Avenue New York, New York 10017 (212) 561-8013 Of Counsel:
Deanne C. Siemer Lynn Bregman ph[
Wilmer, Cutler & Pickering 1666 K Street, N.W.
Washington, D. C.
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(202) 872-6000 January 13, 1982 8201210 09T G
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UNITED STATES OF AMERICA m
NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BORub JAN 13 R2 :28 i
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In the Matter of
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Docket No. 50-389A FLORIDA POWER & LIGHT COMPANY )
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AMICUS CURIAE BRIEF AND PROPOSED LICENSE CONDITIONS SUBMITTED BY PARSONS & WHITTEMORE, INC. AND RESOURCES RECOVERY (DADE COUNTY), INC.
i Parsons & Whittemore, Inc. and Resources Recovery (Dade County), Inc., a wholly-owned subsidiary, (collectively referred to herein as "P&W") submit this brief and proposed license conditions, as amicus curiae, in accordance with the memoranda and orders of the Atomic Safety and Licensing Board
("the Board") dated August 5, 1981 and December 11, 1981.
P&W seeks recognition of the obligation of Florida Power & Light Company ("FP&L") to interconnect with and provide transmission services to P&W's resource recovery facility and proposes certain changes in the license conditions embodied in the Settlement Agreement in order to safeguard its position as a small power producer against the monopoly power of FP&L and to preserve for such producers the opportunity for free competition with FP&L.
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, A.
Standing as Amicus Curiae 1.
P&W and Its Facility Parsons & Whittemore, Inc. is a New York corporation engaged in a variety of domestic and international industrial activities including, through its subsidiaries, the generation and sale of electricity as a part of industrial processes.
Resources Recovery (Dade County), Inc. is a Delaware corporation and wholly-owned subsidiary of Parsons &
Whittemore, Inc. engaged primarily in the operation of a solid waste processing facility in Dade County, Florida.
This facility contains, as an integral part, an electric generating facility. /
1 1/
The facility was built by Parsons & Whittemore, at a cost of over $150 million, through Resources Recovery (Dade County) Construction Corporation, another of its wholly-owned subsidiaries.
Pursuant to a series of contracts between P&W and Dade County, the facility was to be purchased by the County and operated by P&W.
In addition, Dade County contracted with FP&L to sell it the electric generating portion of the facili~.y upon completion of construction of the facility, satisfactory testing and the County's payment of the purchase price to P&W.
Since construction of the facility, numerous contractual disputes between P&W and Dade County have arisen, and Dade County has refused to pay for the facility.
While P&W now owns and operates the facility, including the electric generating equipment, the parties' rights and obligations are being litigated in other proceedings (including arbitration) whose pendency and outcome are independent of and irrelevant to the remedial license conditions sought herein.
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a P&W's facility is capable of processing up to 18,000 tons of solid waste per week for conversion into fuel which is burned to raise steam and generate approximately 8-1/2 million kilowatt hours per week of electricity.
The facility is the first of its kind in Florida and, with a generation capacity of approximately 76 megawatts, the largest of its kind in the United States.
In March 1981, P&W notified the Federal Energy Regulatory Commission ("FERC") that its resource recovery plant qualifies as a "small power production facility" under the Public Utility Regulatory Policies Act of 1978 ("PURPA").
P&W then advised FP&L that it had filed such notification with FERC and that it wculd after 90 days begin sales of electric energy to FP&L. /
Shortly thereafter, P&W advised FP&L of its 3
2/
Public L. No.95-617.
See 16 U.S.C.
796(17)(A),
824a-3 (West Supp. 1981) and FERC Regulations, 18 C.F.R.
Part 292 (1980).
Such qualification -- which is available to any small power production facility (1) whose production capacity does not exceed 80 megawatts, (2) whose primary energy source is biomass, waste or renewable resources or any combination thereof, and (3) in which an electric power utility does not hold more than a 50% equity interest -- grants to the facility the right to sell its electrical output to a utility, to interconnect with the utility, to use the transmission services of the utility, and to buy from the utility, at retail, all the electrical power the facility needs.
See 16 U.S.C.
824a-3, 824i, 824j (West Supp. 1981); 18 C.F.R. Part 292 (1980).
3/
See P&W's Petition for Leave To Intervene and Request for Hearing, Apr.
7, 1981, Appendix A.
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desire "to explore competitive opportunities" as "an alternative to the exclusive sale of electrical energy to FP&L," and it asked F9&L to confirm that FP&L will transmit l
electricity on P&W's behalf to potential customers other than FP&L, as required by the antitrust laws and the proposed Settlement Agreement in this proceeding.4/
In the face of these requests, FP&L steadfastly j
refused to purchase any energy from P&W, to transmit electricity (" wheel") to others on P&W's behalf or to interconnect its transmission grid with P&W's facility, ostensibly on the ground that P&W lacks sufficient ownership of the facility as a result of its contractual disputes with Dade County to qualify it for the special treatment PURPA affords to 1
small power production facilities.
The Florida Public Service
]
Commission, the state agency to which FERC has delegated its 4
j authority to implement PURPA, has rejected P&W's arguments. /
5 1
i I
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See id., Appendix B.
1 5/
The Florida Public Service Commission, which has l
adopted FERC's definition of and standards relating to qualifying small power production facilities, unequivocally rejected FP&L's arguments in favor of concluding that P&W's facility is a " qualifying" facility entitled to the benefits conferred by PURPA, and it ordered FP&L to interconnect its transmission grid with P&W's facility.
See Florida Public 1
l Service Commission, Order Requiring Interconnecticn, Order No. 10481, Docket No. 810249-EU(MC), Dec. 20, 1981, a copy of which has been lodged with this agency.
The Public Service Commission's order has not been stayed, despite FP&L's efforts, and interconnection was accomplished on January 9, 1982, but the order is still subject to a pending appeal.
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. Denial of the only available outlet for the electricity P&W's facility could generate if run at capacity allows the facility to operate only intermittently and at a very low capacity, and deprives P&W of the revenue it needs to offset costs (including the $83,000 per day interest expense on its construction loans is saddled). /
6 with which it 2.
P&W's Participation and Interest in the Proceedings Herein In April 1981, P&W petitioned the Board for leave to intervene in these preceedings and for a limited antitrust hearing.
On August 5, 1981, the Board denied P&W's pat.ition, granting it instead permission to participate at thic stage of the proceedings as amicus curiae.
P&W's appeal from the order denying it leave to intervene and a hearing is pending.7/
6/
As noted, the facility has been able to operate at capacity since January 9, 1982, as a result of interconnection with FP&L's transmission grid, but the order pursuant to which FP&L unwillingly interconnected its grid with the facility has been appealed and is not yet final.
7/
P&W believes that the Board's decision was in error and that P&W's participation herein as amicus curiae does not adequately protect P&W's interests.
As amicus, P&W cannot engage in discovery, adduce evidence, cross-examine witnesses or otherwise participate meaningfully during the hearing on the merits, the most important phase of the proceeding.
Accordingly, P&W submits this brief again to seek from the Board relief to which it is entitled from FP&L, but its submission is intended to be without prejudice to its appeal from the order denying it a hearing and an opportunity to intervene.
. On December 11, 1981, this Board determined that the l
activities sought to be licensed by FP&L would create or maintain a " situation inconsistent with the antitrust laws" sufficient to require the imposition of remedial license conditions.8/
Among other things, the Board concluded that FP&L " owns 81 percent of the transmission lines" within the relevant markets, and that this sizeable ownership share gives FP&L "' strategic dominance' over transmission."9/
8/
This decision is consistent with the conclusions reached in other proceedings in which FP&L has been charged with anticompetitive behavior designed to preserve or enlarge its share of the electric energy business in Florida.
- See, e.g.,
Gainesville Utilities Dep't v. Florida Power & Light Co.,
573 F.2d 292 (5th Cir.) (en banc), cert. denied, 439 U.S.
966 (1978); Florida Power & Light Co., Opinion Nos. 57 and 57-A, 32 PUR 4th 313 (1979).
9/
Memorandum and Order Concerning Florida Cities' Sotion for Summary Disposition on the Merits, Dec. 11, 1981, at 19.
The four wheeling services made available by FP&L, the Board found, offer only " surplus transmission capacity on the as-available basis."
Id. at 25.
The Board further concluded, inter alia, that FP&L has " monopoly power in retail and bulk power markets" within the relevant geographic markets; that FP&L has "a significant edge in the production of low cost power for base-load requirements"; that FP&L has an advantage over municipal generating systems because of its long-term gas supply guarantees and the high operating costs and small capacity of municipal systems, which advantage is likely to cause FP&L's l
wholesale and retail monopoly to increase; that FP&L enjoys competitive advantages which flow from its joint activities with other utilities, including its interconnection with them and the joint development of transmission strategies; that FP&L engaged in an illegal conspiracy to divide the Florida electric energy market; and that FP&L has demonstrated considerable reluctance to engage in firm power transactions and has in the past refused to deal with municipal utilities.
Id.,
passim.
. P&W's small power production facility is capable of generating a substantial amount of electricity from refluse-derived fuel, an alternative source of energy whose production Congress has specifically sought to promote (see pp. 10-11,
_ infra).
The facility is one of the first and the largest such facility in the United States.
Its survival and the growth of the nascent small power production industry generally are dependent on overcoming the " strategic dominance" of utilities like FP&L and on obtaining access to the transmission services that make operation and sales possible.
It is in the public interest to enable small producers of energy from alternative sources, like P&W, to enter the electric energy market and to contribute to tha nation's overall energy independence.
B.
The License Conditions Proposed by P&W l.
FP&L Should Be Required To Interconnect with and Wheel Electricity for P&W P&W stands ready to produce and sell energy to customers in Florida in competition with FP&L.
Transmission capacity to reach potential purchasers, however, is a prerequisite to power transactions by P&W (as it is to any other similar energy-producing facility).
P&W is entitled, as a competitor (or potential competitor) of FP&L, to access to the transmission lines over which FP&L has monopoly control.10/
l 10/
As noted, P&W has qualified its facility as a small power production facility under PURPA, and the Florida Public
[ Footnote continued next page]
1
. l This agency should therefore condition the instant license on a requirement that FP&L allow P&W to enter the electric power market by making FP&L's transmission services available to P&W.
This may most simply and effectively be accomplished by including among the license conditions an express condition that FP&L interconnect its grid with P&W's facility and wheel power to others on P&W's behalf.
But P&W is entitled to FP&L's transmission services not only by virtue of its status as a competitor of FP&L, but also by virtue of its inclusion in the classes of " neighboring entities" and " qualifying small power production facilities" covered by the Settlement Agreement.
Yet FP&L has refused P&W the recognition to which it is entitled.11/
P&W should be
[ Footnote continued from preceding page]
Service Commission has found P&W entitled to the benefits available to qualifying facilities under PURPA.
But P&W's right to compete with FP&L does not depend on its status under PURPA.
Thus, even if, for example, the production capacity of the facility exceeded 80 megawatts (a factor which, by P&W's own admission, would exclude it from PURPA's definition of qualifying small power production facilities), P&W, as a potential competitor of FP&L, would still be entitled under the antitrust laws -- and should be entitled under the license conditions herein -- to access to potential customers by means of FP&L's monopoly transmission system.
11/
FP&L has taken the position that this agency is not qualified to determine whether P&W's facility is a " qualifying small power production facility."
The Director of the Office of Nuclear Reactor Regulation of the NRC was persuaded (wrongly, in our view) to avoid making such a determination and, having declined to decide P&W's qualifying status, it
[ Footnote continued next page]
1
j i afforded the same opportunities that the agency provides for i
other similarly-situated small power production facilities and neighboring entities, and FP&L should expressly be enjoined from refusing P&W recognition as such a facility or entity
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under the Settlement Agreement (as modified herein).
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2.
The Settlement Conditions Relating to Transmission Are Insufficient To Abate FP&L's Monopoly Section X of the Settlement Agreement properly recognizes that requiring FP&L to offer transmission services to competing facilities will tend to reduce FP&L's monopoly in the transmission of power and will encourage entry into the i
[ Footnote continued from preceding page]
denied P&W enforcement of the Settlement Agreement herein.
See Director's Decision Under 10 C.F.R. 2.206, Aug. 7, 1981.
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However, the Florida Public Service Commission, the l
expert state utility agency responsible for implementing PURPA, has now determined that P&W's facility is a " qualifying small power production facility" entitled to PURPA rights.
See n.5, supra.
Continued refusal to treat P&W's facility as a facility qualified under PURPA is therefore unwarranted; the facility should be recognized as a qualifying facility under the Settlement Agreement.
Moreover, interconnection with FP&L's grid, as has been accomplished pursuant to the Public Service Commission's order from which an appeal is now pending, subjects P&W "to regulation as a public utility" under state law (see settlement Agreement definition of " neighboring entity"), also rendering inapplicable the only obstacle to P&W's inclusion in the class of " neighboring entities" found by this agency.
See Director's Decision Under 10 C.F.R. 2.206, supra.
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relevant energy markets.
And it properly reflects Congress' intent, expressed in PURPA, to foster the growth of small producers of energy from alternative sources.
However, its l
complexity and ambiguity -- and the many loopholes it contains through which FP&L might escape its obligations -- render Section X insufficient to advance PURPA's purposes or to ensure the very competition that the Section was intended to promote.
PURPA was designed to encourage the growth of j
alternative energy sources, such as the recapture of energy l
produced as an industrial byproduct.
PURPA seeks to achieve this in part by singling out for special treatment small facilities that produce power in this way and guaranteeing them for the energy they generatc.- /
But it is only if 12 a market l
these small facilities can become commercially viable by l
obtaining access to the transmission facilities of monopolistic l
utilities -- like FP&L -- that are essential to their very operation that the purposes of PURPA can be realized.
4 1
Congress was well aware of this when it enacted PURPA.
It recognized that interconnection "has the potential I
for increasing the competition the utility faces for bulk power sales,"- /
13 but that " interconnection by itself will not 12/
See n.2, supra.
t 13/
S.
Rep. No. 442, 95th Cong., 1st Sess. 32 (1977).
For this reason, Congress noted, "a utility may be unwilling to 1
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[ Footnote continued next page]
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unless the 4
interconnected utility agrees or can be ordered to wheel 14/
J power."--
Requiring utilities to interconnect with and wheel i
i power for small power production facilities, Congress determined, "should enhance competition by greatly expanding the number of potential buyers and sellers of bulk power."15/
This agency should exercise its licensing authority
]
to complement, rather than conflict with, PURPA and its I
goals.16/
In this case, it can best do this by conditioning 1
FP&L's license on imposition on FP&L of a straightforward and unqualified obligation to make its monopoly transmission services available to small power producers upon request.
At the very least, the following objectionable features of Section X of the Settlement Agreement should be changed:
[ Footnote continued from preceding page]
interconnect even if it would enjoy some benefits from the interconnection."
Id.
14/
Id.
"Without interconnection and wheeling," Congress i
- noted, "a bulk power producer would only be able to buy electricity or sell electricity to the one utility to which the bulk buyer / seller was connected.
Similarly, a utility could only sell to or buy from those bulk power buyers and sellers that were directly interconnected with his system."
Id.
15/
Id.
16/
As this agency has recognized, its power to require tee provision of monopoly transmission services as a license 1
condition is not limited by the wheeling authority granted to I
FERC by PURPA.
Houston Lighting and Power Co. (South Texas Project, Units 1 and 2), 10 NRC 563, 576 (1979).
i
j First, the proviso in Section X(b) that "[n]othing in this license shall be construed to require Company [FP&L] to l
l wheel power and energy to or from a retail customer" should be eliminated or, at a minimum, modified to ensure that the term
" retail customer" may be interpreted to apply only to retail i
customers not in the business of generating electricity.
i This change is necessary because PURPA affords qualifying small j
power production facilities the right to buy electricity at retail from FP&L.
Should P&W exercise this right (as it may have to do to obtain backup power in emergency situations), an argument could be made that, under Section X(b), P&W is "a t
retail customer" from which FP&L has no duty to wheel.
Likewise, should a small power production facility to which P&W wishes to sell power exercise this right and make retail j
purchases from FP&L, an argument could be made that the f
purchasing facility is "a retail customer" to which FP&L has no t
duty to wheel on P&W's behalf.18/
The condition is thus doubly anticompetitive:
It could be employed by FP&L both to deny
}
17/
This proposal is consistent with a suggestion made by FYorida Cities.
See Florida Cities' Response to Board Questions, Aug. 7, 1981, at 50.
18/
What is more, a municipal utility which lacks
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generating capacity would have to consume some of the power it purchases; it too would therefore be both a wholesale and retail customer of FP&L to which FP&L arguably might have no duty to wheel.
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. small power producers access to its transmission grid and, when access is granted, to deprive them of customers for the transmitted power.
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l Second,Section X(a)(5) unnecessarily conditions FP&L's obligation to transmit power on a commitment that the l
purchasing neighboring body will make available to the selling small power production facility, and the facility will receive, any sales of " backup" and " maintenance" power "during the time I
and to the extent of its purchases" from the selling facility.
Under PURPA, FP&L is required to provide backup and maintenance power to qualifying small power production facilities upon request.- /
A facility thus entitled to receive backup and i
19 maintenance power from FP&L should not be required to commit to receiving such power from its customer as a condition of access to that customer under the license conditions and thus subject 4
to an argument that it has waived its entitlement to receive backup and maintenance power directly from FP&L.
Moreover, by making a competing facility's access to a potential customer dependent on the customer's.apacity or willingness to make backup or maintenance power available, the proviso substantially diminishes the facility's ability to compete with FP&L.
19/
16 U.S.C.
824a-3 (West Supp. 1981).
=-
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{ Third, the five provisos in Section X(a) limiting f
FP&L's obligation to provide transmission services should be eliminated to ensure that FP&L will be unable to defeat a i
competitor's request for transmission rights by haggling for long periods over satisfaction of these provisos or by relying on the ambiguity of the provisos' language.- /
20 Under one such i
l proviso, for example, FP&L is obligated to provide transmission services only where "the services can reasonably be i
accommodated from a technical standpoint without significantly J
20/
Section X(a) provides that FP&L need provide transmission services "orly if"
"(1) Company's and other connected transmission lines form a continuous electric path between the supplying and the recipient systems; (2) permission to
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utilize other systems' transmission lines can be obtained by the proponent of the
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arrangement; (3) the services can reasonably be accommodated from a technical standpoint without significantly jeopardizing Company's reliability or its use of transmission facilities; (4) reasonable advance request is received from the neighboring entity or neighboring
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distribution system seeking such services i
to the extent that such notice is required for operating or planning purposes, provided that the Company distributes a I
written timetable setting forth reasonable periods of time within which such advance notice must be received for transmission services over existing Company facilities; i
and (5) a reasonable magnitude, time and duration for the transactions is specified prior to the commencement of the transmission."
. jeopardizing Company's reliability or its use of transmission facilities."
FP&L might easily thwart or discourage competing power producers from using FP&L's transmission grid by raising alleged technical problems under such proviso, and the time and expense of challenging FP&L may make it uneconomical for the producer to enforce its transmission rights.- /
Similarly, the 21 required specification of a " reasonable magnitude, time and duration" for the transactions is ambiguous and will allow FP&L unnecessary latitude to deny or delay transmission.
Because the opportunity for disputes and never-ending discussions as to whether transmission proposals satisfy these provisos provides FP&L with excess discretion and thus may negate the effectiveness of the competition the agency seeks to promote, the provisos should be eliminated.
21/
Indeed, this agency has found a condition strikingly sImilar to this proviso to raise antitrust concerns in another case on the grounds that it is " ambiguous and could be subject to unilateral interpretation" by the utility.
Kansas Gas and Electric Co. and Kansas City Power and Light Co. (Wolf Creek Generating Station, Unit No. 1), 1 NRC 268, 271 (1975).
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. C.
The License Conditions Proposed by P&W Are Appropriate and Reasonable The ability of a monopoly utility to eliminate competition by refusing to provide access to essential transmission services has serious anticompetitive effects.- /
22 Indeed, the sort of monopoly FP&L has over transmission has been said to present "the most serious obstacle to potential competition" in the electric power industry.- /
23 Both the courts and Congress have recognized, and sought to remedy, this obstacle to competition.
Requiring a l
utility whose conduct conflicts with the antitrust laws to provide potential competitors with transmission services has been endorsed, for example, in Otter Tail Power Co. v. United States, 410 U.S.
366 (1973), and Gainesville Utilities Department v.
Florida Power and Light Co., 573 F.2d 292 (5th (1978).24/
Cir.) (en banc), cert. denied, 439 U.S.
966 And in 22/
For example, it forces customers to look to the utility as the sole source of needed power, allows the utility to obtain monopoly profits by selling its power to customers isolated from other wholesalers, pressures wholesale customers to sell out to the utility, forecloses access to potential customers by its competitors, and discourages entry into the energy market by new facilities.
- See, e.g.,
- Meeks,
" Concentration in the Electric Power Industry:
The Impact of Antitrust Policy," 72 Col.
L. Rev. 64 (1972).
23/
Id. at 87.
24/
These cases are consistent with the " bottleneck" principle of antitrust law under which "those who control access to a facility, without which others are excluded from a relevant market, will be deemed to possess monopoly power" and may be required to provide the essential access to others.
[ Footnote continued next page]
' enacting PURPA and granting FERC new powers to order interconnection and wheeling, Congress sought to "assur[e]
maximum competitive opportunities for the purchase and sale of electric energy at wholesale, at the lowest possible cost" and to " promote and encourage [a] competitive marketplace."25/
This agency too has recognized the anticompetitive evil posed by a utility's refusal to interconnect with or wheel for a potential competitor and assumed power to impose remedial license conditions.
- See, e.g.,
Houston Lighting and Power Co.
(1979).- /
26 (South Texas Project, Units 1 and 2), 10 NRC 563 Indeed, the settlement conditions already imposed on FP&L herein themselves evidence recognition of this authority and the propriety for its exercise under the facts of this case.
[ Footnote continued from preceding page]
Watson and Brunner, " Monopolization by Regulated ' Monopolies' The Search for Substantive Standards," 22 Antitrust Bull. 559, 571 (1977).
See also, e.g.,
Associated Press v.
United States, 2
326 U.S.
1 (1945); United States v. Terminal R.R. Ass'n, 224 U.S. 383 (1912).
25/
H.R.
Rep. No. 496 (IV), 95th Cong., 1st Sess. 151 T1977).
See also pp. 10-11, supra.
-26/
As NRC economists have observed, the competition for holesale loads created by wheeling "is desirable because of the incentive it provides to adopt the most efficient generation and transmiseion facilities possible for maintaining i
or increasing wholesale loads."
United States Regulatory i
Commission, Economic Analysis Section, Office of Antitrust &
j Indemnity, Coordination, Competition and Regulation in the Electric Utility Industry, June 1975, at 19.
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I t FP&L has been found to have engaged in f
anticompetitive behavior and to have a dominant position in the i
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electric energy industry in Florida.
It has a monopoly over transmission that renders competition in energy distribution and sales by new market entrants impossible.
The construction and operation of St. Lucie No. 2 and the sale of power therefrom will have a substantial effect on the supply and cost f
of power and will further entrench FP&L's monopoly control.
It I
will facilitate FP&L's maintenance of market dominance by i
providing FP&L with yet additional source of electric capacity f
and a further disincentive to purchase or transmit power l
generated by competitors like P&W.- /
27 This additionci mar-t ket power should not be sanctioned by this agency without protection against anticompetitive effects.
i Moreover, FP&L is well aware of the potential for competition from small power producers and has devised strategies aimed specifically at P&W's facility but of general applicability to "[d]eter the competitive threat of municipal generation."28/
i It is precisely to avoid this competition that 27/
Moreover, it is in FP&L's interest to build its own i
generating facilities rather than buying energy from others --
even where the purchase price may be less than the cost of i
self-generation -- in part because, as a regulated utility, i
FP&L is entitled to a return on its investment in these facilities, and it may pass the cost of operating such faqilitiesontoitspurchasers.
'1 2
1 28r See " Guidelines for Power Generation from Municipal Sof,id Waste Operations" attached to P&W's Petition To Intervene and Request for Hearing, Apr. 7, 1981, as Appendix D.
2 2
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FP&L originally insisted on ownership of P&W's generating equipment, and it is to avoid competition that FP&L has sought at every turn to suppress P&W's participation in proceedings in 4
which P&W's competitive presence is relevant or to delay those proceedings while it tries to obtain ownership of the equipment.
FP&L wants to generate, transmit and sell only its own power; so long as P&W owns and controls the facility, FP&L would rather avoid competition and let the facility rust unused.
FP&L's adamant refusal to agree to interconnect with P&W's facility, to buy electricity from P&W or to wheel electricity for P&W thus furthers its goal of deterring the competitive threat posed by municipal generation and preserves and extends FP&L's monopoly power over the electric energy industry in Florida.
Allowing P&W to operate the facility at J
the capacity for which it was designed and to sell electricity l
to customers now held captive by FP&L, will contribute directly toward creation of a healthy marketplace; allowing FP&L to keep the facility idle and to deny P&W access to FP&L's hostage customers serves only to entrench FP&L's monopolistic control over electricity distribution and sales in the relevant markets.
I l
i i Conclusion FP&L should not be permitted to deny competitors such as P&W access to the transmission services that are essential to their operation.
Accordingly, for the reasons and in such manner as set forth more fully above, the instant license should be conditioned as follows:
(1)
FP&L should be required to interconnect with and wheel-power for P&W:
(2)
FP&L should be required to recognize P&W's I
facility as a neighboring entity and qualifying small power production facility entitled to rely on any license conditions that apply generally to such entities or facilities; and 4
(3)
FP&L should have an unqualified obligation to provide transmission services to neighboring entities l
and small power production facilities upon request or, at a minimum, a transmission obligation that does not conflict with its obligations under PURPA and that limits its discretion and the opportunity for evasion.
Respectfully submitted, t ',* l"ji.l fl/.*j i !/
- b Peter D. Weinstein Vice President and General Counsel Parsons & Whittemore, Inc.
Suite 2300 200 Park Avenue New York, New York 10017 (212) 561-8013 Of Counsel:
Deanne C.
Siener Lynn Bregman Wilmer, Cutler & Pickering 1666 K Street, N.W.
Washington, D.
C.
20006 i
(202) 872-6000 l
January 13, 1982
i tr e
i co,u,un CERTIFICATE OF SERVICE
'82 JM 13 Pl2 :28
<; r I hereby certify that copies of the foreva i>
2 d.
goinc Amicus Curiae Brief and Proposed License Con-ditions Submitted by Parsons & Whittemore, Inc. and Resources Recovery (Dade County), Inc. have been served upon the fcllowing persons via first-class mail, postage-prepaid, or by band, this 13th day of January, 1982:
Peter B.
Bloch, Esquire, Chairman Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission 4350 East West Highway Bethesda, Maryland I
Ivan W.
Smith, Esquire Atomic Safety and Licensing Board U.S. Nuclear Reculatory Commission Washington, D.C.
20555 Robert M.
Lazo, Esquire Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 Michael A.
Duggan, Esquire College of Business Administration University of Texas Austin, Texas 78712 Elizabeth S. Bowers,. Chairman Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, D.C.
20555 q
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-mme y
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William D.
Paton, Esquire
)
U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
Peter G.
Crane, Esquire Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 1
4 Argil L. Toalston, Acting Chief Utility Finance Branch U.S. Nuclear Regulatory Commission Washington, D.C.
20555 i
Dr. Peter A. Morris t
Atomic Safety and Licensing Board i
Panel U.S. Nuclear Regulatory Commission Washington, D.C.
20555 4
j Dr. Oscar H. Paris Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission j
Washington, D.C.
20555 i
Docketing and Service Section U.S. Nuclear Regulatory Commission Office of the Secretary 1717 H Street, N.W.,
lith Floor
- Washington, D.C.
20555 i
i Jerome Saltzman, Chief Antitrust and Indemnity Group U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555 1
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Atomic Safety and Licensing Board U.S.
Nuclear Regulatory Commission Wasnington, D.C.
20555 r
Mr. Harold Denton, Director Nuclear Reactor Regulation i
U.S. Nuclear Regulatory Commission i
Washington, D.C.
20555 Joseph Rutberg, Esquire Lee Scott Dewey, Esquire Fredric D.
Chanania, Esquire U.S.
Nuclear Regulatory Commission Washington, D.C.
20555 Ann P.
Hodgdon, Esquire Office of the Executive Legal Director U.S Nuclear Regulatory Comm'ssion i
Wash.agton, D.C.
20555 Thomas Gurney, Sr.,
Esquire 203 N.
Magnolia Avenue Orlando, Florida 32802 Messrs. Robert E. Bathen and Fred Saffer R.W.
Beck & Associates P. O.
Box 6817
.Orlanco, Florida 32803 George Spiegel, Esquire Robert Jablon, Esquire Alan J.
Roth, Esquire Daniel Guttman, Esquire Spiegel & McDiarmid 2600 Virginia Avenue, N.W.
Washington, D.C.
20037 i
n N 1 1
s s
s a e William C. Wise, Esquire 1200 18th Street, N.W.
Suite 500 Washington, D.C.20036 William H. Chandler, Esquire Chandler, O'Neal, Avera, Gray
& Stripling P.
O.
Drawer 0 Gainesville, Florida 32602 Janet Urban, Esquire U.S.
Department of Justice P. O.
Box 14141 Washington, D.C.
20044 Donald A. Kaplan, Esquire Robert Fabrikant, Esquire Antitrust Division.
U.S.
Department of Justice Washington, D.,C. 20530 Charles R.P.
Erown, Esquire Brown, Paxton and Williams 301 S. Sixth Street P.
O.
Box 1418 Fort Pierce, Florida 33450 J.A. Bouknight, Jr., Esquire Douglas G. Green, Esquire Lowenstein, Newman, Reis & Axelrad 1025 Connecticut Avenue, N.W.
Washington, D.C.
20036 Herbert Dym, Esquire Covington & Burling 888 16th Street, N.W.
Washington, D.C.
20006,
i t
t
.. o a o e Atomic Safety and Licensing Appeal Board Panel U.S. Nuclear Regulatory Commission Washington, D. C.
20555 L. Christian Hauck, Esquire Vice President - Law Florida Power & Light Company 9250 West Flagler Street Miami, Florida 33152 Robert R. Nordhaus, Esquire Van Ness, Feldman, Sutcliffe, Curtis & Levenberg 1050 Thomas Jefferson St., N.W.
7th Floor Washington, D. C.
20007 Reubin O.D. Askew, Esquire Greenberg, Traurig, Askew, Hoffman, Lipoff, Quentel &
Wolff, P.A.
1401 Brickell Avenue Miami, Florida 33131 Benjamin H. Vogler, Esquire Ann P. Hodgdon, Esquire Counsel for NRC Staff U.S. Nuclear Regulatory Commission Washington, D. C.
20555 howdar0 b Gry ? '
Deanne C.
Siemer One of Counsel for Parsons &
Whittemore, Inc., and Resources Recovery (Dade County), Inc. '
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